Indigenous and Northern Affairs Committee on May 23rd, 2013

[Kyle Seeback, Conservative, Brampton West, ON]

When you talk about setting the benchmarks—I might be paraphrasing—what advice would you give the committee when those benchmarks are set in a regulatory framework? How will we assess whether or not a first nation is going to be able to comply or able to meet those benchmarks? What sort of key things should we be making sure are there in the sense of capacity?

[Prof. Graham Gagnon]

I think, to come full circle again, it would obviously involve first nation communities at the table. Dr. Hrudey mentioned the capacity at the ground level, the front level. Are there operators? Do they have the capacity, the management structure, and the operational structure to actually achieve whatever goals were in place? Benchmarks must include aspects around human resources, basic human resources. We outline those types of aspects in our benchmarks, so it's not just a table of numbers where you meet these values, but the actual performance standards of the employees of the water community are upheld. Those types of elements really need to be thought about very carefully.

[Kyle Seeback, Conservative, Brampton West, ON]

Steve, do you have anything you want to add to that?

[Dr. Steve Hrudey]

Yes, I think it's really important for the committee to understand that the biggest misconception around safe drinking water is that you can define it by tables of numbers. This may seem counterintuitive. Safe drinking water ought to mean measuring all these things to give you safety. It's true that, if you could meet all those numbers and monitor all those things continuously, you could probably have safe water, but the fact is you can't. You can't measure in real time most of the things that matter. You can't get your results until long after people have drunk the water, so it's not a preventive approach. The focus has to be on the competence of the operations using processes that we know work for the things that make people sick. That's what keeps water safe.

What works in one place isn't necessarily going to work in another. It's not as simple as just promulgating a table of numbers, and if you exceed these numbers we'll send you to jail. That misconception blinds most people to what needs to be done.

[The Chair, Conservative, Chris Warkentin]

Thank you very much.

We'll turn to Ms. Bennett now for the next seven minutes.

[Carolyn Bennett, Liberal, St. Paul's, ON]

Thanks very much.

As you know, when the minister was here, we were reminding him, Dr. Hrudey, of the report that said that regulation alone would not be effective, and that without the investment to build capacity, it might even put drinking water safety at risk by diverting badly needed resources into regulatory frameworks and compliance costs. This is what your report said. You went on to explain in the report what the adequate resources would look like and what you've outlined today, mainly capacity.

Obviously, we told the minister that we're not in favour of this bill until we see some evidence that there's going to be capacity because, again, it's a false assurance that we're going to get safe drinking water just by passing this bill. If they continue to cut the resources and the opportunities for training, this will not work.

We're also concerned that it came in through the Senate, which means it can't have any funding allocation attached to it.

So if this bill was going to be improved to deal with what you described as water safety plans, knowing your own system and that the bill was an opportunity, what would you amend? What would you do to this bill to improve it?

[Dr. Steve Hrudey]

I guess when I was looking at this and saying that I'm cognizant of the fact that it's now seven years since we had the expert panel, making progress on this file has apparently not been easy. The idea of enabling legislation obviously has some merit in the sense of at least taking a step.

The thing we were trying to caution against in the expert panel report is, do not fall into the trap that I just spoke to in my previous comments of publishing a table of numbers, publishing a series of penalties for not meeting those numbers, and leaving it at that. Proposals like that have been out there in the past. I testified before a Senate committee on a proposal to make drinking water under the drug act and regulate it that way. That's not going to get the job done.

To answer your question, I've offered this suggestion. There's been a ton of excellent work done around the world to come up with this drinking water safety plan approach. We don't need to reinvent the wheel. This was developed by WHO for communities in sub-Saharan Africa and in Tokyo, Japan. One size fits all in the concepts that are being proposed. One simple measure is to provide some guiding principles to this act to say we don't need to reinvent the wheel. All this good thinking has gone forward in describing what drinking water safety plans need to be. This act, regardless of anything else that it's intended to do, should achieve those objectives.

[Carolyn Bennett, Liberal, St. Paul's, ON]

Regarding the need for flexibility in small systems, I think we've heard from chiefs, as my colleague said, that whether it's having to meet provincial standards or any other framework, on the ground it doesn't work. You can have met all the criteria and then you end up with a power outage, and the guy who knows how to fix it is not allowed on the property to just reset the power because he doesn't have a certain level of certification, because that requires a written test.... Some of the people we met were encyclopedic in their knowledge of the microbiology and the emergency plan, and they could pass an oral test at any time, but you have these rules that mean that the guy is not allowed to turn the power back on until you get somebody to come from the mainland. And by then you're into a boil water advisory, or you're waiting for the department to approve the new membrane that this fabulous new plant needs in order to do its job, but it's about cost.

So I'm pretty frustrated that we're stuck with this bill when it doesn't look like they have listened to the people on the ground or to the WHO, and are just writing this and then saying “over to you” in terms of liability to chief and council.

[Dr. Steve Hrudey]

Well, I think what you've described is reality. Stuff happens. Just ask Montreal. There are a million people under a boil water advisory because of problems that hit there yesterday. That's the nature of trying to provide safe drinking water. And I repeat, there is no legislation federally or provincially that can anticipate and deal with all those things. The most you can expect to have happen is to put in place a process, a framework that can build capacity so that the people on the ground are able to deal with the real problems. That starts with them understanding what the challenges to their system are and what the capacities of their system are, and working towards fixing the things that will allow them to deal with problems.

It needs to be a bottom-up approach. I would really encourage you to have a look at what Alberta has done by adopting a requirement for water safety plans. This didn't come from the top. This came from a few experienced people within the department who were aware of what actually was going on in Scotland, where they had a lot of similarities to us, and how effective the drinking water safety plan was. They brought this in to the regulatory structure. It's not a panacea. It's going to take years for it to have all the benefits that it can have, but it's a useful start.

[Carolyn Bennett, Liberal, St. Paul's, ON]

So could this bill be improved by some assertion around the need for a water safety plan approach? How would you fix this?

We're going to get this bill. So is there anything we can do to make it better such that at least there's a bit of education that comes with it in terms of what people should be looking at, instead of just having to wear the liability?

[Dr. Steve Hrudey]

Well, that's what I'm pointing to: the simple addition of a preamble that focuses on the water safety plan approach. And then amongst the regulatory options that are outlined—because it is broadly enabling—I point out that this broad framework should be reflected throughout any options that are adopted.

That, I think, would be true to what the expert panel heard and wrote in our report. We were afraid of simply imposing a detailed regulatory structure with “meet these numbers or go to jail” and nothing else. Well, Bill S-8 isn't that, but the criticism is.

What else is it? It could be effective in the sense that it enables a whole bunch of things to happen, but it doesn't have the guiding principles, and that's what I'm advocating.

[Carolyn Bennett, Liberal, St. Paul's, ON]

Would you like to write us a letter about what should be in the preamble?

[Dr. Steve Hrudey]

I'd be happy to.

[Carolyn Bennett, Liberal, St. Paul's, ON]

Thank you.

[The Chair, Conservative, Chris Warkentin]

Thank you.

Ms. Ambler, we'll turn to you, for the next seven minutes.

[Stella Ambler, Conservative, Mississauga South, ON]

I thank you both very much.

Dr. Hrudey, I want to ask you specifically about your thinking and view of some of the timelines in this legislation. According to the written submissions to the panel, several first nations have expressed the opinion that their water systems must first be brought up to clear standards before a legislative regulatory regime is put into place. The government has stated that regulations will be phased in, so first nations will not be required to comply with the regulations until they have the capacity to do so. The previous minister did express that in writing and has made it very clear.

Can you comment on and give us your view on the phased-in approach?

[Dr. Steve Hrudey]

Well, I think that's the only sensible approach to something like this. That's what the expert panel was concerned about. You can't just pass regulations and say, “After this date you're in violation and you're going to jail.” But at the risk of sounding like a broken record, one of the advantages of a drinking water safety plan approach is that if you put that as your overriding approach to solving the problem, it maps what your source water issues are, what your capabilities for dealing with those challenges are, what your personnel challenges are. It requires you to put your mind to all of these issues, and at that point it should reveal where the gaps and deficiencies are.

I guess I would prefer, as a taxpayer, to see funds invested, with the knowledge that can be gained from a drinking water safety plan, rather that some kind of arbitrary list of “You're next.”

[Stella Ambler, Conservative, Mississauga South, ON]

Right, I appreciate that. Even in your comments you talked about the fact that it can't simply be preventative and that there isn't a way to just prescribe what needs to be done. I think what you're saying is that the phased-in approach, obviously, is a good one. It will allow first nations to do this properly, I think.

What conditions must be in place and be met before these new standards are enacted?

[Dr. Steve Hrudey]

Clearly, there needs to be a commitment to work with the people who actually have to implement this. The essence of a drinking water safety plan approach cannot work if it's not owned by the people who have to do it. You don't get that ownership by imposing it and saying, “You will do this.” I guess that's one of my criticisms of what's happened in Ontario, with the quality management standard. It's so complex that the smaller communities look at it and their eyes glaze over and they say, “Well, we'll hire a consultant.”

[Stella Ambler, Conservative, Mississauga South, ON]

Yes, you mentioned that it was too onerous.

[Dr. Steve Hrudey]

Well, it's just too complicated. It doesn't cut to the heart of what this system should be trying to achieve. It won't work if you simply hire consultants who produce a glossy report that goes on the shelf.

[Stella Ambler, Conservative, Mississauga South, ON]

Yes. That we need a bottom-up approach, I also heard you say.

You mentioned Scotland. Could you tell us what their method is and your experience of how they're doing it there? It sounded like you were impressed by the system they have in place.

[Dr. Steve Hrudey]

There's a couple of things there.

The person who led the charge in Alberta to get the drinking water safety plan approach actually immigrated to Alberta from Scotland, so he brought that expertise and brought some people familiar with what was going on there to actually do things on the ground in Alberta.

The thing about Scotland is they did not privatize their water utilities like England and Wales did. They kept them under, essentially, the equivalent of a crown corporation, but their realities are similar realities to many of those a lot of small communities in Canada. When they looked at what WHO had come out with in the water safety plan approach, they said, “This is what we need to do.” For these smaller communities, “You need to have the people on the ground aware of where the threats are coming from, and aware of what they can and can't do.”

Something I didn't say in my remarks, but which is one of the most important things, is to know when to call for help. Let's face it: you're not going to put people with Ph.D.s with chemical engineering into communities of 200 people, a thousand miles away from anywhere.

[Stella Ambler, Conservative, Mississauga South, ON]

Right.

I also appreciated your reference to Walkerton. I'm from Ontario, and in the 1990s that was obviously a very tragic situation in terms of what you described—that this can never be assured, that you can only reduce the risks to negligible. As you said, I think that's a common misconception that many people have.

To go back to the timelines, how long do you think it will take to bring first nation communities up to the standards once a regulatory regime is decided on?

[Dr. Steve Hrudey]

There are a number of first nations who are already beating any standard you would ever want to meet. There are some real gold-plated success stories out there.