The Right to Clean Water is a Human Right

October 25, 2024

Oct 25, 2024

Source: https://canadians.org/fn-water/

Unfortunately, many Canadians do not pay attention to how the relationship between the Crown (aka government) and Indigenous People has evolved in recent times. Since the aftermath of World War II many of the issues related to the Indigenous peoples’ inherent rights have become the subject of expensive and drawn-out litigation that often is only resolved after years of negotiations ending in settlements or, through an extensive legal appeal process that ends with precedent setting Supreme Court of Canada decisions.

The routes taken and the results differ between indigenous groups because of the different histories of the relationship between the Crown/government and each indigenous group. For First Nations groups, litigation is based on a complex set of factors that include international treaty law, the prevailing jurisprudence in Canada (often referred to as Aboriginal law) and to an increasing extent on Indigenous law1. One of the issues that is apparent is that the Supreme Court decisions, which tend to consistently side with First Nations plaintiffs, in the vast majority of cases these decisions are not fully accepted as precedent setting or in legal terms as res judicata by the federal government resulting in the same or similar issues being re-litigated. This obviously adds to the strain in the relationship between First Nations people and the government.

The relationship between the government and Indigenous people is considered to be sui generis, a Latin word (adjective) meaning a thing “of its own kind’’: a unique relationship that is difficult to define in precise terms. Essentially First Nations people (and ultimately all Indigenous people) maintain the same rights as everyone else in Canada plus have additional or special rights based on the historic relationship between them and the government. In the Red Paper commissioned by the Indian Association of Alberta in 1970 the term Citizens Plus was coined to capture the unique quality of the relationship between indigenous people and the government. Essentially the Red Paper called for the government to recognize that it had special obligations to the Indigenous people as a result of the impact colonization had on their way of life and their ability to survive under those changed conditions.

In a 1984 Supreme Court of Canada case called Guerin v. The Queen, [1984] 2 S.C.R. 335 the Musqueam Indian Band had surrendered valuable surplus reserve lands to the Crown for lease to a golf club. The terms obtained by the Crown, however, were much less favourable to the Band than those approved by the Band at the surrender meeting. The surrender document did not refer to the lease or disclose the terms approved by the Band. The Indian Affairs Branch officials did not return to the Band for its approval of the revised terms. Indeed, they withheld pertinent information from both the Band and an appraiser assessing the adequacy of the proposed rent. The trial judge found the Crown in breach of trust in entering the lease and awarded damages as of the date of the trial on the basis of the loss of income which might reasonably have been anticipated from other possible uses of the land.2

The court decided in favour of the Band but was unable to reach full consensus on the precise nature of the obligation the government had to the Musqueam. In essence the court held (affirmed) that that obligation was similar to that of a fiduciary; meaning that the government had to act on behalf of the Band in a way that served the interests of the Band and did not consider any interests the government might have. In other words, that the government is required to act in those best interests to ensure not only that the Indigenous people are not taken advantage of but also that they benefit from the best possible outcome.

At that time, one of the government’s arguments, which was rejected by the Supreme Court, was the notion that the relationship was a political trust, meaning that the government may have made promises to the Band but could not be held legally accountable for the outcome because those promises were political and not legal. Despite the importance of the Guerin case in establishing the nature of the government’s obligation, here we are 40 years later seeing the same futile arguments being made by government lawyers in order to resist its obligations to protect the interests and rights of Indigenous people.

In a current case, the Shamattawa First Nation, which has been under a boil water advisory since 2018, and its Chief, Jordna Hill, are pursuing the case on behalf of all First Nations members countrywide whose community is or was subject to a drinking water advisory on or after June 20, 2020. Chief Jordna’s group ( the plaintiffs) argue First Nations have a basic human right to clean water that Canada has violated, describing the conditions facing their communities as "an urgent human rights crisis".

Lifting all long-term boil water advisories on Reserves by 2021 was one of the Prime Minister’s promises in 2015. There were 105 long-term drinking water advisories in November 2015. Thirty-three advisories were still in place as of September, 28, 2024. However, what is disturbing is the Crown has argued in its statement of defense in the Shamattawa case that: "Canada does not owe any legal obligations or duties to operate and maintain the plaintiffs' water systems." It is expected that the government intends to argue, among other things, that "the right to safe water is not distinctly Indigenous, and "there is no positive right to government funding".

This reliance on an argument that the relationship is a political trust should fail based on Guerin and subsequent legal decisions that make it clear that the government does owe indigenous people a special legal obligation to protect their interests and rights. Moreover, if Canada is to rehabilitate its international reputation it must recognize indigenous peoples’ inherent rights and should desist in raising the political trust argument altogether.

The United Nations, formalized in Human Rights Council resolution 7/22 in 2008, and most recently renewed it in Human Rights Council resolution 51/19 where it has declared:

Access to water and sanitation are recognized by the United Nations as Human Rights – fundamental to everyone’s health, dignity and prosperity. Governments must take a human rights-based approach (HRBA) to water and sanitation improvements, so that no one gets left behind.3

The UN has appointed a Special Rapporteur with the mandate to take steps to promote these rights by:

Focusing on the issue of human rights obligations related to access to safe drinking water and sanitation;
Carrying out thematic research;
Undertaking country missions;
Collecting good practices; and
Working with development practitioners on the implementation of the rights to water and sanitation.

Pedro Arrojo-Agudo, is the United Nations Special Rapporteur on the right to water and sanitation, and he presented to the Human Rights Council in Geneva about his visit to Canada earlier this year (2024). He noted that Canada's failure to provide and maintain First Nations with clean drinking water constitutes a flagrant human rights violation.

Among Arrojo-Agudo’s recommendations to the Canadian government included the assertion that Canada needs to “enact legal reforms to guarantee throughout the country Indigenous peoples right to free, prior and informed consent” and “First Nations jurisdiction over the water sources on which they depend even if they are off reserve.” "It is highly significant that First Nations reserves are affected by what are called drinking water advisories, or long-term drinking water advisories, which are nothing more than flagrant breaches of the human right to safe drinking water," he said.

Despite the government response by Indigenous Services Minister Patty Hajdu who said at a news conference on April 28, 2022, that "Canada accepts the role that the government has played in First Nations' lack of access to clean drinking water" the federal government continues with the same argument regarding its legal obligations (as mentioned above). Government representatives have since commented that Hajdu’s comments — and others like them — are “made in a particular context," and shouldn't be taken out of context or considered to be a legal opinion. In plain terms our government consistently refuses to properly acknowledge the special nature of its obligations to the Indigenous people.

The frustration experienced by the First Nations represented in the Shamattawa case are further exasperated because a similar previous case was settled in a satisfactory manner. In 2019, Neskantaga First Nation, Curve Lake First Nation and Tataskweyak Cree Nation started a national class action lawsuit to address drinking water advisories in their communities and other First Nations across Canada. The lawsuits addressed Canada’s failure to take all reasonable steps to ensure that First Nations communities have adequate access to safe drinking water. On December 22, 2021, the Courts approved a Settlement between Canada and certain First Nations and their members who were subject to a drinking water advisory that lasted at least one year between November 20, 1995 and June 20, 2021.

That 2021 Settlement includes compensation for individuals and impacted First Nations subject to a drinking water advisory during this timeframe, along with commitments to fund the construction, operation, and maintenance of infrastructure to help the Class Action case members enjoy regular access to safe drinking water in their homes.

The $8 billion Settlement included:

$1.8 billion in compensation to individuals and impacted First Nations;
An additional $50 million for eligible individuals who experienced Specified Injuries due to drinking water advisories that lasted at least one year between November 20, 1995, and June 20, 2021;
$6 billion to support construction, upgrading, operation, and maintenance of water infrastructure on First Nations land;
A renewed commitment to Canada’s Action Plan for the lifting of all long-term drinking water advisories;
Planned modernization of Canada’s First Nations drinking water legislation;
The creation of a First Nations Advisory Committee on Safe Drinking Water; and
Support for First Nations to develop their own safe drinking water by-laws and initiatives.

Included in the Settlement Canada has agreed to make all reasonable efforts to support the removal of long-term drinking water advisories and will spend at least $6 billion by March 31, 2030, to implement this commitment by funding the actual cost of construction, upgrading, operation, and maintenance of water infrastructure in First Nations communities.4[4]

If we are to advance on our path to reconciliation and prosperity, the issue of water and sanitation rights has to become a matter in the past. All Canadians owe it to themselves and to the Indigenous people to insist that the government stop resisting its obligations and continue to solve the remaining problems.

Aboriginal law is the series of legal awards and laws created by the Canadian government to work indigenous peoples, and indigenous law is the laws that the indigenous have written for themselves.

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