Bill C-61: An Act respecting water, source water, drinking water, wastewater, and related infrastructure on First Nation lands

Bill C-61: An Act respecting water, source water, drinking water, wastewater, and related infrastructure on First Nation lands

Tabled in the House of Commons, February 27, 2024

Explanatory Note

Section 4.2 of the Department of Justice Act requires the Minister of Justice to prepare a Charter Statement for every government bill, to help inform public and Parliamentary debate on government bills. One of the Minister of Justice’s most important responsibilities is to examine legislation for inconsistency with the Canadian Charter of Rights and Freedoms [“the Charter”]. By tabling a Charter Statement, the Minister is sharing some of the key considerations that informed the review of a bill for inconsistency with the Charter. A Statement identifies Charter rights and freedoms that may potentially be engaged by a bill and provides a brief explanation of the nature of any engagement, in light of the measures being proposed.

A Charter Statement also identifies potential justifications for any limits a bill may impose on Charter rights and freedoms. Section 1 of the Charter provides that rights and freedoms may be subject to reasonable limits if those limits are prescribed by law and demonstrably justified in a free and democratic society. This means that Parliament may enact laws that limit Charter rights and freedoms. The Charter will be violated only where a limit is not demonstrably justifiable in a free and democratic society.

A Charter Statement is intended to provide legal information to the public and Parliament on a bill’s potential effects on rights and freedoms that are neither trivial nor too speculative. It is not intended to be a comprehensive overview of all conceivable Charter considerations. Additional considerations relevant to the constitutionality of a bill may also arise in the course of Parliamentary study and amendment of a bill. A Statement is not a legal opinion on the constitutionality of a bill.

Charter Considerations

The Minister of Justice has examined Bill C-61, An Act respecting water, source water, drinking water, wastewater, and related infrastructure on First Nation lands, for any inconsistency with the Charter pursuant to his obligation under section 4.1 of the Department of Justice Act. This review involved consideration of the objectives and features of the Bill.

What follows is a non-exhaustive discussion of the ways in which Bill C-61 potentially engages the rights and freedoms guaranteed by the Charter. It is presented to assist in informing the public and Parliamentary debate on the Bill. It does not include an exhaustive description of the entire Bill, but rather focuses on those elements relevant for the purposes of a Charter statement.

Overview

The purposes of the Bill would include 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, and assisting First Nations in achieving the highest attainable standard of health, safety and well-being. The Bill would also affirm the inherent right of First Nations to self-government, which includes the jurisdiction of First Nations in relation to water, source water, drinking water, wastewater and related infrastructure. It would also seek to ensure that laws, policies and practices in relation to water services on First Nation lands are consistent with section 35 of the Constitution Act, 1982 and the United Nations Declaration on the Rights of Indigenous Peoples. Decision making principles under the Bill would be established, as well as minimum national standards for the provision of water services on First Nation lands and a federal regulatory regime for those services. The Bill would seek to close gaps between First Nations persons and persons in non-Indigenous communities in infrastructure, socio-economic status, governance and health and well-being in relation to water services, and to facilitate collaboration for source water protection between First Nations and all levels of government.

In addressing the rights recognized and affirmed by section 35 of the Constitution Act, 1982 in the context of water services on First Nation lands, the Bill would seek to advance a purposive approach to section 35 and, ultimately, to contribute to reconciliation, as reflected in the preamble of the Bill. The Bill would affirm, for greater certainty, the inherent right of self-government under section 35 of the Constitution Act, 1982 as including legislative, administrative, and enforcement jurisdiction in relation to water services on, in and under First Nation lands, as well as over water and source water in a protection zone that is adjacent to First Nation lands where the relevant governments have agreed on an approach to coordinate their laws in the protection zone.

First Nation lands would be defined as lands of a First Nation that are referred to in section 91 (24) of the Constitution Act, 1867, and would include water and source water on, in and under those lands. First Nation lands would not include lands over which Aboriginal title is claimed by a First Nation or has been confirmed by a court. The Bill would not deny access to water services to any non-Indigenous visitor or resident of First Nation lands.

The principles for decision making under the Act would include: reliable access to clean and safe drinking water and effective treatment and disposal of wastewater as fundamental to community wellness; the effective management and monitoring of water services delivery based on transparency and accountability; sharing information and data relating to water services on First Nation lands between the Government of Canada and First Nations while respecting rights to privacy; and substantive equality, including addressing the distinct needs of First Nations for reliable access to water services in a way that respects First Nations rights and control over their water services with access to water services that must be comparable to that in non-Indigenous communities.

The Bill would provide for the application of the Canadian Charter of Rights and Freedoms to a First Nation governing body in the exercise of its jurisdiction under the Act. The provisions of First Nation laws related to water, source water, drinking water, wastewater and related infrastructure would prevail over any conflicting or inconsistent provisions of an Act of Parliament or its regulations, subject to certain exceptions, such as the Canadian Human Rights Act, Privacy Act, Access to Information Act, and certain laws relating to environmental protection, navigation, and shipping.

The Bill would also provide that the Minister of Indigenous Services must consult and cooperate with First Nation governing bodies before recommending regulations under the Act, in making best efforts to ensure access to clean and safe drinking water on First Nation lands, and in respect of a framework for assessing needs for water services and determining their funding allocations. The Minister would also consult and cooperate on terms of reference for a First Nations Water Commission to support the purpose and principles set out in the Bill, with the Government of Canada required to make best efforts to provide sustainable funding for their implementation.

Finally, the Bill would provide that the Government of Canada must make best efforts to provide funding that meets the needs assessed in the framework established under the Act, and that is adequate, predictable, stable, sustainable, needs-based and meets actual costs for water services on First Nation lands, so that First Nations are able to receive water services comparable to those received in non-Indigenous communities.

Section 15 of the Charter

Section 15(1) of the Charter protects equality rights. It provides that every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination, including on the basis of race or ethnic origin. Equality entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect, and consideration. Section 15(2) of the Charter clarifies that section 15(1) does not preclude laws, programs, or activities that have as their object the amelioration of conditions of disadvantaged individuals or groups, including those that are disadvantaged because of race or ethnic origin.

The Bill would seek to promote substantive equality in the provision of water services on, in, and under First Nation lands, consistent with the core values that underpin section 15 of the Charter. In recognizing the need to address inadequate infrastructure for water, source water, drinking water and wastewater treatment on, in, and under First Nation lands, the Bill would support First Nations in their efforts to control reliable access to water services in keeping with First Nation rights and substantive equality.

The scope of the Bill with respect to water services exclusively on First Nation lands could potentially engage section 15(1) of the Charter to the extent that it may be considered to create a distinction based on race or ethnic origin. The following considerations support the consistency of the Bill with section 15 of the Charter. Adopting such a Bill in relation to First Nations and not for other groups is based on federal jurisdiction over First Nation lands set out in section 91(24) of the Constitution Act, 1867 and reflects a settlement agreement with First Nations that resolved litigation over inadequate water services on those First Nation lands. Achieving substantive equality for disadvantaged groups often requires making distinctions. Addressing the distinct water-related needs of First Nations on their lands does not have the effect of reinforcing, perpetuating, or exacerbating any group’s disadvantage.