Lawyers say language change in First Nations water bill looks to shield government

OTTAWA — Two lawyers say the blurring of language on the right of First Nations to clean drinking water in a new bill serves as a shield for the federal government as it argues against that right in court.

Indigenous Services Minister Mandy Gull-Masty introduced the legislation on Tuesday. The bill seeks to ensure First Nations have access to clean drinking water on-reserve and the ability to protect source water on their territories if they enter into tripartite agreements with the federal and provincial governments.

Bill C-37 states that the federal government will “further the progressive realization, for individuals on First Nation lands, of the human right to safe drinking water, as protected by the International Covenant on Economic, Social and Cultural Rights.”

A previous bill introduced by the Trudeau Liberals, which failed to pass before the federal election last year, affirmed the “human right of every individual on First Nations land to have access to clean and safe drinking water in accordance with this Act.”

“Progressive realization” is a legal term used by the United Nations which means a government will work toward the realization of a right.

Gull-Masty promised last year new legislation would affirm First Nations have a right to clean drinking water, as did the Liberal party platform.

Lawyer Michael Rosenberg helped to launch a successful lawsuit against the federal government on behalf of some 260 First Nations that led to the new legislation. He said it appears the change in wording is meant to shield Ottawa from legal liability.

“I can think of no other explanation,” Rosenberg told The Canadian Press.

“It, in my view, has everything to do with being able to continue to fight First Nations in court and stand up and say, ‘There is no right and we have no obligations.'”

Rosenberg said “progressive realization” is an argument made in the context of Section 15 of the Charter of Rights and Freedoms — the section on equality rights — and amounts to a claim that the government doesn’t need to deliver substantive equality immediately but can work to deliver it over time.

That makes it difficult to enforce, he said, since governments can always claim they’re working on implementation — while affirming the right in law would give it immediate effect.

The bill is unlikely to be studied or passed before the House of Commons rises for a planned summer break.

Rosenberg said that when the legislation does appear again in the House of Commons at some point this fall, First Nations likely will call for it to be amended to reflect the wording in the previous bill.

Jesse McCormick, co-chair of the Liberal party’s Indigenous Peoples’ Commission and a lawyer with Pape Salter Teillet LLP, said the decision to reframe the wording amounted to a “missed opportunity” for the federal government.

“As a lawyer who supports First Nations and works to help advance First Nations rights, it would be positive to see the right to clean and safe drinking water recognized in the legislation, as it had been included in Bill C-61,” said McCormick, who is a member of Chippewas of the Thames First Nation.

“I do consider this to be a step back.”

McCormick said First Nations should be aware of the changes and examine both the legal and political implications.

“And I hope to see lots of advocacy from First Nations around holding the government of Canada to the highest possible standard in the implementation of this proposed legislation, but also seeking amendments that would strengthen protections for people living on reserve.”

Gull-Masty has indicated she is open to amendments and said the change in phrasing was meant to give First Nations time to improve their water systems, and to ensure the legislation would hold up in court.

The previous legislation was opposed by provincial governments in Alberta and Ontario, which warned it would slow down major project development at a time when Prime Minister Mark Carney is looking to build faster.

Outside of rights recognition, both Rosenberg and McCormick said they see the legislation as a positive step toward ensuring First Nations have the infrastructure and supports they need to provide clean drinking water to their members.

“It has the potential to be transformative for individuals living on reserve who do not have access to clean and safe drinking water. It sets out an important framework for the steps that need to be taken to ensure that clean and safe drinking water is available,” McCormick said.

Rosenberg said the legislation should be passed as soon as possible so that First Nations are no longer stuck in a “legislative vacuum” and have enforceable water standards. He also said the bill’s language on rights should be amended.

“This one is urgent. There is no legally enforceable standard for water on reserve,” he said.

“No one would put up with that if it were anywhere other than First Nations, many of which are remote, when they’re experiencing these serious problems with their water systems.”

This report by The Canadian Press was first published June 17, 2026.

Alessia Passafiume, The Canadian Press