A series of court rulings has given aboriginal peoples prior rights over waterways
By Stephen Hume, Vancouver Sun columnist September 15, 2015
From mossy rainforest to sage brush desert, water pulses through B.C.’s First Nations cultures as powerfully as the tides, rivers and rains that shaped and sustain the landscape we all inhabit together, plants, animals and people alike.
And if, as climate science suggests, the drought of 2015 is a herald of the future, water and First Nations’ prior rights to it promise to dramatically reconfigure the business and political landscape.
To the Tlingit, water is k’watl. To the Lheidli T’enneh, it’s too. To the Tsimshian, it’s aks. The Secwepemc call it clexlix, the Carrier refer to it as thé and to the speakers of Halkomelem, it’s iyem.
Entire nations take their name from water — the Sto:lo of the Fraser Valley are the river people. The Dakelh of the central Interior are people who go around by boat. Examine a map of First Nations in B.C. and all of the 203 communities are located on fish-bearing waterways — and so is every now-unoccupied reserve.
The Nuxalk of Bella Coola, the Sechelt of the Sunshine Coast, the Cowichan of Vancouver Island, the Haida of Skidegate and the Nlaka’pamux of Lytton are examples of how broadly water’s sacred properties infuse nation-defining myths, legends and most private spiritual beliefs.
For the Cheslatta, west of Prince George, water also symbolizes the tangible spectre of heedless industrial progress. They suffer either from too much water in the Cheslatta River — it repeatedly floods, washing out ancestral graves whenever a half-century-old aluminum smelter spills its reservoir surplus — or suffer from too little water in the Nechako River, from which the water is diverted to the reservoir, even as culturally crucial downstream salmon runs dwindle.
In the Peace River district, water represents both the alarming present and the unwelcome future for the First Nations of the Treaty 8 Tribal Association. Planned flooding of traditional territories by the Site C dam has already spawned a court case.
Then there’s industry’s claim on billions of litres of water used to fracture shale to facilitate the extraction of natural gas. Exporting liquefied natural gas from B.C. is a cornerstone of the provincial government’s development strategy, but First Nations critics argue the cumulative impact of Site C, rapid expansion of drilling and the industrial appropriation of water for fracking threaten traditional ways of life that treaties supposedly guaranteed as long as the rivers flow.
Although the legal framework for aboriginal water rights in Canada is still under construction, jurisprudence in the United States dating back more than a century affirms that when reserves were created and treaties signed, they included an inherent right to water.
The right was defined in a 1908 decision when farmers sought to divert for irrigation all the water in the Milk River upstream from Montana’s Fort Belknap Indian Reservation. The court ruled that the reservation had a prior right to whatever quantity of water was — or might be in the future — necessary to satisfy the purposes of the two tribes involved. The tribes were allocated almost all the water in the Milk River.
A century later, the aboriginal right to water was amplified when the U.S. government negotiated dramatically expanded water rights for the Navajo that are roughly double all the water allocated to the states of Nevada and Arizona combined.
In Canada, legal scholars such as Merrell-Ann S. Phare and Sharon Venne, a member of Alberta’s Blood tribe, say that aboriginal rights to water are entrenched in treaties and in aboriginal title, so the issue cannot be easily — or wisely — ignored by government or business.
Venne, in an essay in Aboriginal and Treaty Rights in Canada, observed that when treaties were negotiated, elders explicitly didn’t surrender water rights and treaty commissioners specifically told them that “the water is not what (the Queen) wants.”
“If the people were asked to give up their rights to the water, they would be relinquishing their life. Water rights remain within the jurisdiction of indigenous peoples,” Venne writes.
That view seems to have been upheld in a B.C. court.
It blocked the building of a marina after the Tsawout First Nation on Vancouver Island objected it would be located in the middle of a traditional fishing area.
“Despite this, the issue is far from settled as cases across Canada make their way through the legal system,” Phare writes in Denying the Source: The Crisis of First Nations Water Rights.
She writes there are at least four sources of indigenous rights to water.
The first — and likely most powerful — is the argument that indigenous peoples had inherent rights to water long before Canada and the provinces were created, and that these rights were never given up anywhere in Canada.
“Water rights and interests of indigenous peoples (having never been extinguished) appear to be guaranteed throughout the western provinces,” Phare argues. And based on the Tsawout decision, she concludes aboriginal water rights “include all aspects of water use and management with which we are familiar in our own lives, including domestic, recreation, navigation, industry, manufacturing, electricity generation, irrigation and flood control.”
So, as climate change increases summer scarcity and intensifies claims on access for domestic, industrial, commercial or conservation use, water is rapidly emerging as an as-yet-poorly defined legal and political issue that promises to affect future negotiation of treaties, land claims and aboriginal rights.
Litigation over the appropriation of water has already resulted in decisions that are transforming the way development proceeds. Taseko’s billion-dollar New Prosperity mine is in limbo because old assumptions about using a lake as containment for tailings clashed with the environmental concerns of the Tsilhqot’in.
Although this is of particular significance to B.C., where the arid Interior faces even greater ecological stress and competing demands for water, it’s also a national issue.
“In many regions, First Nations live with insufficient water allocations and infringements on their aboriginal and treaty rights to water,” the Assembly of First Nations says in a manifesto that outlines growing concern over water rights, the effect of impending climate change, upstream pollution and inadequate access for many communities to both potable water and sanitary waste water disposal.
A federal survey reported in 2011 that 154 First Nations communities in B.C. had water supply, disposal and operational problems sufficiently grave to be rated at high risk.
Like it or not, water allocation and access is moving to the top of a crowded and contentious agenda. Phare makes the case that negotiated agreements are preferable to lawsuits.
Today, the B.C. government has revenue-sharing agreements for 19 First Nations involved in run-of-river hydroelectric projects.
These range from the Taku River Tlingit in the Far North to the Skookum Creek hydro project of the Squamish on the South Coast. On Vancouver Island, run-of-river projects involve the ’Namgis on the Kokish River near Port McNeill and the Hupacasath on China Creek near Port Alberni, where the band has partnered with the private sector and the municipality.
In addition, a $400,000 infusion of capital from the province’s First Nations Clean Energy Business Fund will advance plans for an ocean-based thermal exchange system that will heat a new housing development by the Sci’anew at Beecher Bay, west of the capital.
However, First Nations’ relationship to water extends far beyond legal rights.
Silent as fog shrouding coastal cedars or loud as rivers thundering through mountain canyons, water defines First Nations’ geography and suffuses traditional values, transcending the artificial boundaries of modernity.
The reason water is so deeply embedded in First Nations culture is because the elements, not lines on maps, are what genuinely endure, however much we seek to commodify and own them as economic abstractions.
Perhaps it’s also because water in all its forms — streams and rivers, lakes large and small, oceans surging in and out of fiords and estuaries, glacial ice and snow — makes a powerful metaphor for First Nations’ imagining of their relationship to the land.
“Water is a symbol of our unity as First Nations people,” says Tahltan Rhoda Quock in Sacred Headwaters, renowned anthropologist and ethnobotanist Wade Davis’ account of the struggle to protect the high mountain sources of the Stikine, Skeena and Nass rivers from mining development.
More than 1,800 kilometres to the south, Tim Kulchyski, a fisheries biologist for the Cowichan Tribes, declines to talk in detail about the role of water in his people’s ancient ceremonies.
“Water,” he says. “It’s the centre of so many things, spiritual as well as simple. We don’t talk about the spiritual significance. But one of the things that kept us Cowichans as Cowichans has been the spiritual integrity of the community.”
Take the time to delve into First Nations languages — 32 languages and 59 dialects are spoken in B.C. — and a sense of the sacredness of water imbues almost everything.
From simple physical features, it extends into the myths, legends and stories that define every culture and, of course, it increasingly intrudes into the politics of today and the onrushing future.
The Saanich people take their name from the sight of a sacred mountaintop emerging from the sea to provide refuge during a great flood. Similar flood stories occur with the Tsimshian, the Nisga’a, the Gitxsan and the Cowichan. And water is imbued with supernatural strength — the Skookum — so the Squamish have Skookum Creek, the T’Sou-ke have Skookum Gulch, the Sechelt have Skookumchuck Narrows and the Secwepemc have Skookumchuck Rapids.
Traditional Nuxalk believe each person is born with a nuskelusta — a spiritual wash basin — that resides in the world above ours. That basin is filled with sacred water replete with power. It determines one’s fortune in life. River water is akin to that in one’s nuskelusta, so boys bathe in the river at dawn while praying to increase the power of the water above.
This belief in the sacredness of water is found everywhere. For the Sechelt, it’s xa-?als-ikwu, a bowl-like depression in a large rock on a Gulf Island in which the water is always cold and never diminishes. Drink the water and it will cure sickness and ensure health. For the Nuxalk it is stextekwaitx, a pool that is always full of clear water and any sick person drinking from it will recover.
For the Cowichan Tribes, it’s Hw’te shutsun, a spring-fed woodland reserved for ceremonial and sacred activities.
The regional government decided it could be better used as a garbage dump. The Cowichans went to court.
Today the site is protected, a reminder that in negotiating new relationships between government, industry and First Nations, water is increasingly going to be, as Kulchyski says, “at the centre of everything.”
© Copyright (c) The Vancouver Sunhttp://www.theprovince.com/opinion/columnists/first+nations+treasure+historic+ties+water/11363642/story.html