NationTalk: The Assembly of First Nations issues regular updates on work underway at the national office.More information can be found at ww.afn.ca
Repeal and Replacement of the Safe Drinking Water for First Nations Act (SDWFNA)
SDWFNA came into force on November 1, 2013. First Nations criticized it for lack of meaningful consultation, imposing unjust liability on First Nations without proper resources, and granting sweeping enforcement, legislative and judicial powers to the Crown. First Nations-in-Assembly mandated the repeal and the replacement of SDWFNA through Resolutions 26/2015, 88/2017, 01/2018, 26/2018 and 14/2019.
Resolution 88/2017, First Nations led Engagement Process for Safe Drinking Water Legislation mandated the AFN to co-develop a draft framework for new First Nations safe drinking water legislation. Resolution 01/2018, First Nations Led Process to Develop New Federal Safe Drinking Water Legislation and Resolution 26/2018, Support for a First Nations Preliminary Concepts further direct the AFN in its activities on the SDWFNA.
The repeal of SDWFNA received Royal Assent on June 23, 2022, following the advocacy of the Assembly of First Nations (AFN), and the resolution of the National Class Action Settlement.
Background
Since 2013, the AFN has advocated against unilaterally imposed water legislation. The mandate from First Nations-in-Assembly also directed the creation of a Joint Technical Working Group (JTWG) on Safe Drinking Water Legislation for First Nations, which is tasked with jointly developing the draft framework for replacement legislation with Canada, led by ISC.
The AFN led the development of an agreed Terms of Reference on the JTWG. However, in November 2022, correspondence from Indigenous Services Canada (ISC) Minister Hajdu raised concerns regarding Canada’s commitment to the Terms of Reference of the JTWG and the larger co-development process. Regional Chief Cindy Woodhouse, portfolio holder, and Regional Chief Glen Hare, water lead, responded, articulating these concerns.
At the November 2022 Chiefs Committee on Housing and Infrastructure (CCoHI) meeting, Chiefs recommended that the AFN communicate concerns on the process of developing legislation and the content of the proposed legislation with the Minister.
The AFN is supportive of meaningful co-development and co-drafting that addresses the key concerns of First Nations, and that legally ensures and upholds the human right to safe drinking water and sanitation. In addition, through Resolution 01/2018, 26 Preliminary Concepts were supported as necessary components of new legislation; these must be addressed in the co-development process.
The JTWG meetings are a crucial step to co-developing legislation, to be supplemented by regional engagement sessions from coast to coast to coast. The Terms of Reference for the JTWG were jointly approved by both the AFN and the ISC Minister in the fall of 2021. The AFN and Canada have equal representation on the JTWG, with one lead and eight members on each side.
The CCoHI, Regional Water Coordinators in each of AFN’s Regions and technicians provide support to the AFN in its role on the JTWG. The AFN will return to the First Nations-in-Assembly for support.
Update on the Status of Co-Development
The AFN is supportive of meaningful co-development and co-drafting that addresses the key concerns of First Nations, and that legally ensures and upholds the human-right to safe drinking water and sanitation. In addition, through Resolution 01/2018, 26 Preliminary Concepts were supported as necessary components of new legislation, and these must be addressed in the co-development process.
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 directs the AFN to call on Canada to halt its current legislation development and recommit to meaningful co-development of legislation.
The AFN is currently engaged in discussions with Canada towards meaningful legislation, targeting a release date in early February 2023.
National Class Action Settlement
On December 22, 2021, the Federal Court and the Court of the Queen’s Bench of Manitoba issued a joint statement approving a minimum $8 billion settlement agreement. The terms of the agreement committed the federal government to repealing the SDWFNA and replacing it with new legislation that is drafted in consultation with First Nations by December 31, 2022.
The settlement of the National Class Action on Safe Drinking Water in First Nations committed the Government of Canada to repealing the SDWFNA by March 2022. The settlement agreement also stipulates that Canada must take all reasonable efforts to introduce new legislation by December 31, 2022; however, the parties may agree to ask the court for an extension. This should not be considered as a hard deadline as the parties can agree to ask the court for an extension. It is essential to ensure meaningful co-development and to ensure adequate engagement on this important legislation. The Class Action requires that new legislation:
- define minimum standards of water quality for First Nations Water and Wastewater Systems, with reference to standards that are directly applicable to First Nations communities
- define minimum capacity standards for the delivery of water to First Nations communities, in terms of volume per individual community member
- create a transparent approach to building, improving, and providing drinking water and wastewater services for First Nations
- confirm adequate and sustainable funding for First Nation Water and Wastewater Systems
- support the voluntary assumption of water and wastewater infrastructure by First Nations
Engagements
The AFN Infrastructure Sector has developed an extensive Engagement Strategy on the replacement of the SDWFNA, supported by the CCoHI. It includes several regional and national engagement sessions targeted at informing First Nations communities, Chiefs and leadership, youth, women, water technicians and First Nations legal counsel. These included the Legislative Water Summit (Virtual) on October 12, 2022; a National Legal Think Tank (Virtual) held on October 13, 2022; and the 3rd Annual Water Summit (Virtual) held on October 27, 2022.
The AFN is scheduled to host its 6th Annual Water Symposium on February 7 to 9, 2023 in Calgary, AB. Regional engagements have been planned for February 2023, to discuss the proposed legislation.
The Government of Canada is also engaging in discussions directly with First Nations on the proposed new legislation.
We will continue to update you on this important file. Please check the AFN website regularly for further updates. For more information, please contact water-eau@afn.ca.