Reviving Sovereignty: Bill C-61 and the Reclaiming of Reserve Land Water Rights in Alberta

by Keysel Alberto Besa, winner of the 2024 NEERLS Law Student Essay Contest - Gowling WLG - David Estrin Prize.

I. INTRODUCTION

The Province of Alberta is home to forty-five First Nations. The historic Numbered Treaties 6, 7, and 8, formed in the latter half of the nineteenth century, created reserve lands throughout the province. To the casual legal observer, the supposition that First Nations in Alberta possess jurisdiction over water sources within those reserve lands may seem readily apparent. After all, it is trite law that reserve lands were set apart to enable First Nations to self-govern, notwithstanding their reserves’ placement within provincial boundaries.¹ More importantly, Parliament, through its legislative authority over “Indians and Lands Reserved for the Indians,”² delegated a wide array of local governance powers to each reserve’s governing body. For instance, a band council has the power to enact by-laws to regulate traffic, maintain law and order, and issue tax assessments to entities that either have an interest or otherwise occupy reserve lands.³

In the realm of reserve water resources, a band council can make laws pertaining to the construction or regulation of watercourses, ditches, public wells, cisterns, reservoirs, and “other water supplies” in the reserve.⁴ In addition to this statutory recognition of a First Nation’s authority to enact water-related laws on their reserve land, Canada has increasingly recognized the right of self-government and self-determination.⁵ These factors taken altogether pose a curious question: why would the issue of jurisdiction over reserve land watercourses, groundwater, and bed and shore be controversial? This issue has been a subject of sharp divergence of views among governments, lawyers, and legal scholars. For instance, the Province of Alberta has long insisted on having exclusive jurisdiction over all water resources within the province, including those situated on and under reserve lands.⁶ In opposition to this view, many legal experts point out that such water jurisdiction remains firmly vested in each respective First Nation band in Alberta.⁷

Parliament’s desire to settle this legal question once and for all prompted the introduction of Bill C-61 in 2023, titled, “First Nations Clean Water Act,”⁸ marking a major turning point in advancing Alberta First Nations’ jurisdiction claim over reserved land water. The legislation, currently in its second reading in the House of Commons, states that First Nations possess jurisdiction over reserve land water resources, elevating such sovereignty to constitutional status. The thorny and legal issue that Bill C-61 appears to resolve centers on three contentious issues: First, whether reserve lands attracted riparian rights; secondly, whether First Nations have authority over reserve land groundwater; and finally, whether the ad medium filum aquae rule applied and continues to apply to reserve lands. This paper will argue that Bill C-61 advances Indigenous water rights in Alberta by re-establishing First Nation jurisdiction over reserve land water, particularly the restoration of the common law riparian, groundwater, and ad medium filum aquae rights.

II. Bill C-61 and the Revivification of First Nation Riparian Rights

Bill C-61 resolves the longstanding issue concerning reserve land water jurisdiction by reaffirming aspects of the riparian rights doctrine. An appreciation of Bill C-61’s significance warrants a review of how Parliament, and subsequently the Province of Alberta, sought to limit such a right. Upon Confederation, the doctrine of riparian rights, which Canada adopted as part of its common law heritage,⁹ was the governing water law regime in the North-West Territories.¹⁰ Under this water law system, a landowner whose property directly borders a waterbody or through which a watercourse flows is entitled to a panoply of “usufructuary entitlements. ”¹¹ The most fundamental of the riparian entitlements include the right to access the water,¹² to the water flow “undiminished in quality and unimpaired in quantity,”¹³ and to use the water subject only to reasonable use and domestic purposes.¹⁴

The Privy Council’s 1859 decision in Miner v Gilmore stands as the leading common law authority that articulated the application of this doctrine.¹⁵ The key issue was whether Mr. Miner, a riparian owner who operated a tannery upstream, could continue to block the natural flow of the river to maintain a sufficient head to run his tannery. Mr. Gilmore, on the other hand, owned a gristmill downstream, causing him to insist on keeping the dam open as the natural flow of water enabled the operation of the gristmill’s machinery. The Privy Council, in dismissing the upstream riparian’s assertion of a right to obstruct the natural flow of water, stressed that a riparian owner’s water entitlements did not include infringing on the water entitlements of downstream riparian landholders:

By the general law applicable to running streams, every riparian proprietor has a right to what may be called the ordinary use of the water flowing past his land; for instance, to the reasonable use of the water for his domestic purposes and for his cattle….He has a right to the use of it for any purpose, or what may be deemed the extraordinary use of it, provided that he does not thereby interfere with the rights of other proprietors, either above or below him.¹⁶

Through Canada’s adoption of the common law doctrine of riparian rights, reserve lands created in areas that either adjoin a watercourse or where water passes through presumably attracted riparian rights.¹⁷ This argument is buttressed by the principle that riparian water rights inherently exist as part of the land that abuts a waterbody.¹⁸ As La Forest explains, the water rights that a watercourse confers upon a riparian landowner are “inseparably annexed to the land; it is not an easement and cannot be permanently separated from the inheritance.”¹⁹ This inseparability of water entitlements to a riparian land strengthens the idea that First Nations in what became modern-day Alberta have jurisdiction over water on their reserve lands. Reserve lands, after all, were “set apart…for the use and benefit of a band”²⁰ and are governed by a democratically elected band council. It follows that when the federal Crown created First Nation reserves in Alberta through the Treaties, whatever riparian rights that came with those lands must have passed onto the respective band for its local governance to manage.

The existence of such a right was consequential in Alberta, where many First Nation reserves, such as those in the Treaty 7 region, sit proximally adjacent to major rivers such as the Bow, Elbow, and Oldman Rivers.²¹ Confirming this view, Graham Statt – who wrote extensively on the scope of Indigenous water rights – argues that First Nations are “in lawful possession of their [reserve] lands….Therefore, bands occupying reserves bordering on or encompassing such waters are riparian owners.”²² Echoing Statt’s view, Aboriginal law expert David Laidlaw specifically points to Treaty 6 and 7 First Nations, whose treaty was signed in 1876 and 1877, respectively. During this time, Laidlaw maintains that the existing rule was “the law of riparian rights. Because reserve lands are held for the use and benefit of the respective First Nations, First Nations are the lawful riparian landowners and holders of riparian rights.”²³ The salient point is that when reserve lands emerged in Alberta as a result of Treaties 6 and 7, the watercourses which either passed through or abutted those lands gave the respective First Nation bands riparian rights. Harriet Rueggeberg and Andrew Thompson, in their research on federal water policy, echo Statt’s position, noting that “the Indians could take legal action to prevent upstream pollution or to prohibit the building of dams which would diminish water flows in the Reserve.”²⁴

The North-West Irrigation Act: Planting the Seeds of the Decades-Old Legal Debate

The riparian rights attached to First Nation reserve lands in Alberta initially seemed to guarantee a degree of perpetual Indigenous jurisdiction over water resources. However, the passage of the North-West Irrigation Act (NWIA) in 1894 brought significant uncertainty to such rights.²⁵ Two major changes to the common law of riparian rights in the prairies emerged from the NWIA. First, this federal statuteeffectively suppressed the doctrine of riparian rights by defeating the longstanding idea that water is res communis,²⁶ vesting ownership and jurisdiction over all water bodies to the federal Crown in the geographical area that became present-day Alberta. Section 4 of the NWIA makes this change to the common law explicit:

The property in and the right to the use of all the water at any time in any river, stream, watercourse, lake, creek, ravine, canon, lagoon, swamp, marsh or other body of water shall for the purposes of this Act, be deemed to be vested in the Crown.²⁷

The historical backdrop against which Parliament passed the NWIA indicates that this law deliberately aimed at radically restricting the riparian water rights in the prairies. As the influx of European settlers in the prairies gained traction in the late nineteenth century, the demand for water accordingly increased. It is worth noting that the NWIA was the brainchild of William Pearce, Superintendent of Mines in the Interior Department from 1885-1901, who deliberately sought to limit the application of the doctrine in the prairies.

Water law historian Kenichi Matsui explains that Pearce drew inspiration from ideas and irrigation bills in the American West where “riparian rights to water was condemned in the strongest possible language.”²⁸ Indeed, the evidence suggests that Pearce drafted the NWIA with the specific intention to “destroy Riparian Rights.”²⁹ Parliament’s desire to “create large agrarian settlements and to provide the safety-valve for immigration in the West”³⁰ propelled the idea of vesting water ownership in the federal Crown, resulting in the drastic restriction of the riparian rights regime.³¹

Elaborating on the historical background of the NWIA, water law expert David Percy also details how the riparian water law system proved to be ineffective and untenable in buttressing industrial development in the prairies. Many large-scale agricultural and industrial projects “distant from good sources of water”³² were difficult to develop unless there was a way to allocate water rights to non-riparian landholders. Available alternatives to landholders who require a reliable water access were either limited or non-existent, considering that the law barred riparian landholders from either transferring or leasing such entitlements.³³ Even some riparian landowners found the system problematic because they could not undertake any large-scale irrigation projects as such major undertakings tend to result in a diminution in water flow for downstream riparian owners.³⁴ It was precisely this growing discontent and frustration with the restrictions of the riparian regime that impelled Parliament to enact the NWIA, instituting a mechanism through which water can be allocated to users in a manner that is not tethered to one’s adjacency to a water source.

With the legislation vesting ownership of all water in the federal Crown over the area, which soon became modern-day Alberta, the First Nation water jurisdiction that presumably attached to reserve lands through the riparian rights doctrine became questionable at best. Under the new system, the NWIA introduced, all water users must obtain a license from the Crown, irrespective of their proximity, or lack thereof, to a watercourse.³⁵ The new system instituted a licensing scheme, giving priority to more senior licensees during times of water shortage, depending on the date at which the water licensee applied for the license.³⁶ Following the NWIA, therefore, First Nations in Alberta were arguably placed in the same position “of having to apply to the federal government for licenses to use waters crossing or bounding reserve lands just like the non-natives.”³⁷ Considering that neither the Alberta First Nations nor the Department of Indian Affairs (as it then was) “applied for any licenses to protect Indian water rights in Prairies,”³⁸ the NWIA had the effect of curtailing reserve land water jurisdiction First Nations enjoyed under the previous riparian regime.

The Advent of the Natural Resources Transfer Act: Another Wrench to First Nation Water Jurisdiction

By entering into the 1930 Natural Resource Transfer Agreement (NRTA), Alberta further cemented the notion that First Nations’ reserve land riparian rights were severely restricted. When the Province of Alberta came into existence in 1905, the NWIA remained law in Alberta, allowing Parliament to keep its legislative authority to manage and administer natural resources within the province’s borders.³⁹ Unlike Alberta, the provinces of Quebec, Ontario, Nova Scotia, and New Brunswick, when hey joined Confederation in 1867, had legislative control over the natural resources within their respective territories. This unequal distribution of constitutional powers soon became a lightning rod for Alberta’s grievance and consternation against the federal government, prompting the enactment of the Natural Resource Transfer Acts (NRTA).

The NRTA maintained state ownership of water by transferring natural resource ownership to Alberta, departing further from the notion that Alberta First Nations have continued to have jurisdiction over reserve land watercourses since 1894. The NRTA provides that all “Crown lands, mines, minerals…derived therefrom within the Province…shall belong to the Province,”⁴⁰ preventing the applicability of the NWIA in Alberta. To leave no uncertainty regarding who has jurisdiction over all water in the province, Alberta amended the NRTA in 1938 to stipulate explicitly that the province owns all “waters and water-powers”⁴¹ within its boundaries. Thus, the advent of the NRTA highlights the degree to which the legal uncertainty regarding First Nation riparian rights only became more complicated in the decades since Parliament enacted the NWIA. As Laidlaw puts it, the NRTA provided Alberta with the basis upon which it could contend that “Aboriginal water rights have been extinguished.”⁴² Indeed, the controversy surrounding subsequent provincial water statutes asserting that “all water on or under the surface of the ground”⁴³ belongs to the provincial Crown is just the tip of the iceberg in a complex legal and jurisdictional dilemma that predates the establishment of Alberta itself.

Bill C-61 and the Revitalization of Riparian Rights

Given the uncertainty and legal complexity that the NWIA and the NRTA introduced to the question of reserve land water jurisdiction, Bill C-61 stands as a pivotal step towards providing much-needed clarity. The preface to the statute expressly provides that a First Nation has “jurisdiction in relation to water, source water, drinking water, [and] wastewater…on in, and under [reserve] lands.”⁴⁴ Such recognition of jurisdiction implies that a riparian First Nation could once again confidently and legally assert the array of rights that typically entails a riparian landholder. To give effect to the notion of jurisdiction over a watercourse that passes through a reserve land, at the very least, a First Nation must be guaranteed a right to access the water – a foundational entitlement under the riparian system. A corollary to this right of water means that “no one, not even the Crown, can erect any structure on the shore or otherwise permanently obstruct”⁴⁵ a First Nation’s right of access. It stands to reason that should either the federal or provincial government opt to construct a dam, a nearby wharf, or any other infrastructure obstructing a First Nation’s access to a watercourse traversing a reserve, an argument could be advanced that the First Nation possesses a legal recourse under Bill C-61. Such legal recourse parallels the remedy available to a riparian landowner for any infringement upon their right to access water.⁴⁶

Beyond implicitly reinstating riparian rights by acknowledging jurisdiction over water on reserve lands, Bill C-61 also reaffirms a First Nation’s riparian right to both the quality and quantity of water. The doctrine of riparian rights provides that the flow of water cannot be diminished “as to its quality or quantity.”⁴⁷ A riparian landowner is free to consume or appropriate an unlimited amount of water, provided that such appropriation was for ordinary household or domestic purposes.⁴⁸ The draft bill effectively revivifies such foundational entitlements bestowed upon a riparian landowner:

Drinking water quality
14. Subject to the choice specified by a First Nation governing body, the quality of drinking water on the First Nation lands of that First Nation must at least meet the guidelines set out in the Guidelines for Canadian Drinking Water Quality or the drinking water standards in place in the province or territory where the First Nation lands are located.
Water quantity
15. The quantity of water available on the First Nation lands of a First Nation must meet the drinking, cooking, sanitation, hygiene, safety, fire protection and emergency management needs of the First Nation, based on its current and projected water usage needs.⁴⁹

Reference to a First Nation’s entitlement to a particular degree of water quality and quantity contemplates the restoration of riparian rights for reserve lands in Alberta. More importantly, unlike the Alberta Water Act that only tolerates a riparian use of water for household purposes up to 1250 cubic meters,⁵⁰ Bill C-61 conspicuously lacks any restriction on a First Nation’s right to the quantity of water. Such absence of limitation revitalizes the applicability of a key principle of riparian rights to reserve lands, indicating that a riparian owner “may appropriate an unlimited amount of water”⁵¹ for domestic and ordinary purposes. Such indicias of riparian-esque rights in the drafted bill marks a watershed moment in achieving clarity regarding reserve land water jurisdiction in Alberta.

III. Treaty Right to Water and the Test for Extinguishment: A Case Against the Significance of Bill C-61?

In an effort to downplay the significance of Bill C-61, some might resort to treaty-based and statutory interpretation arguments previously raised against the NWIA and the NRTA. Richard Bartlett, in his extensive exposition on treaty water rights, has long maintained that neither the NWIA nor the NRTA affected Alberta First Nations’ jurisdiction over water. His argument is predicated on the idea that when the prairie First Nations received their treaty land entitlement, such treaty lands came with the jurisdiction over watercourses that either abut or traverse the reserve.⁵²

This presupposition that a First Nation claim to reserve land waters is a treaty right lays the foundation for arguing that the test for extinguishment the Supreme Court of Canada formulated in Sparrow must be met. The decision in Sparrow stands for the proposition that if a government wants to extinguish a treaty right by legislation, which was possible prior to 1982,⁵³ the legislation must have a “clear and plain intention”⁵⁴ to do so. It follows, as the argument goes, that in the absence of an explicit provision mentioning the abolition of a treaty right in either the NWIA or the NRTA, First Nations’ authority over reserve land remained unaffected:

The recent Supreme Court of Canada declarations suggest the need for a “clear and plain intention” to be found to abrogate Indian property rights…and for resolution of ambiguities in favour of the Indians….The [North-West Irrigation Act] does not specifically refer to Indian reserves or water rights and it does not suggest any “clear and plain indication” to abrogate these rights and break the treaty promises.⁵⁵

If this treaty-based argument in favor of reserve land water jurisdiction prevails, Bill C-61’s recognition of First Nation jurisdiction over reserve land water is redundant or a trivial nicety at best.

Due credence must be given to the strength and persuasiveness of this potential source of skepticism towards Bill C-61. Specifically, we must recognize the compelling notion that the promotion of an agrarian lifestyle for prairie First Nations drove the formation of Treaties 6, 7, and 8. The promise of various agricultural implements in the text of these three treaties, along with the express acknowledgement that such implements were “given once and for all for the encouragement of the practice of agriculture among the Indians,”⁵⁶ serves to amplify these agreements’ agrarian undercurrent. In the same vein, the historical backdrop to these Alberta treaties undeniably points to the idea that the promotion of an agricultural economy in the prairies was at the forefront of the Dominion government’s mind. As Aboriginal treaty expert Kristy Pozniak explains, “the government’s purpose in establishing reservations…is precisely to encourage the practice of agriculture among the Indians.”⁵⁷ Hence, it follows that specific rights and jurisdiction over water situated on reserve lands must have already been an implicit treaty right in Alberta aimed at facilitating the transition of prairie First Nations to an agricultural economy. If this treaty-based rights regime is indeed the established law in Canada today, Bill C-61’s recognition of First Nations’ jurisdiction over water on reserve lands would surely appear redundant at best and a trivial nicety at worst.

Despite the compelling historical and legal rationale supporting the treaty-based claim to water, the recognition of First Nation control over reserve land water sources in Bill C-61 still marks a significant and revolutionary shift in Canada’s Aboriginal law. This is because Canadian courts have not recognized a treaty right to reserve land water. Indeed, unlike the American jurisprudence,⁵⁸ Canadian case law provides little to no dispositive response to this issue. When the Supreme Court of the United States encountered an opportunity to comment on the natives’ water rights at the outset of the twentieth century, the Court forthrightly declared that the creation of a reserve incidentally attracted the right and jurisdiction to use the water within the reserve’s boundary.

The 1908 US Supreme Court decision in Winters v United States remains a landmark decision on Indigenous water rights in America. The issue before the Court was whether the Fort Belknap Reserve in Montana, which Congress created in 1888, had a right to use and divert water from the Milk River. The non-Indian settlers-built dams and reservoirs on the Milk River, which hampered the natural flow of water to the Fort Belknap Native Reservation. The settlers’ argument rests on the idea that the 1888 agreement that created the reserve did not specifically stipulate the natives’ jurisdiction over water use. As such, the rules of first-in-time-first-in-right or prior appropriation ought to govern the regime of allocating water. In rejecting the settlers’ argument, the Court held that the right to use and divert water was an implied entitlement attendant to the reserve’s creation:

The reservation was a part of a much larger tract which the Indians had the right to occupy and use, and which was adequate for the habits and wants of a nomadic and uncivilized people. It was the policy of the government, it was the desire of the Indians, to change those habits and to become a pastoral and civilized people … The lands were arid, and, without irrigation, were practically valueless.⁵⁹

The Winters decision was significant because it established the idea that the creation of an Indigenous reserve in arid lands through a treaty or an agreement de facto includes a right to “a sufficient amount of water…for irrigation purposes.”⁶⁰

It is thereby unsurprising that the Winters doctrine became the envy and inspiration of many prairie First Nations in Canada to argue that they, too, have a treaty right to water.⁶¹ After all, the parallels between the Fort Belknap reservation and treaty First Nation reserves in Alberta are striking. For instance, the creation of Alberta reserves, just like the Fort Belknap reserve, were predicated on the notion of fostering an agrarian mode of life. More importantly, the Supreme Court of Canada’s notable pronouncement that “any ambiguities or doubtful expressions must be resolved in favor of the Indians”⁶² and that “treaties…should be liberally construed”⁶³ bear a striking resemblance with the US Supreme Court’s holding that “ambiguities should be resolved from the standpoint of the Indians.”⁶⁴

Although the historical parallels in reserve establishment and treaty interpretation between the two countries imply the applicability of the Winters doctrine in Canada, the fact remains that Canadian case law has largely overlooked the idea of a treaty right to water.⁶⁵ In Alberta, the Court of Appeal’s ruling in Tsuu T’ina v Alberta was the only decision which directly addressed, albeit in obiter dicta, the applicability of the Winters doctrine. The Tsuu T’ina decision militates against importation of the Winters doctrine in Canada, as it held that the doctrine “has not been applied in Canada…[and] it is doubtful that the doctrine is applicable in Canada.”⁶⁶ Natural resource law expert Dwight Newman echoes the Court of Appeal’s sentiment, noting that the treaty right to water is mired in “many uncertainties, and these arguments for far-reaching Aboriginal water rights show limited prospects in Canadian case law.”⁶⁷

Furthermore, even if we were to entertain the notion that the Numbered Treaties implied a right or jurisdiction over reserve land waters, it is still uncertain whether this argument would extend to Treaty 8 First Nations in Northern Alberta. Treaty 8 was signed in 1899 – five years after the NWIA drastically limited the riparian rights regime. Thus, it remains an “open legal question” whether, at the time Treaty 8 reserves were established, the full panoply of riparian rights and jurisdiction over reserve land water transferred to those northern First Nations.⁶⁸ In theory, those Treaty 8 reserves cannot assert any ownership or jurisdictional claim over reserve land waters as the NWIA clearly states that all water in the region is vested in the federal Crown. As Bartlett readily admits, the NWIA “would have denied the accrual of water rights in reserves established after [1894], which are essentially those in the northern parts of the prairie provinces.⁶⁹” Offering a counter viewpoint, Rueggeberg and Thompson posit the view that “regardless of when a reserve was established, Parliament did not intend that the North-West Irrigation Act should be applied to restrict Indians’ riparian right to water.”⁷⁰

The point to stress here is that the treaty-based jurisdictional claim to reserve land water sources is entangled in legal ambiguity from various angles. This immense complexity highlights the significance of Bill C-61 as Parliament’s inaugural attempt to definitively address the question of jurisdiction over reserve land water, aiming to bring resolution to a longstanding legal debate.

IV. Bill C-61 and First Nation Jurisdiction over Groundwater

In addition to fortifying First Nation jurisdiction over reserve land water through a reaffirmation of certain aspects of riparian rights, Bill C-61 also resolves the longstanding issue of jurisdiction over groundwater under reserve lands. The draft legislation gives First Nations authority over groundwater through explicit reference to “water, source water…under First Nation lands.”⁷¹ In contrast to the riparian rights doctrine, which allowed riparian landholders to take water for domestic use and certain extraordinary purposes so long as they do not result in a perceptible diminution to water flow, the common law rule regarding groundwater granted landowners significantly more exclusive and expansive rights. The 1859 House of Lords decision in Chasemore v Richards articulated the notion that landowners have the right to extract as much groundwater as they desire without considering the needs of other users sharing the same water resource:

It appears to me that the principles which apply to flowing water in streams or rivers, the right to the flow of which in its natural state is incident to the property through which it passes, are wholly inapplicable to water percolating through underground strata, which has no certain course, no defined limits, but which oozes through the soil in every direction in which the rain penetrates.⁷²

The limitless jurisdiction of a landholder to appropriate subterranean water meant that no legal action or remedy could be maintained against users for depleting the water resource to the detriment of other users. Indeed, similar to the rule of capture, the rules governing groundwater appropriation “permits landowners to drain away and capture substances from adjoining lands.”⁷³

Echoing this explanation, Percy astutely explains that “an owner of land was held to be entitled to appropriate groundwater…without any regard for the effect of this action on a neighbor…. The landowner could thus take ground water with impunity.”⁷⁴ With the adoption of this rule in Canada as part of its common law tradition, First Nation reserves arguably possessed such exclusive and all-encompassing authority over water. More importantly, unlike the effect of the NWIA on riparian rights, it is arguable that First Nations retained absolute authority to take any quantity of water situated underneath their reserve lands without needing a water license.

The threat and challenge to First Nation jurisdiction over groundwater came only in 1962 upon Alberta’s enactment of the Water Resources Act. Under this provincial legislation, the province simply added groundwater to the categories of water that Alberta regulates and owns.⁷⁵ The provincial Water Act Alberta passed in the early 2000s solidified the provincial assertion of ownership over all groundwater within the province, defining water as “all water on or under the surface of the ground, whether in liquid or solid state. ”⁷⁶ The province’s inclusion of groundwater in its list of regulated resources suggests that First Nations wishing to utilize groundwater for purposes beyond ordinary domestic use are now legally required to obtain a license from the Crown. However, with Bill C-61’s forthright recognition of First Nation jurisdiction over waters located beneath their reserve lands, the statutory requirement to obtain a license before extracting groundwater for exceptional purposes has arguably been eliminated. Such a change constitutes a major development in advancing Indigenous rights over water in Alberta, empowering First Nations to exercise greater control and stewardship over this vital resource within their respective territories.

V. Bill C-61 and the Revitalization of the Ad Medium Filum Aquae Rule

Another contribution of Bill C-61 to advancing First Nations’ jurisdiction over reserve waters is hinting at the potential restoration of the ad medium filum aquae principle on reserve lands. Being a related idea to the riparian rights doctrine, the ad medium filum aquae principle is a legal presumption Canada adopted through its common law heritage, providing a riparian landholder ownership of the underlying bed up to the middle point of the adjoining water resource. In a scenario where a watercourse traverses the properties of two riparian landholders, they thereby own the riverbed in equal halves. However, if a riparian owner’s land fully surrounds both sides of a water source, as is the situation in many First Nation reserves, the riparian owner presumably owns the entire bed and shore of the watercourse.⁷⁷ The applicability of the ad medium filum aquae principle on reserve lands thereby suggests that a First Nation has exclusive jurisdiction over the bed and the shore of the watercourses located squarely on their land:

For non-navigable waters…we presume a grant of land next to water includes the bed and shores of that water up to the midpoint of the bed. Practically, this means if a reserve includes the land on one side of a waterbody or watercourse, we presume the reserve includes the bed and shores up to the midpoint. Equally, if a reserve includes the land all around a waterbody or watercourse, we presume the reserve includes the bed and shores up to the midpoint of each side, which means all the bed and shores.⁷⁸

The entitlements to land on a First Nation reserve, presumed to include ownership of the underlying bed of watercourses, encompass rights to construct diverse water-related structures such as wharves, dams, bridges, and more.⁷⁹ As such, through this legal presumption, Alberta First Nations, with a non-navigable watercourse located within its reserve boundaries presumptively, possess the legal ability to build these water-related structures by virtue of the ad medium filum aquae principle.⁸⁰

However, similar to the riparian rights regime, the question of whether Alberta First Nations could assert the ad medium principle became uncertain following the enactment of the NWIA. As the legislation provides, “no grant shall be hereafter made by the Crown…to any lake, river, stream or other body of water…or the land forming the bed or shore thereof.”⁸¹ The forward-looking language of this provision potentially presents a compelling argument that the ownership of beds by Treaty 6 and Treaty 7 First Nations, whose reserve lands were established prior to 1894, were not affected by the NWIA. However, this argument is challenging to apply to First Nation reserves in Treaty 8 territory of Northern Alberta where reserve lands were established years after the NWIA.

Further exacerbating the legal uncertainty surrounding the applicability of the ad medium doctrine to reserve lands, Alberta’s Public Lands Act provides that this principle’s application in the province has since been suppressed. Under this provincial legislation, ownership of the beds and shores for “all permanent and naturally occurring bodies of water, and all naturally occurring rivers, streams, watercourses and lakes”⁸² within provincial territory is vested in the provincial Crown. This provincial statute implies that First Nations in Alberta are effectively prohibited from constructing various water-related infrastructures, such as dams and wharfs, on reserve land watercourses without obtaining provincial permission.

Bill C-61 marks a significant stride in affirming the ad medium filum aquae presumption’s applicability to reserve lands by acknowledging First Nations’ jurisdiction over “water…and related infrastructures on, in and under”⁸³ their territories. While the current draft of the statute lacks an explicit acknowledgment of the specific types of water structures that a First Nation can build on reserve land watercourses, the incorporation of the term “related infrastructure”⁸⁴ suggests the possibility of constructing water-related structures. This ability to build structures on watercourses suggests the acknowledgement of the ad medium filum aquae presumption.

This possibility should be a welcome development to many Alberta First Nations particularly the Tsuu’ Tina First Nation and the Piikani First Nation in Treaty 7 territory that once asserted ownership title to riverbeds within their reserves.⁸⁵ These First Nations could now leverage Bill C-61 as a legal basis to construct various water-diversion infrastructures on reserve land watercourses and assert ownership of the underlying bed.

VI. The Lingering Provincial Authority Over Source Water: A Fatal Flaw or a Balancing Act?

Another critique of the significance of Bill C-61 arises from its approach to source water provisions and watercourses outside the reserve designated as protected zones. Instead of conferring full legal jurisdiction over either source water that abuts a First Nation reserve, the draft bill makes such authority contingent on a tripartite agreement between a First Nation, the federal government, and the provincial government:

For greater certainty, the inherent right of self-government…includes jurisdiction in relation to water and source water in a protection zone that is adjacent to the First Nation lands… if a governing body of the First Nation, the Government of Canada and the government of the province or territory in which the First Nation lands are located have agreed on an approach.⁸⁶

The provision above has garnered criticism from First Nations and water law practitioners alike. For instance, Aboriginal water rights lawyer Clayton Leonard argues that the draft bill effectively renders recognition of First Nation jurisdiction over source water “vulnerable to federal and provincial agreement.”⁸⁷ In the same vein, Norma Large, a policy adviser representing more than forty Alberta First Nations, noted that the bill “is not meeting the mark.”⁸⁸ Large contends that the bill needs a more explicit recognition that First Nation jurisdiction over source water “transcends reserve boundaries.”⁸⁹

While this critique of the draft bill’s provision concerning source water is understandable, critics fail to fully appreciate the complexity of the legal and political issues that the legislation seeks to reconcile. To illustrate, consider the Frog Lake First Nation located in Treaty 6 territory. The western side of a lake called the “Frog Lake” is directly adjacent to the Frog Lake First Nation’s reserve land. However, the lake’s eastern side borders the Municipality of Bonnyville and is thereby already beyond the reserve’s territory. To suggest that this source water should be subject to the exclusive legal control of the Frog Lake First Nation is highly problematic as it ignores that a municipality and, by extension, the province clearly share jurisdiction of the water source given their adjacency to it. The notion that a First Nation should possess absolute authority over source water not directly within their reserve lands could severely undermine Alberta’s constitutional jurisdiction over watercourses within its provincial boundaries. Conversely, the voice and influence of First Nations must be considered concerning any source water, even those beyond the reserve boundaries, particularly if such a water source could potentially impact the lives of those living on a reserve.

Bill C-61 strikes the necessary balance between the competing interests by making it necessary for all jurisdictional parties to have equal representation and participation in the decision-making over matters concerning source water. This balancing act is consonant with the idea that the area of water resource management is “fertile ground for the development of intergovernmental cooperation.”⁹⁰ Indeed, as La Forest aptly observes, “cooperation will on many occasions be required for a full and rational development of water resources.”⁹¹

The alternative that critics seem to advocate, where First Nations would have exclusive and total legal control over source water including those that are not located squarely within a reserve, overshoots the mark of reaffirming Indigenous water rights. If anything, the critics’ proposal may “serve only to emphasize conflicts between the parties and make a practical resolution of the matter more difficult.”⁹² It is reasonable to assume that Parliament likely conditioned First Nations’ control over a source water that is adjacent to, but not entirely within, reserve lands upon interjurisdictional consensus to limit the possibility of provincial consternation towards this bill. The idea that First Nations ought to have absolute jurisdictional control over source water including those beyond the reserve’s boundaries will likely be interpreted by Alberta as an affront to provincial sovereignty over watercourses. The prospect of firm provincial resistance against granting First Nations jurisdiction over source water is reason enough to reconsider such an idea.

The last thing Parliament and First Nations want is for the province to assert its power under section 88 of the Indian Act that allows the application of provincial laws of general application to reserve lands, making it more legally complicated to restore First Nation jurisdiction over water within their territory. Additionally, falling short of recognizing full First Nation jurisdiction over source water is a necessary cautious move, preventing the perception that Parliament is riding roughshod over the province’s ownership of source water. This concern is particularly heightened in Alberta, where the provincial government has repeatedly threatened the use of the Sovereignty Act against any federal law perceived to be encroaching on the province’s constitutional jurisdiction over natural resources.⁹³

By mandating interjurisdictional cooperation for source water protection, Bill C-61 effectively reconcilesprovincial ownership of watercourses that are only partially located within reserve lands with the much-needed revitalization of the First Nation’s influence over source water that either flows to or is directly adjacent to their reserve. The notion of conferring absolute jurisdiction upon First Nations over source water and waters designated as protection zones fails to account for the broader legal challenges and political fallout that would entail such a proposition.

VII. Conclusion

The legal conundrum regarding jurisdiction on reserve land watercourses has bedeviled Canadian water law for more than a century. The constitutional distribution of legislative powers in the Constitution Act, 1867, has offered little to no resolution. At one point in our country’s history, the common law rules governing riparian rights, groundwater, and the ad medium filum aquae provided a solid legal basis upon which First Nation authority over reserve land watercourses could rest. However, the advent of the NWIA in 1894, the creation of the Province of Alberta in 1905, and the enactment of the NRTA in 1930, among other provincial natural resources statutes, made the applicability of these doctrines shaky at best and deeply questionable at worst.

Bill C-61 is Parliament’s first attempt since 1894 to put this legal question to rest. More particularly, it contains several indicators of a return to the common law protections governing riparian rights, groundwater and the ad medium filum aquae doctrines, marking the advancement of First Nation authority over reserve land water resources. If Alberta decides to mount a legal challenge against this legislation once it becomes law, Bill C-61 will make its mark in history as the much-awaited impetus for the courts to finally weigh in on one of the longest-running debates in Canadian water law.

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