A Bridge Over Troubled Water? How First Nations-Led Safe Drinking Water Initiatives Are Addressing Water Insecurity on Canadian Reserves

Despite Canada having the fourth largest freshwater supply in the world, many communities, disproportionately Indigenous communities, lack access to safe, reliable, and affordable water. This is particularly an issue on First Nations reserves. However, in the last decade, the Canadian government has invested in efforts to end drinking water advisories. This comes as a result of both international and domestic pressures to address the disproportionate levels of water insecurity between Indigenous and non-Indigenous people in Canada.

Additionally, important legal advancements regarding clean drinking water have prompted the government to take further steps to address water insecurity. Due to these legal developments and federal investments, many First Nations communities have been able to implement infrastructure that has either improved or ended drinking water advisories.

The following Q&A outlines some of these developments.

Q: What are “drinking water advisories,” and how many are there in Canada right now?

A: A “drinking water advisory” is issued by local authorities to communities, either cautioning about water consumption or restricting water usage completely. These advisories are meant to protect the public from potential health risks associated with drinking unclean water. A drinking water advisory can be issued for a number of reasons, including problems with drinking water equipment or contamination. There can also be short-term and long-term advisories. A short-term water advisory typically lasts under one year, while a long-term water advisory is an advisory that remains in place for more than one year.

As of September 2024, there were more than 30 long-term drinking water advisories on reserves in Canada. Additionally, some of the communities included in this number have not had access to safe drinking water for nearly 30 years. Regarding short-term advisories, it is estimated that there are more than 100 short-term drinking water advisories in Canada at any given time.

Specifically, as of October 31, 2024, there were 78 short-term drinking water advisories on reserves south of the 60th parallel.

The statistics indicate that the majority of short-term drinking water advisories affect First Nations communities. In fact, the number of water-borne infections in First Nations communities is 26 times higher than the national average. Furthermore, people living on reserves are 90 times more likely to have no access to running water compared to other Canadians.

Q: So, why are there such large disparities in drinking water quality between on and off-reserve populations?

A: The disparity in drinking water quality is a result of colonialism, racialized dispossession, and unclear and inefficient systems of governance. When Indigenous Peoples were displaced and forcefully relocated to reserves, there was little planning by the government for infrastructure development that would ensure access to universal water and sanitation. This has continued to today and is perpetuated by the fragmented approach that the federal and provincial governments take to providing safe drinking water. For example, neither provincial nor territorial regulations that govern safe drinking water apply to First Nations reserves. Instead, the responsibility of providing safe drinking water to First Nations reserves is fragmented and unclearly divided between the federal, provincial, and territorial governments. This approach to the governance of safe drinking water access for reserves allows the governments to avoid accountability, making it difficult for communities to find the support they need to implement their own infrastructure.

Q: Are there rights that exist for Indigenous Peoples to access safe drinking water?

A: While the Canadian constitution does not explicitly recognize the right to water, Canada has supported and implemented several international legal instruments that would support a right to safe drinking water and sanitation in Canada. The first is the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”). Article 21 of UNDRIP states that:

1.     Indigenous Peoples have the right, without discrimination, to the improvement of their economic and social conditions, which includes sanitation and health; and

2.     Canada needs to take effective measures, and sometimes special measures, to ensure the continuing improvement of Indigenous Peoples’ economic and social conditions.

Since Canada implemented UNDRIP into our domestic law in 2021, Canada must take all the necessary steps to ensure that the laws of Canada are consistent with UNDRIP.

The second international legal instrument is the United Nations’ recognition that there is a human right to safe and clean drinking water and sanitation, which Canada supported in 2010. This was the first time this human right was recognized. While international legal tools are important interpretive tools for legislators when drafting new laws, domestic laws are more powerful and create more stringent obligations for the government.

Q: Are there domestic laws that address the inaccessibility of clean water in First Nations communities?

A: The federal government is currently working on a draft of legislation called the First Nations Clean Water Act (“FNCWA”) or Bill C-61. This legislation is a substantial advancement to improving access to safe drinking water on reserves. The draft legislation proposes to:

1.     Recognize and affirm the inherent right of First Nations to self-government regarding water;

2.     Support First Nations to reclaim jurisdiction in managing their own water systems;

3.     Create pathways to protecting source water;

4.     Support the closing of water service gaps between First Nations and non-First Nations communities;

5.     Create minimum standards for the delivery of drinking water on First Nations lands, based on First Nations’ choice;

6.     Hold the federal government accountable for continued funding investments to support water infrastructure and services in First Nations communities.

The FNCWA is a result of pushback from the Assembly of First Nations (“AFN”) regarding the 2013 Safe Drinking Water for First Nations Act. The AFN had several concerns about the 2013 act, including:

1.     Lack of adequate, predictable, and sustainable funding

2.     Lack of recognition of Aboriginal rights

3.     Possible infringement of Aboriginal and treaty rights

4.     No protection of source water; and

5.     Insufficient engagement on water issues that directly impact First Nations communities.

The resistance by the AFN successfully resulted in the government repealing the 2013 act. It appears that the government has since incorporated the feedback and addressed these concerns in the FNCWA. The FNCWA has yet to be passed. It underwent review and consultation with First Nations rights-holders, First Nations organizers, as well as provinces and territories in 2023.

In addition to enacting legislation, the federal government has made significant investments to end drinking water advisories. It was reported in 2024 that the $7.1 billion in investments from the federal government has led to:

1.     Ending 145 long-term drinking water advisories on Indigenous reserves;

2.     Lifting 1354 water infrastructure drinking water advisories; and

3.     Preventing 285 short-term drinking water advisories from becoming long-term.

Nonetheless, the reported goal of the federal government in 2015 was to eliminate all long-term drinking water advisories by March 2021. While the progress made is significant, there are still communities that have long been without access to clean water.

Q: What other actions have been taken by Indigenous Peoples to improve access to safe water?

A: In 2019, the Tataskweyak Cree Nation, Curve Lake First Nation, and Neskantaga First Nation began legal action against Canada in a class action lawsuit on behalf of all First Nations members living both on and off reserves who had experienced a drinking water advisory for at least one year since 1995. Canada and the First Nations group reached a settlement agreement in 2021 titled “The Safe Drinking Water for First Nations Class Action Settlement Agreement”. The terms of the settlement agreement stipulated that Canada must pay $1.5 billion in compensation to individuals who were deprived of clean drinking water. The terms also commit Canada to modernizing Canada’s First Nations drinking water legislation in consultation with First Nations people. This is another reason why the government drafted the FNCWA discussed above.

Indigenous Peoples have also mobilized to end drinking water advisories in their communities. Since 2015, the number of active long-term drinking water advisories on First Nations reserves has dropped by 73%. This is due in large part to First Nations communities leading decisions regarding water infrastructure with support from Indigenous Services Canada. For example, as of March 22, 2024, First Nations people had successfully lifted 144 long-term drinking water advisories and prevented over 270 short-term advisories from becoming long-term.

Another example of self-government as it pertains to water infrastructure is the Atlantic First Nations Water Authority Inc. (“AFNWA”). The AFNWA and Indigenous Services Canada signed an agreement in 2020 that gives the AFNWA full autonomy to operate. AFWNA’s mission is to provide safe, clean drinking water and wastewater to all participating First Nations communities in Atlantic Canada. AWFNA is a regional water authority that is owned and operated by First Nations, and is responsible for the operation, maintenance, and upgrades of all water and wastewater assets in the participating communities.

AFNWA represents a new approach to water insecurity, transitioning the power of decision-making regarding water from the federal government to First Nations people. The federal government still has a crucial role in supporting this new approach, as its funding is vital to the overall success of these initiatives. Additionally, due to colonialism’s historic and current impact on the ability of Indigenous Peoples to access clean drinking water, the federal government has a responsibility for continued funding and support, where needed. While the federal government is past its due date for ending long-term drinking water advisories by three years, self-government initiatives such as AFNWA provide hope that Indigenous communities will soon have sustainable, long-term access to safe drinking water.