People living in some First Nations communities have access to less clean water than the United Nations recommends be made available in disaster zones. So why aren't they cheering the Safe Drinking Water for First Nations Act passed by the House of Commons earlier this month?
A clause in the act provides that the Canadian government has the right to weaken or "derogate" aboriginal and treaty rights if necessary to ensure the safety of drinking water on First Nation lands.
This clause is meaningless as no government has the power to weaken constitutionally protected aboriginal and treaty rights. These rights can only be interfered with in very specific circumstances and after consultation. So why did they include the clause? Some would say the sole purpose is to stir up vitriol and divert attention from other problematic aspects of the act.
Others fear the government may start to assert broader powers than currently acknowledged and they may attempt to use more expansive derogation clauses more often in the future.
The drinking water act was first introduced in the Senate and, as only the House can introduce bills involving money, this bill cannot impose any funding obligations on the federal government.
The main purpose of the act is to give the federal government power to impose regulations on First Nation communities. This approach is directly contrary to the approaches recommended by expert panels.
As one report stated, "regulation alone will not be effective in ensuring safe drinking water... Regulation without the investment needed to build capacity may even put drinking water safety at risk by diverting badly needed resources into regulatory frameworks and compliance costs."
First Nations are rightly suspicious of an act that imposes significant financial obligations on them without solving the problem of financing these expenditures.
The regulatory powers authorized by the new act are vast and include the right of the federal government to authorize private entities to take over water management.
Some fear delegation of such powers may open a path to privatization of water resources.
Following the contaminated water crisis in Walkerton, Ont., a decade ago, which saw seven deaths and more than 2,300 people suffering serious illness, governments were hit with a slew of lawsuits.
This new act avoids such claims against the federal government. Not only does it contain a full immunity clause against the federal government for any lawsuits for injury caused by poor-quality water, it also says the government cannot make any payments to satisfy any such claims.
Do First Nations enjoy this double-barrelled immunity? The act is strangely silent on this point.
Curiously, the new act contains weak aspirational or purpose clauses. Water-quality legislation in Ontario opens with a statement that recognizes "that the People of Ontario are entitled to expect their drinking water to be safe ...[and promises to] provide for the protection of human health and the prevention of drinking water health hazards through the control and regulation of drinking water systems and drinking water testing."
The Canada Water Act states it "provides the framework for co-operation with the provinces and territories in the conservation, development and use of Canada's water resources."
The new act does not use the language of entitlement and, while it commits to working with First Nations to develop regulatory proposals, its failure to do so in the development of this act belies the strength of that commitment.
The new legislation provides a framework for water regulations to be enacted -- filling a glaring gap, since such regulations have long existed off reserve.
This goal is a laudable one, but the way the federal government has gone about it in this bill not only lacks substance and principle, but is doomed to failure without First Nations involvement, infrastructure support and access to capital. First Nations organizations are right to be concerned.
Karen Busby is a professor of law and the director of the Centre for Human Rights Research at the University of Manitoba.