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

Short Title Short title 1 This Act may be cited as the First Nations Clean Water Act . Definitions Definitions 2 The following definitions apply in this Act. First Nation governing body  means a council, government or other entity that is authorized to act on behalf or for the benefit of a First Nation that holds rights recognized and affirmed by section 35 of the Constitution Act, 1982 . ( corps dirigeant ) First Nation lands  means 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. ( terres ) First Nation law  means a law made in the exercise of the jurisdiction referred to in section 6 . ( texte législatif ) Minister  means the Minister of Indigenous Services. ( ministre ) protection zone  has the meaning assigned by regulations made under subsection 21 (1). ( zone de protection ) Settlement Agreement  means the Settlement Agreement entered into by Her Majesty the Queen in Right of Canada on September 15, 2021 in respect of the class action relating to long-term drinking water advisories for impacted First Nations. ( entente de règlement ) water services  means services and systems for, and infrastructure related to, (a) the public or private collection, storage, treatment and distribution of water intended for drinking or cooking or for sanitation or hygiene purposes; (b) the collection, treatment and disposal of wastewater; and (c) the protection of groundwater and aquifers. ( services relatifs à l’eau ) Rights Rights of First Nations peoples 3 (1) This Act is to be construed as upholding the rights of First Nations peoples recognized and affirmed by section 35 of the Constitution Act, 1982 , and not as abrogating or derogating from them. Definition of First Nations peoples (2) For the purposes of subsection (1), First Nations peoples means the Indian peoples of Canada, as referred to in subsection 35(2) of the Constitution Act, 1982 . Right to Clean and Safe Drinking Water Right on First Nation lands 3. 1 It is recognized and affirmed that it is a human right of every individual on First Nations land to have access to clean and safe drinking water in accordance with this Act. Purpose Purpose 4 The purpose of this Act is to (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. Principles Reliable access to water services 5 (1) The making of decisions under this Act is to be guided by the principle that First Nations are to have reliable access to water services on First Nation lands, as reflected in the following concepts: (a) reliable access to clean and safe drinking water and the effective treatment and disposal of wastewater are fundamental to the protection and promotion of community wellness, including public health, and a healthy environment; (b) the effective management and monitoring of all stages of water services delivery, from the protection of source water to the treatment and disposal of wastewater, is necessary to ensure reliable access to clean and safe drinking water; (c) the effective management and monitoring of water services includes (i) a multi-barrier approach that consists of an integrated system of procedures, processes and tools that collectively prevent or reduce the contamination of drinking water, from the collection to the distribution of drinking water, in order to reduce risks to public health, (ii) a comprehensive asset management plan, risk assessment and risk management approach applied to all stages of the delivery of water services, (iii) the training and certification of water services operators, and (iv) sustainable water services; (d) transparency and accountability are to form the basis of the effective management and monitoring of water services; and (e) information and data relating to water services on First Nation lands should be shared between the Government of Canada and First Nations, and be accessible to First Nations, whenever possible and while respecting rights to privacy. Substantive equality (2) The making of decisions under this Act is to be guided by the principle of substantive equality in relation to water services, as reflected in the following concepts: (a) the distinct needs of First Nations for reliable access to water services must be addressed in a way that respects First Nations rights and their access must be comparable to that in non-Indigenous communities; (b) First Nations are, without discrimination, to have control over their water services, including any related information management systems and the data and information they contain, and the design, construction, operation, maintenance and management of their water services; and (c) First Nations may, without discrimination, exercise their right to deliver water services through service delivery models designed by them to suit their needs, including through the adoption of innovative approaches and technology. United Nations Declaration (3) The making of any decision under this Act is to be guided by the United Nations Declaration on the Rights of Indigenous Peoples, including the principle, referred to in the Declaration , of free, prior and informed consent as well as Article 10, paragraph 2 of Article 29 and paragraph 2 of Article 32 of the Declaration . Jurisdiction Affirmation 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. Scope of jurisdiction (2) The jurisdiction includes (a) legislative authority in relation to the matters referred to in paragraphs (1)(a) and (b) and the power to administer and enforce First Nation laws made under that legislative authority and to provide for dispute resolution mechanisms in those laws; and (b) the ongoing development of First Nation laws based on the distinct traditions, customs and practices of First Nations. Application 7 The Canadian Charter of Rights and Freedoms applies to a First Nation governing body in the exercise of the jurisdiction referred to in section 6 . Limitation 8 The provisions of the Fisheries Act , the Canadian Navigable Waters Act , the Migratory Birds Convention Act, 1994 , the Canada Marine Act , the Canadian Environmental Protection Act, 1999 , the Canada Shipping Act, 2001 and the Species at Risk Act and of regulations made under those Acts prevail, to the extent of any conflict or inconsistency, over the provisions of a First Nation law. Publication 9 A First Nation governing body that makes a First Nation law must, as soon as feasible after it makes the law, publish it on its or on the First Nation’s website, if any, and in the First Nations Gazette . Delegation 10 For greater certainty, any jurisdiction referred to in section 6 — including in respect of any legislative authority and of the administration or enforcement of a First Nation law — may be delegated by a First Nation governing body, in whole or in part, to the government of a province or territory or to any public body or not-for-profit corporation if the government, body or corporation consents to the delegation. Conflicts First Nation laws 11 A provision of a First Nation law prevails, to the extent of any inconsistency or conflict, over a provision of an Act of Parliament or of any of its regulations, other than this section, sections 5 , 7 to 9 and 14 to 16 of this Act and the provisions of the Access to Information Act , the Canadian Human Rights Act and the Privacy Act . Modern treaties and self-government agreements 12 (1) The provisions of modern treaties and self-government agreements respecting rights recognized and affirmed by section 35 of the Constitution Act, 1982 prevail, to the extent of any inconsistency or conflict, over any provision of this Act or of any regulation made under subsection 19 (1). Right to amend (2) For greater certainty, nothing precludes the parties to the treaties and self-government agreements referred to in subsection (1) from amending them to resolve any inconsistency or conflict referred to in subsection (1). Regulations 13 Except as otherwise provided in regulations made under subsection 19 (1), a provision of those regulations prevails, to the extent of any inconsistency or conflict, over a provision of a by-law made under the Indian Act . Standards Drinking water quality 14 Subject to the choice specified by a First Nation governing body, the quality of drinking water on the First Nation lands of that First Nation must at least meet the guidelines set out in the Guidelines for Canadian Drinking Water Quality or the drinking water standards in place in the province or territory where the First Nation lands are located. Quality consistent with rights 14. 1 The quality of water and source water available on the First Nation lands of a First Nation and in a protection zone under the jurisdiction of that First Nation must be consistent with the rights recognized and affirmed by section 35 of the Constitution Act, 1982 . Water quantity 15 The quantity of water available on the First Nation lands of a First Nation must meet the drinking, cooking, sanitation, hygiene, safety, fire protection and emergency management needs of the First Nation, taking into account its cultural and spiritual needs and based on its current and projected water usage needs. Wastewater effluent 16 Subject to the choice specified by a First Nation governing body, wastewater effluent on the First Nation lands of that First Nation must at least meet the standards set out in the Wastewater Systems Effluent Regulations or wastewater effluent standards in place in the province or territory where the First Nation lands are located. Clarification 17 For greater certainty, sections 14 to 16 apply to both public and private water systems that are on First Nation lands. If no choice made 18 (1) For the purposes of sections 14 and 16 , if a choice is not specified by a First Nation governing body, the Minister, in consultation and cooperation with the First Nation governing body, must determine which of the following standards are the highest and those standards will apply to the First Nation lands of that First Nation: (a) in the case of section 14 , the guidelines set out in the Guidelines for Canadian Drinking Water Quality or the drinking water standards in place in the province or territory where the First Nation lands are located; and (b) in the case of section 16 , the standards set out in the Wastewater Systems Effluent Regulations or the wastewater effluent standards in place in the province or territory where the First Nation lands are located. Time limit (2) The Minister must make best efforts to begin the consultation and cooperation required by subsection (1) no later than the 90th day after the day on which this section comes into force. Consent (3) The Minister must obtain the consent of the First Nation governing body as identified through a band council resolution before applying the standards referred to in paragraph (1)(a) or (b). Regulations Governor in Council 19 (1) The Governor in Council may, on the Minister’s recommendation and in collaboration with First Nations , make regulations respecting water services on First Nation lands, including regulations respecting (a) the management of water services, including asset management plans; (b) the protection of source water, including source water protection plans and the maintenance and clean-up of source water; (c) the consultation process in respect of funding allocation decisions made under subsection 27 (1); (d) the training and certification of water services operators; (e) occupational health and safety; (f) the monitoring, assessment, inspection and review of water services; (g) emergency planning and response and recovery following emergencies; (h) permits, licences and other authorizations, including their issuance, suspension and revocation; (i) the disclosure, public or otherwise, of information; (j) the administration and enforcement of any regulations made under this subsection, including the designation of officials for the administration and enforcement of those regulations, the creation of offences that are punishable by indictment or on summary conviction and the imposition of penalties; (k) the insurance required to be maintained in respect of water services and water services operators; and (l) minimum standards in respect of water services, including the quality and the quantity of drinking water and the treatment and disposal of wastewater. Non-application (2) A First Nation law may exclude the application of any regulations made under subsection (1) to First Nation lands in respect of which the law applies. Different locations (3) Regulations made under paragraph (1)(l) may provide for different minimum standards for different locations on the First Nation lands of a First Nation to address local circumstances only if all the minimum standards provided for are consistent with sections 14 to 16 . Information or data relating to insurance (4) If, in respect of regulations made under paragraph (1)(k), the Minister obtains information or data relating to the insurability or the terms and conditions of insurance of water services on the First Nation lands of a First Nation, the Minister may provide data or that information to that First Nation to assist it in obtaining the best possible insurance protection for its infrastructure and community, consistent with paragraph 5(1)(e) and in compliance with ownership, control, access and possession. Consultation — proposed recommendation 20 (1) The Minister must consult and cooperate with First Nation governing bodies before making any recommendation under subsection 19(1), and any such recommendation must be co-developed with those bodies . Time limit (2) The Minister must make best efforts to begin the consultations, cooperation and co-development required by subsection (1) no later than the last day of the sixth month after the month in which this section comes into force. Minister — protection zone 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 . Consultation — regulations (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. Consultation — protection zone (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. Minister — enforcement 22 (1) If requested to do so by a First Nation governing body, the Minister may make regulations respecting the administration and enforcement of the First Nation laws of that First Nation that apply in a protection zone, including regulations respecting the designation of officials for the administration and enforcement of those laws, the creation of offences that are punishable by indictment or on summary conviction and the imposition of penalties. Consultation (2) The Minister must consult and cooperate with a First Nation governing body of the First Nation and with the government of the province or territory in which the protection zone is located before making regulations under subsection (1), and any such regulations must be co-developed with that body . First Nation governing body's consent (3) A regulation made under subsection (1) must not come into force unless the First Nation governing body provides free, prior and informed consent to it. Agreements Support for exercise of jurisdiction 23 (1) A First Nation governing body and the Minister may, on request of the governing body, enter into an agreement with respect to the Minister’s support of the exercise of the jurisdiction referred to in section 6 . Subject matter (2) The agreement may include (a) fiscal arrangements in respect of the delivery of water services on First Nation lands; (b) arrangements on information and data sharing, monitoring, reporting, enforcement and measurement of outcomes in relation to water services; and (c) plans and policies that address water, source water, clean and safe drinking water, wastewater and related infrastructure on First Nation lands. Administration and enforcement of First Nation laws 24 A First Nation governing body may enter into an agreement with the Minister or a provincial, territorial or municipal government or with any public body acting under the authority of the First Nation respecting the administration and enforcement of its First Nation laws. Other agreements — source water, services, etc. 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; (b) water services; and (c) the administration and enforcement of First Nation laws and the administration and enforcement of regulations made under subsection 19(1). Participation (2) If a First Nation could be affected by an agreement under subsection (1) between the Minister and a provincial, territorial or municipal government, the First Nation must, subject to the choice of a First Nation governing body of the First Nation, be a party to the agreement or must be consulted before the agreement is entered into. For greater certainty (3) For greater certainly, nothing in subsection (1) is to be construed as preventing any other federal minister from entering into any agreement referred to in that subsection. Powers, Duties and Functions of Minister Best efforts — access to drinking water 26 The Minister, in consultation and cooperation with a First Nation governing body, must make best efforts to ensure that access to clean and safe drinking water, whether from a public or private water system, is provided to all residents, occupants and users of buildings located on the First Nation lands of the First Nation in a manner that meets the obligations set out in sections 31, 33 and 34 . Consultation — funding allocation 27 (1) The Minister must consult and cooperate with First Nation governing bodies in respect of a framework for assessing needs — and the making and implementing of funding allocation decisions — respecting water services on First Nation lands and must co-develop the framework with those bodies and meet the obligations set out in sections 31, 33 and 34 . Framework (2) The Minister’s consultations and cooperation in respect of the framework for assessing needs and the co-development of the framework may involve, among other things, the following matters: (a) capital and upgrades; (b) operations and maintenance, including repairs and replacements ; (c) monitoring; (d) enforcement; (e) reporting; (e.1) requirements relating to legal fees for various tasks relating to the day-to-day operations of water services; (f) actual costs; (f.1) remoteness costs, including the higher costs of providing water services in remote communities; (g) governance; (h) capacity development; (h.1) the insurance required to be maintained by First Nations in respect of water services and water services operators and the information required to be provided to First Nations about their insurance, including the analysis of the risks ascribed to First Nations by their insurers and past claims, to enable First Nations to better understand how their insurance premiums are set; and (i) standards applicable to water services received by First Nation persons compared with the most stringent standards applicable to water services received by persons in non-Indigenous communities. Making of funding allocation decisions (3) The Minister’s consultations and cooperation with respect to the making of funding allocation decisions under subsection (1) must be consistent with the principle that the funding for First Nations water services is to (a) be adequate, predictable, stable, sustainable and needs-based; (b) be responsive to current and projected needs with respect to infrastructure; (c) be responsive to infrastructure lifecycle planning related to local needs; (d) achieve positive long-term health outcomes; and (e) align with the use of up-to-date clean and sustainable technologies to reduce the carbon footprint of water services. Report (4) After the Minister’s consultations with respect to implementing funding allocation decisions, the Minister must publicly respond, if appropriate, in a report to be tabled in each House of Parliament, to the views submitted by the First Nation governing bodies during the consultations. Time limit (5) The Minister must complete the framework referred to in subsection (1) no later than the first anniversary of the day on which this section comes into force or the last day of any longer period requested by the Minister or First Nations governing bodies . Support 28 The Minister may provide support to First Nation governing bodies with respect to the entering into of the agreements referred to in sections 23 to 25 . Environmental protection 29 The Minister must consult and cooperate with First Nation governing bodies with a view to ensuring that First Nation laws protect the environment as much as or more than the Fisheries Act , the Migratory Birds Convention Act, 1994 , the Canadian Environmental Protection Act, 1999 and the Species at Risk Act and the regulations made under those Acts. Obligations of Government of Canada Funding — needs 30 The Government of Canada must make best efforts to provide funding that meaningfully reflects the consultations and cooperation between the Minister and First Nation governing bodies under subsection 27(1) and that meets the needs assessed in the framework referred to in subsection 27 (1). Funding — comparable services 31 The Government of Canada must make best efforts to provide funding that meaningfully reflects the consultations and cooperation between the Minister and First Nation governing bodies under subsection 27(1) , that is adequate, predictable, stable, sustainable and needs-based and that meets actual costs for water services on First Nation lands so that, in accordance with the principle of substantive equality , First Nation persons are able to receive water services comparable to those received by persons in non-Indigenous communities. Funding — First Nations Water Commission 32 The Government of Canada must make best efforts to provide sustainable funding to implement the terms of reference referred to in subsection 39 (1). Settlement Agreement Obligations and commitments 33 The Minister, on behalf of the Government of Canada, must fulfill Canada’s obligations and implement Canada’s commitments set out in the Settlement Agreement, including the commitments set out in section 9.02 of that agreement. Commitment expenditures 34 The Government of Canada must provide funding that, as a minimum, meets the commitment expenditures set out in subsection 9.02(2) of the Settlement Agreement. Clarification 35 Nothing in this Act is to be construed as abrogating or derogating from any obligation or commitment set out in the Settlement Agreement. General Grants Grants 36 Any agreement entered into as a result of any framework referred to in subsection 27 (1) may include long-term funding arrangements through grants. Immunity Employees and hired persons 37 (1) No action or other proceedings for damages lies or may be instituted against an employee of, or any person hired by, a First Nation governing body for anything done or omitted to be done by them in good faith in the performance, or intended performance, of their duties in relation to the provision of water services on the First Nation lands of the First Nation. First Nation (2) A First Nation governing body is not liable for loss or damage in relation to acts or omissions of any of its employees or any persons hired by it who are acting within the scope of their duties in the provision of water services on the First Nation lands of the First Nation if the acts or omissions were committed in good faith and the Government of Canada did not make best efforts to provide adequate funding for water services on those First Nation lands. His Majesty in right of Canada (3) His Majesty in right of Canada is not liable for loss or damage in relation to acts or omissions of servants of the Crown for anything done or omitted to be done by them in good faith in the performance, or intended performance, of their duties in relation to the provision of water services on the First Nation lands of a First Nation — and no action or other proceedings for damages lies or may be instituted against such servants of the Crown — if the Government of Canada made best efforts to provide adequate funding for water services on those First Nation lands. Other Federal Ministers Clarification 38 Nothing in any regulation made under this Act or any agreement entered into under this Act is to be construed as preventing or limiting any federal minister, other than the Minister, from exercising any powers or performing any duties or functions that they have under any Act of Parliament. First Nations Water Commission Terms of reference 39 (1) The Minister must consult and cooperate with First Nation governing bodies in respect of the development of terms of reference for the establishment of a corporation under the Canada Not-for-profit Corporations Act that is to be led by First Nations. Articles of incorporation — mandatory provisions (2) The terms of reference must provide that the corporation’s articles of incorporation stipulate (a) that one of the corporation’s purposes is to support the purpose and principles set out in this Act; (b) that the corporation must provide the Minister, no later than six months after its financial year end, an annual report describing its activities for that year, including its activities as they pertain to source water protection plans and agreements and the supporting of First Nations in the management of water services; (c) that the corporation may, at any time, make a special report to Parliament referring to and commenting on any matter within the scope of the powers and functions of the corporation where, in the opinion of the corporation, the matter is of such urgency or importance that a report on it should not be deferred until the time provided for transmission of the next annual report of the corporation; and (d) that the corporation must publish on its website, in both official languages as well as in as many Indigenous languages as possible, every report it provides to the Minister within 10 days after it is tabled in both Houses of Parliament. Articles of incorporation — optional provisions (3) The terms of reference may also provide that the corporation’s purposes as set out in its articles of incorporation include, among other things, any of the following: (a) supporting and coordinating the monitoring by First Nations of drinking water, source water and wastewater treatment and disposal on, in and under First Nation lands; (b) providing advice to First Nations in relation to drinking water and wastewater, including by obtaining legal advice and coordinating its provision to First Nations; (c) providing support and advice to First Nations in respect of certifications related to water services on First Nation lands; (d) making recommendations to the Government of Canada, provincial, territorial and municipal governments and First Nations in relation to drinking water and wastewater, including recommendations relating to laws, regulations, policies, guidelines and the drafting of model laws; (d.1) considering matters relating to water pollution on First Nation lands and making recommendations to the federal, provincial and territorial governments and First Nations in this regard by taking into account, among other things, existing frameworks and best practices related to pollution caused by certain dangerous substances discharged into the aquatic environments on First Nation lands; and (e) providing other services in relation to planning, coordination and reporting with respect to drinking water, wastewater and source water on, in and under First Nation lands. Time limit (4) The Minister must make best efforts to begin the consultations and cooperation required by subsection (1) no later than the last day of the sixth month after the month in which this section comes into force. Languages to be used (5) That the corporation must provide its services in both official languages and in any Indigenous language it considers necessary. Tabling of corporation’s report 40 The Minister must cause to be tabled in each House of Parliament, on any of the first 15 days on which that House is sitting after the day on which it is received by the Minister, a copy of the annual report that is received from the corporation whose articles of incorporation include the requirement referred to in paragraph 39 (2)(b). Annual Report Annual report 41 The Minister must, in consultation and cooperation with First Nations, produce an annual report on the results of any consultations and cooperation that are required under this Act and that take place during the previous year and cause a copy of the report to be tabled in each House of Parliament on any of the first 15 days on which that House is sitting after the day on which it is completed. Five-Year Review Report 42 On the fifth anniversary of the day on which this section comes into force, the Minister must, in consultation and cooperation with First Nations, cause a review of the provisions and operation of this Act to be conducted according to jointly developed criteria , and the Minister must cause a report of the review to be tabled in each House of Parliament before the sixth anniversary of the day on which this section comes into force. Coordinating Amendment Bill S-13 43 If Bill S-13, introduced in the 1st session of the 44th Parliament and entitled the An Act to amend the Interpretation Act and to make related amendments to other Acts receives royal assent, then, on the first day on which both section 1 of that Act and section 3 of this Act are in force, that section 3 and the heading before it are repealed. Coming into Force One year after royal assent 44 This Act comes into force one year after the day on which this Act receives royal assent.