Collaborative Consent: What Next Generation, Indigenous-Inclusive Water Management Looks Like in B.C.

B.C. hasn’t been particularly good at including Indigenous populations in the decision-making process. First Nations are often brought to the table after high-level political decisions have already been made — leading to significant social and legal conflict over consultation, consent and the management of natural resources.

Legal challenges of Site C, the cumulative impacts of B.C.’s sprawling oil and gas operations and the Kinder Morgan Trans Mountain pipeline are all current examples of what these conflicts look like.

But it doesn’t have to be so, say a team of researchers from by the University of Victoria’s POLIS Water Sustainability Project and the Centre for Indigenous Environmental Resources in a new report, which proposes B.C. manage water resources via a co-governance model based on a principle of collaborative consent.

“Imagine Indigenous people being involved at the highest level of policy-making and reaching an agreement that is good for everyone,” said Merrell-Ann Phare, founding executive director of the Centre for Indigenous Environmental Resources and lead author of the report.

Water is a good issue for the collaborative consent approach as it concerns everyone in a community, Phare said.

Disputes between government and Indigenous communities are often clouded by a perceived need for legal clarity on rights, but there are many areas where, even without legal clarity, different levels of government are able to work out solutions, she added.

“We need to pull up the chairs to those tables for Indigenous governments and we need the federal and provincial governments to recognize that,” she said.

“Indigenous governments have a right to be there.”

Collaborative consent would not mean an end to legal challenges, but it would help find solutions to some of the battles that continue for generations, said Phare, adding that B.C. would not be breaking new ground as territorial and Indigenous governments in the Northwest Territories already use a collaborative consent approach.

Cowichan Watershed Revitalization a Collaborative Consent Success Story

A little more than a decade ago, the Cowichan watershed was a mess.

Clearcuts on surrounding slopes intensified run-off during winter storms. A 2003 drought resulted in critically low water levels that made it impossible for Chinook salmon to reach spawning grounds. Future droughts were on the horizon and water quality was threatened by sewage, fertilizer and a rapidly expanding population.

Catalyst Paper — the largest employer in the area — was on the verge of shutting down because of a water shortage.

“The management situation of the day was not working and the risks to the river and its communities were great,” says a 2014 case study of the evolution of the Cowichan Watershed Board by the University of Victoria’s POLIS Water Sustainability Project.

Management of the watershed was spread among a patchwork of federal, provincial, Indigenous and local governments, while waterfront home owners and local businesses wanted input on how to deal with ongoing droughts and the shrinking salmon runs.

There was general acknowledgement that action was needed to save Cowichan Lake and the iconic Cowichan River, but with the jigsaw of federal and provincial acts and the need for Cowichan Tribes to protect their interests, little was accomplished.

A 2007 plan set out a proactive approach to water management, but, two years later, implementation was minimal, largely because of lack of leadership and scattered responsibilities.

It was clear that a different type of management was needed, with local leadership, so, the Cowichan Watershed Board was formed with the chair of the Cowichan Valley Regional District and chief of Cowichan Tribes as joint chairs, while other agencies were encouraged follow board decisions.

That style of management typifies collaborative consent, which should be the model used in B.C. to defuse conflict around water and land use, the new report recommends.

Resolution for System of Delays, Court Cases with Water Co-Governance

Conflicts could be avoided if Indigenous governments were given an equal seat at the table at the start of a process, instead of being brought in after decisions are made, says the report.

Delays, court cases and disagreements are common as Indigenous communities battle to protect traditional territories, while other levels of government and, in some cases, major corporations, write legislation or set the rules, only to have them challenged by First Nations, who frequently claim inadequate consultation.

Collaborative consent, with all parties committed to working together as equals, takes the heat out of issues as everyone works towards decisions they can live with, says the report, which suggests that the method should be used to come up with regulations for B.C.’s new Water Sustainability Act.

Rosie Simms, co-author of the report and POLIS water law and policy researcher, said collaborative consent offers a way for B.C. to govern according to the United Nations Declaration on the Rights of Indigenous people, as promised by Premier John Horgan.

Water is a compelling issue because jurisdictional overlaps and gaps pave the way for creative forms of co-governance, Simms said.

Indigenous History, Lessons Benefit Local Government

Back in the Cowichan Valley, the collaboration has helped people understand the extent of Cowichan Tribes’ history in the area and traditional knowledge is now used to help inform decisions, said Chief William Seymour.

“We all have the same concerns about our watershed. The logging that went on and what happened to our streams, what happened to our water levels and the water temperature, all the issues of contamination with sewage and fertilizer going into the river — everyone in the valley has those concerns,” Seymour said.

With everyone working towards the same goals, protection of the watershed is improving, he said.

Jon Lefebure, Cowichan Valley Regional District chair, said an excellent relationship has developed between Cowichan Tribes and the district because of the equal partnership on the Watershed Board.

“It has flowed into many other things we do around land use and the opioid crisis — which has an impact on all parts of our community,” he said.

The relationship has also brought local government a new awareness of First Nations culture and the advantages offered by their history and perceptions, Lefebure said.

For example, there is an emphasis on taking only what you need and leaving the rest for future generations, as opposed to the culture of taking all you can and damn the consequences, he said.

Priorities for the watershed are based on looking at the whole system, rather than individual pieces and are guided by a traditional Cowichan Tribes lesson that “everything on this earth is what sustains us, everything on this earth is connected together,” says the POLIS case study.