Aboriginal Water Rights, Mining—and the Law & Order Theme Song

Written By Sharon G.K. Singh

Normally reserved for major league baseball players as they enter the game to take the plate or the mound, lawyers are rarely introduced with walk-up songs. But at the Canadian Aboriginal Minerals Association’s 25th anniversary conference, the strains of Law & Order played as the legal panel on water rights made our way to the stage. We weren't quite the Toronto Blue Jays striding onto the field, but to us our discussion topics were no less important.

I moderated the panel, which addressed the Crown and Indigenous peoples’ water rights and how that right is affected during project development. Water is vital to life and regulation must ensure it exists for future generations. Regardless of who controls or regulates water, it must be treated as a public good.

Key takeaways from the panel were:

Mining companies and society must understand the unique perspectives some Indigenous peoples ‎have regarding water. Some communities see water as a spiritual resource or as a relative. Having starkly different views on the value and meaning of water can create different starting points in negotiations.

Businesses and governments must understand what rights Indigenous peoples may have to water. The spectrum of water rights can range from using water for sustenance, to control of water for uses such as exclusive fishing rights, to govern water resources.

To date much of the discussion regarding section 35 of the Constitution Act, 1982 aboriginal rights has focused on land based or fishing rights. As governments seek to regulate cumulative impacts, amend water governance models or otherwise regulate water use, we can expect to see Indigenous communities insist upon their water rights to be protected and considered more comprehensively.

Learn more about CAMA and its mission to increase the understanding of the minerals industry, Aboriginal mining and Aboriginal communities' paramount interests in lands and resources.

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