The Impact of Climate Change on American and Canadian Indigenous Peoples and Their Water Resources

Date01 March 2017
3-2017 NEWS & ANALYSIS 47 ELR 10245
The Impact of
Climate Change
on American and
Peoples and Their
Water Resources
Itzchak Kornfeld
Dr. Itzchak Kornfeld is the Giordano Research Fellow at the
Faculty of Law of the Hebrew University of Jerusalem in Israel.
Access to water is a fundamental climate change
issue in North America and internationally. It is
related to signicant political, social, and ecological
struggles that indigenous peoples face, and govern-
ments and courts so far have done little to address
these inequities. is Article, adapted from Chapter
10 of C J: C S  G
 R G (ELI Press 2016), dis-
cusses case law and international law instruments that
indigenous peoples may employ to vindicate their
rights, specically the right to water, in light of global
warming and the loss of their lands and way of life.
It highlights indigenous peoples in Canada and the
United States who live on extra-rural reservations and
in remote and climate-vulnerable locations, and pro-
vides recommendations for mitigation and adaptation
measures for these communities.
Across the world, indigenous communities face
threats to their access to water as a consequence of
climate cha nge. Indeed, water management is one
of the most fundamental climate change-related issues in
North America and internationally. It involves issues of
equity, a nd is related to signicant political, social, and
ecological struggles that indigenous peoples face. ese
characteristics are dened as both cause a nd symptom of
the precarious life on reservations, other tribal territories,
and urban areas and their relation to climate change.
To date, national, state/provincia l, and local govern-
ments have done little, if anything, to address the prob-
lems of access to water and t he impacts of climate change
on that access. C ourts have also been unreceptive to these
issues. ese inequities have caused conict between indig-
enous peoples and governmental authorities.
Two responses to these conicts and inequities include
(1) mediation, and (2) a program for the long-term sustain-
able 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 and governance orga nizations. eir
ability to participate is limited by the time demands of
fetching water, and making a living, and because they do
not trust “the system.”
is Article addresses the indigenous peoples of Canada
and the United States. It reviews international and national
laws, relevant case law, and commission reports. e
international laws addressed are the 1966 International
Covenant on Economic, Social, and Cultural Rights (ICE-
SCR), 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
ILO Convention Concerning Indigenous and Tribal Peo-
ples in Independent Countries (ILO No. 169), the Inter-
national Convention on the Elimination of All Forms of
Racial Discrimination (CAFRD), and the Inter-American
Declaration of Human Rights (IA DHR).
e United States is not a Party to the ICESCR, t he
CEDAW, the CRC , or ILO No. 169. Canada, however, is
a Party to all of these conventions. Canada and the United
States are both Parties to the CAFRD and the Inter-Amer-
ican 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 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,
Copyright © 2017 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®,, 1-800-433-5120.

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