Report of the Expert Panel on Safe Drinking Water for First Nations

Applying Asserted First Nations Jurisdiction and Customary Laws

The final option for the regulation of water on reserves is to base new federal water legislation on First Nations customary laws. This task would start with, and be driven by, First Nations across the country.

The objective would be to incorporate into federal legislation the basic tenets of First Nations customary law as they relate to water.

6.1 Legal Basis for Option

The Constitution Act, 1982, s. 35(1) recognizes and affirms existing aboriginal and treaty rights of the aboriginal peoples of Canada and has, as its underlying purpose, the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown. [82]. The Act provides the constitutional framework to reconcile the fact that aboriginal peoples lived on the land in distinctive societies, with their own practices, traditions and cultures with the sovereignty of the Crown. [83]

Canadian courts have yet to decide on whether the scope of s. 35(1) of the Constitution Act, 1982 includes a right to self-government. Some lower courts have said that there is no right of self-government for aboriginal peoples. In Delgamuukw, the British Columbia Court of Appeal noted that the broader powers to make general laws regarding the land, resources and people in a territory were legislative powers that could not be awarded by the courts and that such powers were inconsistent with the division of powers between the federal and provincial governments under the Constitution. [84]

In Pamajewon, the Supreme Court of Canada considered the issue of whether a particular aboriginal community was required to obtain a licence to carry out gaming initiatives on its lands. [85] The aboriginal community argued that it was entitled to govern its own affairs, including the regulation of economic enterprises within its reserve, and that this right was protected under Treaty No. 3.

The Court did not reach a definitive conclusion as to whether s. 35(1) protects the right to self-government. The Court assumed without deciding that s. 35(1) includes self-government claims, finding that claims to self-government are no different from other claims to aboriginal rights. These claims require the same analysis, which involves looking at whether that self-governing activity is "a defining feature of the culture in question" prior to contact with Europeans. [86] The Court characterized that right as “the right to participate in, and to regulate, high stakes gambling activities on the reservations.” [87] The Court found that the gaming activity was not integral to the Ojibwa culture and, thus, the Court was not required to decide on whether s. 35(1) includes the right to self-government

In 1995, the federal government introduced a new policy recognizing First Nations' inherent right to self-government. This policy removes some of the pressure from courts to decide on this complex issue. In its policy, the federal government stated that "the government of Canada recognizes the inherent right of self-government as an existing right within s. 35 of the Constitution Act, 1982." [88]

The policy recognizes that “the inherent right of self-government may be enforceable through the courts and that there are different views about the nature, scope and content of the inherent right. However, litigation over the inherent right would be lengthy, costly, and would tend to foster conflict.” [89]

The policy further notes that the inherent right to self-government is based on the view that "the aboriginal peoples of Canada have the right to govern themselves in relation to matters that are internal to their communities, integral to their unique cultures, identities, traditions, languages and institutions, and based on the special relationship that aboriginal peoples have always had with their lands and reserves." The "right to govern themselves in relation to matters that are internal to their communities" would, presumably, include the regulation of drinking water, which is a matter that is central to any community.

This option also has support in the international realm. The United Nations Draft Declaration on the Rights of Indigenous Peoples states:

Indigenous people have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

Indigenous peoples, as a specific form of exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, including culture, religion, education, information, media, health, housing, employment, social welfare, economic activities, land and resources management, environment and entry by non-members, as well as ways and means for financing these autonomous functions. [90]

Accordingly, there is sound legal basis for this option. The Constitution Act, 1982, s. 35(1) recognizes and affirms existing aboriginal and treaty rights; the Supreme Court of Canada has not pronounced against the inclusion of the right to self-determination in the scope of s. 35(1); and federal policy supports self-government, as do the international principles on aboriginal rights as enunciated in the United Nations Draft Declaration.

6.2 Legislative Examples

A review of the legislation reveals that First Nations' opportunity to instill customary laws into the current legislative framework is rather limited:

The Canadian Environmental Assessment Act (CEAA) and Canada National Parks Act provide for consultation and opportunities for participation in the decision-making process. Under CEAA, aboriginal traditional knowledge may be considered in conducting an environmental assessment. [91]
Under the Oceans Act, the Minister is required to “collaborate” with affected aboriginal organizations to develop a national strategy and plan for the management of activities affecting oceans. [92]
The First Nation's role is slightly elevated in the Species at Risk Act (SARA) where First Nation representatives are given an advisory role. Under SARA, First Nation representatives are selected to sit on the National Aboriginal Council on Species at Risk to advise the Minister on the administration of the Act. The First Nation representatives also provide advice and recommendations to the Canadian Endangered Species Conservation Council. [93]
Under SARA, the use of aboriginal traditional knowledge is also strengthened by the statutory obligation of the Committee on the Status of Endangered Wildlife in Canada to carry out its functions on the basis of the best available information on the biological status of a species, including scientific knowledge, community knowledge and aboriginal traditional knowledge. [94]

These examples reveal the rather limited role aboriginal traditional knowledge currently has in the legislative regime.

This option provides the opportunity to give customary law a more central role in developing First Nations water legislation.

Moreover, this option gives effect to the federal policy recognizing First Nations' inherent right to self-determination; it upholds s. 35(1) of our Constitution and its underlying purpose of reconciliation; and lastly, it:

encourages us to broaden our conception of the sources of Canadian law and to recognize the diverse roles that Indian, Inuit, and Metis peoples have played in the formation of this country and its Constitution. [95]

The disadvantage of this option is that it will be difficult to discern exactly what First Nations customary law is since it will vary from First Nation to First Nation. Second, the need to build governance and administrative infrastructure coherent with such First Nation law to administer a complex regulatory regime where significant technical standards are in play presents further difficulties.

Although this process is likely to be much slower than the new federal legislation option, it provides greater long-term capacity building potential. The process of articulating traditional law and weaving it in to contemporary regimes will have great positive impact in other areas of law where First Nations wish to assert governance jurisdiction.

This option and the new federal legislation option may be complementary strategies to respond to the twin objectives of regulating water and developing First Nations governance capacity. For example, in the development of new federal legislation, traditional law can be incorporated into the process.

Footnotes:

Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), c. 11 [hereinafter Constitution Act, 1982], s. 35(1) states "the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed". (return to source paragraph)
See R. v Van der Peet, [1996] S.C.R. 507 (S.C.C.) at paras. 31 and 43 [hereinafter Van der Peet]; R. v. Sparrow, [1990] 1 S.C.R. 1075 (S.C.C.) at 1109 [hereinafter Sparrow]; R. v. Gladstone, [1996] 2 S.C.R. 723 (S.C.C.) at para. 73 [hereinafter Gladstone]; Delgamuukw, supra note 10 at paras. 81, 148, 161, 165 and 186; Mitchell v. M.N.R., [2001] 1 S.C.R. 911 (S.C.C.) at paras. 12, 174, 155 and 164 [hereinafter Mitchell]. (return to source paragraph)
Delgamuukw v. British Columbia, [1993] B.C.J. No. 1935 (B.C.C.A.) [hereinafter Delgamuukw 1993]. (return to source paragraph)
R. v. Pamajewon, [1996] 2 S.C.R. 821 (S.C.C.) [hereinafter Pamajewon]. (return to source paragraph)
The test as enunciated in Van der Peet, supra note 87. (return to source paragraph)
Pamajewon, supra note 89 at 212. (return to source paragraph)
Canada, Department of Indian Affairs and Northern Development. Federal Policy Guide, Aboriginal Self-Government: The Government of Canada's Approach to the Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government. Minister of Indian Affairs and Northern Development, Ottawa, 1995 [hereinafter Aboriginal Self-Government]. (return to source paragraph)
Aboriginal Self-Government, ibid. (return to source paragraph)
United Nations Draft Declaration on the Rights of Indigenous Peoples, Article 3 and 31. See Draft United Nations declaration on the rights of indigenous peoples. On June 29, 2006 the Human Rights Council adopted by a roll-call vote of 30 in favour to 2 against and 12 abstentions a resolution on the Declaration on the Rights of Indigenous Peoples. The Declaration has now been forwarded to the UN General Assembly for approval before the end of 2006. We note that Canada has so far decided not to support this Declaration. Nonetheless, were a Canadian government to decide to support the Declaration, this would be a further indication of the policy direction Canada intended to pursue, and would be consistent with the general movement towards recognizing aboriginal self-government rights. (return to source paragraph)
Canadian Environmental Assessment Act, R.S.C., 1992, c. 37, s. 2(1)(b)(iii), s. 16.1, s. 62(h) [hereinafter CEAA]; Canada National Parks Act, R.S.C., 2000, c. 32, s. 12(1) [hereinafter Parks Act]. (return to source paragraph)
Oceans Act, R.S.C., 1996, c. 31, s. 29, 31 [hereinafter Oceans Act]. (return to source paragraph)
Species at Risk Act, R.S.C., 2002, c. 29, s. 8.1 [hereinafter SARA]. (return to source paragraph)
SARA, ibid. at s. 15(2). (return to source paragraph)
B. Slattery, The Organic Constitution: Aboriginal Peoples and the Evolution of Canada, (1995) Osgoode Hall Law Journal, Vol. 34, No. 1. [hereinafter Organic Constitution]. (return to source paragraph)

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