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WET 219 - Applied Water Law - Indigenous Rights

1st 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.

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.

While customary water is but one part of the broader issue of settlement of outstanding land claims, primarily focused on establishing aboriginal title to land (which would include a water component), legal scholars have referred to 'customary water rights' as the ‘sleeping giant’ of involved in the eventual settlement of First Nations land claims in western and northern Canada.  

Recommended Reading - Assembly of First Nations - National Water Declaration

Recommended Reading

Nowlan, L. (n.d.). Customary water laws and practices in Canada. http://www.fao.org/fileadmin/templates/legal/docs/CaseStudy_Canada.pdf

 

Sam, M. G. (2013). Oral narratives, customary laws and indigenous water rights in Canada. [Doctoral dissertation, UBC]. https://open.library.ubc.ca/cIRcle/collections/ubctheses/24/items/1.0074307#downloadfiles

 

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