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A Sacred Responsibility: Governing the Use of Water and Related Resources in the International Columbia Basin Through the Prism of Tribes and First Nations

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A Sacred Responsibility: Governing the Use of Water and Related Resources in the International Columbia Basin Through the Prism of Tribes and First Nations A Sacred Responsibility: Governing the Use of Water and Related Resources in the International Columbia Basin Through the Prism of Tribes and First Nations Universities Consortium on Columbia River Governance Universities Consortium on Columbia River Governance Sponsors © June 2015 by Universities Consortium on Columbia River Governance Thanks to Supporters This report would not have been possible without the vision, commitment, and participation of Columbia Basin tribes and First Nations. We greatly appreciate the opportunity to work alongside these individuals and organizations and look forward to continuing the work. We also thank the following organizations that generously supported this project both financially and otherwise: Canadian Water Research Society Columbia Basin Trust Lincoln Institute of Land Policy Real Estate Foundation of British Columbia RBC Blue Water Project University of British Columbia Center for Natural Resources & Environmental Policy, The University of Montana Finally, we would like to thank Michael Carter, Barb Cosens, Glen Hearns, Christian Marsh, Kim Ogren, Peter Pollock, Tessa Terbasket, John Thorson, Aaron Wolf, and several anonymous people for reviewing drafts of this report and otherwise contributing to this project. Notice to Readers The opinions expressed in this publication are solely the opinions of one or more of the authors and do not necessarily reflect the opinions of all of the authors, or any of the sponsors or reviewers of this publication, or any of the entities that the authors may have acted for or represented in the past, or may act for or represent in the future. Neither the Universities Consortium on Columbia River Governance nor the individual authors guarantee or warrant the accuracy, reliability, completeness, or currency of the information in this publication, nor its usefulness in achieving any purpose. Readers are responsible for assessing the relevance and accuracy of the content of this publication. Neither the Universities Consortium on Columbia River Governance nor the individual authors will be liable for any loss, damage, cost or expense incurred or arising by reason of any person using, or relying on, information in this publication. The information in this report purports to be current as of January 1, 2015. Richard Kyle Paisley Matthew J. McKinney Molly Smith Stenovec Universities Consortium on Columbia River Governance | 1 Contents Participants Executive Summary Introduction Section 1.0: Historical Context 1.1. The International Columbia Basin 1.1.1. Physical Geography 1.1.2. History of Columbia Basin Tribes and First Nations 1.1.3. Demographic Trends and Settlement Patterns 1.2 Governing the Use of Water and Related Resources 1.2.1 From the Beginning: Tribal and First Nation Practices 1.2.2 The Boundary Waters Treaty 1.2.3 The Columbia River Treaty 1.2.4 Additional Transboundary Governance Arrangements 1.2.5 Domestic Governance Arrangements 1.3 Challenges and Opportunities for Tribes and First Nations 1.3.1 Fragmented Traditional Territories 1.3.2 Asserting Tribal and First Nations Legal Rights 1.3.3 Lack of Involvement in International Treaties 1.3.4 Decline of Salmon and Fishery Economies 1.3.5 Opportunities to Share Knowledge and Cultural Values 1.3.6 Economic Opportunities 1.4 Conclusions Section 2.0: The Interests and Aspirations of Tribes and First Nations 2.1 Columbia Basin Tribes 2.2 First Nations 2.3 Toward Common Interests A Sacred Responsibility | 2 Section 3.0: The Role of Indigenous Peoples in Transboundary Water Management: Lessons for the Columbia River Treaty 3.1 International Law 3.2 International Water Law 3.2.1 Equitable and Reasonable Utilization 3.2.2 Prevention of Significant Harm 3.2.3 Prior and Timely Notification 3.2.4 Ecosystem Protection 3.3 Other Relevant International Law 3.3.1 Declaration on the Rights of Indigenous Peoples 3.3.2 International Convention on Biological Diversity 3.4 The Role of Indigenous Peoples in the Governance of International Waters 3.4.1 International Law 3.4.2 United States Law 3.4.3 Canadian Law 3.5 Policy Reasons to Involve Tribes and First Nations 3.6 Pragmatic Reasons to Involve Tribes and First Nations 3.7 Conclusions and Options Section 4.0: Improving Governance in the International Columbia Basin 4.1 Lessons Learned from International Case Studies 4.2 Preliminary Options for Future Governance of the Columbia Basin 4.3 Conclusions Section 5.0: Conclusions Section 6.0: Appendices 6.1 The Columbia River Basin: A Sense of the Future 6.2 Letters of Commitments from First Nations and Tribes 6.3 Profiles of 15 Columbia Basin Tribes 6.4 A Primer on Canadian and U.S. Government: Similarities and Differences 6.5 Letters of Reference from Canada and the United States to the International Joint Commission 6.6 Chronology of Selected Major Events since 1964 6.7 Recommendations from Canada and the United States on the Future of the Columbia River Treaty 6.8 Transboundary Cooperative Arrangements between British Columbia and Washington 6.9 Selected Case Studies on Negotiating Transboundary Water Agreements 6.10 Case Studies on Implementing Agreements and Governing Transboundary Universities Consortium on Columbia River Governance | 3 Participants First Nations Dave Nordquist Keith Kutchins Adams Lake Band Upper Columbia United Tribes Ray Cormier [email protected] [email protected] Splatsin Band 250-679-8841 [email protected] Brian Lipscomb 250-838-6496 Mark Thomas Confederated Salish Shuswap Indian Band & Kootenai Tribes Bill Green [email protected] [email protected] Ktunaxa Nation Council Canadian Columbia River Pauline Terbasket John Marsh Intertribal Commission Okanagan Nation Alliance Confederated Salish [email protected] [email protected] & Kootenai Tribes 250-420-2744 250-878-6242 [email protected] 503-341-6237 Jay Johnson Rosalie Yazzie (Wilson) Okanagon Nation Alliance Okanagan Nation Alliance Ted Knight [email protected] [email protected] Spokane Tribe of Indians 250-818-3020 250-540-6710 [email protected] 509-953-1908 Nicole Kapell Howie Wright Ktunaxa Nation Council Okanagan Nation Alliance Research & Facilitation Team [email protected] [email protected] 250-417-4022 250-707-0095 Matthew McKinney Universities Consortium Stuart Lee Columbia Basin Tribes on Columbia River Governance Splatsin Band University of Montana [email protected] Bob Austin [email protected] Upper Snake River Tribes 406-459-5166 Rita Matthew [email protected] Simpcw First Nation Richard Paisley [email protected] Billy Barquin Universities Consortium 250-672-9995 Kootenai Tribe of Idaho on Columbia River Governance [email protected] University of British Columbia Jim McGrath [email protected] Shuswap Nation Tribal Council Jim Heffernan 604-822-9224 [email protected] Columbia River Inter-Tribal 250-314-1597 Fish Commission Molly Stenovec [email protected] Universities Consortium Adam Neil 503-731-1303 on Columbia River Governance Splatsin Band University of Montana [email protected] Chuck Hudson [email protected] Columbia River Inter-Tribal 218-235-1213 Fish Commission [email protected] 503-731-1257 A Sacred Responsibility | 4 Executive Summary In the fall of 2012, leaders from First Nations and tribes in the international Columbia Basin participated, along with about 150 other people, in the 4th transboundary symposium convened by the Universities Consortium on Columbia River Governance. Gathered on the shores of Flathead Lake in Polson, Montana, the participants explored the interests, rights, and roles of tribes and First Nations in the basin. Following the symposium, members of the Universities Consortium continued to work with the tribes and First Nations to explore the role of tribes and First Nations in governing the use of water and related resources in the transboundary Columbia Basin. Over 18 months, from the summer of 2013 through the fall of 2014, representatives from the tribes and First Nations worked side-by-side in a Steering Committee to guide this research project. This process, in and of itself, represents the first of three significant outcomes. The Steering Committee and research team met via conference calls and face-to-face workshops to shape the purpose and scope of the project, explore and examine preliminary findings, and to clarify options and conclusions. This project is a good example of how universities can inform and invigorate natural resource policy by convening the right people with the best available information while maintaining their independent judgment and integrity. The project also provided a unique opportunity for First Nations and tribes on both sides of an international border to work together on issues of common concern. The second significant outcome of this project is this publication, which includes a unique compilation of materials. As revealed by the table of Contents, the report includes basic information on the history and governance of the international Columbia Basin; a synthesis of the interests and aspirations of tribes and First Nations in the basin; an overview of the legal framework that defines the role of indigenous peoples in international water governance; and a review of case studies throughout the world that might inform efforts to improve governance in the basin. The intent is to provide a compelling narrative that highlights and explains the past, present, and future role of tribes and First Nations in governing the use of water and related resources in the international Columbia Basin. The narrative is grounded in the interests and aspirations of tribes and First Nations, and informed by trends and lessons from the international water community. The third significant outcome of this project is the findings and conclusions of the report as highlighted below: Historical Context Tribes and First Nations have been governing the use of land and water resources in the Columbia Basin for thousands of years. Individually and collectively, the stewardship of land, water, and other natural resources is not only an issue of self-determination for tribes and First Nations, but also a sacred responsibility.
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