First Nation drinking water problems and legal frameworks to help solve them

Despite the Trudeau government’s 2015 promise to make sure all First Nations have decent drinking water by 2020, little progress has been made, law Prof. Karen Busby said Sept. 13, 2017.

In the first of a series of seminars on the issue, she reviewed some facts about the lack of clean running water and healthy sanitation in Canadian First Nations communities.

About 10,000 First Nation residents do not have running water or functioning toilets. The water systems in many communities are unreliable and have a high risk of breaking down. Typically, more than 15 per cent of First Nation communities are under a drinking water advisory. These advisories can mean the water needs to be boiled or, in some cases, not consumed at all or even used for washing. These advisories can be short-term or last for decades.

According to the United Nations, drinking water must be: acceptable, accessible, sufficient and safe. Busby noted that this is clearly not the case in many First Nation communities. In many of these communities, the water is unacceptable and unsafe under the drinking water advisories. The water is inaccessible where homes have no running water for toilets and hand washing.

Busby showed a photo of a man on crutches walking towards an outhouse in Manitoba’s Island Lake region. “How does he get into that outhouse to go to the washroom?” Imagine doing that in the middle of a Manitoba winter. The water in First Nation communities is often stored in large tanks that can get contaminated with bacteria if not cleaned often enough.

What would Canada look like if drinking water was listed as a right in our constitution? 96% of Canadians polled believe that water should be a human right and 15 countries protect that right directly or indirectly through their constitutions.

A study in St. Theresa Point First Nation found an alarming 30 per cent of people report missing work or school when they or a family member were sick from a waterborne illness. Even in homes with running water, the water pressure is unpredictable, meaning there is sometimes no water for laundry, toilets or showers. The local school cannot do science experiments for safety reasons when the eyewash station does not work.

Presentation slides

Questions:

What legal frameworks might be useful to pressure the Canadian government to take action?

Statute law could be used, employing the Canadian Human Rights Act, watershed protection, source water protection, and the Indian Act. Section 36 of the Canadian Constitution states that all Canadian governments “are committed to … providing essential public services of reasonable quality to all Canadians.” Busby suggests that water is an essential service.

Why do clean water and sanitation problems persist?

Seminar participants identified geography, racism, and the division of powers between federal and provincial governments as underlying the problem. Busby noted that road-accessible Indigenous communities in the U.S. also have poor water quality, so the issue cannot be attributed solely to the difficult terrain and isolation of Canada’s northern First Nations.

Audio podcasts are also available of seminars in this series.

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