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The Congress of Aboriginal Peoples (CAP) is the national voice for off-reserve Indigenous Peoples and is recognized by the Government of Canada as one of the five National Indigenous Representative Organizations. This post by Melanie Bateman, CAP’s Water Resources Coordinator, introduces CAP and its priorities related to water governance, such as water policy coherence and coordination with respect to Indigenous Peoples’ rights to water and equitable participation in water governance.

About CAP and off-reserve Indigenous Peoples

CAP’s mandate is to improve the socio-economic conditions of off-reserve urban and rural, status and non-status Indians, Métis, and Southern Inuit Indigenous Peoples. CAP was founded in 1971 as the Native Council of Canada, the grassroots-organized national advocacy organization of its affiliated provincial and territorial organizations (PTOs). The 11 PTOs remain the governing body of CAP, working together to promote and advance the common interests, collective and individual rights, interests and needs of its constituencies. CAP believes that all Indigenous Peoples in Canada should be rightfully treated with respect, dignity, integrity, and equality and experience a high quality of life, founded on the rebuilding of our Nations. As a national organization, CAP works collectively with its 11 PTOs to address the unique challenges faced by off-reserve Indigenous Peoples and ensure their voices are heard in policy-making processes.

The Canadian census identified 1.81 million Indigenous persons in Canada in 2021. Out of that total an estimated 975,530 (54%) are non-status (i.e., not a registered or treaty Indian). Among the Inuit population, 21,825 (31%) out of the 70,540 total Inuit population in Canada are living outside/south of Inuit Nunangat. Among the Métis population, 440,637 (71%) of the 624,220 total Métis population are not part of one of the five signatory organizations to the Canada-Métis Nation Accord nor living in an Alberta Métis settlement. The off-reserve Indigenous population continues to grow and currently stands at 82% of the total Indigenous population in Canada, up from 56% in 2016.

Above photos from the Congress of Aboriginal Peoples' Environment Summit, 2023. All images in this story, including the header, are © the Congress of Aboriginal Peoples.

Our Challenge With Water Governance 

Water management in Canada is governed by a complex patchwork of legislation and policy by federal, provincial, municipal, territorial, and Indigenous governments. Numerous questions continue to arise about who has what authority in different circumstances and what is the overall policy coherence for water decision-making throughout Canada. Indigenous Peoples living off-reserve, who are affected by the decisions of these many water authorities, are uncertain about which levels of government they should address to raise their issues, concerns, and needs. This uncertainty arises because responsibilities toward Indigenous Peoples (the federal government’s jurisdiction) do not often align with responsibilities toward water governance (often provincial, territorial, and municipal governments’ jurisdictions). For our brothers and sisters who reside on Indian Act reserves (First Nations), the federal government and First Nations communities have powers and mechanisms to cooperatively address their particular water issues on-reserve. In contrast, for our off-reserve community, the federal government lacks jurisdiction over most of the lands and waters where we reside and that we use and provincial governments have a long history of refusing to engage with our PTOs on Indigenous rights issues.  

In 2016, the Supreme Court of Canada, in the CAP-Daniels Decision, resolved the “jurisdictional wasteland” off-reserve Indigenous Peoples have found themselves in, the latter which has had “significant and disadvantaging consequences”. Upon declaring our constituency to be “Indians” within the federal constitutional heading 91(24) “Indians and lands reserved for Indians”, the Supreme Court provided the policy pathway by also stating that “it is the federal government to whom they can turn”; though it also recognized that courts “should favour, where possible, the ordinary operation of statutes enacted by both levels of government”.

In the case of water governance within Canada, CAP has offered to engage with the Government of Canada and other jurisdictions and water experts through the Canada Water Agency and other forums to devise coherent water policy and engagement mechanisms which advance the CAP-Daniels Decision.

CAP's Water Priorities

1. CAP requires the inclusion of off-reserve Indigenous Peoples in water decision-making processes. Freshwater legislation must be reviewed through the lens of the CAP-Daniels Decision, to address the concerns of off-reserve Indigenous Peoples while collaborating with provincial, territorial, and municipal governments.
2. CAP emphasizes the recognition of the Rights of Mother Earth1, highlighting the lifegiving importance of water and its interconnection throughout Earth and all living beings. 
3. CAP advocates for recognition of the immense benefits Indigenous communities should derive from equitable access to water and for sharing the myriad of uses that humanity has derived from water and Indigenous Peoples’ traditional knowledge, including new developments such as aquatic genetic resources biotechnology2. 
4. CAP reiterates the overarching importance of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)3 including Indigenous Peoples rights to lands, territories, and resources and to be involved in decision-making about them. CAP suggests collaboration with the new Canada Water Agency to explore the intersection of UNDRIP implementation with the many laws, policies, and programs that govern or affect water or access to/use of water.
5. Water policy needs to adopt a holistic "One Water" approach that considers the entire water cycle, including downstream and surrounding ecosystem impacts. This approach should be applied not only to freshwater but also to all water-related research, projects, programs, and outputs. Breaking down silos between drinking water, wastewater, and stormwater management ensures a comprehensive perspective, promoting sustainable water management practices.
6. The impact of colonization and sexism has disproportionately affected Indigenous women, creating multiple barriers for their participation in water governance and decision-making processes. Indigenous women are respected as ‘water carriers’ and life bringers. To address these challenges, water legislation should adopt a Gender-based analysis plus (GBA+) lens that includes Indigenous women and gender diverse individuals. 
7. CAP and PTOs face challenges in terms of technical expertise and funding to raise public awareness about the needs and issues of off-reserve Indigenous Peoples related to water. Adequate funding is necessary to build capacity, organize efforts, and ensure the respectful, full, and effective participation of off-reserve Indigenous Peoples in water governance at all levels.
8. Freshwater legislation should adopt a forward-looking approach to guarantee clean, healthy, safe, and sustainable water for future generations. CAP recommends that decision-makers consider local Indigenous communities’ customary laws and practices, such as the Haudenosaunee 7th Generation Principle.
9. The Canada Water Act should be updated, to reflect Canada's adoption of UNDRIP. This includes incorporating an Aboriginal non-abrogation and non-derogation clause, requiring consultation with Indigenous Peoples, and integrating Indigenous traditional knowledge in decision-making processes. The Act should create opportunities for decision-makers and Indigenous Peoples to evolve the right to safe, clean, healthy, and sustainable water.
10. It is unacceptable for Canada, as one of the wealthiest and most developed countries in the world, to have substandard water infrastructure. While tertiary treatment is obviously ideal, its prioritization in wealthier areas cannot come at the cost of leaving more rural or poorer communities behind with only primary or no treatment – that is environmental racism.

CAP discusses these priorities and others in a recent public report which can be obtained by contacting the report authors4. For further questions and engagement contact the CAP Water Resources Coordinator Melanie Bateman at [email protected].

1 Universal Declaration of the Rights of Mother Earth, 2010
2 See Iskenisk Declaration and Petkoutkoyek Statement on the Access, Use, and Fair and Equitable Sharing of Benefits Arising Out of the Utilization of Genetic Resources and Associated Traditional Knowledge in Canada, Maritime Aboriginal Peoples Council and Access and Benefit Sharing Canada
3 United Nations Declaration on the Rights of Indigenous Peoples, UN General Assembly Resolution A/RES/61/295
4 Joshua McNeely, Director of Environment: [email protected]; or Melanie Bateman, Water Resources Coordinator: [email protected]