The Right to Safe Water and Crown-Aboriginal Fiduciary Law. Litigating a Resolution to the Public Health Hazards of On-Reserve Water Problems

• Author: Constance MacIntosh
• Profession: Associate Professor of Law and Director, Health Law Institute, Schulich School of Law, Dalhousie University
• Pages: 281-307

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chapter 9

THE RIGHT TO SAFE WATER AND

CROWN-ABORIGINAL FIDUCIARY LAW

LITIGATING A RESOLUTION

TO THE PUBLIC HEALTH HAZARDS OF

ON-RESERVE WATER PROBLEMS

constance Macintosh*

A. INTRODUCTION

The focus of this ch apter is relations of injustice and f‌inding a route for

realizing a core socia l right that many Indigenous peoples live without: ac-

cess to safe drink ing water. This chapter explores whether f‌iduciar y law

could be the enabling inst rument for Indigenous peoples residing on re-

serves to gain consistent access to sa fe drinking water. The context driving

this work can be sum marized with reference to three key facts.

First, there is growi ng international consensu s that access to safe water

in adequate quantities is a hum an right simply because it is foundationa l

for human well-being and, thus, a precondition for enjoying ma ny other

recognized rights. Fundamentally, this right is def‌i ned as entitling everyone

“to sucient, safe, acceptable, physically accessible and a f‌fordable water for

personal and domestic uses.”1 When elements of this right are not realized,

there is a high risk for outbreak and spread of commun icable diseases, and

* Associate P rofessor of Law and Director, Hea lth Law Institute, Sc hulich School of

Law, Dalh ousi e Univ ersit y.

The author tha nks Marth a Jackman and Bruce Por ter for their encouragement

to explore the issues r aised in this ch apter, as well as all the pa rticipants of the 2011

CURA sy mposium for their colleg iality and schola rly generosity. The author also

thank s Zeynep Hursevoglu for her metic ulous research ass istance.

1 UN Committee on E conomic, Social and Cult ural Rights, Ge neral Comment No 15:

The Right to Water (Arts 11 a nd 12 of the International Covenant on Economic , Social and

Cultural Rights), UNE SCOR, 29th Sess, UN Doc E/C .12/2002/11, (2002) at 1 & 2.

282 ► constance macintosh

basic hygiene practices essential to good hea lth are undermined. Second,

for decades we have known that Indigenous Can adians residing on reserves

often live with risky water and have been denied the fundamenta l human

right to safe drin king water on an intergenerational level. This is obviously

part of the matri x that has resulted in I ndigenous peoples bearing a dispro-

portionate burden of ill health compared to ot her Canadians .2 This situa-

tion, where Indigenous peoples are often denied access to safe water, has

garnered considerable internationa l criticism for several decades and has

been identif‌ied as inconsistent with Ca nada’s obligations under key inter-

national human r ights instru ments, which implicitly recognize a right to

safe water.3 The f‌inal f act in this triumvirate is that Can ada has become a

leader in resisting the intern ational trend of explicitly recogni zing water

rights a s human rig hts.4 This bodes poorly v is-à-vi s Canada having a mean-

ingful politica l commitment to remedying its domestic situation.

Canada’s resistance was exemplif‌ied i n 2008 when the United Nations

Human Rights Counc il put forward a resolution to recognize access to safe

water in adequate quantities as a hu man right and, importantly, to create a

body to monitor State compliance with thi s resolution. Can ada front lined

the opposition, which ultimately led to the resolution’s being defeated.5 In

a similar vein, C anada was one of forty-three States that abst ained when a

General Assembly resolution recognizi ng access to water as a human right

was passed in 2010.6 The abstaining States objected on severa l bases, in-

cluding arguments th at the General Assembly was the wrong forum and

2 See Constance MacInt osh, “Indigenous Peoples and Hea lth Laws and Policies:

Responsibil ities and Obligations” in Jo celyn Downie, Timothy C aulf‌ield, & Colleen

Flood, eds, Ca nadian Health Law and Policy, 4th ed (Mark ham, ON: LexisNexi s

Canada , 2011) at 581–84.

3 See, for example, Economic a nd Social Counci l, Concluding Observations of the

Committee on Economic, Soci al and Cultural Rights: Canada, CESCR , 36th Sess, UN Doc

E/C.12/CAN/CO/4, (2006) at para s 11(d) and 64.

4 David Boyd, “No Taps, No Toilets: First Nations a nd the Constitutiona l Right to

Water in Canada” (2011) 57:1 McGil l LJ 81 at 126.

5 See Lynda Collins, “ Environmental R ights on the Wrong Side of History: Re visiting

Canada’s Position on the Hu man Right to Water” (2010) 19:3 RECIEL 351 at 3 51. The

author provides a fu lsome discussion of inte rnational law in t his area.

6 T he Human Right to Water and Sanitation, GA Res A /RES/64/292, UNG AOR, 64th

Sess, A/64/ L.63/Rev.1, (2010); UN-Water Decade Prog ramme on Advocacy and

Communication a nd Water Supply and Sanitation Col laborative Council , Media

Brief, “The Hu man Right to Water and San itation,” online: UN ww w.un.org/

waterforlifede cade/pdf/hu man_r ight_to_water_ and_san itation_me dia_brief.pdf .

This docu ment provides an overview of t he resolution.