The Impact of Climate Change on American and Canadian Indigenous Peoples and Their Water Resources: A Climate Justice Perspective

• Author: Itzchak Kornfeld
• Pages: 265-296

265

The Impact of Climate

Change on American and

Canadian Indigenous Peoples

and Their Water Resources: A

Climate Justice Perspective

Itzc hak Kornfeld

Introduction .................................................................................................265

I. Climate Change Impacts on Indigenous Communities in the United

States and Canada ...............................................................................267

A. e Pine Ridge Indian Reservation .................................................269

B. Alaska Natives ................................................................................273

C. e Piikani First Nation Peoples of Alberta .....................................276

II. Applicable International Law ..............................................................277

A. e United Nations Charter ........................................................... 278

B. e Universal Declaration of Human Rights ..................................278

C. e 1966 International Covenant on Economic, Social, and

Cultural Rights ............................................................................... 279

D. e International Convention on the Elimination of All Forms

of Racial Discrimination ................................................................. 281

E. e Convention on the Elimination of All Forms of

Discrimination Against Women......................................................283

F. e American Convention on Human Rights and the American

Declaration of the Rights and Duties of Man ................................284

III. e Status of American and Canadian Indigenous Peoples’ Right to

Water ................................................................................................... 289

IV. Climate Justice Recommendations for Reform ..................................... 294

Conclusion ................................................................................................... 295

Introduction

Across the world, indigenous communities face threats to their access to

water as a consequence of climate change. Indeed, water ma nagement is one

Chapter 10

266 Climate Justice

of the most fundamental climate change-related issues i n North A merica

and internationally. It involves issues of equity, and is related to signicant

political, social, and ecological struggles t hat indigenous peoples face. ese

characteristics are dened as both cause and symptom of the precarious life

on reservations, other tribal territories, and urban areas a nd 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 a nd the impacts of

climate change on that access. Courts have also been unreceptive to these

issues. ese inequities have caused conict between indigenous peoples and

governmental authorities.

Two responses to these conicts 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 eorts require the participation of the

very public whose human rights have been abused. However, those people

that are most aected by the scarcity of water in the areas in which they live

are also those least likely to participate in policy a nd governance organiza-

tions. eir ability to participate is limited by the time demands of fetching

water, and making a living, a nd because they do not trust “the system.”

is chapter addresses the indigenous peoples of Canada and t he United

States. It reviews international and national laws, relevant case law, and com-

mission reports. e international laws addressed are the 1966 International

Covenant on Economic, Social, and Cultura l Rights (ICESCR), the Con-

vention on the Elimination of All Forms of Discrimination Ag ainst Women

(CEDAW), the United NationsConvention on the Rights of the Child

(CRC), the ILO Convention Concerning Indigenous and Tribal Peoples in

Independent Countries (ILO No. 169), the International Convention on the

Elimination of All Forms of Racial Discrimination (CAFRD), and the Inter-

American Declaration of Human Rights (IADHR).

e United States is not a Party to t he ICESCR, the CEDAW, t he CRC,

or ILO No. 169. Canada, however, is a Pa rty to all of these conventions.

Canada and the United States are both Parties to the CAFRD and the Inter-

American Convention on Human Rights (I ACHR), 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 signicant hurdle is causation, i.e., the diculty 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

Impact on American and Canadian Indigenous Peoples 267

with their indigenous peoples—the A merican Indians/Alaska Natives in t he

United States and the First Nations in Canada—and there a re 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’ contin-

ued 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 Ca lifornians because these indigenous communi-

ties do not have the modern conveniences or resources that most other state

residents enjoy.

Part I of this chapter introduces how climate change is impacting select

U.S. and Canadian indigenous communities’ natural resources and cultures.

Part II addresse s international law instruments that are potentially appli-

cable to these indigenous peoples’ eorts to adapt to climate change impacts.

Part III examines the right to water for American and Canadian indigenous

peoples. Part IV concludes the chapter by oering recommendations to help

secure justice for these peoples.

I. Climate Change Impacts on Indigenous

Communities in the United States and Canada

ere are approximately 570 federally recognized American Indian tribes

and Alaska Native (A I/A N) villages in t he United States.1 ey vary sig-

nicantly in terms of their culture, economic status, land ba se, language,

location, and population size. Despite these distinguishing features, many of

these tribal communities share several characteristics. Specica lly, the major-

ity are situated in isolated and often environmentally challenging areas,2 such

as deser ts, extra-rural area s, or regions far from any major population cen-

ters. e U.S. C ensus Bureau has identied some 25% of AI/AN that live

below the national poverty line, contrasted with about 9% for non-Hispanic

whites.3 Indeed, t he U.S. Environmental Protection Agency (EPA) has also

noted that throughout Indian country and in Alaska Native villages a dispro-

portionate percentage of tribal homes lack access to safe drinking water and

safe wastewater disposal. According to 2007 data from the Indian Health

1. U.S. E P A  ., I T F A S,

M  A G: S  I A  S D W 

W T  A I  A N H 6 (2008), https://www.

epa.gov/sites/production/les/2015-07/documents/meeting-the-access-goal-strategies-for-increasing-

access-to-safe-drinking-water-and-wastewater-treatment-american-indian-alaska-native-villages.pdf.

2. Id.

3. Id.