First Nations fight water transfers in court

Alberta’s water market is environmentally unsound and violates the treaty rights of First Nations according to two aboriginal groups who have taken the provincial government to court. They say the government didn’t consult them before bringing in the market system.

In an effort to conserve Alberta’s dwindling water supply the province stopped issuing new licences for water withdrawals on all rivers in the south of the province two years ago. Current licence-holders with extra water can sell it off at any price to those who need more.

The Tsuu T’ina and the Samson Cree two southern Alberta First Nations say the government never consulted them before bringing the system in and they will be forced to give up their right to take water where they want. “It limits water access and would require the Nation to go through one of the access points instead of having open access as under the treaty” says Morton Paulson a spokesperson for the Tsuu T’ina. The two groups argue that the system which encourages higher water withdrawals doesn’t protect the environment and also infringes on First Nations hunting and fishing.

Their primary legal argument is that the government has to consult them before making any decisions that concern their treaty rights. If they can prove that the court could decide to strike down the government plan that created the water market and force the province to find a new way of managing Alberta’s water.

“(The case) has the potential to make important law on an important issues” says Brian Barrington-Foot a Regina lawyer representing the First Nations noting that the case is the first of its kind in Canada.

The Tsuu T’ina have a population of roughly 2000 on a reserve southwest of Calgary in the Bow River basin. The Samson Cree have a reserve near Hobbema south of Wetaskiwin. The legal challenges were launched last year. The action went before the court last month but a decision won’t be released for several weeks.

The Tsuu T’ina previously opposed the government’s water transfer system when the Crossiron Mills mega-mall north of Calgary cut a deal to buy 2.2 million cubic metres of water from the Western Irrigation District. The development was ultimately allowed to proceed marking the largest water sale so far in the province’s history.

Alberta Environment declined to comment on the First Nations legal challenge until the judge makes a decision. “There isn’t a lot we can say since the matter is before the courts” says spokesperson Kim Capstick. (AM)