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Mc#ill 'aw *ournal " Revue de droit de Mc#ill

NO TAPS, NO TOILETS: FIRST NATIONS AND THE CONSTITUTIONAL RIGHT TO WATER IN CANADA

4avid R. 6oyd8 !

" Ad%unct Professor0 School of Resource and Environmental Management0 Simon Fraser

University. ! @avid R. Aoyd BCDD

CitationF GBCDDH IJFD McGill LJ ND O RPfPrence F GBCDDH IJ F D R@ McGill ND

In DRJJ0 the Canadian federal government promised to provide reserves with water and sanitation services comparable to similarly sit-uated non-Aboriginal communities. @espite some progress0 thousands of First Nations peo-ple0 living on reserves across Canada0 still lack access to running water or flush toilets. The ad-verse health effects associated with inadequate water infrastructure include elevated rates of communicable diseases such as influenza0 whooping cough GpertussisH0 shigellosis0 and im-petigo. @o First Nations have an enforceable constitutional right to water\ This article sug-gests that they do0 based on the right to life0 lib-erty0 and security of the person under section J of the !anadian !harter of Rights and Free1doms] the right to equality under section DI of the !harter] and governments^ obligation to provide _essential public services of reasonable quality to all Canadians` under section ab of the !onstitution Act, 1892. The legal arguments available pursuant to these constitutional pro-visions are buttressed by Canada^s obligations pursuant to international human rights law.

En DRJJ0 le gouvernement fPdPral cana-dien a promis de fournir des rPserves qui au-raient un acccs d lêau et des installations sani-taires comparables aux communautPs non au-tochtones. En dPpit de certains progrcs0 des mil-liers de membres des Premicres Nations vivant dans des rPserves d travers le Canada nônt tou-%ours pas acccs d lêau courante. Les effets nPga-tifs sur la santP0 associPs d une infrastructure liPe d lêau inadPquate0 inclus des taux plus Ple-vPs de maladies contagieuses comme lînfluen-za0 la coqueluche0 la shigellose et lîmpPtigo. Les Premicres Nations ont-elles un droit constitu-tionnel d lêau \ Cet article suggcre que oui0 en se basant sur le droit d la vie0 d la libertP et d la sPcuritP de sa personne sous lârticle J de la !harte canadienne des droits et libert=s ] le droit d l^PgalitP sous lârticle DI de la !harte ] et lôbligation du gouvernement de f fournir d tous les Canadiens0 d un niveau de qualitP accep-table0 les services publics essentiels g sous lâr-ticle ab de la >oi constitutionnelle de 1892. Les arguments lPgaux disponibles suivant ces dis-positions constitutionnelles sont PtayPs par les obligations du Canada en droit international des droits de l^homme.

82 (2011) 57:1 MCGILL LAW JOURNAL " REVUE DE DROIT DE MCGILL

Introduction :;

I. Mi<ed =rogress in =roviding @irst Nations with Access to =otable Water :F A. =ikangikum IOntarioK LM 6. Nitcisakik IOuebecK LP Q. 'ittle 6uffalo IAlbertaK L; 4. St. Theresa =ointU WasagamackU Red Sucker 'akeU

and #arden Vill IManitobaK LW

II. The 'egal @ramework #overning Safe 4rinking Water in Qanada LX A. The =rovincial and Territorial 'egal @ramework for

4rinking Water LF 6. The @ederal 'egal @ramework for 4rinking Water LF

III. The Right to 'ifeU 'iberty and Security of the =erson ISection F of the QharterK YMM A. 4eprivation of the Right to 'ifeU 'iberty and Security

of the =erson YMW 6. Is the 4eprivation in Accordance with the =rinciples

of @undamental *ustice[ YMF Q. *ustification Under Section Y of the Qharter YYM

I]. The Right to E_uality ISection Y` of the QharterK YYM A. Is the 4istinction or 4ifferential Treatment 6ased on

an Enumerated or Analogous #round[ YYY 6. Is the 4istinction or 4ifferential Treatment

4iscriminatory[ YY` Q. *ustification Under Section Y of the Qharter YYF

]. The @ederal and =rovincial #overnmentsa Obligation to =rovide Essential =ublic Services of Reasonable Ouality to all Qanadians ISection ;X of the Qonstitution ActU YL:PK YY:

]I. International 'aw and the Vuman Right to Safe 4rinking Water YPP

]II. Qonstitutional Remedies YPL

Qonclusion Y;P

FIRST NATIONS AND THE CONSTITUTIONAL RIGHT TO WATER 83

hater is the essence of life and human dignity. horld iealth jrganizationD

Access to safe water is a fundamental human need and0 therefore0 a basic human right.

Kofi Annan0 Former United Nations Secretary-GeneralB

Putting the point bluntly0 except for the very poorest nations in the world and for those constrained by military occupation0 any gov-ernment that does not provide the BI to IC li-tres of water per person-day commonly deemed necessary for a minimal quality of life is incompetent or corrupt.a

Introduction

Is there a constitutional right to safe drinking water in Canada\ To the vast ma%ority of Canadians0 this may seem a moot question0 since DCC percent of urban residents and RR percent of rural residents have access to improved drinking water and sanitation as of BCCN.l Although this big pic-ture is generally bright0 pockets of darkness remain. As the preceding sta-tistics indicate0 there are still rural communities0 comprising roughly D percent of Canada^s population0 where comprehensive access to running water0 safe drinking water0 and indoor toilets is an aspiration rather than reality. These rural communities are predominantly0 if not exclusively0 re-serves inhabited by First Nations.I Reserves are much more likely to ex-perience high-risk drinking water systems and long-term boil water advi-sories.b The disparity between water quality on and off reserve in Canada has been criticized by the United Nations Committee on Economic0 Social

D Gro iarlem Arundtland m Sergio nieira de Mello0 _Foreword` in The Right to @ater

GGenevaF horld iealth jrganization0 BCCaH0 onlineF horld iealth jrganization at a ohttpFppwww.who.intq.

B Ibid at b0 citing Kofi Annan. a @avid A Arooks0 _iuman Rights to hater in North Africa and the Middle EastF hhat is

New and hhat is Not] hhat is Important and hhat is Not` GBCCJH BaFB International Journal of hater Resources @evelopment BBJ at BaD rfootnote omitteds.

l hijpUNICEF0 Progress on Sanitation and Drinking1@aterF 2010 Hpdate GGenevaF horld iealth jrganization and UNICEF0 BCDCH0 onlineF UNICEF ohttpFppwww.unicef. orgq at lC.

I The word _reserve` in this article refers to both official and non-official First Nations communities Gin relation to designation under the Indian Act, RSC DRNI0 c I-IH.

b Andrea iarden and iolly Levalliant0 Joiling Point! Six !ommunity Profiles of the @a1ter !risis Facing First Nations @ithin !anada GMay BCCNH0 onlineF Polaris Institute ohttpFppwww.polarisinstitute.orgq.


and Cultural Rights0J the Royal Commission on Aboriginal Peoples0N and the Auditor General of Canada.R The situation has improved considerably over the past twenty years0 but ma%or disparities persist. As of BCDC0 forty-nine First Nations commu-nities have high-risk drinking water systems and more than one hundred face ongoing water advisoriesDC Gout of roughly bDI First Nations commu-nities in CanadaDDH. Many of these deplorable situations have prevailed for years and0 in some cases0 for over a decade.DB The federal government es-timates that there are approximately five thousand homes in First Na-tions communities that lack basic water and sewage services.Da Compared to other Canadians0 First Nations^ homes are ninety times more likely to be without running water.Dl Examples of First Nations communities where0 as of BCDC0 the ma%ority of residents still lack running water0 ac-cess to safe drinking water0 and indoor toilets include Pikangikum in jn-

J Committee on Economic0 Social and Cultural Rights0 !onsideration of Reports Submit1ted Hnder Articles 16 and 1P of the !ovenantF !oncluding Observations of the !ommit1tee on Economic, Social and !ultural RightsF !anada0 UNESCjR0 abth Sess0 UN @oc EpC.DBpCANpCjpl and UN @oc EpC.DBpCANpCjpI GBCCbH D at a-l.

N National Commission Inquiry on Indian iealth m NIA iealth @evelopment Program0 _National Indian Arotherhood National Indian iealth PolicyF A Compilation of iealth Policy Papers` in Public Policy and Aboriginal Peoples, 186511882F Summaries of Re1ports by Federal Jodies and Aboriginal OrganiUations (1884)0 vol B GjttawaF Supply and Services Canada0 DRRlH BBb at BBJ.

R jffice of the Auditor General of Canada0 Report of the Auditor General of !anada0 ch Ba GjttawaF jAG0 November DRRIH Ba-DC] iouse of Commons0 jffice of the Auditor Gen-eral of Canada0 _Chapter IF @rinking hater in First Nations Communities` in Report of the !ommissioner of the Environment and Sustainable Development to the House of !ommons GBR September BCCIH at D r_@rinking hater in First Nations Communities`s.

DC Indian and Northern Affairs Canada0 First Nations @ater and @astewater Action PlanF Progress Report April 2008\March 2010 GApril BCDCH0 onlineF Aboriginal Affairs and Northern @evelopment Canada at DD ohttpFppwww.ainc-inac.gc.caq rAction PlanF 200812010 Progress Reports. As of aC June BCDD0 there were DDN First Nations communities with ongoing drinking water advisories Giealth Canada0 First Nations, Inuit and Abo1riginal HealthF Drinking @ater and @astewater0 onlineF iealth Canada ohttpFppwww.hc-sc.gc.caqH.

DD Statistics Canada0 Aboriginal Peoples in !anada in 2006F Inuit, M=tis and First Na1tions, 2006 !ensus GjttawaF Minister of Industry0 BCCNH at aN rAboriginal Peoples in !anada in 2006s.

DB iarden and Levalliant0 supra note b at J. Da Implementation of the International !ovenant on Economic, Social and !ultural RightsF

Addendum to the Fourth Periodic Reports Submitted by State Parties0 !anada0 UNESCjR0 DRth Sess0 UN @oc EpC.DBplpAdd.DI GBCClH at Nl rImplementation of I!ES!Rs.

Dl UN @epartment of Economic and Social Affairs0 @ivision of Social Policy and @evelop-ment0 Secretariat of the Permanent Forum on Indigenous Issues0 The State of the @orld’s Indigenous Peoples GNew torkF United Nations0 BCCRH at BI.


tario] Kitcisakik in uuebec] St. Theresa Point0 hasagamack0 Red Sucker Lake0 and Garden iill in Manitoba] and Little Auffalo in Alberta.DI The lack of access to safe drinking water has adverse physical and psychologi-cal effects. The federal government admits that _rtshe incidence of water-borne diseases is several times higher in First Nations communities0 than in the general population0 in part because of the inadequate or non-existent water treatment systems.`Db The Canadian Government does not recognize the right to water0 ei-ther internationally or domestically.DJ hhen the United Nations GUNH General Assembly approved a resolution recognizing water as a human right in BCDC0DN DBl countries supported the resolution while none were opposed.DR Canada was among forty-two countries that abstained from voting0BC and it has a history of blocking international efforts to recognize the right to water.BD The Canadian !onstitution Act, 1892 G!onstitutionHBB does not explicitly acknowledge a right to water. There is no federal legis-lation explicitly recognizing the right to water in Canada.Ba To date0 no Canadian court has acknowledged the right.Bl In the only reported deci-sion addressing the sub%ect0 involving a case where Aritish Columbia resi-dents unsuccessfully sought to stop logging activities in their watershed0

DI ielen Fallding0 _iigh and @ryF First Nations an iour from hinnipeg Face Third

horld Conditions`0 @innipeg Free Press GaC jctober BCDCH onlineF hinnipeg Free Press ohttpFppwww.winnipegfreepress.comq rFallding0 _iigh and @ry`s] Amy Steele0 _No @eal`0 Alberta _iews DCFB GMarch BCCJH aR at aR.

Db Implementation of I!ES!R0 supra note Da at Nl. DJ Lynda Collins0 _Environmental Rights on the hrong Side of iistoryF Revisiting Cana-

da^s Position on the iuman Right to hater` GBCDCH DRFa RECIEL aID at aba. DN The Human Right to @ater and Sanitation0 GA Res blpBRB0 UNGAjR0 blth Sess0 Supp

No lR Gvol IIIH0 UN @oc ApRESpblpBRB GBCDCH lI. DR UNGAjR0 blth Sess0 DCNth Plen Mtg0 UN @oc ApblpPn.DCN GBCDCH at R. BC Ibid. BD See Collins0 supra note DJ. BB !onstitution Act, 18920 s ab0 being Schedule A to the !anada Act GUKH0 DRNB0 c DD r!on1

stitutions. Ba See jffice of the Auditor General of Canada0 _Government of Canada^s Response to En-

vironmental Petition Dba Filed by Mr @avid R Aoyd Under the Auditor General Act GReceived February Db0 BCCbHF Right of Canadians to Clean Air0 Clean hater0 and a iealthy Environment`0 GB June BCCbH0 onlineF jffice of the Auditor General of Canada ohttpFppwww.oag-bvg.gc.caq.

Bl @avid R Aoyd0 Hnnatural >awF Rethinking !anadian Environmental >aw and Policy GnancouverF UAC Press0 BCCaH at BI rAoyd0 Hnnatural >aws.


the %udge held that _rtshere is not before me an established case for the concept of a vright^ to clean water.`BI iowever0 recent developments indicate growing support for legal recognition of the right to water in Canada. uuebec recently became the first province to formally recognize water as a human right in legislationF _Under the conditions and within the limits defined by the law0 it is the right of every natural person to have access to water that is safe for drink-ing0 cooking and personal hygiene.`Bb In BCCJ0 the Legislative Assembly of the Northwest Territories passed a resolution recognizing that _all peo-ples have a fundamental human right to water that must be recognized nationally and internationally0 including the development of appropriate institutional mechanisms to ensure that these rights are implemented.`BJ The Land Claims Agreement of the Labrador Inuit recognizes the right for the Inuit _to en%oy rwsater that is on0 in0 under0 flowing through or ad-%acent to Labrador Inuit Lands.`BN hater is regarded as sacred by many First Nations cultures.BR As a leading First Nations scholar wrote0 _water misuse and pollution across Canada` causes _multiple disruptions of indigenous peoples^ cultures0 tra-ditions0 and economies.`aC The Assembly of First Nations considers access to safe drinking water to be a basic human right.aD In the absence of explicit legal recognition of the right to water0 the few Canadians who lack access to this essential public service are placed

BI Red Mountain Residents and Property Owners Assn v Jritish !olumbia (Ministry of

Forests)0 BCCC ACSC BIC at para Bl0 aI CELR GNSH DBJ. Bb An Act to Affirm the !ollective Nature of @ater Resources and Provide for Increased @a1

ter Resource Protection0 RSu BCCR GDst SessH0 c BD0 s B. BJ Northwest Territories0 Legislative Assembly0 _Motion BC-DIGIHF Right to hater` in Han1

sard0 DIth Assembly0 Ith Sess0 @ay al GI March BCCJH at DDbN-bR Gion Paul @eloreyH. BN >and !laims Agreement Jetween the Inuit of >abrador and Her Majesty the Queen in

Right of Newfoundland and >abrador and Her Majesty the Queen in Right of !anada0 s IGaHGBH Ggiven effect by >abrador Inuit >and !laims Agreement Act0 RSC BCCI0 c BJH.

BR See Chiefs of jntario0 _hater @eclaration of the First Nations in jntario` GResolution CNpNJ passed at the BCCN Special Chiefs Assembly in Toronto0 jctober BCCNH0 onlineF Chiefs of jntario ohttpFppwww.chiefs-of-ontario.orgq] Cheryl @arlene Sanderson0 Nipiy @asekimewb!lear @aterF The Meaning of @ater, from the @ords of the EldersF The In1terconnections of Health, Education, >aw and the Environment GPh@0 Simon Fraser University0 BCCNH0 onlineF Simon Fraser University Institutional Repository ohttpFppir.lib.sfu.caq.

aC Ardith halkem0 _The Land is @ryF Indigenous Peoples0 hater0 and Environmental Jus-tice` in Karen Aakker0 ed0 Eau !anadaF The Future of !anada’s @ater GnancouverF UAC Press0 BCCJH aCa at aDa.

aD Assembly of First Nations0 _Support for Empty Glass of hater Campaign`0 Annual General Assembly0 Resolution No DRpBCCR GBD-Ba July BCCRH.


in the untenable position of being _mere supplicants`0 dependent on the will of federal andpor provincial governments to make safe drinking water a priority. The purpose of this article is to explore the proposition that all Canadians possess a constitutional right to water0 a legally enforceable right that the federal and provincial governments are violating for some First Nations people living on reserves. The constitutional right to water derives from three provisionsF _the right to life0 liberty and security of the person` under section J of the !anadian !harter of Rights and Freedoms G!harterH]aB the right to equality under section DI of the !harter]aa and the federal and provincial governments^ commitment to _providing essential public services of reasonable quality to all Canadians` under section ab of the !onstitution.al The constitutional right to water is buttressed by Can-ada^s obligations under international human rights law. Excluded from the scope of this article are questions regarding Aborig-inal title0 Aboriginal rights0 the federal government^s fiduciary duty to Aboriginal peoples0 and treaty rights related to the use0 management0 and governance of water. hhile important0 these questions have been ad-dressed comprehensively by other experts.aI

I. Mi<ed =rogress in =roviding @irst Nations with Access to =otable Water

The disparity between reserves and other Canadian communities in terms of access to safe drinking water and improved sanitation facilities has long been recognized. In DRJJ0 a federal policy report proposed an ex-panded infrastructure program for reserves with the goal of providing Ab-original homes and communities with facilities and services that both met health and safety standards and were comparable to neighbouring non-

aB !anadian !harter of Rights and Freedoms0 s J0 Part I of the !onstitution Act, 18920 be-

ing Schedule A to the !anada Act 1892 GUKH0 DRNB0 c DD r!harters. aa Ibid0 s DI. al !onstitution0 supra note BB0 s ab. aI See e.g. Monique M Passelac-Ross and Christina M Smith0 Defining Aboriginal Rights

to @ater in AlbertaF Do They Still “Exist”e How Extensive are Theye GCalgaryF Canadian Institute of Resources Law0 BCDCH0 onlineF Canadian Institute of Resources Law ohttpFppcirl.caq] Merrell-Ann S Phare0 Denying the SourceF The !risis of First Nations @ater Rights GSurrey0 Aritish ColumbiaF Rocky Mountain Aooks0 BCCRH] halkem0 supra note aC] Richard i Aartlett0 Aboriginal @ater Rights in !anadaF A Study of Aboriginal Title to @ater and Indian @ater Rights GCalgaryF Canadian Institute of Resource Law0 DRNbH.


Aboriginal homes and communities.ab In DRRD0 Indian and Northern Af-fairs Canada GINACH committed to achieving equality amongst Canadians with respect to access to safe water by BCCD.aJ In DRRI0 INAC reported that serious problems with drinking water quality existed on one in four reserves0 and _committed to remedying all deficient water systems by BCCl.`aN Aetween DRRI and BCCa0 the federal government spent wD.R bil-lion to improve water and wastewater infrastructure for First Nations.aR A national assessment of drinking water systems in First Nations communi-ties published in BCCa revealed that BDN out of JlC systems were consid-ered high-risk.lC In BCCa0 the federal government pledged to _address all of the high-risk systems by the end of March BCCN0` and budgeted wbCC million for its First Nations hater Management Strategy.lD In BCCb0 the government of Canada announced a plan of action for drinking water in First Nations communities to ensure that all First Nation reserves had access to safe drinking water.lB From the BCCb budget0 the federal gov-ernment allocated wbC million over two years to help reach the ob%ectives of the BCCb plan of action.la In BCCN0 the government of Canada an-nounced a waaC million0 two-year investment in a new plan0 the First Na1tions @ater and @astewater Action Plan GFNhhAPH.ll An additional in-vestment of waaC million for BCDC-BCDB is budgeted for FNhhAP^s con-tinued implementation.lI Canada^s BCCR Economic Action Plan further

ab Indian and Northern Affairs Canada0 Report of the Expert Panel on Safe Drinking @a1

ter for First Nations0 vol D GjttawaF Minister of Public horks and Government Services Canada0 BCCbH at BB rReport of the Expert Panel0 vol Ds.

aJ Constance MacIntosh0 _Testing the hatersF Jurisdictional and Policy Aspects of the Continuing Failure to Remedy @rinking hater uuality on First Nations Reserves` GBCCJ-BCCNH aRFD jttawa L Rev ba at bJ.

aN Ibid. aR _@rinking hater in First Nations Communities`0 supra note R at D. lC Indian and Northern Affairs Canada0 National Assessment of @ater and @astewater

Systems in First Nations !ommunitiesF Summary Report GMay BCCaH0 onlineF Aboriginal Affairs and Northern @evelopment Canada at DC ohttpFppwww.ainc-inac.gc.caq.

lD Indian and Northern Affairs Canada0 Plan of Action for Drinking @ater in First Na1tions !ommunitiesF Progress Report GJ @ecember BCCbH0 onlineF Aboriginal Affairs and Northern @evelopment Canada at B ohttpFppwww.ainc-inac.gc.caq rPlan of ActionF 2006 Progress Reports.

lB Indian and Northern Affairs Canada0 News Release0 B-CBJIJ0 _Government Announces Immediate Action on First Nations @rinking hater` GBD March BCCbH onlineF Aboriginal Affairs and Northern @evelopment Canada ohttpFppwww.ainc-inac.gc.caq.

la Indian and Northern Affairs Canada0 Plan of Action for Drinking @ater in First Na1tions !ommunitiesF Progress Report GDJ January BCCNH0 onlineF Aboriginal Affairs and Northern @evelopment Canada at B ohttpFppwww.ainc-inac.gc.caq.

ll Action PlanF 200812010 Progress Report0 supra note DC at B. lI Ibid.


pledged wDNa million for building or upgrading eighteen water and wastewater infrastructure pro%ects on reserves.lb The federal government recently published a comprehensive assessment of drinking water and sewage infrastructure serving IJD First Nations0 concluding that aR per-cent of water systems continue to pose a high risk.lJ These actions and investments have resulted in tangible improve-ments in access to safe drinking water in First Nations communitiesF DN of BD communities identified as _high priority` in BCCb have been removed from the list due to improvements in infrastructure0 training0 and moni-toring0 and the number of high-risk drinking water systems has fallen from DRa in BCCb0 to lR in BCDC.lN Furthermore0 the proportion of certified water system operators has increased from N percent in BCCa0lR to bC per-cent in BCDC Galthough still far short of reaching the goal of DCC percentH.IC @espite these positive steps0 three outstanding problems remain. First0 the Expert Panel on Safe @rinking hater for First Nations GExpert PanelH concluded in BCCb that _the federal government has never provided enough funding to First Nations to ensure that the quantity and quality of their water systems was comparable to that of off-reserve communities.`ID Inadequate funding continues to be a ma%or obstacle to ensuring universal access to safe drinking water.IB Second0 there is still no regulatory frame-work in place to ensure the safety of drinking water for First Nations communities. As the Commissioner of the Environment and Sustainable @evelopment reported in BCCI0 _rwshen it comes to the safety of drinking water0 residents of First Nations communities do not benefit from a level of protection comparable to that of people who live off reserves. This is partly because there are no laws and regulations governing the provision of drinking water in First Nations communities0 unlike other communi-ties.`Ia Aill S-DD0 the Safe Drinking @ater for First Nations Act0 was intro-duced in the Senate in BCDC0 but it died on the order paper as a result of

lb Ibid. lJ National Assessment of First Nations @ater and @astewater SystemsF National Roll1Hp

Report Gjrangeville0 jntF Neegan Aurnside for the @epartment of Aboriginal Affairs and Northern @evelopment0 BCDDH.

lN Action PlanF 200812010 Progress Report0 supra note DC at l-I. lR Plan of ActionF 2006 Progress Report0 supra note lD at l. IC Action PlanF 200812010 Progress Report0 supra note DC at R. ID Report of the Expert Panel0 vol D0 supra note ab at BB. IB See Randy Christensen0 Nancy Goucher m Merrell-Ann Phare0 Seeking @ater fusticeF

Strengthening >egal Protection for !anada’s Drinking @ater GEco%ustice0 May BCDCH0 onlineF Eco%ustice at DC-Da ohttpFppwww.eco%ustice.caq.

Ia _@rinking hater in First Nations Communities`0 supra note R at D.


the federal election in BCDD0 and has not been re-introduced.Il Third0 in BCCb the Expert Panel identified a number of high-risk communities0 but observed that these communities were excluded from the @epartment of Indian Affairs and Northern @evelopment^s assessment because they had no water system at all0 or because an existing water treatment plant pro-duced potable water0 even if such plants were not connected to the ma%ori-ty of homes on a given reserve.II For example0 the Expert Panel specifical-ly highlighted Pikangikum and Kitcisakik as _urgent situations` that should be dealt with _as soon as possible0` yet INAC never added Pikangikum to its high priority list.Ib Nor did INAC include St. Theresa Point0 hasagamack0 Red Sucker Lake0 Garden iill0 or Little Auffalo on its high priority list0 despite the fact that a ma%ority of residents in each of these communities lack access to running water0 safe drinking water0 and indoor toilets. The severity of the problems facing these seven First Na-tions communities is outlined in more detail below0 to provide a substan-tive factual context for the subsequent exploration of the constitutional law issues.

A. =ikangikum IOntarioK

In Pikangikum0 an Aboriginal community of B0aCC people in north-western jntario0 RI percent of homes lack running water and indoor plumbing.IJ jnly BC of the aNJ houses on the reserve are hooked up to the water treatment plant that was built by the @epartment of Indian Affairs and Northern @evelopment in DRRI. Many residents collect water from the nearby lake in buckets for drinking. A sewage lagoon serving the RCMP station0 the store0 and the school is located upstream from the in-take for the water treatment plant0 leading to contamination of the water supply. Pikangikum became notorious in BCCC when media reports de-scribed it as _having the highest suicide rate in the world` with people killing themselves at thirty-six times the Canadian average.IN

Il Aill S-DD0 An Act Respecting the Safety of Drinking @ater on First Nations >and0 ad

Sess0 lCth Parl0 BCDC Gsecond reading Dl @ecember BCDCH rAill S-DDs. II Senate0 Standing Senate Committee on Aboriginal Peoples0 Safe Drinking @ater for

First NationsF Final Report of the Standing Senate !ommittee on Aboriginal Peoples GMay BCCJH at l GChairF ion Gerry St GermainH rSafe Drinking @aters.

Ib Report of the Expert Panel0 vol D0 supra note ab at ID-IB. IJ Northwestern iealth Unit0 Inspection Report on the Pikangikum @ater and Sewage

Systems GKenoraF Northwestern iealth Unit0 BCCbH0 onlineF The hater Chronicles at l0 DC ohttpFppwww.water.caq rInspection Reports.

IN Louise Elliott0 _jntario Native Suicide Rate jne of the iighest in the horld0 Expert Says`0 !anadian Press0 GBJ November BCCCH GCanadian NewsstandH.


At the request of the community in BCCb0 the jntario government^s Northwestern iealth Unit sent a team of professionals to Pikangikum to assess the drinking water and sewage disposal systems and to evaluate potential water-related health problems. The team included two public health inspectors0 a medical doctor0 and an epidemiologist. Their report concludedF

The most basic of twentieth century Gie last centuryH health-supporting waterpsewage infrastructures are not available to Pikangikum First Nation residents. This includes Gbut is not limited toH housing0 airpwaterpsoil contamination control and regulation0 drinkingpwater provision and sewage disposal.IR

Regarding adverse health effects0 the report recordedF rTshe prevalence of gastrointestinal infections0 skin infections0 lice infestations0 urinary tract infections and eyepear infections were in-creased in this community compared to other regional First Nation communities and non-Aboriginal communities0 and that it was prob-able that some of the increased prevalence could be attributed to the lack of an adequate and safe water supply system.bC

@octor Pete Sarsfield0 the medical officer of health0 commentedF _rwse were startled0 upset. It was awful. This was a level of neglect that almost appeared purposeful.`bD Sarsfield added that despite extensive experience with First Nation communities0 he had _never seen living like this in Canadaxinfrastructure so bad people are constantly putting themselves at risk of serious illness.`bB The Expert Panel summarized the testimony of Aill Limerick0 @irector of Environmental iealth and @irector of iealth Protection at jntario^s Northwestern iealth UnitF

_rEsveryone has basically a five-gallon bucket` to take their water from nearby Pikangikum Lake. In the summer0 raw sewage from the community can flow directly into the lake from overburdened septic systems. jne sample of this water _was overgrown with coli-form bacteria and E. coli. It was ... deplorable.`

In the winter0 Limerick estimated0 roughly about half the resi-dents take their water from a hole in the ice of the lake0 %ust off-shore of the community0 in an area contaminated by animal wastes and fuel from snowmobiles.

Almost all of the community relies on outhouses that are in poor repair and grossly inadequate. Limerick described an open sewage

IR Inspection Report0 supra note IJ at Dl. bC Ibid at R. bD _hater hoes a iarsh Reality for Pikangikum`0 henora Daily Miner i News GBb jcto-

ber BCCbH onlineF Miner m News ohttpFppwww.kenoradailyminerandnews.comq. bB Ibid.


system at one facility covered with an old table0 with children play-ing nearby as sewage overflowed from the tank.ba

hhen0 in BCCC0 then Minister of Indian Affairs Robert Nault visited Pikangikum0 it was estimated that that the community^s water woes would be fixed in six to eight weeks.bl In BCCb0 the federal government of-fered the community BCC new outhouses0 an offer that was summarily re-%ected by community leaders as inadequate.bI In BCCJ0 Indian Affairs Min-ister Jim Prentice announced _wR.J million for new water and sewer ser-vicing that rwoulds bring clean0 safe drinking water right to rthes homes` of Pikangikum.bb iowever0 as of BCDC0 the problems persist.bJ Among the excuses used by the federal government to explain the delays areF the need for further study] frequent changes in band leadership] inadequate supply of electricity to pump the water to homes] and a cultural custom of burying family members in backyards0 making the placement of pipes dif-ficult.bN Pikangikum sued former Minister of Indian Affairs Robert Nault for damages0 arguing that water and sewer infrastructure pro%ects previ-ously approved by the government were unlawfully frozen years ago.bR The jntario Superior Court re%ected the claim0 finding that both parties contributed to the unfortunate state of affairs.JC

6. Nitcisakik IOuebecK

Kitcisakik is an Algonquin village with roughly aCC residents located in the northern part of the La nerendrye hildlife Reserve in uuebec.JD The Anicinapek Kitcisakik have never left their ancestral land0 yet their

ba Report of the Expert Panel0 vol D0 supra note ab at IB. bl Elliott0 supra note IN. bI Aill Curry m Karen iowlett0 _Aurial Grounds on Reserve Alamed for Lack of hater`0

The Globe and Mail GN November BCCbH onlineF The Globe and Mail ohttpFppwww. theglobeandmail.comq.

bb Jim Prentice0 _Speaking Points for the ionourable Jim Prentice0 Minister of Indian Af-fairs and Northern @evelopment and Federal Interlocutor for MPtis and Non-Status Indians` GSpeech delivered at the Pikangikum Infrastructure Funding Announcement0 Pikangikum First Nation0 DC April BCCJH0 onlineF Aboriginal Affairs and Northern @e-velopment Canada ohttpFppwww.ainc-inac.gc.caq.

bJ Fallding0 _iigh and @ry`0 supra note DI. bN See Karen iowlett0 _Remote j%ibwa Reserve Lies in @esperate Limbo`0 The Globe and

Mail Gb November BCCbH onlineF The Globe and Mail ohttpFppwww.theglobeandmail. comq] Curry m iowlett0 supra note bI.

bR James Thom0 _@ecision in Nault0 Pikangikum Case Could Take Months`0 @awatay News GBl June BCDCH onlineF hawatay News ohttpFppwww.wawataynews.caq.

JC Pikangikum First Nation v Nault0 BCDC jNSC IDBB0 BCDC Carswelljnt RRDB GhL CanH. JD Statistics Canada0 _Population and @welling Counts` in !ensus 2006 !ommunity Pro1

filesF hitcisakik0 onlineF Statistics Canada ohttpFppwww.statcan.gc.caq.


community has no recognized legal status.JB Approximately one hundred houses in the village lack running water0 indoor toilets0 and electricity.Ja According to Statistics Canada0 NJ.I percent of dwellings in the communi-ty need ma%or repairs0 compared to the provincial average of J.J percent.Jl Aecause Kitcisakik is not formally designated an _Indian reserve`0 it does not qualify for automatic federal funding. In @ecember BCCR0 the uuebec government announced funding of wD.l million to begin addressing some of the community^s severe infrastructure and housing problems.JI Com-munity leaders would like to build a new village0 in a different location0 that includes all of the basic and essential services missing from Kitcisakik.Jb The situation in Kitcisakik is so deplorable that Emergency Architects of Canada0 a humanitarian organization that has pro%ects in Pakistan0 Afghanistan0 and @arfur0 intervened in this community.JJ

Q. 'ittle 6uffalo IAlbertaK

Little Auffalo is a Lubicon Cree First Nation community of approxi-mately BBI people0 located in a region heavily impacted by Alberta^s oil and gas industry.JN There is no running water at Little Auffalo0 local wa-ter sources are contaminated and unsafe to drink0 houses lack indoor plumbing0 and residents are forced to _drive an hour each way to and from Peace River to buy bottled water.`JR Passed over in the westward sweep of treaty-making pursued by the Aritish Crown0 the Lubicon Cree have long sought a negotiated settlement of their land rights. In DRNl0 following un-successful negotiations and court actions0 the Lubicon filed a complaint with the UN. In DRRC0 the UN iuman Rights Committee ruled that Can-ada was violating the basic human rights of the Lubicon First Nation.NC

JB See Conseil des Anicinapek de Kitcisakik0 onlineF ohttpFppwww.kitcisakik.caq. Ja Rheal Seguin0 _uuebec0 jttawa Join Effort to Lift nillage out of Third horld Condi-

tions`0 The Globe and Mail GDI @ecember BCCRH onlineF The Globe and Mail ohttpFpp www.theglobeandmail.comq.

Jl Statistics Canada0 _jccupied Private @welling Characteristics` in !ensus 2006 !om1munity ProfilesF hitcisakik0 onlineF Statistics Canada ohttpFppwww.statcan.gc.caq.

JI Seguin0 supra note Ja. Jb Ibid. JJ Kevin @ougherty0 _For First Pro%ect0 Aid Group Looks to uuebec^s North`0 The rMontre1

als GaUette GDN jctober BCCRH onlineF The Gazette ohttpFppwww.montrealgazette. comq. See also >e Peuple Invisible GNational Film Aoard of Canada0 BCCNH.

JN _County StatisticsF Little Auffalo`0 onlineF Northern Sunrise County ohttpFppwww. northernsunrise.netq.

JR Steele0 supra note DI at aR. NC _iistorical Inequities0 to hhich the State Party Refers0 and Certain more Recent @e-

velopments Threaten the hay of Life and Culture of the Lubicon Lake Aand0 and Con-


Twenty years later0 despite repeated criticism from the UN0 the problems have not been addressed. In a BCCb submission to the UN Committee on Economic0 Social and Cultural Rights0 the Lubicon First Nation wroteF

In the midst of multi-billion dollar resource exploitation of natural resources from our unceded traditional Territory0 the Lubicon people face severe economic deprivation and live in third world housing conditions with as many as three or four generations living in a small RCC square foot bungalow with no running water or indoor toi-let facilities.81

4. St. Theresa =ointU WasagamackU Red Sucker 'akeU and #arden Vill IManitobaK

Four Manitoba First Nations communitiesxSt. Theresa Point0 hasagamack0 Red Sucker Lake0 and Garden iillxhave a combined popu-lation of approximately ten thousand people0NB yet lack basic water and sanitation services. For example0 a community profile of the Garden iill First Nation statesF _rtshe community obtains water directly from Island Lake which is chlorinated by a small treatment plant and distributed via a standpipe system. There is one house on a well] eight houses have cis-terns] BbJ houses have water barrels] and Bab houses have no service.`Na hhen Garden iill residents faced an outbreak of tuberculosis in BCCb0 doctors told them to cough into0 and then wash0 their hands. According to Garden iill First Nation Chief @avid iarper0 _rwse had to tell them that in this community there is no such thing as turning on a tap and having easy access to safe water. Things other Canadians take for granted is not the reality in our community.`Nl A University of Manitoba study found that residents of Garden iill who did not have running water drank lake water0 and that those who did not have access to an outhouse were more

stitute a niolation of Article BJ so long as they Continue` G_iews of the Human Rights !ommittee Hnder Article 5, Paragraph 4, of the Optional Protocol to the International !ovenant on !ivil and Political Rights0 UNiRCjR0 aNth Sess0 Annex0 Communication No DbJpDRNl0 UN @oc CCPRpCpaNp@pDbJpDRNl GDRRCH at para aaH.

ND Lubicon Lake Indian Nation0 Submission to the j6th Session of the Hnited Nations !ommittee on Economic, Social and !ultural Rights on the Occasion of the Review of !anada’s 4th and 5th Periodic Reports0 GGenevaF D May BCCbH0 onlineF jffice of the Unit-ed Nations iigh Commissioner for iuman Rights at B ohttpFppwwwB.ohchr.orgq.

NB Indian and Northern Affairs Canada0 Registered Indian Population by Sex and Resi1dence 2010 GjttawaF Minister of the @epartment of Indian Affairs and Northern @evel-opment0 BCDDH at BN-aB.

Na _Garden iill First Nation`0 First Nation No BRJ0 in 200412005 First Nation !ommunity ProfilesF Manitoba Region0 onlineF Manitoba Conservation at ID ohttpFppwww.gov.mb.caq.

Nl Assembly of First Nations0 Press Release0 _National Chief @enounces Government In-action in Addressing the TA jutbreak in Garden iill First Nations` GBJ April BCCbH onlineF AFN ohttpFppwww.afn.caq.


likely to suffer from diarrhea.NI According to former Manitoba Premier Gary @oer0 the federal government has been promising to upgrade the water system at Garden iill since at least DRRR.Nb At the Red Sucker Lake First Nation0 newer houses en%oy running wa-ter0 indoor plumbing0 and electric heat while _rasll other houses have no running water and indoor plumbing0 including the Red Sucker Lake Aand jffice` and _rmsost residents utilize pit privies.`NJ For the hasagamack and St. Theresa Point First Nations0 _rwsater delivery services are provid-ed to the few houses equipped with indoor plumbing.`NN Studies indicate that hasagamack residents suffer from disproportionate exposure to iel-icobacter pylori bacteria0 which cause ulcers0 chronic gastritis0 and in-creased risk of stomach cancer.NR Contaminated water and inadequate wa-ter and sanitation services are known risk factors for ielicobacter pylori. Even in winter0 when the temperatures drop below minus forty de-grees Celsius0 individuals in these four Manitoba First Nation communi-ties are forced to use outhouses or latrine pails that must be emptied out-side. A BCCR newspaper articlexparaphrasing @octor Arlene King0 jntar-ioys chief medical officer of healthxnoted that _lack of running water0 lack of extensive medical facilities and overcrowding ... faced by aboriginal res-idents in northern and isolated communities make them more susceptible to the iDND virus.`RC In response to the iDND Gswine fluH outbreak0 Red Sucker Lake Chief Larry Knott said he was worried that his community wouldnyt _be able to heed much of the preventative advice from public health practitioners ... rbecauses many residents donyt have running water and must get fresh water in a pail from the lake.`RD Studies published in

NI ielen Fallding0 _@isease FactoryF Consequences of Living hithout Tap hater and

Flush Toilets`0 @innipeg Free Press Ga November BCDCH onlineF hinnipeg Free Press ohttpFppwww.winnipegfreepress.comq rFallding0 _@isease Factory`s.

Nb Province of Manitoba0 News Release0 _Manitoba to Join jther Premiers at National Summit on Aboriginal iealth` GBl November BCCbH onlineF Province of Manitoba ohttpFppwww.news.gov.mb.caq.

NJ _Red Sucker Lake First Nation`0 onlineF Community FuturesF Kitayan ohttpFppwww. kitayan.caq.

NN _hasagamack First Nation`0 onlineF Community FuturesF Kitayan ohttpFppwww. kitayan.caq. See also _St. Theresa Point First Nation`0 onlineF Community FuturesF Kitayan ohttpFppwww.kitayan.caq.

NR Samir K Sinha et al0 _The Incidence of ielicobacter pylori Acquisition in Children of a Canadian First Nations Community and the Potential for Parent-to-Child Transmis-sion` GBCClH RFD ielicobacter IR.

RC Aldo Santin0 _jfficials Aolster iDND Strategy for First Nations`0 @innipeg Free Press GN August BCCRH onlineF hinnipeg Free Press ohttpFpppwww.winnipegfreepress.comq.

RD Jen Skerritt0 _Swine Flu Surge iits Reserve`0 @innipeg Free Press Gl June BCCRH onlineF hinnipeg Free Press ohttpFppwww.winnipegfreepress.comq.


the !anadian Medical Association fournalRB and the fournal of the Amer1ican Medical Association demonstrated that Aboriginal people in Manito-ba suffered a disproportionate share of cases of iDND influenza during the BCCR outbreak.Ra Although Aboriginal people make up approximately DI percent of Manitoba^s population0Rl aJ percent of the patients who suf-fered critical illness as a result of iDND infection were Aboriginal0 and bC percent of the people who had to be admitted to intensive care units were Aboriginal.RI The St. Theresa First Nation was particularly hard hit0 with many individuals from this community having to undergo transportation to hospitals in hinnipeg.Rb An earlier study0 published in DRRJ0 found that shigellosisxan acute intestinal infection that kills thousands of children in developing coun-tries each yearxwas three to six times more common on Manitoba re-serves without running water than on reserves with piped water.RJ The study found that lack of access to an adequate volume of clean water like-ly resulted in less frequent handwashing0 and suggested that disposal of sewage from indoor pails likely raised the risk of diarrheal diseases.RN

II. The 'egal @ramework #overning Safe 4rinking Water in Qanada

Canada is covered by a complicated patchwork quilt of federal and provincial laws and regulations that govern safe drinking water.RR Unlike the United States0 there are no uniform national standards for drinking water in Canada.DCC Instead0 the federal government establishes national guidelines0 which are adopted to widely varying degrees by provincial and territorial governments.

RB Ryan zarychanski et al0 _Correlates of Severe @isease in Patients with BCCR Pandemic

Influenza GiDNDH nirus Infection` GBCDCH DNBFa Can Med Assoc J BIJ. Ra Anand Kumar et al0 _Critically Ill Patients with BCCR Influenza AGiDNDH Infection in

Canada` GBCCRH aCBFDJ JAMA DNJB at DNJl. Rl Philippe Jouvet et al0 _Critical Illness in Children with Influenza AppiDND BCCR Infec-

tion in Canada` GBCDCH DDFI Pediatric Critical Care Medicine bCa at bCJ. RI zarychanski et al0 supra note RB at BIR. Rb Joanne Embree0 _Pandemic BCCR GAHiDND Influenza GSwine FluH x The Manitoba Ex-

perience` GBCDCH NN Aiochemistry and Cell Aiology INR at IRD. RJ Ted Rosenberg et al0 _Shigellosis on Indian Reserves in Manitoba0 CanadaF Its Rela-

tionship to Crowded iousing0 Lack of Running hater0 and Inadequate Sewage @ispos-al` GDRRJH NJFR American Journal of Public iealth DIlJ at DIlN-lR.

RN Ibid at DIIC. RR Aoyd0 Hnnatural >aw0 supra note Bl at Da-bI. DCC @avid R Aoyd0 The @ater @e DrinkF An International !omparison of Drinking @ater

Quality Standards and Guidelines GnancouverF @avid Suzuki Foundation0 BCCbH at J.


A. The =rovincial and Territorial 'egal @ramework for 4rinking Water

Every province and territory has passed laws andpor regulations that establish drinking water quality standards0 as well as requirements for monitoring0 testing0 operator training and certification0 and public report-ing.DCD In the wake of the halkerton water disaster in BCCC0 almost every province and territory has strengthened its regulatory framework for drinking water.DCB In general0 laws intended to secure safe drinking water apply to all water systems0 except very small systems serving only a few buildings or residents. The other exception is that provincial laws govern-ing drinking water do not apply to reserves0 because of the federal gov-ernment^s constitutional responsibility for _Indians0 and lands reserved for Indians.`DCa

6. The @ederal 'egal @ramework for 4rinking Water

At the federal level0 a variety of legal provisions ensure access to safe water within the limits of federal %urisdiction. The !anada >abour !ode and associated regulations mandate the provision of potable water at all facilities where there are federal employees.DCl The Potable @ater Regula1tions for !ommon !arriers Gunder the Department of National Health and @elfare ActH require the provision of potable water on aircraft0 trains0 and ships travelling internationally0 interprovincially0 in coastal waters0 or on the Great Lakes.DCI

DCD Potable @ater Regulation0 Alta Reg BJJpBCCa] Drinking @ater Protection Act0 SAC BCCD0

c R GIth SessH] The Drinking @ater Safety Act0 SM BCCB0 c ab] Potable @ater Regulation0 NA Reg DRRa-BCa] @ater Resources Act0 SNL BCCB0 c h-l.CD] @aste and @astewater Fa1cilities and Public Drinking @ater Supplies Regulations0 NLR DNbpBCCI] Safe Drinking @ater Act0 Sj BCCB0 c aB Gad SessH] Drinking @ater and @astewater Facility Operating Regulations0 PEI Reg ECBCCl-JDC] Regulation respecting the quality of drinking water0 jC blJ-BCCD0 aC May BCCD0 GBCCDH Gju II0 BblD] The @ater Regulations, 20020 RRS0 c E-DC.BD0 Reg D0 jC NIbpBCCB] Drinking @ater Regulation0 tjIC BCCJpDaR] @ater Sup1ply Systems Regulations0 NhT Reg DCNpCR] Public @ater Supply Regulations0 RRNhT DRRC0 c P-Ba.

DCB Nunavut appears to be the sole exception0 with drinking water regulations dating to DRRC that have not been amended.

DCa !onstitution0 supra note BB0 s RDGBlH. See also MacIntosh0 supra note aJ at NC. DCl !anada >abour !ode, RSC DRNI0 c L-B0 s DBIGDHG%H. See also !anada Occupational Safe1

ty and Health Regulations, SjRpNb-aCl0 s RGBlH] Aviation Occupational Safety and Health Regulations, SjRpNJ-DNB0 s lGRH] Maritime Occupational Health and Safety Reg1ulations, SjRpBCDC-DBC0 ss Ja-JN] Oil and Gas Occupational Safety and Health Regula1tions, SjRpNJ-bDB0 s DCGDRH.

DCI Potable @ater Regulations for !ommon !arriers0 CRC0 c DDCI.


A number of federal laws relate to water and First Nations0 including the !anada @ater Act0DCb !anadian Environmental Protection Act, 18880DCJ Department of Health Act0DCN Department of Indian Affairs and Northern Development Act0DCR Fisheries Act0DDC First Nations >and Management Act0DDD and the First Nations !ommercial and Industrial Development Act.DDB iowever0 none of these laws provide a regulatory framework for the provision of safe drinking water on reserves.DDa The sole federal legis-lation relevant to drinking water on reserves is the Indian Act provision authorizing band councils to make bylaws governing _the construction and regulation of the use of public wells0 cisterns0 reservoirs and other water supplies.`DDl The Expert Panel determined that no bylaws have ever been passed pursuant to this enabling provision.DDI The Indian Act does not authorize the protection of source water0 which the halkerton Inquiry highlighted as a critical component of a comprehensive drinking water re-gime.DDb As Professor MacIntosh concludes0 this Indian Act provision is _an inadequate basis for a regulatory framework to ensure the safety of drinking water.`DDJ The bottom line is that there are no federal or provincial laws or regu-lations to ensure safe drinking water for First Nations individuals living on reserves. Ironically0 because of the !anada >abour !ode0 iealth Can-ada has installed small water treatment systems at nursing clinics and health facilities on dozens of reserves with drinking water quality prob-lems to ensure that employees have access to safe drinking water.DDN The Canadian Commissioner of the Environment and Sustainable @evelop-ment observed that _because the !anada >abour !ode applies only to

DCb !anada @ater Act0 RSC DRNI0 c C-DD. DCJ !anadian Environmental Protection Act, 18880 RSC DRRR0 c aa. DCN Department of Health Act0 RSC DRRb0 c N. DCR Department of Indian Affairs and Northern Development Act0 RSC DRNI0 c I-b. DDC Fisheries Act0 RSC DRNI0 c F-Dl. DDD First Nations >and Management Act, RSC DRRR0 c Bl. DDB First Nations !ommercial and Industrial Development Act0 RSC BCCI0 c Ia. DDa See Indian and Northern Affairs Canada0 Report of the Expert Panel on Safe Drinking

@ater for First Nations0 vol B GjttawaF Minister of Public horks and Government Ser-vices Canada0 BCCbH at a rReport of the Expert Panel0 vol Bs.

DDl Indian Act0 supra note I0 s NDGlH. DDI Report of the Expert Panel0 vol B0 supra note DDa at BI. DDb jntario0 halkerton Commission of Inquiry0 Report of the @alkerton InquiryF A Strategy

for Safe Drinking @ater, Part Two GTorontoF uueen^s Printer for jntario0 BCCBH at Ja r@alkerton Inquirys.

DDJ MacIntosh0 supra note aJ at bR. DDN _@rinking hater in First Nations Communities`0 supra note R at DC.


employees and provincial legislation and regulations are not applied on reserves0 residents of First Nations communities do not benefit from the regulatory protection for drinking water available in provinces and to fed-eral employees.`DDR As Professor MacIntosh concludes0 _all populations under federal %urisdiction have their drinking water protected by law0 ex-cept for on-reserve First Nations people.`DBC This is part of a larger pattern of _regulatory abandonment` of reserve lands and waters that also in-cludes an absence of regulation for wastewater treatment0 garbage dis-posal0 hazardous waste0 air pollution0 and other environmental con-cerns.DBD INAC has attempted to fill the regulatory gap with guidelines and funding arrangements0 but this approach fails to incorporate important elements found in provincial regulatory regimes0 includingF _approval and licensing of water treatment plants0 ongoing monitoring0 public reporting requirements0 and compliance and enforcement mechanisms.`DBB In BCCB0 in his report on the halkerton water disaster0 Justice j^Connor wroteF _I encourage First Nations and the federal government to formally adopt drinking water standards0 applicable to reserves0 that are as stringent as0 or more stringent than0 the standards adopted by the pro-vincial government.`DBa In BCCI0 the federal Commissioner of the Envi-ronment and Sustainable @evelopment recommended the development of a regulatory regime for drinking water in First Nations communities that would _protect the health and safety of First Nations people.`DBl In BCCb0 the Expert Panel identified a number of legislative options and deter-mined that the creation of a single federal regime of drinking water standards for First Nations communities offered the most advantages and the fewest drawbacks. The federal government pledged that it would _choose a regulatory option and propose an appropriate regulatory frame-work that will ensure safe drinking water in First Nations communities in the Spring BCCJ.`DBI In BCDC0 the government introduced Aill S-DD into the Senate.DBb Contrary to the recommendations of the Expert Panel and the

DDR Ibid. DBC MacIntosh0 supra note aJ at Ra. DBD Ibid at bN. DBB _@rinking hater in First Nations Communities`0 supra note R at DC-DD. DBa @alkerton Inquiry0 supra note DDb at aB. DBl _@rinking hater in First Nations Communities`0 supra note R at DB. DBI Indian and Northern Affairs Canada0 Plan of Action for Drinking @ater in First Na1

tions !ommunitiesF Progress Report GBB March BCCJH0 onlineF Aboriginal Affairs and Northern @evelopment Canada at DC ohttpFppwww.ainc-inac.gc.caq.

DBb Aill S-DD0 supra note Il.


Assembly of First Nations0 Aill S-DD proposed a regime based on the high-ly variable provincial drinking water laws.DBJ The Expert Panel had iden-tified this as the weakest option for three reasonsF _gaps and variations in those rprovincials regimes` could lead to uneven results0 with some com-munities benefiting from more comprehensive provincial regimes] First Nations have low records of accepting provincial regulation] and because involving another level of government in water management would add complexity.DBN Aill S-DD also contained provisions thatF suggested constitu-tionally protected Aboriginal rights could be violated]DBR indicated that the regulations would prevail over land claims agreements0 self-government agreements0 and First Nations laws and bylaws in the event of a con-flict]DaC and limited the government^s liability for acts and omissions and precluded civil lawsuits.DaD Perhaps not surprisingly0 the reaction of First Nations to the proposed legislation was negative.DaB

III. The Right to 'ifeU 'iberty and Security of the =erson ISection F of the QharterK

Modern sanitation services Gpotable drinking water and safe wastewater disposalH are a cornerstone of public health progress and have contributed to decreased infectious dis-ease morbidity and mortality.Daa

The Supreme Court of Canada has repeatedly stated that the inter-pretation of the !harter should be _a generous rather than a legalistic one0 aimed at fulfilling the purpose of the guarantee and securing for in-

DBJ Ibid. DBN Report of the Expert Panel0 vol D0 supra note ab at IR. DBR Supra note Il0 s lGDHGrH. DaC Ibid0 s b. DaD Ibid0 ss DC-DB. DaB Assembly of First Nations0 Press Release0 _AFN National Chief Calls for Real Action on

Safe @rinking hater for First NationsF Need Action to Address the vCapacity Gap as well as the Regulatory Gap^` GBJ May BCDCH onlineF AFN ohttpFppwww.afn.caq.

Daa Thomas h iennessy et al0 _The Relationship Aetween In-iome hater Service and the Risk of Respiratory Tract0 Skin0 and Gastrointestinal Tract Infections Among Rural Alaska Natives` GBCCNH RNFDD American Journal of Public iealth BCJB at BCJB.


dividuals the full benefit of the !harterys protection.`Dal Section J of the !harter statesF

Everyone has the right to life0 liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental %ustice.DaI

The appropriate scope of section J is one of the most contested issues in Canadian constitutional law.Dab Many different types of claims have been launched based on the right to life0 liberty and security of the person0 reflecting concerns about cruise missile testing in Canada0 DaJ the location of a landfill0DaN the inadequacy of provincial welfare programs0DaR and the legality of a uuebec law prohibiting private health insurance.DlC Although not all of these particular claims succeeded0 most of the successful chal-lenges launched under section J have been related to government actions that deprive an individual of his or her right to life0 liberty and security of the person in the context of the administration of %ustice0 particularly the criminal %ustice system. Subsequent cases0 including !haoulli v. Quebec (Attorney General)0DlD have confirmed that section J applies in a broader range of circumstances. According to the Supreme Court of Canada0 the claimant asserting a violation of section J must prove two main elementsF DH that a deprivation of the right to life0 liberty and security of the person has occurred] and BH that the deprivation _was not in accordance with the principles of funda-mental %ustice.`DlB In Singh v. Minister of Employment and Immigration0 Justice hilson emphasized that the _deprivation` can relate to any or all of the three interests identified in section Jxlife0 liberty0 and security of the personxand that _it is incumbent upon the Court to give meaning to

Dal R v Jig M Drug Mart >td0 rDRNIs D SCR BRI at all0 DN @LR GlthH aBD rJig M Drug

Marts. See also Dunmore v Ontario (AG)0 BCCD SCC Rl0 rBCCDs a SCR DCDb rDunmores. DaI Supra note aB. Dab See generally Margot toung0 _Section J and the Politics of Social Justice` GBCCIH aNFB

UAC L Rev IaR. DaJ Operation Dismantle Inc v !anada0 rDRNIs D SCR llD0 DN @LR GlthH lND. DaN Manicom v !ounty of Oxford GDRNIH0 IB jR Bd DaJ0 BD @LR GlthH bDD. DaR Gosselin v Quebec (Attorney General)0 BCCB SCC Nl at para BCI0 rBCCBs l SCR lBR

rGosselins. DlC !haoulli v Quebec (Attorney General)0 BCCI SCC aI0 rBCCIs D SCR JRD r!haoullis. DlD Ibid. DlB Gosselin0 supra note DaR at para BCI. Steps originally delineated by Justice La Forest in

R v Jearel R v Higgins0 rDRNNs B SCR aNJ at lCD0 II @LR GlthH lND.


each of the elements.`Dla The right to life has been described as the _right0 freedom or ability to maintain one^s existence.`Dll Liberty under section J _encompasses only those matters that can properly be characterized as fundamentally or inherently personal such that0 by their very nature0 they implicate basic choices going to the core of what it means to en%oy in-dividual dignity and independence.`DlI RodrigueU v. Jritish !olumbia (At1torney General) sets out the parameters of the right to security of the per-son0 including its physical and psychological components0 as _encom-passrings a notion of personal autonomy involving0 at the very least0 con-trol over one^s bodily integrity free from state interference and freedom from state-imposed psychological and emotional stress` as well as _the right to make choices concerning one^s own body0 control over one^s physi-cal and psychological integrity0 and basic human dignity.`Dlb A highly contentious issue is whether section J is0 or ought to be0 the basis for a positive state obligation to guarantee adequate living stand-ards.DlJ Efforts to broaden the application of section J to incorporate social and economic rights0 as in the Gosselin case about reduced welfare pay-ments for young people in uuebec0 have generally not succeeded0 although the Supreme Court has deliberately left the door open. Chief Justice McLachlin0 on behalf of the ma%ority in Gosselin0 wroteF

Nothing in the %urisprudence thus far suggests that s. J places a pos-itive obligation on the state to ensure that each person en%oys life0 liberty or security of the person. Rather0 s. J has been interpreted as restricting the stateys ability to deprive people of these. Such a depri-vation does not exist in the case at bar.

jne day s. J may be interpreted to include positive obligations. ... It would be a mistake to regard s. J as frozen0 or its content as hav-ing been exhaustively defined in previous cases. ...

The question therefore is not whether s. J has ever beenxor will ever bexrecognized as creating positive rights. Rather0 the question

Dla Singh v Minister of Employment and Immigration0 rDRNIs D SCR DJJ at BCl-BCI0 DJ

@LR GlthH lBB. See also Reference Re J! Motor _ehicle Act0 rDRNIs B SCR lNb0 Bl @LR GlthH Iab rRe J! Motor _ehicle Act cited to SCRs.

Dll @eborah Curran et al0 Environmental >awF In the Public Interest Gnancouver0 Continu-ing Legal Education Society of Aritish Columbia0 BCCNH at b.B.DD. See also !anada v Schmidt0 rDRNJs D SCR ICC0 aR @LR GlthH DN rSchmidt cited to SCRs] hindler v !anada (Minister of fustice)0 rDRRDs B SCR JJR0 Nl @LR GlthH laN rhindlers] Reference Re Ng Ex1tradition (!anada)0 rDRRDs B SCR NIN0 Nl @LR GlthH lRN rRe Ng Extraditions] Hnited States v Jurns0 BCCD SCC J0 rBCCDs D SCR BNa rJurnss.

DlI Godbout v >ongueuil (!ity)0 rDRRJs a SCR Nll at NRa0 DIB @LR GlthH IJJ. Dlb RodrigueU v Jritish !olumbia (Attorney General)0 rDRRas a SCR IDR at INJ-NN0 DCJ @LR

GlthH alB rRodrigueUs. DlJ toung0 supra note Dab at IlC.


is whether the present circumstances warrant a novel application of s. J as the basis for a positive state obligation to guarantee adequate living standards.

I conclude that they do not. ... I leave open the possibility that a positive obligation to sustain life0 liberty0 or security of the person may be made out in special circumstances. iowever0 this is not such a case.DlN

Justices Arbour and L^ieureux-@ubP0 dissenting in Gosselin0 argued that section J establishes a positive obligation on the state to provide for eve-ryone^s basic needs.DlR In Schachter0 the Supreme Court clearly stated that sections J and DI of the !harter include both negative and positive rights.DIC Given its preeminence within the overall scheme of the !harter0 _the need to safeguard a degree of flexibility in the interpretation and evo-lution of s. J` is0 as Justice LeAel suggests in Jlencoe v. Jritish !olumbia (Human Rights !ommission)0 crucial.DID So too0 as Justice L^ieureux-@ubP asserts in New Jrunswick (Minister of Health and !ommunity Services) v. G.(f.)0 is the need to interpret section J through an equality rights lens in order _to recognize the importance of ensuring that our interpretation of the Constitution responds to the realities and needs of all members of soci-ety.`DIB The ma%ority and concurring opinions in !haoulli v. Quebec (At1torney General) may have marked a new era in %udicial interpretation of the Canadian and uuebec charters0 indicating more responsiveness to the needs of Canadians.DIa Some commentators have argued that the Supreme Court decision in !haoulli0 striking down uuebec^s prohibition of private health insurance0 created a de facto obligation upon the state to provide timely health care.DIl The BCCR Aritish Columbia Court of Appeal decision dealing with homelessness0 _ictoria (!ity) v. Adams0 is also instructive.DII The Court of Appeal agreed with the trial %udge that a municipal bylaw prohibiting homeless people from establishing temporary structures in parks and other public spaces violated section J of the !harter. The Court

DlN Gosselin0 supra note DaR at paras ND-NB remphasis in originals. DlR Ibid at paras aIJ-IN. DIC Schachter v !anada0 rDRRBs B SCR bJR at JBD0 Ra @LR GlthH D rSchachters. DID Jlencoe v Jritish !olumbia (Human Rights !ommission)0 BCCC SCC ll at para DNN0

rBCCCs B SCR aCJ rJlencoes. DIB New Jrunswick (Minister of Health and !ommunity Services) v G (f)0 rDRRRs a SCR lb

at DCD0 DJJ @LR GlthH DBl rG(f)s. See also R v Mills0 rDRRRs a SCR bbN at bNR0 DNC @LR GlthH D.

DIa !haoulli0 supra note DlC. DIl Stanley iartt0 _hhat the !haoulli @ecision Said About iealth Care Rhetoric vs.

iealth Care Reality`0 Policy Options GFebruary BCCbH ll at lb0 onlineF IRPP ohttpFppwww.irpp.orgq.

DII _ictoria (!ity) v Adams0 BCCR ACCA Iba0 aDa @LR GlthH BR rAdamss.


held that its decision did not impose positive obligations on the city to provide adequate shelter or take other specified actions to address home-lessness0 although it acknowledged that0 from a practical point of view0 the city would have to undertake some kind of responsive action _to com-ply with the requirements of the !harter0 which can involve some expend-itures of public funds or legislative action0 or both.`DIb

A. 4eprivation of the Right to 'ifeU 'iberty and Security of the =erson

According to the Supreme Court of Canada0 the right to security of the person is violated when state action or inaction results in serious physical andpor psychological harm.DIJ As Chief Justice Lamer stated in G. (f.)F

It is clear that the right to security of the person does not protect the individual from the ordinary stresses and anxieties that a person of reasonable sensibility would suffer as a result of government action. If the right were interpreted with such broad sweep0 countless gov-ernment initiatives could be challenged on the ground that they in-fringe the right to security of the person0 massively expanding the scope of %udicial review0 and0 in the process0 trivializing what it means for a right to be constitutionally protected.DIN

Psychological harm must be greater than ordinary stress or anxiety0 but does not have to rise to the level of psychiatric illness. Examples of situations where the right to life0 liberty and security of the person will be violated includeF extradition to another country to face the death penalty] extradition to another country to face torture] and delays in the provision of medical treatment. In !haoulli0 the Court stated that _delays in obtain-ing medical treatment which affect patients physically and psychologically trigger the protection of s. J.`DIR @oes the federal government^s failure to provide adequate funding for basic drinking water and sanitation infrastructure at Pikangikum0 Kitcisakik0 Little Auffalo0 St. Theresa Point0 hasagamack0 Red Sucker Lake0 Garden iill0 and other reserves deprive First Nations persons in those communities of their right to life0 liberty and security of the person\ The answer is clearly in the affirmative. It is widely recognizedxby health experts0 the UN0 the horld iealth jrganization0 and even the government of Canadaxthat a minimum supply of potable water is a pre-

DIb Ibid at para Rb. DIJ Jlencoe0 supra note DID. DIN G(f)0 supra note DIB at JJ. Affirmed in Jlencoe0 supra note DID at para ND. DIR !haoulli0 supra note DlC at para DDN.


requisite for life0 adequate human health0 and well-being.DbC The federal government seems to acknowledge that _rcslean0 safe water is a basic re-quirement for life which must be accessible by all peoples of Canada.`DbD There is compelling evidence showing thatF First Nations individuals face elevated levels of waterborne disease compared to other Canadians]DbB First Nations individuals living on reserves without running water expe-rienced a higher incidence of iDND than the general Canadian popula-tion0 as well as a higher incidence of illness and death]Dba First Nations children suffered from a disproportionately high rate of iDND influenza0 due largely to the outbreak on the Manitoba reserves highlighted in this article GSt. Theresa Point0 hasagamack0 Red Sucker Lake0 and Garden iillH]Dbl and some First Nations communities that lack access to safe drinking water have disproportionately high suicide rates0 indicating high levels of psychological distress.DbI jther studies indicate that residents of reserves where the ma%ority of homes lack tap water or toilets face elevated risks ofF whooping cough GpertussisH] infection with a dangerous superbug known as MRSA0 or methicillin-resistant Staphylococcus aureus] shigellosis0 a deadly illness that affects children] diarrhea] and impetigo0 a bacterial skin infection that can lead to kidney problems.Dbb A key element of prevention in each of these cases is proper hygiene0 including frequent handwashing0 which is dependent on the availability of sufficient quantities of water of adequate quality. A study of rural Native villages in Alaska found that residents of

DbC See generally Peter i Gleick0 _Aasic hater Requirements for iuman ActivitiesF Meet-

ing Aasic Needs` GDRRbH BD hater International Na] Guy ioward and Jamie Aartram0 Domestic @ater Quantity, Service >evel and Health GGenevaF horld iealth jrganiza-tion0 BCCaH] hij and UNICEF0 Global @ater Supply and Sanitation AssessmentF 2000 Report GGenevaF horld iealth jrganization and United Nations Children^s Fund0 BCCCH] Report of the Hnited Nations High !ommissioner for Human Rights on the Scope and !ontent of the Relevant Human Rights Obligations Related to Equitable Access to Safe Drinking @ater and Sanitation Hnder International Human Rights Instruments0 UNGAjR0 bth Sess0 UN @oc ApiRCpbpa0 GBCCJH D rAccess to Safe Drinking @ater and Sanitations.

DbD Indian and Northern Affairs Canada0 News Release0 B-CBJIJ0 _Government Announces Immediate Action on First Nations @rinking hater Frequently Asked uuestions` GBD March BCCbH onlineF Aboriginal Affairs and Northern @evelopment Canada ohttpFppwww.ainc-inac.gc.caq.

DbB Implementation of I!ES!R0 supra note Da at Nl. Dba Alexia Campbell et al0 _Risk of Severe jutcomes Among Patients Admitted to iospital

with Pandemic GiDNDH Influenza` GBCDCH DNBFl Can Med Assoc J alR at aIl. Dbl Jouvet et al0 supra note Rl at bCI0 bCJ. DbI Elliott0 supra note IN. Dbb Fallding0 _@isease Factory`0 supra note NI.


homes without piped water and wastewater services faced significantly higher risks of pneumonia0 influenza0 and skin infections.DbJ The same study found that infants in villages lacking basic water services were five times more likely to be hospitalized for lower respiratory tract infections and respiratory syncytial virus0 and eleven times more likely to be hospi-talized for pneumonia compared to the overall United States popula-tion.DbN The authors concluded that this disparity ought to be remedied by improving sanitation infrastructure.DbR In circumstances analogous to the situation in !haoulli0DJC First Na-tions persons living on reserves without access to adequate water and sanitation services face elevated risks of serious health problems and may in some cases face an increased risk of death. There is a direct connection between the federal government^s failure to provide adequate funding for basic water infrastructure in these communities and deprivation of the right to life0 liberty and security of the person. There is an indirect con-nection between the federal government^s failure to ensure legal protec-tion for the drinking water of these communities0 as it has done for other persons under federal %urisdiction Gfor example0 federal employees0 travel-lers on planes0 trains0 and ships0 and military personnelH0 and the depri-vation of the right to life0 liberty and security of the person. This is analo-gous to the Supreme Court^s finding that Alberta^s human rights legisla-tion was under inclusive in _riend v. Alberta.DJD An argument can also be made that the liberty interests of First Na-tions individuals who live on reserves without access to basic water or sanitation services may be compromised. The Supreme Court has made it clear that for First Nations people0 the choice of whether to live on or off reserve is fundamental to their identity.DJB The federal government^s fail-ure to provide access to water and sanitation may effectively compel First Nations persons to leave their reserves and to protect their health by moving to communities where these services are available. In !haoulli0 Chief Justice McLachlin wrote that by _failing to provide public health care of a reasonable standard within a reasonable time0 the government creates circumstances that trigger the application of s. J of

DbJ iennessy et al0 supra note Daa. DbN Ibid at BCJb. DbR Ibid at BCJN. DJC Supra note DlC. See also R v Morgentaler0 rDRNNs D SCR aC0 ll @LR GlthH aNI rMor1

gentaler cited to SCRs. DJD rDRRNs D SCR lRa0 DIb @LR GlthH aNI r_riend cited to SCRs. DJB !orbiere v !anada (Minister of Indian and Northern Affairs)0 rDRRRs B SCR BCa0 DJa

@LR GlthH D r!orbiere cited to SCRs.


the !harter.`DJa Similarly0 by failing to provide drinking water and sanita-tion infrastructure _of a reasonable standard within a reasonable time` the government creates circumstances that trigger the application of sec-tion J.

6. Is the 4eprivation in Accordance with the =rinciples of @undamental *ustice[

The second part of the section J analysis involves determining wheth-er the deprivation of the right to life0 liberty and security of the person is consistent with the principles of fundamental %ustice. There is ambiguity about the meaning of the phrase _principles of fundamental %ustice.` Ac-cording to the Supreme Court0 to constitute a principle of fundamental %ustice for the purposes of section J0 a rule or principle mustF iH _be a legal principle about which there is significant societal consensus that it is fun-damental to the way in which the legal system ought fairly to operate`] and iiH _be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life0 liberty or security of the person.`DJl At least three of the principles of fundamental %ustice that have been accepted by the Supreme Court of Canada appear to be violated by the federal government^s ongoing failure to provide First Nations persons liv-ing on reserves with safe drinking water. First0 according to Justice hil-son in Morgentaler0 _a deprivation of the s. J right which has the effect of infringing a right guaranteed elsewhere in the !harter cannot be in ac-cordance with the principles fundamental %ustice.`DJI The next section of this article provides compelling evidence that the same government fail-ure to provide safe drinking water that violates section J also violates the !harter^s section DI equality guarantee by discriminating against First Nations. Second0 if the deprivation of the right to life0 liberty and security of the person would _shock the conscience` of Canadians0 then it violates the principles of fundamental %ustice. Typically0 _shock the conscience` has involved government decisions to extradite or deport someone who faces the death penalty0 torture0 or another form of punishment that would be unlawful in Canada. The main _shock the conscience` cases are Schmidt GDRNJH0 hindler GDRRDH0 Re Ng Extradition GDRRDH0 Jurns GBCCDH0 and

DJa Supra note DlC at para DCI. DJl R v Malmo1>evine] R v !aine0 BCCa SCC Jl at para DDa0 rBCCas a SCR IJD rMalmo1

>evines. See also !anadian Foundation for !hildren, mouth and the >aw v !anada (At1torney General)0 BCCl SCC l at para N0 rBCCls D SCR Jb.

DJI Morgentaler0 supra note DJC at DJI. See also Re J! Motor _ehicle Act, supra note Dla.


Suresh v. !anada (Minister of !itiUenship and Immigration) GBCCBH.DJb Schmidt held that the principles of fundamental %ustice are invoked by ac-tion that _shocks the conscience.`DJJ In Suresh0 the Supreme Court articu-lated the test for determining what shocks the conscience0 which asks whether _the conduct riss fundamentally unacceptable to our notions of fair practice and %ustice.`DJN The failure to ensure that all First Nations communities have running water0 access to safe drinking water0 and in-door plumbing is surely sufficient to shock the conscience of Canadians.DJR Third0 a law0 policy0 or program that is arbitrary also violates the principles of fundamental %ustice. A law0 policy0 or program is arbitrary where _it bears no relation to0 or is inconsistent with0 the ob%ective that lies behind rits.`DNC In !haoulli0 the Court explained thatF

To determine whether this is the case0 it is necessary to consider the state interest and societal concerns that the provision is meant to re-flect.

In order not to be arbitrary0 the limit on life0 liberty and security requires not only a theoretical connection between the limit and the legislative goal0 but a real connection on the facts. The onus of show-ing lack of connection in this sense rests with the claimant. The question in every case is whether the measure is arbitrary in the sense of bearing no real relation to the goal and hence being mani-festly unfair. The more serious the impingement on the person^s lib-erty and security0 the more clear must be the connection. hhere the individual^s very life may be at stake0 the reasonable person would expect a clear connection0 in theory and in fact0 between the measure that puts life at risk and the legislative goals.DND

In identifying priority communities under the First Nations hater and hastewater Action Plan0 the federal government evaluated five as-pects of a community^s water treatment systemF _source water quality0 de-sign of the system0 operation and maintenance of the system0 operator

DJb Schmidt0 supra note Dll] hindler0 supra note Dll] Re Ng Extradition0 supra note Dll]

Jurns0 supra note Dll] Suresh v !anada (Minister of !itiUenship and Immigration)0 BCCB SCC D0 rBCCBs D SCR a rSureshs.

DJJ Schmidt0 supra note Dll at IBB. DJN Supra note DJb at para lR. See also @avid h Elliott0 _Suresh and the Common Aorders

of Administrative LawF Time for the Tailor\` GBCCBH bIFB Sask L Rev lbR at lRR. DJR See generally Andrew Gage0 _Public iealth iazards and Section J of the !harter`

GBCClH Da J Envtl L m Prac D. DNC RodrigueU0 supra note Dlb at bDR-BC. See also Malmo1>evine, supra note DJl at para

Dab] !haoulli0 supra note DlC at paras DaC-aD. DND Supra note DlC at paras DaC-aD rfootnote omitteds.


training and certification0 and reporting and record keeping.`DNB This un-%ustifiably narrow approach led to the exclusion of Pikangikum0 Kitcisakik0 Little Auffalo0 St. Theresa Point0 hasagamack0 Red Sucker Lake0 and Garden iill from the list of priority First Nations. This exclu-sion occurred despite previous government commitments to these com-munities0 media coverage of the acute problems facing these communities0 and even the identification of some of these communities by the govern-ment^s own Expert Panel as requiring urgent intervention. As the Stand-ing Senate Committee on Aboriginal Peoples reported in BCCJ0 _the Ex-pert Panel told the Committee that they had identified communities that were clearly at higher risk0 but that these communities failed to appear as high risk on the Department’s risk assessment because they did not have any water systems at all.`DNa It is likely that a strategy to provide safe drinking water and sanita-tion that fails to prioritize the communities where these basic services are most urgently required is arbitrary. The seven First Nations communities highlighted in this article are suffering extensive adverse health effects as a direct consequence of the lack of access to a sufficient quantity of ade-quate quality water. The INAC criteria for ranking priority communities are arbitrary because they ignore whether a treatment plant exists and0 if one does exist0 whether it is actually serving members of a community. As the Supreme Court held in !haoulli Gendorsing the ruling of Justice Aeetz in MorgentalerH _rules that endanger health arbitrarily do not comply with the principles of fundamental %ustice.`DNl A fourth legal principle that may be relevant in this discussion is re-spect for minorities. As the Supreme Court noted in Reference Re Seces1sion of Quebec0 _there are four fundamental and organizing principles of the Constitution which are relevant to addressing the question before us Galthough this enumeration is by no means exhaustiveHF federalism] de-mocracy] constitutionalism and the rule of law] and respect for minori-ties.`185 The Court further emphasized that _the protection of minority rights is itself an independent principle underlying our constitutional or-der.`DNb Given that First Nations persons clearly belong to a minority in

DNB Debates of the Senate0 aRth Parl0 Dst Sess0 No DI GBI April BCCJH at DI-lR Gion Gerry St

GermainH. DNa Safe Drinking @ater0 supra note II at l remphasis in originals. DNl Supra note DlC at para Daa. DNI Reference Re Secession of Quebec0 rDRRNs B SCR BDJ at BlC0 DbD @LR GlthH aNI rRe Se1

cession of Quebecs. DNb Ibid at BbD-bB.


the Canadian context0DNJ the failure to provide adequate funding for drink-ing water and sanitation infrastructure on reserves and the failure to leg-islate protection for safe drinking water could be construed as contrary to the principle of respecting and protecting minority rights.

Q. *ustification Under Section Y of the Qharter

jnce a claimant has established a violation of one or more !harter rights0 the onus shifts to the party seeking to %ustify the infringement un-der section D of the !harter.DNN The Supreme Court has stated that section J violations can rarely be %ustified by section D of the !harter.189 In Re J.!. Motor _ehicle Act0 Jus-tice Lamer observed that _rssection D may0 for reasons of administrative expediency0 successfully come to the rescue of an otherwise violation of s. J0 but only in cases arising out of exceptional conditions0 such as natural disasters0 the outbreak of war0 epidemics0 and the like.`190 Thus0 if depriv-ing residents of First Nations reserves of access to safe water violates their right to life0 liberty and security of the person0 it is unlikely that the government will be able to %ustify its actions under section D of the !har1ter.

I]. The Right to E_uality ISection Y` of the QharterK

Section DIGDH of the !harter statesF Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrim-ination and0 in particular0 without discrimination based on race0 na-tional or ethnic origin0 colour0 religion0 sex0 age or mental or physical disability.DRD

It is a general principle of !harter interpretation that section DIGDH is to be generously and purposively interpreted.DRB Courts have been clear in explaining that section DI applies to more than %ust statutes. As the Su-preme Court ruled in >ovelace v. Ontario0 government programs and ac-

DNJ Aboriginal Peoples in !anada in 20060 supra note DD at b. DNN R v Oakes0 rDRNbs D SCR DCa0 Bb @LR GlthH BCC rOakes cited to SCRs. DNR R v DJ0 BCCN SCC BI at para NR0 rBCCNs B SCR a. DRC Re J! Motor _ehicle Act0 supra note Dla at IDN. DRD Supra note aB. DRB See e.g. Hunter v Southam Inc0 rDRNls B SCR DlI at DIb0 DD @LR GlthH blD] Jig M Drug

Mart0 supra note Dal at aab0 all] Andrews v >aw Society of Jritish !olumbia0 rDRNRs D SCR Dla at DJI0 Ib @LR GlthH D rAndrewss.


tivities undertaken pursuant to statutory authority are also sub%ect to !harter scrutiny.DRa The purpose of the equality right guaranteed under the !harter has been described by the Supreme Court of Canada in different ways. In R. v. Turpin0 the Court defined the overall purpose of section DI to be the rem-edying or preventing of discrimination against groups suffering social0 po-litical0 and legal disadvantage in Canadian society.DRl In Eldridge v. Jrit1ish !olumbia (Attorney General)0 the Court held that section DIGDH has two key purposesF

First0 it expresses a commitmentxdeeply ingrained in our social0 po-litical and legal culturexto the equal worth and human dignity of all persons. As McIntyre J. remarked in Andrews0 at p. DJD0 s. DIGDH _entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern0 respect and consideration`. Secondly0 it instan-tiates a desire to rectify and prevent discrimination against particu-lar groups _suffering social0 political and legal disadvantage in our society`.DRI

The legal test for establishing a violation of section DI of the !harter has evolved through a number of Supreme Court of Canada decisions0 begin-ning with Andrews v. >aw Society of Jritish !olumbiaDRb and arising most recently in R. v. happ.DRJ In happ0 the Supreme Court of Canada reiterat-ed the test for potential section DI violations as involving two questionsF _GDH @oes the law create a distinction based on an enumerated or analo-gous ground\ GBH @oes the distinction create a disadvantage by perpetuat-ing pre%udice or stereotyping\`DRN

A. Is the 4istinction or 4ifferential Treatment 6ased on an Enumerated or Analogous #round[

According to Professor iogg0 a section DI analysis _requires a compar-ison between the legal position of the claimant and that of other people to

DRa >ovelace v Ontario0 BCCC SCC aJ at para Ib0 rBCCCs D SCR RIC r>ovelaces. See also

Mchinney v Hniversity of Guelph0 rDRRCs a SCR BBR at BJJ0 Jb @LR GlthH IlI. DRl R v Turpin0 rDRNRs D SCR DBRb0 Rb NR DDI. DRI Eldridge v Jritish !olumbia (Attorney General)0 rDRRJs a SCR bBl at bbJ0 DID @LR

GlthH IJJ rEldridges rfootnotes omitteds. See also >aw v !anada (Minister of Employ1ment and Immigration)0 rDRRRs D SCR lRJ0 DJC @LR GlthH D r>aw cited to SCRs.

DRb Supra note DRB. DRJ R v happ0 BCCN SCC lD0 rBCCNs B SCR lNa rhapps. DRN Ibid at para DJ.


whom the claimant may legitimately invite comparison.`DRR Thus0 all por-tions of the section DI test proceed

on the basis of a comparison with another relevant group or groups0 and locating the relevant comparison groups requires an examination of the sub%ect-matter of the law0 program or activity and its effects0 as well as a full appreciation of the context. Gen-erally0 the claimant chooses the relevant comparator0 however0 a court may0 within the scope of the ground or grounds pleaded0 re-fine the comparison presented by the claimant.BCC

Race and ethnicity are enumerated grounds under section DI. In the con-text of access to safe drinking water0 however0 it is not Aboriginality per se that is the basis of the impugned distinction. Aboriginal people living off-reserve en%oy the same level of access to safe drinking water and sani-tation as other Canadians0 and the same legal protection provided by fed-eral and provincial drinking water laws and regulations. It is the combi-nation of Aboriginality with on-reserve residence that is the basis of the distinction0 or Aboriginality-residence to use the terminology of the Su-preme Court of Canada.BCD In the case of !orbiere v. !anada (Minister of Indian and Northern Affairs)0 it was held that Indian Act provisions re-quiring residence on reserve in order to vote in band council elections vio-lated the section DI equality rights of Aboriginal people living off-reserve.BCB Residence on an Indian reserve is an exception to the courts^ position that place of residence is not an analogous ground.BCa The Su-preme Court unanimously held in !orbiere that _Aboriginality-residence` is an analogous ground because the decision to live on- or off-reserve is a _personal characteristic essential to a band memberys personal identity` which can be changed _only at great cost0 if at all.`BCl Regarding access to safe drinking water0 it is First Nations people liv-ing on-reserve whose section DI equality rights are being violated. The Aboriginal communities of Pikangikum0 Kitcisakik0 Little Auffalo0 St. Theresa Point0 hasagamack0 Red Sucker Lake0 and Garden iill are re-mote northern reserves. Relevant comparison groups are therefore remote northern communities0 of similar size0 that are not reserves. Examples

DRR Peter h iogg0 !onstitutional >aw of !anada0 Ith ed0 loose-leaf Gconsulted on R August

BCDDH0 GTorontoF Carswell0 BCCJH vol B at II.aB.a. BCC >ovelace0 supra note DRa at para bB rfootnote omitteds. See also >aw0 supra note DRI at

IaD. BCD !orbiere0 supra note DJB at BDb. BCB Ibid. BCa Ibid. BCl Ibid at BBC.


could include Red Lake0 jntario Gpopulation l0IBbH]BCI Aumond0 uuebec Gpopulation JJIH]BCb Aerwyn0 Alberta Gpopulation IlbH] and Flin Flon0 Man-itoba Gpopulation I0IRlH.BCJ Residents of these remote0 northern0 non-reserve communities en%oy safe drinking water from systems that are provincially regulated. For example0 there is a dramatic contrast between access to safe water in Pikangikum and Red Lake despite comparable population sizes and geographic proximity Groughly one hundred kilome-tres separate the communitiesH. hhereas the residents of the Pikangikum First Nation predominantly lack running water and indoor plumbing0 forcing them to collect water in buckets and to rely on outhouses0BCN the residents of Red Lake en%oy safe drinking water from a certified municipal water system and are served by a sewage treatment plant that treats their wastewater.BCR Red Lake^s water treatment system must meet the stringent requirements of jntario^s Safe Drinking @ater Act0 which im-poses extensive treatment and monitoring requirements in order to en-sure that human health is protected.BDC Pikangikum^s water treatment plant Gwhich is not connected to RI percent of the homes in the communi-tyH is not sub%ect to a regulatory regime.BDD According to the legally re-quired public annual report0 the operator of the Red Lake water treat-ment system carried out _over b0CCC routine independent in-house water quality tests ... in BCDC.`BDB In contrast0 water quality testing at Pikangikum was described by jntario^s Northwestern iealth Unit as sporadic0 infrequent0 and insufficient.BDa As discussed earlier0 there are no federal or provincial laws that pro-tect the quality of drinking water on First Nations reserves. Every prov-ince and territory in Canada has legislation intended to ensure the provi-sion of safe drinking water. iowever0 because the !onstitution Act, 196P

BCI Statistics Canada0 _Community ProfilesF Red Lake0 jntario` in 2006 !ensus of Popula1

tion0 onlineF Statistics Canada ohttpFppwww.statcan.caq. BCb Statistics Canada0 _Community ProfilesF Aumond0 uuebec` in 2006 !ensus of Popula1

tion0 onlineF Statistics Canada ohttpFppwww.statcan.caq. BCJ Statistics Canada0 _Community ProfilesF Flin Flon0 Manitoba` in 2006 !ensus of Popu1

lation0 onlineF Statistics Canada ohttpFppwww.statcan.caq. BCN Report of the Expert Panel0 vol D0 supra note ab at IB. BCR Municipality of Red Lake0 jntario0 Red >ake Drinking @ater SystemF Annual Report

2010 GRed Lake0 jntarioF Northern haterworks0 BCDCH rRed >ake Drinking @ater Sys1tems.

BDC Safe Drinking @ater Act0 RSj BCCB0 c aB. See also Drinking @ater Systems0 j Reg DCbpDC.

BDD Inspection Report0 supra note IJ at l. BDB Red >ake Drinking @ater System0 supra note BCR at a. BDa Inspection Report0 supra note IJ.


assigns %urisdiction over Indians and Indian lands to the federal govern-ment0BDl these laws do not apply on First Nations reserves. The practical consequence is that the roughly half a million Canadians who live on re-serves are without the legal guarantees of water quality en%oyed by the other thirty-four million Canadians. Therefore0 First Nations people living on certain reserves have a strong argument that the legal framework in-tended to ensure safe drinking water for all Canadians has a glaring gap or0 in legal terms0 is under-inclusive. It is not that safe drinking water laws explicitly exclude Aboriginal Canadians living on reserve0 but that is the ultimate result of the otherwise comprehensive network of laws. In _riend0 Alberta human rights legislation was held to be under-inclusive because it did not include discrimination based on sexual orientation.BDI In Dunmore v. Ontario (AG)0 a case dealing with jntario legislation exclud-ing agricultural workers from the statutory labour relations regime0 the Supreme Court held that _legislation that is underinclusive may0 in unique contexts0 substantially impact the exercise of a constitutional free-dom.`BDb In the context of the right to water0 Canadian drinking water leg-islation is under-inclusive in that it does not apply on reserves. Aecause of the allocation of constitutional %urisdiction0 responsibility for this legal la-cuna lies with the federal government. hhile some may be encouraged by the allocation of additional re-sources and the introduction of new legislation0 the crises in Pikangikum0 Kitcisakik0 Little Auffalo0 St. Theresa Point0 hasagamack0 Red Sucker Lake0 and Garden iill are ongoing. These crises have not been treated with the degree of urgency recommended by the Expert Panel in BCCb. The allocation of money in a budget cannot be regarded as a substitute for tangible remedial action in the affected reserve communities. The intro-duction of proposed legislation that may or may not be passed by Parlia-ment cannot be regarded as a substitute for the enactment0 implementa-tion0 and enforcement of legislation. In _riend0 the Supreme Court held that _groups that have historically been the target of discrimination can-not be expected to wait patiently for the protection of their human dignity and equal rights while governments move toward reform one step at a time.`BDJ

BDl !onstitution Act, 196P GUKH0 aC m aD nict0 c a0 s RDGBlH0 reprinted in RSC DRNI0 App II0

No I. BDI Supra note DJD. BDb Dunmore0 supra note Dal at para BB remphasis in originals. See also @ianne Pothier0

_The Sounds of SilenceF !harter Application when the Legislature @eclines to Speak` GDRRbH JFl Const Forum Const DDa.

BDJ Supra note DJD at IIR.


6. Is the 4istinction or 4ifferential Treatment 4iscriminatory[

The focus of the second part of the section DI analysis has shifted over time0 from Andrews to >aw v. !anada (Minister of Employment and Im1migration) and0 more recently0 happ. Four contextual factors were identi-fied by the Supreme Court of Canada in >aw as being relevant to the analysis under this last branch of the section DI testF pre-existing disad-vantage0 correspondence between the ground of distinction and the actual needs and circumstances of the affected group0 ameliorative purpose of the impugned measure for a more disadvantaged group0 and the nature of the interests affected.BDN The Supreme Court has clarified that these four factors are non-exhaustive guiding principles rather than a mechanical test.BDR jne of the elements at the heart of section DIGDH is the concept of hu-man dignity. As the Supreme Court observed in >aw0 _rhsuman dignity is harmed when individuals and groups are marginalized0 ignored0 or deval-ued0 and is enhanced when laws recognize the full place of all individuals and groups within Canadian society.`BBC The Court elaboratedF

rPsrobably the most compelling factor favouring a conclusion that differential treatment imposed by legislation is truly discriminatory will be0 where it exists0 pre-existing disadvantage0 vulnerability0 ste-reotyping0 or pre%udice experienced by the individual or group. ... These factors are relevant because0 to the extent that the claimant is already sub%ect to unfair circumstances or treatment in society by virtue of personal characteristics or circumstances0 persons like him or her have often not been given equal concern0 respect0 and consid-eration. It is logical to conclude that, in most cases, further differen1tial treatment will contribute to the perpetuation or promotion of their unfair social characteriUation, and will have a more severe im1pact upon them, since they are already vulnerable.221

hhereas >aw focused on the impairment of human dignity0 happ em-phasized discrimination0 which it defined as the perpetuation of disad-vantage or stereotyping.BBB Under both of these related approaches0 it is clear that First Nations persons living on reserves meet the section DI test. There can be no doubt that Aboriginal Canadians have a long and dismal history of being discriminated against in Canada. The Royal Commission on Aboriginal Peoples described countless examples that demonstrate pre-existing disadvantage0 vulnerability0 stereotyping0 or

BDN >aw0 supra note DRI. BDR >ovelace0 supra note DRa at para Il. BBC >aw0 supra note DRI at IaC. BBD Ibid at Ial-aI remphasis added0 footnotes omitteds. BBB See iogg0 supra note DRR at II.aD-II.aB.B.


pre%udice0 ranging from residential schools and denial of the right to vote0 to violations of treaty commitments and governments^ ongoing failure to recognize or respect Aboriginal title and rights.223 In !orbiere0 >ovelace0 and happ0 the Supreme Court of Canada confirmed that First Nations people suffer historical and ongoing disadvantages vis-d-vis the general Canadian populationF

The disadvantage of aboriginal people is indisputable. In !orbiere v. !anada (Minister of Indian and Northern Affairs)0 rDRRRs B S.C.R. BCa0 the Court noted _the legacy of stereotyping and pre%udice against Aboriginal peoples` Gpara. bbH. The Court has also acknowl-edged that _Aboriginal peoples experience high rates of unemploy-ment and poverty0 and face serious disadvantages in the areas of ed-ucation0 health and housing` G>ovelace0 at para. bRH.BBl

The Supreme Court has repeatedly stated that _the essence of differ-ential treatment cannot be fully appreciated without evaluating the eco-nomic0 constitutional and societal significance of the interest adversely af-fected by the program in question.`BBI In Egan v. !anada0 the Court held that0 all other factors being equal0 _the more severe and localized the eco-nomic consequences on the affected group0 the more likely that the dis-tinction responsible for these consequences is discriminatory within the meaning of s. DI of the !harter.`226 Safe drinking water must be recog-nized as a human right not only because it is fundamental to health and quality of life0 but also because it is a critical aspect of people^s dignity. The lack of access to safe drinking water that is being experienced by First Nations communities has several adverse health0 social0 and eco-nomic effects. Residents of these communities experience higher rates of waterborne diseaseBBJ and increased risks of diseases such as iDND Gthe swine fluH.BBN The lack of access to safe drinking water strikes a blow to human dignity0 and may contribute to the significantly higher rates of substance abuse and suicide experienced by some of these communities.BBR The adverse economic effects include both the direct costs of the foregoing problems and the opportunity costs associated with living in conditions that make it difficult to attract or retain skilled workers or businesses.

BBa Report of the Royal !ommission on Aboriginal PeoplesF >ooking Forward, >ooking Jack0

vol D GjttawaF Supply and Services Canada0 DRRbH. BBl happ0 supra note DRJ at para IR. BBI >ovelace0 supra note DRa at para NN. See also >aw0 supra note DRI at IlC. BBb Egan v !anada0 rDRRIs B SCR IDa at IIb0 DBl @LR GlthH bCR rEgans. BBJ Implementation of I!ES!R0 supra note Da at Nl. BBN See e.g. Santin0 supra note RC] zarychanski et al0 supra note RB] Kumar et al0 supra

note Ra. BBR Elliott0 supra note IN.


In human rights %urisprudence0 it is a widely accepted principle that failing to take positive actions to provide basic public services to disadvan-taged groups can constitute discrimination.BaC The Supreme Court has consistently held that _once the state does provide a benefit0 it is obliged to do so in a non-discriminatory manner.`BaD In Eldridge0 the Supreme Court ruled that section DI may require governments to take special measures to ensure that disadvantaged groups are able to benefit equally from government services0 for example by extending the scope of a benefit to a previously excluded group.BaB Eldridge was a case of discrimination in which the adverse effects suffered by deaf persons were caused by the government^s failure to ensure that deaf persons benefited equally from an essential service offered to everyone. Ay analogy0 it is incumbent upon the federal government to ensure that in the context of access to safe drinking water0 First Nations persons living on reserve Gmembers of a disadvantaged groupH are provided with the same essential services as the rest of the population. Although the various programs0 initiatives0 and in-vestments described earlier represent useful steps in the right direction0 they are flawed in that they do not direct adequate resources to communi-ties with the most urgent needs. hhether a failure to legislate could be challenged under the !harter was mentioned as a possibility in _riend.Baa

Q. *ustification Under Section Y of the Qharter

Section D of the !harter readsF The !anadian !harter of Rights and Freedoms guarantees the rights and freedoms set out in it sub%ect only to such reasonable lim-its prescribed by law as can be demonstrably %ustified in a free and democratic society.Bal

As the terms of the section make clear0 no !harter protection is absolute. In the presence of a section DI violation0 the courts therefore undertake a separate section D evaluation to determine whether the infringement nev-ertheless constitutes a reasonable limit on the right to equality. The gov-ernment bears the burden of establishing that any !harter breach is %usti-

BaC Eldridge0 supra note DRI at bND] Haig v !anadal Haig v !anada (!hief Electoral Of1

ficer)0 rDRRas B SCR RRI at DClD0 DCI @LR GlthH IJJ rHaigs. BaD Eldridge0 supra note DRI at bJN. See also T=treault1Gadoury v !anada (Employment

and Immigration !ommission)0 rDRRDs B SCR BB0 ND @LR GlthH aIN] Haig0 supra note BaC at DClD-lB] Native @omen’s Assn of !anada v !anada0 rDRRls a SCR bBJ at bII0 DDR @LR GlthH BBl.

BaB Supra note DRI at bJN. Baa Supra note DJD at Ial. Bal Supra note aB.


fied.BaI The governing approach to the section D analysis0 detailed by the Supreme Court of Canada in Oakes, involves a two step process.Bab First0 the ob%ective of the legislation or government action must be shown to be sufficiently _pressing and substantial` to warrant overriding a !harter right.BaJ Second0 the means adopted to attain that ob%ective must be rea-sonable and demonstrably %ustified.BaN In order to satisfy the second re-quirement0 three criteria must be satisfiedF GDH the rights violation must be rationally connected to the aim of the legislation] GBH the impugned provision must minimally impair the !harter guarantee] and GaH there must be a proportionality between the effect of the measure and its ob%ec-tive such that the attainment of the legislative goal is not outweighed by the abridgement of the right.BaR Justification of conduct deemed discriminatory under section DI _is difficult0 because the finding of an impairment of human dignity will in-volve much of the same inquiry as that required by s. D.`BlC Given the ex-tensive adverse effects of the failure to provide safe drinking water to First Nations people living on reserves Gstemming from inadequate re-sources and the lack of a regulatory frameworkH0 the government would be hard pressed to meet the burden of %ustification. There is no apparent _pressing and substantial` ob%ective0 nor is there minimal impairment of the equality guarantee or proportionality between the government ob%ec-tive and the infringement of the right.

]. The @ederal and =rovincial #overnmentsa Obligation to =rovide Essential =ublic Services of Reasonable Ouality to all Qanadians ISection ;X of the Qonstitution ActU YL:PK

A little-known section of the !onstitution commits the federal and provincial governments to providing _essential public services of reasona-ble quality to all Canadians.` Section ab0 which falls under Part IIIF Equalization and Regional @isparities0 readsF

GDH hithout altering the legislative authority of Parliament or of the provincial legislatures0 or the rights of any of them with respect to the exercise of their legislative authority0 Parliament and the legis-latures0 together with the government of Canada and the provincial governments0 are committed to

BaI Oakes0 supra note DNN. Bab Ibid. BaJ Ibid at DaN-aR. BaN Ibid at DaR. BaR Ibid. See also Egan0 supra note BBb at bCI. BlC iogg0 supra note DRR at II.DR.


GaH promoting equal opportunities for the well-being of Canadi-ans]

GbH furthering economic development to reduce disparity in opportunities] and

GcH providing essential public services of reasonable quality to all Canadians.

GBH Parliament and the government of Canada are committed to the principle of making equalization payments to ensure that provincial governments have sufficient revenues to provide reasonably compa-rable levels of public services at reasonably comparable levels of tax-ation.BlD

There has been little %udicial consideration of section ab and only a mod-est academic debate about the potential consequences of the provision. The Manitoba0 Aritish Columbia0 and Nova Scotia Courts of Appeal have indicated that section ab may be %usticiable in certain circumstances.BlB In Manitoba heewatinowi Okimakanak Inc. v. Manitoba Hydro1Electric Joard0 Chief Justice Scott of the Manitoba Court of Appeal observedF _I am satisfied that in the general sense a reasonable argument might be advanced that the section could possibly have been intended to create en-forceable rights.`Bla At the Aritish Columbia Supreme Court0 Chief Justice Arenner held that section ab of the !onstitution _cannot form the basis of a claim since it only contains a statement of vcommitment^.`Bll The Aritish Columbia Court of Appeal disagreed0 reiterating Chief Justice Scott^s comment in Manitoba heewatinowi Okimakanak that the section could create enforceable rights0 but deciding that the Canadian Aar Associa-tion^s statement of claim failed to offer the _rmsaterial facts rthats must be pleaded to create an informed environment for consideration of that ques-tion.`BlI In the Nova Scotia case0 the Cape Areton Regional Municipality GCARMH argued that section ab is a legally enforceable constitutional commitment on the part of the federal and provincial governments0 and

BlD !onstitution0 supra note BB. BlB See Manitoba heewatinowi Okimakanak Inc v Manitoba Hydro1Electric Joard GDRRBH0

RD @LR GlthH IIl0 JN Man R GBdH DlD GCAH rManitoba heewatinowi Okimakanak cited to @LRs] !anadian Jar Assn v Jritish !olumbia GBCCNH0 BRC @LR bDJ0 Jb ACLR GlthH lN GCAH r!anadian Jar Assn cited to @LRs] !ape Jreton (Regional Municipality) v Nova Scotia (Attorney General) GBCCRH0 BJJ NSR GBdH aIC0 DRD CRR GBdH BJa GCAH r!ape Jre1ton cited to NSRs.

Bla Supra note BlB at IIJ-IN. Bll !anadian Jar Assn v Jritish !olumbia (AG)0 BCCb ACSC DalB at para DDN0 rBCCJs D

hhR aaD. BlI !anadian Jar Assn0 supra note BlB at baJ remphasis in originals.


that it was violated by the inadequate provision of funding to Cape Are-ton.Blb The Nova Scotia Court of Appeal GNSCAH ruled that the only par-ties capable of litigating a case based on section ab are the provincial and federal governments themselves0 based on the dubious premise that sec-tion ab is akin to a contractual agreement.BlJ jne of the key issues regarding section ab is whether it represents %usticiable commitments or a suite of unenforceable ob%ectives. The word _commit` and its French equivalent _s’engager` are both sub%ect to several definitions. The Canadian jxford @ictionary identifies two optionsF _hav-ing a strong dedication to a cause or belief` or _obliged Gto take a certain actionH.`BlN All three courts of appeal agreed that _by its plain meaning vcommitted^ could0 in appropriate circumstances0 connote a %usticiable ob-ligation.`BlR iowever0 the NSCA held that a number of factors weighed against finding that the CARM could rely on section ab as an enforceable cause of action0 includingF the vague language of the three commitments in section abGDH] the absence of the word _right` in the title of the section] the lack of identified beneficiaries] and the opening phrase reiterating the legislative authority of Parliament and the provincial legislatures.BIC hith respect0 none of these arguments are convincing. It is a reality of constitu-tional drafting that provisions are vague0 with details provided through legislation0 regulation0 and %udicial interpretation. The language of section ab is neither more nor less vague than other provisions of the !onstitu1tion0 such as the _right to life0 liberty and security of the person`BID or _ex-isting aboriginal and treaty rights.`BIB It seems incorrect to suggest there are no identified beneficiaries in light of section abGDHGcH^s reference to _all Canadians`.BIa It is true that the location and wording of section ab are distinct from the individual rights set forth in the !harter. Nevertheless0 section abGDHGcH plainly articulates the commitment of federal and provin-cial governments to _providing essential public services of reasonable quality to all Canadians.`BIl

Blb !ape Jreton0 supra note BlB. BlJ Ibid at abI. BlN The !anadian Oxford Dictionary0 Bd ed0 sub verbo _committed`. BlR !ape Jreton0 supra note BlB at aba. See also Manitoba heewatinowi Okimakanak0 su1

pra note BlB at IIJ-IN] !anadian Jar Assn0 supra note BlB at baJ. BIC !ape Jreton0 supra note BlB. BID !harter0 supra note aB0 s J. BIB !onstitution0 supra note BB0 s aI. BIa Ibid0 s abGDHGcH. BIl Ibid.


There are several arguments in favour of finding that section abGDHGcH imposes a %usticiable duty on governments. Canada has stated to the UN Committee on Economic0 Social and Cultural Rights that the !onstitution guarantees social and economic rights in Canada.BII Canada also stated to the UN iuman Rights Committee that the right to life in the Interna1tional !ovenant on Economic, Social and !ultural Rights may impose ob-ligations on governments to provide minimum basic necessities for _health or social well being`.BIb Section abGDHGaH and GbH of the !onstitution refers to _promoting equal opportunities` and _furthering economic devel-opment`0 both of which suggest a progressive quality of improvement over time.BIJ In contrast0 section abGDHGcH refers to _providing` essential services0 which has a more immediate connotation and represents a more substan-tive obligation.BIN Section abGDHGcH plainly provides an unqualified com-mitment0 not a goal or ob%ective. The French version of section ab uses the verb engager0 which lends credence to the interpretation that the commitment is closer to an abso-lute0 binding duty or responsibility.BIR The very fact that the commitment is constitutionalized0 rather than contained in a federal-provincial agree-ment or memorandum of understanding0 lends it further legal potency.BbC If governments fail to fulfill this responsibility0 section ab appears to be as %usticiable as any other provision of the !onstitution Act, 1892 as long as a claim has _a sufficient legal component.`BbD As Nader arguesF _rusnder this provision0 it is not enough for governments to vwork towards^ providing es-sential public services. Governments must provide them.`BbB Sossin finds

BII See e.g. United Nations International iuman Rights Instruments0 !ore Document

Forming Part of the Reports of State PartiesF !anada0 iRIpCjREpDpAdd.RD GDB January DRRNH at para DBJ] UNESCjR0 Nth Sess0 Ith Mtg0 UN @oc EpC.DBpDRRapSR.I GDRRaH at paras a0 BD] Government of Canada0 Responses to the Supplementary Questions Emitted by the Hnited Nations !ommittee on Economic, Social and !ultural Rights (Eb!.12bQb!anb1) on !anada’s Third Report on the International !ovenant on Eco1nomic, Social and !ultural Rights (Eb1884b104bAdd1P)0 GNovember DRRNH at question Db.

BIb United Nations iuman Rights Committee0 !onsideration of Reports Submitted by States Parties Hnder Article 40 of the !ovenantF AddendumF !anada0 UN @oc CCPRpCpDpAdd.bB GDI September DRNaH at Ba.

BIJ Supra note BB. BIN Ibid. BIR See Aymen Nader0 _Providing Essential ServicesF Canada^s Constitutional Commit-

ment Under Section ab` GDRRbH DRFB @al LJ aCb at aIB. BbC Ibid at aID-II. BbD Reference Re !anada Assistance Plan (J!)0 rDRRDs B SCR IBI at IlI0 Na @LR GlthH BRJ.

See also Nader0 supra note BIR at alR. BbB Ibid at aIJ.


Nader^s argument0 that section ab is a %usticiable provision that could be relied upon to seek declaratory relief in the event that governments fail to provide Canadians with essential public services0 persuasive.Bba Is access to safe drinking water an _essential public service`\ Surely the answer must be yes0 by any reasonable person^s standard. As men-tioned earlier0 scientists0 health experts0 international bodies0 and gov-ernments all describe access to safe drinking water as being essential to life. Canadian laws include the provision of drinking water as an essential service that must be maintained even when unions exercise their consti-tutionally protected right to strike.Bbl First Nations individuals are Canadian citizens0 and they are being deprived of an essential public service of reasonable quality0 a violation of section ab of the !onstitution. The phrase _of reasonable quality` provides governments with discretion in terms of the method of delivering essen-tial services. It is comparable to the flexibility embodied in section D of the !harter0 in that it ensures that a claim to essential public services is not a right to a specific form of delivery or fulfillment of those services. Aut it cannot possibly be argued that requiring residents to collect water in a bucket from a lake or a standpipe0 or offering BCC outhouses to the resi-dents of Pikangikum0 is consistent with _providing essential public ser-vices of reasonable quality.`BbI

]I. International 'aw and the Vuman Right to Safe 4rinking Water

There are a number of reasons why it is important to recognize that access to safe drinking water is a legally protected human right0 rather than a commodity or a service provided on a charitable basis.Bbb Recogni-tion that access to safe drinking water is a human right willF help priori-tize and accelerate access to safe drinking water for those who lack it0 and thereby decrease inequality] ensure that all Canadian citizens are accord-ed essential public services of reasonable quality] empower citizens to take part in decision making processes Ga procedural aspect that is en-

Bba Lorne Sossin0 Joundaries of fudicial ReviewF The >aw of fusticiability in !anada GTo-

rontoF Thomson Canada0 DRRRH at DNl-RD. See also Lorne Sossin0 _Salvaging the helfare State\F The Prospects for Judicial Review of the Canada iealth and Social Transfer` GDRRNH BDFD @al LJ DlD at DNl.

Bbl The Essential Services Act (Government and !hild and Family Services)0 SM DRRb0 c Ba0 CCSM c EDlI0 s I0 Schedule.

BbI !onstitution0 supra note BB0 s abGDHGcH. Bbb The fact that water is a human right does not mean that it should be free0 any more

than health care is free. Charging a price for water that reflects its full costs is %ustifia-ble on grounds of ecology0 equity0 and efficiency.


hanced by the substantive rightH] prevent discrimination or neglect of un-derprivileged or marginalized communities] and provide a means of hold-ing governments accountable.BbJ Many experts agree that legal recognition of the human right to water is a significant step toward realization of ac-cess to safe drinking water on the ground.BbN Aroadly speaking0 international obligations are a _relevant and per-suasive` factor in !harter interpretation.BbR More specifically0 it is well es-tablished that international human rights law exerts _a critical influence on the interpretation of the scope of the rights included in the !harter.`BJC The Supreme Court has held that it is particularly important to view sec-tions J and DI through the lens of international human rights because these rights _embody the notion of respect of human dignity and integri-ty.`BJD It is increasingly apparent that Canada has an obligation under inter-national law to recognize the right to water0 despite Canada^s inconsistent position toward recognition of this right. Canada has ratified the !onven1tion on the Elimination of All Forms of Discrimination Against @omen G!EDA@HBJB and the !onvention on the Rights of the !hild G!R!H0BJa both

BbJ See generally Stephen C McCaffrey and Kate J Neville0 _Small Capacity and Aig Re-sponsibilitiesF Financial and Legal Implications of a iuman Right to hater for @evel-oping Countries` GBCCRH BD Geo Int^l Envtl L Rev bJR] Erik A Aluemel0 _The Implica-tions of Formulating a iuman Right to hater` GBCClH aD Ecology Lu RIJ.

BbN See e.g. UN iuman @evelopment Report BCCb0 Jeyond ScarcityF Power, Poverty and the Global @ater !risis GNew tork0 United Nations @evelopment Programme0 BCCbH at bC] ienri Smets0 The Right to @ater in National >egislations GParisF Agence Fran{aise de @Pveloppement0 BCCbH0 onlineF horld hater Council at Db ohttpFppwww. worldwatercouncil.orgq] Ashfaq Khalfan and Thorsten Kiefer0 The Human Right to @a1ter and SanitationF >egal Jasis, Practical Rationale and Definition GGenevaF Centre on iousing Rights and Evictions0 BCCNH0 onlineF hater Supply and Sanitation Collabora-tive Council ohttpFppwww.wsscc.orgq at b] Malcolm Langford0 _Ambition that jverleaps Itself\ A Response to Stephen Tully^s Critique of the General Comment on the Right to hater` GBCCbH BlFa Nethl uiR laa] Amy iardberger0 _hhose Job is it Anyway\ Gov-ernmental jbligations Created by the iuman Right to hater` GBCCbH lD Tex Int^l LJ Iaa.

BbR Reference Re Public Service Employee Relations Act (Alta)0 rDRNJs D SCR aDa at alN0 aN @LR GlthH DbD.

BJC Jaker v !anada (Minister of !itiUenship and Immigration)0 rDRRRs B SCR NDJ at NbD0 DJl @LR GlthH DRa rfootnote omitteds. See also Slaight !ommunications Inc v Davidson0 rDRNRs D SCR DCaN0 IR @LR GlthH lDb] R v heegstra0 rDRRCs a SCR bRJ at JlR-II0 DDJ NR D.

BJD R v Ewanchuk0 rDRRRs D SCR aaC at abI0 DbR @LR GlthH DRa. BJB !onvention for the Elimination of All Forms of Discrimination Against @omen0 D March

DRNC0 DBlR UNTS Da0 Can TS DRNB No aD r!EDA@s. BJa !onvention on the Rights of the !hild0 BC November DRNR0 DIJJ UNTS a0 Can TS DRRB

No a r!R!s.


of which recognize human rights obligations related to water. Article DlGhH of the !EDA@ provides for the right _rtso en%oy adequate living con-ditions0 particularly in relation to ... water supply.`BJl Article BlGBHGcH of the !R! sets forth signatories^ obligation to _combat disease and malnu-trition` by ensuring the provision of _adequate nutritious foods and clean drinking-water.`BJI It is an established principle of international law that all human rights are universal0 indivisible0 interrelated0 and interdepend-ent.BJb The right to water is not explicitly included in the Hniversal Declara1tion of Human Rights GHDHRHBJJ or in the International !ovenant on Eco1nomic, Social and !ultural Rights GI!ES!RH.BJN iowever0 implicit rights to water and sanitation are arguably included in section BI of the HDHR Gthe right to a standard of living adequate for the health and well-being of himself and of his familyH0 and sections DD Gthe right to an adequate standard of livingH and DB Gthe right to healthH of the I!ES!R.BJR The UN Committee on Economic0 Social and Cultural Rights published General !omment No. 15 on the right to water in BCCB0 providing guidelines for the interpretation and implementation of the right.BNC General !omment No. 15 affirms that _the human right to water is indispensable for leading a life in human dignity. It is a prerequisite for the realization of other human rights0` and states that _rtshe human right to water entitles every-one to sufficient0 safe0 acceptable0 physically accessible and affordable wa-ter for personal and domestic uses.`BND General !omment No. 15 also iden-tifies a suite of core obligations related to the right to water that are to be implemented immediatelyF

GaH To ensure access to the minimum essential amount of water0 that is sufficient and safe for personal and domestic uses to prevent dis-ease]

BJl Supra note BJB. BJI Supra note BJa. BJb horld Conference on iuman Rights0 _ienna Declaration and Programme of Action0

UNGAjR0 UN @oc ApCjNF.DIJpBa GDRRaH at art I. BJJ Hniversal Declaration of Human Rights0 GA Res BDJGIIIH0 UNGAjR0 ad Sess0 Supp No

Da0 UN @oc ApNDC0 GDRlNH JD. BJN International !ovenant on Economic, Social and !ultural Rights0 DR @ecember DRbb0

RRa UNTS a0 Can TS DRJb No lb. BJR Stephen Tully0 _A iuman Right to Access hater\ A Critique of General Comment No.

DI` GBCCIH BaFD Nethl uiR aI at ab-aN. BNC UN Committee on Economic0 Social and Cultural Rights0 General !omment No 15

(2002)F The Right to @ater (Arts 11 and 12 of the International !ovenant on Economic, Social and !ultural Rights)0 UNESCjR0 BRth Sess0 UN @oc EpC.DBpBCCBpDD rGeneral !omment No 15s.

BND Ibid at D-B.


GbH To ensure the right of access to water and water facilities and services on a non-discriminatory basis0 especially for disadvantaged or marginalized groups]

GcH To ensure physical access to water facilities or services that pro-vide sufficient0 safe and regular water] that have a sufficient number of water outlets to avoid prohibitive waiting times] and that are at a reasonable distance from the household]

GdH To ensure personal security is not threatened when having to physically access ... water]

GeH To ensure equitable distribution of all available water facilities and services]

GfH To adopt and implement a national water strategy and plan of ac-tion addressing the whole population ... ]

GgH To monitor the extent of the realization0 or the non-realization0 of the right to water]

GhH To adopt relatively low-cost targeted water programmes to pro-tect vulnerable and marginalized groups] rands

GiH To take measures to prevent0 treat and control diseases linked to water0 in particular ensuring access to adequate sanitation.BNB

An earlier General Comment published by the UN Committee on Eco-nomic0 Social and Cultural Rights confirmed that governments have a core obligation to ensure the provision of0 at the very least0 _minimum es-sential levels` of each of the rights enunciated in the International Cove-nant.BNa In BCCJ0 the UN iigh Commissioner for iuman Rights conclud-edF

rIst is now time to consider access to safe drinking water and sanita-tion as a human right0 defined as the right to equal and non-discriminatory access to a sufficient amount of safe drinking water for personal and domestic usesxdrinking0 personal sanitation0 washing of clothes0 food preparation and personal and household hygienexto sustain life and health.BNl

In BCDC0 the UN General Assembly passed a resolution recognizing the right to water0BNI with DBl nations voting in favour0 none against0 and lB nations abstaining for various reasons.BNb Canada was among the nations

BNB Ibid at DB-Da. BNa General !omment No jF The Nature of States Parties Obligations (Art 2, Para 1 of the

!ovenantH0 UNESCjR0 Ith Sess0 Annex III0 UN @oc EpDRRDpBa and EpC.DBpDRRCpN GDRRCH Na at Nb.

BNl Access to Safe Drinking @ater and Sanitation0 supra note DbC at Bb. BNI The Human Right to @ater and Sanitation0 supra note DN. BNb See supra note DR.


that abstained.BNJ Later in BCDC0 the UN iuman Rights Council affirmed0 in a draft resolution0 that _the human right to safe drinking water and sanitation is derived from the right to an adequate standard of living and is inextricably related to the right to the highest attainable standard of physical and mental health0 as well as the right to life and human digni-ty.`BNN The resolution on the right to water has already had a demonstra-ble effect. In January BCDD0 the Aotswana Court of Appeal relied on the resolution in ruling that the constitutional rights of the Aushmen of the Kalahari were being violated by the government^s refusal to allow them to access a water source within a wildlife reserve where they resided.BNR Canada has voted against or abstained from recognizing the right to water on several occasions in recent years.BRC At the UN Commission on iuman Rights meeting in BCCB0 Canada was the only country to vote against a resolution recognizing the right to water and sanitation.BRD Can-ada also played a key role in blocking a motion by Germany and Spain to officially recognize water as a human right at the UN iuman Rights Council in March BCCN.BRB According to experts0 _Canada is internationally viewed as the primary State opposed to the right to water and sanita-tion.`BRa At the national level0 the right to water is also gaining progressively broader legal recognition.BRl The UN iigh Commissioner for iuman

BNJ Iain iunter0 _Canada^s Cowardly note on Right to hater`0 The n_ictoriao Times !olo1nist GD August BCDCH onlineF Times Colonist ohttpFppwww.timescolonist.comq.

BNN UNiCR0 Human Rights and Access to Safe Drinking @ater and SanitationF Draft Reso1lution0 DIth Sess0 UN @oc ApiRCpDIpL.Dl GBCDCH.

BNR Mosetlhanyane v Attorney General GBJ January BCDDH0 Aotswana Court of Appeal Civil Appeal No CACLA-CJl-DC0 onlineF Environmental Law Alliance horldwide ohttpFpp www.elaw.orgq.

BRC Collins0 supra note DJ at aID0 aba. BRD Mike Alanchfield0 _jur vPainful^ note Against Clean hater`0 The Ottawa !itiUen GBD

September BCCaH onlineF The jttawa Citizen ohttpFppwww.ottawacitizen.comq. BRB See Mike @e Souza0 _UN Meeting Re%ects Recognition of hater as Aasic iuman Right`0

The Ottawa !itiUen GBb March BCCNH onlineF The jttawa Citizen ohttpFpp www.ottawacitizen.comq] Linda @iebel0 _Canada Foils UN hater Plan] Advocates @evastated at Failure of Resolution to recognize hater as a Aasic iuman Right` The rTorontos Star GB April BCCNH onlineF The Star ohttpFppwww.thestar.comq.

BRa Ashfaq Khalfan and Thorsten Kiefer0 @hy !anada must Recognise the Human Right to @ater and Sanitation GGenevaF Centre on iousing Rights and Evictions0 BCCNH at a. See also Susan iowatt0 _A National @isgraceF Canada^s Shameful Position on the Right to hater Needs to Change`0 !anadian Perspectives Gspring BCCJH b0 onlineF The Council of Canadians ohttpFppwww.canadians.orgq.

BRl Malcolm Langford et al0 >egal Resources for the Right to @aterF International and Na1tional Standards GGenevaF Centre on iousing Rights and Evictions0 BCClH0 onlineF horld hater Council ohttpFppwww.worldwatercouncil.orgq at lI.


Rights observed in BCCJ that _an increasing number of States are recog-nizing safe drinking water as a human right in their constitutions0 as well as national legislation0 while national courts are enforcing it as a %usticia-ble right.`BRI Constitutional recognition of the right to water is gaining traction around the world. The experiences of other nations illustrate two distinct approaches to constitutional protection of the right to waterF ex-plicit incorporation of the right to water0 and implicit incorporation of the right to water into national constitutions. In South Africa0 the right to wa-ter is explicitly articulated in section BJ of the nation^s constitution and is enforceable through the courtsF

BJGDH Everyone has the right to have access to ...

GbH sufficient food and water ...

GBH The state must take reasonable legislative and other measures0 within its available resources0 to achieve the progressive realisation of each of these rights.BRb

In South Africa0 constitutional recognition of the right to water has been translated into legislation0 policy0 and a ma%or investment in infrastruc-ture] this is credited with spurring the extension of potable water to ten million South Africans in ten years.BRJ Nelson Mandela describes the ex-tension of clean drinking water to millions of South Africans Gpredomi-nantly black0 and living in povertyH since the mid DRRCs as _amongst the most important achievements of democracy in our country.`BRN At least sixteen other nations have constitutional provisions specifically requiring the protection andpor provision of clean water0 and such provisions are in-creasingly common in new constitutions0 as demonstrated by Kenya and the @ominican Republic in BCDC.BRR There are also ninety nations whose

BRI Access to Safe Drinking @ater and Sanitation0 supra note DbC at Bb. BRb !onstitution of the Republic of South Africa0 DRRb0 No DCN of DRRb0 s BJ r!onstitution of

South Africas. BRJ Smets0 supra note BbN at RB. BRN Nelson Mandela. _No hater0 No Future` GAddress delivered at the horld Summit on

Sustainable @evelopment0 Johannesburg0 South Africa0 BN August BCCBH0 onlineF South African Government Information ohttpFppwww.info.gov.zaq.

BRR !onstitucipn de 2008 GAoliviaH0 BCCN0 art DbGIH] !onstitucipn Polqtica de !olombia 1881 con reformas hasta BCCR0 Constitutional Gazette No DDb0 BC July DRRD0 art abb] !onsti1tution of the Democratic Republic of !ongo0 BCCI0 art lN] !onstitucipn de la Reprblica Dominicana0 BCDC0 arts DI0 bD] !onstitucipn Polqtica de la Reprblica del Ecuador0 BCCN0 art DB] !onstitution of the Federal Democratic Republic of Ethiopia0 DRRl0 art RCGDH] !onstitution of the Republic of Gambia0 DRRJ0 art BDbGlH] !onstitution of henya0 BCDC0 art laGDHGdH] !onstitution of the Republic of Maldives0 BCCN0 art BaGaH] !onstitucipn Polq1tica de la Reprblica de Panams0 DRJB Gwith reforms of DRJN0 DRNa0 DRRl0 and BCClH0 jf-ficial Gazette No BIDJb0 BCCl0 arts DDC0 DDN] !onstitution of the hingdom of SwaUiland Act0 BCCI0 arts BDI-Bb] Federal !onstitution of the Swiss !onfederation0 DRRR0 art Jb]


constitutions now explicitly recognize the right to live in a healthy envi-ronment.aCC The right to clean water is regarded as an integral element of this broader right.aCD In nations where there is no explicit constitutional right to waterxincluding Argentina0aCB Aelgium0aCa Arazil0aCl Costa Rica0aCI Colombia0aCb

!onstitution of the Republic of Hganda0 DRRI0 National jb%ectives |InGbH0 ||I] !on1stitucipn Polqtica de la Reprblica Oriental del Hruguay de 186P0 DRbJ Gwith reforms of DRNR0 DRRl0 DRRb0 BCClH0 art lJ] !onstitucipn de la Reprblica Jolivariana de _eneUuela0 DRRR0 arts DBJ0 aCl] !onstitution of tambia Act0 Act No D of DRRD0 Acts No DJ-DN of DRRb0 art DDBGdH. See also !onstitution of South Africa0 supra note BRb0 s BJ.

aCC @avid R Aoyd0 The Environmental Rights RevolutionF A Global Study of !onstitutions, Human Rights, and the Environment GnancouverF University of Aritish Columbia PressH rforthcoming in BCDDs.

aCD Ibid. aCB Courts have ordered governments to provide potable water0 construct drinking water

treatment facilities0 treat individuals harmed by contaminated drinking water0 and car-ry out environmental remediation. See e.g. Romina Picolotti0 _Argentine Case StudyF Using iuman Rights as an Enforcement Tool to Ensure the Rights to Safe @rinking hater` GPaper delivered at the Jth International Conference on Environmental Com-pliance and Enforcement0 April BCCIH0 onlineF International Network for Environmental Compliance and Enforcement ohttpFppwww.inece.orgq.

aCa Constitutional Court GCour d^ArbitrageH0 Aelgium0 D April DRRN0 Justel No F-DRRNClCD-N0 @ocket No abpRN0 onlineF Service Public FPdPral Justice ohttpFppwww.%ust.fgov.beq.

aCl Litigation based on the constitutional right to a healthy environment has produced a policy that all Arazilians have the right to a core minimum of environmental services including water and sanitation. See Ingo Sarlet m Tiago Fenstersifer0 _Chapter JF Ara-zil` in Louis J KotzP m Alexander R Paterson0 eds0 The Role of the fudiciary in Envi1ronmental Governance GThe NetherlandsF Kluwer Law International0 BCCRH BlR at BbC-bD.

aCI Constitutional Court GSala ConstitucionalH0 Costa Rica0 No CBDIl from CRFlR hrs0 Db February BCCJ.

aCb There were nearly N0CCC constitutional cases brought in Colombia between DRRD and BCCN related to the provision of potable drinking water and basic sanitation G@efensor}a del Pueblo0 Colombia0 Diagnpstico del !umplimiento del Derecho Humano al Agua en !olombia GAogotaF @efensor}a del Pueblo de Colombia0 BCCRH0 onlineF @efensor}a del Pueblo0 Colombia at BRa-Rl ohttpFppwww.defensoria.org.coqH. For specific examples0 see RodrqgueU0 Ga November DRRBH0 Colombia T-DNlN0 Judgment No T-IJNpRB GConstitution-al CourtH0 onlineF Constitutional Court of Colombia ohttpFppwww.corteconstitucional.gov. coq] Monroy0 GBa March DRRlH0 Colombia T-BaDIR0 Judgment No T-DlCpRl GConstitu-tional CourtH0 onlineF Constitutional Court of Colombia ohttpFppwww.corteconstitucional. gov.coq] Parada0 GDB May DRRIH0 Colombia T-IlRRl0 Judgment No T-BCJpRI GConstitu-tional CourtH0 onlineF Constitutional Court of Colombia ohttpFppwww.corteconstitucional. gov.coq] ungel v Alcade Municipal de _ersalles\_alle del !auca0 GBB May BCCaH0 Co-lombia T-bRJbbJ0 Judgment No lDCpCa GConstitutional CourtH0 onlineF Constitu-tional Court of Colombia ohttpFppwww.corteconstitucional.gov.coq.


Indonesia0aCJ India0aCN Israel0aCR and PakistanaDCxcourts have held that the right to water is an implicit0 essential0 and enforceable constitutional right0 usually derived from the right to life. These courts have generally based their decisions on the fact that access to safe drinking water is a fundamental prerequisite to the en%oyment of other human rights. As ob-served in a recent Harvard >aw Review note0 _raslthough %usticiability alone is not a panacea0 it is a step in the direction of ensuring access to sufficient water.àDD Given that Canada^s !onstitution is silent on the mat-ter of the right to water and sanitation0 but includes the right to life0 the %urisprudence from these countries is directly relevant.

]II. Qonstitutional Remedies

_rAs right ... is only as meaningful as the remedy provided for its breach.àDB There is a range of potential remedies available for a breach of the !harter Gsections J and DIH or the !onstitution Gsection abH.aDa For !harter violations0 section BlGDH of the !harter authorizes remedies that are _appropriate and %ust in the circumstances0` and the Supreme Court emphasizes that that courts must _issue effective0 responsive remedies that guarantee full and meaningful protection of !harter rights and free-doms.àDl As Professor Roach observes in the context of socio-economic rights0 such as the right to water0 it is a challenge _to strike the right bal-

aCJ Munarman0 GDa July BCCIH0 Indonesia CIN-CIR-CbC-CbapPUU-IIpBCCl GConstitution-

al CourtH0 onlineF Mahkamah Konstitusi Republik Indonesia ohttpFppwww. mahkamahkonstitusi.go.idq.

aCN AP Pollution !ontrol Joard v M_ Nayudu0 AIR DRRR SC NDB GIndiaH. See also nrinda Narain0 _hater as a Fundamental RightF A Perspective from India` GBCDCH al nT L Rev RDJ.

aCR Tomer zarchin0 _Court Rules hater a Aasic iuman Right`0 HaaretU Gb June BCDDH onlineF iaaretz ohttpFppwww.haaretz.comq.

aDC The Supreme Court of Pakistan held that _the right to have water free from pollution and contamination is a right to life itself` and that _rtshe right to have unpolluted water is the right of every person wherever he lives` GGeneral Secretary, @est Pakistan Salt Miners >abour Hnion (!JA) hhewra, fhelum v The Director, Industries and Mineral Development, Punjab, >ahore0 DRRl SCMR BCbD at BCJC GPakistanHH.

aDD _hhat Price for the Priceless\F Implementing the Justiciability of the Right to hater`0 Note0 GBCCJH DBCF l iarv L Rev DCbJ at DCbR r_hhat Price for the Priceless\`s. See also @avid Marcus0 _The Normative @evelopment of Socioeconomic Rights Through Supra-national Ad%udication` GBCCbH lBFD Stan J Int^l L Ia.

aDB R v 8P4648 Ontario Inc0 BCCD SCC ND at para BC0 rBCCDs a SCR IJI. aDa See generally Kent Roach0 !onstitutional Remedies in !anada GAurora0 jNF Thomson

Reuters Canada0 BCDCH rRoach0 !onstitutional Remediess. aDl Doucet1Joudreau v Nova Scotia (Minister of Education)0 BCCa SCC bB at para NJ0 rBCCas

a SCR a rDoucet1Joudreaus.


ance between individual and systemic relief0 remedies that attempt to re-pair the harms of past violations and remedies that aim to achieve com-pliance with the constitution in the future.àDI niolations of the right to life0 liberty and security of the person0 and of the right to equality would most likely result in a declaration that the fed-eral government^s actions are contrary to the !harter.aDb A declaration would not generally specify positive actions to be taken by a government0 but would allow the government to exercise its discretion regarding the means employed to comply with the law. The Supreme Court has repeat-edly articulated its preference for declarations rather than in%unctive re-lief _because there are myriad options available to the government that may rectify the unconstitutionality of the present system.àDJ @eclarations are also _more flexible0 require less supervision0 and are more deferential to the other branches of government.àDN jn the other hand0 declarations may also be vague and inadequate for ensuring compliance.aDR Aecause section BlGDH of the !harter gives the courts broad remedial powers0 more ambitious and creative remedies are also possible.aBC The Supreme Court has confirmed that courts have the authority to supervise compliance with a mandatory remedial order Gthat is0 a mandatory in-%unctionH under section BlGDH.aBD For example0 in Doucet1Joudreau0 a %udge ordered the Nova Scotia government to build French language schools in five districts and to develop curricula for these schools by specified dates0 in order to comply with the minority language educational rights in sec-tion Ba of the !harter.aBB The court subsequently held periodic hearings to review the government^s progress on construction and curriculum devel-

aDI Kent Roach0 _The Challenges of Crafting Remedies for niolations of Socio-Economic

Rights` in Malcolm Langford0 ed0 Social Rights furisprudenceF Emerging Trends in In1ternational and !omparative >aw GCambridgeF Cambridge University Press0 BCCNH lb at IN rRoach0 _The Challenges of Crafting Remedies`s.

aDb See ibid. aDJ Eldridge0 supra note DRI at bRD. See also Mahe v Alberta, rDRRCs D SCR alB0 bN @LR

GlthH bR. aDN >ittle Sisters Jook and Art Emporium v !anada (Minister of fustice)0 BCCC SCC bR at

para BIN0 rBCCCs B SCR DDBC r>ittle Sisterss. aDR See e.g. Lorna McGregor0 _Are @eclaratory jrders Appropriate for Continuing iuman

Rights niolations\ The Case of hhadr v !anada` GBCDCH DCFa iRLR lNJ] Roach0 _The Challenges of Crafting Remedies`0 supra note aDI] >ittle Sisters0 supra note aDN at para BIN.

aBC See generally Roach0 !onstitutional Remedies0 supra note aDa. aBD Doucet1Joudreau0 supra note aDl. aBB Ibid.


opment.aBa A similar order0 requiring the federal government to build ade-quate drinking water and wastewater treatment infrastructure on a spe-cific reserve by a specified date0 would appear to be an equally appropri-ate and %ust remedy in the context of a !harter violation related to non-provision of safe drinking water on the specific reserve. Professors Roach and Audlender argue that mandatory relief and supervisory %urisdiction are more likely to be necessary in cases _where governments are incompe-tent or intransigent with respect to the implementation of rights.`aBl The federal government^s longstanding and ongoing failure to provide access to safe drinking water in specific First Nations communities reflects both governmental incompetence and intransigence. In >ittle Sisters Jook and Art Emporium v. !anada (Minister of fustice)0 Justice Iacobucci held that declarations can be inadequate0 and place an unfair burden on litigants in cases of _grave systemic problems` where the government has proven it-self _unworthy of trust`.aBI Again0 these comments are germane to the plight of First Nations communities that lack safe drinking water0 sug-gesting that mandatory remedial orders would be the preferred remedy. Finally0 based on the recent Supreme Court decision in _ancouver (!ity) v. @ard0 there may also be damages owing as a result of !harter vi-olations flowing from the federal government^s long-term failure to pro-vide adequate drinking water to certain First Nations communities.aBb The availability and appropriateness of damages will turn on the specific facts of an individual case. Remedies available for a violation of section ab of the !onstitution in-clude declarations Ganalogous to those described above for !harter viola-tionsH0 as well as remedies pursuant to section IB of the !onstitution.aBJ The Supreme Court has held that section IB allows courts to strike down legislation0 sever portions of legislation0 or read provisions into under-inclusive legislation.aBN From a practical perspective0 in order to remedy the violation of the constitutional rights of First Nations persons living on reserves without access to safe drinking water0 the federal government needs toF immedi-

aBa See @ebra M McAllister0 _Doucet1Joudreau and the @evelopment of Effective Section

BlGDH RemediesF Confrontation or Cooperation\`0 Case Comment GBCCl-BCCIH DbFD NJCL DIa.

aBl Kent Roach and Geoff Audlender0 _Mandatory Relief and Supervisory JurisdictionF hhen is it Appropriate0 Just and Equitable\` GBCCIH DBBFB SALJ aBI at aBJ.

aBI Supra note aDN at paras BIJ0 BbI. aBb _ancouver (!ity) v @ard0 BCDC SCC BJ0 rBCDCs B SCR BN. aBJ Nader0 supra note BIR at aID. aBN Schachter0 supra note DIC.


ately implement an effective and equitable interim system to provide safe water to reserve residents] accelerate the investment of adequate re-sources to ensure that drinking water infrastructure on reserves reaches a reasonable quality0 comparable to that available in comparable non-reserve communities] work with First Nations to design a mutually ac-ceptable regulatory framework governing water and wastewater on re-serves] and take steps with First Nations and0 where required0 provincial and territorial governments0 to improve the protection of drinking water sources for reserves and restore water sources that have been polluted or otherwise degraded. Responsive and effective %udicial remedies should aim to increase the likelihood that these steps will be taken in a timely fashion0 without dictating the specific implementation details. As in the nictoria homelessness case0 achieving compliance with the !harter may require investing public money andpor taking legislative action.aBR

Qonclusion

All Canadians have the right to safe drinking water0 an essential ser-vice that is vital to life0 health0 and human dignity. It appears likely0 based on the analysis presented in this article0 that the constitutional rights of the residents of Pikangikum in jntario0 Kitcisakik in uuebec0 St. Theresa Point0 hasagamack0 Red Sucker Lake and Garden iill in Mani-toba0 and Little Auffalo in Alberta are being violated by the federal gov-ernment^s failure to provide safe water. The consequences include serious physical and psychological harm0 ranging from waterborne disease to death0 and ongoing discrimination vis-d-vis the broader Canadian popula-tion for whom safe and abundant drinking water is often taken for grant-ed. This constitutes an ongoing violation of sections J and DI of the !ana1dian !harter of Rights and Freedoms0 guaranteeing the right to life0 liber-ty and security of the person0 and the right to equality0 respectively0 and section abGDHGcH of the !onstitution Act, 18920 committing governments to providing essential public services of reasonable quality to all Canadians. These constitutional transgressions stem from the federal govern-ment^s failure toF provide adequate resources for drinking water infra-structure] prioritize the needs of communities in the most dire and dan-gerous circumstances] and enact and enforce a regulatory framework to ensure safe drinking water for First Nations communities. These failures have persisted for decades despite a series of pledges and promises. Thir-ty-four years have passed since the federal government committed to en-suring that drinking water infrastructure for First Nations would meet commonly accepted health and safety standards0 and would be similar to

aBR Adams0 supra note DII at para Rb.


infrastructure available in comparable communities. Twenty-nine years have passed since that commitment was entrenched in Canada^s !onstitu1tion. Patience may no longer be a palatable option for the residents of Pikangikum0 Kitcisakik0 St. Theresa Point0 hasagamack0 Red Sucker Lake0 Garden iill0 Little Auffalo0 and other reserves facing similar prob-lems. Turning to the courts to resolve complex issues such as the provision of safe drinking water is not an optimal approach0 but it is an approach that appears necessary in the current circumstances. Under the current system0 the federal government evades responsibility and cannot be held accountable0 except possibly through litigation. Ensuring that the right to safe drinking water is a %usticiable issue enables individuals to seek rem-edies and to hold their governments accountable for providing all Canadi-ans with the essential service of access to drinking water0 and for thus ful-filling this fundamental right.aaC In !haoulli, Justice @eschamps said of public health care waiting timesF _it seems that governments have lost sight of the urgency of taking concrete action. The courts are therefore the last line of defence for citizens.`aaD Canada^s !onstitution is often described as a living tree0 which the Supreme Court of Canada affirms _must be capable of growth to meet the future.`aaB tet the Supreme Court has been heavily criticized for its timid approach to recognizing governments^ positive obligations under sections J and DI of the !harter with respect to fulfilling social and economic rights.aaa In the words of Justice ArbourF

hhichever avenue Canada takes to ensure full protection of econom-ic and social rights0 whether through a constitutional amendment0 a more progressive interpretation of the current !harter text0 a modi-fication of other Gfederal and provincialH human rights instruments0 or otherwise0 this is the next step which must be taken if Canada wants to ensure that the most disadvantaged members of society will truly benefit from the immense promise of the !harter. As one author put it five years ago0 on the BCth anniversary of the !har1

aaC See generally _hhat Price for the Priceless\`0 supra note aDD. aaD Supra note DlC at para Rb. aaB Reference Re Prov Electoral Joundaries (Sask)0 rDRRDs B SCR DIN at DNC0 ND @LR GlthH

Db Gciting Edwards v Attorney1General for !anada0 rDRaCs AC DBl at DabH. aaa See generally Martha Jackman m Aruce Porter0 _Socio-Economic Rights Under the Ca-

nadian Charter` in Langford0 supra note aDI at BCR] Sheila McIntyre and Sanda Rodg-ers0 eds0 Diminishing ReturnsF Inequality and the !anadian !harter of Rights and Freedoms GMarkham0 jntarioF LexisNexis Canada0 BCCbH.


terxand we believe it more acutely nowxsocial and economic rights are the _next frontier` of !harter rights protection.aal

Recognizing the right to water as implicit in the Canadian !onstitu1tion would provide accountability0 offer remedies0 and ensure non-discrimination. If Canada^s !onstitution0 including the !harter of Rights and Freedoms0 cannot be extended to provide relief to individuals de-prived of their human right to water0 a deprivation that causes adverse health effects0 violates human dignity0 and flouts the principle of envi-ronmental %ustice0 then the !onstitution is not a living tree but is merely dead wood. As the Standing Senate Committee on Aboriginal Peoples con-cludedF _First Nations people in this country have a right to expect0 as do all Canadians0 that their drinking water is safe.`aaI

aal Louise Arbour and Fannie Lafontaine0 _Aeyond Self-CongratulationF The !harter at BI

in an International Perspective` GBCCJH lIFB jsgoode iall LJ BaR at BJC. aaI Safe Drinking @ater0 supra note II at R.

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