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Canada Two First Nations reach agreements with Alberta on access to safe water

Two First Nations bands have reached agreements with Alberta to acquire reliable sources of safe drinking water, ending long-running disputes.

The first agreement, which runs until 2051, will see a regional water transmission line that currently serves Ponoka, Lacombe and other communities extended to the border of the Ermineskin Cree Nation reserve, bringing water from the Red Deer River. The reserve sits in the middle of the Battle River watershed, a drought-prone region south of Edmonton. Ermineskin’s town site has a small water treatment plant; rural homes are served by truck-filled cisterns or wells. Local groundwater isn’t sufficient to meet the community’s needs, and its quality has deteriorated considerably over time.

Carol Wildcat, the Ermineskin Tribe’s consultation co-ordinator, said residents with skin conditions suffer greatly, as do diabetics who are at risk of infections. The community’s water challenges had obstructed efforts to build community centres and attract large employers. She predicted the new water source will improve residents’ health and facilitate economic development.

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“Now I have an opportunity to have safe reliable water being brought here, so my grandkids can have clean water to bathe in,” she said. “We can just run the tap, I don’t have to continually go to Costco and buy boxes and boxes of water.”

Separately, Kainai First Nation (also known as the Blood Tribe) reached an agreement with Alberta to extract 3.75 million cubic metres of untreated water annually from the St. Mary River Reservoir for irrigation and household use. One of the largest First Nations in Canada, the Blood Tribe has a registered population greater than 12,000. That agreement will run until 2048; the Blood Tribe declined to comment.

The two agreements avert a showdown between Alberta and the First Nations over water rights, and may offer a model for resolving similar disputes.

Showdown over water looms for Alberta reserves

For more than a century, Alberta has assigned water rights based on a system known as First-In-Time, First-In-Right. FITFIR grants seniority based on each licence’s date of issuance. Older licences entitle holders to receive their entire allotment before junior licensees get a drop.

Many reserves in Alberta never acquired licences – a situation that was overlooked until recent decades when the province stepped up efforts to regulate watersheds that were becoming increasingly stressed by growing populations, climate change and other factors. When closing watersheds to new licences, the government insisted First Nations accept junior licences.

Some First Nations balked at accepting licences that might not provide any water during droughts. They argued Alberta lacked jurisdiction over water on their lands. Alberta insisted its jurisdiction was absolute, and that any rights First Nations may have once possessed had been extinguished decades ago.

Litigating that dispute carried significant risks for both sides. In October, 2016, the Ermineskin, Kainai and Samson bands sent a joint letter to Premier Rachel Notley proposing the parties “find a mutually acceptable solution.” Ms. Notley agreed.

Ms. Wildcat said the tone quickly changed after Shannon Phillips, Minister of Environment and Parks, became involved in the negotiations. “The NDP government was really willing to work with us,” she said. “This is probably one of the first times where we were actually doing a government-to-government agreement, just as the treaty had promised. We just started from scratch.”

The new agreements explicitly set aside the thorny questions over jurisdiction, allocating set volumes from nearby watersheds to the reserves. In a statement, Alberta’s Environment and Parks department said the agreements “represent a successful and collaborative approach to working with Indigenous communities to improve water access on reserves.”

But the water agreements represent only one milestone in the two communities’ efforts to secure safe drinking water. Next, engineering work must begin to extend the North Red Deer River Water Services Commission pipeline to Ermineskin; that could take several years. Meanwhile, both communities must work with the federal government to upgrade water infrastructure within their communities to distribute water to where it’s needed.

Ermineskin, the Blood Tribe and two other First Nations sued the federal government in 2014, claiming Canada breached its fiduciary duties and other responsibilities owed to them “by creating and sustaining unsafe drinking water conditions on the Plaintiffs’ reserves.” In its response, the federal government “denies it has any obligation or duty to the Plaintiffs, as alleged or at all.” That lawsuit remains outstanding.

“We still have to figure out logistics in terms of how we’re getting the pipes done and where it’s going to go,” Ms. Wildcat said. “I’m hoping within four years we’ll have everyone hooked up.”

In a statement, Indigenous Services Canada said it has set aside funding for a feasibility study to address Ermineskin’s water and wastewater requirements, including the construction of a regional water line.

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Lawyer Clayton Leonard, who represents the two First Nations, said the Ermineskin agreement “is now really the new precedent” for settling similar water disputes. “And none of the horrifically insulting, morally questionable terms that were in the past agreements – the approach that Alberta took for decades – are there any more.”

David Percy, a law professor at the University of Alberta, said the new arrangement with Ermineskin, combined with earlier settlements involving the Piikani and Siksika Nations, establishes a pattern of Alberta and First Nations working creatively around the issue of assigning water rights to First Nations in a FITFIR system. “It’s extremely difficult to fit Indigenous rights into the classic mould without disrupting 120 years of water allocation,” he said. “It’s in everyone’s interests to settle this down.”

Mr. Percy said it’s unlikely future Alberta governments will revert to the former negotiating position. “I think it would be very difficult to justify treating other First Nations differently, whatever stripe of government is in power,” he said.

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