Due before Tuesday, March 31st at 9 AM.
Based on ONE of the readings assigned for April 1st:
Boyd, D. R. (2011). No taps, no toilets: First Nations and the Constitutional right to water in Canada. McGill LJ 57: 81.
Walkem, A. “The land is dry: Indigenous peoples, water, and environmental justice.” In Bakker, K. (ed.) Eau Canada: the future of Canada’s water, 311-329.
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Ardith Walkem’s reading “The Land Is Dry: Indigenous Peoples, Water, and Environmental Justice” evokes a lot of empathy for indigenous communities currently marginalized in decision making around water governance. In Canada, the access to water for indigenous communities continues to be fraught with problems, and even today, many communities depend on unsafe water sources and are on boil water advisories, despite Canada’s massive freshwater supply. This reading highlight some of the reasons behind this. There is persistent environmental racism that permeates Canadian water legislature, where there is a systematic denial of indigenous worldviews in environmental governance. As Walkem mentioned in the chapter, that although indigenous rights to water have been recognized on paper, there is little in the legal landscape to actualize this.
I found Walkem’s description of indigenous attitudes towards water particularly insightful, where water is critically embedded in the livelihood of the peoples, and planning for future generations, or “seventh generation principle”, are upheld. This means that developments such as hydroelectric projects completely disregard these values and erase this way of living. The recent adoption of UNDRIP in BC appears to be a meaningful step towards the right direction, however, we still don’t know yet the extent that this will be upheld and whether other provinces will be adopting it. As Walkem has mentioned, Canadian courts are colonial processes, and these dominant and oppressive forces will prevent indigenous sovereignty and discredit territorial rights and water allocations are often not honored even when they are existing. This chapter also reminded me of an interesting documentary that depicted the myriad of health effects associated with waters contaminated with E. coli or coliform, from chronic eczema and rashes to cancers.
Although I am definitely not equating my experiences to indigenous communities in Canada, but personally, I grew up in Beijing, China where I didn’t realize tap water is supposed to be drinkable until I immigrated to Vancouver. Even then, I definitely remained skeptical for a long time before I became accustomed. It made me realize how privileged I am to have immigrated; however, should this privilege even exist in the first place? Why is safe drinking water only a feature in wealthy, often Western cities? This would link back to other readings this term on the basic human right to water, and the failures of actualizing this.
Ultimately, for indigenous communities in Canada, financial compensation is not enough. For systematic change, meaningful reconciliation and acknowledgement of indigenous traditional knowledge and laws must be taken into consideration. I hope this is the case for the Canadian government’s promise to eliminate all boil water advisories by 2021.
1. What are the most holistic methods for effective involvement of indigenous groups in water governance, and what has failed in the past?
2. How can we reconcile indigenous law and Canadian law to produce a unified judicial system?
Ardith Walkem’s reading “The Land is Dry: Indigenous Peoples, Water, and Environmental Justice” focuses on Indigenous perceptions of water management and how colonial practices have conflicted with traditional beliefs, often to an extent that is detrimental to Indigenous health. A central idea of the reading is that colonial Canadian resource management has been traditionally human-centric vs. Indigenous resource management which focuses on interconnectedness. Such focus is summarized by Walkem under the term of kincentric ecologoy which the author states is the idea that life is only viable when humans view the life around them as kin and, as relevant to water, when decisions are made with the belief all beings have an equal right to water to sustain them (315). Unfortunately, Indigenous knowledge has been traditionally devalued by colonists. Walkem states that Indigenous knowledge is often dismissed as “anecdotal… unsubstantiated.. nonquantitative” (310). This has lead to an absence of Indigenous law within Canadian law. Such an absence undermines the ability of land and water to sustain future life.
Walkem’s discussion of kincentric ecology reminded me of several arguments I was exposed to in a philosophy course on environmental ethics. The course focussed primarily on Western perspectives of the environment but I see common ground between contemporary modern philosophers arguing that the best way to protect the environment is through an emphasis on the intrinsic, not the functional value, of nature, and Indigenous beliefs that we need to value water for its inherent, not its economic, value. Since these two ideas are complementary to each other makes me hopeful that though they originate from two different canons of belief, that their shared characteristics will ultimately make such an argument stronger and more likely to be taken into consideration when governments decide on how best to handle water resources. Furthermore, it makes me hopeful that Western ecological thought, in general, will be more receptive to learning from Indigenous communities and the knowledge they hold.
A notable discount though between Indigenous ecological values and Western ones is that degradation of water frequently does not lead to loss of culture for colonists as it does for Indigenous communities. I think such a disconnect provides a valuable teaching moment for colonists to learn about the importance of Indigenous water management in an Indigenous context (as opposed to imposing Western practices on Indigenous communities). I also fear that because there is a value gap here that colonists would be less receptive to accepting the loss of culture as a viable argument for why Indigenous water governance practices must be given greater precedence. Ultimately though, I am hopeful that further Western acceptance of the intrinsic value of nature will lead to greater acceptability for incorporating Indigenous laws within Canada’s water laws.
How does lack of access to improved water services compare on a per capita level between rural Indigenous and non-Indigenous Canadians? Does this comparison strengthen the argument that lack of access to safe water on reservations is a Section 15 violation?
What can Indigenous decision-making practices based on how the decision will affect seven subsequent generations teach colonists about their own decision-making practices?
David Boyd’s “No taps, no toilets: First Nations and the constitutional right to water in Canada” provokes the reader to feel empathetic towards marginalized indigenous communities. The author starts off by explaining that in 1977, the Canadian federal government promised to provide reserves with water and sanitation services comparable to non-Aboriginal communities. Boyd then explains that the First Nations have an enforceable, constitutional right to water. This is stated under section 7 of the Canadian Charter of Rights and Freedoms which states the basic rights to life, liberty and security. Section 15 also states the right to equality, which would mean that everyone has the same right to clean accessible water. This states that governments must provide essential public services as it is an international human rights law.
After analyzing David Boyd’s article, I enjoyed that he provided many arguments that show that First Nations should receive and have access to clean drinking water. I believe that that this is a basic right that all humans have and it is written as an international law so this should be followed. The author also points out that 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). Although all these laws exist, none of these laws provide a regulatory framework for the guidance of safe drinking water on reserves. I found this perplexing as there is no regulation for safe drinking water on reserves but everywhere else there is. This is a large issue at hand and is discriminatory upon the First Nations people. I don’t know how there could be laws that state clean drinking water for other areas but not First Nation peoples. If I was in power I would take care of all of the First Nations needs first and foremost before even considering any other people. This is imperative because the First Nations worked the land in harmony before settlers came and abused their land and took it for themselves.
David Boyd then states that the bottom line is that there are no federal or provincial laws or regulations to ensure that safe drinking water for First nations individuals living on reserves. The author finds irony in this and states that because of the Canada Labour Code, Health Canada has installed small water treatment systems at nursing clinics and health facilities. This is ironic because the Canada Labour Code only applies to the employees and provincial legislation and regulations are not applies on reserves. This means that all populations under federal jurisdiction have their drinking water protected by law, except for First Nations living on the reserve. This is terrible to hear because the government found every way to legally not provide the average person living in the reserve with clean water, instead of doing the right thing.
1. Do you think that 10-20 years down the road, this will still be an issue?
2. If you were in power what would you do?
The main thing I took out of the “The Land is Dry: Indigenous Peoples, Water, and Environmental Justice” by Ardith Walkem is that the western/colonial paradigm for land and water resource management in Canada is completely illogical. The cyclical and contextual thinking that is central to Indigenous land and water stewardship objectively makes far more sense. It is mind-blowing to me that colonial resource management practises seem to have only recently started to acknowledge the fact that anything done in a natural system will have widespread environmental, social, and economic consequences. Furthermore, the seven generation model and kincentric ecological thinking that underlies Indigenous stewardship appeals to moral and values that I personally think should be widespread throughout our society. Once environmental justice and the hardships that our colonial resource management practises have imposed on indigenous peoples is taken into consideration, it becomes near impossible to finish reading this chapter without feeling extremely frustrated by the current state of affairs in Canada. Especially frustrating is the current reality that the ability of indigenous groups to protect their constitutionally and legally acknowledged title, rights, and treaty rights is limited. The fact that indigenous groups must navigate a monetarily and resource costly colonial justice system in order to protect rights that should be inherently respected is extremely disturbing. As Walkem acknowledged, it is hard to imagine that this process is without bias towards indigenous peoples.
One thing that I have noticed in recent years is just how much non-indigenous members of our society rely on indigenous peoples to advocate for environmental issues. Despite the glaringly obvious injustices in the judicial processes indigenous peoples must engage with in order to protect their rights, it seems as though there is a general tendency in non-indigenous environmental thought to believe that indigenous groups will successfully oppose unwanted industrial projects. I believe that this sometimes leads to a sense of apathy in the non-indigenous environmental community; this unfairly places even more pressure and burden on the backs of indigenous groups. As Walkem points out, due to the provisional and cultural connection that indigenous peoples have to the land, their communities are disproportionately impacted by environmental harm; they therefore don’t have a choice to protest or not, their way of life (as well as the health and safety of their community members) depends on it. The fact that non-indigenous environmentalists are able decide to protest a development or not simply highlights our own privilege. However, in the current fight of the Wet’suwet’en First Nation against the Coastal GasLink Pipeline, there seemed to be a lot more collaboration between indigenous and non-indigenous protestors. I found this to be encouraging and I hope this trend continues until the point where indigenous groups are never left to fight unsustainable development projects on their own.
Question #1: Has there been any advancement in the provisioning of safe drinking water to Canadian indigenous communities since the federal election in the fall?
Question #2: In countries where indigenous and colonial societies are more intertwined and aligned, have land and water resource management practises become more sustainable?
In the reading titled “The land is dry: Indigenous peoples, water, and environmental justice” many of the harsh realities relating to the poor water quality that Indigenous peoples in Canada have to deal with are exposed. The author argues that the many examples of poor management of water infrastructure that leads to an unhealthy environment and unhealthy people reveal how ineffectively the Canadian government currently manages water, and this is a problem that can only really be solved through the fundamental reshaping of Canada’s water management policies. The author points out how recognizing the value of Indigenous philosophies surrounding how to treat resources, such as the idea that all living things are connected, and appreciating the inherent value of resources, would help us make wiser choices in terms of how we choose to control and conserve them. I found these insights really interesting as this seems to be the ongoing debate amongst Western conservationists- does nature have intrinsic value, or does it have value because we assign it value? Of course, I would like to say that nature does have intrinsic value but unfortunately because of the way our society has developed, placing far too much of an importance on monetary and anthropocentric value, it is really hard to make the case for nature’s intrinsic value to the stakeholders that are often at fault for destroying it. I like the analogy of the Nlaka’pamux elder, saying that newcomers are famished, because it really encapsulates how our modern day consumption patterns have developed. Even when we are full, and have all the resources we need to survive, we are greedy and hungry for more. One interesting concept that popped into my mind is the idea of ecosystem services, which is the way that foresters try to put a monetary value on the costs/benefits that natural spaces provide us with. While this is still putting a monetary value on it, I think that this is a good middle-ground because it is a way to appreciate the fuller picture of our relationship with the earth and everything it does for us, but also putting it in economic terms that are understandable for business-minded people. I wonder what this author would think of such a tool, and whether they would also consider this a good middle-ground or whether it would still be considered too exploitative of a framework. In terms of environmental justice, it is clear that injustice imposed on the land is the same as injustice imposed on Indigenous peoples. This is because Indigenous people have a duty to the land, and the land has a duty to provide for Indigenous people, and if one party cannot fulfill its duties then the balance of nature is disturbed. I wish that this understanding of human-environment relationships was more widespread, but what we can do moving forward is learn from those that possess traditional ecological knowledge and raise their voices instead of just listening to Western academia.
1. Are Indigenous people and values tokenized to move forward the agenda of the environmental movement? How can this be avoided?
2. Is it possible to incorporate traditional ecological knowledge into a system dominated by Western academia, or do we have to dismantle the whole system first?
Boyd, D. R. (2011). No taps, no toilets: First Nations and the Constitutional right to water in Canada. McGill LJ 57: 81.
No taps, no toilets is a very detailed analysis of Canadian Constitutional law in relation to First Nations’ right to water. Boyd argues in favour of an enforceable constitutional right to water based on the right to life, liberty and security of the person under section 7 of the Canadian Charter of Rights and Freedoms; the right to equality under section 15 of the Charter and governments’ obligation to provide ‘essential public services of reasonable quality to all Canadians” under section 36 of the Constitution Act, 1982. Boyd also explains that Canada is an historical opponent to the international recognition of the right to water (Canada has voted against or abstained from voting at several occasions). Unlike the US, there are no uniform national standard for drinking water in Canada. As a consequence, First Nations communities do not benefit from the same level of protection than other communities (comparable communities with respect to size and place). Bill S-11 was introduced to the Senate in 2010 and proposed a national regime but was put aside because of the federal election in 2011. Even Bill S-11 failed at integrating the recommendation of the Expert Panel and proposed a regime based on the highly variable provincial drinking water laws, a regime which could have led to uneven results across communities.
An important notion that is stressed in this article is legal abandonment. Canada Labour Codes regulations don’t apply on reserves. This means that residents on reserves do not benefit from the regulatory protection for drinking water available in provinces and to federal employees, nor do they benefit from regulation for wastewater treatment, garbage disposal and other environmental concerns. Thus, First Nations peoples living in communities with poor access to and quality of water are forced to make a choice between their health and their identity.
As Boyd, I support a generous reading of the Charter to recognize Indigenous people the right to water. In fact, Boyd suggest that the Supreme Court of Canada has repeatedly stated that the Charter should be interpreted generously, it is aimed at “fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter’s protection”. Similarly, I read the verb “commit” or “s’engager” in French in section 36 of the Constitution, as a statement that should compel government to providing “essential public services of reasonable quality to all Canadians”. Yet, I understand that the ambiguity in the language is used by opponents to the right to water to argue that it is only a statement not an obligation. This ambiguous language leads to serious difference in the definitions of human rights and their implementation.
I believe, however, that a generous reading of the Constitution falls under the good faith principle of law.
Q1: Can you explain Canada’s historical (and current) position as an international opponent to the right to water?
Q2: What are the next steps in recognizing decolonizing water?
The 2011 article “No Taps, No Toilets: First Nations and the Constitutional Right to Water In Canada” by David Boyd, provides in great detail, a 40 some year old history regarding the efforts made by both Federal and Provincial Governments to secure access to water to aboriginal peoples across Canada. The articles begins by acknowledging that the Canadian Federal Government, in 1977, promised an act that would provide water and sanitation services across Canada. This article provides a wide array of facts and stats that I believe are rather unknown to the general public regarding water management and who is affected by resource access the most. Personally, I was exposed to a variety of statistics that I had never seen before, the most intriguing in my opinion being that 99% of Canadians living in rural areas have access to fresh, drinkable water, which instantly made me wonder as to who makes up that missing 1%. As of 2010, 49 First Nations communities experience high risk drinking water systems. Across Canada, an estimated 5000 homes in First Nations communities across Canada that are without basic water and sewage systems. Boyd’s article also states that First Nations homes are 90% more likely to be without running water than other house holds in Canada. Today, Pikangikum in Ontario, Kitcisakik in Quebec, St. Theresa Point, Wasagamack, Red Sucker Lake, and Garden Hill in Manitoba and Little Buffalo in Alberta are areas that majority of residences still are lacking running water and safe drinking water. The Canadian Government acknowledges that waterborne diseases are more common in First Nations communities due to the lack of treatment systems that are provided.
Looking at the overarching topic of aboriginal rights, I found the three focal points, and the three remaining outstanding problems surrounding Aboriginal rights and water rather interesting. The First problem mentioned was an obvious one, being 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. Understanding that this article was written in 2010, it is interesting that the first time that I had ever really been exposed to the issues regarding Aboriginal rights and water issues was not until Jagmeet Singh focused on fixing these issues throughout his election campaigns. The second problem that was mentioned in Boyd’s article was that there is still no regulatory framework in place to ensure the safety of drinking water for First Nations communities. This makes me wonder that if there is currently no actions being put in place to solve these problems, if these issues will get bigger as time goes on or if the issues will begin for other aboriginal communities. The third issue was that the communities that experienced the most issues with lack of fresh water were completely “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.” This serves as an indication that those affected by the shortage of fresh water have no real way of getting assistance because they are not covered or monitored by the Department of Indian Affairs, leaving there voices almost entirely unheard and not paid attention to by government officials.
Questions:
What financial or moral implications are causing the Federal Government to not assist this small population of people with no consistent fresh water?
Why was the NDP focus on the importance of ensuring aboriginal peoples clean water not been further explored by the liberal government since the campaign has been concluded?
For this week, I chose to read the “No Taps No Toilets” article by Boyd. The article begins by discussing the ways in which water has been deemed a human right by organizations such as the United Nations and the World Health Organization. An interesting facet to this discussion is the fact that Canada was one of a minority group of countries in the UN that decided to abstain from voting on making water a human right. The author also points out that there has been no federal recognition of this right in Canada. I think it is very important that the author provided this information because it really opens the reader’s eyes to the debate over indigenous water governance. As of now, the Canadian government and legal system manages water across Canada, including water in indigenous communities. Indigenous communities make up the majority of the 1% of Canadians who lack access to clean water. The fact that the government holds most decision making capacity over water combined with the lack of recognition of the right to water puts indigenous people in a particularly vulnerable position.
The next portion of the article provides an analysis about Canada’s efforts to provide clean water to indigenous people. The analysis shows some clear progress made by the government in meeting this goal. One figure that stood out to me was that since the preliminary analysis of the problem, 18/21 high risk communities have been removed from the list. This is not an easy feat to accomplish since each of these communities have their own unique challenges. The author explains however, that there are a few very pertinent outstanding issues about Canada’s efforts to solve this problem. The issue that stood out to me most is the fact that many communities who lack access to clean water were never counted in the first place. One reason for this is that if they have no water system at all they are not counted. Another reason is if indigenous communities do not exist on federal reserves they are not counted. In my opinion these two reasons alone justify arguments for increased sovereignty over water for indigenous groups in Canada. The federal government has spent billions of dollars on this issue yet have failed to address some of the most dire cases. Federal reserve communities have certain rights and funding that communities outside the reserve do not, and communities without existing water systems are obviously very vulnerable. Increased autonomy and leadership done by indigenous leaders will allow this problem to be solved more efficiently. Indigenous leaders are more likely to have an understanding of their own peoples’ needs. In addition, the increased role of indigenous communities in water governance fits the “nation to nation” policy proposed by our government.
Questions:
What are some policy changes you think would increase the efficacy of Canada’s efforts to provide clean water to all?
What are some ways you believe Canada can be held accountable to upholding UNDRIP?
Ardith Walkem’s text “The land is dry: Indigenous peoples, water, and environmental justice” discusses Aboriginal title and rights, treaties, and the Canadian colonial rule of law with regards to Indigenous peoples’ governance of their ancestral waters. As the author notes, the infamous 1997 Delgamuukw court case addresses all of these contentious issues at a Supreme Court level, however, has not necessarily been honored by the Canadian government historically. Delgamuukw asserted the existence of Aboriginal title and that it cannot be extinguished by provincial or territorial governments and recognizes Indigenous peoples right to involvement in all water decisions affecting their territory. Said Aboriginal title recognizes that Indigenous peoples’ relationship with their territorial homelands, this being far broader than government-allotted reserve land, is not in line with Euro-Christian capitalist understandings of land use and management. However, although these claims have been asserted, the Canadian colonial courts still do not have the capacity to comprehend Indigenous peoples’ inherent responsibility to their waters in addition to the non-humans that reside within and around these waters. This responsibility is non-negotiable and prescribes communal interest on their territory as well as emotional and spiritual connections to their waters. This misunderstanding has been proven through the dishonoring of this Supreme Court conclusion (amongst others) as well as the loopholes that have been found within the system in order to work around Indigenous peoples’ title to their waters. These loopholes are enshrined into colonial-era legislature, such as the Indian Act of 1876, which empowers government-appointed band councils to have jurisdiction over Indigenous waters rather than the traditionally and community-appointed Hereditary Chiefs which is a system that has been in place for millennia in order to sustainably manage Indigenous waters.
Band councils, although comprised of Indigenous people, operate within the confines of the colonial government and often do not have the luxury of choice. Council members in the past have made decisions about Indigenous waters independently without consultation from their communities and under coercive pressure from the settler colonial government. These choices adhere to Western capitalist understanding of resource management (such as the approval of “sustainable” logging on Indigenous lands) and aid the delegitimization of traditional resource management systems that do not operate through qualitative and measurable science which the colonial state upholds so highly. Western science and technology have incapacitated Indigenous capability to govern their own waters. Anthropocentric resource management that prioritizes the settler colonial state and its financial interests are instead utilized.
The Canadian colonial courts also cannot truly comprehend Indigenous sovereignty and Aboriginal title over their traditional waters due to the fact that title needs to be proven in the courts. This assumes that Crown title is the default and therefore operational, indefinite, and fixed until proven otherwise. This leaves the burden of proving historic title and occupation of lands to Indigenous peoples and allows the Doctrine of Discovery to be enshrined into Canadian law.
1. Can Indigenous peoples gain true sovereignty over their waters within the confines of the Canadian colonial government and its rule of law that has its very basis in the elimination of them as peoples?
2. How can we overcome purposeful and institutionalized barriers that prevent Indigenous peoples from having true sovereignty over their waters?
Ardith Walkem’s “The Land Is Dry: Indigenous Peoples, Water, and Environmental Justice” provides a critical discussion of the current state of colonial water governance in Canada, with respect to its treatment of First Nation rights and its relation to the environment that has caused significant injustices against First Nations communities. Walkem highlights how the actions of provincial and federal governments frequently disregard First Nations rights. In addition to those which have been confirmed to exist as prior to the settlement of Canada, the state frequently fails to meet those rights affirmed by international law, the Canadian Constitution, and some key legal cases in the country.
This has contributed to severe issues experienced on many reserves and traditional lands of First Nations in Canada, as water becomes highly contaminated and degraded. Due to the interconnections of their livelihoods, traditions, and practices with the water on their land, this can be extremely detrimental to First Nations communities, as quoted in Walkem “all aspects of our physical, social, cultural, and economic well-being are affected (311). Not only is direct illness experienced when their drinking water is contaminated or that of their food, but also critical aspects of their cultures and traditions can be lost when “water sources are depleted or poisoned” (311).
In the face of Canadian water governance frequently ignoring these needs and rights, in order to protect water they take the matters to court. Walkem establishes how First Nations efforts to protect water are still constrained despite the theoretical legal support for their rights, as these processes are costly and time consuming, so often inaccessible for many, and too often court decisions fail to fully uphold them as they “balance” their rights with “the socioeconomic interests of newcomer society” (308). This shows a common theme within Canada that is extremely problematic, especially when one looks closely at the extent of impacts this form of governance has had on First Nations.
Another aspect of Wilkem’s reading which stood out to me was the analytical comparison made between First Nations’ relations to water and that which is Western and practiced by the Canadian government. They highlight how Canadian governments make environmental governance decisions in a way which is highly removed from the land itself, and operates
within the belief system that the environment is something which can be controlled. This relates to what I have learned elsewhere with respect to the myth of human superiority, which when subscribed to, drives significant environmental manipulation and pollution- as it justifies these environmentally harmful actions as necessary and reaffirms that we can adapt to meet our needs when we face the repercussions, This perspective, as brought forward by Wilkem, also coincides with significant environmental racism. First Nations communities bear the brunt of many infrastructure and resource projects, and this perspective undermines the acceptance of First Nations environmental knowledge which is situated, relational, and understands the environment as cyclical.
1. What are potential avenues for reconciling the need to not violate the rights of First Nations with meeting broader socio-economic interests of Canadians?
2. Is this reason, claimed by court decisions as to why violations of First Nations rights may be made in a certain instance, ever justifiable?
“The Land is Dry: Indigenous Peoples, Water and Environmental Justice” by Ardith Walkem illustrates how cultural and spiritual identity, access to sustainable and traditional food sources, and access to safe drinking water are all threatened by current water governance practises. Colonial era laws and court systems have historically denied water rights and still struggle to acknowledge and integrate indigenous decision making in practise, which causes deep inequality. Indigenous groups bear the heaviest impacts of natural resource exploitation. Agriculture, mining and logging cause impurities effecting water quality, air quality, and traditional food source contamination, which cause preventable health ailments. The article calls for renewed environmental rights and justice for the culture and lifestyle of indigenous peoples, which is intrinsically tied with land and water.
Aboriginal and treaty rights were not affirmed in the Canadian constitution until 1982 (really recent!). Despite reserve water rights, Aboriginal title, Aboriginal rights and treaty rights, Walkem mentions that while theoretically legalized, indigenous decision making is rarely reflected in practise. In the US, the Winters Doctrine recognises a legal right to self-sufficient water supply on reserves, which seems like a necessary humanitarian provision. I was surprised to learn this water right isn’t guaranteed on all Canadian reserves. There are clearly layers of complications, for one, the fact that the reserves are federally issued, but the allocation of reserve water falls under provincial jurisdiction. Walkem mentions B.C as an example, highlighting how reliance on ocean fisheries have been used as an excuse for reducing reserve size granted.
On a deeper level, the colonial attitude of hunger for conquest, reining in the forces of nature and making a profit on environmental destruction, seems to have shaped current “decontextualized resource management”, as mentioned by the author. The attitude opposes the way indigenous peoples see their relationship with nature. Symbiotic relationships with the environment are deeply entrenched, and follow principles of a “kincentric ecology”. Kincentric ecology recognises the entwinement of people with all other living processes. Sustaining a life in the environment is only possible when the surrounding environment is viewed as kin.
Respect for all living things and people, and a long-term outlook, like the “seventh generation” principle mentioned by the author, is key to sustainable water management. Consultation and proper upholding of rights outside a colonial legal and court system is also needed. Walkem highlights the loss of human cultures should be viewed as a part of environmental protectionism. This ongoing denial of indigenous rights can be viewed as a kind of “environmental racism”. It is clear there must be fundamental changes in the way we manage resources.
Q1: Do you think giving legal person-hood to rivers is a viable option for environmental protectionism in Canada?
Q2: How would we go about better integrating indigenous law with federal and provincial law in a harmonious way?
Boyd, D. R. (2011). No taps, no toilets: First Nations and the Constitutional right to water in Canada. McGill LJ 57: 81.
In the first paragraph, Boyd poses the question: “do First Nations have an enforceable constitutional right to water?” (82). He answers this question right away, stating that they do based on various sections of the Canadian Charter of Rights and Freedoms as well as the Constitution Act, 1982. In his paper, he examines these laws, deconstructing them in order to prove that water is a fundamental human right that everyone should have. His analysis of laws also works to demonstrate how interpretable laws how and how they can specific yet broad at the same time. He examines a variety of Indigenous communities that are currently suffering due to the lack of basic amenities.
Everyone understands the importance of water, but when we think of water is usually just in terms of staying hydrated. We don’t typically include the water in toilets and showers in our initial thoughts about water, but we should. As this paper demonstrates, water relates to our health and sanitation, but it is also tied to our mental health, dignity and identity. One of the things that struck me while I was reading was there was no recognized legal status for communities that lived on reserves. While some laws may have mentioned the right to water, none enforced it, and because of that Indigenous communities were stranded without basic water services, forcing (in some cases) them to move, effectively making them choose between their identity and their health. The inequality was astonishing, and the blatant disregard was shameful. It just seems like such an obviously high-profile issue, why wouldn’t it be dealt with better? A large portion of the paper was dedicated to this discussion of the importance of water as it relates to people and communities. One of Boyd’s examples was the community of Pikangikum in Ontario. They have been severely affected by a series of health issues directly related to their lack of water access. There has been a correlation made between living conditions and the rate of suicide.
Furthermore, I found it appalling that Canada- known for fresh water- had either voted against or abstained from recognizing the right to water.
Boyd spends quite a bit of time going through these legal framework analyses. It appears that one of the big “holdups” in this whole legal issue has to do with language. Language in terms of specific vocabulary used but also in terms of actual language. As a bilingual nation, Canada’s laws exist in both French and English, which can have slight variances in meanings, which then affects the way it is interpreted. It was also mentioned that the legal framework is under-inclusive. There just seem to be so many issues surrounding the interpretation of the law, which then translates into a delay in coming to a solution on how to solve the issue. So much delay that “it seems governments have lost sight of the urgency of taking concrete action” (133). He ends by adamantly answering his initial question by stating that water is an essential service and that everyone has the right to life, liberty and security, all three aspects which are dependent (in part) to one’s access to safe water.
Questions:
1. Why do you think Canada has voted against or abstained from recognizing the right to water?
2. What would a water-secure world look like?
In “The Land is Dry: Indigenous People’s, Water, and Environmental Justice”, Ardith Walkem emphasizes the resilient relationships Indigenous peoples have with water. Drawing from court case to court case, Walkem highlights persistent efforts to defend these relationships, and how defending water is part of the larger battle for Aboriginal title and rights. Walkem introduces the article with a Nlaka’pamux story regarding displacement from their territories, and proceeds with critical discussion on Canada’s historical and ongoing colonial history with Aboriginal rights and title, treaty rights, and water rights. Throughout the text, they assert that water must be treated as more than just a resource to be controlled and exploited. In doing so, Walkem reminds readers of who’s land they really are on.
While reading this article, I was constantly thinking of ongoing contestations between the Wet’suwet’en Nation and Coastal Gaslink, as well as the global efforts in support of defending Wet’suwet’en rights to their lands, water, and livelihoods. Particularly in the context of the current global COVID-19 pandemic, the federal and provincial government has not halted construction on this heavily protested pipeline, putting tens of thousands of lives at risk everyday. This is not only the case for Wet’suwet’en, but for many other resource extraction projects impacting small Indigenous communities. It is especially alarming with regard to boil water advisories in many of these communities, as well as the lack of support for medical supplies and limited access to health services. Walkem cites section 35 of the 1982 Constitution Act which reads: “the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed”. However, it is clear through court cases mentioned (1996 Van Der Peet case, 1997 Delgamuukw case, etc) and re-affirmed through ongoing events, that Canada really does not take this section seriously. It further re-affirms Walkem’s point that colonizer views of water are human centered and assuming that water exists to serve our needs and aspirations.
In thinking about the future of water and Indigenous rights in Canada, the recent implementation of UNDRIP in BC may be a game changer. For example Article 25 of UNDRIP specifically details that “Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas…”. Further, Article 32 also specifically mentions water and other natural resource exploitations. Then again, given the current contestations on Wet’suwet’en territory, the provincial government’s disregard for this legislation in addition to section C-35, is not encouraging or hopeful.
Questions:
1. What do you envision for the future of Indigenous and water rights – here and perhaps in the rest of the world?
2. Walkem states that “a fundamental change is needed in the way that Canadian society makes and measures decisions that affect water” (p. 313). What do you think this change might look like?
No Taps, No Toilets: First Nations and the Constitutional Right to Water In Canada” by David Boyd
This article traces the ideas of indigenous water security in Canad through time (back to 1970s), involving international, national, provincial and even municipal levels of law, bylaw and regulations. Then the author reached the conclusion of that First Nations do have an enforceable constitutional right to water based on the right to life, liberty and security of the person under section 7 of the Canadian Charter of Rights and Freedoms; the right to equality under section 15 of the Charter; and governments’ obligation to provide “essential public services of reasonable quality to all Canadians” under section 36 of the Constitution Act, 2982. However, still the fact is 99 percent of Canadians have a safe access to potable water but 1 percent of them do not. Across Canada, still estimated five thousand homes in First Nations communities live without basic water and sewage systems. Also, this paper points out that Indigenous communities are 90 percent more likely no to have a safe access to water. Then, he raised examples of Pikangikum in Ontarip, Kitcisakik in Quebec, Little Buffalo in Alberta, and St. Theresa Point, Wasagamack, Red Sucker Lake, and Garden Hill in Manitoba. Note that the legal statements the author rely on to assert the legal framework of First Nations water security have nothing specifically referring to “water” actually. It show the right of Indigenous people, no matter water or what, is bounded with every other groups. It seems like every one is equal in every sense of social life, and there is no such thing called First Nations/ Indigenous people or non First Nations/Indigenous people. However, from the reality demonstrated by the author, it in fact show the rights of Canadian First Nations/Indigenous people are protected only when the rights of non First Nations/ Indigenous people are protected under the constitution. One thing that is interesting to mention, from the author, is that the definition of First Nations/ Indigenous people is given by non-First Nations/ Indigenous people. Many defacto Indigenous people are not identified as Indigenous people by the federal and provincial government. Therefore, when enforcing the law and whatever else, related to Indigenous people, their right and profits are not under protection. Shocking and confusing, what made it? Now that 99 percent of people have enjoyed safe water facilities and infrastructures, why they must leave the remaining 1 percent? Because of remaining 1 percent are particularly Indigenous people, it is reasonable to think about racism in this case. Now that we have constitutional support, as well as accordance from international law, to First Nations’ water security, what should we do at next steps given that government always either neglect the people or break their promise? Always problems are not real problems. Real problems are we can not find ways to solve the problems.
Q1:Do you think Indigenous water insecurity is caused by purely racism or some other factor?
Q2:Now that we have constitutional support, as well as accordance from international law, to First Nations’ water security, what should we do at next steps given that governments always either neglect the people or break their promise?
Reflection#5
In The land is dry: Indigenous peoples, water, and environmental justice, Ardith Walkem advocates in favor of the indigenous peoples’ rights to water. She also argues in favor of a deeper change in Canadian society and the international society in general regarding the use of our natural resources.
She starts her chapter by bringing up a personal story as part of an indigenous community, the Nlaka’pamux. She is describing their way of living, in line with nature, disrupted by the newcomers’ arrival and their own relationship to nature. By that little introductive story, she’s raising awareness on the situation of indigenous communities throughout the country. She’s then engaging in more general terms.
What I find interesting is the conflict between federal, provincial and territorial powers. There is the existence of a constitutional act on Aboriginal rights that take into consideration indigenous communities’ rights. However, provincial and territorial laws are conflicting with this act forcing the indigenous peoples to file expansive lawsuits to make the authorities recognizing and respecting their rights on their land. The author’s denouncing the importance of justice, especially the supreme court in the recognition of the indigenous peoples’ rights. One of the rights they are fighting for is their right to be able to sustain themselves on the lands reserved to them, which implies the full protection of the water. They are denouncing the fact that even when the government is respecting their access to water resources the waters are often polluted because of the abusive use of the resources by the Canadian populations.
What is interesting then, is also the denial of indigenous customs and laws because of their orality. Yet their laws are in line with the protection of the environment and not only for our generation but for the future ones which are precisely what is missing in the way we use our resources and we exploit them.
The author qualifies the situation of environmental racism. I think the word is pretty adequate for the situation. However, I think and as Ardith Walkem stresses out later on, that the indigenous peoples’ revendications are part of a bigger matter, of the environmental crisis. The indigenous problem and treatment are part of a system of overexploitation of the natural resources that leads to pollution and diseases and end up having a disastrous impact on the environment. More than their relations to indigenous traditions and relation to lands and natural resources, the governments refuse to reduce their impact because of a more profitable system.
Then, isn’t the problem of the indigenous peoples a matter of protection of the environment? Meaning something more than just racism over a population (not meaning that this racism does not exist), but part of a global disregard over climate change. The other interrogation I would like to address would be over the laws and powers’ conflicting because of a multiscale decisional system that at the end doesn’t profit local communities and populations – To what extent a multiscale power can work in terms of natural resources’ management?
No taps, no toilets: first nations and the constitutional right to water in Canada by David R. Boyd.
In this Paper, David Boyd denounce the inequalities in the access of water. In fact, in Canada, the access is not the same for citizen of urban areas and first nations, “100 percent of urban residents and 99 percent of rural residents have access to improved drinking water and sanitation as of 2008”. First nations people still lack access to running water or flush toilets. These disparities result in higher rates of communicable diseases and reinforce the inequalities that already exist between first nations and other Canadian citizens.
One of the points that has held my intention in this article is Canada’s opposition to the international recognition of the right to water. Historically, Canada has opposed or abstained several times, for example, when the UN General Assembly approved the resolution recognizing water as a human right in 2010, Canada abstained. I wasn’t aware of that, and that surprised me a lot. I had the opportunity to learn a little bit about First Nations culture in a course about the History of British Columbia, (which I found very interesting because in Europe I never had any historical teaching about it, either in high school or university) and I discovered that water was a sacred and precious resource in Aboriginal traditions and culture… So, I assumed that, on the contrary, Canada was a country in favor of recognizing this right.
Even though the Canadian Constitution Act does not explicitly recognize a right to water, Boyd defends first nations and explains that first nations have a constitutional right to water. I found this article very interesting and convincing because it is based on rights such as the right to life, the right to liberty, the right to security of the person, guaranteed by the Canadian Charter of Rights and Freedoms. It is also based on section 36 of the Constitution Act, 1982, and on Canada’s commitments and obligations under international human rights law. The Charter does not explicitly recognize this right, and in addition the Canadian government does not recognize an existing right to water, either internationally or domestically. Even if this right raises a problem of interpretation and creates controversy, the situation is moving slowly and for example, Quebec became the first nation to recognize water as human right. So, the situation is changing, but there is no unification. Unlike the United States, there are no unified national standards for drinking water in Canada. There are only national guidelines that are adopted differently by the provinces and territorial governments. I think that this slows down the recognition of this right and that legislative unification would be beneficial for first nations.
I appreciated Boyd’s arguments for recognizing a right to water. Like him, I think that right should be recognized, and I think it is already written into the charter. Moreover, as he points out, the Canadian constitution is a “living tree” so it can evolve to meet new standards. All Canadians have the right “to safe drinking water, an essential service that is vital to life, health, and human dignity”. However, through this article David Boyd proves that the Canadian government is currently violating this right for residents of certain reserves. I agree with him and I think that changes are needed to put an end to its inequalities, which are sources of great discrimination.
1) How do we explain this historical opposition to the recognition of the right to water?
2) Do you think that the creation of national standards (as in the USA) could be beneficial?
In the reading titled, “The land is dry: Indigenous peoples, water, and environmental justice,” written by Ardith Walkem, many of the injustices put upon the Indigenous communities in Canada are highlighted, with a specific focus on the right to water. Before reading this article, I was aware of some of the harsh realities that Indigenous peoples have to live through each day, but did not know much of the laws and regulations around water and how those specifically are effecting Indigenous communities. As Walkem mentioned, reserve lands are federal creations, however reserve water allocations fall under provincial or territorial water regimes. This leaves the water allocations to be determined by whichever provincial government is responsible for that area. I wonder if this perhaps allows room for bias and personal gain on behalf of the provincial governments. Walkem mentioned that in some cases, provinces have either refused to honour reserve water allocations, and others have outright cancelled them. With this being said, it is evident that provincial failure to honour water allocations included in reserve creation remains a prominent issue within water governance.
It is also fairly obvious that the water that these Indigenous communities do receive, if any at all, is usually contaminated in one way or another. Walkem mentioned that in approximately 20% of Indigenous communities across Canada the water supply is contaminated. This is usually due to activity such as agriculture, mining and logging. Furthermore, for those communities that are only given access to contaminated water, there is no adequate funding provided for proper water treatment facilitates. This ultimately just perpetuates the contamination of water and never improves the situation. The article did mention several Indigenous laws. However, so many provinces deny these laws which has allowed these destructive activities to continue into our future.
I think it is extremely important to note that Indigenous communities lean on water for survival, more so than the westernized society does. Indigenous communities need water in order to fish and produce their food for the community. However, Walkem states that British Columbia used this reliance on the inland and ocean fisheries to justify setting aside smaller reserves, arguing that a smaller land base was required in order for indigenous peoples to sustain themselves on the fishery. It is evident, like Walkem mentions, that Canada has ultimately just reduced indigenous peoples’ access to the fishery and furthermore, failed to protect the indigenous fishery from over-fishing or pollution.
This article reminded me a lot of one of the topics in my indigenous literature class where we talked about the un-mapping of indigenous land through settler diversion of water. By implementing these destructive behaviours such as agriculture, mining and logging, we are changing the course of our water channels and therefore changing animal habits and ecosystem functions. For centuries now, indigenous communities have memorized and relied on the initial course of water. They are now forced to re-learn the flow of the land and the patterns of the animals they hunt to survive.
1. What are some consequences for having reserve water allocations fall under the responsibility of provincial or territorial water regimes?
2. How are we able to learn from our past decisions in order to better our future methods for effective involvement of indigenous groups in water governance?
In “No taps, no toilets”, Robert Boyd makes the case for the existence of a Constitutional positive right to water, and proposes that the ongoing crisis of unsafe water in First Nations communities in Canada is a violation of this right. While neither the Constitution Act, 1982 nor federal legislation recognize the right to water, Boyd argues that the generous interpretation of sections 7 and 15 of the Canadian Charter of Rights and Freedoms, and section 36 of the Constitution Act support the constitutional right to water for First Nations in Canada. His argument was compelling: access to clean water is a precondition for a healthy life, the failure of government to provide adequate potable water is a violation of the right to life, liberty and security. Further, it represents a failure to deliver reasonable public services.
I was surprised by the complexity of water laws in Canada, which resemble a ‘patchwork’ of overlapping federal and provincial regulations. The Canadian Labor Codes hold the federal government accountable to provide clean water for federal employees working on reserve. Provinces may legislate water standards, but they do not establish standards which apply to reserves. Yet, federal or provincial legislation does not exist to ensure that First Nations communities are given water and sanitary services equal to those of comparable off-reserve communities. As Boyd argues, First Nations reserves are left in a ‘legal lacuna’.
I found Boyd’s cross-jurisdictional comparisons helpful to critique Canada’s regulatory failure. In South Africa, the constitution has enshrined a positive right to water. In the United States, there is a national drinking water standard that applies to communities both on and off Native American reserves. While I was aware that federalism divides powers between various levels of government, I was still surprised that for all the layers of law, no law explicitly protects water for First Nations reserves. Responsibility for this failure to provide services rests with the federal government, who are constitutionally responsible for Indian reserves.
I was concerned by the fact that the federal government has failed to establish or even propose a legally enforceable water standard for reserve communities that does not ‘download’ responsibility onto reserves without the capacity to meet these standards. Earlier proposals, such as Bill S-11, “The Safe Drinking Water for First Nations Act” would set water quality standards for reserves, but the responsibility for meeting them was heaped on First Nations communities. Due to critical lack of investment in their communities, these standards were unobtainable for many First Nations communities, who opposed the Bill and argued that full funding of infrastructure ought to come from the federal government and the provinces.
Question 1: Other than financial costs, what barriers do the provinces and federal government face in establishing a national safe drinking water standards for First Nations reserves?
Question 2: How could new water management legislation for First Nations reserves be designed to both receive significant support from the provinces and federal government while also respecting Indigenous worldviews and sovereignty?
In “The Land is Dry: Indigenous Peoples, Water, and Environmental Justice,” Ardith Walkem, Indigenous sovereignty and knowledges are situated against the current settler colonial apparatus. The experience of Nlaka’pamux people of Twaal is not in isolation to the broader injustices afforded on Aboriginal communities. These injustices are part of a larger apparatus of colonialism and capitalism, which remains entrenched and embedded in the fundamental logics of the state. I am reminded of Professor Derek Gregory’s class and vocabulary around the ‘colonial present’ and ‘slow violence’ Indigenous groups face though the façade of ‘colonization’ has moved from the specific colonizer per se, but to institutions like the courts. Moving from the distinct colonizer and conquistadors to the courts, these individuals and their logics have moved into the fundamental institutions that make up the legal system. This type of ‘slow violence’ does not occur simply overnight, but is the result of long struggles and injustices against Indigenous peoples. The culmination of slow violence produces tragedies often decades in the making. As such, it is no surprise that Canada has historically denied territorial rights, including that of waters, to exist. This inherent or capital intensive work appears to be hidden, but is well alive. Walkem notes that, “similar experiences of displacement from territories, conflicts over waters, and interference with lifeways and traditions as a result of newcomer activities divert, pollute, or degrade waters” (p. 326). The imposition of foreign laws and values on Indigenous peoples disregards epistemologies and ontologies (kincentric ecologies) of lands and water as sacred. At its core, kincentric ecologies recognize that all living things are connected
In my work on environmental (in)justice, I find the operate from the praxis that the term ‘environmental justice’ to refers to the absence of fair treatment in the case of Grassy Narrows or Flint, for example. Instead, I have tended to use ‘environmental injustice’ to emphasize the current state of affairs and to focus on the negligence and failure to protect the most vulnerable populations (Bullard et al., 2000). The connotations associated with injustice evoke a sense of agency to the conversation as mercury “poisoning [in the case of Grassy Narrows] suggests a deliberate and indeed evil act” and calls into question whether the water crisis could have all been prevented (Pulido, 2016, p. 2). In a reading for another seminar, I came across the work of Dakota scholar Elizabeth Cook-Lynn, who brings to our attention the deliberate elimination of Indigenous people that simultaneously disavows and devalues their existence through the law and absence of the law.
Similarly, when Indigenous people do bring their cases to the courts, they must, “prove that their rights exist” (Walkem, p. 331). What I find striking is that there is already power imbalances and information asymmetries at work from the onset. The treaties signed between nations, which were supposedly made on the bases of mutual agreement and understanding, often favour anyone but Indigenous people. What appeared on the surface level to be beneficial for both parties at times reflects subversive language or the withholding of complete information for all parties to make an informed, consensual decision. While these imbalances appear to be compounded given the current state of affairs, the Delgamuuk case before the Supreme Court recognized the existence of Aboriginal title.
1. The experience of Nlaka’pamux people of Twaal is not in isolation to the broader injustices afforded on Indigenous communities today communities. The lack of respect for the Indigenous sovereignty, epistemologies, and ontologies is being contested in the Wet’suwet’en struggle against the Coastal Gas Link Pipeline. Indigenous rights seem to be incompatible with the current system of setter colonialism as well as capital accumulation and dispossession. As such, is it possible to tackle both systems of oppression through the same legal system that was premised on the absence and elimination of Indigenous rights?
2. While reading, I was reminded of the seminal work of Eve Tuck (2012), who notes that “decolonization is not a metaphor.” What role must UBC continue to play as an institution on the unceded, ancestral, and traditional territories of the Musqueam people? All the more, what role do we as students learning and living on this land play in ensuring decolonization does not become a buzz word or a metaphor? How do we guard against this and ensure Indigenous knowledges are placed at the forefront of these struggles?
The article “No Taps, No Toilets: First Nations and the Constitutional Right to Water in Canada” written by Professor David R. Boyd highlights an incredibly harsh and dark reality about the colonialist roots of the Canadian government and its relationship with the more periphery communities under its rule. The article does a very interesting job of highlighting the key legal framework surrounding the issue of indigenous water governance in Canada and points out the stark differences between the urban core and rural periphery. It explains that the lack of proper sanitation and water services in these rural communities leads directly to a depression in the quality of life of these communities when put into contrast with surrounding communities that do receive these concessions from the government. In a country that claims to be one of the leaders in the world on modern and liberal ideals, this is a very bad look. The article does a good job framing this issue within a global context highlighting how international agencies continue to point out the flaws in the Canadian system and how continued pressure from within the country can produce real change.
An interesting point the article makes is that legally Canada does not recognize the right to water, this is an interesting point as the right to water is an internationally accepted mandate by a significant percentage of countries worldwide including countries that are oftentimes considered less infrastructurally advanced as Canada. One thing that is even more interesting that the article points out is that not only does Canada not recognize the right to water, but it has a history of actively trying to block international legislation on the subject. This is a concerning fact that plays into the ideas of Canada as a colonialist entity. The growing support that the article talks about within the Canadian populace shows how colonialist ideals that may be persistent among the countries political elite are not directly a reflection of the common Canadians ideals.
The article then goes into the specifics of numerous first nations bands who have a variety of different experiences with the lack of proper drinking water and sanitation services. The article shows how each of these communities is at the will of the provincial and federal government as they try and decided how to best provide water to the community. The varying methods used to get water to the communities shows how there is a lack of a single good alternative to proper water and sanitation infrastructure. The stark differences between the reality explained in this article and the reality of the majority of the rest of the country highlights the shortcomings of the Canadian government and is an incredible failure on the part of the leaders of this country that no long term solution has been implemented yet.
Should water infrastructure systems have to be profitable to be built?
Should indigenous communities be allowed/try to formulate their own water systems or can the government be trusted to do so on their behalf?
Ardith Walkem’s reading “The Land Is Dry: Indigenous Peoples, Water, and Environmental Justice”, explores the persistence of a Colonial Worldview in Canadian water governance. The dominant worldview has permeated Canadian law, contributing to a legal framework characterized by environmental racism and the exclusion of Indigenous knowledge. It remains fuelled by underlying political, economic and individualistic interests. Subsequently, decisions surrounding water use and developments that impact water, have contributed to the degradation of the very resource integral to all forms of life. Canadian law has had some of the most prominent impacts on indigenous peoples of Canada, interfering with their ability to sustain their existence, as well as those of future generations. Although Indigenous people are more reliant and intricately tied to water, they remain those most heavily impacted.
A particular point of interest from this reading is the kincentric notion of ecology: an awareness that life in any environment is viable only when humans view the life surrounding them as kin. This notion prohibits the conception of water as an individual right, and rather assigns value to water as a sacred entity that should uphold equal if not greater rights as humans. In my educational experience, I find there to be a certain appraisal for concepts such as ecosystem services, which associates a price to a particular ecosystem function. In a modern day capitalistic society, profitability is too often the driving force behind conservation and management decisions. Rather than valuing and protecting a facet of the natural world for its inherent sake of existence, all value seems dependent on its ability to serve human society. It appears that western law remains egocentric, as opposed to the ecocentric nature of indigenous law and ways of living. I believe that a fundamental transition away from individualism and nationalism is required in order to restore and ‘save’ the environment which we as well as countless lifeforms are reliant on.
Walkem’s exploration of Canadian water governance and Indigenous peoples sheds light to the environmental injustice that, sadly, remains embedded in the colonial, capitalist logics of the state. In the context of this legal system entrenched in histories of settler colonialism coupled with capital accumulation and dispossession, I question whether there can ever exist true reconciliation of Indigenous people’s rights to their lands and waters. Further, I question whether it is at all possible to achieve reconciliation while ensuring that Canada maintains its socio-economic and political interests? Drawing on these questions, I ponder whether there can ever exist a hybrid of colonial and indigenous worldviews and values within our legal framework, or if a dominating force will perpetually degrade the environment and the life forms most closely intertwined.
1. Can there ever be true reconciliation of Indigenous people’s rights to their waters while simultaneously ensuring that Canada maintains its socio-economic and/or political interests?
2. Have there been any recent advancements in Canadian water governance to incorporate Indigenous knowledge and value systems?
In Boyd’s (2011) reading: No taps, no toilets: First Nations and the Constitutional right to water in Canada. Boyd raises the issue of water access for First Nations communities in Canada, who currently lack access to running water and the ability to flush toilets. He argues that First Nations have an enforceable constitutional right to water, which falls under section 36 of the Constitution Act of 1982, which states that the government has an obligation to provide ‘essential public services of reasonable quality to all Canadians”. I found it alarming and deplorable, how the government can be so discriminatory, as to ensure many (99% of Canadians) have access to water, yet often ignore and overlook the experiences of First Nations communities (the 1%). Specifically, Boyd states the vast number of federal laws and regulatory bodies that exist for the 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). Despite these being present for First Nations communities, none of them appear to provide any form of regulations to ensure safe drinking water on reserves. This means that First Nations communities are repeatedly exposed to diseases, such as cholera and typhoid, as a result of the government’s failure.
I similarly agree with many of Boyd’s arguments, and firmly believe that water is basic human right and is written as an international law so therefore, should be followed. I also found it alarming how long the failures of the government have persisted, despite the shocking evidence experienced by the First Nations Communities being widely known. Moreover, despite Canada being so well developed, it is shocking that Canada voted against the UN resolution, recognising that water and sanitation is a human right. I find it somewhat ironic how many provinces and the Canadian government preach that they respect the rights and work together with First Nations communities, however, it is evident that in reality this is not the case. Boyd finally highlights that it is the courts that must fight the battles on behalf of the First Nations, and that this issue requires compliance with the constitution, which, at the moment is being violated.
Question 1: Why has the Canadian government not addressed evident issues faced by First Nations communities, despite having the means and legal obligation?
Question 2: What can be done to ensure First Nations communities have similar levels of water access to the rest of Canada?
In “No taps, no toilets: First Nations and the Constitutional right to water in Canada,” David Boyd outlines how the complex legal jurisdictions governing safe drinking water in Canada have left First Nations Reserves without protection, and examines how the government’s failure to provide adequate drinking water and sanitation violates their Charter Rights. Boyd underscores that this failure stems from three main elements: not enough funding to solving these problems, lack of a regulatory framework over drinking water and sanitation at a federal level, and the criteria of assessment that excludes high-risk communities because they either their water system is non-existent or their inadequate piping infrastructure is not considered. Boyd expands that currently, neither federal nor provincial laws require quality drinking water or sanitation services for First Nations Reserves. He explains that this gap comes from the problem of jurisdiction over reserves, as the provincial laws that protect drinking water do not apply to reserves as they are under federal jurisdiction under the Constitution Act from 1867. However, the federal government does not have equivalent laws to the provincial governments when it comes to guaranteeing clean drinking water on reserves.
This article highlighted the problematic bureaucracy that exists between different levels of the Canadian government in which jurisdictional problems are used as a scapegoat to not provide essential services to all people in Canada. Not only does Boyd make a convincing argument that this neglect by the federal government is a violation of charter rights, but also this article clearly illustrates the intentional inaction by the federal government. For example, their lack of response to criticism by the UN, their abstention from the UN General Assembly’s resolution which recognizes the right to water, and ignoring the recommendations made by the Expert Panel on Safe Drinking Water for First Nations. This just shows how little the federal government values these communities and it shocks me the slow pace at which these issues are being addressed as one would think that the Canadian government would be in more of a hurry to correct the shameful fact that people in this country are living without access to proper sanitation and safe drinking water and the threats that has on peoples health. This neglect shows that the government lack of will to act on issues regardless of the damage it does. This paper made me think about the interview with Jagmeet Singh in which the reporter asked him if he was just going to write a blank cheque for all problems faced by Indigenous Communities and he responded why is that even a question? You would not be asking if Vancouver or Toronto had a drinking water problem. I think this interaction highlights the lack of political will surrounding this issue and its lack of prioritization by not only governments but by other Canadian citizens who are not directly affected. Everyone in this country has the right to have access to clean water and sanitation and the fact that this problem has been continuously negotiated and questioned shows that the government of Canada does not consider everyone equal under the law.
The issue of water management and supply is very critical in society. People require access to fresh drinking water and for sanitation purposes in urban and rural areas. According to “No Taps, No Toilets” by David Boyd, the right to water in Canada is still a significant issue among the people in First Nations. The people and communities in rural areas experience disparities that have contributed to the lack of running water or flush toilets. The reading highlighted aspects of the right to liberty, life, security, and equality on the issue of water management in Canada.
I find the reading very informative regarding the importance of the supply of water to people within the country. The article indicates that people have constitutional rights to water, and it should be enforced based on the country’s constitution. According to the legal frameworks, the people of the First Nations should access safe drinking water based on national standards of drinking water in Canada. The reading significantly depicted the need for adhering to federal laws and regulations on provisions related to portable water. As indicated in the module, people in rural areas still experience disparities despite policies laid out on the distribution of water resources. Boyd (2011) asserts that First Nations individuals living in on reserves are not protected by federal regulations that are applicable in urban areas. This raises issues on interventions implemented by governments to tackle the problem of water shortages in remote areas.
I also find the reading enlightening and useful in analyzing the issues of the right to life, liberty, and security of citizens within a country. Unlike other articles, the reading demonstrated different kinds of rights based on the subject of water shortages. Boyd (2011) claims that the lack of water in First Nations is against the constitutional provisions issued by the Canadian constitutional law. Based on the module, it is evident that water is an essential service that is vital to the health and life of humans. The reading highlighted a failure by the Canadian government in providing safe drinking water and for sanitation, which amounts to a contravention of human rights. In my perception, water management must be a top priority in government, and practical measures on the distribution of water resources must be implemented.
The reading extensively tacked the issue of the right to equality regarding water resources. In water management, government and authorities are tasked to plan, develop, distribution, and encourage opium use of water resources among the public. More efforts are made to conserve and allocate water to people living in all areas with a country or region. The reading touched on the differential treatment of people in Canada with the communities in First Nations experience inequalities. Boyd (2011) indicates that Aboriginal people are affected by stereotypes, prejudice, and other vulnerabilities that contribute to their water shortages. In my view, societal inequalities must be controlled by developing prudent intervention o water management. More efforts must be made to develop infrastructural systems and water conveying mechanism that will be vital in increasing access to water by all people.
Based on the reading, two questions must be researched and answered on water management. Firstly, “Do people have the constitutional right to supply and access to fresh water?” The second question is, “Does denying people access to water amount to a denial of their right to life, liberty, security, and equality?”
Walkem’s “The Land is Dry: Indigenous Peoples, Water, and Environmental Justice” explores how the colonization of Indigenous territories and waters have compromised Indigenous Peoples’ ability to sustain themselves on their lands, threatened their identities, and even threatened the existence of their people. The article also highlights the various sources that exist within Canadian law, which recognize and protect Indigenous rights to water. These include reserve water rights, aboriginal title, aboriginal rights and treaty rights. However, Walkem also highlights how even when these have been established to protect Indigenous rights to water, they are not fully honoured due to the fact that the federal government, provincial governments and private sector companies do not abide by these and proceed with land use and development with little regard for the Indigenous Peoples. In addition, these forms of constitutional protection only refers to areas in which the Canadian government and courts are willing to recognize Indigneous Peoples’ territorial rights. This is attributed to Canada’s deeply rooted history of denying Indigenous territorial rights. Even when Indigenous Peoples have taken these cases to Canadian courts, these cases often lead to no avail.
The problem of Indigenous Peoples’ lack of access to water and clean water stems from the disparity that exists between federal and provincial laws. That is, reserve lands are federal creations, whereas reserve water allocations are a provincial water regime. Therefore the failure comes from the fact that oftentimes, reserve allotments do not explicitly include water and therefore provinces do not prioritize this. In addition, Walker’s article highlights that “in approximately 20 percent of Indigenous communities across Canada, the water supply is contaminated and poses significant health risks for Indigenous peoples…The resultant contamination is exacerbated by a lack of adequate funding for proper water treatment facilities” (pp. 305). This is problematic due to the fact that many Indigenous activities “are closely tied to water and rely upon a continuing supply of clean water” (pp. 307). In addition, for many Indigenous groups, water is a spiritual means.
What other barriers do federal and provincial governments face with regards to the supply of clean water to reserve lands (other than financial costs)?
Canada signed the UNDRIP in 2013, however their actions have shown a lack of commitment to the declaration. Even before signing it, Canada presented hesitations with signing it. Why sign this in the first place then?