Alberta chiefs seek clarity on Canada's view of water rights following class action defence

A committee of Alberta chiefs is questioning Canada's commitment to upholding First Nations' water rights following the government's defence in a $1.1-billion national class-action lawsuit.

The chiefs say the case only adds to their concerns Canada is trying to absolve itself of treaty rights and legal responsibilities through a federal clean water bill, C-61, that they call "dump and run legislation."

The group is speaking out after federal lawyers argued in court earlier this month that Canada has no legal duty to ensure First Nations have access to clean water, even if ministers publicly suggest otherwise.

Canada's position has Rupert Meneen, chief of Tallcree Tribal Government on Treaty 8 land in northern Alberta, wondering "who is telling the truth" — the politicians or the lawyers?

"If they're saying it's not your treaty right to own water or drink water, have water in your community, who do you believe?" he said.

"That kind of puts a little bit of the damper on what we're trying to do. Because where do we go from here?"

Indigenous Services Minister Patty Hajdu has denied the government wants to avoid its legal obligations, telling reporters on Oct. 10 in Ottawa the law would impose "a very high legal bar" on Canada.

But Hajdu declined to comment directly on the legal defence, only saying, "this legislation would not give those kinds of arguments to government lawyers."

Canada's defence has chiefs like Meneen reiterating their calls for a rewrite of the water bill. Chiefs in Alberta met with Hajdu to discuss the bill the following week.

Troy Knowlton, chief of Piikani Nation in southern Alberta, said he remains unconvinced.

"All First Nations across Canada matter. Their health matters. Their human right to safe drinking water matters," he said.

"I have to stand in solidarity with those and support those that perhaps don't have the benefit of having that infrastructure that supports them."

Bill 'flawed' in 4 or 5 areas, says CEO

The bill is winding through the House of Commons with support from the Assembly of First Nations (AFN), which represents chiefs across the country. But Treaty 8 hasn't been part of the AFN for about three years now, said Meneen, nor does the AFN have an Alberta regional chief currently.

Meneen and Knowlton are on the Chiefs Steering Committee on Technical Services, which advocates for water and related infrastructure needs of 47 First Nations in Treaty 6, 7 and 8 regions.

The committee oversees the First Nations Technical Services Advisory Group, a non-profit organization that trains First Nations water and wastewater operators across Alberta.

Vaughn Paul, CEO of the technical advisory group, shook his head and uttered an expletive when CBC read him Canada's arguments on water rights and asked what he thought.

"It doesn't surprise me that they'd come at that from that perspective," Paul said.

"But it just goes to the point that we need to continue to fight, push back and educate."

Shamattawa First Nation in northern Manitoba filed the class action suit in 2022. In Federal Court filings, Canada's lawyers argued there is no "distinctly Indigenous" right to safe water nor "cognizable Aboriginal interest" in safe water, positions Shamattawa's lawyers called misleading and offensive.

Paul said the bill is "flawed in four or five different areas," the lack of rights recognition being just one. Another area is the lack of consultation with chiefs in Alberta, he said.

The committee also says the bill contains no specific pledge to remedy service gaps and no guaranteed protection for off-reserve water sources, making it "dump and run legislation."

Offloading of liabilities a concern

It's like Canada wants to give First Nations the keys to a broken-down vehicle before it's fixed, with no guarantee it ever will be, plus legal liability if it crashes, Meneen said.

"There's this old jalopy that Canada is trying to hand over to the nations to say, 'Here you go. We've done what we can for you,'" he said.

Knowlton agreed.

"That's got to be the most concerning part for any leader, to see those responsibilities being offloaded on the nation, those liabilities being offloaded," said Knowlton.

For him, the bill's failure to recognize First Nations' jurisdiction over water sources is the biggest problem. These water sources may be situated off-reserve, under provincial jurisdiction, yet still on First Nations' ancestral treaty territories.

The proposed legislation would only recognize First Nations' jurisdiction in these cases if the provinces agree to co-ordinate. With droughts, water shortages, wildfires and industrial pollution threatening water access and water sources in Alberta, all three leaders stressed this issue as one of paramount importance.

In a statement, a spokesperson for Hajdu said the minister has met with the Treaty 6, 7 and 8 chiefs three times since the bill's tabling and committed to a treaty bilateral table to discuss water issues.

"We have heard a variety of proposed amendments," wrote press secretary Jennifer Kozelj. 

"Minister Hajdu is open to any amendments that strengthen the goal of the bill, which is to ensure First Nations have access to clean drinking water for generations to come."