Access to Clean Source Water and Indigenous Rights in Canada

by Mariya Lupandina

Wateris life-giving and essential to a fulfi lling and dignified life. This is obvious and feels silly to write. Yet, many First Nations living on the land where Canada now stands do not have access to a clean, reliable water supply. Arguably, this issue is underreported and seldom makes front-page headlines. I am a Canadian citizen and consider this land my adopted home. As such, I am using the writing of this article to educated myself and to provide others with a concise overview of the problem, its symptoms and causes, and viable solutions. As of February 6th , 2023, according to Indigenous Services Canada, there are still 32 active long-term drinking water advisories (LTDWAs). I support First Nations’ right to self-government, self-determination, and to greater control over their drinking water systems.

Canada is one of the most water-rich nations on Earth, with roughly 20 percent of the world’s freshwater within its borders.1 For most Canadians, safe and reliable water is easily accessible. This is not the case for many First Nations communities where source water is often contaminated, hard to access, or at risk due to faulty treatment systems. 2 The lack of clean, safe water for drinking and hygiene in First Nations is one of Canada’s greatest violations of the 2010 United Nations (UN) Charter of Human Rights and the 2007 UN Declaration of the Rights of Indigenous Peoples, which advocates for greater control by and for First Nations over water.3

In 2016, the federal government under Prime Minister Justin Trudeau pledged billions of dollars to end all water advisories in First Nations by March 2021.4 As of February 2022, there were still 36 active LTDWAs in 29 First Nation communities, many of which have lasted for decades. Bureaucracy and jurisdictional issues, underfunding, and systemic racism are all obstacles that impede progress.5 While tackling these issues is essential to ending the First Nations’ water crisis, infrastructural improvements and increased financial investment are not enough. Canada must go further. The country’s government and its citizens must embrace a One Water approach and foreground Indigenous stewardship in water security planning.6 By fostering a relationship guided by Indigenous cultural practice and grounded in respect for this life-sustaining resource, Canada can ensure a sustainable water supply for future generations.

Disproportionate Burden

The number of water-borne infections in First Nations communities is 26 times higher than the national average, and residents on First Nations reserves are 90 times more likely to live without running water than other Canadians.7 These long-standing water safety issues are illustrated by a high number of drinking water advisories in First Nations communities compared to the rest of Canada, with the majority concentrated in Ontario. These advisories are reactive measures issued by the federal government at three levels of severity and advise on-reserve residents to boil, not consume, or not use the water on their land.8 Some communities have had long-term advisories for over one year, but just as many have frequent short-term ones. And The Council of Canadians considers 73 percent of First Nations’ water systems to be at a high or medium risk of contamination.9

Common contaminants found in source water on First Nations reserves included E. coli and other coliform bacteria, Trihalomethanes, and uranium.10 Some contaminants are naturally occurring, some enter source water through poor wastewater management, and others, like cancer-causing Trihalomethanes, result from organic materials reacting with disinfecting chemicals in poorly maintained plants.11 A legacy of toxic heavy metals from negligent industry and continued pollution from farms, factories, and urban development further contribute to degraded source waters.12 Exposure to these contaminants can result in a variety of health impacts, including serious gastrointestinal disorders, increased risk of cancer, and chronic skin conditions like eczema.13 Irrespective of the health impacts, it is unjust that Indigenous populations are at risk of ingesting fecal matter, while their direct neighbors in non-Indigenous communities would not even dream of this risk.

Quality of Life Impacts

While Indigenous communities have mostly avoided the most severe public health concerns (i.e., serious illness and related deaths), we cannot ignore the economic and social costs of the water crisis. Many First Nations residents must buy bottled water for drinking and household use and are responsible for the additional upkeep costs of private wells and septic systems since these are not eligible for federal funding.14 The impact of these costs is substantial since many First Nation households are not serviced by community systems. For example, in Ontario, one in five Indigenous households relies on a private well for drinking water, and 57 percent rely on a household septic system.15 These additional costs place an uneven economic burden on people living in Indigenous communities compared to other Canadians, and further set back a population that experiences poverty at a disproportionate rate – Indigenous people living on-reserve have a median income that is less than 50 percent of the non-Indigenous population’s income.16 Those who cannot afford these costs must ration clean water or drink what is potentially contaminated.

In addition, wastewater and water treatment systems are often at or beyond capacity and, as such, contribute to severe housing shortages on reserves.17 Communities cannot expand their housing stock because they cannot fund the necessary upgrades to their water treatment infrastructure. The inability to construct more homes leads to high housing costs, long waiting lists for subsidized housing, and overcrowding. In 2020, Indigenous Service Canada classified twelve percent of dwellings on reserves as crowded, compared to two percent of non-Indigenous dwellings.18 As housing prices in Canada continue to skyrocket, these pressures will continue to grow.

The water crisis also carries with it significant psychological impacts. Some communities have had water advisories for over two decades, meaning that children have grown up in a landscape surrounded by water but have not been able to freely experience it19. For example, the community of Neskantaga in northern Ontario has been under a water advisory since 1995, despite having a water treatment plant20. In addition, Curve Lake First Nation Chief, Emily Whetung, says “the emotional and spiritual damage of not having clean water, [while]

Advisories

Systems on Reserves. There are likely many more compromised water systems that are unaccounted for in the federal data. The Council of Canadians estimates that 73% of First Nation’s water systems are at high or medium risk of contamination, by Indigenous Services Canada having to look at all of the water surrounding us on a daily basis and unable to use it, is almost unquantifiable.” The daily hardship of living under a water advisory for years also means that some people become frustrated and drink the water without boiling or otherwise treating it and risk exposure to contaminants21. In addition, caregivers, and most frequently women, shoulder the brunt of care, work, and worry for sick or at-risk individuals, like elders and children22 .

Impacts on Cultural Practices

The lack of clean source water also impacts the cultural rights of First Nations people. Many First Nations see water as the essence of life and a life-giving entity. 23 In this view, the relationship between water and wellbeing is rudimentary and direct – when waterways are impaired, so is our ability to lead healthy lives. 24 First Nations recognize a responsibility to care for water, and it is customary for Indigenous people to collect and consume water directly from natural sources. 25 Consequently, as the Chippewas of Nawash Unceded First Nations argues, if federal and provincial policy only focuses on protecting drinking water, then it is doing so at the expense of tolerating environmental harm and hindering the ability of First Nations to protect the “health of all our relations as well as our own.”26 Many communities see bottled water and water that has passed through chemical treatment as dead and not suitable for consumption from a spiritual standpoint. 27 Not being able to drink the water from their own community is distressing to some elders, and poor water quality may hinder ceremonies when First Nations cannot consume the water that is used. 28 and foraging. Pollutants can make fish inedible, and if waterways are not safe for drinking, hunters and foragers cannot stay out on the land for long periods since they must return to their communities for clean drinking water. 29 In addition, for hundreds of years Indigenous women traditionally played a fundamental role in water source stewardship – correlating the life-giving abilities of women and water.30 However, colonization and imposed (male-dominated) governance systems have caused a significant disconnect between women and their water stewardship roles.31 The impact of contaminated water over the past century threatens to further erode a disappearing way of life by impeding First Nations’ ability to share traditional knowledge with the next generation.32

The Causes and Why the Problem Persists

Jurisdiction & Lack of Local Control. While specifics that lead to unsafe water vary between communities, the high number of water advisories across the country points to systemic issues. These issues can largely be attributed to colonial-era laws that bar Indigenous communities from funding and managing their water and wastewater treatment systems. The Constitution Act of 1867 gave jurisdiction over “Indians and lands reserved for the Indians” to the federal government.33 Under this constitutional provision, Canada’s Parliament passed the Indian Act in 1876. This Act, although amended multiple times, still governs many aspects of Indigenous life.34

Contaminated water can also impact traditional practices, including hunting, fishing,

According to the Indian Act, First Nations chiefs and councils and the federal government must work together to manage water and sanitation problems on reserves. Yet, in practice, the federal government is the largest source of revenue for First Nations and so controls water management practices on reserves.35

Provincial and territorial governments are generally responsible for water management and have developed regulations for monitoring water quality and source water management planning.36 However, under Canada’s constitution, these regulations do not extend to reserves. Although

Indigenous Affairs Canada recommends that First Nations communities adhere to provincial standards, there is no accountability framework when requirements are not met.37 As late as the mid-1990s, Indigenous and Northern Affairs Canada supported the construction of drinking water systems that did not meet federal and provincial filtration standards38 and many of these plants are still in operation without any ramifications. There is also no federal source water protection legislation, and it is difficult to address water quality issues when the activities that impact reserve source waters are off-reserve.39 In addition, the federal government only funds and monitors the condition of public water systems that serve five or more household connections and does not monitor the incidence of waterborne illness.40 Consequently, the water quality problem is likely more severe than federal data indicates since many Indigenous households rely on private systems.41 As such, the federal government must address private well contamination and leaking septic systems to bring the water crisis to an end.

Many First Nations leaders identify their role as stakeholders in water security planning as a central impediment to improved water quality on reserves.42 The current provincial source water planning framework includes First Nations as one of many interest groups with the same level of authority as farmers and business leaders, instead of as equal partners with the provincial governments. First Nations state that their representation as stakeholders disregards their constitutionally recognized Indigenous and Treaty Rights,43 and their voices are often drowned out in planning meetings and on committees.44 For example, water management projects often impact many First Nations communities, but the provincial government will only allocate a few seats for First Nations representatives. Since all communities have unique priorities, the representation of a community by a member of a different First Nations can be problematic and results in conflict between First Nations.45

Insufficient Funding & Bureaucracy

First Nations are responsible for providing water and wastewater services on reserves per the Indian Act. While most Canadian municipalities rely on taxes, user fees, and provincial and federal subsidies to fund these projects, First Nations reserves have little tax revenue and depend on the federal government for funding.46 Federal funding is often strained and requires First Nations to choose the lowest bid, even if a project does not adequately address their needs. Companies also frequently cut corners to be the most competitive.47 For example, federally funded projects do not require backup power,48 yet according to Indigenous Services Canada (ISC), a significant portion of short-term water advisories on First Nations are caused by power outages.49 Managing these crises adds costs, and retrofits are also expensive.50

Many First Nations community members identified a lack of funding for engaging in the water planning process as another barrier to local control of their water systems.51

The federal government requires that First Nations complete a feasibility study and project proposal before it releases funds but does not provide expertise or financial support for doing this work.52 Instead, community members must rely on grants and other funding sources to hire someone to complete the planning phase. Gathering funding requires additional coordination, time, and effort from First Nations, who are in many cases already dealing with limited capacity and other compounding issues.53 Beyond these direct funding issues, the approval process is often slow and delays urgent upgrades and repairs. Sometimes, approval is so delayed that the proposed project becomes obsolete by the time the proposal is approved.54

Systemic Racism

ISC admits that racism exists in several outdated federal policies related to water and wastewater management – most notably in the lack of government initiative to devolve management of funding for water planning to First Nations.55 However, the Federal government plays down the water crisis’s severity.56 When Ontario’s provincial government inspected the Curve Lake treatment facilities in 2017, the government found that the plant was not disinfecting water to the province’s standard. When the federal government examined the plant the same year, it deemed it a “low risk” project.57 Ed Morrison, the long-term manager of the Mitaanjigamiing First Nation in northwestern Ontario, also notes that the federal government does not take his expertise seriously until he hires a white male consultant to relay information.58 These observations display the paternalistic attitude from the federal government towards First Nations. Dr. Anna Banerji, a medical doctor at the University of Toronto who specializes in Indigenous health, argues the First Nations water crisis is indicative of “an apartheid system that gives rights, privilege, funding to one group of people differently than another group of people based on race.”59

Actions to Date

2016 Government of Canada Commitment

Efforts to address the water crisis in First Nation communities began in 1977 with a memorandum by Prime Minister Pierre Trudeau to Cabinet that put forward a new federal policy to improve the quality of life on reserves.60 The persistence of advisories into the twenty-first century points to apathy and a lack of urgency. In 2016, the federal government committed to “eliminating all long-term drinking water advisories on public water systems on First Nations reserves by March 31st, 2021.”61 To this end, parliament allocated over 2 billion Canadian dollars (CAD) over six years towards infrastructural investments and long-term advisories decreased from 164 in 105 communities to 36 in 29 communities between 2016 and 2022.62 Yet, the federal government missed its deadline and there is still a 138 million CAD annual deficit in funding for the maintenance and operation of drinking water systems.63 The Auditor General’s 2021 report on Access to Safe Drinking Water in First Nations Communities found that Indigenous Services Canada had not amended its operations and maintenance funding formula in over 30 years and that low salaries contribute to problems retaining qualified water system operators.64 The report also found that the federal government still had not established a regulatory regime to help benchmark progress towards ensuring access to safe drinking water in First Nations communities.65

Class Action Litigation on Drinking Advisories on First Nations

In 2019, the Neskantaga First Nation, Curve Lake First Nation, and Tataskweyak Cree Nation filed a national class-action lawsuit against the federal government and the provincial governments of Ontario and Manitoba aimed at addressing the prolonged drinking water advisories on reserves across the country.66 In December 2021, the Federal Court of Canada and Manitoba’s Provincial Court approved an eight-billion CAD settlement between Canada and certain First Nations.67 Among its commitments under the settlement, the federal government agreed to provide 1.8 billion CAD in compensation to individuals and impacted First Nations and 6 billion CAD towards “supporting construction, upgrading, operation, and maintenance of water infrastructure on First Nations land.”68,69 The federal government also agreed to create a First Nations Advisory Committee on Safe Drinking Water and support First Nations in developing their own safe drinking water by-laws and initiatives. The claims period opened on March 7th, 2022.

Healthy Headwaters Lab

The quality of source water has a direct impact on drinking water. Heavily contaminated source water can also make water treatment more difficult and expensive.70 Protecting water within the entire watershed is essential and a cornerstone of Indigenous water stewardship. To this end, many Canadian universities have been actively working with First Nations to document Indigenous Knowledge. These activities produced many studies and literature reviews – some cited in this report – and several research labs have formed to focus on integrating First Nations’ practices into water system planning. One notable lab is the Healthy Headwaters Lab at the University of Windsor’s Great Lakes Institute for Environmental Research. The lab’s mission is to “restore freshwater ecosystems to full health and vitality for the benefit of future generations” with an emphasis on headwaters.71 To this end, the lab is committed to “advancing science that connects land, water, and people, beginning with the First Peoples of the region.” 72

Recommendations Jurisdiction & Funding.

As noted in the Class Action Litigation on Drinking Advisories on First Nations settlement, First Nations should, first and foremost, have the autonomy to administer water treatment projects and maintenance on reserves, just like provinces and territories.73 First Nations should also be regarded as an equal government partner in the planning process, not as one of many stakeholders.74 The federal government should work with First Nations to develop enforceable drinking water and sanitation regulations and establish an independent First Nations water commission to monitor water quality. Finally, all water security tools should incorporate an assessment of a community’s capacity to implement, operate, and maintain its infrastructure.

One water approach to water planning. Indigenous Knowledge combined with Western Science could result in a framework that ensures equitable and culturally appropriate access to clean water for all Canadians. The emphasis on stewardship and respect in Indigenous practices “realizes the responsibilities associated with the rights” to water. We all could benefit from taking a step back and acknowledging the privilege that an abundance of water brings.75 In addition, the Indigenous precautionary principle to plan “seven generations ahead,” is a timely parable in our current climate crisis.76 In practice, Indigenous stewardship aims to protect water at the source and throughout the entire water system.77 It does not distinguish between potable water, wastewater, and water in our waterways. This approach is proactive and targets pollutant reductions at the source instead of cleaning up pollution once it happens. In effect, it also reduces the longterm costs of water and wastewater treatment because avoiding pollution is always cheaper than cleaning it up.78 Since planning is an ongoing cyclical process, water quality planning would benefit from referencing the Medicine Wheel used by many First Nation communities.79 (See Figure 2) This framework is intended to be repeated, incorporates feedback loops from the previous stages, and emphasizes the cyclical nature of our environmental systems.

Water insecurity in Canadian Indigenous communities is ongoing and results from the intersection of jurisdiction, bureaucracy, underfunding, and systemic racism.

The UN Declaration of the Rights of Indigenous Peoples advocates for access to water that is culturally acceptable to all and recognizes Indigenous peoples’ right to maintain and strengthen their spiritual relationship with traditionally owned waters in a way that upholds their responsibilities to future generations.80 In practice, First Nations people in Canada cannot engage fully in their relationship with water if the water is contaminated. While the federal government has made progress in lifting long-term water advisories, the First Nations water crisis will not end until Indigenous communities are given more autonomy over their water security and Canada adopts a more comprehensive water planning approach.

Endnotes

1 Indigenous Services Canada, “Indigenous Services Canada - Annual Report to Parliament 2020” (Ottawa: Indigenous Services Canada, November 3, 2020)

2 Human Rights Watch, “Make It Safe - Canada’s Obligation to End the First Nations Water Crisis” (Human Rights Watch, June 7, 2016)

3 T Westcott, “Indigenous Canadians Speak for Water on World Water Day 2018,” Water Canada, March 23, 2018,; United Nations, “United Nations Declaration on the Rights of Indigenous Peoples” (New York: United Nations, 2007).

4 Human Rights Watch, Make it Safe.

5 Human Rights Watch; R Marshall et al., “M., Levison, J., Anderson, K., & McBean, E. (2020). Moving towards Effective First Nations’ Source Water Protection: Barriers, Opportunities, and a Framework,” Water 12, no. 11 (2020): 1–25; APTN National News, “Drinking Water Solutions in First Nations Impeded by Feds Say Leaders,” APTN National News, February 18, 2021.

6 Catherine Febria, “Water Is Life: Reframing Indigenous Partnerships in Water Stewardship and Research in the Great Lakes.,” International Joint Commission - Great Lakes Connection, July 14, 2020; Marshall et al., “M., Levison, J., Anderson, K., & McBean, E. (2020). Moving towards Effective First Nations’ Source Water Protection: Barriers, Opportunities, and a Framework.”

7 C X Luo, “The Water Crisis in Canada’s First Nations Communities. Academic Data Centre,” February 16, 2022.

8 Indigenous Services Canada, Annual Report 2020.

9 The Council of Canadian, “Safe Water for First Nations” (The Council of Canadian, 2020).

10 Indigenous Services Canada, Annual Report 2020.

11 Human Rights Watch, Make it Safe.

12 Leyland Cecco, “Dozens of Canada’s First Nations Lack Drinking Water: ‘Unacceptable in a Country so Rich,’” The Guardian, April 30, 2021.

13 Human Rights Watch, Make it Safe.

14 Office of the Auditor General of Canada, “At a Glance: Report 3-Access to Safe Drinking Water in First Nations Communities, Indigenous Services Canada,” government, Government of Canada, Office of the Auditor General of Canada, February 25, 2021; Human Rights Watch, Make it Safe

15 Human Rights Watch, Make it Safe.

16 Indigenous Services Canada, “Indigenous Services Canada - Annual Report to Parliament 2020.”

17 Human Rights Watch, Make it Safe.

18 Indigenous Services Canada, Annual Report 2020.

19

20

21

22

23

T Latchmore et al., “Critical Elements for Local Indigenous Water Security in Canada: A Narrative Review,” Journal of Water and Health 1, no. 6 (2018): 893–903.; Febria, “Water Is Life: Reframing Indigenous Partnerships in Water Stewardship and Research in the Great Lakes.”; Marshall et al., “M., Levison, J., Anderson, K., & McBean, E. (2020). Moving towards Effective First Nations’ Source Water Protection: Barriers, Opportunities, and a Framework.”

24 Latchmore et al., Critical Elements.

25 Human Rights Watch, Make it Safe

26 Marshall et al., “M., Levison, J., Anderson, K., & McBean, E. (2020). Moving towards Effective First Nations’ Source Water Protection: Barriers, Opportunities, and a Framework.”

27 Latchmore et al., “Critical Elements for Local Indigenous Water Security in Canada: A Narrative Review”; Marshall et al., “M., Levison, J., Anderson, K., & McBean, E. (2020). Moving towards Effective First Nations’ Source Water Protection: Barriers, Opportunities, and a Framework.”

28 Human Rights Watch, Make it Safe

29 Human Rights Watch; Cecco, “Dozens of Canada’s First Nations Lack Drinking Water: ‘Unacceptable in a Country so Rich.’”

30 Latchmore et al., “Critical Elements for Local Indigenous Water Security in Canada: A Narrative Review.”

31 Ibid.

32 Cecco, “Dozens of Canada’s First Nations Lack Drinking Water: ‘Unacceptable in a Country so Rich’”; Febria, “Water Is Life: Reframing Indigenous Partnerships in Water Stewardship and Research in the Great Lakes.”

33 Marshall et al., Barriers.

34 Human Rights Watch, Make it Safe

35 APTN National News, “Drinking Water Solutions in First Nations Impeded by Feds Say Leaders.”

36 Marshall et al., Barriers

37 Office of the Auditor General of Canada, “At a Glance: Report 3-Access to Safe Drinking Water in First Nations Communities,Indigenous Services Canada.”

38 Human Rights Watch, Make it Safe.

39 Marshall et al., Barriers.

40 Indigenous Services Canada, Annual Report 2020.

41 Human Rights Watch, Make it Safe.

42 Marshall et al., Barriers.

43 Ibid.

44 APTN National News, Drinking Water.

45 Marshall et al., Barriers.

46 Human Rights Watch, Make it Safe.

47 APTN National News, Drinking Water.

48 Ibid.

49 Ibid.

50 Office of the Auditor General of Canada, “At a Glance: Report 3-Access to Safe Drinking Water in First Nations Communities,Indigenous Services Canada.”

51 Marshall et al., Barriers

52 Human Rights Watch, “Make It Safe - Canada’s Obligation to End the First Nations Water Crisis.”

53 Marshall et al., Barriers

54 APTN National News, Drinking Water.

55 Ibid.

56 Ibid.

57 Vjosa Isai, “Canada to Pay Billions to Indigenous Groups for Tainted Drinking Water,” New York Times, December 23, 2021.

58 APTN National News, Drinking Water.

59 APTN National News.

60 Isai, “Canada to Pay Billions to Indigenous Groups for Tainted Drinking Water”; Luo, “The Water Crisis in Canada’s First Nations Communities. Academic Data Centre.”

61 Office of the Auditor General of Canada, “At a Glance: Report 3-Access to Safe Drinking Water in First Nations Communities,Indigenous Services Canada.”

62 Indigenous Services Canada, Annual Report 2020.

63 The Council of Canadian, “Safe Water for First Nations.”

64 Office of the Auditor General of Canada, “At a Glance: Report 3-Access to Safe Drinking Water in First Nations Communities,Indigenous Services Canada.”

65 Office of the Auditor General of Canada.

66 Isai, “Canada to Pay Billions to Indigenous Groups for Tainted Drinking Water.”Deloitte, “First Nations Drinking Water Class Action,” First Nations Drinking Water Settlement, March 10, 2022.

67 McCarthy Tetrault, “Class Action Litigation on Drinking Water Advisories on First Nations.,” Class Action Litigation on Drinking Water Advisories on First Nations, 2022.

68 Isai, “Canada to Pay Billions”.

69 Deloitte, Class Action.

70 Human Rights Watch, Make it Safe

71 The Healthy Headwaters Lab, “Mission,” The Healthy Headwaters Lab, 2022.

72 Febria, “Water Is Life: Reframing Indigenous Partnerships in Water Stewardship and Research in the Great Lakes.”

73 Deloitte, Class Action.

74 Marshall et al., Barriers

75 Latchmore et al., “Critical Elements for Local Indigenous Water Security in Canada: A Narrative Review.”

76 Marshall et al., Barriers

77 The Healthy Headwaters Lab, “Mission.”

78 Tom Daniels, Environmental Planning Handbook (American Planning Association, 2014).

79 Marshall et al., Barriers

80 United Nations, “United Nations Declaration on the Rights of Indigenous Peoples.”

About the Author: Mariya Lupandina

Mariya is a dual-degree City Planning/Landscape Architecture student who is interested in how culture shapes our notions of ecology and nature.