Current Reality


July 30, 2021 – Tataskweyak Cree Nation, Curve Lake First Nation and Neskantaga First Nation (1995), together with the Honourable Marc Miller, Minister of Indigenous Services, announced that an historic Agreement in Principle has been reached…to resolve national class action litigation related to safe drinking water in First Nations communities. The agreement includes the following:

$1.5 billion in compensation for individuals deprived of clean drinking water;
the creation of a $400 million First Nation Economic and Cultural Restoration Fund;
a renewed commitment to Canada’s Action Plan for the lifting of all long-term drinking water advisories;
the creation of a First Nations Advisory Committee on Safe Drinking Water;
support for First Nations to develop their own safe drinking water by-laws and initiatives;
a commitment of at least $6 billion to support reliable access to safe drinking water on reserve;
planned modernization of Canada’s First Nations drinking water legislation.

The class included all members of First Nations whose communities were subject to a drinking water advisory for a year or longer from Nov. 8, 1996, to now. (Toronto Star, July 31, 2021)
https://nationtalk.ca/story/the-government-of-canada-reaches-an-agreement-in-principle-to-resolve-class-action-litigation-related-to-safe-drinking-water-in-first-nations-communi

Report 3 “Access to Safe Drinking Water in First Nations Communities— Indigenous Services Canada”. Auditor General of Canada released on Feb. 21, 2021 stated the following conclusion.

We concluded that Indigenous Services Canada did not provide adequate support to First Nations communities so that they have access to safe drinking water. Until:

  •  deficiencies with water systems are addressed
  •  sufficient operations and maintenance funding is identified and provided, and
  • a regulatory regime is established,

First Nations communities will not have reliable access to safe drinking water. Identifying and implementing sustainable solutions will require continued partnership with First Nations to resolve outstanding issues and other factors that prevent reliable access to safe drinking water.

As of 1 November 2020, almost half of the long-term drinking water advisories had been in place for more than a decade

Dec. 3, 2020: Toronto Star: The federal government has admitted that after 5 years and $1.65B in spending, they will not be successful in eliminating drinking water advisories by March 2021. 59 “long-term drinking water advisories” remain in place, down from 61 in March 2020 and 105 in November 2015. Aside from the primary issue of massive underfunding in some communities, Indigenous Services Minister Mark Miller also mentioned the pandemic, climate change, and difficulties retaining qualified operations and maintenance workers in remote communities.

Dec. 3, 2020: Indigenous Services Canada – The Honourable Marc Miller, Minister of Indigenous Services, announced more than $1.5 billion in additional investments to accelerate work to lift all long-term drinking water advisories on reserves, and $114.1 million per year ongoing thereafter to support daily operations and maintenance for water infrastructure on reserves.

Oct. 15, 2019 – Ermineskin Cree Nation, Sucker Creek First Nation and two other Alberta First Nations have joined forces with Okanogan First Nation to coordinate legal actions to confirm First Nations’ – and other Canadians – human right to safe drinking water. Ermineskin Cree Nation will also be presenting to the Assembly of First Nations Water Symposium in late November, following the federal election, to encourage other First Nations across Canada to push for recognition of the First Nations’ human right to safe drinking water, including new legal actions across the country.

A drinking water advisory becomes long-term when it has been in place for over a year. There were 105 long-term drinking water advisories on public drinking water systems on reserve in November 2015. As of Feb. 15, 2020, 61 long-term advisories remain in place.

What are Drinking Water Advisories?

Health Canada can recommend 3 types of Drinking Water Advisories (DWAs):

In some areas of Canada, a water advisory may be referred to as a water order. In this case, the local medical officer of health has the authority to put into effect or lift a:

  • boil water order
  • do not consume order
  • do not use order

This is done in consultation with Health Canada and the First Nations Chief and Council.

Boil Water Advisories (BWAs)

BWAs are used to advise home residents that they should bring their tap water to a rolling boil for at least one minute before:

  • drinking
  • using for other purposes, such as: 
  • cooking
  • feeding pets
  • brushing their teeth
  • making soups or ice cubes
  • washing fruits and vegetables
  • making infant formula or other drinks

During a BWA, tap water should not be used for bathing infants or toddlers (they may accidentally swallow the water so a sponge bath is recommended)

This is usually recommended when:

  • there are operational deficiencies, such as inadequate levels of chlorine in the water
  • disease-causing bacteria, viruses or parasites are found in the drinking water system, such as E. coli

Do Not Consume Advisories (DNCAs)

DNCAs are sometimes also called do not drink advisories (DNDAs). These advisories are used to inform the public that they shouldn’t consume their tap water for:

  • cooking
  • drinking
  • feeding pets
  • brushing their teeth
  • soups or ice cubes
  • bathing infants and toddlers (they may accidentally swallow the water so a sponge bath is recommended)
  • washing fruits and vegetables
  • making infant formula or other drinks

However, the water can continue to be used for showering and bathing adults, the elderly and older children

These advisories are issued when the water system contains a contaminant that can’t be removed from the water by boiling. This could be because of high levels of a natural chemical compound like lead.

Do Not Use Advisories (DNUAs)

DNUAs are used to advise the public that they shouldn’t use their tap water for any reason. These advisories are issued when:

  • consumption of the water poses a health risk
  • the water system contains contamination that can’t be removed from the water through boiling
  • exposure to the water through bathing could cause skin, eye or nose irritation, possibly due to a chemical spill
Auditor-General of Canada Report 3 – Access to Safe Drinking Water in First Nations Communities. Feb. 21, 2021

Drinking water advisories in First Nations communities

3.40 Indigenous Services Canada should work with First Nations communities to strengthen efforts to eliminate all long-term drinking water advisories and prevent new ones from occurring. (3.35–3.39)

The department’s response. Agreed.
In the Fall Economic Statement 2020, the Government of Canada committed an additional $309 million to continue the work to address all remaining long-term drinking water advisories as soon as possible. Indigenous Services Canada will continue to actively work with First Nations to address drinking water issues, including by assessing the impact of the coronavirus disease (COVID‑19) pandemic on timelines and supporting the advancement of projects in a way that respects public health measures. This work is a continuation of the ongoing strategy to address each and every long-term drinking water advisory on public systems on reserves.
The department will continue to support First Nations to prevent advisories from becoming long term by providing sustainable investments to address short-term advisories, expand delivery systems, build the capacity of and retain local water operators, and support regular monitoring and testing.
The department will continue to advocate for a continuation of program funding with central agencies to ensure continued support for water and wastewater services in First Nations with the objective of obtaining long-term stable funding

3.54 Indigenous Services Canada should work with First Nations communities to implement long-term solutions to ensure that water systems in First Nations communities provide ongoing access to safe drinking water. (3.52–3.53)

The department’s response. Agreed.
Working with First Nations, Indigenous Services Canada will continue to support long-term measures to ensure that First Nations have ongoing access to safe drinking water.
The department will continue to work with central agencies to ensure that long-term stable funding is available to commit toward these projects and to address the long-term needs of communities.
The department will continue to support operator training and retention and will work with partners to expand capacity building and operator support for First Nations. The department will continue to provide hands‑on support to operators through the Circuit Rider Training Program

3.61 Indigenous Services Canada should work with First Nations to proactively identify and address underlying deficiencies in water systems to prevent recurring advisories.
(3.55–3.60)

The department’s response. Agreed.
Indigenous Services Canada will continue to work with First Nations to conduct performance inspections of water systems annually and asset condition assessments every 3 years to identify deficiencies. The department
will proactively work with communities to address those deficiencies and prevent recurring advisories.
Through the funding announced as part of the Fall Economic Statement 2020, the department will further increase support for the operation and maintenance of water systems, enabling First Nations to better sustain their infrastructure. The department
will continue to support operator training and retention and will work with partners to expand capacity building and operator support for First Nations. The department will continue to provide hands‑on support to operators through the Circuit Rider Training
Program.
The department will continue to support the First Nations–led engagement process for the development of a long-term strategy to ensure that drinking water systems are sustainable. Furthermore, the department will continue to support the development of a
more holistic asset management approach that allows for better forecasting and the ability to account for future infrastructure investment requirements while engaging on operations and maintenance policy reform.

Operations and maintenance funding

3.77 Indigenous Services Canada, in consultation with First Nations, should make it a priority to

  • identify the amount of funding needed by First Nations to operate and maintain drinking water infrastructure
  • amend the existing policy and funding formula to provide First Nations with sufficient funding to operate and maintain drinking water infrastructure (3.71–3.76)

The department’s response. Agreed. Indigenous Services Canada will continue to work with First Nations partners to ensure that sufficient water and wastewater operations and maintenance funding is provided and to amend associated policies.

Regulatory regime for safe drinking water

3.90 Indigenous Services Canada, in consultation with First Nations, should develop and implement a regulatory regime for safe drinking water in First Nations communities. (3.86–3.89)

The department’s response. Agreed.

Indigenous Services Canada will continue to support the Assembly of First Nations in its lead role in the engagement process. The department will continue to work collaboratively and in full partnership with the Assembly of First Nations, other First Nations and First Nations organizations, and other federal departments to develop a legislative framework that can be presented to Cabinet. Once new legislation is passed, regulations can be developed.

Current Problems and Issues with Drinking Water

The cost of buying and transporting water puts a significant strain on the community’s limited financial resources

June 29, 2021 – Marten Falls First Nation has agreed to join the class-action litigation on drinking water advisories in First Nation communities, which will be led by Olthuis, Kleer, Townshend (OKT) LLP and McCarthy Tétrault LLP. Marten Falls has decided to participate in this class-action lawsuit because it has been under a boil water advisory for over 20 years. The lack of potable water in the community has resulted in illness, an unnecessary loss of opportunities amongst community members, and a burdensome distribution process. Bottled water is flown into the community and distributed to community members at the airport. Marten Falls is responsible for paying the upfront costs of these water resources and their transportation, which can cost up to $40,000 per month. Although the federal government reimburses Marten Falls for these expenses, the cost of buying and transporting water puts a significant strain on the community’s limited financial resources. The reimbursement process is also slow and partial since the community shares water with non-band members in the community like teachers, contractors, and guest workers who are not covered. To put this into perspective, from 2014-2015, Marten Falls had to wait an entire fiscal year to be reimbursed for its bottled water.

The objective of this class-action is two-fold.

First, it sets out to obtain compensation for First Nations affected by drinking water advisories

Second, it endeavours to obtain a declaration from Canada that it will work with First Nations to provide access to clean water, which includes requiring Canada to construct and fund water systems for communities.

The Chief and Council of Marten Falls believe that by participating in this legal challenge, the community’s water crisis can finally come to an end for the long-term. Marten Falls has suffered enough, and the community’s infrastructure issues need support and long-term operations and maintenance commitments.

Marten Falls faces other long-standing issues that relate directly to the neglect of infrastructure in First Nations communities, as the boil water advisory example illustrates. One of the greatest challenges that Marten Falls faces to date is a lack of critical community infrastructure. The community has faced many challenges associated with its water treatment facility and lack of transportation infrastructure, housing, communal buildings, and community-based apparatus. Although issues with the water treatment facility are being resolved and transportation infrastructure is slowly being addressed through community participation in the Ring of Fire infrastructure projects, Marten Falls continues to chronically lack housing and firefighting infrastructure.

These are systemic issues, and they require the attention of Canadian governments and Indigenous organizations. The governments of Canada and Ontario must come to the table on these issues with our governments.

July 30, 2021 – Tataskweyak Cree Nation, Curve Lake First Nation and Neskantaga First Nation, together with the Honourable Marc Miller, Minister of Indigenous Services, announced that an historic Agreement in Principle has been reached through a successful negotiation process to resolve national class action litigation related to safe drinking water in First Nations communities.

This Agreement in Principle addresses important concerns identified by First Nations represented in the class action lawsuits. The agreement includes the following:

  • $1.5 billion in compensation for individuals deprived of clean drinking water;
  • the creation of a $400 million First Nation Economic and Cultural Restoration Fund;
  • a renewed commitment to Canada’s Action Plan for the lifting of all long-term drinking water advisories;
  • the creation of a First Nations Advisory Committee on Safe Drinking Water;
  • support for First Nations to develop their own safe drinking water by-laws and initiatives;
  • a commitment of at least $6 billion to support reliable access to safe drinking water on reserve;
  • planned modernization of Canada’s First Nations drinking water legislation.
Drinking water and sanitation infrastructure as well as water and sanitation services in Inuit communities tend to be of substandard quality

Aug. 30, 2021: Inuit Tapariit Kanatami – A Joint Submission by Inuit Circumpolar Council and Inuit Tapiriit Kanatami to the UN Special Rapporteur on the human rights to safe drinking water and sanitation documents barriers to clean drinking water and sanitation among Inuit in Alaska, Canada and Greenland. The Submission provides recommendations to the UN Special Rapporteur as well as to UN Member States to ensure that governments can overcome these challenges.

Drinking water and sanitation infrastructure as well as water and sanitation services in Inuit communities tend to be of substandard quality compared to service levels available to most other U.S., Canadian, and Danish citizens. Inuit are citizens of affluent countries yet the quality of drinking water, sanitation infrastructure, and services found in our communities often mirror those found in developing nations. More than half of the Inuit communities affiliated with ICC, which represents 180,000 Inuit in Alaska, Canada, Greenland and Chukotka (Russia), do not have access to piped drinking water and sewer systems. Many households, particularly in Alaska and Greenland, must haul their own drinking water from community taps and dispose of their own sewage by hand, contributing to water rationing as well as elevated rates of disease, particularly among children.

Like many Inuit communities in Alaska, most Inuit communities in Canada rely on trucked water delivery and sewage removal services. Crowding caused by the chronic housing shortage in Inuit Nunangat communities places stress on drinking water and sanitation services that are often impacted by other factors, including climate change, severe weather, and other infrastructure deficits, which compound these challenges.

Inuit communities tend to be under boil water advisories more often than non-Inuit communities and some have faced long-term boil water advisories lasting longer than a year. The frequency of boil water advisories experienced by Inuit is indicative of the aging and substandard quality of water and sanitation infrastructure and related services in our communities.

There are practical measures governments can take to improve access to drinking water and sanitation. For example, recently the government of Canada prioritized ending long-term BWAs on First Nations reserves through investments in First Nations water infrastructure. The Submission recommends that such investments in drinking water and sanitation infrastructure include Inuit communities.

All of these challenges remain largely overlooked by researchers and governments, contributing to limited data and information that could inform coherent and effective policy responses. Furthermore, Inuit face challenges in relation to accessing the funding required to improve drinking water and sanitation systems and services. The Submission calls on States to make major new Inuit-specific investments in Inuit community water and sanitation infrastructure and to take measures to streamline processes for community procurement of funding.

Auditor-General of Canada releases Report 3 “Access to Safe Drinking Water in First Nations Communities – Indigenous Services Canada

Feb. 26, 2021: Auditor General of Canada – A report from Auditor General Karen Hogan tabled today in the House of Commons concludes that the support provided by Indigenous Services Canada has not been adequate to address long-standing problems with safe drinking water for many of Canada’s First Nations communities. Drinking water advisories remain a part of daily life in many of these communities, with almost half of existing long-term advisories in place for more than a decade.

Between 2015 and 2020, 100 long-term drinking water advisories in place on public water systems in First Nations communities were lifted, while 60 remained in effect—28 of these were more than 10 years old. In December 2020, Indigenous Services Canada acknowledged that it would not meet its target of removing all long-term drinking water advisories on public water systems in First Nations communities by 31 March 2021.

The audit found that Indigenous Services Canada’s efforts have been constrained by an outdated policy and formula for funding the operation and maintenance of public water systems. In addition, the department has been working with First Nations to revise the legislative framework to provide First Nations communities with drinking water protections comparable to other communities in Canada.

“Indigenous Services Canada must work in partnership with First Nations to develop and implement a lasting solution for safe drinking water in First Nations communities, to eliminate all long-term drinking water advisories and prevent new ones from occurring”, said Ms. Hogan”.

https://www.oag-bvg.gc.ca/internet/English/parl_oag_202102_03_e_43749.html

State of emergency over drinking water in Neskantaga First Nation

Oct. 22, 2020: Nishnawbe Aski Nation (NAN) – Grand Chief Alvin Fiddler and Neskantaga First Nation Chief Chris Moonias have demanded a coordinated response to the State of Emergency declared by the remote community as immediate heath threats from the water system has forced the community to evacuate its members. Indigenous Services Canada has refused to acknowledge the severity of the situation and classify it as a public health crisis despite the following facts:

  • ongoing leaks depleting the water reservoir
  • the water distribution system fully shut off from 10 p.m. to 7 a.m. daily since October 8 to allow adequate time for the reservoir to replenish and prevent the pump from being overworked.
  • after the system shut off for the day an oily sheen was found on the top of the water within the community’s reservoir.
  • water distribution system will remain shut off until the substance can be identified and addressed. This has left the community without any running water.
  • With the water being completely shut off, the reverse osmosis unit (the drinking water machine) is not functional
  • The new water treatment plant cannot become operational until it passes a 14-day test run. 
  • The school is shut down because the plumbing in the school is not working properly due to constantly turning the water off and on in the community.
Tataskweyak Cree Nation

Dec. 2, 2019 – National Post: A chief of a Manitoba First Nation is proposing a class-action lawsuit against the federal government on behalf of her community and other reserves that have experienced long-term boil water advisories. Tataskweyak Cree Nation Chief Doreen Spence said in a statement of claim filed last month that people are unable to practise their traditions, have become very ill and have moved away because of issues with drinking water.

The Tataskweyak Cree Nation’s traditional territory was vast, following caribou herds in northern Manitoba. But its reserve was created in 1908 about 48 kilometres northeast of Thompson on the shore of Split Lake. Much of southern Manitoba’s water drains to Hudson Bay through the Nelson and Burntwood rivers, which converge in the lake. The court action alleges that as upstream land use and hydroelectric development increased, water quality in the lake significantly declined and the community suffered. The lawsuit says the federal government has refused to find an alternative source for drinking water, despite the community recommending a nearby lake.

Oneida Nation

Nov. 26, 2019 Toronto Star/ Ryerson School of Journalism: The water distribution system on Oneida territory (with 2,200 residents) – operated by the community with regulatory oversight from Indigenous Services Canada – has failed to meet provincial standards dating back to 2006. Upstream, the nearby City of London dumps millions of litres of raw sewage into the Thames river that serves as the community’s water source. Yet, Oneida has received none of the federal government’s high-profile funding for safe, clean drinking water to Indigenous communities.

On the other side of the gravel road across Oneida is the Township of Southampton who draw their water from Lake Erie and is fed by a $176M upgrade last year. “I give my biggest beef here to all the municipalities around us that received money to bring up their water systems after Walkerton (tainted water scandal) to meet new renewed standards” said Oneida Chief Jessica Hill, who stopped drinking from her water tap in 2002.

“We are still sitting here with pre-Walkerton standards. What does that tell you? The bottled water that the Oneida community drinks from comes from same source as the tap water of neighbours in the municipality across the street.

Ermineskin Cree Nation, Sucker Creek First Nation and two other Alberta First Nations

Oct. 15, 2019 – (Water Canada) Ermineskin Cree Nation, Sucker Creek First Nation and two other Alberta First Nations have joined forces with Okanogan First Nation to coordinate legal actions to confirm First Nations’ – and other Canadians – human right to safe drinking water.

Ermineskin Cree Nation will also be presenting to the Assembly of First Nations Water Symposium in late November, following the federal election, to encourage other First Nations across Canada to push for recognition of the First Nations’ human right to safe drinking water, including new legal actions across the country.

Okanogan Indian Band

August 19, 2019 – (Water Canada) Okanagan Indian Band (OKIB) filed a suit in Federal Court against the federal government over its failure to ensure the safety of drinking water. An expert assessment commissioned by the federal government in 2010 by firm Neegan Burnside produced a startling result. All of the drinking water systems were ranked an 8 out of 10 on a scale of potential risk to human health

After 9 years of determined and good faith efforts on the part of the OKIB, the federal government has made upgrades to only 1 of 7 systems. Okanagan felt no option was left, apart from legal action. We are stuck in limbo between federal policy that underfunds our system and provincial infrastructure resources we cannot access. The suit simply asks for confirmation that First Nations have the same access to safe drinking water as other Canadians. That would compel the federal government to ensure water infrastructure that meets safety standards – with a timeline.

July 9, 2019 – (CBC) Attawapiskat declares a state of emergency over state of drinking water. Tap water shows potentially harmful levels of disinfection by-products. Pro-longed exposure to THMs and HAAs can cause skin irritation and could increase the risk of cancer, according to a consultant report prepared for the community. THMs and HAAs cannot be cleared through boiling water.

Attawapiskat has long struggled with THM and HAA levels due to the high level of naturally occurring organic material in the lake where the community draws its water. Attawapiskat Chief Ignace Gull said the issue goes back to the 1970s when Ottawa decided use the lake water, which was originally intended to only feed the school, homes for teachers and the nursing station, to supply the whole community. “It wasn’t meant for the community,” he said. “We didn’t have indoor plumbing at that time.” At the same time as Attawapiskat declared a state of emergency over its ongoing water problems, Catherine McKenna the Minister for the Environment boasted about the world leading quality of tap water in Ottawa.

The only lasting solution to the nagging water woes would be to change the community’s water source to the Attawapiskat River — a conclusion reached by studies in 2008 and 2011. A new water source is also part of a broader plan for a desperately needed expansion of the community, which is bursting at the seams and pushing its existing water and wastewater systems to a near breaking point. The cost of the expansion is estimated at about $300 million to $400 million over 20 years. CBC

Potlotek First Nation

Sept. 12, 2017 – (CBC) Potlotek First Nation in Cape Breton has been advised by Health Canada not to drink the water, bathe in it or even wash clothes in it. This is the latest issue in a 10 year plus fight to fix their water system. Concentrations of manganese and iron in the drinking water exceed the “esthetic objectives” set out in Canada’s guidelines for drinking water quality. More details from Health Canada are pending. The Atlantic Chiefs have been working with Dalhousie University to create an Atlantic First Nations Water Authority to govern, own, construct, operate and supply clean and sustainable water and wastewater services, created by and for indigenous communities.

Mar. 20, 2019 – Through the vision of the Atlantic Chiefs, the Atlantic Policy Congress of First Nations Chiefs Secretariat (APC), in partnership with Dalhousie University, Halifax Water, and Accelerator Inc. developed a preliminary business plan with governance structure recommendations for an Atlantic First Nations Water Authority to operate and maintain community water systems. A dedicated, independent regional water authority will improve public health and safety while also ensuring positive economic and environmental outcomes. Creation of this water authority is fundamental to the long-term cultural and economic growth of First Nations communities in the region.

Indigenous Success Stories

Lytton First Nation and RES’EAU-WaterNET

Feb. 14, 2018 – (Vancouver Courier): Lytton First Nation is working with public and private organizations and universities in a “circle of trust” to identify challenges and test solutions in real-world conditions. They partnered with RES’EAU-WaterNET, a strategic research network under the Natural Sciences and Engineering Research Council of Canada

Because problems with drinking-water systems vary, RES’EAU-WaterNET works with communities like Lytton First Nation to gain insights early on in the process. With First Nation’s water-treatment operators at the centre of an “innovation circle,” they and experts from government, universities, consulting firms, water companies, and contractors identified and piloted several options for providing affordable, sustainable water-treatment solutions.

http://www.reseauwaternet.ca/

Federal Budget for Water and Water Infrastructure

Budget 2016 provided $1.8 billion over five years toward water and wastewater infrastructure. These investments have supported 468 water and wastewater projects in 580 First Nations communities, serving 458,000 people.

Budget 2018 provided an additional $172.6 million over three years to help accelerate progress on lifting drinking water advisories and to ensure more infrastructure projects can be completed prior to 2021. Budget 2018 also proposes support for repairs to high risk water systems, recruitment, training and retention initiatives, and the establishment of innovative First Nations-led service delivery models.

The parliamentary budget officer estimates it will cost at least $3.2 billion in capital investment to bring First Nations water systems up to the standards of comparable non-Indigenous communities in order to eliminate boil-water advisories by 2020. The spending watchdog’s latest report estimates the cost of updating drinking water systems at $1.8 billion, with another $1.4 billion needed for wastewater treatment and annual operating and maintenance costs of $361 million _ $218 million of which would be for drinking water alone. The PBO says the total spending by the federal government and others since 2011-12, combined with spending measures announced in the 2016 budget, can only cover 70 per cent of the total investment necessary.

Parliamentary Budget Office, Dec. 7, 2017