4.3 First Nations Government

At present, the roles of First Nations in water planning, management and governance relate to legally assigned responsibilities in the administration of federal water policies, and the management of provincially or federally assigned roles. While Aboriginal rights to water have not been eliminated, and governance (i.e. jurisdiction) of water resources is a goal for many BC First Nations, few if any existing forums formalize Aboriginal rights to, and governance of, water.

First Nations hold more than 700 active provincial water licences for a wide range of purposes associated with Indian Reserves. These licences are held either by a First Nation or jointly by the First Nation and Aboriginal Affairs and Northern Development Canada.

Legally, the protection and provision of water to First Nations is a responsibility of the federal government, specifically Aboriginal Affairs and Northern Development Canada (AANDC). Band Councils, AANDC and Health Canada share responsibilities for providing water services to Aboriginal communities. Band Councils are responsible for ensuring that drinking water systems are run in accordance with the Protocol for Safe Drinking Water in First Nations Communities (developed by AANDC), and for implementing drinking water monitoring programs on reserves. AANDC provides financial assistance for water facilities, and Health Canada works with communities to ensure water quality monitoring programs are in place, trains the monitors, and provides community-based education on water issues.⁴ However, concerns about the extent to which the federal government has met these responsibilities are well documented. Many First Nations have been left with limited capacity to manage water resources, and as a result, their populations are disproportionately vulnerable to water-borne diseases, drinking water advisories and health effects associated with poor water quality.⁵

Legally, the provincial government is obligated to consult with First Nations on water use decisions that might affect them. This relationship is defined by the Supreme Court of Canada (e.g., Delgamukw and Haida), and is reflected in the “New Relationship” that was struck in 2005 between the Province and the First Nations Leadership Council.²

Aboriginal Title, Rights and Treaties

First Nations in BC have inherent and vested title and rights in water resources. Reserve water rights, Aboriginal title, Aboriginal rights, and treaty rights are all sources within Canadian law that deal with the recognition and protection of indigenous peoples’ title and rights to water. Constitutional protection of Aboriginal title, Aboriginal rights, and treaty rights provides a mechanism through which indigenous peoples can challenge actions or authorization of third party activities that pollute or degrade waters.⁶

Aboriginal title stems from indigenous peoples’ historic relationship with their territories (including water), and reflects the fact that they have land tenure and resource management systems that have been in place since time immemorial. Aboriginal title recognizes indigenous peoples’ right to be involved in all land and water use decisions that affect their territories.⁶

Aboriginal rights, as defined by Canada’s Supreme Court, are “collective rights that contribute to the cultural and physical survival of Aboriginal peoples” ⁶ (p.307). Aboriginal rights, including fishing, hunting, gathering and spiritual practices, are closely tied to waters and rely on a continuing supply of clean water. Water rights are essential for both economic development and the preservation of traditional ways of life for First Nations. Water rights stem from:

1. traditional rights;
2. treaty rights;
3. unceded title and jurisdiction;
4. constitutionally protected Aboriginal rights to the use of water; and
5. riparian rights. ⁵

Recent court decisions include provisions for First Nations consultation and accommodation, which requires governments to seek the input of indigenous peoples and seriously consider their rights when it comes to decision-making concerning government actions that affect them. For example, if proposed activities are likely to pollute or destroy waters that support an indigenous fishery, plans and activities may need to be changed to ensure the protection of waters within Aboriginal territory.⁶

Treaties provide an option for clarifying and facilitating direct First Nations’ jurisdiction over water resources. Land claim agreements, such as the Nisga’a Final Agreement, are modern treaties that often deal with water and usually require that the First Nation agrees to recognize the federal and provincial governments’ jurisdictions over water in exchange for a guaranteed water allotment and some form of co-management of watercourses.⁶

Many First Nations are negotiating treaty provisions that involve substantial water rights to provide for community development. Under the BC Treaty Commission, it is up to each negotiating table to decide if water and drinking water will be included in the treaty, and through the negotiations, which party will have jurisdiction and responsibility for drinking water.⁶ Modern treaties recently ratified in BC have extensive sections on water, which make reference to domestic, agricultural and industrial uses of water, law-making with regards to water, water licensing, sale of water, flood protection, water management, power generation, and groundwater. In all Final Agreements to date, the Province has retained full ownership and regulatory authority over water, and existing water licences remain in place.⁵ The Nisga’a Final Agreement deals with water volumes, with section 122 establishing a Nisga’a water reservation for domestic, industrial and agricultural purposes.