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Indigenous Legal Systems to Protect Water

Updated: Apr 25, 2023

In 2007, the UN General Assembly adopted the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) after 2 decades of development and negotiations. It affirms the collective rights of Indigenous nations or peoples and the individual rights of Indigenous persons. It serves as a framework for states, such as Canada, to respect and support the range of historical, economic, social, cultural, and spiritual rights and responsibilities of Indigenous peoples.

In 2010, Canada adopted this Declaration after several years of refusal and international pressure. Once signed, the government of the day still called it an “aspirational document”. As of now, it has not been enshrined into Canadian law.

Much of the Canadian focus has been about the right for Free, Prior, and Informed Consent (FPIC) with critics convinced this gives Indigenous peoples the right to veto Canadian extraction and infrastructure projects. Indigenous groups deny this assumption and re-affirm their right to be meaningfully included in decision making as well as their inherent sovereignty.

But what else UNDRIP offer when looking at water issues and the work the CSJ is doing for its Blue Communities project?

In a recent video with University of Ottawa law professor Aimée Craft (who is Anishinaabe-Métis), she describes how UNDRIP also recognizes her sacred relationship with water. Talking about nibi (water), Aimée highlights Article 25 of UNDRIP which states:

Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, water and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.

For the Anishinabek nation (whose territory covers much of the Great Lakes and even west to the Winnipeg area) water law never treats water like a resource to be managed, but sacred with four layers of teachings and responsibilities. See Aimée’s short video below:

At the core are stories and instructions honouring Sacred Laws given by the Creator and often embedded in each nation’s creation story. Next are Natural Laws that show how to live in harmony with the elements and all those beings sharing the lands and waters. For instance, the salt to freshwater journey by the salmon nation teach what gift-giving is and the need to respect this ancient return by letting these fish feed all of creation. The third type of law is Customary. These are the lived protocols and agreements made with other peoples and beings. This would include respecting the salmon journey with art and song offerings, ceremony, and gift-giving in return. Only what is needed is taken, all that is taken is shared, and the waters are left as clean as they were found. A little enshrinement made from salmon bones is used to bless the agreement. The fourth and final type of Anishinaabe water law is Human Law. These are the rules made to uphold the lessons from the other three Laws. Humans are not the most central or important in creation.

Unlike Canadian water resource laws, Section 25 of UNDRP recognizes these Indigenous relationships and responsibilities to the lands and waters within their own national and cultural practice. This is not inclusion into Canadian law-making practices, but respect and support for entire legal systems outside of Canadian jurisdiction.

After four years of promises, the Liberal government did not pass Bill C-262 which would have adopted UNDRIP by Canada’s legal system. Led by MP Romeo Saganash, the Bill did not pass the Senate before the end of the last session and before another Federal election this fall.

Let’s seek common ground protecting the sacredness of water by using laws from different nations and traditions. Let’s affirm the sovereignty of Indigenous peoples globally and right here in Canada by learning about and respecting their systems of governance. Let’s ensure the Canadian government fulfils its promises with respect to Indigenous rights.

What do you think? What questions do you have when it comes to water law? How can water law better respect the sacredness of water?

By Paul Baines
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