Rebel rivers : an investigation into the river rights of indigenous people of Canada and New Zealand

Abstract

In Canada and New Zealand there are increasing calls for recognition of aboriginal rights which previously were ignored or denied because of the application of English law to concepts of property rights and ownership. English legal principles are vitally important in Canadian and New Zealand society, but there has always been room for local adaptations which could have recognised the existing practices and rights of the indigenous peoples.

The English law makes various assumptions about ownership of rivers, dividing them into bed, banks and water, and applying various tests of adjoining occupation, tidalness and navigability to determine rights. Aboriginal property rights have been guaranteed and protected by various mechanisms such as government policy, treaty, and the courts, but there is uncertainty about the status of rivers. The form of the survey definition of reserves and rivers is also fundamental to how property rights may be determined. This thesis examines the situation of rivers in Canada and New Zealand through common law, treaty provisions and through what is now, a developing body of applicable and recognised customary/Aboriginal law. From these three legal foundations, a case study approach focuses on the practical situation of the Siksika people on the Bow River in southern Alberta, and the Kai Tahu on the Taieri River in Otago.

This investigation concludes that there are various legal mechanisms by which indigenous people may claim rights to the rivers with which they have a relationship; by resorting to English common law principles; by applying new and developing conceptualisations of customary and aboriginal rights doctrines; by appealing to tribunals examining treaty agreements; or by direct negotiation with the Crown. All of these processes require evidence of past and current relationships, use and occupation of rivers by the indigenous claimants. Current undisputed possession and control may be a satisfactory outcome, but ultimately an acknowledgement of ownership may depend on politically negotiated settlements.