AFN First Nations Water Initiative OVERVIEW

1. AFN First Nations Water InitiativeOVERVIEW National Housing & Water Policy Forum and Tradeshow Sheraton Centre Toronto Hotel Toronto, Ontario Irving “Bing” Leblanc, P.Eng., Special Advisor on Water February 6 - 8, 2007

2. Overview of Policy Forum • An opportunity to provide your input into the Government’s programs • To hear and comment on AFN’s conceptual policy framework • To participate in breakout session to forward your views

3. Overview – Forum Objectives – Day 1 • INAC – FNWMS update • Protocol for Safe Drinking Water • Municipal Wastewater Effluent Standards • AFN Conceptual Water Framework • Breakout sessions

4. Overview – Forum Objectives – Day 2 • Day 2 • Funding Track • Industry Forum • will be full day of informative and interactive presentations • Over-arching issues on housing & infrastructure will be presented • Issues such as financing, new technology, training initiatives, opportunities for industry partnerships

5. Overview – Forum Objectives – Day 3 • Day 3 will start off with joint plenary session on Financing • It will showcase various industry and First Nation organizations presenters • Health Canada Procedure for Drinking Water Advisories • Feature presentation by Dr. Douglas Cardinal on Customary Law and Traditional Knowledge.

6. Expert Panel –AFN View FN, TC and Orgs suggest Various Options: • use S. 88 of Indian Act - laws of general application under each province for water • Create new Regs By Order-In-Council under some existing federal law i.e.FNLMA • Enact New federal legislation • Recognize FN Jurisdiction- exercise full transfer w/ enabling legislation • Put off any Reg until systems fixed and capacity is achieved

7. AFN-Federal EP Group-Consultation • Report released December 07, 2006 • All Feds-AFN conduct Impacts Analysis on EP Final Report options – January 19, 2007 • Consolidated report prepared by INAC

8. Expert Panel Report • Regulatory Options • The Expert Panel considered five options as possible routes to creating a regulatory framework for First Nations: • Existing provincial regimes could be used, as “laws of general application”; • Regulations might be passed by Orders in Council under existing federal statutes; • Federal Regime: Parliament could enact a new statute setting out uniform federal standards and requirements; • Provincial Regimes: Parliament could enact a new statute referencing existing provincial regulatory regimes; or • Customary Law Regime: First Nations could develop a basis of customary law that would then be enshrined in a new federal statute.

9. Expert Panel report • The Expert Panel, after a legal analysis, concluded that the first two options are not workable. • The report narrowed its recommended options to three with the federal regime option as the preferred approach (option 3 above). • The other options are based on customary law (option 5 above) and reference to provincial regimes (option 4 above).

10. AFN Position Paper – Main Points • While customary laws are recognized as an option, the recognition of First Nations jurisdiction more closely aligned with the 2005 Federal Crown-First Nations Political Accord on the Recognition and Implementation of First Nations Governments was not adequately considered; • A non-derogation clause to protect First Nations inherent and Treaty rights is essential; • The proposed options do not clarify roles and responsibilities of the federal government, and how these would be entrenched in a new federal statute;

11. AFN Position Paper – Main Points • The report does not fully address all aspects of addressing public health emergencies or issues (such as waterborne illnesses) that may result from a lack of access to safe drinking water. For instance, it does not clarify the need for recognized authority of Medical Officers of Health who are mandated to support First Nations public health on-reserve. First Nations governments reject the application of provincial health acts on-reserve as this is seen to circumvent their inherent jurisdiction. • The National Chief and Minister of Health Tony Clement have signed a joint workplan that will explore a legislative base for public health in First Nations communities. Hence, any follow-up to the Expert Panel report must take into account this broader enabling legislation development in the area of First Nations public health, based on the AFN’s Public Health Framework;

12. AFN Position Paper – Main Points • The impact of the proposed options on First Nations’ section 35 rights must be adequately considered. AFN’s legal review has brought forward concerns that the federal standard/requirement legislative option impacts at least three existing Aboriginal rights: water rights, environmental protection rights and self-government rights. • None of the options clearly supports the relationship between the need for a “statute” versus the need for a “federal framework” that encompasses the broader multi-jurisdictional source protection issues; • The issue of liability and where it would rest in any of the proposed options is not adequately resolved. The AFN has serious concerns that the greatest liability and risk would rest with the First Nation Plant Operator.

13. AFN Role in Govt Initiatives • INAC indicated a joint process and joint development of the Memorandum to Cabinet with AFN. • With the continuing implementation of FNWMS, AFN to participate in the Strategic Water Management on Reserve Committee to evaluate progress • With Summative Evaluation of FNWMS, AFN to participate in the evaluation management committee. • Possible development of regulatory regime, AFN to assist in the development of a consultation strategy, facilitate the process and determine options for capacity building. • MC on Water in Summer-Fall 2007, AFN to provide advice and aid in the development of the business plan and other support.

14. AFN Role: Consultation Strategy • AFN FN Drinking Water Action Plan: • Three main phases: Development, Engagement, Implementation • Overall Coordination Process: • Policy Oversight – Joint Steering Comm. RIFNG • FN Technical Input – Advisory Group • AFN support to Federal Advisory Group – Secretariat work • Communications • Phase 1 Development and Engagement • Phase 2 National Policy Forum • Phase 3 (Multi-year) Implementation - CIER Proposal

15. AFN Implementation Plan • First Nations Water Commission referenced in the Expert Panel report • Working with CIER to develop a multi year plan of action through several areas • The conceptual framework will be presented at this forum for feedback and comments

16. Other Related Water - SWMRC • INAC, EC and HC w/ AFN Joint Response to Auditor General Report scheduled before MC in Fall 2007 • Summative Evaluation of the FNWMS: Developing a ToR for an evaluation of the implementation and management of FNWMS. • Will be used as part of Memorandum to Cabinet in Fall 2007 • Marc Brooks will provide more detail on this item

17. INAC MC to Cabinet: FN Drinking Water Action Plan – Budget 2006 • Marc Brooks will report on INAC action plan and timeframes for these activities • Update on the FNWMS and Implementation • Evaluation of the FNWMS • Long Term Capital Plan

18. Other Activities • Canadian Council of Ministers of the Environment – Municipal Wastewater Effluent- October Meeting • Developing a Canada-Wide Strategy to define wastewater discharge to surface water from all facilities including Aboriginal facilities. • It comprises end-of-pipe discharges and overflows. However, excludes storm water and bio-solids discharges. • The proposed strategy will provide a harmonized and collectively agreed-to regulatory framework for the management of MWWE in Canada (one window reporting). • The MWWE quality standards will be implemented equally nationally as a regulation under the Fisheries Act and CEPA. • A separate consultation process with FNs regarding these regulations will be undertaken by Environment Canada starting in the Spring 2007, AFN agrees to assist with coordination.

19. Miigwetch Thank you