Aboriginal title, reserve rights to groundwater and (possibly) a right to an instream flow

Case considered: Helalt First Nation v British Columbia, 2011 BCSC 945

In this case the Helalt First Nation (HFN) sought judicial review of an environmental assessment certificate issued under the terms of BC’s Environmental Assessment Act, SBC 2002, c 43 with respect to a project known as the Chemainus Wells Project on the grounds that the Crown had failed to discharge its constitutional obligations to consult and accommodate the HFN. The First Nation succeeded in its application. Justice Wedge held that the Crown failed to engage in adequate consultation and failed in its duty to accommodate. As a remedy, Justice Wedge ordered (in addition to granting relevant declarations) that the implementation of any actions or decisions pursuant to the certificate should be stayed pending adequate consultation and reasonable accommodation.

This post focuses on the Court’s treatment of aboriginal title and reserve rights in relation to groundwater.

The project

The town of Chemainus on the east coast of Vancouver Island was looking to obtain a secure and safe supply of water for municipal purposes at the lowest possible cost. In the past it had relied on an onstream reservoir for its water but land use activities (logging) in the watershed caused turbidity problems (para 19) resulting in the issuance of boil water advisories (at para 106). In response, the town proposed the Chemainus project which consisted of drilling and producing a number of wells from the Chemainus aquifer which underlies one of HFN’s reserves (IR # 2) and is hydraulically connected to the Chemainus River. The river provides important habitat for a number of species:

[98] The Chemainus River is unique for the wide variety of fish that it supports. They include chum, chinook and coho salmon, steelhead, rainbow and cutthroat trout and Dolly Varden char. Occasionally, pink and sockeye salmon are observed in the River. The Chemainus has both a summer and fall run of chinook, and three runs of steelhead (summer, early winter and late winter). The migration time of all the fish species is somewhat dependent on the River flows, as migrations may be delayed if River levels are not sufficient to allow passage and promote spawning conditions.

Both the HFN and the Department of Fisheries and Oceans (and others) expressed the concern that the project would further reduce flows in the river and especially during low flow periods in the summer, thereby impairing fish habitat. While the town modified the project in response to these concerns the concerns continued with some contending that aquifer withdrawals would also affect river flows during the winter months.

Details of the project and its potential environmental impacts can be found in the Comprehensive Study Report (the project was subject to both a provincial and a federal environmental assessment due to federal financial support) here.

The legal issues with respect to groundwater

The case is principally a duty to consult and accommodate case. The existing case law establishes that the content of the duty to consult and accommodate turn on an appreciation of two variables: (1) the strength of the claim, and (2) the seriousness of the potential adverse impact of the proposed action or decision on the claimed right or title.

It follows from this that a trial judge must assess, at least in a preliminary way (at para 493), the strength of the claimed aboriginal right or title in the absence of any claim based upon a treaty or a modern land claim agreement. The HFN claim was based upon aboriginal rights, aboriginal title and perhaps most importantly in this case, its interest in IR # 2 (a reserve set aside by executive act rather than pursuant to a treaty). HFN further claimed that such rights extended to groundwater. The Province took the view that HFN’s title claim to groundwater was weakened if not extinguished (at para 510) by the terms of subsection 3(2) of the Water Protection Act, RSBC 1996, c.484:

(2) The property in and the right to the use, percolation and any flow of
ground water, wherever ground water is found in British Columbia, are for all purposes vested in the government and are conclusively deemed to have always been vested in the government.

This section was first added to the statute book in 1995 (SBC 1995, c.34) but as noted by Justice Wedge the section is framed in declaratory and retrospective terms.

The nature of title to Indian reserves in British Columbia has always been messy – even messier than in other parts of Canada due to the ambiguous wording of Article 13 of the Terms of Union (1871) between Canada and British Columbia and the Province’s refusal (until 1938) to execute an Order in Council transferring the administration and control of reserve lands to Canada. This leads to questions such as when the reserve was set aside and in this particular case whether that setting aside included groundwater rights.

Justice Wedge did her best to grapple with these issues in over 14 pages of text in her effort to reach a preliminary assessment of the strength of HFN’s claim. The chain of reasoning is not entirely satisfactory (see, for example, para 559) but in the end Justice Wedge reached the following conclusion:

[561] I conclude … that Halalt has an arguable case that that the groundwater in the Aquifer was conveyed to the federal Crown in order to fulfill the objects for which the reserve lands were set aside. If that is the case, then the Province cannot purport by legislative act to expropriate the groundwater.

In reaching this conclusion Justice Wedge relied on three principal authorities: Burrard Power v. R, [1911] AC 87 (PC) Delgamuukw v R, [1997] 3 SCR 1010 and Professor Bartlett’s seminal text on aboriginal water rights in Canada. Justice Wedge used Burrard Power to support the argument that a setting aside of lands for a reserve must include such water rights as would allow the object and purpose of the reserve to be met (at para 546). I think that Burrard Power also supports the conclusion that any provincial vesting legislation (such as subsection 3(2) of the Water Protection Act) is inapplicable to lands for which administration and control is vested in the federal Crown. It is not clear to me that Justice Wedge takes this precise point (she does not directly discuss the applicability of provincial laws issue) although it does seem to be implicit in the concluding paragraph (561) quoted above.

Delgamuukw offers three ideas which support Justice Wedge’s conclusion. First, it supports an expansive reading of the content of a reserve title. Second, it suggests (following Guerin v R [1984] 2 SCR 335 on this point) that the same legal principles govern the nature of the title to an Indian reserve and the content of an aboriginal title. And third, the provincial interest in Crown lands has been subject (at least since BC entered confederation) to “interests other than that of the Province in the same” within the meaning of section109 of the Constitution Act, 1867 (incorporated in the BC Terms of Union by paragraph 10). Such interests include an extinguished aboriginal title.

Finally, Justice Wedge relies on Bartlett partly to help frame her argument but also to support the conclusions that she derives from Burrard Power.

Implications of this decision

Groundwater abstraction is not well regulated in British Columbia. The Province has yet to extend the licensing system of the Water Act, RSBC 1996, c.483 (s.1.1) to groundwater sources. This project was therefore subject to regulation principally through the terms of the environmental assessment legislation because of the scale of the proposed pumping. The decision draws attention to the uncertainties associated with the groundwater resource, the interaction between groundwater and surface water abstractions, and the importance of managing the two together.

The decision will primarily be read as yet another important decision from British Columbia as to the content of the duty to consult and accommodate but it will also be read by those interested in the scope and content of aboriginal water rights – both surface and groundwater. Of course the decision cannot be read as an authoritative text on these issues (since the assessment of the strength of the applicant’s case in a consultation and accommodation case is just a preliminary assessment) but several points deserve mention.

First, the case adds weight to the proposition that courts should take a functional approach to the content of a reserve title and thus read the title as including access to adequate water to make the reserve useful for the purposes for which it was set aside. Although Justice Wedge does not mention the seminal decision of the United States Supreme Court in Winters v US, 207 U.S. 564 there are obvious parallels between Justice Wedge’s decision in this case and ideas of practically irrigable acreage which emerged in the subsequent case law spawned by Winters. In this case the claim to water rights might be extended to protecting an instream flow in the waters of the Chemainus River on reserve to maintain a healthy fishery (and perhaps even a salmonid enhancement project located within the reserve – at para 99).

Second, the conclusions in the case add credence to what seems to be an important and growing difference of opinion between Courts in British Columbia and the Courts in Alberta in consultation and accommodation cases. Whereas the Courts in British Columbia (in this case and other recent cases such as West Moberly First Nations v British Columbia (Inspector of Mines) 2011 BCCA 247 blogged here) are more inclined to a searching analysis of the twin factors (strength of claim and seriousness of impact) and seem more likely to reach the conclusion that the First Nation has a strong case demanding deep consultation and accommodation, Alberta Courts seem much more reluctant to reach that conclusion. The Alberta Court of Appeal’s decision in Tsuu T’ina Nation v. Alberta (Environment), 2010 ABCA 137 is a case in point(blogged here). In that case (see paras 72 – 79) – which also dealt with aboriginal water rights – the Court of Appeal elected not to interfere with the trial judge’s conclusion that consultation fell at the low end of the scale basing that conclusion in part on alleged difficulty of applying Winters in a Canadian context. The difference in approach between the two jurisdictions is also apparent in the approach of the two governments. Whereas the government of British Columbia frequently takes the position that it will engage in deep consultation even if not entirely convinced of the strength of the First Nation’s case it is not at all unusual to see the Alberta government running two alternative (and I believe deeply incompatible – see the Tsuu Tina blog above) arguments to the effect that: (1) we had no duty to consult, but (2) if we did have a duty we discharged it.