Water is Sovereign
This summary is based on a report coauthored by members of West Coast Environmental Law and the Decolonizing Water Project (Hannah Askew, Corey Snelgrove, Kelsey R. Wrightson, Don Couturier, Alisa Koebel, Linda Nowlan and Karen Bakker).
Askew, H., Snelgrove, C., Wrightson, K. R., Couturier, D., Koebel, A., Nowlan, L., and Bakker, K. (2017). Between law and action: assessing the state of knowledge on Indigenous law, UNDRIP and free, prior and informed consent with reference to fresh water resources. Retrieved from West Coast Environmental Law website: https://bit.ly/2O3Vyib
The "Between Law and Action" report was written to support discussion and examination of the implementation of UNDRIP with respect to fresh water issues. The implementation of UNDRIP offers an opportunity to explore and re-imagine the relationship between international law, Canadian constitution law and Indigenous legal orders and to re-think how Indigenous peoples’ rights are defined and protected in Canada.
First, what is the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)? UNDRIP is an international human rights instrument that “constitute[s] the minimum standards for the survival, dignity and well-being of the Indigenous peoples of the world.” The purpose of the Declaration is to provide a mechanism to protect the individual and collective rights of Indigenous peoples, as well as their rights to culture, identity, language, employment, health, education, protection of traditional lands, as well as other issues. In 2007, the United Nations General Assembly adopted UNDRIP, however it was not until 2010 that it was officially endorsed by the Canadian federal government, still only emphasizing its “aspirational” nature. In 2016, the federal government upgraded its level of commitment, stating its intention to adopt and implement the declaration in accordance with the Canadian Constitution.
Therefore, although UNDRIP is not legally binding under international law, it is now established Canadian government policy. The legislature is presumed to act in compliance with Canada’s international obligation unless there is clear contrary legislative intent (R v. Hape,  2 S.C.R 292, para 53). It has existing normative weight and can be mobilized to set a minimum standard for Indigenous rights. UNDRIP can also be incorporated into domestic legal frameworks in Canada and applied by the courts. Moreover, the declaration intersects with the calls to action of the Truth and Reconciliation Commission of Canada (TRC). The TRC’s final report positions UNDRIP as the roadmap for reconciliation.
How does UNDRIP relate to Indigenous water rights? Although water is only specifically mentioned in UNDRIP twice, references to Indigenous “lands, territories and resources” throughout the UNDRIP are interpreted to include water. On this note, it is important to stress that water rights outlined in UNDRIP are historically inherent rather than acquired rights. Indigenous peoples affirm that they have inherent water rights that stem from their relationship with their traditional territories. Inherent rights exist entirely on their own. They pre-exist the creation of the Constitution, and therefore do not require external validation from national or international bodies.
Many Indigenous communities across Canada have ongoing water challenges, such as no access to running water or sewage or boiling water advisories; these have associated effects on health and wellbeing. Historical inequalities have repetitively inhibited Indigenous communities’ access to secure water and the capacity to co-govern their resource. Water issues in Indigenous communities are not only Indigenous problems; rather they must be solved in relationship with the Canadian state. The solution may be embodied with the help of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).
[ VIDEO CONTENT: This video will be in an animation style and provide an overview of UNDRIP and how it relates to freshwater resources.]
An important issue frequently raised in the UNDRIP dialogue is the distinction between Indigenous and Western worldviews of water. Western worldviews of water are framed as the availability of a resource to be exploited. Water is subject to be controlled for human benefit and therefore is governed as such. By contrast, Indigenous worldviews frame water as a living entity with spiritual, cultural, physical and healing importance. These understandings of water inform people’s thoughts, actions and overall relationship with it. UNDRIP recognizes that water is constitutive of Indigenous law, knowledge and identity. Therefore, the implementation of UNDRIP in Canada holds potential for the revitalization of Indigenous laws and for the promotion of new approaches to water governance in the form of co-governance or collaborative governance.
Indigenous law refers to the legal traditions, customs and practices of Indigenous peoples. Indigenous laws have been protecting this land and waters since time immemorial. However, it is important to note that Indigenous law is subject to each community and must not be mistaken as a single, standardized approach to governing the land and waters. Instead, the diversity of Indigenous legal orders should be respected as accumulating knowledge about environmental governance. Therefore, the adoption of UNDRIP must stem from and be responsive to the specificity of Indigenous laws within Canada and across the world.
One of the most contentious issue in the debate over UNDRIP in Canada is Free, Prior and Informed Consent (FPIC), which is frequently raised with respect to resource development. FPIC is the requirement of the States to consult and cooperate in good faith with the Indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them. However, consent is not obtained through a singular, point-in-time agreement but rather reaffirmed continually through ongoing collaboration. This describes a commitment to a meaningful engagement between Indigenous and non-Indigenous governments.
The Supreme Court of Canada affirmed FPIC by confirming that the Crown has a duty to consult with Aboriginal peoples on decisions impacting them and their rights, including their lands, territories and resources. This duty holds even if Canadian courts have not formally recognized Aboriginal title and/or Aboriginal right. However, what has not been entirely clear is what consultation requires. There are ongoing tensions around a “strong” interpretation of FPIC and “procedural” view. A “strong” interpretation of FPIC is where the outcome of consultation determines the outcome of the project. In this way, a relationship may be created or improved in a spirit of partnership and mutual respect between Indigenous peoples and Canadian governments. A “procedural” view establishes that states must seek consent, but not necessarily achieve it. It is important to note that numerous Indigenous leaders, scholars and nongovernmental organizations argue this minimalist interpretation of FPIC is inconsistent with Aboriginal title and water rights. By virtue of those rights, Indigenous peoples hold the exclusive right to decide how their lands and waters are used and managed. The foundation to achieve the right to free, prior and informed consent is the inherent right to self-determination. By virtue of that right, Indigenous peoples freely determine their political status and freely pursue their economic, social and cultural development.
A “procedural” view establishes that states must seek consent, but not necessarily achieve it. It is important to note that numerous Indigenous leaders, scholars and nongovernmental organizations argue this minimalist interpretation of FPIC is inconsistent with Aboriginal title and water rights. By virtue of those rights, Indigenous peoples hold the exclusive right to decide how their lands and waters are used and managed. The foundation to achieve the right to free, prior and informed consent is the inherent right to self-determination. By virtue of that right, Indigenous peoples freely determine their political status and freely pursue their economic, social and cultural development.
Ultimately, FPIC is only a part of UNDRIP. It is not enough for governments to address FPIC and then claim they have satisfied their commitment to UNDRIP. All articles in UNDRIP are interconnected and work in relation to one another. UNDRIP recognizes that Indigenous peoples’ rights are rooted in their own legal traditions but current Canadian legal regimes continue to define Aboriginal rights according to European understandings of law. These differences have very real consequences, including the mistreatment of water and the lack of clean drinking water to human beings living in Canada. There remains questions about the implementation of UNDRIP, however the difference between where Indigenous laws and Canadian laws stem from creates a key tension between Indigenous peoples and Canadian governments.
The summary was prepared by Myia Antone and reviewed by Marina Guessous.