The Deeper Well

The Living Waters Rally 2014 provided a unique and valuable opportunity for indigenous and non-indigenous peoples to engage together on common issues and learn from various experiences, accomplishments and setbacks in water advocacy efforts. What I appreciated most about the framing of LWR2014 is how much space and place was provided for indigenous spiritual and sacred conceptions and understandings of water to be properly expressed and respected. It was fantastic to be gathered as a collective on the shores of an important body of water located near our conference site.

I was invited to be a presenter on two different panels, both with a focus on indigenous peoples--the first was a more general and broad panel on First Nations and water, and the second was a panel focused on the impact of recent decisions of the Supreme Court of Canada.

The first panel (held on October 4, 2014) was an opportunity to provide a thumbnail sketch of the situations and crises faced by First Nations across Canada with regard to water. The other panelist was Irving LeBlanc, special advisor on water and other related matters at the Assembly of First Nations in Ottawa. Together, we attempted to give the LWR2014 participants a knowledge “baseline.” I also spoke about some of the international developments around the right to water and how that intersects with indigenous peoples’ rights movements. Given the broad and deep challenges, crises and concerns First Nations have regarding water, we appreciated the critical thoughts and comments that the participants had to offer.

First Nations experiences with water range from local concerns such as lack of access to potable water in homes, schools and other on reserve structures, to broader collective concerns such as impediments to hunting and fishing. First Nations also face a legislative quagmire of rights, responsibilities and liabilities related to water under other Canadian laws, including the recent enactment of the federal Safe Drinking Water for First Nations Act. An important reminder from our panel is that we cannot limit our analysis and understanding to Canadian laws about First Nations peoples--we must also consider that many First Nations have their own legal traditions, customs, practices and legal orders containing other kinds of indigenous rights and obligations vis-à-vis water. This includes conceptualizing water as a living entity.

What is generally more of a challenge for Canadians is being informed about and/or understanding constitutionally protected aboriginal and treaty rights. How do they work with federal, provincial and local laws, regulations and standards? After all, First Nations have rights to maintain and strengthen their relationships with traditionally occupied lands and waters pursuant to treaties, aboriginal title and aboriginal rights.

The second panel I participated in (on Oct 5, 2014) focused on precisely that topic. Merrell-Ann Phare and I co-participated in a dialogue with LWR2014 participants about the new constitutional landscape. As demonstrated by recent decisions of the Supreme Court of Canada, appropriate engagement of indigenous peoples is vital to ensure the good health of our waters.

The Supreme Court of Canada (SCC) issued two judgments in the summer of 2014: Tsilhqot’in Nation v. British Columbia (2014 SCC 44) on aboriginal title and Grassy Narrows First Nation v. Ontario (Natural Resources) (2014 SCC 48) on treaties. The SCC described a “new script” for the dialogue between First Nations and Canadians. These SCC decisions may allow us to take a collective quantum leap beyond structural obstacles to healthy water.

Tsilhqot’in firmly establishes that the doctrine of terra nullius does not apply in Canada, that aboriginal rights are a limit on both federal and provincial jurisdiction, and affirmed the territorial nature and expansive content of aboriginal title. The decision emphasizes the need to collectively shift to a dialogue focused on reconciliation. Our panel discussion touched upon the functional aspects of aboriginal title, which must necessarily include water.

The Grassy Narrows decision confirmed that a province has all the constitutional obligations of the Crown, is bound by and must respect treaty and fulfill treaty promises in accordance with indigenous interests in treaty lands. First Nations treaty rights also have a functional aspect that require healthy waters and a healthy environment.

These SCC decisions--read together with other laws and policies--create a new dynamic in water stewardship, governance and management in across Canada. Reconciliation in Canada is possible. The Living Waters Rally 2014 represented tangible action toward reconciliation between and amongst indigenous peoples and other Canadians with regard to water. It is time to lift each other up! I have great hopes for the future and I was honoured to participate. Hai Hai (Thank you)!

Danika Billie Littlechild is a lawyer working in Maskwacis, Alberta. Danika is from Ermineskin Cree Nation and is dedicated to working with indigenous peoples on issues of rights, treaty, water and environment.