Rights and Reconciliation

This summer, four Alberta First Nations decided to pursue judicial consideration of their right to water. Over the past decade, the issue of unsafe drinking water in First Nations communities across Canada has garnered increasing public interest and scrutiny. In spite of years of debate, reports, analysis, and some action, very little has been accomplished in narrowing the divide between the deplorable state of First Nations water and that of other Canadians.

In the Province of Alberta, the number of drinking water advisories issued by Health Canada and First Nations has not decreased in a significant way over the past decade, as shown in Figure 1.

The lawsuit was filed in federal court by the plaintiffs Sucker Creek First Nation, Ermineskin Cree Nation, Kainai Nation, and Tsuu T’ina Nation. All four First Nations are located in the lands and territories of historic Treaties 6, 7, and 8.

Indigenous peoples in these regions entered into Treaty with the Crown in the late 1800s, setting the stage for non-Indigenous settlement of Canada. This history, and the unique rights that come along with it, are part of the reason that aboriginal and treaty rights are protected under the Canadian Constitution Act. First Nations also face a legislative quagmire of rights, responsibilities, and liabilities related to water under other Canadian laws, including the recent enactment of the federal Safe Drinking Water for First Nations Act. In the lawsuit, the four First Nations argue this new act is merely a tool to absolve the Crown of liabilities as opposed to making substantive progress.

There have been a lot of Canadian court decisions on aboriginal title, aboriginal rights, and treaty rights. However, much of the jurisprudence has avoided explicitly ruling on an aboriginal or treaty right to water. The lawsuit filed by the four Alberta First Nations highlights the question of the Crown’s obligations to ensure safe drinking water for First Nations reserves through appropriate resources and investments.

Only about one-third of the Alberta First Nations population is served by a public water system. The rest are served by private wells or cisterns, with major issues of maintenance and monitoring. The impacts of sub-standard wastewater systems on reserves are also of importance. Treated water is a service that can only be accessed by a fraction of the First Nations population. Even where treated water is available, a 2011 National Assessment of First Nations water infrastructure found significant numbers of facilities to be high to medium risk.

This fact informs one impetus behind the lawsuit, as described by Clayton Leonard, general counsel for the four First Nations plaintiffs: that most First Nations have suffered and “continue to face serious risks to human health” vis-à-vis the water they consume and are exposed to. This is a direct result of a lack of infrastructure and investment in safe drinking water on reserves.

David Boyd, author of  The Right to a Healthy Environment, commented, “All Canadians have the right to safe drinking water, yet this fundamental human right has been systematically violated for decades on Aboriginal reserves. Promises to solve this problem have been made and broken, made and broken. This lawsuit may force the federal government to finally fulfill its constitutional obligation to ensure safe drinking water for the Ermineskin Cree Nation, Tsuu T’ina Nation, Sucker Creek First Nation, and Blood Tribe. It’s about time!”

A little more than a month after the lawsuit was filed, the Supreme Court of Canada issued its groundbreaking decisions of Tsilhqot’in Nation v. British Columbia on aboriginal title and Grassy Narrows First Nation v. Ontario (Natural Resources) on treaties.  The Supreme Court described a new basis for dialogue and reconciliation between First Nations and Canadians.

Tsilhqot’in provided the first ever grant of aboriginal title to a First Nation. The Supreme Court also held that aboriginal rights are a limit on both federal and provincial jurisdiction. This may have implications for laws and policies relating to water, in particular water located on or around aboriginal title lands. The decision emphasized our need to collectively shift from a paradigm of assimilation to a dialogue focused 
on reconciliation. While the Court explicitly chose not to address the issue of 
water, it is difficult to imagine a grant of aboriginal title functioning 
without water.

The Grassy Narrows decision confirmed that a province has all the constitutional obligations of the Crown, is bound by and must respect treaty and fulfill treaty promises in accordance with Indigenous interests in treaty lands. First Nations treaty rights, and the reserves that were set aside further to treaties, require healthy safe waters and a healthy environment in order to function properly.

The plaintiffs in the lawsuit argue that the remedies to address the crises of unsafe drinking water on reserves lie in processes of consultation, enhancement of First Nations powers, and the achievement of minimum acceptable standards of water for human use, amongst others.

The directive of reconciliation issued by the Supreme Court of Canada in Tsilhqot’in and Grassy Narrows will be important to the achievement of the proposed remedies and the future of the lawsuit launched by the four Alberta First Nations. More generally, the Supreme Court decisions—and the path of reconciliation they describe—is vital to securing healthy waters for all.  WC

Danika Billie Littlechild is the VP of the Canadian Commission for UNESCO. She is a member of the Neyaskweyahk Ermineskin Cree Nation and acts as consulting legal counsel for the International Indian Treaty Council.