Alberta Treaty Chiefs slam feds after Ottawa denies legal duty to provide safe drinking water

Water can be seen pouring from a tap in this undated file photo. (File)

Chiefs from Treaty First Nations in Alberta met last month with the minister of Indigenous Services Canada to reiterate their concerns with the First Nations Clean Water Act.

The meeting was held one week after government lawyers argued in court that their client has no legal obligation to provide First Nations with drinkable water.

The act, known also as Bill C-61, completed its second reading on June 5, and is in the process of being studied by the Standing Committee on Indigenous and Northern Affairs.

The legislation, according to Indigenous Services Canada, establishes "minimum national standards for the delivery of drinking water and wastewater services on First Nation lands," and commits the feds to make "best efforts to provide adequate and sustainable funding [emphasis added]" to uphold these standards.

Upon the bill’s December 2023 introduction, the chiefs of 47 First Nations from Treaties 6, 7 and 8 revealed that they weren’t consulted on the legislation, nor had Minister of Indigenous Services Patty Hajdu responded to their requests for a meeting to express their concerns.

Since then, Hajdu has met with the Chiefs Steering Committee on Technical Services, which deals with the technical side of water, wastewater and related infrastructure for First Nations in Alberta, three times.

"Nothing much changes with every meeting," Chief Rupert Meneen of Tallcree Tribal Government in Treaty 8 told Alberta Native News.

Chief Meneen characterized the legislation as a "dump-and-run" scheme, in which the federal government offloads the burden of responsibility onto First Nations for ensuring their water infrastructure is able to produce safe drinking water.

He said the Treaty chiefs’ primary concern with how the bill was conceived is that the government consulted with the Assembly of First Nations (AFN), which is an advocacy body that isn’t itself signatory to any Treaty, to establish "manufactured consent" for the bill among Treaty First Nations.

Chief Meneen said the gap between the AFN’s advocacy efforts and the will of its Treaty-holding membership were on full display at the special chiefs assembly in Calgary from Oct. 16 to 18, in which 64 per cent of its membership voted down a child welfare reform agreement the AFN leadership had urged them to support.

Treaty 8 First Nations of Alberta, which represents more than half of First Nations in Alberta, quit the AFN in 2022 so it could negotiate with the federal government directly, as intended under the Treaty.

"If something is going to work, the Treaty people need to be at the table. The Treaty people need to have a voice, and you need to figure out what it is that you need to put in there that’ll work for everybody," said Meneen.

While Minister Hajdu made no specific commitments towards changing the legislation itself, she did agree to form a Treaty Bilateral Table on Water with Treaty Chiefs in the Alberta Region to discuss ongoing water issues.

At an Oct. 10 standing committee meeting on Bill C-61, Hajdu repeated her claim that the legislation was "co-developed" with First Nations.

"At the beginning of this, we had a very different definition … of what ‘co-development’ was, and by the end of it, I think we’ve learned that co-development starts a lot earlier than you would imagine," she told committee.

Feds claim clean drinking water isn’t their legal responsibility

Bill C-61’s origins are in a $8-billion class action settlement reached in September 2021 with First Nations that were without clean drinking water for at least a year between Nov. 20, 1995 and June 20, 2021, in which the feds committed to repealing and replacing the old Safe Drinking Water for First Nations Act.

The feds now face an additional $1.1-billion class action suit from 60 First Nations, spearheaded by Shamattawa First Nation in northern Manitoba, which argues that the continued lack of clean water on reserves represents "an urgent human rights crisis."

"Class members have been denied reliable access to safe drinking water, have been unable to adequately wash and care for themselves and their families, have suffered stunted economic growth, and have been prevented from engaging in their traditional ceremonies and spiritual practices," Shamattawa’s September 2022 statement of claim reads.

The September 2021 settlement excludes reserves whose long-term water advisories began or continued after June 20, 2021, so the more recent class action "picks up where that one left off," explained litigator Alana Robert, who is representing Shamattawa First Nation in court.

Chief Meneen credits the Shamattawa suit with helping "put Canada under a microscope" for its stated commitments to reconciliation.

In his successful 2015 election campaign, Prime Minister Justin Trudeau promised to lift all boil water advisories on First Nations reserves by 2020. At the time, there were 133 advisories in 93 communities. As of Oct. 9, 2024, there are 32 advisories in 30 communities.

But in response to the Shamattawa suit, the government’s lawyers are arguing that the government had no legal responsibility to do so.

"Canada does not owe the plaintiffs a general fiduciary duty as asserted to provide or fund water infrastructure on reserve," government lawyers wrote in their statement of defence, filed on July 31, 2023. "Canada does not owe any legal obligations or duties to operate and maintain the plaintiffs’ water systems."

Robert told Alberta Native News that this argument exposes how the government sees its repeated commitments to ensuring reserves have clean water as a political gesture, rather than a legal obligation.

She said this doesn’t square with the federal government’s history of "playing a key role in constructing initial water infrastructure on reserve when the reserve system was formed, and then playing an ongoing role in the funding of not only water infrastructure, but also the operation and maintenance of that water infrastructure."

The government, Robert added, "elected to starve the funding of that water infrastructure, and the operation and maintenance of that infrastructure, over the course of several decades," with First Nations "having a standard of living that looks quite different than the rest of Canada" as a result.

NDP MP Niki Ashton, whose Churchill-Keewatinook Aski riding includes the Shamattawa First Nation reserve, also emphasized the historical context behind the "Third World living conditions" on the isolated First Nation, which in addition to a lack of potable water is plagued by a youth suicide epidemic and housing crisis.

"It’s important for Canadians to know that Shamattawa’s living conditions didn’t just happen, that they are a result of colonial approaches from the federal government. They are a result of systemic and continuous paternalistic policies and lack of necessary funding," Ashton told Alberta Native News.

Ashton said she was "surprised by the length to which the federal government lawyers have gone to discredit First Nations [and] to undermine political commitments made by the current federal government."

The Liberals, she added, need "to call off their lawyers and work with First Nations to deliver clean drinking water in their communities."

During three days of hearings from Oct. 7 to 9 in front of Justice Paul Favel, who is from Poundmaker Cree Nation in Saskatchewan, the government and plaintiff lawyers elaborated on their legal arguments.

Justice Favel has reserved his decision to an unspecified later date.