Across the world, indigenous communities face threats to their access to water because of climate change. Indeed, water management is one of the most fundamental climate change-related issues in North America and internationally. It involves issues of equity, and is related to significant political, social, and ecological struggles that indigenous peoples face. These characteristics are defined as both cause and symptom of the precarious life on reservations, other tribal territories, and urban areas and their relation to climate change.
To date, national, state/provincial, and local governments have done little, if anything, to address the problems of access to water and the impacts of climate change on that access. Courts have also been unreceptive to these issues. These inequities have caused conflict between indigenous peoples and governmental authorities.
Two responses to these conflicts and inequities include (1) mediation, and (2) a program for the long-term sustainable development of water resources in the face of climate change. Such efforts require the participation of the very public whose human rights have been abused. However, those people that are most affected by the scarcity of water in the areas in which they live are also those least likely to participate in policy and governance organizations. Their ability to participate is limited by the time demands of fetching water, and making a living, and because they do not trust “the system.”
Here I address the indigenous peoples of Canada and the United States. I also review international and national laws, relevant case law, and commission reports. The international laws addressed are the 1966 International Covenant on Economic, Social, and Cultural Rights (ICESCR), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the United Nations Convention on the Rights of the Child (CRC), the Convention Concerning Indigenous and Tribal Peoples in Independent Countries (CIDP), the International Convention on the Elimination of All Forms of Racial Discrimination (CAFRD), and the Inter-American Declaration of Human Rights (IADHR).
The United States is not a Party to the ICESCR, the CEDAW, the CRC, and the CIDP. Canada, however, is a Party to all of these conventions. Canada and the United States are both Parties to the CAFRD and the Inter-American Convention on Human Rights (IACHR), except that the United States does not recognize the jurisdiction of the Inter-American Court. Indigenous peoples face several challenges in seeking protection under these international law instruments to address climate change impacts on their lands and cultures. One significant hurdle is causation, i.e., the difficulty a litigant faces in proving that climate change impacted his or her access to water. On the national level, Canada and the United States each has treaties with their indigenous peoples—the American Indians/Alaska Natives in the United States and the First Nations in Canada—and there are applicable municipal laws and court rulings.
Numerous indigenous communities lack access to fresh and potable water and sanitation, and climate change will impact these peoples’ continued access to this resource. For example, the recent drought in California impacted the Bishop Paiute, California Valley Miwok, and the Fort Mojave Indians more than other Californians because these indigenous communities do not have the modern conveniences or resources that most other state residents enjoy.