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Published online by Cambridge University Press: 18 July 2014
Industrial activity, intensive agricultural settlement, water diversion and hydroelectric development, among other activities, have the potential to directly or indirectly impact the physical and cultural sustainability of modern Aboriginal communities. However, the water rights of Aboriginal people in Canada remain uncertain. This paper discusses how Bands in the treaty 8 area of northern Alberta possess Aboriginal, treaty and common law water rights and, in some cases, may have received title to the beds of navigable, on-reserve waters by implication. It then discusses some indirect impacts of hydroelectric development on the traditional economy and the manner in which Bands may prevent or participate in such development.
L'activité industrielle, l'agriculture intensive, la déviation de cours d'eau et le développement hydroélectrique ont, parmi d'autres activités, le potentiel d'avoir des conséquences directes et indirectes sur la durabilité physique et culturelle des communautés autochtones modernes. Toutefois, les droits relatifs à l'eau des peuples autochtones au Canada demeurent incertains. Cet article discute comment les collectivités dans la région du traité numéro 8 au Nord de l'Alberta possèdent des droits relatifs à l'eau, issus du traité et de la Common Law, et, en quelques situations, ont possiblement reçu titre aux lits de cours d'eau navigables dans les réserves, implicitement. l'discute ensuite quelques conséquences indirectes de l'aménagement hydroélectrique sur l'économie traditionnelle et la manière par laquelle les collectivités peuvent empêcher ou participer dans de tels développements.
1 The ensuing information regarding the use of water and the importance of water and water resources to the physical and cultural survival of Native communities in Alberta was communicated by participants of a 14 person focus group: Orcherton, Dan F. and Statt, Graham R., facilitators, “Indigenous Perspectives in Water Resource Management” (Focus group, University of Alberta, November 2, 2002) [unpublished].Google Scholar The group was composed of two Cree elders, representatives from the Grand Council of Treaty 8 First Nations, the Metis Association of Alberta and Aboriginal Student Council at the University of Alberta. Special thanks to Native Student Services for their help in advising the facilitators and to Native artist Jared Sinclair-Gibson of ‘Sun-Moon Visionaries’ for his time in producing the interpretive painting of the focus group proceedings.
2 See generally, Northern River Basins Study Board, Northern River Basins Study: Report to the Ministers 1996 (Edmonton: Alberta Environmental Protection, 1996).Google Scholar For an excellent general overview of how these early Aboriginal economies adapted to non- Aboriginal populations and influences after contact see Ray, Arthur J., Indians and the Fur Trade: Their Role as Trappers, Hunters and Middlemen in the Lands Southwest of Hudson's Bay, 1600–1860 (Toronto: University of Toronto Press, 1974).Google Scholar
3 It is now a policy requirement in the federal government of Canada that ‘traditional knowledge’ be considered and incorporated into environmental assessment and resource management. For example, article 14.5 of the Inuvialuit Final Agreement [Canada, The Western Artie Claim: The Inuvialuit Final Agreement (Ottawa: Minster of Indian Affairs and Northern Development, 1984)Google Scholar] states as a principle that “the relevant knowledge and experience of both the Inuvialuit and the scientific communities should be employed in order to achieve conservation”. Two recent federal environmental assessment panels (Voisey Bay nickel mining project in Labrador and the BHP diamond mining project in the Northwest Territories) were instructed to give “full consideration to traditional ecological knowledge whether presented orally or in writing” and “full and equal consideration to traditional knowledge”, respectively [Report of the Environmental Assessment Panel (Ottawa: Minister of Supply and Services, 1996) at 74.]. However, there has been difficulty in enforcing, standardising and monitoring its usage in this capacity. For discussion see Usher, Peter J., “Traditional Ecological Knowledge in Environmental Assessment and Management” (2000) 53 Arctic 183.CrossRefGoogle Scholar
4 R. v. Van der Peet, [1996] 2 S.C.R. 507 at para. 46 [Van der Peet]; Delgamuukw v. B.C. [1997] 3 S.C.R. 1010 at para. 140 [Delgamuukw].
5 Delgamuukw, ibid., at para. 142.
6 Ibid. at para. 119; Van der Peet, supra note 4 at para. 54; R. v. Simon, [1985] 2 S.C.R. 387 at para. 29 [Simon]; R. v. Sparrow, [1990] 1 S.C.R. 1075 at para. 24 [Sparrow]; R. v. Marshall, [1999] 3 S.C.R. 456 at para. 53 [Marshall]; R. v. Sundown, [1999] 1 S.C.R. 335 at para. 32 [Sundown].
7 Calder v. British Columbia(A.G), [1973] S.C.R. 313 [Calder]; Hamlet of Baker Lake v. Minister of Indian Affairs and Northern Development, [1979] 3 C.N.L.R. 17 [Baker Lake]; Paul v. Canadian Pacific (1983), 2 D.L.R. (4th) 22 (N.C.B.A); R. v. Sioui, [1990] 1 S.C.R. 1025 at para. 89–91 [Sioui]; Sparrow, supra note 6, generally.
8 Treaty No. 8, made June 21, 1899 and Adhesions, Reports, etc. (Ottawa: Queen's Printer, 1966) [Treaty 8].
9 Ibid.
10 Germain, J. St., Indian Treaty-Making Policy in the United States and Canada, 1867–1877 (Toronto: University of Toronto Press, 2001) at 6.Google Scholar
11 Treaty commissioners David Laird, J. H. Ross and J.A. McKenna make specific reference to the importance of providing twine and ammunition and the assurance of hunting and fishing rights m the area in their report to Clifford Sifton, superintendent general of Indian affairs These concessions were essential for the successful conclusion of treaty 8 See Treaty 8, supra note 8.
12 Brian Slattery, Aboriginal law expert, suggests that the written document of the treaty amounts to nothing more than an internal government memorandum and the true intent of the treaty can only be found in the oral agreement that was reached between the parties: Slattery, Brian, “Aboriginal and Treaty Rights at the Supreme Court of Canada” (Lecture given at ‘Aboriginal Law Week, 2003’, February 25, 2003) [unpublished]Google Scholar For discussion on treaty interpretation see Henderson, James Youngblood, “Interpreting sui Generis Treaties” (1997) 36 Alta L Rev 46Google Scholar and Slattery, Brian, “Making Sense of Aboriginal and Treaty Rights” (2000) 79 Can Bar Rev 196Google Scholar; Marshall, supra note 6; Sioui, supra note 7; R v. Taylor and Williams (1982), 34 O.R (2d) 360, Benoit v. Canada, [2002] 2 C.N.L.R. 1(FC)
13 Henderson, James Youngblood, “First Nations Legal Inheritance” (1995) 23 Man. L J 1Google Scholar
14 Henderson, James Youngblood, “Empowering Treaty Federalism” (1994) 58 Sask. L Rev 241 at 262Google Scholar.
15 For an alternate view see Friesen, Jean, “Magnificent Gifts The Treaties of Canada with the Indians of the Northwest 1869–1876” in Price, Richard T., ed, The Spirit of the Alberta Indian Treaties (Edmonton University of Alberta Press, 1999) 203.Google Scholar At 204–205: “Men who had for at least a century dealt with the economic demands of the Hudson's Bay Company of American free traders and the political demands of the new nation of the Metis, men who had experienced dislocation, epidemics, and the revolutions of horse and gun, are widely viewed as children in arranging their treaties with these same Europeans Indian leaders took this situation and, in most cases, made the best deal they could for their land There is no doubt in my mind that at least some Indian leaders at the treaties were well aware that this was a land sale on an enormous scale.”
16 Richard Daniel, “The Spirit and Terms of Treaty Eight” in Richard T. Price, ibid., at 55.
17 In Delgamuukw, supra note 4 at 1083, C.J.C. Lamer defines Aboriginal title as “the right to exclusive use and occupation of land held pursuant to that title for a variety of purposes, which need not be aspects of those aboriginal practices, customs and traditions which are integral to distinctive aboriginal cultures.” For an informative analysis of the nature and content of Aboriginal title see McNeil, Kent, “Aboriginal Title as a Constitutionally Protected Property Right” in Lippert, Owen, ed., Beyond the Nass Valley: National Implications of the Supreme Court's Delgamuukw Decision (Vancouver: Fraser Institute, 2000).Google Scholar
18 Fumoleau, Rene, As Long as This Land Shall Last: A History of Treaty 8 and Treaty 11 1870–1939 (Toronto: McClelland and Stewart, 1973).Google Scholar
19 Ibid. at 90–91.
20 See generally, Re Paulette et al. v. Canada (Registrar of Titles) (1973), 42 D.L.R. (3d) 8 (NWTSC). Morrow J. states at 13: “While it may not be pertinent to this Judgment … I think almost every member of the Court party felt that for a short moment the pages of history were being turned back and we were privileged to relive the treaty-negotiating days in the actual setting … These witnesses, for the most part very old men and women, one of them 101 years old, were dignified and showed that they were and had been persons of strong character and leaders in their respective communities … There is no doubt in my mind that their testimony was the truth and represented their best memory of what to them at the time must have been an important event. It is fortunate indeed that their stones are now preserved.”
21 See generally, Fumoleau, supra note 18. Similar reasons for treaty were also present in treaty 9: see Macklem, Patrick, “The Impact of Treaty 9 on Natural Resource Development in Northern Ontario” in Asch, Michael, ed., Aboriginal and Treaty Rights in Canada (Vancouver: University of British Columbia Press, 1997) 97.Google Scholar
22 Fumoleau, supra note 18 at 23–39.
23 Macklem, supra note 21 at 119.
24 Treaty 8, supra note 8. See also the exchange between Keenooshayo and David Laird at the negotiations at Lesser Slave Lake in Mair, Charles, Through the Mackenzie Basin (TorontoWilliam Briggs, 1908) 59–60.Google Scholar
25 For an excellent account of the relationship between the Company and the Native groups in the early years of the fur trade see Ray, Arthur J., Give us Good Measure: An Economic Analysis of Relations Between the Indians and the Hudson's Bay Company Before 1763 (Toronto: University of Toronto Press, 1978).Google Scholar This is not to suggest that relations with the ‘Great Company’ were always peaceful and harmonious. For an interesting example of how the Hudson Bay Company used its monopoly to its advantage at the expense of Indian peoples after its merge with the Northwest company m 1821, see Ray, Arthur J., “Some conservation schemes of the Hudson's Bay Company, 1821–1850' An examination of the problems of resource management in the fur trade” (1975) 1 J. Hist. Geog. 49.CrossRefGoogle Scholar
26 For an interesting exchange of words between commissioner Morris and the Blackfeet (Treaty 7) on this issue see Morris, Alexander, The Treaties of Canada with the Indians of Manitoba and the North-west Territories Including the Negotiations on Which They Were Based (1880Google Scholar; reprinted., Toronto: Coles 1971) at pp. 270–75. At pp. 270: [Button Chief] states “The Great Mother sent … the Police to put an end to the traffic in fire-water. I can sleep now safely. Before the arrival of the Police, when I laid my head down at night, every sound frightened me; my sleep was broken; now I can sleep sound and am not afraid.”
27 Constant Falher to Bishop Breynat as cited in Fumoleau, supra note 18 at 67 [emphasis added]. For additional oral testimony see Lynn Hickey et al, “T.A.R.R. Interview with Elders Program” in Richard T. Price, supra note 15 at 103.
28 Assembly of First Nations, Reclaiming Our Nationhood - Strengthening Our Heritage: Report to the Commission of Aboriginal Peoples (Assembly of First Nations, 1993) at 7–16.
29 Ibid. at 99; compare Jean Friesen, supra note 15.
30 Treaty 8, supra note 8 [emphasis in original].
31 Constitution Act 1930, Schedule 2 at para. 12 [NRTA].
32 R. v. Badger, [1996] 1 S.C.R. 771 at para. 8 [Badger].
33 R.S.C. 1985, c. 1–5, s. 18, 20.
34 LaForest, G.V., Water Law in Canada: The Atlantic Provinces (Ottawa: Information Canada, 1973) at 200.Google Scholar
35 Pasco v. Canadian National Railway, [1986] 1 C.N.L.R. 34 (B.C.C.A.), leave to appeal to S.C.C, refused 18 November 1985.
36 Ibid. at 38.
37 An in-depth discussion concerning the intricacies of communally-held Aboriginal title to reserve lands is beyond the scope of this paper; although the sui generis nature of this title could raise interesting questions (e.g. if a Band member held a ‘certificate of possession’ to the only tract of land along a watercourse on a reserve). Also, in the recent case Chingee. v British Columbia (A.G.), 2002 BCSC 1568, lands granted in severalty for families or individuals were held to be s.91(24) lands under the Constitution Act, 1867 (infra note 60). This could raise some interesting questions in relation to water rights, especially in geographic areas originally affected by the North-west Irrigation Act (see argument for the exclusion of reserve lands as communally-held lands, infra note 50–51 and accompanying text).
38 LaForest, supra note 34 at 201.
39 Ibid. at 224.
40 Ibid.
41 S.C. 1894, C.30.
42 Percy, David R., “Seventy-Five Years of Alberta Water Law: Maturity, Demise & Rebirth” (1996) XXXV Alta. L. Rev. 221 at 222.Google Scholar
43 R.S.C. 1884, c. 54.
44 Percy, supra note 42 at 222.
45 LaForest, supra note 34 at 200.
46 Bartlett, Richard H., Aboriginal Water Rights in Canada: A Study of Aboriginal Title to Water and Indian Water Rights (Calgary: The Canadian Institute of Resources Law, 1988) at 154.Google Scholar
47 For discussion see Sparrow, supra note 6; Delgamuukw, supra note 4.
48 Baker Lake, supra note 7 at 556–69; Calder, supra 7 at 401–404; Badger, supra note 32 at 94.
49 I do not wish to suggest that arable lands in northern Alberta are perfectly equitable in quality or quantity to those located in the south. However, the fact remains that the Crown did undertake to supply reserves with the necessary capital and training to undertake agriculture and stock raising in these areas and desired the surrender of the lands in order to open up the lands for the same purposes by non-Aboriginal settlers. In fact, there was considerable excitement with regards to the potential of treaty 8 lands: Mair (who travelled with the treaty 8 party in 1899) describes the situation at Lesser Slave Lake supra note 24 at 77–78 “[The Indians] have always made a good living by hunting and fishing, and I believe when the time comes they will adapt themselves much more readily and intelligently to farming and stock-raising than did the Indians to the south. The region is well suited to both industries, and will undoubtedly attract white settlers in due time … Much of the forest soil is excellent, and the land has only to be cleared to furnish good farms.” At 90, in speaking about Dunvegan (further north) he states “There were complaints of … drought, which we were told was a characteristic feature of those magnificent prairies to the north … This drawback will doubtless be got over hereafter by dry farming, or better still by irrigation, should the lakes to the north prove to be available … [disadvantages] will disappear with time and settlement by good farmers. It is a region, I believe, predestined for agriculture [emphasis added] …”
50 This section, later s.8 of the Water Resources Act, 1931, states “Except in pursuance of a valid agreement or undertaking … no grant shall be made by the Crown of lands or of any estate therein, in such terms as to vest in the grantee any exclusive right or privilege with respect to any water.”
51 Percy, David R., “Water Rights in Alberta” (1977) XV Alta. L. Rev. 142 at 156.Google Scholar
52 Percy, supra note 42 at 224.
53 Bartlett, supra note 46 at 152–53.
54 NRTA, supra note 31.
55 The federal Crown retained jurisdiction over navigation and shipping as well as fishing as per the Constitution Act, 1867 s. 91(10) and (12). Although beyond the scope of this discussion, it is noteworthy that the transfer of resources to the province created some serious inter-jurisdictional ambiguities with relation to water. For example, under s.ll of the NRTA the province is bound to set aside lands for the fulfilment of treaty land entitlement. However, there is arguably no obligation on the part of the province to also set aside the water rights incidental to those lands which the Crown in the right of the province was granted under the NRTA. For further discussion see Richard Bartlett, supra note 46 at 167–69. For an excellent analysis of the conflict of provincial/Indian interests generally, see Anthony Long, J. & Boldt, Menno, eds., Governments in Conflict? Provinces and Indian Nations in Canada (Toronto: University of Toronto Press, 1988).Google Scholar
56 S.A. 1931 C.71.
57 R.S.A.c.W-3.
58 Bartlett, supra note 46 at 167.
59 Re Stony Plain Indian Reserve No. 135, [1982] 1 C.N.L.R. 133 at 151: “We accept the general proposition that provincial legislation relating to use of reserved lands is inapplicable to lands that are found to be reserved for Indians.”
60 (U.K.), 30 & 31 Viet., C.3, reprinted in R.S.C. 1985, App. II, No.5.
61 R. v. Nikal, [1986] 1 S.C.R. 1013 at para. CI-CII [Nikal].
62 [1996] 3 S.C.R. 139 at para. 77 [Cote].
63 [1986] 2 C.N.L.R. 45 (S.C.C); also see R. v. Dick, [1985] 2 S.C.R. 309.
64 Supra note 33.
65 For further reading in this area see Wilkins, K., “Of Provinces and Section 35 Rights” (1999) 22 Dalhousie L.J. 185Google Scholar; Bankes, Nigel, “Delgamuukw, Division of Powers and Provincial Land and Resource Laws: Some Implications for Provincial Resource Rights” (1998) 32 U.B.C. L. Rev. 317Google Scholar; McNeil, Kent, “Aboriginal Title and the Division of Powers: Rethinking Federal and Provincial Jurisdiction” (1998) 61 Sask. L. Rev. 431Google Scholar; Douglas Sanders, “The Constitution, the Provinces, and Aboriginal Peoples” in Long and Boldt, supra note 55.
66 Marshall, supra note 6 at para. 49; Badger, supra note 32 at para. 41.
67 Badger, ibid.
68 Ibid.Sioui, supra note 7 at para. 96; Simon, supra note 6 at para.24; Sparrow, supra note 6 at 1107–108.
69 Simon, supra note 6 at para. 27; Nowegijick v. The Queen, [1983] 1 S.C.R. 29 at 36.
70 Bartlett, Richard, “Hydroelectric Power and Indian Water Rights on the Prairies” (1989) 14 Prairie Forum 177 at 183.Google Scholar
71 Ibid.
72 [1989]3 C.N.L.R.46.
73 A photostat of the original handwritten treaty appears as ‘Schedule 1’ of the British Columbia Supreme Court Decision, [1987] B.C.J. No. 1892.
74 Ibid.
75 [1997] 4 C.N.L.R. 45.
76 Supra note 6.
77 Winters v. United States, 207 U.S. 564 (1908).
78 Ibid. pp. 569–70.
79 Ibid. pp. 576–77.
80 2002 U.S. Dist. Lexis 3397.
81 In 2002, the Klamath river was given the number three spot on the United States ten most endangered rivers list.
82 723 F. 2d. 1394 (Adairn II).
83 Supra note 2.
84 Although beyond the scope of this paper, it is important to recognize these activities as economic as well. See Elias, Peter Douglas, “Report from the Round Table Rapporteur” in Sharing the Harvest: The Road to Self Reliance, Report of the National Round Table on Aboriginal Economic Development and Resources (Ottawa: Minister of Supply and Services, 1993) 7 at 11.Google Scholar For an excellent harvest study which illustrates the monetary value of the traditional economy with respect to one Aboriginal community see Tobias, Terry N. & Kay, James J., “The Bush Harvest in Pinehouse, Saskatchewan, Canada” (1993) 47 Arctic 207.Google Scholar
85 Generalizations about Indigenous culture in Canada should be avoided as each group has its own unique characteristics and value systems that have developed over time. However, a special relationship to the land is common to many Native cultures in different ways. Even so, the described activities only mean to apply for the purposes of this paper to the Native groups within the treaty 8 area of northern Alberta.
86 The right of the owner of the bed to build upon it is of course subject to 1) public rights of navigation, floating and fishing and to the rights of other landowners on and along a stream or lake and 2) may be subject to legislative regulation or abrogation. See generally, LaForest, supra note 34 at 234–69 See Bartlett, supra note 46 at 129–212 for discussion with relation to the legislative impact on Aboriginal water rights in Canada.
87 Interestingly, many Aboriginal groups used the bed of rivers, lakes and streams in pre-contact times for purposes such as wild rice production and weir fishing. The substantial structures built on the bed of a watercourse, needed for successful weir fishing, could potentially affect the flow of the watercourse itself. In an abstract way, one could argue that in some groups there is evidence of an Aboriginal right to the bed of rivers, lakes and streams For examples of such activities, see D. W. Moodie, “Manomin: Historical- Geographical Perspectives on the Ojibwa Production of Wild Rice” and/or Holzkamn, T. E., “Rainy River Sturgeon. An Ojibway Resource in the Fur Trade” in Abel, Kerry & Friesen, Jean, eds, Aboriginal Resource Use in Canada. Historical and Legal Aspects (Winnipeg: University of Manitoba Press, 1991).Google Scholar
88 R S A 1980 c. P-30, 1984 c 34, 2000 c P-40
89 LaForest, supra note 34 at 234–35 and 243–44.
90 Ibid. at 234
91 Ibid. at 242
92 Ibid. at 235–36
93 Ibid., at 236
94 See text accompanying supra notes 55–65.
95 Nikal, supra note 61
96 SOR/84–248, s. 4(1).
97 R.S.C., 1985, c. F-14.
98 Supra note 33.
99 Nikal, supra note 61 at para. CIII.
100 Ibid. at para. XXVII – XXVIII.
101 Ibid. at para XV.
102 Ibid. at para. LXIV.
103 Ibid.; LaForest, supra note 34 at 236.
104 [1996] 1 S.C.R. 921 [Lewis].
105 SOR/84–248.
106 R.S.C., 1970, C. F-14.
107 Supra, note 33.
108 Lewis, supra note 104 at paras. 33–44.
109 Ibid. at para.35.
110 Ibid. at para. 52.
111 Ibid. at para. 62.
112 Marshall, supra note 6 at para. 49; Badger, supra note 32 at para. 41.
113 Badger, ibid.
114 Sioui supra note 7 at para. 96; Simon, supra note 6 at para. 24; Sparrow, supra note 6 at 1107–8.
115 Simon, ibid., at para. 27; Nowegijick v. The Queen, [1983] 1 S.C.R. 29 at 36.
116 LaForest, supra note 34 at 241; Bartlett, supra note 46 at 92.
117 Ibid.
118 Marshall, supra note 6 at para.83.
119 Delgamuukw, supra note 4 at para. 165. Although the courts have recognized that such a development may proceed, because it may be in the best interest of the general public, it should be remembered that any endeavour, with respect to its infringement on Aboriginal and treaty rights, would have to be justified under the Sparrow test. Also, even though hydroelectric development is within the jurisdiction of the province, it is subject to approval by the Minister of Transport (see LaForest, supra note 34 at 248) and because it may infringe upon the constitutionally protected rights of Aboriginal people, who themselves are under the jurisdiction of the federal Crown as per s. 91(24) of the Constitution Act, 1867, such development raises some very complex division-of-powers questions. A detailed explanation of this issue is far beyond the scope of this paper. For further reading see sources supra note 65.
120 Rosenberg, D.M., Bodaly, R.A. & Usher, Peter J., “Environmental and Social Impacts of Large Scale Hydroelectric Development: who is listening?” (1995) 5 Global Environmental Change 127 at 127.CrossRefGoogle Scholar
121 Ibid. at 132.
122 Ibid. at 133.
123 For discussion see D.M. Rosenburg et al., “The Environmental Assessment of Hydroelectric Impoundments and Diversions in Canada” in Healy, M.C. & Wallace, R.R., eds., ‘Canadian Aquatic Resources,’ (1987) 215 Can. Bulletin Fish. AquaL Sci. 98Google Scholar; Schindler, D.W., “The Cumulative Effects of Climate Warming and Other Human Stresses on Canadian Freshwaters in the New Millennium” (2001) 58 Can. J. Fish. Aqaut. Sci. 18CrossRefGoogle Scholar; generally, Northern River Basins Study Board, supra note 2.
124 Guerin v. The Queen, [1984] 2 S.C.R. 335 at 376 and 383–4; Sparrow, supra note 6 at 1108; Cherokee Nation v. Georgia (1831), 30 U.S. (5 Pet.) 1; Quebec (A.G.) v. Canada (National Energy Board), [1994] 1 S.C.R. 159, [1994] 3 C.N.L.R. 49. See Fairford First Nation v. Canada (A.G.) (T.D.), [1999] 2 F.C. 48 [Fairford] for a recent case that examined the fiduciary responsibilities of the Crown in relation to the impact of hydroelectric development on reserve lands in Manitoba. Here the Fairford First Nation, unsatisfied with the compensation given for flooded reserve lands, sued the federal Crown for breach of fiduciary duty on eight different counts relating to the development of a dam upstream the reserve. Except in regards to one facet of their argument, an unnecessary delay and failure to consult on the part of Canada during compensation negotiations, the action was unsuccessful. However, Fairford involves a direct and specific impact on reserve lands and the compensation for damage to those lands. To that extent it is not applicable to the argument presented here which is concerned with the long-term deleterious effects of hydroelectric and other developments on the treaty-protected, traditional activities in a more general, indirect way.
125 See text accompanying supra note 38.
126 LaForest, supra note 34 at 219 [emphasis added].
127 Ibid.
128 Ibid. at 220.
129 See generally Alberta Intergovernmental and Aboriginal Affairs, “Alberta's Aboriginal Population: Socio-Demographic Characteristics” online: Government of Alberta, Aboriginal Affairs and Northern Development <http://www.aand.gov.ab.ca/PDFs/99SocioDemoAbrglPop.pdf>.
130 Ibid.
131 For discussion see Douglas Sanders, “The Constitution, the Provinces, and Aboriginal Peoples” in Long and Boldt, supra note 55.
132 I choose the word “adapt” because Aboriginal culture is dynamic and not static and therefore is able to accommodate change in positive and proactive ways, rather than being doomed to compromise under the pressures of change in a reactive way (see also supra note 6 and accompanying text). For an excellent analysis of how one Aboriginal group has adapted to change in resource management by becoming involved in cooperative management with the government of Alberta, see generally Natcher, David, Cooperative Resource Management as an Adaptive Strategy for Aboriginal Communities: The Whitefish Lake First Nation Case Study (Ph.D thesis, Anthropology, University of Alberta, 1999) [unpublished].Google Scholar
133 Ibid. at 235.
134 An Act for the settlement of certain questions between the Governments of Canada and Ontario respecting Indian Reserve Land, S.C. 1924, c.48.
135 Bartlett, supra note 46 at 68.
136 Ibid.
137 Ibid. at 69.
138 Delgamuukw, supra note 4 at para. 128.
139 Ibid. at para. 131.
140 Supra note 61.
141 Supra note 104.
142 Delgamuukw, supra note 4 at paras. 185–87.
143 Ibid. at paras. 160–171; R. v. Gladstone, [1996] 2 S.C.R. 723 at paras. 72–73; Sparrow, supra note 6 at para. 71.