ONTARIO SOURCE WATER PROTECTION ACT
AND REGIME:
EFFECT ON ABORIGINAL AND TREATY RIGHTS
AND INTERESTS
By Kate Kempton
Olthuis Kleer Townshend
229 College Street, Suite 312
Toronto ON M5T 1R4
Phone: 416-981-9374
Fax: 416-981-9350
Email: kkempton@oktlaw.com
-2A.
INTRODUCTION
1.
Purposes of Report
There are two major purposes to this paper:

Provide an overview of the elements of the proposed source water protection (SWP)
regime, and various critiques of it. This will enable aboriginal peoples and First
Nations to understand the basics of what is being proposed, how it fits with other
provincial and federal law, and some of key issues with and gaps in the regime, so
that First Nations can better participate in consultation and more readily suggest and
define alternatives.

Provide a preliminary overview of the potential effects of the regime on treaty and
aboriginal rights, so as to enable First Nations and aboriginal peoples to determine if
this regime should apply at all in respect of their rights, lands and waters. This will be
a preliminary review only, as many elements of the proposed regime are not yet
known. The draft act is very sparse and vague. A full draft act (that deals with both
planning and implementation) and several regulations that fill in many details, have
yet to come (expected soon). Another legal analysis of the full draft act will have to
be undertaken when it is released – much shorter, as the rest of the background and
context is provided here.
2.
Findings
Aboriginal rights to water include

Title to waterbeds (within reserves, and anywhere else where such title has not been
surrendered or extinguished – which could be many places in Ontario). Title to waterbeds
(land under water) provides for exclusive use of the water above (subject only, perhaps,
to public rights of navigation and floating).

Right to paramount use of water feeding and bordering all aboriginal title and reserve
lands. This means that the aboriginal party has the right to use such water for all present
and expected future uses, before any other (non-aboriginal) party can use any of the
water. This provides the right to have the quantity and quality of such water in its natural
state, and not overly depleted or polluted. Paramount rights are similar to riparian rights
(rights to use water, and to have it in its natural quality and quantity, and responsibility to
leave it in its natural quality and quantity). Riparian rights are held by all those who own
land along the shore of the same water body – they are equally shared rights. Paramount
rights are greater because they are not equally shared.
Aboriginal rights dependent on water include:

All rights that depend on a viable quantity and quality to be exercised, including
harvesting and other cultural rights, and including self-governance and sovereignty (need
viable water source to survive as a people).
-3There are two major issues in respect of the SWP regime’s effects on such rights. First, the
practical environmental effects could be positive – if the regime is indeed designed well and is
implemented well. Thus, in one sense, if there is improvement in the quality and quantity of
drinking water across much of Ontario, this might have some benefit on the ability to exercise
certain aboriginal and treaty rights dependent on viable water sources (such as fishing and other
harvesting rights). However, since much of the regime is not yet known, it is too early to make
even this determination.
In addition, the regime has as its primary goal the protection of human health and not the
protection of environmental health or respect for aboriginal and treaty rights (in fact, these are
not goals of the regime at all). Thus, the government could attempt to designate further water
sources for drinking only, and limit or prohibit any other activities that use such water, and this
could result in Ontario trying to further limit the practice of aboriginal and treaty rights. Or the
government could engage in activities that might enhance waters for human drinking, but as a
result cause harm to other aspects of the environment – which, again, could inhibit aboriginal
and treaty rights.
Further, it appears that the Ontario government does not intend to have the SWP regime apply on
reserves (at least, not without some agreement with the federal government and First Nations).
The possible practical effects of the regime would thus occur in traditional territories outside
reserves, and drinking water quality on reserves could remain in a very poor state.
The second major issue is the decision-making structure of the regime, which is a violation of all
aboriginal rights to water, and all aboriginal and treaty rights dependent on water. The draft SWP
act says nothing about aboriginal peoples’ rights or interests and makes no mention of any role
they might play in decision-making. Earlier government reports indicate that the government
envisages perhaps one or two First Nation representatives to set on the source protection
planning committee for each watershed – one or two people out of 16 committee members.
Where rights to water are exclusive (as with title), governance should be exclusive. Where rights
to water are paramount, consent of the relevant aboriginal party should be required in respect of
any decision that could affect that water. Where rights to water are shared, aboriginal peoples
must have a proportional direct decision making role. This is not the case in the proposed SWP
regime. This is a further sign of disrespect and attempted denial of sovereignty.
Given the close relationship between the proposed SWP regime and other major water quality
and quantity regimes in or affecting Ontario (such as the Great Lakes Annex, and Great Lakes
Water Quality Agreement) it is recommended that First Nations issue a joint resolution or
declaration to both the Ontario and federal governments stating that your rights are being or
would be disrespected and violated by all such regimes and calling for funded tripartite strategic
discussions to seek an agreement on the decision-making role of aboriginal peoples and ensured
protection for aboriginal and treaty rights to and dependent on water.
3.
Seriousness of the Issue: Threats to Water
Water is under serious threat around the world – both its quantity and its quality. The United
Nations Millenium Task Force on Water released a report in January 2005 which stated that
nearly two out of ten people around the world have no source of safe drinking water. The UN
“warns that if current trends of wasting and polluting freshwater [non salt water] continue, two
-4out of every three people on Earth will suffer moderate to severe water shortages in little more
than two decades from now.”1 There is a significant risk that water will be the major cause of
developing crises around the world, and perhaps even wars. In addition:
Worldwide, the consumption of water is doubling every 20 years, at more than twice the
rate of the increase in human population, placing enormous pressures on aquatic
ecosystems. Today, over a billion people lack adequate access to clean drinking water.
By the year 2025, as much as two-thirds of the world’s population will be living in
conditions of water scarcity and demand will outstrip supply by 56%.2
In Canada, many of the worst problems with unsafe drinking water are concentrated in aboriginal
communities – according to Health Canada, 65 First Nations and Inuit communities were under
boil water advisories in 1999. According to INAC, 25% of the water systems overseen by INAC
were considered “high risk” in fiscal 2003/04 (but another INAC report which evaluated
operating practices and operator qualifications found that 29% of the water systems posed a
potentially high risk, 46% were medium-risk and the rest were low or no risk for impairment of
safety of water3). Justice O’Connor, as part of the Walkerton Inquiry, stated:
Members of First Nations are also residents of Ontario. There can be no justification for
acquiescing in the application of a lesser public health standard on certain residents of
Ontario than that enjoyed by others in the province. This is especially true when there is
ample evidence that the water provided in First Nations communities falls well short of
the standards of safety and adequacy that are considered acceptable in other parts of the
province.4
Justice O’Connor also found that:
The safety of drinking water in First Nations lands in Ontario faces serious problems,
which will not be resolved by jurisdictional squabbles among federal, provincial and First
Nations governments.
…Although it would be inappropriate for the provincial government to impose such
assistance, it would clearly be helpful for the provincial, federal and local First Nations
levels of government in each aboriginal community to sit down and work out an approach
for ensuring drinking water safety.5
“Source water” is all the water in the province’s environment – both ground water and surface
water – that is being used or will likely be used as a source for drinking water for humans.
“Source water protection” is a proposed regime for how to protect this water from any, or
further, contamination from various pollutants and from any, or further, depletion of quantity –
1
Pollution Probe, The Source Water Protection Primer, May 2004, at p. 4.
Interior Alliance of BC and the Council of Canadians, “Nothing Sacred: The Growing Threat to Water and
Indigenous Peoples”, at www.canadians.org.
3
Pollution Probe, The Source Water Protection Primer, May 2004, at p. 44.
4
Watershed based Source Protection: Implementation Committee Report to the Minister of the Environment,
November 2004, at p. 15.
5
Report of the Walkerton Inquiry, Volume 2, at p. 41.
2
-5so that there is enough safe, clean water in the province for people to drink for generations to
come.
Source protection is the first barrier in a multi-barrier approach to ensuring safe drinking water.
4.
Steps in Development of SWP Regime
In May 2000 seven people died and about two thousand got sick from E-coli contamination of
the drinking water supply in Walkerton Ontario. An inquiry was held, and in May 2002 Justice
O’Connor released his Part Two Report, which concerned systemic issues of drinking water in
Ontario and contained 121 recommendations for how to address these. Of these, 22 dealt
specifically with source water protection. The Ontario government committed to implementing
these recommendations.
The government struck an advisory committee to provide advice and recommendations with
more detail on how to implement the Walkerton Report recommendations. This Advisory
Committee on Watershed-Based Source Protection Planning released its report, in April 2003,
entitled “Protecting Ontario’s Drinking Water: Toward a Watershed-based Source Protection
Planning Framework” (the “framework report”). Derrick Kamanga represented the Chiefs of
Ontario on this committee (as far as I can tell, the only representation of aboriginal interests).
There were several comments from interested organizations on this framework report.
The government took the information from the framework report, and released its own report, the
“White Paper on Watershed-based Source protection Planning” (“white paper”) in February
2004. It sets out the government’s positions and intentions in regard to source protection.
Following release of the white paper, there were 8 regional consultation sessions, and what the
MoE is calling consultation sessions with First Nations –one in Toronto and one in Sioux
Lookout (April, May 2004). The white paper was also posted in the environmental registry and
several public comments were received.
Two special committees were struck by the province (with representation from many sectors –
not just government employees). One, the implementation committee, was to address how the
government’s intentions could be implemented in some regime, including mechanisms for
funding all this. Chiefs of Ontario was represented on this committee (Sara Neuert, Sue Chiblow,
Derrick Kamanga) but again was the only aboriginal body represented. The other, the technical
experts committee, was to address a threats assessment framework (how various threats to source
water should be identified, categorized, mitigated, prevented etc.). Derrick Kamanga was on this
committee as well, and it does not appear there was any other aboriginal representation.
In June 2004 the government released for public comment the draft Drinking Water Source
Protection Act (“draft act”). This contains only proposed elements for source protection planning
(ie: steps to creating a plan for source protection in each watershed in Ontario). It does not
contain any elements of implementation (how such plans would be implemented). The
government intends, in the near future, to release another draft act which would contain both
planning and implementation elements (ie: it is supposed to be one complete statute covering the
whole source water protection regime). Several regulations under the act, with details of how,
where, when and who plans and implements, are also supposed to be released shortly. All this
would be subject to public comment.
-6In November 2004 both the implementation and the technical committees released their reports
to the Ontario Minister of the Environment, and to the public for review and comment. Based on
these reports, and several comments received from the public throughout, the government will
then release its proposed complete act and regulations.
Since the full draft act is not yet released, I am not able to comment on or analyse what the
government might envision for implementation of source protection. The current draft act is very
vague and sparse. Many details must be filled in. However, I will present and analyse what has
been released to date, and the critiques and comments from others. When the full draft act is
released, another analysis will have to be undertaken at that time.
-7B.
BACKGROUND
1.
Water Facts
Source water is untreated water from natural sources which is used to supply drinking water
(both public systems and private wells). Source water is both groundwater, and surface water.
Groundwater is beneath the earth’s surface, found between rocks and soil, and includes aquifers.
Surface water is open to the air and includes lakes, rivers, streams, and oceans. 26% of
Canadians use groundwater as their source of drinking water; 74% use surface water.6
In Ontario, about 23% of the population relies on groundwater for drinking water, but in rural
and remote communities, 90% of the population there relies on groundwater. About 82% of
people in Ontario receive their water from public (municipal) systems, while the rest rely on
wells and other private sources. For the latter, often the only type of protection to help ensure
safe drinking water is source protection (there is no treatment to remove contaminants).7
About 74% of people in Ontario get their drinking water from the Great Lakes.
The Multi Barrier Approach to ensuring safe drinking water has several elements or stages:

source water protection (ensuring the water at its source, in nature, does not get
contaminated or depleted in the first place);

treatment (filtering and chemical treatment to remove contaminants, often available
only in public municipal systems);

distribution (how water is sent to each tap from its source or treatment facility,
including the networks of pipes);

monitoring (testing water to ensure it is safe);

emergency response (actions for dealing with spills and other emergencies that infect
the water supply).8
The “hydrologic cycle” is the continuous circulation of water from the air to the earth and back
to the air again. When water on the earth is heated, it evaporates (or plants release water –
through transpiration) into the air, where it forms clouds (condensation), and rains or snows
(precipitation) falling back to earth. Some of the water that falls back to earth “percolates”
through soil and rocks until it settles underground into an aquifer (an underground pool of
water). Aquifers retain and transport water underground. Some of the water that falls back to
earth runs off land surfaces into lakes and rivers.
Groundwater eventually flows into or connects with surface water – at lakes, rivers, streams,
springs, etc. Groundwater moves very slowly from where it is recharged (where rain/snow
percolate through to enter the aquifer) to where it is discharged (into surface water).
6
These and many other facts in this section are from Pollution Probe primer.
Green Ontario, “Clean Water for Ontario”, from www.greenontario.org.
8
Implementation Committee Report, November 2004 at p. vii.
7
-8Groundwater and surface water can become contaminated from many human activities,
especially agriculture (pesticides, fertilizer, manure), industrial activity (mining, forestry, oil and
gas development), commercial activity, and urban development . Further, all these activities can
deplete the quantity of water.
Contamination comes from both point sources (where a specific cause of contamination, at a
particular site, can be identified), and non-point sources (many diffuse sources of
contamination).
The types of contaminants include: micro-organisms (bacteria, parasites, viruses); nutrients
(nitrates and phosphorous that in excess quantities can deplete oxygen – often from agricultural
manure and sewage); heavy metals (including arsenic, copper, mercury, lead); endocrinedisrupting substances (pharmaceuticals and chemicals that can harm reproduction and growth).
Serious point sources of contaminants include wastewater or sewage effluent (discharge of raw
human sewage directly into water, or what remains after treatment in sewage plant). In fact,
“municipal wastewater effluents comprise the largest source of effluent discharge to Canadian
waters, and population growth and urbanization will continue to increase them.” 9 Other point
sources include: septic systems; landfill sites (Ontario has more than 2400 abandoned landfill
sites, many of which were never properly built, lined or protected, and thus leach contaminants
into the water); mines (both operating, especially the tailings which often contain toxic
substances, and abandoned – there are about 10,000 abandoned mines in Canada); underground
oil and gas tanks.
Non-point sources include: agriculture; urban runoff (all the chemicals, salt, substances in a city
that collect in drains and are released to the water supply, or overflow into water supply in heavy
rain); pesticides; air pollution.
Climate change is a fact – what is not known is how serious it will get and all of the harms it will
induce. Many scientists believe that as the earth’s temperature increases, surface areas of lakes
and rivers in Canada will evaporate, depleting freshwater supply even faster.
A watershed (also called a catchment) is an area of land from which surface water runoff drains
into a common water body (such as a river or lake). This runoff flow of water, and thus the
boundaries of the watershed, are determined by gravity (runs downhill). Watersheds are nested
or embedded in larger watersheds. The entire earth’s surface is in one or more watersheds. There
are three major or primary watersheds or water basins in Ontario: Great Lakes-St. Lawrence;
Nelson River; Hudson Bay. Within each of these, there are many secondary watersheds, and
within these, many tertiary smaller watersheds.
Groundwater flow is determined in part by gravity and in part by the hydraulic characteristics of
the aquifer. Thus, groundwater can flow under or through more than one watershed, and the
boundaries of any aquifer can be different than the boundaries of any watershed.
9
Environment Canada, “Threats of Sources of Drinking Water and Aquatic Ecosystem Health in Canada”.
-9To find out about the watershed you are in, and what is being done there by some groups to
protect and restore the watershed, see Conservation Ontario’s website at www.conservationontario.on.ca.
Many have suggested that the “precautionary principle” must be the primary principle used for
determining what actions and activities can occur in a watershed. The precautionary principle
means two things:

Where clear or exact information is not known about a risk, or potential impacts, from an
activity, this is not a reason to proceed as if there is no risk, or to take no action to avoid
risk or harm.

Where clear or exact information is not known about a risk, one ought to exercise caution
in favour of avoiding the risk and protecting the environment, and not engage in the
potentially harmful activity. Or one ought to engage in positive protection and
conservation strategies, until more is known about the potential risks and impacts.
2.
Steps and Input Leading to Draft Source Water Protection Act
This entire source water protection regime came about, essentially, because seven people died
and more than 2000 got sick from a contaminant in a local water supply. This was the Walkerton
outbreak, and the Walkerton Inquiry, to look into both the immediate causes and the more
systemic causes of this problem, was called. Justice O’Connor, who headed the inquiry,
reviewed a great deal of evidence and came up with 121 recommendations. It is these
recommendations that are used as the base for the Ontario government’s current proposed source
water protection regime.
The steps (inquiry, committees, etc) leading to the draft SWP act, and a brief outline of the input
from each, are summarized below, for three reasons. First, the draft act as it now exists, even as
sparse as it is, can be compared to input and advice received to date to determine whether the
government is more or less on a consistent path or if the draft act seems to represent a departure
from past input. Second, the input might be used to help judge and assess the merits of the full
draft act when it is released. Third, the input provides possibilities for what might be included in
tripartite discussions (Canada, aboriginal peoples, Ontario) or some other strategic regime, to
address source protection in respect of aboriginal and treaty rights.
a.
Walkerton Inquiry
In May 2002, Justice O’Connor issued his second report from the Inquiry and made 22
recommendations about source protection, which included:

Watershed-based source protection plans should be developed for all watersheds in
Ontario, with Conservation Authorities taking key roles.

Plans should be prepared through an inclusive process of consultation, and approved by
Minister of the Environment.
- 10 
Provincial government decisions that affect drinking water quality should be consistent
with source protection plans, and so too should municipal plans and decisions where a
potential for serious threat to drinking water exists.

There should be limited right of appeal of plan, and provincial and municipal decisions
that are inconsistent with plan.

MoE should take lead role in source protection.

The MoE should take lead in regulating farm operations that have impact on drinking
water sources – and all large, intensive farms and all farms in sensitive areas, should
develop individual water protection plans that are consistent with the source protection
plan for that watershed.

The provincial government should develop a comprehensive source-to-tap drinking water
policy covering all elements from source protection, treatment, distribution, to emergency
response.

First Nations should be invited to join in the watershed planning process.
b.
Advisory Committee and Framework Report
The Ontario government struck the advisory committee (to advise the government on how to
implement the Walkerton Report recommendations). This committee was charged with advising
the provincial government, but had no authority or decision-making power over the government.
Nonetheless, since the government struck this committee, its recommendations ought to be
seriously considered. In April 2003 this committee issued its report with 55 recommendations,
which included:

The framework report focussed on inland waters (not Great Lakes), but users of GL water
should share in protection, and those who discharge into GL should meet standards of
source water protection. Source protection principles should be incorporated into GL
agreements [ie: Annex agreements].

The following principles should guide decision-making re source protection:
sustainability, comprehensiveness (use precautionary principle to ensure best protection),
shared responsibility, public participation and transparency, cost effectiveness and
fairness, continuous improvement.

Where there is risk to human health, source protection legislation should take precedence
over other legislation and acts (such as permits to take water). Other legislation should be
amended to be consistent with source protection regime.

Source protection legislation should, at minimum, include: roles and responsibilities of
key parties; minimum content of source protection plans; process requirements for plan
development (including consultation) and public reporting.

First Nations and the MoE should establish a working relationship re source protection
planning as soon as possible. Ontario should pursue a strategy with federal government
- 11 and First Nations that would support ability of First Nations to be full participants in
planning and implementation (should participate in planning committee, in consultation
process, and in implementation).

Should be about 16 planning areas in southern Ontario, and 8 in the north.

Planning process should be coordinated by Conservation Authority (CA), or MoE (or
some body designated by MoE) where no CA. Membership on the source protection
planning committee (also called SPC) should be 1/3 municipal representatives, 1/3
provincial, federal and First Nation representatives, and 1/3 local public health and other
stakeholders. Planning committee should establish working groups as necessary.

Consultation process for planning, should, at minimum, include: meetings of planning
committee open to public, draft plans widely published and comments solicited,
documentation of responses.

Source protection plan (SPP) should at minimum include:
o objectives and targets;
o technical information – water budget (water in and out), mapping of areas,
features, threats, sources of contaminants, maximum load of contaminants into
water, areas where significant threat exists;
o source protection issues (threats, allocation needs, special limits, farm and
municipal planning, etc.);
o implementation plan;
o monitoring and reporting plan;
o how plan will be reviewed and updated;
o outstanding or unresolved issues.
c.

All those who impact sources of drinking water and those who benefit from them, should
share in costs for source protection. Cost sharing model should be developed through
consultation with stakeholders.

Province should be centralized and lead body responsible for data collecting,
managements and distribution.
White Paper
In February 2004 the province released its white paper or position statement for source water
protection.
Commitments made by the province include:
- 12 
Scope: Source protection is about protecting both quality and quantity of drinking water.
Source protection includes assessment of status of water and threats or impacts to water,
and implementation of protection measures (through mandatory controls, incentives and
voluntary measures).

Protection versus Treatment: Ontario must place greater emphasis on protecting sources
of water – treatment is not enough. The province will implement the 121
recommendations from Justice O’Connor in the Walkerton Inquiry.

Purpose: Purpose of source protection plans and legislation is to maximize protection of
human health and safeguard source of water quality and quantity over long term.

Planning areas: Boundaries of planning areas would likely include consideration of
municipal boundaries, and First Nation boundaries.

Decision Making Regime: It entails:
o Minster of the Environment must approve all terms of reference, assessment
reports and SPPs for each watershed/planning area.
o Source Protection Board (SPB) in the middle to vet and approve what comes from
the Source Protection Committee (SPC). SPB is a CA where one exists (mostly in
the south), and some other entity appointed by the Minister in watersheds where
no CA exists (most in the north).
o SPC, which essentially does all the assessment and planning work but needs
approval of same from SPB and Minister. The proposed model for the makeup of
the SPC is: 5 municipal representatives, 10 other representatives including one or
two FN reps, one or two public health bodies, one or two agricultural reps, one
member of public, and four to five other stakeholder reps.

Contents of Reports:
o There would be legally binding directions for preparing the terms of reference (for
assessment and plan).
o The assessment would cover a technical assessment of status of watershed, and
scope and objectives for the source protection plan (SPP).
o The content or elements of SPP would be set out in regulation. The SPP would set
out the actions required to protect quality and quantity of sources of drinking
water, evaluate options, prioritize actions, and implementing actions. Required
components of the plan include: designating types of water sources by degree of
threat, description of consultation and other aspects of transparency of regime,
implementation plan, monitoring and assessment program, how plan will be
reviewed and updated, how Great Lakes objectives have been considered and
would be furthered.
- 13 
Consultation: there will be substantial opportunity to comment on terms of reference, on
scope and objectives of source protection plan, on draft protection plan, and SPC must
consider input from all of this. SPC and other source protection planning meetings would
be open to public to greatest extent possible. Assessment reports and draft plans would be
published widely and available for public comment.

Annual Reports: MoE would produce annual progress reports with status of source
protection plans in each watershed. MoE and SPCs would schedule reviews of plans.

Appeal: There would be a limited right of appeal to Environmental Review Tribunal by
persons directly affected by the plan (those who provided comments on draft plan and
live in watershed, and those who could demonstrate that implementation of plan would
directly and adversely affect their use of property).

Great Lakes: Despite the fact that about 74% of Ontarians get their drinking water from
the Great Lakes, the focus of the white paper is on “inland” waters – not the Great Lakes.
Source protection plans would have to have regard for other agreements and strategies
Ontario pursues in respect of the Great Lakes (Annex, Canada-Ontario agreement re GL
ecosystems, lakewide management plans, sewage and stormwater treatment, etc.). That
is, source protection would not take precedence over, but would have to be consistent
with, these other agreements and programs.
d.
Implementation Committee Report
In November 2004, the Implementation Committee released its report, containing 133
recommendations in respect of various mechanisms for implementing source protection
planning, including funding for same. There is much detail here, but below are just a few of the
recommendations that might have particular relevance to First Nations:

Other Governments: Province should ensure coordinated work with federal government
to implement source protection on federal lands and waters. Province should expedite its
discussions with federal government and FNs on how best to involve FNs in governance
structure for source protection planning and implementation; ensure local indigenous
knowledge is incorporated into development of SPP.

Great Lakes: Province should ensure that source protection principles and policies are
incorporated into GL agreements and programs.

Coordinated Implementation: Information sharing, and implementation of SPPs, should
be coordinated between province, municipalities, CAs, federal government, FNs and
other organizations (implementation facilitated by lead SPB or other lead body in area).

Crown: SPPs should be binding on the Crown.

Land Acquisition: Land securement programs (conservation easement, purchase etc)
should be developed to meet SPP goals; and as last resort, province should consider
expropriation of lands where human health at risk.
- 14 
Land Owners Responsible: Property owners should be responsible for remediating or
redeveloping property to reduce or eliminate contamination that poses significant risk to
source water.

Other Statutory Regimes Made Consistent: Several statutory provisions and other
government programs and instruments should be amended to be consistent with source
protection legislation and SPPs, including those pertaining to: water wells, oil and gas
wells and facilities, aggregate extraction (pits, quarries, etc.), mining and abandoned
mines, fuel tanks, chemical storage, pesticides, contaminated sites, landfills and waste
disposal, sewage disposal and treatment, agriculture and requirements under the new
Nutrient Management Act (coordination of nutrient management plans, farm water
protection plans and source water protection plans), cemeteries. Source protection
legislation should require municipalities to implement SPP through land use planning
systems and municipal regulation. Source protection legislation should require
municipalities to implement SPP through land use planning systems and municipal
regulation.

Monitoring Water Use: Province should phase in mandatory monitoring and reporting of
water use (condition of water taking permit), and water taking permits should be issued
only if consistent with SPP.

Funding: Province should fund development of SPPs, and with others, establish a secure
long term funding program to ensure sustainable funding for ongoing implementation of
SPPs (consider volume based water taking charges, pollution charges). Province should
work with federal government and First Nations to ensure adequate funding to enable full
participation of FNs in SPP and implementation.
e.
Technical Experts Committee Report
In November 2004, the TEC issued its report identifying methods of assessing risks to sources of
drinking water. This is a long, detailed report. Following are key steps in source protection, and
then unique recommendations:
Key steps in source protection would include:

Risk identification stage:
o watershed description (physical characteristics, population distribution, land uses)
o water budgets (both current and projected flows of water in and out of watershed)
o water protection areas delineated (wellhead or groundwater protection zones,
intake or surface water protection zones, other vulnerable areas, potential future
drinking water sources)
o identification of threats to and issues about drinking water sources.
o Both a threat and a pathway (for contamination to travel to source water) must
exist to create a “risk” to drinking water sources.
- 15 
Risk assessment stage: risks identified in first step evaluated to determine level of risk.
Level evaluated by considering characteristics of the threat, the pathway through which
threat could travel, and the receptor or human population which would consume the
contaminated water.

Risk management stage: evaluate options for reducing risks to acceptable level.
“Outcome based” approach in which province would set generic targets or standards and
SPCs would develop options for meeting these targets. Provincial water quality standards
(maximum levels of certain types of contaminants) could be one benchmark against
which water quality and risks identified and targets set.
The TEC made 128 recommendations in its report, and most of these were of a technical nature
(how to carry out the above steps, based on what science or standards), or were a reiteration of
the advisory committee or implementation committee recommendations. Some were unique as
follows:

SPPs should specify ways to protect water for all purposes (environmental, ecological,
recreational etc) and not just for the purpose of drinking. Wetlands and riparian zones
should be protected and restored.

SPPs must protect all water sources including the Great Lakes.

Source protection legislation must take precedence over all provincial and municipal
legislation, policies and regulations that impact drinking water, including the Nutrient
Management Act and farm protection plans.

SPPs should be based on risk management when risks can be estimated, and the
precautionary principle when risks cannot be estimated.

Province should commit sustainable long term funding to ensure necessary research and
information generation and distribution.

Permit to take water program should be a component of a larger government initiative to
manage and protect Ontario’s water resources. Standards for permits should be sciencebased, increased where proposed taking would affect vulnerable areas, and based on
many factors including impact on water quality and social impacts, not just water
quantity. SPBs should have formal partnership role with province in review and approval
of permits.
- 16 C.
OVERVIEW OF WATER PROTECTION REGIME
Source water protection is currently conceived as fitting within broader frameworks of:

environmental protection law

land use and watershed planning law

water safety law (ie: ensuring water safe and clean)
Source protection overlaps all these areas, and all these areas overlap with each other. There is
no neat and simple box in which to place source protection or any of the above areas. This is part
of the challenge and the problem. At present there is no clear conception (or “master plan”) as to
how to ensure sustainability for Ontario – its environment, its water and its people. Priorities
have not been clearly established. The Ontario government, like many if not most western
governments, continues to espouse catchy but essentially empty concepts like “sustainable
development”. The government calls for a strong economy and a safe and sustainable
environment in one breath – without knowing whether, at today’s level of expectations (material,
consumer, and the like) it is even possible to have both, and if so, how. Thus, there is little
acknowledgement of possible conflict such that one or the other – economic versus
environmental concerns– would have to be prioritized as a matter of foundational public policy.
Instead, there is a mish-mash of dozens of statutes and hundreds of regulations all dealing with
their own pieces of the overall puzzle, with pieces often not fitting well together and several
pieces missing.
To date, source protection has been included as yet another piece of the puzzle, another layer of
laws that overlap, often chaotically.
In that source protection deals with environmental protection issues, it intends to protect one
aspect of the environment – current and future sources of drinking water – for one major purpose
– ensuring safe drinking water for humans. Since water is the source of life and required for all
else, many if not all human activities have some impact on water. Thus, how we plan and
implement our uses of land, and activities within watersheds, (be they industry, commerce,
residential development, roads, parks, etc.) will have many impacts on source water. Finally,
source water protection is supposed to be the first step or element in a multi-barrier approach –
protect water at its source, then where this is not possible to the standard fit for human
consumption or as a backup measure, monitor the quality, treat the water for contaminants,
distribute it through regulated systems and ensure adequate response in emergency situations. All
these elements are water safety elements.
It is difficult to determine how well source water protection can and will work with all the
myriad other legal regimes and programs in the three broad areas above. Because the draft act is
so vague and sparse, it is impossible to tell at this stage what can be achieved through this
regime.
- 17 1.
Draft Act
The Drinking Water Source Protection Act, 2004 is, as stated, only a part of the final draft act
and regulations yet to come in respect of source protection. It deals only with developing a
source protection plan (SPP), and even then, indicates that much of the detail will be left to
regulations (which we have not seen).
The scheme that the draft act establishes is as follows:

Protection Areas:
o The Province is to be divided into “Source Protection Areas”, for which an SPP
must be developed (and one assumes, implemented). These are watersheds: in the
south, watersheds under the jurisdiction of Conservation Authorities (CAs); in the
north, where there are no CAs, the Minister of the Environment may establish
areas. There is a list of CA areas in the Schedule to the Act. The Minister can
combine some areas into regions (one supposes to combine experience, for
administrative ease or other purposes).

Bodies Responsible:
o Source Protection Boards (SPBs) are established to coordinate the development of
the SPP in their watersheds/areas. Where there is a CA, the CA becomes the SPB.
Where areas have been combined into a region, a lead SPB is appointed by the
Minister (to coordinate the other SPBs, the planning process, and liaise with
MoE).
o A Source Protection Committee (SPC) is established for each region (or where
areas have not been combined, for each area). There will be a maximum of 16
members on each SPC, including the Chair who will be appointed by the
Minister. The SPC is responsible for undertaking virtually all of the planning
process, but in the three major steps of this process, both the SPB (except for the
SPP step) and the Minister must approve the SPC’s report.

Steps in Planning Process:
o Step one: Each SPC must develop Terms of Reference for both the Assessment
and the SPP, including a workplan, relevant information, and a consultation plan.
The consultation plan would include description of any advisory committee to be
established, how public comments will be obtained and considered, methods to
resolve concerns of municipalities and First Nations and obtain their support.
o Step two: Each SPC must prepare an Assessment Report for its region/area, which
must include detailed maps, description of natural features, general assessment of
water quantity and quality, assessment of water linkages with adjacent
watersheds, water budget (how and how much water enters and leaves watershed,
groundwater and surface water flows, amounts taken or to be taken through
Permits to Take Water and through all activities not requiring a permit to take),
definition of protection zones and analysis of water quality and quantity in these,
- 18 assessment of water risks, classification or prioritization of water risks, how
information gaps could be filled, other issues.
o Step three: Each SPC must prepare a SPP for its region/area. The SPP shall
include objectives of source protection and standards to determine whether
objectives met, mandatory and voluntary measures to achieve objectives and who
is responsible for implementing these measures, other matters as prescribed.

Approval and Appeal of SPP:
o The SPP is submitted to the Minister who posts it on the Environmental Registry
for public comment. After considering comments, the Minister will approve or
require amendment if Minister thinks the SPP includes mandatory measures not
authorized by regulations, or fails to include mandatory measures that authorized
by regulations and that are needed to ensure protection against water risks in
existing and future drinking water sources. Final SPPs as approved by Minister
are made available to the public.
o If any SPB fails to submit reports from steps one, two or three by the deadline set
in the regulations, the Minister can order return of any funds from Crown for this
work, and have MoE or other Ministry do this work (subject to consultation etc as
above). Or Minister can order SPB to do the work and set conditions for this.
o A person can appeal approval of SPP (to Environmental Review Tribunal) only if
the person is directly adversely affected by SPP, or person has residence in SPP
area and made written comments on the SPP. Tribunal can dismiss appeal, or
amend SPP (or require SPB to amend it) only if SPP includes mandatory
measures not authorized by regulations, or fails to include mandatory measures
authorized by regulations that are needed to ensure protection against water risks
in existing and future drinking water sources.

Other:
o Each SPB shall submit annual progress report to Minister that describes measures
taken to implement SPP and extent to which objectives in SPP are being met. This
will be made available to public.
o Person assigned by SPB can enter private property, other than a home, without a
warrant but with reasonable notice, to collect information relevant to preparation
of Assessment Report or SPP, or to determine whether a water risk related to raw
water supply exists on the property (can excavate, take samples, conduct tests, ask
questions, require documents etc).
- 19 2.
Issues Related to Draft Act
a.
Conservation Authorities
Conservation Authorities were created by statute (Conservation Authorities Act) in 1946. They
are non-governmental community-based organizations charged with taking certain measures to
protect or enhance water quality. They are generally responsible for a watershed. There are 36
CAs in Ontario, covering most of the south, and 5 of the highest-populations in the north:
Sudbury, Sault Ste. Marie, Thunder Bay-Lakehead, Timmins-Mattagami, North Bay-Mattawa.
The rest of the north has no assigned CAs.
b.
Information Issues
Currently there is no database containing the actual amounts of water taken by those with
permits to take water. There are no comprehensive “water budgets” for watersheds in Ontario
where it is known and recorded how much water is coming in (through precipitation etc), and
how much is going out (through permitted takings, the cumulative effect of all takings without
permits or below the permit level, etc.). In fact, there are many information gaps that would have
to be filled if this regime is to work effectively.
c.
Funding
In November 2004 the MoE and MNR announced $12.5 million in funding for source water
protection to be directed to CAs and municipalities to hire expert staff, for information
management, public outreach, groundwater research, and water budgets.10
This $12.5 million will not go very far in paying for the scheme for source water protection. It
has been estimated (without any degree of accuracy) that it could cost at least $10 million for
each watershed/planning area to undertake the three-step planning process set out in the draft act.
Until very recently, Ontario never charged anything for water takings. It has recently decided to
($750 to $3000 administrative fee per permit for taking, based on complexity of application).
This could be one form of funding for source water protection. Several other sources of funding
have been identified, including:
10

Water use taxes (residents and businesses pay for use and for service of treatment).

Volume charges (charge for volume of water used, and higher charges for taking and not
returning to same watershed or returning in poor quality).

Fee for water taking permits (administrative, volume or other).

Sewage or waste water taxes or charges (residents and businesses pay for this service)

Discharge levies or fines on polluters (discharging into water).
CELA, Media Release: “Twelve Million Dollars for Water Protection s Start”, Nov 18 2004.
- 20 
Full cost pricing for water supply, water treatment, and sewage treatment (charge back to
users, including households, to cover the full cost for the municipality or other service
provider for these services). The Ontario Sustainable Water and Sewage Systems Act,
2002 requires municipalities to prepare audited reports on full costs of water services, and
to develop plans to recover these costs.

Differential pricing – charge more for water use at certain times (peak hours of day,
summer etc.), or for using certain types of water (water sources already under stress,
depleted; or using pristine water for industrial or other uses where pristine water not
required), or for use for non-essential and commercial purposes.

Conservation incentives (pay industry and farmers for taking sensitive riparian, wetland
and other land important to water, out of production and restoring and conserving it). In
Ontario there is the Conservation Land Tax Incentive Program which provides tax relief
to landowners who agree to maintain their property as conservation land, refraining from
destructive activities. In addition, there is the Managed Forest Tax Incentive Program
which provides for lower property taxes (25% of the rate for residential properties) for
landowners who agree to conserve and manage their forests under an approved Managed
Forest Plan.

Land acquisition (government or non-profits purchase land at fair market value and set
aside as conservation property, or purchase easement over land as conservation easement
– owner can still sell land but it can never be developed). In Ontario, there is the
Ecological Land Acquisition Program that acquires private lands for natural protection
and recreation purposes.

Pesticide levies or taxes (charge producers to get licence, or charge users on sale)

Sale of government bonds for source protection

Real estate transfer tax (percentage of sales price for property put into source protection
fund)

Ecogift or donation of land to government or charity to be set aside as conservation land
(get tax receipt/writeoff for this).

Special lottery

Demand side management (reducing use and consumption so less to do to restore and
protect)
Note that when one starts charging for water, this could invoke NAFTA and other trade law.
Charging could result in categorizing water as a tradable commodity, such that trade rules apply.
If so, then this could lead to more water exports, and could prevent Canada and Ontario from
fully protecting and regulating use of water to ensure it is not depleted. It is beyond the scope of
this paper to analyse this, but see the section on this issue in Appendix B of my paper “Bridge
Over Troubled Waters: Canadian Law on Aboriginal and Treaty “Water” Rights and the Great
Lakes Annex”.
- 21 3.
Water Protection Regime
As stated above, the regime for the protection of water in Ontario is fragmented and confusing.
Under the Constitution, there is no head of power for “water”; neither level of government is
assigned absolute authority in respect of water, and both levels have some authority in regard to
certain matters about or pertaining to water. Several duties and authorities pertaining to water
have also been assigned by statute to municipalities.
At the federal level, there is no source protection legislation planned. However, the federal
government would have to be involved in source protection in Ontario, if it is to be a
comprehensive program across the province, through its jurisdiction in respect of Indians and
lands reserved for Indians, fisheries, navigation, water on federal lands, and inter-provincial and
international issues (trade, Great Lakes agreements, control of release and transport of toxic
substances).
Following are the key enumerated heads of the Constitution which fall within the authority of the
federal government, that could relate to water protection:








91(2). The regulation of trade and commerce.
91(10). Navigation and shipping.
91(12). Seacoast and inland fisheries.
91(24). Indians and lands reserved for Indians.
91(27). The criminal law.
95. Agriculture (shared with provinces)
108. The public works and property of each province, enumerated in the Third Schedule
to this Act, shall be the property of Canada (includes: canals, with lands and water power
connected therewith; public harbours; lighthouses and piers; steamboats, dredges, and
public vessels; rivers and lake improvements; lands set aside for general public purposes)
132. Treaty-making power.
Further, the federal government has “residual power” to make laws for the Peace, Order, and
Good Government of Canada, in relation to all matters not assigned exclusively to the provinces.
This has been held to include matters of “national concern”. National concern has been held to
include marine pollution because of its inherently extra-provincial and international character.11
It would surely also include water protection in transprovincial and transnational waters, and
perhaps even in intra-provincial waters where this would affect or threaten the integrity of the
environment.
Provinces generally have responsibility for management of water resources, including water
flow, drinking water and wastewater services, authorizing the use and development of water
resources. In Ontario, the Ministry of the Environment would have the most responsibility for
source protection, but other ministries that would have some role include: natural resources,
agriculture, health, municipal affairs. Municipalities are responsible for ensuring water of
adequate quality is delivered to the public, and for land use regulation within their boundaries.
11
R. v. Crown Zellerbach Canada Ltd. [1988] 1 SCR 401.
- 22 Following are the key enumerated heads of the Constitution which fall within the authority of the
provincial governments, relating to protection of waters:

92(5). The management and sale of public lands belonging to the province.

92(8). Municipal institutions in the province.

92(10). Local works and undertakings other than: shipping lines, canals, and others
connecting the province with other provinces or extending beyond the province; works
declared by Canada to be for the general advantage of Canada or two or more of the
provinces.

92(13). Property and civil rights in the province.

92(16). Generally all matters of a merely local or private nature in the province.

95. Agriculture (shared with Canada).

109. All lands, mines, minerals and royalties belonging to the provinces, and all sums
payable for these, shall belong to the province in which they are situate or arise, subject to
any trusts or other interest other than of the province in the same.
Following is a brief outline of the overall regime for water protection (ie: not just drinking water
source protection):
International and Inter-Jurisdictional:12

1909 International Boundary Waters Treaty (for Great Lakes, St. Lawrence)

Great Lakes Water Quality Agreement

Great Lakes Charter, Annex, and proposed Annex agreements (water quantity)

Canada-Ontario Agreement on Great Lakes Ecosystems

Federal-Provincial Subcommittee on Drinking Water (sets guidelines for limits of various
substances in water – not legally binding)
Federal:
12

Canadian Environmental Protection Act (regulates release of toxic substances)

Fisheries Act (prohibits deposit of deleterious substances into water frequented by fish, or
harmful alteration of fish habitat – without a permit)

Navigable Waters Protection Act (cannot obstruct navigable waters without a permit)
See my paper, “Bridge Over Troubled Waters”, Appendix A, for an outline of all of these instruments except the
federal-provincial drinking water sub-committee.
- 23 
Canadian Environment Assessment Act (assesses possible impacts of proposed projects
that need federal approval or funds, or are on federal lands, before they can proceed)

International Boundary Waters Treaty Act (implements the treaty)

Canada Water Act (management of water resources, including conservation and
utilization, including through agreements with provinces where applicable)

Species At Risk Act (to identify and protect endangered and threatened species from
various activities)
Provincial:

Water:
o Safe Drinking Water Act, 2002 (sets standards for drinking water and drinking
water systems regarding potability, treatment, monitoring and reporting, and
licencing standards for testing labs, water systems and operators).
o Sustainable Water and Sewage Systems Act, 2002 (requires municipalities to
prepare audited reports on full costs of water services, and to develop plans to
recover these costs)
o Ontario Water Resources Act (prohibits discharge of substances that may impair
water quality – without a permit, and regulates water takings, well construction,
construction and maintenance of water and sewage treatment plants)

OWRA Water Taking and Transfer Regulation13
13
Water takings are governed by the Ontario Water Resources Act (OWRA), and the Water Taking and Transfer
Regulation (O. Reg. 387/04 – a recent amendment to old version of this regulation O. Reg. 285/99, which was
posted on the registry for public comment in June 2004). OWRA s. 34 requires anyone seeking to take more than
50,000 litres of water per day – unless for an exempted purpose – to have a permit from the Ontario MoE, and in
some cases the MoE can require a permit for amounts less than this. Exempted purposes include: individual
household use, direct watering of livestock and poultry, firefighting.
Hundreds of permits are issued in Ontario for water taking, and more than 200 of these permits are for large volumes
of water (more than 20 million litres per day. In December 2003 the Ontario government announced its intent to
apply charges to certain water takings, the first time this would be done in this province. Fees range from $750 to
$3000 per permit (or renewal) depending on its complexity, and some farm permits are exempt from paying a fee.
Most provinces charge a fee for a permit to take water (can include fixed or flat admin fee, and/or fee based on
volume taken. Charges could be based on one or more of the following considerations: volume of water used (would
require users to monitor, which is not required now), permanent removal of water from watershed from where it was
taken (“consumptive use”), source of water (different charges if taken from sources more threatened or more
depleted, etc.).
The new Water Taking and Transfer Regulation is an improvement on the old one. It sets out the matters the
Director must consider on deciding whether to approve, renew or amend or set conditions on permits, including:
impacts of taking on water flow, habitat that depends on flow and levels, ground water and surface water and their
- 24 o Ontario drinking water objectives (quality standards -- municipalities must meet
these for public water systems, and private well owners are responsible for these)
o Lakes and Rivers Improvements Act (regulates construction and maintenance of
dams on rivers and lakes, and riparian and certain public rights to use of water, for
the purpose of ensuring protection and proper management of lakes and rivers)

Environmental Protection:
o Environmental Protection Act (prohibits discharges of contaminants into natural
environment without a permit, including wastewater effluent regulations under
Municipal-Industrial Strategy for Abatement (MISA) program).
o Environmental Bill of Rights (rights of public to request review of laws,
investigations into suspected environmental offences and citizen suit against
offender)
o Natural resource extraction laws – conditions and limits on extraction activities
(Crown Forest Sustainability Act, Mining Act, Aggregate Resources Act, Oil, Gas
and Salt Resources Act)
o Waste Management Act (regulates landfills and waste disposal facilities) and
Waste Diversion Act (regulates and promotes recycling, reuse and reduction of
waste)
o Nutrient Management Act, 2002 (standards for manure management and other
agricultural activities)
o Pesticides Act (controls licencing and permitting for pesticide use and sale, and
prohibits certain types of pesticides)
o Environmental Assessment Act (assesses potential environmental impacts of
public (government) projects, and some private projects, to determine if they
should be approved, and if so, under what conditions)
relationships, water availability (existing uses of water, low water conditions, whether taking would be in high or
medium use watershed, any planned and approved municipal use of water); whether water conservation is being
employed in accord with best management practices of the sector; purpose for which water would be taken; whether
there is reasonable prospect applicant will use water in near future; interests of others who have interest in the water;
other relevant matters. For high use watersheds, and applications for water for various listed industrial and
commercial purposes, the Director will refuse the application unless it is a renewal of unexpired permit (this does
not apply to municipalities or applications for GL, St. Lawrence, Welland Canal or Ottawa River water). MoE must
notify relevant municipalities and CAs of permit applications. All permit holders must collect and record data on
volume of water taken daily, and submit to Director once a year.
In respect of water transfers, the new regulation states that no person shall use water by transferring it out of a water
basin (3 basins in Ontario: GL-St. Lawrence; Nelson; Hudson Bay), but this does not apply to water used in basin to
manufacture a product which is then taken out of basin, and to water packaged in containers of 20 litres or less.
- 25 o Conservation Authorities Act (regulates and sets out mandates of CAs)
o Conservation Land Act (promotes and supports conservation of land in natural
state through grants and easements)

Planning and Land Use:
o Planning Act (regulates land use planning in province)

Planning Act Policy Statement, March 2005 (sets foundation for
regulating the development and use of land, and municipalities, provincial
ministries, the Ontario Municipal Board and other decision-makers must
“be consistent with” to this Statement when making land use planning
decisions)14
o Public Lands Act (regulates sale, use and construction on Crown lands)
o Greenbelt Act (would provide legislative authority to establish a greenbelt area of
about 1 million acres in golden horseshoe, and to establish a plan to provide
protection for agricultural and environmentally sensitive lands)
o Ontario Planning and Development Act (allows government to designate area as
development area and allow a development plan to be prepared which can include
measures to protect and use water resources)
o Niagara Escarpment Planning and Development Act, and Oak Ridges Moraine
Conservation Act
o Provincial Parks Act (regulates establishment and operation of parks)

Health:
o Health Protection and Promotion Act (investigation, reporting and reduction of
waterborne disease, among many other things)

14
Municipal:
Section 2.2.1 on Water, states: Planning authorities shall protect, improve or restore the quality and quantity of
water by: (a) using the watershed as the ecologically meaningful scale for planning; (b) minimizing
potential negative impacts, including cross-jurisdictional and cross-watershed impacts; identifying surface
water features, ground water features, hydrologic functions and natural heritage features and areas which
are necessary for the ecological and hydrological integrity of the watershed; (d) implementing necessary
restrictions on development and site alteration to protect all municipal drinking water supplies and
designated vulnerable areas, and to protect, improve or restore vulnerable surface and ground water,
sensitive surface water features and sensitive ground water features, and their hydrologic functions; (e)
maintaining linkages and related functions among surface water features, ground water features, hydrologic
functions and natural heritage features and areas; (f) promoting efficient and sustainable use of water
resources, including practices for water conservation and sustaining water quality; and (g) ensuring
stormwater management practices minimize stormwater volumes and contaminant loads, and maintain or
increase the extent of vegetative and pervious surfaces.
- 26 o Municipal Act (municipalities can enact bylaws about public utilities (sewage and
water), drainage, flood control, and to protect health, safety and wellbeing of
inhabitants)
o Drainage Act (allows municipalities to borrow money from provincial
government to construct drainage works)
o Building Code Act (sets standards for certain buildings and property for safety
and health, and creates inspection regime)
- 27 D.
CRITIQUES OF SOURCE WATER PROTECTION REGIME
Following are some of the major critiques offered by others, and my comments on same.
1.
Framework Report
The Joint Chiefs of the Saugeen Ojibway Nation Territories commented on the framework report
with the following:

The stated purpose of the framework, and the regime, -- to protect human health first and
foremost – “will permit harm to the environment in order to ensure protection of human
health. It is more consistent with aboriginal environmental knowledge to consider the
health of all our relations as well as our own, and once the health of all is achieved so will
our own be assured.”

Proposed role of FNs in the regime will disregard the indigenous environmental ethic and
Traditional Environmental Knowledge, “and may even jeopardize our aboriginal and
treaty rights”. The regime will tip the balance of power “toward the expediency of local
politics.”
This is what they recommended:

Primary goal should be protection of environmental health.

Precautionary principle should be applied over any risk-management (calculation of risk
to environment and decisions to proceed based on that).

Must be non-derogation and non-abrogation (of treaty and aboriginal rights) clause in
legislation.

Legislation must require other governments operating in aboriginal traditional territories
to notify all FNs in those watersheds of policy and project proposals that could affect the
watersheds.

A more parallel process of decision-making should be created, which allows FNs to vet
SPPs before they are approved.

SPCs must be required to include TEK in their planning and monitoring.

FNs must be provided by full funding to review western and native science on water
resource issues.
I agree with all these critiques, and would go even further, which is explored in sections below.
2.
White Paper
Critiques from others in respect of the white paper were summarized in an Ontario government
report, “Summary Report: Consultation Sessions on the White Paper on Watershed-based Source
Protection Planning”, based on stakeholder consultation sessions held in March 2004. The
- 28 document indicates that FNs were invited to attend, but does not indicate whether any did attend.
Neither is it indicated anywhere I can find what influence any input from FNS has had to date in
this process.
There are many specific critiques and comments, and I will not outline all or even most here. I
include below only those most relevant to First Nations, and those that have not since been
addressed in the draft act.

Political Inter-Jurisdictional Conflict: Concerns of how to address the fact that watershed
boundaries are natural, while decision-making process is in part political (involving
whatever municipalities are in watershed, First Nations, etc) and unclear how these interjurisdictional issues will be worked out.
o This is a legitimate concern in respect of conflicts between municipalities (and
their land use planning processes), between municipalities and CAs, as such
conflicts could hold up the planning and implementation process or lead to
compromises that are not good for the environment. In respect of First Nations
and their role in decision-making, this has been almost completely avoided except
to suggest one or two representatives could be on the SPC (one among many other
“stakeholders”).

Fragmented Bureaucracy: Concern that this regime would create yet another layer of
bureaucracy rather than streamlining all the fragmented and disjointed units, statutes and
processes that now exist. Source protection legislation should have priority over others
where human health is at issue, or generally. Protocol between several provincial
ministries, and province and federal government, should be developed. Various other
regimes (class environmental assessments, fisheries, water taking permits, Great Lakes
programs, habitat protection, municipal official plans, etc. etc.) must be integrated with
source protection.
o This is all very legitimate – there is no clear set of priorities and the draft act does
not include a “priority clause” (that the act and regime take precedence over other
statutes). Right now, all the statutes and regimes listed above overlap, but are not
clearly integrated with, the source protection regime, and thus there is room for
significant conflict.

Accountability and Participation: Ultimate accountability must reside with the Minister of
the Environment – to ensure the Ontario government takes full responsibility and does not
pass the buck, and to help ensure that the government finds enough funding to make this
work. Unless the government provides adequate funding for all stages of the planning
process, the information and data will end up coming from the private sector (those
industries and businesses with a vested interest in not having to pay for cleanup and
protection). These industry reps will either sit on SPCs or have persuasive power over
SPC and government members. As heavily funded as they are, they will have a distinct
advantage over NGOs and FNs.
- 29 o This is likely correct. That is why funding from government must be adequate,
and why mandatory (versus voluntary) protection measures must be included as
part of the regime.

Scope Not Wide Enough: Included within source protection planning and implementation
must be several issues that are not apparently included now: waste management
(landfills), farm plans and nutrient management, municipal land use plans, etc. Seems to
be a lot of overlap between these regimes, and room for conflict.
o This is true – no policy or statement in draft act that source protection takes
precedence, and no idea how various statutes and regimes will work together.

North: How the North would be divided into planning areas remains unknown, and if
areas are based on large watersheds this could present too large a geographic area to be
viable, and involve too many political entities to be able to attain consensus or a viable
decision-making process. Lower population base in north will make it harder to get the
experts needed for SPCs (at least, experts who have local knowledge).
o These are all legitimate concerns. From the draft act, the Minister can impose
boundaries for planning areas (although would have to be based on watersheds –
but there are many secondary and tertiary watersheds that could be grouped
together in regions), and the Minister can decide what and who comprises the
SPB and SPC (since in most cases there are no CAs in the north, except in more
heavily populated areas). Thus, the areas could be quite large and encompass a
number of political jurisdictions, including FNs, and yet the expert resources
could be low.

Funding: There is no understanding how the regime – both to engage in the planning, and
then the ongoing process of implementing the plan – will be funded. This can be very
costly. Further, if the provincial government funds in part through taxation, the tax base in
the north is small so the north could receive less funding and less capacity to implement
the required measures. Many suggest that source protection should be “self-funded” (paid
for by taxes, levies, fees, fines etc. of those both using the water and impacting or
polluting the water in the watershed). Yet – same problem as above where there are fewer
people in the north and fewer who could fund this. Also, this does not consider aboriginal
rights (paramount rights) to use of water. There are concerns that charges for water use
will commodify water and invoke trade rules and NAFTA. Finally, there are concerns that
“full cost accounting” for water use (all costs to acquire, treat, distribute, monitor and test
it should be accounted for and charged back to users) can include a cost for “profit”, and
if private water service-providers are able to profit from water taking, this will encourage
more taking and use.
o All concerns legitimate. Concern about profit-making might be true, and thus the
legislation should either prohibit profit-making or include disincentives (such as
taxes and charges) for increased use and taking.

Information/scientific data gaps: There are many gaps in information and understanding
about the needs of the environment and all current and future risks to the watersheds,
- 30 especially in the north. Very little monitoring now of quality and quantity of water, and
impacts of pollutants and takings. Need centralized collection of data and ways that all
can access it and add to it (there are existing date collection and management processes
that can help or be expanded: national pollutant reporting inventory, Canadian water
network, national water research institute and others).
o This is true – and this lack of information can lead to no decisions being made
when they should be (except continuation of status quo of exploitation without
much regard for and internalization of environmental costs), or bad decisions
being made based on unknown risks. This is why the precautionary principle must
predominate.

Precautionary Principle versus Risk Management: Risk management advocates that risks
can continue be taken until more is known about the impacts from activities and risky
behaviour; whereas the precautionary approach holds that where information is not fully
or well known about impacts from activities, these activities should not be undertaken.
NGOs call for the precautionary approach in source protection.
o I agree. Certainly we know enough to know that watersheds and waters are at
serious risk now, in general, and that cumulatively we have already done too
much harm. We also know that water is the lifeblood of all else and we cannot
afford to take chances with its viability.

Contents of Plan Unknown: The details of what must be in an SPP, and all the lead-in
documents (terms of reference, assessment report) are not clear. Thus, there is too much
room for discretion (especially inappropriate exercise of discretion), and there could be
wide differences between content and comprehensiveness of SPPs in various planning
areas. Clear templates, guidelines or lists must be provided.
o This is true, and the draft act is very vague. It is hoped that when the full draft act
and regulations come out, this detail will be included.

Quality and Quantity Standards: There are some uniform standards for water quality but
these are not comprehensive. There are virtually no uniform standards for quantity, and
different standards applied in different industries, sectors and jurisdictions. Need uniform,
minimum standards about many more aspects of water (what are the acceptable levels of
use, substances, taking, etc.).
o This is likely true, but primary goal should be environmental health and integrity
and this means using and consuming as little as possible. Further, NGOs suggest
that data must be collected, and standards and results listed for, at minimum, all
the outcome measures listed by the advisory committee in its framework report.
These include status of plans and implementation across Ontario, public education
and awareness, levels of various substances, water flows, levels and areas,
changes in area of wetlands, riparian zones and forested lands. This makes sense –
we need far more of a complete picture of what the environment is, and what we
are doing to it, and must do differently.
- 31 
Ecosystem and Environmental Health, Not Just Human Health: CELA and other ENGOs
call for source water protection to have as its priority not just human health, but
ecosystem and environmental health.
o This makes sense. To not include these as a priority creates the risk that measures
to protect just human health will lead to degradation of the environment, based on
short sightedness and political pragmatism.

Mandatory Rules: There should be mandatory rules for water conservation, for requiring
integrity of ecosystem and not just for drinking water, for metering of use and monitoring
of impacts. Further, since it is not known what must be in the plan, and what measures
must or can be used to implement plans, it is not known to what degree the government
envisages voluntary versus mandatory compliance measures. Many NGOs feel that
voluntary compliance will not work well (it has not worked too well to date), and that
many mandatory measures and penalties must be part of any implementation regime.
o This is likely correct. In the past decade, the Ontario government has relied a lot
on voluntary compliance (especially since budgets in ministries have been slashed
and it is expensive to inspect and enforce orders), and should continue to do so.

First Nations: Relationships with FNs, and their role in this regime, need to be worked out
ahead of time and not after the fact. There is no relationship decided upon despite the draft
act being presented. Where documents do reference role of FNs, it is as one stakeholder
among many. Further, ENGOs state that “the province must pursue a strategy with the
federal government and First Nations that will support the ability of First Nations (and
their technical designates) to be full participants in source water protection planning and
implementation.”15 This would include ensuring that FNs have adequate funding and
technical support to be able to participate in the development of any regime, the planning
process, and in implementing the process in respect of their waters.
o This is correct if FNs want this or a comparable or parallel regime to apply in any
respect of their lands and waters.

Great Lakes and Federal Government: Need to better incorporate GL regimes into source
protection regime. Need to ensure that Annex agreements incorporate principles of and
are consistent with source protection regime.
o This is true, and it is unclear how this can or will work. There are many regimes
dealing with GLs (boundary waters treaty, GL water quality agreement, Charter
and Annex and proposed Annex agreements, etc.). Problem is that these regimes
are international in character, so federal government must be involved, or in some
cases, US federal government and/or states are involved. Source protection in
15
CELA (with participation from numerous NGOs), “Protecting Ontario’s Water Now and Forever: A statement of
expectations for watershed-based source protection from Ontario non governmental organizations”,
November 2004, at p. 14. Chief Ralph Akiwenzie of the Chippewas of Nawash Unceded First Nation, and
David McLaren from both Nawash and Coalition on the Niagara Escarpment, were part of the process that
led to this statement. So was Sarah Miller from SLDF. I do not know if other aboriginal people
participated.
- 32 Ontario will not work (at least, not on much of a comprehensive scale) unless the
federal government participates, the GL water quality agreement is significantly
revised to ensure the GLs and its tributaries are protected and restored as source
water and that this regime is integrated with the source water protection regime,
the IJC role is integrated, the Annex agreements fully protect from water
depletion, and neither US nor Canadian jurisdictions take more or pollute more of
the GLs waters.

Municipalities: Municipal governments need more legislated authority to implement their
share of the SPPs (municipalities will be heavily involved), including monitoring,
metering, imposing taxes or charges, ability to impose water conservation and efficiency
requirements, etc. Municipal official plans should be required to be revised so they are
consistent with SPPs.
o This is legitimate.

Ownership of water: There should be a clear statement in the legislation that the Province
owns the water, as a public resource.
o NO. Province cannot own anything subject to aboriginal title, and title to
waterbeds is likely held by a number of aboriginal peoples in various water bodies
across Ontario. Further, if aboriginal people were held to have title to waterbeds,
exclusive use of water over the beds would vest in the aboriginal people. This
would conflict with provincial “ownership”. Conversely, provincial ownership of
water would be a derogation from or conflict with aboriginal title.

Consultation and Participation: The process needs to involve wide representation,
decision-makers must be fully accountable, and there must be wide consultation to ensure
input. Public must be able to readily access all documents and information. There must be
mechanism to appeal or seek review of SPPs not already implemented, and of
implementation measures. There must be clear minimum standards and content for
consultation in draft act.
o This is all legitimate. There is little in the draft act about consultation, and
certainly no set of standards or requirements as to when there must be
consultation, with whom, what it must consist of, and how it must be acted on.
There is certainly no mention of consultation with FNs in particular. These are
serious gaps. It is possible they will be addressed in the full draft act and
regulations, but we do not know. Further, it seems there is no direct decisionmaking role envisioned for FNs, and certainly no requirement for consent from or
even separate vetting by FNs of plans and implementation. It seems as if, as usual,
FNs are to be considered as one among many stakeholders, and that the Minister
makes the ultimate decisions (ministerial discretion, which can and often is
politically motivated and thus not in the best interests of the environment or
aboriginal peoples).
- 33 
Membership on SPC: Comments that membership should be based in part on share of
land ownership (and since agricultural operations own a lot of land, they should have
greater representation). Need balance between population, interests, and land ownership.
o No comment on this, except to say that what is completely ignored here is
aboriginal title, and aboriginal rights (including sovereign self-governance) in
respect of traditional territorial land which has been ceded.

Long Term Improvement and Monitoring: There must be a goal of continuous
improvement in water quality and quantity and in information and understanding, and
there must be ongoing monitoring and reporting of impacts and progress with
implementation.
o I agree.
3.
Draft Act
In addition to the above, CELA made the following comments in respect of the draft act itself16
(and I agree with essentially all of these comments, with the proviso that neither CELA’s nor
anyone’s comments are complete without considering how First Nations will fit into or alongside
this regime):

Lack of Substance/Detail: Much more substance and detail must be in the act itself, and
not left to regulation (as regulations can be too easily changed and thus require less
accountability). Even though it is understood that this draft act only deals with the
planning, and not the implementation, stage of source protection, there is far too little
detail and substance in respect of planning alone in this draft act. The draft act “falls
woefully short of establishing a comprehensive framework for source protection in
Ontario.” Lack of direction, substance and detail is pronounced as follows:
o The listed requirements for contents of terms of reference, assessment reports,
SPPs and the Minister’s annual reports are too few and too vague.
o There are far too few definitions of key concepts and terms, and what is there is in
many cases too vague.
o There must be set requirements for membership and role of SPCs (note that there
is nothing in the draft act which requires even one or two First Nation
representatives to sit on an SPC).
o The discretion given to the Minister to create planning areas and SPBs and SPCs
where there are no CAs (in the north) is too broad and lax. There must be a
mandated duty on the Minister to do this within a certain timeframe to ensure that
areas are not ignored, and there must be more in legislation that specifies what
criteria the Minister can use.
16
CELA, “Safeguarding Ontario’s Drinking Water Sources: Essential Elements of Source Protection Legislation”,
August 2004.
- 34 
Purpose: There is no purpose section. One should be included to guide the interpretation
of the rest. It should include endorsement of the precautionary principle (and I would add,
that protection of environmental health, and not just human health, is a priority as the
latter depends on the former).

Crown: The Act should bind the Crown (this is not stated in the draft act).

Priority: There needs to be a primacy or priority provision that states that this act takes
priority over other acts where there is a conflict. All the provincial acts listed in the
section above should be made consistent with the source protection regime. That is, it
should be required that no approvals or permits be issued under these other acts for
activities that would, or would likely, create water risks (as defined in draft act).

Accountability: Minister of Environment must have ultimate accountability and provided
the authority required, including over other ministries where there is a conflict.

Funding: Should be duty on Minister to create a fund for source protection and to direct
all funds from water related usage and taking to source protection.

Consultation: There must be more set requirements for public consultation in the act.
Hardly any requirements for public consultation (in respect of the terms of reference,
assessment, SPP, periodic reviews and updates of the SPPs, etc. are set out).

Minister Approval: The Minister should not be able to reject draft SPPs because they
contain mandatory measures not included in the regulations. SPCs should be able to set
more stringent standards.

Plan Review: There should be minimum time intervals for review and updating of the
SPP, which should be on the basis of meeting current water protection needs and
responding to emerging new information.

Enforcement: There need to be enforcement mechanisms in the act, such as inspection and
investigation powers, injunctions, penalties or offences for failure to comply with the
SPP. Without this, the regime has no teeth.
- 35 E.
JURISDICTION TO GOVERN
For this part of the paper, and part F below, I take much of the information from the paper I
wrote in respect of the Great Lakes Annex, entitled “Bridge Over Troubled Waters: Canadian
Law on Aboriginal and Treaty “Water” Rights and the Great Lakes Annex”. That paper contains
quite a thorough analysis of the law on aboriginal and treaty rights, and title, Canadian common
law in respect of water, and aboriginal and treaty rights to and dependent on water. There is no
need to redo all this work here, but I will simply highlight some of the major findings, and
indicate how they apply in respect of source water protection. It is strongly recommended that if
the reader has not yet read this other paper, he or she should do so as only the highlights are
repeated here.
Before reviewing the jurisdiction to govern in respect of certain rights in certain territory, it is
important to understand the nature of reserves and aboriginal title.
In virtually all cases in Ontario, reserves were set aside or carved out of aboriginal title lands
(traditional territory) in treaties or surrenders. Reserves were thus not lands granted by the
Crown, but lands not granted or ceded by aboriginal peoples to the Crown. Thus, reserve lands
and waters continue to be under aboriginal title and this includes title to waterbeds (lands under
waters) within the reserve boundaries. The “exclusive use” of any aboriginal title lands (and
waters over them) applies on reserves.
Of course, reserves are not the only aboriginal title lands. Aboriginal title exists beyond reserve
boundaries where it can be proved to have not been surrendered or extinguished. It is highly
unlikely that there were any valid extinguishments of aboriginal title in Ontario (see Bridge Over
Troubled Waters). In terms of surrender, it appears that in several instances, while treaties might
have surrendered aboriginal title to lands above water – up to the water’s edge, title was not
surrendered to lands under the waters. This is the claim of Walpole Island First Nation in respect
of the waterbeds of portions of Lake Erie, Lake Huron, Lake St. Clair, and the St. Clair and
Detroit Rivers. It is also the claim of Nawash and Saugeen First Nations in respect of portions of
the waterbeds under Lake Huron.
1.
Water Rights
There are three major types of aboriginal and treaty “water” rights pursuant to Canadian law
properly understood:

Ownership rights: Aboriginal title to waterbeds (land under water), which provides for
exclusive use of the water above. Aboriginal title to waterbeds exists in reserves and
anywhere else where such title was not surrendered or extinguished. Such exclusive use
of the water might be subject to public rights of navigation and floating (ie: except for a
water body wholly captured within one’s land, one cannot obstruct anyone else from
navigating on the water body or from floating logs and craft on the water).

Use rights: Aboriginal rights to use of water feeding and bordering aboriginal title and
reserve lands, are paramount rights. That means that the First Nation has the right to use
as much water as reasonably needed for current and projected future needs, before any
other party can use the same water. This is true where waterbeds are owned by the Crown
- 36 (where there is neither aboriginal title nor any non-aboriginal private title to waterbeds –
a rare occurrence anymore in Ontario). These paramount rights are similar in nature to
“riparian rights” in that each user has the right to, and the responsibility to all other users
for: natural and unaltered flow and quantity of the water; natural quality of the water.
However, riparian rights are shared equally among all users of the same water body;
instead, paramount rights are not shared equally but trump other users. Such use rights
would likely be subject to public rights of navigation and floating.

Dependent rights: Aboriginal rights dependent on a viable quantity and quality of water.
There are two major such types of rights: cultural or harvesting rights (hunting, fishing,
gathering, burial sites etc.); self-governance rights.
In respect of cultural rights, the Supreme Court of Canada has accepted that practices and
needs incident to the aboriginal (or treaty) right itself are also protected (thus, water
necessary for the practice of other rights should be protected as incidental or prerequisite
to such rights). Further, the Supreme Court of Canada has held that there is a “priority” of
aboriginal fishing rights, and this test has been applied to all harvesting rights. This is
similar to the paramount use rights (but has been misapplied in Canada). Courts allocate
priority as follows: (1) conservation; (2) aboriginal fishing/harvesting; (3) non-aboriginal
commercial fishing/harvesting; (4) non-aboriginal sports fishing/harvesting.17
Conservation must be implemented so as to minimally impair the aboriginal right.18
In respect if self-governance and sovereignty rights, since water is necessary to all life
and all aspects of social organization, water in sufficient quantity and quality to exercise
self-government or self-determination is a prerequisite right. Courts and the federal
government have recognized the right of self-government as an inherent right of
aboriginal peoples protected by s. 35 of the Constitution.19 Further, where cultural
(including harvesting) rights are exercised pursuant to self-determination (perpetuation of
a people as a people), and such rights require water to be exercised, then there exists the
rights of said people to govern (to one degree or another) in respect of management and
use of that water.
Following is an outline of the arguments as to how the law in respect of water rights should
properly be understood, and following each argument, a synopsis of how the law is actually
understood or applied at present.

17
The so-called assertion of British sovereignty over aboriginal peoples (i.e.: the right to
govern aboriginal peoples on their lands, exercising their rights) was not valid as there
was no basis in law at the time for this. Only British title to certain aboriginal lands was
acquired through treaties, and almost none of these lands were lakebeds of the Great
Lakes Thus, in all respects relating to unsurrendered or reserved title lands, and in respect
of all rights of aboriginal peoples to live by their own cultures and to govern themselves
Woodward at 5-30.
Woodward at 13-22.
19
Campbell v. BC (AG) (2000), 79 BCLR (3d) 122 (SC); Eastmain Band v. Gilpin, [1987] 3 CNLR 54 (Que. CSP);
see also Federal Policy Guide, Aboriginal Self-Government, issued by the Department of Indian and
Northern Affairs.
18
- 37 in so doing (including in regard to fishing, hunting, and all other harvesting), neither the
federal nor provincial governments have any right to govern.
This is not how Canadian law currently perceives the situation, and thus having this
perspective accepted in Canadian law (if it ever were to be) will take time and effort. In
the interim, the fact that this argument has merit could be used in negotiating with
governments about developing recognition of rights.

If British sovereignty can be perceived as legitimately asserted in respect of lands held
under aboriginal title, allowing some degree of governance and regulation of these lands
by Canadian governments, then Canadian governments and courts today must apply the
law and facts as they existed when such title was considered to have been recognized by
English common law. To do anything else is a violation of English law. British imperial
law itself regarded aboriginal peoples as governing themselves (in their own territories
exercising their own rights) in distinct and separate units. They were not subject to the
same British colonial (or “municipal”20) law as was applied to settlers. Further, British
colonial law adapted to the unique North American (later, Canadian) situation under the
“particular or local custom” rule, which would and should recognize these unique
aboriginal rights as defined from the aboriginal perspective. Where aboriginal peoples
considered themselves to have held title to the waterbed, or exclusive rights to the waters,
and this title can be proved to have not been surrendered or extinguished (including on
reserves), then it exists today.
Canadian courts appear to accept that aboriginal title does include title to waterbeds of
non-navigable waters where historic exclusive occupancy of the waters can be proved,
but have been reluctant to accept it existed in non-tidal navigable waters (and even more
so, in tidal waters) after introduction of English common law. This reluctance is not
based on a proper understanding of the law at the time, and should be corrected.

All aboriginal title lands (including reserves) carry paramount rights (akin to US
doctrine) to use of water feeding and bordering the lands. These are akin to but greater
than riparian rights (which are shared rights “reduced” by the rights of other riparian
owners), where aboriginal uses are paramount over (not reduced by) the interests of nonaboriginal users of the water. Even though aboriginal title was perceived as part of the
British/Canadian common law, and riparian rights were also a part of this law, given the
purpose of s. 35 of the Constitution to reconcile the assertion of British sovereignty with
the fact of pre-existing self-governing aboriginal societies, these rights should be
considered paramount. Only the narrowest (and least accurate and least just)
interpretation of the law would result in application of bare riparian rights to aboriginal
title and reserve lands bordering a shoreline. Riparian rights themselves can lead to
significant power to prevent the taking and diverting of water by others.
Canadian law currently favours the narrowest interpretation for reserve lands (i.e.: they
come with riparian rights where the reserve extends to the water’s edge) but this issue is
20
The reference to municipal law in this context has the meaning applied in the field of international law, and it
means domestic law.
- 38 evolving and if law is properly applied, should evolve toward paramount rights to use of
water.
2.
Authority to Govern
It is submitted that if the aboriginal water use is exclusive to the aboriginal party (ie: where title
exists), then the right to govern in regard to water management is exclusive. If the water use is
paramount, then the right to govern requires consent of the aboriginal parties for other uses that
could or would harm this aboriginal water use. If the water use is shared, then the right to govern
would require being a direct part of the decision-making scheme in relation to the water.
It is further submitted that if any Canadian government has any right to regulate in respect of
aboriginal title territories and reserves (waterbeds therein) then only the federal government can
so regulate. Further, it is submitted that only the federal government can regulate and infringe any
aboriginal or treaty right exercised off title or reserve land. Any infringement of such rights must
be justified. Clearly, given the importance of water to all rights, and the importance of cultural
and societal rights (including the rights to hunt and fish) to the survival and self-determination of
aboriginal peoples as peoples, there is no excuse for anything but a high threshold for justification
of infringement.
Following is an outline of the arguments in respect of rights to govern as Canadian law is
properly understood, and what current Canadian law holds.
How Canadian governments should interact with these rights (once properly defined):

Section 91(24) of the Constitution provides the federal government with exclusive
jurisdiction to govern in respect of “Indians”, and “lands reserved for Indians” (two
separate heads of authority). Section 88 of the Indian Act (a federal law) gives certain
provincial laws the force of federal law if they meet certain criteria. In this way, these
provincial laws can apply to affect rights held by aboriginal people – otherwise, they
could not.

Section 88 of the Indian Act does not give provincial law federal force so as to make it
apply to “lands reserved for Indians”. Only the federal government may regulate or
infringe rights in respect of Indian reserve lands and unsurrendered aboriginal title lands
– if indeed any Canadian government can so regulate at all. Water is an aspect of “land”,
and thus rights to the waterbed and rights akin to riparian rights are land or “property”
rights. Thus, only the federal government may regulate in respect of such Indian water
rights, on reserves, and on unsurrendered aboriginal title lands. Provincial governments
may not so regulate and any provincial regulation that purports to limit or affect such
water rights should be ultra vires the province as unconstitutional.
It is unsettled in Canadian law whether s. 88 of the Indian Act gives federal force to
provincial law (thus allowing such law to apply) in respect of aboriginal title and reserve
lands. Rights to water and waterbeds are generally considered land or property rights, but
Canadian law has barely dealt with the issue of such rights as held by aboriginal peoples,
nor has it dealt much with which level of Canadian government can regulate in respect of
such water rights.
- 39 
In respect of “Indians” (aboriginal peoples), only the federal government can regulate or
infringe treaty rights, because s. 88 of the Indian Act does not give federal force to
provincial laws that are inconsistent with treaty rights. Further, s. 88 of the Indian Act is
unconstitutional to the extent it allows provincial governments to regulate aboriginal
rights, or infringe on these where such infringement would impair the status or capacity
of aboriginal peoples as peoples. These rights are at the very core of “Indianness”, and
thus within the exclusive jurisdiction of the federal government pursuant to s. 91(24) of
the Constitution.
The law seems more weighted toward prohibiting any provincial infringement of any
treaty right, except in the prairie provinces which are in a unique situation given the
Natural Resources Transfer Act. As for any ability of provincial governments to infringe
aboriginal rights, courts have held this is permissible, but the Supreme Court of Canada
has not yet considered all the implications of this, especially in regard to s. 88. A case to
be argued before the Supreme Court of Canada in the near future, Morris, might provide
some clarity once decided.

Any government that intends to infringe aboriginal and treaty rights must justify the
infringement. Whether or not only the federal government is permitted to so infringe, the
test for justifying infringement (by any government) of rights in relation to water must be
very strict. Water feeds all aspects of life (the lifeblood of Mother Earth), and of
“society” or social organization (navigation or mobility, health, culture, economy, and the
ability to self-govern in respect of these). Rights to a quantity and quality of water
sufficient to sustain life and society are prerequisite to and necessary for virtually all
other aboriginal rights and treaty rights. Given this, rights to water and rights directly
reliant on water should be prioritized over any other private rights (and, possibly, co-exist
with certain public rights, such as to navigation).
Since the law in respect of water rights is inconsistent and in flux, so too is the law in
regard to justifying infringement of such rights. Again, if such law properly applies facts
and properly respects the nature of aboriginal rights, “reconciling” requires a very high
threshold for justification.
3.
Paradoxes and Developments in Canadian Law
It is important when speaking of Canadian law in respect of aboriginal and treaty rights, to begin
by outlining two underlying paradoxes.
First, Canadian-made law is the law as developed primarily by and under English law. This
“English” law, at its earlier stages, recognized indigenous peoples as distinct self-governing
societies occupying their own lands in North America, with the right to do so. Here is the
paradox. English law (judge-made and legislature-made) in what became Canada changed, not
necessarily by precedent or for legitimate purposes, but for pragmatic reasons: to meet the needs
or demands of the European settlers. As settlers demanded more land and resources, it had to
come from somewhere or from someone. It came from, of course, indigenous peoples. Much of
this taking away from indigenous peoples to give to European people had no basis in properlyapplied law. This taking became a fact – a pervasive fact. And this fact seems now to be simply
accepted as law (because “it’s here”). Put another way, Canadian law in respect of aboriginal
- 40 peoples seems to be built in part on facts (circumstances) that should never have been allowed by
law.
The second paradox is this: As soon as one accepts that there were existing self-governing
societies, which were not conquered, how therefore does one assume that one’s legal, political,
cultural and linguistic rules should or could “legally” apply to determine the rights of the selfgoverning societies? Applying one’s own rules and perspectives to self-governing others creates
a hierarchy which of itself denies equality; further, it is submitted, the application of this
hierarchy in Canada has often exacerbated the inequality and has subjugated aboriginal peoples.
Therefore, any proper analysis of Canadian law today has to examine both the factual and legal
underpinnings to attempt to sort out what might be valid from what was derived contrary to law:
from political pragmatism, misunderstanding, and even, sometimes, greed.
Canadian law must today reconcile three things: assertion of Crown sovereignty (perhaps or even
likely without right); the taking of so much from indigenous peoples, often without right; and the
fact that indigenous peoples had and have the right to survive here in their own societies as their
own peoples. Courts and governments have an obligation to reconcile so as to rectify the
egregious wrongs. To do anything else is unconstitutional, because the first principle of
constitutional law is the Rule of Law.21
The Canadian-made law on aboriginal and treaty rights is developing, and cannot in any way be
considered set in stone. This law has been developing in significant ways particularly since
aboriginal and treaty rights were entrenched in the Constitution in 1982. Courts are grappling
with how to reconcile the fact that self-governing aboriginal societies were here occupying and
living on and by the lands and waters for centuries, with the fact of assertion of British
sovereignty over aboriginal peoples. To have been legally valid (according to the imperial law of
Britain and international law at the time), such assertion of sovereignty would have required
either the conquest of aboriginal peoples, or settlement on lands that were “terra nullius” (not
occupied, or at least not occupied by organized societies), or ceding of sovereignty through treaty
None of these circumstances existed.22
These two facts may be irreconcilable in the end, since there is strong evidence that there was a
tenuous basis in law at best (and likely no legal basis) for the assertion of British sovereignty
The Rule of Law is part of Canada’s written constitution, but is also considered an unwritten constitutional
convention by which “government officials must act in accordance with the law”: peter Hogg,
Constitutional Law of Canada (looseleaf: Toronto, Carswell) at 1-2. Hogg goes on to state that this requires
an independent judiciary. To be independent, judges must decide law in accordance with principles of
justice, and precedent, and not as a result of political persuasion or the persuasion of politically-motivated
circumstances. See also the Manitoba Language Reference, [1985] 1 SCR 721 where the Court decided the
case on the “rule of law” as an unwritten foundation of the constitution. It found that one aspect of the rule
of law is that a community must be governed by law.
22
See R. v. Van der Peet, [1996] 2 SCR 507 at para 109 where L’Heureux Dube J. notes: “there is still debate as to
whether the land was indeed free for occupation.” It is difficult to imagine how there could be such debate,
especially given judicial pronouncements about the existence of aboriginal societies in North America
when Europeans arrived. See infra. One supposes any such debate is an attempt to find some legal basis for
assertion of British sovereignty. There could well be none.
21
- 41 over aboriginal societies as self-governing units (ie: British law could not govern where
indigenous law was already governing its own people).
The British (and later Canadian) Crown did acquire title to areas of lands and waters that had
belonged to aboriginal peoples, largely through treaties where such tracts were ceded and
surrendered. But there is good evidence that all the treaties did and were intended to do was pass
incidents of ownership to lands and waters, and nothing more (i.e., there was no subjecting of
indigenous peoples to the governing powers of the Crown). And there is evidence that even
ceding of title, as title was and is understood by Europeans and Euro-Canadians, may not have
been intended by aboriginal parties. Just what was acquired and what was reserved or retained
by aboriginal peoples (both in respect of aspects of title, and in respect of self-governance and
exercise of other societal/cultural rights) remains very unclear in Canadian law.
It is submitted that Canadian courts have often misunderstood and misapplied both facts and law
that existed at the times of arrival of Europeans in North America, assertion of British
sovereignty, and treaty-making. Yet, courts today rely on the law and facts from these past dates
to determine and define the rights of aboriginal peoples today. To the extent they get it wrong,
courts today render judgments that are wrong in law.
It is fair to say that Canadian law in respect of these rights will continue to develop as more is
understood, as it becomes increasingly apparent that the law in its current state is not respecting
aboriginal rights and peoples (and as such, they continue to be abused and oppressed), and as
aboriginal peoples continue to bring challenges to attempt to rectify this untenable situation.
In respect of aboriginal and treaty rights to water, and dependent on water, it is submitted that
because Canadian law in respect of aboriginal and treaty rights has often been based on
misunderstandings, including of the relationship between the English common law of water and
the English common law in respect of aboriginal peoples and their rights, water rights of
aboriginal peoples are in fact greater than is currently recognized. If facts and law are properly
understood and applied, aboriginal peoples have significant rights in respect of water.
- 42 F.
POTENTIAL EFFECTS OF SOURCE WATER PROTECTION REGIME ON
ABORIGINAL AND TREATY RIGHTS
There are two major issues in respect of the effects of the Source Water Protection (SWP)
regime.
Environmental Effects:
First, the actual operation of the regime, if it indeed it operates to protect and restore the quality
and quantity of some or much of the water in the province, will likely not have a negative impact
in some ways in respect of the exercise of certain aboriginal and treaty rights – namely,
harvesting rights and any rights that require viable water sources to be exercised. This is not
supposed to be an environmentally degrading or exploitive regime which allows yet further harm
to the earth. Such exploitation regimes do, of their very nature, have a particularly negative
impact on indigenous peoples’ survival and rights, given the special relationship between
indigenous peoples and the lands and waters.
However, even in this “environmental effects” respect, to the extent the SWP regime prioritizes
“drinking” water over other water, and prioritizes human health over environmental health, the
integrity of waters, ecosystems and the environment might be more at risk than is intended. The
government could engage in activities that might enhance waters for human drinking, but as a
result cause harm to other aspects of the environment – which could inhibit aboriginal and treaty
rights.
Further, the government could attempt to designate further water sources for drinking only, or
lands for water buffer zones, and limit or prohibit any other activities that use such water, and
this could result in Ontario trying to further limit the practice of aboriginal and treaty rights.
Mind you, given that the regime is not fully developed and the full draft act is not available, it is
too soon to even make any determination about practical environmental impacts from its
operations.
Decision-Making Regime
The second major issue is this: in that the SWP regime is intended to be applied across all
watersheds in Ontario without much of a decision-making role for aboriginal peoples (other than
perhaps a minority role for one or two FN representatives on each SPC – and even this small role
is not required in the draft act), it becomes an imposed regime. The decision-making structure
itself is a violation of aboriginal and treaty rights. It appears (so far) that the Ontario government
does not intend to impose this structure or the act on reserves, and that the province would seek
to develop an agreement with the federal government and aboriginal peoples about application of
the regime, or something complementary, on reserves at least. But it also appears that Ontario
intends to apply the act everywhere else but reserves, and to make aboriginal peoples in Ontario
(in exercising their rights off reserve) subject to the regime. This is akin to numerous provincial
statutes with the purported purpose of “conservation”, and several courts have (wrongly, in my
opinion) allowed these statutes to infringe treaty and aboriginal rights.
- 43 As is set out in the section above, aboriginal title to waterbeds is a right both inside and outside
of reserves (where it can be proved to have not been surrendered or extinguished). Further,
paramount rights to use of water feeding and bordering title and reserve lands are clearly rights
in respect of water outside reserve boundaries. Also, harvesting rights and other cultural rights
are also exercisable outside of reserves. In fact, the whole point to these rights is that they are
attached to traditional territory, of which reserves (in most cases) are but a very small part.
Finally, as set out above, indigenous peoples did not and do not perceive of treaties as surrenders
of sovereignty (right to govern) in respect of traditional territories. They ceded certain incidents
of ownership only (and even then, the nature and the extent of such ownership is often disputed
given very different worldviews about what ownership means). Thus, self-governance rights
exist outside of reserves.
For the provincial government to purport to exclude the regime from applying only on reserves,
and to impose it across the rest of Ontario which is composed of traditional territories of
aboriginal peoples, while at the same time excluding or ignoring any meaningful decisionmaking role for aboriginal peoples here, is to relegate aboriginal peoples to nothing more than
municipal-type bands under the Indian Act with no rights outside reserve borders.
As a decision-making regime, the SWP regime violates aboriginal and treaty rights to and
dependent on water:
1.

in respect of the authority and right to govern

in respect of the duty to consult

in respect of exclusive use (where title to waterbeds) or paramount use of waters
Authority and Right to Govern
Canadian law properly understood and applied requires the following.
a.
Title to Waterbeds
The province likely has no right to regulate in respect of waterbeds subject to aboriginal title, and
water over them. Title provides for exclusive use by the aboriginal party of the beds and the
waters, and exclusive use and the retention of the rights to sovereignty includes the ability of the
aboriginal party to govern. Aboriginal title of waterbeds outside of reserve lands exists where it
is accepted or proved. And for reserves, where they are carved out of traditional territory,
aboriginal title is held in respect of waterbeds within the reserve boundaries.
As can be seen from the brief outline in section E above, it is doubtful that the federal
government can regulate where aboriginal title (including on reserves) exists. For the federal
government to be able to legally and validly regulate, the assertion of British sovereignty would
have had to have been legally valid (and there are strong reasons to believe it was not). However,
if the federal can so regulate, then any infringement from such regulation on the aboriginal
party’s rights in respect of title (including reserve) lands and waters must be justified, and given
the importance of water to everything else, the test for justification must be set to a very high
standard.
- 44 b.
Paramount Use Rights
The province likely has no right to regulate in respect of aboriginal rights to paramount (or even
shared riparian) use of waters feeding and bordering aboriginal title and reserve lands. The
province could regulate other users (ie: non aboriginal users) in respect of their use of waters
feeding and bordering such lands, providing the paramount (or riparian) rights of aboriginal users
are first respected and fulfilled and not infringed.
The federal government would, arguably, be the only Canadian government with authority to
regulate in respect of these rights to aboriginal use of water. The test for justification of any
infringement caused by such regulation must be set to a very high standard.
c.
Dependent Rights
The province likely has no right to regulate when this would amount to an infringement of
aboriginal and treaty rights dependent on water (especially harvesting and cultural rights), no
matter where practiced. The province could regulate other non-aboriginal users’ rights to water
that is not subject to title or paramount rights, but such regulation could not infringe aboriginal
and treaty rights dependent on such water in so doing. If such infringement is allowed (which I
submit is not correct), then the test for justifying such infringement must be set to a very high
standard.
The federal government is, arguably, the only Canadian government with the authority to
infringe any aboriginal and treaty rights, and again, the test for justification of such rights must
be set very high.
d.
Section 88 of the Indian Act
Section 88 of the Indian Act makes legitimate provincial laws that would be otherwise
illegitimate in that they infringe aboriginal rights. It gives federal force to provincial laws of
general application that are not directed at, but have an effect on, the core of Indianness,
including such aboriginal rights. If s. 88 applies at all, it does not apply in respect of
infringements to treaty rights, should not apply in respect of rights to water (since water is an
aspect of land and it appears s. 88 does not legitimize provincial laws that infringe aboriginal
land rights) and should be declared unconstitutional in respect of infringements to other
aboriginal rights where such infringements hamper the capacity and status of aboriginal peoples
as peoples.23
e.
Infringement of Rights
Unless and until the limits set out above are met, the SWP regime will be in fundamental
violation of the rights of aboriginal peoples to govern, and in violation of the limits on authority
of the provincial government, and arguably the federal government, to regulate.
If there are any legitimate grounds to find that the provincial government (or federal
government) can infringe aboriginal and treaty rights to water, and/or such rights dependent on
23
For a much fuller analysis of s. 88 and its application to aboriginal and treaty rights, including in regard to lands
and waters, see Bridge Over Troubled Waters, at pp. 22-29.
- 45 water, then one must look at the legal test for justifying such infringement (ie: no infinrgment is
allowed unless it can be legally justified).
In respect of the test for justification of an infringement of such rights, the courts have
established this test:

Is there a compelling and substantial legislative objective?

Were the Crown’s actions consistent with the “honour of the Crown”, the duty owed
aboriginal people?
In regard to the first part of the test – objective -- conservation of a natural resource has been
held to be valid.24 It has also been held (only where there is no internal limit on the right itself)
that any goal intending to further the good of the community as a whole, including the pursuit of
economic and regional fairness, is valid.25 It is likely that source water protection will be seen as
a legitimate conservation objective, such that courts will find that the SWP Act passes this first
hurdle.
This type of test weighs aboriginal rights against the interests of non-aboriginal parties. This
approach has been criticized as effectively equalizing aboriginal rights with the interests (not
rights) of non-aboriginal Canadians. It has been stated that the very reason that aboriginal rights
were constitutionalized (to reconcile prior sovereignty with Crown-asserted sovereignty) must
inform any determination of whether limits on such rights can be considered valid.26
In regard to the second part of the test -- whether the Crown’s actions were consistent with the
“honour of the Crown”, courts must consider a number of factors to determine whether the
Crown has adequately accommodated the right, including:

whether the right has been given adequate priority in relation to other rights

whether there has been as little infringement as possible

whether, in a situation of expropriation, fair compensation is available

whether the aboriginal group in question has been consulted.27
I would simply state here that the imposition of a provincial regime on aboriginal peoples, in
respect of water to which aboriginal peoples have exclusive, paramount or even riparian rights, is
a direct infringement on the aboriginal party’s right to govern in respect of such water and such
rights, and such infringement cannot readily, if ever, be justified. That is, the aboriginal right to
self-govern should also take priority. I would also hold the same in respect of other rights
dependent on water.
24
R. v. Kruger and Manuel, [1978] 1 SCR 104 at 112.
Gladstone; Delgamuukw at para. 161.
26
Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2002] 1 CNLR 169 (Fed. TD) at para.
118.
27
Sparrow
25
- 46 2.
Duty to Consult
The right, under Canadian law, of aboriginal peoples to have full, meaningful and bona fide
consultation in respect of any government legislation or action that could infringe their rights has
been recently confirmed in Supreme Court of Canada cases. The right to consultation is invoked
when the Crown is to make a decision or take an action that could infringe an aboriginal or treaty
right.
The right to be consulted does not require the aboriginal party to have first proved the existence
of the aboriginal or treaty right that could be infringed from such government decision or action.
The duty of the Crown (both federal and provincial) to consult applies not only where the right is
proved or accepted (by the court or Crown), but also where the right is asserted and not yet
proved.28 Both the federal and provincial governments must consult the aboriginal groups who
would be adversely affected. They must consult both when a right has already been proved
through court or recognized by the Crown (through treaty, land claim agreement or similar
instrument) as had already been established before these decisions, and when such a claim has
been asserted but not yet proved or recognized.
In Haida, the Court said that to be meaningful (in this context), consultation must take place at
the level of strategic resource use planning. Clearly, the development of the SWP regime is
stregtic resource use planning, and effective consultation with aboriginal peoples must happen
now before the regime is further developed, even in draft form. The Haida had launched an
aboriginal title claim in court in regard to lands for which the government was issuing tree farm
licences. Rather than consulting just at the issuance of each cutting permit, the Crown had to
consult at a prior level, when the licencing scheme was being developed.
Case law before Haida held that consultation might not be required in the process of making new
legislation or developing new government regulatory or licencing schemes, if these have enough
guidelines in them to satisfy the court that the discretion will be properly applied. That is, the
duty to consult might not be activated until there is governmental action which actually carries
out and applies this permissive discretion.29 For reasons stated above, this is wrong because it
defies the nature of aboriginal rights as deriving from pre-existing self-governing aboriginal
societies. To govern, one must be able to be part of decision-making processes from the
beginning. It appears that Haida supports this precept, and advances the law beyond where it had
been previously. It is submitted that Haida stands for the proposition of aboriginal and
governmental co-management.
It is the Crown (federal and provincial) which must consult, and while the Crown can delegate
procedural aspects of its duty to other processes (such as environmental assessments), it cannot
delegate the legal duty itself entirely to another process, nor to any other decision-maker
including a corporation.
28
Haida Nation v BC (Minister of Forests), [2004] 3 SCR 511; Taku River Tlingit First Nation v BC (Project
Assessment Director), [2004] 3 SCR 550.
29
See Shade v. Canada (AG), 2003 FCT 327 (T.D.), where the court struck an application for judicial review of Bill
C-7 (the First Nations Governance Act) for lack of meaningful consultation, since the court held that the
process of legislation is not justiciable, particularly where there is an alternative measure of appearing
before a parliamentary committee. Note, however, that this case was determined before Haida and Taku,
and by a lower court.
- 47 Under Canadian law, the content of the duty varies. It will be stronger where the right is proved
versus just asserted, and where the potential impact on the right is greater.
In Delgamuukw, the Court said that there was a spectrum of consultation measures that the
Crown might have to take to justify infringement of aboriginal title, ranging from discussing
decisions to be taken, to securing the consent of the aboriginal party to any proposed decision
before it is made.
At the low end of the spectrum, where the claim to a right appears weak, and the potential
infringement minor, the duty would require giving notice, disclosing information and discussing
issues raised in response to the notice. Information disclosed must be sufficient for the aboriginal
party to make a reasonable assessment of the potential impacts on the exercise of their right.30
Even at this level (in fact, at all levels), the government’s consultation measures have to be
undertaken in good faith, with the intention of substantially addressing the aboriginal party’s
concerns. The Court expressed approval for the criteria set out in a New Zealand case, of: putting
the proposal forward before it was finalized; aboriginal opinion be sought on the proposal; the
aboriginal group be informed of all relevant information; the Crown listen with an open mind;
the Crown be willing to alter the proposal; and the Crown give feedback to the aboriginal group
on how it considers its input.31
At the higher end of the spectrum, where the right has been asserted, the claim is strong, and the
infringement would be significant, the aboriginal party would, arguably (see above) be required
to formally participate in the decision-making process and the decision-maker would have to
provide written reasons for its decision.
At the highest end of the spectrum, where the right has been proved and the infringement would
be serious, consent might be required before Crown action could be taken (there has been no
case yet in which a court required this consent). Each case is to be assessed in its own
circumstances.
Consultation (especially at the higher end) might also include a duty to accommodate. This duty
remains undefined in Canadian law, but surely, for reasons stated above, it must be considered in
the context of who and what aboriginal peoples are (pre-existing sovereign nations). The
Supreme Court holds that the Crown might have to take steps to avoid irreparable harm or to
minimize the infringement. Applying this Supreme Court case law, a lower court held that the
Crown’s failure to make reasonable concessions to the aboriginal party might amount to bad
faith consultation or negotiation.32 In this case, the court held that the Crown should first consult
with the aboriginal group about the content of the consultation process itself, and seek to
negotiate a mutually-agreeable process. Further, the court suggested that in some cases the
Crown must provide funding for the aboriginal group’s participation in the consultation process.
In summary, where aboriginal title and/or exclusive rights to water exist (on reserves, and
otherwise where accepted or proved), the Crown owes a duty a duty to consult that, in my
30
See Cheslatta Carrier Nation v. BC (Project Assessment Director), [1998] 3 CNLR 1 (BCSC).
Much of this summarization of Haida and other case law on the duty to consult is taken from Roger Townshend,
“The Duty to Consult Aboriginal People”, Article for Lexpert 2005.
32
Gitanyow First nation v. BC (Minister of Forests), 2004 BCSC 1734.
31
- 48 opinion, includes requiring consent of the aboriginal party before the regime is applied in respect
of such lands or waters. If no consent is acquired, then the regime cannot apply in respect of such
lands and waters (and the aboriginal party should be able to govern by itself in respct of such
lands and waters). Where paramount rights to use of water have been accepted or proved, I also
submit that consent must be obtained from the affected aboriginal party before any regime can be
applied in respect of such waters. If consent is not obtained, then the regime can apply to other
users of this water, but not so as to infringe aboriginal rights to same.
Where title to waterbeds is asserted and not yet proved, the affected aboriginal party should have
a formal and significant decision-making role in respect of any proposed regime (both to
approve, and in regard to its operation). The same holds true when paramount rights have been
asserted and not yet proved.
3.
Exclusive and Paramount Rights to Water
Since the SWP regime, as currently proposed, does not envision a role for aboriginal peoples as
anything more than one or two representatives on SPCs (if that), then it is likely fair to say that
what is envisaged is essentially non-aboriginal representatives carrying out their respective roles
under the regime, and the Ontario Minister of Environment having ultimate decision-making
authority, without much if any regard to who and what aboriginal peoples are (“peoples” with
rights to sovereignty, and not minority groups or stakeholders).
Because aboriginal peoples have no effective voice in the proposed regime, there is far too great
a risk that aboriginal and treaty rights dependent on water (hunting, fishing, other harvesting,
self-governance, etc.), and rights to water (title and paramount rights to use of water), will be
repeatedly violated.
Aboriginal peoples’ voices are considered as not much more than a whisper in the current
proposed regime, yet it is aboriginal peoples’ sovereignty and survival that is at risk. All
societies depend on viable water sources to be able to effectively govern, and this is especially
true for aboriginal peoples given their unique cultural relationship with water. The intent of the
regime – to protect water – is laudable, but the fact that the decisions about whether and how to
do this are left almost entirely in non-aboriginal hands when so many aboriginal rights are
implicated, is yet a further example of oppression.
- 49 G.
RECOMMENDATIONS
Clearly, in my opinion, this SWP regime is not close to being acceptable as is, because it
essentially ignores aboriginal peoples in decision making.
I suggest the following options:

Present a demand to both Ontario and Canada to have funded strategic planning about
aboriginal and treaty rights to and dependent on water – period. All regimes in respect of
“water” rights should be open for discussion, as well as all regimes that impact these –
especially and including the Great Lakes Annex, the Great Lakes Water Quality
Agreement, the SWP regime, and anything else that purports to regulate access, rights and
use of water where aboriginal peoples likely have some legitimate right (see above). This
demand should be based on the nature and strength of your rights as set out in this paper,
and in “Bridge Over Troubled Waters”.

Present a demand to both Ontario and Canada to have funded strategic planning about
aboriginal and treaty rights to and dependent on water – in respect of this regime only and
its interaction with such rights. This demand should be based on the nature and strength of
your rights, as outlined above.

Wait for the Ontario government to release its full draft act and regulations, and then
respond as above. I would not recommend this, as the further the Ontario government gets
into developing this regime, the less likely they are to want to change it.

If the Ontario government is not prepared to engage in full strategic planning or
consultation, as above, consider litigating.