Backgrounder and timeline for consultation draft: Proposal for An Act respecting drinking water, wastewater and related infrastructure on First Nations lands

As part of the Safe Drinking Water for First Nations Class Action Settlement Agreement finalized in 2021, Canada has committed to making all reasonable efforts to develop and introduce proposed legislation, in consultation with First Nations, to replace the repealed 2013 Safe Drinking Water for First Nations Act.

Canada views the settlement agreement as an opportunity for meaningful change to address and prevent First Nations water infrastructure gaps, and to build a sustainable legal foundation for clean water for future generations.

The consultation draft of a legislative proposal aims to address key concerns expressed by First Nations about the repealed 2013 Safe Drinking Water for First Nations Act by:

• recognizing and affirming the existing inherent right of First Nations to self-government, including jurisdiction in relation to drinking water, wastewater and related infrastructure on First Nations lands;
• advancing long-term sustainable funding through fiscal arrangements and consultation on fiscal allocation decisions;
• facilitating trilateral source water protection agreements; and
• providing pathways for ongoing engagement, including through consultation on federal water regulations.

Engagement on the consultation draft of the legislative proposal is ongoing until March 19, 2023. A consultation draft is a potential Bill that is shared with those who may be affected for their feedback. This can help ensure that legislation is responsive to the views and needs of those affected before a legislative proposal is introduced in Parliament.

Engagement is an ongoing process, and Canada looks forward to continuing to work with all interested First Nations and First Nations organizations as we move forward on the development and implementation of a legislative proposal for First Nations drinking water and wastewater.

Timeline of key events:

2013

The Safe Drinking Water for First Nations Act came into effect to allow Canada to develop federal regulations to ensure access to safe, clean and reliable drinking water and the effective treatment of wastewater on First Nations lands.

2015

Engagement on regulations came to a stop as First Nations called for the repeal and replacement of the 2013 Safe Drinking Water for First Nations Act.

2017–2018

Four Assembly of First Nations (AFN) resolutions were passed on safe drinking water-related matters reflecting sustained First Nations advocacy that shifted the approach of the federal government on the Safe Drinking Water for First Nations Act.

Engagement sessions were held to review the 2013 Safe Drinking Water for First Nations Act. First Nations shared several concerns, including:

• lack of adequate, predictable and sustainable funding;
• lack of recognition of Aboriginal rights;
• potential infringement of Aboriginal and treaty rights;
• lack of protection of source water; and
• insufficient engagement on issues that directly affect First Nations.

2018

The AFN, with support from Canada, began to engage with First Nations on new water legislation. This ongoing engagement helps confirm First Nations priorities and informs long-term solutions for safe drinking water and effective treatment of wastewater in First Nations communities, now and in the future.

November 2019

A legal action begins against Canada in a proposed class action on behalf of all First Nations members both on and off reserves with a drinking water advisory for at least one year since 1995.

2021

Through negotiations, an agreement was reached in the Safe Drinking Water for First Nations Class Action Settlement Agreement to provide compensation, and committing Canada to making all reasonable efforts to introduce legislation repealing the 2013 Safe Drinking Water for First Nations Act by March 31, 2022, and to develop and introduce replacement legislation, in consultation with First Nations, by December 31, 2022.

This agreement was approved by the Federal Court and the Manitoba Court of Queen's Bench (now the Manitoba Court of King's Bench) on December 22, 2021.

March 2022

Canada engaged key First Nations and First Nations organizations on the proposed repeal of the 2013 Safe Drinking Water for First Nations Act. Two virtual engagement sessions took place on March 23 and March 29, 2022, with interested First Nations and First Nations organizations. All participants supported the proposed repeal of the 2013 Safe Drinking Water for First Nations Act, with no opposition expressed.

Participants also took the opportunity to share what they would like to see in replacement legislation, including engagement, funding, recognition of rights, and the provision of safe drinking water and effective treatment of wastewater.

June 2022

Budget Implementation Act, 2022, No. 1 received Royal Assent on June 23, 2022, and includes the official repeal of the 2013 Safe Drinking Water for First Nations Act.

Summer 2022

Indigenous Services Canada continued working with the AFN to inform the development, introduction, and implementation of new proposed First Nations drinking water and wastewater legislation.

Canada increased engagement and information sharing with First Nations rights holders, which also includes Modern Treaty and Self-Governing Nations, and First Nations organizations to support the development of new proposed First Nations drinking water and wastewater legislation.

December 2022

An Emergency Resolution, Re-Commitment to Co-Development of Replacement Legislation for Safe Drinking Water for First Nations, passed at the 2022 Special Chiefs Assembly held December 6–8, directed the AFN to call on Canada to halt its current legislation development and recommit to meaningful co-development of legislation.

February 2023

On February 17, Canada shared a consultation draft of a legislative proposal with First Nations rights holders, which also includes First Nations organizations, as well as Modern Treaty and Self-Governing Nations for review and feedback.

On February 21, 2023, it was announced that the First Nations Drinking Water Settlement claims deadline for individuals and the acceptance deadline for First Nations was extended by one year. First Nations and individuals affected by long-term drinking water advisories that lasted for at least one year between November 20, 1995 and June 20, 2021 now have until March 7, 2024, to submit their claim for compensation.