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A pipe from the small water treatment plant at Ermineskin townsite in Maskwacis, Alberta on Sunday, September 25, 2016. (Amber Bracken for The Globe and Mail)
A pipe from the small water treatment plant at Ermineskin townsite in Maskwacis, Alberta on Sunday, September 25, 2016. (Amber Bracken for The Globe and Mail)

First Nations, Alberta seek compromise on water rights Add to ...

The Government of Alberta and three First Nations will begin talks to resolve a long-standing dispute over ownership and control of water resources on reserves.

Ermineskin Cree Nation, Samson Cree Nation and Kainai First Nation/Blood Tribe delivered a joint letter to Premier Rachel Notley’s office on Thursday requesting a meeting to “find a mutually acceptable solution.

“We are prepared to resist any action taken by the Government of Alberta to take away the water that flows within and under our lands – our survival depends on it,” the letter states. “However, we believe it is possible to find a better way forward based on mutual respect and reconciliation instead of conflict.”

Related: Showdown over water looms for Alberta Reserves

Related: Risky water systems pose health threat to one-third of people on First Nation reserves

In response, Ms. Notley’s office said the Ministers of Environment and Parks and Indigenous Relations would meet the chiefs of the three First Nations.

“Our government has inherited an historical water allocation system that needs to be carefully considered in the modern context,” it said in a statement. “We agree that it should be possible to find a better way forward.”

Clayton Leonard, the lawyer representing the three First Nations, said his clients were “cautiously optimistic” at the government’s response.

As reported in The Globe and Mail earlier this week, the province and some First Nations both claim exclusive rights to govern water use on aboriginal lands. As the government stepped up efforts to regulate stressed river basins in southern Alberta, it stopped issuing water licences in at least one area and pressed First Nations to accept others it made available to them.

But those “junior” licences would not necessarily provide water during droughts, because Alberta’s system assigns priority to licences based on dates of issuance. First Nations balked at the province’s offer, insisting they own and control the water on their lands – and refused to be last in line.

Dorothy First Rider, a councillor with the Blood Tribe, said it would propose First Nations be granted senior water licences recognizing indigenous people’s long tenure in the province.

“Back in 1996, the Government of Alberta amended their Water Act,” she said. “This gave the farmers and ranchers the opportunity to backdate their priority for water use. If Alberta was able to do this for agriculture, for the farmers, then certainly it’s not unreasonable for us to request the same thing.”

David Percy, a professor and water law expert at the University of Alberta, said there should be ample room for the First Nations and the government to reach a negotiated settlement, because each has much to lose by litigating.

A U.S. case from the early 1900s shows why. In Winters v. United States, the U.S. Supreme Court considered water rights on U.S. aboriginal lands. The Fort Belknap Reservation was created in 1888, a time when the U.S. government sought to transform native Americans into agricultural peoples. Within a few decades, the area around the reservation suffered water shortages, leading the tribe to sue non-aboriginal users.

The Supreme Court’s judgment explained that it made no sense to set aside lands for aboriginals to grow crops on if they were denied the water necessary for irrigation. Ambiguities around water rights therefore had to be “resolved from the standpoint of the Indians” – a principle that has governed the water rights of aboriginals ever since.

“There’s a compelling logic in it,” said Prof. Percy. “That argument is equally valid on Prairie reserves in Canada.”

For First Nations, the risk is that Canadian courts will see things differently. “The one case in the Alberta Court of Appeal in which the Winters doctrine was raised, the court suggested it wouldn’t apply in Alberta,” Prof. Percy said. “So they have something to lose.”

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