Broken Relations and Unclear Accountability
By Adam Bent, Mequonase Favel, Libby Giesbrecht, Sayda Momtaha Habib and Danna Henderson
With research and infographics by Mercedes Redman, Krystal Lewis, Charmaine Ermine and Penny Smoke.
Our investigation found that broken treaties and a loss of sovereignty to manage and protect water resources lie at the heart of today’s drinking water crisis. The Indian Act and layers of bureaucracy that surround it have, since its creation, confounded the quest for clean water.
Meanwhile, the involvement of multiple provincial, federal and territorial jurisdictions continue to obscure the lines of accountability when things go wrong.
“For me, sovereignty is me standing on my own two feet. That to me is … sovereignty,” says Justin Burns, former chief of James Smith Cree Nation.
“But it’s … pretty hard to feel sovereign when … you have outside agencies telling you how to spend funds and stuff like that and when it comes to … the community,” says Burns.
Regaining sovereign rights to manage and protect water are a key goal of Indigenous leaders. Canada’s courts have only recently begun to recognize customary laws, through which Indigenous people have acted as water stewards and arbitrators for thousands of years.
The term sovereignty, including the right and access to water, is understood by many First Nations peoples as an inherent right that exists regardless of Canadian common law and a governance that rests with the people.
Meanwhile, legal disputes over First Nations water resources have resulted in some 50 court actions nation-wide since 2015, our investigation found.
The practice of building dams to divert and restrict water flows, along with industrial developments that threaten water, are increasingly facing court challenges as violations of customary laws and inherent rights that Indigenous people argue were never ceded.
According to the 1996 Royal Commission on Aboriginal People, customary laws were usually embodied in oral traditions and daily observances, and “in no case were lands or resources considered a commodity that could be alienated to exclusive private possession.”
Customary water laws are the “sleeping giant of water law in western and northern Canada as many of the older land claim treaties with native people did not address water rights,” writes Linda Nowlan, a lawyer for West Coast Environmental Law.
Video: Justin Burns, James Smith Cree Nation
Customary Water Laws
In 2013, Anishinaabe Elders from Manitoba and Northwestern Ontario assembled at The Rapids on the Roseau River Anishinaabe First Nation reserve to gain a better understanding of colonial and customary water laws, as part of a collaboration between the University of Manitoba’s Centre for Human Rights Research (CHRR).
“I worked in conservation for many years enforcing legislation that comes from the Western side of the law,” participant Mervin Sinclair said. “Our people have our own laws about water which were respected, different from enforcing policies. All communities in my area respected each other’s laws – territories for fishing, etc.”