RECALL: 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, imposition of unjust liability on First Nations without proper resources, and granting of 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. The repeal of SDWFNA received Royal Ascent on June 23, 2022, following the advocacy of the Assembly of First Nations (AFN), and the settlement 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 directs 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 Indigenous Services Canada (ISC). The AFN supports 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 water and sanitation. Additionally, 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.
Engagements
Since 2019, the AFN Infrastructure Sector has developed an extensive Engagement Strategy on the replacement of the SDWFNA, supported by the CCOHI. This strategy has included 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 sessions included the Legislative Water Summit (Virtual) on October 12, 2022; a National Legal Think Tank (Virtual) held on October 13, 2022; and the Third Annual Water Summit (Virtual) held on October 27, 2022.
Update on the Status of Legislation
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 directing the AFN to: call on Canada to halt its current legislation development and recommit to meaningful co-development of legislation.
Since the Special Chiefs Assembly (SCA) 2022 emergency resolution, AFN Infrastructure has been engaged with ISC to further develop legislation that addresses key concerns. On February 17, 2023, ISC released a draft legislation for consultation to all First Nations across Canada for 30 days. Following strong advocacy by the AFN, ISC extended the consultation period until April 23, 2023. A revised version (Version 2) was then prepared based on these discussions.
Despite significant advancements, several key elements requested by the AFN remain unaddressed in Canada’s proposed legislation, many due to insufficient Ministerial mandate. In May 2023, the AFN requested that the Minister formally announce a delay of introduction of the legislation in order to obtain a revised expanded mandate.
On July 21, 2023, the Minister of Indigenous Services Canada shared a letter to all First Nations, sharing the revised draft (Version 2) with all First Nations that had previously been shared under Non Disclosure Agreement (NDA). As indicated, this version still has not addressed the key concerns championed by AFN and First Nations across Canada.
The AFN is meeting regularly with ISC to continue to co-develop legislation in the hopes of obtaining a revised mandate that addresses First Nations key concerns.
We will continue to update you on this important file. Please check the AFN website regularly for further updates. For more information, please contact [email protected].