"Do not take them from myself and my children for ever" : Aboriginal water rights in Treaty 7 territories and the duty to consult

Abstract

Treaty 7 First Nations, who have occupied the South Saskatchewan River Basin since time immemorial, have water rights protected by s.35 of the Constitution, Treaty 7, and the Natural Resources Transfer Agreement, 1930. This thesis suggests that Alberta has devised a legal regime that circumvents the treaty relationship between the Crown and Treaty 7 First Nations. Section 52 of the Constitution and the principles of constitutionalism and the rule of law require that Crown legislation and action must be consistent with the Constitution. Because Aboriginal and treaty rights are protected under s.35(1) of the Constitution, Alberta’s consultation guidelines must address the protection of existing Aboriginal and treaty rights. This thesis examines whether the treaty or any subsequent Crown legislation or Crown action has extinguished the Aboriginal and treaty rights of Treaty 7 First Nations and draws the conclusion that the Aboriginal rights of Treaty 7 First Nations not only continue to exist, but are afforded additional protection by Treaty 7 and the Natural Resources Transfer Agreement. This leads to the conclusion that Alberta’s consultation policy fails to recognize and affirm Aboriginal and treaty rights in their entirety as they currently exist. To the extent that Alberta’s Aboriginal consultation policies and regulations are inconsistent with s.35(1) they are null and void.