Drinking Water in First Nations Communities: Has Canada Breached its Fiduciary Duty?

Posted By Stephanie Hewson

Three years ago, the Attawapiskat First Nation in northern Ontario made headlines for the disastrous condition of housing, water treatment and sanitation on the reserve. Yet Attawapiskat is not unusual in Canada, and of the First Nations communities in Canada with little or no access to clean drinking water, its situation is not the most dire. In Pikangikum, Ontario, 80% of the community lacks sewage pipes or running water, and raw sewage from the community can flow directly into the lake. In Little Buffalo, Alberta, a Lubicon Cree First Nation of 225 people, there is no running water, and residents drive one hour each way to Peace River to buy bottled water.

Aboriginal Affairs and Northern Development Canada (AANDC) and Health Canada share responsibility with First Nations for the management of water on reserves. But the infrastructure on reserves for water and wastewater management is crumbling. As of February 2014, there were 135 drinking water advisories in 92 First Nations communities, which represent 15% of First Nation communities. According to the most recent national assessment of First Nations water systems, 66% of wastewater treatment centers on First Nations reserves are a high or medium risk to water quality and human health.

Critics argue that the federal government has transferred responsibility to First Nations without providing enough funding to ensure that drinking water on reserves would match the quality of off-reserve water.  In 2013, Parliament passed the Safe Drinking Water for First Nations Act. AANDCsaid the Act ensures reliable, safe drinking water on reserves by creating legal binding standards for water quality. The Assembly of First Nations, however, has criticized the government for imposing new responsibilities and costs – servicing needs across Canada are estimated at $4.7 billion – on First Nations without the resources to finance them.

Has Canada breached its fiduciary duty to First Nations? Four Alberta First Nations—Tsuu T’ina, Ermineskin, Sucker Creek and Blood First Nations—filed a claim against the federal government in July over the state of their drinking water. The plaintiff First Nations claim that Canada has breached its fiduciary duty under Treaties 6, 7 and 8 in its management of reserves by creating and sustaining unsafe drinking water conditions. Additionally, they claim Canada has violated of sections 7 and 15(1) of the Charter of Human Rights and Freedoms in light of Canada’s international legal obligations to provide access to safe drinking water.

The plaintiff First Nations claim that unsafe drinking water has had devastating consequences for the affected communities. Reserves without safe drinking water have higher incidences of gastrointestinal infections, skin infections, urinary tract infections and ear and eye infections. The water is often visibly polluted and unfit for non-drinking purposes, such as showering and washing clothing. Some community members have chosen to move off reserves in order to have reliable clean drinking water.

The plaintiff First Nations claim that Canada has violated section 7 of the Charter because of the physical, psychological and emotional harm caused by the inability to access safe drinking water. They also claim a section 15 violation because aboriginal people are a historically disadvantaged group, and claim that drinking water on reserves is unsafe compared to similarly situated off-reserve non-aboriginal communities, as well as federal employees assigned to work on reserves.

The United Nations General Assembly has stated that the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child, two human rights agreements that Canada has ratified, include the right to water and sanitation. Will the Court recognize a right to clean water, and Canada’s duty to provide it? The health of Canadian First Nations and the viability of life on reserves hang in the balance.

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