Shoal Lake 40 has joined a judicial review originally launched by its counterpart, the Iskatewizaagegan Independent First Nation, or Shoal Lake 39, to quash all negotiations to expand the City of Winnipeg’s water pipes to semi-rural bedroom communities.
Shoal Lake 40, which has been under a boil water advisory for more than 15 years, had previously refused to get involved in the legal action launched by Shoal Lake 39 in March against the city.
Shoal Lake 40 insisted that it preferred a negotiated rather than litigated settlement to the dispute. But that all changed this summer, according to Shoal Lake 40 band councillor Tania Bruyere.
“We want acknowledgement of our land that was expropriated ... and respect for our community as equals on a nation-to-nation basis at the negotiating table,” she said.
Bruyere added that the First Nation is joining the legal proceedings because it needs to force the city to recognize the aboriginal treaty right to water that comes from the oral proceedings that created Treaty No. 3, which was signed between various First Nations and the Government of Canada in 1873.
Shoal Lake, which straddles the Manitoba and Ontario border, has been Winnipeg’s source of drinking water since a 155-kilometre aqueduct was constructed in 1919. Use of the lake water by the city was authorized by an Ontario order in council in 1913.
The order in council, the First Nations point out, did not authorize transport of water to certain bedroom communities. As such, they believe Winnipeg is overstepping its boundaries by negotiating with areas like West
St. Paul and Springfield to expand city water pipes - and extract more water from Shoal Lake.
Reneé Pelletier, an indigenous lawyer of Maliseet ancestry from the Ontario law firm Olthuis, Kleer, Townshend LLP, who is part of the legal team representing Shoal Lake 39, said the First Nations will argue the 1913 order-in-council does not grant Winnipeg the right to expand water sharing with municipalities not named in the original order-in-council of Ontario.
Therefore, sharing with West St. Paul would not be within Winnipeg’s authority.
On the other hand, Pelletier questioned the jurisdiction of the Ontario government to have made this order-in-council in the first place since First Nations issues are in federal jurisdiction.
Pelletier further argued Shoal Lake 39 was not consulted or compensated when this order-in-council was created.
In fact, there is a history of the city only negotiating with Shoal Lake 40 and consistently leaving Shoal Lake 39 out of negotiations, she said.
“The City of Winnipeg has consistently declined to talk with or meet with Shoal Lake 39 on issues related to water.”
The second argument the legal team will use is that Treaty No. 3 protects the inherent rights and responsibilities of the Anishinaabeg of Shoal Lake 39 to the waters in their traditional territories.
The legal team will outline the impacts drawing water from Shoal Lake has had and can have on the traditional practices of the community, such as wild rice harvesting, Pelletier added.
Steve West, corporate communications spokesperson for the City of Winnipeg, declined to comment on the case while it is still before the courts.
He also was not willing to provide any information on whether or not the city had a policy or strategy on indigenous treaty rights in general.
However, both Bruyere and Pelletier argued the main purpose of the litigation is to have judicial affirmation of their right to consultation and compensation for the water, which they believe is inherent in the treaty.
Published in Volume 67, Number 1 of The Uniter (September 5, 2012)