What to do about the federal Safe Drinking Water for First Nations Act?

On October 1, 2012, Melissa Hotain (policy analyst at the Assembly of Manitoba Chiefs (AMC)) and Karen Busby (U of M law professor and founding academic director of the Centre for Human Rights Research (CHRR)) led a discussion on what to do about the federal Safe Drinking Water for First Nations Act, Bill S-8.

Hotain and Busby are part of a large research group of about 50 academic researchers, First Nations partners and community partners working together to address First Nations drinking water supply and sanitation issues.

According to recent federal reports, 39% of First Nations water systems are considered high risk, and only 45% of Manitoba First Nations homes have piped sewage.

Bill S-8 proposes that the Canadian government devise the first-ever regulations concerning water and wastewater in First Nations communities. Responses have been mixed. Some First Nations leaders, such as Grand Chief Charles Weaselhead of Treaty 7 in Alberta, feel optimistic that Bill S-8 will “lead to other measures necessary to ensure the safety of First Nations drinking water.”

However, AMC “does not support a legislative measure as an option to address safe drinking water needs for First Nations,” explained Hotain. “Water is a fundamental and integral part of [First Nations] inherent, Aboriginal and treaty rights and must not be circumscribed by legislation.”

Both presenters noted that there are a number of problems with Bill S-8. If passed, the federal government, not First Nations, would be the primary lawmaker for First Nations water issues, and third parties could enforce the regulations. Both of these changes could weaken Aboriginal and Treaty rights. Also, Bill S-8 does not address the gap between current funds and the expected costs needed to meet new regulations.

Busby and Hotain agree that the bill alone is not enough to solve First Nations water and wastewater issues. “If all you’re going to do is pass a whole bunch of regulations … nothing is going to happen unless the infrastructure and the capacity [are] there,” Busby said.

Bill S-8 was first introduced in February and is expected to pass by the end of this year.

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The Critical Conversations seminar series is designed to start an ongoing conversation on First Nations and the Right to Water.  Each week we will post some of the most interesting questions raised by our audience.

Issues discussed this week:

Do you think the findings of the National Assessment of First Nations Water and Waste Water Systems surprised the federal government?

Hotain said the government appears to have been surprised by severity of the situation, which she feels is evidenced by the multi-month delay in the report’s release. “They were trying to grapple with how they were going to deal with the projected amount of money [the system upgrades] would cost.”

Is there any “oomph” left in the federal government’s duty to consult with Aboriginal people?

Busby feels that the duty to consult still has a strong legal basis. She considers the doctrine a “cornerstone of section 35 [of the 1985 Constitution Act],” which recognizes and affirms Aboriginal and treaty rights. As it isn’t clear whether the duty to consult applies to Bill S-8, Busby urged law students to examine the issue in their research.

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