Q: I am an environmental consultant working mostly on forestry issues, but also First Nations rights and had a question for you regarding customary rights. Is there any legislation – provincial or national – that addresses customary rights and their relation to water?
A: In British Columbia, the right of access to water is established through a licensing application where the intended use of the water must be outlined – and approved – in order to be granted the use of a water source. Historically this process has been exclusive to the right to surface water but with the incoming Water Sustainability Act access to groundwater will also require a licence. Any individual, organization or business can apply for a water licence, including First Nation communities, as long as the “beneficial use” of water can be demonstrated. The Assembly of First Nations has included the customary right to water in strategic plans but the inclusion appears to be less overt for the provincial government with the incoming Water Sustainability Act.
Customary rights refer to the practice of allocating rights to a resource outside of a formal legal convention, also referred to as traditional law. An element of customary rights is the “due regard provision” which builds on the processes under the Human Rights Act in recognition of internationally adopted Indigenous people’s individual and collective rights.
The Assembly of First Nations believe that water is life and that it is their sacred duty to protect water for today and for future generations:
“It is also our duty to honour and respect the spirituality of water and to respect local protocols. Our women are the keepers of water and they shall be given the opportunity to conduct the ceremonies whenever we gather for water. Our duty is to consider this responsibility as a never ending circle from the tiny droplets of water falling from the skies to the continuation of its journey to the lakes and rivers and the ground where it is stored. We are just a small part of this, like the grain of sand that cleans and filters the water to make it safe. But small as we are, we as humans make the greatest impact through how we treat or mistreat the waters”.
First Nations have Treaty rights over the land and waters in their traditional territories. Actions to further exercise Treaty rights include: examining the basis for legal challenges regarding safe drinking water for First Nations; strategies to assert First Nation water rights with particular emphasis on the application of customary law to water management; the human right to water; the role of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) in protecting First Nations water sources; and the development of institutions to support First Nations’ capacity, such as, a First Nations Water Commission.
In answer to your question, customary rights to water is an area being explored and advocated by First Nations while from the Crown perspective an intent to establish such rights appear less obvious. Under Section 40(1) of the Water Sustainability Act the following is outlined:
“If the final agreement of a treaty first nation describes a water reservation for water use purposes specified in the agreement, other than a power purpose, that British Columbia is required by the final agreement to establish in favour of the treaty first nation, the Lieutenant Governor in Council may establish that water reservation for those purposes”.
Not an explicit gesture of establishing customary rights, but a leaning towards the recognition of First Nation communities historical use of water.
