‘Who Controls The Water?’

Because of the Race Based dysfunction enabled by the Canadian Constitution, yet another jurisdictional confrontation looms: 

“Alberta’s provincial government and several ‘First Nations’ {‘Siberian settler communities’} appear headed for a showdown over who controls water on aboriginal {reserve} lands…

“The province asserts jurisdiction over all water within its borders, including on reserves – a notion some tribal communities reject.

“We always had an unwritten belief that our water underneath us is ours”, said Carol Wildcat, consultation co-ordinator for the Ermineskin Tribe {includes the Hobbema reserve}, one of the affected ‘First Nations’. “It doesn’t belong to anybody else. Alberta, I know, probably states otherwise … the audacity of them, eh?”

“As Alberta prepares for droughts, it is pressing ‘First Nations’ to accept water licences… Graham Statt, assistant deputy minister at ‘Alberta Environment and Parks’, said it is crucial for the province to oversee water licensing.

“It would be very difficult to achieve our ecological and environmental outcomes otherwise.”

“But some tribal communities are devising their own systems for managing water on their lands, openly defying the province.

“The dispute’s origins were set in motion more than a century ago. In 1894, Alberta adopted a principle known as ‘First-In-Time, First-In-Right’, a system for administering water rights that was already popular across western North America. (It’s often known by its acronym, ‘FITFIR’.) FITFIR prioritizes licences based on issuance dates; during droughts, “senior” licensees are entitled to their entire allotment before anyone else gets a drop.

“Many of Alberta’s approximately 50 reserves never acquired {never applied for} licences. Their water use was largely overlooked for most of the past 120 years, said David Percy, a law professor at the University of Alberta.

“It wasn’t as if ‘First Nations’ were taking enough water out of the river that anyone was going to get upset about it.”

“That changed in recent decades as certain watersheds became stressed amid population growth, {so-called} ‘climate change’ and other factors, and as the province moved to mitigate these stresses.

“When your basins are approaching full allocation, the ideal situation for an administrator would be to tidy up all the water licences”, Prof. Percy observed.

“It’s difficult to quantify how many tribal communities are offside the provincial licensing system. Alberta’s provincial government provided the ‘Globe and Mail’ with data on historical and current water licences issued to ‘First Nations’ (or the federal department of ‘Indigenous’ {‘Siberian settler’} and Northern Affairs’). Using geographical information system software, the Globe mapped those 91 licences to a federal map of ‘indigenous’ lands in Alberta. Many reserves had multiple licences covering a variety of uses, from communal water systems to watering livestock and crops.

“Dozens of other reserves appeared to have no licences for any purpose. But that doesn’t necessarily mean they’re offside the provincial licensing system. Some reserves get all the water they need from individual wells, cisterns or truck-fill stations. Others may be supplied by a neighbouring municipality or regional water line. Water licences aren’t required in such scenarios.

“Strictly speaking, every reserve has water”, says David Laidlaw, a research fellow at the ‘Canadian Institute of Resources Law’ at the University of Calgary. “So, it’s potentially a problem for every reserve in Alberta.”

“In 2006, Alberta approved a water-management plan for the South Saskatchewan River Basin. Recognizing that the basin was already oversubscribed, Alberta stopped accepting applications for new licences and offered the last licences to ‘First Nations’

flag_of_the_blood_tribe

“Dorothy First Rider, a councillor with the Blood Tribe, said pressure from the province to accept a junior licence increased that year and has remained high since.

“In 2014, the province created another water-management plan for the Battle River Basin, in which Ermineskin and the neighbouring Samson Cree ‘Nation’ {a ‘nation’ of 8,281 people} are situated. It proposed a limit in water allocations that, once reached, would block all future licence applications. Again, the province offered junior licences to ‘First Nations’.

“‘First Nations’ contacted by the ‘Globe’ balked at the offer.

“It just means last in line, that’s what it means”, Ms. Wildcat said. “It’s rude. Why am I last when I’ve been here prior to 1905?” {That means she’s at least 111 years old! Her picture doesn’t support that…} (Alberta was created that year; Ermineskin was formally established in 1885.)

(Photo: AMBER BRACKEN--GLOBE AND MAIL)
Carol Wildcat at her home in Hobbema, Alberta (Photo: AMBER BRACKEN–GLOBE AND MAIL)

“Tribal communities fear junior licences might not provide water during droughts – a risk confirmed in government documents.

“Applicants seeking new (junior) licences in the Battle River Basin must recognize the risk to water security is high”, reads the 2014 water-management plan. “Analysis of flow requirements and relative seniority to other licences in the basin suggests that a new (junior) licence holder is likely to receive water 3 out of 10 years.”

“The Battle River basin appears primed for future droughts. Last year, the ‘World Resources Institute’ published the “Water Risk Atlas” {http://www.wri.org/resources/maps/aqueduct-water-risk-atlas }, a Web map depicting water scarcity around the world. Large swaths of Africa and the Middle East are depicted in angry red hues, signifying water-stressed areas. Nearly all of Canada, a comparatively water-rich country, is deemed lower-risk. The Battle River Basin is Canada’s largest exception: The atlas characterizes it as high risk and predicts water stress will worsen. 

waterstresslevelsinalberta

“Mr. Statt said issuing senior licences to ‘First Nations’

“would have implications for downstream users and other communities as well – other Albertans, frankly.”

“But he played down aboriginal concerns about being left high and dry by the FITFIR system.

“We certainly wouldn’t let something like a licensing regime get in the way of ensuring that access to safe drinking water is being provided”, he said.

The threat of junior licensees being cut off remains theoretical, Prof. Percy said. During previous droughts, Albertan water users negotiated agreements through which all users voluntarily reduced consumption.

“There’s never been a case, since 1894 when this was introduced, of a major user of water being cut off because of the priority principle”, he said.

“Senior licensees are motivated to co-operate, he added, because calling priority would invite intense scrutiny of their licences’ validity. The fallout from calling priority over a community’s drinking water might even prompt Alberta to abandon FITFIR altogether.

“Prof. Percy acknowledged the legal risk to ‘First Nations’ is nonetheless genuine. Clayton Leonard, a lawyer with ‘MacPherson Leslie & Tyerman LLP’ {http://www.mlt.com/industry-groups/aboriginal/ } who represents several tribal communities on water issues, said it’s naive to expect his clients to rely on the negotiation process – in part because Alberta created mechanisms allowing water licences to be bought and sold. 

Litigating Race Law Pays: MacPherson, Leslie & Tyerman LLP, Regina, is merging with the Winnipeg firm Aikins, MacAulay & Thorvaldson LLP. (Photo: DON HEALY -- REGINA LEADER-POST)
Litigating Race Law Pays: MacPherson, Leslie & Tyerman LLP, Regina, is merging with the Winnipeg firm Aikins, MacAulay & Thorvaldson LLP. (Photo: DON HEALY — REGINA LEADER-POST)

“Licence holders would not want to agree to share water, for free, when their licences now have significant economic value”, he said. “I don’t think there’s a good enough relationship between the local municipalities and the ‘First Nations’ for a water sharing agreement during a drought to be easily arrived at”, he added.

{That’s for sure – the tribal communities would insist on their ‘inherent right’ to be ‘First’ and would quickly hurry off to court…}

“The parties seem to have reached an impasse. Alberta said in a 2013 report it believed it had satisfied its obligations to consult ‘First Nations’ on the Battle River water management plan. Mr. Leonard said all alternative proposals his clients offered to the province have been rebuffed or ignored, and the province continues to insist his clients accept junior water licences. 

samsoncreelogo

“Ermineskin and the neighbouring Samson Cree ‘Nation’ responded by {illegally} enacting their own water laws. The Blood Tribe/Kainai ‘First Nation’ {a ‘nation’ of 11,791 people} says it is considering following suit. Mr. Leonard said his clients have informed Alberta they will never accept provincial jurisdiction but don’t intend to sue the province.

“The ball’s in Alberta’s court”, he said.

Prof. Percy said litigation would carry high stakes for both sides. And the implications could be felt across the country, because Canada’s courts have never determined what ‘rights’ tribal communities have to water {They should have the same ‘rights’ as any other Canadian community. They certainly have no other rights under Treaty}.

“It’s a huge, unanswered question in Canadian law”, Prof. Percy said. “The province can’t push that too hard to litigation, because it may well lose that case.”

“Asked about the reserves’ defiance of provincial jurisdiction, Mr. Statt was firm.

“Legally, the province controls and administers all water in the province, except for within national parks”, he said. “That’s where we stand.”

“Yet a 2003 paper by Mr. Statt himself paints a more complex picture of aboriginal water rights. When he was an academic in the University of Alberta’s anthropology department, Mr. Statt published a paper examining the ‘uncertain status’ of aboriginal water rights in Alberta, particularly in the northern ‘Treaty 8’ area {But that was then his job, employed as an ‘anthropologist’ — in other words, an apologist and advocate for the Aboriginal Industry}.

“Bands in this area possess Aboriginal, treaty and common law water rights {There is NOTHING in ‘Treaty 8’ giving them ‘water rights’ — See below} and, in some cases, may have received title to the beds of navigable, on-reserve watercourses ‘by implication’ {???}”, Mr. Statt wrote. “These ‘rights’ are essential to the protection of Aboriginal communities from negative external impacts {That should then be true for ALL Alberta communities}.”

“Alberta insists ‘First Nations’ need licences to use water within its borders. An unknown number of reserves operate outside this system; this puts them on a collision course with Alberta as the province steps up mitigation efforts in arid and drought-prone regions. Here are some speculative scenarios on how the dispute might play out.

1. LEGAL BATTLE:
“At least three tribal communities contend Alberta lacks jurisdiction over water on their lands. Lawyer Clayton Leonard said his clients will manage their own water but have no intent to litigate. The question now is whether Alberta is willing to risk a courtroom battle, which would carry high stakes for all involved.

“It’s never been decided in Canada, actually, whether or not ‘First Nations’ have ‘ownership’ of the water”, said David Laidlaw, a research fellow at the University of Calgary’s ‘Canadian Institute of Resources Law’ {In other words, lawyers have yet to make a financial killing litigating what otherwise is straightforward Treaty language. Besides, the Canadian Constitution is pretty clear on water rights — and ‘Siberian settler’ tribes are not mentioned. If the legal profession had any integrity left, cases like this would be quickly thrown out of Court}.

“Should a court determine ‘First Nations’ ‘water rights’ were extinguished in Alberta, the federal government could find itself drawn into the dispute {Lawyer-judges could create even more profit — at taxpayers’ expense — for legal corporations}.

“Nobody wants to discuss” how Alberta tribal communities lost their ‘rights’ to water, Mr. Clayton said. “If they were taken away, then that’s a serious legal issue.”

2. ‘FIRST NATIONS’ CAPITULATE …
“More than 91 licences are held by ‘First Nations’ (or on their behalf by ‘Indigenous’ {‘Siberian settler’} and Northern Affairs Canada’) in Alberta. Half of them have been issued since the late 1980s. This suggests many tribal communities already accept the provincial licensing system to some degree. Under threat of regulatory action from Alberta, more may accept junior licences. But that’s a risky move…

… AND THINGS WORK OUT:
“Government officials said ‘First Nations’ have little to worry about. That’s because during shortages, the government encourages licence holders to negotiate arrangements such that no users are cut off entirely. Alberta has

“a tradition of co-operative management of stressed basins, especially in the last 20 years”, said David Percy, a water law expert and professor at the University of Alberta.

… OR THEY DON’T:
“‘First Nations’ said they’re worried they wouldn’t be treated as equal partners at the negotiating table. Partly, that’s because Alberta now allows the purchase and sale of water licences; Mr. Leonard said the economic value of licences will complicate negotiations.

3. ALBERTA CAPITULATES:
“Water law experts said Alberta’s assertion of jurisdiction over water on ‘First Nations’ lands rests on shaky foundations {If the provincial government doesn’t control it, then the federal government does, as it holds all Title to reserve lands. Either way, this is unnecessary litigation only designed for legal corporation profits}. Rather than risk litigation, the province may be forced to accept that some reserves will operate outside its licensing system {Differential treatment based on race…} – a continuation of a stalemate that has persisted for decades.
{That’s what happens when you have segregated communities and RACE BASED LAW…}

4. COMPROMISE:
“Alberta said it favours connecting reserves to regional water lines where appropriate – a solution that could alleviate the licensing conflict.

“Alberta Transportation will be providing more than half a billion dollars for water grant programs over the next five years”, said government spokesperson Kyle Ferguson. “A portion of this funding may provide opportunities to bring waterlines closer to the border of ‘First Nation’ and ‘Métis’ {French half-breed} communities.”

“But Mr. Leonard said there’s no formal proposal to fund or build such pipelines. Moreover, his clients fear rates could rise unbearably if they were to become mere customers of regional water utilities.

“If ‘First Nations’ join regional water systems, they want to be ‘equal partners’ with the other non-aboriginal regional governments that own and govern those systems”, he said.

{This is the logical attitude that results from encouraging the nonsense of so-called ‘Nation-to-nation’ dealings. Until these segregated communities are converted into modern towns and municipalities – which can only occur by ending RACE BASED LAW — Canada will face an endless succession of these incidents…
https://endracebasedlaw.wordpress.com/petition-canada/  }

–‘Fluid situation for Alberta reserves’,
MATTHEW MCCLEARN, Toronto Globe and Mail, Oct. 17, 2016

{NOTE: There is no place for public comments on the Globe’s post. Are they imitating the CBC’s censorship of the Canadian public?}

http://www.theglobeandmail.com/news/showdown-over-water-looms-for-albertareserves/article32386029/

Feature IMAGE: Chief Ermineskin, right, is seen atop a horse in 1885, the same year the Alberta ‘First Nation’ {‘Siberian settler’ community} that shares his name – Ermineskin Tribe – was founded.
(Ernest Brown, Edmonton)

treaty8map

“IN THEIR OWN WORDS: WHAT THE TREATIES ACTUALLY SAY”: Treaty 8

“…AND WHEREAS, the said Commissioners have proceeded to negotiate a treaty with the Cree, Beaver, Chipewyan and other Indians, inhabiting the district hereinafter defined and described, and the same has been agreed upon and concluded by the respective bands at the dates mentioned hereunder, the said Indians DO HEREBY CEDE, RELEASE, SURRENDER AND YIELD UP TO THE GOVERNMENT OF THE DOMINION OF CANADA, for Her Majesty the Queen and Her successors FOR EVER, ALL THEIR RIGHTS, TITLES AND PRIVILEGES WHATSOEVER, TO THE LANDS included within the following limits…
{There follows a lengthy description of the territory ceded, released, surrendered, etc.}

“AND ALSO the said Indian rights, titles and privileges whatsoever to all other lands wherever situated in the Northwest Territories, British Columbia, or in any other portion of the Dominion of Canada.

“TO HAVE AND TO HOLD the same to Her Majesty the Queen and Her successors for ever.

“And Her Majesty the Queen HEREBY AGREES with the said Indians that they shall have right to pursue their usual vocations of hunting, trapping and fishing throughout the tract surrendered as heretofore described, subject to such regulations as may from time to time be made by the Government of the country, acting under the authority of Her Majesty, and saving and excepting such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes.

“And Her Majesty the Queen hereby agrees and undertakes to lay aside reserves for such bands as desire reserves, the same not to exceed in all one square mile for each family of five for such number of families as may elect to reside on reserves, or in that proportion for larger or smaller families; and for such families or individual Indians as may prefer to live apart from band reserves, Her Majesty undertakes to provide land in severalty to the extent of 160 acres to each Indian, the land to be conveyed with a proviso as to non-alienation without the consent of the Governor General in Council of Canada, the selection of such reserves, and lands in severalty, to be made in the manner following, namely, the Superintendent General of Indian Affairs shall depute and send a suitable person to determine and set apart such reserves and lands, after consulting with the Indians concerned as to the locality which may be found suitable and open for selection.

“Provided, however, that Her Majesty reserves the right to deal with any settlers within the bounds of any lands reserved for any band as She may see fit; and also that the aforesaid reserves of land, or any interest therein, may be sold or otherwise disposed of by Her Majesty’s Government for the use and benefit of the said Indians entitled thereto, with their consent first had and obtained.

” It is further agreed between Her Majesty and Her said Indian subjects that such portions of the reserves and lands above indicated as may at any time be required for public works, buildings, railways, or roads of whatsoever nature may be appropriated for that purpose by Her Majesty’s Government of the Dominion of Canada, due compensation being made to the Indians for the value of any improvements thereon, and an equivalent in land, money or other consideration for the area of the reserve so appropriated.

“And with a view to show the satisfaction of Her Majesty with the behaviour and good conduct of Her Indians, and in extinguishment of all their past claims, She hereby, through Her Commissioners, agrees to make each Chief a present of thirty-two dollars in cash, to each Headman twenty-two dollars, and to every other Indian of whatever age, of the families represented at the time and place of payment, twelve dollars.

“Her Majesty also agrees that next year, and annually afterwards for ever, She will cause to be paid to the said Indians in cash, at suitable places and dates, of which the said Indians shall be duly notified, to each Chief twenty-five dollars, each Headman, not to exceed four to a large Band and two to a small Band, fifteen dollars, and to every other Indian, of whatever age, five dollars, the same, unless there be some exceptional reason, to be paid only to heads of families for those belonging thereto.

“FURTHER, Her Majesty agrees that each Chief, after signing the treaty, shall receive a silver medal and a suitable flag, and next year, and every third year thereafter, each Chief and Headman shall receive a suitable suit of clothing.

“FURTHER, Her Majesty agrees to pay the salaries of such teachers to instruct the children of said Indians as to Her Majesty’s Government of Canada may seem advisable.

“FURTHER, Her Majesty agrees to supply each Chief of a Band that selects a reserve, for the use of that Band, ten axes, five hand-saws, five augers, one grindstone, and the necessary files and whetstones.

“FURTHER, Her Majesty agrees that each Band that elects to take a reserve and cultivate the soil, shall, as soon as convenient after such reserve is set aside and settled upon, and the Band has signified its choice and is prepared to break up the soil, receive two hoes, one spade, one scythe and two hay forks for every family so settled, and for every three families one plough and one harrow, and to the Chief, for the use of his Band, two horses or a yoke of oxen, and for each Band potatoes, barley, oats and wheat (if such seed be suited to the locality of the reserve), to plant the land actually broken up, and provisions for one month in the spring for several years while planting such seeds; and to every family one cow, and every Chief one bull, and one mowing-machine and one reaper for the use of his Band when it is ready for them; for such families as prefer to raise stock instead of cultivating the soil, every family of five persons, two cows, and every Chief two bulls and two mowing-machines when ready for their use, and a like proportion for smaller or larger families. The aforesaid articles, machines and cattle to be given one for all for the encouragement of agriculture and stock raising; and for such Bands as prefer to continue hunting and fishing, as much ammunition and twine for making nets annually as will amount in value to one dollar per head of the families so engaged in hunting and fishing.

“And the undersigned Cree, Beaver, Chipewyan and other Indian Chiefs and Headmen, on their own behalf and on behalf of all the Indians whom they represent, DO HEREBY SOLEMNLY PROMISE and engage to strictly observe this Treaty, and also to conduct and behave themselves as good and loyal subjects of Her Majesty the Queen.

“THEY PROMISE AND ENGAGE that they will, in all respects, obey and abide by the law; that they will maintain peace between each other, and between themselves and other tribes of Indians, and between themselves and others of Her Majesty’s subjects, whether Indians, half-breeds or whites, this year inhabiting and hereafter to inhabit any part of the said ceded territory; and that they will not molest the person or property of any inhabitant of such ceded tract, or of any other district or country, or interfere with or trouble any person passing or travelling through the said tract or any part thereof, and that they will assist the officers of Her Majesty in bringing to justice and punishment any Indian offending against the stipulations of this Treaty or infringing the law in force in the country so ceded…”

http://www.aadnc-aandc.gc.ca/eng/1100100028813/1100100028853#chp4

Treaty8 -- The Revisionist Version
Treaty8 — The Revisionist Version

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2 thoughts on “‘Who Controls The Water?’

    1. The Aboriginal Industry is not only ‘insensitive’ towards the other 96% of Canadians, but also racist in its social analysis. As for ‘nations’, a simple check of the member nations of the United Nations — which includes no Canadian aboriginal ‘nations’ — gives a clear indication of the modern meaning of the term. The forcing of the term ‘First Nations’ on the Canadian public is simply an attempt by the billion-dollar Aboriginal Industry to gain leverage and special treatment — which we unequivocally reject. All Canadians must have equal legal rights before the law, with no special considerations based on race or heredity…

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