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Clean Drinking Water on Trial: Should this Basic Human Right be a Positive Legal Duty?

Last week, a momentous three-day hearing took place at the Federal Court. The question on trial is whether the Canadian government has a legal obligation to provide First Nations with safe drinking water.


This trial marks the first step in a class-action lawsuit filed by Shamattawa First Nation in northern Manitoba, representing 59 other First Nations communities nationwide, all of whom have faced long-term water advisories.[1]


Shamattawa, currently under a six-year boil-water advisory, argues that Canada has breached its legal obligation to provide safe drinking water, resulting in widespread hardship, illness,and human rights violations.[2] In response, the Canadian government maintains it has no legal duty to provide clean water to First Nations, asserting its involvement is a political commitment, not a legal obligation.[3] This dismissive stance, which conflicts with the government’s fiduciary duty to Indigenous peoples, has been condemned as a “national embarrassment.”[4]


Should Providing Clean Drinking Water be a Positive Legal Duty Based on International Human Rights Standards? 


In 2010, the United Nations passed Resolution 64/292, formally recognizing the human right to water and sanitation, declaring it essential to the realization of other human rights.[5] Even earlier, in 2002, the UN Committee on Economic, Social and Cultural Rights emphasized that “[t]he human right to water is indispensable for leading a life in human dignity” and that this right requires water access that is “sufficient, safe… physically accessible and affordable.”[6]


In the years following the Resolution, Canada has set out plans “to ensure everyone in Canada has access to drinking water.”[7] Although this plan has allowed the allocation of $5.6 billion “to build and repair water and wastewater infrastructure and support effective management and maintenance of water systems on reserves,” and 145 bold water advisories have been lifted since 2015, these efforts have fallen short without clear legislated standards.[8] Furthermore, Canada’s plan fails to adequately acknowledge the disparity between Indigenous and non-Indigenous Canadians in receiving access to clean water, nor the systemic issues that led to that disparity.


The Need for Bill C-61


Bill C-61, the First Nations Clean Water Act, aims to fill this gap by legislating First Nations’ right to clean water in Canada.[9] Key provisions of Bill C-61 include: 

  • Affirming First Nations’ inherent right of self-government including jurisdiction over water, drinking water, source water, wastewater, and related infrastructure related to their lands;

  • Ensuring free, prior, and informed consent in decision-making under the bill; 

  • Establishing minimum standards of water quality and delivery; 

  • Creating “protection zones” for water on and off First Nations lands.[10]


However, concerns remain. The bill lacks provisions for guaranteed statutory funding and relies on “best efforts” language, which is less binding than many advocates would desire.[11] Despite these shortcomings, Bill C-61, if constructed adequately, would represent a significant step towards addressing the long-standing systemic issues that have deprived First Nations of their right to clean drinking water.[12]


What’s Next?


As the nation awaits Justice Paul Favel’s decision on whether Canada has a legal obligation to provide First Nations with safe drinking water, there are still 33 boil-water advisories in Canada, some of which have been in place as long as 29 years.[13] This decision as well as Bill C-61 represents a critical opportunity for meaningful change. It could deliver justice and safe water to Indigenous communities long denied these fundamental human rights. 


Stay tuned as this crucial story continues to develop.


ekosi.


The ReconciliACTION Team



Citations

[1] Brett Forester, “Judge reserves decision on Canada’s legal duty to provide First Nations with safe water”, CBC News (9 October 2024), online: <https://www.cbc.ca/news/indigenous/judge-reserves-water-duty-decision-1.7347867>.

[2] Ibid.

[3] Ibid.; See also “AMC Responds to Canada’s Position in Class Action Lawsuit on Clean Drinking Water”, Assembly of Manitoba Cheifs Communications (8 October 2024), online: <https://manitobachiefs.com/press_releases/amc-responds-to-canadas-position-in-class-action-lawsuit-on-clean-drinking-water/>.

[4] Stephanie Cram, “AFN national chief urges all parties to support First Nations clean drinking water legislation”, CBC News (10 October 2024), online: <https://www.cbc.ca/news/indigenous/afn-drinking-water-legislation-1.7349242>.

[5] United Nations Department of Economic and Social Affairs (UNDESA), “International Decade for Action ‘Water for Life’ 2005-2015”, (accessed 13 October 2024) online: <https://www.un.org/waterforlifedecade/human_right_to_water.shtml>.

[6] Ibid.

[7] Government of Canada, “Sustainable Development Goal 6: Clean water and sanitation”, (accessed 13 October 2024) online: <https://www.canada.ca/en/employment-social-development/programs/agenda-2030/clean-water.html>.

[8] Ibid

[9] Bill C-61: An Act respecting water, source water, drinking water, wastewater, and related infrastructure on First Nation land, 1st Sess, 44th Parl, 2021 (second reading and referral to committee 5 June 2024).

[10] Brittany Collier and Marlisa Tiedemann, “Legislative Summary of Bill C-61: An Act respecting water, source water, drinking water, wastewater, and related infrastructure on First Nation lands” (19 March 2024) online (pdf): <https://lop.parl.ca/staticfiles/PublicWebsite/Home/ResearchPublications/LegislativeSummaries/PDF/44-1/PV_44-1-C61-E.pdf>.

[11] Supra note 4. See also “Update – Bill C-61, An Act respecting water, source water, drinking water, wastewater, and related infrastructure on First Nation lands (First Nations Clean Water Act” (accessed 13 October 2024), online (pdf): <https://afn.bynder.com/m/457fb73012c4f194/original/Leave-Behind-Bill-C-61.pdf>.

[12] Ibid.

[13]  Liam Casey, “‘Life is Hard’: Ontario First Nation under 29-year boil water advisory”, Global News (26 September 2024), online: <https://globalnews.ca/news/10776286/boil-water-advisory-nesktantaga/>. See also Supra note 4.

[Image] Water Canada, “Gov’t of Alberta Funds Projects to Deliver Clean Drinking Water in 14 Communities” (19 March 2019), online: <https://www.watercanada.net/govt-of-alberta-funds-projects-to-deliver-clean-drinking-water-in-14-communities/>.


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