OPINION: Bill C-61 Continues to Muddy the Reconciliation Waters

In its current form, the First Nations Clean Water Act reveals troubling gaps between promises and practice.

Last month, Indigenous Services Minister Patty Hajdu warned that we are in a “race against time” to pass Bill C-61, or the First Nations Clean Water Act. But is this legislation, as it stands, truly worth the rush?

The journey to this point offers little reassurance.

While most in Canada have long had access to safe, clean drinking water in their homes, Indigenous communities have faced persistent boil-water advisories. Some have been in place for decades.

In the Neskantaga First Nation in northern Ontario, for example, the boil water advisory has been in place for 29 years and counting. Drinking directly from the tap causes nausea, headaches, and diarrhea; taking a shower in untreated water causes skin lesions. Members of the First Nation are feeling these physical effects, as well as anxiety, distrust, and exhaustion, as they constantly think about water, how and when they will get it, and whether it will be safe when they do.

The crisis is not limited to rural or remote communities. The Okanagan Indian Band, whose reserves are adjacent to some of the more populous cities in British Columbia, had only four years between 2005 and 2022 free from water advisories.

At any point in the past thirty years, there have consistently been at least 100 water advisories in place for First Nations communities. Compared to other Canadians, Indigenous people living on reserve are 90 times more likely to be without running water and 26 times more likely to be exposed to waterborne disease.

In the lead up to the 2015 election, Justin Trudeau committed to ending boil-water advisories on reserves within five years. Nearly ten years have now passed, and 31 long-term advisories remain in effect in 29 communities. The Government of Canada reports an additional 44 short-term advisories in First Nations communities, but this count excludes the territories and British Columbia.

In response to the Government’s failure, the Neskantaga First Nation, Curve Lake First Nation, and Tataskweyak Cree Nation, on behalf of First Nations across the country, launched a lawsuit. It is because of this lawsuit that we have Bill C-61. As part of an agreement to settle the claim, the Government of Canada agreed to repeal the law that then regulated water for First Nations and introduce new legislation by December 2022.

Again, these commitments were not honoured. The Government did not share a draft version of Bill C-61 until February 2023, and only after First Nations returned to court to have the term of the settlement agreement enforced.

Though the government has touted Bill C-61 as “the first piece of truly co-developed legislation between Canada and First Nations,” First Nations themselves have denied this characterization. The Chiefs Steering Committee, representing 47 First Nations in the Alberta region, states that they were not provided an opportunity to discuss the content of the legislation. The Chiefs Steering Committee further alleges that the Assembly of First Nations (AFN), a national First Nations advocacy organization, is being used to “manufacture consent instead of direct engagement and meaningful dialogue.” The British Columbia Assembly of First Nations notes that the AFN has not “shared the pen” on the legislation, and collaboration with the AFN does not replace Canada’s duty to consult with First Nations directly.

This is a major concern. The United Nations Declaration on the Rights of Indigenous Peoples, which Canada vowed to implement by passing the UN Declaration Act in 2021, states that governments must consult and cooperate with Indigenous peoples prior to adopting legislation that may affect them.

Unfortunately, the concerns surrounding Bill C-61 go beyond how it was developed. Its contents also raise several pressing issues.

Bill C-61 aims to do several things: recognize that water on, in, and under reserve land is part of that reserve land, affirm First Nations’ right to govern all aspects of water on their land, set minimum standards for water quality and quantity on reserve, commit government funding to water infrastructure, and create a First Nations Water Commission.

In actuality, however, the Bill only requires Canada to make “best efforts” to ensure that access to clean and safe drinking water is provided. Many First Nations have flagged that this does not create an enforceable obligation, but instead gives Canada the room to claim they are complying with the law while Indigenous peoples remain without water. The Supreme Court of Canada itself has noted (in the treaty context) that Canada “has lost the moral authority to simply say ‘trust us .'”

Additionally, though the Bill seeks to recognize and affirm the inherent right of Indigenous peoples to self-government in relation to water, it limits the application of this right to First Nations land and source water that is ‘adjacent’ to First Nations land. If First Nations land is interpreted narrowly to mean reserve land, First Nations will have little power to prevent water pollution and extraction beyond the borders of their reserves that were imposed by the government in the first place. This does not respect treaty rights and other rights of Indigenous peoples, nor how water flows.

To be sure, legislation committing Canada to the provision of clean water for First Nations and affirming their right to self-manage this vital resource is welcome. Bill C-61 has the potential to move Canada a meaningful step forward. However, its shortcomings must be addressed.

As Minister Hajdu noted, the Bill has not passed yet. It is not too late to reach out to your local Member of Parliament and urge them to amend the Bill to better meet the needs of Indigenous people and ensure Canada is living up to its obligations.