On June
19th, JFK’s Clayton Leonard appeared before the Standing Committee on Indigenous and Northern Affairs to press for recognition of First Nations’ right to safe drinking water in Bill C-61 – First Nations Clean Water Act. The text of his submission to the Committee is below. To access a video of the proceedings at Committee on Bill C-61 go this link:
https://www.ourcommons.ca/committees/en/INAN/StudyActivity?studyActivityId=12799569.
Clayton Leonard’s submission is at 17:52 on the June 19 video.
Text of Clayton Leonard’s Submission to the Committee on Bill C-61:
I would like to start by thanking the Committee for its time and attention to our submissions on Bill C-61. I am here as legal counsel to Siksika, Piikani and Kainai and so of course I need to speak in support of the amendments to the Bill that the Blackfoot Nations are seeking. But before I get into those points, I would like to speak from a personal perspective.
I had my first file about unsafe drinking water at a First Nation 20 years ago during my first year at the bar, with a constant flow of these issues ever since. I am not Indigenous and like most Canadians I’ve had the good fortune of not having to give a second thought to the safety of the water in my home or office. But I have spent a lot of time in First Nation communities in Alberta and BC hearing first hand from people that have lived with water that threatens their well-being daily. I have seen elders in tears as they recount how they have to struggle physically to load bottled water into their homes. I have seen dirty smelly water coming out of the tap in a school. I have driven into a community with a billboard advising of the near permanent do not consume order. Imagine, that – not “be careful boil your water” – just don’t drink it at all or you will get sick. The unsafe drinking water in First Nations’ homes, schools and community buildings is among the worst kind of discrimination our country has imposed on First Nation peoples. It’s a disregard for First Nation peoples’ humanity.
Recently, Canada has taken significant steps to address this national shame. But it hasn’t been enough. Much more has to be done. Bill C-61 is a decent start but it asks First Nation leadership, families, and elders to trust that Canada’s “best efforts” will be enough to ensure safe drinking water in their communities. With Canada’s legacy of discrimination against First Nations, particularly with regard to unsafe drinking water, it is both irrational and indefensible to expect that First Nations to just trust that new “best efforts” will be good enough. This is why Bill C-61 needs at least one very critical amendment. Its time to stop the half measures and do the right thing by expressly recognizing that First Nation people living in their communities have a human right to turn on the tap and face no risks to their health or well-being. Nothing less is acceptable.
The proposed amendment would recognize that First Nations have a human right to safe drinking water is critical to reconciliation and is consistent with a least a dozen resolutions by the AFN Chiefs in Assembly from 2011 to 2023. The amendment will address what is likely the most common criticism from First Nations about Bill C-61 – that is doesn’t do enough to ensure that First Nations will have access to safe drinking water.
Canada endorsed UN Resolution 64/292 on the human right to safe drinking water and references it in the preamble of Bill C-61. All of that is lip service, unless there is recognition of First Nations’ human right to safe drinking water in the body of the Bill by way of our proposed amendment:
3(3) For greater certainty, it is recognized and affirmed that First Nation peoples have a human right to safe drinking water consistent with United Nations Resolution 64/292 (2010) and that pursuant to this Act the human right to safe drinking water means that all First Nation members resident on First Nation lands have a right to drinking water that poses no risks to human health or well-being.
Funding is also fundamental. Its been 18 years since the Expert Panel on Safe Drinking Water for First Nations concluded that resources were needed before regulation. As we know, that was a key failing of the last legislation in 2011 – it was not backed by resources for First Nation water systems. The $6 billion commitment that accompanies Bill C-61 finally addresses this. Although this funding commitment flows from the class action settlement, the Minister has clarified in writing to First Nations that are not part of the settlement that the funding is for all First Nations. But there is still as serious funding issue.
There will be a two-tiered level of access to the $6 Billion in funding. The 271 First Nations under the class action settlement will have access to a binding third party dispute resolution process. This means that if a First Nation in the class has an engineering assessment that justifies a $10 million dollar investment in its water systems but ISC will only commit to funding $7 million, that First Nation under ss. 9.06-9.08 of the settlement agreement can use the binding dispute resolution process to compel ISC to fund the $10 million infrastructure need. This critically important funding mechanism will not be available to the 348 First Nations that are outside the class action settlement. This means that almost 60% of First Nations in Canada will not have access to the dispute resolution process and will remain at the mercy of ISC funding decisions. The funding dispute resolution process in ss. 9.06-9.08 of the class action settlement agreement needs to be replicated in Bill C-61 so that all First Nations have access to the process. If this is not addressed in an amendment to the Bill, there will be an unfair level of access for some First Nations to the funding.
I also need to highlight the importance of the Chief Fox’s points about the complexity of source water protection. I have attached a memo that provides the Committee with a summary how source water protection is addressed across the country. It is clear there is a very uneven and inequitable approach to source water protection in different regions that will present real challenges for effectively implementing those elements of Bill C-61.
In support of Chief Fox’s points and Chief Knowlton’s submission calling for the addition of water for “agriculture and economic development” to s.15 of the Bill, I have attached an analysis of a consultation draft of the Bill by Professor David Percy commissioned by the Blackfoot Nations. Percy is without a doubt Canada’s leading legal scholar on water law. His analysis explains and speaks to the need for the amendment to s.15 and identifies challenges regarding source water protection. Professor Percy can be available to speak to the Committee virtually at some point if would like to hear from him.
In closing, I want to note that when the Bill was introduced the Minister committed to further amendments. This point has been reiterated in meetings with Chiefs in Alberta and others. If there is a genuine intention to finally and effectively address our country’s shameful record of unsafe drinking water for First Nations then we expect the amendments we have proposed, in particular recognition of First Nations’ human right to safe drinking water, to make into the final version of the First Nations Clean Water Act.
For more analysis of Bill C-61 please also see JFK’s Blog Post on the legislation. https://jfklaw.ca/canada-introduces-bill-c-61-first-nations-clean-water-act/