Public Health Protection and Drinking Water Quality on First Nation Reserves: Considering the New Federal Regulatory Proposal
MacIntosh, Constance, Health Law Review
Access to clean water, for drinking and personal hygiene, is a cornerstone of public health. Dr. Lee Jong-Wook, the Director General of the World Health Organization, stated quite simply in 2004 that "[w]ater and Sanitation [sic] is one of the primary drivers of public health." (1) We have known of the link between water and health--or water as a vector for disease transmission--for a very long time. Any introductory course on public health will likely include reference to Dr. John Snow's epidemiological studies in cholera-infested mid-19th century London, where he linked the spread of cholera to drinking water sources that had been contaminated by human sewage. (2) In one study he found that one water supply company, which drew its water from the Thames upstream from London, had a client base that experienced a lower incidence of cholera than the average for London as a whole. A second water supply company's clients had an elevated incidence of cholera. That company also drew its water from the Thames, but in the middle of London where it had already been subjected to considerable quantities of human sewage. (3) Dr. Snow identified water supply as a key transmission vector.
In spite of such basic understanding, in 1998, the water treatment plant for the reserve community of Kasechewan was built downstream from its sewage lagoon. Dr. Snow could have advised us that this arrangement was one that elevated risks to public health. In response to risk, not only were boil water advisories constantly in place, but enhanced levels of chemicals were also added to the water. Ironically, these chemicals had their own health consequences, as the "[h]igh levels of chlorine that were used to combat Escherichia coli were exacerbating scabies, impetigo and other skin disorders, as well as concerns about hepatitis A and gastroenteritis." (4) This situation eventually led to the evacuation of the community's members, in 2005. That same year the Commissioner of the Environment and Sustainable Development observed that "[d]espite the hundreds of millions in federal funds invested, a significant proportion of drinking water systems in First Nations communities ... deliver drinking water whose quality or safety is at risk ... they do not benefit from a level of protection comparable with that of people living off-reserve." (5)
Currently, water safety on reserves is managed through a series of guidelines, protocols and contracts between Indian and Northern Affairs Canada (INAC) and First Nation communities. (6) Although the contracts assign responsibility for operating and managing water facilities, they do not address questions of liability, nor do they mandate action in the face of system failures. (7) There is general consensus-among senate committees, (8) independent commissions, (9) and political representatives of Aboriginal peoples such as the Assembly of First Nations (10)--that the current situation produces unacceptable levels of risk to public health, and that a regulatory framework is needed. In January of 2009, the federal government issued a discussion paper that details its preferred regulatory route for enabling a legislative framework. (11) This route is to referentially incorporate provincial legislation regarding operational standards through a framework statute, and then develop the details of the regime through regulations to be developed in consultation with First Nations over the next few years. (12)
Importantly, the opening sentence of the discussion paper's executive summary expressly connects water and public health. It reads: "The provision of safe drinking water and the effective treatment of wastewater are critical in ensuring the health and safety of First Nations people and the protection of source water on First Nation lands." (13) Below I sketch out the current conditions and how the federal proposal suggests engaging these conditions. I conclude that although regulated standards will undoubtedly bring about improvements to public health, the proposal misses some key issues. …