No taps, no toilets: First Nations and the constitutional right to water in Canada.

• Author: Boyd, David R.

In 1977, the Canadian federal government promised to provide reserves with water and sanitation services comparable to similarly situated non-Aboriginal communities. Despite some progress, thousands of First Nations people, living on reserves across Canada, still lack access to running water or flush toilets. The adverse health effects associated with inadequate water infrastructure include elevated rates of communicable diseases such as influenza, whooping cough (pertussis), shigellosis, and impetigo. Do First Nations have an enforceable constitutional right to water? This article suggests that they do, based on the right to life, liberty, and security of the person under section 7 of the Canadian Charter of Rights and Freedoms; the right to equality under section 15 of the Charter; and governments' obligation to provide "essential public services of reasonable quality to all Canadians" under section 36 of the Constitution Act, 1982. The legal arguments available pursuant to these constitutional provisions are buttressed by Canada's obligations pursuant to international human rights law.

En 1977, le gouvernement federal canadien a promis de fournir des reserves qui auraient un acces a l'eau et des installations sanitaires comparables aux communautes non autochtones. En depit de certains progres, des milliers de membres des Premieres Nations vivant dans des reserves a travers le Canada n'ont toujours pas acces a l'eau courante. Les effets negatifs sur la sante, associes a une infrastructure liee a l'eau inadequate, inclus des taux plus eleves de maladies contagieuses comme l'influenza, la coqueluche, la shigellose et l'impetigo. Les Premieres Nations ont-elles un droit constitutionnel a l'eau ? Cet article suggere que oui, en se basant sur le droit a la vie, a la liberte et a la securite de sa personne sous l'article 7 de la Charte canadienne des droits et libertes ; le droit a l'egalite sous l'article 15 de la Charte ; et l'obligation du gouvernement de > sous l'article 36 de la Loi constitutionnelle de 1982. Les arguments legaux disponibles suivant ces dispositions constitutionnelles sont etayes par les obligations du Canada en droit international des droits de l'homme.

Introduction I. Mixed Progress in Providing First Nations with Access to Potable Water A. Pikangikum (Ontario) B. Kitcisakik (Quebec) C. Little Buffalo (Alberta) D. St. Theresa Point, Wasagamack, Red Sucker Lake, and Garden Hill (Manitoba) II. The Legal Framework Governing Safe Drinking Water in Canada A. The Provincial and Territorial Legal Framework for Drinking Water B. The Federal Legal Framework for Drinking Water III. The Right to Life, Liberty and Security of the Person (Section 7 of the Charter) A. Deprivation of the Right to Life, Liberty and Security of the Person B. Is the Deprivation in Accordance with the Principles of Fundamental Justice? C Justification Under Section 1 of the Charter IV. The Right to Equality (Section 15 of the Charter) A. Is the Distinction or Differential Treatment Based on an Enumerated or Analogous Ground? B. Is the Distinction or Differential Treatment Discriminatory? C. Justification Under Section 1 of the Charter V. The Federal and Provincial Governments' Obligation to Provide Essential Public Services of Reasonable Quality to all Canadians (Section 36 of the Constitution Act, 1982) VI. International Law and the Human Right to Safe Drinking Water VII. Constitutional Remedies Conclusion Water is the essence of life and human dignity.

World Health Organization (1)

Access to safe water is a fundamental human need and, therefore, a basic human right.

Kofi Annan, Former United Nations Secretary-General (2)

Putting the point bluntly, except for the very poorest nations in the world and for those constrained by military occupation, any government that does not provide the 25 to 50 litres of water per person-day commonly deemed necessary for a minimal quality of life is incompetent or corrupt. (3)

Introduction

Is there a constitutional right to safe drinking water in Canada? To the vast majority of Canadians, this may seem a moot question, since 100 percent of urban residents and 99 percent of rural residents have access to improved drinking water and sanitation as of 2008. (4) Although this big picture is generally bright, pockets of darkness remain. As the preceding statistics indicate, there are still rural communities, comprising roughly 1 percent of Canada's population, where comprehensive access to running water, safe drinking water, and indoor toilets is an aspiration rather than reality. These rural communities are predominantly, if not exclusively, reserves inhabited by First Nations. (5) Reserves are much more likely to experience high-risk drinking water systems and long-term boil water advisories. (6) The disparity between water quality on and off reserve in Canada has been criticized by the United Nations Committee on Economic, Social and Cultural Rights, (7) the Royal Commission on Aboriginal Peoples, (8) and the Auditor General of Canada. (9)

The situation has improved considerably over the past twenty years, but major disparities persist. As of 2010, forty-nine First Nations communities have high-risk drinking water systems and more than one hundred face ongoing water advisories (10) (out of roughly 615 First Nations communities in Canada (11)). Many of these deplorable situations have prevailed for years and, in some cases, for over a decade. (12) The federal government estimates that there are approximately five thousand homes in First Nations communities that lack basic water and sewage services. (13) Compared to other Canadians, First Nations' homes are ninety times more likely to be without running water. (14) Examples of First Nations communities where, as of 2010, the majority of residents still lack running water, access to safe drinking water, and indoor toilets include Pikangikum in Ontario; Kitcisakik in Quebec; St. Theresa Point, Wasagamack, Red Sucker Lake, and Garden Hill in Manitoba; and Little Buffalo in Alberta. (15) The lack of access to safe drinking water has adverse physical and psychological effects. The federal government admits that "[t]he incidence of waterborne diseases is several times higher in First Nations communities, than in the general population, in part because of the inadequate or non-existent water treatment systems." (16)

The Canadian Government does not recognize the right to water, either internationally or domestically. (17) When the United Nations (UN) General Assembly approved a resolution recognizing water as a human right in 2010, (18) 124 countries supported the resolution while none were opposed. (19) Canada was among forty-two countries that abstained from voting, (20) and it has a history of blocking international efforts to recognize the right to water. (21) The Canadian Constitution Act, 1982 (Constitution) (22) does not explicitly acknowledge a right to water. There is no federal legislation explicitly recognizing the right to water in Canada. (23) To date, no Canadian court has acknowledged the right. (24) In the only reported decision addressing the subject, involving a case where British Columbia residents unsuccessfully sought to stop logging activities in their watershed, the judge held that "[t]here is not before me an established case for the concept of a 'right' to clean water." (25)

However, recent developments indicate growing support for legal recognition of the right to water in Canada. Quebec recently became the first province to formally recognize water as a human right in legislation: "Under the conditions and within the limits defined by the law, it is the right of every natural person to have access to water that is safe for drinking, cooking and personal hygiene." (26) In 2007, the Legislative Assembly of the Northwest Territories passed a resolution recognizing that "all peoples have a fundamental human right to water that must be recognized nationally and internationally, including the development of appropriate institutional mechanisms to ensure that these rights are implemented." (27) The Land Claims Agreement of the Labrador Inuit recognizes the right for the Inuit "to enjoy [w]ater that is on, in, under, flowing through or adjacent to Labrador Inuit Lands." (28)

Water is regarded as sacred by many First Nations cultures. (29) As a leading First Nations scholar wrote, "water misuse and pollution across Canada" causes "multiple disruptions of indigenous peoples' cultures, traditions, and economies." (30) The Assembly of First Nations considers access to safe drinking water to be a basic human right. (31)

In the absence of explicit legal recognition of the right to water, the few Canadians who lack access to this essential public service are placed in the untenable position of being "mere supplicants", dependent on the will of federal and/or provincial governments to make safe drinking water a priority. The purpose of this article is to explore the proposition that all Canadians possess a constitutional right to water, a legally enforceable right that the federal and provincial governments are violating for some First Nations people living on reserves. The constitutional right to water derives from three provisions: "the right to life, liberty and security of the person" under section 7 of the Canadian Charter of Rights and Freedoms (Charter); (32) the right to equality under section 15 of the Charter; (33) and the federal and provincial governments' commitment to "providing essential public services of reasonable quality to all Canadians" under section 36 of the Constitution. (34) The constitutional right to water is buttressed by Canada's obligations under international human rights law.

Excluded from the scope of this article are questions regarding Aboriginal title, Aboriginal rights, the federal government's fiduciary duty to Aboriginal peoples, and treaty rights related to the use, management, and...