Nishnawbe-Aski Nation defends water rights

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Treaty 9 First Nations in Ontario may be in a unique position to negotiate control over more of their natural resources as a result of an administrative oversight when the 1905-06 treaty was signed.

Nishnawbe-Aski Nation's Grand Chief Charles Fox has been reported as saying there is nothing to indicate that Treaty 9 First Nations ever gave up water rights under the treaty.

At the Wabun Tribal Council office in Timmins, Ont., executive director Shawn Batise stated that, while water and headlands were included in Ontario treaties prior to Treaty 9, as well as in the 1929-30 adhesions to Treaty 9 and in subsequent treaties, First Nations never gave up water rights with Treaty 9 was actually signed.

According to Jason Batise, Wabun Tribal Council's economic development officer, "Treaty 9 is contrary to every other treaty in the country where they do surrender (water) rights."

The 52 chiefs of Nishnawbe-Aski put the matter on the agenda of a regularly scheduled caucus meeting held in Timmins Jan. 30 to Feb. 1. A majority of the chiefs were in attendance when they unanimously passed a resolution to take the federal and provincial governments to court over water rights, Shawn Batise said.

"The treat commissioners wrote the treaties before they went out to the First Nations," Nishnawbe-Aski Deputy Grand Chief Brian Davey further explained. "When they came to the First Nations, the First Nations never agreed."

While there were provisions in the original treaty setting out rights regarding housing, medical services and education, there was little in regard to the land, he said.

The government discovered the oversight and subsequently added it, and although the affected First Nations never accepted it, "they (the government) stuck to their text. Basically, we were lied to," said Davey.

"They wrote in there that we surrendered all our land, the title was surrendered. They forgot to mention the water," Davey said. He points out that other treaties usually are very specific about water rights-they mention what is in the water, under it, and the air over it, for example.

Davey said the plan now is to get a declaration from the court that Aboriginal title is still intact and to sue for losses which include damages, erosion or anything that was done to the water.

The deputy grand chief points out that this is their leverage in getting governments to negotiate expediently with the First Nations. When rights to land use or title is in quest, potential investors or purchasers back off.

"Many potential buyers will not touch anything where water is in question," Davey said.

Davey says Nishnawbe-Aski lawyer Michael Sherry probably will file notice with the court at the end of February, the statement of claim in April and go to court early in 1997.

"We're hoping government will see the light," Davey concluded. "They stand to lose millions of dollars."