Four Alberta First Nations launched a lawsuit against the
federal government on June 16, 2014, alleging that Canada failed to
provide resources and investments to ensure safe drinking water on
reserves. The lawsuit, commenced by the Tsuu T'ina Nation, the
Sucker Creek First Nation, the Ermineskin Cree Nation, and the
Blood Tribe, is significant for First Nations communities across
the country dealing with water quality issues. Water is important
for cultural and ceremonial reasons in addition to sustaining life.
However, there is a history of delayed action to ensure safe
drinking water on reserves across the country. Currently, 58 First
Nation water systems across Canada have boil water advisories
resulting from unsafe drinking water quality.
The following key events precede this litigation
2006 Expert Panel on Safe Drinking Water for First
Nations – The Minister of Indian Affairs and
Northern Development and the Assembly of First Nations appointed an
Expert Panel on Safe Drinking Water for First Nations in June 2006.
The Panel's mandate was to hold hearings across the country and
provide regulatory options for water on First Nations reserves. The
Panel's November 2006 report provided options for water
regulation on First Nations reserves. The report concluded that
regulation alone would be insufficient to address water quality
issues and that adequate resources and investment are
pre-conditions to regulation.
2011 Report on First Nations Water Infrastructure
– The Federal government commissioned a report on
the state of First Nations water infrastructure from engineering
firm Neegan Burnside. This report, released in April 2011,
estimated a cost of $1.08 billion in construction costs and $79.8
million in non-construction costs to bring First Nations water
systems up to standards of water systems off reserve.
2013Safe Drinking Water for First
Nations Act– The Federal
government enacted the Safe Drinking Water for First Nations
Act in May 2013. The Act provides a framework for regulations
protecting sources of drinking water
standards for the design of water and wastewater systems,
procedures for monitoring, testing and reporting adverse
Regulations have not yet been drafted. The Act attracted
opposition from First Nations based on the lack of infrastructure,
training and support required for First Nations to comply with the
Act. The Assembly of First Nations recognized the capacity gap,
just as the Expert Panel had.
The Legal Challenge by the First Nations
The Plaintiffs' Application states that they have been
dealing with unsafe and inadequate drinking water for too long.
Their reserves do not have the infrastructure or expertise to treat
and deliver drinking water. As a result, the Plaintiffs'
reserves have frequently been under boil water advisories and
residents have suffered adverse health effects from contaminated
water. The lack of safe drinking water has caused some residents to
move off reserve and has perpetuated long-standing disadvantages
faced by First Nations people in Canada.
The Plaintiffs describe the injuries suffered by them, including
adverse health effects, being deprived of the full benefit and use
of their reserves, the diminishing economic value of their
reserves, and diminishing residential conditions on reserves.
The Plaintiffs allege that the Federal government's failure
to ensure safe drinking water for their reserves constitutes a
violation of government duties and commitments. The Plaintiffs'
claim is grounded in the Federal government's fiduciary duty
and Honour of the Crown relating to the creation and management of
reserves. It is also based on the section 7 right to life, liberty
and security of the person, and section 15(1) equality rights
provided in the Canadian Charter of Rights and Freedoms.
The Plaintiffs further allege that the Federal government has
violated the section 36(1)(c) Constitution Act requirement
that the federal and provincial governments be committed to
providing equal public services to all Canadians.
The Plaintiffs ask Canada to remedy the unsafe drinking water
conditions including: consulting and implementing strict standards
and monitoring regimes, and increasing governance, resources and
powers in the hands of the First Nations.
The Plaintiffs also seek an order for Canada to disgorge the
savings it has made by failing to implement the necessary
infrastructure to ensure safe drinking water.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Canada is a constitutional monarchy, a parliamentary democracy and a federation comprised of ten provinces and three territories. Canada's judiciary is independent of the legislative and executive branches of Government.
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