| Canada has not ensured that Aboriginal water rights (or any other Aboriginal or treaty rights) are protected from the broad reach of the NAFTA provisions. It is very likely that neither the federal nor provincial governments could fulfill its fiduciary and other obligations to Aboriginal peoples if those obligations conflicted with the rights and obligations under the NAFTA. A compelling illustration arises where Canada wished to limit the export of bottled water in order to protect a water source subject to Aboriginal or treaty water-rights claims. This circumstance has not yet come before the courts, but any protective action of this sort, particularly if foreign-owned water-export contracts were preferentially targeted, would likely violate NAFTA provisions. Because this kind of conflict is potentially imminent, and Canada's complete neglect in the protection of Aboriginal water rights, these rights are at risk.;Further, no current legislation or policy in Canada could prohibit Aboriginal peoples from engaging in expansive use of their water rights. This issue has not been adjudicated, but current decisions strongly suggest that use of water by an indigenous community to engage in economic development of any sort, (including hydroelectric development or bulk-water export) would be within the scope of protected Aboriginal or treaty rights, and is clearly within the scope of activities under Aboriginal title. If indigenous communities choose to exercise these rights, given the "national treatment" provisions of the NAFTA and the current level of utilisation of water resources in Canada by non-Aboriginal interests, Canada will have no basis upon which to deny non-Canadian investors these same rights.;In response to this situation, a number of remedial actions are proposed. (Abstract shortened by UMI.). |
