Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 16 - Evidence - May 15, 2007
OTTAWA, Tuesday, May 15, 2007
The Standing Senate Committee on Aboriginal Peoples met this day at 9:30 a.m. to examine and report upon recent work completed in relation to drinking water in First Nations' communities.
Senator Gerry St. Germain (Chairman) in the chair.
[English]
The Chairman: Good morning. It is my pleasure to welcome you to this Standing Senate Committee on Aboriginal Peoples. I am Senator St. Germain from British Columbia and I have the privilege of chairing this committee.
Before we begin, let me introduce members of the committee. On my left is the deputy chair, Senator Nick Sibbeston, from the Northwest Territories, and next to him is Senator Lillian Dyck, from the Province of Saskatchewan. On my right, there is Senator Charlie Watt, from Northern Quebec, Senator Aurélien Gill, also from Quebec, and Senator Milne, who is from Ontario.
Today, we have before us, from the Expert Panel on Safe Drinking Water for First Nations. Welcome to the committee.
It is nice to see you again, Mr. Swain. Years back, when I was a cabinet minister in the other place, you were very active and you were doing a credible job. It is nice to see that you are back in the fray and doing what you have always done for Canadians, great service.
Harry Swain, Chair of the Expert Panel, Expert Panel on Safe Drinking Water for First Nations: Thank you, Mr. Chairman. I shall begin by introducing a couple of the people who are here, and some who are not. On my right is Steve Hrudey, an engineer in a public health faculty and now chairman of the Alberta Environmental Appeals Board. On my left is Juli Abouchar, our panel's legal adviser from Willms and Shier in Toronto.
Grand Chief Stan Louttit, our third member, could not be here and sends his apologies. I should also mention Catharine Lyons-King, panel secretary and drafter of most of the report that you have seen.
Honourable senators, my colleagues and I greatly appreciate your interest in the work we did last year on options for regulating water quality on Indian reserves. The written summary that has been circulated makes several points worth underlining.
First, new legislation will be required. Neither the laws of general application clause, section 88 of the Indian Act, nor hanging regulations on an existing federal statute, will work. New federal legislation could simply reference provincial regulations as the basis for reserves in their territory, but these regulations differ from place to place, which may concern some people. Moreover, there is no present mechanism for First Nations to have any direct say in the matter of what regulations will apply to them, since these are developed by a committee of federal, provincial and territorial officials and adopted, or not, by provincial governments without First Nations input.
More important, legislation that confines itself narrowly to drinking water quality would miss several closely related functions. It would miss source-water protection, an important matter to the many First Nations who regard this as a key to their responsibilities to the land and the water that nurture their societies. It would be silent on the question of responsibility for water management on reserves, notably for water takings and groundwater management, where there is potential for conflict with provincial governments. It would not set out the necessary mechanisms for co-operation with the jurisdictions that surround them. It would miss the question of which Indian lands — reserves, co- management areas agreed in the context of land claims settlements, areas of claimed but unadjudicated Aboriginal title, perhaps areas reclaimed through treaty land entitlements on the Prairies — will be governed by the new laws and which by provincial law. Of course, it would be silent on the question of who is to enforce the new rules once they are struck.
On this last matter, I was talking to an expert group recently on whether water ought to be declared a human right. All 10 provinces and three territories were represented. I asked how many of them would be interested in taking on the task of enforcing provincial standards on reserve even if all the costs were borne by the federal government. There were no volunteers.
Since any of these matters would leave the legislative scheme seriously incomplete, I expect that a wise minister would wish to address them. The specific way they are addressed would be of great interest to First Nations, the provinces and territories and the Department of Finance.
To further complicate matters, you have heard that the system that provides drinking water is an amalgam of band councils, Health Canada, Indian Affairs and Environment Canada. In particular, Indian Affairs provides the money. A regulatory system would have to bind the federal parts of the system, including, in particular, the funders, to be effective. Its enforcers cannot be the providers, for fundamental conflict of interest reasons. For this reason, we invented, as an option, a First Nations water commission and an associated appeals tribunal, which would be responsible for inspections and for holding particular parties, including the federal agencies, to account.
We made the point at some length that regulation without the means to attain the norms was a fruitless game of blame the victim. Attention to the capital and operating cash requirements must accompany, perhaps precede, any successful attempt at regulation. Forcing the liabilities and the standard of care on First Nations that Ontario, for one, did to its municipalities in the wake of Walkerton, without providing the resources and training to meet new and higher standards, will justly be resisted.
Regulation in important respects is an after-the-fact thing. The real objective is not to find and punish the guilty, but rather to prevent contamination from occurring in the first place. After all, the acute threats to drinking water quality, which are all microbial, are measured only after the water has been drunk. It is the classic barrier, good source water, excellent treatment, safe distribution, proper treatment after use, and all of this within a framework of quality management that keeps our water safe. It is not rules about maximum contamination levels.
The present means used by the government to make this happen are not dissimilar to the means used by all provinces before Walkerton woke everyone up — that is, a combination of guidelines or objectives for drinking water quality; expert oversight of treatment system design; some emphasis on training; and funding conditions that contractually obligated the providers to meet the objectives. This system has in practice been loose and lacking in real accountability, but it is worth pointing out its similarity to provincial practices until only seven years ago.
Fortunately, the federal government has seriously increased its investment in engineering and training, wrapping up strongly after 1996. We are now at a stage where the intent of the 1977 policy — standards similar to non-native communities of comparable size and remoteness — seems to be in sight, although good measurement is lacking.
In British Columbia, Manitoba and Ontario, as instances, it would appear that the proportion of small and rural communities served by fully accredited operators is about as high as it is in non-Aboriginal communities. All communities are currently chasing a qualified labour force that is too small and that, given the time it takes to train and certify people, cannot be expanded overnight. Both groups have some distance to go to reach provincial standards, but the situation is far from hopeless. We were impressed by the testimony of First Nations leaders and technical experts on the distance they had come and by their eagerness to finish the work.
Honourable senators, these are questions that will crease the brows of the wisest and best intentioned among us. While we commented on them in our report, we were not so presumptuous as to make definitive recommendations. It seems to us that a tripartite discussion ought to precede legislation and that this committee might offer some wisdom to all parties, especially the federal one. The bottom line is that there are a number of important technical and economic issues that will require solution before legislation is crystallized. Obviously, this should be done in respectful dialogue with First Nations. There is time to do this, since, in respect of water, at least, no one can credibly compare Indian reserves with the Third World. Statements to that effect tend to come from people who have visited neither or who have an axe to grind.
The urgent matters of operator training and capital investment are well advanced and, of course, need to be completed, but the next steps require the creation of regulatory institutions that fit within the evolving constitutional framework of the country and especially the increasing weight that we, as a society, are giving to the autonomy and responsibilities of the First Nations. These matters require that we reflect on them together.
The Chairman: Thank you, Mr. Swain. Does that complete your presentation?
Mr. Swain: Yes.
The Chairman: The floor is open for questions. Mr. Swain, in your summation, you said that a comparison to a Third World scenario is unfair. Yet, in Canada, 90 communities are still under a boil-water regime. Can you elaborate on this, so the viewing audience might better understand why these statements were being made and why you are refuting them?
Mr. Swain: The question has to do with the 1977 policy that stated comparability with other Canadian communities of similar size and remoteness. In our province, about 8 per cent of communities have persistent boil-water advisories, 300 in British Columbia alone. In British Columbia generally, and on First Nations reserves, these are usually for technical reasons that pose a risk but not an immediate threat to human health, such as a matter of turbidity rather than a microbiological exceedance. The advisories might be due to the unavailability of a trained operator, even though the person in place has been on the job for some time and has experience.
The question of DIAND's definition of what communities are at risk is something I think might be examined a bit. In our report, we made the observation that Pikangikum, a community in Northern Ontario with a serious water supply problem, is not on the department's list of high-risk communities. That is a problem because of the way the department makes the definitions.
Senator Hubley: I will go back to the beginning of your presentation when you touched on whether water ought to be declared a human right. I should like to have your input on whether the committee should begin with that area. Is it the case that, unless we can resolve the issue of safe drinking water for everyone, we will not be able to provide safe drinking water on an ongoing basis — unless we are talking about chemically treated water systems? Certainly, that came up in some of your discussions. What do the other provinces think about that suggestion?
Mr. Swain: I should make it clear that the question of water as a human right is not something that came up before this panel but was a subsequent event. The Department of Foreign Affairs had a conference a couple of months ago on whether Canada should sign an international convention to that effect.
The cynic's response would be that a human right and $1.50 will get you a bottle of Perrier.
Declaring water to be a human right does not do anything to see to its provision. The critical things are investment in the capital facilities, investment in the training of operators and investment in good operation of systems. If those things are present, then whether it is a human right is beside the point, although it might be nice. It might have great relevance to Third World countries and help those people to make a moral argument to their government that they ought to undertake those necessary expenditures. However, there is no substitute for the expenditures.
My personal conclusion is that if we want to see the completion of what has been a fairly considerable national effort to get good water on Indian reserves, then we should worry about the basics, about the resources, and then about a regulatory system. The rest is not too important.
Senator Sibbeston: I noticed from your study that you attended many of the larger centres in the country. Did you have the opportunity to see some of the worst water conditions that exist on reserves?
Mr. Swain: We did not have that opportunity. The hearings across the country were arranged by the department, and the smallest place in which we held hearings was Whitehorse. We visited a few reserves on this tour, but not the worst-case places. All three of us on the panel have had direct experience with that at other times. Certainly, Grand Chief Louttit has seen that.
Steve Hrudey, Expert Panel Member, Expert Panel on Safe Drinking Water for First Nations: The people who appeared before us did an excellent job of bringing their experience to us, so we saw in full colour the terrible conditions at Pikangikum, for example. As Mr. Swain has pointed out, each of us has had an opportunity to see some of these conditions in the past, so we were not unaware of the worst.
Senator Sibbeston: Your general comments are that some situations are bad but that much progress has been made, and you would not describe the situation as being similar to a Third World country. Could you describe the reality of the situation? Is there a crisis? Should Canadians be concerned about it? What is the situation on the ground vis-à-vis most of the reserves?
Mr. Hrudey: To understand our comment about Third World, the WHO estimates that approximately 1.8 million people die each year of unsafe water in the Third World, the majority of those being children. We had no evidence of children dying due to unsafe water on our First Nations reserves, but that does not mean that the conditions are acceptable. We saw much evidence of unacceptable conditions. It comes back to what we mean by ``safe.'' When the Expert Panel on Safe Drinking Water for First Nations looked to Canadian legislation, both provincial or federal, we found that nowhere is ``safe'' defined with regard to drinking water, and nor is ``safe'' defined in U.S. legislation. That is because ``safe'' is not a sharp line.
The analogy that we used in our report is that driving through a red light is unsafe, driving through a green light should be safe, but it is not without risk, and driving through a yellow light increases one's risk. There is a gradation. We can clearly define what is unsafe. Walkerton was unsafe; seven people died. Defining ``safe'' is a question of how far removed from what is clearly unsafe you choose to be. There is a general consensus in the water business about how far from safe you should be, and that is where the multiple-barrier approach comes in.
When the Department of Indian Affairs defines something as ``high risk,'' they are saying that some of those barriers are not working; they are not saying that they expect someone to get sick or die within days. Is the situation of 90-some water supplies being listed as high risk acceptable? It is clearly not, because what is acceptable is to have all the barriers working. However, that is still far removed from Third World conditions.
Senator Sibbeston: Have you seen evidence since you wrote your report that the federal government is sincerely interested and is determined to resolve the problem of safe water in all the First Nations communities in our country?
Mr. Swain: In fairness, one would have to say yes. Successive governments over the last 10 years have devoted a great deal of new money to the problem. The present minister, in the face of the observations by the Auditor General about the lack of regulation, and recognizing that regulation was not a simple question in this case, convened the Expert Panel on Safe Drinking Water for First Nations. In the budget, the government promised to introduce legislation, so they are moving. A reasonable test will be what they do with the renewal of the capital funding strategy, which has to come later this year, and with the content of the legislation that will eventually be introduced.
If we have a purpose here today, it is to alert honourable senators to some of the things that you might want to watch for in that proposed legislation when it arrives.
Senator Sibbeston: Finally, with respect to what our government can do with respect to providing good drinking water in all the First Nations areas in our country, why are you recommending that in every part of the country the provincial standard be adopted on reserves? Why could not the federal government, working with First Nations, adopt very high water standards that would apply to First Nations? Could the federal government not simply deal with the issue in that way? That seems to be such a simple answer. It is federal jurisdiction. First Nations need to be involved. Why not set up legislation with a high water standard that would apply to all First Nations?
Mr. Swain: That was, in effect, the conclusion at which we arrived. We considered a number of alternatives. Even to invoke provincial standards will require a federal act. That might be an easy way into it for the federal government.
However, in that way, standards would differ across the country. Some parts of those differences are important; some are not. In the back of our report, Ms. Abouchar and her colleague prepared a long appendix on provincial water regulation setting out what provinces do and how they do it, topic by topic. As you review that, you will see that some provinces are well ahead of others in some respects.
You could, for example, have federal legislation that takes the best from every province and set up a federal standard that is really skookum. It would probably be an expensive standard to meet, and it would certainly attract some approbation from First Nations, albeit not universal. It would put in stark contrast the question of who would enforce the rules, because under those circumstances you would not be in a position to ask the provinces for their cooperation because they would be asked to enforce rules that were not their own, et cetera, and you would certainly lose the efficiency benefits.
Juli Abouchar, Legal Advisor, Expert Panel on Safe Drinking Water for First Nations: We looked at using provincial laws within each jurisdiction and concluded that it was untenable. It is too difficult, from a legal perspective, to have each province apply its laws of general application. That was an option that we felt was untenable from the start.
As Mr. Swain has pointed out, we moved quickly to the exact proposal that you have put on the table, senator, of having a federal act regulate drinking water on reserves. One of the benefits of that approach is the ability to perhaps establish a nationwide First Nations water commission. There would be many benefits from that, but one of the primary benefits and one of the driving forces for looking at it is that it would hold all parties accountable. Mr. Swain mentioned the need to hold the funders and the providers of water within the First Nations accountable for each role they are playing. The water commission, as an independent, arm's-length body, would be able to do that and would also help to develop capacity and increase and improve training that is already happening within First Nations, because it would be a commission that was largely made up of First Nations representatives.
This idea could apply even if the government were to pass an act that incorporated by reference the provincial laws. Even if that route were taken, the water commission could play a role to help with enforcement. It could be the independent enforcement body to deal with the issue of the acceptance of provincial enforcement on reserves.
Mr. Hrudey: Your question also touches on a common misunderstanding. The water quality guidelines in Canada are common across the country. They are set by a federal-provincial-territorial committee to put numbers on what drinking water quality should be. However, in terms of drinking water safety, those numbers are useful as a reference, but they are not what ensure drinking water safety. Drinking water safety is ensured by practices in terms of training and operator certification and practices in terms of requirements for treatment, construction and operating approvals — all the other factors that differ from province to province. While we do have some level of consistency across Canada in the simple numbers for what the quality should be coming out of your tap, how that quality is ensured, which is what really assures safety, differs quite a bit across the country.
Senator Milne: Coming from Ontario, I have some knowledge of what has happened to our rural communities in the wake of Walkerton. I know of the great problems the provincial regime has given to those rural communities, and presumably to the First Nations in Ontario as well.
I know what it has done to any kind of an agricultural enterprise in Ontario, which has put almost impossible loads on them if they are dealing with the public in any way. If they are drilling their own wells and bringing up their own water, they still have to comply with expensive propositions.
Mr. Swain, you said in your presentation that standards similar to non-native communities of comparable size and remoteness seem to be in sight, though measurement is lacking. What do you mean by ``measurement is lacking''? What kind of measurement is lacking?
Mr. Swain: To my knowledge, no one has done a comparison — let us say pair by pair — of comparable communities to see what the situation is in Aboriginal and non-Aboriginal communities. One would think, if this were the standard to which the federal government is holding itself, they would periodically do this; however, it has not been done.
Senator Milne: Mr. Hrudey, in your presentation you mentioned a multiple-barrier approach. Would you please tell us what that is?
Mr. Hrudey: Water is such an important and pervasive aspect of our lives. In the Third World, water is unsafe and it is primarily children who die. In the multiple-barrier approach, we are saying that it is not good enough to put your eggs in one basket. You do not rely on one single step to assure drinking water safety. There must be multiple steps, each of which may be capable of taking unsafe water and making it acceptable.
The idea of multiple barriers is to put multiple levels of protection in place, such that if there is an upset in one of those barriers we still do not have illness.
For example, Walkerton had effectively only one barrier, and it was inadequate. It failed and people died.
Senator Milne: You are talking about filtration, treatment and then radiation?
Mr. Hrudey: There are multiple steps in multiple barriers. Source water protection is the first, making sure you do not abide pollution of our natural waterways.
Senator Milne: You do not dig your well down the hill from a barnyard.
Mr. Hrudey: The barnyard must manage its drainage; that is source water protection. The first step is keeping drainage from getting into the water. If you are using a well, you must treat the water, if it is a shallow well. You must ensure that it is monitored, to know that you are meeting the treatment requirements. The system must be operated by someone who understands the threats to the system and can recognize trouble. You must distribute the water safely. There have been fatal outbreaks in the United States where high-quality water from a well was contaminated through the pipe network before it got to people's households.
The multiple-barrier system involves safety at each step, and they must be functioning to provide a high level of assurance that people will not become sick.
Senator Milne: On your chart, you obviously prefer the new statute-single regime, but in your judgment that is lower in acceptability to First Nations. I am not sure what you mean by customary law, but is there some way that customary law can be put in first — that the two columns can be combined, customary law, statute and then single regime?
Mr. Swain: The minister asked us for options rather than recommendations, so we were trying not to show preferences here but simply be descriptive of what we thought was going on.
Customary Indian law is a large subject that is poorly understood by white lawyers — I think by the rest of us. It has elements of respect for nature, of being part of nature, a necessity for stewardship, for care. These elements seem to be pretty much universal across the many Indian cultures of Canada — and that is wonderful. Part of the problem is getting from those rather general statements to, say, a chlorine-residual requirement, and how you draw a nice, clear deductive line that laws seem to require is a bit tricky.
Nevertheless, we did suggest that one possibility in this area would be for the federal government, recognizing that federal legislation would be required, to put the matter to the First Nations and say, ``Could you please debate and describe for us what you think the customary law basis for modern legislation should be?''
This course of action has not yet been tried in this country, although some distinguished legal scholars like Brian Slattery have called for that kind of approach. It would be time-consuming and may take a few years to do. On the other hand, we are making the point that the first priority here is resources, not regulation. It is entirely possible that law developed in such a fashion would have a quality of endurance and acceptability that the more normal approaches do not.
Senator Watt: From what I understand, the Expert Panel on Safe Drinking Water for First Nations was established in June 2006 by the Department of Indian Affairs. Are you in any way, shape or form directly involved in designing that legislative base that was highlighted by the Department of Indian Affairs last week? We had the Auditor General's people and Indian Affairs people here highlighting what was lacking and what the Minister of Indian Affairs is prepared to do in that field.
Do you have any direct dialogue with the people designing this proposed legislation? If not, why not?
Mr. Swain: No, senator, we do not. We were established as an arm's length panel and not as part of the departmental process. It is fair to say that our views about what ought to be in such legislation are public. If asked, I am sure we would have views, but the department and the minister are proceeding on their own.
Senator Watt: My understanding is there is urgency in terms of accessing clean drinking water. Only a limited number of people have been provided with safe drinking water to this point.
This committee — and I for one — would not like to see the creation of conflict between regulatory needs and what should be constructed on the site. There is sensitivity on both sides, which I can understand.
I can also alert you to the fact that regulatory aspects definitely have to be taken into account when you are designing a piece of legislation. You talked about customary law, and I have a slight understanding of what customary law means. It is allowing the spirits of the people, an understanding of what they are dealing with, to be incorporated into modern-day law. I believe they fully understand that. It is a challenge, I can assure you.
Nevertheless, it is a matter that has to be pursued either now or later. However, if you deal with it later, then you probably will be going through a funnel, not being sure whether you will achieve the point you are trying to achieve. In order to prevent that from happening — and I think I read you clearly — you would like to have in that input now in order to save time. I fully agree with you on that aspect.
What do you want this committee to do? Should we make recommendations to the Minister of Indian Affairs alerting him that you have highlighted critical issues and important matters that should not be put aside but rather should be dealt with now?
Mr. Swain: I would not be so presumptuous as to try to instruct this committee as to what it should do.
Senator Watt: We would like to hear from you about where we should go from here.
Mr. Swain: You will have proposed legislation lodged in the other place before very long, and committees there and here will have a chance to examine it in detail. That will be helpful. There are a number of witnesses that you will want to hear from. You will doubtless want to hear what the AFN has to say about this, as well as other Aboriginal organizations. You will doubtless want to hear from some of the very First Nations we talked to last summer, the people who are struggling on the ground to cope with often inadequate resources and difficulties and so forth.
We have tried to signal in this report some of the things that should be in a good regulatory scheme. One chapter is all about that. An annex lists all the things that should be there, one way or another. It may be helpful to the committee, when the proposed legislation is visible, to do a crosswalk and compare what the legislation says with what this panel, for what it is worth, thought ought to be in the law. That would be helpful. If it would be useful to the committee, I am sure that any of us would like to return.
Senator Watt: I for one have not only heard but have even participated in the willingness of the First Nations to allow the provincial regime to come into their territories or activities. This is another issue that we must overcome in due time. This might be a perfect opportunity to try to combine the customary law you speak of and the provincial authorities, bringing in the provincial government regime to an extent, because someone will have to pay for it in the end.
Mr. Swain: There are many opportunities here for cooperation and collaboration among governments, including First Nations governments. The area is wide open with these kinds of opportunities, sir.
Senator Watt: Thank you very much.
Mr. Hrudey: The thing that most assures safe drinking water, and we have heard this from a number of people who presented to our panel last summer, is the commitment and capacity of the people who are running the systems. Any regulatory system that will work for the future has to be something that, for the beginning, fosters the creation and maintenance of that capacity and, for the long run, keeps that. That means that the people on the ground tackling these challenges need to have an input into how the system will run and be able to influence that in the future. The purpose of having a regulatory system is to ensure that the best operators in the system become universal. You do not want to introduce a system that burdens the best with more bureaucracy and does not do anything to bring the others up to speed.
Mr. Swain: You raised the question earlier, senator, about whether there is any progress. One thing we did observe was not just the increasing number of highly competent, trained, certified operators on reserves but the fact that these people were accorded a degree of community respect as, let us say, important public health workers, which frankly does not always characterize non-Aboriginal Canada and is very constructive.
[Translation]
Senator Gill: I would like to raise two or three points. Mr. Hrudey mentioned earlier — it is in the report anyway — that the situation in Aboriginal communities was not comparable to the Third World. You provided statistics on the Third World: causes of death and mortality rates, specifically because of water.
But to my knowledge, we do not have a lot of information on Aboriginal communities. We know that the mortality rate is much higher than elsewhere, but we really do not know why. I have never seen a report detailing the causes of this rate of mortality in Aboriginal communities. I do not know where you get the data on which you base your statements that it is or is not comparable, but I think that we have to look at both sides. Maybe you know both sides: if so, I would like you to enlighten us.
Mr. Swain also mentioned that in most Aboriginal communities the risks are not high at all. But in some communities, risks are very high, even to the point of having no drinking water at all.
You understand that a commission can be very effective in making appropriate and relevant recommendations, but it can also hold things up if the timeline is very long and if the budget is limited, because those recommendations have to be put into place.
There are two categories of recommendations: First of all, there are emergency situations, because some communities have no access to drinking water. I do not think that there are very many of these emergency situations, but would it not be helpful for those communities to come to temporary arrangements with appropriate people, that is to say neighbouring cities, the community and the province, in order to get the problem solved?
You know that sometimes it takes time to fix a problem and if you wait for everything to be perfect, it will never happen.
Ultimately, we need long-term recommendations, and, as much as possible, the responsibility should lie with Aboriginal people. If ever an independent commission were formed, it could be made up of Aboriginal specialists — there are Aboriginal engineers — and they could establish the criteria.
[English]
Mr. Hrudey: To deal with the matter of comparison with the Third World, I wish to reiterate that we do not regard the systems that have been classified as high risk as acceptable — they are not. However, how do we know that we do not have children dying from unsafe drinking water in Canada? We cannot have absolute assurance on that, but we know that we do not have millions dying. We know that the health of First Nations is poorer than that of non- Aboriginal populations. However, in terms of the causes of illness in those communities — the things that cause death and disease via drinking water are somewhat characteristic and we do not have huge excesses of that in Aboriginal communities.
We have problems with tuberculosis, diabetes and general sanitation. There are a number of health-related issues on reserves. However, in regard to a comparison with the Third World, we do not think it is helpful to characterize the entire problem with that terminology when the evidence does not support the premise that we have children dying in the thousands or more from unsafe drinking water.
In order to meet the federal government policy of providing Aboriginal communities with the same level of service as other communities in Canada, we have said that you have to implement this multiple-barrier system, which reduces the risk to such a small degree that no one has to worry about the safety of their water.
That said, we did identify some communities during our hearings that were clearly at higher risk, and these were ones that did not appear as high risk on the risk assessment of the Department of Indian and Northern Affairs. They were at higher risk because they did not have any systems at all. People were going down to a lake with a pail and getting drinking water from the lake. That lake could be subject to contamination from wastes from the community. Is that Third World? It is certainly not acceptable, but compared with the Third World I have seen in Calcutta, where there is raw sewage in the streets and no attempt at treatment, I do not think we are there, fortunately.
Mr. Swain: You also suggest that, while most communities are okay, some have an unacceptably high level of risk, and that is a conclusion we agreed with. It is also a question of budgets, getting on to fix these things. The current water strategy budget and the capital budget of Indian Affairs are due for renewal for this year. Commitments have not been formally made, as I understand it, for the following five-year plan.
Our view was rather that the underlying base budgets, plus the additions that have been made in the period since 1996, have taken us a long way toward finishing the problem, getting all systems up to an acceptable level. At a guess, if the federal government continued its present level of effort for another five years, we should be operating at a level where the number of boil-water advisories is very small and nothing serious to worry about.
This is not, in other words, one of those problems in Aboriginal Canada that will persist for ever and ever and ever. This is one that can be solved and it can be solved with the application of a good chunk of money for a limited period of time. If the remaining capital works are brought up to good standards, those few left-out communities that were referred to are dealt with, and the effort at training and certifying operators continues, we can resolve this problem.
[Translation]
Senator Gill: As far as the budgets are concerned, I am not an engineer, but it seems to me that some projects, some water filtration plants or wastewater pumping stations, are way bigger than in the communities next door. I am talking about Indian reserves. I am speaking from experience, because I have run a community, a reserve. Is the building too big and the machinery too small? I don't know, I am no engineer, but are the projects appropriate to the real needs of Indian communities in comparison to the needs of non-Aboriginal communities? It comes down to the management provided by the regions or the engineers, of course, but it appears to me that sometimes the building is too big for the needs. It seems clear to me that if we built more reasonable units, more tailored to the need, we could build more of them.
[English]
Mr. Hrudey: It is fair to say, as has been said by Mr. Swain, that we have to give credit to successive governments for having invested a lot of money since 1996 to deal with this problem. However, having said that, we noticed and heard a lot in the way of submissions over the last summer that the orientation of the funding is dominated by investment in capital, the building of plants, and a lot of problems are with the operations. The policy that the Department of Indian and Northern Affairs has tried to implement by providing 80 per cent of the operating costs to a calculated formula and having the community come up with the other 20 per cent was problematic, from a number of points of view, in that it was a formula calculation that might not relate to the actual costs of operating those facilities. Even where it was accurate, finding that 20 per cent was problematic. Communities had to make tough decisions about how to come up with that 20 per cent — the school budget, vaccination budget or from whatever budget.
I am an engineer; we are really good at designing and building things. It is tougher to focus on programs to manage and operate and run them, and that is what is needed. Clearly, if you do not have the treatment plant at all, then you cannot get the job done; however, there needs to be more focus on tackling this problem of the operation and maintenance. In some cases, good facilities have been built but have not been maintained very well because of the costs. There is a problem there, and we have talked about that in the report, and it clearly needs to be dealt with as part of the overall solution.
Mr. Swain: A point worth making here is that the communities we are talking about are the hardest to deal with anywhere. This is not a comment about Aboriginality, but about size. Very small towns in Ontario are having difficult problems meeting the standards. Small communities of all kinds have difficulties, for two principal reasons: One is the large economies of scale in water and wastewater treatment, so the cost per person drops radically as the scale in the system goes up; second, there is also evidence that microbiological exceedance, that is, serious problems of bacteria in the water, is inversely related to system size, simply because of the difficulty of getting trained people and state-of-the- art equipment operating at its best in small place. This is universal. The U.S. Environmental Protection Agency has a whole industry working with small water systems. The Canadian water network is working on this problem.
On the good side, a number of new treatment technologies have become available in the last 15-20 years and are beginning to find wider acceptance in practice. They are not so sensitive to scale and, in some cases, are not so sensitive to precise operation. For example, you want to be very careful about the amount of chlorine that you add to the water, but if you put too much ultraviolet radiation, it will not matter. As one engineer said, ``You cannot give a bug too much sunburn.'' There are ineluctable problems with the size of communities and with the cost.
This comes back to the point that Senator Gill raised about the possibilities of working with your neighbours on maybe temporary or maybe permanent fixes of a kind. If Aboriginal communities can work with their non-Aboriginal neighbours and, in the process, get larger scale into their operations, then strong benefits will result both in public health and in economics for both communities. Sometimes geography means that you cannot do this, in particular in our world. However, many opportunities exist that have not been taken up. That goes to my point about this being a field that is ripe with opportunities for intergovernmental collaboration.
Ms. Abouchar: I want to respond to Senator Gill's comments about the regulatory process and the water commission. I agree that the regulatory process can be long, but one of the options we looked at was to establish a framework act that does not need all the details worked out in the beginning. It would establish a few key elements, such as possibly the water commission carrying on more work. Then, as the pieces are developed, they can become regulations. Such a process does not need to be long and does not need to be perfect from the start. There is an expression, ``Do not let the perfect be an enemy to the good.'' You can start with something that moves you down the road while dealing with all the urgent problems on the ground and then have that develop as you move forward.
During that process, one of the roles for the water commission could be to help to identify customary law and how it could be incorporated into the framework and regulations. When we talk about the option of having a piece of federal legislation, it does not have to be as big the Canadian Environmental Protection Act, for example, which has developed over years and years. It does not have to be that complex from the start. There are efficient ways to move toward that environment without the process taking too long.
The Chairman: That remarkable statement, ``Do not let the perfect be an enemy to the good,'' should be studied closely by those in Ottawa.
Senator Dyck: In your presentation, you said that urgent matters of operator training and capital investment are well advanced but need to be completed. I would ask you to expand on that a bit, in particular the training aspect. Certainly, in smaller and more remote communities, it can be difficult to train or retain operator staff. That goes back to a point made earlier in terms of partnership. Is it possible with the physical structure in place to have one person trained who could travel to the different facilities within a geographic region to look after two or three communities? Would that be a viable option? Is any program being considered to train Aboriginal people specifically, although maybe not right to the end? Is there a transition program whereby the urgent needs could be met followed by on-the- job training to complete the program?
Mr. Swain: Those are excellent questions. Training schemes are offered by all the provinces in different forms. I believe that DIAND will pay the majority of the cost to send reserve operators to attend these courses. Of course, difficulties arise when a small community has only one operator, because that operator cannot take a holiday, take leave to have a baby or go off on course with no one to replace him or her for that time. What would a community do? That is one of the ineluctable problems of smallness.
You mentioned the problem of retaining people once they are trained. This skill is in short supply all across the country and a well-trained operator with a level-two certificate can be hired quickly and easily in any number of communities across the country. Some of the approaches to deal with that, as you suggest, are to have multiple plants run by a single operator with telemetered information from a Supervisory Control and Data Acquisition System, SCADA. Indeed, some companies will operate your system for you and might be substantially native in employment. One such company is headquartered in Red Lake, Ontario, for example, and looks after many mines and reserves in that area of northwestern Ontario.
As well, there are First Nations technical services organizations known as the Water Treatment Circuit Rider Training Program. For example, the Ontario First Nations Technical Services Organization out of Toronto sends highly skilled and highly trained people to reserves to do on-the-job training of individuals in communities and to help them to prepare for the examinations for certification. They also troubleshoot the systems as they travel throughout the region. This is a very useful adaptation to the problem of labour scarcity.
Senator Dyck: Is there an on-the-ground educational initiative, perhaps to revive customary law? Is there any indication that the community has strayed from that? You gave the example of being able to take a pail down to the lake or the river to get your drinking water. If customary law were being followed, it seems to me there would be prohibitions against contaminating that water, so that it would be safe to drink.
Is there any initiative to develop a program such that people in the individual communities could then relate to those laws but with modern initiatives in place? Perhaps people would then have a better sense of ownership and of being more actively involved. They could have a working system that incorporates both the new and the old ways of protecting water?
Mr. Swain: Absolutely, this could be done, and I believe that it is in place in some areas. However, some difficulties arise when the sources of pollution are not visible. For example, if one has a septic tank over here and a lake over there and cannot see the bugs and the movement of groundwater, the person might think the lake water is safe. That is why we think that regulation when it comes for Indian reserves should not stop at the level of water supply systems that serve five houses or ignore septic tanks. We should deal with this more comprehensively than the provinces generally deal with the issue.
To combine that with traditional teachings of respect for nature would be the strongest of all possible solutions, and I think it lies in the hands of the individual First Nations. It is not something that would come from this place.
Mr. Hrudey: We also heard from some of the more passionate presenters last summer — water operators and so on — that they need to be engaged in an education process as well in order to educate their chiefs and councils about the importance of water. This is partly caused by the problem of the operating funds, with the community having to come up with 20 per cent. The 20 per cent is not universally provided, and some communities are having more difficulty than others making the case that water is important.
We heard that there is an intent to develop some education processes for chiefs and council about what is involved in water treatment, but, as with many of the other things we talked about, this is a microcosm of the water industry in Canada in general. The status of water treatment operators is very low in municipal governments. In small communities, the water operator is also the dog catcher, the garbage disposal person and the general fix-it person. That person does not have a great deal of influence at city council. We heard last summer that we need to look at water operators as public health professionals. If they do not do their jobs well, they have the capacity to poison the entire community. We need to raise their status and the value they have in their communities.
Senator Milne: My brother-in-law and nephews farm along the headwaters of the Saugeen, along which Walkerton is situated. Mr. Swain, you spoke of a checklist in the appendices to this report that this committee could use as a standard against any legislation that comes forward. I do not see it. I see biographies; I see your terms of reference; and I see comparison among the provinces.
Mr. Swain: That is in Volume 2 of the report — which I do not believe you have.
The Chairman: I apologize, senators. We will make Volume 2 available to committee members.
The Chairman: I grew up in a Metis community where a child died of typhoid as a result of drinking river water. The source water had been contaminated by the European community upriver that was putting sewage into the river.
Are many of our Aboriginal communities being impacted negatively by their water source being contaminated by non-Aboriginal activity such as industry or by the general population dumping their sewage into the water? This is still happening in Victoria. It is unbelievable that we are still dumping raw sewage into open water.
There have been many campaigns against this. Everyone gets up on the hustings saying they will change this, but the more things change, the more they stay the same.
Many Aboriginal peoples live considerably downriver from problems. What did your study reveal as the contributing factor to this situation?
Mr. Swain: That is a good question. I am not sure there has been a systemic study of this. There are many stories of places that have difficulties with this. Akwesasne, for example, gets everything that comes out of the Great Lakes in its source water and, until recently, there were problems with the upstream industrial plants. Of course, Ontario had the awful tragedy in years past of methemoglobinemia at Grassy Narrows. We have had some awful examples in this country of the pollution of reserve water sources.
These days, the practice of Indian Affairs, working with the First Nations, is to assess the source water for its general safety and its mineral and other qualities before a system is designed. If the source water is awful, they will try to find another resource. From time to time that cannot be done. One thinks, for example, of Yellow Quill in Saskatchewan, which draws its water from 800 feet below the surface in a very dry region when there is ot enough surface water, and that groundwater has more minerals in it than the Fraser River. It is pretty bad water. As step two, Indian Affairs and Yellow Quill designed a very high-tech treatment plant — in fact, it is almost a reverse osmosis plant — which makes that bad-quality source water salubrious.
Plants that have been built in recent years have taken account of problems with source water and dealt with it as best they can in the treatment process. The treatment process will be designed to meet the standards in the federal drinking water quality guidelines. In this country, we should no longer have situations like that of the boy who died of typhoid. I cannot say that they do not exist, but they must be fairly rare now.
Mr. Hrudey: Certainly, with respect to typhoid, that is true, and probably the same for cholera, which diseases cause many of the deaths reported by the World Health Organization in the Third World. That said, with so many people now living in this country, and so many people engaged in industry and raising livestock, et cetera, there is no guarantee that surface water anywhere in this country is safe to drink directly out of a river or lake. Most diseases carried in drinking water are caused by human and animal waste. That is why we must have treatment systems in place to ensure safety.
We heard commentary that in the good old days we could drink water from natural sources. Earlier, I gave you an analogy about safety. You can probably drive through a red light 10 times without having an accident, but it is not a smart thing to do. The same is true of drinking untreated surface water.
Senator Watt: I will be raising questions about the North. We have a similar problem to that of the First Nations communities, with many differences. Our drinking water comes from the lakes and is piped into holding tanks, with no purification equipment. From there, it goes into the trucks and is delivered to households. Periodically, those holding tanks have to be cleaned out. You made reference to chlorine. We do use chlorine to purify the water. At times, we wonder whether that is safe water to drink.
As far as I am concerned, many people in my community and the North have died from drinking water. I cannot give you the numbers of people who have died. I studied this subject before, funded by the Senate. This goes back quite a few years now, because I have been here for 23 years. I had medical people do an analysis, and many of them did not want to put their names on that paper. When I brought up the subject matter of the health issue, that had been analyzed, I was told that they will think I am crazy, sick. I got to the point where I wondered whether I should bring it to the public or keep it to myself. I still have that information, but I have not done anything with it.
Climate change has a great effect also, beyond what we already have. There was a lot of military equipment in the Arctic, because of the two lines from the Second World War, buried underground. I know exactly where they are. Unfortunately, in my younger years, I participated, on behalf of the military, in putting them underground.
Today, permafrost is melting quickly. Toxic substances are seeping into the underground drinking water people access.
That might have to be dealt with separately; I know we are running out of time. At some point, we might want to call the witnesses back to fill us in on that particular problem. As always, we have ideas for solutions, and the technologies exist.
The military in foreign countries, when they have problems with access to drinking water, seem to have a way of purifying the water, no matter how dirty. The technology exists. We must talk about the actual equipment that could be put in place to allow people access to drinking water. Drinking water straight out of a lake or other sources will never happen.
Chlorine is not the answer. It is applied across Canada, and everyone has the same technology. It is time to start thinking of new technology to purify the water, even if it is oxidization.
Mr. Swain: There are a number of interesting technologies that may be helpful in this respect. I recognize the problem.
Senator Gill: Most reserves are served by a central water and sewage system. However, other reserves have water and sewage right beside one another. Unless there is a miracle, we will not have more money. Those people must also be advised what to do.
Senator Hubley: There is an interesting statement in your conclusion. It reads:
The ultimate solution will come when First Nations across Canada develop the capacity to control their own economic destiny.
During your hearings, did you see examples of this, where communities achieving some economic independence were then able to focus on larger problems within that community?
Mr. Swain: Yes. There are many examples, some of whom we met in these hearings and some I know otherwise. There is no question that serious economic development can allow a community to raise its sights and do remarkable things. The greatest difficulties arise with small, remote communities for which there is no economic activity in the neighbourhood, perhaps only a traditional lifestyle is available. That does not yield the kind of incomes that we think of as normal in Canada.
The Chairman: Honourable senators, we have our last meeting on drinking water tomorrow evening with the AFN. After that meeting, we want you to turn your minds to the report.
Mr. Swain, Mr. Hrudey and Ms. Abouchar, we thank you. It is not fair to the subject; we should have had more time. Time, as you know, Mr. Swain, is our greatest enemy in this place. Your presentation was excellent and your answers professional. It will help us greatly.
The reason this study was initiated was simply that we wanted to ensure that nothing was languishing on the sidelines and everything was proceeding. I am more encouraged than ever. I will not speak on behalf of my colleagues, but I am sure they are encouraged as well with the professionalism you have brought to this particular subject. Thank you again, and we look forward to seeing you in the near future.
The committee continued in camera.