On December 11, 2023, the government of Canada tabled Bill C-61, the First Nations Clean Water Act. This Bill aims to recognize the right of First Nations to self-governance over water on First Nations lands and establish minimum standards for water quality and quantity. While the Bill represents a step forward, there are several shortcomings that Canada must address to ensure First Nations have equitable access to clean and safe drinking water and can assert their right to self-governance over their water resources.
First Nations can still provide feedback and push Canada to make amendments to the Bill before it becomes law. The NDP’s support is necessary for the government to pass Bill C-61 and the party has stated they want to hear from First Nations before they will support it. This means that participation at Committee and communicating concerns to the government might effect changes to Bill C-61. First Nations can provide feedback on Bill C-61 directly to Parliament after the Bill’s second reading during the committee stage by submitting a brief, or appearing before the Committee.
Background
Bill C-61 is a long-awaited answer to water inequality experienced by Indigenous peoples in Canada. Access to safe and clean drinking water is essential to life. Unfortunately, many First Nations communities across Canada face significant challenges to accessing safe and clean drinking water. Since 1977, Canada has promised to provide reserves with water and sanitation services comparable to similarly situated non-Indigenous communities.(( David Boyd, No Taps, No Toilets: First Nations and the Constitutional Right to Water in Canada, (2011) 57:1 McGill Law Journal, online: <https://www.erudit.org/fr/revues/mlj/2011-v57-n1-mlj1824188/1006419ar.pdf>.))However, these promises for the most part never came to fruition. First Nations continue to disproportionately suffer from the mismanagement of water, water insecurity, and a lack of access to clean drinking water that would be completely unacceptable to anyone living off reserves.((The disparity between water quality on and off reserve in Canada has been criticized by the United Nations Committee on Economic, Social and Cultural Rights (Committee on Economic, Social and Cultural Rights, Consideration of Reports Submitted Under Articles 16 and 17 of the Covenant: Concluding Observations of the Committee on Economic, Social and Cultural Rights: Canada, UNESCOR, 36th Sess, UN Doc E/C.12/CAN/CO/4 and UN Doc E/C.12/CAN/CO/5 (2006) 1 at 3-4), the Royal Commission on Aboriginal Peoples (National Commission Inquiry on Indian Health & NIB Health Development Program, “National Indian Brotherhood National Indian Health Policy: A Compilation of Health Policy Papers” in Public Policy and Aboriginal Peoples, 1965-1992: Summaries of Reports by Federal Bodies and Aboriginal Organizations (1994), vol 2 (Ottawa: Supply and Services Canada, 1994) 226 at 227), and the Auditor General of Canada (Office of the Auditor General of Canada, Report of the Auditor General of Canada, ch 23 (Ottawa: OAG, November 1995) 23-10; House of Commons, Office of the Auditor General of Canada, “Chapter 5: Drinking Water in First Nations Communities” in Report of the Commissioner of the Environment and Sustainable Development to the House of Commons (29 September 2005) at 1 [“Drinking Water in First Nations Communities”))
One of the most prominent examples of water inequality is with respect to the persistence of drinking water advisories on First Nations reserves.(( Government or health agencies issue drinking water advisories when the quality of drinking water does not meet the established provincial, federal, or territorial health and safety standards. Drinking Water Advisories take two forms: Do Not Consume (DNC) and Boil Water Advisory (Government of Canada, Drinking Water Advisories (2018), online: <https://www.canada.ca/en/environment-climate-change/services/environmental-indicators/drinking-water-advisories.html>).)) Drinking water advisories have persisted on many First Nations’ reserves for decades despite Canada’s fiduciary obligations to provide First Nations with drinking water, its repeated promises to eliminate these advisories((In October 2015, Prime Minister Justin Trudeau promised to elimination all long-term drinking-water advisories on public water systems on First Nations reserves by March 31, 2021; In March 2016, Prime Minister Trudeau committed $2 billion over five years to “put an end to the unconscionable crisis of boil-water advisories on reserves”.)), and its international commitments which recognize the human right to drinking water and sanitation.((Several United Nations human rights instruments ratified by Canada have recognized the human right to water and sanitation and acknowledge that clean drinking water and sanitation are essential to the realization of all human rights, these include the: International Covenant on Economic, Social and Cultural Rights (1976); Convention on the Rights of the Child (1989); United Nations Convention on the Elimination of All Forms of Discrimination Against Women (1979); United Nations Declaration on the Rights of Indigenous Peoples (2007); and the United Nations, Sustainable Development Goals, online: <https://sdgs.un.org/goals>.))
Canada developed Bill C-61 to meet the terms of a settlement agreement and to try and address the many water issues affecting First Nations. In 2019, two First Nations filed class action lawsuits against Canada for its failure to provide access to safe and clean drinking water to First Nation communities across Canada. Canada agreed to settle these lawsuits in 2021 and, as part of this settlement, it committed to repeal and replace the Safe Drinking Water for First Nations Act, 2013. Notably, Canada promised it would co-develop Bill C-61 with First Nations under the guidance of Article 19 of the United Nations Declaration on the Rights of Indigenous Peoples, which requires states to consult and cooperate in good faith with Indigenous communities to gain their free, prior, and informed consent before implementing laws that may affect them. Canada started engaging with First Nations in late 2022 on the development of Bill C-61.
Bill C-61, the First Nations Clean Water Act
Overall, Bill C-61 provides First Nations with a strong foundation to assert control over their water resources and jurisdiction over water occurring on First Nations land. However, the legislation fails to expressly recognize a human right to drinking water or a guarantee for substantive equality for access to water services on and off First Nations lands. Critically, the legislation fails to include provisions for effective source water protection, which is necessary to ensure First Nations have enough clean water flowing onto their lands and territories to meet their needs.
Highlights of Bill C-61
Bill C-61 is a good starting point for First Nations to assert control over their water resources. Some highlights of the Bill include:
- Ownership of Water and Expanded Scope of First Nations Inherent Right of Self-Government over Water: Bill C-61 confirms that water “on, in and under” reserve land is part of reserve land, providing a strong barrier against provincial assertions of ownership. This is the first ever recognition in Canadian law that water is part of First Nation reserve lands. Section 6(1) of Bill C-61 recognizes that First Nations have the inherent right to self-government, recognized and affirmed by s. 35 of the Constitution Act, 1982, in relation to water, source water, drinking water, wastewater and related infrastructure on, in and under First Nations lands. The language of this section, which references s. 35 of the Constitution Act, 1982, means that First Nation’s right of self-government over water on reserve lands is a recognition of a constitutionally protected right, not just a statutory grant of authority. Further, the inclusion of “water” and “source water”, which was not present in consultation drafts of the legislation, means that First Nations can govern all aspects of water on reserve lands. This section, along with the clear statement that water is part of reserve lands, effectively means that provincial water laws will likely not apply to reserve lands.
- Minimum standards for Water Quantity and Quality: Bill C-61 prescribes minimum standards for water quantity and quality which are set out in s. 14-16. These legislated standards are essential to ensure that First Nations have reliable access to clean and safe drinking water along with a sufficient supply of water to meet their needs, such as for fire protection, emergencies, and wastewater. Section 15 goes on to specify that the quantity of water available on First Nation’s lands must meet the drinking, cooking, sanitation, hygiene, safety, fire protection, and emergency management needs of the First Nation. Under s. 14 and 16, the Bill also guarantees minimum standards for drinking water quality and effluent standards.
- Proactive Non-Derogation Clause: Bill C-61 includes a non-derogation clause in s. 6(1). A non-derogation clause is a provision in legislation that ensures that the rights or protections granted by the legislation do not diminish or infringe upon any existing rights or freedoms. In the context of Bill C-61, the non-derogation clause safeguards pre-existing rights, and ensures that the legislation will not diminish or erode the water rights that Indigenous peoples already possess, whether through constitutional protections, treaties, or other legal instruments. This clause will guide courts interpretation of the legislation in any future litigation regarding Bill C-61 and First Nation water laws.
- Proprietary Right to Water and Provincial Control over Water on Reserve Lands: Bill C-61 recognizes that water and source water occurring in, on, and under First Nations lands are part of those lands. This recognition combined with the broad, constitutionally protected right to govern water and source waters on First Nations lands recognized in s. 6, provides a strong argument that provincial water laws cannot apply to First Nations lands and that First Nations have ownership of these water resources.
Shortcomings of Bill C-61
While Bill C-61 represents progress, there are several areas where the proposed legislation falls short:
- Failing to Recognize a Human Right to Safe Drinking Water: Bill C-61 does not recognize a human right to safe drinking water. Instead of recognizing this right, Bill C-61 invokes the principle of “substantive equality” at s. 5(2)(a) which states that the “needs of First Nations for reliable access to water services must be addressed in a way that respects First Nations rights and their access must be comparable to that in non-Indigenous communities”. This section will merely guide federal decision making on matters under the legislation and is not equivalent to a right to safe drinking water. Canada’s failure to recognize a right to safe drinking water is inconsistent with its support for the right to safe drinking water as a human right at the United Nations. An on-going legal action by Kainai (Blood Tribe) and Ermineskin Cree Nation seeks confirmation that First Nations have a right to safe drinking water, something that was not part of the national class action.
- Lack of Free, Prior and Informed Consent: The Bill does not comply with Article 19 of UNDRIP, as it lacks a provision that explicitly recognizes the importance of obtaining free, prior, and informed consent (“FPIC”) from First Nations regarding the application of the Bill to them. Section 5(3) requires that decisions made under the Act be guided by FPIC. This does not require decision makers to make decisions that align with the principle of FPIC and falls short of recognizing and meaningfully implementing FPIC, which many First Nations see as a requirement for the Bill and not merely a guiding principle.
- Incomplete Recognition of Water Quality: As mentioned above, in s. 14 and 16, the Bill guarantees minimum standards for drinking water quality and effluent. However, s. 19(3) allows the Governor in Council to make regulations that “may provide for different minimum standards for different locations to address local circumstances”. This gives Canada a loophole to prescribe standards to First Nations communities that do not meet the minimum guidelines for non-First Nations’ land. In the event that Canada does this, First Nations can use s. 19(2) to enact a law that excludes the application of this regulation to it.
- Incomplete Recognition of Water Quantity: Section 15 of Bill C-61 states that First Nations must have enough water to meet the following needs: “drinking, cooking, sanitation, hygiene, safety, fire protection, and emergency management”. However, the Bill excludes First Nation’s need to have a sufficient supply of water for economic purposes, such as for agriculture, irrigation, and commercial development. Further, it excludes the need for water for the exercise of Aboriginal rights and cultural practices tied to water. Without the recognition of a right to a sufficient supply of water for these purposes First Nations will continue to face challenges supporting economic development and the exercise of cultural practices that rely on water on reserve.
- Source Water Protection is Largely Discretionary: Source water protection is critical to ensure First Nations will have sufficient quantity and quality of water flowing to their reserve lands, to meet demands for drinking water, to pursue and support economic development, and for Aboriginal rights and cultural practices. The Bill does not contain any requirements for source water protection. While source water is mentioned throughout the proposed Act, there are no provisions which require Canada or any other government to engage in source water protection. Instead, the proposed Act allows for the Minister to enter into agreements and for the Governor in Council to make regulations in relation to the protection of source waters; but they are not required to do so.
- Source Water Protection is Vulnerable to Provincial and Federal Agreement: Section 6(1)(b) of the Bill states that First Nations, the Province, and the Government of Canada must agree on an approach to source water protection.((Bill C-61 at 6(1)(b).)) This does not provide First Nations adequate authority to protect source water. Rather, First Nations will have limited scope of jurisdiction over source water, as jurisdiction is contingent on the agreement of the federal government and the respective province or territory to coordinate the application of First Nations laws to source water within the protection zone. This is especially problematic as water protection varies widely from province to province.
- Funding: The funding provisions in the Bill do not go far enough to guarantee sufficient funding to First Nations. Under s. 26 of the proposed legislation, the Government of Canada is only required to use “best efforts” to provide sufficient funding for water and watershed infrastructure, and the actual costs to First Nations for providing water and wastewater services. A requirement to use “best efforts” provides Canada with a loophole to get around ensuring that First Nations have access to clean and safe drinking water. If the Minister can say they used their “best efforts” to ensure access to a community and that community still does not have access to drinking water, that would be legal under the proposed Act.