Canada: Blind Eye to First Nation Water Crisis

(Toronto) – The next Canadian government needs to compensate Neskantaga First Nation for the costs associated with evacuating the community after a water infrastructure failure, Human Rights Watch said today. The government should also have a mechanism to deal with major infrastructure failures in remote First Nations communities.

On September 12, 2019, the water pump at the community’s water treatment facility failed, leaving some homes completely without running water and others with water that was not safe to use except to flush toilets. The remote community – only accessible by plane or winter roads – declared a state of emergency on September 14 and began evacuation by air of the majority of community members to Thunder Bay, including chronically ill adults and infants. Indigenous Services Canada refused to provide evacuation assistance at the time.

“Facing a potential human rights and health crisis after a water pump failure, the Chief and Council were left to act alone to protect the health and safety of their community,” said Amanda Klasing, water expert at Human Rights Watch. “The government failed to help the people of Neskantaga, and they should not be on the hook for the cost of dealing with this crisis.”

Indigenous Services Canada denied the community evacuation assistance when the pump failed, claiming that it would be a quick repair and there was no immediate health or safety risk. Chief Chris Moonias disputed that finding, saying that providing bottled water in the interim was insufficient to address the community’s health and safety needs.

Grand Chief Alvin Fiddler of Nishnawbe Aski Nation said that Indigenous Services Canada officials told Neskantaga that no precedent or policy existed to provide evacuation or other forms of assistance to remote communities affected by a major infrastructure failure. The cost to the community of dealing with the evacuation alone puts it at risk of losing control of its finances.

A pump was flown in from southern Ontario, and water tests conducted on September 18 and 19 were sufficient to lift the do-not-consume warning. Members began returning on September 23.

In 2016, Human Rights Watch documented the impact of serious and prolonged drinking water and sanitation problems for thousands of First Nations people – indigenous peoples in Canada – living on reserves. The findings detailed problems with safe water and sanitation on reserves, including a lack of binding water quality regulations, insufficient funding, faulty or substandard infrastructure, and degraded source waters. The federal government’s own audits over two decades show a pattern of overpromising and underperforming on water and sanitation on reserves.

Human Rights Watch research focused on the unique human rights challenges faced by Neskantaga First Nation, which has operated under a boil-water advisory for nearly 25 years. Situated on the banks of Attawapiskat Lake in Northern Ontario, Neskantaga First Nation is a remote Oji-Cree community of approximately 300 registered members. Its main settlement, previously known as Lansdowne House, was relocated beginning in the 1980s, with the promise of better services, including housing, water, and sanitation.

The community’s water system, funded by Indigenous and Northern Affairs Canada, an agency that has since been divided and renamed, was built in 1991. The system that was designed never met the needs of the community in practice. A “boil water” advisory put in place in 1995 has remained in effect ever since. The community requested a new plant, but it was only years later, in 2017, that the federal government finally secured funding. The intended completion date was 2018, but construction has been beset by delays and, in early 2019, the community fired the contractors. With a new contractor, Neskantaga’s new water treatment facility will not be operational until the end of October or November, according to officials who have spoken with the contractors. Meanwhile, Neskantaga remains dependent on the old system, which includes a machine that refills bottles with water for drinking but is difficult to use.

The community cannot pay for the emergency action from its budget without putting it at risk of default status with Indigenous Services Canada and placement into third-party funding agreement management, and loss of budget control.

“In the absence of policy guidance from Indigenous Services Canada, First Nations leaders should not be punished when they act quickly to avert a potential human rights and public health crisis,” Klasing said. “Such action creates an incentive to sacrifice community health and safety to avoid financial risk.”

Since 2015, Canadian officials have worked to eliminate drinking water advisories in First Nations reserves, lifting 87 long-term advisories through dedicated investments. However, at least 56 drinking water advisories remain in place and the underlying systemic water and wastewater problems facing First Nations in Canada remain, including a lack of regulations to protect drinking water on reserves.

Parliament passed the Safe Drinking Water for First Nations Act (SDWFA), which entered into force in November 2013, and called for regulations. In December 2015, a special Assembly of Chiefs sponsored by the Assembly of First Nations passed a resolution on safe drinking water for First Nations, which declared that the act “was developed without meaningful consultation with First Nations, is contrary to inherent authority of First Nation governments and does not reflect the principles of Customary Laws regarding water.” The resolution called for the repeal of the act. It reiterated the call for repeal in 2017 and called for the federal government to develop in partnership with First Nations the next steps in engaging with the SDWFA.

The human right to water entitles everyone to sufficient, safe, acceptable, physically accessible, and affordable water for personal and domestic uses. Among other obligations to guarantee the right to water, Canada should ensure a continuous water supply for drinking, personal sanitation, washing clothes, food preparation, and personal and household hygiene. Canada also has an obligation to ensure that First Nations have the resources to design, deliver, and control their water access.

The Canadian government is aware of the condition of water infrastructure on First Nations reserves and should have contingency plans for major infrastructure failure, particularly in remote, fly-in communities. These plans should define roles and responsibilities around decision-making on possible evacuations or other extraordinary measures to protect the health and safety of community members.

In the absence of these procedures, the government should recognize the urgent dilemma faced by Neskantaga leaders when faced with a pump failure and potential liability for the resulting harm to health and human rights. Neskantaga should not have to bear the financial brunt for an infrastructure failure, and Indigenous Services Canada should work swiftly to compensate the community for the cost of evacuation, Human Rights Watch said.

“The federal government was unprepared to act to prevent serious harm from a failed water system, but that is no excuse to financially penalize Neskantaga leaders and community members for prioritizing their own health, safety and rights,” Klasing said.