Why NWT is largely unaffected by First Nations Clean Water Act

The federal government’s proposed First Nations Clean Water Act will have limited impact in the Northwest Territories, legal experts say.

The act acknowledges on-reserve First Nations have lawmaking jurisdiction over drinking water, water sources, wastewater and water infrastructure – but it doesn’t speak to Indigenous nations off-reserve.

Because Bill C-37 only applies to reserve lands, it has “little if any impact on most of the communities in the Northwest Territories,” said Larry Innes, a Yellowknife resident and lawyer at Olthuis, Kleer, Townshend LLP. 

There are only two reserves in the NWT: Salt River First Nation and Kátł’odeeche First Nation.

Self-governing First Nations are eligible for funding under Indigenous Services Canada’s funding program for water and wastewater investments and operations. However, the reality is the GNWT delivers the “vast majority” of water and wastewater services for communities, Innes said.

The act does nothing to address the growing infrastructure and resource gap in the North, he added, describing the legislation as an example of how northern Indigenous governments are often left out due to legislators not understanding the distinctions between life in southern and northern Canada.

Innes’ recommendation would be to expand the legislation to include settlement lands under modern treaties as well as reserve lands.

The Liberals have a majority in the House of Commons and the committees, so opposition parties can’t force any amendments to the bill, which was recently sent to a parliamentary committee to be studied. 

There are 138 First Nations reserves in Alberta. Decisions being made about water on and near many of those reserves have trickle-down impacts on the Northwest Territories.

Tailings trouble

One of the biggest water issues facing the territory is the oil industry’s plan to release treated oil sands tailings into the Athabasca River. Another NWT legal expert doubts the bill will help address that.

“It won’t even, in my opinion, give on-reserve First Nations in Alberta the authority to protect their drinking water and our watershed from that threat,” said Daniel T’seleie, a retired lawyer and chief negotiator for the Fort Good Hope-based K’ahsho Got’ine.

“For our watershed, I don’t see it coming close to addressing the substantive issues and threats that we’re facing,” T’seleie said.

The bill lets a federal minister make regulations about “protection zones” – areas adjacent to reserve lands where there’s overlap between First Nation, federal and provincial jurisdiction – so the three governments have to collaboratively protect water that makes its way onto the reserve lands, explained BC-based lawyer Clayton Leonard. 

Leonard found that section encouraging, because Alberta and the NWT share a watershed and concerns about releasing treated bitumen tailings into that watershed, so the bill could potentially provide another avenue to raise these issues, he said. 

“Whether you get anywhere is another thing,” Leonard added.

In T’seleie’s view, this provision is nothing new.

“There’s always been the option to negotiate with provinces for water protection and that hasn’t yielded any concrete result, so it doesn’t give First Nations any new power to protect water that’s off reserve but adjacent to the reserve,” T’seleie said. “Most large rivers are not within the confines of reserve land, so that’s one red flag to me.”

Bill C-37 was written with the understanding that water flows between regions and communities, Indigenous services minister Mandy Gull-Masty’s office said in an emailed statement. 

“That is why the bill creates a framework for collaboration between First Nations, provinces and territories, and the federal government to strengthen source water protection across shared watersheds, while respecting all jurisdictions,” the statement read.

“This legislation is fundamentally about closing a long-standing regulatory gap on reserve lands. Off reserve, water and source water protection is governed through provincial and territorial laws and regulations.” 

The statement urged First Nations to get in touch with the parliamentary committee to provide input when MPs start studying the bill.

A ‘big gain’ despite weaknesses

Bill C-37 has attracted the ire of many groups, including the Assembly of First Nations and Union of BC Indian Chiefs, for failing to clearly state the inherent right to clean drinking water or recognize First Nations’ jurisdiction over source waters beyond reserve boundaries, among other issues. 

T’seleie said there is another concerning element of the bill.

The bill “makes it very clear” that federal regulations like the Fisheries Act will prevail in the event of a conflict or inconsistency with a First Nation law, T’seleie said.

“That’s concerning because it’s precisely the Fisheries Act regulations that Canada is proposing as the legal vehicle that would authorize, at the federal level, the release of treated tailings from those massive tailings ponds,” T’seleie said.

Those tailings, even when treated, are still toxic enough to be considered a deleterious substance under the Fisheries Act, and it’s illegal for anybody to release a deleterious substance into fish-bearing waters, he explained, so companies need an authorization through the act to skirt that prohibition. 

Despite the bill’s lack of impact on the NWT, Innes considers it a step in the right direction. Leonard agreed, characterizing the bill as “a big gain” despite its weaknesses.

“In Alberta and in BC, the provincial governments maintain the same position on First Nations and their water rights, which is that they don’t have any,” Leonard said. 

By acknowledging First Nations jurisdiction over water on reserve lands, Bill C-37 could change the way provinces consult with First Nations and make decisions about water, Leonard said.

Leonard and groups like the AFN emphasize that one of Bill C-37’s biggest failings is its retreat from a previous version of the bill that contained a clear recognition that First Nations people living on reserve lands have a human right to safe drinking water. That language is gone. Instead, the bill now commits to the “progressive realization” of the human right to safe drinking water for people on First Nations lands.

“It’s a giant step back,” Leonard said. Leonard has previously testified at a parliamentary committee meeting about the importance of legislating the human right to clean water.

Despite this major shortcoming, he thinks there are still some positive elements of the bill. He suggested First Nations could use the bill as a basis for watershed collaboration across provincial and territorial borders, and seek equivalent protections in modern treaty negotiations, to which the bill does not apply.

If Bill C-37 is passed, Leonard expects provincial governments – particularly Alberta and BC – to challenge the legislation in court.

T’seleie emphasized that he doesn’t want to entirely cut the bill down – he doesn’t know the specific issues facing different reserves in the south, he said, so it may help some First Nations. But in the NWT, experts agree it will have little direct impact.