Customary Law - WET 219 - Applied Water Law - Indigenous Rights

First Nations Customary Law

“Our traditional laws are not dead. They are bruised and battered but alive within the hearts and minds of the indigenous peoples across our lands. Our elders hold these laws within their hearts for us. We have only to reach out and live the laws. We do not need the sanction of the nonindigenous world to implement our laws. These laws are given to us by the Creator to use. We are going to begin by using them as they were intended. It is our obligation to the children yet unborn.”

Sharon Venne Saulteau First Nation, Fort St. John, British Columbia, 20 November 1992

Royal Commission on Aboriginal peoples, vol.2, chapter 3, s. 1.2 Traditions of Governance,

Much of the interpretation of First Nations Rights, including their rights with regard to the use of the natural resources found in their traditional territory (including water) is found in the legal doctrine of customary law.
- 1st Nations government, legal customs, and cultural traditions of have been recognized as a source of applicable legal principles both in pre-Confederation Canadian statutes, since 1850, and by the Canadian Courts since 1867.

The Canadian legal landscape relating to customary water laws has been in transition since Indigenous rights were 'entrenched' in the Canadian Constitution Act, 1982. Court cases will continue to be brought before Canada's courts in attempts to clarify the nature of customary water laws and First Nations Peoples.

Customary law's applicability to water-related issues is but one part of the broader issue of settlement of outstanding land claims, primarily focused on establishing aboriginal title to land and its inherent natural resources (of which water is a component), legal scholars have referred to 'customary water rights' as the ‘sleeping giant’ that will impact future settlements between Indigenous Nations and Canada.

Recommended Reading

Oral narratives, customary laws and indigenous water rights in Canada - The Ph.D Disseration of Dr. Marlow Sam, UBCO
Prior to the European discovery and colonization of North America the Indigenous peoples managed their natural environment through a management regime that was guided by traditional governance systems that were based within the oral tradition. Since the assertion of European authority the water rights of indigenous peoples were subsequently diminished and infringed upon by colonial policies that derived from the doctrine of discovery. In the contemporary era the Supreme Court of Canada has determined that the priority water rights of Canada's aboriginal peoples must be proven under the premise of European concepts of land ownership and entitlement. It is my intent to use the oral narratives of the Syilx (Okanagan) to provide evidence of the ancient customary laws and practices that guided the management practices over this natural resource. To substantiate the existence of the customary laws of indigenous peoples I use primary research gathered from Syilx (Okanagan) and Secwepemc (Shuswap) informants. Previously published and unpublished oral narratives that were recorded and transcribed during the twenty-first century will also be used in this inquiry. Prior to the arrival of Europeans a phenomenon of globalization greatly influenced the development of colonial policies and laws that in turn impacted modern day Supreme Court decisions in both the United States and Canada. An analysis of the manner in which the Supreme Court decisions infringed upon the human and aboriginal right to water will be used to determine both the weaknesses and strengths of the priority rights of water that have been held in perpetuity by aboriginal peoples within Indigenous North America.
Customary Water Laws and Practices in Canada
In Canada, the legal landscape of customary water laws has been shifting ever since Aboriginal rights were entrenched in the Constitution in 1982. To clarify the nature and scope of these constitutionally protected rights, a number of significant cases have been decided and continue to be brought before the courts. Customary water laws are also evolving due to the ongoing settlement of land claims. Many cases that have made their way through the courts concentrate on establishing aboriginal title to land (which would include a water component); clarifying aboriginal rights to hunt, fish and trap and engage in other traditional activities; and testing the boundaries of historic and modern treaties. As the strategic importance of water grows and as even a water-rich country such as
Canada recognizes that water scarcities will increase, it is likely that this emerging body of law will be the subject of much legal scrutiny in the coming years.
Syilx Nation Siwɬkʷ (Water) Declaration
Secwepemc Sacred Water Declaration