Feature Article – Whose Water Is It? Aboriginal Water Rights and International Trade Agreements

Merrell-Ann Phare
Centre for Indigenous
Environmental Resources

Merrell-Ann Phare, Executive Director and Legal Counsel, Centre for Indigenous Environmental Resources, Winnipeg

 

Introduction

Water, for both human and ecosystem use, is under increasing threat in Canada as the demand for Canadian water resources increases. Water is used as a manufacturing or industrial input; rivers are dammed and diverted to create hydro-electric energy, or allocated to assimilate treatment plant effluents; aquifers are mined to meet agricultural irrigation needs; and water is removed and bottled for domestic consumption. Furthermore, water may be subject to international trade agreements. It is therefore timely to examine the issue of Aboriginal rights with respect to water.

Aboriginal Rights

Aboriginal rights, as defined under the Canadian legal system, consist of a broad spectrum of legal rights pos sessed by Aboriginal people in Canada. While the rights defined to date are not exhaustive, courts have recognized the right to occupy the land, to fish, hunt, trap, and generally use the “products” of the rivers, forests, and streams. Aboriginal rights have been recognized and affirmed in the Canadian Constitution since 1982, and they have been defined to the current level of understanding through litigation. In R. v Adams, the Supreme Court of Canada held that Aboriginal rights, or “use” rights, exist independently of Aboriginal title, and that Aboriginal title is a sub-category of Aboriginal rights that deals with claims to land. This has proven to be a critical clarification. Before this, there was a question as to whether First Nations were able to exercise Aboriginal rights, for example, the right to hunt, without possessing Aboriginal title to an area. Having to prove the validity of an Aboriginal right through a corresponding direct connection to land sufficient to support a claim for Aboriginal title was a great burden on an Aboriginal rights claimant.

Sparrow and Van der Peet held that rights asserted must exist as of the date the Constitution Act, 1982 came into effect, that is April 17,1982. This is because before this constitutional amendment, these rights were protected only by common law, which is always subject to valid overriding legislation. The Constitution protects those rights that were not previously extinguished, for example, through treaty or legislation.

The presence of Indigenous peoples in North America for many thousands of years before European settlement, and the existence of their distinctive cultures, traditions, and social systems, forms the legal basis for recognition of Aboriginal rights today. This is the basic premise underlying the title possessed by Indigenous peoples to any of their lands within Canada. The Supreme Court of Canada has articulated this thinking as the “Distinctive Culture” test, used for identifying Aboriginal rights that are protected by s. 35(1). This analysis states that the general approach to determining the existence of an Aboriginal right is to demonstrate that the practice, custom, or tradition was, and continues to be, a central and significant part of the First Nation’s distinctive culture.

Aboriginal Water Rights

No cases in Canada have directly considered the existence or scope of Aboriginal water rights, although there have been general statements within the discussions of the test for Aboriginal rights that support the assertion that the test applies to determining Aboriginal rights to both lands and waters. In the dissenting judgment in Van der Peet (dissenting on another point), the dissenting judge was of the opinion that s. 35(1) protects Aboriginal rights that extend to both land and water.

This right to use the land and adjacent waters as the people had traditionally done for its sustenance may be seen as a fundamental Aboriginal right. It is supported by the common law and by the history of this country. It may safely be said to be enshrined in s. 35(1) of the Constitution Act, 1982.1

Regarding treaties, the following passage of the court in Van der Peet identifies that the rights to land contemplated in Aboriginal and treaty rights discussions include rights to water, and its resources.

Thus the treaties recognized that by their own laws and customs, the Aboriginal people had lived off the land and its waters. They sought to preserve this right in so far as possible as well as to supplement it to make up for the territories ceded to settlement.2

The Court’s reasoning is based on the historic existence of Aboriginal water rights prior to colonization, and it assumes that unless they have been properly extinguished or there is a treaty limiting their implementation, that these rights still exist.3 In Manitoba, for example, no legislation has ever been enacted purporting to extinguish Aboriginal rights, nor have treaties ever specifically done so.4

 

Manitoba Treaties

In Manitoba, seven treaties have been signed with First Nations: treaties 1 to 6 and 10. These treaties were generally intended to extinguish Aboriginal title to lands in Manitoba and parts of Saskatchewan and Ontario, and to indicate the boundaries of the lands reserved by the First Nations. Sometimes, the treaty guaranteed certain rights.

There are no specific references in any treaty to the reservation, affirmation, or extinguishment of Aboriginal water rights, in either the ceded or reserved territories. The lands are described with equal reference to land-based and water-based points. This uncertainty is further evidence that extinguishment of Aboriginal title to water, or other Aboriginal rights to water, was not discussed. Therefore, it is uncertain whether Aboriginal title to a water body was being ceded, or whether there was an intention by either party to, in essence, share use of, access to, or “ownership” of the river. References made within the treaties to lakes do not consistently specify locations within or on the shores of the lake.

Given that the numbered treaties are inconsistent as to their reference to water-related rights, it could be argued from the wording and approach to describing lands in many of the treaties that Aboriginal title to water continues to exist in both ceded and reserved territories. Clearly, there is no express infringement of extinguishment of any Aboriginal title to water. Certainly, many First Nations assert that their ancestors did not relinquish any of their rights to water. Given this factual and legal situation, it is unlikely that a court would be able to determine that any of the parties to the treaties intended to extinguish Aboriginal water rights.

 

The 1987 Federal Water Policy – Native Water Rights

In recognition of Native people’s special interests in water, the federal government will:

  • negotiate land claims settlements that define use and management powers for water within claimed areas;
  • review and clarify with Native people their water-related issues and interests  with respect to their treaty areas as well as to lands subject to land claims;
  • improve understanding of Native needs and commitments associated with water;
  • determine, in consultation with Native people, how they will participate in resource management programs affecting water resources of interest to them; and
  • encourage greater Native participation in water allocation and management decisions involving in-stream traditional uses.

 

Existing Aboriginal Water Rights

Numerous water-related activities could meet the test for an Aboriginal right today:

  • irrigation rights as a special category of water use rights that are necessarily incidental to the creation of treaty or reserve lands (and therefore a protected activity);
  • rights to navigation or travel in water, in particular as a means to get to and from the location of food, but also travel to ceremonies, meetings and exchanges with other Indigenous groups;
  • environmental protection rights to protect both water quality and quantity, on behalf of both humans and the ecosystem;
  • rights to engage in water use to provide a moderate living to community members; and
  • rights to trade water.

Aboriginal title would include the following water-related rights to:

  • use or not use water;
  • divert or impound water for agricultural and other purposes;
  • pollute or prevent the pollution of a water body;
  • remove or take fish and other resources;
  • travel in or on the water or prohibit the travel of others;
  • regulate all uses of the water, including denying use by others;
  • consume, for domestic, manufacturing, industrial, and other purposes;
  • protect the quality and quantity of water;
  • generate revenue, for example through hydro-electric power; and
  • sell or trade water, or limit or prevent the sale of water by others.

Aboriginal fishing and harvesting treaty rights holders could engage in numerous protected, water-related activities that are “reasonably incidental” to existing treaty and Aboriginal rights, including:

  • protection of water quality and quantity;
  • habitat protection;
  • watershed management for the protection of fishing, hunting, and trapping grounds;
  • watershed management for the protection of harvesting/gathering grounds (such as wild rice harvesting);
  • transportation over waterways (the right to unrestricted waterways to travel to hunting, fishing, and trapping sites); and
  • use of water reasonably incidental to the general fulfillment of the purposes of the treaty (that being primarily the economic stability of the Indigenous group) including water use for manufacturing, irrigation, the production of electricity, and for sale.

All Aboriginal and treaty rights may be subject to limitations. The case  law after 1982 has focused on defining Aboriginal and treaty rights and then determining, in particular circumstances, whether the right, if it exists, has been infringed by a government’s (the Crown’s) decisions (such as the creation of legislation), and if so, whether that infringement is allowable (or “justified”). The infringement test was set out in Sparrow.5 The law relating to infringement has been held to be applicable to both treaty and Aboriginal rights infringements; therefore, it is the same test for both.6 According to the application of this test, it is probable that Aboriginal peoples in Canada have water rights that have not been extinguished by treaty or by “clear and plain” intention of the federal or provincial governments.

Given the likely existence of Aboriginal water rights, these rights have not received the necessary legal and political attention to ensure their long-term protection. A 1987 comprehensive federal government review of water in Canada recognized the need to deal with Aboriginal water rights in a comprehensive, inclusive, and co-operative manner, with the direct involvement of affected Aboriginal peoples. The public record suggests that Canada has done nothing to fulfill this commitment, despite the Supreme Court of Canada’s clear pronouncements that Aboriginal and treaty rights are constitutionally protected, and that the federal and provincial Crown must honourably discharge fiduciary, constitutional, and statutory obligations to Indigenous peoples. Despite these prescriptions, the Crown has failed to meet any of these requirements regarding Aboriginal water rights in any demonstrable way; it has even fallen far short of fulfilling the commitments it made regarding Aboriginal water rights almost 20 years ago in the Federal Water Policy.7

Daily, these rights are impacted without the required due process and compensation. Numerous Crown activities have very likely infringed water rights, including allowing non-Aboriginal water users to deplete or degrade water sources the community requires for any use, and licensing and approval of all forms of water-dependent development, such as manufacturing and industrial activities, food and animal processing, hydro-electric development, intensive agriculture, and water bottling. Many of these listed activities may have occasioned such extensive impacts that they have, in effect, illegally impacted or extinguished Aboriginal and treaty water rights.

Further, international agreements may be permanently impairing Aboriginal rights, without providing any corresponding mechanism to redress the damage done or adhering to any domestic constitutional requirements regarding protection of those rights. The federal and provincial governments have not engaged in the consultation necessary to justify infringements of this sort, and it is uncertain whether current trade rules would allow them to be able to fulfill their obligations in this regard. Governments have committed to international agreements that may, through their expansive trade and investment provisions, restrict any power the Crown may possess to fulfill s. 35 protections of Aboriginal and treaty rights.

The Implications of International Trade Agreements

Since the federal government committed to and then largely abandoned the Federal Water Policy, particularly regarding Aboriginal water rights issues, it has committed itself to a number of international trade agreements. These agreements govern the trade of goods, services, and investment across Canadian borders. Most notable of these is the North American Free Trade Agreement (NAFTA). Controversial for its expansiveness, and in particular, its inclusion of broad investor and investment rights, the NAFTA application to water is uncertain. However, that water may be subject to NAFTA provisions, given the original intent of NAFTA to apply to all traded items, that the waters of Canada are used directly or indirectly as a traded good, and that NAFTA applies to investments in water.

Canada has not ensured that Aboriginal water rights (or any other Aboriginal or treaty rights) are protected from the broad reach of NAFTA provisions. It is very likely that neither the federal nor provincial governments could fulfill fiduciary and other obligations to Aboriginal peoples if those obligations conflicted with the rights and obligations under NAFTA. A compelling hypothetical illustration arises where Canada may wish to limit the export of bottled water to protect a water source subject to Aboriginal or treaty water-rights claims. This circumstance has not yet come before the courts, but any protective action of this sort, particularly if foreign-owned, water-export contracts were preferentially targeted, would likely violate NAFTA provisions. Because this kind of conflict is potentially imminent, and given Canada’s complete neglect in the protection of Aboriginal water rights, these rights are at risk.

Further, no current legislation or policy in Canada could prohibit Aboriginal peoples from engaging in expansive use of their water rights. This issue has not been adjudicated, but current decisions strongly suggest that the use of water by an Indigenous community to engage in economic development of any sort (including hydro-electric development or bulkwater export) would be within the scope of protected Aboriginal or treaty rights, and is clearly within the scope of activities under Aboriginal title. If Indigenous communities choose to exercise these rights, given the "national treatment" provisions of NAFTA and the current level of utilization of water resources in Canada by non-Aboriginal interests, Canada will have no basis upon which to deny non-Canadian investors these same rights.

Recommended Actions

In response to this situation, a number of remedial actions are proposed.

  • The existence of Aboriginal water rights must be recognized by all governments in Canada.
  • Canada and the provinces must fulfill their constitutional, fiduciary, and statutory obligations to Indigenous peoples regarding the protection of Indigenous water rights.
  • All governmental decision-making processes that may limit Indigenous water rights must minimize limitations on these special rights to water.
  • Boundaries and criteria to guide the discretionary decisions of government officials (e.g., in regulatory licensing processes) that may limit Indigenous water rights must be clearly delineated.
  • An inclusive permanent national forum for discussing options for the protection of water, including a revisitation and reaffirmation of the commitments made in the Federal Water Policy, must be created.
  • Water policy development must focus on defining the most effective ways to protect Indigenous water rights while meeting ecosystem requirements and the needs of other water users.
  • The federal government must commit to ensuring (e.g., through amendment or clarification to NAFTA, and through specific exclusions or reservations to this effect in all future trade agreements) that Aboriginal and treaty rights will not be limited by international trade agreements.
  • The linkages between trade law and policy, and water law and policy (at the local, regional, national, and international levels) must be explored and clarified through a process that identifies areas of ambiguity, ambivalence, overlap, or concern, and then begins to address these issues.
  • A comprehensive and inclusive strategy to include the meaningful participation of Indigenous peoples in both domestic and international water-related and trade-related decisions, discussions, and negotiations, must be developed, maintained, and documented.
  • International trade agreements must be developed and negotiated only with the meaningful input and involvement of Indigenous peoples, and only after a clear definition and understanding of the impacts and benefits that may accrue to Indigenous peoples have been determined.

Final Thoughts

The Canadian perception of water is linked to our national identity, cultural and artistic institutions, sense of security, and in many ways, our sovereignty. Maintenance of control over Canadian inland water resources is of fundamental and profound importance, and in all likelihood, this need will only increase in the future. Despite this, our waters are at risk, because NAFTA may prevent Canada from reducing or preventing the already extensive commodification of Canadian waters in their natural state.

At the same time, many Aboriginal peoples rely directly on freshwater sources and their products for their livelihood and sustenance. As well, Aboriginal peoples have constitutionally  protected water rights, which Canada and the provinces have done little to protect, despite their fiduciary duties to do so. Aboriginal peoples may choose to exploit this resource, based on their Aboriginal or treaty rights entitlements. There are few limitations on the uses to which they may put their water rights.

Certainly, there is a challenge associated with protecting Aboriginal water rights in the context of international trade. The converse of this perspective, however, is that long-term protection of Canada’s freshwater resources may depend on the thorough, consistent, documented, and transparent discharge of governmental fiduciary obligations to Aboriginal peoples regarding their water rights. Although still uncertain, this may be one of the few actions governments in Canada can assert to prevent further water commodification and export. This may be the only legally justifiable way to restrict the trade in, and export of, Canadian water, without violating numerous NAFTA protections. By respecting their relationship with Aboriginal peoples, while seeking to protect water resources in Canada, governments could control further commodification of freshwater while upholding the honour of the Crown. This question remains to be resolved fully; it is mostly dependent on the willingness of Aboriginal and nonAboriginal governments, the courts, and the citizens of Canada to assert forcefully the need to protect all rights associated with our common heritage, the freshwater of Canada.

 

Notes

  1. R. v. Van der Peet [1996] 2 S.C.R. 507 at para. 275.
  2. Ibid. at para. 271.
  3. Ibid. at para. 269.
  4. The treaties refer specifically and only to land in the sections that articulate the rights that the Indigenous peoples were relinquishing.
  5. R. v. Sparrow [1990] 1 S.C.R. 1075.
  6. See R. v. Badger [1996] 1 S.C.R 771 at paras. 96 and 97, and more recently Marshall (#2) [1999] 3 S.C.R. 533, wherein the court affirmed that the Sparrow justification analysis is applicable to treaty rights cases.
  7. Environment Canada, Federal Water Policy, is available as of January 31, 2004 at <www.ec.gc.ca/water/en/info/pubs/ fedpol/e_fedpol.htm#7.15>.
2017-09-29