SUMMARY
Water is life. Nothing is more important than clean water.
Yet, dozens of First Nations communities in Canada do not have access to safe drinking water. There are 32 long-term drinking water advisories in place in 30 First Nations reserves that prohibit drinking the water, and in some cases prohibit using it for any purpose.
The lack of clean, safe drinking water in First Nations is a profound violation of the UN-recognized human right to water and sanitation. Canada recognized and adopted this right in 2012 but has yet to develop any legislative framework to implement it.
Bill C-61 (the First Nations Clean Water Act) could be an important first step towards addressing this fundamental injustice, ensuring that First Nations access to clean drinking water and sanitation is treated as a moral and legal responsibility of the federal government.
However, there are key elements missing from this bill that are necessary to ensure it upholds the right to water, as well as the rights of Indigenous Peoples, including inherent and treaty rights.
Greater control by and for First Nations over water that they possess by reason of traditional ownership or other traditional occupation or use, as well as water which they have otherwise acquired, is a basic step toward reconciliation, a requirement of the UN Declaration of the Rights of Indigenous Peoples (UNDRIP), and a necessary precondition to ending drinking water advisories in First Nations for good.
The federal government has a special responsibility to make sure that people living on First Nations reserves have clean water to drink. The treaties that the Crown signed with First Nations long ago still bind us and they must be honoured.
RECOMMENDATION 1: Bill C-61 must be amended to include upholding the human right to water as a primary feature.
RECOMMENDATION 2: Bill C-61 must uphold and align with the articles of the United Nations Declaration on the Rights of Indigenous Peoples.
RECOMMENDATION 3: Bill C-61 must honour the Treaties with First Nations.
RECOMMENDATION 4: Bill C-61 must ensure adequate funding for water infrastructure and maintenance on an accelerated timeline.
RECOMMENDATION 5: Bill C-61 should be amended to read “the federal government must consult First Nations” rather than the current loophole that calls for “best efforts.”
Tell MPs to protect Indigenous rights and the right to water
MPs are debating Bill C-61 (the First Nations Clean Water Act). Tell them to ensure it delivers clean water instead of broken promises.
RECOMMENDATION 1:
Bill C-61 must be amended to include upholding the human right to water as a primary feature.
Rationale:
Water is part of a shared commons and a human right. Canada has no national strategy to address urgent water issues, leaving it up to communities to defend local waters.
In 2010, the United Nations formally recognized the human right to water and sanitation by passing resolution 64/292. It has subsequently been further defined through several Human Rights Council resolutions. Consensus on the human right to water and sanitation was also established within The Future We Want outcome document adopted at Rio+20 and UN General Assembly resolution 68/157 in 2013.
The reality that most Canadians have access to safe, clean drinking water while many First Nations reserves have had drinking water advisories, some for decades, is a blatant example of environmental racism and ongoing impacts of colonization in Canada.
The human right to water and sanitation is a tool in the fight against a global water crisis produced by abuse of the water commons, privatization, inequality, and social exclusion. As such, its inclusion in Bill C-61 is essential.
Ensuring that the goals and targets in Bill C-61 are rooted in a human rights framework is a vital first step in establishing First Nations as ‘rights holders’ rather than clients or aid recipients. Additionally, it establishes the obligations of the federal government as a duty bearer that cannot pass off its obligations to private corporations, provinces, territories, or municipalities.
RECOMMENDATION 2:
Bill C-61 must uphold and align with the articles of the United Nations Declaration on the Rights of Indigenous Peoples.
Rationale:
The United Nations Declaration on the Rights of Indigenous Peoples is the minimum standard for how states must engage with Indigenous peoples. Adhering to UNDRIP guidelines, as signatory states like Canada have agreed to do, is the absolute least governments can do. Anything less is a gross violation of Indigenous and human rights.
Bill C-61 needs to take an UNDRIP-focused, rights-based approach.
UNDRIP is currently only in the preamble of Bill C-61. The bill must be amended to include UNDRIP in the body, to ensure it is acted on, not just referred to.
Free, prior, and informed consent is a key aspect running through many of the articles of UNDRIP and requires states to obtain such consent from Indigenous peoples, who must have access to all information necessary to make an informed decision about any and all decisions that impact them and their territories.
Although UNDRIP is not legally binding to states, in 2021 the federal government passed its own legislation intended to ensure its laws and policies must be made consistent with UNDRIP – the UN Declaration of the Rights of Indigenous Peoples Act.
So far, the Canadian government has not made any meaningful moves towards compliance with its own law. It must ensure it does so with Bill C-61.
UNDRIP also includes the duty to consult Indigenous peoples.
In keeping with the right to free, prior, and informed consent, Bill C-61 should adopt a mandatory collaborative and community-led approach that centres Indigenous knowledge, values, and perspectives in the development and implementation of long-term solutions to address and end long-term drinking water advisories.
Section 29 of the current version of Bill C-61 outlines Ministerial responsibilities in relation to consulting and cooperating with First Nations bodies, with a view to ensuring First Nations’ laws are respected.
Section 29 of the bill needs to be amended to recognize that First Nations’ laws exist. Bill C-61 must be changed to recognize that First Nations’ laws protect the environment and water as much as the Ministry if not more, because of First Nations’ laws rather than the Minister simply communicating with First Nations bodies.
RECOMMENDATION 3:
Bill C-61 must honour the Treaties with First Nations.
Rationale:
First Nations aren’t just a stakeholder group – they have distinct rights that are different and greater than other community organizations or municipalities. First Nations have inherent and treaty rights and must be treated as full partners, on a Nation-to-Nation basis. Bill C-61 must not undermine or compromise the Nation-to-Nation relationship between First Nations and the Crown or the status of First Nations as rights holders.
Bill C-61 currently requires First Nations to negotiate and reach agreement with provinces in relation to source water protection. This is deeply problematic – it undermines the Nation-to-Nation relationship, and this would be compounded by the reality that water protection is treated differently from province to province.
Bill C-61 must be amended to ensure First Nations will not have to negotiate with provinces and municipalities about their rights, when respecting and upholding those rights is a responsibility of the federal government.
Bill C-61 should support the development of sustainable solutions that address the root causes of long-term drinking water advisories, including adequate funding, regulatory changes, and community-led initiatives that promote local ownership and control.
Respecting treaties with First Nations must extend to the entire territory of First Nations and should not be limited to “water and source water in a protection zone that is adjacent to the First Nation lands of a First Nation”, as the current language states in the bill.
The federal government’s responsibility to provide essential services, including water, is something that is crystallized in treaties with First Nations, as well as the Canadian Constitution. Offloading that responsibility to other levels of government would undermine Indigenous rights and treaties.
RECOMMENDATION 4:
Bill C-61 must ensure adequate funding for water infrastructure and maintenance on an accelerated timeline.
Rationale:
Section 26 in Bill C-61 currently calls for the federal government to make “best efforts” to provide adequate funding for the water needs of First Nations. This section needs to be amended to indicate that the federal government “must” provide the necessary funding, to eliminate a significant loophole.
The legislation needs to ensure the end of drinking water advisories in First Nations. The federal government promised to do so by March 31, 2021. Without mandating the funding to do so, it’s an empty promise and one that so far remains unfulfilled.
While there has been progress in recent years, there are still 32 lo ng-term drinking water advisories on 30 reserves including some that have been in place for more than 25 years. Neskantaga First Nation, for example, has had a drinking water advisory for 29 years and 9 months. There is a deficit in funding for the maintenance and operation of drinking water systems on reserves, which the Parliamentary Budget Officer identified as amounting to $138 million per year.
Bill C-61 must address underlying issues such as inadequate infrastructure, funding, and capacity through long-term commitments and collaborative approaches to end long-term drinking water advisories, with a goal of providing universal, safe, clean drinking water for everyone.
Bill C-61 must ensure equitable access to safe and reliable drinking water through investments in infrastructure, capacity-building, and community-led initiatives that prioritize Indigenous knowledge and values.
Bill C-61 must ensure funding and solutions that guarantee long-term quality and quantity of drinking water, while also supporting First Nations-led training, operation, and maintenance of water facilities on reserves.
As the climate crisis threatens the quantity, quality, and reliability of drinking water across Canada, Bill C-61 must provide adequate funding to provide First Nations with emergency water access during and after climate disasters and to rebuild, upgrade, and improve infrastructure and local capacity to be more resilient to a changing climate.
Additionally, Bill C-61 must provide First Nations with adequate funding and capacity building to fully engage in the research, study, review, and consultation around proposals, permits, and plans that could impact their drinking water source in accordance with UNDRIP.
Additionally, Section 15 of Bill C-61 provides a list of water uses for which there must be a sufficient minimum quantity of water available to meet those needs. This section must be amended to include agriculture and economic development.
These changes are necessary to ensure adequate water availability for First Nations.
RECOMMENDATION 5:
Bill C-61 should be amended to read “the federal government must consult First Nations” rather than the current loophole that calls for “best efforts.”
Sections 26 and 31 of Bill C-61 must be amended to change the current wording that the Minister must make “best efforts” to consult First Nations to recognition that the federal government “must” consult First Nations, especially in matters related to source water protection, Nation-to-Nation relations, jurisdiction, the right to free, prior, and informed consent, and the duty to consult.
The bill should also be amended to add mechanisms to ensure that the duty to consult is upheld in a meaningful way.
In addition to UNDRIP, the federal government itself recognizes that “The Government of Canada has a constitutional duty to consult Indigenous peoples when it considers measures that might adversely impact their potential or established Aboriginal or treaty rights.”
Section 25 of the Canadian constitution protects Aboriginal, treaty and other Indigenous rights and freedoms. Section 35 of the constitution is clear that the federal government has a duty to consult Indigenous peoples about matters that affect them, not simply make “best efforts.”
Bill C-61 needs to be amended to reflect the protections that exist for Indigenous rights in the Canadian constitution.
Conclusion
The introduction of the First Nations Clean Water Act represents a potential advance for the human right to water for First Nations in Canada. It is a crucial opportunity for real and meaningful reconciliation.
It also risks undermining Indigenous rights if it is not amended to align with the UN-recognized human right to water and sanitation, the UN Declaration on the Rights of Indigenous Peoples, and the Canadian constitution.
Only through an approach that recognizes and respects the rights of Indigenous peoples will the federal government have the foundational approach necessary to uphold the right to water for all.
These are the key reasons why the Council is making these recommendations for amendments.
To solidify this advance for First Nations’ right to water, these recommendations must be incorporated into Bill C-61.
About the Council of Canadians
The Council of Canadians is a grassroots national organization with over 140,000 members and supporters organized in 42 chapters across Canada.
A strong voice for the human right to water, the Council has been organizing for and demanding the human right to water and sanitation for decades, including playing a key role in winning its recognition at the United Nations.
The Council helped lead the international campaign for the historic 2010 UN resolution affirming the Human Right to Water and Sanitation and continues to work with allied organizations and affected communities to ensure its realization.
The Council of Canadians fights for safe, clean water for everyone. We support Indigenous peoples’ right to self-government and self-determination.
For the past several years, the Council has been supporting young students across Canada in sending ‘Water Drops’– creative messages in support of First Nations’ right to clean drinking water – to the Prime Minister.
Thousands of Water Drops and more than 47,000 emails have been delivered to the Prime Minister’s Office, demanding the government keep its promise to end all drinking water advisories for all First Nations, once and for all.
The Council of Canadians fights to protect Canada’s freshwater sources from pollution, privatization, and government neglect. Our campaign work focuses on recognizing water as part of a shared commons and a human right.
Water is a human right, a public trust, and part of the global commons. For the past several decades public and community management of water services and resources have been undermined by austerity and under threat from privatization. The global water crisis will only worsen if water is increasingly abused for profit. We must not allow this to continue.
Canada has no national strategy to address urgent water issues, leaving it up to communities to defend local waters. We support these Public Water Champions nationwide, mobilizing our tens of thousands of supporters and volunteer chapters. We encourage community empowerment and involvement through our “Blue Communities Project.”
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