Water a central issue for First Nations

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.

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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 th 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.

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.

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.

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.

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.

The ties to water run deeper than business deals. 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."

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