UBC Theses and Dissertations

UBC Theses Logo

UBC Theses and Dissertations

Capacity to manage water resources : perspective for the Sechelt Nation 1997

You don't seem to have a PDF reader installed, try download the pdf

Item Metadata

Download

Media
ubc_1997-0507.pdf [ 7.15MB ]
ubc_1997-0507.pdf
Metadata
JSON: 1.0076813.json
JSON-LD: 1.0076813+ld.json
RDF/XML (Pretty): 1.0076813.xml
RDF/JSON: 1.0076813+rdf.json
Turtle: 1.0076813+rdf-turtle.txt
N-Triples: 1.0076813+rdf-ntriples.txt
Citation
1.0076813.ris

Full Text

CAPACITY TO MANAGE WATER RESOURCES -Perspective for the Sechelt Nation by SHERRY L. BOUDREAU •Sc., The University of B r i t i s h Columbia, 1992 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF SCIENCE in THE FACULTY OF GRADUATE STUDIES Department of I n t e r d i s c i p l i n a r y Studies: Resource Management Science We accept t h i s thesis as conforming to the required standard THE UNIVERSITY OF BRITISH COLUMBIA November 1997 © Sherry L. Boudreau In presenting this thesis in partial fulfilment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission. . - .,, Department o. ^ O ^ ^ U ^ The University of British Columbia Vancouver, Canada DE-6 (2/88) ABSTRACT The capacity to determine the future of any community depends on the extent of options available. This thesis describes the h i s t o r i c a l development of control over water resources, and how this impacts on the Sechelt Indian Bands (SIB) capacity to determine their future interests. Water management i s a concern for the SIB both in terms of their being able to determine their future development, but also for non-consumptive issues such as maintenance of their fisheries. The construction of management authorities via legislation has curtailed the capacity for the SIB to define the development of Sechelt lands and participate in the management of water. The Sechelt Indian Band Self-Government Act was negotiated by the Sechelt people to expand control over the development of Band lands and resources. This municipal model of self-government, although i t affords some benefits with respect to community access of water, i s constrained by the continuance of licensed priority allocations, overlapping bureaucracies, and the Provinces focus on program (versus area) management. The Provincial the Chapman/Gray Integrated Watershed Management process, was reviewed to ascertain whether, by their participation in this process, the SIB has wrested any control over water and water management. The discussion highlights that: within the process extractive industries are s t i l l a priority, this can be a prohibitively protracted experience, and that the responsibility conferred on the water purveyor does not enable the authority to deliver quality water. This affects the Bands capacity to actualize their community vision. TABLE OF CONTENTS ABSTRACT i i LIST OF FIGURES V LIST OF TABLES v i ACKNOWLEDGEMENTS v i i Chapter 1 RESEARCH FOCUS AND METHODS 1.0 Introduction 1 1.1 Research Question 3 1.2 Objective 5 1.3 Rationale 5 1.4 Research Method 6 1.5 Limitations and Scope 8 1.6 Organisation 9 Chapter 2 DEFINING THE SECHELT AND THEIR RIGHTS TO WATER 2.0 Introduction: The Sechelt and Local Stewardship . . 12 2.1 From Pre- to Post-Colonialism with shishalh Water Management 13 2.1.1 Historical Occupancy 13 2.1.2 Traditional Division of Resources 15 2.1.3 The Flume to the Water Mainline 17 2.2 Laws and Legislations Advantaging Colonialism . . . 22 2.3 Water Appurtenant to Land: Readdressing Aboriginal T i t l e 23 2.3.1 Common Law Effect on Land policy 27 2.3.2 The Modern Treaty Process 29 2.4 Three Sources of Water Rights for Aboriginal Communities 31 2.5 Derogation of Water Rights: Neither a Child of the Fed's or the Province 33 2.5.1 Natives Excluded from Legislative Opportunities . 33 2.5.2 The Indian Act 35 2.6 Quantum, Use, and Priority Depends of Source of Aboriginal Water Right (AWR) 39 2.6.1 Aboriginal T i t l e as Source of AWR 39 2.6.1.1 Rights Interpreted from Crown Reservation of Aboriginal T i t l e 40 2.6.1.2 Water Rights interpreted from Historic Use and Occupation 42 2.6.2 Reserve Establishment via Executive Order: Effective Water Rights 45 2.6.3 Riparian Rights 47 2.7 P o l i t i c a l Perceptions: Affects on Actualizing Rights 48 2.8 Summary 49 Chapter 3 GOVERNING OF WATER: ISSUES OF CONSTRUCTION, OPTIONS FOR THE SIB 3.0 Introduction 53 3.1 Developing a Land Ethic: Lessons from Some Locals . 55 3.2 Overarching Water Management Considerations . . . . 60 3.2.1 Science: The Safety Net for xEconomic' Management 61 i i i 3.2.2 Managing for: The Resource? The Region? Human Needs? 62 3.3 Provincial Governance of Water: The Present System 66 3.3.1 Legislative Derivation of Powers for Water Management 67 3.3.2 MoELP Structure: Capacity for Aboriginal Water Management 68 3.3.3 The Water Act: Limitations a Statute Effects on Management 72 3.4 Local Management: Many Seats of Government . . . . 77 3.4.1 Resource Commodification 78 3.4.2 Waterworks, Waterworks Everywhere 79 3.4.3 Limits to Growth? Apparently Not 82 3.4.4 Incorporating Unforseen Objectives 86 3.4.5 Legal Responsibility versus Authority 89 3.5 Development of SIB's Government Model 90 3.5.1 Legislative Framework for Transfer of Powers . . 91 3.5.2 Servicing Band Lands 94 3.5.3 The Power to Make Changes 96 3.6 Summary 98 Chapter 4 THE CHAPMAN/GRAY INTEGRATED WATERSHED MANAGEMENT PLAN: INCREASING SHI.SHALH'S CAPACITY FOR MANAGEMENT? 4.0 Introduction 102 4.1 The IWMP: A Management Authority 103 4.2 Representation: Limitation from Construction . . 105 4.3 The Process: Defining Scope and Living with Consensus 110 4.3.1 The IWMP: It's NOT the Only Game in Town . . . 110 4.3.2 Consensus: An issue of Time I l l 4.3.3 Consensus: An Issue of Resources 113 4.3.4 Consensus: The Effects of a Closed Door Policy 115 4.4 The Plan: It's Design lessons for the Sechelt Nation 117 4.4.1 Learning to Counter the Erosion of Rights . . . 117 4.4.2 A Licence: Discussion of Rights versus Responsibilities 120 4.5 The Job of Implementation 124 4.5.1 Maintenance of Amenities with Reduced Funds . . 125 4.5.2 Changing and Guiding Land Ethics 126 4.6 Summary 129 Chapter 5 SUMMARY AND FUTURE NEEDS 132 SOURCES CITED 136 APPENDICES Appendix 1 CODING LIST FOR INTERVIEW RESPONDENTS . . 144 Appendix 2 LIST OF THE CHAPMAN AND GRAY INTEGRATED WATERSHED MANAGEMENT PLAN PLANNING TEAM . . 145 iv FIGURES Figure Number Page 1.1 Boundary of Sechelt T r a d i t i o n a l T e r r i t o r y shown i n r e l a t i o n to Vancouver 2 1.2 IWMP Planning Region f o r Chapman and Gray Creeks 10 2.1 The Five t e r r i t o r i a l regions of the shlshalh 16 2.2 Location of the t h i r t y - t h r e e Sechelt Indian Band Lands (SIB Lands) 17 2.3 The Township of Sechelt i n r e l a t i o n to SIB Land #2 20 2.4 Interpretation of Aboriginal Water Rights stemming from Aboriginal T i t l e 44 2.5 Relative s h i f t s i n P o l i t i c a l Perception of Aboriginal T i t l e and Aboriginal Water Rights i n response to Le g i s l a t i o n s and Action 50 3.1 Ministry of Environment, Lands, and Parks Divisions that are mandated some aspect of water management 69 3.2 Municipal Government D i s t r i c t s and E l e c t o r a l Areas on the Sechelt Peninsula 79 3.3 Sunshine Coast Regional D i s t r i c t piped water supply region 80 3.4 Flow Chart of administrative government bodies e f f e c t i n g decisions on SIB Lands 94 3.5 Derivation of power fo r the SIB to adopt P r o v i n c i a l laws. (Referential laws, not anticipatory) 95 4.1 Management Zones for Chapman and Gray Watersheds as defined i n the C/G IWMP. 118 V TABLES Table Number Page 3.1 Federal/Provincial Constitutional derivation of powers for sections having bearing on water 68 3.2 Sections of the Sechelt Act, Enabling Act, and the SIB Constitution which can have bearing on water management for the SIB 97 4.1 Water Management planning in the Province by geographic scope 111 v i ACKNOWLEDGEMENTS My attitude is gratitude...many thanks to: Mom (Edna Boudreau) for her personal sacrifices which helped me to get through the years of schooling, Marian, for always helping me to believe in myself and for being someone whose belief I respected, Les Lavkulich (supervisor), for inspiring me to continue both at the undergraduate and graduate level, Peter, who reminded me that "we've been through too much for you to quit now", and of this I remembered my success belongs to my friends that contributed to it, my failure would be my own, SidQuinn, Jo-ann Archibald, and Calvin Craigan (committee), for taking on one more responsibility in an already busy schedule, My funding sources and the backbone that makes them happen. They are: Native Education Centre, Dofasco Scholarship, Canadian Aboriginal Science and Technology Society (CASTS) Scholarship. First Nations Health Careers (UBC), The people of the First Nations House of Learning for helping me keep perspective on how what 'we' do here relates back to what happens at 'home', RMES students past and present, sharing in your journey helped me to continue with my own, Michael Kew (mentor) whose strong advocacy for First Nations removed my uncertainties and encouraged my growth. v i i 1 Chapter 1 RESEARCH FOCUS AND METHODS 1.0 Introduction "Who i s it? What's this about?" She said as she squinted at the paper in front of her. "It's Sherry. You know, Edna's daughter. Tommy's niece. She's asking us about the water."1 Listening to the elders, I nervously sat waiting as they arranged themselves around the very large table and nodded their greetings to me. Overhearing the explanation of Awho I was', was both reassuring and disconcerting in the same moment. On the one hand there i s the acceptance that I am not altogether an *outsider' as far as the people of the Sechelt Nation are concerned. On the other hand, being a Department of Indian Affairs (DIA) card-carrying member of the Sechelt Nation puts the academic issue of water resources as they pertain to the lives of Aboriginal 2 people in an altogether too personal realm. In this thesis, I, Edna's daughter, Tommy's niece, have conducted a case study of the water management developments by the Federal, Provincial, and Dis t r i c t governing bodies and the Sechelt Nation. But i s this truly about water management? Not really. In fact i t ' s more about people management. People who are striving for constancy, predictability, and some measure of assurance. So with that focus in mind I would like to take you to the people and the 1 Sechelt Indian Band ELDER. Interview. Pretape. Sechelt Band Lands. 16 November 1995. 2 F o r the purposes of t h i s document the terras A b o r i g i n a l , Native, Indian, and F i r s t Nations w i l l be used interchangeably to mean the people l i v i n g i n North America pre-columbian contact, i n c l u d i n g t h e i r descendants. In the same manner non-Native, whites, c o l o n i a l i s t s s h a l l as a group be used interchangeably to represent those not of the f i r s t group. 2 reasons why a study on this topic was conducted. One has only to look at the locations of the major c i t i e s of the world to understand the importance of water in the development of community and culture. The culture of the Sechelt Nation i s associated with a region referred to as the Sechelt Traditional Territory (see Figure 1.1). Figure 1.1 Schematic representation of the Sechelt T r a d i t i o n a l T e r r i t o r y (STT). Smaller inset ( l e f t ) i l l u s t r a t e s proximity of STT to the C i t y of Vancouver and Vancouver Island. Today the larger resident population of the Sechelt Nation l i v e on Sechelt Indian Band Land #2 (SIBL#2) whose main freshwater source i s Chapman Creek. The importance of Chapman Creek to the Peninsula's community water supply i s exemplified by the pressure exerted to i n i t i a t e a Provincial level management process. This exercise in comprehensive management, provided an excellent framework to look at the 3 opportunities for, and barriers against, water management by the Sechelt Indian Band. 1.1 Research Question Several over-arching decisions made in terms of the Acommon good' or larger economic considerations have adversely affected many First Nations communities3. These decisions, and their effects, are often made without or beyond the control of the local community. Many of the pieces of legislation which have been implemented for such considerations (e.g., the Water Act) are a second layer of bureaucracy that the F i r s t Nations must navigate to be involved; the f i r s t layer i s how the various pieces of legislation need to be negotiated through the Indian Act. F i r s t Nations have been seeking redefinition or restructuring of institutions to affect a sh i f t and have more local control over resources. The underlying belief here i s that i t i s the communities of interest that should have the most direct voice in the allocation and use of natural resources 4. It i s for this reason that the members of the Sechelt Nation have opted to remove themselves from that f i r s t layer of bureaucracy, the Indian Act, and now 3 As one example, Kemano I, a h y d r o e l e c t r i c project r e s u l t i n g i n the flo o d i n g of the e n t i r e t r a d i t i o n a l s i t e of the Cheslatta people, was approved by the p r o v i n c i a l government without consultation with the l o c a l community. A report commissioned by lawyer Murrey Rankin on phase two of the project suggested that further development would be merely incremental. Pat Moss, i n First Nation Rights to Water. ( P a c i f i c Business and Law I n s t i t u t e , 1995) 1 5 . 4 7 . 4Owen Furseth & Chris Cocklin, "Regional Perspective on Resource P o l i c y : Implementing Sustainable Management i n New Zealand," Journal of Environmental Planning and Management V.38N.2 ( 1995) : 181 . 4 need to determine how, with their new model of governance, they can alter the legislative constructions of the past century and involve themselves in water management within their territory. This thesis i s therefore a case study of Sechelt governance, the legislative constructions, and management lessons for this region, as they pertain to water. In accord with Yin's (1994) view that a case study should be contemporary and involve a "how" or "why" question, this thesis i s directed towards answering: How has the construction of the existing water management authorities affected the capacity of the Sechelt Nation to actualize self-governance over the people and water within the Sechelt Traditional Territory (STT)? The contemporary aspect of the case study pertains to the general management efforts that have been ongoing within the STT as well as the specific project focused on developing a consensus-based structure of management for the Chapman and Gray Creeks and their watersheds implemented in 1990. For this thesis the phrase "existing water management authorities" includes groups or individuals that presently have the power to give orders or take action over the control and organization of water resources. The aim of this chapter i s to present the reasons for pursuing this line of investigation, the direction the investigation took, and what i s covered in the following chapters. I begin with the Objective and the Rationale, which respectively describe what I had aimed to do, and what possible good reason would there be in doing this. 5 1.2 Objective The specific objective of this research was to examine watershed management development and resultant options that the Sechelt Indian Government District (SIGD) have with respect to water. The Chapman and Gray watersheds are designated as Community Watersheds which in British Columbia are defined by the c r i t e r i a that the water source must have a drainage area no greater than approximately 500 km2, and water use must be licensed by the Water Management Division, Ministry of Environment, Lands and Parks (MoELP), for community water use. The designation and use as a community watershed present management opportunities and limitations that may not be otherwise available. This process was examined to look at what the management authorities are and how Sechelt's governance model be employed to address these issues. 1.3 Rationale With the recent decision on the part of the Provincial government to participate in negotiation of land claims within British Columbia, there has been a development in social circumstance, that i s , a new evolving relationship of provincial citizens with First Nations Communities. In order to enable informed decision-making i t i s important to understand the unfolding role of First Nation people, in this case the Sechelt Indian Band (SIB), in the p o l i t i c a l management of resources. Governance of resources in B.C. f a l l s under the mandate of various Federal and Provincial 6 departments. How this governance is shared and carried out affects the manner to which Fi r s t Nations governance may be incorporated. With this condition in mind this research aims to spell out the various factors influencing the capacity for the Sechelt Indian Government to involve i t s e l f in control and management of water resources. 1.4 Research Method The direction of this research was dictated by five questions, which were: 1) What h i s t o r i c a l processes have lead to the present structure of water d e l i v e r y on the Sunshine Coast? 2) What are the p a r t i c u l a r and p e c u l i a r conditions which are invoked as a r e s u l t of the Sechelt Act? 5 3) What are the current options to water a c q u i s i t i o n f o r t h i s area? ( i e wells, alternate l o c a l stress sources) 4) What broader perspectives need to be i d e n t i f i e d that would impart greater p a r t i c i p a t i o n by the Sechelt Indian Band (SIB) i n the management of water delivery? 5) How could the Sechelt Indian Band achieve (increase?) e f f e c t i v e p a r t i c i p a t o r y management? The material i s presented in an Explanation-building mode for the case study analysis 6. As is the circumstance with this method, the f i n a l explanation i s a result of a series of iterations. The f i r s t three questions above were used to derive a basis for looking at allocative volumes of water for the Sechelt. From this platform interviews were conducted with a commercial water user, the SIB Elders, and representatives of the Sunshine Coast Regional District (SCRD) (i.e., the community water purveyors). It was after these interviews that i t became clear that "how much" was not the question, because for some water bodies the volume is already Aspoken for' or This was how the question was o r i g i n a l l y formed. To be correct the Sechelt Act i s a c t u a l l y the Sechelt Indian Band Self-Government Act. 6Robert K.Yin, Case Study Research: Design and Methods. 2nd Ed. (Thousand Oaks: Sage Publications, Inc., 1994) 110-113. 7 f u l l y recorded. Research that i s relevant to the community was an important driving factor and so the insights gained from these interviews fuelled an exploration of primary material within the SIB water f i l e s , the SCRD environment f i l e s , and a literature review of the foundation of Aboriginal Water rights. Having reviewed these sources the iteration then resulted in an examination of what structures may be barriers to the Sechelt's access to water, which was the basis for the fi n a l five interviews conducted with representatives familiar with infrastructure history and engineering, watershed planning and plan implementation, and water planning and rights from a provincial management perspective. The results of this research are presented in form of a narrative, with the interviews used throughout to describe and defend the fi n a l explanation. To obtain authorization from University of British Columbia's ethics review committee, I stated in the review application that the interviewees would not be named in any document. The interviews are coded in the sequence of their occurrence (e.g., 01, 02), and i f there was more than one person being interviewed at the same time they were given a secondary number (e.g., 02:14). Any reference to these interviews are therefore given as: [Perspective solicited], Interview code (interview number):(number of respondent)7, Tape recorded transcript, Interview by author, [Place of Interview], [DD Month year], [Page number] (as the information No number i f t h e r e was o n l y one p e r s o n p r e s e n t f o r t h i s i n t e r v i e w . R e f e r t o A p p e n d i x 1 t o f i n d t h e i r c o d i n g a s s i g n m e n t . 8 appears on the document transcribed directly from the tape of the interview). The Interviews were of an open-ended nature. Before each interview began I gave the t i t l e of the research proposal which had been: OPTIONS OF MANAGEMENT FOR THE CHAPMAN CREEK WATERSHED - Perspectives for the Sechelt Nation. A Masters thesis proposal. I then also mentioned that I was a member of the SIB. This may have affected the responses given, but I f e l t i t was important to reveal some aspect of my orientation on the topics being discussed. At some level I f e l t that the bias that I might put onto what they would be saying would thus be balanced by their personal censorship of what was being said, despite the assurances of anonymity. 1.5 Limitations and Scope This research and analysis come from a purposive foundation. It has been my goal to go further than simply revisiting the historical processes that have occurred. My goal was to analyze, as a member of the SIB, what has occurred at Sechelt so this information may f a c i l i t a t e steps taken by the Band to address the concerns they have in the management of the natural systems in the Sechelt Traditional Territory (STT). In some ways this i s both about limitations and scope. For example I am not looking at the SCRD or the District of Sechelt's administrative changes, nor whether there i s any purpose to the SIB's government being involved. The SIB Self Government has been c r i t i c i z e d for f a l l i n g short of the goal of constitutional entrenchment objectives for self-government8. The debate regarding this model i s thus only entertained insofar as i t pertains to the options i t provides for water management for the Sechelt Nation. The debate regarding constitutional entrenchment of self government i s l e f t for other works. Bartlett (1988) has written an extensive study on the lit i g i o u s nature of Aboriginal Water Rights. Aboriginal Water Rights are thus an exhaustive subject and so the discussion in this thesis i s presented in a brief overview fashion to provide some insight of the legal and legislative framework. 1.6 Organisation Fi r s t Nations people talk of their history as extending into time immemorial, and so i t i s with that history that this case description begins. Chapter two presents a brief story of the Sechelt Nation and how i t came to have Sechelt Indian Band Land #2 as the focal governance centre, and documents the p o l i t i c a l management of resources both human and water resources. The rest of chapter two i s a directed literature review aimed at presenting how enacted statutes impinge on Aboriginal Management of Water. The legacy of the position to advance colonization i s what the Sechelt Indian Band must grapple with, and chapter two sets the context of that legacy, when looking at the Indian Act, Aboriginal T i t l e and Aboriginal Water Rights. The Sechelt Indian Band Self-Government Act and the 8 D a v i d H y a t t "The S e c h e l t I n d i a n Band S e l f Government A c t " P r e s e n t e d a t t h e N a t i v e R i g h t s S e m i n a r , Osgoode h a l l Law S c h o o l , 1986, i n Sechelt Indian Band Self Government Information Package. S e c h e l t I n d i a n B a n d . U n p u b l i s h e d . 1996. 25 . 10 Sechelt Indian Government District Enabling Act are companion statutes which empower this form of Self- Go vernment. The unique nature of this form of Self- Government i s , in part, the result of a strong working relationship with the surrounding community. Chapter three looks at Sechelt Self-Government, the provincial water management framework, and local water governance so as to project how the SIB might actualize future community plans. Chapter four examines the latest effort towards comprehensive management in the Chapman watershed. The Figure 1. 2 I n t e g r a t e d W a t e r s h e d Management P l a n n i n g r e g i o n f o r Chapman and G r a y C r e e k s r e p r e s e n t e d i n (a) two d i m e n s i o n a l , and ( b ) t h r e e d i m e n s i o n a l f o r m a t . Chapman and Gray Creeks Integrated Watershed Management Plan (C/G IWMP) that was initiated in 1990 has been an ongoing six year process that attempted to develop a consensus-based framework. Figure 1.2, adapted from the May 1996 draft, shows the boundaries of the C/G IWMP. The opportunities and limitations revealed through this process are discussed in terms of what SIB's options for participation are in the management of water resources. Chapter five briefly summarized the discussion in the chapters two, three and four, and reiterates some of the broader implications for the Sechelt Indian Band. In addition, this chapter gives a few recommendations for future research that pertain to, but go beyond, the scope of the material presented here. 12 Chapter 2 DEFINING THE SECHELT AND THEIR RIGHTS TO WATER 2.0 Introduction: The Sechelt and Local Stewardship Local control over local resources i s often the refrain heard from resource managers who are struggling to deal with the concern(s) of their region. More often the issues concern who i s defined as local, and to what extent individuals, groups, or organizations can exert their authority. These questions have become more contentious as many court judgements have gone in favour of Native communities1. That the Native people are members of the local region i s usually not the concern. Rather, opponents of Aboriginal government have stated that their opposition l i e s in the determination of 'managers' based on race, or how much local control i s appropriate. The Brundtland Commission (from the World Commission on Environment and Development in 1987) expressed the importance of Aboriginal communities: T h e s e c o m m u n i t i e s [ s o - c a l l e d i n d i g e n o u s o r t r i b a l p e o p l e s ] a r e t h e r e p o s i t o r i e s o f v a s t a c c u m u l a t i o n s o f t r a d i t i o n a l knowledge and e x p e r i e n c e t h a t l i n k s h u m a n i t y w i t h i t s a n c i e n t o r i g i n s . T h e i r d i s a p p e a r a n c e i s a l o s s f o r t h e l a r g e r s o c i e t y , w h i c h c o u l d l e a r n a g r e a t d e a l f r o m t h e i r t r a d i t i o n a l s k i l l s i n s u s t a i n a b l y managing v e r y complex e c o l o g i c a l s y s t e m s . I t i s a t e r r i b l e i r o n y t h a t a s f o r m a l d e v e l o p m e n t r e a c h e s more d e e p l y i n t o r a i n f o r e s t s , d e s e r t s , and o t h e r i s o l a t e d e n v i r o n m e n t s , i t t e n d s t o d e s t r o y t h e o n l y c u l t u r e s t h a t have p r o v e d a b l e t o t h r i v e i n t h e s e e n v i r o n m e n t s . The s t a r t i n g p o i n t f o r a j u s t and humane p o l i c y f o r s u c h g r o u p s i s t h e r e c o g n i t i o n and p r o t e c t i o n o f t h e i r t r a d i t i o n a l r i g h t s t o l a n d and t h e o t h e r r e s o u r c e s t h a t s u s t a i n t h e i r way o f l i f e - r i g h t s t h e y may d e f i n e i n t e r m s t h a t do n o t f i t i n t o s t a n d a r d l e g a l s y s t e m s . . . T h e s e g r o u p s ' own i n s t i t u t i o n s t o r e g u l a t e r i g h t s and o b l i g a t i o n s a r e c r u c i a l f o r m a i n t a i n i n g t h e harmony w i t h n a t u r e and t h e e n v i r o n m e n t a l awareness c h a r a c t e r i s t i c o f t h e t r a d i t i o n a l Claxton v . Saanichton Marina [1989] 3 C . N . L . R . 46 ( B . C . C . A . ) , Pasco v . C.N.R. 56 D . L . R . (4th) 404 L e a v e t o a p p e a l g r a n t e d 1 9 8 9 . , R. v . S p a r r o w 49 S . C . J . ; 70 D . L . R . (4 th) 385: 3 C . N . L . R . 172 ( S . C . C . ) . 13 way o f l i f e . Hence t h e r e c o g n i t i o n o f t r a d i t i o n a l r i g h t s must go hand i n hand w i t h measures t o p r o t e c t t h e l o c a l i n s t i t u t i o n s t h a t e n f o r c e r e s p o n s i b i l i t y i n r e s o u r c e u s e . And t h i s r e c o g n i t i o n must a l s o g i v e l o c a l c o m m u n i t i e s a d e c i s i v e v o i c e i n t h e d e c i s i o n s about r e s o u r c e u s e i n t h e i r a r e a . 2 This chapter i s written with the assumption that effective long-term management requires local stewardship, and local stewardship can only occur when people have a strong relationship with their surroundings. The shishalh 3 people have had such a relationship. Shishalh i s the traditional name for the group of Native people now legally defined as the Sechelt Indian Band. It is the relationship between the people and the land, rather than the race of the people, that i s relevant to this chapter. The focus for the next part i s to establish the Sechelt Nation from their histo r i c a l context and set the basis of their rights to water and water management. 2.1 From Pre- to Post-Colonialism with shishalh Water Management 2.1.1 Historical Occupancy The shishalh, or as in the anthropological literature, the Sechelt people, are described as a sub-group of the Coast Salish tribes. The Sechelt tribes constituted a distinct linguistic group whose traditional homesites were located along the Sechelt Traditional Territory (STT) since L C l a u d i a N o t z k e , Aboriginal Peoples and Natural Resources In Canada ( O n t a r i o : C e n t r e f o r A b o r i g i n a l Management E d u c a t i o n and T r a i n i n g ( C A M E T ) , C l a u d i a N o t z k e , and C a p t u s P r e s s I n c . , 1 9 9 4 ) . 4 . 3 S e c h e l t I n d i a n B a n d : C u l t u r e D e p a r t m e n t , kem aw (Full Circle) Shishilh Culture & Land Claims U n p u b l i s h e d . 1995. 2 . "The c o r r e c t t e r m f o r t h e r e s i d e n t F i r s t N a t i o n s p e o p l e o f t h e r e g i o n from t h e N a t i v e l a n g u a g e s h a s h i s h a l e m . The town and d i s t r i c t t a k e t h e i r name f rom t h e e a r l y E u r o p e a n s p e l l i n g , S e c h e l t . The o r t h o g r a p h y u s e d t o w r i t e s h a s h i s h a l e m does n o t use c a p i t a l l e t t e r s . " 14 time immemorial. Physical evidence suggest occupation of the region for at least 2000 years 4. According to Peterson (1990), legends exist which assert the presence of "Native Indians prior to and during the last glacial period" 5. The migration of the shishSlh was confined to a relatively small region. During the spring to f a l l seasons the tribes of the shishalh would be accessing resources covering areas from mountain peaks (for mountain goats) to ocean floor (shellfish and kelp). The winter was the time of gathering for the tribes. The winter dance and potlatches, which meant reaffirmation or transfer of leadership, determined t e r r i t o r i a l access to a l l manner of resources, including water. Water, an integrative resource, was used for cleansing ceremonies before competitions6, to grow family and community gardens7, as a harvesting region for important fi s h species, and for common domestic use. Management of the region's resources was shaped by a class structure. The capacity to actively be involved in the governing of the community was dependent upon the individual's formal status, and status was determined by the accumulation of wealth as well as intangible rights such as being bestowed with H e r i t a g e R e s e a r c h G r o u p . Review of SECHELT INDIAN BAND Comprehensive Claims Proposal. (Ganges , B . C . : T h e O f f i c e o f N a t i v e C l a i m s ) , 1985. 16 . 5 L e s t e r P e t e r s o n , THE STORY OF THE SECHELT NATION ( M a d e i r a P a r k : H a r b o u r P u b l i s h i n g ) 1990. 6. 6 SIB E l d e r . I n t e r v i e w code 0 2 : 1 0 . Tape r e c o r d e d t r a n s c r i p t . I n t e r v i e w by a u t h o r . S e c h e l t Band L a n d s . 16 November 1995, 8 . 7 B e n n y J o e , i n t e r v i e w by D e l o r e s P a u l . T r a n s c r i b e d p a g e s . 1987. S e c h e l t I n d i a n Band C u l t u r e C e n t r e : S e c h e l t N a t i o n H i s t o r y . ancient names and stories 8. 2.1.2 Traditional Division of Resources The class structure of the Sechelt Nation during the early colonial invasion period consisted of three general divisions. Position in the KWAHT-KWAHT-AHM' (aristocrat) 9 or the KWASHSS-TWAYT'-AHSS (commoners) class depended largely on behaviour and a b i l i t y . The SHAY'-OHTS (slaves), the third level, represented very l i t t l e function because slaves were people who were not descendants of the Sechelt Nation. Participation in raids, from which slaves were acquired, was not prevalent with the Sechelt. Popular myth regards the Native peoples "as nomadic wanderers hunting and gathering fortuitously with l i t t l e or no attachment to place" 1 0. Contrary to this idea t e r r i t o r i a l delineations among the Sechelt are evident in such myth statements as: "You have a Whale i n y o u r l a k e , b u t we do n o t have a W h a l e . T h e B e a v e r has b u i l t a dam t o keep t h e wha le o u t o f o u r l a k e . " (my e m p h a s i s ) 1 1 By the mid-nineteenth century there were five main t e r r i t o r i a l regions, named for the main villages. The villages were the SLAHLT, TSHOH'-NYE, HUHN'-AH-TCHIN, KAL- PAY'-LAIN, AND KLAY'AH-KWOHSS12 (see Figure 2.1). At this time the people were coping with the strain of adapting to a ' H e r i t a g e R e s e a r c h G r o u p , 1985. 12. 9 P e t e r s o n , 1990. 36 . 10 J . E . M i c h a e l Kew and J u l i a n G r i g g s . " N a t i v e I n d i a n s o f t h e F r a s e r B a s x n : Towards a M o d e l o f S u s t a i n a b l e R e s o u r c e U s e , " i n Perspectives on DBVBi°?aT\±n W & t e r Mana9ement: Towards Agreement in the o o f K . I Z' * d l - t e d fay A n t h o n y H . J . D o r c e y . ( U n i v e r s i t y o f B r i t i s h C o l u m b i a : W e s t w a t e r R e s e a r c h C e n t r e , 1991) 20 . " P e t e r s o n 1990, 17 . 1 2 P e t e r s o n 1990, 32 . 16 new economy while many of their people were dying. The traditional economy, maintained via the potlatch system, was altered as new capacities for acquiring wealth were introduced with the fur trade, fishing, and logging industries. The i n i t i a l approach, around 185013, of representatives of the Church to convert the people to Catholicism was rebuffed. By I86014, community s t a b i l i t y was upset by ravages of the population as a result of small-pox and tuberculosis. Despair and incomprehension of the diseases that had spread through the communities persuaded the Chiefs to reconsider the Church. Use of the existing traditional governance hierarchy f a c i l i t a t e d a rapid religious conversion of the shishalh to Catholicism. Of the 20,476 hectares (approximately) of land that the shishalh lived with and on (the STT), representatives of the 1876 Joint Commission designated twenty-two parcels of land to be set aside as Indian Reservations. Three more Reserves " C l a r e n c e J o e , I n t e r v i e w e d i t e d by F r a n k F u l l e r . U n p u b l i s h e d . Amalgamation. ( S e c h e l t I n d i a n B a n d : C u l t u r e C e n t r e F i l e s ) . 1980. 1 4 C l a r e n c e J o e , 1980. Figure 2.1 The f i v e t e r r i t o r i a l r e g i o n s o f t h e S h i s h a l h as r e c o u n t e d i n P e t e r s o n 1990. 17 were added in 1900 and the Mckenna/Mcbride Commission brought the total parcelled allocation to thirty-three (see Figure 2.2) amounting to approximately 1000 hectares. The chiefs of the five main terr i t o r i e s opted to establish a central body of government on Indian Reserve Number two, amalgamating the members of separate villages. Figure 2.2 L o c a t i o n o f t h e t h i r t y - t h r e e p a r c e l s o f l a n d d e s i g n a t e d as I n d i a n R e s e r v e s w i t h i n t h e S e c h e l t T r a d i t i o n a l T e r r i t o r y . 2.1.3 The Flume to the Water Mainline Where formerly the shishalh lived in longhouses, colonialism and religious conversion introduced separate dwellings for schooling, religion, and housing with a diversionary water system to supply the people u t i l i z i n g these dwellings. A reservoir system was developed by the 18 Indian Band around 1889 or 189 015. The water was brought down from Chapman Creek (formerly called Mission Creek) in a flume and stored in a reservoir on the reserve. These yee shaped structures (flumes) were a common method of diverting water. They were also built to project water from bluff faces to be collected in baskets without leaving the canoe16. Around 1900 the Sechelt Band replaced the f i r s t flume on Chapman Creek with another, which, in addition to serving their own needs, carried water down to provide for the needs of non-native people. Another example of the Sechelt Nations' early participation in infrastructure development included the work of the people from the reserve at a r e l i e f camp to put in a pipe to replace the flume with a piping system17. In 1892 the Water Privileges Act declared the right to the use and flow of all,water in any stream to be vested in the Crown in the right of the province 1 8. This i s the foundation of the regime that exists in the Province today whereby the capacity to use water i s dependant on the H e l e n Dawes. Halloween Dawes' SECHELT.(Madeira P a r k : H a r b o u r P u b l i s h i n g ) 1990. 100. 1 6 SIB E l d e r . I n t e r v i e w code 0 2 : 1 0 / 0 9 / 1 3 . Tape r e c o r d e d t r a n s c r i p t . I n t e r v i e w by a u t h o r . S e c h e l t Band L a n d s . 16 November 1995. 8 . 17 SIB E l d e r . I n t e r v i e w code 0 2 : 0 1 . Tape r e c o r d e d t r a n s c r i p t . I n t e r v i e w by a u t h o r . S e c h e l t Band L a n d s . 16 November 1995. 3 . T h i s r e s p o n d e n t gave t h e t i m e f o r t h i s t o have happened t o be " d u r i n g C h i e f J o h n ' s t i m e " . C h i e f J o h n was one o f t h e o r i g i n a l p e o p l e m e n t i o n e d as C h i e f C o u n c i l l o r i n 1920, and t h e r e i s a C h i e f J o h n r e c o r d e d up t o 1945 f o r r e f e r e n c e see H e r i t a g e R e s e a r c h G r o u p , 1985. A p p e n d i x 5 "Summary o f S e c h e l t Band C o u n c i l s , 1920-1985". 1 8 M i n i s t r y o f E n v i r o n m e n t , L a n d s and P a r k s . Stewardship of the Water of British Columbia: A Review of British Columbia's Water Management Policy and Legislation, vol. 9 Background Report. P r o v i n c e o f B r i t i s h C o l u m b i a . 1993. 6. 19 possession of a licence. Elders of the Sechelt Indian Band rec a l l holding a licence for a certain volume of water for Chapman Creek19. The Vancouver Daily World published a notice that the Sechelt Indians intended to apply for a water record for two creeks flowing into Porpoise Bay20. The diversion point was to be six miles from the mouth. The Ministry of Environment water licensing records have the earliest water licence for this particular region to be the one issued to Union Steamships Ltd. in 1929 for the local waterworks. The priority of water acquisition i s decided by the date of issuance, often referred to as the policy of first in time first in right21. The water legislation i s tied to the colonial developmental history of the province. The i n i t i a l statutes adopted to regulate water diversion were developed to reduce conflict in the nascent mining industry. Water licensing was created to protect established interests from settlers and prospectors who would arrive later. Consequently, the f i r s t to apply for licensing has f i r s t right to appropriate the water. However, the policy of first in time first in right perpetuates the ideology that the F i r s t Nations were not f i r s t in time, at least with respect to water use, because for many systems they do not possess the primary license for their territory. This i s " S I B E l d e r . I n t e r v i e w code 0 2 : 1 0 . Tape r e c o r d e d t r a n s c r i p t . I n t e r v i e w by a u t h o r . S e c h e l t Band L a n d s . 16 November 1995. 5. 20 V a n c o u v e r D a i l y W o r l d , Notice Document 10, T u e s d a y J u n e 3 , 1890. 2 1 M i n i s t r y o f E n v i r o n m e n t , L a n d s , and P a r k s . " W a t e r A l l o c a t i o n " . Stewardship of the Water of British Columbia. ( P r o v i n c e o f B r i t i s h C o l u m b i a , 1993) 7 . 20 certainly the case with the Sechelt. So, i t i s an important l i t e r a l distinction to state * first enabled'. For convenience Union Steamships constructed a flume, and eventually the community water supply system, along the same route that the Sechelt people had established. The founders of the non-native community located the township centre west of SIBL#2, which meant that the township's water supply from Chapman Creek would have to run through reserve lands (see Figure 2.3). The Band Council agreed to allow a portion of this parcel of land for an easement, and for this consideration would be paid in the form of water for domestic and f i r e purposes to the Band members22. The community reservoir remained on reserve lands and this route became the mainline for the water infrastructure. Around the early 1950's there was an attempt to change the terms of the agreement by imposing a fee for water delivery to Band members. The Chief of Council responded by demanding that Union Steamships Ltd. Figure 2.3 Map showing t h e r e l a t i v e l o c a t i o n s o f Chapman C r e e k and S e c h e l t T o w n s h i p t o S I B L a n d #2. 2 2 H i s M a j e s t y t h e K i n g & U n i o n S t e a m s h i p s L t d . 3 r d A p r i l 1929. S e c h e l t I n d i a n B a n d : Water f i l e s . 21 remove a l l of their pipes from Band lands 2 3. The matter of a fee was then dropped, and the terms are s t i l l being honoured today. The Band pays for pipes going into Band buildings and the SCRD (having signed on to these terms with the purchase of the community waterworks licence from Union Steamships Ltd.) delivers the domestic and f i r e requirements of water. The members of the Sechelt Nation entered into an agreement for water delivery which met the needs of the growing non- Native community, but this arrangement afforded rights, as a result of priority water licences, to the licensee rather than to the Band. The shishalh have invited l i b e r a l changes to the community governance structure over the past one hundred years. They have amalgamated the resources of several ter r i t o r i e s , gradually moved from a hereditary council to an elected council, and with the Self-Government Act adopted a municipal style governance structure. Yet there are many opportunities that the shishalh were not afforded as a result of li v i n g within the constraints of legislation imposed upon them by a colonial administration that unquestioningly assumed i t s own right to determine resource allocation. By the fact of historical occupation there are "inherent rights" that as yet need to be translated into the continuum of resource use and responsibility. Despite this, the opportunity to orchestrate the regional growth has been impinged upon by pieces of legislation such as the Indian 2 3 SIB E l d e r . I n t e r v i e w code 0 2 : 1 4 . Tape r e c o r d e d t r a n s c r i p t . I n t e r v i e w b y a u t h o r . S e c h e l t Band L a n d s . 16 November 1995. 9 . 22 Act and the Terms of Union wherein British Columbia joined the Dominion. The perception that the Province of British Columbia could unilaterally dictate the rights and situational resource access i s s t i l l alive, in that water resources have for many streams been f u l l y recorded. Despite the prior occupation of Native people, the priority for water i s given most often to non-Native licence holders. 2.2 Laws and Legislations Advantaging Colonialism Within Canada there are two types of laws that determine one's right to use water: common law, rules that have been passed down through English courts, and statutory law, the rules that are established by the legislatures of the country or province 2 4. The persons creating legislation are elected representatives of the voting populace and as such pieces of legislations manifest p o l i t i c a l agendas. The earliest agenda for the BC legislature involved the entrenchment and perpetuation of non-native rights above those of the f i r s t occupants25. Attempts to change this were only minimally considered, as with the enactment of the Indian Water Claims Act, and only in such a way as to not upset the status quo, as exemplified by this statement from the Chief Inspector of Indian Agencies in BC: The l e g i s l a t i o n p a s s e d r e p r e s e n t s t h e l i m i t t o w h i c h t h e Government o f t h e P r o v i n c e were p r e p a r e d t o go a t t h e p r e s e n t t i m e as t h e r e were many o b s t a c l e s i n t h e way o f c o m p l y i n g w i t h H . Rueggeberg and A . R . Thompson, 1984, "Water Law i n C a n a d a , R e p o r t f o r F e d e r a l I n q u i r y on Water P o l i c y , " i n n o t e s f o r N a t u r a l R e s o u r c e s Law (Law 356 1 9 9 4 ) , c o m p i l e d by D r . Andrew Thompson & M a r t i n L . P a l l e s o n . The U n i v e r s i t y o f B r i t i s h C o l u m b i a . 654-656 . 25 I t s h o u l d be r e c o g n i z e d t h a t F i r s t N a t i o n d i d n o t a c q u i r e t h e c a p a c i t y t o v o t e p r o v i n c i a l l y u n t i l 1949 and f e d e r a l l y u n t i l 1960. 23 my r e q u e s t s i n f u l l , as t h i s w o u l d have i n v o l v e d p l a c i n g t h e I n d i a n s ' c l a i m s ahead o f t h e r e c o r d s o f a g r e a t number o f w h i t e u s e r s and t h e M i n i s t e r i n f o r m e d b o t h M r . E l l i s and m y s e l f t h a t any B i l l c a r r y i n g s u c h a p r o p o s a l w o u l d meet w i t h s t r e n u o u s o p p o s i t i o n o f t h e f l o o r o f t h e H o u s e . . . 2 6 It has taken over a hundred years for the Province of Brit i s h Columbia to acknowledge Aboriginal claims, and the parsimonious attitude of the late 19th century i s the foundation for Provincial legislators today. This next section looks at Aboriginal T i t l e in Brit i s h Columbia, at f i r s t hotly denied, then considered sufficiently abolished, and f i n a l l y begrudgingly discussed. The importance of Aboriginal T i t l e with respect to water l i e s in the established provincial regime wherein rights to water are appurtenant to the land. 2.3 Water Appurtenant to Land: Readdressing Aboriginal T i t l e The average person responds to the theft of their personal possessions with disbelief and amazement. "This can't possibly be happening" and, "how could someone insult me by totally disregarding my ownership of this [item, possession, place]" are common responses. This affront i s something that i s d i f f i c u l t to f u l l y understand u n t i l i t happens personally. Can we put ourselves in the position of understanding the same affront as a Nisga'a Chief faced and voiced to the Joint Commission on Indian lands as early as 1887 when he said: T h e y ( t h e w h i t e man's government) have n e v e r b o u g h t t h e l a n d f rom o u r f o r e f a t h e r s ; t h e y have n e v e r f o u g h t and c o n q u e r e d o u r p e o p l e and t a k e n t h e l a n d i n t h a t way, and y e t t h e y s a y now U n i o n o f B . C . I n d i a n C h i e f s , Indian Water Rights in British Columbia, A Handbook F o r e w o r d b y C h i e f S a u l T e r r y , p r e s i d e n t ( V a n c o u v e r : U n i o n o f B . C . I n d i a n C h i e f s , 1991) 36 . 24 t h a t t h e y w i l l g i v e us so much l a n d : o u r own l a n d l 2 7 This Chief i s understanding, in part, what is today called Aboriginal T i t l e . There i s much debate as to the definition of Aboriginal T i t l e . Some of this debate stems from questions such as: By asserting Sovereignty, do the rights and claims to the land by the people indigenous to the area become null and void? Is the Aboriginal Right to land subject to the underlying Sovereign claim? Or, i s the Sovereign claim practically that of an administrative claim, where the colonial governments have a responsibility to ensure that the original t i t l e , that of Aboriginal t i t l e , i s not interfered with unless ceded or surrendered? What these (outstanding) questions show is that the scope of Aboriginal T i t l e has not been clearly outlined. The scope which has been struggled for and is the basis of the discussion in this thesis i s stated by Aldridge: A b o r i g i n a l T i t l e i n c l u d e s a r e c o g n i t i o n o f n a t i o n h o o d , a r e c o g n i t i o n o f l a w - m a k i n g a b i l i t i e s , a r e c o g n i t i o n o f j u r i s d i c t i o n , and a r e c o g n i t i o n o f c o l l e c t i v e o w n e r s h i p o f t h e l a n d . 2 8 In Delgamuuktr v. British Columbia29 (1993) , Justice Lambert's dissenting judgement stated that Aboriginal T i t l e in the Province of British Columbia was supported by common law, 27 Rob R o b i n s o n , " A b o r i g i n a l T i t l e : The N i s h g a and t h e L a n d , " i n ABORIGINAL TITLE, RIGHTS, AND THE CANADIAN CONSTITUTION - Proceedings of a Symposium. Victoria, BC e d s . K e i t h J o b s o n and R i c h a r d K i n g . ( U n i v e r s i t y o f V i c t o r i a , 1983) 2 . 28 James A l d r i d g e , " A b o r i g i n a l T i t l e : t h e C o n s t i t u t i o n and t h e C h a r t e r , " i n ABORIGINAL TITLE, RIGHTS, AND THE CANADIAN CONSTITUTION - Proceedings of a Symposium Victoria, British Columbia e d s . K e i t h J o b s o n and R i c h a r d K i n g . ( U n i v e r s i t y o f V i c t o r i a , December 1983) 38 . 29Delgamuukw v. British Columbia [ 1 9 9 3 ] B . C C . A . 1395. 1 4 6 - 1 7 7 . T h i s judgement was f i l e d 1993 w i t h t h e BC Supreme C o u r t w i t h t h e L e a v e t o A p p e a l g r a n t e d t o t h e Supreme C o u r t o f Canada May 1994. T h i s was h e a r d J u n e 1997. The judgement i s s t i l l p e n d i n g . 25 continues to exist, and i s derived from customs and practises that existed at the time of colonial assertion of sovereignty, but not "frozen" or limited to the use or practise that existed at the time of that assertion. The p o l i t i c a l leaders of the Province of British Columbia denied the recognition of such t i t l e u n t i l 1990, when the BC Government agreed to enter into negotiations over Crown land. The fact that Aboriginal T i t l e existed within BC was evident with the negotiation of fifteen treaties from 1850-54 (Fourteen on Vancouver Island, often referred to as the Douglas Treaties, and the extension of Treaty 8 in the northeastern part of BC). The fourteen Douglas treaties on Vancouver Island were originally negotiated to remove the burden of Aboriginal T i t l e on the Crown within BC. This process was halted due to economic constraints and from then on treaty-making in BC stood s t i l l for over one hundred years. The Terms of Union, by which BC was admitted into Confederation, stimulated lengthy debate over the policy of this former Crown colony with regard to Indian Lands. The quantity of land that the Dominion government had surveyed for reserves in the 1860's was condemned by BC's Lieutenant- Governor Joseph Trutch. The general policy for land allotment was for approximately 10 acres to the head of every Indian family in the Colony30. To give a comparison, Treaty Number Three (the Lake of the Woods region) allotted six hundred and J o h n L e s l i e & Ron M a g u i r e , The Historical Development of the Indian Act ( I n d i a n and N o r t h e r n A f f a i r s C a n a d a : T r e a t i e s and H i s t o r i c a l R e s e a r c h C e n t r e , 1983) 57 . 26 forty acres per family of five, and in BC, settlers were able to pre-empt 160 acres per family (the option for Natives to pre-empt land was subject to the permission of the Governor. No evidence exists for any of these applications having been approved31) . The Dominion Government's concern that BC had not acknowledged Indian rights, or land t i t l e s , and that they had no written code regarding Indian Land policies, prompted a request that BC al l o t eighty acres for each Indian family of five and adjust accordingly the size of established reserves in the Province 3 2. The Province responded that the land requirements were satisfied but allowed for future reserve allotments, not exceeding twenty acres for each family of five. The position taken by Trutch was that: The C a n a d i a n s y s t e m as I u n d e r s t a n d i t , w i l l h a r d l y , work h e r e - we have n e v e r bought o u t any I n d i a n c l a i m s t o l a n d s n o r do t h e y e x p e c t we s h o u l d - b u t we r e s e r v e f o r t h e i r u s e and b e n e f i t f rom t i m e t o t i m e t r a c t s o f s u f f i c i e n t e x t e n t t o f u l f i l a l l t h e i r r e a s o n a b l e r e q u i r e m e n t s f o r c u l t i v a t i o n o r g r a z i n g . 3 3 A Joint Commission was established in 1875 which attempted, without success, to effect a more x l i b e r a l ' land policy for the Native people of BC. Reserve Commissioner G.M. Sproat anticipated the results of the position taken by the Province when he stated in 1879 that an uprising of Native people in BC w o u l d n o t be a r e v o l t a g a i n s t a u t h o r i t y , b u t t h e d e s p a i r i n g a c t i o n o f men s u f f e r i n g i n t o l e r a b l e wrong , w h i c h t h e P r o v i n c i a l Government w i l l t a k e no s t e p s t o r e m e d y . 3 4 V i n a A . S t a r r , Indian Title to Foreshore on Coastal Reserves in British Columbia (Canada:Depar tment o f I n d i a n A f f a i r s and N o r t h e r n D e v e l o p m e n t , 1985) 11 . 3 2 L e s l i e & M a g u i r e , 1983. 57 . 3 3 L e s l i e & M a g u i r e , 1983. 59 . 3 4 L e s l i e & M a g u i r e , 1983. 58. 27 Dissatisfaction with the Province's unwillingness to acknowledge Aboriginal T i t l e provoked the Native leaders in BC to send a delegation in 1906 to speak to the Privy Council of England35. An attempt was made to deal with the grievances put forward by setting up a commission now known as the McKenna- Mcbride Commission. Aboriginal T i t l e was not up for discussion, but rather the Commission was mandated to deal only with the ongoing complaints regarding reserve sizes. By setting these terms of discussion the governments of Canada and British Columbia adopted a limited approach, and thus failed to lay to rest the conflicts between Native and Non- native people. Petitions by the Al l i e d Tribes of BC. protesting the decisions of the McKenna-McBride report led to legislation in 1927 making i t i l l e g a l to hire lawyers for the purposes of pursuing land claims. This was rescinded in 1951. Up to 1951 the provincial government dictated the position taken over land policy with the voicing of Native people and the Federal government given minimal consideration. A prominent court case, commonly referred to as the Calder case, led to a change of Federal government policy. The next sections look at various prominent cases and legislation that have induced the Federal and Provincial governments to readdress their position on Aboriginal T i t l e and Rights. 2.3.1 Common Law Effect on Land policy In 1996 the Nisga'a people experienced the elation of 35 P a u l T e n n a n t , British Columbia: a place for Aboriginal peoples? ( V a n c o u v e r : U n i v e r s i t y o f B r i t i s h C o l u m b i a , 1983) 85 . 28 achieving an agreement they f e l t they could li v e with after over two decades of negotiations. That they were negotiating at a l l was a result of the landmark case initiated in their territory, that being Calder v. Attorney General of British Columbia36. Of the seven judges deliberating this case, six stated that T i t l e had existed in British Columbia, and three of them held that i t continued to exist. Regarding T i t l e one of the seven judges did not comment, but rather decided that their claim was inappropriately put forward. Since the judgement was not s t r i c t l y in favour of Calder the Provincial position was that the court supported their long held position. This position, briefly summarized, was that if Aboriginal T i t l e did exist i t had been removed as result of subsequent legislation. The Provincial perception of Aboriginal T i t l e had merely moved from denial of existence to purporting i t s abolishment. In contrast, the Government of Canada established a policy to negotiate outstanding claims in the Northwest Territories, Yukon, and Quebec. The impetus required to encourage the Provincial p o l i t i c a l leaders to modify their stance on their responsibility to the Native people of BC was provided by a series of jud i c i a l decisions 3 7. Another case in 1984, namely Guerin v. Regina3*, went largely in favour of the Native 36Calder v.Attorney General of British Columbia, [ 1 9 7 3 ] S . C . C . 313 , [1973)4 W . W . R . I 34 D . L . R . ( 3 d ) 1 4 5 . 3 7 B a r b a r a C . S o u t h e r , Aboriginal Rights and Public Policy: Historical overview and an analysis of the Aboriginal Fisheries Strategy M a s t e r s T h e s i s , (Simon F r a s e r U n i v e r s i t y : N a t u r a l R e s o u r c e s Management, 1 9 9 3 ) . 38Guerin v. Regina[1984) 13 D . L . R . (4 th) 321 . 29 community. With this case eight of the Supreme Court Justices found the Government of Canada (Regina) liable in damages for breach of their fiduciary duties. Fiduciary duty had been described as a trust-like obligation. This judgment interprets the Indian Act to be legislation that imposes an obligation on the Crown to act for the benefit of the Indians 3 9. In 1985 the BC Court of Appeal granted an injunction to halt logging in the ancestral territory of the Clayoquot and Ahousaht Bands. An interlocutory injunction was granted, in 1987, in favour of a Kwakiutl hereditary Chief and his Band to halt logging on Deer Island, the basis of which arose from the continued rights that exist from Aboriginal T i t l e . The Canadian National Railway's proposed twin tracking project was prevented, with support of the courts, by Chief Pasco and other supporting Fi r s t Nations in 1989. Formerly i t had been the contention of BC's non-Native p o l i t i c a l leaders that addressing Aboriginal T i t l e would wreak havoc on the industries of BC. These various judgements demonstrated that simply denying acknowledgement of Aboriginal T i t l e was not the solution. In 1990, the Province of British Columbia announced that they would negotiate land claims. 2.3.2 The Modern Treaty Process As part of the agreement for Sechelt's negotiated Self- Government i t was stipulated that "..this was in no way to abrogate any existing Aboriginal or treaty right.." 4 0. The G u e r i n [1984] page 323 . Sechelt Indian Band Self-Government A c t , 1986. S e c t i o n 2 ( 2 ) 3 . 30 treaty rights have yet to be negotiated for the Sechelt Nation. Due to the number of different Native communities in BC, the six-stage process 4 1 i s conducted by different "teams". According to the Federal Treaty Negotiation Office publication, Treaty News42, the Sechelt claim i s conducted with Team South #143. As of July 1996, the Sechelt people had arrived at stage 4, that i s , the Negotiation of an Agreement- in-Principle. The Nisga'a negotiations were underway before the construction of this comprehensive claims process but s i t s as the latest example of a treaty to be negotiated in BC. This agreement sets a dangerous precedence, in that i t delivers water agreements that may be inappropriate for the Sechelt Traditional Territory (STT). The Nisga'a has subjected their allowable water allocation to be determined from that available after conservation, and after the volume allocated for existing water licenses. The existing water licences themselves are not subjected to conservation. So, even though this makes sense as a matter of course, the licenses of non- Natives should be unilaterally modified to adopt the same limitation (i.e., a requirement for conservation) so that the imbalance being addressed by treaty-making i s not perpetuated. The licensed demand within the STT i s considerable and 4 1 The s i x s t a g e s a r e : ( 1 ) S t a t e m e n t o f I n t e n t (2 p r e p a r a t i o n f o r N e g o t i a t i o n s ( 3 ) N e g o t i a t i o n o f a Framework Agreement ( 4 ) N e g o t i a t i o n o f an A g r e e m e n t - i n - P r i n c i p l e ( 5 ) N e g o t i a t i o n t o F i n a l i z e a T r e a t y ( 6 ) T r e a t y I m p l e m e n t a t i o n 4 2 F e d e r a l T r e a t y N e g o t i a t i o n O f f i c e , T r e a t y News J u l y 1996 V o l 3 , No2 ( C a n a d a : V a n c o u v e r ) 5. 4 3 T h e r e a r e s i x "teams" w h i c h a r e : V a n c o u v e r I s l a n d , S o u t h #1, S o u t h #2, N o r t h - C e n t r a l , N o r t h - C o a s t , and N o r t h - e a s t . T h e r e had been a n e g o t i a t i n g team f o r t h e N i s g a ' a t r e a t y p r o c e s s b u t t h i s was o u t s i d e o f t h e B r i t i s h C o l u m b i a T r e a t y C o m m i s s i o n p r o c e s s . 31 continues to advantage the new settlers to the region at the expense of meeting the needs of the Sechelt Nation Bartlett (1988) states: I f i t i s h e l d t h a t a b o r i g i n a l t i t l e g e n e r a l l y had been e x t i n g u i s h e d by t h e mass o f p u b l i c l a n d s l e g i s l a t i o n and O r d i n a n c e s , t h e n t h e w a t e r r i g h t s w o u l d f a i l as an i n c i d e n t t h e r e o f . 4 4 Aboriginal T i t l e , long denied in the Province i s now on the table for discussion. There are many concerns to be negotiated. The terms of resource access and the degree of involvement in the management of these resources are two of the issues. In addition there i s the fundamental concern regarding legislation written by non-Natives that generally provide an advantage to non-Natives. This next section looks at Aboriginal Water Rights and how these might be affected by histo r i c a l legislation in BC. 2 . 4 Three Sources of Water Rights for Aboriginal Communities As part of his judgement in Calder, Justice Hall indicated that the use of water was an integral part of the "historic occupation and possession" declared by Chief Justice Dickson in his judgement of the same case. From this, Aboriginal T i t l e i s interpreted to be derived from common law from historic use and occupation. This landmark case enabled a shif t in the p o l i t i c a l momentum and as a result Aboriginal Rights became entrenched in the Canadian Constitution nine years later with section 35 (1): ( l ) T h e e x i s t i n g a b o r i g i n a l and t r e a t y r i g h t s o f t h e a b o r i g i n a l 4 4 R i c h a r d H . B a r t l e t t , ABORIGINAL WATER RIGHTS IN CANADA: A Study of Aboriginal Title to Water and Indian Water Rights ( C a l g a r y : C a n a d i a n I n s t i t u t e o f R e s o u r c e s Law, 1988) 174. 32 p e o p l e s o f Canada a r e h e r e b y r e c o g n i z e d and a f f i r m e d . 4 5 At the Fir s t Minister' Conference in 1982 the Prime Minister was pressed to go further and expressly set forth Aboriginal T i t l e in the Constitution. The Prime Minister (Pierre Trudeau) stated "Aboriginal T i t l e i s already there; Aboriginal T i t l e i s one of the Aboriginal Rights, therefore i t i s contained implicitly". 4 6 Bartlett (1988) concludes that Aboriginal Water Rights are an aspect of Aboriginal T i t l e . The Federal government's intent (if there i s any authority in the words of the then Prime Minister) was that Aboriginal T i t l e i s an implicit aspect of Aboriginal Rights. Despite this c i r c u l a r i t y Notzke (1994) goes on to say the three sources of Aboriginal Water Rights are: (1) They a r e an i n t e g r a l p a r t o f n a t i v e p e o p l e ' s a b o r i g i n a l t i t l e t o t h e i r a n c e s t r a l l a n d s . (2) I n d i a n w a t e r r i g h t s r e s u l t f rom t h e e s t a b l i s h m e n t o f a r e s e r v e , e i t h e r by t r e a t y o r by e x e c u t i v e a c t i o n ( O r d e r - i n - C o u n c i l ) (3) N a t i v e p e o p l e e n j o y r i p a r i a n r i g h t s d e r i v e d f r o m t h e i r o c c u p a t i o n o f l a n d s a d j o i n i n g a body o f w a t e r . 4 7 Riparian rights exist for a l l Canadians, unless mitigated or abolished by statute. However, rights derived from Aboriginal T i t l e or reserve establishment are uniquely Aboriginal. Constitutional entrenchment of rights are an important means of protection. The matter that Native people must be concerned with i s , whether the two colonial governments of Canada (Provincial and Federal) recognize the 45Constitution Act, 1982. ^ A l d r i d g e , James . " A b o r i g i n a l T i t l e : The C o n s t i t u t i o n and t h e C h a r t e r , " i n Aboriginal Title, Rights, and the Canadian Constitution: Proceedings of a Symposium Victoria, B.C. eds K e i t h J o b s o n and R i c h a r d K i n g ( U n i v e r s i t y o f V i c t o r i a , 1983) 36 . 4 7 N o t z k e , 1994. 8. 33 particular right in question to be existing. 2.5 Derogation of Water Rights: Neither a Child of the Fed's or the Province The purpose of legislation regulating water allocation was to bring some order to an otherwise chaotic situation 4 8. The capacity of the Fir s t Nation to be involved was hampered by the wrangling that occurred between British Columbia and the (then) Dominion. Article 13 of the Terms of the Union bestowed on the Dominion the charge of Indians, and the administration of lands reserved for their benefit 4 9. The Province however, was not forthcoming with the prompt transfer of lands. In addition this Government was decidedly resistant to acknowledging and providing water resources in an equitable fashion to Natives as that being bestowed to non-Natives. 2.5.1 Natives Excluded from Legislative Opportunities The gold rush fervour in the late 1800's in BC brought conflicts as substantial volumes of water were being diverted for mining50. To deal with this the f i r s t piece of legislation regarding water was enacted, the Gold Fields Act, 1859S1. This is the foundation to the present policy that water must be used "beneficially" 5 2 (i.e., involves consumptive uses). In 1865 the Land Ordinance qualified the common law right of 4 8 J a c k F a r r e l l , British Columbia Water Law. P a p e r p r e s e n t e d a t F i r s t N a t i o n s R i g h t s t o Water C o n f e r e n c e , A p r i l 5 & 6, 1995. ( V a n c o u v e r : P a c i f i c B u s i n e s s & Law I n s t i t u t e ) 1 9 . 1 . 4 9 B a r t l e t t , 1988. 2 5 . 5 0 F a r r e l l , 1995. 1 9 . 1 . 5 1 B r i t i s h C o l u m b i a M i n i s t r y o f E n v i r o n m e n t , L a n d s , and P a r k s . Stewardship of the Water of British Columbia: A Review of British Columbia's Water Management Policy and Legislation. Vol 9 Background Report. ( P r o v i n c e o f B r i t i s h C o l u m b i a , 1993) 2 . 5 2 F a r r e l l , 1995. 1 9 . 2 . 34 riparian land owners with this substitution of a statutory- right. It was made explicit that the Native people in BC were barred from asserting rights available from this legislation, in that i t applied to pre-emption53. The opportunity to pre- empt land was a privilege not enjoyed by Fi r s t Nations in BC. This has both positive and negative repercussions. On the one hand, the F i r s t Nations were ex p l i c i t l y removed from enjoying the rights allowed others. On the other hand, as the legislation i s therefore only concerned with settlers, i t has derogated aboriginal rights only to the extent that i t has issued privileges. This piece of legislation therefore has not ex p l i c i t l y abrogated Aboriginal Rights. The same year that the Terms of Union was being signed (1870) a provision was added to the Land Ordinance 1865, declaring the requirement for a statutory water record 5 4. Though the province was conferring rights via a water licence, F i r s t Nations were s t i l l s i t t i n g in administrative no-man's- land. Six years later, in 1876, many of the Sechelt reserves were designated. In this same year (1876) the various statutes dealing with Indians were consolidated resulting in the creation of the Indian Act. Having the Dominion in charge of Indians, and administration of lands reserved for them, introduced barriers not endowed on non-Natives. In addition, the Indian Act resulted in the creation of bureaucracies that the Sechelt Nation had to establish additional sophistication B a r t l e t t , 1988. 174. Stewardship, Background Report, 1993. 6. 35 to negotiate through. For this reason i t ' s construction i s discussed br i e f l y 2.5.2 The Indian Act The Indian Act55 was, unt i l 1986, the regulatory document encompassing the rules of the Sechelt Nation. This legislation covers the registration of status membership, possession and trespass of reserve/treaty lands, administration of wills , lessees, revenues, capacity of band bylaws, council rules and representation, taxation, trade or barter and education. The Indian Act derives i t s power from section 91(24) of the Constitution Act, which states: s . 91 . . . t h e e x c l u s i v e L e g i s l a t i v e A u t h o r i t y o f t h e P a r l i a m e n t o f Canada e x t e n d s t o a l l M a t t e r s coming w i t h i n t h e C l a s s e s o f S u b j e c t s n e x t h e r e i n a f t e r e n u m e r a t e d ; t h a t i s t o s a y , - ( 2 4 ) I n d i a n s , and L a n d s r e s e r v e d f o r t h e I n d i a n s . 5 6 Recommendations of the Bagot Commission (1844), Protection Acts of Upper and Lower Canada (1850), and the Act for the Gradual Ci v i l i z a t i o n of the Indian Tribes in the Canadas (1857) set the foundation for the Indian Act of 187657. The policy direction adopted as result of these documents was that the Indians were to be introduced and confirmed to Christianity, educated as subjects so that the "blessings of c i v i l i z a t i o n should flow among.."58. The legislation created the definition of an "Indian" and set up an overseeing authority for land u n t i l such time as they were "capable" of managing their own affairs . Finally, a system of 55Indian Act R.S., 1985,c.1-5 5 6 T h e Constitution Act, 1987, R . S . C . 1985, A p p . I I , N o . 5 . 5 7 L e s l i e & M a g u i r e , 1983. 2 4 - 2 8 . 5 8 L e s l i e & M a g u i r e , 1983. 22 . 36 enfranchisement was created, where the Indians could achieve the f u l l privilege of c i v i l i z a t i o n , that i s , to be of the same standing as the "whites". It was assumed that Native people would adopt an agrarian l i f e s t y l e . The philosophy operating at this time was that a culture based on an agricultural way of l i f e would represent an evolution for primitive people 5 9. The arrogance of this philosophy either obstructed the capacity for legislators to recognize the complex Native governance structures, or to discount them because they countered the objective of colonialism 6 0, or both. In 1986, Sechelt Indian Band Self-Government Act was passed transferring fee simple t i t l e of Sechelt reserves to the Sechelt Nation while the underlying radical t i t l e remained with the Federal Crown. Without T i t l e the Sechelt Nation was unable to procure a mortgage to develop large community infrastructures and therefore could not f u l l y exercise water options available to other developing communities. 2.5.3 Abrogation of Water Sechelt Water Rights Most of the Sechelt Indian Reserves were designated in 1876. However, they were not surveyed u n t i l 1916, and i t was another twenty-two years (1938) before the Provincial government conferred administrative authority for Sechelt Indian reserves to the Federal Government by means of an Order in Council. The Chief Commissioner of Lands, with the approval of the Lieutenant Governor in Council, was empowered to 5 9 H u g h B r o d y , Maps and Dreams ( V a n c o u v e r , B C : D o u g l a s & M c l n t y r e , 1988) 5 1 . 6 0 B r o d y , 1988. 49 37 authorize allocations of water passing through a reserve. In 1888 the Superintendent of Indian Affairs f i l e d a statement of the water requirements for several interior Indian Reservations 6 1. Procuring approval from the Lieutenant Governor in Council was demonstrated to be a problem. For example, by the time the William Lake reserve obtained permission to draw water from a stream on the basis of that 1888 l i s t , twenty years had passed. Between 1888 and 1908 settlers were accorded water rights for that same water body to the extent that i t could not support both claims. The settlers' claims were upheld (e.g. first enabled first in right). In 1897 the Water Clauses Consolidation Act deemed a water right appurtenant to the land or mine for which i t was obtained. The purpose of this was to ensure that licences were not commodified. Riparian proprietors had un t i l 1916 to f i l e a claim, after which a riparian right was abolished (except for the general right of the public to use water for domestic purposes) 6 2. By 1916 the Sechelt reserves were just being surveyed, many of which located riparian to water bodies, but no licenses were obtained. The debate continues as to whether these and subsequent legislation have abrogated Sechelt's water rights. The capacity for the Federal government to appropriate and convey water rights even in absence of express reference thereof was B a r t l e t t , 1988. 179 . Stewardship, Background Report, 1993. 8. 38 upheld by the Privy Council 6 3. This judgement i s important for Indian Reserve lands because i t meant that the Federal government could set aside water allocations to meet the purpose of the reserve. The province expressly denied this application outside of the strip of land ever after referred to as the Railway Belt. Bartlett concludes from A.G. v. Western Higbie that general legislation applicable to Crown grants (lands made available to settlers) i s not applicable to most reserves 6 4. This stems from the fact that with reserves there i s no real conveyance of ownership. His Majesty the King remains the owner, whether i t i s Crown in right of the Province, or Crown in right of the Dominion. Thus i t i s the contention, that without federal authority (i.e., the trustee of Indian a f f a i r s ) , that Provincial legislation does not hold force and effect for Indian lands. The Scott-Cathcart Agreement, from which administrative control was transferred to the Dominion, affords the Provincial government capacity to expropriate lands for the purposes of conveying water over, through or under Indian lands, but only to the extent that the expropriation does not exceed one-twentieth part of the whole reserve, and there i s a requirement for the payment of a "reasonable compensation". Bartlett's summary states that although the agreement recognizes the right of the Province to administer water privileges on Indian lands, the scope, extent and compensation accorded to the Fir s t Nation is s t i l l l e f t " B a r t l e t t , 1986. 36 . 6 4 B a r t l e t t , 1988. 193 . 39 unresolved 6 5. Notzke names the dominant issues regarding Aboriginal Water Rights (AWR) to be: the quantum of the Indian right, the legitimate uses to which the water guaranteed by the right can be put, and the priority of the right in relation to the rights of non-Indian user 6 6. These issues contain the scope of Aboriginal Water Rights, and the next section looks at the laws and legislation which address that scope. 2.6 Quantum, Use, and Priority Depends of Source of Aboriginal Water Right (AWR) A l l three issues of quantum, use, and priority are suggested to depend on which of the three sources (stated in section 2.4) the AWR stems from. Water rights resulting from Aboriginal T i t l e may have been restricted, whereas water rights from executive action may be larger in capacity than would otherwise exist from Aboriginal T i t l e . Riparian rights may have been limited, depending on whether or not those rights had been abrogated prior to 1982. 2.6.1 Aboriginal T i t l e as Source of AWR Determination of water rights derived from Aboriginal T i t l e depend on whether T i t l e i s interpreted to come from the Crown's capacity to legislate land uses, versus the capacity derived from "historic use and occupation". The question that has not been answered, at least in the case of the Sechelt Nation, i s whether rights are reserved for their collective use because they have never been surrendered, or whether B a r t l e t t , 1986. 212. N o t z k e , 1994. 10 . 40 rights which the Crown has not reserved s t i l l exist. This i s the general focus of the evaluation of Canadian and U.S. common law67. 2.6.1.1 Rights Interpreted from Crown Reservation of Aboriginal T i t l e One interpretation of Common Law, i s that Aboriginal Rights that stem from the Crown reserving those rights, are restricted in scope to "traditional" uses. The terms of the Royal Proclamation, 1763 were reviewed in St.Catherines Milling and Lumber Co. v. The Queen6*. In this case the Privy Council decided that the "tenure of the Indians was a personal and usufructuary right, dependent upon the good w i l l of the Sovereign"(emphasis added). The Nova Scotia Supreme Court, in their judgement for R.V.Isaac, pronounced that a "usufructuary right" to land i s merely a right to use that land and i t s " f r u i t " or resources. What a l l this means, i s that without the w i l l of the Sovereign (i.e., the Crown reserving Aboriginal Rights or Title) T i t l e to land does not exist. If that goodwill i s extended, the right of the Aboriginal does not include "ownership" of the resources. The Right only includes some capacity to use those resources. Further Justice Steel, " ' B a r t l e t t (1988) g i v e s t h e f o l l o w i n g e x p l a n a t i o n as t o t h e use o f U . S . Common Law: "I t s h o u l d be n o t e d t h a t t h i s e x a m i n a t i o n o f a b o r i g i n a l w a t e r r i g h t s i n Canada draws h e a v i l y upon U n i t e d S t a t e s j u r i s p r u d e n c e . T h i s r e l i a n c e i s demanded b y t h e r e c e n t p r a c t i c e o f t h e Supreme C o u r t o f Canada and by t h e p a u c i t y o f j u d i c i a l c o n s i d e r a t i o n i n C a n a d a . S i g n i f i c a n t l y , t h e h i s t o r y o f t h e a b o r i g i n a l p e o p l e s and t h e i r r e l a t i o n s h i p t o governments i n t h e U n i t e d S t a t e s , and t h e deve lopment o f w a t e r p r o j e c t s and w a t e r law i n t h e U n i t e d S t a t e s , c l o s e l y p a r a l l e l t h e s i t u a t i o n i n C a n a d a . I t m i g h t be s a i d t h a t , i n t h e a r e a o f law r e s p e c t i n g a b o r i g i n a l p e o p l e s ' r i g h t s t o l a n d and w a t e r , t h e r e i s a law common t o b o t h j u r i s d i c t i o n s . 6. St. Catherines Milling and Lumber Co. v. The Queen ( 1 8 8 8 ) , 14 . A p p . C a s . 4 6 ( P . C . ) . stated in A.G.Ont.v.Bear Island Foundation69 that a b o r i g i n a l l a n d r i g h t s c o n s i s t e d o f t h e r i g h t s o f t e m p o r a r y p o s s e s s i o n , u s e o r enjoyment o f t h e a d v a n t a g e s o f t h e p r o p e r t y b e l o n g i n g t o t h e Crown, so f a r as may be had w i t h o u t c a u s i n g damage o r p r e j u d i c e t o t h e p r o p e r t y . 7 0 In addition he decided that Aboriginal T i t l e was confined to "traditional uses for basic survival and personal ornamentation". Traditional uses included the right to trap and fish, as well as rights to use water for transportation, traditional irrigation, and domestic consumption71. Essentially the extent of Aboriginal Rights were described as, "the right of Indians to continue to live on their lands as their forefathers lived" 7 2. The U.S. case Arizona v. California supports the view that rights are derived from the reservation of rights by the government, which serves to limit quantity of use. While this judgement supports the conservative position in the aforementioned cases, i t expands this position by suggesting that the reservation of rights includes modern uses, as well as traditional uses. On the matter of priority, judgements from this position (i.e., that the Crown i s responsible for the reservation of Rights) deem the priority for traditional uses to be "time immemorial", and for a l l other uses to be dependant upon the date of application, or date of reserve establishment. From this interpretation the Sechelt would be limited to water required Attorney C.N.L.R. 1 (Ont. 7 0 B a r t l e t t , 7 1 B a r t l e t t , 7 2 B a r t l e t t , General for Ontario v . Bear Island Foundation,[1985]1 S.C.) 1988. 8. 1988. 9. 1988. 9. 42 for domestic uses, but this could include personal cultivation, and water required for traditional purposes. 2.6.1.2 Water Rights interpreted from Historic Use and Occupation The second position i s that Aboriginal T i t l e i s derived of from the "historic use and occupation" of the Aboriginal People. Two principle cases from the United States declared that: treaty was a reservation of rights from T i t l e that already exists 7 3 and; prior to reserve establishment Indians had command of a l l beneficial use of the lands and waters (whether the use be for hunting, grazing or for agriculture) 7 4. "Command" of a l l beneficial uses contradicts the narrow "traditional use" position. In Gueriri15 the judges expressed that F i r s t Nation's "sui generis" (generally meaning uniquely defined) interest i s only confused from interpretation based on traditional property valuations. For cl a r i f i c a t i o n Rights and Title should be considered from two points. First, that the Indians Rights and T i t l e are inalienable unless surrendered and; secondly, i f surrendered, i t rests upon the Crown to deal with the land on behalf of the interests of the Indians. Starr's analysis of the Province's capacity to enact legislation affecting Native communities determined that, Native interests in the land i s a prescriptive right, that i s : A t i t l e by p r e s c r i p t i o n was a c q u i r e d by t h e enjoyment o f a r i g h t f rom t i m e i m m e m o r i a l , o r t i m e o u t o f m i n d , from w h i c h an 7 3 B a r t l e t t , 1988. 10 . 7 4 B a r t l e t t , 1988. 1 1 . 7 5 Guerin v. « e g i / i a [ 1 9 8 4 ] 13 D . L . R . (4th) 321 . 43 o r i g i n a l g r a n t was i m p l i e d . 7 6 This position supports a broader scope definition of uses that stem from Aboriginal Rights and T i t l e . On the issue of quantity, US common law has determined the volume to be, that required to service "practicably irrigable" acreage. Practicably irrigable, the US solution to 'how much', has recently been defined from an economic context (i.e., i f given an unlimited volume of water one could make a rainforest from a desert, but this i s not "economically" practical). R. v. Sparrow (1990)77 was a case which considered the protection conferred by section 35(1) of the constitution. In this decision i t was stated that existing Aboriginal Rights "must be interpreted flexibly so as to permit their evaluation over time"78. A flexible interpretation of water uses stemming from existing Aboriginal T i t l e i s that a l l uses are yet protected for the SIB. Figure 2.4 depicts a summary of how quantity, use, and priority, are interpreted with these two positions on the derivation of Aboriginal T i t l e . To be considered in violation of section 35(1) the burden of showing interference i s on the Native people, but once shown the Crown must show that; l)the interference was reasonable, 2)that i t does not pose undue hardship and 3) does not deny preferred S t a r r , 1985. 14 . R. v. Sparrow [1990] 3 C . N . L . R . 160. N o t z k e , 1994. 9 . 44 Canadian Common Law (1888) St Catherine Milling title derived from the 'goodwill' of the Sovereign (1976) Isaac Resource Use "usufructuary'' (l9SS)Bear Island to use the lands and resources as "forefathers" had (1973) Calder Title from "historic use and occupation" (1985) Guerin Interest in land is inalienable. Govt' has fiduciary responsibilities if surrendered (1990) Sparrow Capacity of rights were to be valuated over time. QUAKtlTY Practicably irrigable the volume test. Recently ^ being given an economic definition U S E limited to traditional use of water resource PRIORITY traditional use = date of priority is time immemorial non-traditional = date of reserve establishment USE Includes unlimited type of use unless surrendered. Use which existed can be conducted in modern form QUANTITY No set limit. Needs to be determined. U. S. Common Law (1963) Arizona v. California Modern uses derived from the government establishing reserve (1905) Winans treaty not a grant to Indians of rights but rather a grant from of rights already posessed (1908) Winters Had "command" of all lands and water Figure 2.4 I n t e r p r e t a t i o n o f t h e t h r e e i s s u e s o f A b o r i g i n a l Water R i g h t s ( i . e . , q u a n t i t y , u se and p r i o r i t y ) whose s o u r c e i s A b o r i g i n a l T i t l e means of exercising the right. Three cases 7 9 that went to the Supreme Court of Canada in 1996 determined the test for a provisional violation of section 35 (1): w h e t h e r t h e a f f e c t e d a c t i v i t y i s an e l e m e n t o f a p r a c t i c e , c u s t o m o r t r a d i t i o n i n t e g r a l t o t h e d i s t i n c t i v e c u l t u r e o f t h e 79R. v . VanderPeet P a p e r Judgment 23803; QL [1996] S . C . J . 77 , R. v . N.T.C. Smokehouse Ltd. P a p e r Judgment 23800; QL [1996] S . C . J . 78 , R. v . Glandstone P a p e r Judgment 23801; QL [1996] S . C . J . 79 . Law L i b r a r y U p d a t e . A u g u s t 27 , 1996 Supreme Court of Canada *Reasons' received electronically; paper judgments to follow. 45 a b o r i g i n a l g r o u p c l a i m i n g t h e r i g h t . 8 0 Water rights derived from Aboriginal T i t l e , particularly the volume of water necessary for domestic consumption and the amount for fis h conservation needs, therefore enjoy constitutional priority to Provincial legislation. These uses most certainly are act i v i t i e s "integral" to the distinctive culture of the Sechelt Nation. Bartlett's analysis of Aboriginal water rights determined that those rights which are from Aboriginal T i t l e may be limited to traditional use but the purpose of reserve establishment may broaden the scope of that definition. The next part of this discussion, therefore, regards water rights from reserve establishment as result of Executive Order. 2.6.2 Reserve Establishment via Executive Order: Effective Water Rights Water rights derived from treaty or Executive Order in Council (hereafter executive order) are said to be similar. The difference i s that, with treaty, i t i s assumed that the Aboriginal people would have participated in the determination of those rights for which they would reserve unto themselves. This i s not the case with executive order. In British Columbia, the burden of Aboriginal T i t l e , for the most part, had not been removed by treaty. Reserves were established via executive order. The Native people were brie f l y consulted as to determination of reserve locations but the extent and terms were dictated by the Provincial Government. 80 Law L i b r a r y U p d a t e . A u g u s t 27 , 1996 Supreme Court of Canada "Reasons' received electronically; paper judgments to follow. 46 Common law interpretation of rights from executive order determine these to be based on the intent in setting the reserve aside. The intent expressed by Douglas for the fourteen original treaties was to: meet t h e i r w i s h e s i n e v e r y p a r t i c u l a r and t o i n c l u d e i n e a c h r e s e r v e t h e permanent V i l l a g e s i t e s , t h e f i s h i n g s t a t i o n s , and B u r i a l g r o u n d s , c u l t i v a t e d l a n d and a l l t h e f a v o u r i t e r e s o r t s o f t h e T r i b e s and i n s h o r t t o i n c l u d e e v e r y p i e c e o f g r o u n d t o w h i c h t h e y had a c q u i r e d an e q u i t a b l e t i t l e t h r o u g h c o n t i n u o u s o c c u p a t i o n , t i l l a g e o r o t h e r i n v e s t m e n t o f t h e i r l a b o u r . 8 1 As discussed earlier, subsequent governments took a far more parsimonious approach to the determination of land allotments. The purpose for reserve establishment i s clear, in that the desire was to enable non-Natives to appropriate land. What the intent of the reservation was for the First Nations though, i s not clear. I.W. Powell (Indian Superintendent for British Columbia) had expressed: T h e r e i s n o t , o f c o u r s e , t h e same n e c e s s i t y t o s e t a s i d e e x t e n s i v e g r a n t s o f a g r i c u l t u r a l l a n d f o r C o a s t I n d i a n s ; b u t t h e i r r i g h t s t o f i s h i n g s t a t i o n s and h u n t i n g g r o u n d s s h o u l d n o t be i n t e r f e r e d w i t h , and t h e y s h o u l d r e c e i v e e v e r y a s s u r a n c e o f p e r f e c t f r e e d o m f r o m f u t u r e e n c r o a c h m e n t s o f e v e r y d e s c r i p t i o n . 8 2 Access to the fishery and hunting regions was paramount and was the trade-off for the establishment of small Indian Reserve sizes. This trade-off was not upheld in action by the Province. Fishing rights and hunting have both been highly marginalized. Countering this perception of what Indian Reservations were for, the fact that a large purpose for Indian Reservations was for cultivation i s evident in the " B a r t l e t t , 1988. 44 . " A s q u o t e d i n : Reuban M . Ware , FIVE ISSUES FIVE BATTLEGROUNDS: An Introduction to the History of Indian Fishing in British Columbia 1850-1930 ( S a r d i s : C o q u a l e e t z a E d u c a t i o n T r a i n i n g C e n t r e , 1983) 14. 47 repeated queries from the McKenna/McBride Reserve Commissioners. The questions often asked were: Whether the Indian Reserve was under cultivation? and i f so, To what extent? 8 3. With either consideration, Aboriginal Water Rights whose source i s executive order confers a priority for domestic cultivation and use. The priority for water uses would be the date of the Reserve establishment. In addition, the Sechelt possess strong legal standing to enforce that measures of conservation for fish, and f i s h habitat are met, given the judgement in Pasco v. Canadian National Railway. Pasco halted a twin-tracking development when the court determined that, the F i r s t Nation's proprietary right to the river was strengthened by their fishing rights. The judgement for Saanichton Marina Ltd. v. Claxton upheld that, uses which interfere with a treaty right to fis h could be restrained. The Sechelt, based on the purposes of the reserve determination, therefore, has strong force and effect in limiting any draw on water, especially licensed uses which would impinge on their Aboriginal Right to f i s h . 2.6.3 Riparian Rights The Water Act was the culmination of several statutes enacted to effectively remove any riparian or prescriptive right. There are several act i v i t i e s involving the management of water which could affect lands riparian. For lands next to rivers management which could impose downstream impacts might include: flooding of lands due to sudden release of dammed 83 R o y a l C o m m i s s i o n on I n d i a n R e s e r v e s Transcript of Evidence. P r o v i n c e Of B r i t i s h C o l u m b i a . Volume 17. 2 4 6 - 2 7 9 . 48 waters; washing away of downstream riparian vegetation as result of upstream riprap channelization; reduced water quality from improper access to water by upstream users; and reduced flow overall due to water diversion. Lakeside riparian properties can be impacted by: damming the outflow, resulting in loss of land above waters; loss of quality of drinking water due to effluent loading from surrounding habitation; and draw down of water i f recharge rates are low. In general, riparian rights have been reduced for quantity. However, precedence exists which affords the a b i l i t y to protect water quality from deterioration by upstream uses. Rueggeberg (1984) wrote that: many l a w y e r s b e l i e v e , t h a t i n t h e i n t e r e s t s o f w a t e r q u a l i t y , t h e r i p a r i a n o w n e r ' s r i g h t t o sue f o r i n j u r y where an u p s t r e a m u s e r m i g h t be d i s c h a r g i n g h a r m f u l c o n t a m i n a n t s i s s t i l l a p o w e r f u l means o f p r e s e r v i n g h i g h q u a l i t y c o n d i t i o n s . 8 4 This right to sue for injury exists for a l l Canadians. It i s therefore an action that the Band might need to consider to protect their interests in the water resources. 2.7 P o l i t i c a l Perceptions: Affects on Actualizing Rights Many Canadians are beginning to understand that the rights of the Fir s t occupants have been, and are s t i l l being ignored. This i s a result of the hard work of many Native leaders who have sought to readdress the colonization agenda. The dynamic struggle between Fi r s t Nations to have their rights recognized, and the non-Natives to advance their claim on the xnew world', has effected graduated changes in the ^perception' of Aboriginal T i t l e and Aboriginal Water Rights. ^ R u e g g e n b e r g , 1984. Law n o t e s pg 659. 49 Figure 2.5 (next page) illustrates this author's interpretation regarding general non-Native perception of Native rights in response to the various legislative changes mentioned throughout this chapter. Non-Native perceptions have affected the Native capacity to assert their rights. The point of this diagram i s to ill u s t r a t e that perceptions of Aboriginal T i t l e and Aboriginal Water Rights are not synonymous. Previous to contact Aboriginal T i t l e i s given as solid black, which moves f i n a l l y to white (meaning the perceptions were that the Aboriginal Water Rights or T i t l e were considered to be effectively obliterated). There has never been any doubt as to Fir s t Nations' right to the fi s h in the Province. It was the reason given for the constraint applied in the issuance of reserve sizes 8 5. But as Ernie Crey, Executive Director, Lower Fraser Aboriginal Fisheries Commission, expresses: I r e g r e t t o s a y t h a t o u r e x p e r i e n c e , as we have t r i e d t o r e s t o r e a v e r y m i n i m a l d e g r e e o f s e l f - g o v e r n m e n t i n o u r f i s h e r i e s , has l e f t many o f us on t h e Lower F r a s e r R i v e r q u i t e s h a k e n . . . I s a y t h i s b e c a u s e we have f a c e d a d e g r e e o f h o s t i l i t y and r e s i s t a n c e t o o u r e f f o r t s t h a t r a i s e s a v e r y s e r i o u s q u e s t i o n . I f t h i s i s what we f a c e when we t a l k about f i s h - and a t i n y , t i n y f r a c t i o n o f t h e West C o a s t ' s f i s h e r i e s r e s o u r c e s a t t h a t - what happens when we s t a r t t a l k i n g about l a n d ? What happens when we s t a r t t a l k i n g about f o r e s t s ? 8 6 What about water? 2.8 Summary The Sechelt have demonstrated resiliency in adapting to the changes they have witnessed, and took part in, over the " S e e n o t e 82 . E r n i e C r e y , Aboriginal Commercial Right to Fish. P r e s e n t e d a t F i r s t N a t i o n R i g h t s t o Water C o n f e r e n c e , A p r i l 5 & 6 ( V a n c o u v e r : P a c i f i c B u s i n e s s & Law I n s t i t u t e , 1995) 1 1 . 1 . 50 Figure 2.5 Legislation and Actions that have existence and degree of Aboriginal Title and altered the non-Native political perceptions of the Rights (Shading indicates relative perceptual strength) ABORIGINAL TITLE 1 I CM FEDERAL Royal Proclamation First Acknowledgement of Aboriginal Title Dates pre- contact •1763 1850- 1854 I ABORIGINAL WATER RIGHTS PROVINCIAL Constitution Act Split Authority for Indians 91(24) (Federal) Resources (Fed/Prov) Indian Act Consolidation of all legislation dealing with Indians Amendment to Indian Act to make it illegal to bring suit for land claim. *~ 1859- 1865- •1867 1870- 1871- •1876- 1876- 1914' 1892- 1897- 1927 Amendment to remove potlatch, liquor and court prohibitions. Calder Aboriginal Title re-affirmed Constitution Act amendment Section 35 recognises and affirms Aboriginal Rights Guerin Fiduciary government responsibility SIB Self-government Act Capacity to manage land and resources delegated to the Band Sparrow Tests the powers of Section 35 • Douglas Negotiates Treaties in B.C Action to remove burden of title on the Crown, i Gold Fields Act Gold Commissioner grants right of water use. i Land Ordinance Act Riparian water rights asserted upon written authority. Indians excluded {Statutory water record required. Licensing B.C. Joins Confederation Trutch, appointed Lieutenant- Governor, denies Aboriginal Title Reserve Commission established to deal with reserve question Sechelt Reserves Established Water Privileges Act The right to the use and flow of water is vested in the Crown in the right of the Province Water Clauses Consolidation Act A water right now appurtenant to the land or mine and passed with its conveyance • 1951 1973 Provincial position is that if Title did exist it was extinguished by "1982 legislation. -1984 1985-̂  Meares Island Injunction Called the Province to deal with •1986 the question of Aboriginal Title 1990"* B.C. States willingness to negotiate treaty •1990 1993 Stewardship of Water First Nations recognised as a level of management for water in B.C. 51 past century. This chapter has documented some of the evidence for t e r r i t o r i a l management by the shishalh within their Traditional Territory. That there was regional divisions within the Sechelt Nation i s evidenced by the various myth statements, as well as by the opposition originally voiced to amalgamating the governance of the regions. The long-term occupancy of the shishalh, their experience with regional management, and adapting governance capacity i s the basis for the Sechelt Nations management of water resources. Co-operative water delivery arrangements established between the Band and the surrounding non-Native community has affected the Bands opportunity to designate the terms of their community development. The reason this has occured i s the result of a first enabled first in right water licensing regime established by the Provincial Government. Whether this is the f i n a l word depends on the capacities enabled via the treaty process. The scope of Aboriginal T i t l e or Aboriginal Water Rights have not been defined. The foundation of Aboriginal Water Rights stem from three sources which are: Aboriginal T i t l e , Executive Order-in-Council, and Riparian Rights. There are three dominant issues regarding Aboriginal Water Rights, that of quantum, uses, and priority of water access. Interpretation of Aboriginal Rights from the perspective that i t i s incumbent on the Crown to reserve those rights, tends to r e s t r i c t uses to those defined as "traditional", and uphold the priority designated by Provincial legislation. T i t l e derived from the principle of "historic use and occupation" gives a broader 52 scope to the interpretation of rights. Aboriginal Water Rights from this view does not limit the type of water use, nor quantity, but where priority for traditional use i s time immemorial, non-traditional i s generally limited to the date of reserve establishment. Rights derived from Executive Order depend on the purpose to which the reserve was set aside. The priority for water i s , in this case, the date of reserve establishment. Riparian rights have been effectively abrogated within British Columbia, at least with respect to quantity. The a b i l i t y for the Sechelt Nation, as a downstream user, to protect water quality via l i t i g a t i o n s t i l l exists, and i s a powerful means of preserving high quality conditions. The future for Native community development depends on their capacity to realize rights afforded as f i r s t occupants. The a b i l i t y for the Native community to actualize their Aboriginal Rights has been affected through the assertion of Federal and Provincial p o l i t i c a l w i l l with changing legislation. That these Rights exist i s not the issue. Rather, the challenge i s how we might, in future, look to meeting the needs of non-Natives without further compromising the Native community. Chapter 3 GOVERNING OF WATER: ISSUES OF CONSTRUCTION, OPTIONS FOR THE SIB 3.0 Introduction As of October 9, 1986, the Indian Act Sechelt Indians and Sechelt Indian Reserves ceased to exist. The Sechelt Indian Band Self Government Act (hereafter Sechelt Act) created in their place the Sechelt Indian Band with the Sechelt Band Lands. The Sechelt Nation has opted to develop this model of self government to address several cornerstone objectives. These objectives included: accessing control over membership, gaining autonomy over a l l people resident on Sechelt Lands, acquiring T i t l e to Sechelt Lands, and administrative stream-lining as a legal entity 1. Native leaders had noted that by 1983 the Sechelt Band was the only one to be delegated every possible authority under the Indian Act2. The Sechelt Band leaders found that, despite this, many development plans were s t i f l e d as a consequence of dealing with the Department of Indian Affairs (DIA) bureaucracy. The Provincial Government had amended the Municipal Act in 1960 to enable Indian Reserves to incorporate as "Indian Municipalities". This option was never pursued due to the concern that this would advance Provincial jurisdiction onto reserve lands affording, no 'Tom P a u l , "ASSESSING THE R I S K : A Two way S t r e e t , " i n Sechelt Indian Bald Self-Government Information Package. ( S e c h e l t I n d i a n B a n d : U n p u b l i s h e d , 1996) 1. 2 D a v i d H y a t t . "The S e c h e l t I n d i a n Band S e l f - G o v e r n m e n t A c t . P r e s e n t e d a t t h e N a t i v e R i g h t s S e m i n a r , Osgoode H a l l Law S c h o o l . 1986," i n Sechelt Indian Band Self Government Information Package. ( S e c h e l t I n d i a n B a n d : U n p u b l i s h e d , 1996) 3. 54 protection over Provincial p o l i t i c a l w i l l 3 . While the Sechelt Act does not recognize the f u l l extent of SIB's aspirations, i t was the best compromise that could be worked out with the Federal and Provincial governments at the time. The Sechelt Act delegates the responsibilities held by the Federal Government for the Sechelt Nation, and their lands, to the SIB Council. Bartlett expressed that: The a m b i t o f powers w h i c h c o u l d be c o n f e r r e d u n d e r t h e Sechelt Act i s n o t i n s u b s t a n t i a l , b u t t h e a f f i r m a t i o n o f p r o v i n c i a l power o v e r t h e l a n d s and t h e l i m i t e d a m b i t o f t h e power t o t a x s u g g e s t t h a t s e l f - g o v e r n m e n t i s n o t a p r o p e r d e s c r i p t i o n . The r e g i m e i s more p r o p e r l y t e r m e d s e l f - management and community g o v e r n m e n t . " 4 It was the intention of the Sechelt Band to increase their capacity for integration of administration and management, rather than becoming a separate entity. Consequently, many of the services and servicing arrangements existing prior to the enactment of the Sechelt Act remain the same. The changes involve primarily, the administrative arrangements. The existing water management authorities have not changed as result of this piece of legislation, but the capacity for the Band to determine future community growth has. The purpose of the following discussion i s to: outline management considerations that would promote the involvement of the Sechelt Nation and then; describe governing options that would promote the objectives for which the Sechelt Act 3 J o h n P . T a y l o r & G a r y P a g e t . "FEDERAL/PROVINCIAL RESPONSIBILITY AND THE S E C H E L T : P a p e r p r e p a r e d f o r t h e N a t i o n a l C o n f e r e n c e on F e d e r a l and P r o v i n c i a l Governments and A b o r i g i n a l P e o p l e s . C a r l t o n U n i v e r s i t y , O t t a w a . 1988" I n Sechelt Indian Band Self Government Information Package. ( S e c h e l t I n d i a n B a n d . U n p u b l i s h e d , 1996) 4 . 4 C l a u d i a N o t z k e , 1994. 184. 55 was adopted. One of the arguments presented to the opposition of enabling more management by Native communities is that, they lack the experience or s k i l l s necessary to carry out the task. It i s for this reason that the chapter begins with a discussion of c r i t e r i a , derived from the analysis of Coast Salish communities, to consider for sustainable water management. Given that the various F i r s t Nations communities no longer possess exclusive t e r r i t o r i a l control the discussion then turns to suggested action that would be necessary to mitigate the loss of further options for the Sechelt Nation. The hierarchy of governance, Provincially and locally, i s discussed to i l l u s t r a t e that i t i s , in part, the resultant bureaucratic complexities which affects the Bands capacity to be involved in water management. Finally the SIB governance structure and options for managing the water resources i s presented. 3.1 Developing a Land Ethic: Lessons from Some Locals Change in our lives i s simply an aspect of livi n g . Growing as individuals we physically undergo changes throughout our lives. For some, change i s angst-ridden, while for others i t i s a source of excitement. Having knowledge of upcoming changes, or perhaps the capacity to in i t i a t e and direct these changes can mitigate that angst to some extent. But this i s not always possible, particularly i f the changes are driven externally at the community, regional, or global level. Conflicts can arise when two or more groups feel their interests (frequently economic), are best served by changes which are essentially incompatible 56 with each other 5. These conflicts generally become more d i f f i c u l t to resolve when the courses of action directing the changes are defended or c r i t i c i s e d on value-laden or moral grounds6. As change i s inevitable, setting a plan for a course of action and forecasting impacts i s one way to deal with, and even possibly reduce conflict. The question i s , given that there are differences in values, how do we make reasoned choices which w i l l not limit our future potential? Kew and Griggs (1991) proposed using a set of features, developed from an analysis of the Salish indigenous cultural system, as c r i t e r i a to assess whether the management promotes the short term over the long term considerations. These features are discussed in the next section with the c r i t e r i a underlined. 3.1.1 Features of Coastal Native Communities The Sechelt Nation has occupied the same region for thousands of years with their various communities bounded to certain regions. This i s given as a condition for the f i r s t c r i t e r i a for sustainable resource use, that i s , there must be a commitment to place 7. The long-term association to place fosters a sense of belonging, a state of being 5 V i n c e G a r d i n e r and P a u l H e r r i n g t o n . "INTRODUCTION: E n v i r o n m e n t a l I s s u e s and t h e Water Demand F o r e c a s t i n g W o r k s h o p , " i n WATER DEMAND FORECASTING:Proceedings of a Workshop sponsored by the Economic and Social Research Council, e d i t e d by V . G a r d i n e r and P . H e r r i n g t o n , ( U . K . , N o r w i c h , 1986 ) , 1. 6 G a r d i n e r and H e r r i n g t o n , 1986. 1. 7 J . E . M i c h a e l Kew and J u l i a n R . G r i g g s , " N a t i v e I n d i a n s o f t h e F r a s e r B a s i n : Towards a M o d e l o f s u s t a i n a b l e R e s o u r c e U s e , " i n Perspectives on Sustainable Development in Water Management: Towards Agreement in the Fraser River Basin e d . A n t h o n y H . J . D o r c e y ( V a n c o u v e r : U n i v e r s i t y o f B r i t i s h C o l u m b i a , Westwater R e s e a r c h C e n t r e , 1991) 38 . 57 proposed as necessary to reinforce feelings of dependency on one's environment and thus respect for i t . The Sechelt Traditional Territory was, at the time of contact, divided up into five regions, comprising t e r r i t o r i a l delineations. Kew and Griggs (1985) describes such regional delineations as: a s e r i e s o f i n d e p e n d e n t u n i t s w i t h what we m i g h t c a l l p e r m e a b l e b o u n d a r i e s t h a t were n o t e n t i r e l y s e l f - s u s t a i n i n g , b u t w h i c h a p p r o a c h e d t h a t c o n d i t i o n . 8 The access and harvesting of resources was regulated and allowed to particular members of the Nation. This feature, that of local control and defined access, i s proposed to promote self-reliant groups. These groups, when necessary, can act towards a coordinated effort. The c r i t e r i a for assessing sustainable resource use in this instance i s that "the use system must demonstrate relative closure with regulated access and an identified community of users with a shared ethic of resource use".9 The shlsh&lh had bestowed spiritual embodiment on a l l facets of their surrounding landscape. Spirits, which were a part of their total environment, could affect their food gathering capacity, cause illness, and determine status in the community. Humans were therefore not considered dominant to the environment, but rather an ethic of mutual dependency was fostered. The First Nations had developed an ideology of Kew & G r i g g s , 1991. 39 . I n t h i s a r t i c l e t h e y were d e s c r i b i n g a g r o u p o f F i r s t N a t i o n s l i n g u i s t i c a l l y d e f i n e d as S a l i s h a n . The k i n s h i p c h a r a c t e r i s t i c s were o f t h e same s t r u c t u r e as what i s b e i n g d i s c u s s e d and so f o r t h i s d i s c u s s i o n a d o p t t h e i r argument . 9 K e w & G r i g g s , 1991. 39 . 58 themselves as a part of their surroundings. Kew and Griggs say this meant that they were "skilled in applied resource use within a working theory of ecology"10. In addition, the lesson for sustainability that can be learned from this, i s that sustainable use requires developing an understanding of the ecological feedback mechanisms on a visionary scale. This c r i t e r i a i s called the ethic of reciprocity 1 1. Historically, the resources that the shishalh gathered ranged from mountain goat to mussels, from birds to berries, though perhaps not within the same season as this would be dependant upon availability. They set aside foods, such as dried fish, and collected medicinal plants as they could. To access these favoured resources required an intimate knowledge of natural cycles, and expertise in assessing the production capacity of the resource. The Salishan would practise selective harvesting of deer, beaver, and moose by k i l l i n g males and non-breeding females12. Regarding conservation Gottesfeld points out that: I n t h e p a s t i t was common t o assume t h a t h u n t i n g and g a t h e r i n g p e o p l e s had i n s u f f i c i e n t p o p u l a t i o n o r i n s u f f i c i e n t t e c h n o l o g i c a l a b i l i t y t o a l t e r t h e b a l a n c e o f t h e i r e n v i r o n m e n t and so had no need o f c o n s e r v a t i o n . 1 3 There i s evidence to suggest though, that the culture groups of the Lower Mainland possessed capacity to diminish many coastal resources. One example is the weir construction on 1 0 K e w & G r i g g s , 1991. 40 . 1 1 Kew & G r i g g s , 1991. 40 . 1 2 K e w & G r i g g s , 1991. 36 . 13 L e s l i e M . J o h n s o n G o t t e s f e l d , " C o n s e r v a t i o n , T e r r i t o r y , and T r a d i t i o n a l B e l i e f s : An A n a l y s i s o f G i t k s a n and W e t ' s u w e t ' e n S u b s i s t e n c e , N o r t h w e s t B r i t i s h C o l u m b i a , C a n a d a , " Human Ecology 22 , n o . 4 (1994) : 445 . 59 salmon-bearing streams that had the potential to completely bar the migration of fi s h 1 4 . Another i s given by the fact of low fecundity within mountain goat populations. The low birth rates would only enable limited harvesting, certainly much less than enabled by the harvesting capabilities of the community15. This reliance on a broad range of resources, combined with the variation in harvesting effort, are features from which to derive c r i t e r i a of Scope and Integration 1 6. This means that resource acquisition should integrate different sectors, and seek to adapt to fluctuations in resource supply. Kew and Griggs suggest that doing this requires that harvest levels be maintained below "maximum capacity" 1 7. The f i n a l c r i t e r i a from which sustainable resource use might be assessed i s how much local control 1 8 i s enabled. Traditionally, the conducting of affairs for the shishalh had been done through their governance hierarchy (briefly discussed in sections 2.1.1 and 2.1.2). Decisions were reached using, what today would be described as, a "consensus" strategy. Discussions would take place in a manner that each member present would give their considered opinion, one that would not discredit their status, and from " K e w & G r i g g s , 1991. 3 6 . 1 5 G o t t e s f e l d , 1994. 458. 1 6 K e w & G r i g g s , 1991. 41 1 7 K e w & G r i g g s , 1991. 4 1 . 1 8 K e w & G r i g g s , 1991. 38 . 60 a l l the opinions decisions would be made for the community19. It i s recognized that more human effort i s contributed to ventures over which they have greater control. The shishalh, exerting their control effectively became stewards of the region. This stewardship i s most lik e l y to occur i f the people of the local area have direct decision-making capacity. These features have in the past contributed to the continuance of the shishalh within the traditional territory. The c r i t e r i a suggested w i l l be discussed in relation to how this pertains to water management from an optimal perspective, from the Provincial regime and then as a factor of today's local management. 3.2 Overarching Water Management Considerations The SIB has adopted the Sechelt Act model to achieve greater control over their resources and the a b i l i t y to manage them. The five c r i t e r i a derived from indigenous cultural systems (i.e., Local control, commitment to place, closure, ethic of reciprocity, and scope and integration) convey the importance of understanding the resources, their needs, and our place in providing for them, or impacting on them. It i s this authors assertion, given the information divulged during various interviews, that for the Band to participate in the management of water resources, there needs to be an understanding of: the existing structure; consideration of the factors driving change, so as to P e t e r s o n , 1990. 4 1 . 61 mitigate the human impacts; and permanent legislative mechanisms, so that the Band can have a reasonable degree of security that their efforts w i l l be realized. 3.2.1 Science: The Safety Net for 'Economic' Management With the present water management systems, the c r i t e r i a that we have moved the furthest away from i s that of ethic of reciprocity. The overarching philosophy dictating todays management regimes i s that of human dominance over nature. Although there i s more information about biological systems, where problems arise i s as stated with the following: I see a l m o s t a l l o f o u r p r o b l e m s i n t e r m s o f management a r e a t t h e c u s p between t h e s c i e n c e and t h e s o c i a l s c i e n c e . A l m o s t e v e r y t h i n g t h a t i s g o i n g wrong i s g o i n g b e c a u s e , f o r one r e a s o n o r a n o t h e r , f o r a l o n g t i m e s c i e n c e c o n t r o l l e d e v e r y t h i n g , d i d e v e r y t h i n g . 2 0 Further that, D e g r a d a t i o n o f w a t e r s u p p l i e s has been c o u n t e n a n c e d b a s e d on o u r f a i t h i n s c i e n c e and t h e o v e r r i d i n g c o n c e r n f o r t h e economy o f o u r p r o v i n c e . 2 1 An important reason for concern with today's climate of management has to do with the driving forces that dictate what is important to conserve. To merely preserve a wilderness area for the sake of the area i t s e l f does not receive favourable response, nor much allocation of funds. The underlying management premise usually concerns the human benefits can be derived from management. We are yet unable to incorporate readdressing our urban environment to include habitat restoration for areas that have been highly 2 0 C / G IWMP I m p l e m e n t a t i o n ( l o c a l r e p ) . I n t e r v i e w code 0 7 . Tape r e c o r d e d t r a n s c r i p t . I n t e r v i e w b y a u t h o r . S e c h e l t , B C . 13 F e b r u a r y 1996. 12 . 2 1 Chuck W e a t h e r i l l , e t . a l . . Tetrahedron LRUP, Water: Final Report of the Water Subcommittee. December 1993. 28 . 62 urbanized. The " c r i t i c a l streams" focus on halting the destruction of streams that have some species specific or commercial fishery potential, or i s the community's potable water supply, has the effect of creating ghettoization of streams. Chapman Creek i s the potable water source for the SCRD piping system. The C/G IWMP represents one example of how this ghettoization can be mitigated. Yet, those streams that are considered having presently no fish, or are not "under the microscope" because they are not the drinking water source, are not given any resources. This sends the message that to enable a development project, one must annihilate the natural production potential of the stream! If c i t y planners and managers were required to develop the habitat potential to a minimum percentage of the land base (e.g., a minimum ratio requirement that relates development to waterways), and development was restricted u n t i l that quota was met, then finances would be redirected to replan the landscape. As i t stands now, i t i s merely considered a lost opportunity instead of an unmet obligation. This system pits developers against those people looking to ensure species conservation. Maintenance of a quota, which was part of the intentioned purpose of zoning, can foster a more collaboration planning effort on a d i s t r i c t level. 3.2.2 Managing for: The Resource? The Region? Human Needs? There are two levels of management to consider for water. One level pertains to the resource i t s e l f and the multiple demands on i t (relating to scope), and the second concerns the area of the resource (need for integration). 63 Focusing on the resource requires an understanding of the production capacity of the resource and how management w i l l affect other resources (i.e. how establishing a reservoir might affect low flow volumes for fishery considerations). Area-oriented management draws from the resource-orientated management and relates this to the dynamics of the local regional and national demands22. Area-oriented management at a watershed level i s often referred to as "integrated" watershed management. Integration i s challenging because i t requires the incorporation of such factors as 2 3: • the need to develop our understanding of larger systems, in terms of the natural settings (biophysical), and human machinations (socio-economic and p o l i t i c a l - i n s t i t u t i o n a l ) . • expanding spacial boundaries (tributary-river links and riverine-marine links. • long-term consequences of actions. Need to address future concerns and have the prerogative to reverse some past commitments. • the demand for research to close gaps in knowledge of behaviour of human and natural systems. • that there i s pervasive uncertainty and so to some extent management w i l l involve facts and values. • the increasing debate over the ethical and moral precepts used to govern both the bio-physical and socio-economic systems. Mitigation of the human effects requires an understanding of the emerging needs so that we may be able to forecast water issues, and f a c i l i t a t e the changes that promote avoidance of stream ghettoization. Some forecasting considerations include understanding shifts in settlement " K e n n e t h N . B r o o k s and o t h e r s , ed.,HYDROLOGY AND MANAGEMENT OF WATERSHEDS ( Iowa:Iowa S t a t e U n i v e r s i t y P r e s s , 1991) 210 . 2 3 A . H . J . D o r c e y . "SUSTAINABLE DEVELOPMENT PRINCIPLES FOR WATER RESOURCES MANAGEMENT IN CANADA: TOWARDS A NEW CONSENSUS," i n Resolving Conflicts and Uncertainty in Water Management: Proceedings of the 45th Annual conference of the Canadian Water Resources Association, e d . Dan S h r u b s o l e ( O n t a r i o : C a n a d i a n Water R e s o u r c e s A s s o c i a t i o n , 1992) 1 . 3 - 1 . 5 . 64 patterns (demographic factors), budgeting restrictions (socio-economic factors), increased water quality f i l t r a t i o n and delivery capacity (technological factors), and changes to guidelines that alter present practises in pollution (planning legislation and p o l i t i c a l factors) 2 4. Park has outlined specific factors that contribute to changes in water demand to be25: -•Demographic F a c t o r s • i n c r e a s i n g p o p u l a t i o n t o r e g i o n • d e c l i n i n g b i r t h r a t e , d e c r e a s i n g number o f p e r s o n s p e r h o u s e h o l d • c h a n g i n g p o p u l a t i o n d i s t r i b u t i o n ( i . e . , i n f l u x f r o m c i t i e s , d e n s i f i c a t i o n o f u r b a n p o p u l a t i o n ) - * S o c i o - E c o n o m i c F a c t o r s • i n c r e a s e i n s t a n d a r d o f l i v i n g e f f e c t s i n c r e a s e d i n t o l e r a n c e o f low w a t e r q u a l i t y and demands f o r a m e n i t y a c c e s s • c h a n g e s i n h o u s e h o l d t y p e s ( i . e . , s i n g l e f a m i l y d w e l l i n g t o a p a r t m e n t s t y l e condominiums) • e c o n o m i c changes ( i . e . , movement away f rom heavy i n d u s t r i e s ) ^ T e c h n o l o g i c a l Changes • a w a r e n e s s and i m p l e m e n t a t i o n o f t e c h n o l o g i c a l d e v e l o p m e n t s u c h as r e c y c l i n g o f was te w a t e r • c h a n g i n g e n e r g y s i t u a t i o n ( i . e . , f o c u s m o v i n g f r o m c o a l , t o h y d r o e l e c t r i c i t y , t o n a t u r a l gas) • • P l a n n i n g l e g i s l a t i o n and P o l i t i c a l F a c t o r s • " s p e c i a l a r e a " d e s i g n a t i o n s b o t h by z o n i n g and p r o v i n c i a l i n i t i a t i v e s l i k e t h e p r o t e c t e d a r e a s t r a t e g y • g r a n t s u p p o r t ( i . e . , f o r community waste r e d u c t i o n , e t c . ) These are some of the things that the Band w i l l need to consider in their development of management systems. Several components of planning for water management need to occur. Strategic planning requires and involves projecting capital expenditures and overall policy changes. This stage would involve the setting of objectives by determining what needs C h r i s P a r k , "Water Demand F o r e c a s t i n g and t h e S o c i a l S c i e n c e s , " i n Water Demand Forecasting e d s . V i n c e G a r d i n e r and P a u l H e r r i n g t o n ( U K : N o r w i c h , Geo B o o k s , 1986) 2 6 - 3 0 . 2 5 P a r k , 1986. 2 7 - 3 0 . 65 to be done and looking at the possible scenarios. Investment appraisals are necessary to determine forecasted demand with attendent associated costs, and to analyze laws and bylaws which would support the planned direction (e.g., looking at regulating groundwater access as part of the infrastructure). Doing an appraisal means articulating constraints as well. These constraints may be budgetary, personnel, bio-physical, or p o l i t i c a l . How this w i l l work on a day to day basis, or in operational planning i s the f i n a l component26. This includes looking at needs dynamically and temporally (i.e., according to day of the week, month, or season) using whatever techniques are available or feasible. In addition to everyday requirements, i t i s the peak demands on the resource which w i l l push the need for capital expenditures, and increase operational costs. There i s a certain amount of "leakage" with any system, and this has to be factored in as a water needs consideration. This raises a number of issues to be addressed. What to do in times of disruptive events, such as a drought, i s a planning concern that should be addressed proactively rather than retroactively when tensions are lik e l y to be high. There i s elemental uncertainty in any planning. When looking at community growth there are circular considerations such as, whether the population drive the infrastructure and industry or i s the infrastructure developed f i r s t to promote industry 2 6 V i n c e G a r d i n e r and P a u l H e r r i n g t o n , "The B a s i s and P r a c t i s e o f Water Demand F o r e c a s t i n g , " i n WATER DEMAND FORECASTING:Proceedings of a Workshop sponsored by the Economic and Social Research Council. e d i t e d by V . G a r d i n e r and P . H e r r i n g t o n , ( U . K . , N o r w i c h , 1986) , 7 - 1 1 . 66 and thus attract population? The strategies used w i l l determine the outcome. Also, should the future be an outcome of the wishes of the local population and the constraints that the environment places on them?, or should various "expert" opinions be polled to present alternatives that the local community may have no experience with. It i s suggested by the c r i t e r i a set out in section 3.1 that the demand articulation be driven locally with assistance from experts at a higher level. 3.3 Provincial Governance of Water: The Present System Three of the c r i t e r i a previously discussed (i.e., ethic of reciprocity, commitment to place, and local control), advocate that sustainable management should be more locally defined. Given this, why does the local democracy "allow" the Province based management at all? From a planning perspective, this higher level management can help to coordinate interests occurring in one region with that of another. Two similar ventures within relatively close regional proximity may produce conflict, and two such similar uses may not then be the best use of valuable resources. A provincial system creates the advantage of operationalizing uniform standards for data gathering. This i s another means of improving coordination so that sharing of information can promote greater understanding. Regional coordination i s important for managing human systems, and additionally i s required to address the transboundary issues that are a factor of the physical dynamism of the water resources. Fox (1991) suggests that i t be incumbent on the 67 province to promote natural science research. This i s necessary to increase social benefits derived from water, and to provide unbiased expertise that can assist the local management with technical information 2 7. Having suggested that provincial management i s a necessary condition, the next part discusses the present legislative structure for management of water in the Province. 3.3.1 Legislative Derivation of Powers for Water Management The Constitution Act, 1867 s p l i t s the legislative jurisdiction for land and related resources between the Federal and Provincial Governments. Water, as with other resources, have been found to be appurtenant to the land. Thus the division of jurisdictional powers which relate to water i s covered under a myriad of constitutional powers as shown in Table 3.128. As i t i s not within the scope of this thesis to discuss how water management by the Band would be affected under every one of these sections. Table 3.1 i s included merely to il l u s t r a t e the various jurisdiction that exist between the Federal and Provincial governments. Water management i s complicated by many acti v i t i e s , but the action that has had the most definitive regulation i s that of allocating water. z / I r v i n g K . F o x , " I n s t i t u t i o n a l D e s i g n f o r t h e Management o f t h e N a t u r a l R e s o u r c e s o f t h e F r a s e r R i v e r B a s i n , " i n Perspectives on Sustainable Development in Water Management: Towards Agreement in the Fraser River Basin, e d . , A n t h o n y H . J D o r c e y ( V a n c o u v e r : U n i v e r s i t y o f B r i t i s h C o l u m b i a , Westwater R e s e a r c h C e n t r e , 1991) 3 0 1 . 28 B r i t i s h C o l u m b i a M i n i s t r y o f E n v i r o n m e n t , L a n d s , and P a r k s . Stewardship of the Water of British Columbia: A Review of British Columbia's Water Management Policy and Legislation, vol. 9 Background Report. 1993. 5 . 68 PROVINCIAL JURISDICTION •92 (5 ) management and s a l e o f p u b l i c l a n d s p r o v i n c l a l l y owned •92(10) l o c a l w o r k s and u n d e r t a k i n g s •92(13) Property and c i v i l r i g h t s •92(16) m a t t e r s o f l o c a l o r p r i v a t e n a t u r e i n t h e p r o v i n c e •92A l e g i s l a t i v e j u r i s d i c t i o n t o make laws r e e x p l o r a t i o n , d e v e l o p m e n t , c o n s e r v a t i o n , management o f n o n - r e n e w a b l e n a t u r a l r e s o u r c e s , i n c l u d i n g s i t e s and f a c i l i t i e s f o r g e n e r a t i o n and p r o d u c t i o n o f e l e c t r i c i t y FEDERAL JURISDICTION •91(12) s e a c o a s t and i n l a n d •91(10) n a v i g a t i o n and s h i p p i n g • 9 2 ( 1 0 ) ( a ) works and u n d e r t a k i n g s c o n n e c t i n g t h e p r o v i n c e s o r e x t e n d i n g b e y o n d t h e l i m i t s o f t h e p r o v i n c e •91(24) Indians and land reserved f o r Indians •91(27) c r i m i n a l law •108 c e r t a i n e n u m e r a t e d p u b l i c works a n d p r o p e r t y •95 f e d e r a l and p r o v i n c i a l governments have c o n c u r r e n t powers o v e r a g r i c u l t u r e Table 3.1 S e c t i o n s o f t h e Constitution Act, 1867 h a v i n g b e a r i n g on w a t e r r e s o u r c e s u n d e r f e d e r a l o f p r o v i n c i a l j u r i s d i c t i o n . The Water Act i s the regulating statute and this i s administered by the Ministry of Environment, Lands, and Parks (MoELP). The structure of this administration i s discussed next. 3.3.2 MoELP Structure: Capacity for Aboriginal Water Management The MoELP was restructured and subjected to extensive down-sizing in 1996. This has resulted in water management essentially conducted through two of the four main divisions. These two divisions, Headquarters and Regional of Environment and Lands (see Figure 3.129) , s p l i t the responsibilities by having Regional Offices and Resource Stewardship conducting the community coordination, while "Headquarters" manages the compilation factors such as T h i s o r g a n i z a t i o n a l s t r u c t u r e i s made f r o m t h e c o m p i l a t i o n o f t h e f o l l o w i n g s o u r c e s ; R o b i n M c N e i l i n Runoff ( 1 9 9 7 ) , P a t S h e a , M o E L P , p e r s . c o m m . ( 1 9 9 7 ) , L y n n K r i w o k e n , MoELP, F a c s i m i l e ( 1 9 9 7 ) , BCMoELP INTERNET ( 1997 ) . 69 allocation, water quality management, and serving as the data repository. M I N I S T E R Deputy Minister Environment and Lands Division {Headquarters) AssvjiUnt Deputy Minister Environment & Resource Management j Director Parks Division Assistant Deputy Minister -o 665o -o Corporate Services Division Assistant Deputy Minister Environment and Lands Division (Rcgious) Assistant Deputy Minwter Resources Inventory & Data Management Director Water Management Director Aquatic inventory (hjdrologv) Water Allocation (licensing) Water Quality llabilal & Terrestrial Laboratory Services I 56661666666 Resource Stewardship Director (Victoria) Habitat pjfotectiott Aboriginal Affairs Integrated Management Groundwater Public Safety LEGEND Hierarchy of water management 6 Other branches withn MoELP Lower Mainland Region Director (Surre>) Aboriginal Relations Corporate Services Enforcement Land & Water Fish/ Wildlife/ Habitat Pollution Prevention Planning and Assessment Figure 3.1 H i e r a r c h i c a l structure of the relevant d i v i s i o n s , departments and branches within the M i n i s t r y of Environment, Lands, and Parks that are involved with water management. Management of water through the Provincial government has fallen far short of stewardship within watersheds, in part because of the complexity involved in trying to integrate the social, bio-physical and economic concerns, but also because of the propensity to become advocates of the organizational structure and level at which managers are 70 employed30. Figure 3.1 depicts that within the MoELP structure Aboriginal people are considered as a program or department rather than occupying a seat with any decision making capacity. The Province i s divided into seven different regions, of which the Sunshine Coast area f a l l s into the Lower Mainland region. Below the level depicted in Figure 3.1 as "Lower Mainland Region" management occurs on a program, rather than an area basis. So the closest that this structure gets to local management, i s only when there are people employed under these particular programs that li v e within the Sunshine Coast area. During the summer of 1997 there were only two people, both from the Fish/Wildlife/Habitat program31, that were resident on the Sunshine Coast. In addition, the SIB i s affected directly by the duties carried out by the Aboriginal Relations program and Aboriginal Affairs Branch. Their main activity i s to assist with treaty negotiation, advancing the Province's side at the Treaty Negotiation table. Institutional design should ideally be constructed in such a way as to effectively manage resources according to the preferences of the public i t serves. The extensive and overlapping bureaucratic jurisdictions that presently exist mean the original voice, that of the public, can be lost. This circumstance i s referred to as Michel's dilemma: J " F o x , 1991, 296. 31 P a t S h e a , A s s i s t a n t D i r e c t o r , M i n i s t r y o f E n v i r o n m e n t , L a n d s , and P a r k s . Personal Communication. 21 J u l y 1997. 71 d e m o c r a t i c s o c i a l a c t i o n i s p o s s i b l e o n l y t h r o u g h b u r e a u c r a t i c o r g a n i z a t i o n , and b u r e a u c r a t i c o r g a n i z a t i o n i s d e s t r u c t i v e o f d e m o c r a t i c v a l u e s . 3 2 The assumption though, i s that F i r s t Nation's preferences are being solicited and enacted upon in the f i r s t place. As Fox notes, preferences of minorities are disadvantaged on two points: f i r s t of a l l the preferences themselves tend to receive limited consideration, and secondly these same groups often lack the expert assistance required to define the alternatives in an explicit fashion 3 3. Although a large proportion of the Canadian population recognize that Native people have been deprived of resources which are rightfully theirs 3 4, there i s s t i l l considerable resistance to the enabling of Native control over their resources, particularly in entrenched bureaucracies. Pinkerton (1992) has examined such a circumstance in Washington State. In the Pacific Salmon treaty process the US side has representatives from the Native community there to defend their issues at the negotiating table. This arrangement arose as a result of the Boldt Decision 3 5, where the tribes along that river were allocated f i f t y percent of the salmon harvest in a compromise to uphold the terms of the treaties made with the relevant Nations. It has been " A s q u o t e d by F o x , 1991. 296 . 3 3 F o x , 1991. 296. 3 4 F o x , 1991. 298 3 5 F a y G . Cohen " T r e a t y I n d i a n T r i b e s and W a s h i n g t o n S t a t e : The E v o l u t i o n o f T r i b a l I n v o l v e m e n t i n F i s h e r i e s Management i n t h e U . S . P a c i f i c N o r t h w e s t , " i n Co-Operative Management of Local Fisheries: New Directions for Improved Management and Community Development, e d . E v e l y n P i n k e r t o n ( V a n c o u v e r : U n i v e r s i t y o f B r i t i s h C o l u m b i a P r e s s , 1989) 3 7 - 4 8 . 72 with l i t i g a t i o n not legislation that many of these efforts of the Fi r s t Nation community have advanced to any degree. It took ten years for negotiations to begin on how to effect this f i f t y - f i f t y s p l i t . Getting to the negotiating stage required replacement of the head of the Washington Department of Fisheries, and six of the eight senior people in the agency36. Essentially, a top down bureaucratic house- cleaning was required to enable rights that had been legally upheld by the courts. The courts are an expensive process who's outcome may not find compromise for both the Native and non-Native community. It i s important, therefore, to foster those relationships which engender collaborative, and mutually beneficial, arrangements to avoid having to adopt such polarizing measures. 3 . 3 . 3 The Water Act: Limitations a Statute Effects on Management The three main issues of water management, that of quality, quantity, and timing of flow are handled separately within the Ministry, and only as a result of a particular program. There i s not, for example, any direct linking between water allocations (quantity), with f i s h habitat (quantity and timing of flow). Part of this stems from d i f f i c u l t i e s in p r i o r i t i z i n g the economic/social/bio- physical needs, but also this lack of integration arises from the different legislative statutes that determine the mandate for the managing of resources. According to Scott 3 6 E v e l y n W. P i n k e r t o n , " T r a n s l a t i n g L e g a l R i g h t s i n t o Management P r a c t i c e : O v e r c o m i n g B a r r i e r s t o t h e E x e r c i s e o f Co-Management ." Human Organization 51 . No . 4. 1992. 331 . 73 (1991) the Water Act possesses eleven features; • t h a t i t v e s t s w a t e r i n t h e p r o v i n c e i n r i g h t o f t h e P r o v i n c i a l C r o w n , • t h e p r i o r i t y f o r w a t e r u s e s a r e b a s e d s o l e l y on p r i o r i t y d a t e o f l i c e n s e , • t h a t t h e l i c e n s e must be p u t t o t h e b e n e f i c i a l u s e u n d e r t h e t e r m s o f t h e l i c e n s e f o r f u l l vo lume o r t h e w a t e r a l l o c a t e d may be w i t h d r a w n , • t h a t t h e w a t e r vo lume i s a p p u r t e n a n t t o t h e l a n d o r mine f o r w h i c h i t i s a p p l i e d , • t h e l i c e n s e d w a t e r a l l o c a t i o n t r a n s f e r s w i t h t h e l a n d o r m i n e , m a i n t a i n i n g t h e o r i g i n a l l i c e n s e d p r i o r i t y , • t h a t i t d e a l s a t l e n g t h w i t h q u a n t i t y b u t does n o t a d d r e s s w a t e r q u a l i t y , • t h e government i s bes towed t h e power t o s e t a s i d e , o r r e s e r v e vo lumes o f w a t e r , • t h e A c t does n o t speak t o t h e m a i n t e n a n c e o f low f l o w vo lumes f o r f i s h h a b i t a t , • t h e r e i s no l i m i t p l a c e d on t h e government as t o how much w a t e r c a n be l i c e n s e d f rom any p a r t i c u l a r w a t e r b o d y , • t h e r e a r e p r o v i s i o n s t o s u p p o r t t h e d e v e l o p m e n t o f l a r g e s c a l e w a t e r d i s t r i b u t i o n s sys tems f o r i d e n t i f i e d w a t e r d i s t r i c t s , • t h e A c t i s compact ( i . e . , i s s u e s o f q u a n t i t y , f i s h h a b i t a t , e t c . d e a l t w i t h e l s e w h e r e ) . There are several ways that the features of the Water Act affects the SIB's capacity to be involved in water management. The priority licensing system was established when the mechanisms for accessing revenues was bureaucratically inefficient. Larger revenues are required to develop water infrastructures, but this was administratively prohibitive. Also, i t was not u n t i l the establishment of the Sechelt Act that the Band could apply to have themselves identified as a municipality and consequentially be recognized as a water d i s t r i c t . These concerns regarding the priority being based on merely date of application are even broader in scope as expressed by an interview respondent: I t ' s n o t j u s t F i r s t N a t i o n s r i g h t s t o w a t e r , i t ' s a l s o t h e f i s h e r i e s r i g h t s t o w a t e r t h a t a r e p o o r l y a d d r e s s e d u n d e r t h e Water Act. You k n o w , t h e Water Act does n o t a d d r e s s t h e 74 o p t i m a l use o f w a t e r f rom any p e r s p e c t i v e . 3 7 There i s ranking within the Act for water uses, but this i s used only to decide between conflict of priority for water licensed on the same source with identical priority dates. Managing water uses by priority allocation (i.e., with licensing) does not take into consideration the area management concerns. This includes the link between freshwater and marine systems. Traditional harvesting of shellfish, and other bottom feeders, are an important concern for the SIB and so increasing this link i s essential. Integrated planning to consider marine environments i s complicated by having the responsibility for inland waters l i e with the Province (administered through the Ministry of Environment), whereas marine and oceans are Federal jurisdiction with the responsibility assigned to the Ministry of Fisheries and Oceans. In addition, the cumulative effects of urban development are increasingly affecting marine water quality. Urban a c t i v i t i e s f a l l under several jurisdictions in the planning of municipalities 3 8. Vesting water to the Crown in right of the Province impinges on the Bands capacity to u t i l i z e this resource. However, that the government can set aside a reserve volume of water, presents a large opportunity to protect the SIB's interests in the water and i t s uses. Under section 44 of the C / G IWMP Deve lopment ( p r o v i n c i a l r e p ) . I n t e r v i e w code 0 6 . T a p e r e c o r d e d t r a n s c r i p t . I n t e r v i e w by a u t h o r . B u r n a b y , B C . 04 O c t o b e r 1996. 10 . 38 R . P . C 6 t e . "Management o f C o a s t a l Water Q u a l i t y and u s e P r o b l e m s i n C a n a d a . " Canadian Water Resources Journal ( V o l . 18, No . 4, 1993 ) , 386 . 75 Water Act the Lieutenant Governor in Council may reserve a l l or part of the unrecorded water of the stream from being taken, used, or acquired. It is with a section 44 water reservation that the volume negotiated for the Nisga'a Agreement-in-Principle w i l l be set aside ( i f r a t i f i e d ) . Negotiation of the Nisga'a treaty i s a process that has been ongoing since the Calder case in 1973. It appears that i t w i l l be 1998 before a f i n a l treaty may be signed 3 9, whereupon that reservation of water would then take effect. If i t takes the same twenty-five years to implement such a strategy in the STT then, in my opinion, the Sechelt would do better to adopt an alternative strategy, by establishing themselves as a water d i s t r i c t and developing capital infrastructure now. When a MoELP manager (that deals with Fi r s t Nations water issues) was asked, given the protractedness of the treaty process, what other options were available to aid in protecting the Sechelt's future interests in water the response was: I 'm n o t s u r e t h a t t h e S e c h e l t c o u l d n ' t a s k t h e P r o v i n c e t o e s t a b l i s h a r e s e r v e f o r them anyway. I j u s t c a n ' t g u a r a n t e e what t h e r e s p o n s e w o u l d b e . . . I w o u l d n ' t s u g g e s t t h a t you need t o go t h r o u g h t h e t r e a t y p r o c e s s t o g e t t h e r e s e r v e . To me what t h e t r e a t y p r o c e s s i s d o i n g i s g e t t i n g some r e a l d e f i n i t i o n about what i s a p p r o p r i a t e t o r e s e r v e . So I d o n ' t , r i g h t now f o r example what t h e S e c h e l t m i g h t want t o do i s a s k us t o e f f e c t i v e l y r e s e r v e t h e e n t i r e d r a i n a g e p e n d i n g t h e r e s o l u t i o n o f t h e t r e a t y . 4 0 This reservation could provide important protection for the Sechelt's interests in water. 39 J o e G o s n e l l , From n o t e s t a k e n a t p r e s e n t a t i o n . U n i v e r s i t y o f B r i t i s h C o l u m b i a , M a c M i l l a n B u i l d i n g . 04 M a r c h 1997. ^ M i n i s t e r i a l Water P l a n n i n g & R i g h t s ( M o E L P ) . I n t e r v i e w code 0 8 : 0 2 . Tape r e c o r d i n g t r a n s c r i p t . I n t e r v i e w b y a u t h o r . V i c t o r i a , B C . 12 M a r c h 1997. 10 . 76 Disputes on decisions that would be covered under the Water Act are not resolved through the courts but rather interpreted by the Environmental Appeal Board. This internal appeal structure has been c r i t i c i z e d as being slow in responding to attempts to redesign water rights 4 1. With the courts having no jurisdiction, and a water revolt being unlikely, i t i s expected that the only means to affect changes would be enactment of a new statute to address issues mentioned earlier, or the establishment of a new division of bureaucratic responsibility, one that would empower Fir s t Nations to execute water management. Water management i s complicated at the Constitutional level with the authority for water issues s p l i t between the Federal and Provincial governments. This, combined with the bureaucratically complex structure of Provincial program management, effectively excludes the Bands a b i l i t y to have any practical control over the water resources in their territory. There are mechanisms present within the Water Act, such as the laying aside of a reserve volume of water, that could, in a small way, enable greater authority. Whether this i s realized may very well depend on the Province seeing themselves as representing Native concerns or, instead adopt an adversarial role as a byproduct of the Treaty negotiations. This section has presented some of the A n t h o n y D . S c o t t , " B r i t i s h C o l u m b i a ' s Water R i g h t s : T h e i r Impact on t h e S u s t a i n a b l e Deve lopment o f t h e F r a s e r B a s i n , " i n Perspectives on Sustainable Development in Water Management: Towards Agreement in the Fraser River Basin, e d . A n t h o n y H . J . D o r c e y ( V a n c o u v e r , B C : U n i v e r s i t y o f B r i t i s h C o l u m b i a , Westwater R e s e a r c h C e n t r e , 1991) 376 . 77 factors pertaining to the Provincial structure and statute for water management that has affected the Bands' capacity to be involved, the next section looks at the local issues. 3.4 Local Management: Many Seats of Government On the Sunshine Coast there are several townships and smaller communities that have separately developed service infrastructure, and governance bodies. This coast Peninsula is characterized by having developed as cottage communities along the highway. Highway 101 skirts the west side of the Sechelt Peninsula and joins the two main routes off of the Peninsula, both requiring ferry trips. Water access for these various communities was developed independently and differently according to location of the land, and avai l a b i l i t y of water bodies. The Gibson's area, on the most southern portion, has serviced the community from two large community wells 4 2. On the other end of the Peninsula, the various lakes were (and s t i l l are) the main community water source 4 3. The Town of Sechelt located on the isthmus of the coast Peninsula derives i t s water supply from the delivery system developed on Chapman and Gray Creeks. The Town of Sechelt i s the resident headquarters of the Di s t r i c t of Sechelt, and the Sunshine Coast Regional D i s t r i c t (SCRD). The SCRD has, over time become the main water purveyors for the Sunshine Coast. Their capacity to do so i s the result of 4 2 I n f r a s t r u c t u r e Deve lopment (Dayton & K n i g h t : E n g i n e e r i n g ) . I n t e r v i e w code 0 5 . Tape r e c o r d e d t r a n s c r i p t . I n t e r v i e w by A u t h o r . West V a n c o u v e r , B C . 09 A u g u s t 1996. 1. 4 3 W e s t l a n d R e s o u r c e G r o u p , Final Report: Sunshine Coast Regional District Electoral Area "A" Lakes Study. Prepared for the Sunshine Coast Regional District ( V i c t o r i a B C : P r o j e c t 9 1 - 0 0 3 , A p r i l 1 9 9 2 ) . 78 the several licenses they had purchased for water flowing from Chapman and Gray Creeks. 3.4.1 Resource Commodification A feature of the Water Act was that licenses were to be appurtenant to a land or mine. The purpose of this was to avoid commodifying water. That i s , the Province did not want to have the establishment of water brokering. Despite this, where water i s scarce, or the water body i s f u l l y recorded, the license may become the main bargaining component determining purchase costs in a land transaction. This was certainly the case for the acquisition of lands and infrastructure, that were purchased from Union Steamships Ltd. by the SCRD. The SCRD disputed the asking price. The only property in this exchange they f e l t had value, was the license. The infrastructure was, according to their assessment, severely deteriorated 4 4. This dispute went to arbitration, and the price was determined to be the half-way point between what was being asked, and what was offered. The message here i s that these licences are a bargained commodity. To have purchased this "commodity" would have required the Band to be recognized as a water d i s t r i c t or municipal d i s t r i c t , and reasonable means of accessing revenues for the purchase. This was an opportunity not available to them in the past but certainly a lesson to be heeded for the future. I n f r a s t r u c t u r e deve lopment h i s t o r y ( l o c a l ) . I n t e r v i e w code 04 . Tape r e c o r d e d t r a n s c r i p t . I n t e r v i e w by a u t h o r . S e c h e l t , B C . 19 J a n u a r y 1996. 3 . 79 3.4.2 Waterworks, Waterworks Everywhere The jurisdiction of the Sechelt Indian Government Di s t r i c t encompasses, and i s limited to, the SIB Lands that are dotted throughout the Sechelt Traditional Territory (STT). Other man made boundaries within the territory include the many waterworks administrative jurisdictions, and government d i s t r i c t s . In an effort to coordinate the water demand on the Peninsula, the SCRD has opted to provide a seat for each of the five electoral areas and three municipal government d i s t r i c t s shown in Figure 3.2. Figure 3 .2 L o c a t i o n o f t h e S e c h e l t I n d i a n Government D i s t r i c t on t h e S e c h e l t P e n i n s u l a i n r e l a t i o n t o o t h e r Government D i s t r i c t s and e l e c t o r a l a r e a s . Many of the communities located within these electoral areas have developed their own water delivery systems and 80 possess licenses to support them. There are ten different Band Lands located within Electoral Area A and in this small region there are four separate waterworks organizations operating 4 5. The SCRD servicing area extends almost linearly from Secret Cove to Soames Point and Langdale located on West Howe Sound (see Figure 3.3)46. Figure 3.3 General Area covered by the Sunshine Coast Regional D i s t r i c t p i p i n g system ( i . e . , from Secret Cove to West Howe Sound, and e i t h e r side of Porpoise Bay) . Their area has expanded very quickly, in part because water users that had previously relied on a well supply have encountered the problem of their wells running dry 4 7, and also several communities have requested that they be incorporated into the system. Both past and present employees of the SCRD, that were interviewed, expressed the view that the SIB and SCRD has worked very closely since Westland Resource Group, 1992. These include the Egmont Cove Property Owners Association, Garden Bay Lake Waterworks South Pender Harbour Waterworks d i s t r i c t , and the SCRD. 46 Sunshine Coast Regional D i s t r i c t , Ten Years of Water from the Sunshine Coast Regional District Water System, Pamphlet. (Sechelt:SCRD Public Works Department, 1993) 4 7 I n f r a s t r u c t u r e development (Dayton & Knight: Engineering) Interview code 05. Tape recorded t r a n s c r i p t . Interview by author. West Vancouver, BC. 09 August 1996. 10. 81 SCRD's inception (1967-1968)48. Having a seat on the regional board f a c i l i t a t e s the integration of interests (described earlier as important for resource sustainability and labelled as closure). This Board addresses the ongoing concerns of the community as they pertain to the SCRD, but projecting future demands is done by the planning board. It is with this activity, that of planning and integrating their future goals, that the Band can opt to ensure that their potential community growth is enabled. As i t stands now, the Band may not be able to pursue this option because a seat on the planning board requires a contribution of at least $40,00049. Even i f the Band funds this position i t i s important to remember that, although there are representatives from each electoral area on the SCRD Board, this does not mean that the SCRD speaks for the various separate waterworks associations. This s t i l l leaves the task of linking with each of them i f , the Band i s to protect their interests in the areas water resources and to plan for the future. Although to some extent the SCRD and Dis t r i c t of Sechelt (DoS) deal with a different land base, there i s a duplication of services because they are both based in the Town of Sechelt. Some of the duties are placed with one or the other but several functions such as zoning, planning, I n f r a s t r u c t u r e deve lopment h i s t o r y ( l o c a l ) . I n t e r v i e w code 04 . 19 J a n u a r y 1996. 8 . SCRD R e p r e s e n t a t i v e . I n t e r v i e w code 0 3 : 0 2 . 07 J a n u a r y 1996. 1. Tape R e c o r d e d t r a n s c r i p t . I n t e r v i e w s by A u t h o r . 49 SCRD R e p r e s e n t a t i v e . I n t e r v i e w code 0 3 : 0 2 . Tape r e c o r d e d t r a n s c r i p t . I n t e r v i e w by a u t h o r . S e c h e l t , B C . 07 J a n u a r y 1996. 12 . 82 and house-numbering are carried out by both governance organizations. Water distribution i s handled by the SCRD, whereas discharge i s the responsibility of the DoS, as a consequence the two act i v i t i e s are not tightly linked. As of January 1996 there were discussions underway to explore the amalgamation of the governance structures of the Districts of Sechelt and Gibsons, as well as the Sunshine Coast Regional Dis t r i c t . The amalgamation would basically create one governing body for four of the five the electoral areas (labelled B-F in Figure 3.2). For the Band this could establish an efficient "one-stop" means of coordinating their interests. It could also mean that the Bands interests become essentially overshadowed as a result of a larger, self-interested bureaucracy. Which outcome would depend on the authority given to the Band within this new government. 3.4.3 Limits to Growth? Apparently Not The SCRD system has become the largest service provider for water on the Sunshine Coast and so i t i s appropriate at this point to give some facts about their operation. As of 1995 the servicing population was approximately 22,000 people50, constituting around 7300 connections. This i s supported by a system that derives most of the water from Chapman Creek (84.5%), and i s supplemented from Gray Creek, D a y t o n & K n i g h t L t d . , Sunshine Coast Regional District Mountain Lake Storage for 1995 Update of 10 Year Waterworks Plan f o r S u n s h i n e C o a s t R e g i o n a l D i s t r i c t . S e c h e l t , B C . November 1996. 2 - 1 . 83 wells, and lake water51. The mountain lake storage system including both Chapman and Gray Creeks i s projected to supply 93% of the water to the system, by the year 2005, to service just over 28,000 users 5 2. In 1993, the quantity of water used from this system was 1.879 million gallons per day with the peak consumption reaching 4.5 million gallons per day53. For their own administrative purposes the system is divided into eleven sectors 5 4, with the Band having Lands in sectors 6 (Selma Park/Davis Bay), 7 (Sechelt/Tuwanek), and 11 (North of Secret Cove, essentially Electoral Area A discussed earlier). The method of research used to determine what was involved or what were barriers to water management for the Band was described to be "Explanation-building" (see chapter one). At the outset i t seemed allocation was the issue, at least u n t i l these comments were stated by SCRD representatives which effected a shift in my conception of the subject: I d o n ' t t h i n k w e ' l l e v e r s t o p g r o w t h on t h e c o a s t b e c a u s e o f l i m i t e d w a t e r s u p p l y . T h e r e ' s a lways ways o f p r o v i d i n g J 1 P e r c e n t a g e s u p p l i e d t o sy s t em i n 1994: Chapman 84.5%, G r a y C r e e k 4.0%, C h a s t e r w e l l 5.0%, L a n g d a l e W e l l 2.5%, T r o u t L a k e 1.5%, Soames P o i n t W e l l 2.0%, H o t e l L a k e 0.5%. M i n i s t r y o f E n v i r o n m e n t , L a n d s , and P a r k s : Water Management D i v i s i o n , A n n u a l W a t e r Use Report: Client No. 025194 Sunshine Coast Regional District, V i c t o r i a , B C . 1994. 5 2 D a y t o n & K n i g h t L t d . , Sunshine Coast Regional District Mountain Lake Storage for 1995 Update of 10 Year Waterworks Plan f o r S u n s h i n e C o a s t R e g i o n a l D i s t r i c t . S e c h e l t , B C . November 1996. A - 4 , 2 - 1 . 5 3 Chuck W e a t h e r i l l , e t . a l . , Tetrahedron LRUP, Water: Final Report of the Water Subcommittee. December 1993. 7. 5 4 T h e s e a r e l i s t e d a s ; 1 ) N o r t h R o a d - L a n g d a l e , 2 ) G i b s o n s , 3 )Lower E l p h i n s t o n e , 4 ) R o b e r t s C r e e k , 5 ) W i l s o n C r e e k - R o b e r t s C r e e k Wes t , 6 ) S e l m a P a r k - D a v i s B a y , 7 ) S e c h e l t - T u w a n e k , 8)West S e c h e l t , 9 ) H a l f m o o n B a y - S a r g e a n t B a y , 1 0 ) S e c r e t C o v e , l l ) N o r t h o f S e c r e t C o v e . D a y t o n & K n i g h t L t d . Sunshine Coast Regional District Mountain Lake Storage for 1995 Update of 10 Year Waterworks Plan, DRAFT ( S e c h e l t , B C . 1996) A - 3 8 4 w a t e r . You know. We c o u l d be d e - s a l i n i z i n g . 5 5 I t ' s t h e amount o f money t h a t you want t o spend t o d e v e l o p a w a t e r s o u r c e . 5 6 This runs counter to several concerns expressed at a symposium57 on B.C.'s waters. Actions advocated from the concerns included: the need for a comprehensive inventory of the water resources, the need to determine low flow volume for f i s h populations, revisiting the authority given to BCHydro to determine and regulate flow of streams, and the need to start looking at a strategy that considers water as a limited resource. One strategy was to consider the resources of the Province from a "limits to growth" strategy. That i s , rather than just continue with the ideology of unlimited development in a "sustainable" manner, we adopt the approach of realizing there are bounds to development and the resources we have available to us are limited 5 8. Judging from the feature of the Water Act wherein the Province i s able to, and does, license more water than the water body possesses, we are operating with a "no limits" approach. Assuming this approach, the problem then moves to control over access and development of water 5 5 S C R D R e p r e s e n t a t i v e . I n t e r v i e w code 0 3 : 0 2 . Tape r e c o r d e d t r a n s c r i p t . I n t e r v i e w by a u t h o r . S e c h e l t , B C . 07 J a n u a r y 1996. 2 0 . 5 6 S C R D R e p r e s e n t a t i v e . I n t e r v i e w code 0 3 : 0 1 . Tape r e c o r d e d t r a n s c r i p t . I n t e r v i e w by a u t h o r . S e c h e l t , B C . 07 J a n u a r y 1996. 20 . 5 1 New Streams of Understanding in B.C.'s Troubled Waters: Securing the Future of B.C. 's Troubled Waterways/Watersheds/Groundwater, O r g a n i z e d by C a p i l a n o C o l l e g e E n v i r o n m e n t a l S c i e n c e C l a s s o f 1997 ( V a n c o u v e r , B C , M a r c h 06 1 9 9 7 ) . 5 8 G o r d o n W i l s o n ML A , "Keynote a d d r e s s , " Symposium a d d r e s s a t New Streams of Understanding in B.C.'s Troubled Waters: Securing the Future of B.C.'s Troubled Waterways/Watersheds/Groundwater, O r g a n i z e d b y C a p i l a n o C o l l e g e E n v i r o n m e n t a l S c i e n c e C l a s s o f 1997 ( V a n c o u v e r , B C , M a r c h 06 1 9 9 7 ) . 85 systems. As implied by the previous quote, the consideration now becomes a matter of economics. The Band receives domestic and f i r e supply water without concern as this i s the designated priority for the SCRD. D i f f i c u l t i e s arise when priority i s determined for commercial volume water users. Some commercial use of water is minimal and so i s not greatly affected by v a r i a b i l i t y in water flow. But other operations such as a golf course or gravel mining operation would require water in vast quantities. The Sunshine Coast Regional Dis t r i c t has prioritized the beneficial uses for the water that they derive from their licenses. The strategies employed by the SCRD has been to set out in the terms of agreement for water delivery to a commercial operation that the water supply for the operation may be shut off with twenty-four hours notice. This means that the priority of domestic and f i r e supply w i l l not be jeopardized by the development of commercial ventures in the area. For the commercial user, the short time-frame with which to respond, and the uncertainty as to when this w i l l happen presents the water purveyors as being capricious. As a course of business, developing reservoirs and accessing other sources such as importing water or d r i l l i n g wells becomes a necessity. Although industrial consumers projections can be optimistic, failure to provide water for budding industrial growth has been expressed59 as 5 9 G e o r g e A r c h i b a l d "Demand F o r e c a s t i n g i n t h e Water I n d u s t r y , " i n Water Demand Forecasting : Proceedings of a Workshop Sponsored by the Economic and Social Research Council e d s . V . G a r d i n e r & P . H e r r i n g t o n . ( U . K . , N o r w i c h : Geo B o o k s , 1986) 20 . 86 a dereliction of duty. Certainly the cost of establishing and conducting business would be much less i f they were to have access to reliable and ready access to a water source. Barring this, the a b i l i t y to develop economic ventures would have to factor into water infrastructure costs. The capacity for the Band to develop economic ventures has been affected by the fact that the SCRD holds the priority licenses for water and also the SCRD determines the expansion rate of the local system. In the circumstance presented, although water supply may have been "unlimited" in i t s potential, the purveyor i s limited in i t s capacity to react. 3 . 4 . 4 Incorporating Unforseen Objectives Integrating community growth plans for water has involved the various communities developing plans. These plans indicate where the services are, determining present zoning (and from this projecting future density), and then with this information calculating the volume of water required for the future. This strategy has l e f t the SCRD in a bind due to the shift in concern regarding the maintenance of f i s h habitat. If there i s unlimited water then the matter must be a shortfall in projecting need and in coordinating objectives. This was expressed by an SCRD representative: Nor [does i t t a k e ] . . . i n t o a c c o u n t l i m i t i n g f a c t o r s t h a t c o n t r o l o u r r e g i o n a l w a t e r s y s t e m . How much w a t e r i s i n t h e Chapman C r e e k w a t e r s h e d ? We h a v e n ' t r e a l l y [ a n t i c i p a t e d t h i s ] , we 've assumed w i t h t h e t e n y e a r p l a n t h a t t h e w a t e r w i l l be t h e r e . T h a t ' s why w e ' r e so c o n c e r n e d about l a t e s e a s o n f l o w s , v e g e t a t i o n c o v e r . T h a t ' s why w e ' r e so c o n c e r n e d about o u r r e t e n t i o n dams. T h a t t h e y work o u t . T h a t ' s why w e ' r e somewhat s u r p r i s e d t h a t t h e low f l o w i s s u e s w e r e n ' t a d d r e s s e d a t t h e t i m e t h e m i n i s t r y o f t h e p r o v i n c e gave us o u r w a t e r l i c e n c e s . And now i t s k i n d o f v i e w e d , i n a c r u d e way, as a b i t o f buy b a c k b y t h e p r o v i n c e . T h e y gave us t h e s e w a t e r l i c e n c e , we a p p l i e d f o r them. And now t h e p r o v i n c e , who's r e s p o n s i b l e f o r f i s h h a b i t a t and a q u a t i c 87 r e s o u r c e s , t h e y ' r e s a y i n g h e y , we need t h a t w a t e r b a c k . Y e t , we 've gone ahead and done a l l t h i s p l a n n i n g f o r o u r community o n t h a t . So w e ' r e g o i n g , w e ' v e g o t t h i s p r o b l e m o n o u r arm b e c a u s e we 've g o t a l l t h i s demand now. B u t now t h e P r o v i n c e i s s a y i n g w e l l we 've g o t t h i s low f l o w c o n c e r n . W e l l why d i d n ' t t h e y accommodate t h a t a t t h e t i m e ? Why d i d n ' t t h e y s a y okay you c a n have x amount o f g a l l o n s , b u t we 've r e s e r v e d t h r e e c u b i c m e t r e s o r f i v e c u b i c m e t r e s a s e c o n d f o r low f l o w s ? 6 0 This statement highlights the governance problem. SCRD wants jurisdictional control of the water resources but defer the overall responsibility to higher levels of government for fi s h habitat. The internal adjudication structure for disputes relating to the Water Act does not allow for any concrete definition as to the extent of authority conferred upon the acquisition of a water license. This combined with the reticence on the part of the Provincial government to unilaterally address low flow requirements has promoted the perception that a water license equals a right to water. Action on the part of the Province which counter this perception i s therefore considered irresponsible management. The SCRD, as water purveyors, has a responsibility to provide water that meets certain quality standards, but are under no obligation to provide any particular quantity. Their only obligation for quantity i s that, i f the water i s available, the diverted water be used beneficially. Since the SCRD was licensed more water than would naturally flow, they developed (and continue with plans to do so) mountain storage structures and built various reservoirs (balancing and system storage). The revenues expended to increase SCRD R e p r e s e n t a t i v e . I n t e r v i e w code 0 3 : 0 2 . Tape r e c o r d e d t r a n s c r i p t . I n t e r v i e w by a u t h o r . S e c h e l t , B C . 07 J a n u a r y 1996. 1 5 - 1 6 . 88 potential 6 1 flow are considered an investment to support the human habitation. The over-arching a b i l i t y of the Province to appropriate the benefits of this investment, i s a disincentive to investment. On the other hand, maintaining that i t i s solely the responsibility of the Province to deal with aspects that occur as a consequence of altering the ecosystem (i.e., in this case i t i s a proposed opportunistic fishery) i s an open invitation for intrusion by the Province. This dilemma can be overcome by altering the present management regime for water. Promoting a coordinated watershed management structure derived from the local interests, that i s mandated the responsibility of promoting the production capacity of the ecosystem would be one means of altering the present dilemma. This would d i f f e r from the present system whereby, there would be at the outset, the acknowledgement that there i s a system alteration occurring, and that this alteration must promote rather than delete the ecosystem potential. Scott contends that: The w a t e r - r i g h t s s y s t e m i s so s i m p l e , and so w i d e l y u s e d i n t e r n a t i o n a l l y , t h a t t h e r e a r e no i n s u p e r a b l e o b s t a c l e s t o p l a c i n g i t u n d e r d i s t r i c t , o r r e g i o n a l b o a r d s . 6 2 The SCRD's experience should inform the Band of the risk inherent in the present management structure to developing resource augmentation systems. This uncertainty i s a factor which could affect their capacity in self-governance as i t The word p o t e n t i a l i s u s e d h e r e t o a d d r e s s t h e u n c e r t a i n t i e s o f r e g i o n a l h y d r o l o g y . The s y s t e m u n d o u b t e d l y i n c r e a s e s f l o w as l o n g as t h e r e i s p r e c i p i t a t i o n t o r e c h a r g e t h e s y s t e m , b u t i n t h e u n l i k e l y e v e n t t h a t a d r o u g h t s h o u l d o c c u r t h e f l o w may o n l y be m a i n t a i n e d o r e v e n d i m i n i s h . 6 2 A n t h o n y D . S c o t t , 1991. 377 . 89 pertains to water. 3 . 4 . 5 Legal Responsibility versus Authority The Ministry of Health has the responsibility for monitoring and enforcing water quality in public distribution systems. The water purveyors are issued standards as their legal requirement for water quality. It is unfortunate for the water purveyors, that they rarely have the capacity to control a c t i v i t i e s around the water source that could impinge on the quality of water. Tree harvesting can increase s i l t a t i o n in the system, locating roads riparian to a water body increases the potential of large-scale spillage and pollution run-off, and recreational ac t i v i t i e s can introduce transmittable diseases. Yet, excluding a l l of these acti v i t i e s from a l l water bodies that would potentially be used for domestic consumption i s just impossible. Maintaining quality standards for waters from the Chapman and Gray Creeks has required considerable lobbying by the SCRD. This combined with public reaction to the alteration of favoured recreation areas was the driving force for the implementation of a watershed management process 6 3. Despite a l l of these efforts the SCRD, legally mandated to supply potable water, was given one (out of ten) representative "vote" on the Integrated Watershed Management Planning Team. This process and the issues are discussed at length in the next chapter, but the lesson i s that, getting involved in water distribution w i l l introduce a factor of C / G IWMP Deve lopment ( P r o v i n c i a l r e p ) . I n t e r v i e w code 0 6 . Tape r e c o r d e d t r a n s c r i p t . I n t e r v i e w by a u t h o r . B u r n a b y , B C . 04 O c t o b e r 1996. 5 . 90 complexity that could prove to be administratively prohibitive. So far this discussion has involved externally imposed structures and legislation affecting the SIB; the next section looks internally, to how the Band governs with respect to the Band and i t ' s resources. 3.5 Development of SIB's Government Model The leaders of the Sechelt Nation have long been versed in what the Indian Act empowers governments to do and more importantly what i t did not enable the Sechelt Nation to do. In the early 1970's the SIB formed an alliance with the Squamish and Musqueam to redress the Indian Act with l i t t l e return for their efforts 6 4. For the next fifteen years SIB focused on capturing effective economic local control by lobbying with the ever-changing ministerial faces to enact relevant statutes 6 5, educating the people of the surrounding d i s t r i c t s as to how this would benefit them66, and negotiating with the province to enable new jurisdictional compromises67. On March 15, 1985, seventy percent of the resident Band members voted in favour of the drafted legislation, and in October 1986 the Sechelt Indian Band Self Government Act was proclaimed. It took another two years for the provincial companion legislation to be adopted, culminating in the o f f i c i a l inauguration of Sechelt °* S e c h e l t I n d i a n B a n d . " S u b m i s s i o n t o t h e Human R i g h t s C o m m i s s i o n , " i n Sechelt Indian Band Self-Government Information Package. ( S e c h e l t I n d i a n B a n d : U n p u b l i s h e d , 1996) 3 . 6 5 I b i d . 4 . " H y a t t , 1986. 7 . 6 7 T a y l o r & P a g e t , 1986. 14. 91 Self-Government on June 24, 198868. This model does not constitutionally entrench self-government, i t was never meant to. This model works within the existing constitutional framework by the creation of a delegated federal body, the SIB Council, and empowering this body to make laws, manage, and conduct administrate matters involving the Sechelt Band Lands. 3.5.1 Legislative Framework for Transfer of Powers For the following discussion i t i s important to understand that the legislature can delegate power to a lower authority, but inter-delegation, that i s , the administrative transfer of powers from the Provincial to Federal, or Federal to Provincial bodies i s beyond their capacity (i.e. would be unconstitutional) 6 9. The reason this understanding i s necessary i s because the Sechelt Self- Governraent has been called a "municipal" model of self- government, often giving the mistaken impression that the province of B.C., having jurisdiction over municipalities, has usurped authority previously possessed by the Federal government. Constitutionally i t i s beyond the provinces a b i l i t y to do so, and this has not happened. Increasing SIB control over Sechelt lands, and appurtenant water, involved changing the present arrangements under sections 92(13) within provincial T a y l o r & P a g e t , 1988. A p p e n d i x . 6 9 T a r a W i n t j e s t o Graham A l l e n . "Memorandum r e : C o n s t i t u t i o n a l i t y o f S e c t i o n 28 o f t h e S e c h e l t I n d i a n Band S e l f - G o v e r n m e n t A c t , " i n Sechelt Indian Band Self-Government Information Package. ( S e c h e l t I n d i a n B a n d : U n p u b l i s h e d , 1996) 2 . 92 jurisdiction and 91(24) of federal jurisdiction. Section 91(24) i s administered via the Indian Act, and the administrator, mentioned earlier, i s the DIA bureaucracy. The SIB leaders opted to reduce the "middle-management" aspect of this arrangement by acquiring duties that would normally be carried out by DIA. Several factors proved to be barriers for the Sechelt to f u l l y participate in the local economy and Band development, such as the in a b i l i t y to u t i l i z e the land base for securing loans, provincial taxation of non-Native members for services they were not receiving, and controlling Band membership. If they were only dealing with the Federal government the Band could have merely obtained T i t l e to the lands. However, the Band wanted the opportunity to attract economic investment, and f e l t that the employment of the B.C. Land Registry and Assessment System would provide the necessary security. This required a new relationship than presently available under section 92(13) of the Constitution Act with the Province executing legislative changes. What resulted was the creation and enactment of the Sechelt Indian Government District Enabling Act (hereafter the Enabling Act). With the Sechelt Act a transfer of t i t l e in fee simple from the Federal government to the Sechelt Band members was negotiated 7 0. In addition the SIB Council was established as D a v i d H y a t t , 1986 i n Self-Government Package 1996. 9 . 93 a legal entity 7 1. This Council i s regulated by the SIB Constitution which was approved and instated by a Band referendum. A l l of the lands transferred are defined in the Sechelt Act to comprise a newly created d i s t r i c t called the Sechelt Indian Government District (SIGD) with the administrators for the SIGD being the SIGD Council (also bestowed with f u l l capacity of a legal entity). Figure 3.4 presents the interrelationships between these various local administrative entities managing resources on and around Band lands. In addition to recognizing the SIGD and avowing the power for the Council to enact laws of the province, the Enabling Act confers municipal benefits to the Dis t r i c t Council and gives the Lieutenant Governor in Council the capacity to suspend taxation by the province that would be collected under the Municipal Act and the Taxation (Rural Area) Act. The Enabling Act provides a voice for non-Native members within the SIGD by legislating an Advisory Council made up of non-Native people resident on Sechelt lands. With most municipalities the capacity to make laws for i t s citizens i s derived from the powers of the Province and therefore f a l l s under Provincial jurisdiction. The difference here l i e s in that the SIGD may create laws equivalent to those of the Province, which i s referred to as This includes the capacity to; enter into contracts or agreements, acquire and hold property or any i n t e r e s t therein, and s e l l or otherwise dispose of that property of i n t e r e s t , expend or invest moneys, borrow money, sue or be sued and do such other things as are conducive to the exercise of i t s r i g h t s , powers and p r i v i l e g e s . 94 FEDERAL jEnacting & jEnabling ! Legislation SIB Self Government Act SIB Constitution SIB Established as a Legal Entity Rcwdanl Band Member Non-Rcsidaiit Band Member: elects ;SIB Council r admmisUp. Sucfach Indian Government District [(Band Lands) • administers Each holds council seat PROVINCIAL ^ i ^ G ^ r n m e n t l jEnabling Act i [Land Act ! Amendment Municipal Act iSIGD l * 'Council i iSIGD Advisory iCouncil I (Non-Member residant •on Band Lands) •'Advisory (non-voting) Sunshine Coast Regional District I Adxninistrative! "Entities ! Voting member R̂egional j jBoard i Figure 3.4 F l o w c h a r t d e p i c t i n g l e g i s l a t i o n s e n a c t i n g and e n a b l i n g t h e l o c a l a d m i n i s t r a t i v e e n t i t i e s t h a t e f f e c t d e c i s i o n s r e g a r d i n g r e s o u r c e s on and a r o u n d S e c h e l t I n d i a n Band L a n d s . referential legislation, but laws created by the Province do not automatically become those of the SIGD72, (i.e., the laws are not anticipatory) (see Figure 3.5). This i s the distinction between the Sechelt's s e l f - government being a "municipal model" versus a municipality. Legislative enactments (i.e., development of Land Title Amendment Act, 1988 and the Enabling Act) enabled the SIGD to be incorporated into the Sunshine Coast Regional District (SCRD) service area as a "municipality" with the attendant water servicing administered via the SIGD to residents. 3.5.2 Servicing Band Lands T a r a W i n t j e s , 1987 i n Self-Government Package 1996. 5. 95 AUTHORITY PROVINCIAL FEDERAL| • DERIVATION (Constitution Section") 92(13) Property and Civil Rights 91(24) Indian and Lands reserved for Indians 1 ADMINISTRATIVE STATUTE Land Title Act Sechelt Indian Band Self Government Act | referential legislation | ((can adopt provincial laws) , ADMINISTRATIVE BODY Registrar of Titles " " SIB Council •Not anticipatory (provincial • •laws do not automatically • •become federal laws) • Figure 3 • 5 Depiction of where the Sechelt Indian Band derives t h e i r power to adopt p r o v i n c i a l laws. The Band can adopt p r o v i n c i a l laws, but laws enacted by the Province do not automatically apply to band lands. The Band has opted to u t i l i z e the Municipal Act as the regulatory statute for development on Band Lands73. Services usually provided by a municipality are administered through the SIGD with service provision arrangements integrated to the surrounding local community. The SIGD administers and provides; general government, t r a f f i c control laws, community planning, recreation/culture, economic development, and sewerage collection. Services provided by the SCRD within the SIGD on the peninsula include; sewerage treatment, building inspection, water distribution and water supply. Other services and their providers are; policing via provincial RCMP, f i r e protection from the Sechelt Fire Protection D i s t r i c t (SFPD), and waste collection i s done 7 3 Taylor & Paget, 1988. 32 96 through a private company74. The Band's water needs are met to the extent that they do not conflict with SCRD's aforementioned p r i o r i t i e s and i t is solely within the SCRD structure that Band development occurs. The Band's involvement with water management his t o r i c a l l y involved the diversion of Chapman Creek to meet the community needs, and today they continue to maintain the face of that interest with their participation on the SCRD board and involvement in the IWMP on Chapman and Gray Creeks. 3.5.3 The Power to Make Changes The SIB's capacity to legislate water uses are conferred from the Federal Government through the Sechelt Act and from the Province through the Enabling Act. The SIB Constitution regulates the actions of Council as they carry out the capacity conferred by these two Acts. Table 3.2 l i s t s the relevant sections of these three pieces of legislation which may have bearing on water. With the Sechelt Act the Band has acquired the control over administration of Band resources (section 4) and the power to make laws for the protection, preservation, and management of these resources (section 14). The general Laws of Canada and British Columbia apply except i f these laws are inconsistent with Band Laws, (sections 37 and 38). It would seem from looking at the Sechelt Act in isolation that the Band has acquired the capacity to act unilaterally in 74Taylor & Paget, 1988. 40. 97 Table 3 .2 S e c t i o n s w h i c h may have b e a r i n g on Water R e s o u r c e s f o r two s t a t u t e s , and r e g u l a t i n g C o n s t i t u t i o n , w h i c h e n a b l e t h e S e c h e l t I n d i a n Band S e l f - G o v e r n m e n t . Sechelt Act Enabling Act SIB C o n s t i t u t i o n ( 4 ) Enables the SIB to obtain control over administration of die resources and services available to members ( 6 ) Make the Band a legal entity (14) Confers the power to the Band council to make laws regarding; a)acc6ss/residence on Sechelt lands, b)zoning and land-use plans, c)expropriation, e)taxation, preservation, protection, management(p/p/m) of natural resources on Sechelt Lands, k)p/p/m of fur-bearing animals, fish and game on Sechelt Lands. ( 5 ) Suspends taxation under the Municipal Act and Taxation (Rural Area) Act (17-18) Gives the SIOD jurisdiction over all Sechelt Lands and legislates it to be a legal entity. (21) Provincial approval of SIOD (B.C. Order in legislature required) ( 1) Lieutenant Governor in Council recognized the SIGD Council as the governing body. ( 2 ) Creates an Advisory Council. (23) Transfers Fee simple title to Band. ( 2 4 ) Fee simple title subject to; a)BC Indian Reserves Mineral Resources Act, b)OiC 1036 Amendment & 1055 c) any interests and or Mortgage lease occupation permit, COP's or other grants. (26) Band has power to dispose of Sechelt Lands as determined by constitutional procedures. (27) Land kept within the Indian Act Reserve Land Register. (28) The Council can make laws authorizing the registration of Sechelt Lands with B.C. laws. ( 4 ) The Lieutenant Governor in Council can declare mat the District council is entitled to municipal benefits (31) Sechelt Lands retain Indian Act section 91(24) reservation. (35) Laws of Band supersedes Indian Act (37) General Laws of Canada apply, except in inconsistent with Band Law. ( 38 ) General Laws of B.C. apply, except if inconsistent with any treaty, Act of Parliament, the Band constitution or Band law. ( 3 ) Laws and bylaws enacted by the SIGD Council, as per a municipality, shall be deemed to have been enacted from the Act to be of the Province (3,2) "The control over the administration of all Natural resources on in and under the Sechelt Lands is vested in the Band subject to the existing rights thereto, if any, of the Province of British Columbia." (39-41) This Act is subject to Indian Oil and Gas Act, B. C. Indian Reserve Mineral Resources Act, and the Indian Reserves Minerals Resources Act. (3,1) The Band has full power to dispose of rights and interest of Natural resources subject to sections of Sechelt Act (24,35,39,40,41) 98 determining the laws, and from this, the use of resources on Band Lands. The Province was opposed to enabling such a breadth of powers. It was for this reason that section 3,2 was included in the SIB Constitution when drafting the Sechelt Self-Government legislations. Section 3,2 subjects the administrative control for resources to the existing rights of the Province. The debate continues over whether this section limits the powers of the Band. The terms of this debate revolve around whether the Province has any rights on Band Lands. The Province has vested a l l rights to water with the Provincial Crown. The question s t i l l outstanding i s whether the Province has rights to water over lands that have not been unburdened from the original T i t l e , that i s the Aboriginal T i t l e . The SIB has opted to adopt the laws and standards of the Province. However, for the purposes of administering water resources, they are not limited by these actions. 3.6 Summary Chapter two focused on articulating the debate surrounding Aboriginal Water Rights, and the basis for their management role. This chapter has then looked at how this role i s affected by water management construction within the Province. The SIB chose to adopt a self-governance structure that would integrate (not assimilate!!) into the local governance so as to improve their capacity to manage the Band lands and resources. Criteria adopted from the Coast Salish communities suggest that the Sechelt Nation has had some experience in dealing with resource management. 99 Management of water resources has become complex as communities strive to deal with change. The faith placed on science to solve resource management issues has minimized the adoption of a "limits to growth" collective ethic. This chapter has defined two functional levels of management. At a broader scope there i s Area management which i s necessary to incorporate the complex socio-economic, biophysical, and legislative factors. Then there i s the level of managing for the particular resource i t s e l f . This involves understanding the mechanics of water to determine how our involvement may affect the resource, as we look to meeting societal demands. Regional coordination at the Provincial level i s suggested as necessary: for management of human systems, to deal with various trans-boundary issues and, to promote the general societal benefits to be derived from water resources. The complexities introduced as result of the Provincial *program' structure and from the constitutional s p l i t of water management responsibility, has created a bureaucratically self-aggrandizing management regime. The result i s that Provincial managers have control over determining the issues, and pronouncing outcomes, usurping the a b i l i t y for the local community to enable their objectives. In comparison to the surrounding non-Native community, the SIBs capacity to participate in the Provincial A p r i o r i t y licensing' regime was administratively prohibitive. The Water Act i s a piece of Provincial legislation, that for the most part, i s concerned with allocation of water for consumptive uses. The priority of uses is only considered for two licenses established on the same date. The Bands a b i l i t y to address their non-consumptive water demand concerns (e.g., fisheries habitat and flow considerations) is affected by the fact that the Provincial government i s not limited in the amount of water they can license from any particular water body. The management principle operating here i s that, with the construction of water storage f a c i l i t i e s , the present volume is not necessarily the total capacity of the stream. Without a pre-licensing inventory, the ecological production capacity of the stream i s subject to the p r i o r i t i e s set by the various licensees. Avoiding water resources commodification, the purported purpose for making licenses appurtenant to a piece of land or mine, has not been actualized. Licensed administrative control over water has empowered the SCRD to dictate the rate of development, particularly with respect to industrial water needs. The Bands a b i l i t y to participate in the development on the Peninsula i s also affected by the myriad of governance water agencies that exist. Water quality standards are dictated to the purveyors of distribution systems. These same organizations are limited in their a b i l i t y to control a c t i v i t i e s that affect the deterioration of water quality. This i s an administrative concern that the Band needs to address when deciding what their future involvement in water management might be. The Sechelt Act has created a delegated governance authority that has enabled the capacity of the Band to make 101 "Federal" laws, and adopt Provincial laws to manage water resources over Band lands. This would empower the Band to create laws that could link the water issues such as allocative volume with effluent discharge. There are questions s t i l l outstanding though as to whether this capacity to make laws would supersede laws and legislation created by the Province regarding water regulation on Band lands. If the Band i s to plan their communities growth, and therefore forecast their requirements, i t has become evident that there i s need for greater involvement in the present system. Accessing licenses, setting aside water volumes and participating with Provincial management are some of the ways to mitigate the erosion of their capacity to actualize community growth aspirations. Whatever the direction, maintenance of the good working relationship the SIB has established with the local government on the Coast Peninsula has been, and w i l l be the strongest means of fostering collaboration to promote sustainability. 102 Chapter 4 THE CHAPMAN/GRAY INTEGRATED WATERSHED MANAGEMENT PLAN: INCREASING SHISHALH'S CAPACITY FOR MANAGEMENT? 4.0 Introduction During interviews, or as people were being solic i t e d as respondents for this project, the main query was often, What is meant by the capacity to actualize self-government? Does this mean building parallel governance infrastructures? Does this mean getting involved with monitoring? Or what? Alternatively, to what extent and means does the Province intend to f a c i l i t a t e F i r s t Nations in the planning and management of their water, stated as a proposed objective: The p r o v i n c i a l government r e c o g n i z e s a b o r i g i n a l t i t l e and r i g h t s t o s e l f - g o v e r n m e n t . R e a l i z a t i o n o f t h e s e r i g h t s w i l l i n c l u d e p l a n n i n g and management by F i r s t N a t i o n s f o r t h e i r w a t e r . 1 In fact there i s no answer for these questions because negotiation via the treaty process has yet to define that extent and therefore the capacity of the Band's a b i l i t y to be involved with water management. This chapter looks at what xcapacity' exists as reflected by what i s happening in the Sechelt Traditional Territory (STT). Water management continues to occur within the STT, and one comprehensive process, the ongoing Chapman/Gray Integrated Watershed Management Plan (C/G IWMP), has attempted to include the Sechelt Indian Band (SIB) in an effort to mitigate the factors affecting the water resource. This process has been B r i t i s h C o l u m b i a M i n i s t r y o f E n v i r o n m e n t , L a n d s , and P a r k s . Stewardship of the Water of British Columbia: A Review of British Columbia's Water Management Policy and Legislation, vol. 4 Water Management Planning. ( P r o v i n c e o f B r i t i s h C o l u m b i a , 1993) 8 . 103 reviewed to determine the realized capacity afforded the band by this particular management authority. 4.1 The IWMP: A Management Authority The f i r s t thing considered i s what makes the C/G IWMP a management authority. The IWMP framework was set as the means of organization to control a c t i v i t i e s affecting community water supplies (details are provided in Appendix H, a memorandum of understanding (MOU), of a 1980 provincial government document2) . By 1980 there were competing uses within watersheds, thus an MOU was struck to i n i t i a t e a process i f need was demonstrated. Although Chapman and Gray Creeks provide the main supply of water for the Sunshine Coast, petitions from the Sunshine Coast Regional D i s t r i c t (SCRD), the main water purveyors, to have a moratorium on acti v i t i e s that were contributing to the deterioration of water quality went unheeded3. Continued frustration with forest management practises that were occurring in the recreation areas as well as those affecting water quality spurred the SCRD4, environmental, and recreation groups to pressure the Provincial Government to invoke the MOU for 1 G u i d e l i n e s T a s k F o r c e . "GUIDELINES FOR WATERSHED MANAGEMENT OF CROWN LANDS USED AS COMMUNITY WATER S U P P L I E S , APPENDIX H : P o l i c y and P r o c e d u r e s f o r Community W a t e r s h e d P l a n n i n g . November 26 , 1984 ," i n Chapman and Gray Creeks Integrated Watershed Management Plan (Draft), e d . M a r i o n J a m i e s o n ( M i n i s t r y o f E n v i r o n m e n t , L a n d s , and P a r k s : B C E n v i r o n m e n t ) F e b r u a r y 1994. A p p e n d i x 2 . 3 Peggy Connor t o M i n i s t r y O f E n v i r o n m e n t . L e t t e r . S u n s h i n e C o a s t R e g i o n a l D i s t r i c t O f f i c e f i l e s : E n v i r o n m e n t a l Management - G e n e r a l . C h a p m a n / g r a y C r e e k W a t e r s h e d F i l e # 5280016. ( S e c h e l t ) . 4 C h u c k W e a t h e r i l l , e t . a l . , Tetrahedron LRUP, WATER: Final Report of the Water Sub-Committee. December 1993. 5. 104 managing community watersheds5. This process and subsequent plan i s voluntary, that i s , there i s no legislative requirement for participation in the planning, or adherence to the plan outcome, yet the local p o l i t i c a l pressure got the b a l l r o l l i n g for the implementation of the process and i t appeared that i f you were not "on the train you would be under i t " . Traditionally provincial resource management has uti l i z e d a f a i r l y technocratic approach where an expert assesses the situation and determines the management strategy 6 However, the IWMP called for a more inclusive framework of decision-making. Without the i n i t i a t i o n of this process members of the local community were unable to alter or coordinate resources uses, but because inclusive management i s not part of the dominant paradigm7 the process was established with reluctance. The framework stipulates that this process has to be initiated through the lead agencies of either the Ministry of Forests (MOF), or Ministry of Environment (MOE). After the C/G IWMP i n i t i a t i o n planning team members were delimitated, negotiation got under way and the management direction determined. In chapter one a water management authority was defined as, "groups or individuals that presently have the power to give 3 C / G IWMP Deve lopment ( P r o v i n c i a l r e p ) . I n t e r v i e w code 06 . Tape r e c o r d e d t r a n s c r i p t . I n t e r v i e w b y a u t h o r . B u r n a b y , B C . 04 O c t o b e r 1996. 2 . 6 C / G IWMP Deve lopment ( P r o v i n c i a l r e p ) . I n t e r v i e w code 06 . Tape r e c o r d e d t r a n s c r i p t . I n t e r v i e w by a u t h o r . B u r n a b y , B C . 04 O c t o b e r 1996. 12. C / G IWMP Deve lopment ( P r o v i n c i a l r e p ) . I n t e r v i e w code 0 6 . Tape r e c o r d e d t r a n s c r i p t . I n t e r v i e w b y a u t h o r . B u r n a b y , B C . 04 O c t o b e r 1996. 12. 105 orders or take action over the control and organization of water resources". Where previously the SCRD was unsuccessful in altering factors contributing to deterioration of water quality, the i n i t i a t i o n of the C/G IWMP enabled some local control over the mitigation of those factors. The power to affect those changes did not arise from any one group or ministry but rather changes were enabled as a result of this larger planning process. The C/G IWMP enabled local individuals to take action over the control of the watershed and thus water, and for this reason i t s implementation i s examined as a management authority. The next part of the thesis reviews the factors of the construction imposed by this 1980 MOU which affect the capacity or capability for the Sechelt Nation to actualize self-governance as i t pertains to water. 4.2 Representation: Limitation from Construction The structure for this planning process was established in 1980 and therefore, by design, representation on the planning team reflected the p r i o r i t i e s of the Province up to that time. Increasing the First Nation's capacity in management was not one of those p r i o r i t i e s . As any plan i s a product of the planners, those chosen to be at the table i s as important as what is discussed. If the outcome can be discerned from the members doing the planning, the next question i s whether to endorse the plan by the mere fact of participation. A third matter demonstrated with the C/G IWMP is that compartmentalized mandates are advocated and supported. 106 Of those signing onto the C/G IWMP document8 there were three whose primary concern included water quality, quantity, and timing of flows (i.e., representatives for Ministry of Environment, Lands and Parks:Water Branch, the Sunshine Coast Regional District, and Ministry of Health), three focusing on forestry (i.e, Ministry of Forests, and two industry representative), two whose interests include fish and w i l d l i f e (i.e., a Federal fisheries person for Department of Fisheries, and the Ministry of Environment, Lands, and Parks:Fish and Wildlife), one concerned with mining interests (Ministry of Employment and Investment:Energy and Mineral Division), and one person that was required to focus on a l l concerns simultaneously (i.e., the SIB representative). While i t was the local environmentalists that had driven the process to begin with, they were not given a seat at the table and the meetings were restricted to those IWMP members who had been asked to participate 9. The SCRD had expressed their desire to have logging operations stopped within the watershed, but with three df the ten C/G IWMP planning team members representing forestry this was unlikely to happen. This r e a l i t y was questioned by the water subcommittee involved in the Land and Resource Use Plan (LRUP) for a Class "A" park in this area (this park designation area i s commonly referred to as the "Tetrahedron") when they wrote: See A p p e n d i x 2 . Q C / G IWMP Deve lopment ( P r o v i n c i a l r e p ) . I n t e r v i e w code 06 . Tape r e c o r d e d t r a n s c r i p t . I n t e r v i e w by a u t h o r . B u r n a b y , B C . 04 O c t o b e r 1996. 5 . 107 [S]ince the IWMP planning team must use consensus to reach decisions the i n c l u s i o n of two f o r e s t industry representatives on the planning team indicates that a dec i s i o n to exclude future logging from the watershed i s v i r t u a l l y impossible. Is i t r e a l i s t i c to expect that timber industry representatives have a meaningful r o l e to play i n determining the best use for a community watershed? Does t h i s enable an "objective" determination based on the stated IWMP objective? Is t h i s i n the best i n t e r e s t s of water consumers? 1 0 The importance that was placed on forestry i s demonstrated by the fact that i t i s one of the two lead agencies identified for the i n i t i a t i o n of this process. If the priority, and reason for the i n i t i a t i o n of the process, was the protection of community water supplies the question which looms i s , would i t not make more sense for the two lead agencies to be the Ministry of Health and Ministry of Environment? The resistance to changing forest harvesting regions and practises made this a protracted process, even with the Community Watershed designation. The present structure emphasizes and reinforces the re a l i t y of p o l i t i c a l tenure afforded the forest industry in the Province. This p o l i t i c a l entrenchment therefore i s one of the factors that affects Sechelt's self-governance capacity in relation to water. A second issue regarding representation was whether to validate a process that, by construction, does not significantly improve the community's management options, and thus continuously puts the Band in a reactive position versus otherwise developing other effective management opportunities. Various a c t i v i t i e s occur simultaneously Chuck W e a t h e r i l l , e t . a l . , Tetrahedron LRUP, WATER: Final report of the Water Subcommittee. December 1993. 22 . 108 within F i r s t Nations' traditional territories that do not include representation from the local Bands or tribes either because they are not invited, not considered significant in terms of the activity being developed, or do not have the manpower. The Sechelt Indian Band is invited often to attend management committees and board meetings but the underlying concern i s which process, p o l i t i c a l or otherwise would provide the most benefit for the Band. This had been the case with the C/G IWMP. Originally invited to attend, the manpower was not available. It was not un t i l the release of the 1994 C/G IWMP draft 1 1 revealed the implicated restrictions being placed on the Bands' ac t i v i t i e s that the additional task of becoming a planning team member was added to the Band's duties. The second submission of the C/G IWMP compilation document stated: The IWMP a g r e e d t h a t s u b m i s s i o n s f r o m r e p r e s e n t a t i v e s o f d i f f e r e n t a g e n c i e s i n t h e f i r s t t h r e e c h a p t e r s o f t h e IWMP w o u l d n o t be s u b j e c t t o IWMP a p p r o v a l . We a g r e e d t h a t t h e agency r e p r e s e n t a t i v e w i t h a mandate f o r management o f a s p e c i f i c r e s o u r c e was t h e a p p r o p r i a t e a u t h o r i t y f o r p r o v i d i n g i n f o r m a t i o n on i n v e n t o r y , d e s c r i p t i o n o f t h e r e s o u r c e , i d e n t i f i c a t i o n o f i n t e r e s t s and c o n c e r n s f rom t h a t a g e n c y ' s management p e r s p e c t i v e , (emphasis added)12 While i t i s obvious that there i s a need to go beyond disputes of resource data and use, what this emphasizes and " M a r i o n J a m i e s o n , e d . , Chapman and Gray Creeks Integrated Watershed Management Plan (Draft) ( M i n i s t r y o f F o r e s t s ; M i n i s t r y o f E n v i r o n m e n t , L a n d s and P a r k s (BC E n v i r o n m e n t ) ; M i n i s t r y o f H e a l t h ; M i n i s t r y o f E n e r g y , M i n e s and P e t r o l e u m R e s o u r c e s ; t h e S u n s h i n e C o a s t R e g i o n a l D i s t r i c t ; I n t e r n a t i o n a l F o r e s t P r o d u c t s ; C a n a d i a n F o r e s t P r o d u c t s and D e p a r t m e n t o f F i s h e r i e s and O c e a n s , F e b r u a r y 1994) . 1 2 M a r i o n J a m i e s o n . Memorandum to IWMP Planning Team re: C/G IWMP Final Draft 04 December , 1995. M i n i s t r y o f E n v i r o n m e n t , L a n d s , and P a r k s F i l e 77900-50 /Chapman. 109 reinforces i s that, for each specific resource, there i s an existing agency to whom the mandate of management already belongs, and further that their information i s the information. The people of the Sechelt Nation have been fishing from Chapman Creek since time immemorial13, so were they the appropriate authority for fish? Apparently not. Sechelt people have been involved in the forest industry within the Sechelt traditional territory for over a hundred years 1 4 so were they the appropriate authority for forestry? Apparently not. What about water. The Band members were responsible for the original flume construction 1 5, and so have some manner of history with the diversion of water in the watersheds, would they not, therefore, have some standing as the appropriate authority for this resource? Again no. What this process reiterates i s that there are no resources for which the Band would be considered a management agency and thus who would be called upon as the appropriate authority for information. How i s i t that the people with the longest history in the region would be afforded the least authority for any information regarding resources? This i s a manifestation of the common catch-22 where you are not able to manage without appropriate authority and yet without acknowledgement of your authority i t i s not considered within your management mandate. 1 3 S e c h e l t I n d i a n B a n d : E l d e r . I n t e r v i e w code 0 2 : 1 0 . Tape r e c o r d e d t r a n s c r i p t . I n t e r v i e w by a u t h o r . S e c h e l t , B C . 07 J a n u a r y 1996. 14 . 1 4 F r a n k F u l l e r . Amalgamation. U n p u b l i s h e d w o r k . I n t e r v i e w o f C l a r e n c e J o e . ( I n t e r v i e w d a t e unknown) . 1980. 1 5 H e l e n Dawes, 1990. 100. 110 This section reports the issues regarding representation within the process. The next section looks at the process i t s e l f , and to what means and extent i t has affected the capacity of the Sechelt Nation to actualize self-governance. 4.3 The Process: Defining Scope and Living with Consensus There are several water management planning processes occurring in the province. The Integrated Watershed Management Planning process i s delimited by the watershed as the scope of management. One such process was conducted in the Chapman and Gray Creeks as they were designated as Community Watersheds. Consensual processes tend to have many shortcomings such as lack of funds, or time, or points of agreement. The C/G IWMP exhibited a l l of these 1 6 which contributed to the degree of influence that the Sechelt could have on the process or outcome. 4.3.1 The IWMP: It's NOT the Only Game in Town Under the Lands Act section 12 the Minister may, in the public interest, withdraw Crown land from disposition, which was the case for Chapman and Gray Creeks as they were designated as Community Watersheds17. This designation i s c r i t e r i a for the implementation of an IWMP, but i t i s only one of the several planning acti v i t i e s involving water 1 0 C / G IWMP Deve lopment ( P r o v i n c i a l r e p ) . I n t e r v i e w code 0 6 . Tape r e c o r d i n g t r a n s c r i p t . I n t e r v i e w by a u t h o r . B u r n a b y , B C . 04 O c t o b e r 1996. 12 . M a r i o n J a m i e s o n , Memorandum to IWMP Planning Team, 04 December 1995. M i n i s t r y o f E n v i r o n m e n t , L a n d s , and P a r k s F i l e N o : 7 7 9 0 0 - 5 0 / C h a p m a n . 1 7 C / G IWMP Deve lopment ( P r o v i n c i a l r e p ) . I n t e r v i e w code 06 . Tape r e c o r d e d t r a n s c r i p t . I n t e r v i e w by a u t h o r . B u r n a b y , B C . 04 O c t o b e r 1996. 1. I l l management. The Stewardship of BC l i s t s other planning processes by geographic scope as shown in table 4.1. Of a l l of these various means of being involved with water management planning, to date the Sechelt have only been involved at the watershed level with the C/G IWMP. TABLE 4 .1 Water management plans by geographic scope 1 8 SCOPE SUBREGION WATERSHED LOCAL Type of ensting plans •Strategic plans •Sub-regional plans •Environmental Management plans •Operational plans • I n t e g r a t e d w a t e r s h e d m a n a g e m e n t p l a n s •Water a l l o c a t i o n plans •Floodplain management plans •Water q u a l i t y objectives •Estuary plans The Sechelt Nation, given the size of the traditional territory certainly have interests which would necessitate their involvement at the sub-regional level but, as yet, they are not involved with planning at that level. That the Minister has the a b i l i t y to withdraw lands from disposition for the public good and designate certain water bodies as priority for community supply i s perhaps one option the Sechelt Nation can attempt to exercise in an effort to embark on water management within a broader scope. 4.3.2 Consensus: An issue of Time A consensus process i s defined by the way in which a plan or direction i s chosen, that i s , the "general agreement"19 of a l l the participants that they have " B r i t i s h Columbia M i n i s t r y of Environment, Lands, and Parks. Stewardship of the Water of British Columbia: A Review of British Columbia's Water Management Policy and Legislation, vol. 4 Water Management Planning. (Province of B r i t i s h Columbia, 1993) 6. 1 9 B r i t i s h Columbia Round Table, REACHING AGREEMENT: Volume 1 Consensus Processes in British Columbia ( B r i t i s h Columbia:Report of the Dispute Resolution Core Group of the B r i t i s h Columbia Round Table on the Environment and the Economy) 1991. 4. 112 optimized the compromises. Consensus processes are adopted reluctantly because the perception i s that they, by design, w i l l be time-consuming. The Round Table report on consensus contends though that this does not necessarily have to be the case as long as there are clearly defined deadlines for the process and fallback consequences that would be invoked i f those deadlines are not met.20. IWMPs are laid out as an eight step procedure to guide the various ministries and participants in the coordination of their efforts. These steps are: 1) C o n f i r m p l a n n i n g p r i o r i t i e s - have M0E and M0F a g r e e t o i n i t i a t e t h e p r o c e s s , 2) O r g a n i z e p l a n n i n g p r o c e s s by s e t t i n g t e r m s o f r e f e r e n c e t o i n c l u d e : t h e p l a n n i n g a r e a , p u r p o s e and o b j e c t i v e s , p l a n n i n g m e t h o d , l e a d a g e n c y , p a r t i c i p a n t s and t h e i r r o l e s , p r o d u c t and p r o d u c t d e t a i l , c o m p l e t i o n d a t e , known l i m i t a t i o n s , d e c i s i o n - m a k i n g method , r e q u i r e d commitments , MOE and MOF e n d o r s e m e n t s , r e s o u r c e and l a n d management p r o b l e m s , r e q u i r e d i n f o r m a t i o n , and work s c h e d u l e , 3) A s s e m b l y and c o l l a t i o n o f g a t h e r e d i n f o r m a t i o n , 4) D e v e l o p and d e s c r i b e p l a n a l t e r n a t i v e s , 5) E v a l u a t e p l a n a l t e r n a t i v e s , 6) S e l e c t p l a n , 7) Implement p l a n , 8) M o n i t o r and c a r r y o u t c o n t i n g e n c y p l a n s i f n e c e s s a r y . Of the stepwise procedure lai d out above the f i r s t five are stated to have a time frame of five months and a seven to twelve month total planning time-frame. Data gathering i s s t i l l ongoing for the C/G IWMP and i t has taken seven years (1990 to 1997) to come to step 6, by having a document that the various planning project members are willing to put their signatures to. There were no fallback guidelines established as a consequence of not achieving deadlines for the C/G IWMP. To speculate from this process the amount of B r i t i s h C o l u m b i a Round T a b l e , 1991. 2 5 . 113 time i t w i l l take to achieve integrated watershed management for the number of systems within the STT exemplifies how unworkable conducting negotiations on a watershed-by- watershed basis would be. The Band is presently involved in treaty negotiations including water management and allocation being on the table as matters to discuss. It i s perhaps through this process that the Band can seek ministerial direction in setting Community Watershed guidelines for bodies of water that the Band would necessarily access due to their proximity to SIB lands. In this way water management could be done at the level of the sub-region in a comprehensive rather than a piece-meal manner (i.e., watershed by watershed). 4.3.3 Consensus: An Issue of Resources The Round Table document on consensus processes l i s t s as one of the key characteristics of a successful process: P a r t i c i p a n t s i n a c o n s e n s u s p r o c e s s must have a l e v e l p l a y i n g f i e l d i n t e r m s o f t h e i r a b i l i t y t o p a r t i c i p a t e i n a m e a n i n g f u l w a y . 2 1 The various means of establishing this level playing f i e l d include training to develop negotiating s k i l l s , equitable access to information, and alleviation of financial hardships that would be incurred as a result of taking time for this process. When asked of the co-chair of the C/G IWMP whether there had been any mechanisms established to deal with the disparity in human resources the response was "No". The whole process was described as "under-resourced". This B r i t i s h C o l u m b i a Round T a b l e , 1991. 17 . 114 respondent described the problem to be cyclic, in that: . . p a r t i c i p a t o r p l a n n i n g p r o c e s s e s i n t h e p r o v i n c i a l government a r e n o t s u p p o r t e d b e c a u s e t h e y ' r e n o t p a r t o f t h e d o m i n a n t p a r a d i g m , and t h e n t h e y f a i l b e c a u s e t h e y d o n ' t g e t s u p p o r t e d so t h e n t h e y , a h , t h e n t h e r e ' s p r o o f t h a t t h e y d o n ' t w o r k . And t h e n t h e dominant p a r a d i g m becomes e n f o r c e d . S o , t h e IWMP'S t h e m s e l v e s t e n d t o work on a s h o e s t r i n g . 2 2 Being able to plan means that one must have the luxury of going beyond just trying to survive the day. In addition, participation in planning means that this must be funded, either by having the resource i t s e l f (in this case water) fund the planning requirements or by u t i l i z i n g other resources to support this as a community service. At present neither of these options i s available to the Band, but they are attempting to overcome this shortcoming via accessing resources through the treaty process. For this reason this strategy was exp l i c i t l y spelled out in the C/G IWMP May 1996 draft under the resource management objectives and issues as stated in the following: The S e c h e l t a r e n e g o t i a t i n g a l a n d c l a i m w i t h t h e p r o v i n c i a l and f e d e r a l governments w i t h r e s p e c t t o : c o m p e n s a t i o n f o r p a s t i n j u s t i c e s ; r e c o g n i t i o n and f i n a n c i n g o f s e l f - g o v e r n m e n t ; and t h e c r e a t i o n o f a new r e l a t i o n s h i p among C a n a d a , B r i t i s h C o l u m b i a and t h e S e c h e l t . One component o f t h e c l a i m i s a s h a r e i n p e r p e t u i t y w i t h t h e P r o v i n c i a l government on a 50 /50 b a s i s t h e r o y a l t i e s and o t h e r payments a c c r u i n g f rom t h e t a k i n g o f any and a l l n a t u r a l r e s o u r c e s f r o m t h e S e c h e l t a b o r i g i n a l t e r r i t o r y , b o t h f r o m t h e S e c h e l t l a n d s . . . a n d Crown l a n d s w i t h i n t h e S e c h e l t t r a d i t i o n a l t e r r i t o r y . 2 3 " C / G IWMP Deve lopment ( P r o v i n c i a l r e p ) . I n t e r v i e w code 06 . Tape r e c o r d e d t r a n s c r i p t . I n t e r v i e w by a u t h o r . B u r n a b y , B C . 04 O c t o b e r 1996. 12 . ^ M a r i o n J a m i e s o n , e d . , Chapman and Gray Creeks Integrated Watershed Management Plan (draft) ( B r i t i s h C o l u m b i a : BC E n v i r o n m e n t , Water Management and F i s h and W i l d l i f e ; C a n a d i a n F o r e s t P r o d u c t s ; C o a s t - G a r i b a l d i H e a l t h U n i t ; Department o f F i s h e r i e s and O c e a n s ; M i n i s t r y o f Employment and I n v e s t m e n t , E n e r g y and M i n e r a l s D i v i s i o n ( f o r m e r l y M i n i s t r y o f E n e r g y , M i n e s and P e t r o l e u m R e s o u r c e s ) ; I n t e r n a t i o n a l F o r e s t P r o d u c t s ; M i n i s t r y o f F o r e s t s ; S e c h e l t I n d i a n B a n d ; and S u n s h i n e C o a s t R e g i o n a l D i s t r i c t , May 1996) 38 . 115 Certainly there are management of natural resources processes within BC that are occurring without the luxury of financial and other resources, but developing the momentum to change the present management structures to effectively include F i r s t Nations w i l l require a shif t in resources, both human and otherwise. 4.3.4 Consensus: The Effects of a Closed Door Policy As mentioned in section 4.2 the participants for an IWMP were identified by a 1980 guideline document and the meetings were closed, which due to the unfavourable reaction to the 1994 draft was later acknowledged as a drawback24. Within a few days of releasing C/G IWMP 1994 draft the head of the B.C. Environment Ministry received a petition signed by approximately 2000 people protesting the draft plan as being inappropriately oriented to development rather than conservation 2 5. The perception was that the action dictated by the plan was merely maintenance of the status quo and did nothing to address past degradative management practices in the watershed. A second concern was that i t demanded a continuance of Provincial control and given the problems perceived to have occurred as a result of the present regime the people of the Sunshine Coast opposed the plan. That 2000 signatures were garnered from a relatively small population in a few days i s a measure of the concern that the people of C / G IWMP Deve lopment ( P r o v i n c i a l r e p ) . I n t e r v i e w code 06 . Tape r e c o r d e d t r a n s c r i p t . I n t e r v i e w by a u t h o r . B u r n a b y , B C . 04 O c t o b e r 1996. 5 . 25 C / G IWMP Deve lopment ( P r o v i n c i a l R e p ) . I n t e r v i e w code 06 . B u r n a b y , B C . 04 O c t o b e r 1996. 116 the Sunshine Coast have regarding the management of the coastal resources. Due to this petition funding was sought for watershed restoration to assist with the management objectives identified with the C/G IWMP. Assistance funds were received amounting to 2.2 million dollars. With these funds a coordinator was hired to oversee rehabilitation projects and accumulate data for a georeferencing system. From this, better information was available and another draft was produced in May of 1996 which moved (relatively) towards a more conservation focus. Taking this as an example for other watersheds, the Band would have to look to managing for past or ongoing degradation as part of the job of managing for water, but changing the present state of operations may not occur without strong vocal support from the surrounding non-Native community to counter the present representational structure at the Table. The question to ask i s how much different would the 1994 draft have looked i f environmental or recreation groups had been invited to s i t at the original meetings. Consensus can involve amalgamating participants with similar interests or deciding to form a coalition with other participants on certain points. Just as there were three people at the table for the C/G IWMP representing forestry concerns, the Band could benefit from, f i r s t of a l l , articulating what their main concerns would be for water management and water interests and then establish such coalitions. This chapter has looked at the makings of the C/G IWMP 117 and what effects and issues have been brought about as a result. The next part looks at the plan i t s e l f , what i t means for management and the points gleaned from this process that the Band w i l l need to address i f setting an objective of becoming involved with water management in the STT i s relevant. 4.4 The Plan: It's Design lessons for the Sechelt Nation The 1996 C/G IWMP draft reflects a movement towards a conservation focus but i t also affirms local governance (i.e., in this case the SCRD and the SIB) concerns at least to the extent that they must be consulted. The present plan defines management zones where the emphasis for land use determines type of activity allowed (see Figure 4.1). Written into the May 1996 C/G IWMP document i s the recognition of the historical occupancy of the Sechelt Nation 2 6, the importance of the cultural and spiri t u a l values 2 7, and a statement to recognize and provide for the protection of Aboriginal rights 2 8. It seems reasonable to assume that this w i l l be upheld as long as the a c t i v i t i e s stemming from Aboriginal rights are consistent with the present zone management guidelines. What this process reveals about compromising and wresting control under the present structure i s the topic for the following sections. 4.4.1 Learning to Counter the Erosion of Rights As part of the overall information necessary for 2 6 M a r i o n J a m i e s o n , e d . , C / G IWMP D r a f t . May 1996. 9 . 2 7 I b i d , 1. 2 8 I b i d , 64 . 118 treaty negotiations the SIB carried out an overview assessment of traditional use. This information i s to be used to contribute to an archaeological impact assessment, with the recommendations to be incorporated into the IWMP. This i s one of the ways in which the SIB w i l l have a key role in management functions involved in the IWMP implementation29. Other management opportunities for the SIB include; consultation on road construction, access limitations, and tree removal for mining ventures. The Band also has the opportunity to be involved in site inspections before and after timber harvesting development and to work with DFO, BCE, and SCRD on a low flow water agreement. This involvement in the low flow agreement i s the only place where the Band is directly involved with water management. Participation in this process to this point has not improved the Bands powers to determine what w i l l happen to the waters in Chapman and Gray Creeks for the Bands' consumption. What i f the Aboriginal L E G E N D Boundaries: — C / G IWMP Dividing C & G Creeks Tetrahedron L R U P Zones (main emphasis) 1 | 1 Conservation/Water Retention j^jy^l 2 Forest Ecosystem Network/ terrain constraint PW1 3 Harvesting/plateau Y/.'\ .4 Harvesting/valley slopes Figure 4.1 Management Zones fo r Chapman and Gray Watersheds from May 1996 C/G IWMP ( d r a f t ) . 2 9 Ibid, 5 . 119 Right includes development of an agricultural sector and thus a larger supply of water is required? This plan does not provide for the capacity to develop that right. The SIB's acquired role serves the function of a stewarding role in the mitigation of factors which would deteriorate water quality, and the extent i s only at a consultative capacity. It was the opinion of an informant employed with the Ministry of Environment that this plan: . . g o e s as f a r as i t i s p o s s i b l e w i t h t h e e x i s t i n g l e g i s l a t i o n t o p u l l i n t h e i n v o l v e m e n t o f t h e l o c a l governments t o t h e S u n s h i n e C o a s t , t h e SCRD, and t h e S e c h e l t band t o t r y t o b r o a d e n t h e i r management r o l e and b r o a d e n t h e b a s e o f c o n s u l t a t i o n so t h a t i t ' s i n t h e p l a n t h a t t h o s e two l e v e l s o f government have t o be c o n s u l t e d i n management d e c i s i o n s . I t w a s n ' t p o s s i b l e t o go t h e n e x t s t e p o f , I g u e s s t h a t w o u l d be d e l e g a t i n g p r o v i n c i a l a u t h o r i t y . B u t i t has a t t e m p t e d t o f o r m a l i z e t h e c o n s u l t a t i o n p r o c e s s . 3 0 As presented in chapter three, i t i s possible to "go the next step" and delegate powers to a lower authority. Certainly, a different strategy i s required and this has been proposed: We recommend t h a t an a l t e r n a t i v e form o f a u t h o r i t y w i t h i n t h e w a t e r s h e d s s h o u l d be c r e a t e d . I t s h o u l d c o n s i s t o f t h e M i n i s t r i e s o f E n v i r o n m e n t and H e a l t h and t h e S u n s h i n e C o a s t R e g i o n a l D i s t r i c t as h o l d e r o f t h e w a t e r l i c e n s e s on Chapman and G r a y C r e e k s and as t h e agency t h a t i s r e q u i r e d b y law t o p r o v i d e w a t e r t h a t meets minimum h e a l t h s t a n d a r d s . 3 1 Having involvement and, even better, control over alterations to the landscape i s necessary to mitigate impacts to the water resource. In the previous quotation i t was recommended that a new authority be established, with the water purveyor given a main seat at the table. If the C / G IWMP I m p l e m e n t a t i o n ( P r o v i n c i a l r e p ) . I n t e r v i e w code 0 6 . Tape r e c o r d e d t r a n s c r i p t . I n t e r v i e w by a u t h o r . B u r n a b y , B C . 04 O c t o b e r 1996. 4. 3 1 Chuck W e a t h e r i l l , e t . a l . , Tetrahedron LRUP, WATER: Final Report of the Water Subcommittee. December 1993. 39 . 120 SIB are to become involved in water management i t i s clear that they would need to be given recognition as having a larger interest in the water than presently recognized. Then, to protect the opportunities stemming from the control of the water resource, there needs to be a sh i f t in the present power structure dictating upstream land uses. The development of a water quality/quantity Board made up of representation of water users that have power to direct a c t i v i t i e s would be one strategy. To recognize the special interest of the Band, a municipal reserve volume could be established in their name, and that authority be delegated so as to enable the Band to protect this interest in water. Becoming more involved with water management, as would be the case with having a municipal reserve volume established, brings up new questions of concern such as that of the responsibilities brought about from system development resulting in ecological alterations. This i s the topic for the next lesson from the C/G IWMP. 4.4.2 A Licence: Discussion of Rights versus Responsibilities The Sunshine Coast Regional District presently holds seven distribution licences and one storage licence on Chapman Creek. As the community purveyors of water they have a legal responsibility to provide drinking water which passes certain quality standards. But what was made clear during this research was that they do not have any legal responsibility for assuring there i s a minimum flow for fis h , and that, as the major licence holder on the stream, 121 can determine best use of water. With compartmentalizing of responsibilities within the government there has histo r i c a l l y been a problem of looking towards their particular resource mandate. It has only been within the last fifteen to twenty years that consideration for f i s h habitat was written into licenses as a possible stipulation 3 2 to the diversion of water. Water licences today may have a limiting clause which could reduce the amount of flow allowed to the licensee subject to conservation. Licences in the province operate on a f i r s t to apply f i r s t in right basis. The earliest licence to non- Natives on Chapman Creek was issued in 1929 to the Union Steamships which was purchased by the regional d i s t r i c t . The original licence did not have any provisions for f i s h habitat and this was not changed with the transfer of the licence. It was the opinion of an SCRD respondent that maintenance of flow for f i s h i s the responsibility of the Province: We a p p l i e d f o r a w a t e r l i c e n c e , we r e c e i v e d a w a t e r l i c e n c e . I t ' s incumbent on t h e P r o v i n c e t o make s u r e t h e r e i s r e s i d u a l f l o w s s u f f i c i e n t f o r t h e e n v i r o n m e n t and t h a t . 3 3 The volume of water presently licensed for use on Chapman Creek exceeds the flow at certain times of the year and under the present system the licensees could legally extract every last drop of water. If there i s no limiting clause for G a r y R o b i n s o n , M i n i s t r y o f E n v i r o n m e n t , L a n d s , and P a r k s : W a t e r L i c e n s i n g , p e r s o n a l c o m m u n i c a t i o n , t e l e p h o n e . 29 J u l y 1997. 3 3 S C R D R e p r e s e n t a t i v e . I n t e r v i e w code 0 3 : 0 2 . Tape r e c o r d i n g t r a n s c r i p t page 3 . I n t e r v i e w by a u t h o r . Townsh ip o f S e c h e l t . 07 J a n u a r y 1996. 122 conservation the licensees are under no obligation to limit their draw on the stream, and further the province i s constrained by i t s own licensing arrangements and therefore cannot alter or constrain the licence even i f i t means the stream goes bone dry 3 4. Regardless, the SCRD i s trying to understand and accommodate for low and minimum flows, but the data had yet to be developed as to what the upstream minimum would have to be to support the downstream fishery. In their draft report looking at the storage and infrastructure requirements for the next ten years the engineering consultants state that storage must be increased to accommodate the minimum fishery compensation flow but that: I t needs t o be r e c o g n i z e d , however , t h a t t h e w a t e r l i c e n c e does n o t r e q u i r e a s p e c i f i c f i s h e r y f l o w and t h a t i n t h e p a s t no f l o w s were r e c o r d e d i n t h e l o w e r segments o f Chapman C r e e k i n l a t e summer . 3 5 This leads to two main considerations. The f i r s t i s i f there wasn't sufficient water to support fis h species in the summer previously 3 6 then whose obligation i s i t to ensure there i s sufficient flow for f i s h that are not there now, but who might be there i f the ecosystem i s altered to provide a year-round flow? Two court cases, R.v.Forde and C h r i s M o r g a n . M i n i s t r y o f E n v i r o n m e n t , L a n d s , and P a r k s , p e r s o n a l c o m m u n i c a t i o n , t e l e p h o n e . 20 J u n e 1997. 3 5 D a y t o n & K n i g h t L t d . Mountain Lake Storage for 1995 Update of 10 Year Waterworks Plan f o r S u n s h i n e C o a s t R e g i o n a l D i s t r i c t . D i s t r i c t o f S e c h e l t , November 1996. 1 - 1 . 3 6 I n t h e i r r e p o r t as t h e w a t e r subcommit tee f o r t h e T e t r a h e d r o n LRUP i t s a y s : "The y e a r r o u n d f l o w s i n Chapman C r e e k were p a r t i c u l a r l y i m p o r t a n t t o i t s i d e n t i f i c a t i o n as t h e o n l y s u p p l y . " C h u c k W e a t h e r i l l , e t . a l . , Tetrahedron LRUP, WATER: Final Report of the Water Sub-Committee. December 1993, 4 . 123 Her Majesty the Queen v. the District of Chilliwack37 have upheld the protection of fish habitat despite the fact that the habitat was result of a human alteration. So i t seems that this i s a reasonable concern to be addressed. The second i s who would have to incur the costs of this increased maintenance responsibility? A new B i l l in the Legislature, the Fish Protection Act38, seeks to increase the Ministerial control over the waters allocation by enabling reductions in allowable licensed volume in times of drought. This would mean the licence or licences could be reduced by 5 percent of the total licensed volume. At this point the SCRD is not using the total volume of their licence, so a reduction of 5 percent would have no realizable affect on the amount available for minimum flow. The total flow s t i l l needs to be augmented to raise i t up to the minimum flow obtainable even with the protection of the Fish Protection Act. It i s ironic that the best practise that the Band could undertake, i f developing a system to provide year-round flow, would be that the base be dammed to ensure no fi s h enter the system and therefore the Band would only be responsible to the users of the system and not to the f i s h that might enjoy the altered ecosystem. But i f we are to take Chapman Creek as a lesson, that i s the case. The system today i s top heavy with the defining of 3 7 L y n n e B . H u e s t i s , Legal Effect of the Land Development Guidelines for the Protection of Fish Habitat. ( V a n c o u v e r : S w i n t o n & Company, 1993) 2 . 38 B r i t i s h C o l u m b i a ' s L e g i s l a t i v e A s s e m b l y , Bill 25 — 1997, Fish Protection Act 1997 L e g i s l a t i v e S e s s i o n : 2nd S e s s i o n , 3 6 t h P a r l i a m e n t F I R S T READING, h t t p : / / w w w . l e g i s . g o v . b c . c a / l s t _ r e a d / g o v 2 5 - l . h t m . 28 May 1997. S e c t i o n 1 1 ( 3 ) . 124 jurisdictional boundaries, but addressing responsibilities (i.e., in this case at whose door should this lie?) remains an open door for future conflict. There are several streams within the STT, and from this experience we can see that an important step in the planning of water uses i s the monitoring of present flow to protect the present ecology and to show whether the flow that i s there i s "natural" or enhanced and at least maintained by developments on the system. The SIB has elected to establish partnerships such as with their joint Forest Renewal Plan, to look to improving water quality, quantity and timing of flows. This partnering may alleviate some of the resistance that such monitoring might encounter. Yet i t should be made clear that the priority for quality of water resources i s the supercedent issue over economics. Regardless of who does i t , unless monitoring i s done on these systems now, we w i l l not be able to determine i f the present practices in those watersheds i s affecting any changes. So far this chapter has looked at how building and design has influenced SIB's management capacity, the next part discusses some issues of actualizing watershed management for water concerns. 4.5 The Job of Implementation There are several stages to action in a situation with so many interests. Getting to the stage of having a l l parties signing on to a plan has for the C/G IWMP taken several years. Implementing this plan i s another stage. The Sechelt Indian Band was a partner in developing a proposal for a watershed coordinator to set in motion the objectives 125 outlined by the IWMP planning board. What has become apparent i s that although the plan can define what should occur, there are many paths to making that a reality. There is increasing f r i c t i o n over the means of achieving the objective of maintenance of a quality water supply wherein the multi-use ac t i v i t i e s within watersheds i s opposed without the acknowledged secondary benefits derived from this multi-use. Implementation i s also affected by the fact that Canada operates under a representative democracy, wherein the larger vote of the particular population base affects the community development direction. The Sunshine Coast has experienced a huge increase in population as the area i s viewed as an alternative to the Fraser Valley for commuters. This shifts the collective community consciousness towards more of an urban land ethic and makes the task of mitigating impacts to the water supply that much greater. 4.5.1 Maintenance of Amenities with Reduced Funds There i s an assumption that reducing a c t i v i t i e s within the Chapman and Gray watersheds would increase capacity to protect and predict water quality. Even i f i t were p o l i t i c a l l y possible to exclude a l l a c t i v i t i e s from the region from this day forward, past degradative management practises continue to affect the water supply. Poor timber harvesting practises i s one of the main ac t i v i t i e s that has undoubtedly compromised the water quality in these watersheds and therefore has experienced strong pressure for the exclusion of this as an activity. Yet one of the 126 benefits that the community at large enjoys, which the forest industry incorporates as the cost of doing business, i s road maintenance39. These roads are used to access the Tetrahedron plateau, a region that sees substantial recreational use yearly. Where then would the revenues come from for this road maintenance that provides important recreational access? People in the local society need to feel the decisions made w i l l benefit them locally, but while a l l of the people enjoy the benefits of clean water, not a l l people partake in the recreational opportunities and so there i s even further debate as to the importance of maintaining these road networks. Access to resources was stated earlier as one of the factors affecting the SIB's capacity to be involved with water management, this i s another manifestation of the how resources are required to operationalize management, both for infrastructure development and to support other uses. Supporting mountain recreation act i v i t i e s has the spin-off effect of promoting the human/land interconnection. Making that connection was identified as an important factor in managing watersheds. 4.5.2 Changing and Guiding Land Ethics In the face of a population which i s in constant flux, developing a vision and working towards achieving that vision can be d i f f i c u l t . A changing population base means that goals shift depending on the collective ambition of the C / G IWMP I m p l e m e n t a t i o n ( L o c a l R e p ) . I n t e r v i e w code 0 7 . Tape R e c o r d e d T r a n s c r i p t . I n t e r v i e w by a u t h o r . S e c h e l t , B C . 13 F e b r u a r y 1997. 5 . 127 community. The range of movements can be the f u l l scale of the differences represented in the community. As people establish some history with their surroundings many see the shifts that occur with the passing of the decades and endeavour to guide those changes which serve to maintain those factors contributing to their enjoyment of the region. But the problem that we have continuously witnessed through history i s the frustration of those ensconced in a region as their attempts to control the direction of change are diminished by the onslaught of newcomers, as witnessed in the Fraser Valley where: I n most c a s e s , g a i n s i n t h e w i l l t o p r o t e c t t h e e n v i r o n m e n t and t e c h n o l o g i c a l advancements t o m i t i g a t e i m p a c t s has b e e n o f f s e t b y human p o p u l a t i o n g r o w t h and a s s o c i a t e d u r b a n deve 1 o p m e n t . 4 0 Having some history with a region gives a sense of the limitations and capacities for the region wherein one establishes a localized land ethic. It takes time to appreciate your role and effect as a part of that region. Also your perspective of the changes can only be drawn from your experience with those changes. The sh i f t in the collective land ethic that the Sechelt Nation has witnessed on the Sunshine Coast i s extreme. The elders alive today have watched the Township of Sechelt go from a summer vacation resort accessed by boat, to a central servicing place for the scattered families involved in the O t t o L a n g e r , F e r n H i e t k a m p & M e l o d y F a r r e l l . Human Population Growth and the Suatainability of Urban Salmonid Streams in the Lower Fraser Valley. P r e s e n t e d a t S u s t a i n a b l e F i s h e r i e s C o n f e r e n c e , A m e r i c a n F i s h e r i e s S o c i e t y . A p r i l 2 6 - 3 0 . V i c t o r i a , B C , 1996. 9 . 128 forest and fishing industries, to a bustling local community and today the region i s undergoing the shift of becoming a suburb for Vancouver commuters. Planning for water, watersheds, and water uses therefore becomes an amorphous exercise. The body p o l i t i c making the plans change, which then shifts the plan. This was described by a respondent involved with the IWMP Implementation: . . . w e l i v e i n a democracy o f , b a s e d on what 50 .001 p e r c e n t , o f t h e p e o p l e want and t h a t ' s um, so i t may n o t be t h e b e s t t h i n g , b u t democracy u l t i m a t e l y , h e r e anyhow, makes t h e d e c i s i o n s , so i t ' s t h r o u g h t h e p o l i t i c a l p r o c e s s , t h a t ' s how we 've been t a u g h t , t h a t ' s how d e c i s i o n s a r e made. I f , f o r i n s t a n c e , t h e r e ' s a s t r o n g u r b a n p u s h coming up t h e c o a s t , more and more p e o p l e w i t h t h o s e k i n d s o f t h o u g h t s , t h a t w o u l d have t h e n e t r e s u l t o f c h a n g i n g o u r p e r c e p t i o n o f l a n d u s e . 4 1 One of the main exercises for the C/G IWMP therefore has been to somehow educate the range of collective perceptions as to the need to understand what is physically happening within the watershed. From a sc i e n t i f i c perspective promoting this involves recognizing a thing for what i t i s , what makes a tree a tree? The. next step i s to understand that thing in i t s context, meaning what are the processes that contribute to that tree being a tree here, and f i n a l l y , once we understand what i t i s , what is necessary for what i t i s , then we need to look at what we can do to promote i t s needs42. But even with this there i s the job of moving collectively in a particular direction. Making responsible decisions does not necessarily mean that you w i l l be enabled C / G IWMP I m p l e m e n t a t i o n ( l o c a l r e p ) . I n t e r v i e w code 0 7 . Tape r e c o r d e d t r a n s c r i p t . I n t e r v i e w by a u t h o r . S e c h e l t Band L a n d s . 13 F e b r u a r y 1997. 7 . 4 2 I b i d , 8 . 129 the responsibility to enact those decision as the same informant states with: l e t ' s s a y t h a t I happen t o be dead r i g h t on e v e r y i s s u e t h a t I 'm s p e a k i n g on t h e e f f e c t s o f t h i s , t h i s , and t h i s . L e t ' s s a y t h a t I was , I know t h a t I 'm n o t , b u t l e t ' s assume t h a t I ' m a b s o l u t e l y r i g h t . I ' m a l m o s t c e r t a i n t h a t I c o u l d n o t g e t my i d e a s a c r o s s t o p e o p l e who a r e i n c h a r g e t o make t h e d e c i s i o n s . Because t h e r e ' s t o o many o t h e r p e o p l e o u t t h e r e w i t h t h e i r own c o n c e r n s and t h i n g s and t h a t ' s j u s t t h e way i t ' s g o i n g t o b e . And I have t o r e c o g n i z e t h a t as p a r t o f t h e s c r u m , e v e n t o g e t what I have t o be c o n s i d e r e d n e u t r a l i n f o r m a t i o n u s e d , t a k e s f i g h t i n g , i t t a k e s embarrassment p o l i t i c a l l y , o r w h a t e v e r way t o g e t p e o p l e t o r e c o g n i z e t h e s e t h i n g s . T h a t ' s how t h i s c o u n t r y w o r k s , f o r b e t t e r o r w o r s e . 4 3 The experience of implementing the C/G IWMP demonstrates that the SIB, requires stronger means of infusing the Sechelt Nation community vision to plan and achieve their needs in the face of the overwhelming force of "democracy". There needs to be legislative mechanisms established to ensure that the vision of the Sechelt, the f i r s t people of the region, i s not smothered by newcomers. In doing this the people of the Sunshine Coast w i l l have some hope of ensuring that developing plans w i l l include those with vision stemming from histor i c a l experience as well as those who bring vision representing the changing landscape of society. 4.6 Summary The C/G IWMP represents the f i r s t comprehensive exercise within the Sechelt Traditional Territory to develop a strategy that would oversee the ac t i v i t i e s affecting the drinking water supply. This process i s one level involving C / G IWMP I m p l e m e n t a t i o n ( l o c a l r e p ) . I n t e r v i e w code 0 7 . Tape r e c o r d e d t r a n s c r i p t . I n t e r v i e w by a u t h o r . S e c h e l t Band L a n d s . 13 F e b r u a r y 1997. 12 . 130 water management that i s occurring within the Province. The focus on a particular watershed i s perhaps a prohibitive level of involvement for the Band given the number of watersheds within their Traditional Territory. By design the IWMPs promote status quo with respect to extractive practices occurring around water bodies. That the process must be initiated by the MoF or MoE, and requires the f i n a l signature of both ministerial representatives means that i t i s d i f f i c u l t , i f not impossible to exclude such a c t i v i t i e s . For the SIB to be involved with water management, w i l l require the capacity to access revenues which may come from forestry, and the a b i l i t y to effect management decisions at a level higher than i s presently afforded. In their attempt to arrive at a plan based on consensus, the IWMP planning team has invested a great deal of resources. This investment, and the protractedness of the process would limit the Bands a b i l i t y to adopt this type of management strategy for other water bodies of concern. Beyond the development of the IWMP i s the challenge of implementation. This process has illustrated the fact that actualizing the SIBs water needs w i l l require facing the ever-changing *democratic' spectrum. Making decisions on water management w i l l require that the SIB be legislated authority to have some control over the water and watershed resources so that they can go beyond the present catch-22 of being marginalized, that i s they do not have authority and thus cannot provide input because they are not considered 131 the management agency. The Bands control over water and water management has not been increased by participating in this process. Their opportunities to be involved with stewardship ac t i v i t i e s that address mitigation of water quality deterioration has. Being involved with management of resources involves building the relationship with the surrounding community. An element in resource management i s trust. Developing the data without pushing ones own opinion as to what should occur i s one step required to being a coordinator of watershed ac t i v i t i e s . There i s danger in being labelled as promoting any particular activity because the prescription for solutions w i l l then be f i l t e r e d through the doubt of motive. The f i r s t hurdle to management i s demonstrating that a certain level of technical competence i s present and the second hurdle i s projecting objectivity. 132 Chapter 5 SUMMARY AND FUTURE NEEDS The shishalh have lived in their Traditional Territory and relied on the resources since time immemorial. This thesis has looked at the construction of water management authorities from a historical perspective so as to present alternative options for involvement of the Sechelt Nation with future development of water resources. The Provincial legislations developed to manage water has conferred rights to non-Natives despite the fact that the inherent rights of the Aboriginal people have not yet been defined. The water rights, conferred for the most part to non-Natives within the Traditional Territory, are administered via a bureaucratically complex systems within which the Aboriginal people posses l i t t l e authority. The Sechelt Act was developed to enable greater control over the administration of their resources and the direction of their future growth. This administration i s fac i l i t a t e d by adopting a municipal style governance structure that links with the local administrative agencies for services on Band lands. Despite this, the a b i l i t y of the Sechelt Nation to direct community growth i s impinged by the Provincial licensing regime and the pri o r i t i z a t i o n of extractive a c t i v i t i e s as a consequence of the planning guidelines established for watersheds. The experience of the SIB with the C/G IWMP has enabled the Band stewardship roles within the watershed but has not established any authority over the water resource i t s e l f . The protractedness of this integrated planning process 133 demonstrates the requirement for legislative mechanisms to protect the Sechelt Nation's interests in water. The general opinion regarding the working relationship of the SIB with local government is that i t i s good, but that there i s no real definition as to the goals of the SIB. There are many factors to consider for future water needs, and as these are s t i l l being articulated amongst the Sechelt Nation i t has been d i f f i c u l t to state at this time what their specific requirements might be. The mechanisms exist to afford the Sechelt Nation greater control over water resources. Whether these are realized w i l l depend on the terms set out through the negotiation process at the treaty table. In order to set out their terms regarding water resources the present ambiguities regarding responsibilities of non-consumptive water uses need to be addressed. There are inherent uncertainties in forecasting water demands given the changing complexities of the socio-economic, biophysical, technological and legislative system. Discussion of some of the complexities w i l l help in guiding the SIB to address how water management by them or by others w i l l ultimately affect the future growth of their community. There are many aspects of water management that have not been addressed in this examination. One obvious need for future research i s to conduct an analysis of the histor i c a l and cultural development that has occurred within the Sechelt F i r s t Nations community i t s e l f . In particular, a focus on how traditional values have helped form the present 134 situation and how these values may have been compromised as a result of institutional and/or legal r e a l i t i e s . This would help to reference where the shishalh have come from so that they have a stronger idea of where they would like to go. Then moving from the past to the present there needs to be a polling of the Band members to determine the future infrastructure needs. Where does the Band envision themselves ten or twenty years from now? That the surrounding community has a good working relationship and wish to accommodate to the Band's community growth vision has been articulated repeatedly. What has also been said as often i s ; "What do they want?" The Band needs to determine this so that they can involve themselves in the construction of their future rather than merely surviving the consequences of the actions of others. There also needs to be an examination of Water policy in the Province. What direction the Provincial government intends to take and how this i s to be accomplished i s an important concern for Fi r s t Nations communities. The Stewardship of the Water document acknowledges throughout this policy package that F i r s t Nations water needs are not considered, but i t does not go further to say how this may be addressed. It i s perhaps not appropriate that i t i s done by the Provincial Government, but rather that the means of involvement should be articulated by the Fi r s t Nations communities themselves. Finally, there i s a strong need for an inventory of local water resources. How much i s there? What are the 135 present ac t i v i t i e s which may affect water quality and other water uses? What are the local habitat considerations that need to be considered before the development of any infrastructure? These are a few of the issues that were highlighted during the conducting of the research for this thesis. The thesis focuses on water resources but i s only an example of the resource issues that need to be addressed. Although F i r s t Nations are recognized as rightful stakeholders in resource issues, their role i s often compromised by the his t o r i c a l l y derived legislative bureaucracy. SOURCES CITED Aldridge, James. "Aboriginal T i t l e : the Constitution and the Charter," in ABORIGINAL TITLE, RIGHTS, AND THE CANADIAN CONSTITUTION - Proceedings of a Symposium Victoria, British Columbia December 1983. eds Keith Jobson and Richard King. University of Victoria. Archibald, George. "Demand Forecasting in the Water Industry." In Water Demand Forecasting : Proceedings of a Workshop Sponsored by the Economic and Social Research Council. Editors V.Gardiner & P.Herrington. U.K., Norwich: Geo Books, 1986. Bartlett, Richard,H.. ABORIGINAL WATER RIGHTS IN CANADA: A Study of Aboriginal Title to Water and Indian Water Rights. Calgary: Canadian Institute of Resources Law, 1988. British Columbia's Legislative Assembly, Bill 25 — 1997, Fish Protection Act 1997 Legislative Session: 2nd Session, 36th Parliament FIRST READING. http://www.legis.gov.be.ca/lst_read/gov25-l.htm. 28 May 1997. Section 11(3). British Columbia Ministry of Environment, Lands, and Parks. Stewardship of the Water of British Columbia: A Review of British Columbia's Water Management Policy and Legislation. Vol. 4 Water Management Planning. Province of British Columbia. 1993. British Columbia Ministry of Environment, Lands, and Parks. Stewardship of the Water of British Columbia: A Review of British Columbia's Water Management Policy and Legislation. Vol. 5 Water Allocation. Province of British Columbia. 1993. British Columbia Ministry of Environment, Lands, and Parks. Stewardship of the Water of British Columbia: A Review of British Columbia's Water Management Policy and Legislation. Vol 9 Background Report. Province of British Columbia. 1993. British Columbia Ministry of Environment, Lands, and Parks: Water Management Division, Annual Water Use Report: Client No. 025194, Sunshine Coast Regional District. Victoria, BC. 1994. British Columbia Ministry of Environment, Lands, and Parks. Ministry Organization Chart. 137 http://www.env.gov.vc.ca:8 0/main/emlp_overview/org charts.html 12 July (20:45) 1997. British Columbia Round Table, REACHING AGREEMENT: Volume 1 Consensus Processes in British Columbia. British Columbia:Report of the Dispute Resolution Core Group of the British Columbia Round Table on the Environment and the Economy, 1991. Brody, Hugh. Maps and Dreams. Vancouver, BC: Douglas & Mclntyre, 1988. Brooks, Kenneth N., Peter F. F f o l l i o t t , Hans M. Gregersen, John L. Thames, ed., HYDROLOGY AND MANAGEMENT OF WATERSHEDS. Iowa:Iowa State University Press, 1991. Calder v.Attorney General of British Columbia, [1973]S.C.C. 313, [1973]4 W.W.R.I 34 D.L.R.(3d)145. Cohen, Fay G., "Treaty Indian Tribes and Washington State: The Evolution of Tribal Involvement in Fisheries Management in the U.S. Pacific Northwest." In Co-Operative Management of Local Fisheries: New Directions for Improved Management and Community Development, editor Evelyn Pinkerton. Vancouver: University of British Columbia Press, 1989. Connor, Peggy. To Ministry Of Environment. Letter. Sunshine Coast Regional District Office f i l e s : Environmental Management - General. Chapman/gray Creek Watershed F i l e # 5280016. Sechelt, BC. Constitution Act, 1982. Cote, R.P. "Management of Coastal Water Quality and use Problems in Canada." Canadian Water Resources Journal (Vol. 18, No. 4, 1993), 385-398. Crey, Ernie. Aboriginal Commercial Right to Fish. Presented at Fi r s t Nation Rights to Water Conference, April 5 & 6. Vancouver: Pacific Business & Law Institute, 1995. Dawes, Helen. Helen Dawe's SECHELT. Madeira Park:Harbour Publishing. 1990. Dayton & Knight Ltd. Mountain Lake Storage for 1995 Update of 10 Year Waterworks Plan for Sunshine Coast Regional District. District of Sechelt. 1996. Dayton & Knight Ltd., Sunshine Coast Regional District Mountain Lake Storage for 1995 Update of 10 Year Waterworks Plan, DRAFT for Sunshine Coast Regional District. Sechelt, BC. November 1996. Delgamuukw v. British Columbia [1993] B.C.C.A. 104 D.L.R.(4th) 470. Dorcey, A.H.J.. "SUSTAINABLE DEVELOPMENT PRINCIPLES FOR WATER RESOURCES MANAGEMENT IN CANADA: TOWARDS A NEW CONSENSUS." In Resolving Conflicts and Uncertainty in Water Management: Proceedings of the 45th Annual conference of the Canadian Water Resources Association, edited by Dan Shrubsole. 1.1-1.9 . Ontario:Canadian Water Resources Association, 1992. Farrell,Jack. British Columbia Water Law. Paper presented at Fir s t Nations Rights to Water Conference, April 5 & 6. Vancouver:Pacific Business & Law Institute. 1995. Fox, Irving K. "Institutional Design for the Management of the Natural Resources of the Fraser River Basin." In Perspectives on Sustainable Development in Water Management: Towards Agreement in the Fraser River Basin, editor, Anthony H.J Dorcey. Vancouver: University of British Columbia, Westwater Research Centre, 1991. 289-312. Fuller, Frank Amalgamation. Unpublished work. Interview of Clarence Joe. (Interview date unknown). 1980. Furseth, Owen & Chris Cocklin, "Regional Perspective on Resource Policy: Implementing Sustainable Management in New Zealand," Journal of Environmental Planning and Management V.38N.2, (1995): 181-199. Gardiner, Vince and Paul Herrington. "INTRODUCTION: Environmental Issues and the Water Demand Forecasting Workshop" In WATER DEMAND FORECASTING: Proceedings of a Workshop sponsored by the Economic and Social Research Council, ed. V.Gardiner and P.Herrington U.K.,Norwich, 1986. Gardiner, Vince and Paul Herrington, "The Basis and Practise of Water Demand Forecasting." In WATER DEMAND FORECASTING: Proceedings of a Workshop sponsored by the Economic and Social Research Council, ed. V.Gardiner and P.Herrington. U.K.,Norwich, 1986. Gosnell, Joe. From notes taken at presentation. University of British Columbia, MacMillan Building. 04 March 1997. Gottesfeld, Leslie M. Johnson. "Conservation, Territory, and Traditional Beliefs: An Analysis of Gitksan and Wet'suwet'en Subsistence, Northwest British Columbia, Canada." Human Ecology 22, no. 4 (1994): 443-465. Guerin v. J?egina[1984] 13 D.L.R. (4th) 321. Guidelines Task Force. "GUIDELINES FOR WATERSHED MANAGEMENT OF CROWN LANDS USED AS COMMUNITY WATER SUPPLIES, APPENDIX H: Policy and Procedures for Community Watershed Planning. November 26, 1984." In Chapman and Gray Creeks Integrated Watershed Management Plan (Draft), edited by Marion Jamieson. Ministry of Environment, Lands, and Parks:BC Environment. February 1994. Heritage Research Group. Review of SECHELT INDIAN BAND Comprehensive Claims Proposal. Ganges, B.C.:The Office of Native Claims. 1985. Huestis,Lynne B. Legal Effect of the Land Development Guidelines for the Protection of Fish Habitat. Vancouver:Swinton & Company. 1993. Hyatt, David. "The Sechelt Indian Band Self Government Act" Presented at the Native Rights Seminar, Osgoode h a l l Law School, 1986, In Sechelt Indian Band Self Government Information Package. Sechelt Indian Band. Unpublished. 1996. Indian Act R.S., 1985. Jamieson, Marion, ed. Chapman and Gray Creeks Integrated Watershed Management Plan (Draft). Ministry of Forests; Ministry of Environment, Lands and Parks (BC Environment); Ministry of Health; Ministry of Energy, Mines and Petroleum Resources; the Sunshine Coast Regional Di s t r i c t ; International Forest Products; Canadian Forest Products and Department of Fisheries and Oceans. 1994. Jamieson, Marion. To IWMP Planning Team "Memo re:C/G IWMP f i n a l draft. December 4, 1995". Ministry of Environment, Lands, and Parks F i l e 77900- 50/Chapman. Jamieson, Marion ed., Chapman and Gray Creeks Integrated Watershed Management Plan (draft). British Columbia: BC Environment, Water Management and Fish and Wildlife; Canadian Forest Products; Coast-Garibaldi Health Unit; Department of Fisheries and Oceans; Ministry of Employment and Investment, Energy arid Minerals Division (formerly Ministry of Energy, Mines and Petroleum Resources); International Forest Products; Ministry of Forests; Sechelt Indian Band; and Sunshine Coast Regional District. 1996. Joe, Benny, interview by Delores Paul. Transcribed pages. Sechelt Indian Band Culture Centre:Sechelt Nation History. 1987. Joe, Clarence. Interview edited by Frank Fuller. Unpublished. Amalgamation. Sechelt Indian Band:Culture Centre Files. 1980. Kew, Michael J.E, & Julian Griggs. "Native Indians of the Fraser Basin:Towards a Model of Sustainable Resource Use." In '.Perspectives on Sustainable Development in Water Management:Towards Agreement in the Fraser Basin, edited by Anthony H.J.Dorcey. University of British Columbia:Westwater Research Centre. 1991. Kriwoken, Lynn. Facsimile of Ministry of Environment Lands, and Parks Organizational Chart. Received 04 January 1997. Langer,Otto, Fern Hietkamp & Melody Fa r r e l l . Human Population Growth and the Sustainability of Urban Salmonid Streams in the Lower Fraser Valley. Presented at Sustainable Fisheries Conference, American Fisheries Society. April 26-30. Victoria, BC. 1996. Law Library Update. August 27, 1996 Supreme Court of Canada ]>Reasons' received electronically; paper judgments to follow. Leslie, John & Ron Maguire, The Historical Development of the Indian Act. Indian and Northern Affairs Canada: Treaties and Historical Research Centre, 1983. McNeil, Robin. "Re-structuring of the Ministry of Environment, Lands and Parks." Runoff:Canadian Water Resources Association 5.1. Winter Edition. 1997. Morgan, Chris. Ministry of Environment, Lands, and Parks. Personal Communication. Telephone. 20 June 1997. Moss, Pat. "The Kemano Completion Project Supporting Material: Rivers Defense Coalition. Written Evidence," in First Nation Rights to Water. Conference. Vancouver:Pacific Business & Law Institute. April 5-6, 1995. Notzke, Claudia. Aboriginal Peoples and Natural Resources In Canada. Ontario:Centre for Aboriginal Management Education and Training (CAMET), Claudia Notzke, and Captus Press Inc. 1994. Park, Chris "Water Demand Forecasting and the Social Sciences." In Water Demand Forecasting. Editors Vince Gardiner and Paul Herrington. UK:Norwich, Geo Books, 1986. 25-35. Paul,Tom "ASSESSING THE RISK-A Two way Street". In: Sechelt Indian Bald Self-Government Information Package. Sechelt Indian Band . Unpublished. 1996. Peterson, Lester. THE STORY OF THE SECHELT NATION. Madeira Park:Harbour Publishing. 1990. Robinson, Rob. "Aboriginal T i t l e . " In ABORIGINAL TITLE, RIGHTS, AND THE CANADIAN CONSTITUTION - Proceedings of a Symposium. Victoria, BC. Editors Keith Jobson and Richard King. University of Victoria, 1983. Royal Commission on Indian Reserves Transcript of Evidence. Province Of British Columbia. Volume 17. 246-279. Pinkerton, Evelyn W. "Translating Legal Rights into Management Practice: Overcoming Barriers to the Exercise of Co-Management." Human Organization 51. No. 4. 1992. 330-340. Robinson, Gary Ministry of Environment, Lands, and Parks:Water Licensing. Personal Communication. Telephone. 29 July 1997. Rueggeberg, H. & A.R. Thompson, 1984, "Water Law in Canada, Report for Federal Inquiry on Water Policy." In notes for Natural Resources Law (Law 356 1994), compiled by Dr. Andrew Thompson & Martin L. Palleson. The University of British Columbia. 654-665. Spring 1994. Scott, Anthony D., "British Columbia's Water Rights: Their Impact on the Sustainable Development of the Fraser Basin." In Perspectives on Sustainable Development in Water Management: Towards Agreement in the Fraser River Basin. Editor Anthony H. J. Dorcey. Vancouver, BC: University of British Columbia, Westwater Research Centre. 1991. 341- 390. Sechelt Indian Band. "Submission to the Human Rights Commission". In Sechelt Indian Band Self- Government Information Package. Sechelt Indian Band. Unpublished. 1996. Sechelt Indian Band Culture Department, kern kw (Full Circle) Shishalh Culture & Land Claims. Sechelt Indian Band: Elders Research Group. Unpublished. 1995. Sechelt Indian Band Self-Goverhment Act, 1986. Shea, Pat Assistant Director, MoELP. Personal Communication. 21 July 1997. Souther, Barbara C. Aboriginal Rights and Public Policy: Historical overview and an analysis of the Aboriginal Fisheries Strategy. Masters Thesis. Simon Fraser University:Natural Resources Management. 1993. R. v. Sparrow [1990] 3 C.N.L.R. 160. Starr, Jndian Title to Foreshore on Coastal Reserves in British Columbia. Canada:Department of Indian Affairs and Northern Development. 1985. Sunshine Coast Regional District. Ten Years of Water from the Sunshine Coast Regional District Water System, Pamphlet. Sechelt:SCRD Public Works Department, 1993. Taylor,John P. & Gary Paget. "FEDERAL/PROVINCIAL RESPONSIBILITY AND THE SECHELT:Paper prepared for the National Conference on Federal and Provincial Governments and Aboriginal Peoples. Carlton University, Ottawa. 1988" In Sechelt Indian Band Self Government Information Package. Sechelt Indian Band. Unpublished. 1996. Tennant, Paul British Columbia: a place for Aboriginal peoples? Vancouver: University of British Columbia, 1983. Union of B.C.Indian Chiefs, Indian Water Rights in British Columbia, A Handbook Foreword by Chief Saul Terry, president. Vancouver: Union of B.C. Indian Chiefs. 1991. Vancouver Daily World, Notice Document 10, Tuesday June 3, 1890. Ware, FIVE ISSUES FIVE BATTLEGROUNDS: An Introduction to the History of Indian Fishing in British Columbia 1850-1930. Sardis: Coqualeetza Education Training Centre, 1983. Weatherill, Chuck, Erwin Diener, Linda Williams, Greg Mowatt & Jim Gurney. Tetrahedron LRUP, Water: Final Report of the Water Subcommittee. December 1993. Westland Resource Group, Final Report: Sunshine Coast Regional District Electoral Area "A" Lakes Study. Prepared for the Sunshine Coast Regional District Victoria BC:Project 91-003, April 1992. Wilson, Gordon, MLA, "Keynote address," Symposium address at New Streams of Understanding in B.C.'s Troubled Waters: Securing the Future of B.C.'s Troubled Waterways/Watersheds/Groundwater, Organized by Capilano College Environmental Science Class of 1997 Vancouver, BC, March 06 1997. Wintjes, Tara to Graham Allen. "Memorandum re: Constitutionality of Section 28 of the Sechelt Indian Band Self-Government Act". In Sechelt Indian Band Self-Government Information Package. Sechelt Indian Band. Unpublished. 1996. Yin, Robert K. Case Study Research: Design and Methods 2nd Ed. Thousand Oaks:Sage Publications Inc. 1994 144 APPENDIX 1 CODING LIST FOR INTERVIEW RESPONDENTS Coding assignment for Interviews conducted. To meet the terms of approval for the UBC Ethics review committee the persons interviewed remain anonymous. The following l i s t states the perspective sought in requesting the interview and the date the interview was conducted. For interviews coded 02,03, and 08 there was more than one person present. Each of the individuals was therefore assigned a secondary coding number. CODING NUMBER PERSPECTIVE SOLICITED INTERVIEW DATE Y/M/D 01 Commercial water user 95/10/06 02:1-16 Sechelt Indian Band:Elders 95/11/16 03:1-2 SCRD Representative 96/01/07 04 Infrastructure development h i s t o r y ( l o c a l ) 96/01/19 05 Infrastructure development (Dayton & Knight Ltd engineering) 96/08/09 06 C/G IWMP Development ( P r o v i n c i a l rep) 96/10/04 07 C/G IWMP Implementation ( l o c a l rep) 97/02/13 08:1-2 M i n i s t e r i a l Water Planning & Rights (MoELP) 97/03/12 Cited in notes as follows: [Perspective solicited]. Interview code [_:_]. Tape recorded transcript. Interview by author. [Place of interview], [DD Month Year]. [Page number from transcript]. 145 APPENDIX 2 LIST OF THE CHAPMAN AND GRAY INTEGRATED WATERSHED MANAGEMENT PLAN PLANNING TEAM FEDERAL REPRESENTATION D e p a r t m e n t o f F i s h e r i e s and Oceans (DFQ) Nanaimo B r a n c h R e p r e s e n t a t i v e R i c h a r d E l i a s e n (1990-1996) PROVINCIAL REPRESENTATION M i n i s t r y o f E n v i r o n m e n t (MOE) Water Management B r a n c h R e p r e s e n t a t i v e M a r i o n J a m i e s o n (Co-chair IWMP) (1990-1996) M i n i s t r y o f E n v i r o n m e n t (MOE) F i s h & W i l d l i f e B r a n c h R e p r e s e n t a t i v e S t e v e G o r d o n (1990-1996) M i n i s t r y o f E n e r g y . M i n e s and P e t r o l e u m R e s o u r c e s (MEMPR) M i n e r a l P o l i c y B r a n c h R e p r e s e n t a t i v e R o l f S c h m i t t (1990-1996) M i n i s t r y o f F o r e s t s (MOF) S u n s h i n e C o a s t F o r e s t D i s t r i c t R e p r e s e n t a t i v e B a r r y M i l l e r (Co-chair IWMP) (1990-1996) M i n i s t r y o f H e a l t h C o a s t G a r i b a l d i H e a l t h U n i t R e p r e s e n t a t i v e Bob Weston (1990-1996) ABORIGINAL REPRESENTATION S e c h e l t I n d i a n Government D i s t r i c t (SIGD) F i s h e r i e s O f f i c e R e p r e s e n t a t i v e S i d Q u i n n (1993-1996) MUNICIPLE REPRESENTATION S u n s h i n e C o a s t R e g i o n a l D i s t r i c t (SCRD) P l a n n i n g R e p r e s e n t a t i v e Sheane R e i d (1990-1996) BUSINESS REPRESENTATION C a n a d i a n F o r e s t P r o d u c t s L t d . ( C a n f o r ) M a i n l a n d L o g g i n g D i v i s i o n R e p r e s e n t a t i v e B i l l L a s u d a (1990-1996) I n t e r n a t i o n a l F o r e s t s P r o d u c t s ( I n t e r f o r l J a c k s o n D i v i s i o n R e p r e s e n t a t i v e D a v i d L a s s e r (1997-1996)

Cite

Citation Scheme:

    

Usage Statistics

Country Views Downloads
United States 4 0
France 3 0
China 2 13
New Zealand 1 0
Japan 1 0
City Views Downloads
Unknown 4 9
Ashburn 2 0
Redmond 2 0
Shenzhen 1 13
Beijing 1 0
Tokyo 1 0

{[{ mDataHeader[type] }]} {[{ month[type] }]} {[{ tData[type] }]}

Share

Share to:

Comment

Related Items