Ottawa has human-rights obligation to provide safe water on reserves: report

Carol Wildcat does not trust her well water, which regularly bears a sulfurous smell.

The resident of Ermineskin Cree Nation, a reserve about an hour's drive south of Edmonton, regularly drives to neighbouring communities to buy bottled water. A few dozen homes in her community are served by a poorly funded central water plant, she says, but most get their water from wells and cisterns.

She wants Ottawa to upgrade the plant to meet federal drinking water guidelines and extend the distribution system throughout the community.

"How come it's acceptable for us to have less than clean water just because we're on a reserve?" said Ms. Wildcat, who has spoken out on the issue before. "We should have the same human rights as everybody else."

The quality of water service to which Canada's 617 First Nations communities are entitled – and who is responsible for providing it – has long been disputed.

In official documents, the federal government says First Nations own their water systems and are responsible for operating and maintaining them. But on Tuesday, an international non-governmental organization will issue a report that effectively sides with Ms. Wildcat. Human Rights Watch said that by not ensuring First Nations people access to safe water, "the Canadian government has violated a range of international human rights obligations."

Many First Nations people on reserves cannot trust the water from their taps. As of March 31, Health Canada reported 133 drinking water advisories at 89 reserves across Canada (excluding British Columbia, which has a different system).

Some of these advisories have been in place for years, even decades. According to data from the federal department Indigenous and Northern Affairs Canada (INAC), many more reserves are served by public systems deemed to be at risk of producing unsafe water in adverse conditions.

Human Rights Watch interviewed residents, water plant operators and officials at five Ontario reserves: Batchewana First Nation, Grassy Narrows First Nation, Shoal Lake 40 First Nation, Neskantaga First Nation and Six Nations of the Grand River.

Contaminants in drinking water at these reserves included coliform, uranium and carcinogenic trihalomethanes, it said.

Senior researcher Amanda Klasing also studied a variety of international human rights treaties Canada has signed. She said the most significant basis for Canada's obligation stems from the International Covenant on Economic, Social and Cultural Rights.

In March, the United Nations committee that monitors the treaty's implementation expressed concerns that First Nations' access to safe drinking water and sanitation were restricted, and urged Canada to rectify the situation.

But INAC has long said its role is to provide funding, advice and other support. And the federal government has explicitly rejected responsibility for drinking water in the courts.

In 2014, four Alberta First Nations (Tsuu T'ina Nation, Sucker Creek First Nation, Ermineskin Cree Nation and the Blood Tribe) filed a lawsuit in federal court accusing the government of creating and sustaining unsafe drinking water conditions on their reserves. They contend that by virtue of the Constitution Act, the Charter of Rights and Freedoms, the Indian Act and various treaties that the government is obliged to provide safe water, and sought an order compelling the government to meet "minimum acceptable standards" for human use and consumption.

The government responded in its Statement of Defence: "Canada denies it has any obligation or duty to the Plaintiffs, as alleged or at all." (The lawsuit is in abeyance pending negotiations between the parties.)

"There's a legacy here whereby Canada effectively took a paternalistic or administrative control of First Nations and their governments, their lives, their lands under the Indian Act system," said Clayton Leonard, a partner at MacPherson Leslie & Tyerman LLP, which represents several of the plaintiff First Nations. "So in light of that entire history and involvement of Indian Affairs, it's really, in our view, difficult to accept a complete abdication of responsibility."

Carolyn Bennett, Minister of Indigenous Affairs and Northern Development, thanked Human Rights Watch for its report in a statement.

She said the government would continue working with First Nations to support Prime Minister Justin Trudeau's campaign vow to end boil-water advisories on reserves within five years. "We know that there is much more work to be done," she said.

Closing the infrastructure gap between First Nations reserves and non-aboriginal communities could be expensive. In 2011, engineering and environmental consulting firm Neegan Burnside provided a preliminary estimate to the government: It would cost $4.7-billion over 10 years to meet the combined water and wastewater servicing needs of Canada's reserves, plus $419-million annually to operate and maintain systems.

But it is not just about who must pay: There is also the question of who bears legal liability should a water system failure on a reserve create a public health crisis.

In May, 2000, seven people died and more than 2,300 fell ill when bacteria contaminated water in Walkerton, Ont. Tainted water led to an outbreak of cryptosporidiosis in North Battleford, Sask., the next year, sickening thousands but causing no fatalities.

Ms. Klasing says she interviewed a former INAC employee who said the department "freaked out" after the Walkerton crisis over fears it could be legally liable for similar events on reserves. "This person was in the ministry when Walkerton happened," she told The Globe and Mail. "And there was this 'holy crap' moment where everyone realized that a lot of the breakdowns that happened that led to Walkerton could easily exist in many of the communities they were overseeing."

Citing the large number of drinking water advisories, Theresa McClenaghan, executive director and counsel of the Canadian Environmental Law Association, said Canada's performance on First Nations water issues has been poor.

"I think it's fair to say, based on the response to Walkerton, we wouldn't and don't stand for that in municipal systems," she said. "It's a huge inequity."