Consultation is not consent: hydraulic fracturing and water governance on Indigenous lands in Canada

Abstract

The rapid increase in private sector proposals and permit applications to use water for the purpose of hydraulic fracturing has led to significant concerns in nearly every jurisdiction in the world where shale gas development has been explored. In addition to concerns about risks to water quantity and quality, in Canada, shale gas development has highlighted how the Crown (federal and provincial governments) continues to struggle in its approach to honor, respect, and uphold Nation‐to‐Nation relationships with Indigenous peoples. But moving beyond the criticism, we argue that these circumstances have provided a renewed opportunity to explore alternative governance approaches. Existing water governance challenges are exacerbated by historical injustices generated by resource management approaches that have exposed Indigenous nations to disproportionate environmental risks. Furthermore, the inadequacy of current water governance approaches to recognizing Indigenous rights, self‐determination, ways of knowing, and values has been well established in literature relating to environmental governance and Indigenous peoples. Given these circumstances, if water is allocated to hydraulic fracturing in Canada with continued disregard for Indigenous rights and risks, we contend that this only further intensifies unjust environmental and cultural harm to Indigenous peoples. In the quest for solutions, we discuss the challenges to alternative models (co‐management, collaborative governance, and impact benefit agreements) that are frequently cited in environment‐Indigenous literature. We conclude with recommendations to address the unresolved challenges inherent in these governance models, in the interest of improving water decision‐making. WIREs Water 2017, 4:e1180. doi: 10.1002/wat2.1180 This article is categorized under: Human Water > Rights to Water Engineering Water > Sustainable Engineering of Water Human Water > Water Governance

The adaptation potential of water law in Canada: changing existing water use entitlements

“…In the Canadian context of unacknowledged aboriginal and treaty rights to water, it is clear that indigenous communities expect provincial governments to adapt water law regimes to include planning, cumulative effects assessment and recognition of aboriginal rights to water (Curran, 2017, Forthcoming;Garvie et al, 2014/15;Moore et al, 2017). While several provincial water law regimes enable watershed planning, the very few plans in place do not address indigenous-settler water allocations (Curran, 2015;Unger, 2009).…”

“…However, no provincial government recognizes aboriginal and treaty rights to a specific allocation of water, except as expressed in the very few modern treaties (Curran, 2017;Phare, 2009). Although provincial governments consult with First Nations about development activities that will have an impact on their rights, these efforts are ineffective in ensuring continued healthy water quality and quantity in the broader traditional territories on which many First Nations rely (Garvie, Lowe, & Shaw, 2014/15;Moore, Von der Porten, Castleden, 2017;Passelac-Ross & Buss, 2011).…”

Valuing fresh waters

“…Like lands and ceremonies, Indigenous values “have been misappropriated, misrepresented, and exploited as a common practice of colonialism” (Young Leon & Nadeau 2017, p. 127). Scholars and practitioners must be cautious to avoid “reproducing colonial hydrological ways of knowing and being” (Hayman et al, ) as well as the hubris and harms of colonial domination that could easily be reinscribed on human and other bodies of water, just as Indigenous values and communities have been and continue to be violated in various forms of scientific research (Moore, von der Porten, & Castleden, ; TallBear, ; Tuhiwai Smith, ). The expansion of values discourse for fresh waters must occur with accountability to communities' own practices, articulations and verifications—not merely in metaphoric, casually performative or knowledge‐usurping ways that presume that Indigenous values can be “grafted onto pre‐existing discourses/frameworks, even if they are critical, even if they are anti‐racist, even if they are justice frameworks” (Tuck & Yang, , p. 3).…”

Implementing Indigenous and Western Knowledge Systems (Part 2): “You Have to Take a Backseat” and Abandon the Arrogance of Expertise

“…However, given the necessity of engaging with the Settler-colonial state, many Indigenous Peoples have had to engage in rights-based discourses rather than responsibilities-based discourses, lest they risk being invisible to the Settler state (Moore, von der Porten, & Castleden, 2016).…”