The genesis of the proposed First Nations Clean Water Act (Bill C-61), introduced in the House of Commons Dec. 11 by Indigenous Services Minister Patty Hajdu, was an almost $8-billion settlement two years ago of a class action launched in 2019 by First Nations across Canada. ’
Their deal with Ottawa included, among other things, about $1.5 billion in compensation for individuals deprived for decades of clean drinking water; the government’s commitment of at least $6 billion in support for reliable access to safe drinking water on reserves; federal support to help First Nations develop their own safe drinking water bylaws and initiatives; and a pledge that the government of Canada would make all reasonable efforts to develop and propose legislation, in close consultation with First Nations, by Dec. 31, 2022, to replace the 2013 Safe Drinking Water for First Nations Act that was repealed in June 2022, in furtherance of the same settlement.
At a press conference on Parliament Hill after unveiling Bill C-61, Hajdu outlined the proposed law’s contents but also highlighted what she said was a unique collaboration with First Nations in developing the legislation that pushed government officials to cede some of the unilateral control they are accustomed to before a bill is introduced.
Indigenous Services Minister Patty Hajdu
Noting that art. 19 of the UN Declaration on the Rights of Indigenous Peoples requires state consultation and co-operation with Indigenous peoples before the state enacts legislative measures that affect them, Hajdu called Bill C-61 “the first on a new path of law making together.”
“To get to this moment, Canada worked with First Nations, listened to diverse perspectives, went back to the drawing board more than once and challenged its own assumptions, processes and inherent control,” she said.
“This legislation was co-developed,” stressed the Minister of Crown-Indigenous Relations, Gary Anandasangaree. “We’re taking consultation seriously to the next level. We’re listening and we’re learning. There’s much more to do with self-governing and modern treaty First Nations. However, this legislation lays a strong foundation.”
The Toronto lawyer noted “we are here today thanks to the tireless advocacy of First Nations people. It has been a decades-long fight. It’s another step in redressing the wrongs of the past and I look forward to the speedy passage of this legislation.”
Anandasangaree noted that before the federal Liberals were first elected to government in 2015, they committed to end boil water advisories on reserves. “We made a lot of progress,” he said. “Now 96 per cent of communities have clean water, but there’s much more to do. Today, with this historic legislation, First Nations will get control back of their waters including water flowing into their communities. This is what the UN Declaration on the Rights of Indigenous Peoples looks like in action.”
Chief Wilbert Marshall of Potlotek First Nation, chair of the board of the Atlantic First Nation Water Authority, the first First Nation-owned and-operated water authority in Canada, said “while there is still work to be done, Atlantic First Nations Water Authority is supportive of the introduction of this legislation. It truly believes it is a step in the right direction and a unique opportunity for First Nations to control their service, critical and socio-economic environmental and well-being of our communities. ... The Authority is happy that the legislation introduced today enables the Water Authority to formalize the standards we developed and empowers First Nations across Canada to develop their own regulatory standards.”
Marshall thanked Hajdu’s ministerial predecessors, Marc Miller and Carolyn Bennett, and Hajdu who he said “just didn’t do the talk, she did the walk.”
“Minister Hajdu, when I first met her I gave her a really hard time,” he recalled. “Our people don't really trust the government, any government ... so ... that's a lot for me to come here to be on her side today,” he said. “This is the first time ever, money we asked for, we actually got the whole thing. I couldn't argue about it,” he said to laughter in the room.
When a reporter asked Hajdu whether Bill C-61’s recognition of First Nations’ control over drinking water means that First Nations will be legally responsible for any quality or safety issues that come up “and that your government will no longer face lawsuits over this,” the Indigenous Services minister replied “the law provides all of the tools necessary for First Nations to have the inherent control — but also an active partner in the government of Canada to ensure that First Nations have the resources they need to deliver that water in a safe way, in a sustained way, for generations to come.”
According to a government backgrounder, Bill C-61 recognizes and affirms the inherent right of First Nations to self-government in relation to water, source water, drinking water, wastewater and related infrastructure on, in and under First Nation lands.
If enacted, it would establish rights-based regulatory pathways to protect water and source water adjacent to First Nation lands, in consultation and co-operation with First Nations, federal ministers and provinces and territories, to help protect drinking water sources flowing onto First Nation lands, the federal government said.
“Bill C-61 would also support the closing of drinking water and wastewater service gaps between First Nations and non-First Nations communities, and operate independently of the Indian Act,” the backgrounder says. “It would also commit the federal government to make best efforts to provide adequate and sustainable funding for water services on First Nation lands. That funding would be required to meet, as a minimum, the commitment expenditures set out in the settlement agreement.”
The government said key elements of the bill also include:
- minimum national standards for the delivery of drinking water and wastewater services on First Nation lands, based on First Nation choice;
- a requirement for all decisions made under the proposed Act to be guided by the principle of free, prior and informed consent; and
- a commitment for Canada to support the creation of a First Nations Water Commission that would support First Nations in exercising greater control over drinking water and wastewater services on First Nation lands.
If you have any information, story ideas or news tips for Law360 Canada, please contact Cristin Schmitz at Cristin.schmitz@lexisnexis.ca or call 613-820-2794.