April 2005 - Walpole Island

The following is a summary of a paper the Walpole Island Heritage Centre has received from Kate Kempton of Olthius Kleer Townshend. The paper talks of aboriginal and treaty rights, in particular the Annex Regime.

SUMMARY

This paper is a critical analysis of how the Annex Regime could affect aboriginal and treaty rights in Ontario. It is a paper about aboriginal and treaty rights to and dependent on water.

The "Annex Regime" is a set of proposed agreements (and implementing laws) that would create a scheme for permitting large water withdrawals from the Great Lakes Basin where certain criteria are met. These criteria comprise the "Standard" to assess the potential impacts of the proposed withdrawal. Withdrawals are classified as "consumptive use" (water taken and lost or not returned) and diversions (water diverted by pipeline, canal or other means from one area for use in another, with the assumption, one supposes, that one way or the other most of such water would eventually be returned from where it was taken - not in the same condition).

There is a non-binding "Annex Agreement" between all eight US Great Lakes states and the Provinces of Ontario and Quebec; and an "Annex Compact" binding as between the states alone.

The Annex Agreement proposes that each of the ten jurisdictions would have to assess applications for water withdrawals and diversions of over 100,000 gallons per day in accordance with the Standard, and regulate these. Where proposed withdrawals are much larger than this (consumptive use of over 3 million gallons a day, and diversions of over 1 million gallons a day), they would be assessed by a Regional Body composed of each of the eight governors and the two premiers or their designates. This Regional Body would assess the proposal in accordance with the Standard and render a finding as to whether or not the application should be approved (or under what conditions it could be approved). This finding does not bind any of the jurisdictions; the ultimate decision is made by the jurisdiction from which the application arose.

The Compact is almost the same, but also creates a Council (of the eight governors or their designates) which makes a binding decision on the consumptive uses and diversions subject to regional review. Each of the governors has a veto over any proposed diversion subject to this review, and three of eight governors acting together can veto any proposed consumptive use. Neither Ontario nor Quebec has any such veto over any proposal subject to regional review.

The Standard has seven criteria, which include a requirement to return some flow to the waters from which the water was taken; there can be no reasonable alternative to the water withdrawal; the quantity of water taken must be reasonable (for its intended use); and there cannot be significant adverse impacts (individual or cumulative).

There have been a number of criticism of the Annex Regime, including that it is too permissive (e.g., does not prevent further withdrawals, does not apply to existing withdrawals); too narrow (does not apply to water quality but only quantity); would create obligations under trade law to allow withdrawals by jurisdictions not in the Basin; and the decision-making regime is unfair and ineffective.

There was almost no involvement of aboriginal peoples in the development of the Annex Regime, and there has been inadequate involvement in the comment and review period. The Regime, if adopted, proposes that this lack of meaningful involvement and voice would continue. Consultation requirements are minimal, and there is no direct voice for aboriginal peoples contemplated within any regional review body or in any other capacity in this Regime.

The paper has four major parts:

• Part One: Overview of the law on aboriginal and treaty rights in Canada (from common law to constitutional law).
• Part Two: Overview of "water law" (mostly common law ) in Ontario.
• Part Three: Analysis of aboriginal and treaty rights in relation to water and Canadian water law.
• Part Four: Analysis of potential effects of Annex Regime on aboriginal and treaty rights.

"Common law" means law as decided by courts, based on fundamental principles and precedents. Legislation can override the common law. However, all legislation must be within the parameters of the Constitution, and courts can decide whether it is or not.

Here is a summary of 'Bridge Over Troubled Waters' as Kate Kempton explains:

Before proceeding to summarize this paper, I must emphasize two underlying paradoxes.

First, this analysis is of Canadian-made law, the law as developed primarily by and under English. This "English" law, at its earlier stages, recognized indigenous peoples as distinct self-governing societies occupying their own lands in North America, with the right to do so. Here is the paradox. English law (judge-made and legislature-made) in what became Canada changed, not necessarily by precedent or for legitimate purposes, but for pragmatic reasons: to meet the needs or demands of the European settlers. As settlers demanded more land and resources, it had to come from somewhere or from someone. It came from, of course, indigenous peoples. Much of this taking away from indigenous peoples to give to European people had no basis in properly-applied law. This taking became a fact - a pervasive fact. And this fact seems now to be simply accepted as law (because "it's here"). Put another way, Canadian law in respect of aboriginal peoples seems to be built in part on facts (circumstances) that should never have been allowed by law.

The second paradox is this: As soon as one accepts that there were existing self-governing societies, which were not conquered, how therefore does one assume that one's legal, political, cultural and linguistic rules should or could "legally" apply to determine the rights of the self-governing societies? Applying one's own rules and perspectives to self-governing others creates a hierarchy which of itself denies equality; further, it is submitted, the application of this hierarchy in Canada has often exacerbated the inequality and has subjugated aboriginal peoples.

Therefore, any proper analysis of Canadian law today has to examine both the factual and legal underpinnings to attempt to sort out what might be valid from what was derived contrary to law: from political pragmatism, misunderstanding, and even, sometimes, greed.

Canadian law must today reconcile three things: assertion of Crown sovereignty (perhaps or even likely without right); the taking of so much from indigenous peoples, often without right; and the fact that indigenous peoples had and have the right to survive here in their own societies as their own peoples. Courts and governments have an obligation to reconcile so as to rectify the egregious wrongs. To do anything else is unconstitutional, because the first principle of constitutional law is the Rule of Law.

The Canadian-made law on aboriginal and treaty rights is developing, and cannot in any way be considered set in stone. This law has been developing in significant ways particularly since aboriginal and treaty rights were entrenched in the Constitution in 1982. Courts are grappling with how to reconcile the fact that self-governing aboriginal societies were here occupying and living on and by the lands and waters for centuries, with the fact of assertion of British sovereignty over aboriginal peoples. To have been legally valid (according to the imperial law of Britain and international law at the time), such assertion of sovereignty would have required either the conquest of aboriginal peoples, or settlement on lands that were "terra nullius" (not occupied, or at least not occupied by organized societies), or ceding of sovereignty through treaty None of these circumstances existed.

These two facts may be irreconcilable in the end, since there is strong evidence that there was a tenuous basis in law at best (and likely no legal basis) for the assertion of British sovereignty over aboriginal societies as self-governing units (ie: British law could not govern where indigenous law was already governing its own people).

The British (and later Canadian) Crown did acquire title to areas of lands and waters that had belonged to aboriginal peoples, largely through treaties where such tracts were ceded and surrendered. But there is good evidence that all the treaties did and were intended to do was pass incidents of ownership to lands and waters, and nothing more (i.e., there was no subjecting of indigenous peoples to the governing powers of the Crown). And there is evidence that even ceding of title, as title was and is understood by Europeans and Euro-Canadians, may not have been intended by aboriginal parties. Just what was acquired and what was reserved or retained by aboriginal peoples (both in respect of aspects of title, and in respect of self-governance and exercise of other societal/cultural rights) remains very unclear in Canadian law.

This paper posits that current Canadian courts have often misunderstood and misapplied both facts and law that existed at the times of arrival of Europeans in North America, assertion of British sovereignty, and treaty-making. Yet, courts today rely on the law and facts from these past dates to determine and define the rights of aboriginal peoples today. To the extent they get it wrong, courts today render judgments that are wrong in law.

It is fair to say that Canadian law in respect of these rights will continue to develop as more is understood, as it becomes increasingly apparent that the law in its current state is not respecting aboriginal rights and peoples (and as such, they continue to be abused and oppressed), and as aboriginal peoples continue to bring challenges to attempt to rectify this untenable situation. Thus, the first part of this paper also contains a critique of the Canadian-made law and how it should have developed, and should develop in the future.

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Aboriginal rights in relation to water including title to waterbeds, and other rights that depend on access to and use of water, have been analysed by Canadian courts within the context of the English common law of water -- since aboriginal rights were, until 1982, considered as part of the English common law. Thus, this part of the paper outlines how English common law in respect of water developed and was applied in Ontario.

With the enactment of s. 35 of the Constitution, aboriginal and treaty rights can no longer be extinguished by federal or provincial governments, since constitutional rights are the supreme law of the land to which other laws must adhere. Constitutional rights must be defined in a liberal, generous and purposive way , capable of growth according to developing circumstances, knowledge and needs (the "living tree" concept of the constitution ).

The affirmation of "existing" rights in s. 35 means those rights that were not extinguished prior to 1982 (when s. 35 came into force). Only the federal government (and not provincial governments) could have validly extinguished any aboriginal and treaty rights prior to 1982, and neither government can extinguish rights now. The federal government must prove a clear and plain intention to extinguish such rights, before courts will find they have been extinguished. Regulation of the practice that comprises the right is not enough to show extinguishment, and in fact, continuing regulation of the exercise of the right is strong evidence that the right exists.

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The third part of the paper contains a critical analysis of the law of water rights of aboriginal peoples, bringing together the first and second parts of the paper. It is shown here that because Canadian law in respect of aboriginal and treaty rights has often been based on misunderstandings, including of the relationship between the English common law of water and the English common law in respect of aboriginal peoples and their rights, water rights of aboriginal peoples are in fact greater than is currently recognized. If facts and law are properly understood and applied, aboriginal peoples have significant rights in respect of the Great Lake Basin.

Following is an outline of the arguments as to how the law should properly be understood, and following each argument, a synopsis of how the law is actually understood or applied at present.

How aboriginal rights pertaining to water should be regarded:

• The so-called assertion of British sovereignty over aboriginal peoples (i.e.; the right to govern aboriginal peoples on their lands, exercising their rights) was not valid as there was no basis in law at the time for this. Only British title to certain aboriginal lands was acquired through treaties, and almost none of these lands were lakebeds of the Great Lakes Thus, in all respects relating to unsurrendered or reserved title lands, and in respect of all rights of aboriginal peoples to live by their own cultures and to govern themselves in so doing (including in regard to fishing, hunting, and all other harvesting), neither the federal nor provincial governments have any right to govern.
  This is not how Canadian law currently perceives the situation, and thus having this perspective accepted in Canadian law (if it ever were to be) will take time and effort. In the interim, the fact that this argument has merit could be used in negotiating with governments about developing recognition of rights.
  
  
• If British sovereignty can be perceived as legitimately asserted in respect of lands held under aboriginal title, allowing some degree of governance and regulation of these lands by Canadian governments, then Canadian governments and courts today must apply the law and facts as they existed when such title was considered to have been recognized by English common law. To do anything else is a violation of English law. British imperial law itself regarded aboriginal peoples as governing themselves (in their own territories exercising their own rights) in distinct and separate units. They were not subject to the same British colonial (or "municipal" ) law as was applied to settlers. Further, British colonial law adapted to the unique North American (later, Canadian) situation under the "particular or local custom" rule, which would and should recognize these unique aboriginal rights as defined from the aboriginal perspective. Where aboriginal peoples considered themselves to have held title to the waterbed, or exclusive rights to the waters, and this title can be proved to have not been surrendered or extinguished (including on reserves), then it exists today.
  Canadian courts appear to accept that aboriginal title does include title to waterbeds of non-navigable waters where historic exclusive occupancy of the waters can be proved, but have been reluctant to accept it existed in non-tidal navigable waters (and even more so, in tidal waters) after introduction of English common law. This reluctance is not based on a proper understanding of the law at the time, and should be corrected.
  
  
• All aboriginal title lands (including reserves) carry paramount rights (akin to US doctrine) to use of water feeding and bordering the lands. These are akin to but greater than riparian rights (which are shared rights "reduced" by the rights of other riparian owners), where aboriginal uses are paramount over (not reduced by) the interests of non-aboriginal users of the water. Even though aboriginal title was perceived as part of the British/Canadian common law, and riparian rights were also a part of this law, given the purpose of s. 35 of the Constitution to reconcile the assertion of British sovereignty with the fact of pre-existing self-governing aboriginal societies, these rights should be considered paramount. Only the narrowest (and least accurate and least just) interpretation of the law would result in application of bare riparian rights to aboriginal title and reserve lands bordering a shoreline. Riparian rights themselves can lead to significant power to prevent the taking and diverting of water by others.
  Canadian law currently favours the narrowest interpretation for reserve lands (i.e.: they come with riparian rights where the reserve extends to the water's edge) but this issue is evolving and if law is properly applied, should evolve toward paramount rights to use of water.

How Canadian governments should interact with these rights (once properly defined):

• Section 91(24) of the Constitution provides the federal government with exclusive jurisdiction to govern in respect of "Indians, and lands reserved for Indians" (two separate heads of authority). Section 88 of the Indian Act (a federal law) gives certain provincial laws the force of federal law if they meet certain criteria. In this way, these provincial laws can apply to affect rights held by aboriginal people - otherwise, they could not.
  
  
• Section 88 of the Indian Act does not give provincial law federal force so as to make it apply to "lands reserved for Indians". Only the federal government may regulate or infringe rights in respect of Indian reserve lands and unsurrendered aboriginal title lands. Water is an aspect of "land", and thus rights to the waterbed and rights akin to riparian rights are land or "property" rights. Thus, only the federal government may regulate in respect of such Indian water rights, on reserves, and on unsurrendered aboriginal title lands. Provincial governments may not so regulate and any provincial regulation that purports to limit or affect such water rights should be ultra vires the province as unconstitutional.
  It is unsettled in Canadian law whether s. 88 of the Indian Act gives federal force to provincial law (thus allowing such law to apply) in respect of aboriginal title and reserve lands. Rights to water and waterbeds are generally considered land or property rights, but Canadian law has barely dealt with the issue of such rights as held by aboriginal peoples, nor has it dealt much with which level of Canadian government can regulate in respect of such water rights.
  
  
• In respect of "Indians" (aboriginal peoples), only the federal government can regulate or infringe treaty rights, because s. 88 of the Indian Act does not give federal force to provincial laws that are inconsistent with treaty rights. Further, s. 88 of the Indian Act is unconstitutional to the extent it allows provincial governments to regulate aboriginal rights, or infringe on these where such infringement would impair the status or capacity of aboriginal peoples as peoples. These rights are at the very core of "Indianness", and thus within the exclusive jurisdiction of the federal government pursuant to s. 91(24) of the Constitution.
  The law seems more weighted toward prohibiting any provincial infringement of any treaty right, except in the prairie provinces which are in a unique situation given the Natural Resources Transfer Act as noted below. As for any ability of provincial governments to infringe aboriginal rights, courts have held this is permissible, but the Supreme Court of Canada has not yet considered all the implications of this, especially in regard to s. 88. A case to be argued before the Supreme Court of Canada in the near future, Morris, might provide some clarity once decided.
  
  
• Any government that intends to infringe aboriginal and treaty rights must justify the infringement. Whether or not only the federal government is permitted to so infringe, the test for justifying infringement (by any government) of rights in relation to water must be very strict. Water feeds all aspects of life (the lifeblood of Mother Earth), and of "society" or social organization (navigation or mobility, health, culture, economy, and the ability to self-govern in respect of these). Rights to a quantity and quality of water sufficient to sustain life and society are prerequisite to and necessary for virtually all other aboriginal rights and treaty rights. Given this, rights to water and rights directly reliant on water should be prioritized over any other private rights (and, possibly, co-exist with certain public rights, such as to navigation).
  Since the law in respect of water rights is inconsistent and in flux, so too is the law in regard to justifying infringement of such rights. Again, if such law properly applies facts and properly respects the nature of aboriginal rights, "reconciling" requires a very high threshold for justification.

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The final part of the paper explores how the Annex Regime could affect aboriginal and treaty rights in respect of or that depend on water.

The conclusion is reached that since these "water rights" are properly understood as significant and profound, aboriginal people must have a direct decision-making voice in any water regime governing the Great Lakes. In some cases, arguably they must have a veto (their consent must be required before any actions are taken that could affect such rights). Further, both since these aboriginal rights are so significant, and since little is known about current impacts on the Great Lakes and needs of the Lakes to be viable (e.g.; how much water is being taken now, what harm is being done now, and just how much further we can go before impacts become permanent and too threatening to economic, cultural and physical well-being or survival), it is recommended here that that no further larger-scale water withdrawals or diversions should be permitted. The risk to serious impairment of aboriginal rights and cultural survival as peoples is too great otherwise.

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For more information contact:
Walpole Island Heritage Centre
Phone: (519) 627 - 1475
Fax: (519) 627 - 1530