Fluid situation for Alberta reserves

Alberta's provincial government and several First Nations appear headed for a showdown over who controls water on aboriginal lands, one that risks leaving some reserves without water during droughts.

The province asserts jurisdiction over all water within its borders, including on reserves – a notion some First Nations reject. "We always had an unwritten belief that our water underneath us is ours," said Carol Wildcat, consultation co-ordinator for the Ermineskin Tribe, one of the affected First Nations. "It doesn't belong to anybody else. Alberta, I know, probably states otherwise … the audacity of them, eh?"

As Alberta prepares for droughts, it is pressing First Nations to accept water licences that it acknowledges would not provide water reliably during shortages. Graham Statt, assistant deputy minister at Alberta Environment and Parks, said it is crucial for the province to oversee water licensing. "It would be very difficult to achieve our ecological and environmental outcomes otherwise." But some First Nations are devising their own systems for managing water on their lands, openly defying the province.

The dispute's origins were set in motion more than a century ago. In 1894, Alberta adopted a principle known as First-In-Time, First-In-Right, a system for administering water rights that was already popular across western North America. (It's often known by its acronym, FITFIR.) FITFIR prioritizes licences based on issuance dates; during droughts, "senior" licensees are entitled to their entire allotment before anyone else gets a drop.

Many of Alberta's approximately 50 reserves never acquired licences. Their water use was largely overlooked for most of the past 120 years, said David Percy, a law professor at the University of Alberta. "It wasn't as if First Nations were taking enough water out of the river that anyone was going to get upset about it."

That changed in recent decades as certain watersheds became stressed amid population growth, climate change and other factors, and as the province moved to mitigate these stresses. "When your basins are approaching full allocation, the ideal situation for an administrator would be to tidy up all the water licences," Prof. Percy observed.

It's difficult to quantify how many First Nations are offside the provincial licensing system. Alberta's provincial government provided The Globe and Mail with data on historical and current water licences issued to First Nations (or the federal department of Indigenous and Northern Affairs). Using geographical information system software, The Globe mapped those 91 licences to a federal map of indigenous lands in Alberta. Many reserves had multiple licences covering a variety of uses, from communal water systems to watering livestock and crops.

Dozens of other reserves appeared to have no licences for any purpose. But that doesn't necessarily mean they're offside the provincial licensing system. Some reserves get all the water they need from individual wells, cisterns or truck-fill stations. Others may be supplied by a neighbouring municipality or regional water line. Water licences aren't required in such scenarios.

"Strictly speaking, every reserve has water," says David Laidlaw, a research fellow at the Canadian Institute of Resources Law at the University of Calgary. "So it's potentially a problem for every reserve in Alberta."

In 2006, Alberta approved a water-management plan for the South Saskatchewan River Basin. Recognizing that the basin was already oversubscribed, Alberta stopped accepting applications for new licences and offered the last licences to First Nations. Dorothy First Rider, a councillor with the Blood Tribe, said pressure from the province to accept a junior licence increased that year and has remained high since.

In 2014, the province created another water-management plan for the Battle River Basin, in which Ermineskin and the neighbouring Samson Cree Nation are situated. It proposed a limit in water allocations that, once reached, would block all future licence applications. Again, the province offered junior licences to First Nations.

First Nations contacted by The Globe balked at the offer. "It just means last in line, that's what it means," Ms. Wildcat said. "It's rude. Why am I last when I've been here prior to 1905?" (Alberta was created that year; Ermineskin was formally established in 1885.)

First Nations fear junior licences might not provide water during droughts – a risk confirmed in government documents. "Applicants seeking new (junior) licences in the Battle River Basin must recognize the risk to water security is high," reads the 2014 water-management plan. "Analysis of flow requirements and relative seniority to other licences in the basin suggests that a new (junior) licence holder is likely to receive water 3 out of 10 years."

The Battle River basin appears primed for future droughts. Last year the World Resources Institute published the Water Risk Atlas, a Web map depicting water scarcity around the world. Large swaths of Africa and the Middle East are depicted in angry red hues, signifying water-stressed areas. Nearly all of Canada, a comparatively water-rich country, is deemed lower-risk. The Battle River Basin is Canada's largest exception: The atlas characterizes it as high risk and predicts water stress will worsen.

Mr. Statt said issuing senior licences to First Nations "would have implications for downstream users and other communities as well – other Albertans, frankly." But he played down aboriginal concerns about being left high and dry by the FITFIR system. "We certainly wouldn't let something like a licensing regime get in the way of ensuring that access to safe drinking water is being provided," he said.

The threat of junior licensees being cut off remains theoretical, Prof. Percy said. During previous droughts, Albertan water users negotiated agreements through which all users voluntarily reduced consumption. "There's never been a case, since 1894 when this was introduced, of a major user of water being cut off because of the priority principle," he said. Senior licensees are motivated to co-operate, he added, because calling priority would invite intense scrutiny of their licences' validity. The fallout from calling priority over a community's drinking water might even prompt Alberta to abandon FITFIR altogether.

Prof. Percy acknowledged the legal risk to First Nations is nonetheless genuine. Clayton Leonard, a lawyer with MacPherson Leslie & Tyerman LLP who represents several First Nations on water issues, said it's naive to expect his clients to rely on the negotiation process – in part because Alberta created mechanisms allowing water licences to be bought and sold. "Licence holders would not want to agree to share water, for free, when their licences now have significant economic value," he said. "I don't think there's a good enough relationship between the local municipalities and the First Nations for a water sharing agreement during a drought to be easily arrived at," he added.

The parties seem to have reached an impasse. Alberta said in a 2013 report it believed it had satisfied its obligations to consult First Nations on the Battle River water management plan. Mr. Leonard said all alternative proposals his clients offered to the province have been rebuffed or ignored, and the province continues to insist his clients accept junior water licences.

Ermineskin and the neighbouring Samson Cree Nation responded by enacting their own water laws. The Blood Tribe/Kainai First Nation says it is considering following suit. Mr. Leonard said his clients have informed Alberta they will never accept provincial jurisdiction but don't intend to sue the province. "The ball's in Alberta's court," he said.

Prof. Percy said litigation would carry high stakes for both sides. And the implications could be felt across the country, because Canada's courts have never determined what rights First Nations have to water. "It's a huge unanswered question in Canadian law," Prof. Percy said. "The province can't push that too hard to litigation, because it may well lose that case."

Asked about the reserves' defiance of provincial jurisdiction, Mr. Statt was firm. "Legally, the province controls and administers all water in the province, except for within national parks," he said. "That's where we stand."

Yet a 2003 paper by Mr. Statt himself paints a more complex picture of aboriginal water rights. When he was an academic in the University of Alberta's anthropology department, Mr. Statt published a paper examining the uncertain status of aboriginal water rights in Alberta, particularly in the northern Treaty 8 area. "Bands in this area possess Aboriginal, treaty and common law water rights and, in some cases, may have received title to the beds of navigable, on-reserve watercourses by implication," Mr. Statt wrote. "These rights are essential to the protection of Aboriginal communities from negative external impacts."

Alberta insists First Nations need licences to use water within its borders. An unknown number of reserves operate outside this system; this puts them on a collision course with Alberta as the province steps up mitigation efforts in arid and drought-prone regions. Here are some speculative scenarios on how the dispute might play out.

1. LEGAL BATTLE:

At least three First Nations contend Alberta lacks jurisdiction over water on their lands. Lawyer Clayton Leonard said his clients will manage their own water but have no intent to litigate. The question now is whether Alberta is willing to risk a courtroom battle, which would carry high stakes for all involved. "It's never been decided in Canada, actually, whether or not First Nations have ownership of the water," said David Laidlaw, a research fellow at the University of Calgary's Canadian Institute of Resources Law. Should a court determine First Nations water rights were extinguished in Alberta, the federal government could find itself drawn into the dispute. "Nobody wants to discuss" how Alberta First Nations lost their rights to water, Mr. Clayton said. "If they were taken away, then that's a serious legal issue."

2. FIRST NATIONS CAPITULATE …

More than 91 licences are held by First Nations (or on their behalf by Indigenous and Northern Affairs Canada) in Alberta. Half of them have been issued since the late 1980s. This suggests many First Nations already accept the provincial licensing system to some degree. Under threat of regulatory action from Alberta, more may accept junior licences. But that's a risky move. "The more junior your licence, the greater the risk of not receiving all or part of your allocated water in low water years," the province warns on one website.

… AND THINGS WORK OUT:

Government officials said First Nations have little to worry about. That's because during shortages, the government encourages licence holders to negotiate arrangements such that no users are cut off entirely. Alberta has "a tradition of co-operative management of stressed basins, especially in the last 20 years," said David Percy, a water law expert and professor at the University of Alberta.

… OR THEY DON'T:

First Nations said they're worried they wouldn't be treated as equal partners at the negotiating table. Partly, that's because Alberta now allows the purchase and sale of water licences; Mr. Leonard said the economic value of licences will complicate negotiations.

3. ALBERTA CAPITULATES:

Water law experts said Alberta's assertion of jurisdiction over water on First Nations lands rests on shaky foundations. Rather than risk litigation, the province may be forced to accept that some reserves will operate outside its licensing system – a continuation of a stalemate that has persisted for decades.

4. COMPROMISE:

Alberta said it favours connecting reserves to regional water lines where appropriate – a solution that could alleviate the licensing conflict. "Alberta Transportation will be providing more than half a billion dollars for water grant programs over the next five years," said government spokesperson Kyle Ferguson. "A portion of this funding may provide opportunities to bring waterlines closer to the border of First Nation and Métis communities." But Mr. Leonard said there's no formal proposal to fund or build such pipelines. Moreover, his clients fear rates could rise unbearably if they were to become mere customers of regional water utilities. "If First Nations join regional water systems, they want to be equal partners with the other non-aboriginal regional governments that own and govern those systems," he said.