Aboriginal Water Rights in Canada: A Study of Aboriginal Title to Water & Indian Water Rights // Review

Article excerpt

In the late nineteenth and early twentieth centuries, the "disappearing Indian" was in vogue among writers who frequently couched their concerns with the "Red man's" fate in sympathetic acceptance of the inevitable. Yet not only did the Indian fail to disappear, many organized in resistance to the ways imposed upon them. Although current Native activism is frequently dated from the impetus of the 1969 White Paper, Native people have been organizing for years in spite of the best restrictions that governments, schools and churches could apply. By 1939, the non - disappearing Indian was being recognized by the assimilative forces, gathered at a conference in Toronto on the eve of the Second World War. There, to an audience that included Native leaders (invited presumably for their own edification, since none was given opportunity to speak), government officials, educators and others concerned with overseeing their Native wards, confessed at last their failure to turn Native people into whites.(f.1)

While this recognition did not visibly slow the forces of assimilation, it did play havoc with their confidence. The great wheel of time has turned, however, for now, without admitting much in the way of error, the dominant society is being forced to move from telling Native people what to do, to a position of sharing increasingly the process of decisionmaking with them. In this century, Native people have moved into an ascendency that was inconceivable only a generation ago. This change has been reflected in the rapid increase in writings about Native people by scholars from a wide range of disciplines. Moreover, Native people are producing their own written works as they assert increasingly the possession of their history.

In this review, however, the emphasis is upon works dealing with the issues that the activities of Native people have forced the dominant society to address. Concepts such as land claims, self - government and aboriginal rights have entered the common parlance even as politicians, academics and the courts struggle with their precise meaning. If symbolic gestures were enough, the problems would have been solved long ago. But Native people want land; they want sovereignty; they want a meaningful voice in constitutional change; they want to be separate but equal. Such demands involve much more than alterations in the relations between the dominant society and Native groups. They involve the redefinition of the legal, constitutional, political and economic structures of the entire country. The works considered here reflect a number of approaches, multidisciplinary and ideological, to resolving these issues.

On the legal front, Richard Bartlett is virtually an industry, manufacturing treatises on the law relating to aboriginal people at a prolific rate. He has been connected for years to the University of Saskatchewan's Native Law Centre, although the work under review is the first in a series based on the Canadian Water Law Project of the Canadian Institute of Resources Law in the Law Faculty at the University of Calgary. Aboriginal Water Rights is representative of his prodigious output.

Compared to the questions surrounding land, little consideration has been given to the rights of Native people to water. Bartlett re - establishes the significance of this issue in, to use the Institute's words, the "major Canadian work on the subject" (i). His book is a series of arguments building inexorably toward the conclusion that aboriginal people have extensive water rights. Its encyclopaedic scope both masks and drives that agenda. Bartlett has done an enormous service in compiling the Canadian law and legislation relating to aboriginal water rights, and draws heavily as well on the much more extensive experience of the United States with this question.

The American experience is significant enough, in fact, to provide shaping concepts for the organization of the Canadian material. …