Report of the Expert Panel on Safe Drinking Water for First Nations

Other Legal Considerations

Below we consider a number of legal issues that are relevant to an assessment of regulatory options.

7.1 Liability of Bands and Band Councils

Although there is some uncertainty on the legal capacity of bands and band council, there appears to be support in the case law to the effect that bands and band councils may sue and be sued. In any event, any legal uncertainty can be avoided by naming in the style of cause the band and the band members, acting on their own behalf as well as on behalf of all other members of the band. [96]

The ability to sue bands and band councils opens up potential claims of liability against the band and band council, possibly as owner of the water facility, under the common law doctrine of occupiers' liability, or for negligence as operator of the facility.

There is some ambiguity as to the legal ownership of the water facility. However, given that bands have incidents of ownership, bands may have liability based on ownership of the water facility. Incidents of ownership are evidenced by the fact that:

the band has rights to use and occupy the land and facility situated on the land to the exclusion of all others, including the Crown, and
bands may obtain financing and obtain a mortgage on the water facility. Water facilities are treated and recorded by the Crown as band assets.

Notwithstanding the ownership issue, bands and band councils may also have occupiers' liability. [97] The status of "occupier" is not dependent on ownership of the premises, but rather is based on control over the premises. [98] An occupier includes a person who has supervision and control of the premise and the power to admit and exclude the entry of others. There could also be more than one occupier of the premises. [99]

In having a property interest and control over the reserve land, bands may arguably have occupiers' liability. Moreover, there is also the possible argument that the Crown has joint liability under this doctrine since the Crown retains the underlying title to the land. [100] Under the Indian Act, s. 18(1) reserve lands are held for the use and benefit of the band and Her Majesty the Queen holds the underlying title to the reserve lands. [101]

The introduction of new federal water legislation would provide the opportunity to clarify any ambiguity about ownership of the water facility and the resulting liability that flows from being owner.

The case of Wright v. Moosomin First Nation suggests that a band council may be held liable for negligence arising from improper operation of water and wastewater facilities. The Court in Wright found the First Nations-run school to be negligent in failing to properly supervise the school yard. The Court found that "a First Nation that operates a school is in much the same position as a school board that operates a school." [102]

However, bands and band councils, similar to any governmental operation, may nevertheless be held liable for negligence if they fail to meet their standard of care in discharging their responsibilities as operators of the facility. In such a case, the band may benefit from the due diligence defence and be absolved from liability if it can show that it took all steps expected of a reasonable person to prevent the incident.

7.2 Aboriginal Self-Government and Land Claim Agreements

The federal government introduced in 1995 a policy guide recognizing First Nations' inherent right of self-government as an existing right within s. 35 of the Constitution Act, 1982. [103]

Given this policy direction, a viable and effective drinking water regime should seek to allow First Nations to advance and make concrete this right under any water regulatory framework.

New federal legislation could accomplish this objective.

Under existing self-government agreements, First Nations may have jurisdiction over the regulation of water and wastewater under a public works and community infrastructure provision. [104] These First Nations may adopt federal water legislation if they so choose.

For First Nations without such law-making powers under their agreements, or which do have jurisdiction but have not exercised it, then "federal laws of general application” apply. A federal water law may apply as a “federal law of general application" to such self-governing First Nations.

All agreements contain an amending procedure should a First Nation wish to revise its self-government agreement to include primary jurisdiction over water regulation. This process may be initiated by either party: the self-governing First Nation or the federal government. Amendments generally require the consent of both parties.

To ensure uniformity and consistency of water quality standards, future self-government agreements could include a provision in the agreement requiring the First Nation to maintain standards equivalent to that of the federal government.

Land claim settlement lands are more problematic. It is questionable whether such lands continue to be s. 91(24) lands and therefore within federal jurisdiction. As such, it is uncertain whether a federal water legislation applying to s. 91(24) lands would include settlement lands. These First Nations, however, may choose to adopt provincial or federal legislation if they so wish.

7.3 International Examples

We consider below the approach taken in three other jurisdictions in regulating water quality for their aboriginal peoples. This review reveals the considerable variation in the approaches taken in other jurisdictions in the regulation of water for aboriginals. Such divergences, however, may be accounted for by the unique cultural and legal histories in each jurisdiction.

We examine in turn the United States, Australia, and New Zealand.

7.3.1 United States

In the United States, support for tribal sovereignty of federally recognized Indian tribes rooted in the American domestic regime was recognized as early as the 1830's by the Supreme Court Marshall decisions. [105] Since 1871, when Congress ended the treaty-making process, relations with Indian groups have been governed by Congressional Acts, Executive Orders and Executive Agreements.

The self-determination era began with an act of Congress: the Indian Civil Rights Act of 1968, an Act which was opposed by the majority of tribes. [106] This eventually led Congress to introduce measures removing many of the barriers to tribal self-government. In 1975, Congress enacted the Indian Self-Determination and Education Assistance Act, which further reinforced the notion of tribal self-government. [107]

This political approach informs the current drinking water quality framework on tribal lands in the U.S. A unique feature of this regime is that the U.S. federal government, while having primary responsibility for implementing and enforcing drinking water regulations on tribal lands, may by statute authorize certain program authority to tribes that qualify as states.

Drinking water quality is regulated by the federal Safe Drinking Water Act (SDWA), which was first enacted in 1974 and amended most recently in 1996. [108]

The U.S. Environmental Protection Agency (EPA) is the regulatory body responsible for setting and enforcing drinking water regulations and standards. The U.S. EPA established the Public Water System Supervision (PWSS) program under the SDWA.

Under the Act, the U.S. EPA may authorize tribes to implement the PWSS program, a process referred to as obtaining " primacy," if the tribes meet certain requirements. To date, only the Navajo Nation has obtained " primacy." [109] State laws regulating drinking water generally do not apply to federally-recognized tribal lands.

7.3.2 Australia

Canada and Australia share a similar cultural and legal history: both countries were colonies of the British Commonwealth, and received the common law of England and written constitutions providing for a federal system with a set of division of powers between the federal and regional governments. [110]

Notwithstanding the similarities, there are two key differences which may account for the different approach to water regulation in Australia:

unlike Canada, which grants the federal government exclusive legislative control over "Indians and Lands reserved for the Indians," state governments in Australia had the main responsibility for the policy-making of aboriginal affairs. After the 1967 referendum, the Australian Constitution was amended to recognize Indigenous peoples as citizens and to allow the federal government to legislate Indigenous affairs. [111]
no treaties with Indigenous people were entered into in Australia. [112]

British acquisition or appropriation of native Australian lands was based on the terra nullius doctrine, namely that the native inhabitants of these lands lacked laws, without which their lands were regarded as unoccupied. [113]

Common law recognition of native title came rather late in Australia with the High Court of Australia's Mabo decision in 1992. In Mabo, the Court rejected the terra nullius doctrine and held that, where native title was not extinguished, the natives were entitled to their traditional lands in accordance with their customary regimes. [114]

With the 1967 amendment to the Australian Constitution, the federal government became responsible for Indigenous policy while the state and territorial governments controlled water resources. In 1973, the federal government established the Department of Aboriginal Affairs (DAA). Its role was to provide advice to the government on indigenous affairs and to implement and administer indigenous affairs policy. The DAA was the central indigenous affairs agency until the creation of the Aboriginal and Torres Strait Islander Commissioner (ATSIC) in 1989. [115] ATSIC's roles included advising all levels of government on indigenous issues and delivering and monitoring some of the federal government's indigenous programs and services.

Despite recommendations of the Review Panel struck by the federal government to "examine and make recommendations to government on how Aboriginal and Torres Strait Islander people can in the future be best represented in the process of the development of Commonwealth policies and programs to assist them," the government abolished ATSIC in 2005. [116] Responsibility for programs formerly managed by ATSIC was transferred to various "mainstream" federal departments.

Based on a "whole-of government" approach to policy-making, the federal government works with the state and territorial governments to deliver water programs and services to indigenous communities within the framework of the Council of Australian Governments (COAG). [117] In 2004, the federal government established a National Water Commission, an independent statutory body, to provide advice to the federal government and the COAG on national water issues.

7.3.3 New Zealand

Unlike Canada, New Zealand is not a confederation but a unitary and sovereign state, whose sovereignty appears to rest upon the Treaty of Waitangi (1840), the principal treaty between the native Maori and the British. The Treaty of Waitangi, in failing to meet native expectations, led to the introduction of the Treaty of Waitangi Act in 1975 to address indigenous claims. [119]

The Act set up the Waitangi Tribunal with the mandate to audit state actions and practices that violate the Treaty principles. Through the Tribunal, the revived Waitangi Treaty concept is now the blueprint with which the government of New Zealand seeks to address indigenous land claims and rights to self-determination. The work of the Tribunal continues to influence aboriginal law and policy at all levels of government and public administration in New Zealand. The New Zealand High Court has described it as the "fabric of the New Zealand society." [120]

Unlike Canada, New Zealand does not have a system of indigenous reserves. New Zealand's drinking water regulations apply equally to both Maori and non-Maori people. There is also no federal-state split in jurisdiction. Responsibilities for drinking water are shared between national ministries and local governments. The New Zealand Ministry of Health administers the New Zealand Drinking Water Standards. [121] The Drinking Water Standards are currently being revised by the Health (Drinking Water) Amendment Bill. The Bill received first reading on July 25, 2006.

Compliance with the Standards is currently voluntary. However, if the Bill is passed in its current form, compliance with the Drinking Water Standards would become compulsory. Under the proposed Bill, water suppliers must take all practicable steps to comply with the Standards. The Bill also requires water suppliers to prepare and implement public health risk management plans for systems serving more than 500 people.

Despite the uniformity in application of drinking water legislation to both Maori and non-Maori people in New Zealand, Maori considerations may be taken into account and accommodations may be made in the implementation of the water regime. For example, in the case of the Maori communities in Hokianga, ultraviolet disinfection was approved as an alternative to chlorination to accommodate the Maoris' cultural objection to adding chemicals to their water.

Footnotes:

Montana Band v. Canada, [1997] F.J.C. No. 1486 (F.C.T.D.). (return to source paragraph)
Allen M. Linden, Canadian Tort Law, 7th Edition (Toronto: Butterworths, 2001) at 638 [hereinafter Tort Law]. (return to source paragraph)
Tort Law, ibid. at 638. MacDonald v. Goderich, [1964] 3 D.L.R. 788 (Ont. C.A.) [hereinafter MacDonald]. (return to source paragraph)
Couch v. McCann (1977), 77 D.L.R. (3d) 387 (Ont. C.A.) [hereinafter Couch]. Boryszko v. Bd. of Education of Toronto (1962), 35 D.L.R. (2d) 529 (Ont. C.A.) [hereinafter Boryszko]. (return to source paragraph)
Note that these are possible arguments. It is also possible for the courts to decide not to apply the common law doctrine of occupiers' liability based on the sui generis nature of reserve lands. (return to source paragraph)
Indian Act, supra note 4 at s. 18(1). (return to source paragraph)
Wright (Litigation Guardian of) v. Moosomin First Nation, [2003] S.J. No. 138 at para. 13 [hereinafter Wright]. (return to source paragraph)
Aboriginal Self-Government, supra note 92. (return to source paragraph)
See for example the Anishnaabe and Westbank First Nation Self-Government Agreements. Under these Agreements, the First Nation has jurisdiction over public works and community infrastructure. Under these Agreements, public works and infrastructure standards must be at least equivalent to federal law, and federal safety and technical codes. At the time of writing, the Anishnaabe Self- Government Agreement is still subject to ratification by the First Nations and Canada. (return to source paragraph)
Johnson v. McIntosh, 2 U.S. 8 (1823); Cherokee Nation v. Georgia, 30 U.S. 1 (1831); Worcester v. Georgia, 31 U.S. 515 (1832), all decided by U.S. Supreme Court Chief Justice John Marshall [hereinafter Marshall Trilogy] (return to source paragraph)
See the U.S. Environmental Protection Agency Resource Guide, Chapter 2: History of Federal Indian Law . The Act imposed certain restraints on the civil rights of tribal governments. (return to source paragraph)
Indian Self-Determination and Education Assistance Act, US Code, Title 25, Chapter 14, Subchapter II, Part A, s. 450f. (return to source paragraph)
Safe Drinking Water Act (SDWA), US Code, Title 42, Chapter 6A, Subchapter XII [hereinafter SDWA]. (return to source paragraph)
Navajo Nation received éprimacyé in October 2000. (return to source paragraph)
See Sky Mykyta, Losing Sight of the Big Picture: the Narrowing of Native Title in Australia (2004-2005) 36 Ottawa L. Rev. 93-126/ (2004-2005) 36 R.D. Ottawa 93-126 at para. 5 and 7 [hereinafter Native Title in Australia] (return to source paragraph)
Native Title in Australia, ibid. (return to source paragraph)
Native Title in Australia, ibid. at para 8. See Chidi Oguamanam, Indigenous Peoples and International Law: The Making of a Regime, (2004) 30 Queen's L.J. 348 at 40 [hereinafter The Making of a Regime] at paras. 46-48. (return to source paragraph)
The Making of a Regime, ibid. at para. 46. (return to source paragraph)
Mabo v. State of Queensland [No. 2] (1992) 175 CLR 1 [hereinafter Mabo]. Contrast this with the 1888 Supreme Court of Canada decision in St. Catherine's Milling where a form of Aboriginal title was recognized, although the title in that case derived from the Royal Proclamation of 1763 rather than the common law (R. v. St. Catherine's Milling and Lumber Company (1888), 14 A.C. 46 at 54 (P.C.), 2 C.N.L.C. 541). In the U.S., there is also the Marshall trilogy in the 1830's, see supra note 109. (return to source paragraph)
A. Pratt and S. Bennett, The end of ATSIC and the future administration of Indigenous affairs , August 9, 2004 [hereinafter The end of ATSIC]. (return to source paragraph)
The end of ATSIC, ibid. (return to source paragraph)
The Council of Australian Governments comprises of the Prime Minister, State Premiers, Territory Chief Ministers and the President of the Australian Local Government Association (ALGA) . (return to source paragraph)
See Sian Elias Gnzm, Maori and the New Zealand Legal System, (2002) 76 Austl. L.J. 620 and J.G.A. Pocock, Law, Sovereignty and History in a Divided Culture: The Case of New Zealand and the Treaty of Waitangi, (1998) 43 McGill L.J. 481 (return to source paragraph)
Treaty of Waitangi Act 1975 (N.Z.), 1975/114, as amended. (return to source paragraph)
The Making of a Regime, supra note 116 at paras. 49 and 50. Huakina Trust v. Waikato Valley Authority, [1987] 2 N.Z.L.R. 188 (H.C.), cited in Siegfried Wiessner, Rights and Status of Indigenous Peoples: A Global Comparative and International Legal Analysis, (1999) 12 Harv. Hum. Rts. J. 57 at 71. (return to source paragraph)
See Drinking Water for New Zealand and New Zealand Ministry of Health website. (return to source paragraph)

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