Indigenous and Northern Affairs Committee on May 23rd, 2013

[The Chair, Conservative, Chris Warkentin]

Colleagues, I call to order the 74th meeting of the Standing Committee on Aboriginal Affairs and Northern Development.

Today we have three different panels of witnesses. We're beginning with two witnesses for the first hour, Mr. Gagnon and Mr. Hrudey. Thank you so much for being here.

Mr. Hrudey is coming as an individual, and is a former panel member of the Expert Panel on Safe Drinking Water for First Nations. Mr. Gagnon is coming to us as a representative for the Centre for Water Resources Studies.

Thanks, gentlemen, for being here. We're going to turn it over to you.

We'll begin with Mr. Gagnon's opening statement, then we'll hear from Mr. Hrudey, and we'll then have some questions for you.

[Prof. Graham Gagnon, Director, Dalhousie University, Centre for Water Resources Studies]

Thank you, Mr. Chair and honourable members, for providing me an opportunity to address clean drinking water in first nation communities in Atlantic Canada, and the potential impacts of Bill S-8.

The Centre for Water Resources Studies at Dalhousie University was established in 1981 to address water issues facing Atlantic Canada through applied research. The objective of our centre is to address real challenges faced by water communities and to provide a platform for the development and appropriate application of water technology, water quality analysis, and advancement.

As director of this centre, I'm also a professor and NSERC chair in water quality treatment in the Faculty of Engineering.

Over the past five years, the centre has worked with organizations such as Alberta Environment, New Brunswick Department of Health, Nova Scotia Department of Environment, and the Government of Nunavut, to evaluate and develop risk-based water and wastewater strategies.

Through the research chair program I've also had to opportunity to work with water utilities, engineering consulting firms, and technology firms in Atlantic Canada and beyond to investigate and provide solutions to emerging water quality challenges.

Since 2009, our centre has worked in partnership with the Atlantic Policy Congress of First Nations Chiefs on advancing knowledge in clean water and developing a path forward for safe drinking water and wastewater systems in first nation communities.

The APC recognizes the challenges of their current water practices. The APC sees opportunities for improving health and safety in first nation communities. One would be through the passing of Bill S-8.

Bill S-8 defines lines of responsibilities between the owner and the regulator of water assets, which was seen as a critical step forward in providing safe water in the report on the Walkerton inquiry, written by Justice O'Connor in 2002.

The state of drinking water and waste water in first nation communities is a recognized challenge in Canada.

In 2006, an independent expert panel for safe drinking water for first nations provided recommendations to Aboriginal Affairs and Northern Development Canada on water treatment and management strategies for first nation communities. The expert panel identified 16 elements of a proposed regulatory system, and suggested that a national-level first nations water commission take on the roles of regulation, enforcement, and accountability.

Since that time, national studies have been conducted by several independent organizations. Notably, Neegan Burnside conducted a system assessment report of water and wastewater treatment, and the related costs and risks in first nation communities.

Within the Atlantic region, the centre, in partnership with the APC, has conducted several research projects related to water and wastewater systems in first nation communities. These projects fall under the umbrella of a clean water initiative for first nation communities. The overall purpose of this clean water initiative is to provide public health and safety for first nation communities in Atlantic Canada.

The main activities undertaken by the centre have included a regulatory assessment and regulatory benchmark development for the Atlantic region, a water asset analysis and cost assessment for the Atlantic region, and the development of a framework for a first nations regional water authority.

Mr. Chair, our centre has developed a regulatory benchmark for first nation water and wastewater operations in Atlantic Canada. These were based on the 16 elements defined by the expert panel. They're also benchmarked against the regulations from Nova Scotia, New Brunswick, Prince Edward Island, and Newfoundland and Labrador.

These regulatory benchmarks have been reviewed by AANDC and have been reviewed by several key experts in the water field.

To test the implementation of these regulatory benchmarks, members from our centre conducted pilot trials with four first nation communities in Atlantic Canada. The results of the pilot trials suggest that there is potential for a high level of compliance with drinking water and wastewater quality. However, there are significant operational gaps identified that require investment of both human and financial resources to meet the standard on a day-to-day basis.

Going forward, the benchmarks offer an opportunity to develop a regulatory structure in the Atlantic region. It's been noted that the enforcement and compliance aspects of this regulatory structure would require funding resources and a full review with various first nation stakeholders, going forward.

Mr. Chair, the centre has also provided a peer review of the data presented in the 2011 national engineering assessment, conducted by Neegan Burnside. The centre specifically focused our efforts on first nation communities in the Atlantic region. The centre's review showed that only 50% of the systems had an operator with adequate certification, only 11 systems also had a source water protection plan, and 15% had groundwater assessment plans. These source water protection plans and ground water assessment plans are viewed as a critical step for water security, which has been outlined in the report of the Walkerton inquiry.

Within the context of waste water, the national engineering assessment revealed that a mere 35% of the wastewater systems in Atlantic Canada met the 1976 federal guidelines for wastewater quality. This was viewed as significant, as the wastewater system effluent regulations were promulgated in 2012, and therefore the 2012 wastewater regulations specify significant changes for first nations systems.

Based on a review of the national engineering assessment data and the pilot trials, it is apparent that there is a gap between the current practice and future regulation for water and wastewater systems.

We have evaluated the economic gap in regulation and engineering practice by working with an engineering firm called CBCL Limited. CBCL is an engineering firm with over 60 years of design experience in Atlantic Canada. They were asked to conduct a drinking water and wastewater asset assessment of first nation communities. The asset assessment developed class C and class D cost estimates for water treatment, water distribution, wastewater collection, and wastewater treatment. The cost estimates focused on the gap between the current state of conditions and those proposed in the regulatory benchmarks.

The asset assessment consisted of individual community visits, evaluation of background materials and documentation, and using costing models for regional water systems of similar service size. A summary of all first nation communities in Atlantic Canada was prepared along with detailed individual reports for each participating community.

It was estimated that a complete replacement of all existing water and wastewater infrastructure would total approximately $250 million in the Atlantic region, whereas the estimate to bring systems into compliance with the proposed regulatory benchmarks would cost, at the low end, $70 million, and at the high end, $100 million. Operation and maintenance costs were estimated to be approximately $7 million per year among the participating communities in the Atlantic region.

Finally, our centre has a history of working with the water industry, and we have recommended that a regional first nations water authority be established. To its credit, the Atlantic Policy Congress of First Nations Chiefs has recognized that addressing water challenges through a coordinated regional approach is required. Implementation of a first nations regional water authority would enable coordinated decision-making, maximize efficiencies of resource allocation, and establish a professionally based organization that would be in the best position to oversee activities related to drinking water and wastewater disposal. This would, on a day-to-day basis, transfer liability away from chiefs and councils, and pass it to a technical group. Examples of similar organizations include water utilities, power companies, and post-secondary educational institutions in Canada.

The APC is evaluating options for a water authority structure. Potential structures include a water authority as a crown agency, as a private company, or as a corporation through a federal private act. In partnership with McInnes Cooper, a law firm based in Atlantic Canada, our team evaluated all three options and determined that incorporation through a private act would be the most desirable option for the proposed water authority. Incorporation through a private act would enable the water authority to maintain a greater level of autonomy and transparency, and most important, a defined scope of activity and responsibility.

The proposed water authority structure is consistent with the 2006 “Report of the Expert Panel on Safe Drinking Water for First Nations”. It's also consistent with the spirit of Bill S-8, in that a regional entity would be a body upon which the power to own and operate drinking water and wastewater systems in the Atlantic region could be conferred.

In conclusion, the Centre for Water Resources Studies has had the privilege to work with the Atlantic Policy Congress of First Nations Chiefs to identify safe drinking water and wastewater disposal practices for first nation communities in Atlantic Canada. Through this partnership, the team has worked on three main activities: a regulatory benchmark framework, a water asset analysis, and the development of a framework for a regional first nations water authority. There is a significant opportunity to improve health and wellness for first nation communities. The provision of safe drinking water and wastewater disposal has been a significant barrier for many communities in Atlantic Canada.

Within the Atlantic region, the first nations chiefs have been highly supportive in developing innovative solutions to address water quality challenges in Atlantic Canada. The path forward proposed by the Centre for Water Resources Studies is therefore consistent with Bill S-8 and with the 2006 expert panel report. To that end, it is recognized that these activities will require resources in collaboration with the federal government. However, these resources will be used to provide sustainable communities and a legacy of safe drinking water for generations.

Thank you.

[The Chair, Conservative, Chris Warkentin]

Thank you, Mr. Gagnon.

We'll turn to Mr. Hrudey now for your opening statement.

[Dr. Steve Hrudey, Former Panel Member, Expert Panel on Safe Drinking Water, As an Individual]

Mr. Chair and standing committee members, I greatly appreciate this opportunity to give evidence concerning safe drinking water for first nations in Canada.

I have previously testified with Grand Chief Stan Louttit to the Senate Standing Committee on Aboriginal Peoples on March 1, 2011, and with Dr. Harry Swain, on May 15, 2007, concerning our findings in the 2006 Expert Panel on the Safe Drinking Water for First Nations report.

Our report speaks for itself. I don't need to repeat the details of the report here today. My views have not changed. I choose to focus my evidence today on my scientific and professional judgment, based on our research about what makes drinking water unsafe, to allow for understanding of what must be done to keep it safe.

This evidence is conditioned by practical experiences, such as serving Justice Dennis O'Connor on the Research Advisory Panel to the Walkerton inquiry and considering submissions from over 100 parties at hearings held at nine locations across Canada in 2006 while preparing our expert panel report. I have also included a bio at the end of my written submission that covers my other experiences.

I will focus my evidence before you on two matters: what is safe drinking water and how can it be assured, and the vital importance of operational competence in assuring safe drinking water.

Regarding the first matter, Bill S-8 is titled An Act respecting the safety of drinking water on First Nation lands, but safe drinking water is not defined in Bill S-8, nor is it found in the Ontario Safe Drinking Water Act or the U.S. Safe Drinking Water Act. This should be a clue for parliamentarians about a major challenge regarding this topic.

Although it is clearly central to the purpose of Bill S-8, legislators elsewhere provide no assistance in defining safe drinking water. The problem is that “safe” as applied to drinking water is not a simple yes or no, black or white, determination. The drinking water at Walkerton, that killed 7 people and made over 2,000 ill, was clearly unsafe. It was black, not white. Most of the conditions that allowed that failure had been in place for almost 22 years before May 2000, when disaster struck.

In hindsight, the Walkerton drinking water supply was unsafe for 22 years because those responsible for assuring its safety failed to recognize and understand the risks to that supply. If they had recognized and understood the risks, and taken some relatively simple measures in response, the Walkerton disaster need not have happened.

Yet, those measures cannot have assured zero risk of drinking water contamination. Rather, safe drinking water must be assured by achieving negligible risk of consumers becoming ill, and by negligible I mean risks too small to worry about or to justify changing personal behaviour. Negligible risk will not be absolutely pure white on the inherently grey scale of safety, but negligible risk is close enough to white for all practical purposes.

While drinking water quality criteria, as captured by tables of water quality criteria numbers, provide an essential reference, such numbers, legislated or otherwise, cannot and do not assure safe drinking water. If those responsible for Walkerton's drinking water had simply satisfied the very limited guidance that was in place for treating Walkerton's water, that tragedy could have been averted. This disaster arose from a failure to do what needed to be done operationally, not from a lack of stringency of water quality criteria.

So how is negligible risk for drinking water achieved? I would suggest four steps: first, by recognizing and understanding what are the threats to a drinking water system; second, by understanding what are the capabilities and limitations of the treatment and monitoring processes available or that drinking water; third, by assuring that the treatment system operates to its capabilities for dealing with threats at all times; and fourth, by assuring that treated water is delivered to consumers without being contaminated during distribution.

These elements are key features of a “know your own system” approach to assuring safe drinking water that has become international best practice since first being proposed in 2004, almost simultaneous by the World Health Organization and the Australian drinking water guidelines. This approach calls for every water system to develop its own water safety plan.

In Canada, some provinces have addressed many elements of this approach. Ontario requires an operational plan and satisfying the quality management standard, but I find the Ontario approach to be too onerous for the smaller systems that invariably face the greatest risk. So far, only Alberta has made adoption of drinking water safety plans mandatory, and its program was intentionally designed to be practical and effective for small systems. Because drinking water systems for Canada's first nations are essentially all small systems, and many also face additional challenges of being remote, the drinking water safety plan approach is inherently the best available option for assuring that drinking water does not become unsafe.

Bill S-8 could, in one modestly bold step, reflect international best practice by making an absolute commitment to addressing a drinking water safety plan approach as its guiding principle.

The second issue in terms of the vital role of operational competence in assuring safe drinking water is that drinking water safety plans cannot assure safe drinking water unless those who are operating the plant possess the necessary operational competence—the training, knowledge, public health awareness, commitment, and functional capacity. The smaller and more remote the entity charged with providing drinking water, the more challenging it becomes to assure competence.

Consider the following image to illustrate my point about competence. Would you be comfortable as a passenger travelling in a plane flown by a pilot being paid minimal wages with minimal training and limited technical support? I wouldn't. Yet in many small communities in Canada, including first nations, we place responsibility for delivering safe drinking water on personnel who are often under-trained, mostly underpaid and generally under-supported for the enormous public health responsibility they must discharge. A serious operational mistake can make an entire community ill.

Evidence that we heard during our hearings in 2006 confirms my belief that even if physical treatment facilities are less than optimal, a well-trained, responsible operator will be able to protect the safety of a community much better than an inadequately trained operator, even if equipped with the best possible treatment facilities when the system is challenged. Providing safe drinking water is a knowledge-intensive undertaking, and must have a support system that equips and supports operators in taking on that challenge.

So I have to ask, how difficult is to recognize where the real problems lie? Canada has made major investments in upgrading water treatment facilities for first nations, with some excellent improvements to show for that investment. Yet to date, the emphasis has been on funding facilities without sufficiently increased emphasis on tackling the more challenging task of training and supporting competent, responsible operators for every facility.

Given the high unemployment that exists in many remote first nation reserves, an emphasis on creating skilled employment should be an obvious priority, even without the vital role that competent operators play in assuring safe drinking water. Above all else, our focus must be on assuring operational competence.

Small and isolated communities in Canada universally face challenges in achieving the necessary level of competent operations, but some communities have been successful in investing in their operators. Several first nation communities have benefited from circuit rider programs that provide regional support for isolated operators, but these programs are too often over-subscribed and underfunded.

Lack of leadership is a major problem for assuring safe drinking water in Canada. Bill S-8 provides a unique opportunity to fill this leadership void with benefits for Canadians in all small communities, not only first nations. After all, who can credibly disagree with the merits of managing our drinking water to the international best practice of adopting a drinking water safety plan and a know your own system approach?

Thank you.

[The Chair, Conservative, Chris Warkentin]

Thank you, gentlemen.

Mr. Hrudey, thank you.

We'll begin the rounds of questioning with Ms. Crowder, please, for seven minutes.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Thank you, Mr. Chair.

Thank you, Mr. Hrudey and Mr. Gagnon.

I don't think anybody sitting around this table would disagree that first nation communities should have access to safe drinking water.

Part of what we've heard, either through testimony here or through written correspondence, is that there are a number of concerns about whether Bill S-8 will deliver safe drinking water. Part of the concern raised is the fact that a regulatory process will be developed that is not clear. Although the language in the proposed act says “working with first nations”, it's not clear that actual regulatory processes will actually be developed in full partnership with first nations. We've seen a long history of that not happening, so that's concern number one.

Concern number two, which you have both spoken to in one way or another, is resources, whether those be capital infrastructure costs or the ongoing operations and maintenance costs and training costs.

The third issue that's been identified—and Mr. Gagnon did address this somewhat—is around where the liability will rest and whether chiefs and councils will actually have the capacity to own that liability. Then there are the issues around operational gaps.

I quickly want to touch on a couple of points. In the report of the Expert Panel on Safe Drinking Water for First Nations, you indicated that the federal government must close the gap. But there were some concerns about putting in a regulatory regime, because creating and enforcing a regulatory regime would take time, attention and money that might be better invested in systems, operators, management, and governance.

I think you spoke to that, Mr. Hrudey. Is that correct?

[Dr. Steve Hrudey]

Yes.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

So in your view, part of what has to happen is a very real investment in training, operations, and maintenance, in order to make sure qualified operators are on the ground.

Do you have any view on how chiefs and councils might retain those trained operators? We've heard some chiefs and councils say that once the operators are up and trained, they can't afford to pay the going rates that larger communities can pay and so they lose their trained operators.

How might first nations retain those trained operators once that happens?

[Dr. Steve Hrudey]

Coming from Alberta, I know it's not a problem unique to first nations. When operators get trained, whether they're with a first nation or another small community, they're a very valuable commodity and often get recruited away.

I recall testimony that we heard from the Piikani first nation in southern Alberta. Their manager said that it's a glass half-full, glass half-empty thing. He actually found this to be an opportunity for people on his reserve. If he trained them up and they became skilled and could find employment elsewhere, then he wasn't about to hold them back.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

It still leaves the communities in a position where they don't have trained operators on the ground.

I want to move on quickly here because I only have seven minutes, including your answers.

In the report of the Commissioner of the Environment and Sustainable Development from 2005, there was an indication that the success of a first nation water management strategy depends on INAC’s and Health Canada’s addressing the management weaknesses. There were a whole bunch of management weaknesses.

Mr. Gagnon once again pointed out that Bill S-8 clarifies roles and responsibilities, but we've just recently had the case of Kashechewan, where the community recommended there be storm sewers and backflow limiter valves for each house after the flood of 2008, and the government refused. The storm sewers would have helped contain the flash flood. Instead, the sewage lifts were quickly overrun. There was no way of stopping the backup of raw sewage into the homes, and now 38 people are homeless.

This kind of situation is not unusual in first nation communities, and the community is well aware of it, but we’ve got governments…. This is not a partisan remark. It's not only this government but decades of governments that have not responded to community needs. It's the community that bears the direct brunt of this.

Do you think Bill S-8 will clean up situations like this?

[Dr. Steve Hrudey]

I'll respond briefly in terms of the expert panel's expectations in 2006. I think we recognized in those nine meetings across Canada, and in the 100-plus submissions, that this was not a homogeneous problem. There's a lot of diversity among first nations in Canada, a lot of different views. The challenge in coming up with federal legislation on this topic is, how do you accommodate all of that diversity?

The way I see Bill S-8 is that, essentially, it's only enabling legislation. The test would be in how it's implemented.

I think it is fair criticism that there are no financial obligations associated with Bill S-8. From my point of view—I'm not speaking for the panel here—I would like to see commitment to the operational training part. From all the experience I've had, my view is that's the most critical element.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Do I have time, Mr. Chair?

[The Chair, Conservative, Chris Warkentin]

Yes.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Again, you rightly pointed out that many of the systems in first nation communities are small systems, and there are challenges that go with those.

Currently, we know we have systems that are inappropriate for the size of the community. Either they've been overbuilt and are far too complicated and not what the community needs, or the training hasn't taken place.

This legislation does not address any of that. It's being sold as a bill of goods, in terms of, “This is going to provide safe drinking water for first nation communities.” In and of itself it won't do that.

What needs to be in place, specifically? I've heard that it's money. What else needs to be in place to ensure that this legislation delivers on its promise?

[Dr. Steve Hrudey]

I’ll answer briefly. That's why I chose to focus on water safety plans. There is no federal legislation that, by itself, can assure safe drinking water. It's a question of providing the tools and the framework to do what needs to be done, and that means getting your mind away from focusing solely on the standards and numbers to focusing on operational competence.

I'll let my colleague comment further if he wishes.

[Prof. Graham Gagnon]

I would echo what Steve was saying; my comments are very similar. The act enables regulation. How that regulation would unfold….

I think our regulatory framework was very similar to what Steve outlined, in that it would be a drinking water safety plan of some sort. I think that is critical for ensuring that operators understand what they're doing on their day-to-day job, and what the safety checks are on a day-to-day basis.

Steve is quite right: having a plan in place through this bill would be critical.

[The Chair, Conservative, Chris Warkentin]

Thank you very much.

We'll turn to Mr. Seeback now, for the next seven minutes.

[Kyle Seeback, Conservative, Brampton West, ON]

Thank you, Mr. Chair.

I have some questions for you, Graham.

Thanks for your testimony. I don't think anyone is suggesting that this is the answer to everything with respect to first nations' drinking water and waste water.

One thing, though, is that a regulatory regime is an important step, one that was identified by the expert panel. With your experience, both with the Atlantic Policy Congress Of First Nation Chiefs and other projects, why do you think developing a regulatory regime is such an important step?

[Prof. Graham Gagnon]

Regulatory enforcement presently is essentially enabled through a funding envelope to the first nation community. That is very difficult to enforce because it's enwrapped in all of the other activities the first nation community does. Having explicit goals, explicit milestones or benchmarks that the water community must uphold, would be critical to have in that regulatory framework.

It would be very similar to driving a car. If we don't understand the rules of the road, it would be quite chaotic driving on various highways in Canada, so the regulatory framework spells out what you're allowed to do and what you're not allowed to do, and how to basically proceed in your job.

[Kyle Seeback, Conservative, Brampton West, ON]

Dovetailing with that, when you talk about regulations, one of the things that is raised by some people who have come to the committee and also by members is that of dealing with capacity issues.

One of the things that I've asked witnesses about is the following. Certainly, you have to have capacity, but the government has been quite clear that we are not going to impose the regulations. It is going to be done in consultation with first nations—and certainly not until they have the capacity to do so.

Why do you think it's important that it's done in that way?

[Prof. Graham Gagnon]

I think it's important, first of all, to recognize that for first nations to achieve self-governance, they have to be at the table deciding their fate and what they can uphold, first and foremost. They should also, as first nations leaders, have a clear idea of what their goals are for safe drinking water and outline, as Dr. Hrudey pointed out, what they aspire to achieve in terms of safe drinking water, and define safe drinking water. That regulatory framework would help to define that, and they should be at the table with a voice to spell out how they would like to uphold safe drinking water.

This also helps them and all the stakeholder parties to define the funding mechanisms to achieve that, and the resource mechanisms, not only financial but also the human resources at a skill level from an operational standpoint and from a management level, needed to achieve these goals on a daily basis.

[Kyle Seeback, Conservative, Brampton West, ON]

This is one of the things I asked a witness about earlier in the week. Their position was that you should determine the funding and fund, then develop the regulations. In my mind, that is backwards. If you are going to develop these regulations, you have to actually to develop the regulations first before you know what the funding is going to be, because the funding is going to be contingent, I would think, upon how stringent the regulations are.

Do you agree with—

[Prof. Graham Gagnon]

In my testimony, to follow along your line of thinking, we developed a benchmark based on best practice in the Atlantic region. Then we pilot-tested those benchmarks. We didn't necessarily pilot the community's ability to meet the benchmarks but we piloted the benchmarks themselves, so we asked the questions, “Do these benchmarks make sense? Are they achievable?” Then we asked how much it would cost to actually achieve those benchmarks. So we are following the same playbook, I guess.

[Kyle Seeback, Conservative, Brampton West, ON]

To me, that makes sense.

One of the things that has been suggested is to look at adopting provincial or territorial standards, then adopt them regionally. Do you think that would be a good approach to developing this as we go forward?

[Prof. Graham Gagnon]

Yes, I think a regional approach has some merit from the standpoint, as Dr. Hrudey mentioned, of Canada not being a homogenous place. Water challenges across Canada are certainly different and unique: there are arid places in Canada, and the Atlantic region is certainly not an arid place. So to have regulations that would deal with different regional contexts has some logic, especially if they follow the same spirit of a drinking water safety plan and having checks and barriers in place. We could then deal with the subtleties of regionalization a little more easily.