2. Mihimihi:
Ko Turtle Island te waka
Ko Klin Se Za te maunga
Ko Peace, Muskwa, Liard te awa
Ko Eh-Cho Dene and Dunne-Za te Iwi
Ko Sharleen Wildeman and Roland Wilson te rangatira
Ko whenua te marae
Ko Caleb Zabdi Behn ahau
3.
4. Outline:
My Thesis
Water Management as
‘Reconciliation’
Te Awa Tupua
Klin Se Za (Twin Sisters)
Legal Evolution of Colonization
Theories of legal empowerment
Next Steps for Keepers Of The
Water
4
5. Thesis:
Water is the lifeblood.
Water can sustain both
living and non-living
entities.
“Reconciliation” is not
being achieved. Klin Se Za (Twin Sisters)
Water’s great power is
that it is both the
source of life and the
pathway to life.
5
6.
7.
8.
9. Significance of Te Awa Tupua?
Symbolic:
Kaitiaki
Mana
Reconciliation under Te Tiriti (Treaty of Waitangi)
Practical:
Legal ‘standing’ for the River.
Legal Evolution.
Adaptive Management.
10. Colonial/Early Suppression Era Anger/Recognition Reconciliation Era
National Era (1860's-1950's) Era (1950's-1980's) (1990s-Present)
(Contact-1860's) •A 'Century of Twilight' •Fight for Recognition •Co-management
•Political Trust •Extermination •Maori Renaissance •Waitangi Tribunal/OTS
•Nation-to-Nation •Assimilation •S. 35 Canadian •Modern Treaties
Treaties Constitution
Legal Evolution of Indigenous/Settler Relations
Steady movement towards “Reconciliation” as a principle:
Consistent erosion of the land/water resources:
11. What is “Reconciliation”?
“…the central concern of ”…a pragmatic attempt
reconciliation was with at the settlment of
providing non- historic grievances to
combative means by thereby improve the
which recognized ‘certainty of property
entities might engage arrangements’ and
with and live alongside establish ‘consensual
settler-society more formal relationships’
harmoniously…” legitimating the settler
P.G. McHugh Aboriginal Societies and the Common Law, A History of
States.”
Sovereignty, Status and Self-determination (OUP, Oxford, 2004) at 608.
Kirsty Gover Tribal Constitutionalism: States, Tribes, and the Governance of
Membership (OUP, Oxford, 2010) 159.
12. What could ‘Reconciliation’ be?
Legal evolution for powerless groups:
1. Id. a need for change
2. Create a new ethical imperative
3. New ethic+new interest groups=political pressure
4. Progressive theorists counter status-quo
arguments
5. Strategic litigation+economic/political
pressure=new laws
6. Pushback from those impacted
7. Reformers go international
13. Aboriginal Water Rights/Responsibilities?
Water Rights
1. Moderate living
2. Remain in traditional communities
3. Preserve indigenous culture.
‘Reasonably Incidental’ Rights to Water
Title to Water
Implied Rights to Water
Winters Doctrine
Treaty Rights to Water
Inherent Water Right for Self Government
1. Innate
2. Necessary to implement other rights
Right to adequate levels of Environmental Protection
14. Critical next steps:
Articulate a new ethic Public Health
surrounding water
‘Reconciliation’ UNDRIP/Human Rights
Engage a larger audience Direct Action
Energy-Water Nexus
Reconciliation-Water Solidarity with other
Nexus? Indigenous Peoples
Create new ideas Maori
Return on Energy and Mexico
Water Invested
Legal Personhood for Water Non-legal Advocacy:
(balance with corporate http://vimeo.com/349
personhood?)
38207
15. Questions/Actions for Discussion:
1. Identify areas of legal 1. Make a plan that aligns
vulnerability in major the Keepers of the Water:
developments. Legal Activism/test case
litigation
2. Identify opportunities for
Academia
introducing a ‘new ethic’
Direct Action
on water.
Education
3. Identify new language to Economic Development
connect the issues: First Nations
1. ‘Canada’s Carbon Governments
Corridor’ Others!
Turtle Island carries me.My mountain is Klin Se ZaThe Peace, Muskwa and Liard are my Rivers.My Nations are the Eh-Cho Dene and Dunne-ZaSharleenWildeman and Roland Wilson are my Chiefs.The Land is my home I am Caleb ZabdiBehn
Water is the lifeblood. Without the lifeblood there is no life.Water does not merely sustain physical entities. It sustains non-physical processes and relationships as well.The Courts have consistently stated that “reconciliation” is the goal of aboriginal jurisprudence. THEREFORE:Reconciliation can be created and sustained via the process of recognizing and implementing a shared vision of water management. It is through the process of shared ware management that the best things in our federalist system are brought to light. We are Treaty 8 nations. We agreed to share with the Crown in the spirit of peace and friendship. As a result our relationship originally existed premised on the notion of sharing and mutual ability…This relationship has steadily been eroded by ongoing impacts and issues…. All of these issues relate to water in some way. Water’s great power is that it is both the source of life and the pathway to life. Therefore if we can integrate and improve the status of water within our system we are going towards real reconciliation.
Anderson, referencing political economy theories points out that the pattern by which the powerless gain legal recognition and protection follows a ‘remarkably consistent path’ and the stages of reform are:The need for protection of the powerless group arises when conditions begin to significantly deteriorate due to the economic pressures of market industrialization. Pressure for reform grows as a new ethical/moral imperative develops.This new ethical imperative must be coupled with the formation of an adequate interest group structure to achieve effective political pressure.Progressive theorists assist this interest group structure in its engagement with the dominant paradigm by articulating language and philosophy to counter free-market based arguments.Changes in the economic equation and impact litigation add pressure to the calls for reform. Critical at this point is the use of the economic forces that will benefit from the reform legislation to assist with the interest group structure that has been pushing for reform.Reformers must deal with the backlash from negatively impacted economic interests threatened by change. (weakening legislation, inadequate enforcement etc.)Reformers must also be prepared to engage at an international level as foreign competition and the exporting of problems continues.Ibid. 8-9.