WATER: OUR MOST PRECIOUS RESOURCE. HOW DO FIRST NATIONS PROTECT OUR RIGHT TO WATER?

As First Nations people we have an aboriginal right to water in the same way we have aboriginal title to land. The Issue of aboriginal right to water remains unresolved in most First Nations territories with the exception of the Nisga’a, Tsawwassen and Maa-nulth who have defined their right to water in their treaties. BC’s Water Act claims that BC is the owner of water and has the right to manage the water.  First Nations have never agreed with that concept.
Water is an extremely important resource and will become even more so in the years ahead. Over 5000 water sources in BC have identified water shortages or restrictions.  (BC’s Water Act Modernization Discussion paper p. 3) Climate Change experts predict that over the next 40 years temperatures will increase from one to five degrees which means either greater drought conditions or greater amounts of water from melting ice caps depending on your location. As well, BC’s population is expected to grow by 1.4 million people over the next 25 years. Water management will be critical over the next 40 plus years and making sure First Nations have a decision making role is more critical than ever.
Did you know that it is estimated that over one million British Columbians rely on groundwater resources for daily use? The Water Act does not address ground water and is not regulated except for the drilling of a well. The government does not have sufficient information about groundwater to ensure its sustainability. Surprisingly, the government does not know how much ground water there is. Currently groundwater is not being protected from depletion or contamination. Not enough is known about the interrelationships between surface and ground water and the effect of taking water from the aquifers within the earth. The proposed new Water Sustainability Act will deal with this huge oversight.
Today, BC’s Water Act is the law that regulates water. It is well over a hundred years old and the province is now in the process of passing a whole new law called the Water Sustainability Act(WSA). The goal is to pass the new Law in 2012. BC began seeking input on the new Act in February of 2010 by releasing a Discussion paper that can be found at  http://livingwatersmart.ca/water-act/  
16 submissions were made from First Nations and 60 First Nations people attended the meetings that were held to discuss the discussion paper. Not a lot considering the importance of the issue. Fortunately, the process is not over and First Nations people/Nations/tribal councils/organizations etc. can still make submissions on what the province is proposing to put into the New Water Sustainability Act. I will review some of the points and issues I see in the policy proposal on BC New Water Sustainability Act that can be found at http://www.livingwatersmart.ca/water-act/docs/wam_wsa-policy-proposal.pdf and I leave it to you to make a submission.
I think the policy proposal has actually made some good points with respect to First Nations. First Nations and others have stressed the following points that are reflected in the policy paper:
·         For greater certainty, the provisions of the new Act are intended to respect aboriginal and treaty rights in a manner consistent with the Constitution Act of Canada.
 
·          Protecting instream flows aligns with First Nations interest in stream health and supports protection of aboriginal rights to hunt and fish. I would suggest that this should also include other aboriginal rights including gathering and spiritual uses.
 
·         Recognition that many First Nations communities rely on groundwater and will be impacted by groundwater regulations.
 
·         The WSA will be flexible to respond to the range of current and potential agreements that may be established between First Nations and the provincial government.
 
·         The use of traditional knowledge will influence water management and help inform decisions. 
How these concepts are used in the proposed Water Sustainability Act will determine how serious the BC Government is about these principles and we need to ensure that they are used appropriately.
The Overall approach in the policy paper is one that I also agree with and I note below where I do not agree or where I have concerns. The policy proposed is to:
1.       Protect Stream Health and Aquatic Environments: This is a good policy direction. Making sure there is enough water in the stream for the environment is important as well as for fish, wildlife and exercising our right to spirituality. Determining the instream flows need to be done with First Nations. There would also be regulations against dumping and large penalties associated with dumping. 
 
2.       Establish Provincial Water Objectives in land, water and other resource use decision making. Finally, the province is looking at water in a more holistic way, that when things happen on the land, they affect the water. Everything is one, everything is connected. Acts like the Forest and Range Practices Act, Oil and Gas Activities Act, etc.are some of those acts. I would like more information on how that would be done and ensure that the Water Sustainability Act had precedence over other Acts is key. 
 
3.       Have Formula based instream flow assessments for all new groundwater and surface water allocation decisions. How much water needs to remain in the stream and how much can be taken out is very important. What concerns me about this proposal is that it is only for “new” groundwater and water allocations. We need to understand what is being taken out in all existing licenses and in the case of ground water what is already being taken, not just NEW allocations. Old allocations that are not being used, or being used in part need to be amended or cancelled, in fact, old licenses should be cancelled and reissued under the new regime.
 
4.       Regulate the use of groundwater: the direction is to only regulate larger amounts of groundwater and BC is asking for input. Should it be 250 to 500 cubic metres per day in unconsolidated aquifers and 100 cubic metres per day for wells in bedrock aquifers. Input from you is required. It would seem to me that we need to know how much water is being used and would be better if all ground water is licensed and regulated so we have that knowledge.
 
5.       Water During Scarcity: The question of how water should be regulated during scarcity has been a hot topic during these discussions. The main objective would be to get everyone to be more efficient and conserve using incentives and economic measures.  After that, there would be proportional reductions based on water supply forecasts. Proportional reductions would be established for different sectors as appropriate. If proportional reduction is not enough, then regulate use of water by PRIORITY DATE. Deviate from priority date in exception circumstances to importance of use. Importance of use will be food production, drinking water and ecosystem protection. 
 
My concerns with this policy proposal relates to first in time, first in right as part of the ranking system. I have never understood why the person with the first license should have priority over every other person/corporation/government that got a license after them. When I was negotiating treaties, the government wanted to give us an allocation of water and allow every license ahead of us to have priority over us. Aboriginal right is second only to conservation. No one or nothing gets ahead of our right. I have been surprised that existing treaties allowed this as it goes against our aboriginal right. I think that proportional reduction is a good first step. And after that, priority use. I agree that drinking water, food production and ecosystem protections are most important. But we also need to be part of that conversation as to what comes next and even how drinking water, water for agriculture and ecosystem protection are determined and in what proportion and how proportional reduction is done in different sector. I also think that we need to ensure that agricultural water license continues to be used for agriculture and cannot be sold to other businesses. I know this has become an issue in California where it was more lucrative for the farmer to sell his water than to actually farm. These kinds of abuses should not be able to occur. This will become a very emotional issue when there is not enough water for everyone so it is good to be thinking now about how that would work. This is an area that your thoughts are important.
 
6.       Water reserves for agriculture: The proposed policy direction for this leaves me with many questions. There are to be agricultural water reserves to reserve water for an irrigation system or project. Cancelled water license can be “banked” in the reserve for future uses within the agricultural sector. How do you reserve and "bank" water? Water flows through and is gone, you cannot then reallocate future water supplies with the added burden or a previous unused portion. This needs to be clarified and better explained. Also, among the agricultural reserve there can be transfers or extension of rights amongst users. Who will regulate that and ensure that water is being used as it should. The policy goes on to say that there will be agricultural water reserves for Agriculture land reserve (ALR). But what if no one is farming ALR and the water is not used. I have no problems with making sure there is enough water for the growing of food, but it needs to be used for that purpose and if not, reallocated where it is needed. I would also question what food means? Does it include vineyards for wine? Growing ginseng or hops or other herbs, etc? How do we define food and agricultural uses. This needs to be clear.
 
7.       Collaborative mechanisms and participation in activities and decision process will be enabled: Water governance will include laws, regulations, agencies and institutions, policies and procedures, science, information, community and traditional knowledge. The government wants ultimate accountability for environmental protection. They also want to decide the institutions, system and roles for any delegated responsibilities and the compliance and enforcement framework.   Sounds like they want it all, doesn’t it? Then the policy says that they will expand opportunities for collaboration and involvement in decision process and give a broader role to British Columbians. Not much room when BC keeps all authority and they carefully say “involvement” in decision processes, not making the decision. As far as First Nations are concerned they say the WSA will be flexible to respond to the range of current and potential agreements that may be established between First Nations and the Provincial Governments. This does not address Shared Decision Making as promised in the New Relationship and does not begin to define what could be in those agreements. I think as First Nations we need to respond to this and demand shared decision making. When it comes to our right to water, the preciousness of water, and the future value of water, we need to have a strong voice and be decision makers.
 
I encourage all of you to look over this policy paper, it is not very long and has 7 main principles. Get a submission in to the government with your views by the end of January. Gives you three weeks! Once the Water Sustainability Act gets further down the path and gets to the legislature, there will be no further input from the public, only the members of the Legislature, so now is the opportunity. Take it!  send submissions to livingwatersmart@gov.bc.ca  or see paper for mail, fax or blog comments.     
                

                                                                      

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