The mandate of the FNAC has been expressly approved by the courts in the “First Nations Advisory Committee on Safe Drinking Water and Water Governance Fund: Terms of Reference” which are set out below.

Recitals

WHEREAS:

1. The Settlement Agreement dated September 15, 2021 in the class actions styled as Curve Lake First Nation and Chief Emily Whetung on her own behalf and on behalf of all members of Curve Lake First Nation and Neskantaga First Nation and Chief Christopher Moonias on his own behalf and on behalf of all members of Neskantaga First Nation v Attorney General of Canada, Court File No. T-1673-19 in the Federal Court, and Tataskweyak Cree Nation and Chief Doreen Spence on her own behalf and on behalf of all members of Tataskweyak Cree Nation v Attorney General of Canada, Court File No. CI-19-01-24661 in the Manitoba Court of Queen’s Bench (as amended from time to time, the “Settlement Agreement”) provided for the creation of the First Nations Advisory Committee on Safe Drinking Water (“FNAC”), to be funded by Her Majesty the Queen in Right of Canada (“Canada”) between the time that the Courts approve the Settlement Agreement and the fiscal year ending March 31, 2026 (the “Term”) in an amount up to $20,000,000;
2. Pursuant to the Settlement Agreement, Canada agreed to provide a further $9,000,000 in funding for First Nations to pursue governance initiatives and by-law development through the end of the Term (the “Water Governance Fund”); 
3. The Settlement Agreement called for the terms of reference for the FNAC and the Water Governance Fund to be developed jointly by the Parties; 
4. The Settlement Agreement was approved by the Courts on December 22, 2021;
5. The Parties wish to extend participation in the FNAC and the Water Governance Fund to the members of all First Nations that experienced a Long-Term Drinking Water Advisory after November 20, 1995 (all such persons who are not Class Members are “Affected Persons”); and
6. All capitalized terms used but not defined in these Terms of Reference have the meanings given to such terms in the Settlement Agreement. 

NOW THEREFORE, the Parties agree to the following:

Mandate

7. The mandate of the FNAC (the “Mandate”) is as follows:
   1. work with Class Members and Affected Persons to provide oversight, guidance, and recommendations to Canada to support the development and implementation of forward-looking policy initiatives and transformational services, including:
      1. the development of Canada’s Long Term Strategy for Water and Wastewater on Class Members’ and Affected Persons’ Reserves; and 
      2. the development of legislation (the “Replacement Legislation”) to replace the Safe Drinking Water for First Nations Act, S.C. 2013, c. 21, including by reviewing proposals related to the Replacement Legislation and providing feedback thereon;
   2. contribute strategic advice and perspectives to Canada and First Nations in order to advance the long-term sustainability of safe drinking water in First Nations communities and its safe use for all purposes in those communities and to support the fulfillment of the Commitment; 
   3. support the identification and prioritization of funding for water and wastewater and related projects and infrastructure in First Nations communities; 
   4. provide guidance to Canada and First Nations on the fulfillment of the Commitment and support for Class Members and Affected Persons in obtaining safe drinking water on their Reserves; 
   5. make recommendations for the distribution of the Water Governance Fund; and
   6. collect and provide Class Members’ comments to the Settlement Implementation Committee (“SIC”) with respect to:
      1. the implementation of the Settlement Agreement, including identifying any problems with the implementation of the Settlement Agreement and providing feedback on the performance of the Administrator; and
      2. Canada’s progress in meeting the Commitment.  

Membership

8. The FNAC will consist of between 10 and 15 members (“Members”), comprising:
   1. 1 representative of each of Curve Lake First Nation, Neskantaga First Nation and Tataskweyak Cree Nation, in each case nominated by the band council of such First Nation and appointed in accordance with Sections  9, 10 and 11 (the “Representative Plaintiff Members”); and
   2. between 7 and 12 representatives of Class Members and Affected Persons, in each case nominated by the Representative Plaintiff Members and appointed in accordance with Sections 9, 10 and 11.
9. The Representative Plaintiff Members will consider applications for membership on the FNAC from Class Members and Affected Persons.  In nominating Members of the FNAC, the Representative Plaintiff Members will have regard to the diversity of Class Members’ and Affected Persons’ communities, languages, genders, geographies, skills, expertise, and experiences with water insecurity, including but not limited to:
   1. Remote and non-Remote Reserves;
   2. regional representation;
   3. large and small Reserve populations;
   4. self-governing First Nations; 
   5. public health and/or technical expertise; and
   6. First Nations with varying levels of access to safe drinking water on their Reserves.
10. If the Representative Plaintiff Members cannot reach consensus on a nominee or nominees to ensure that the FNAC has a minimum of 10 Members, the Courts will appoint Members in accordance with the criteria set out in Section 9 to ensure that the FNAC has a minimum of 10 Members. 
11. All Members nominated to the FNAC must be appointed on consent of the Joint Committee and Canada. If the Joint Committee approves a nominee but Canada does not, the Joint Committee may seek the Courts’ approval of the nominee’s appointment as a Member.

Term

12. The FNAC will operate through the end of the Term.
13. The Term may be extended by mutual agreement of Canada and at least 75% of the Members in attendance at a duly constituted meeting of the FNAC (“Supermajority Approval”).
14. Members will serve for the full Term unless they resign, or are terminated or removed, as provided in Sections 15, 16 and 17. If the Term is extended pursuant to Section 2, Members will have the option to continue to serve on the FNAC or to resign, in which case new Members will be appointed in accordance with Sections 9, 10 and 11.

Resignation and Replacement of Members

15. If a Member wishes to resign from the FNAC prior to the expiry of the Term, they may do so by notifying the Co-Chairs in writing, noting the effective date of their resignation. Where possible, Members will provide two weeks’ notice of resignation. 
16. Members may be terminated by Supermajority Approval of the FNAC. Grounds for termination include, but are not limited to:
    1. failure to act in accordance with these Terms of Reference;
    2. to avoid real, potential or apparent conflicts of interest; and
    3. repeated failure to attend FNAC meetings without satisfactory reason.

17. Members may be removed by order of the Courts on recommendation of the Joint Committee and Canada.
18. On resignation, termination, or removal of a Member: 
    1. A new Member may be nominated and appointed in accordance with Sections 9, 10  and 11; or 
    2. provided that FNAC does not consist of fewer than 10 Members, the FNAC may decide to leave the resigning Member’s position unfilled. 

Co-Chairs

19. The FNAC will appoint 2 Members as co-chairs (the “Co-Chairs”) to serve in such capacity for a term of 2 years.
20. Any Member may put themselves forward for consideration as a Co-Chair. 
21. If consensus cannot be achieved in the appointment of the Co-Chairs, the Co-Chairs will be selected by Supermajority Approval.
22. If one or both Co-Chairs cannot be appointed by consensus or Supermajority Approval, the Courts shall direct an appointment from among the Members to fill any vacant Co-Chair position.
23. At the end of their term, the Co-Chairs may stand for re-appointment.

SIC

24. The FNAC will appoint 2 Members as representatives to the SIC (the “SIC Representatives”), and they will serve in such capacity for a term of two years.
25. Any Member may put themselves forward for consideration as a SIC Representative. 
26. If consensus cannot be achieved in the appointment of the SIC Representatives, the SIC Representatives will be selected by Supermajority Approval.
27. If one or both SIC Representatives cannot be appointed by consensus or Supermajority Approval, the Courts shall direct an appointment from among the Members to fill any vacant SIC Representative position.
28. At the end of their term, the SIC Representatives may stand for re-appointment.

Secretariat

29. A secretariat (the “Secretariat”) will be established to support the administration of the FNAC, and it will consist of one Executive Director and one Technical Advisor.
30. The Executive Director will be selected by the Co-Chairs.
31. The Executive Director will receive compensation that is competitive with comparable public service administrative positions.
32. The Technical Advisor will be selected by the Co-Chairs. The Technical Advisor will be a representative of a technical services organization with expertise in water and wastewater systems on Reserves. 
33. The Technical Advisor will receive compensation at their usual hourly rate for similar work.

Roles and Responsibilities

34. Members of FNAC have a responsibility to offer their independent advice. Other responsibilities include:
    1. being available and prepared to participate in meetings, including in-person meetings, conference calls and videoconferences;
    2. participating in discussions before the FNAC prepares its advice to Canada; and
    3. notifying the Secretariat and Co-Chairs of any actual or potential conflicts of interest or any changes in their status relevant to the Mandate;
35. The Co-Chairs of the FNAC are Members selected and appointed by the FNAC to serve in such capacity. In addition to having all of the responsibilities of a Member, the Co-Chairs are responsible for:
    1. overseeing and chairing meetings;
    2. facilitating discussions among Members;
    3. providing input to the Executive Director on the FNAC meeting agenda;
    4. coordinating the development of FNAC reports and other deliverables as well as ensuring delivery of FNAC input to Canada; and
    5. supporting, in any other way, the fulfillment of the Mandate.
36. The Secretariat is housed in FNAC, reports to the FNAC, and acts as the administrative liaison between the FNAC and Canada. It also acts as a resource for Members. The Secretariat provides advice on the management of the FNAC and works closely with the Co-Chairs. In addition, the Secretariat:
    1. coordinates the Member appointment process;
    2. at the request of the FNAC, engages contractors, including, without limitation, researchers and technical or engineering experts, to assist in the fulfillment of the FNAC’s mandate;
    3. prepares meeting agendas, records of proceedings (including meeting minutes) and reports;
    4. assists the Co-Chairs with reports on specific topics;
    5. supports the FNAC in organizing committees and coordinating invited guests; 
    6. provides administrative support to FNAC and Members;
    7. receives proposals for funding from the Water Governance Fund;
    8. supports public access to information about the FNAC, as appropriate;
    9. prepares information and conducts background research for the FNAC;
    10. organizes meetings and related logistics; 
    11. keeps accounts of the funds expended by the FNAC and from the Water Governance Fund and provides these accounts to the Joint Committee and Canada on a yearly basis;
    12. keeps a record of advice from the FNAC to Canada and supports Canada in reporting back to the FNAC on how advice was incorporated or not incorporated into Canada’s strategy, policies, and programs; and
    13. carries out any additional duties, as appropriate, in support of the FNAC.

Meetings

37. Meetings will be held at least once per quarter for the duration of the Term and the Co-Chairs may convene additional meetings on an ad hoc basis as needed to address urgent matters.
38. Where practicable, meetings will be held in person, provided that Members shall have the option of attending meetings by any telephonic or electronic means that permits all Members to hear each other and to participate in the meeting.
39. Quorum for each meeting will be at least 50% of Members. 
40. In the event that one Co-Chair is unable to attend, the other Co-Chair will chair the meeting. If both Co-Chairs are expected to be absent for a meeting, they will nominate one to two Members to chair the meeting in their place. 
41. The FNAC may invite non-Member guests to attend and/or speak at meetings of FNAC, including the Minister and Deputy Minister of Indigenous Services. Any guests invited to attend a meeting of FNAC shall do so in an observer capacity and shall not be entitled to vote on any matter. 
42. The FNAC may request that appropriate representatives of Canada attend meetings to brief the FNAC on topics relevant to its mandate.
43. The Secretariat will notify Members of meeting dates and locations no less than 14 days prior to the date of each meeting, provided that shorter notice may be provided with respect to ad hoc meetings with the approval of FNAC. 
44. The Secretariat shall prepare the agenda for each meeting and circulate it to Members in advance of each meeting along with minutes from the previous meeting for approval, along with, where feasible, copies of presentations to be given at the meeting and materials to be discussed at the meeting.
45. The Secretariat will use reasonable efforts to provide translations of any materials or presentations to accommodate speakers of Indigenous languages or either English or French. 

Committees

46. The FNAC may form committees to address specific issues and purposes and may invite guests to attend and participate in such committees and their meetings. 

Remuneration and Expenses

47. An amount will be provided to all members to recognize their preparation for and participation in meetings. The details for FNAC remuneration, travel expenses and other costs will be provided for in a funding arrangement with Canada.

Water Governance Fund

48. The Water Governance Fund will assist First Nation Class Members, and the First Nations of Affected Persons, that wish to develop their own water-related governance initiatives, including by funding:  
    1. research; 
    2. technical advice; 
    3. drafting by-laws, to be reviewed by Canada at the request of the First Nation; and 
    4. the implementation of pilot projects on Reserves.

49. First Nation Class Members and the First Nations of Affected Persons may apply to the FNAC for funding from the Water Governance Fund.
50. The FNAC will recommend the allocation of the Water Governance Fund in accordance with the principles set out in Section 48 and criteria set by the Joint Committee and Canada.
51. Canada will administer the Water Governance Fund and make distributions informed by recommendations of the FNAC.
52. If the Joint Committee disagrees with a decision by Canada on distribution, the Joint Committee may use the Dispute Resolution provisions under the Settlement Agreement to resolve the dispute.

Deliberations, Decision-Making and Reports

53. In making decisions, the FNAC will strive to find common ground and consensus where possible. 
54. In reaching a decision, the FNAC will adhere to the following principles:
    1. all Members have an equal voice and an opportunity to be heard;
    2. “consensus” means accepting or consenting to a proposal that has achieved popular support from Members, even if the proposal is not a Member’s personal preference among the available options. Consensus does not require concurrence on every point, but rather broad agreement on the general approach and a willingness to accept an overall course of action;
    3. it is understood that Members have diverse perspectives, may have divergent views, and consensus on all matters is not required;
    4. if consensus is not practicable or required, or where a diversity of views may assist in the circumstances, the FNAC will report Members’ advice and highlight areas of concurrence and disagreement; 
    5. if consensus is required to take a decision, and the FNAC cannot reasonably achieve consensus, the Co-Chairs, or either of them, may direct a vote, and Supermajority Approval will be required to approve a decision; and 
    6. if Supermajority Approval cannot be obtained and it is necessary for the FNAC to make a decision, the Joint Committee may seek the Courts’ direction.
    7. FNAC advice may be provided to Canada orally or may take the form of a written report. The Secretariat will make final, written FNAC reports publicly available in French and English.

Transparency and Communication

56. The FNAC will operate in an open and transparent manner, and the Secretariat will make FNAC meeting minutes publicly available, with the exception of occasional items that FNAC deems confidential.
57. The Senior Assistant Deputy Minister, Regional Operations at Indigenous Services Canada and Director General shall jointly serve as Canada’s designated liaisons to the FNAC (the “Indigenous Services Canada Liaisons”). 
58. The Senior Assistant Deputy Minister will attend meetings of the FNAC as the Indigenous Services Canada Liaison as invited, and the Director General shall act as the Indigenous Services Liaison on a day-to-day basis.
59. The FNAC will provide its recommendations and advice to Canada through the Indigenous Services Canada Liaisons.  
60. The Secretariat shall make publicly available the names and biographies of all Members, copies of all approved meeting minutes, and a copy of these Terms of Reference.  
61. Members are requested to direct media inquiries about the FNAC to the Secretariat and to make the Secretariat aware of any media request to which they intend to respond in their capacity as a Member. The Secretariat will support Members in responding to any media inquiries, and make reasonable efforts to comply with any deadlines communicated by the Member.  However, Members will not be bound to follow the Secretariat’s advice or guidance.

Conflicts of Interest

62. A conflict of interest arises when a member’s private interests impair or could be perceived to impair their ability to participate in the FNAC collaboratively, constructively and with an open mind.
63. It is recognized that Members have existing relationships, including business or financial relationships, with and experiences involving First Nations, governments or communities, companies or projects, or with other people or organizations who could be impacted by projects and facilities regulated by Canada. These relationships and experiences are expected and valued. 
64. FNAC’s role is advisory; it not as an adjudicative body. Accordingly, conflicts of interest with respect to FNAC-related discussions and advice are expected to arise rarely, if ever.
65. In the event that a Member identifies a real or perceived conflict of interest, the Member shall: 
    1. notify the Co-Chairs ahead of any meetings where topics relevant to the real or perceived conflict of interest will be discussed;
    2. declare the real or perceived conflict of interest to the FNAC at that meeting; and
    3. if the Member considers it appropriate after discussing the real or perceived conflict of interest with the FNAC, or otherwise, recuse themselves from relevant discussions.

66. The Secretariat shall record any declared conflicts of interest and resulting recusals in the meeting minutes.
67. At any time, Members may seek advice from the Secretariat, who may engage legal counsel, regarding whether a real or perceived conflict of interest exists. Members may also raise questions or concerns regarding real or perceived conflicts of interest to the Co-Chairs for discussion with the FNAC, as may be appropriate in the circumstances.

Reporting by Canada

68. No less than quarterly, the Indigenous Services Canada Liaison will report to FNAC in writing with respect to: 
    1. how advice provided by FNAC was used and considered; and
    2. progress in the development of the Replacement Legislation.
69. The Secretariat will make Canada’s reports to FNAC publicly available, with the exception of occasional items deemed confidential by Canada.

Other Matters

70. The Terms of Reference, the advice and all the work product of the FNAC do not fulfill or replace the obligations of the Crown or other parties to any Indigenous communities, nor do they affect protocols created by First Nations for engaging government, industry or others, or for gathering, documenting, management or sharing Indigenous knowledge.
71. Additional governance or operational protocols or guidance may be developed by the FNAC, should a need arise. If there is a conflict between an additional protocol or guidance and these Terms of Reference, the Terms of Reference prevail.
72. The Terms of Reference are intended to be subject to continual improvement and may be amended at any time on consent of the Joint Committee and Canada. 
73. The Courts shall have jurisdiction to provide directions in respect of these Terms of Reference on a motion by the FNAC, the Joint Committee, or Canada.