Indigenous legal perspectives on water

On Jan. 28, 2013, Aimée Craft (Public Interest Law Centre; sessional lecturer at Robson Hall) explored what it means to think of water, rights, and water as a “right” from both Western and Indigenous legal perspectives.

Craft noted that although these two forms of law can co-exist, they each have unique characteristics that can be difficult to reconcile. For example, Western laws tend to be written, individualistic and about inanimate objects, while Indigenous laws tend to be unwritten, collectivist and about relationships between beings with agency. Another important distinction is the understandings of rights.

“In Western systems of law, you have a right and in order to exercise that right, you look to the obligations,” said Craft. “We often refer to obligations in terms of being the counterweight of rights – if you have a right, someone else has an obligation to meet… In Anishinabe law, we bring in a third character.”

This “third character” is responsibilities, which can be individual or collective. “Without the obligations and responsibilities, there would be no rights,” Craft stated. “It’s [a] reversing of how we conceptualize rights in Western systems of law.”

Appreciating the differences between Western and Anishinabe law and their approaches to rights can be helpful in understanding differing views on water.

“When we look at that in terms of the framework of Anishinaabe law – obligations and responsibilities – that water is a spirit, which is an animate being. Water has agency to which we have obligations and responsibilities.”

Craft explained that Canadian law doesn’t treat all water equally. “We distinguish between drinking water, the treatment and sanitation of water, and things like transport of water and water beds – those have different forms of jurisdiction attached to them, so we can’t say there’s a jurisdiction over water itself in Canadian law.”

In contrast, Anishinabe law views water more holistically. “[In creation stories], water is always referred to as that original “resource”­­–­ it’s that place from which we all come,” Craft said.

To Craft’s knowledge, no one has written about water as a right using the framework of Indigenous laws. She is dedicated to continuing to learn about this valuable topic.

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Issues discussed this week:

You’re in the process of sorting out water as a right using the framework of Indigenous laws. What will you do with this knowledge once you’ve sorted out the relationship?

Craft said she has a few ideas, one of which stems from the troubling state of the environment and society. “We’re on a path that isn’t right,” she said. “We need to take a step back and try and understand things from a different perspective. That different perspective to me is understanding things from the Indigenous perspective.”

It seems that Western law and Indigenous laws are fundamentally different – Western law is found in books and exists as its own institution, whereas Indigenous laws seem more cultural and a part of everyday life. Do you have to choose between the understandings?

Craft said it is certainly possible to combine both, which is how the Canadian legal system was founded. “How the treaties were negotiated was by combining systems of law, giving value to one and trying to understand the other,” she said. “Indigenous law, like any other system of law, will draw from other systems of law to make it better. Law is living, law is pragmatic.”

 

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