Many First Nations persons are facing daily challenges just to access safe water for drinking and hygiene—a fundamental human right easily enjoyed by most Canadians. In 2016, Human Rights Watch released a report on First Nations communities in the province of Ontario that looked at the human impacts of this crisis and why the problem persists. We found that the Canadian government has violated its international human rights obligations toward First Nations persons and communities by failing to remedy the severe water crisis.

Along with infrastructure investments, the federal government should remedy a range of problems that contribute to the water crisis. This guide seeks to set out how First Nations communities and advocates can use the human rights framework as an additional tool in advocating for safe drinking water. While First Nations persons and peoples have aboriginal and treaty rights from which they can build their advocacy, the drinking water crisis on reserves is a space where human rights are also highly relevant. This guide seeks to provide an overview of the legal framework behind the human right to water and recommendations on how to engage government actors on the topic.

This guide is intended to be a tool that is accessible and useful for chiefs and councils, communities and individual waterkeepers, and advocates.

What are Human Rights?

To speak of “human rights,” or to use the language of international human rights law, is to speak an international language, one that, for all its complex and sometimes controversial history, has served as a powerful tool for positive change. As one human rights historian notes, human rights “evoke hope and provoke action.”[1]

But what are human rights, and how do they generate change? According to the leading United Nations human rights agency:

Human rights are rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status. We are all equally entitled to our human rights without discrimination. These rights are all interrelated, interdependent and indivisible.[2]

 

People or organizations often invoke human rights as a rhetorical tool to bring weight and gravity to situations of injustice. But the power of human rights’ rhetoric derives from these terms being grounded in a framework that has the force of international law, under which governments have obligations.

International human rights define the relationship between a state (the government) as a “duty-bearer” of rights and people living in that state as “rights-holders.” This means that the primary responsibility for making sure that people can enjoy their human rights rests with the government. States have voluntarily decided to accept the obligations contained in international human rights treaties to which they have agreed to become a party. They are also bound by customary human rights law, to which all states must abide.

A human rights-based approach is one that makes those directly affected by a human rights failure central to planning and operationalizing a response. This approach recognizes individuals and communities as rights-holders with legal entitlements and identifies governments and their partners as duty-bearers with obligations to meet those entitlements. Adhering to human rights principles requires particular attention to the needs of vulnerable and marginalized groups, access to information, and the establishment of procedures to ensure nondiscrimination and equality, accountability, and participation.

Human rights standards should guide all stages of programming, and any direct or indirect discrimination on any grounds should be eliminated immediately.

Working on drinking water through a human rights lens will often require looking at systemic problems, as these most often constitute the barriers to the realization of human rights. In practice, regulations, local by-laws and administrative procedures can act either as enablers or barriers to enjoying human rights. Understanding these barriers and identifying how and why they unjustifiably interfere with human rights can inform how to advocate more effectively for change or hold governments accountable.

Human rights are not the only frame from which First Nations individuals and communities can advocate for clean and safe water. In June 2019, the Chiefs in Assembly at the Chiefs of Ontario All Ontario Chiefs Conference passed a resolution designating the Great Lakes as living entities with endowed rights and ordered the Chiefs of Ontario to research the legal process of granting personhood to bodies of water.[3] This is not without precedent. Upon the advocacy and encouragement of the Māori peoples, the parliament of New Zealand granted the Whanganui River the same legal rights as people, ensuring legal guardians can represent the interests of the river in matters affecting it.[4] In Colombia, the Supreme Court advanced the rights of nature in a 2018 ruling that recognized the Amazon river eco-system as a rights-holder.[5]

 

The Human Right to Water

Canada has ratified numerous human rights treaties that contain obligations related to water and sanitation, including the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Convention on the Rights of the Child (CRC), the Convention on the Rights of Persons with Disabilities (CRPD), and the International Covenant on Civil and Political Rights (ICCPR).[6] Canada has also endorsed the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). [7] This Declaration recognizes Indigenous peoples’ right to determine and develop priorities for the development or use of their lands or territories and recognizes Indigenous peoples’ right to maintain and strengthen their spiritual relationship with traditionally owned or occupied lands, territories, waters, coastal seas, and other resources, and to uphold their responsibilities to future generations.[8]

A number of international human rights bodies and experts have raised concerns, specifically, that Canada has failed to fulfill First Nations peoples’ rights to water and sanitation.[9] For example, after its February 2016 review of Canada, the United Nations Committee on Economic, Social and Cultural Rights (CESCR), which monitors governments’ compliance with the ICESCR, noted its concern about “the restricted access to safe drinking water and to sanitation by the First Nations as well as the lack of water regulations for the First Nations people living on reserves.” It urged Canada to “live up to its commitment to ensure access to safe drinking water and to sanitation for the First Nations while ensuring their active participation in water planning and management,” and to “bear in mind not only indigenous peoples’ economic right to water but also the cultural significance of water to indigenous peoples.”[10]

The right to water entitles everyone, without discrimination, to have access to:

• sufficient,
• safe,
• acceptable,
• physically accessible, and
• affordable water for personal and domestic use.[11]

Various resolutions from the UN General Assembly and Human Rights Council affirm that the right to safe drinking water is derived from the right to an adequate standard of living.[12] The right to an adequate standard of living is enshrined in human rights instruments ratified by Canada, such as the ICESCR, CEDAW, CRPD, and the CRC.

The CESCR, in its General Comment 15 on the right to water, noted that an aspect of the core content of the right to water is that water required for personal or domestic use must be safe. This means it must be free from harmful microbes and parasites, chemical substances, and radiological hazards that constitute a threat to a person’s health.[13]

The committee also stated that a “violation of the obligation to fulfill” the right to water can occur when there is “insufficient expenditure or misallocation of public resources which results in the non-enjoyment of the right to health by individuals or groups.”[14]

The then UN Special Rapporteur on the on the Human Right to Safe Drinking Water and Sanitation Catarina de Albuquerque (hereinafter “the special rapporteur”), has also noted that in situations of emergency, states “have an obligation to provide culturally appropriate services directly.”[15] She also noted that violations of the right to water may result from a failure to act, to implement comprehensive plans and strategies that ensure the full realization of the rights in the long term, to regulate non-state actors, and as an unintended consequence of policies, programs, and other measures.[16]

Related Human Rights

Right to Sanitation

The right to sanitation entitles everyone, without discrimination, to “have physical and affordable access to sanitation, in all spheres of life, that is safe, hygienic, secure, and socially and culturally acceptable, and that provides privacy and ensures dignity.”[17] As with the right to water, the right to sanitation is derived from the right to an adequate standard of living.[18]

The special rapporteur has stated that states should “ensure that the management of human excreta does not negatively impact on human rights.”[19]

Right to Health

The right to the highest attainable standard of health is found in article 25 of the Universal Declaration of Human Rights (UDHR) and in international treaties binding upon Canada, including the ICESCR and the CRC.[20]

The CESCR, in its General Comment 14 on the right to health, has interpreted the ICESCR to include:

[T]he requirement to ensure an adequate supply of safe and potable water and basic sanitation [and] the prevention and reduction of the population’s exposure to harmful substances such as radiation and harmful chemicals, or other detrimental environmental conditions that directly or indirectly impact upon human health.[21]

The right to health encompasses the right to healthy natural environments.[22] This right involves the obligation to “prevent threats to health from unsafe and toxic water conditions.”[23]

The CESCR has stated that a “violation of the obligation to fulfill” the right to health can occur when there is “insufficient expenditure or misallocation of public resources which results in the non-enjoyment of the right to health by individuals or groups.”[24]

Right to Housing

The poor water and sanitation situation in First Nation communities is related to challenges in realizing other human rights—with housing as a primary concern. Overcrowding is the norm on reserves, and many communities cannot address this issue through extending their housing stock without upgrades to their water and wastewater infrastructure. The right to housing is found in article 25 of the UDHR, as a part of the right to an adequate standard of living, and in international treaties binding upon Canada, including the ICESCR.[25]

The CESCR, in its General Comment 4 on the right to adequate housing, has interpreted the right to include:

[C]ertain facilities essential for health, security, comfort and nutrition. All beneficiaries of the right to adequate housing should have sustainable access to natural and common resources, safe drinking water, energy for cooking, heating and lighting, sanitation and washing facilities, means of food storage, refuse disposal, site drainage and emergency services.[26]

The CESCR has stated parties to the treaty should “give due priority to those social groups living in unfavourable conditions by giving them particular consideration.”[27]

Right to Nondiscrimination

Core international human rights treaties expressly prohibit discrimination and require the parties to these conventions to take measures to eradicate all forms of discrimination against individuals.

The CESCR, in its General Comment No. 20 on non-discrimination in economic, social and cultural rights, recommended that states parties adopt “specific legislation that prohibits discrimination in the field of economic, social and cultural rights. Such laws should aim at eliminating formal and substantive discrimination, attribute obligations to public and private actors, and cover the prohibited grounds discussed above. Other laws should be regularly reviewed and, where necessary, amended in order to ensure that they do not discriminate or lead to discrimination, whether formally or substantively, in relation to the exercise and enjoyment of Covenant rights.”[28]

Knowing About and Acting on the Human Right to Water

Everyone has the right to know their rights and to be able to act on those rights meaningfully. For the right to water, this means the government has to engage with communities to give them sufficient information about water resources and the risks to those resources. It also means the government has to involve all communities in decisions that affect water resources and ensure that these decisions are taken with the free, prior, and informed consent of Indigenous communities.

The Right to Information

The right to water also entails certain procedural obligations when it comes to the provision of information about water resources and the involvement of community members in decisions that impact water resources. Specifically, the right to water protects the right of individuals to have full access to information held by public authorities or third parties, such as corporations, concerning water services and the environment.[29]  It is also protected under the right to participation[30] and as an independent right in and of itself.[31]

This means that the Canadian government has a legal obligation to ensure that information relevant to water resource use and quality is made available, accessible, functional, and shared in a manner consistent with the principle of nondiscrimination.

Available means that “current reliable information has been generated and collected in a manner adequate to assess the magnitude of potential adverse impacts on the rights of people.”[32]

Accessible means that “everyone can seek, obtain, receive and hold available information,” that the information is provided “in a timely manner,” and that any costs resulting from accessing such information are “kept at a minimum.”[33]

Functional means that the information “works to prevent harm, to enable democratic decision-making, and to ensure accountability, access to justice, and an effective remedy.”[34] Technical language must be “translated into a language that is functional, to enable individuals and groups of individuals to make informed choices,” and the “underlying data from which conclusions are drawn” must be accessible.[35]

Consistent with the principle of nondiscrimination means that information must be “disaggregated and specialized” to “understand and prevent disproportionate implications and impacts of hazardous substances and wastes on individuals and specific population groups, including different ages, incomes, ethnicities, genders as well as minorities and indigenous peoples.”[36]

The special rapporteur has emphasized that in the context of water, the right to information means “Public bodies should proactively publish information rather than merely react to crises or complaints. Requests for information should be processed rapidly and fairly.”[37]

The Right to Participation

Providing information in-line with the right to information is also essential to the fulfillment of the right to participate in decision-making processes that affect the exercise of the right to water,[38] and the case of Indigenous communities, the right to free, prior, and informed consent with respect to projects implicating the utilization of water resources.[39] “Participation is not a single event, but a continuous process”,[40] and it must be “active, free, and meaningful.”[41]

Active, free, and meaningful participation requires more than “token forms of participation,” such as “the mere sharing of information or superficial consultation.”[42] Rather, “[s]tates have an obligation to invite participation and to create opportunities from the beginning of deliberations on a particular measure and before any decisions, even de facto decisions, have been taken.”[43] Further, “[p]articipants must be involved in determining the terms of participation, the scope of issues and the questions to be addressed, their framing and sequencing, and rules of procedure.”[44] In the context of the right to water, required participation includes the right to participate in decisions on financing and budgeting of water services;[45] and the type, location, and improvement of water service provision, including whether to involve the private sector.[46]

For meaningful participation to occur, it is important to ensure that people’s views are not only considered, but actually influence decision-making.[47] The special rapporteur observes that “[o]ften, consultations are oriented towards securing people’s consent rather than involving them in the design of measures. If people are allowed ‘voice without influence,’ i.e., they are involved in processes that have no impact on policymaking, the potential for frustration is enormous.”[48]

States should also actively work to eliminate barriers to participation.[49] Barriers can take the form of prohibitive costs for people participating, both in terms of lost time and opportunity costs.[50] “In order to justify the costs and avoid frustration,” the special rapporteur notes, “participation must be meaningful and actually influence decision-making.” Indeed, for government and service providers, “the cost of undoing or redoing a project because of people’s objections can be higher than the costs of participatory processes.”[51] The special rapporteur also notes:

The most persistent barrier to participation may lie in surmounting a culture of low expectations and cynicism, beliefs harboured both by individuals and public officials. States should revise the incentive structures for public officials so that they are rewarded for facilitating genuine participation rather than regarding it merely as an item to be mechanically ticked off on a checklist. This may require training on facilitation and inter-personal skills.[52]

Active, free, and meaningful participation also requires that participation must be free from coercion or inducement, direct or indirect.[53] More specifically, the special rapporteur on the human right to safe drinking water and sanitation has asserted that, “There must be no conditions attached, such as tying access to water and sanitation to attendance of a public hearing. Participation must not be secured through bribery or the promise of a reward.”[54]

How Communities Can Use Human Rights to Advance the Right to Water

Set the stage for meaningful participation

• Work with representative organizations to advocate for a First Nations water commission to monitor and evaluate government performance related to water and wastewater on First Nations, including specifically the outcomes related to government water and wastewater funding commitments. In its work, the commission should take into account Indigenous customs, laws, and practices.
• Require government actors to recognize and engage the cultural aspects of water when calling on community input or participation so that communities and individuals can identify culturally acceptable sustainable water policy, and practical solutions on reserves.
• Provide government actors with a set of lessons learned from past community engagement and failed funding commitments for water and wastewater systems to prevent replication of past failures.
• Work closely with First Nations technical and community experts and ensure that new system designs allow for population growth, account for sustainable life-cycle costs, and are adaptable to decreased source water quality over time.
• Identify within the community individuals who are most marginalized and unable to participate in community decision-making and actively create channels for their participation throughout any process. In particular, ensure women, persons with disabilities, and marginalized individuals have the opportunity to engage meaningfully. Present government authorities with clearly identified channels and plan for broad spectrum participation.

Use rights language to demand transparency and accountability

• As a matter of human rights, seek to develop a plan with the federal government to address local water and sanitation crises with a concrete, collaborative plan. The plan should have:
  • Quantifiable targets;
  • Sufficient and consistent budget allocations;
  • A fixed timeframe for initial implementation;
  • Federal commitments for ongoing operation and maintenance support;
  • A time-bound commitment to end long-term drinking water advisories and reduce risk level of high-risk water and wastewater assets on reserves;
  • Specific recommendations, funding, and measures related to private or household-level water and wastewater systems; and,
  • Clear expectations for reporting back to the community progress towards the plan.
• Develop a community-based assessment of water and wastewater assets annually to present to government actors and highlight where funding commitments are failing to keep pace with investment needs.
• Demand that the federal government develop a fair, transparent process for determining financial support for water and wastewater systems on reserves, including a formula for calculating capital, operation, and maintenance funding levels.

Elevate community concerns to provincial, national, or international audiences

• Some audiences can connect with communities in crisis better when they understand that there are human rights violations at stake. Being able to communicate community concerns via social media or traditional media outlets in human rights terms can often motivate new audiences to agitate officials to address the issue.
• Particularly when there is an emergency, it can be important to seek outside audiences to amplify the message a community is trying to convey to federal or provincial officials. Human rights mechanisms within the United Nations can be a great way to do that. There are a number of independent human rights experts within the United Nations who can issue statements or letters to the Canadian government, including experts on the rights to water and sanitation, on environment and human rights, on rights of Indigenous peoples, and on extreme poverty and human rights. You can locate the relevant experts via this website: https://spinternet.ohchr.org/_layouts/15/SpecialProceduresInternet/ViewAllCountryMandates.aspx?Type=TM.
• Other human rights mechanisms include committees that monitor Canada’s implementation of international human rights treaty obligations. Reporting human rights concerns to these committees can increase international and public scrutiny of Canada’s actions. These committees review Canada’s record on a set timeline, so advocacy with these committees are for protracted or neglected human rights issues or concerns. You can locate relevant committees, including the Committee on Economic, Social and Cultural Rights, the Human Rights Committee, and the Committee on the Rights of the Child, and other important human rights treaty bodies highly relevant via this website: https://www.ohchr.org/EN/HRBodies/Pages/TreatyBodies.aspx.

Case Study: Flint, Michigan, USA

In April 2014, the city of Flint, Michigan, under state-appointed emergency management, switched its water source from Lake Huron to the Flint River as a cost-savings measure. Residents immediately raised concerns about the water color, taste, and odor, and reported various health complaints including skin rashes. Bacteria, including E. coli, were detected in the distribution system.[55] At the same time the city stopped its corrosion control measures and added ferric chlorine to treat the water, increasing the corrosivity of the Flint River water and leaching lead into the water supply.[56] A team of researchers led by a local pediatrician, Dr. Mona Hanna-Attisha, found that the number of children with elevated lead levels in their blood doubled—and in some neighborhoods tripled—after the switch in the water supply.[57].

Public outrage eventually pushed President Barack Obama to declare a federal emergency in 2016,[58] but the damage to people’s health was done. Lead can have devasting health impacts.[59] There is no safe level of lead exposure, and pregnant women and children are particularly vulnerable.[60]  

Community members started to raise concerns with local officials in early 2015.[61] The full story of what officials knew and when they knew it is unfolding, with 15 people in state and local government charged with crimes as of June 2019.[62]

When government officials were not responsive, communities engaged in their own documentation of the severity of the violation of the right to water and turned to United Nations independent human rights experts on hazardous substances and wastes, health, water and sanitation, Indigenous peoples, minorities, and racism to amplify their call for action.[63] These experts highlighted that the Flint crisis was not just a public health concern, but a human rights disaster. These experts timed their statement to coincide with national presidential debates to raise the profile of the issue as a human rights concern.[64]

While the struggle for accountability for the Flint crisis is still winding through the US courts and the replacement of lead pipes continues, the activists who worked hard to link the Flint water crisis with human rights successfully added international attention and pressure on state and local officials.