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Alan Boraas: Parnell's bid to restrict water rights echoes similar attempt in Canada

Alan Boraas

The similarities between Prime Minister Stephen Harper's attempt to streamline permitting for resource development projects involving rivers in Canada and Gov. Sean Parnell's House Bill 77 are striking. You'd think their respective administrations went to the same seminar on restructuring northern water rights: constrain water initiatives within the executive branch and restrict public involvement and appeals.

In 2011, the Harper administration enacted Bill C-45 overhauling the Navigable Waters Protection Act of 1882. The old NWPA required public approval and consultation particularly by First Nations, Métis and Inuit, before any construction could take place across navigable rivers. The new law largely did away with tribal consultation, reduced public participation and put development decisions, such as Athabasca Tar Sands pipelines, squarely in the hands of the Ministry of Transportation.

A maelstrom of protest ensued, including testimony at hearings, opinion columns and nonviolent civil disobedience to draw attention to the threat to clean northern water. Canada's aboriginal people called their protest Idle No More.

In 2013, the Parnell administration forged similar legislation in HB 77 that would limit public and tribal participation in water use decisions and put them largely in the hands of the Division of Natural Resources. Some of the most controversial aspects of HB 77, such as restricting public, tribal and NGO rights regarding in-stream water reservations, were buried within the convoluted bill. It sailed through the House and now a modified version is in the Senate.

The Parnell administration says the reason for the bill is to streamline permitting, but much of that streamlining is in the form of limiting existing rights. For example, current law allows a corporate mine, or other entity such as a municipality, to apply for water rights to take water out of a stream. On the other hand, tribes, public interest NGO's, Fish and Game and other entities can apply for "in-stream water reservations" to keep water in a stream. Corporate mining, for example, takes water out of a stream to process ore. Subsistence, commercial and sport fishermen want to keep water in a stream for salmon and other fish.

At a December Southwest Alaska Salmon Habitat Partnership scientific conference, Fish and Game Commissioner Cora Campbell and Deputy DNR Commissioner Ed Fogels presented the governor's case for HB 77. Among other things, Fogels identified what the Parnell administration believes to be capricious attempts by Outside environmentalist NGOs to apply for in-stream water reservations as a tactic to prevent mining as an argument against in-stream water reservations.

In fact, between 2000 and 2010, 25 in-stream flow reservation applications were made to the Alaska Department of Natural Resources in Southwest Alaska near proposed large mines: 11 by the Curyung Tribe, 10 by Trout Unlimited, three by the Southwest Alaska Salmon Habitat Partnership and one by The Nature Conservancy, all in the name of protecting salmon. However, the Curyung Tribe, Trout Unlimited, with many Alaska members, and the Southwest Alaska Salmon Habitat Partnership are not naïve Outside environmentalists. They are Alaskans with a legitimate interest in the future of salmon and the water that supports them.

Contrary to court decisions, the Parnell administration has simply refused to act on these and other permit requests. HB 77 would eliminate non-governmental entities from applying for in-stream water reservations to protect salmon and put the process solely within DNR with no appeal. Mining interests and other entities could still apply to take water out of a stream.

Streamlined, yes, but in whose interest?

Alaska protests over this and other aspects of HB 77 have been overwhelmingly against limiting the public's right to participate in and appeal decisions regarding rivers and streams.

This fall, Campbell, Fogels and state Sen. Peter Micciche (R-Soldotna) held hearings in Soldotna and Homer. Later, the commissioners held hearings in Anchorage. Hundreds of Alaskans testified against HB 77. Almost no one was for it. The same picture emerged with recent hearings on a modified bill.

In news articles, Micciche has argued for compromise, stating that "you never get everything you ask for." Micciche should be reminded that the public did not ask for HB 77, it came unilaterally from the governor. Moreover, the public is not testifying, "We can work with this; a few tweaks here and there and we've got something good." Alaskans are not only saying no, but hell no. For the sake of salmon and clean water, there is no reason to change the existing law and there never was a good reason for HB 77 in the first place.

With HB 77, Idle No More is emerging in Alaska.

Alan Boraas is a professor of anthropology at Kenai Peninsula College.


Alan Boraas
commentBy ALAN BORAAS