Blog of law articles

(BY HUGO)

As mentioned in a previous post, the Forum for Leadership on Water (FLOW) has released a report (available online here) suggesting potential avenues for reform regarding safe drinking water management in Canada.

One of the main concerns in the Report pertains to First Nation access to safe drinking water. The Report notably mentions the following:

- «Unequal access to safe drinking water in Canada is particularly evident in Canada’s First Nations communities and in rural and remote communities. As of April 30th, 2010, there were 116 First Nations communities across Canada under a Drinking Water Advisory with a mean average duration of 343 days.» (p.3)

- «Kashechewan is a Cree First Nation community located near James Bay in Northern Ontario. Residents had been living under a boil water advisory for two years when on October 14th, 2005, elevated levels of E. Coli were reported in the local school’s drinking water supply. Adding excessive chlorine to the water to purify it just compounded the problems, resulting in high cases of impetigo among reserve children for over a year. Eleven days later, a state of emergency was declared and 946 people from a community of 1200 were evacuated to surrounding communities.» (p.5)

How did this situation come to be from a historical perspective? It is possible that European colonisation relying on agricultural settlement destroyed an essentially nomadic civilisation, and that fixing First Nations within the boundaries of small reserves imposed the need for "modern" sanitation on an aboriginal culture maladapted to such requirements.

Kenichi MATSUI, Native People and Water Rights: Irrigation, Dams and the Law in Western Canada (Montréal & Kingston, McGill-Queen's University Press, 2009), lends some credibility to these speculations by showing that the colonisers sought to transform a «nomadic and uncivilised people» into a «pastoral and civilised people» (p.35-36).

Whatever the root cause for the dismal state of drinking water supply in today's First Nations, the FLOW Report mentions 5 options for possible new regulatory frameworks that would solve the problem (see Report, p.12).

In this context, the Federal government appears to have made its choice. On 26 May 2010, a first reading of the Bill S-11 respecting the safety of drinking water on First Nation lands was done before the Canadian Senate.

The Bill is essentially a framework structure granting power to the federal government to make regulations applicable on first nation lands governing the provision of drinking water and the disposal of waste water (see sections 3 and 4).

The regulations may differ from province to province and incorporate by reference the laws of a province. Moreover, the federal Minister of Indian Affairs and Northern Development may enter into an agreement for the administration and enforcement of regulations with any province, corporation or other body. In Québec, the applicable provincial regulation is the Regulation respecting the quality of drinking water.

Hence, the Bill should be expected to provide an opportunity for this «cooperative federalism» that has been called for so often with respect to water management in Canada.

From a legal point of view, the necessity for this cooperative federalism stems from the division of powers in the Canadian Constitution. Articles 91 and 92 of the Constitution respectively apportion legislative powers to the federal and provincial governments. Drinking water is not a competence explicitly mentioned in the text of these articles.

As a result, provincial and federal competence over drinking water on First Nation lands can be inferred from a variety of sources. Traditionally, the Québec government has regulated drinking water on the basis, inter alia, that it has competence over local matters and health. However, the Federal government has competence over «Indians, and Lands reserved for the Indians» (section 91(24), Constitution). (For an online overview of constitutional issues related to water in Canada, see Alexandra Bailey, «Water Law: the Interjurisdictional Context», from the Centre for Constitutional Studies)

Hence, some duplication of the applicable legal framework can be expected. One can hope that provincial and federal interventions will be as coordinated as possible to avoid incoherencies and difficulties in interpretation and implementation.

Finally, an important issue relates to the extent of the First Nation juridiction over these matters. In 2007, the Assembly of the First Nations recommended that an eventual federal regime should:

«...recognize First Nations jurisdiction, which would be fully applied when First Nations governments are ready to exercise this jurisdiction and meet or exceed the national standard (for instance, many communities currently utilize provincial standards as a basis). The federal legislation would contain a non-derogation clause, entrench federal roles and responsibilities and establish the First Nations Water Commission model to enhance First Nations governments’ readiness to full exercise of their recognized jurisdiction over water management.»

In this respect, section 6 of the Bill provides that:

«(1) Regulations made under this Act prevail over any laws or by-laws made by a first nation to the extent of any conflict or inconsistency between them, unless those regulations provide otherwise.
2) In respect of an aboriginal body named in column 1 of the schedule, this Act and the regulations prevail over the land claims agreement or self-government agreement to which the aboriginal body is a party, and over any Act of Parliament giving effect to it, in the event of a conflict or inconsistency between this Act and that agreement or Act.»