By: Nigel Bankes and Martin Olszynski

Matter Commented On: Bill C-61, An Act respecting water, source water, drinking water, wastewater and related infrastructure on First Nation lands, First Session, Forty-fourth Parliament, 70-71 Elizabeth II – 1-2-3 Charles III, 2021-2022-2023-2024

PDF Version: Who’s Afraid of the Proposed First Nations Clean Water Act?

On June 30, Alberta’s Minister of Environment and Protected Areas and Ontario’s Minister of Environment Conservation and Parks penned a remarkable letter to their federal counterpart, Ms. Julie Dabrusin, Minister of Environment and Climate Change (for Alberta’s Press Release see here). The joint letter asserted that “Canada is poised to be an economic superpower, but achieving that potential depends on strong, constitutionally grounded provincial authority over resource development and environmental management.” With that as the premise, the two Ministers went on to indicate that they had a number of “urgent requests” that they would like to discuss “immediately” with their federal counterpart, namely:

  • Repealing the Impact Assessment Act and the Physical Activities Regulations.
  • Repealing the Clean Electricity Regulations.
  • Repealing the Greenhouse Gas Pollution Pricing Act and associated regulations.
  • Amending the Species at Risk Act to respect the constitutional jurisdiction of the
  • Suspending the proposed Oil and Gas Sector Greenhouse Gas Emissions Cap Regulation.
  • Undertaking to refrain from reintroducing Bill C-61: An Act respecting water, source water, drinking water, wastewater, and related infrastructure on First Nation lands.

The letter concluded by noting that these were all “critical points that must be addressed in order to reset the relationship between Ottawa and our provinces.”

The hectoring language would be familiar even to a new federal Minister of the Environment, and we suspect that most of the demands, or some variant thereof, would also be familiar. But one of the demands stands out, partly because of its effrontery and sheer gall, but also because of the subject matter, specifically the request for an undertaking to refrain from reintroducing Bill C-61: An Act respecting water, source water, drinking water, wastewater, and related infrastructure on First Nation lands (the short title of the Bill is reflected in the title to this this post, First Nations Clean Water Act). This important Bill had cleared the House of Commons, including a review by the Standing Committee on Indigenous and Northern Affairs, in December 2024 but it died on the order paper with the prorogation of parliament and the federal election.

Who could possibly be opposed to a Bill that included amongst its purposes the objective of ensuring “that First Nations have reliable access to a sufficient, adequate and safe quantity and quality of drinking water — and reliable access to effective treatment and disposal of wastewater” (section 4(a))? Why would a request that the federal government not reintroduce Bill C-61 be such a key demand for these two provinces? The letter itself provides no reasons, and we note that while the Government of Ontario provided a brief to the Standing Committee, Alberta did not avail itself of that opportunity.

First Nations in Alberta and Ontario, as well as many in civil society, were quick to condemn the letter (see here and here). We have not seen any further response from Alberta, but Ontario’s Minister, Todd McCarthy, has issued a “clarification” as reported by the CBC here:

McCarthy’s office said the intention of the letter was to make clear that Ottawa needs to ensure a “regulatory environment that supports economic growth.”

“Ontario has always supported the right to clean drinking water in all First Nations communities,” said McCarthy’s spokesman, Alexandru Cioban.

“Ontario strongly believes this is not an either-or proposition: we can and need to bring clean drinking water to First Nations communities while also bringing regulatory certainty that attracts investment.”

But the offered clarification (the need for regulatory certainty) is hardly convincing, and it seems far more likely that the two provinces are concerned with the provisions of the Bill that affirm the self-governing powers of the Nations, especially with respect to the protection of source water. This is because such authority is unlikely to align with the provinces’ own cost-benefit analyses when it comes to such matters (as noted during the hearings for Bill C-61, further discussed below).

The reality, however, is that those provisions are relatively weak compared with the self-government recognition model adopted in An Act respecting First Nations, Inuit and Métis children, youth and families, SC 2019, c 24 (FNIM Act) and affirmed by the Supreme Court of Canada in the Reference opinion on that Act 2024 SCC 5 (CanLII). To demonstrate this, we will summarize the elements of Bill C-61 that deal with the recognition of First Nation self-governance and the protection of source water, and then compare these provisions with the approach of the FNIM Act. We conclude by recommending that, when Bill C-61 is re-introduced, consideration be given to strengthening the legislation, by cleaving more closely to the FNIM Act model. Before discussing the Bill however, it is important that we provide our view on the federal government’s jurisdiction to make laws to protect source water quality for First Nations.

Federal Jurisdiction to Protect Source Water Quality for First Nations

In Reference re Impact Assessment Act, 2023 SCC 23 (Reference re IAA), which has clearly and predictably emboldened provinces and economic sectors that have long sought to dismantle the federal environmental law regime, the majority acknowledged that natural resource development and land-use decisions can trigger Parliament’s jurisdiction pursuant to section 91(24) (at para 196):

…the unique position of Indigenous peoples means that designated projects [i.e., major resource projects] may affect them differently than other residents of a province and that, by virtue of s. 91(24) of the Constitution Act, 1867, the federal government is “vested with primary constitutional responsibility for securing the welfare” of Indigenous peoples (Delgamuukw v. British Columbia, 1997 CanLII 302 (SCC), [1997] 3 SCR 1010, at para 176).

(See also Friends of the Oldman River Society v. Canada (Minister of Transport), 1992 CanLII 110 (SCC), [1992] 1 SCR 3, at 44: “There can be no serious doubt that the Oldman River Dam project may have an environmental effect on an area of federal responsibility, including… navigation, Indians, lands reserved for the Indians and inland fisheries.” (emphasis added))

The problem with the IAA, according to the majority, was that it captured “trivial or non-adverse impacts” within its scope, contrary to the purpose of section 91(24) (Reference re: IAA at para 200).

Whatever the merits of that position (see posts here and here), it is indisputable that the drinking water crisis experienced uniquely by Indigenous peoples in Canada has been – and continues to be – neither trivial nor non-adverse (see e.g here). It can also be considered settled, since the Walkerton tragedy, that an effective approach to safeguarding drinking water includes source water protection, which, in addition to water treatment, is “concerned with protecting water resources that are designated for human use” (see David Hillier “Identifying Best Practices for Source Water Protection in Canada: A Comparison of Watershed Governance in Ontario, Alberta and B.C.” (2020) 33 J. Env. L. & Prac. 257 at 259 – 260).

It therefore follows that Parliament can rely on its authority pursuant to section 91(24) to enact laws to ensure clean water for Indigenous peoples, including source water protection, because there is a painfully clear connection between such laws and the welfare of Indigenous peoples.

Bill C-61 and the Protection of Source Water and Recognition of the Right of Self-Government

Bill C-61 has six purposes:

(a)?ensure that First Nations have reliable access to a sufficient, adequate and safe quantity and quality of drinking water — and reliable access to effective treatment and disposal of wastewater — to assist First Nations in achieving the highest attainable standard of health, safety and well-being;

(b)?affirm the inherent right of First Nations to self-government, which includes jurisdiction in relation to water, source water, drinking water, wastewater and related infrastructure on, in and under First Nation lands, and in relation to water and source water in protection zones;

(c)?ensure that laws in relation to water services on First Nation lands, and policies and practices implementing those laws, are consistent with section 35 of the Constitution Act, 1982 and the United Nations Declaration on the Rights of Indigenous Peoples, which must be meaningfully recognized and implemented;

(d)?establish principles applicable to decision making regarding water services on First Nation lands, minimum national standards for the provision of water services on First Nation lands and a federal regulatory regime respecting those services;

(e)?facilitate the closing of the gaps with respect to infrastructure, socio-economic status, governance and health and well-being in relation to water services between First Nations persons and persons in non-Indigenous communities; and

(f)? ensure that the Government of Canada facilitates collaboration between First Nations and federal, provincial, territorial and municipal governments through transboundary source water protection planning and the entering into of agreements to protect source water. (Underlined text reflects insertions made at the Committee stage.)

Of these six purposes two refer explicitly to source water (paras (b) and (f)) and one refers explicitly to self-government (para (b)). Both ideas are also conjoined and reflected in section 6(1):

6?(1)?For greater certainty, the inherent right of self-government recognized and affirmed by section 35 of the Constitution Act, 1982 includes jurisdiction in relation to

(a)?water, source water, drinking water, wastewater and related infrastructure on, in and under First Nation lands; and

(b)?water and source water in a protection zone, if a First Nation governing body, the Government of Canada and the government of the province or territory in which the protection zone is located have agreed on an approach to coordinate the application of the First Nation laws of that First Nation, federal laws and the laws of that province or territory in respect of the water and source water in the protection zone.

(Underlined text reflects insertions made at the Committee stage. For a good overview of the nature and scope of Indigenous rights in relation to water, see Monique M. Passelac-Ross & Christina M. Smith, “Defining Aboriginal Rights to Water in Alberta: Do They Still “Exist”? How Extensive are They?” Occasional Paper No. 29 (Calgary: Canadian Institute of Resources Law, 2010)

The Bill does not define source water, but it does allow Governor in Council to make regulations for “the protection of source water, including source water protection plans and the maintenance and clean-up of source water”. (section 19(1)(b))

The Bill defines First Nation lands as the “lands of a First Nation that are referred to in Class 24 of section 91 of the Constitution Act, 1867 and includes water and source water on, in and under those lands. They do not include lands over which Aboriginal title is claimed by a First Nation or has been confirmed by a court.?” This is a curious and ultimately narrow definition insofar as it purports to rely on the constitutional language of “lands reserved”, but then expressly excludes Aboriginal title lands, even though both the Privy Council and the Supreme Court of Canada accept that such lands are “lands reserved” for the purposes of section 91(24) of the Constitution: see St Catherine’s Milling Case, (1889) 14 AC 46 (JCPC) (available on BAILII) and Delgamuukw v British Columbia, 1997 CanLII 302 (SCC), [1997] 3 SCR 1010, at paras 173 – 178). In more descriptive terms, First Nation lands for the purposes of the Bill means Indian reserves under the Indian Act and as Nation lands (however so defined) under the terms of a modern treaty or land claims agreement between a Nation and the Crown.

The result of narrowing the definition of First Nation lands is to create a two-tier structure for Nation self-governing powers in relation to the protection of source water. The first tier recognizes an automatic and immediate power of self-government and law-making authority in relation to water “on, in and under First Nation lands” (section 6(1)(a) as quoted above). The second tier is evidently conditional on the existence of an agreement (or at least an agreed-upon approach to the coordination of laws) between Canada, a First Nation governing body, and the province or territory in which the protection zone is located: (section 6(1)(b) as quoted above). This suggests that while the opening language of the section describes both tiers as forms of “inherent” self-government rights, the second tier seems far from inherent. The second tier also appears to borrow from the decades-old and generally failed approach taken under Part II of the Canada Water Act, RSC 1985, c C-11, pursuant to which the federal and provincial governments may enter into “water quality management” agreements but never have.

While section 6 indicates that protection zones require some form or agreement or agreed-upon approach, section 21, combined with the definition section (where a protection zone is “defined” as “having the meaning assigned by regulations”), is somewhat more prescriptive – but only as to timing:

21?(1)?The Minister must make regulations defining “protection zone” for the purposes of this Act. In making such a regulation, the Minister must consider how a protection zone is to be connected to First Nation lands.

(2)?Before making a regulation under subsection (1), the Minister must consult and cooperate with First Nation governing bodies, federal ministers and the governments of the provinces and territories.

(3)?In relation to a regulation made under subsection (1), the Minister must begin consultation and cooperation to enter into agreements with First Nation governing bodies, and the governments of provinces and territories in defining “protection zone” no later than the last day of the sixth month after the month in which this section comes into force in a manner that is consistent with the articles of the United Nations Declaration on the Rights of Indigenous Peoples and respecting provincial and territorial jurisdiction.

(Underlined text reflects insertions made at the Committee stage; section headings omitted. Many witnesses before the Committee noted that there was no real definition of what was contemplated by a protection zone.)

But while the section establishes a starting point for what will be many, many tables of negotiations, the section cannot mandate an outcome. Furthermore, the power to enter into agreements dealing with source water protection uses the permissive “may”:

25?(1)?The Minister may enter into an agreement with a First Nation governing body, a provincial, territorial or municipal government or any public body acting under the authority of the First Nation in respect of

(a)?the protection of source water, including measures relating to its protection from negative effects and to planning, monitoring and reporting in respect of its protection;

….

This analysis leads to two main observations. The first observation is that to the extent that the governments of Alberta and Ontario oppose Bill-61 on the grounds that it recognizes Nation source-water protection rights off-reserve, they clearly overstate the risk of any perceived incursion on any claimed “exclusive” provincial law-making authority. We say this simply because off-reserve Nation self-governing and law-making powers, at least as exercised under the Bill, are conditional upon the identification of a protection zone and an agreement or an agreed-upon approach with the relevant provincial government. The second observation is a corollary of the first and is more of a question: if the recognition of off-reserve law-making powers for source water protection is conditional, can the Bill really achieve its advertised purposes? Many witnesses before the Committee fastened on this point. For example, Chief Sheldon Sunshine of the Sturgeon Lakw Cree First Nation observed that:

Canada is boastful about protection zones—concepts set out in this legislation. In theory, this can hopefully be an improvement over the status quo, but only—and I emphasize “only”—if you have a willing government partner. This is a bit of fantasyland thinking. There is nothing binding in this concept. It has no legal obligations and no teeth.

What happens if you don’t have a willing government partner? First nations in the Alberta region have been left out of significant water planning initiatives in the province of Alberta, and Bill C-61 and the addition of protection zones provide no assurance of this changing. This is our current reality in Alberta …

Meeting 121, October 3, 2024 at 08.30; and see, to the same effect, Chief Henry Lewis of the Onion Lake Cree First Nation at 09.50

The FNIM Act Approach

For present purposes, it is enough to say that the FNIM Act does three things (for more detailed commentary see Robert Hamilton’s post here). First, it affirms that the inherent right of self-government “includes jurisdiction in relation to child and family services, including legislative authority in relation to those services and authority to administer and enforce laws made under that legislative authority.” (section 18(1)) Second, before exercising that inherent right an Indigenous group, community or people seeking to take advantage of the mechanism provided by the Act, must give notice to the relevant federal and provincial governments with a view to negotiating a coordination agreement (section 20). Third, laws passed by the group, community or people based on the coordination agreement, or unilaterally where it has not been possible to negotiate such an agreement despite reasonable efforts over a one-year period, shall have the force of federal law and shall trump any conflicting federal or provincial law to the extent of the inconsistency (sections 21 & 22). The Supreme Court of Canada upheld this legislative scheme in the Reference opinion on that Act (above).

As one of us commented at the time, while the FNIM Act is based on the “Indigenous” or “Indians” head of section 91(24) of the Constitution Act, 1867 there is no reason in principle why the “lands reserved” head of that section should not support a similar approach. See “Preliminary Thoughts on the Implications of the Children, Youth and Families Reference for the Lands Reserved Head of Section 91(24)”. In sum, the Reference opinion stands for the proposition that so long as the federal parliament has the power to make a particular type of law (here a law to protect water quality for Indians or lands reserved), then the federal parliament is also entitled to recognize that an Indigenous community can make such a law and confer on such a law the paramountcy that attaches to any valid federal law.

But Bill C-61is far more tentative than the FNIM Act. As we have seen, while it too affirms First Nation self-government powers with respect to the subject of the Act, it falls short of providing an effective implementing mechanism for First Nation laws to address off-reserve source water protection where a provincial government fails to cooperate. In our view, this is a serious weakness in the legislative scheme since it leaves the provinces in charge of source water protection for Indigenous peoples. History demonstrates that provinces cannot be trusted with such an exclusive responsibility, since they frequently succumb to the temptation to put resource development values ahead of protecting clean and potable water sources for Indigenous peoples, as most vividly demonstrated by mercury contamination of important rivers: see Grassy Narrows and Islington Indian Bands Mercury Pollution Claims Settlement Act, SC 1986, c 23. Chief Billy-Joe Tuccaro of the Mikisew Cree First Nation, downstream of Alberta’s oil sands, captured this vulnerability in his testimony to the Committee when he reminded the Committee as follows:

People have to understand where we’re situated in northeastern Alberta. People have to remember we’re situated downstream from oil sands. That’s the reason…. This bill might work for the rest of Canada, but we know for a fact that Alberta will always have its hands in the bucket with regard to water and with regard to what they need to do to develop the resources.

Meeting 118, September 19, 2024 at 09.55

For this reason, we suggest that before or when Bill C-61 is reintroduced, consideration should be given to strengthening and clarifying it, including hewing more closely to the model offered by the FNIM Act. That was the position of the Assembly of First Nations (AFN) and AFN’s brief to the Committee contains detailed drafting to give effect to this approach.

Conclusions

The governments of Alberta and Ontario object to Bill C-61. While Alberta has not, so far as we are aware, publicly articulated the reasons for its objections, we infer that the objections of both provinces are based on the provisions in the Bill dealing with off-reserve source water protection, and the reality that Indigenous peoples may place a greater value on their source water than the provinces historically have. Since Bill C-61 as currently formulated does not authorize the unilateral exercise of First Nation law-making powers with respect to off-reserve source water protection, we think that the two provinces are crying wolf. However, we also believe that Bill C-61 could be strengthened when it is reintroduced in order to ensure that First Nations need not depend upon the cooperation of provinces in order to secure source water protection.

This post may be cited as: Nigel Bankes and Martin Olszynski, “Who’s Afraid of the Proposed First Nations Clean Water Act?” (17 July 2025), online: ABlawg, http://ablawg.ca/wp-content/uploads/2025/07/ Blog_NB&MO_CleanWaterAct.pdf

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