Water rights debated

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It would appear that Indian rights to water is an inalienable one which neither the government nor the corporate or private sector has any business of exterminating or laying claim to without the sanction of the Indian people. Such was the message proffered by representatives at the Workshop on Native Water Rights at the University of Saskatoon last week.

Until recently, Aboriginal water rights have not been a central issue, but the significance of this topic is gaining momentum. In light of this fact, the Native Law Centre and College of Law in Saskatoon and the Canadian Institute of Resources Law at the University of Calgary combined forces to sponsor a symposium on Native water rights and other associated topics.

The workshop, attended by about 65 select individuals, is but one of three or four which the centre hosts each year and has done so for the last several years. The delegates consisted of lawyers, chiefs, councillors, environmental people and so on from Montreal to Vancouver and the NWT.

Of particular interest to the Alberta scene was the situation on the Peigan Reserve where the Oldman River dam has been the subject of controversy for some time now. The dam, situated within the confines of the reserve, was constructed around 1920 to divert river water to other points downstream and outside of the reserve for non-Indian recreational, agricultural, and other uses.

Leroy Little Bear, the director of Native Studies at the University of Lethbridge and Peigan Elder Albert Yellowhorn addressed the conference on the significance of water and water rights in legal, physical, social and spiritual terms.

Yellowhorn maintains that the river which flows through the reserve is the lawful property of its residents. He is very firm in his claim that, although Indian lands were surrendered, it did not include the water systems nor the water beds which traverse the reserve.

This contention was also supported by other speakers at the sessions such as Chief Lindsay Cyr from the Pasqua Reserve, Saskatchewan, Henry Lickers from St. Regis, Ontario, and John Echohawk of Colorado, who is also the director of the Native American Indian Rights Fund.

Little Bear informed "Windspeaker" that one of the major obstacles in taking water rights issues to task is the fact that there have been very few precedent-setting cases in the courts which can serve as models of arguments and judgments rendered by the courts of this country.

While the question of water rights as legislated by provincial and federal law adds to the complexity of water issues, there is the additional factor of superseding jurisdiction, said Little Bear. He argues that laws which govern and control water rights are subsequent to and, therefore, inferior to the application of Indians exercising their Aboriginal rights.

A featured speaker knowledgeable in all aspects of water rights was John Echohawk, a Pawnee from Boulder, Colorado, whose primary interests lie in the areas of Indian sovereignty and resources.

Echohawk provided a concise overview of American Indian water issues, making special reference to the 1908 Winters case which supports that Indian water rights are reserved and protected from outside interests. In 1963, the Winter doctrine was affirmed by the Supreme Court of Arizona which corroborated that, "we're entitled to water for present and future needs," he said. For 10 years, he added, they were involved in legal battles about who had the right to adjudicate water rights on Indian lands.

Often "we're dealing with a lot of powerful and wealthy interests," Echohawk explained. Sometime, he suggested, it is better to try to negotiate and come to an agreement out of court, although that is not always possible. If the opposing forces are unwilling to negotiate, he said, "don't be afraid to litigate!"

Litigation, he continued, is sometimes a good lever to apply in order to put yourself in a better and more favorable position for an out-of-court setlement, said Echohawk, but, by and large, "negotiation is now preferred if it produces what we want."

It is a model of action which Echohawk feels should be considered by Canadian Indians whenever there is a water issue at stake. In certain instances where businesses have an interest in the water, he advised, it may be better to sit at the table and educate them about the Indian position. He told of how they converted a number of western businesses that had banded together and attempted to introduce a bill to Congress which, if it were passed, would have removed Indian water rights. Through dialogue,

said Echohawk, "they better understood our side and withdrew their legislation."

In another instance, even state governors took the Aboriginal side and President Reagan endorsed an Indian rights water settlement, he said, as he stressed the importance of drawing others to your side.

In another presentation, Dan Ryan who serves as executive director for the Gitskan - Wet'Suwet'en Tribal Council at Hazelton, B.C., told of the ongoing battles his band has with the province regarding the right to sell, trade and fish their waterways. Part of the problem he says, rests with the fact that the 22,000 square miles of Indian territory contains a number of the major river systems such as the Skeena, Babine, Nass and other major rivers.

Ryan says the Gitskan "try to take advance of Anglo laws and legalities" and are arguing that "we have rights which have been denied for 115 years under Anglo law.

"Commercial and industrial interests have a stake as well as the province..." said Ryan, who hints that this gives rise to judgments favoring non-Indian interests and which are, therefore, frequently to the detriment of Indians.

He went on to charge that "the trust responsibility of government is upsetting where they do not take care of our interests." This allegation was also supported by other Native speakers at the conference who contended that the trust relationship between Idians and the department does not protect nor defend Indian interests as it should.

The administration head for the Dene-Metis Negotiations Secretariat in Yellowknife, Steve Whipp, was another speaker who supported the notion that "water is a non-negotiable item." Whether their reference are to animals, plants, humans or the land itself, "water is part of that concern," he explained.

Northern studies have shown that pollution which affects the fish population was the result of airborne contamination from industries to the south. Due to the delicate balance of nature, said Whipp, "control of the land and its resources is paramount."

Pollutants of the water and air was also a topic addressed by Henry Lickers, an Indian biologists for the St. Regis (Mohawk) Reserve at Cornwall, Ontario which is situated along the banks of the St. Lawrence River about 110 km south and west of Montreal.

Along and near the river are a number of industries which release impurities into the air and water. It is these kinds of emissions that have proven injurious, even fatal, to Indian people. In the early 1970s, it was discovered that the high mercury levels in fish (which is one of the main dietary sources for Indians) had devastating results as dozens upon dozens of Indians became crippled, deformed, even lifeless. In consequence, compensation in the amount of $8 million each to the Grassy Narrows and the Islington Bands was awarded in the fall of 1985.

Similarly, the reserve at Cornwall found that animals, birds and plants were being seriously affected by something. Horses went lame, cattle bones became brittle and the bones of birds didn't produce nearly the amount of calcium they required. Following intensive research, it was discovered that fluoride emissions form the Reynolds plant was the culprit and a lawsuit was filed. Although the Band won the court case, their victory was rather hollow given the small award (under $1 million), said Lickers.

In another case which took thre and one-half years and involved mercuric poisoning from the fish, the outcome was a tragicomedy, said Lickers. Not only did the Band operate their investigation on a shoestring budget but, "because there were no dead bodies and the people looked healthy," the Band could not present a solid case before the courts. What remained unsaid was that the Indians had been abstaining from eating fish. Therefore, the findings showed very low levels of toxins by the time it got to court and, said Lickers, "the government will claim they had things under control when, all along, it was our doing."

As with Ryan, Little Bear and Cyr, Lickers also joined the line-up of complaints to criticize the Canadian government for not honoring its trust relationship with Indians.

In other sessions, the subject of hydro-electric development in Manitoba was addressed and the Honourable Emmett M. Hall, a retired Supreme Court Justice who was the mediator and government representative for the Grassy Narrows multi-million dollar settlement, were speakers on the final day.