Testing the Waters: Jurisdictional and Policy Aspects of the Continuing Failure to Remedy Drinking Water Quality on First Nations Reserves (Canada‪)‬

This paper considers why, from a policy and legal perspective, there is such a disparity between the water quality on First Nations reserves, and that experienced in the majority of other Canadian communities. This involves engaging with how jurisdictional allocations, governmental policies, statutory or policy-delegated mandates, and operational practices converge. In this discussion, two inter-related tensions emerge. The first is between Aboriginal aspirations to self-govern and community capacity to effectively engage in governance activities. The second is Canada's proper role and responsibilities in resolving the governance/capacity tension, and in resolving the water quality problems. This paper ultimately concludes that the federal government bas erred in failing to legislate standards, which has allowed all potentially responsible parties to avoid an enforceable obligation to act. In finding that a legislative regime is required, this paper considers and refutes the propositions that jurisdictional uncertainty or the pressing need for Aboriginal governments to develop capacity and take on fuller governance roles are barriers to creating the required protective regime. That is, this paper contemplates a legislative regime which accommodates and addresses these issues.