When asked what this process might look like under the Liberal Party, MP Robert-Falcon Ouellette of Winnipeg Centre spoke about his government’s approach to redefining the treaty relationship.
“We’re right now entering a transition phase in the federal government where we’re starting to look at the treaties and what they mean, and what nation to nation means,” he told Ricochet.
Shoal Lake 40 First Nation, bisected by the Manitoba-Ontario border on the banks of Shoal Lake, has endured imposed isolation since their ancestral lands were expropriated to make way for the construction of Winnipeg’s aqueduct and water supply infrastructure in the early 1900s.
Recently, Prime Minister Justin Trudeau took the unprecedented step of visiting the tiny community, in a trip arranged by members of Shoal Lake 40 and Vice Canada. Trudeau spent seven hours on the island, visiting classrooms, speaking with community members, and delivering water to residents.
One pipe, two flow rates
There is a blatant disparity between the communities at either end of the roughly 150-kilometre water service pipe.
The City of Winnipeg has been the beneficiary of a steady supply of clean water, with a reported multi-million dollar annual revenue surplus from its water and sewer utilities department, an amount pegged at about $45 million in 2012.
Meanwhile, Shoal Lake 40 has been under a boil water advisory and forced to import bottled water at a cost of approximately $100,000 a year for nearly 20 years — the result of murky water being diverted away from the city’s intake. A Globe and Mail profile described the injustice, “Using gravel carved out from Shoal Lake’s ancestral land, crews built a dam to ensure Winnipeg’s water remained untainted. On one side, contaminated water flows to the residents of Shoal Lake 40 reserve. On the other side, clean water flows to Winnipeg.”
The community also remains cut off from access to basic amenities, confined to a human-constructed island severed from the mainland because of a canal that was dredged by the City of Winnipeg as part of the project.
The primary route in and out of Shoal Lake 40 is run by a small ferry that connects to the neighbouring community of Iskatewizaagegan at a cost of $10 per trip. Alternatively, during winter freezing, a road can be used. In 2013, a temporary bridge over the canal was finally built, connecting the seasonal road to the Trans-Canada highway less than 30 kilometres away.
However, secure and permanent all-weather access is not yet a reality, while the community continues to await construction of what has been dubbed “Freedom Road.”
While the community awaits a road promised by the federal government, it remains impossible to transport refuse or sewage off of the island, leaving no option for proper treatment or disposal of either and resulting in designated areas of the reserve inundated with garbage and surface-dumped sewage.
Compounding these unsustainable living conditions, community members risk life and limb during the weeks of spring and fall when neither the ferry service nor the winter road are operational. They have to walk across the lake on dangerously thin ice to access a store for basic needs, and they return with whatever supplies they can drag or carry.
“We had to come [to Winnipeg] and tell [the government],” said Daryl Redsky, a Shoal Lake 40 resident and organizer for The Price of Water, a community event.
“Our people are literally dying in that lake.”
He was talking about the numerous people from his community who have lost their lives while making the dangerous crossing.
It wasn’t supposed to unfold this way.
Violations in three: Treaty rights, water rights, human rights
Because Shoal Lake is a signatory First Nation of Treaty 3, which covers parts of Manitoba and Ontario, there is uncertainty as to the legality surrounding the original expropriation of their reserve lands.
“Treaty 3 is very interesting and involved specific and intense negotiation where the treaty commissioners returned three times,” explained Peter Kulchyski, author of Aboriginal Rights Are Not Human Rights: In Defence of Indigenous Struggles, in an email.
The history of the 1873 agreement is complicated by the fact that Canada’s published version differs from other official record. The Paypom Treaty — a set of notes documenting the contents for Anishinaabe Chief Powassan — provides archival evidence of the duplicitous way in which the treaty was communicated compared to how it was legally formalized by the government.
Regardless, the language in both versions contains key elements that put Winnipeg’s actions into question.
“Arguably the treaty did not surrender water rights and made strong commitments that the lifeways of the signatory First Nations would be protected,” said Kulchyski . “I would say it was these two features that were violated by Winnipeg’s use of the water.”
A legacy of inside deals
How was the Greater Winnipeg Water District, a municipal body, even able to expropriate treaty lands?
Cuyler Cotton, policy analyst and media relations representative for Shoal Lake 40, described a murky legal context at the end of the 19th century.
“There were two pieces of legislation. One was a Manitoba law that gave powers of expropriation for the GWWD,” he told Ricochet, adding that First Nation lands aren’t under provincial jurisdiction anyway. “So, the federal government [also] granted the city powers of expropriation to take whatever they wanted, including reserve land.”
The federal minister of the interior at that time, Robert Rogers, was from Winnipeg and heavily involved in the situation, said Cotton.
“All of the land transfer that was going on,” he said, “was happening between Thomas Russell Deacon, who was mayor of Winnipeg at the time, and Robert Rogers.”
Cotton further suggested that their push to expedite the process was two-fold. It was not only about securing a long-term supply of clean water for the city, but also about getting a rail line built from Winnipeg to Shoal Lake to service mining interests.
Boundary waters
Beyond the land acquisition, a further requirement for the city’s use of the water had to be met. Shoal Lake water is subject to the jurisdiction of the International Joint Commission, the body governing waters along the Canada-U.S. border, because it is an extension of Lake of the Woods, which is situated on either side of the international border.
The IJC is guided by the Boundary Waters Treaty, signed by the two countries in 1909.
As a condition of the GWWD’s application for the diversion of Shoal Lake water, the IJC’s original Order of Approval states, in part, that permission “shall in no way interfere with or prejudice the rights” of anyone to damages or compensation.
After witnessing the situation first-hand on the agreement’s centennial in 2014, IJC commissioners informed the Canadian and U.S. federal governments that the City of Winnipeg may be in violation of the1914 agreement.
Human rights
Meanwhile, basic human rights violations at Shoal Lake 40 have also been deplored by several major organizations, including the David Suzuki Foundation and Amnesty International, which urged the federal government to address the issue in 2011.
“It is apparent that the isolation of this community, which is the result of government policies and actions, is undermining its very ability to exist,” wrote Amnesty International in a letter to John Duncan, who at the time was the minister for Aboriginal Affairs and Northern Development Canada. “The situation of the Shoal Lake First Nation amounts to the denial of fundamental human rights, including the rights to livelihood, health and culture.”
More recently, under the guidance of Chief Erwin Redsky, Shoal Lake 40 appealed to the United Nations for help. The new Canadian government’s recent statement that it will fully adopt the United Nations Declaration on the Rights of Indigenous Peoples is particularly noteworthy in regards to this case.
Searching for reconciliation
Nobody said the journey towards reconciliation would be easy. It is, however, something Canadian society needs to grapple with to a degree that reflects the depth of historical injustices experienced by Indigenous people across the country.
While the Liberal government has committed to building Shoal Lake 40 a permanent road, full reconciliation involves getting at the root cause of such a situation.
The continued failure of the 1989 Tripartite Agreement on “environmental management” between Winnipeg, Shoal Lake 40 and the Province of Manitoba essentially mirrors the broken treaties of the past. The 60-year agreement gives the city final say over restricting commercial, industrial or economic endeavours undertaken by Shoal Lake 40, as a means of maintaining the quality of Winnipeg’s water. In return, alternative economic development opportunities for Shoal Lake 40 were to be initiated but to date none have ever come to fruition.
Where the path forward goes from here depends on a number of factors. As Ouellette puts it, “How we actually structure our relationship after this, I think, is going to be perhaps the most important question.”
Indeed. Yet until there is a broader awareness of how we arrived here, reconciliation will remain elusive.
