Safe, running water should be a right

Imagine a town without running water or indoor toilets. People collect water from nearby lakes in buckets and defecate in latrine pails or outhouses. Do you immediately think of Africa or Asia? Or do you think of life in the 19th century, before these modern services were widely available?

It is unlikely that you thought of Canada, yet a recent series of reports in Winnipeg Free Press revealed that more than 15,000 First Nations people are living on reserves in homes without running water. These are towns that are home to hundreds or thousands of people.

The lack of tap water and flush toilets makes proper hygiene -- such as frequent hand-washing -- almost impossible, resulting in higher risks of influenza, shigellosis, skin infections, gastrointestinal disease, and whooping cough (pertussis). For example, Manitoba First Nations without running water were the hardest hit communities in Canada during last year's H1N1 (swine flu) outbreak.

The lack of tap water and toilets also strikes a blow to human dignity, contributing to high rates of suicide.

Since 1977, the federal government has promised First Nations that it would provide reserves with water and sanitation services of comparable quality to other remote rural communities. Drinking water quality and wastewater treatment in many First Nation communities across Canada has improved, yet 49 First Nations communities still have high-risk drinking water systems and 117 First Nations face ongoing boil water advisories (out of roughly 600 First Nations in Canada).

Thousands of homes lack running water, including the majority of residences at Pikangikum in Ontario, Kitcisakik in Quebec, St. Theresa Point, Wasagamack, Red Sucker Lake, and Garden Hill in Manitoba, and Little Buffalo in Alberta. In contrast, comparable remote non-reserve communities--Red Lake (Ontario), Aumond

(Quebec), Berwyn (Alberta), and Flin Flon (Manitoba)--enjoy safe drinking water and wastewater treatment systems with quality assured by provincial laws.

There are three main reasons why this deplorable situation persists. First, as the Expert Panel on Safe Drinking Water for First Nations concluded in 2006, the federal government has never provided adequate funding to build and operate the necessary infrastructure for safe water on reserves.

Second, the federal government has failed to create a legal framework to ensure the safety of water on reserves. Reserves fall into a regulatory black hole where provincial drinking water safety laws do not apply. Federal laws mandate safe water for federal employees and passengers on planes and trains, but overlook reserves. Bill S-11, the proposed Safe Drinking Water for First Nations Act introduced in the Senate in 2010, is not the answer, as it ignores the recommendations of the government's own Expert Panel and has been widely criticized.

Third, First Nations communities that lack running water have never been designated as high priorities for drinking water upgrades by Indian and Northern Affairs Canada. The prioritization process arbitrarily focused on the quality of water treatment systems and ignored whether treated water actually gets delivered to people's homes.

The fact that the political process has floundered for more than three decades raises an intriguing legal question: Do Canadians, including First Nations, have an enforceable right to enjoy basic water and sanitation services?

The potential impact of recognizing that citizens have a legal right to water is demonstrated by South Africa, where the right was incorporated in the post-apartheid constitution in 1996. Since then, access to clean water has been extended to more than ten million South Africans, the majority of whom reside in poor black neighbourhoods. Nelson Mandela describes the extension of clean drinking water to millions of South Africans as "amongst the most important achievements of democracy in our country."

Canada's Constitution does not mention the right to water. However, a compelling legal argument can be made that the government's failure to provide First Nations with basic water and sanitation services violates the right to life, liberty, and security of the person and the right to equality in the Charter of Rights and Freedoms, as well as the government's constitutional commitment to provide "essential public services of reasonable quality to all Canadians."

While litigation should be a last resort, people without running water can be forgiven for running out of patience after decades of broken promises.

For First Nations to continue enduring third world living conditions in one of the wealthiest nations on Earth is intolerable. Every Canadian has the right to water. It is time for Canada to work with First Nations on an urgent basis to address the current crisis, make the necessary infrastructure and training investments, and pass a law guaranteeing the safety of drinking water on reserves.

David R. Boyd is an environmental lawyer,

professor, and author of Dodging the Toxic Bullet: How to Protect Yourself from Everyday Environmental Health Hazards. Merrell-Ann Phare is executive director of the Center for Indigenous Environmental Resources and author of Denying the Source: The Crisis of First Nations Water Rights.

Republished from the Winnipeg Free Press print edition December 13, 2010 A12