Clean drinking water IS a human right
October 8, 2024 6:34 AM Subscribe
Canada has no legal obligation to provide First Nations with clean drinking water, lawyers say. (slCBC)
Like, this is next level villainy and if PP is our next PM, it will be more of the same.
posted by Kitteh at 6:54 AM on October 8 [10 favorites]
posted by Kitteh at 6:54 AM on October 8 [10 favorites]
i'm tired of these fuckign liberals, so tired, who are pretty much the same as teh human centipede party except they lie and say they don't have their mouths sewn to the asses of oligarchs, but they do. i almost want some honesty, sure, let's let the conservatives ruin things some more, at least they're up front about it, not gaslighting us all the fucking time. what to do what to do.
posted by seanmpuckett at 7:03 AM on October 8 [9 favorites]
posted by seanmpuckett at 7:03 AM on October 8 [9 favorites]
This is really gross.
The challenges of drinking water are lots — my friend in Cambridge Bay has a tank inside her home that the water trucks fill up, because permafrost and pipe freezing - but we just plain have to meet them.
posted by warriorqueen at 7:24 AM on October 8 [11 favorites]
The challenges of drinking water are lots — my friend in Cambridge Bay has a tank inside her home that the water trucks fill up, because permafrost and pipe freezing - but we just plain have to meet them.
posted by warriorqueen at 7:24 AM on October 8 [11 favorites]
seanmpuckett or you could vote NDP.
Lifting all long-term boil water advisories on reserves by 2021 was one of Prime Minister Justin Trudeau's promises in 2015. There were 105 long-term drinking water advisories in November 2015. Thirty-three advisories were in place as of Sept. 28, according to government data.
Honestly there has been a lot of progress here, which you'd think the government would be emphasizing instead of sending out the lawyers to weasel-word it. Maybe a timeline to get the last 33 advisories lifted?
posted by Lawn Beaver at 7:38 AM on October 8 [10 favorites]
Lifting all long-term boil water advisories on reserves by 2021 was one of Prime Minister Justin Trudeau's promises in 2015. There were 105 long-term drinking water advisories in November 2015. Thirty-three advisories were in place as of Sept. 28, according to government data.
Honestly there has been a lot of progress here, which you'd think the government would be emphasizing instead of sending out the lawyers to weasel-word it. Maybe a timeline to get the last 33 advisories lifted?
posted by Lawn Beaver at 7:38 AM on October 8 [10 favorites]
why assume i don't
posted by seanmpuckett at 7:40 AM on October 8 [1 favorite]
posted by seanmpuckett at 7:40 AM on October 8 [1 favorite]
Because of what you wrote?
posted by Acari at 7:46 AM on October 8 [2 favorites]
posted by Acari at 7:46 AM on October 8 [2 favorites]
I don't think saying "so sick of the liberals, at least the conservatives are more upfront in their awfulness" is equivalent to declaring support for either of those parties.
posted by joelhunt at 7:52 AM on October 8 [10 favorites]
posted by joelhunt at 7:52 AM on October 8 [10 favorites]
The only time I've ever regretted voting was for Trudeau in 2015. Literally every reason I voted for him instead of the NDP turned out to be a lie.
I only prefer them in power over the conservatives the way I'd prefer getting stabbed over being mauled by a bear.
posted by Reyturner at 7:53 AM on October 8 [14 favorites]
I only prefer them in power over the conservatives the way I'd prefer getting stabbed over being mauled by a bear.
posted by Reyturner at 7:53 AM on October 8 [14 favorites]
Wow, this is egregiously bad. You can't provide the people whose land you *fucking stole* with clean drinking water?
Time to give that land back, and they should demand Toronto be ceded to them for good measure.
WTF Canada, really?
posted by Sphinx at 7:58 AM on October 8 [15 favorites]
Time to give that land back, and they should demand Toronto be ceded to them for good measure.
WTF Canada, really?
posted by Sphinx at 7:58 AM on October 8 [15 favorites]
"That's the defence the federal government is expected to mount in Ottawa this week in Federal Court"
... so this hasn't actually happened yet?
posted by mhoye at 8:03 AM on October 8 [3 favorites]
... so this hasn't actually happened yet?
posted by mhoye at 8:03 AM on October 8 [3 favorites]
Is their water quality degraded by human and/or animal sewage, or fertilizer run off, or toxic chemicals from industry? It's likely all three, but I mean proportionally, well maybe not the same for all tribes.
At a global scale, "the most prevalent water quality problem is eutrophication" aka fertilizer, but maybe not in Canada. We should expect water quality continues declining globally from increases in population, agriculture, and industry.
posted by jeffburdges at 8:19 AM on October 8 [1 favorite]
At a global scale, "the most prevalent water quality problem is eutrophication" aka fertilizer, but maybe not in Canada. We should expect water quality continues declining globally from increases in population, agriculture, and industry.
posted by jeffburdges at 8:19 AM on October 8 [1 favorite]
Comparative constitutional law was a long time ago, but if my memory serves there's a pretty long history of Canadian jurisprudence that says that the government does not have any positive obligations towards people, as a general rule. The one time a supreme court judge said the opposite in a dissent they got her off the bench.
posted by LegallyBread at 8:39 AM on October 8 [1 favorite]
posted by LegallyBread at 8:39 AM on October 8 [1 favorite]
Boil water advisories in Canada are generally due to a lack of infrastructure which is incredibly difficult and expensive to build and maintain in many small Canadian communities.
https://www.canada.ca/en/environment-climate-change/services/environmental-indicators/boil-water-advisories.html
Heck I live just a few hours from Vancouver and our community has massive water problems that the community can’t afford to fix and the province and feds won’t help with.
posted by congen at 8:39 AM on October 8 [4 favorites]
https://www.canada.ca/en/environment-climate-change/services/environmental-indicators/boil-water-advisories.html
Heck I live just a few hours from Vancouver and our community has massive water problems that the community can’t afford to fix and the province and feds won’t help with.
posted by congen at 8:39 AM on October 8 [4 favorites]
Back story
“Shamattawa First Nation's boil water advisory stems from an issue that peaks during the spring, when the ice clogs the treatment plant's intake line, resulting in brown, contaminated water pouring from people's taps. “
posted by Ideefixe at 8:53 AM on October 8 [3 favorites]
“Shamattawa First Nation's boil water advisory stems from an issue that peaks during the spring, when the ice clogs the treatment plant's intake line, resulting in brown, contaminated water pouring from people's taps. “
posted by Ideefixe at 8:53 AM on October 8 [3 favorites]
Somebody help me if I'm reading this wrong. Does the government's case rest on "We don't owe the First Nations clean drinking water MORE than we owe it to all Canadians?" Which seems shitty to me from a basic, "You broke, it you buy it" principle of how to treat the original inhabitants. Seems like you'd owe them MORE.
And is then the case of the Nations to show that their water systems are demonstrably much worse than other small communities? Six year long boil notices sure seems like as bad as it gets...I hope.
posted by Abehammerb Lincoln at 9:47 AM on October 8
And is then the case of the Nations to show that their water systems are demonstrably much worse than other small communities? Six year long boil notices sure seems like as bad as it gets...I hope.
posted by Abehammerb Lincoln at 9:47 AM on October 8
Heck I live just a few hours from Vancouver and our community has massive water problems that the community can’t afford to fix and the province and feds won’t help with.
similar to me for more than few years. But I think there's a huge difference in terms of govt obligation between a bunch of people deciding they want to live somewhere and (as is the case with many of our First Nation's communities, please correct me if I'm wrong) people who who have been placed somewhere.
posted by philip-random at 9:52 AM on October 8 [2 favorites]
similar to me for more than few years. But I think there's a huge difference in terms of govt obligation between a bunch of people deciding they want to live somewhere and (as is the case with many of our First Nation's communities, please correct me if I'm wrong) people who who have been placed somewhere.
posted by philip-random at 9:52 AM on October 8 [2 favorites]
The Crown owes the first nations governance for the most part, and water access is part of that. It's not an enumerated right for the most part, the way education is.
There is no question that this is a government responsibility, but there is a question if this is a fundamental right. In my imperfect understanding that comes down to whether the government might have to pay reparations for violating a treaty right (the way they have had to for education) or whether it is simply something they have to keep trying to fix. It's the question of reparations etc.. being owned that's at issue with that designation, as I understand it.
posted by bonehead at 9:53 AM on October 8 [3 favorites]
There is no question that this is a government responsibility, but there is a question if this is a fundamental right. In my imperfect understanding that comes down to whether the government might have to pay reparations for violating a treaty right (the way they have had to for education) or whether it is simply something they have to keep trying to fix. It's the question of reparations etc.. being owned that's at issue with that designation, as I understand it.
posted by bonehead at 9:53 AM on October 8 [3 favorites]
Six year long boil notices sure seems like as bad as it gets...I hope.
Neskantaga First Nation has been under a boil water advisory for 29 years.
posted by Gerald Bostock at 10:45 AM on October 8 [8 favorites]
Neskantaga First Nation has been under a boil water advisory for 29 years.
posted by Gerald Bostock at 10:45 AM on October 8 [8 favorites]
The crisis of lack of safe, reliable drinking water on reserve is obviously terrible and a national embarrassment, but there’s more legal nuance to what’s going on in this lawsuit than the article presents.
There is no clear legal right to safe drinking water for anyone in Canada. There’s no explicit right to safe drinking water in the Charter (or any other environmental rights in the Charter), or in other parts of the Constitution, and attempts over the last four decades to read environmental rights into various sections of the Charter (usually section 7) have been unsuccessful. This paper discusses some of the history of trying to locate environmental rights in section 7, if you’re interested in some of the history.
Legal rights can also be created through non-constitutional legislation, but as far as I know, no federal or provincial legislation creates a right to safe drinking water. Provinces and territories regulate drinking water safety and quality through legislation, but to the best of my knowledge, no legislation of that sort creates a right to safe drinking water. They create enforceable standards around water quality, testing protocols, etc, but that’s different than a baseline and legally enforceable right of citizens to safe drinking water that could be enforced against their governments.
So if your municipality’s drinking water treatment system suffered a catastrophic failure and you were put onto a long-term boil water advisory, you would not have a clear, legally enforceable right to safe drinking water that you could enforce against your municipal/provincial government – although you certainly might have other legal remedies (e.g. a negligence lawsuit). Although I think it would be politically unpalatable to allow long-term BWAs to persist in off-reserve communities, and this difference in what’s politically and socially palatable also factors into what we see on reserves.
Since this particular class action we’re discussing was brought in the Federal Court, some of the court filings can be viewed online (search under ‘party name’ for “Shamattawa”). Canada’s materials don’t seem to be available online, but some the plaintiffs’ materials are. In reading those, they are making the argument that Canada is required to ensure safe drinking water for on-reserve communities based on three legal arguments:
- Canada’s unique legal relationship with First Nations peoples, described legally as a sui generis relationship and a fiduciary duty on Canada’s part, create a legal responsibility to First Nations different from that Canada owes other citizens. They argue that this well-recognised unique legal relationship should be interpret to mean the federal government is required to ensure safe drinking water on reserve;
- An argument based on this being a breach of the common law duty of care (based on the level of control the federal Crown has historically exercised over reserves and Indigenous peoples more generally);
- A Charter argument based on section 7 (see above), section 15 (equality rights), and section 2(a) (freedom of conscience and religion), as well as on section 36(1)(c) of the Constitution Act, 1982 (places a commitment on the federal government to provide essential public services of reasonable quality to all Canadians) that they say creates a constitutional duty on Canada’s part to ensure safe drinking water on reserve.
Without seeing Canada’s materials, I’m not sure how they’ve framed their response but they’d be legally correct to say that, at least under the current state of the law, First Nations don’t have a recognised legal right to safe drinking water on reserve – in fact, no one in Canada currently a clear legal right to safe drinking water. Although certainly that statement coming from the Crown, in respect of First Nations, sounds pretty inflammatory and offensive, at least as presented in this CBC article.
The three arguments being advanced are all fairly legally plausible from what I can see in the materials, but would be novel if successful and aren’t all necessarily slam dunks either and the Charter argument in particular is novel, and the kind of thing that has been consistently rejected by the courts in the past. From a purely legal / advocacy perspective (ie if this wasn’t a case involving Crown-Indigenous relations), I think it’s reasonable to push back on those arguments to some extent. However, from a reconciliation perspective it’s not good, and obviously the media optics of it are terrible.
posted by orchard_tufts at 10:55 AM on October 8 [22 favorites]
There is no clear legal right to safe drinking water for anyone in Canada. There’s no explicit right to safe drinking water in the Charter (or any other environmental rights in the Charter), or in other parts of the Constitution, and attempts over the last four decades to read environmental rights into various sections of the Charter (usually section 7) have been unsuccessful. This paper discusses some of the history of trying to locate environmental rights in section 7, if you’re interested in some of the history.
Legal rights can also be created through non-constitutional legislation, but as far as I know, no federal or provincial legislation creates a right to safe drinking water. Provinces and territories regulate drinking water safety and quality through legislation, but to the best of my knowledge, no legislation of that sort creates a right to safe drinking water. They create enforceable standards around water quality, testing protocols, etc, but that’s different than a baseline and legally enforceable right of citizens to safe drinking water that could be enforced against their governments.
So if your municipality’s drinking water treatment system suffered a catastrophic failure and you were put onto a long-term boil water advisory, you would not have a clear, legally enforceable right to safe drinking water that you could enforce against your municipal/provincial government – although you certainly might have other legal remedies (e.g. a negligence lawsuit). Although I think it would be politically unpalatable to allow long-term BWAs to persist in off-reserve communities, and this difference in what’s politically and socially palatable also factors into what we see on reserves.
Since this particular class action we’re discussing was brought in the Federal Court, some of the court filings can be viewed online (search under ‘party name’ for “Shamattawa”). Canada’s materials don’t seem to be available online, but some the plaintiffs’ materials are. In reading those, they are making the argument that Canada is required to ensure safe drinking water for on-reserve communities based on three legal arguments:
- Canada’s unique legal relationship with First Nations peoples, described legally as a sui generis relationship and a fiduciary duty on Canada’s part, create a legal responsibility to First Nations different from that Canada owes other citizens. They argue that this well-recognised unique legal relationship should be interpret to mean the federal government is required to ensure safe drinking water on reserve;
- An argument based on this being a breach of the common law duty of care (based on the level of control the federal Crown has historically exercised over reserves and Indigenous peoples more generally);
- A Charter argument based on section 7 (see above), section 15 (equality rights), and section 2(a) (freedom of conscience and religion), as well as on section 36(1)(c) of the Constitution Act, 1982 (places a commitment on the federal government to provide essential public services of reasonable quality to all Canadians) that they say creates a constitutional duty on Canada’s part to ensure safe drinking water on reserve.
Without seeing Canada’s materials, I’m not sure how they’ve framed their response but they’d be legally correct to say that, at least under the current state of the law, First Nations don’t have a recognised legal right to safe drinking water on reserve – in fact, no one in Canada currently a clear legal right to safe drinking water. Although certainly that statement coming from the Crown, in respect of First Nations, sounds pretty inflammatory and offensive, at least as presented in this CBC article.
The three arguments being advanced are all fairly legally plausible from what I can see in the materials, but would be novel if successful and aren’t all necessarily slam dunks either and the Charter argument in particular is novel, and the kind of thing that has been consistently rejected by the courts in the past. From a purely legal / advocacy perspective (ie if this wasn’t a case involving Crown-Indigenous relations), I think it’s reasonable to push back on those arguments to some extent. However, from a reconciliation perspective it’s not good, and obviously the media optics of it are terrible.
posted by orchard_tufts at 10:55 AM on October 8 [22 favorites]
If the right to clean water existed I guess you could pitch a tent on some remote island and demand a water treatment plant?
This would mostly be a problem for Canada and Australia which have tiny pockets of population living in ridiculously remote areas, I think I've mentioned before that we had a fly in fly out arrangement for a teacher to take a small plane into a remote community just to teach one student. It was eventually cut due to budget reasons... I still couldn't tell you if that was the right decision. Needs of the many vs the few etc, we routinely make this decision in public healthcare spending.
posted by xdvesper at 11:23 AM on October 8 [4 favorites]
This would mostly be a problem for Canada and Australia which have tiny pockets of population living in ridiculously remote areas, I think I've mentioned before that we had a fly in fly out arrangement for a teacher to take a small plane into a remote community just to teach one student. It was eventually cut due to budget reasons... I still couldn't tell you if that was the right decision. Needs of the many vs the few etc, we routinely make this decision in public healthcare spending.
posted by xdvesper at 11:23 AM on October 8 [4 favorites]
I don't know how it interacts with Canadian domestic law, but access to clean drinking water is a human right recognized in international law. The UN special rapporteur on water and sanitation has said that "long-term drinking water advisories ... are nothing more than flagrant breaches of the human right to safe drinking water."
posted by Gerald Bostock at 12:19 PM on October 8 [2 favorites]
posted by Gerald Bostock at 12:19 PM on October 8 [2 favorites]
let's let the conservatives ruin things some more, at least they're up front about it, not gaslighting us all the fucking time
Erm, you've heard of their leader, Pierre Poilievre, right? Weasel who tries to pass himself off as caring about average people or working class people yet comes from a pretty comfortable background and has been a politician his entire working life? Who changes his views as the wind blows and it suits his climb to power (though, sure, I also find it believable that he's actually racist, xenophobic, sexist, etc. on a personal level)? And we're talking the party who has pushed quite a bit of misinformation and misdirection about such matters as immigration and its impacts, the carbon tax and how it actually works, climate change (they are deniers), whether extractive industries actually create many or economically sustainable jobs in Canadian communities (very few), and that's not getting into their false statements about public health, false claims about transgender people, etc.? Sure, they're open about their bigotry, but they are all about the gaslighting and deliberate misinformation and propaganda on basically all other fronts.
None of which is to defend the current government and their failed promises on stuff like ending boil water advisories on First Nations communities. Just being a pedant about the very inaccurate statement about the Conservatives.
posted by eviemath at 12:32 PM on October 8 [1 favorite]
Erm, you've heard of their leader, Pierre Poilievre, right? Weasel who tries to pass himself off as caring about average people or working class people yet comes from a pretty comfortable background and has been a politician his entire working life? Who changes his views as the wind blows and it suits his climb to power (though, sure, I also find it believable that he's actually racist, xenophobic, sexist, etc. on a personal level)? And we're talking the party who has pushed quite a bit of misinformation and misdirection about such matters as immigration and its impacts, the carbon tax and how it actually works, climate change (they are deniers), whether extractive industries actually create many or economically sustainable jobs in Canadian communities (very few), and that's not getting into their false statements about public health, false claims about transgender people, etc.? Sure, they're open about their bigotry, but they are all about the gaslighting and deliberate misinformation and propaganda on basically all other fronts.
None of which is to defend the current government and their failed promises on stuff like ending boil water advisories on First Nations communities. Just being a pedant about the very inaccurate statement about the Conservatives.
posted by eviemath at 12:32 PM on October 8 [1 favorite]
Absolutely despicable.
> i almost want some honesty, sure, let's let the conservatives ruin things some more, at least they're up front about it, not gaslighting us all the fucking time.
Ok but NO, can you not?! Some people have bigger risks on the table than just being maaaad about hypocrisy. Sorry but how privileged does one need to be to think Poilievre is just gonna be some kind of, what, refreshing burst of honesty?!?!?! This kind of glib superficiality is why white Americans who have the least at risk just find Trump entertaaaining enough to vote for him so he can enact murderous policies that actually kill people.
posted by nouvelle-personne at 12:38 PM on October 8 [4 favorites]
> i almost want some honesty, sure, let's let the conservatives ruin things some more, at least they're up front about it, not gaslighting us all the fucking time.
Ok but NO, can you not?! Some people have bigger risks on the table than just being maaaad about hypocrisy. Sorry but how privileged does one need to be to think Poilievre is just gonna be some kind of, what, refreshing burst of honesty?!?!?! This kind of glib superficiality is why white Americans who have the least at risk just find Trump entertaaaining enough to vote for him so he can enact murderous policies that actually kill people.
posted by nouvelle-personne at 12:38 PM on October 8 [4 favorites]
An academic friend of mine who researches colonialism remarked on Canada's somewhat recent National Indigenous Peoples Day, which he suggests allows the federal government to do performative steps so that it can move on to other issues. This was more of a critique by him on the use of political rituals as a means for distracting the public from areas of integration in quotidian life that require harder work; say, providing ubiquitous access to clean drinking water.
posted by They sucked his brains out! at 2:19 PM on October 8
posted by They sucked his brains out! at 2:19 PM on October 8
A negative right, such as the right not to be arbitrarily detained, is relatively easy to implement. Just spare yourself the bother of persecuting people. An authority can even cut its expenses by implementing that right! But positive rights, such as the right to clean water, are very difficult to implement. First, you need a functional government and a fat budget. Even if a government has that, what if the private sector can supply clean water (the ubiquitous plastic bottles of water)? Our society is built on private markets to supply necessary goods. Consumer protection laws exist to ensure a fair bargain. So when, in that situation, when should a government step in and supply clean water? If a group of people chooses to go live in a remote area with no services, must the government supply them with clean water? These are some of the problems with positive rights.
The Indigenous case is entirely different. It is not so much that everyone has an enforceable right to clean water, it's that the rule 'you broke it, you own it' applies. Indigenous people signed treaties with the Crown on how to share the use of their land. The Crown did and still fails to uphold its end of the bargain. Indigenous people lost the use of their land (including unpolluted water bodies) yet got very little back. Many those communities with boil water advisories are displaced communities. Before there was much settlement in their lands, Indigenous people lived on the best parts of their territory. But many communities were displaced to make way for industrial development. And the communities were often relocated to less desirable, less hospitable sites where, for example, clean water is difficult to source. Any Indigenous person who wanted to move to settled areas with municipal water would have had to endure racism and exclusion. It seems to me that the Indigenous case for clean water isn't based on an abstract right so much as it based on the argument that, since Indigenous people are denied the clean water that they believed they had secured by treaty and are hindered from getting clean water, settler society can supply that water.
Last weekend I was at a local brewery. Some of the Indigenous patrons had big blue water jugs. At the end of karaoke night, they filled up their water jugs from the brewery's water supply. Because good beer needs fresh and clean water.
posted by SnowRottie at 6:42 PM on October 8 [3 favorites]
The Indigenous case is entirely different. It is not so much that everyone has an enforceable right to clean water, it's that the rule 'you broke it, you own it' applies. Indigenous people signed treaties with the Crown on how to share the use of their land. The Crown did and still fails to uphold its end of the bargain. Indigenous people lost the use of their land (including unpolluted water bodies) yet got very little back. Many those communities with boil water advisories are displaced communities. Before there was much settlement in their lands, Indigenous people lived on the best parts of their territory. But many communities were displaced to make way for industrial development. And the communities were often relocated to less desirable, less hospitable sites where, for example, clean water is difficult to source. Any Indigenous person who wanted to move to settled areas with municipal water would have had to endure racism and exclusion. It seems to me that the Indigenous case for clean water isn't based on an abstract right so much as it based on the argument that, since Indigenous people are denied the clean water that they believed they had secured by treaty and are hindered from getting clean water, settler society can supply that water.
Last weekend I was at a local brewery. Some of the Indigenous patrons had big blue water jugs. At the end of karaoke night, they filled up their water jugs from the brewery's water supply. Because good beer needs fresh and clean water.
posted by SnowRottie at 6:42 PM on October 8 [3 favorites]
orchard_tufts, do you know if arguments 1 & 2 have been litigated, and if so if there have been published decisions? I can imagine even if a general right isn't established that there might be leverage in arguments relying on the honour of the Crown, fiduciary duties, etc arising out of specific facts about historical relationships with specific groups. But I am not up to date with this area of law.
posted by lookoutbelow at 10:23 AM on October 9
posted by lookoutbelow at 10:23 AM on October 9
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Jesus tap dancing Christ
posted by mcstayinskool at 6:52 AM on October 8 [21 favorites]