Bill C-61

First Nations Clean Water Act

An Act respecting water, source water, drinking water, wastewater and related infrastructure on First Nation lands

This enactment affirms that the inherent right to self-government, recognized and affirmed by section 35 of the Constitution Act, 1982 , includes the jurisdiction of First Nations in relation to water, source water, drinking water, wastewater and related infrastructure on, in and under First Nation lands. It sets out principles, such as substantive equality, to guide the provision for First Nations of clean and safe drinking water and the effective treatment and disposal of wastewater on First Nation lands. It provides for minimum standards for water quality and quantity and wastewater effluent. It also provides pathways to facilitate source water protection.

[Lori Idlout, NDP, Nunavut, NU]

[Member spoke in Inuktitut, interpreted as follows:]

Thank you, Mr. Chair.

Thank you for explaining a lot of the things that we had questions about. The federal government had policies, and they should have honoured the treaties that they agreed to and followed them.

Did you want to say something to the federal government? I understand that you do not want to see Bill C-61 passed. I want to hear from you any time as an indigenous person. You have a voice that is very important. I would like you to make your final statement so that we can fully understand your concerns, and it will help us also to understand it better.

[Sébastien Lemire, Bloc, Abitibi—Témiscamingue, QC]

I want to touch on one last matter, the First Nations Water Commission.

Do you believe that a commission tasked with considering the issues that may arise from Bill C‑61 needs to hear the concerns of first nations? Do you believe that first nations should play an integral role in this commission so that people representing this point of view are around the table?

[Sébastien Lemire, Bloc, Abitibi—Témiscamingue, QC]

Thank you, Mr. Chair.

Chief Tuccaro, thank you for joining us and informing us of the impact of this situation in your area.

While listening to your opening remarks, I was particularly struck by your comments regarding the proximity of the oil sands and the potential impact on the resource. In my view, source water protection is a key factor.

You're opposed to the bill before us. However, it's our duty as parliamentarians to suggest ways to improve the bill. Subsection 19(2) of the bill doesn't seem to provide for source water protection. As a result, first nations wouldn't be able to draft legislation to protect source water on or near their ancestral land. I think that we should ensure that first nations have the power to do so. We could strengthen certain articles to that effect.

Do you think that it would be appropriate to add a protection zone, established by first nations, and to ensure better coordination in order to hold companies—such as the oil sands operators in your area—liable if they pollute the resource or if the resource is no longer usable? In this case, the polluter would also be held liable. What do you think about this?

[Martin Shields, Conservative, Bow River, AB]

If you were to have the ability.... Let's say you had your wish granted to drop Bill C-61. What kind of process do you see working as far as consultation is concerned? What would work that you believe hasn't occurred before and needs to occur?

If you throw out Bill C-61 and you get your wish, what would the process look like for you?

[Martin Shields, Conservative, Bow River, AB]

You have made a number of statements about Bill C-61 and I think you're pretty clear on this. You think this piece of legislation should just be dropped. You're replacing it completely with statements that you've made about other documents, like the United Nations document.

Is that the way you see that it would be best to go forward? Is it to just absolutely drop this piece of legislation and replace it with something totally different?

[Martin Shields, Conservative, Bow River, AB]

Thank you, Mr. Chair.

Thank you for being here today. I really appreciate hearing from you and being part of this discussion about Bill C-61.

One thing that you've submitted is a letter from back in June where you took note of Minister Hajdu's statements in December introducing a bill whereby she wrongly used your nation's experience without consent or having consulted your nation through your authorized representatives on this legislation. I think consultation is something I've asked about before. You're even objecting to your name being used by the minister because you didn't feel that she had the right to use it and had no consent.

Is this some of the anger that I'm obviously seeing in what you believe about this legislation and how you have been misrepresented in this process?

[Chief Billy-Joe Tuccaro, Mikisew Cree First Nation]

Good morning, everyone. Thanks for having me. It's a beautiful morning here in northeastern Alberta.

First of all, I'd like to thank the honourable members for allowing me to speak today.

My name is Billy-Joe Tuccaro. I'm the chief of Mikisew Cree First Nation. Mikisew's territory is located in what you know as northeastern Alberta. Our land includes the Peace-Athabasca delta and Wood Buffalo National Park, a UNESCO world heritage site. This is where our people have lived since time immemorial, where the Peace and Athabasca rivers meet and eventually enter Lake Athabasca.

Many of you know Mikisew because we are downstream from the Athabasca oil sands or because we have been raising alarm bells about our community's cancer rates, which we believe are coming from the fish we eat, the water we drink and the medicines we harvest. I have spoken at a committee in the past for Imperial Kearl and the freshwater study. I explained how, for our people, water is boss. I explained how our women have jurisdiction over water, and because they were excluded from treaty-making, we never treatied our water. The water in Treaty 8 is, in your words, “unsurrendered”.

Today, I should be speaking to you about our existing jurisdiction and honouring the treaty. Instead, I'm here to talk to you about your legislation, Bill C-61, and what it will impose on us.

In a nutshell, Bill C-61 may sound better than the Indian Act, but it does the same thing. We are asking for an end to this colonization through legislation. Please reject Bill C-61.

To support this request, I will raise four issues.

First and foremost, I am here to remind you about our treaty. The treaty is why we are all here today. Our ancestors agreed to share the land with the Crown. No legislation can supersede this promise.

Second, I would like to talk about what Bill C-61 calls “source water”. It is absurd to think that a federal regulation can displace the province's full control over our water, for example in the granting of water licences to withdraw and release industrial waste water. Why is the province in the driver's seat? Nowhere in Canada's Constitution does it say the province has all jurisdiction over water. I am told that Alberta's jurisdiction has evolved from powers over property rights and local works. Meanwhile, the Constitution says that the federal government has jurisdiction over fisheries and navigable waters, yet Canada has failed us by surrendering regulatory control over source water to Alberta.

By looking at the oil sands, I can explain this problem. The tailings ponds are the largest industrial waste site in the world. We have learned from operators' reports submitted to the Alberta Energy Regulator that tailings toxins are seeping into the muskeg, groundwater and rivers, including the Athabasca River, where our drinking water comes from. Canada and Alberta know about this. The tailings contain at least 1.4 trillion litres of toxic fluid. Alberta and Canada intend to treat and release much of these tailings into the Athabasca River, which is totally uncalled for.

Bill C-61 won't do a single thing to stop the treatment and release of toxins into our so-called source water, so again, let's go back to treaty, the natural resources transfer acts and the Constitution. None of that gave Canada or Alberta jurisdiction to do what they are doing with our water.

Third, where is the human right to water? The UN special rapporteur on the human rights to safe drinking water called on Canada in April to constitutionally recognize this internationally protected right. Let's do that instead of Bill C-61.

I might also add, where I live in Fort Chipewyan, it's now $30 for a flat of water. I was just recently down south and I purchased a flat of water for $4.99.

Fourth, what about our laws? Bill C-61 claims to recognize our self-government. This bill does no such thing. If we decide to pass a law under Bill C-61, the minister's regulations will become our law on reserve. This is one reason we say Bill C-61 is like the Indian Act. It imposes federal law on us, disguised as a promise of self-government.

We will not let this happen again.

Thank you.

[Lori Idlout, NDP, Nunavut, NU]

[Member spoke in Inuktitut, interpreted as follows:]

Thank you, Mr. Chair.

I will ask you.... It says that you will receive.... There are two restrictions we are thinking about, and we're looking for the best solution. If you have to negotiate with the policy-makers or the committee regarding the jurisdictions that you're responsible for....

[English]

I'm going to switch to English, because it's not being interpreted correctly.

My question is for the chiefs. Bill C-61 will allow you to negotiate with provinces regarding source water. My question to you is this: What do you foresee will be the challenges to negotiate with provinces on source water?

[Jenica Atwin, Liberal, Fredericton, NB]

Thank you very much, Mr. Chair.

Thank you to our witnesses for being with us today.

Right off the top, Chief Mykat, I absolutely believe in the inherent right to clean drinking water. That's one of the reasons I ran to be involved in politics. It was 2019 when I first got here. Sadly, it's taken this long to get to this point, but I am so excited as well to get to the amendment process, because we have heard incredible testimony from incredible leaders like yourself. Your voices will be heard and will be represented in this bill because it's about you and your people.

Also, I just want to thank our witness as well who's online. The pictures of the children behind you really remind us what this is about. We can't necessarily go back in time for those who have been dealing with this for far too long, but we're going to fix this for the children, moving ahead.

I wanted to ask this, through your counsel today. In a letter sent to our committee, the Alberta environment minister, Rebecca Schulz, encouraged us as a committee “to consider the roles provinces and territories have as leaders, collaborators, and stewards of water that they own and regulate, as it works through its mandate.” The letter goes on to say, “The federal government's role should complement—not conflict with—provincial responsibilities. Bill C-61's provisions on source water generally and source water protection zones must be carefully considered to avoid exceeding the federal power to legislate as well as jurisdictional conflicts.”

Would you say that Alberta's government's actions to protect source water are those of “leaders, collaborators, and stewards”?

[Lori Idlout, NDP, Nunavut, NU]

I apologize. I don't think my intervention was properly interpreted into English. I was asking about jurisdiction.

I shared that I very much appreciated how, when Bill C-61 was first tabled, your office and the first nations you work with reached out to us—all MPs—right away and provided very tangible recommendations, as I understand, to improve the bill. These improvements will help make the lives of first nations healthier.

One of the recommendations that were made to us was about the fact that there are concerns regarding jurisdiction. I wonder if you could share with us the importance of jurisdiction, especially knowing that jurisdiction was stolen from first nations. Bill C-61 is looking to return that jurisdiction to first nations, yet it doesn't ensure there's full implementation of the allowability for actual jurisdiction.

If you could speak about that, I would very much appreciate it.

[Lori Idlout, NDP, Nunavut, NU]

[Member spoke in Inuktitut, interpreted as follows:]

Thank you for replying. I'm very happy to hear that.

I will ask other people. I will ask Clayton.

Regarding Bill C-61 when it was introduced, I thank you wholeheartedly, because you consulted with us right away and gave us the outline and the problems identified, and what needed to be added and what needed to be amended in the policy, because the rights of indigenous people had to be in conformity with everything. The rights that we had were taken from indigenous people. We knew how to run our own affairs, but that was taken away from us.

Bill C-61 wants to return the rights of the indigenous people regarding water management. What else do you have to amend if indigenous people are going to be governing and running this management and policy?

[Dr. Wilton Littlechild]

I think that it's one thing to attend the Permanent Forum or the UN Expert Mechanism on the Rights of Indigenous Peoples to hear voices from around the world, especially those from Canada. However, what's lacking is an implementation follow-up mechanism.

Yes, it's great. In fact, I was there yesterday. I just came from the United Nations last night to be here. What is missing is opportunities like this. There is no committee, for example, directly on the international obligations of Canada with respect to indigenous peoples here in the House of Commons or in the Senate. It would be very important, I think, to have your committee, for example, have a standing agenda item on follow-up to the UN discussions, follow-up to the UN recommendations or advice to the Human Rights Council, for example, just last week in Geneva.

I think it's important. If you want to engage the UN declaration in Bill C-61, those discussions would help us collectively if there were a mechanism like this one this morning to share information and exchange proposals or ideas to ensure that we're working together going forward—indigenous, non-indigenous—regarding treaty relations—

[Martin Shields, Conservative, Bow River, AB]

Thank you, Mr. Chair.

Thank you to our witnesses for being here today. I very much appreciate it.

One of the first things you talked about was a long history. Can you describe the consultation process for the development of Bill C-61? Can you go through what the consultation was with you?

[Chief Joel Mykat]

I need to be clear and firm on this issue. Canada has violated the treaty and the human rights of our families, children and elders by failing to act on the unsafe drinking water crisis at Ermineskin. Our long and patient effort to work with Canada on solutions, including this bill, has only resulted in more inaction, failure and half measures.

The Ermineskin Cree Nation has had enough. We will carry through our litigation against Canada until first nations' right to safe drinking water is the law and every person at Ermineskin can turn on the tap in their home, office or school and not worry about whether the water threatens their health and well-being.

Amending Bill C-61 to recognize first nations' right to safe drinking water is a requirement that is long overdue. This would also be a positive step toward resolving Ermineskin's case against Canada and maybe similar lawsuits like those of Shamattawa and Six Nations. Real reconciliation starts with ending Canada's violation of our treaty and every first nation's right to safe drinking water.

I'm not sure if I am allowed to ask committee members questions, but I will anyway. Ermineskin and probably all first nations want to hear from each of you if you support our right to safe drinking water.

[Grand Chief Craig Makinaw, Councillor, Ermineskin Cree Nation]

Good morning. I'd like to make some comments this morning.

In 2010, Canada conducted the national assessment of first nations water and waste-water systems. At Ermineskin, the assessment found that our water treatment plant, built in the 1970s, failed to meet drinking water standards and badly needed to be replaced. The plant is still operating.

About 70% of our families are not connected to the treatment plant. They get water from about 500 rural wells. The assessment found that every single tested well failed to meet the health requirements of drinking water standards. Fecal coliforms and E. coli were common. Canada was informed that an investment of about $80 million was needed at Ermineskin so our people could access safe drinking water. To this date, Canada has failed to implement any of the key recommendations of the assessment, with awful consequences.

From 2010 to 2022, there have been 361 drinking water advisories on about 500 wells, or 73% of our homes. Even worse, 232 of those drinking water advisories were longer than a year and almost 80 are effectively permanent. Three families even live with “do not consume” orders on their wells. These records have been provided to the committee.

Ermineskin, for our part, has invested lots of time, energy and resources trying to find a solution. When Canada failed to act on the 2010 assessment, Ermineskin started one of the first legal actions on safe drinking water in 2014. We willingly put the litigation in abeyance to work with Canada to find solutions. Canada first tried to push the cheapest short-term solution possible. After four years, Canada finally agreed to apply the Canadian drinking water guidelines and study what is actually needed to ensure safe drinking water for our people.

The negotiations ended earlier this year because Canada said the 361 drinking water advisories didn't matter because they are on wells and not on our water plant. Canada refuses to fund the solution recommended by qualified engineers that is needed to get safe drinking water to all of the families at Ermineskin, which is centrally treated water piped to all of our homes. Ten years of negotiations ended in February when Canada effectively said, “too bad”.

Despite the frustration and the complete lack of action by Canada on our drinking water systems, Ermineskin invested heavily in engagement on Bill C-61. We were hopeful when Canada told us at the first meeting, in September 2022, that it wanted to develop new legislation to finally address unsafe drinking water at Ermineskin and all first nations. Canada told us, according to its own document, “We are committed to...affirm and recognize the rights of First Nations”. Specifically, Canada said it intended to address the “non-recognition of First Nations water rights” in former legislation. Finally, we thought Canada was ready to do what's needed and to do what's right: to recognize that first nations have a right to safe drinking water. After all, the bill is about safe drinking water.

Ermineskin worked with Dr. Littlechild, a leading expert on the UN declaration, and with Professor David Percy, former dean of law at the University of Alberta, Canada's leading water law expert and adviser to the Waitangi Tribunal on Maori water rights, so that we could provide Canada with the best possible input. We held five all-day council sessions on the bill, met many times with Canada and provided six written submissions on the bill.

Although we are pleased that it recognizes that our water is part of our reserve land and that we have a broader right of self-government over our water, Canada has failed on the most important issue. A law meant to ensure that first nations have access to safe drinking water must recognize our right to safe drinking water.

Many first nations, including Ermineskin, have suffered too long from Canada's “best efforts”. It is absolutely critical that Bill C-61 recognize that first nations have a right to safe drinking water.

Chief Mykat will provide final comments.