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Water is the essence of life and human dignity.

World Health Organization[1]

Access to safe water is a fundamental human need and, therefore, a basic human right.

Kofi Annan, Former United Nations Secretary-General[2]

Putting the point bluntly, except for the very poorest nations in the world and for those constrained by military occupation, any government that does not provide the 25 to 50 litres of water per person-day commonly deemed necessary for a minimal quality of life is incompetent or corrupt.[3]


Is there a constitutional right to safe drinking water in Canada? To the vast majority of Canadians, this may seem a moot question, since 100 percent of urban residents and 99 percent of rural residents have access to improved drinking water and sanitation as of 2008.[4] Although this big picture is generally bright, pockets of darkness remain. As the preceding statistics indicate, there are still rural communities, comprising roughly 1 percent of Canada’s population, where comprehensive access to running water, safe drinking water, and indoor toilets is an aspiration rather than reality. These rural communities are predominantly, if not exclusively, reserves inhabited by First Nations.[5] Reserves are much more likely to experience high-risk drinking water systems and long-term boil water advisories.[6] The disparity between water quality on and off reserve in Canada has been criticized by the United Nations Committee on Economic, Social and Cultural Rights,[7] the Royal Commission on Aboriginal Peoples,[8] and the Auditor General of Canada.[9]

The situation has improved considerably over the past twenty years, but major disparities persist. As of 2010, forty-nine First Nations communities have high-risk drinking water systems and more than one hundred face ongoing water advisories[10] (out of roughly 615 First Nations communities in Canada[11]). Many of these deplorable situations have prevailed for years and, in some cases, for over a decade.[12] The federal government estimates that there are approximately five thousand homes in First Nations communities that lack basic water and sewage services.[13] Compared to other Canadians, First Nations’ homes are ninety times more likely to be without running water.[14] Examples of First Nations communities where, as of 2010, the majority of residents still lack running water, access to safe drinking water, and indoor toilets include Pikangikum in Ontario; Kitcisakik in Quebec; St. Theresa Point, Wasagamack, Red Sucker Lake, and Garden Hill in Manitoba; and Little Buffalo in Alberta.[15] The lack of access to safe drinking water has adverse physical and psychological effects. The federal government admits that “[t]he incidence of waterborne diseases is several times higher in First Nations communities, than in the general population, in part because of the inadequate or non-existent water treatment systems.”[16]

The Canadian Government does not recognize the right to water, either internationally or domestically.[17] When the United Nations (UN) General Assembly approved a resolution recognizing water as a human right in 2010,[18] 124 countries supported the resolution while none were opposed.[19] Canada was among forty-two countries that abstained from voting,[20] and it has a history of blocking international efforts to recognize the right to water.[21] The Canadian ConstitutionAct, 1982 (Constitution)[22] does not explicitly acknowledge a right to water. There is no federal legislation explicitly recognizing the right to water in Canada.[23] To date, no Canadian court has acknowledged the right.[24] In the only reported decision addressing the subject, involving a case where British Columbia residents unsuccessfully sought to stop logging activities in their watershed, the judge held that “[t]here is not before me an established case for the concept of a ‘right’ to clean water.”[25]

However, recent developments indicate growing support for legal recognition of the right to water in Canada. Quebec recently became the first province to formally recognize water as a human right in legislation: “Under the conditions and within the limits defined by the law, it is the right of every natural person to have access to water that is safe for drinking, cooking and personal hygiene.”[26] In 2007, the Legislative Assembly of the Northwest Territories passed a resolution recognizing that “all peoples have a fundamental human right to water that must be recognized nationally and internationally, including the development of appropriate institutional mechanisms to ensure that these rights are implemented.”[27] The Land Claims Agreement of the Labrador Inuit recognizes the right for the Inuit “to enjoy [w]ater that is on, in, under, flowing through or adjacent to Labrador Inuit Lands.”[28]

Water is regarded as sacred by many First Nations cultures.[29] As a leading First Nations scholar wrote, “water misuse and pollution across Canada” causes “multiple disruptions of indigenous peoples’ cultures, traditions, and economies.”[30] The Assembly of First Nations considers access to safe drinking water to be a basic human right.[31]

In the absence of explicit legal recognition of the right to water, the few Canadians who lack access to this essential public service are placed in the untenable position of being “mere supplicants”, dependent on the will of federal and/or provincial governments to make safe drinking water a priority. The purpose of this article is to explore the proposition that all Canadians possess a constitutional right to water, a legally enforceable right that the federal and provincial governments are violating for some First Nations people living on reserves. The constitutional right to water derives from three provisions: “the right to life, liberty and security of the person” under section 7 of the Canadian Charter of Rights and Freedoms (Charter);[32] the right to equality under section 15 of the Charter;[33] and the federal and provincial governments’ commitment to “providing essential public services of reasonable quality to all Canadians” under section 36 of the Constitution.[34] The constitutional right to water is buttressed by Canada’s obligations under international human rights law.

Excluded from the scope of this article are questions regarding Aboriginal title, Aboriginal rights, the federal government’s fiduciary duty to Aboriginal peoples, and treaty rights related to the use, management, and governance of water. While important, these questions have been addressed comprehensively by other experts.[35]

I. Mixed Progress in Providing First Nations with Access to Potable Water

The disparity between reserves and other Canadian communities in terms of access to safe drinking water and improved sanitation facilities has long been recognized. In 1977, a federal policy report proposed an expanded infrastructure program for reserves with the goal of providing Aboriginal homes and communities with facilities and services that both met health and safety standards and were comparable to neighbouring non-Aboriginal homes and communities.[36] In 1991, Indian and Northern Affairs Canada (INAC) committed to achieving equality amongst Canadians with respect to access to safe water by 2001.[37] In 1995, INAC reported that serious problems with drinking water quality existed on one in four reserves, and “committed to remedying all deficient water systems by 2004.”[38] Between 1995 and 2003, the federal government spent $1.9 billion to improve water and wastewater infrastructure for First Nations.[39] A national assessment of drinking water systems in First Nations communities published in 2003 revealed that 218 out of 740 systems were considered high-risk.[40] In 2003, the federal government pledged to “address all of the high-risk systems by the end of March 2008,” and budgeted $600 million for its First Nations Water Management Strategy.[41] In 2006, the government of Canada announced a plan of action for drinking water in First Nations communities to ensure that all First Nation reserves had access to safe drinking water.[42] From the 2006 budget, the federal government allocated $60 million over two years to help reach the objectives of the 2006 plan of action.[43] In 2008, the government of Canada announced a $330 million, two-year investment in a new plan, the First Nations Water and Wastewater Action Plan (FNWWAP).[44] An additional investment of $330 million for 2010-2012 is budgeted for FNWWAP’s continued implementation.[45] Canada’s 2009 Economic Action Plan further pledged $183 million for building or upgrading eighteen water and wastewater infrastructure projects on reserves.[46] The federal government recently published a comprehensive assessment of drinking water and sewage infrastructure serving 571 First Nations, concluding that 39 percent of water systems continue to pose a high risk.[47]

These actions and investments have resulted in tangible improvements in access to safe drinking water in First Nations communities: 18 of 21 communities identified as “high priority” in 2006 have been removed from the list due to improvements in infrastructure, training, and monitoring, and the number of high-risk drinking water systems has fallen from 193 in 2006, to 49 in 2010.[48] Furthermore, the proportion of certified water system operators has increased from 8 percent in 2003,[49] to 60 percent in 2010 (although still far short of reaching the goal of 100 percent).[50]

Despite these positive steps, three outstanding problems remain. First, the Expert Panel on Safe Drinking Water for First Nations (Expert Panel) concluded in 2006 that “the federal government has never provided enough funding to First Nations to ensure that the quantity and quality of their water systems was comparable to that of off-reserve communities.”[51] Inadequate funding continues to be a major obstacle to ensuring universal access to safe drinking water.[52] Second, there is still no regulatory framework in place to ensure the safety of drinking water for First Nations communities. As the Commissioner of the Environment and Sustainable Development reported in 2005, “[w]hen it comes to the safety of drinking water, residents of First Nations communities do not benefit from a level of protection comparable to that of people who live off reserves. This is partly because there are no laws and regulations governing the provision of drinking water in First Nations communities, unlike other communities.”[53] Bill S-11, the Safe Drinking Water for First Nations Act, was introduced in the Senate in 2010, but it died on the order paper as a result of the federal election in 2011, and has not been re-introduced.[54] Third, in 2006 the Expert Panel identified a number of high-risk communities, but observed that these communities were excluded from the Department of Indian Affairs and Northern Development’s assessment because they had no water system at all, or because an existing water treatment plant produced potable water, even if such plants were not connected to the majority of homes on a given reserve.[55] For example, the Expert Panel specifically highlighted Pikangikum and Kitcisakik as “urgent situations” that should be dealt with “as soon as possible,” yet INAC never added Pikangikum to its high priority list.[56] Nor did INAC include St. Theresa Point, Wasagamack, Red Sucker Lake, Garden Hill, or Little Buffalo on its high priority list, despite the fact that a majority of residents in each of these communities lack access to running water, safe drinking water, and indoor toilets. The severity of the problems facing these seven First Nations communities is outlined in more detail below, to provide a substantive factual context for the subsequent exploration of the constitutional law issues.

A. Pikangikum (Ontario)

In Pikangikum, an Aboriginal community of 2,300 people in northwestern Ontario, 95 percent of homes lack running water and indoor plumbing.[57] Only 20 of the 387 houses on the reserve are hooked up to the water treatment plant that was built by the Department of Indian Affairs and Northern Development in 1995. Many residents collect water from the nearby lake in buckets for drinking. A sewage lagoon serving the RCMP station, the store, and the school is located upstream from the intake for the water treatment plant, leading to contamination of the water supply. Pikangikum became notorious in 2000 when media reports described it as “having the highest suicide rate in the world” with people killing themselves at thirty-six times the Canadian average.[58]

At the request of the community in 2006, the Ontario government’s Northwestern Health Unit sent a team of professionals to Pikangikum to assess the drinking water and sewage disposal systems and to evaluate potential water-related health problems. The team included two public health inspectors, a medical doctor, and an epidemiologist. Their report concluded:

The most basic of twentieth century (ie last century) health-supporting water/sewage infrastructures are not available to Pikangikum First Nation residents. This includes (but is not limited to) housing, air/water/soil contamination control and regulation, drinking/water provision and sewage disposal.[59]

Regarding adverse health effects, the report recorded:

[T]he prevalence of gastrointestinal infections, skin infections, lice infestations, urinary tract infections and eye/ear infections were increased in this community compared to other regional First Nation communities and non-Aboriginal communities, and that it was probable that some of the increased prevalence could be attributed to the lack of an adequate and safe water supply system.[60]

Doctor Pete Sarsfield, the medical officer of health, commented: “[w]e were startled, upset. It was awful. This was a level of neglect that almost appeared purposeful.”[61] Sarsfield added that despite extensive experience with First Nation communities, he had “never seen living like this in Canada—infrastructure so bad people are constantly putting themselves at risk of serious illness.”[62] The Expert Panel summarized the testimony of Bill Limerick, Director of Environmental Health and Director of Health Protection at Ontario’s Northwestern Health Unit:

“[E]veryone has basically a five-gallon bucket” to take their water from nearby Pikangikum Lake. In the summer, raw sewage from the community can flow directly into the lake from overburdened septic systems. One sample of this water “was overgrown with coliform bacteria and E. coli. It was ... deplorable.”

In the winter, Limerick estimated, roughly about half the residents take their water from a hole in the ice of the lake, just off-shore of the community, in an area contaminated by animal wastes and fuel from snowmobiles.

Almost all of the community relies on outhouses that are in poor repair and grossly inadequate. Limerick described an open sewage system at one facility covered with an old table, with children playing nearby as sewage overflowed from the tank.[63]

When, in 2000, then Minister of Indian Affairs Robert Nault visited Pikangikum, it was estimated that that the community’s water woes would be fixed in six to eight weeks.[64] In 2006, the federal government offered the community 200 new outhouses, an offer that was summarily rejected by community leaders as inadequate.[65] In 2007, Indian Affairs Minister Jim Prentice announced “$9.7 million for new water and sewer servicing that [would] bring clean, safe drinking water right to [the] homes” of Pikangikum.[66] However, as of 2010, the problems persist.[67] Among the excuses used by the federal government to explain the delays are: the need for further study; frequent changes in band leadership; inadequate supply of electricity to pump the water to homes; and a cultural custom of burying family members in backyards, making the placement of pipes difficult.[68] Pikangikum sued former Minister of Indian Affairs Robert Nault for damages, arguing that water and sewer infrastructure projects previously approved by the government were unlawfully frozen years ago.[69] The Ontario Superior Court rejected the claim, finding that both parties contributed to the unfortunate state of affairs.[70]

B. Kitcisakik (Quebec)

Kitcisakik is an Algonquin village with roughly 300 residents located in the northern part of the La Verendrye Wildlife Reserve in Quebec.[71] The Anicinapek Kitcisakik have never left their ancestral land, yet their community has no recognized legal status.[72] Approximately one hundred houses in the village lack running water, indoor toilets, and electricity.[73] According to Statistics Canada, 87.5 percent of dwellings in the community need major repairs, compared to the provincial average of 7.7 percent.[74] Because Kitcisakik is not formally designated an “Indian reserve”, it does not qualify for automatic federal funding. In December 2009, the Quebec government announced funding of $1.4 million to begin addressing some of the community’s severe infrastructure and housing problems.[75] Community leaders would like to build a new village, in a different location, that includes all of the basic and essential services missing from Kitcisakik.[76] The situation in Kitcisakik is so deplorable that Emergency Architects of Canada, a humanitarian organization that has projects in Pakistan, Afghanistan, and Darfur, intervened in this community.[77]

C. Little Buffalo (Alberta)

Little Buffalo is a Lubicon Cree First Nation community of approximately 225 people, located in a region heavily impacted by Alberta’s oil and gas industry.[78] There is no running water at Little Buffalo, local water sources are contaminated and unsafe to drink, houses lack indoor plumbing, and residents are forced to “drive an hour each way to and from Peace River to buy bottled water.”[79] Passed over in the westward sweep of treaty-making pursued by the British Crown, the Lubicon Cree have long sought a negotiated settlement of their land rights. In 1984, following unsuccessful negotiations and court actions, the Lubicon filed a complaint with the UN. In 1990, the UN Human Rights Committee ruled that Canada was violating the basic human rights of the Lubicon First Nation.[80] Twenty years later, despite repeated criticism from the UN, the problems have not been addressed. In a 2006 submission to the UN Committee on Economic, Social and Cultural Rights, the Lubicon First Nation wrote:

In the midst of multi-billion dollar resource exploitation of natural resources from our unceded traditional Territory, the Lubicon people face severe economic deprivation and live in third world housing conditions with as many as three or four generations living in a small 900 square foot bungalow with no running water or indoor toilet facilities.[81]

D. St. Theresa Point, Wasagamack, Red Sucker Lake, and Garden Hill (Manitoba)

Four Manitoba First Nations communities—St. Theresa Point, Wasagamack, Red Sucker Lake, and Garden Hill—have a combined population of approximately ten thousand people,[82] yet lack basic water and sanitation services. For example, a community profile of the Garden Hill First Nation states: “[t]he community obtains water directly from Island Lake which is chlorinated by a small treatment plant and distributed via a standpipe system. There is one house on a well; eight houses have cisterns; 267 houses have water barrels; and 236 houses have no service.”[83] When Garden Hill residents faced an outbreak of tuberculosis in 2006, doctors told them to cough into, and then wash, their hands. According to Garden Hill First Nation Chief David Harper, “[w]e had to tell them that in this community there is no such thing as turning on a tap and having easy access to safe water. Things other Canadians take for granted is not the reality in our community.”[84] A University of Manitoba study found that residents of Garden Hill who did not have running water drank lake water, and that those who did not have access to an outhouse were more likely to suffer from diarrhea.[85] According to former Manitoba Premier Gary Doer, the federal government has been promising to upgrade the water system at Garden Hill since at least 1999.[86]

At the Red Sucker Lake First Nation, newer houses enjoy running water, indoor plumbing, and electric heat while “[a]ll other houses have no running water and indoor plumbing, including the Red Sucker Lake Band Office” and “[m]ost residents utilize pit privies.”[87] For the Wasagamack and St. Theresa Point First Nations, “[w]ater delivery services are provided to the few houses equipped with indoor plumbing.”[88] Studies indicate that Wasagamack residents suffer from disproportionate exposure to Helicobacter pylori bacteria, which cause ulcers, chronic gastritis, and increased risk of stomach cancer.[89] Contaminated water and inadequate water and sanitation services are known risk factors for Helicobacter pylori.

Even in winter, when the temperatures drop below minus forty degrees Celsius, individuals in these four Manitoba First Nation communities are forced to use outhouses or latrine pails that must be emptied outside. A 2009 newspaper article—paraphrasing Doctor Arlene King, Ontario's chief medical officer of health—noted that “lack of running water, lack of extensive medical facilities and overcrowding ... faced by aboriginal residents in northern and isolated communities make them more susceptible to the H1N1 virus.”[90] In response to the H1N1 (swine flu) outbreak, Red Sucker Lake Chief Larry Knott said he was worried that his community wouldn't “be able to heed much of the preventative advice from public health practitioners ... [because] many residents don't have running water and must get fresh water in a pail from the lake.”[91] Studies published in the Canadian Medical Association Journal[92] and the Journal of the American Medical Association demonstrated that Aboriginal people in Manitoba suffered a disproportionate share of cases of H1N1 influenza during the 2009 outbreak.[93] Although Aboriginal people make up approximately 15 percent of Manitoba’s population,[94] 37 percent of the patients who suffered critical illness as a result of H1N1 infection were Aboriginal, and 60 percent of the people who had to be admitted to intensive care units were Aboriginal.[95] The St. Theresa First Nation was particularly hard hit, with many individuals from this community having to undergo transportation to hospitals in Winnipeg.[96]

An earlier study, published in 1997, found that shigellosis—an acute intestinal infection that kills thousands of children in developing countries each year—was three to six times more common on Manitoba reserves without running water than on reserves with piped water.[97] The study found that lack of access to an adequate volume of clean water likely resulted in less frequent handwashing, and suggested that disposal of sewage from indoor pails likely raised the risk of diarrheal diseases.[98]

II. The Legal Framework Governing Safe Drinking Water in Canada

Canada is covered by a complicated patchwork quilt of federal and provincial laws and regulations that govern safe drinking water.[99] Unlike the United States, there are no uniform national standards for drinking water in Canada.[100] Instead, the federal government establishes national guidelines, which are adopted to widely varying degrees by provincial and territorial governments.

A. The Provincial and Territorial Legal Framework for Drinking Water

Every province and territory has passed laws and/or regulations that establish drinking water quality standards, as well as requirements for monitoring, testing, operator training and certification, and public reporting.[101] In the wake of the Walkerton water disaster in 2000, almost every province and territory has strengthened its regulatory framework for drinking water.[102] In general, laws intended to secure safe drinking water apply to all water systems, except very small systems serving only a few buildings or residents. The other exception is that provincial laws governing drinking water do not apply to reserves, because of the federal government’s constitutional responsibility for “Indians, and lands reserved for Indians.”[103]

B. The Federal Legal Framework for Drinking Water

At the federal level, a variety of legal provisions ensure access to safe water within the limits of federal jurisdiction. The Canada Labour Code and associated regulations mandate the provision of potable water at all facilities where there are federal employees.[104] The Potable Water Regulations for Common Carriers (under the Department of National Health and Welfare Act) require the provision of potable water on aircraft, trains, and ships travelling internationally, interprovincially, in coastal waters, or on the Great Lakes.[105]

A number of federal laws relate to water and First Nations, including the Canada Water Act,[106]Canadian Environmental Protection Act, 1999,[107]Department of Health Act,[108]Department of Indian Affairs and Northern Development Act,[109]Fisheries Act,[110]First Nations Land Management Act,[111] and the First Nations Commercial and Industrial Development Act.[112] However, none of these laws provide a regulatory framework for the provision of safe drinking water on reserves.[113] The sole federal legislation relevant to drinking water on reserves is the Indian Act provision authorizing band councils to make bylaws governing “the construction and regulation of the use of public wells, cisterns, reservoirs and other water supplies.”[114] The Expert Panel determined that no bylaws have ever been passed pursuant to this enabling provision.[115] The Indian Act does not authorize the protection of source water, which the Walkerton Inquiry highlighted as a critical component of a comprehensive drinking water regime.[116] As Professor MacIntosh concludes, this Indian Act provision is “an inadequate basis for a regulatory framework to ensure the safety of drinking water.”[117]

The bottom line is that there are no federal or provincial laws or regulations to ensure safe drinking water for First Nations individuals living on reserves. Ironically, because of the Canada Labour Code, Health Canada has installed small water treatment systems at nursing clinics and health facilities on dozens of reserves with drinking water quality problems to ensure that employees have access to safe drinking water.[118] The Canadian Commissioner of the Environment and Sustainable Development observed that “because the Canada Labour Code applies only to employees and provincial legislation and regulations are not applied on reserves, residents of First Nations communities do not benefit from the regulatory protection for drinking water available in provinces and to federal employees.”[119] As Professor MacIntosh concludes, “all populations under federal jurisdiction have their drinking water protected by law, except for on-reserve First Nations people.”[120] This is part of a larger pattern of “regulatory abandonment” of reserve lands and waters that also includes an absence of regulation for wastewater treatment, garbage disposal, hazardous waste, air pollution, and other environmental concerns.[121]

INAC has attempted to fill the regulatory gap with guidelines and funding arrangements, but this approach fails to incorporate important elements found in provincial regulatory regimes, including: “approval and licensing of water treatment plants, ongoing monitoring, public reporting requirements, and compliance and enforcement mechanisms.”[122]

In 2002, in his report on the Walkerton water disaster, Justice O’Connor wrote: “I encourage First Nations and the federal government to formally adopt drinking water standards, applicable to reserves, that are as stringent as, or more stringent than, the standards adopted by the provincial government.”[123] In 2005, the federal Commissioner of the Environment and Sustainable Development recommended the development of a regulatory regime for drinking water in First Nations communities that would “protect the health and safety of First Nations people.”[124] In 2006, the Expert Panel identified a number of legislative options and determined that the creation of a single federal regime of drinking water standards for First Nations communities offered the most advantages and the fewest drawbacks. The federal government pledged that it would “choose a regulatory option and propose an appropriate regulatory framework that will ensure safe drinking water in First Nations communities in the Spring 2007.”[125] In 2010, the government introduced Bill S-11 into the Senate.[126] Contrary to the recommendations of the Expert Panel and the Assembly of First Nations, Bill S-11 proposed a regime based on the highly variable provincial drinking water laws.[127] The Expert Panel had identified this as the weakest option for three reasons: “gaps and variations in those [provincial] regimes” could lead to uneven results, with some communities benefiting from more comprehensive provincial regimes; First Nations have low records of accepting provincial regulation; and because involving another level of government in water management would add complexity.[128] Bill S-11 also contained provisions that: suggested constitutionally protected Aboriginal rights could be violated;[129] indicated that the regulations would prevail over land claims agreements, self-government agreements, and First Nations laws and bylaws in the event of a conflict;[130] and limited the government’s liability for acts and omissions and precluded civil lawsuits.[131]

Perhaps not surprisingly, the reaction of First Nations to the proposed legislation was negative.[132]

III. The Right to Life, Liberty and Security of the Person (Section 7 of the Charter)

Modern sanitation services (potable drinking water and safe wastewater disposal) are a cornerstone of public health progress and have contributed to decreased infectious disease morbidity and mortality.[133]

The Supreme Court of Canada has repeatedly stated that the interpretation of the Charter should be “a generous rather than a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter's protection.”[134] Section 7 of the Charter states:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.[135]

The appropriate scope of section 7 is one of the most contested issues in Canadian constitutional law.[136] Many different types of claims have been launched based on the right to life, liberty and security of the person, reflecting concerns about cruise missile testing in Canada, [137] the location of a landfill,[138] the inadequacy of provincial welfare programs,[139] and the legality of a Quebec law prohibiting private health insurance.[140] Although not all of these particular claims succeeded, most of the successful challenges launched under section 7 have been related to government actions that deprive an individual of his or her right to life, liberty and security of the person in the context of the administration of justice, particularly the criminal justice system. Subsequent cases, including Chaoulli v. Quebec (Attorney General),[141] have confirmed that section 7 applies in a broader range of circumstances.

According to the Supreme Court of Canada, the claimant asserting a violation of section 7 must prove two main elements: 1) that a deprivation of the right to life, liberty and security of the person has occurred; and 2) that the deprivation “was not in accordance with the principles of fundamental justice.”[142] In Singh v. Minister of Employment and Immigration, Justice Wilson emphasized that the “deprivation” can relate to any or all of the three interests identified in section 7—life, liberty, and security of the person—and that “it is incumbent upon the Court to give meaning to each of the elements.”[143] The right to life has been described as the “right, freedom or ability to maintain one’s existence.”[144] Liberty under section 7 “encompasses only those matters that can properly be characterized as fundamentally or inherently personal such that, by their very nature, they implicate basic choices going to the core of what it means to enjoy individual dignity and independence.”[145]Rodriguez v. British Columbia (Attorney General) sets out the parameters of the right to security of the person, including its physical and psychological components, as “encompass[ing] a notion of personal autonomy involving, at the very least, control over one’s bodily integrity free from state interference and freedom from state-imposed psychological and emotional stress” as well as “the right to make choices concerning one’s own body, control over one’s physical and psychological integrity, and basic human dignity.”[146]

A highly contentious issue is whether section 7 is, or ought to be, the basis for a positive state obligation to guarantee adequate living standards.[147] Efforts to broaden the application of section 7 to incorporate social and economic rights, as in the Gosselin case about reduced welfare payments for young people in Quebec, have generally not succeeded, although the Supreme Court has deliberately left the door open. Chief Justice McLachlin, on behalf of the majority in Gosselin, wrote:

Nothing in the jurisprudence thus far suggests that s. 7 places a positive obligation on the state to ensure that each person enjoys life, liberty or security of the person. Rather, s. 7 has been interpreted as restricting the state's ability to deprive people of these. Such a deprivation does not exist in the case at bar.

One day s. 7 may be interpreted to include positive obligations. ... It would be a mistake to regard s. 7 as frozen, or its content as having been exhaustively defined in previous cases. ...

The question therefore is not whether s. 7 has ever been—or will ever be—recognized as creating positive rights. Rather, the question is whether the present circumstances warrant a novel application of s. 7 as the basis for a positive state obligation to guarantee adequate living standards.

I conclude that they do not. ... I leave open the possibility that a positive obligation to sustain life, liberty, or security of the person may be made out in special circumstances. However, this is not such a case.[148]

Justices Arbour and L’Heureux-Dubé, dissenting in Gosselin, argued that section 7 establishes a positive obligation on the state to provide for everyone’s basic needs.[149] In Schachter, the Supreme Court clearly stated that sections 7 and 15 of the Charter include both negative and positive rights.[150] Given its preeminence within the overall scheme of the Charter, “the need to safeguard a degree of flexibility in the interpretation and evolution of s. 7” is, as Justice LeBel suggests in Blencoe v. British Columbia (Human Rights Commission), crucial.[151] So too, as Justice L’Heureux-Dubé asserts in New Brunswick (Minister of Health and Community Services) v. G.(J.), is the need to interpret section 7 through an equality rights lens in order “to recognize the importance of ensuring that our interpretation of the Constitution responds to the realities and needs of all members of society.”[152] The majority and concurring opinions in Chaoulli v. Quebec (Attorney General) may have marked a new era in judicial interpretation of the Canadian and Quebec charters, indicating more responsiveness to the needs of Canadians.[153] Some commentators have argued that the Supreme Court decision in Chaoulli, striking down Quebec’s prohibition of private health insurance, created a de facto obligation upon the state to provide timely health care.[154] The 2009 British Columbia Court of Appeal decision dealing with homelessness, Victoria (City) v. Adams, is also instructive.[155] The Court of Appeal agreed with the trial judge that a municipal bylaw prohibiting homeless people from establishing temporary structures in parks and other public spaces violated section 7 of the Charter. The Court held that its decision did not impose positive obligations on the city to provide adequate shelter or take other specified actions to address homelessness, although it acknowledged that, from a practical point of view, the city would have to undertake some kind of responsive action “to comply with the requirements of the Charter, which can involve some expenditures of public funds or legislative action, or both.”[156] 

A. Deprivation of the Right to Life, Liberty and Security of the Person

According to the Supreme Court of Canada, the right to security of the person is violated when state action or inaction results in serious physical and/or psychological harm.[157] As Chief Justice Lamer stated in G. (J.):

It is clear that the right to security of the person does not protect the individual from the ordinary stresses and anxieties that a person of reasonable sensibility would suffer as a result of government action. If the right were interpreted with such broad sweep, countless government initiatives could be challenged on the ground that they infringe the right to security of the person, massively expanding the scope of judicial review, and, in the process, trivializing what it means for a right to be constitutionally protected.[158]

Psychological harm must be greater than ordinary stress or anxiety, but does not have to rise to the level of psychiatric illness. Examples of situations where the right to life, liberty and security of the person will be violated include: extradition to another country to face the death penalty; extradition to another country to face torture; and delays in the provision of medical treatment. In Chaoulli, the Court stated that “delays in obtaining medical treatment which affect patients physically and psychologically trigger the protection of s. 7.”[159]

Does the federal government’s failure to provide adequate funding for basic drinking water and sanitation infrastructure at Pikangikum, Kitcisakik, Little Buffalo, St. Theresa Point, Wasagamack, Red Sucker Lake, Garden Hill, and other reserves deprive First Nations persons in those communities of their right to life, liberty and security of the person? The answer is clearly in the affirmative. It is widely recognized—by health experts, the UN, the World Health Organization, and even the government of Canada—that a minimum supply of potable water is a prerequisite for life, adequate human health, and well-being.[160] The federal government seems to acknowledge that “[c]lean, safe water is a basic requirement for life which must be accessible by all peoples of Canada.”[161]

There is compelling evidence showing that: First Nations individuals face elevated levels of waterborne disease compared to other Canadians;[162] First Nations individuals living on reserves without running water experienced a higher incidence of H1N1 than the general Canadian population, as well as a higher incidence of illness and death;[163] First Nations children suffered from a disproportionately high rate of H1N1 influenza, due largely to the outbreak on the Manitoba reserves highlighted in this article (St. Theresa Point, Wasagamack, Red Sucker Lake, and Garden Hill);[164] and some First Nations communities that lack access to safe drinking water have disproportionately high suicide rates, indicating high levels of psychological distress.[165]

Other studies indicate that residents of reserves where the majority of homes lack tap water or toilets face elevated risks of: whooping cough (pertussis); infection with a dangerous superbug known as MRSA, or methicillin-resistant Staphylococcus aureus; shigellosis, a deadly illness that affects children; diarrhea; and impetigo, a bacterial skin infection that can lead to kidney problems.[166] A key element of prevention in each of these cases is proper hygiene, including frequent handwashing, which is dependent on the availability of sufficient quantities of water of adequate quality. A study of rural Native villages in Alaska found that residents of homes without piped water and wastewater services faced significantly higher risks of pneumonia, influenza, and skin infections.[167] The same study found that infants in villages lacking basic water services were five times more likely to be hospitalized for lower respiratory tract infections and respiratory syncytial virus, and eleven times more likely to be hospitalized for pneumonia compared to the overall United States population.[168] The authors concluded that this disparity ought to be remedied by improving sanitation infrastructure.[169]

In circumstances analogous to the situation in Chaoulli,[170] First Nations persons living on reserves without access to adequate water and sanitation services face elevated risks of serious health problems and may in some cases face an increased risk of death. There is a direct connection between the federal government’s failure to provide adequate funding for basic water infrastructure in these communities and deprivation of the right to life, liberty and security of the person. There is an indirect connection between the federal government’s failure to ensure legal protection for the drinking water of these communities, as it has done for other persons under federal jurisdiction (for example, federal employees, travellers on planes, trains, and ships, and military personnel), and the deprivation of the right to life, liberty and security of the person. This is analogous to the Supreme Court’s finding that Alberta’s human rights legislation was under inclusive in Vriend v. Alberta.[171]

An argument can also be made that the liberty interests of First Nations individuals who live on reserves without access to basic water or sanitation services may be compromised. The Supreme Court has made it clear that for First Nations people, the choice of whether to live on or off reserve is fundamental to their identity.[172] The federal government’s failure to provide access to water and sanitation may effectively compel First Nations persons to leave their reserves and to protect their health by moving to communities where these services are available.

In Chaoulli, Chief Justice McLachlin wrote that by “failing to provide public health care of a reasonable standard within a reasonable time, the government creates circumstances that trigger the application of s. 7 of the Charter.[173] Similarly, by failing to provide drinking water and sanitation infrastructure “of a reasonable standard within a reasonable time” the government creates circumstances that trigger the application of section 7.

B. Is the Deprivation in Accordance with the Principles of Fundamental Justice?

The second part of the section 7 analysis involves determining whether the deprivation of the right to life, liberty and security of the person is consistent with the principles of fundamental justice. There is ambiguity about the meaning of the phrase “principles of fundamental justice.” According to the Supreme Court, to constitute a principle of fundamental justice for the purposes of section 7, a rule or principle must: i) “be a legal principle about which there is significant societal consensus that it is fundamental to the way in which the legal system ought fairly to operate”; and ii) “be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty or security of the person.”[174]

At least three of the principles of fundamental justice that have been accepted by the Supreme Court of Canada appear to be violated by the federal government’s ongoing failure to provide First Nations persons living on reserves with safe drinking water. First, according to Justice Wilson in Morgentaler, “a deprivation of the s. 7 right which has the effect of infringing a right guaranteed elsewhere in the Charter cannot be in accordance with the principles fundamental justice.”[175] The next section of this article provides compelling evidence that the same government failure to provide safe drinking water that violates section 7 also violates the Charter’s section 15 equality guarantee by discriminating against First Nations.

Second, if the deprivation of the right to life, liberty and security of the person would “shock the conscience” of Canadians, then it violates the principles of fundamental justice. Typically, “shock the conscience” has involved government decisions to extradite or deport someone who faces the death penalty, torture, or another form of punishment that would be unlawful in Canada. The main “shock the conscience” cases are Schmidt (1987), Kindler (1991), Re NgExtradition (1991), Burns (2001), and Sureshv. Canada (Minister of Citizenship and Immigration) (2002).[176]Schmidt held that the principles of fundamental justice are invoked by action that “shocks the conscience.”[177] In Suresh, the Supreme Court articulated the test for determining what shocks the conscience, which asks whether “the conduct [is] fundamentally unacceptable to our notions of fair practice and justice.”[178] The failure to ensure that all First Nations communities have running water, access to safe drinking water, and indoor plumbing is surely sufficient to shock the conscience of Canadians.[179]

Third, a law, policy, or program that is arbitrary also violates the principles of fundamental justice. A law, policy, or program is arbitrary where “it bears no relation to, or is inconsistent with, the objective that lies behind [it].”[180] In Chaoulli, the Court explained that:

To determine whether this is the case, it is necessary to consider the state interest and societal concerns that the provision is meant to reflect.

In order not to be arbitrary, the limit on life, liberty and security requires not only a theoretical connection between the limit and the legislative goal, but a real connection on the facts. The onus of showing lack of connection in this sense rests with the claimant. The question in every case is whether the measure is arbitrary in the sense of bearing no real relation to the goal and hence being manifestly unfair. The more serious the impingement on the person’s liberty and security, the more clear must be the connection. Where the individual’s very life may be at stake, the reasonable person would expect a clear connection, in theory and in fact, between the measure that puts life at risk and the legislative goals.[181]

In identifying priority communities under the First Nations Water and Wastewater Action Plan, the federal government evaluated five aspects of a community’s water treatment system: “source water quality, design of the system, operation and maintenance of the system, operator training and certification, and reporting and record keeping.”[182] This unjustifiably narrow approach led to the exclusion of Pikangikum, Kitcisakik, Little Buffalo, St. Theresa Point, Wasagamack, Red Sucker Lake, and Garden Hill from the list of priority First Nations. This exclusion occurred despite previous government commitments to these communities, media coverage of the acute problems facing these communities, and even the identification of some of these communities by the government’s own Expert Panel as requiring urgent intervention. As the Standing Senate Committee on Aboriginal Peoples reported in 2007, “the Expert Panel told the Committee that they had identified communities that were clearly at higher risk, but that these communities failed to appear as high risk on the Department’s risk assessment because they did not have any water systems at all.”[183]

It is likely that a strategy to provide safe drinking water and sanitation that fails to prioritize the communities where these basic services are most urgently required is arbitrary. The seven First Nations communities highlighted in this article are suffering extensive adverse health effects as a direct consequence of the lack of access to a sufficient quantity of adequate quality water. The INAC criteria for ranking priority communities are arbitrary because they ignore whether a treatment plant exists and, if one does exist, whether it is actually serving members of a community. As the Supreme Court held in Chaoulli (endorsing the ruling of Justice Beetz in Morgentaler) “rules that endanger health arbitrarily do not comply with the principles of fundamental justice.”[184]

A fourth legal principle that may be relevant in this discussion is respect for minorities. As the Supreme Court noted in Reference Re Secession of Quebec, “there are four fundamental and organizing principles of the Constitution which are relevant to addressing the question before us (although this enumeration is by no means exhaustive): federalism; democracy; constitutionalism and the rule of law; and respect for minorities.”[185] The Court further emphasized that “the protection of minority rights is itself an independent principle underlying our constitutional order.”[186] Given that First Nations persons clearly belong to a minority in the Canadian context,[187] the failure to provide adequate funding for drinking water and sanitation infrastructure on reserves and the failure to legislate protection for safe drinking water could be construed as contrary to the principle of respecting and protecting minority rights.

C. Justification Under Section 1 of the Charter

Once a claimant has established a violation of one or more Charter rights, the onus shifts to the party seeking to justify the infringement under section 1 of the Charter.[188]

The Supreme Court has stated that section 7 violations can rarely be justified by section 1 of the Charter.[189] In Re B.C. Motor Vehicle Act, Justice Lamer observed that “[s]ection 1 may, for reasons of administrative expediency, successfully come to the rescue of an otherwise violation of s. 7, but only in cases arising out of exceptional conditions, such as natural disasters, the outbreak of war, epidemics, and the like.”[190] Thus, if depriving residents of First Nations reserves of access to safe water violates their right to life, liberty and security of the person, it is unlikely that the government will be able to justify its actions under section 1 of the Charter.

IV. The Right to Equality (Section 15 of the Charter)

Section 15(1) of the Charter states:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.[191]

It is a general principle of Charter interpretation that section 15(1) is to be generously and purposively interpreted.[192] Courts have been clear in explaining that section 15 applies to more than just statutes. As the Supreme Court ruled in Lovelace v. Ontario, government programs and activities undertaken pursuant to statutory authority are also subject to Charter scrutiny.[193]

The purpose of the equality right guaranteed under the Charter has been described by the Supreme Court of Canada in different ways. In R. v. Turpin, the Court defined the overall purpose of section 15 to be the remedying or preventing of discrimination against groups suffering social, political, and legal disadvantage in Canadian society.[194] In Eldridge v. British Columbia (Attorney General), the Court held that section 15(1) has two key purposes:

First, it expresses a commitment—deeply ingrained in our social, political and legal culture—to the equal worth and human dignity of all persons. As McIntyre J. remarked in Andrews, at p. 171, s. 15(1) “entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect and consideration”. Secondly, it instantiates a desire to rectify and prevent discrimination against particular groups “suffering social, political and legal disadvantage in our society”.[195] 

The legal test for establishing a violation of section 15 of the Charter has evolved through a number of Supreme Court of Canada decisions, beginning with Andrews v. Law Society of British Columbia[196] and arising most recently in R. v. Kapp.[197] In Kapp, the Supreme Court of Canada reiterated the test for potential section 15 violations as involving two questions: “(1) Does the law create a distinction based on an enumerated or analogous ground? (2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?”[198]

A. Is the Distinction or Differential Treatment Based on an Enumerated or Analogous Ground?

According to Professor Hogg, a section 15 analysis “requires a comparison between the legal position of the claimant and that of other people to whom the claimant may legitimately invite comparison.”[199] Thus, all portions of the section 15 test proceed

on the basis of a comparison with another relevant group or groups, and locating the relevant comparison groups requires an examination of the subject-matter of the law, program or activity and its effects, as well as a full appreciation of the context. Generally, the claimant chooses the relevant comparator, however, a court may, within the scope of the ground or grounds pleaded, refine the comparison presented by the claimant.[200]

Race and ethnicity are enumerated grounds under section 15. In the context of access to safe drinking water, however, it is not Aboriginality per se that is the basis of the impugned distinction. Aboriginal people living off-reserve enjoy the same level of access to safe drinking water and sanitation as other Canadians, and the same legal protection provided by federal and provincial drinking water laws and regulations. It is the combination of Aboriginality with on-reserve residence that is the basis of the distinction, or Aboriginality-residence to use the terminology of the Supreme Court of Canada.[201] In the case of Corbiere v. Canada (Minister of Indian and Northern Affairs), it was held that Indian Act provisions requiring residence on reserve in order to vote in band council elections violated the section 15 equality rights of Aboriginal people living off-reserve.[202] Residence on an Indian reserve is an exception to the courts’ position that place of residence is not an analogous ground.[203] The Supreme Court unanimously held in Corbiere that “Aboriginality-residence” is an analogous ground because the decision to live on- or off-reserve is a “personal characteristic essential to a band member's personal identity” which can be changed “only at great cost, if at all.”[204]

Regarding access to safe drinking water, it is First Nations people living on-reserve whose section 15 equality rights are being violated. The Aboriginal communities of Pikangikum, Kitcisakik, Little Buffalo, St. Theresa Point, Wasagamack, Red Sucker Lake, and Garden Hill are remote northern reserves. Relevant comparison groups are therefore remote northern communities, of similar size, that are not reserves. Examples could include Red Lake, Ontario (population 4,526);[205] Aumond, Quebec (population 775);[206] Berwyn, Alberta (population 546); and Flin Flon, Manitoba (population 5,594).[207] Residents of these remote, northern, non-reserve communities enjoy safe drinking water from systems that are provincially regulated. For example, there is a dramatic contrast between access to safe water in Pikangikum and Red Lake despite comparable population sizes and geographic proximity (roughly one hundred kilometres separate the communities). Whereas the residents of the Pikangikum First Nation predominantly lack running water and indoor plumbing, forcing them to collect water in buckets and to rely on outhouses,[208] the residents of Red Lake enjoy safe drinking water from a certified municipal water system and are served by a sewage treatment plant that treats their wastewater.[209] Red Lake’s water treatment system must meet the stringent requirements of Ontario’s Safe Drinking Water Act, which imposes extensive treatment and monitoring requirements in order to ensure that human health is protected.[210] Pikangikum’s water treatment plant (which is not connected to 95 percent of the homes in the community) is not subject to a regulatory regime.[211] According to the legally required public annual report, the operator of the Red Lake water treatment system carried out “over 6,000 routine independent in-house water quality tests ... in 2010.”[212] In contrast, water quality testing at Pikangikum was described by Ontario’s Northwestern Health Unit as sporadic, infrequent, and insufficient.[213]

As discussed earlier, there are no federal or provincial laws that protect the quality of drinking water on First Nations reserves. Every province and territory in Canada has legislation intended to ensure the provision of safe drinking water. However, because the ConstitutionAct, 1867 assigns jurisdiction over Indians and Indian lands to the federal government,[214] these laws do not apply on First Nations reserves. The practical consequence is that the roughly half a million Canadians who live on reserves are without the legal guarantees of water quality enjoyed by the other thirty-four million Canadians. Therefore, First Nations people living on certain reserves have a strong argument that the legal framework intended to ensure safe drinking water for all Canadians has a glaring gap or, in legal terms, is under-inclusive. It is not that safe drinking water laws explicitly exclude Aboriginal Canadians living on reserve, but that is the ultimate result of the otherwise comprehensive network of laws. In Vriend, Alberta human rights legislation was held to be under-inclusive because it did not include discrimination based on sexual orientation.[215] In Dunmore v. Ontario (AG), a case dealing with Ontario legislation excluding agricultural workers from the statutory labour relations regime, the Supreme Court held that “legislation that is underinclusive may, in unique contexts, substantially impact the exercise of a constitutional freedom.”[216] In the context of the right to water, Canadian drinking water legislation is under-inclusive in that it does not apply on reserves. Because of the allocation of constitutional jurisdiction, responsibility for this legal lacuna lies with the federal government.

While some may be encouraged by the allocation of additional resources and the introduction of new legislation, the crises in Pikangikum, Kitcisakik, Little Buffalo, St. Theresa Point, Wasagamack, Red Sucker Lake, and Garden Hill are ongoing. These crises have not been treated with the degree of urgency recommended by the Expert Panel in 2006. The allocation of money in a budget cannot be regarded as a substitute for tangible remedial action in the affected reserve communities. The introduction of proposed legislation that may or may not be passed by Parliament cannot be regarded as a substitute for the enactment, implementation, and enforcement of legislation. In Vriend, the Supreme Court held that “groups that have historically been the target of discrimination cannot be expected to wait patiently for the protection of their human dignity and equal rights while governments move toward reform one step at a time.”[217]

B. Is the Distinction or Differential Treatment Discriminatory?

The focus of the second part of the section 15 analysis has shifted over time, from Andrews to Law v. Canada (Minister of Employment and Immigration) and, more recently, Kapp. Four contextual factors were identified by the Supreme Court of Canada in Law as being relevant to the analysis under this last branch of the section 15 test: pre-existing disadvantage, correspondence between the ground of distinction and the actual needs and circumstances of the affected group, ameliorative purpose of the impugned measure for a more disadvantaged group, and the nature of the interests affected.[218] The Supreme Court has clarified that these four factors are non-exhaustive guiding principles rather than a mechanical test.[219]

One of the elements at the heart of section 15(1) is the concept of human dignity. As the Supreme Court observed in Law, “[h]uman dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognize the full place of all individuals and groups within Canadian society.”[220] The Court elaborated:

[P]robably the most compelling factor favouring a conclusion that differential treatment imposed by legislation is truly discriminatory will be, where it exists, pre-existing disadvantage, vulnerability, stereotyping, or prejudice experienced by the individual or group. ... These factors are relevant because, to the extent that the claimant is already subject to unfair circumstances or treatment in society by virtue of personal characteristics or circumstances, persons like him or her have often not been given equal concern, respect, and consideration. It is logical to conclude that, in most cases, further differential treatment will contribute to the perpetuation or promotion of their unfair social characterization, and will have a more severe impact upon them, since they are already vulnerable.[221]

Whereas Law focused on the impairment of human dignity, Kapp emphasized discrimination, which it defined as the perpetuation of disadvantage or stereotyping.[222] Under both of these related approaches, it is clear that First Nations persons living on reserves meet the section 15 test. There can be no doubt that Aboriginal Canadians have a long and dismal history of being discriminated against in Canada. The Royal Commission on Aboriginal Peoples described countless examples that demonstrate pre-existing disadvantage, vulnerability, stereotyping, or prejudice, ranging from residential schools and denial of the right to vote, to violations of treaty commitments and governments’ ongoing failure to recognize or respect Aboriginal title and rights.[223] In Corbiere, Lovelace, and Kapp, the Supreme Court of Canada confirmed that First Nations people suffer historical and ongoing disadvantages vis-à-vis the general Canadian population:

The disadvantage of aboriginal people is indisputable. In Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203, the Court noted “the legacy of stereotyping and prejudice against Aboriginal peoples” (para. 66). The Court has also acknowledged that “Aboriginal peoples experience high rates of unemployment and poverty, and face serious disadvantages in the areas of education, health and housing”.[224] 

Lovelace, at para. 69

The Supreme Court has repeatedly stated that “the essence of differential treatment cannot be fully appreciated without evaluating the economic, constitutional and societal significance of the interest adversely affected by the program in question.”[225] In Egan v. Canada, the Court held that, all other factors being equal, “the more severe and localized the economic consequences on the affected group, the more likely that the distinction responsible for these consequences is discriminatory within the meaning of s. 15 of the Charter.”[226] Safe drinking water must be recognized as a human right not only because it is fundamental to health and quality of life, but also because it is a critical aspect of people’s dignity. The lack of access to safe drinking water that is being experienced by First Nations communities has several adverse health, social, and economic effects. Residents of these communities experience higher rates of waterborne disease[227] and increased risks of diseases such as H1N1 (the swine flu).[228] The lack of access to safe drinking water strikes a blow to human dignity, and may contribute to the significantly higher rates of substance abuse and suicide experienced by some of these communities.[229] The adverse economic effects include both the direct costs of the foregoing problems and the opportunity costs associated with living in conditions that make it difficult to attract or retain skilled workers or businesses.

In human rights jurisprudence, it is a widely accepted principle that failing to take positive actions to provide basic public services to disadvantaged groups can constitute discrimination.[230] The Supreme Court has consistently held that “once the state does provide a benefit, it is obliged to do so in a non-discriminatory manner.”[231] In Eldridge, the Supreme Court ruled that section 15 may require governments to take special measures to ensure that disadvantaged groups are able to benefit equally from government services, for example by extending the scope of a benefit to a previously excluded group.[232]Eldridge was a case of discrimination in which the adverse effects suffered by deaf persons were caused by the government’s failure to ensure that deaf persons benefited equally from an essential service offered to everyone. By analogy, it is incumbent upon the federal government to ensure that in the context of access to safe drinking water, First Nations persons living on reserve (members of a disadvantaged group) are provided with the same essential services as the rest of the population. Although the various programs, initiatives, and investments described earlier represent useful steps in the right direction, they are flawed in that they do not direct adequate resources to communities with the most urgent needs. Whether a failure to legislate could be challenged under the Charter was mentioned as a possibility in Vriend.[233]

C. Justification Under Section 1 of the Charter

Section 1 of the Charter reads:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.[234]

As the terms of the section make clear, no Charter protection is absolute. In the presence of a section 15 violation, the courts therefore undertake a separate section 1 evaluation to determine whether the infringement nevertheless constitutes a reasonable limit on the right to equality. The government bears the burden of establishing that any Charter breach is justified.[235] The governing approach to the section 1 analysis, detailed by the Supreme Court of Canada in Oakes, involves a two step process.[236] First, the objective of the legislation or government action must be shown to be sufficiently “pressing and substantial” to warrant overriding a Charter right.[237] Second, the means adopted to attain that objective must be reasonable and demonstrably justified.[238] In order to satisfy the second requirement, three criteria must be satisfied: (1) the rights violation must be rationally connected to the aim of the legislation; (2) the impugned provision must minimally impair the Charter guarantee; and (3) there must be a proportionality between the effect of the measure and its objective such that the attainment of the legislative goal is not outweighed by the abridgement of the right.[239]

Justification of conduct deemed discriminatory under section 15 “is difficult, because the finding of an impairment of human dignity will involve much of the same inquiry as that required by s. 1.”[240] Given the extensive adverse effects of the failure to provide safe drinking water to First Nations people living on reserves (stemming from inadequate resources and the lack of a regulatory framework), the government would be hard pressed to meet the burden of justification. There is no apparent “pressing and substantial” objective, nor is there minimal impairment of the equality guarantee or proportionality between the government objective and the infringement of the right.

V. The Federal and Provincial Governments’ Obligation to Provide Essential Public Services of Reasonable Quality to all Canadians (Section 36 of the Constitution Act, 1982)

A little-known section of the Constitution commits the federal and provincial governments to providing “essential public services of reasonable quality to all Canadians.” Section 36, which falls under Part III: Equalization and Regional Disparities, reads:

  1. Without altering the legislative authority of Parliament or of the provincial legislatures, or the rights of any of them with respect to the exercise of their legislative authority, Parliament and the legislatures, together with the government of Canada and the provincial governments, are committed to

    1. promoting equal opportunities for the well-being of Canadians;

    2. furthering economic development to reduce disparity in opportunities; and

    3. providing essential public services of reasonable quality to all Canadians.

  2. Parliament and the government of Canada are committed to the principle of making equalization payments to ensure that provincial governments have sufficient revenues to provide reasonably comparable levels of public services at reasonably comparable levels of taxation.[241]

There has been little judicial consideration of section 36 and only a modest academic debate about the potential consequences of the provision. The Manitoba, British Columbia, and Nova Scotia Courts of Appeal have indicated that section 36 may be justiciable in certain circumstances.[242] In Manitoba Keewatinowi Okimakanak Inc. v. Manitoba Hydro-Electric Board, Chief Justice Scott of the Manitoba Court of Appeal observed: “I am satisfied that in the general sense a reasonable argument might be advanced that the section could possibly have been intended to create enforceable rights.”[243] At the British Columbia Supreme Court, Chief Justice Brenner held that section 36 of the Constitution “cannot form the basis of a claim since it only contains a statement of ‘commitment’.”[244] The British Columbia Court of Appeal disagreed, reiterating Chief Justice Scott’s comment in Manitoba Keewatinowi Okimakanak that the section could create enforceable rights, but deciding that the Canadian Bar Association’s statement of claim failed to offer the “[m]aterial facts [that] must be pleaded to create an informed environment for consideration of that question.”[245]

In the Nova Scotia case, the Cape Breton Regional Municipality (CBRM) argued that section 36 is a legally enforceable constitutional commitment on the part of the federal and provincial governments, and that it was violated by the inadequate provision of funding to Cape Breton.[246] The Nova Scotia Court of Appeal (NSCA) ruled that the only parties capable of litigating a case based on section 36 are the provincial and federal governments themselves, based on the dubious premise that section 36 is akin to a contractual agreement.[247]

One of the key issues regarding section 36 is whether it represents justiciable commitments or a suite of unenforceable objectives. The word “commit” and its French equivalent “s’engager” are both subject to several definitions. The Canadian Oxford Dictionary identifies two options: “having a strong dedication to a cause or belief” or “obliged (to take a certain action).”[248] All three courts of appeal agreed that “by its plain meaning ‘committed’ could, in appropriate circumstances, connote a justiciable obligation.”[249] However, the NSCA held that a number of factors weighed against finding that the CBRM could rely on section 36 as an enforceable cause of action, including: the vague language of the three commitments in section 36(1); the absence of the word “right” in the title of the section; the lack of identified beneficiaries; and the opening phrase reiterating the legislative authority of Parliament and the provincial legislatures.[250] With respect, none of these arguments are convincing. It is a reality of constitutional drafting that provisions are vague, with details provided through legislation, regulation, and judicial interpretation. The language of section 36 is neither more nor less vague than other provisions of the Constitution, such as the “right to life, liberty and security of the person”[251] or “existing aboriginal and treaty rights.”[252] It seems incorrect to suggest there are no identified beneficiaries in light of section 36(1)(c)’s reference to “all Canadians”.[253] It is true that the location and wording of section 36 are distinct from the individual rights set forth in the Charter. Nevertheless, section 36(1)(c) plainly articulates the commitment of federal and provincial governments to “providing essential public services of reasonable quality to all Canadians.”[254]

There are several arguments in favour of finding that section 36(1)(c) imposes a justiciable duty on governments. Canada has stated to the UN Committee on Economic, Social and Cultural Rights that the Constitution guarantees social and economic rights in Canada.[255] Canada also stated to the UN Human Rights Committee that the right to life in the International Covenant on Economic, Social and Cultural Rights may impose obligations on governments to provide minimum basic necessities for “health or social well being”.[256] Section 36(1)(a) and (b) of the Constitution refers to “promoting equal opportunities” and “furthering economic development”, both of which suggest a progressive quality of improvement over time.[257] In contrast, section 36(1)(c) refers to “providing” essential services, which has a more immediate connotation and represents a more substantive obligation.[258] Section 36(1)(c) plainly provides an unqualified commitment, not a goal or objective.

The French version of section 36 uses the verb engager, which lends credence to the interpretation that the commitment is closer to an absolute, binding duty or responsibility.[259] The very fact that the commitment is constitutionalized, rather than contained in a federal-provincial agreement or memorandum of understanding, lends it further legal potency.[260] If governments fail to fulfill this responsibility, section 36 appears to be as justiciable as any other provision of the Constitution Act, 1982 as long as a claim has “a sufficient legal component.”[261] As Nader argues: “[u]nder this provision, it is not enough for governments to ‘work towards’ providing essential public services. Governments must provide them.”[262] Sossin finds Nader’s argument, that section 36 is a justiciable provision that could be relied upon to seek declaratory relief in the event that governments fail to provide Canadians with essential public services, persuasive.[263]

Is access to safe drinking water an “essential public service”? Surely the answer must be yes, by any reasonable person’s standard. As mentioned earlier, scientists, health experts, international bodies, and governments all describe access to safe drinking water as being essential to life. Canadian laws include the provision of drinking water as an essential service that must be maintained even when unions exercise their constitutionally protected right to strike.[264]

First Nations individuals are Canadian citizens, and they are being deprived of an essential public service of reasonable quality, a violation of section 36 of the Constitution. The phrase “of reasonable quality” provides governments with discretion in terms of the method of delivering essential services. It is comparable to the flexibility embodied in section 1 of the Charter, in that it ensures that a claim to essential public services is not a right to a specific form of delivery or fulfillment of those services. But it cannot possibly be argued that requiring residents to collect water in a bucket from a lake or a standpipe, or offering 200 outhouses to the residents of Pikangikum, is consistent with “providing essential public services of reasonable quality.”[265]

VI. International Law and the Human Right to Safe Drinking Water

There are a number of reasons why it is important to recognize that access to safe drinking water is a legally protected human right, rather than a commodity or a service provided on a charitable basis.[266] Recognition that access to safe drinking water is a human right will: help prioritize and accelerate access to safe drinking water for those who lack it, and thereby decrease inequality; ensure that all Canadian citizens are accorded essential public services of reasonable quality; empower citizens to take part in decision making processes (a procedural aspect that is enhanced by the substantive right); prevent discrimination or neglect of underprivileged or marginalized communities; and provide a means of holding governments accountable.[267] Many experts agree that legal recognition of the human right to water is a significant step toward realization of access to safe drinking water on the ground.[268]

Broadly speaking, international obligations are a “relevant and persuasive” factor in Charter interpretation.[269] More specifically, it is well established that international human rights law exerts “a critical influence on the interpretation of the scope of the rights included in the Charter.”[270] The Supreme Court has held that it is particularly important to view sections 7 and 15 through the lens of international human rights because these rights “embody the notion of respect of human dignity and integrity.”[271]

It is increasingly apparent that Canada has an obligation under international law to recognize the right to water, despite Canada’s inconsistent position toward recognition of this right. Canada has ratified the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)[272] and the Convention on the Rights of the Child (CRC),[273] both of which recognize human rights obligations related to water. Article 14(h) of the CEDAW provides for the right “[t]o enjoy adequate living conditions, particularly in relation to ... water supply.”[274] Article 24(2)(c) of the CRC sets forth signatories’ obligation to “combat disease and malnutrition” by ensuring the provision of “adequate nutritious foods and clean drinking-water.”[275] It is an established principle of international law that all human rights are universal, indivisible, interrelated, and interdependent.[276]

The right to water is not explicitly included in the Universal Declaration of Human Rights (UDHR)[277] or in the International Covenant on Economic, Social and Cultural Rights (ICESCR).[278] However, implicit rights to water and sanitation are arguably included in section 25 of the UDHR (the right to a standard of living adequate for the health and well-being of himself and of his family), and sections 11 (the right to an adequate standard of living) and 12 (the right to health) of the ICESCR.[279] The UN Committee on Economic, Social and Cultural Rights published General Comment No. 15 on the right to water in 2002, providing guidelines for the interpretation and implementation of the right.[280]General Comment No. 15 affirms that “the human right to water is indispensable for leading a life in human dignity. It is a prerequisite for the realization of other human rights,” and states that “[t]he human right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses.”[281]General Comment No. 15 also identifies a suite of core obligations related to the right to water that are to be implemented immediately:

  1. To ensure access to the minimum essential amount of water, that is sufficient and safe for personal and domestic uses to prevent disease;

  2. To ensure the right of access to water and water facilities and services on a non-discriminatory basis, especially for disadvantaged or marginalized groups;

  3. To ensure physical access to water facilities or services that provide sufficient, safe and regular water; that have a sufficient number of water outlets to avoid prohibitive waiting times; and that are at a reasonable distance from the household;

  4. To ensure personal security is not threatened when having to physically access ... water;

  5. To ensure equitable distribution of all available water facilities and services;

  6. To adopt and implement a national water strategy and plan of action addressing the whole population ... ;

  7. To monitor the extent of the realization, or the non-realization, of the right to water;

  8. To adopt relatively low-cost targeted water programmes to protect vulnerable and marginalized groups; [and]

  9. To take measures to prevent, treat and control diseases linked to water, in particular ensuring access to adequate sanitation.[282]

An earlier General Comment published by the UN Committee on Economic, Social and Cultural Rights confirmed that governments have a core obligation to ensure the provision of, at the very least, “minimum essential levels” of each of the rights enunciated in the International Covenant.[283] In 2007, the UN High Commissioner for Human Rights concluded:

[I]t is now time to consider access to safe drinking water and sanitation as a human right, defined as the right to equal and non-discriminatory access to a sufficient amount of safe drinking water for personal and domestic uses—drinking, personal sanitation, washing of clothes, food preparation and personal and household hygiene—to sustain life and health.[284]

In 2010, the UN General Assembly passed a resolution recognizing the right to water,[285] with 124 nations voting in favour, none against, and 42 nations abstaining for various reasons.[286] Canada was among the nations that abstained.[287] Later in 2010, the UN Human Rights Council affirmed, in a draft resolution, that “the human right to safe drinking water and sanitation is derived from the right to an adequate standard of living and is inextricably related to the right to the highest attainable standard of physical and mental health, as well as the right to life and human dignity.”[288] The resolution on the right to water has already had a demonstrable effect. In January 2011, the Botswana Court of Appeal relied on the resolution in ruling that the constitutional rights of the Bushmen of the Kalahari were being violated by the government’s refusal to allow them to access a water source within a wildlife reserve where they resided.[289]

Canada has voted against or abstained from recognizing the right to water on several occasions in recent years.[290] At the UN Commission on Human Rights meeting in 2002, Canada was the only country to vote against a resolution recognizing the right to water and sanitation.[291] Canada also played a key role in blocking a motion by Germany and Spain to officially recognize water as a human right at the UN Human Rights Council in March 2008.[292] According to experts, “Canada is internationally viewed as the primary State opposed to the right to water and sanitation.”[293]

At the national level, the right to water is also gaining progressively broader legal recognition.[294] The UN High Commissioner for Human Rights observed in 2007 that “an increasing number of States are recognizing safe drinking water as a human right in their constitutions, as well as national legislation, while national courts are enforcing it as a justiciable right.”[295] Constitutional recognition of the right to water is gaining traction around the world. The experiences of other nations illustrate two distinct approaches to constitutional protection of the right to water: explicit incorporation of the right to water, and implicit incorporation of the right to water into national constitutions. In South Africa, the right to water is explicitly articulated in section 27 of the nation’s constitution and is enforceable through the courts:

27(1) Everyone has the right to have access to ...

(b) sufficient food and water ...

(2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights.[296]

In South Africa, constitutional recognition of the right to water has been translated into legislation, policy, and a major investment in infrastructure; this is credited with spurring the extension of potable water to ten million South Africans in ten years.[297] Nelson Mandela describes the extension of clean drinking water to millions of South Africans (predominantly black, and living in poverty) since the mid 1990s as “amongst the most important achievements of democracy in our country.”[298] At least sixteen other nations have constitutional provisions specifically requiring the protection and/or provision of clean water, and such provisions are increasingly common in new constitutions, as demonstrated by Kenya and the Dominican Republic in 2010.[299] There are also ninety nations whose constitutions now explicitly recognize the right to live in a healthy environment.[300] The right to clean water is regarded as an integral element of this broader right.[301]

In nations where there is no explicit constitutional right to water—including Argentina,[302] Belgium,[303] Brazil,[304] Costa Rica,[305] Colombia,[306] Indonesia,[307] India,[308] Israel,[309] and Pakistan[310]—courts have held that the right to water is an implicit, essential, and enforceable constitutional right, usually derived from the right to life. These courts have generally based their decisions on the fact that access to safe drinking water is a fundamental prerequisite to the enjoyment of other human rights. As observed in a recent Harvard Law Review note, “[a]lthough justiciability alone is not a panacea, it is a step in the direction of ensuring access to sufficient water.”[311] Given that Canada’s Constitution is silent on the matter of the right to water and sanitation, but includes the right to life, the jurisprudence from these countries is directly relevant.

VII. Constitutional Remedies

“[A] right ... is only as meaningful as the remedy provided for its breach.”[312] There is a range of potential remedies available for a breach of the Charter (sections 7 and 15) or the Constitution (section 36).[313] For Charter violations, section 24(1) of the Charter authorizes remedies that are “appropriate and just in the circumstances,” and the Supreme Court emphasizes that that courts must “issue effective, responsive remedies that guarantee full and meaningful protection of Charter rights and freedoms.”[314] As Professor Roach observes in the context of socio-economic rights, such as the right to water, it is a challenge “to strike the right balance between individual and systemic relief, remedies that attempt to repair the harms of past violations and remedies that aim to achieve compliance with the constitution in the future.”[315]

Violations of the right to life, liberty and security of the person, and of the right to equality would most likely result in a declaration that the federal government’s actions are contrary to the Charter.[316] A declaration would not generally specify positive actions to be taken by a government, but would allow the government to exercise its discretion regarding the means employed to comply with the law. The Supreme Court has repeatedly articulated its preference for declarations rather than injunctive relief “because there are myriad options available to the government that may rectify the unconstitutionality of the present system.”[317] Declarations are also “more flexible, require less supervision, and are more deferential to the other branches of government.”[318] On the other hand, declarations may also be vague and inadequate for ensuring compliance.[319]

Because section 24(1) of the Charter gives the courts broad remedial powers, more ambitious and creative remedies are also possible.[320] The Supreme Court has confirmed that courts have the authority to supervise compliance with a mandatory remedial order (that is, a mandatory injunction) under section 24(1).[321] For example, in Doucet-Boudreau, a judge ordered the Nova Scotia government to build French language schools in five districts and to develop curricula for these schools by specified dates, in order to comply with the minority language educational rights in section 23 of the Charter.[322] The court subsequently held periodic hearings to review the government’s progress on construction and curriculum development.[323] A similar order, requiring the federal government to build adequate drinking water and wastewater treatment infrastructure on a specific reserve by a specified date, would appear to be an equally appropriate and just remedy in the context of a Charter violation related to non-provision of safe drinking water on the specific reserve. Professors Roach and Budlender argue that mandatory relief and supervisory jurisdiction are more likely to be necessary in cases “where governments are incompetent or intransigent with respect to the implementation of rights.”[324] The federal government’s longstanding and ongoing failure to provide access to safe drinking water in specific First Nations communities reflects both governmental incompetence and intransigence. In Little Sisters Book and Art Emporium v. Canada (Minister of Justice), Justice Iacobucci held that declarations can be inadequate, and place an unfair burden on litigants in cases of “grave systemic problems” where the government has proven itself “unworthy of trust”.[325] Again, these comments are germane to the plight of First Nations communities that lack safe drinking water, suggesting that mandatory remedial orders would be the preferred remedy.

Finally, based on the recent Supreme Court decision in Vancouver (City) v. Ward, there may also be damages owing as a result of Charter violations flowing from the federal government’s long-term failure to provide adequate drinking water to certain First Nations communities.[326] The availability and appropriateness of damages will turn on the specific facts of an individual case.

Remedies available for a violation of section 36 of the Constitution include declarations (analogous to those described above for Charter violations), as well as remedies pursuant to section 52 of the Constitution.[327] The Supreme Court has held that section 52 allows courts to strike down legislation, sever portions of legislation, or read provisions into under-inclusive legislation.[328]

From a practical perspective, in order to remedy the violation of the constitutional rights of First Nations persons living on reserves without access to safe drinking water, the federal government needs to: immediately implement an effective and equitable interim system to provide safe water to reserve residents; accelerate the investment of adequate resources to ensure that drinking water infrastructure on reserves reaches a reasonable quality, comparable to that available in comparable non-reserve communities; work with First Nations to design a mutually acceptable regulatory framework governing water and wastewater on reserves; and take steps with First Nations and, where required, provincial and territorial governments, to improve the protection of drinking water sources for reserves and restore water sources that have been polluted or otherwise degraded. Responsive and effective judicial remedies should aim to increase the likelihood that these steps will be taken in a timely fashion, without dictating the specific implementation details. As in the Victoria homelessness case, achieving compliance with the Charter may require investing public money and/or taking legislative action.[329] 


All Canadians have the right to safe drinking water, an essential service that is vital to life, health, and human dignity. It appears likely, based on the analysis presented in this article, that the constitutional rights of the residents of Pikangikum in Ontario, Kitcisakik in Quebec, St. Theresa Point, Wasagamack, Red Sucker Lake and Garden Hill in Manitoba, and Little Buffalo in Alberta are being violated by the federal government’s failure to provide safe water. The consequences include serious physical and psychological harm, ranging from waterborne disease to death, and ongoing discrimination vis-à-vis the broader Canadian population for whom safe and abundant drinking water is often taken for granted. This constitutes an ongoing violation of sections 7 and 15 of the Canadian Charter of Rights and Freedoms, guaranteeing the right to life, liberty and security of the person, and the right to equality, respectively, and section 36(1)(c) of the Constitution Act, 1982, committing governments to providing essential public services of reasonable quality to all Canadians.

These constitutional transgressions stem from the federal government’s failure to: provide adequate resources for drinking water infrastructure; prioritize the needs of communities in the most dire and dangerous circumstances; and enact and enforce a regulatory framework to ensure safe drinking water for First Nations communities. These failures have persisted for decades despite a series of pledges and promises. Thirty-four years have passed since the federal government committed to ensuring that drinking water infrastructure for First Nations would meet commonly accepted health and safety standards, and would be similar to infrastructure available in comparable communities. Twenty-nine years have passed since that commitment was entrenched in Canada’s Constitution. Patience may no longer be a palatable option for the residents of Pikangikum, Kitcisakik, St. Theresa Point, Wasagamack, Red Sucker Lake, Garden Hill, Little Buffalo, and other reserves facing similar problems.

Turning to the courts to resolve complex issues such as the provision of safe drinking water is not an optimal approach, but it is an approach that appears necessary in the current circumstances. Under the current system, the federal government evades responsibility and cannot be held accountable, except possibly through litigation. Ensuring that the right to safe drinking water is a justiciable issue enables individuals to seek remedies and to hold their governments accountable for providing all Canadians with the essential service of access to drinking water, and for thus fulfilling this fundamental right.[330] In Chaoulli, Justice Deschamps said of public health care waiting times: “it seems that governments have lost sight of the urgency of taking concrete action. The courts are therefore the last line of defence for citizens.”[331]

Canada’s Constitution is often described as a living tree, which the Supreme Court of Canada affirms “must be capable of growth to meet the future.”[332] Yet the Supreme Court has been heavily criticized for its timid approach to recognizing governments’ positive obligations under sections 7 and 15 of the Charter with respect to fulfilling social and economic rights.[333] In the words of Justice Arbour:

Whichever avenue Canada takes to ensure full protection of economic and social rights, whether through a constitutional amendment, a more progressive interpretation of the current Charter text, a modification of other (federal and provincial) human rights instruments, or otherwise, this is the next step which must be taken if Canada wants to ensure that the most disadvantaged members of society will truly benefit from the immense promise of the Charter. As one author put it five years ago, on the 20th anniversary of the Charter—and we believe it more acutely now—social and economic rights are the “next frontier” of Charter rights protection.[334]

Recognizing the right to water as implicit in the Canadian Constitution would provide accountability, offer remedies, and ensure non-discrimination. If Canada’s Constitution, including the Charter of Rights and Freedoms, cannot be extended to provide relief to individuals deprived of their human right to water, a deprivation that causes adverse health effects, violates human dignity, and flouts the principle of environmental justice, then the Constitution is not a living tree but is merely dead wood. As the Standing Senate Committee on Aboriginal Peoples concluded: “First Nations people in this country have a right to expect, as do all Canadians, that their drinking water is safe.”[335]