Reflection Paper - Water Legislation

First Nations have a different perspective and respect of water that is evident through their spiritual relationship to it. The day began with a prayer by Florence Painter. Women are life givers, this is what spirit and intent is all about. As long as sun shines, grass grows and river flow was the rhetoric used at the time but the treaties are silent about water. Reason why it is because it essential, First Nations knew water was a human right for all living things, no need to put it in treaty. First Nations will have no say in the governance of water in the new fiscal year through non derogation clause relevant to treaties in the contribution agreements bands receive. 

International organizations support Indigenous rights such as the duty to consult and accommodate, court cases have set precedent to dictate partnerships, yet First Nations find themselves fighting against the Harper Governments legislative moves that have disregarded the environment and those who live in the impacted environments. This has been evident through Idle No More protests which have sprung up across the country recently. An update at the Marlborough Hotel on water legislation with regards to Bill C-38 and 45 was the focus of the day, March 12^th, 2013. Many more pieces of legislation are waiting to move that impact our way of life, it is an important message.  

The day began with a presentation entitled “Overview: Treaty and Aboriginal Rights” by Aboriginal lawyer Aimee Craft. The afternoon session speakers were Karen Bubsy, a law professor at the University of Manitoba and Melissa Hotaim, policy analysis at Assembly of Manitoba Chiefs. Craft spoke about collective rights, duties flowing from Section 35 rights and water.  She said we are not entitled to half, but rather sharing. Questioned audience who makes decisions? There are no treaties in B.C., and in East there are Peace and Friendship Treaties. Treaty and Aboriginal rights are different, but have commonalities. Treaty is contained within text. The infringement has to be justified. Aboriginal rights are not within context, Aboriginal rights relate to governance. Craft was clarifying Section 35 and the fact the Harper Government can make legislation without caution, raises a red flag. For instance, the Keystone pipeline would require only 18 months of environmental impact assessment, experts are saying this is simply not possible.

There is an emerging Indigenous law to be built on yet recent Supreme Court cases create confusion. Treaty interpretation of mutually binding obligations rules that ambiguities shall be resolved in favor of First Nations - R. v. Badger. There are no frozen rights, how they can evolve has to be considered and applied; R.V. Simon rejected frozen rights. R. v. Sparrow is another legal test regarding regulation of fishing rights - if extinguished was there infringement? Today a case where Sparrow has relevance is regarding recent Interlake load slip charges. The infringement will make reference to Sparrow and be up against a valid legislative objective – conservation. This raises another question; do fishing rights include commercial fishing rights? The test is pre-contact.

Craft said R. v. Mikisew outlines duty to consult but there is a lot of grey when it comes to Manitoba Hydro because 3^rd parties are not responsible for consultations. However, Alberta companies have set an administrative consulting precedent. The current issue for Treaty 2 is the bipole project through Treaty 2 territory. Craft said to look at Mikisew case for a legal precedent. A band is not the same as a corporation can’t be sued but can set up their own corporate number. Why consult? Protect Aboriginal treaty rights and mitigate impacts. Duty to consult comes from Honor of the Crown. Mikisew said you cannot frustrate the process. Fiduciary duty is on the way out; Honour of the Crown is the term used today. This is the duty to act diligently. First Nations need to outline their rights from the outset.

The treaties are silent about water. Bills C-38 and 45 create water dumps - industrial use fracking on the Manitoba radar. Water insecurity is becoming an issue. In the Halalt case, their ground water title claim is weak because Crown has the right. This brings into question, assumed and asserted sovereignty. The bills are viewed as an extension of the sterilization policies; First Nations have their own holocaust experience, genocide continues. Canada spends billions in foreign aid to build infrastructure while neglecting their own backyard.

Karen Bubsy and Melissa Hotaim’s afternoon presentation was entitled “Impacts to First Nations: Legislative Review” put into perspective the agenda of the Harper government who are pushing bills through parliament. Bubsy explained the legislative process; once bills are passed it goes to Governor General for Royal Assent which becomes effective immediately or on a date. Legislation that has received Royal Assent recently includes Bill C-38 and Bill C-45.

The overall impacts are not meeting the duty to consult or accommodate as per Supreme Court of Canada; its contradiction of Section 35 of 1982 Constitution Act; no respect or process to implement United Nations Declaration on the rights of Indigenous peoples. It is chipping away of the Indian act in smaller bills. Bill C 38 and 45 have more wide sweeping effects.

The Jobs Growth and Long Term Prosperity Act, Bill C-38 is the omnibus Budget Bill legislation to rewrite 70 laws. It replaces and weakens the Canadian Environment Assessment Act by narrowly defining environmental impacts; gives cabinet discretion to remove a particular part, i.e., - fish, from the definition of environment and restricts who can participate, essentially allows federal government to avoid environmental reviews of specific projects and minimize comprehensive reviews. Other water related Acts affected with similar amendments include the Fisheries Act and Species at Risk Act.

The Jobs and Growth Act (C-45) is the second omnibus bill that changed 44 Federal laws, the reaction was through Idle No More protests across the country. Within the Indian Act the surrenders and designations portion is changed. This allows reserve lands to be leased easier by a threshold of a simple majority rather than a referendum of majority of all eligible band electors. The Navigable Waters Protection Act exempts pipelines and interprovincial power lines from proving they will damage waterways; takes away federal environment triggers for 99% of Canada’s waterways and only protects 3 oceans, 97 lakes, and portions of 62 rivers, excluding 32,000 lakes and 2.25 million rivers! The minister does not need to consider First Nations rights. However the Mikisew Cree and Frog Lake First Nations are challenging the bills in federal court.

Some other bills moving along are Bill S-8, Safe Drinking Water for First Nations Act which sounds good in title but no money attached. Water looks to be headed for privatization. Bill C 469 is the Declaration on the Rights of Indigenous Peoples Act –  would require Canada to take all measures necessary to ensure that the laws of Canada are consistent with the United Nations Declaration on the Right of Indigenous Peoples. This document is aspirational at best. 

       In conclusion, the new fiscal year is approaching and All First Nation Reserves will be receiving 

packages that contain the usual contribution agreements. These new contribution agreements now have a 

non derogation clause relevant to Treaties. This means treaties could be extinguished because the 

government in now operating on regulations and policies without due process to treaty issues. Attached 

is an Appendix now that says they must sign all the legislation First Nations are fighting. Communities 

have to agree to all the resource exploitation efforts proposed and if they do not sign those contribution 

agreements they can be forced into third party management or face other restrictions. Leadership is 

recommending that First Nations need to be accomadated and possibly move into impact benefit 

agreements.