This Web page has been archived on the Web.

Environmental problems at the Buffalo Point Reserve in Manitoba

Petition: No. 91

Issue(s): Aboriginal affairs, fisheries, human health/environmental health, international cooperation, waste management, and water

Petitioner(s): A Canadian resident

Date Received: 28 July 2003

Status: Completed

Summary: This petition concerns the Buffalo Point Indian Reserve in Manitoba. Several issues are outlined in the petition. These include dumping of raw sewage, pesticide run-off, poor quality of drinking water, protection of fish and navigational safety, and transboundary waters. The reserve is located on the Lake of the Woods, close to the Canada-United States border. 

Federal Departments Responsible for Reply: Environment Canada, Fisheries and Oceans Canada, Health Canada, Indian and Northern Affairs Canada

Petition

TO: OFFICE OF THE AUDITOR GENERAL

DATE: July 22, 2003

RE: ENVIRONMENTAL PETITION

LOCATION: BUFFALO POINT FIRST NATION, MANITOBA


GEOGRAPHICAL BACKGROUND

Buffalo Point First Nation is located in the south eastern corner of Manitoba on Lake of the Woods adjacent to the U.S./Minnesota and Ontario borders. See attached map.*

Buffalo Point effectively became an island when the Norman Dam was built in Kenora at the turn of the century. This region is dominated by shallow glacial aquifers with numerous connections to wetlands, as well as Lake of the Woods.

Additionally, due to its close proximity to the US border, some areas of concerns could prove to be an international liability and therefore involve US agencies.

GOVERNMENTAL BACKGROUND

James Thunder, neé Conover, was elected chief of Buffalo Point in 1969. In 1997, he appointed his son, John Thunder, a hereditary chief for life without the benefit of an election or consultation with the band membership. Chief John Thunder appointed his father James Thunder and Robert Kakaygeesick as a councillors. As such, Chief Thunder and his father make all of the decisions pertaining to Buffalo Point First Nation without consultation or meetings with the band membership or the approximate 250 cottagers.

POLLUTION VIOLATIONS

  1. Septic grey water is being pumped through pipes directly into Lake of the Woods from the Galley Restaurant, rental cabins, golf clubhouse, and possibly the gas bar. Although the cabins are on reserve land, the Galley Restaurant is located on crown land.

    The pipes are carefully hidden under boulders or underground, but can be detected with a careful inspection.

  2. For more than 30 years, septic raw sewage is being pumped out by J&T Septic and dumped directly on the land. There are over 250 cottages, campgrounds with RV's, and a resort, so the amount of dumping is not insignificant. J&T Septic is the only septic service at Buffalo Point. A majority of the cottages are on well water and this dumping poses a risk of contamination. More importantly, Lake of the Woods is at risk for contamination as the water table is high and this area has recently suffered heavy flooding.

    The dumping has been reported to the Department of Indian Affairs and other agencies. The drinking water in the band office is not drinkable.

  3. The tanks for the gas bar operated in the marina are too close to the lake and therefore pose a risk of gasoline pollution.

  4. The 18th hole of the golf course has caused serious erosion of the lands due to poor design and drainage. As a result, all chemicals are flowing directly into the lake upon every rainfall. Holding ponds for this green should present. This hazardous dumping impacts US waters.

  5. The water intake for the large water pumps that irrigate the golf course are illegal. They have no permit from Transport Canada nor from the Department of Fisheries and Oceans. The intake is sucking in fish and is a potential navigational hazard to the sport fishers in this area.

  6. The sanitary landfill lacks the proper barrier to prevent toxic waste from leeching into the land.

RECOMMENDATIONS

  1. The Minister of Indian Affairs immediately appoint a third party manager for the affairs of Buffalo Point First Nation and order a meeting of all band members both on and off reserve to inform them of these problems and to discuss how the management and resources of this reserve are to be handled. The appointment of a third party manager should be temporary in nature and a set time line should be set in order to prevent a financial hardship to the first nation.

  2. All businesses should be immediately shut down pending a complete and thorough investigation.

  3. Watering of the golf course should cease and the water intake pumps shut down.

  4. The Minister of Indian Affairs order the election of a new chief and council by the entire band membership according to the band registry as maintained by the department as of December, 2002.

  5. The Minister of Indian Affairs order the removal of the corporate officers of the Lake of the Sandhills Golf Course and Buffalo Point Development Corporation until such time as the terms and conditions for the appointment of new officers can be made by the band membership at said band meeting.

  6. All construction be immediately halted until a full and thorough investigation of the lands can be completed.

  7. All funding from the Department of Indian Affairs and/or any and all governmental agencies be suspended pending the investigation of violations and the selection of new leadership.

  8. The Department of Oceans and Fisheries investigate and recommend the proper ways and methods to safeguard those areas within its jurisdiction.

  9. Fines be levied on UMA Engineering for failing to do its job properly.

  10. Fines be levied on the owners of the businesses found to be in violation.

  11. All sewage dumping onto the land be immediately stopped.

  12. The gasoline tanks at the business located in the marina are to be moved immediately and the cost for same borne by that business.

  13. All fines levied be paid into an account held in trust for the Buffalo Point First Nation.

*[attachment not posted]

[top of page]

Minister's Response: Environment Canada

26 November 2003

Ms. Johanne Gélinas
Commissioner of the Environment and
Sustainable Development
Office of the Auditor General of Canada
240 Sparks Street
Ottawa ON K1A 0G6

Dear Ms. Gélinas:

Thank you for your letter of August 11, with which you enclosed Environmental Petition No. 91, regarding environmental concerns on the Buffalo Point Indian Reserve.

I have reviewed the contents of the petition and I am pleased to answer the question about septic grey water, which falls under the mandate of my department.

Environment Canada is responsible for the administration of subsection 36(3) of the federal Fisheries Act. This subsection is a general prohibition whereby "no person shall deposit or permit the deposit of a deleterious substance of any type in water frequented by fish or in any place under any conditions where the deleterious substance or any other deleterious substance that results from the deposit of the deleterious substance may enter any such water." Most, if not all jurisdictions discourage or prohibit the direct discharge of grey water into fish bearing waters as this is not an appropriate environmental practice. However, I should point out that grey water may not always be deleterious to fish. This determination is made on a case-by-case basis.

With respect to your particular concerns, Environment Canada has not been involved in any environmental issues associated with Buffalo Point Indian Reserve. Nevertheless, based on the allegations in your petition, I have referred the grey water issue to my enforcement officials for follow-up.

For additional information on Environment Canada's mandate and programs, I invite the petitioner to read Environment Canada's 2003-04 Report on Plans and Priorities on our Web site at http://www.ec.gc.ca/rpp/index_e.htm.

Yours sincerely,

[Original signed by David Anderson, Minister of the Environment]

David Anderson, P.C., M.P.

[top of page]

Minister's Response: Fisheries and Oceans Canada

November 7, 2003

Ms. Adrienne Scott
Petitions Coordinator
Office of the Auditor General and the Commissioner
of the Environment and Sustainable Development
240 Sparks Street
Ottawa, Ontario
K1A 0G6

Dear Ms. Scott:

I am writing in response to your letter of August 10, 2003, concerning Environmental Petition no. 91. This petition was received from a resident of the Buffalo Point First Nation Reserve, Manitoba.

I understand that my response will be combined with those of other involved government departments, and that you will be contacting the petitioner directly to ensure privacy. I have no personal knowledge of, and am making no comments on any matters relating to band governance or anything other than matters falling within my department's mandate (i.e. fish and fish habitat issues).

This response addresses the fifth of six claims made by the petitioner. The claim in question is as follows:

"5. The water intake for the large water pumps that irrigate the golf course are illegal. They have no permit from Transport Canada nor from the Department of Fisheries and Oceans. The intake is sucking in fish and is a potential navigational hazard to the sport fishers in the area."

Department of Fisheries and Oceans (DFO's) district office in Winnipeg has not been contacted by the First Nation regarding this project. Although staff from that office have not followed up on the existing water intake for the golf course, given competing priorities, a site visit will be undertaken.

My purpose in writing this letter is to respond to you on behalf of the Department of Fisheries and Oceans. I understand that my colleagues from other departments will also be forwarding letters to you on this matter separately.

Yours truly,

[Original signed by Robert G. Thibault, Minister of Fisheries and Oceans]

Robert G. Thibault

[top of page]

Minister's Response: Health Canada

December 10, 2003

Ms. Johanne Gélinas
Commissioner of the Environment and
Sustainable Development
240 Sparks Street
Ottawa, Ontario K1A 0G6

Dear Ms. Gélinas:

I am writing in response to the Petition no. 91, sent on August 11, 2003. The Environmental Petition alleges the following environmental and environmental health issues in the Buffalo Point First Nation community in Manitoba:

  • dumping of raw sewage;
  • pesticide run-off;
  • poor drinking water quality;
  • concerns about fish and navigational safety; and
  • trans-boundary water.

On behalf of Health Canada, I will respond to two of the environmental health matters listed in the letter namely: poor drinking water quality, and the dumping of raw sewage. As for the other issues, I trust that my colleagues, who are also in receipt of your letter, will be responding to the questions which fall within their respective jurisdiction.

Given the nature of the issues raised by the petitioner, I have provided background on Health Canada's role regarding drinking water quality and sewage disposal and the policy on transfer of health services to First Nations communities including the role of Health Canada in transferred communities.

First of all, it is important to realize that Health Canada's programs relating to water drinking quality and sewage disposal in First Nations communities are not based on statutory authority, but rather on discretionary government policy and annual appropriations from Parliament. In order to implement these non-statutory programs which are administered by the First Nations and Inuit Health Branch (FNIHB), Health Canada relies on the cooperation of First Nations since it has no statutory or regulatory-based enforcement or inspection powers on reserves governing water quality or sewage disposal on reserve.

FNIHB is working with First Nations to enhance community control of health services. With respect to the Buffalo Point First Nation, Health Canada has provided the Southeast Tribal Council, of which the Buffalo Point First Nation is a member, with funding through a transfer agreement, to implement program objectives of FNIHB's Environmental Health Services to safeguard the health of First Nations by identifying, evaluating and mitigating existing and potential environmental health threats in First Nations communities. This is in keeping with government policy to enable First Nations communities and Tribal Councils which have the capacity to assume greater responsibility for health programs to address the issues of First Nations community environmental health standards, the establishment of by-laws to protect the health and safety of their community, and the need for ongoing education and health promotion programs, while building on and maintaining Aboriginal traditions and knowledge.

A safe environment implies, among other things, safe water and proper disposal of wastes. At Buffalo Point First Nation, the one Environmental Health Officer (EHO) employed by the Southeast Tribal Council is responsible for delivering the Environmental Health Services in consultation with the individual First Nations community served. The responsibilities and activities of the Council's EHO include: the inspection of community water systems, sewage systems, disposal facilities, food services and processing establishments, health and recreation facilities, as well as the investigation of local outbreaks of diseases. The Council's EHO must be a Canadian Certified Public Health Inspector. A First Nations community health representative or other members of the community health team may collect environmental health information under the direction of the Council's EHO.

As a part of the transfer agreement with Health Canada, the Southeast Tribal Council must create a Community Health Plan which will include: the objectives for the Council's Environmental Health Services, the types of inspection activities that will be needed to deliver this Program; how often these activities will be carried out and the planned inspection schedule for each of the following: water supplies, sewage disposal, solid waste (garbage) disposal, all food-service facilities, all public facilities (including recreational and institutional facilities), special events (such as pow wows) and housing.

The Council's Community Health Plan also identifies indicators that will be used to determine whether this Program has been successful in meeting its objectives and provides guidance to its EHO, who will be responsible for inspecting, testing and sampling the above.

Health Canada maintains a residual role with the Council. The services provided within the residual role are as follows: provide emergency coverage for Environmental Health Services in the event that the Council's EHO is unavailable (i.e., sick leave, holidays, loss of job); provide training opportunities to the Council's EHO; maintain communication with the Council and its EHO; disseminate pertinent information in a timely manner; and provide advice and guidance to the Council's EHO if requested.

Drinking water quality

At the Buffalo Point First Nation, there is no community drinking water distribution. Rather, all houses and facilities are connected to individual private wells.

Private wells do not normally fall under the purview of the Health Canada Environmental Health Program pursuant to which a transfer agreement was entered into with the Southeast Tribal Council. Ensuring the quality of water obtained from such wells is the responsibility of the individual.

Sampling of the drinking water on the Buffalo Point First Nation has been carried out by the Council's EHO. The most recent samples taken May 15, 2003 indicated that total coli form bacteria were present in the water at the time of the sampling. The presence of coli form bacteria indicates that the well is prone to surface water infiltration and that some form of contamination of the well may have happened. A letter from the Council's EHO dated May 30, 2003, informed the [name withheld] and Council of the Buffalo Point First Nation of the situation and provided possible solutions to remedy it, including the disinfection of the private well supplying the drinking water to the Council's office.

Health Canada has been informed by the Council's EHO that the wells have been disinfected and the drinking water has been resampled. The Council's EHO orally communicated to Health Canada that the problem has been addressed and the situation will continue to be monitored.

Dumping of raw sewage

As part of regular activities, the Council's EHO monitors community sewage systems and disposal facilities.

The current sewage disposal methods employed by the individual houses and the Council's office on the Buffalo Point First Nation are septic holding tanks (including grey water). The Council's EHO has advised Health Canada that these are regularly pumped out and their content in liquified form is trucked to an off-reserve sewage lagoon. The resort, clubhouse and cabins also utilize holding tanks for the disposal of sewage. Every dwelling in the community is on a separate septic tank. According to information provided by the Council's EHO, there has been no record of disposal of sewage from these systems into the lake.

Should you require further information concerning this matter, please do not hesitate to contact Mr. Christian Noel of the Environmental Health Division, First Nation and Inuit Health Branch at (613) 957-9503.

Again, thank you for writing and I trust this will prove helpful.

Yours sincerely,

[Original signed by A. Anne McLellan, Minister of Health]

A. Anne McLellan

[top of page]

Minister's Response: Indian and Northern Affairs Canada

November 18, 2003

Ms. Johanne Gélinas
Commissioner of the Environment
and Sustainable Development
Office of the Auditor General of Canada
240 Sparks Street
Ottawa, Ontario
K1A 0G6

Dear Ms. Gélinas:

This is in response to your correspondence of August 11, 2003, concerning the Environmental Petition No. 91, which outlines several environmental and environmental health issues within the Buffalo Point Indian Reserve No. 36 in Manitoba. I apologize for the delay in responding.

I would like to acknowledge and address each environmental issue as it was itemized in the Petition, which include the following:

1. Disposal of grey water into Lake of the Woods

Indian and Northern Affairs Canada (INAC) is not aware of the disposal of grey water from the restaurant, rental cabins, golf course clubhouse or gas bar into Lake of the Woods, nor has there been any record of such an occurrence.

Pursuant to subsection 36(3) of the Fisheries Act, it is illegal to deposit a deleterious substance of any type into water frequented by fish. If information was to be obtained by a proper authority to support such a claim, then the First Nation and/or the facility owners would have to undertake all means necessary to curtail such activity.

2. Sewage disposal on the land

INAC's Manitoba Region, has been previously informed of the sewage disposal methods within the Buffalo Point Reserve and the potential risks of groundwater contamination.

While the primary role of INAC is to support First Nations in developing healthy, sustainable communities and in achieving their economic and social goals, please note that under the regional capital program, INAC only has the authority to fund water and sewer services for community infrastructure such as homes, Band offices, and schools. It does not have the authority to provide water and sewer services for any commercial ventures.

The current sewage disposal methods employed by the individual homes (17 in total) and the Band office include septic fields and/or tanks. INAC provides adequate funding to the First Nation to operate and maintain these essential services. The department does not have the authority to deal with the bulk of the effluent in question, which originates from the commercial interests (i.e. cottages, marina, camp ground, etc.). The First Nation needs to consider ways for the commercial enterprises to offset the cost of sewage disposal. One option is to have businesses include these expenses in their operating costs. Another option is for the First Nation to offset these costs through fees and leases.

There is a report in the department which demonstrates several scenarios for addressing the sewage issue associated with the commercial interests at Buffalo Point First Nation. At this time, the First Nation is attempting to identify funding to address these concerns.

3. Marina gas tank located in proximity to the lake

The Buffalo Bay Marina has one 25,000 litre Westeel self-contained above ground storage tank. The tank has been built to the accepted Underwriters' Laboratories of Canada standards and the Environmental Code of Practice for Aboveground Storage Tank (AST) Systems Containing Petroleum Products. It has been built with the required secondary containment, which provides protection from potential tank leaks and corrosion. The tank has also been registered with INAC's Manitoba Region, as per the Federal Registration of Storage Tank Systems for Petroleum Products and Allied Petroleum Products on Federal Lands or Aboriginal Lands Regulations SOR/97-10 and the Environmental Code of Practice for AST Systems.

Based on a site visit conducted by an INAC Environment Officer on May 3, 2001, it was determined that the tank system had been installed, and was being operated, in accordance with the applicable laws, regulations, and codes. There was no noted risk of gasoline pollution. At that time it was noted, however, that collision protection (e.g., bollards) had not been installed around the tank. Collision protection is a requirement of both the Environmental Code of Practice for AST Systems and the National Fire Code, and is a precautionary measure to ensure any possible collision with vehicles is prevented. This deficiency was highlighted in a letter sent to the tank owner from the department on April 8, 2002.

Manitoba passed a new regulation, the Storage and Handling of Petroleum Products and Allied Products Regulation 188/2001, under The Dangerous Goods and Handling Transportation Act, in December 2001. This new regulation applies to tank owners throughout the Province, including First Nation Administrations and Corporations, Band members, and third parties (non-Aboriginal persons, organizations or corporations) occupying reserve land. Provincial laws of general application, such as 188/2001, are enforceable on Indian Reserves pursuant to Section 88 of the Indian Act, because there is no federal equivalent to the regulation.

One of the main aspects of this regulation is the requirement of a fuel tank system to be operated under the authority of a permit issued by Manitoba Conservation. An operating permit will not be issued until all deficiencies, such as the absence of collision protection, are remedied. Environment Canada anticipates passing a new petroleum regulation in 2004, which will also focus on curtailing the use of inadequate tank systems on Federal and Aboriginal lands. Given this situation, it is likely that any deficiencies (i.e. collision protection) deemed necessary by the appropriate authority(ies) will be forthcoming at the Buffalo Bay Marina. As such, the risk of gasoline pollution in the future would remain very low.

4. Design and drainage of the 18th hole of the golf course

Based on information provided in the report entitled, "Environmental Audit Report: Lake of the Sandhills Golf Course," prepared by UMA Engineering in February 2002, it is the understanding of INAC's Manitoba Region, that erosion along the 18th hole shoreline occurs naturally due to wind and wave action, as well as fluctuations in the lake level. Removal of vegetation along the shoreline has induced partial erosion, but is not caused solely from the design and drainage of the golf course. Erosion problems encountered along the 18th hole fairway have been corrected by reducing its slope. The Buffalo Point Development Corporation and the Chief of the First Nation are aware of the issue and are undertaking a study to assess the effects of flooding and erosion along the golf course. It is anticipated that recommendations from this study will be considered in the operation and maintenance of the golf course to reduce further erosion of the shoreline.

In order to address concerns of chemical use, however, it was determined at the outset of the golf course operation that only a light amount of such substances (e.g. fertilizers and fungicides) would be applied on the course in order to protect the natural environment as much as possible. Also, a buffer zone along the shoreline has been established, in which no chemicals are to be applied. Similarly, organic fertilizers have been tested on the golf course to determine their potential for use at a later date.

The audit also indicates that a holding pond was constructed near the 18th hole in order to collect surface runoff from the course and to drain into the pond prior to discharge to Lake of the Woods via a metal culvert.

In essence, given the aforementioned points, hazardous dumping is not occurring at the golf course, nor is there an impact to United States waters.

5. Intake lines for irrigation system at the golf course

INAC's Manitoba Region has been informed of the irrigation system at the golf course. In the environmental audit, it was indicated that a screen would be provided and installed on the intake line. INAC's Manitoba Region reviewed and approved this report on the basis that the First Nation submit details of the construction of the intake line and the screen to the Department of Fisheries and Oceans (F&O) for their approval. The request made by INAC was undertaken to ensure that the intake line conformed to F&O guidelines and regulations. There is no indication or evidence that the intake line is illegal, sucking in fish, or posing a hazard to sport fishers.

6. Sanitary landfill

Like all community waste disposal grounds in Manitoba, the disposal of toxic waste at the Buffalo Point landfill site is prohibited.

As previously mentioned, based on a site visit undertaken by an Environment Officer on May 3, 2001, there was no indication of toxic waste being disposed of at the site. Municipal solid waste (i.e. residential and commercial) was the only form of waste observed. The site was also adequately fenced and well maintained. Similar information has been documented in a report prepared by UMA Engineering in 1998 entitled "Feasibility Study for Community Water and Sewer System."

I trust that this information will address the concerns outlined by the petitioner.

Yours sincerely,

[Original signed by Robert D. Nault, Minister of Indian Affairs and Northern Development]

Robert D. Nault, PC, MP