A recent open letter crafted by National Council of Women of Canada calls on the Government of Canada to adopt “legally enforceable national drinking water regulations applicable in every province and territory”.[1] This raises profound legal, constitutional, and policy issues. While the letter correctly identifies serious concerns relating to drinking water contamination, pesticide exposure, asbestos cement infrastructure, PFAS contamination, and long-term boil-water advisories in Indigenous communities, its proposed action, a constitutional remedy of direct federal responsibility is highly problematic. Under Canada’s constitutional structure, the federal government does not possess broad plenary authority to impose a sweeping national drinking water regulatory regime across all provinces and municipalities. Rather, responsibility for drinking water regulation is primarily provincial, municipal, and local in nature under the division of powers established by the Constitution Act, 1867.[2]
Canada’s constitutional framework intentionally disperses authority over water governance among multiple levels of government. Provinces possess primary jurisdiction over property and civil rights, local works and undertakings, municipalities, public health, natural resources, and most environmental regulations. Municipal drinking water systems are creatures of provincial statute and are generally regulated under provincial environmental protection, public health, and municipal legislation.[3] Consequently, while the federal government possesses important but limited powers over fisheries, navigation, Indigenous lands, criminal law, toxic substances, and interprovincial matters, it cannot simply enact a comprehensive national drinking water code applicable to all provinces without raising serious constitutional concerns.
The constitutional limitations on federal authority in this area have been repeatedly emphasized by the Supreme Court of Canada. Environmental regulation in Canada is characterized as an “amorphous” subject matter that cuts across multiple heads of power rather than a single enumerated constitutional category.[4] As the Supreme Court explained in Friends of the Oldman River Society v Canada (Minister of Transport), the environment is “a constitutionally abstruse matter” involving overlapping jurisdiction.[5] The Court has consistently rejected efforts to centralize broad environmental governance within a single order of government.