Comparing Water Allocation in The

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2015-07-07 Comparing Water Allocation in the Western United States and Southern Alberta: Does the Crown's Fiduciary Duty to Protect the Aboriginal Interest in Reserve Lands Hold any Water?

Marechal de Carteret, Kevin

Marechal de Carteret, K. (2015). Comparing Water Allocation in the Western United States and Southern Alberta: Does the Crown's Fiduciary Duty to Protect the Aboriginal Interest in Reserve Lands Hold any Water? (Unpublished master's thesis). University of Calgary, Calgary, AB. doi:10.11575/PRISM/25372 http://hdl.handle.net/11023/2330 master thesis

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Comparing Water Allocation in the Western United States and Southern Alberta:

Does the Crown’s Fiduciary Duty to Protect the Aboriginal Interest in Reserve Lands Hold any

Water?

Kevin Marechal de Carteret

A THESIS

SUBMITTED TO THE FACULTY OF GRADUATE STUDIES

IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE

DEGREE OF MASTER OF LAWS

GRADUATE PROGRAM IN LAW

CALGARY, ALBERTA

JUNE, 2015

Water allocation regimes in the Western United States and Alberta are compared to determine the applicability of the United States’ Indian reserved water rights doctrine, also known as the Winters doctrine, in the Treaty 7 area of Alberta. It is established that a significant difference in the division of powers between states and the federal government in the U.S., and provinces and the federal government in Canada, prevents application of the Winters doctrine in Canada. It is argued that the assumption of control over the Aboriginal interest in surface waters associated with Indian reserves through the North-west Irrigation Act, 1894 and the recognition and affirmation of

Aboriginal and treaty rights in section 35 of the Constitution Act, 1982 give rise to an obligation on the part of the Crown in right of Alberta to furnish priority water allocations for use on reserves in Treaty 7.

ii Acknowledgements

I wish foremost to thank my supervisor Professor Emerita Arlene Kwasniak for her support and guidance. I wish to thank Dr. Jim Frideres and Professor Nigel Bankes for their helpful comments as part of my committee. I would also especially like to thank the staff of the Bennett Jones Law

Library: Kim Clarke, Deborah Dean, David Grant, Nadine Hoffman, Dani Pahulje, Stan Sudak,

Erin Storey, and Mary Wilson for their support and assistance throughout the writing of this thesis.

Finally I wish to thank Brenda Tschanz and Eunice Wong who were both Graduate Program administrators during the writing of this thesis and who were both very helpful in providing guidance about university process and procedure.

iii Table of Contents

Abstract ...... ii Acknowledgements ...... iii Table of Contents ...... iv List of Figures and Illustrations ...... vii

CHAPTER ONE: INTRODUCTION ...... 1

CHAPTER TWO: AN INTRODUCTION TO THE EQUITABLE DISTRIBUTION OF SURFACE WATERS BETWEEN ABORIGINAL AND SETTLER SOCIETIES THROUGH THE WINTERS DOCTRINE IN THE WESTERN UNITED STATES ...... 4 2.1 Introduction ...... 4 2.2 Constitutional basis of water regulation in the United States ...... 4 2.3 Creation of the western states and incorporation of prior appropriation water law into state constitutions ...... 6 2.4 The factual context of the Winters decision ...... 9 2.5 Lower Court decisions ...... 11 2.6 The decision in Winters at the U.S. Supreme Court ...... 12 2.6.1 Implied intention of both parties ...... 13 2.6.2 The perspective of the Gros Ventre and Assiniboine on water rights ...... 14 2.6.3 Reservation of water rights by the U.S. government ...... 15 2.6.4 Commentary on the U.S. Supreme Court decision ...... 16 2.7 Quantification of the right in Winters and the practicably irrigable acreage standard developed in Arizona v California ...... 18 2.8 The role of the Winters doctrine in contemporary American water law ...... 22 2.9 Conclusion ...... 23

CHAPTER THREE: THE ESTABLISHMENT OF CANADIAN JURISDICTION OVER THE TREATY 7 AREA AND THE DEVELOPMENT OF WATER LAW IN ALBERTA .... 24 3.1 The basis of the Crown-Aboriginal relationship in Treaty 7 ...... 25 3.1.1 Origins of Treaty policy ...... 25 3.1.2 Purchase and transfer of the North-west Territories ...... 27 3.1.3 Numbered Treaty Policy ...... 31 3.1.4 Treaty 7 text, context and aftermath ...... 34 3.1.4.1 Text ...... 35 3.1.4.2 Context ...... 37 3.1.4.3 Selecting and setting aside reserves ...... 39 3.1.4.4 Treaty aftermath ...... 42 3.1.5 Early farming activity on reserve land ...... 43 3.1.6 Conclusion ...... 45 3.2 Early water regulation in the Treaty 7 area ...... 45 3.2.1 Law at admittance of the North-west Territories ...... 45 3.2.2 The need for irrigation law in the North-west Territories ...... 46 3.2.3 Water Law in the colony of Victoria Australia: The model adopted in the North-west Territories ...... 49 3.2.4 The North-west Irrigation Act and the creation of a property interest in water ...... 51

iv 3.2.4.1 Bill 134, 1894 ...... 51 3.2.4.2 Bill 120, 1895 ...... 53 3.2.4.3 Bill 146, 1898 ...... 55 3.2.5 The interest of the Crown under the North-west Irrigation Act, 1898 ...... 56 3.3 The Natural Resources Transfer Agreement 1930 and 1938: Jurisdiction over water resources moves from the federal to the provincial level ...... 56 3.3.1 Population growth, provincial autonomy and the need of the federal government to maintain control over lands ...... 57 3.3.2 The transfer of control over resources ...... 60 3.3.2.1 The 1926 Agreement and the federal retention of jurisdiction over waters ... 62 3.3.2.2 The 1929 Agreement’s silence on the transfer of water and water power ..... 63 3.3.2.3 The 1938 Agreement modified the 1930 Agreement to specifically transfer the Crown interest in waters and water power ...... 65 3.3.3 The Natural Resources Transfer Agreement between the Dominion and Alberta as modified by The Natural Resources Transfer (Amendment) Act, 1938 ...... 66 3.3.3.1 Transfer of Public Lands Generally ...... 66 3.3.3.2 Water ...... 68 3.3.3.3 Indian Reserves ...... 69 3.3.3.4 National Parks ...... 71 3.3.3.5 Amendment of Agreement ...... 73 3.3.3.6 The 1945 amendment is a specific exception to a general transfer ...... 73 3.3.4 The effect of the Agreement as amended ...... 76 3.4 Contemporary water regulation in the Treaty 7 area ...... 78 3.4.1 The Water Act, Alberta’s past position on the existence of Aboriginal water rights, and the Crown reservation of water within the South Saskatchewan River Basin ... 78 3.4.2 Bow, Oldman and South Saskatchewan River Basin Water Allocation Order, Alta Reg 171/2007 ...... 79 3.5 Comparison between water law in the western U.S. and in the Treaty 7 area...... 80

CHAPTER FOUR: THE LEGAL OBLIGATION TO GIVE PRIORITY WATER ALLOCATIONS TO TREATY 7 SIGNATORIES ...... 82 4.1 The Crown-Aboriginal relationship is a fiduciary relationship ...... 83 4.1.1 The meaning of the word ‘fiduciary’ ...... 83 4.1.2 Guerin: The fiduciary nature of the Crown-Aboriginal relationship is recognized . 85 4.1.2.1 Conclusion on the importance of Guerin ...... 87 4.1.3 Sparrow ...... 88 4.1.3.1 The fiduciary relationship ...... 88 4.1.3.2 Regulation of an Aboriginal right is not extinguishment of that right ...... 89 4.1.3.3 Justification of Crown infringement of an Aboriginal right ...... 90 4.1.3.4 Priority as a way to meet the Crown’s obligations to Aboriginal groups ...... 92 4.1.3.5 Conclusion on the importance of Sparrow ...... 93 4.2 Not all aspects of fiduciary relationships give rise to fiduciary duties ...... 93 4.2.1 Wewaykum ...... 94 4.2.1.1 Conclusion on the importance of Wewaykum ...... 98 4.2.2 MMF ...... 99 4.2.2.1 Conclusion on the importance of MMF ...... 102 4.3 Aboriginal title is an Aboriginal interest that gives rise to a fiduciary duty ...... 103 v 4.3.1 Delgamuukw ...... 103 4.3.1.1 The content of Aboriginal title ...... 104 4.3.1.2 Justification for infringement of Aboriginal title ...... 105 4.3.1.3 Conclusion on the importance of Delgamuukw ...... 108 4.3.2 Tsilhqot’in ...... 108 4.3.2.1 Aboriginal title and the Crown’s fiduciary duty ...... 108 4.3.2.2 The division of powers and the end of interjurisdictional immunity ...... 111 4.3.2.3 Conclusion on the importance of Tsilhqot’in ...... 113 4.3.3 Is the interest in Aboriginal title lands the same as the interest in reserve lands? . 113 4.4 Summary of sections 4.1-4.3 ...... 115 4.5 Jurisdiction carries obligations: R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Indian Association of Alberta and others ...... 116 4.5.1 Lord Denning M.R...... 117 4.5.2 Kerr L.J...... 118 4.5.3 Conclusion on the importance of R v Secretary of State ...... 119 4.5.4 Conclusion regarding an Aboriginal interest in waters associated with reserve lands and a Crown obligation to protect that interest ...... 119 4.6 A constructive trust is an appropriate remedy for the Crown’s failure to protect the Aboriginal interest in surface waters ...... 120 4.7 Limitations of Actions and Aboriginal claims ...... 122 4.7.1 Limitation periods apply to Aboriginal interests ...... 122 4.7.2 Limitation regime in Alberta ...... 122

CHAPTER FIVE: CONCLUSION...... 126

REFERENCES ...... 128

APPENDIX 1: TEXT OF TREATY 7...... 137

APPENDIX 2: BLACKFOOT INDIANS - S.G.I.A. [SUPERINTENDENT GENERAL OF INDIAN AFFAIRS] 1893/10/23 RECDS. [RECOMMENDS] EXPENDR. [EXPENDITURE] PORTION OF CAPITAL ON IRRIGATION OF RESERVE, PC 1893-2809 ...... 141

vi List of Figures and Illustrations

Figure 1 Location of Fort Belknap Reservation in Relation to Alberta ...... 9

Figure 2 Map of Numbered Treaties ...... 33

Figure 3 First Nations' Reserves in Southern Alberta ...... 41

vii

Chapter One: Introduction

The “Indian reserved water rights doctrine”, also known as the Winters doctrine, which emerged from the 1908 United States Supreme Court decision in Winters v United States1 has been identified as a possible basis for Aboriginal water rights in Canada since as early as 1919,2 and has been advanced as a foundation of an Aboriginal right to water in several actions in Alberta.3

Though often described as a doctrine applicable to Canadian Aboriginal water rights, this thesis demonstrates that the Winters doctrine, being based on the supremacy of federal property law over state water appropriation law, is irreconcilable with the Canadian division of powers between the federal and provincial governments. Accordingly, an alternative formulation of the Crown’s obligation to Aboriginal groups with respect to water is proposed based on Canadian case law.

The research undertaken to support this thesis was restricted to the geographic area of

Treaty 7 in southern Alberta. This region lies predominantly within the South Saskatchewan River

Basin, which was closed to further water allocations in 2007 when a Crown reservation of all unallocated water was made.4 Although the regulation that made this water reservation specifically permitted the director appointed under the Water Act5 to make allocations of water for use by a

“First Nation”6, the value of such allocations, being lower in temporal priority to all other water

1 207 US 564 (1908) [Winters]. 2 Letter from Grunsky to Challies, 5 September 1919, NAC, RG 10, vol 3660, file 9755-4, cited in Kenichi Matsui, Native Peoples and Water Rights: Irrigation, Dams, and the Law in Western Canada (Montreal: McGill-Queen’s University Press, 2009) at 60. 3 See Peigan Indian Band v Alberta, 84 Alta LR (2d) 352, 1991 CanLII 5964 (AB QB); Tsuu T’ina Nation v Alberta (Environment), 2010 ABCA 137 [Tsuu T’ina]. 4 Bow, Oldman and South Saskatchewan River Basin Water Allocation Order, Alta Reg 171/2007. 5 RSA 2000, c W-3. 6 Supra note 4.

licenses within the basin, has been described by officials of the government of Alberta as

“worthless.”7

The question of constitutional jurisdiction over water resources on reserve lands has been raised by signatories to Treaty 7 since at least the Oldman River dam dispute.8 This dispute, between the Piikani and the government of Alberta, began in the mid-1970s,9 and was resolved by settlement in 2002.10 Though the dispute over the dam was settled, the questions regarding constitutional jurisdiction over water resources remain open and were raised by Alberta First

Nations in the process leading up to the passage of the Safe Drinking Water for First Nations Act11 in 2013. While expressing concerns in an official resolution over the implications of the Safe

Drinking Water for First Nations Act, the Treaty Chiefs of Alberta asserted jurisdiction over use of water resources on Indian reserves. The resolution stated:

The Assembly of Treaty Chiefs of Treaty No. 6, Treaty No. 7 and Treaty No. 8 (Alberta) have full beneficial interest and ownership in the water resources on their lands and rights to govern those water resources and, accordingly, will take all steps and actions necessary to defend those water resources and sources and, accordingly, do not consent to Canada or Alberta enacting legislation and regulation with respect to our water on our lands. 12

In contrast, it is the position of the governments of Canada13 and Alberta, that Alberta has jurisdiction over waters within the province. It has further been the position of Alberta that any

7 Tsuu T’ina, supra note 3 ¶131. 8 See generally Jack Glenn, Once Upon an Oldman (Vancouver: UBC Press, 1999). 9 Ibid at 27. 10 Settlement Agreement dated the 16th day of July 2002 among: Her Majesty the Queen in Right of Canada and The Piikani Nation and Her Majesty the Queen in Right of Alberta. 11 Safe Drinking Water for First Nations Act, SC 2013, c 21. 12 2012 Fall Assembly of Treaty Chiefs Official Resolution R10-2012-09-27 at 4. 13 Ibid at 3.

Aboriginal interest in waters within the province, if ever such an interest existed, has been extinguished.14

This thesis will attempt to reconcile these interests from the perspective of the Canadian legal system. In order to do so, it will first demonstrate that the basis of the Winters decision is inapplicable under the Canadian division of powers through an examination of the legal history of the Crown-Aboriginal relationship, and the Canadian Constitution. By drawing on Canadian case law this thesis will then demonstrate that the government of Alberta has a fiduciary obligation to accommodate water use on Aboriginal reserves in Treaty 7.

This thesis is structured as follows: Chapter two outlines the basis for the Winters decision and the U.S. constitutional structure that forms its foundation, and establishes a foundation for the consideration of the equitable water allocation in Alberta. Chapter three describes the process which gave rise to Treaty 7, and describes the development of Canadian water law and constitutional law which underpin the jurisdictional claims made by Alberta. By comparing U.S. and Canadian constitutional structures, Chapter three demonstrates that the Winters doctrine is incompatible with the Canadian division of powers. Chapter four describes the development of

Canadian fiduciary law in relation to Aboriginal groups. Chapter five concludes that the facts as described in Chapter three and the law as described in Chapter four indicate the existence of a fiduciary obligation, binding on the Crown in right of Alberta as the owner of the property in surface water in Alberta, to accommodate on-reserve water use in Treaty 7, for example, through the establishment of priority allocations for First Nations.

14 Alberta Environment, Water Management in Alberta: Challenges for the Future: Background Papers: Aboriginal Water Issues (Edmonton: Alberta Environment, 1991) vol 3 at 1. 3

Chapter Two: An Introduction to the Equitable Distribution of Surface Waters between Aboriginal and Settler Societies through the Winters Doctrine in the Western United States

2.1 Introduction

This Chapter will introduce the problem of equitable water allocation between Aboriginal and settler societies using the experience of the western United States as an example. It will do this by describing the legal and historical basis of water regulation in the western United States in relation to the Indian reserved rights doctrine, which is also known as the Winters doctrine. The

Chapter will first briefly describe the United States constitutional context in which water regulation takes place, and then describe the unique historical and environmental factors that gave rise to western water law and the Winters doctrine. It will then explain the 1908 Winters decision of the

Supreme Court of the United States and describe how the doctrine has developed since it was established. The Chapter will conclude with an explanation of the doctrine’s contemporary role in

American water law.

2.2 Constitutional basis of water regulation in the United States

A short list of specifically federal powers is set out in Article I Section 8 of the United

States Constitution.15 After the grant of explicit federal powers, state powers are derived from the residual powers not granted to the federal government.16 The ambiguity created by the short list of broad powers granted to the federal government, combined with the supremacy of federal law,17

15 US Const art I, § 8. 16 See US Const amend X: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”; see generally Thomas O Hueglin & Alan Fenna, Comparative Federalism: A Systematic Inquiry, (Toronto: University of Toronto Press, 2006) at 154 [Comparative Federalism]; Frank J Trelease, “States’ Rights vs. National Powers” (1965) 19 Wyo L J 189 at 194. 17 US Const art VI, cl 2 “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land”.

required judicial interpretation of the Constitution to play a pivotal role in the development of the

United States Constitution.18

There is no explicit mention of water in the delegation of authorities between the federal and state governments in the United States Constitution.19 The federal government derives its authority to regulate water primarily from judicial interpretation of the commerce clause and the property clause,20 which grant the federal government powers to regulate inter-state commerce and federal property. Practically, authority over water resources is divided among state, federal and local governments, and there is a long history of federal deference to state administration of private rights in the use of water.21

It should be noted, however, that this deference is influenced by history and that not all states were created in the same way. The original thirteen colonies inherited title from the British

Crown after the American Revolution. They held title to all of their lands when they joined the

Union. The western states, on the other hand, were carved out of federal territories following the transfer of governance of those territories to the Union,22 and generally following land cession treaties with the Indian populations that resided there.23

18 Comparative Federalism supra note 16 at 154. 19 James L Huffman, “Federal Role in Water Resource Management” (2008) 17 NYU Envtl LJ 669 at 673 [Federal Role]. 20 See US Const art III, §8, cl 3, permitting Congress to regulate commerce with foreign nations, among the states and with the Indian tribes; US Const art IV, §3, allowing congress to admit new states, and giving Congress the power to make regulations respecting territory or property belonging to the United States; See also Federal Role supra note 19 at 673. 21 Ibid at 672-73. 22 For example, through the Louisiana Purchase in 1803, the Oregon treaty of 1846 and the Treaty of Guadalupe Hidalgo of 1848, among others. See generally Paul Gates, History of Public Land Law Development (Washington DC: Wm W Gaunt & Sons, 1968) Chapter 5 “Acquisition of the Public Domain” at 75. 23 Felix S Cohen, “Original Indian Title” (1947) 42 Minn. L Rev 28, 34-35.

With this in mind, the next section will outline the creation of the western states, and the incorporation of western water law into state constitutions.

2.3 Creation of the western states and incorporation of prior appropriation water law into state constitutions

The western states were created out of federal territory where water law had developed locally to accommodate local water use.24 A mixture of legal systems dealing with water rights could be found in the west, including: riparianism, derived from English tradition; 25 pueblo/municipal rights, derived from Spanish and Mexican tradition,26 and; prior appropriation doctrine derived from Spanish settlements, Mormon colonization, and the California gold rush.27

There was no one “water law” in the west, for example, prior appropriation and its “first in time first in right” dictum was just one of the approaches taken to water rights in mining camps in

California,28 but between 1850 and 1875 the appropriation doctrine was recognized in some fashion in Arizona, California, Colorado, Montana, Nevada, New Mexico, Wyoming and Utah.29

Under the prior appropriation doctrine of water law, a water right is obtained by someone putting water to some beneficial use, like irrigation or stock watering. The date of the first use of the water is the priority date of the water right, and the right is said to be superior to all subsequent water rights obtained by other water users. In times of shortage, the older, more senior, water users can enforce their water rights against junior water users to ensure that senior water users receive

24 94 CJS Waters §355 Right of appropriation – Origin and basis of right (2014). 25 Wells A Hutchins, Water Rights Laws in the Nineteen Western States (Washington, DC: United States Department of Agriculture, 1971) vol 1 at 180. 26 Ibid vol 2 Chapter 11 “The Pueblo Water Right”. 27 Ibid vol 1 at 160. 28 See Donald J Pisani, "The Origins of Western Water Law: Case Studies from Two California Mining Districts" (1991) 70:3 California History 242-257 at 251 and 255. 29 Supra note 25 vol 1 at 170-171.

their portion of the water flow.30 When senior water users require all the flow of a particular river to meet their established needs, junior water users have no right to receive water.

The federal government recognized local water rights in 1866 to encourage development and settlement of the public lands in its new territories.31 Further, in the Desert Lands Act of 1877,32 the federal government permitted citizens to assert water rights based on reclamation of desert public lands. Water rights to the amount of water actually appropriated were to be recognized while:

all surplus water over and above such actual appropriation and use, together with the water of all, lakes, rivers and other sources of water supply upon the public lands and not navigable, shall remain and be held free for the appropriation and use of the public for irrigation, mining and manufacturing purposes subject to existing rights.33

The Desert Lands Act applied to the states of California, Oregon and Nevada, and the territories of Washington, Idaho, Montana, Utah, Wyoming, Arizona, New Mexico and Dakota.34 It was not only applicable to desert lands, but also to “all the public domain of the states and territories

30 94 CJS Waters §353 Right of Appropriation (2014). 31 Act Granting the Right of Way to Ditch and Canal Owners over the Public Lands, and for other Purposes, c 262 §3, 14 Stat 251 (1866): “wherever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes herein specified is hereby acknowledged and confirmed.”; Hutchins supra note 25 at 172-73: “It proposed no new system, but sanctioned, regulated, and confirmed the system already established…”. 32 An Act to provide for the sale of desert lands in certain States and Territories, c 107, 19 Stat 377 (1877). 33 Ibid § 1. 34 Ibid § 3.

named.”35 By 1900 the prior appropriation system was “dominant on the land and in the minds of westerners”,36 and its principles, in various forms, had been incorporated into state constitutions.37

For example, in 1890 Wyoming joined the Union and incorporated the doctrine of prior appropriation into its constitution through Article 8 Section 1, which stated that “[t]he water of all natural streams, springs, lakes or other collections of still water, within the boundaries of the state, are hereby declared to be the property of the state.”38 Further, Article 8 Section 3 stated that

“Priority of appropriation for beneficial uses shall give the better right. No appropriation shall be denied except when such denial is demanded by the public interests.”39

One year earlier in 1889, Montana had joined the Union, and incorporated the doctrine of prior appropriation into its state constitution. Section 15 of Article III of its constitution stated that:

The use of all water now appropriated, or that may hereafter be appropriated for sale, rental, distribution or other beneficial use and the right of way over the lands of others, for all ditches, drains, flumes, canals and aqueducts, necessarily used in connection therewith, as well as the sites for reservoirs necessary for collecting and storing the same, shall be held to be a public use.40

It was in Montana that the litigation which gave rise to the Winters doctrine took place. In the next section, the basis of the Winters decision will be outlined along with legal commentary that places the decision in context.

35 Harold A Ranquist, “The Winters Doctrine and How it Grew: Federal Reservation of Rights to the Use of Water” (1975) BYU L Rev 639 at 664, citing California-Oregon Power Co v Beaver Portland cement Co 295 US 142 (1935) at 160-63. 36 John Shurts, Indian Reserved Water Rights (Norman: University of Oklahoma Press, 2000) at 41, citing Donald Pisani, “Irrigation, Water Rights, and the Betrayal of Indian Allotment” in Donald Pisani, Water, Land, and Law in the West: Limits of Public Policy, 1850-1920 (Lawrence: University Press of Kansas, 1996). 37 See eg MT Const art 9, § 3 (1889); WY Const art 8, §§ 1, 3 (1890). 38 WY Const art 8, §1. 39 Ibid §3. 40 MT Const art III, §15. 8

2.4 The factual context of the Winters decision

The Fort Belknap Indian Reservation is located about 300km southeast of Blood 148,

Alberta, along the Milk River in the U.S. state of Montana. (See Figure 1)

Figure 1 Location of Fort Belknap Reservation in Relation to Alberta

The Fort Belknap Reservation was created by a series of agreements between the United

States and the Gros Ventre and Assiniboine peoples (among others) beginning in 1855.41 An 1873 agreement set aside that part of Montana approximately north of the Missouri River, south of the

49th parallel, east of the Rockies and to the north-west point of the Dakotas as one large reservation.42 Though only one reservation was set aside, it was understood that different Indian groups were tied to different lands within the reservation.43 Subsequent development pressure led the U.S. to seek to diminish the size of the reservation through agreements, and three reservations, including the Fort Belknap Reservation, resulted when Congress approved those agreements in

1888.44 The Great Northern railroad along the north bank of the Milk River was completed in

1890, and brought with it an influx of settlers and development pressures.45

By spring of 1905, upstream diversions were frustrating the efforts of Superintendent

William Logan to encourage economic development on the Reservation and he wrote to the Bureau of Indian Affairs demanding that the federal government take legal action to defend the water rights of the Fort Belknap Indians which had been recorded under state law in 1898.46

Superintendent William Logan wrote on June 3, 1905:

So far this spring we have had no water in our ditch whatever. Our meadows are now rapidly parching up. The Indians have planted large crops and a great deal of grain. All this will be lost unless some radical action is taken at once to make the settlers above the

41 Shurts supra note 36 at 17. 42 Ibid at 18. 43 Ibid at 18. 44 Ibid at 18. 45 Ibid at 29. 46 On the motivations of Superintendent William Logan see ibid at 33; on the commencement of litigation see ibid at 35.

reservation respect our rights. To the Indians it either means good crops this fall, or starvation this winter.47

The Bureau of Indian Affairs agreed,48 and the U.S. federal government commenced the Winters litigation to protect the Fort Belknap Indians’ prior appropriation interest in the waters of the Milk

River in July of 1905.49

U.S. Attorney Carl Rasch was responsible for the conduct of the litigation through the trial and appellate levels.50 He had earlier in 1905 filed a claim to protect the interest of the Blackfeet

Indians to their waters in Northwestern Montana.51 In his filing for the Blackfeet, he had developed his arguments asserting the superiority of the Indian claim to water rights based on, not just state prior appropriation water law, but also on treaty law, federal law, and common law riparian rights.52

2.5 Lower Court decisions

An injunction preventing the diversion of the waters of the Milk River upstream of the Fort

Belknap Reservation issued on August 8, 1905, based almost entirely on the treaty of 1888.53

Recorded in a Memorandum Order, the Judge wrote:

A fair construction of the preamble and provisions of the treaty is that an essential object thereof was to encourage farming among the Indians. This being correct, notice of conditions of climate and soil of Montana tell us that water for irrigation is indispensable in

47 William R Logan to Francis E Leupp, June 3, 1905, Fort Belknap Indian Agency Papers, box 20, records of the Bureau of Indian Affairs, RG 75, Federal Archives and Records Center, Seattle, cited in Norris Hundley Jr, “The “Winters” Doctrine and Indian Water Rights: A Mystery Re-examined” (1982) 13:1 The Western Historical Quarterly 17, at 20. 48 Ibid at 22-23. 49 Shurts supra note 36 at 35. 50 Ibid at 144. 51 Ibid at 61. 52 Ibid. 53 Ibid at 72. 11

successful farming throughout that portion of Montana wherein the Belknap Reservation lies…

In my judgment, when the Indians made the treaty granting rights to the United States, they reserved the right to the use of the waters of the Milk River, at least to an extent reasonably necessary to irrigate their lands. The right so reserved continues to exist against the United States and its grantees as well as against the State and its grantees. From this it follows that patents if any issued by the Land Department for lands held by defendants are subject to the treaty, and defendants can acquire no rights to the exclusion of the reasonable needs of the Indians. These needs appear to be five thousand inches. To that extent injunction will issue.54

The preliminary injunction was appealed, and affirmed by the Ninth Circuit Court of Appeals on

February 5, 1906.55 A final decree issued at the lower Court, making the injunction permanent later in 1906, and the final decree of the lower Court was affirmed by the Ninth Circuit Court of

Appeals on October 1, 1906.56 The Winters case was argued before the U.S. Supreme Court approximately one year later on October 24, 1907.

2.6 The decision in Winters at the U.S. Supreme Court

The decision in Winters was released on January 6, 1908. According to John Shurts, the foremost legal historian on the Winters decision, there were three analytical steps57 taken by the

Supreme Court in the Winters Case. The first analytical step was an examination of the implied intention of both parties to the 1888 agreement to reserve water for the agrarian purposes of the

Indian Reservation. In the first step, the Court decided that it was the intention of both parties that the Reservation be set aside to convert the formerly nomadic Indians to farmers, and that water

54 Memorandum Order, August 7 1905 in the files of United States v Mose Anderson et al Records of the US District Courts, RG 21 US ninth Circuit, District of Montana, box 6659, folder 747, Regional Achieves, Seattle, cited in ibid at 72-74. 55 Winters v US 143 F 740, 74 CCA 666. 56 Winters v US 148 F 684, 78 CCA 546. 57 Shurts supra note 36 at 150-156. 12

would be required to do so given the conditions of the land. The second analytical step was an examination of the 1888 agreement from the perspective of the Gros Ventre and the Assiniboine.

In this step it was demonstrated that the Gros Ventre and the Assiniboine did not relinquish their rights to the waters as they had habitually known them. In the third analytical step, the Court examined the action of the U.S. government. In this step, the Court decided that the U.S. government had not explicitly acceded to the ability of state water law to extinguish federal water rights. The following sections will set out those parts of the Supreme Court decision that address the above points.

2.6.1 Implied intention of both parties

With respect to the implied intention of both the U.S. government and the Gros Ventre and

Assiniboine, the U.S. Supreme Court looked to the 1888 agreement. The preamble of the agreement stated:

Whereas the reservation set apart by act of Congress approved April fifteenth, eighteen hundred and seventy-four, for the use and occupancy of the Gros Ventre, Piegan, Blood, Blackfoot, River Crow, and such other Indians as the President might, from time to time, see fit to locate thereon, is wholly out of proportion to the number of Indians occupying the same, and greatly in excess of their present or prospective wants; and whereas the said Indians are desirous of disposing of so much thereof as they do not require, in order to obtain the means to enable them to become self-supporting, as a pastoral and agricultural people, and to educate their children in the paths of civilization… it is hereby agreed as follows58

Drawing on this preamble, the Supreme Court recognized that:

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. If they should become such, the original tract was too extensive; but a smaller tract would be inadequate without a change of conditions.

58 An Act to Ratify and Confirm an Agreement with the Gros Ventre, Piegan Blood, Blackfeet, and River Crow Indians in Montana, and for Other Purposes, c 213, 25 Stat, 113 (1888). 13

The lands were arid, and, without irrigation, were practically valueless. And yet, it is contended, the means of irrigation were deliberately given up by the Indians and deliberately accepted by the government. The lands ceded were, it is true, also arid; and some argument may be urged, and is urged, that with their cession there was the cession of the waters, without which they would be valueless, and ‘civilized communities could not be established thereon.’ And this, it is further contended, the Indians knew, and yet made no reservation of the waters. We realize that there is a conflict of implications, but that which makes for the retention of the waters is of greater force than that which makes for their cession. 59

With regard to the implied intention of both the U.S. and the Gros Ventre and Assiniboine, the

U.S. Supreme Court held that the implication that the water of the Milk River were retained was of greater force than the implication that the waters had been ceded. The U.S. Supreme Court based the implication that the waters were retained on the description of the purpose of the Reservation as encouraging a pastoral and agricultural way of life.

2.6.2 The perspective of the Gros Ventre and Assiniboine on water rights

With regard to the perspective of the Gros Ventre and the Assiniboine, the U.S. Supreme

Court stated that:

The Indians had command of the lands and the waters,—command of all their beneficial use, whether kept for hunting, ‘and grazing roving herds of stock,’ or turned to agriculture and the arts of civilization. Did they give up all this? Did they reduce the area of their occupation and give up the waters which made it valuable or adequate? And, even regarding the allegation of the answer as true, that there are springs and streams on the reservation flowing about 2,900 inches of water, the inquiries are pertinent. If it were possible to believe affirmative answers, we might also believe that the Indians were awed by the power of the government or deceived by its negotiators. Neither view is possible. The government is asserting the rights of the Indians. But extremes need not be taken into account. By a rule of interpretation of agreements and treaties

59 Winters supra note 1 at 576.

with the Indians, ambiguities occurring will be resolved from the standpoint of the Indians. And the rule should certainly be applied to determine between two inferences, one of which would support the purpose of the agreement and the other impair or defeat it.60

The U.S. Supreme Court had to choose between two inferences regarding the interpretation of the agreement between the Gros Ventre and the Assiniboine and the U.S. government, and it relied upon the rule of interpretation of Indian treaties, that ambiguities are resolved to the benefit of the

Indians.

2.6.3 Reservation of water rights by the U.S. government

With regard to the reservation of water rights by the federal government, the U.S. Supreme

Court wrote that:

Another contention of appellants is that if it be conceded that there was a reservation of the waters of Milk river by the agreement of 1888, yet the reservation was repealed by the admission of Montana into the Union, February 22, 1889, ‘upon an equal footing with the original states.’ The language of counsel is that ‘any reservation in the agreement with the Indians, expressed or implied, whereby the waters of Milk river were not to be subject of appropriation by the citizens and inhabitants of said state, was repealed by the act of admission.’ But to establish the repeal counsel rely substantially upon the same argument that they advance against the intention of the agreement to reserve the waters. The power of the government to reserve the waters and exempt them from appropriation under the state laws is not denied, and could not be. That the government did reserve them we have decided, and for a use which would be necessarily continued through years. This was done May 1, 1888, and it would be extreme to believe that within a year Congress destroyed the reservation and took from the Indians the consideration of their grant, leaving them a barren waste,—took from them the means of continuing their old habits, yet did not leave them the power to change to new ones.61

60 Ibid at 576-577. 61 Ibid 577.

The Court cited U.S. v Rio Grande Dam & Irrigation Co.62 to support the proposition that the power of the government to reserve the waters could not be denied. The relevant passage from Rio

Grande states that:

In the absence of specific authority from congress, a state cannot, by its legislation, destroy the right of the United States, as the owner of lands bordering on a stream, to the continued flow of its waters, so far, at least, as may be necessary for the beneficial uses of the government property.63

The U.S. Supreme Court decided that the federal government’s creation of the Fort Belknap

Reservation by the 1888 agreement prevented State water appropriation law from destroying the property right of the United States to the waters flowing past the reserved land.

2.6.4 Commentary on the U.S. Supreme Court decision

Shurts contextualizes the development by the U.S. Supreme Court of the reserved rights doctrine by placing it at a time that historians have described as “the most coercive and vicious phase of the allotment and assimilation process, during which non-Indians were most rapacious and successful in stripping western Indians of control over land and other resources and subjecting

Indians to state law and the market economy.”64 In his opinion, the decision turned primarily on the meaning of the 1888 land cession agreement which created the Fort Belknap Reservation.65

But he recognized that “…the terms of the agreement were such that it could be argued that the agreement contained an express reservation of water, an implied reservation of water, or no reservation of water…”66 In attempting to reconcile the case with its various interpretations, he

62174 US 690 (1899) [Rio Grande]. 63 Ibid at 703. 64 Shurts supra note 36 at 5. 65 Ibid at 17. 66 Ibid at 22.

states that “it was far from a contradiction to say that both the Gros Ventre and Assiniboine and the United States had the authority to and did reserve the water.”67

With respect to the idea that the basis of the reserved rights doctrine might be either inherent

Aboriginal rights, or the power of the U.S. over its property, Dan A Tarlock writes that “most commentators read Winters as recognizing rights reserved by the federal government under the

Property power.”68 Tarlock cites William Veeder69 as a source supporting the Aboriginal origin of

Winters rights noting that Paul Bloom,70 is a “forceful” critic of Veeder’s position.

Veeder bases his argument on a combination of the inherent rights of Indians, the treaty power of the U.S. government and the supremacy clause of the United States Constitution.71 He describes the treaty process as one in which “the Indians reserved to themselves the ‘uninterrupted privileges’ essential to their existence in 1855 when the treaty was executed.”72

Bloom’s critique of this position points out that the language of the Winters decision resists this interpretation.73 He points out that the U.S. Supreme Court revisited the Indian reserved rights doctrine in Arizona v California74 in 1963, where it confirmed the plain reading of the Winters decision stating:

The Court in Winters concluded that the Government, when it created that Indian Reservation, intended to deal fairly with the Indians by reserving for them the waters without which their lands would have been useless. Winters has been followed by this Court

67 Ibid at 156, emphasis in original. 68 A Dan Tarlock, Law of Water Rights and Resources (Eagen, Minn:West, 2014) (WL) §9:39. 69 William H Veeder, "Indian Prior and Paramount Rights," (1971) 16 Rocky Mtn Min L Inst 631. 70 Paul L Bloom, "Indian Paramount Rights to Water Use," (1971) 16 Rocky Mtn Min L Inst 669. 71 Veeder states that the “diminution of the vast area once occupied by the Indians as was accomplished by treaty, statute, and contract, did not in any way derogate the dignity of the immemorial title held by the Indians in the streams which arise upon, border upon, traverse, or underlie the lands which they did retain” supra note 69 at 640 and 647. 72 Ibid at 641. 73 Supra note 70 at 675-676. 74 Arizona v California, 373 US 546 (1963).

as recently as 1939 in United States v. Powers. We follow it now and agree that the United States did reserve the water rights for the Indians effective as of the time the Indian Reservations were created.75 (Citations omitted)

Arizona v California affirmed that the legal basis of the Winters doctrine is the federal government’s reservation of waters along with land in order to fulfill the federal purpose of carrying out the terms of Indian treaties. Arizona v California also established that the measure of

Winters rights was the amount of reserved land that could be practicably irrigated.76

2.7 Quantification of the right in Winters and the practicably irrigable acreage standard developed in Arizona v California

Arizona v California was the longest Supreme Court case in American history, lasting from

1952 until 1963.77 The case involved the federal government and the states of Nevada, New

Mexico, Utah, Arizona, and California over the controversy of how much water each state had a legal right to use out of the Colorado River and its tributaries.78 The United States intervened to protect both its own interests, and the interests of twenty-five Indian Reservations in the lower basin of the river.79

A Special Master was appointed to find facts and state conclusions of law, and submit a draft decree.80 The 450-page report of Special Master Simon H Rifkind was released on December 5,

1960. A number of controversies between the parties were canvassed in the report, among them,

75 Ibid at 600. 76 Ibid. 77 Jack L August JR, Dividing Western Waters: Mark Wilmer and Arizona v California (Fort Worth, Texas: TCU Press, 2007) at xvii. 78 Ibid at xviii 79 Ibid at 93. 80 Arizona v California, supra note 74 (Report of Special Master Simon H Rifkind, December 5, 1960, at 2).

the claim of the United States that it had reserved water for use on Indian Reservations within the watershed.81

The Special Master began his analysis of the Indian reserved water rights noting that “In short, the United States has the power to create a water right appurtenant to such lands without complying with state law.”82 The Special Master noted that:

It would be unconscionable for the United States to have coerced or induced Indians onto a Reservation without providing the water necessary to make the lands habitable. I refuse to accept this possibility as to any of the mainstream Indian Reservations since there is no evidence as to any of them that such was the case.

… Also, wherever I have found an intent to reserve water, I have inferred, absent evidence to the contrary, that the reservation was not limited to the needs of the population then resident upon the land, nor to the acreage being irrigated when the reservation was created. I have concluded that enough water was reserved to satisfy the future expanding agricultural and related water needs of each Indian Reservation. 83

And that:

The suggestion is unacceptable that the United States intended that the Indians would be required to obtain water for their future needs by acquiring appropriative rights under state law. The Indians were not an agricultural people and it was necessary for them to develop their agricultural skills after settling on the Reservations. It must have been apparent that if they were thrown into competition with the more advanced non-Indians in a race to acquire rights to water by putting it to beneficial use, they would have lost the match before it was begun.84

Having found that water was reserved, the Special Master turned to the quantification of the amount of water reserved. The Special Master identified the two methods, presented respectively,

81 Ibid at 6. 82 Ibid at 257 83 Ibid at 260. 84 Ibid at 261. 19

by the United States and Arizona, for quantifying the right of the Indians to water: 1) Sufficient water to irrigate all of the practicably irrigable lands in Indian Reservations and to supply related stock and domestic uses, and 2) Sufficient water for the Indians themselves occupying the

Reservations.85 In deciding between the two methods, the Special Master focused on how the population living on a given Reservation would change over time. Given that the population using a Reservation could change over time, the Special Master stated that:

…the most feasible decree that could be adopted in this case, even accepting Arizona’s contention, would be to establish a water right for each of the five Reservations in the amount of water necessary to irrigate all of the practicably irrigable acreage on the Reservation and to satisfy related stock and domestic uses. This will preserve the full extent of the water rights created by the United States and will establish water rights of fixed magnitude and priority so as to provide certainty for both the United states and non-Indian water users.86

The Special master went on to state that:

This does not necessarily mean, however, that water reserved for Indian Reservations may not be used for purposes other than agricultural and related uses. The question of change in the character of use is not before me. I hold only that the amount of water reserved, and hence the magnitude of the water rights created, is determined by agricultural and related requirements, since when the water was reserved that was the purpose of the Reservation.87

The Supreme Court of the United Stated confirmed the Special Master’s findings relating to the quantity of water reserved, stating:

We also agree with the Master's conclusion as to the quantity of water intended to be reserved. He found that the water was intended to satisfy the future as well as the present needs of the Indian Reservations and ruled that enough water was reserved to irrigate all the practicably irrigable acreage on the reservations. Arizona, on the

85 Ibid at 262. 86 Ibid at 265. 87 Ibid. 20

other hand, contends that the quantity of water reserved should be measured by the Indians' ‘reasonably foreseeable needs,’ which, in fact, means by the number of Indians. How many Indians there will be and what their future needs will be can only be guessed. We have concluded, as did the Master, that the only feasible and fair way by which reserved water for the reservations can be measured is irrigable acreage. The various acreages of irrigable land which the Master found to be on the different reservations we find to be reasonable.88

In a 1979 supplemental decree, after setting out that the quantities of the diversions were to be computed by determining the net practicably irrigable acres within an Indian Reservation in accordance with the methods described by the Special Master’s Report to the Court on December

5, 1960, the United States Supreme Court further decreed that:

The foregoing reference to a quantity of water necessary to supply consumptive use required for irrigation… shall constitute the means of determining quantity of adjudicated water rights but shall not constitute a restriction of the usage of them to irrigation or other agricultural application. If all or part of the adjudicated water rights of any of the five Indian Reservations is used other than for irrigation or other agricultural application, the total consumptive use… shall not exceed the consumptive use that would have resulted … had [it] been used for irrigation of the number of acres specified for that Reservation in said paragraphs and supplement and for the satisfaction of related uses.89 (Emphasis added)

After 1979, it was clear that reserved water rights, while quantified on a practicably irrigable acreage standard, were not limited to irrigation or agricultural uses.

88 Supra note 74 at 600-601. 89 Arizona v California, 439 US 419 (1979) at 422-23.

2.8 The role of the Winters doctrine in contemporary American water law

The attitude of the United States Supreme Court towards reserved water rights began to shift in the 1980s.90 Despite the requirement that federal law be applied in determining Indian water rights in state adjudications of Indian reserved water rights, the Wyoming Supreme Court affirmed a lower court decision limiting reserved water rights to agricultural purposes in 1988.91 The United

States Supreme Court affirmed the decision 4-4 decision without a written opinion.92

Despite the ambiguity created by permitting state adjudication of Indian water rights, the recognition of Indian property in waters associated with Indian Reservations places Indian tribes in the U.S. in a different position from Aboriginal groups in other common law jurisdictions such as Australia and Canada. In comparing the contribution of Winters to the protection of Aboriginal interests in the U.S., to the use of custom to protect Aboriginal interests in Australia and Canada,

Tarlock argues that the “hard” property rights93 of the Winters doctrine provide more protection than the contingent usufructory rights associated with traditional use in Australia and Canada.94

Tarlock refers to “the uncertainty inherent in the Winters scope and in the Practicable Irrigated

Acreage (PIA) standard” as “the tribes’ nuclear option”95 and argues that “this gradual (and still

90 Daniel McCool, Native Waters: Contemporary Indian Water Settlements and the Second Treaty Era (Tucson: The University of Arizona Press, 2002) at 15 91 Peggy Sue Kirk, “Cowboys, Indians and Reserved Water Rights: May a State Court Limit How Indian Tribes Use Their Water? In re The General Adjudication of All Rights to Use Water in the Big Horn River System and All Other Sources, State of Wyoming, 835 P2d 273 (Wyo 1992)” (1993) 28 Land & Water L Rev 467 at 470. 92 Ibid at 470; Wyoming v US, 492 US 406 (1989). 93 Dan A Tarlock, “Tribal Justice and Property Rights: The Evolution of Winters v United States” (2010) 50 Nat Resources J 471 at 486. 94 Ibid at 492-93. 95 Ibid at 493.

partial) evolution of the scope of Winters is an example of using open-ended property to incorporate an equity or justice component”96 into the indigenous-settler relationship.

Tarlock argues that the 1973 Report of the National Water Commission recast the Winters doctrine as a reparations doctrine.97 Through settlements beginning in the 1980s, U.S. tribes were able to transform their water rights from being for fixed agricultural purposes, to purposes involving ecosystem restoration and conservation of fisheries in the Pacific Northwest, and to cash for development on Reservation through off-Reservation leasing of water rights in the South-

West.98 By 2002, 17 settlements regarding Indian water rights had been concluded in the U.S. and

18 settlements were in negotiation.99 By 2010, there were approximately 30 such agreements in the western United States.100

2.9 Conclusion

The basis of the Indian reserved rights doctrine in the U.S. is the ability of the U.S. government to reserve water by removing lands from the public domain for federal purposes outside of state appropriation systems. The property clause of the U.S. constitution and the supremacy clause, which renders state law unable to frustrate federal purposes without specific authority from the federal government, are the basis of this ability.

The next Chapter will describe the legal history of water management in southern Alberta, and examine whether the Winters doctrine could form the basis of claim for water rights on reserves in Treaty 7.

96 Ibid. 97 Ibid 496 - 97 98 Ibid at 498. 99 Supra note 90 at 7-8. 100 Robert T Anderson, “Indian Water Rights, Practical Reasoning, and Negotiated Settlements” (2010) 98 Cal L Rev 1133 at 1161. 23

Chapter Three: The Establishment of Canadian Jurisdiction over the Treaty 7 Area and the Development of Water Law in Alberta

Chapter two outlined the basis of the Winters doctrine, which is the foundation upon which water is allocated between settler and indigenous societies in the western United States. This

Chapter will outline the basis of water law in the Canadian province of Alberta in order to establish that the Winters doctrine as described in Chapter two is incompatible with the Canadian division of powers. It will be argued that, due to the unqualified transfer to Alberta of the Crown interest in waters in 1930, the federal government in Canada lacks jurisdiction over the property in water necessary to address unequitable water allocation within Alberta.

The Chapter begins by providing an overview of the origins of the Crown-Aboriginal relationship. It then describes the establishment of Crown jurisdiction over Canada’s Northwest, and explains the development of water allocation law in present day Southern Alberta. It does this through the examination of the assumption of control over water in the Treaty 7 area via the creation of a property interest in water and establishment of the right to divert water through the

North-west Irrigation Act101 in 1894. This Chapter then describes the transfer of jurisdiction over water allocation from the federal government to Alberta via the Constitution Act, 1930.102 Water law in Alberta and water law in the western U.S. described in Chapter two are then compared, to determine whether the Winters doctrine could form the basis of a claim for water rights associated with reserves in the Treaty 7 area.

101 North-west Irrigation Act, SC 1894, c 30. 102 Constitution Act, 1930, 20-21 Geo V, c 26 (UK) Schedule 2 “Alberta”, reprinted in RSC 1985, App II, No 26. 102 The Alberta Natural Resources Act, No 2, SC 1931, c 15. 24

3.1 The basis of the Crown-Aboriginal relationship in Treaty 7

3.1.1 Origins of Treaty policy

When explorers from Europe arrived in the Americas they encountered Aboriginal societies.

These societies had evolved from immigrations to the Americas that had taken place over tens of thousands of years103 before the arrival of Europeans via the Atlantic Ocean. At least 58 different language groups104 and their attendant societies lived across North America.105

In the early days of European settlement of North America, the success and failure of all

European activities depended upon Aboriginal groups.106 The fur trade became central to many

Aboriginal groups’ lives and European technology and goods were adopted by groups across North

America. Similarly, Europeans adopted the technology, knowledge and relationships of Aboriginal groups to facilitate development of the fur trade. Peace treaties and trade agreements between

Europeans and Aboriginal groups were common, and had a basis in Aboriginal culture and tradition.107

In addition to being the foundation of trade, Native societies were pivotal during the entrenchment of European colonies in North America. As European powers vied for control of

North America, military alliances with First Nations were decisive. Indeed, it was the importance

103 Robert C Williams et al “GM allotypes in Native Americans: Evidence for three distinct migrations across the Bering land bridge” (1985) 66:1 American Journal of Physical Anthropology 1; David Reich et al, “Reconstructing Native American population history” (2012) 488 Nature 370. 104 Lyle Campbell, American Indian Languages: The Historical Linguistics of Native America (New York: Oxford University Press, 1997) Chapter 4. 105 For a scholarly interpretation of the legacy of European colonization and impacts on Aboriginal peoples see James S Frideres & René R Gadacz, Aboriginal Peoples in Canada, 9th ed (Toronto: Pearson, 2011) 106 See e.g. JR Miller, Compact, Contract, Covenant (Toronto: University of Toronto Press, 2009) at 11, 31, 91. 107 Ibid at 5: “The commercial agreements that emerged in early New France and then in the Hudson’s Bay Company lands after 1670 were built on a foundation of indigenous treaty-making. European traders who came to the northern part of North America found both pre-existing trade networks into which they had to fit themselves, and pre-contact treaty-making practices that they had to learn and adopt.”

of ensuring that Aboriginal groups in central North America did not engage the British on the western edge of their early American colonies that gave rise to the provisions of the Royal

Proclamation of 1763 respecting Indian title.108 The Royal Proclamation of 1763 has been described as the Indian Bill of Rights.109

The Royal Proclamation of 1763 continued, and made explicit, the policy of the British

Crown regarding Aboriginal peoples in its North American territories, and set out requirements for the acquisition of title to Indian lands: only the Crown could purchase land from Aboriginal groups, and it was required to do so at public meetings called for that purpose.110

Alliances with First Nations continued to be central to the British Empire’s ability to maintain control of British North America against the American Union through the war of 1812.111

But after this war, the “forest diplomacy”112 of the early fur trappers and military leaders that recognized First Nations as powerful and necessary forces for the control of North America, was over time replaced by a “civilization policy” derived from the expectations and practices of increasingly numerous immigrants.113 First Nation populations declined due to disease and

108 Perter A Cumming & Neil H Mickenberg eds, Native Rights in Canada 2 ed (Toronto: The Indian-Eskimo Association of Canada, 1972) at 24 and 26. 109 St Catherine’s Milling and Lumber Co v R, 13 SCR 577 (1887) at 652 where it “along with the Royal instructions given to the Governors as to its strict enforcement” is referred to as the “Indian Bill of Rights”. 110 The Royal Proclamation, 1763 (UK) reprinted in RSC 1985, App II, No 1.; see also supra note 106 at 69-70; Jack Stagg, Anglo-Indian Relations In North America to 1763 and An Analysis of the Royal Proclamation of 7 October 1763 (Ottawa: Research Branch Indian and Northern Affairs Canada, 1981) at 366-67; 111 Millar, supra note 106 at 34, 93. 112 Miller uses this term throughout his work to refer to diplomacy rooted in Aboriginal tradition. Ibid at 24, 42-43, 65. 113 Ibid at 104-05; see also John S Milloy, “The Early Indian Acts: Developmental Strategy and Constitutional Change” in Ian L Getty ed, As Long as the Sun Shines and the Water Flows: A Reader in Canadian Native Studies (Vancouver: UBC Press, 1983) 56 at 56-57.

pressure on food sources and they were viewed by new settlers, not as important allies, but as an impediment to settlement.114

After the war of 1812, and the rise of the “civilization policy” there was an attendant shift in the tone of treaty making.115 With less need for strategic military alliances, treaty making focused more on clearing the land of Indian title to make way for settlers. It became more legalistic and there was greater divergence in the treaties between what was spoken at treaty meetings and what was recorded in the written terms.116 According to J. R. Miller, this was in part caused by the shift from military to civil administrators in the Indian Department.117 These new administrators had little experience with Aboriginal peoples and took an assimilationist approach to Aboriginal relations.118 It was this “assimilationist approach”, ushered in by the Gradual Civilization Act of

1857,119 which was in ascendance over the period spanning the negotiation of the numbered treaties in the North-west Territories, part of which would eventually become Alberta. The next section will describe how the North-west Territories became part of the Dominion of Canada, and how the Numbered Treaties were conducted with the First Nations that lived there.

3.1.2 Purchase and transfer of the North-west Territories

The Constitution Act, 1867, which provided for the union of the Provinces of Canada (upper and lower), Nova Scotia and New Brunswick into the new “Dominion under the Name of

114 Some migratory First Nations competed with settled agriculture. See e.g. Miller supra note 106 at 103, 105. 115 Ibid at 100. 116 Ibid at 100. 117 Ibid at 104-105. 118 Ibid at 105. 119 An Act to encourage the gradual Civilization of the Indian Tribes in this Province, and to amend the Laws respecting Indians, S Prov C 1857 (20 Vict), c 26; See also Milloy, supra note 113 at 56.

Canada”,120 envisioned the admission of additional territories.121 Enumerated among those new territories were the North-western Territory and Rupert’s Land,122 held by the Hudson’s Bay

Company, and which, upon incorporation into the Dominion of Canada, would be referred to as the North-west Territories.123 When the government of the Dominion of Canada sought to incorporate the North-west Territories into the Dominion,124 the parliament of the United Kingdom enacted the Rupert’s Land Act, 1868.125

The Rupert’s Land Act, 1868 permitted the Hudson’s Bay Company to surrender to the

Queen “all or any of the Lands, Territories, Rights, Privileges, Liberties, Franchises, Powers and

Authorities whatsoever granted or purported to be granted” 126 to the company. This surrender was to take place after the terms and conditions governing the admission of the lands into Canada had been approved of by Her Majesty and embodied in an address from both the House of Commons and the Senate of Canada to Her Majesty.127

The Hudson’s Bay Company and officials from the Dominion of Canada attempted to come to terms. After difficult negotiations, an agreement was imposed by the Secretary of State for the colonies, Lord Granville.128 Though he imposed the terms of the agreement, Lord Granville did

120 Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 3, reprinted in RSC 1985, App II, No 5. 121 Ibid, s 146. 122 Ibid. 123 In anticipation that the Rupert’s Land and the North-western Territory would be admitted, An Act for the Temporary Government of Rupert’s Land and the North-western Territory when united with Canada, SC 1869, c 3, reprinted in RSC 1985, App II No 7 was passed. The Act renamed Rupert’s Land and the North-western Territory the North-west Territories upon entrance into confederation. 124 For a description of the process of brokering the deal including the positions of the parties involved see Kent McNeil, Native Claims in Rupert’s Land and the North-western Territory: Canada’s Constitutional Obligations (Saskatoon: University of Saskatchewan Native Law Centre, 1982) [Native Claims]. 125 Rupert’s Land Act, 1868 (UK), 31 & 32 Vict, c 105, reprinted in RSC 1985, App II No 6. 126 Ibid, s 3. 127 Ibid. 128 Native Claims, supra note 124 at 7. 28

not make much provision for the Indians of the territory. He explained this position in a letter to the then Governor General of Canada, Sir John Young:

On one point which has not been hitherto touched upon, I am anxious to express to you the expectations of Her Majesty’s Government – They believe that whatever may have been the policy of the Company, and the effect of their Chartered rights upon the progress of settlement, the Indian Tribes who form the existing population of this part of America have profited by the Company’s rule.

They have been protected from some of the vices of civilization, they have been taught to some appreciable extent, to respect the laws and rely on the justice of the white man, and they do not appear to have suffered from any causes of extinction beyond those which are inseparable from their habits and their climate. I am sure that your Government will not forget the care which is due to those who must soon be exposed to new dangers, and in the course of settlement be dispossessed of the lands which they are used to enjoy[ing] as their own, or be confined within unwontedly narrow limits.

This question had not escaped my notice while framing the proposals which I laid before the Canadian Delegates and the Governor of the Hudson’s Bay Company. I did not however then allude to it because I felt the difficulty of insisting on any definite conditions without the possibility of foreseeing the circumstances under which those conditions would be applied, and because it appeared to me wiser and more expedient to rely on the sense of duty and responsibility belonging to the Government and people of such a Country as Canada.

That Government I believe has never sought to evade its obligations to those whose uncertain rights and rude means of living are contracted by the advance of civilized men. I am sure that they will not do so in the present case, but that the old inhabitants of the Country will be treated with such forethought and consideration as may preserve them from the dangers of the approaching change, and satisfy them of the friendly interest which their new Governors feel in their welfare.129

129 Letter from Lord Granville to Sir John Young (10 April 1869) reprinted in Parliament, “Rupert’s Land and the North-West Territory” by Geo E Cartier & WM MacDougal in Sessional Papers, No 25 (1894) at 38.

The North-west Territories were admitted to Canada in 1870 by imperial Order in Council,130 as permitted by the Rupert’s Land Act, 1868.131

The interests of the Aboriginal peoples of the North-west Territories were taken into account in a vague and general way during the transfer of the territories from the Hudson’s Bay Company to the Dominion. This is reflected by both by the letter of the arbiter of the purchase, Lord

Granville, and by the terms of the imperial Order in Council which admitted the North-west

Territories into the Dominion, and stipulated that the company would not be responsible for Indian claims to compensation.132 The Order contained a copy of the address to Her Majesty the Queen from the Senate and House of Commons whose terms and conditions included that:

upon the transference of the territories in question to the Canadian Government, the claims of the Indian tribes to compensation for lands required for purposes of settlement will be considered and settled in conformity with the equitable principles which have uniformly governed the British Crown in its dealings with the aborigines.133

All parties to the transfer of the Hudson Bay Company lands anticipated the need to deal with the claims of Aboriginal peoples equitably from the outset of the admittance of the North-west

Territories into Confederation.

The area of present day Alberta entered the Canadian federation on July 15, 1870.134 Lord

Granville recognized that owing to “the difficulty of insisting on any definite conditions” with

130 Rupert’s Land and North-western Territory Order (UK), reprinted in RSC 1985, App II No 9. 131 Rupert’s Land Act, supra note 125. 132 Supra note 130 “[a]ny claims of Indians to compensation for lands required for purposes of settlement shall be disposed of by the Canadian Government in communication with the Imperial Government; and the company shall be relieved of all responsibility in respect of them.” 133 Ibid at Schd A. 134 Supra note 130.

respect to the Aboriginal interests involved, the “sense of duty and responsibility belonging to the

Government and people of such a country as Canada” would have to be relied upon to protect those interests. This sense of duty and responsibility was to be the only thing protecting Aboriginal peoples, as groups of distinct peoples, from the dangers, dispossessions and confinements alluded to by Lord Granville until section 35 was included in the Constitution Act, 1982.135 However, it was at least in part Canada’s sense of duty and responsibility, along with the expectations of

Aboriginal peoples themselves and the Royal Proclamation of 1763, that gave rise to the numbered treaty policy that would see treaties negotiated between the Crown and Aboriginal peoples residing across the North-west Territories over a fifty year period spanning from 1871 to 1921.

3.1.3 Numbered Treaty Policy

Alexander Morris, the first Lieutenant-Governor of Manitoba, was responsible for the negotiation of the numbered treaties from their commencement in 1871 to 1876. His interpretation of the purpose animating the treaties is reflected in the dedication of “The Treaties of Canada with the Indians of Manitoba, and the North-west Territories” to the Earl of Dufferin, Canada’s third

Governor-General, which states:

Encouraged by the earnest interest, your Lordship ever evinced, in the work of obtaining the alliance and promoting the welfare of the Indian tribes in the North-west of Canada, and in opening up the Territories for settlement, by obtaining the relinquishment of the natural title of the Indians to the lands of the Fertile Belt on fair and just terms, I have the honor, by your kind permission, to dedicate this collection of the treaties made with them, to your Excellency…136

135 Constitution Act, 1982, s 35, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, stating “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed”. 136 Alexander Morris, The Treaties of Canada with the Indians of Manitoba and the North-west Territories: including the negotiations on which they were based, and other information relating thereto (Toronto: Belfords, Clarke & Co, Publishers, 1880). 31

From the perspective of Alexander Morris, lead negotiator of the numbered treaties from 1871-

1876, the purpose of the numbered treaties was to obtain Aboriginal groups’ alliance, promote

Aboriginal groups’ welfare, and to secure the relinquishment of the “natural title of the Indians” on fair and just terms in order to open the North-west for settlement.

The numbered treaties on the prairies were modeled on the Robinson treaties in Upper

Canada,137 which were concluded in the 1850s in response to development pressure and First

Nation demands for compensation for development activities on their lands.138 The Robinson treaties were unique among the treaties that had been negotiated up to that point Canadian history, in that they were the first to deal with large territories.139 They were also the first to contain, at

First Nations’ insistence, land reserves, and recognition of hunting and fishing rights.140 These key features formed the basis of the numbered treaties which cover territory as depicted in Figure 2.

137 Ibid at 16. 138 Miller supra note 106 at 110-14; John L Tobias, Canada’s Subjugation of the Plains Cree, 1879 – 1885 (1983) 64:4 Canadian Historical Review 519 at 520. 139 This was at the insistence of Aboriginal groups, who recognized the impacts settlers were having on their way of life. See e.g. Miller supra note 106 at 116-18. 140 Ibid. 32

Figure 2 Map of Numbered Treaties141

141 Natural Resources Canada, “Historical Indian Treaties” online: < http://ftp2.ctis.nrcan.gc.ca/pub/geott/atlas_tif/atlas6/Reference/English/treaties.pdf >. 33

There are 11 numbered treaties in Canada.142 Their establishment generally followed the opening of the west during Canada’s rush to meet the promise of connecting the province of British

Columbia with the eastern provinces by rail.143 The government-recorded texts of the numbered treaties all generally follow the same formula: the cessation of land rights, the recognition of hunting and fishing rights, and the setting aside of reserves. Although the two goals of 1) clearing the land of Indian title and 2) ensuring that railroad and settler development would be uncontested by Aboriginal groups were the government’s reasons for treating with each of the Aboriginal groups of the prairies, the meaning of the treaties to Aboriginal groups was more varied, ranging from agreements to share the land, to agreements concerning peace.144

3.1.4 Treaty 7 text, context and aftermath

In the autumn of 1875, the Siksika (Blackfoot), Kainai (Blood), Piikani (Peigan) and Tsuu

T’ina (Sarcee) nations, those of the Blackfoot confederacy whose territory encompassed what is today southern Alberta, prepared a memorial entreating the Lieutenant Governor of the Northwest

Territories, Alexander Morris, for a meeting to stop the invasion of their territory “till our treaty be made with the government.”145 The commissioners representing the Government of Canada

142 See generally Aboriginal Affairs and Northern Development Canada. “Historic Treaties” Online: < http://www.aadnc-aandc.gc.ca/eng/1100100028574/1100100028578>. 143 “The Government of the Dominion undertake[s] to secure the commencement simultaneously, within two years from the date of the Union, of the construction of a railway from the Pacific towards the Rocky Mountains, and from such point as may be selected east of the Rocky mountains, towards the Pacific to connect the seaboard of British Columbia with the railway system of Canada; and further to secure the completion of such railway within ten years from the date of the Union” British Columbia Terms of Union, reprinted in RSC 1985, Appendix II No. 10. 144 See generally John Leonard Taylor, “Two Views on the Meaning of Treaties Six and Seven” in Richard T Price, ed, The Spirit of the Alberta Indian Treaties 3d ed (Edmonton: University of Alberta Press, 1999) at 44. 145 Hugh A Dempsey, Treaty Research Report: Treaty Seven (Ottawa: Treaties and Historical Research Centre, 1987), at 10 citing Provincial archives of Manitoba, Alexander Morris Papers L/G, MG 12, B1 No 1265, Memorial, Blackfoot chiefs to Lieut-Gov Alexander Morris, March 20, 1876; Transcript of the memorial reprinted in Treaty 7 Elders and Tribal Council, The True Spirit and Original Intent of Treaty 7 (Montreal: McGill University Press, 1996) at 276.

during Treaty 7 were David Laird, Lieutenant Governor of the Northwest Territories, and Colonel

Macleod, Commissioner of the Northwest Mounted Police.146 Laird had assisted Commissioner

Alexander Morris147 at Treaty 4 in 1874,148 and it was perceived that the presence of Colonel

Macleod would facilitate the negotiations, owing to the positive role the Northwest Mounted

Police played in the territories at that time.149 The commissioners arrived to negotiate the Treaty in September of 1877,150 and met with the tribes of the Blackfoot Confederacy as well as the Stoney

Nakoda Nation,151 which was then a traditional enemy of the Blackfoot Confederacy.152

3.1.4.1 Text

The written version of the Treaty states that:

the Blackfeet, Blood, Piegan, Sarcee, Stony and other Indians inhabiting the district hereinafter more fully described and defined, do hereby cede, release, surrender, and yield up to the Government of Canada for Her Majesty the Queen and her successors for ever, all their rights, titles, and privileges whatsoever to the lands included within the following limits153

The Treaty assures the right to pursue the vocation of hunting over the tract surrendered, stating:

And Her Majesty the Queen hereby agrees with her said Indians, that they shall have right to pursue their vocations of hunting

146 Dempsey, ibid at 14. 147 Alexander Morris was a central figure in annexation and early organization of the NWT, negotiating treaties 3-6. He was Lieutenant Governor of Manitoba and the Northwest Territories from 1872 until 1876 when the NWT received its own Lieutenant Governor and Morris continued on as the LG of Manitoba until 1877. By the end of 1878 he was back in Ontario, serving as a member of the Legislative Assembly. See Robert J Talbot, Negotiating the Numbered Treaties (Saskatoon: Purich, 2009) at 51, 118 and 164. 148 Ibid at 81. 149 Dempsey, supra note 145 at 7-8. 150 Ibid at 15 and 18. 151 Note that “Stony”, as it appears in the Text of Treaty 7, Appendix 1, is correctly spelled “Stoney”. 152 Treaty 7 Elders, supra note 145 at 113. 153 Treaty 7, reprinted in Canada, Indian Treaties and Surrenders: From 1680-1890 (Toronto: Coles Publishing, 1971) vol II at 56.

throughout the Tract surrendered as heretofore described, subject to such regulations as may, from time to time, be made by the Government of the country, acting under the authority of Her Majesty and saving and excepting such Tracts as may be required or taken up from time to time for settlement, mining, trading or other purposes by Her Government of Canada; or by any of Her Majesty's subjects duly authorized therefor by the said Government. 154

One reserve for the Blood, Sarcee, and Blackfoot was set aside, one for the Piegan, and one for the Stoney Nakoda.155 The Treaty reserved to the Crown:

from all the Reserves hereinbefore described, the right to navigate the above mentioned rivers, to land and receive fuel cargoes on the shores and banks thereof, to build bridges and establish ferries thereon, to use the fords thereof and all the trails leading thereto, and to open such other roads through the said Reserves as may appear to Her Majesty's Government of Canada, necessary for the ordinary travel of her Indian and other subjects, due compensation being paid to individual Indians for improvements, when the same may be in any manner encroached upon by such roads.156

The Treaty provided for annuities,157 as well as gifts,158 ammunition,159 tools, teachers, and livestock.160 The Treaty states that “if any band desire to cultivate the soil as well as raise stock” it would receive the tools and seed needed to do so.

154 Ibid. 155 Ibid at 134 and 137; By 1880, the Bloods and Sarcee would reject the reserves set aside by the original treaty at Blackfoot Crossing and select new reserves near the Belly River and Fort Calgary. New treaties were signed on June 27, 1883 and July 2 1883, see generally Dempsey supra note 145 at 48-49. 156 Treaty 7, supra note 153. 157 $25 for Chiefs, $15 for minor Chiefs, $5 for everyone else. 158 $12 each at the time of signing. 159 The ammunition provision, providing that $2000 should be spent annually on ammunition to be distributed among the Indians, was the subject of a specific claim against the federal government, as it had failed to provide it since the 1880s. The claim was settled in 1973 for $250 000, see Dempsey supra note 145 at 51. 160 Two cows for every family of more than five, 3 for families greater than 10, and one bull per minor chief.

Subsequent to the signing of the Treaty, the Sarcee and Blood bands expressed desire to have their reserves relocated. This process and the resulting reserves of southern Alberta are described below in section 3.1.4.3.

The final clause of the Treaty is a promise to abide by the law in force in the country ceded.

It states that the signatories “promise and engage to strictly observe this Treaty, and also to conduct and behave themselves as good and loyal subjects of Her Majesty the Queen,” obey the law, maintain peace and good order between themselves, other tribes, and other subjects, and refrain from interfering with property and persons in the tract ceded.161 For the full text of Treaty 7 see

Appendix 1.

3.1.4.2 Context

Despite the clarity suggested by the text of the written treaty, it is not clear that either side of the treaty negotiations managed to convey to the other what the treaty meant to them. For instance, Commissioner Laird only mentioned the Indian Act, which had consolidated the laws respecting Indians and Indian lands less than one year before the negotiation of Treaty 7,162 with respect to trespass on reserves and not in relation to the significant curtailment of autonomy that it would involve for First Nation treaty signatories. 163 Historian Hugh Dempsey has highlighted the difficulty in translation at the treaty negotiation, and more fundamentally, the difficulty communicating the central concept of Indian title in relation to land ownership arising from poor translation.164 In a letter written in 1879, Constantine Scollen, a Catholic priest present at the signing of Treaty 7, described the lack of consensus reached at Treaty 7 negotiations clearly:

161 Treaty 7, supra note 153. 162 The Indian Act 1876, SC 1876, c 18. 163 Miller supra note 106 at 181-182. 164 Dempsey supra note 145 at 41 – 44. 37

Did these Indians, or do they now, understand the real nature of the treaty made between the Government and themselves in 1877? My answer to this question is unhesitatingly negative, and I stand prepared to substantiate this proposition. It may be asked: If the Indians did not understand what the treaty meant, why did they sign? Because previously to the treaty they had always been kindly dealt with by the Authorities, and did not wish to offend them; and although they had many doubts in their mind as to the meaning of the treaty, yet with this precedent before them, they hoped that it simply meant to furnish them with plenty of food and clothing, and particularly the former, every time they stood in need of them; and besides this, many outside influences were brought to bear upon them; but I repeat, they were not actuated by any intuitive comprehension of what they were called upon to do. 165

There are several works which describe the First Nation perspective of the meaning of Treaty

7.166 These works generally outline that the understanding of the signatory First Nations was that the treaty concluded with Laird was a peace treaty, rather than a treaty which ceded rights to land.167 There is no record of anyone explaining what land surrender was or meant.168 From the perspective of Treaty 7 First Nations, the purpose of the Treaty was “to share our lands with the

Queen’s people in exchange for a number of rights.”169

It has been written that “what is clear is that there is no agreed-upon interpretation of Treaty

7; nor is there agreement on what motivated both sides to agree to the treaty.”170 That being said, understanding the possible motivations of the parties entering into Treaty 7, helps to place it in context. Four basic goals of Aboriginal people in negotiating the treaties were: to secure physical

165Letter from Constantine Scollen to A.G. Irvine (13 April 1879), RG 10, file 14,924 cited in Dempsey, supra note 145 at 41. 166 See e.g. Price supra note 144 and Treaty 7 Elders supra note 145. 167 Treaty 7 Elders supra note 145 at xi, 314, 317; John Leonard Taylor supra note 144. 168 Treaty 7 Elders supra note 145 at 131, 134, 323-326. 169 Ibid at 314. 170 Ibid at 199.

survival; to secure peaceful relations; to ensure cultural and spiritual survival, and; to transition to a new way of life.171 Five goals of the Crown in negotiating the treaties were: to acquire legal title to land; to encourage immigration; to peacefully and at least cost remove Aboriginal populations from the land to encourage homesteading; to prevent American expansion, and; to respond to the requests of the Aboriginal population.172

Although the numbered treaties were very general in their scope, they did outline some specific commitments as described above, among them: hunting rights, reserves, payments, and the general agreement to comply with the laws of Canada. The numbered treaties formally established a relationship between the Aboriginal signatories and the Crown and promised reserves in which the Aboriginal signatories would hold a collective interest. The parameters of this relationship continue to develop today.

3.1.4.3 Selecting and setting aside reserves

The setting aside of the reserves promised in the text of Treaty 7 took place over several years. The Indian Act, 1876 defined a reserve as:

any tract or tracts of land set apart by treaty or otherwise for the use or benefit of or granted to a particular band of Indians, of which the legal title is in the Crown, but which is unsurrendered, and includes all the trees, wood, timber, soil, stone, minerals, metals, or other valuables thereon or therein.173

Modern cases have suggested that there is and was “no single procedure for creating reserves”.174

Essential elements of the reserve creation process include an act by the Crown setting aside land

171 Ibid at 210. 172 Ibid at 211. 173 The Indian Act 1876, SC 1876, c 18 s 3(6). 174 Ross River Dena Council Band v Canada, 2002 SCC 54 ¶67.

for use by an Indian band, and the intention on the part of the Crown for that land to be an Indian reserve.175 Orders-in-Council are “the most common and undoubtedly best and clearest procedure used to create reserves.”176

As mentioned above, Treaty 7 stated that three reserves would be established: One for the

Blackfoot, Blood and Sarcee Indians, one for the Peigan, and one for the Stoney.177 Subsequent to the signing of Treaty 7, both the Blood and Sarcee (Tsuu T’ina) wished to relocate their reserves.

As a result, there were to be five reserves in southern Alberta. These reserves were confirmed in

1889 by Order-in-Council,178 and though the exact date of their establishment is difficult to discern given the variety of methods courts recognize for their establishment, they were likely established earlier; in the case of the Blood reserve, by 1882.179 The reserves in Treaty 7 as they exist at present are depicted below in Figure 3.

175 Ibid. 176 Ibid. 177 See supra note 155 and accompanying text; Treaty 7, supra note 153. 178 Indian Reserves, Manitoba and Northwest Territories covered by Treaties 4, 6, 7 and part of No. 2 - Supt Genl 1889/05/15 recs confirmation of, PC 1889-1151 online: Library and Archives Canada . Also available in RG2, Privy Council Office, Series A-1-a, For Order in Council see volume 539, Reel C-3400. 179 See Indian Claims Commission, Blood Tribe/Kainaiwa Big Claim Inquiry (Ottawa, March 2007) at 72 finding that the Blood reserve was established by 1882. 40

Figure 3 First Nations' Reserves in Southern Alberta

Each of the major reserves of Treaty 7 is bisected or bordered by a tributary (or tributaries) of the South Saskatchewan River. From west to east, the Bow River bisects Stoney 142, 143 and

144. The Elbow River bisects Tsuu T’ina 145. The Oldman River bisects Piikani 147. Blood 148 is bordered by the Belly River, the St Mary’s River and the Oldman River. Siksika 146 is bisected by the Bow River.

The relinquishment of Indian title to the Treaty 7 area and the establishment of reserves paved the way for the settlement of modern day southern Alberta. The rapid changes experienced by the First Nations of Treaty 7 are briefly outlined below.

3.1.4.4 Treaty aftermath

Famine hit Blackfoot country by the winter of 1878-79.180 By 1880 buffalo in the Blackfoot territory had been eradicated,181 starvation and disease were common,182 and the freedom and independence of Aboriginal groups was greatly curtailed.183 The federal response to these famine conditions gave rise to a farming policy that would see farming instructors sent to reserves to assist in the transition from a hunting society to an agrarian one.184 The federal policy of rapid settlement of the North-west Territories had little to do with Aboriginal people beyond the surrender of their

180 Sarah Carter, Aboriginal People and Colonizers of Western Canada to 1900 (Toronto: University of Toronto Press, 1999) at 99. 181 Ibid at 95; For a description of the end of the buffalo see generally, David D Smits, “The Frontier Army and the Destruction of the Buffalo: 1865-1883” (1994) 25:3 The Western Historical Quarterly 312. 182 Particularly tuberculosis, see J W Daschuk, Paul Hackett & Scott Macneil, “Treaties and Tuberculosis: First Nations People in late 19th-Century Western Canada, a Political and Economic Transformation” (2006) 23:1 Canadian Bulletin of Medical History 307, at 316 to 318. 183 Carter supra note 180 at 100. 184 Sarah Carter, Lost Harvests: Prairie Indian Reserve Farmers and Government Policy (Montreal: McGill-Queen's University Press, 1990) at 82.

lands.185 Farming was seen to offer a “secure and decent life”186 and offered a way to limit government expenditures in responding to famine.187

3.1.5 Early farming activity on reserve land

It was the policy of the Dominion government to develop self-sufficiency among the Indians by encouraging farming on reserve.188 Policy directions changed over the years, but generally the encouragement of farming among Aboriginal peoples was pursued even as it was not adequately supported.189

Historian Kenichi Matsui has described some of the early agrarian activity on the Tsuu T’ina and the Siksika reserves.190 There was some success with irrigation in the early days of such activity in Alberta. The Governor in Council approved the allocation of about $3000 from the

Blackfoot (Siksika) capital account for the development of irrigation on the Blackfoot reserve in

1893. The minutes of the Order in Council meeting, reproduced in Appendix 2, recorded the following:

The superintendent general is of opinion that the best use which could be made of this money, in the interest of the Indians, would be to spend it in irrigating their reserve which owning to lack of moisture is not in its present condition well adapted for farming. Irrigation would make the land fertile and thus greatly increase the value of the reserve, besides rendering it a much easier matter to lead the [B]lackfoot Indians to adopt agricultural pursuits.191

185 Ibid at 22. 186 Ibid. 187 Ibid at 83. 188 Hana Samek, The Blackfoot Confederacy 1880-1920: A Comparative Study of Canadian and US Indian Policy (Albuquerque: University of New Mexico Press, 1987) at 64-65, 75. 189 Ibid at 76-77. 190 Matsui, supra note 2 at 88-113. 191 Blackfoot Indians - S.G.I.A. [Superintendent General of Indian Affairs] 1893/10/23 recds. [recommends] expendr. [expenditure] portion of capital on irrigation of reserve, PC 1893-2809, (approved 28 Oct 1893) online: Library and

An irrigation ditch was completed on the Siksika reserve in 1896, and in 1897 the

Department of Indian Affairs (DIA) obtained a water license to irrigate 2 200 acres.192 However, the completion of the irrigation ditch corresponded with a return of wet weather and for a variety of reasons, over a period of years the works fell into disuse.193 The DIA decided to cancel the license without involving the Siksika in the decision by 1912.194

Early recognition of the value of irrigation waters to reserve lands was not limited to the executive branch of the Canadian government. Indian Agent R.N. Wilson recognized the need to protect Blood reserve water rights as early as 1894.195 Wilson recognized the need to ensure that

Blood reserve water rights did not become subject to other water users’ rights and requested a survey of the Blood reserve in 1905 to support the construction of a canal from the Belly River.196

However, the prolonged survey of the reserve frustrated efforts to register water allocations.197

Wilson accused the Department of Indian Affairs of gross neglect with respect to its failure to protect the Blood’s interest in surface waters.198 The Indian department at the time, however, disagreed with the Agent about the importance of such action.199 The expenditure of public monies

Archives Canada . Reproduced in Appendix 2. 192 Irrigation licence, Dept. [Department of] Indian Affairs, water from Bow River to irrigate Blackfoot Indian Reserve - Min Int [Minister of the Interior] 1897/02/20 recs [recommends], PC 1897-0495. online: Library and Archives Canada . Also available in RG2, Privy Council Office, Series A-1-a, For Order in Council see volume 729, Reel C-3653. 193 Matsui supra note 2 at 107-08; see also text at footnote 84 indicating that unfair charging of tolls by Indian agent Wheatley contributed to the discouragement of water use by the Siksika. 194 Ibid at 111. 195 Samek supra note 188 at 78. 196 Ibid. 197 Ibid at 79. 198 Ibid. 199 Ibid.

on the development of on-reserve irrigation was perceived by some as an unwarranted enrichment of Indians that could be paid for through surrender of reserve lands.200

3.1.6 Conclusion

Section 3.1 has outlined the basis of the Crown-Aboriginal relationship in the Treaty 7 area of Alberta. It has described the transfer of the North-west Territories from Hudson’s Bay Company control to the Dominion of Canada (Section 3.1.2), as well as the origins of treaty policy (Section

3.1.1) and the signing of Treaty 7 (Section 3.1.4). It has shown that the reserves of Treaty 7 were established by at latest 1889 through Order in Council, but likely earlier owing to the fact-based test for the establishment of reserves (Section 3.1.4.3). It has been established that the Governor in Council recognized that irrigating reserve lands would increase their value as early as 1893.

Finally, it has been shown that it was recognized by at least 1905 that a surface water allocation scheme based on temporal priority of application would subject on-reserve water use and development to off-reserve water use (Section 3.1.5).

The next section sets out the establishment, by the federal government, of the water allocation regime under the North-west Irrigation Act of 1894.

3.2 Early water regulation in the Treaty 7 area

3.2.1 Law at admittance of the North-west Territories

All laws in force in the North-west Territories at the time of the Territories’ admission to

Canada remained in force to the extent that they were consistent with the Constitution Act, 1867 and with the terms governing the admittance of the Territories approved by Her Majesty.201

200 Ibid. 201 Temporary Government of Rupert’s Land Act, SC 1869, c 3 s 5 reprinted in RSC 1985, App II, No 7.

The law with respect to water in the North-west was a mixture of British, local and common law.202

This law was subject to be changed by the federal Parliament according to the authority granted by the Constitution Act, 1867,203 and was changed when the federal government recognized that irrigation law was required.

3.2.2 The need for irrigation law in the North-west Territories

A period of drought beginning in 1887 caused agitation by ranching and farming interests for irrigation law.204 There was great reluctance on the part of the Dominion Parliament to admit publically that the North-west would require irrigation due to the possible deterrence of prospective settlers.205 The newly created legislature of the North-west Territories struck a committee to advise the Dominion government of the merits of irrigation.206

William Pearce, the Superintendent of Mines for the Department of the Interior, had been addressing the subject of irrigation in the North-west for the Department of the Interior since

1885,207 and had suggested to T. Mayne Daly, the Minster of the Interior, as early as 1892 that an act coordinating irrigation was desirable.208 The common law of riparian rights was perceived as

202 Gerard V La Forest, Water Law in Canada: The Atlantic Provinces (Ottawa: Information Canada, 1973) at 3. 203 Constitution Act, 1867, supra note 120, s 129 “…all Laws in force in Canada, Nova Scotia, or New Brunswick at the Union… shall continue in Ontario, Quebec, Nova Scotia, and New Brunswick respectively, as if the Union had not been made; subject nevertheless… to be repealed, abolished, or altered by the Parliament of Canada, or by the Legislature of the respective Province, according to the Authority of the Parliament or of that Legislature under this Act”. 204 David R Percy, “Water Rights in Alberta” (1977) 15 Alta L Rev 142 at 144; Parliament, “Report of the Superintendent of Mines on Irrigation in the North-west Territories” by WM Pearce in Sessional papers, No 13 (1895) at 31 stating “During the early part of 1894 the agitation was continued throughout the territories in irrigation matters; in some cases it was worked up on account of personal interests, but generally it was maintained by the ranching and farming population of the territories, who felt that the question at issue was of the utmost importance to the future prosperity of the country”. 205 CS Burchill, “The Origins of Canadian Irrigation Law” (1948) 29:4 The Canadian Historical Review 353 at 358. 206 Ibid at 359. 207 Pearce supra note 204 at 30. 208 Ibid at 31. 46

a barrier which would prevent large-scale schemes from maximizing water use throughout the territories.

Riparian law has been summarized as follows:

Basically, water rights are restricted to those who own property abutting upon bodies of water. Each riparian owner is entitled to receive the flow of water to his property undiminished in quantity and unimpaired in quality, subject to the right of upstream riparians to abstract sufficient water for their domestic purposes. In addition, upstream riparians are entitled to use water for other than domestic purposes, provided that they do not diminish perceptibly the flow of the stream and thereby interfere with the rights of other riparians. In this way limited upstream development of water for uses such as mills or irrigation can be permitted, but only so long as the consumption involved does not cause a noticeable reduction in the downstream flow. Although on the face of it this rule sets a very strict standard which would permit only minor upstream abstractions, in practice it has been mitigated by the application of the principle de minimis non curat lex. All uses of water, whether for domestic or other purposes, are restricted to the riparian tenement and cannot readily be transferred to other land even with the consent of the riparian owner.209

Alastair Lucas notes that riparians could also use water for “extraordinary” purposes including large-scale irrigation and manufacturing so long as the water was returned to the stream substantially undiminished in quantity and quality.210

The prospect of increased population, and the growing recognition of how drought-prone parts of the North-west Territories could be, motivated the Deputy Minister of the Department of the Interior to advocate for the abolition of riparian rights in his 1893 report to the Minister:

It would seem to be expedient, therefore, that the necessary steps should now be taken to declare the natural waters of the North-west to be the property of the Crown before the country becomes settled and riparian rights have been acquired in the region where irrigation

209 Percy, supra note 204 at 143. 210 Alastair R Lucas, Security of Title in Canadian Water Rights (Calgary: Canadian Institute of Resources Law, 1990) at 5-6. 47

can profitably be applied. This substantially is a proposition to abolish riparian rights in the North-west in so far as future grants of land from the Crown are concerned, but although legislation to this effect is now being mooted for the first time in this country, Canada will not be the first of Her Majesty’s dominions to adopt the principle, for Australia has already acknowledged by legislation, as has the Congress of the United States of America, that in the [foothills] of the mountains the water is more valuable than land.211

According to scholar David R. Percy, the development of irrigation law in Canada was heavily influenced by the experiences of two jurisdictions: the Australian colony of Victoria, and the U.S. state of Wyoming.212 Percy writes that there were three main forces driving the development of a water allocation scheme: 1) riparian law prevented the use of water on lands not adjacent to a water source; 2) major consumptive use of water was not permitted under riparian law, and; 3) when droughts occurred there was no priority system for water use. 213

In introducing the North-west Irrigation Act for first reading, The Minister for the Interior,

The Honourable T. Mayne Daly, told the House that “we have adopted some of the provisions of the Australian measure”.214 His bill adopted almost verbatim the law of the Australian colony of

Victoria that vested all water rights in the Crown.215 Because the main provisions of the Canadian irrigation act so closely resembled those that had been enacted by the colony of Victoria,216 and

211 Parliament, “Annual Report of the Department of the Interior for the year 1893” by AM Burgess in Sessional Papers, No 13 (1894) at xxxii. 212 Percy, supra note 204 at 145; See also Charles Wilkinson, Crossing the next Meridian Land Water and the Future of the West (Washington, DC: Island press, 1992) at 238 stating that Wyoming was the first state to mandate that water appropriations could only be obtained by permit. The 1890 constitution stated that “the water of all natural streams, springs, lakes or other collections of still water, within the boundaries of the state, are hereby declared to be the property of the state.”; See also Sara Michaels & Rob de Loë, “Importing Notions of Governance: Two Examples from the History of Canadian Water Policy” (2010) 40:4 American Review of Canadian Studies 495. 213 David R Percy, The Framework Of Water Rights Legislation In Canada (Calgary: Canadian Institute of Resources Law, 1988) at 4-5. 214 House of Commons Debates, 7th Parl, 4th Sess, vol 38 (5 June 1894) at 3670 (T Mayne Daly). 215 Michaels & de Loë, supra note 212 at 498. 216 See e.g. ibid; Burchill supra note 205.

because the debate surrounding the Canadian Act was limited by the lack of familiarity with irrigation in the House,217 an overview of the motivating factors which gave rise to The Irrigation

Act 1886218 in the colony of Victoria will be presented in the next section to outline the main concerns its provisions were developed to address.

3.2.3 Water Law in the colony of Victoria Australia: The model adopted in the North-west Territories

Alfred Deakin, Chief Secretary and Minister of Water Supply, championed water law reform in the British colony of Victoria in 1886.219 Victoria’s water policy had grown out of local government acts that gave jurisdiction over water resources to local government.220 The first irrigation law in the colony of Victoria was the Irrigation Act of 1883,221 which was based “almost entirely” on an act from California.222 The purpose of the proposed change in 1886 was to “give us in one handy Statute the whole of the law relating to the domestic supply of water.”223 Another purpose of updating the law in 1886 was to prevent the rise of “small schemes” which could render larger schemes unprofitable.224 It was believed imperative that the comparatively scarce (to the

United States) water resources of Victoria be used “to the fullest possible extent.”225 Deakin had undertaken a review of practices in the western United States and produced a report titled

“Irrigation in Western America” in 1885 as part of a Royal Commission set up by the colony of

217 Supra note 214, T Mayne Daly stating: “This Bill covers thirty-five clauses and deals with a matter entirely new to the members of this House.” 218 The Irrigation Act 1886 (Vic). 219 Burchill, supra note 205 at 357 220 Austl, Victoria, Legislative Assembly, Parliamentary Debates (24 June 1886) at 420 (Mr Alfred Deakin). 221 Ibid at 424. 222 Ibid at 424. 223 Ibid at 421-22. 224 Ibid at 430. 225 Ibid at 427.

Victoria.226 Members of the Royal Commission had direct experience with water regulation in

India,227 where the Crown had claimed the right to surface waters since at least 1873,228 thereby preventing the application of riparian common law.

In a speech to the legislative assembly of Victoria, Deakin explained what he hoped the consolidating Act would accomplish:

The control of Parliament has been somewhat undefined in regard to the waters of the colony. The Bill sweeps away all ambiguity on the subject; it declares that, unless the contrary be shown, the water in any lake, stream, or river belongs to the State, and it throws upon any one claiming water, except the State, the onus of proving his claim; in fact, it starts with the cardinal doctrine that the water in any lake, stream, or river belongs to the State, until the State itself has specifically made away with it.229

The enactment of The Irrigation Act 1886, consolidated the jurisdiction over water in the colony of Victoria which had been divided between different ministries depending on purpose of the water use.230 After the passage of the Act, one department would be responsible for managing the diversion of water for all purposes.231

The discussion above demonstrates that it was the belief of Deakin that English riparian law was not suited to the water-short climate in the colony of Victoria. Through The Irrigation Act

226 Deakin, Alfred, Irrigation in western America, So Far As It Has Relation to the Circumstances of Victoria: A Memorandum for the Members of the Royal Commission on Water Supply (Melbourne: Government Printer, 1885). 227 Supra note 220 at 423. 228 Northern India Canal and Drainage Act, 1873 Act VIII; the preamble to which stated, “Whereas, throughout the territories to which this Act extends, the Provincial Government is entitled to use and control for public purposes the water of all rivers and streams flowing in natural channels, and of all lakes and other natural collections of still water…” 229 Supra note 220 at 437. 230 Ibid at 440, stating that “The Minister of Lands can grant licences for the diversion of water from streams for mills and other purposes, and the Minister of Mines can grant licences for the diversion of water for mining purposes.” 231 Ibid. 50

1886, he hoped to make maximum use of available water. He aimed to do this through the abolition of riparian rights and vesting in the Crown of the property in water.

Deakin’s approach was adopted by the federal government in Canada’s North-west

Territories in 1894 as described below.

3.2.4 The North-west Irrigation Act and the creation of a property interest in water

As indicated in the introduction to Chapter three, this section will examine the federal government’s assumption of control over surface water in the North-west Territories through the creation of the right to divert water and the creation of a property interest in water via The North- west Irrigation Act.232 This section will describe the development of The North-west Irrigation Act in 1894, its amendment in 1895,233 and its consolidation in 1898,234 in relation to the sections which purported to create a property interest in surface waters. It was the property interest of the federal Crown under The North-west Irrigation Act, 1898 that was transferred through the

Constitution Act, 1930 (as amended by the NRTA of 1938) to Alberta, as will be discussed further below in section 3.3.

3.2.4.1 Bill 134, 1894

Bill 134 “An Act respecting Irrigation in the North-west Territories” was introduced to the

House of Commons on June 5, 1894 as the “Dominion Irrigation Act”.235 At second reading, Bill

134 was referred to as “respecting the utilization of the waters of the North-west Territories for irrigation and other purposes”.236 T. Mayne Daly stated that:

232 Supra note 101. 233 An Act to amend the North-west Irrigation Act, SC 1895 c 33. 234 The North-west Irrigation Act, 1898, SC 1898 c 35. 235 House of Commons Debates, 7th Parl, 4th Sess, vol 38 (5 June 1894) at 3669. 236 Ibid (25 June 1894) at 4949. 51

The chief provisions of the Bill are founded on legislation on the subject of irrigation passed by the Legislatures of New South Wales, and Victoria, and the Australian colonies generally, and by California, Idaho and Colorado in the United States. The most important provisions are contained in sections 4 and 5 in the Bill. Section 4 provides:

The right to the use of all water at any time in any river, stream, watercourse, lake, creek, ravine, cañon, lagoon, swamp, marsh or other body of water whether surface or subterranean shall, for the purpose of this Act, in every case be deemed to be vested in the Crown until the contrary is proved by establishing any other right than that of the Crown to the use of such water; and, save in the exercise of any legal right existing at the time of such diversion or use, no person shall divert or use any water from any river, stream, watercourse, lake, creek, ravine, canon, lagoon, swamp, marsh or other body of water, whether surface or subterranean, otherwise than under the provisions of this Act.

This clause is taken from the Australian Act, the Act of the Colony of Victoria passed in 1886. It means that the right to the use of all the waters at any time in any river, stream &c., is forbidden; also in so far as the riparian proprieties are concerned on lands for which the title is vested in the Crown, these rights are done away with entirely.237

Owing to concerns by other members of the House that reference to subterranean waters could “interfere with a man owning a well on his own lot”,238 all provisions relating to subterranean water were struck out in committee on June 27, 1894.239 The third reading of Bill 134 took place on July 3, 1894, and the Act received Royal Assent on July 23, 1894.240

The two things that the Act did which are most relevant for a consideration of an Aboriginal interest in water were 1) vest the right to water in the Crown, and 2) establish a system of allocation where earlier applications for water had precedence over later applications. Section 4 of the act

237Ibid at 4949-50. 238 Ibid at 4950 (Mr Mulock). 239 Ibid (27 June 1894) at 5063 (Mr Daly). 240 Ibid (23 July 1894) at 6537. 52

vested the property in water in the Crown and section 8 set out that rights to water could be acquired by application under the Act.

Section 4 set out that:

Until the contrary is proved, the right to the use of all water at any time in any river, stream, watercourse, lake, creek, ravine, cañon, lagoon, swamp, marsh or other body of water shall, for the purposes of this Act, in every case be deemed to be vested in the Crown; and, save in the exercise of any legal right existing at the time of such diversion or use, no person shall divert or use any water from any river, stream, watercourse, lake, creek, ravine, canon, lagoon, swamp, marsh or other body of water, otherwise than under the provisions of this Act.241

Section 8 set out that:

Any water the property in which is vested in the Crown may be acquired, for domestic, irrigation, or other purposes, upon application therefore as hereinafter provided; and all applications made in accordance with the provisions of this Act shall have precedence… according to the date of filing them with the agent…242

Although these sections would be modified repeatedly over time, these two central ideas were carried forward into the North-west Irrigation Act, 1898. It was the interest of the Crown in the waters under North-west Irrigation Act, 1898 that was transferred to Alberta in 1930. For that reason, further amendments to the Act are outlined below.

3.2.4.2 Bill 120, 1895

The North-west Irrigation Act was first amended in 1895. On June 20, 1895 T. Mayne Daly sought leave to introduce Bill 120 respecting the utilization of the waters of the North-west

241 Supra note 232 s 4. 242 Ibid s 8.

Territories for irrigation and other purposes.243 In relation to the amendment to section 4 Mr. Daly stated:

The next amendment is in regard to section 4. Under that section in the original Act the use of water, except where the contrary is specified is vested in the Crown. It is contended that this might interfere with navigable and floatable rights on any of the rivers, and the amendment proposed is to remove that doubt.244

An Act to amend the North-west Irrigation Act245 was passed on July 18, 1895,246 and Royal Assent was granted on July 22, 1895.247 Section 2 of the 1895 Act stated:

Section four of the said Act is hereby repealed and the following substituted therefore:—

“4. 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, unless and until and except only so far as some right therein, or to the use thereof, inconsistent with the right of the Crown, and which is not a public right or a right common to the public, is established; and, save in the exercise of any legal right existing at the time of such diversion or use, no person shall divert or use any water from any river, stream, water-course, lake, creek, ravine, canon, lagoon, swamp, marsh or other body of water, otherwise than under the provisions of this Act.”248 (Changes from previous version underlined)

243 House of Commons Debates, 7th Parl, 5th Sess, vol 40 (20 June 1895) at 3079. 244 Ibid (Mr Daly). 245 Supra note 233; note that the amending Act also exempted domestic users from the licencing requirement, an exemption which continues in modern statutes, see Arlene J Kwasniak, “The Supreme Court of Alberta and Water Law” in Jonathan Swainger ed, The Alberta Supreme Court at 100: History and Authority (Edmonton: University of Alberta Press, 2007) 196. 246 Supra note 243 at 4768. 247 Ibid at 4910. 248 Supra note 233 s 2.

3.2.4.3 Bill 146, 1898

Bill 146, to amend and consolidate the North-west Irrigation Act of 1894 and 1895, was introduced by the Minister of the Interior Clifford Sifton on May 17, 1898.249 The changes introduced in the Bill were described as being “of an unimportant character regarding procedure”.250 The final versions of the sections outlined above were:

Section 4:

The property in and the right to the use of all the water at any time in any river, stream, watercourse, lake, creek, ravine, cañon, lagoon, swamp, marsh or other body of water shall, for the purposes of this Act, be deemed to be vested in the Crown, unless and until and except only so far as some right therein, or to the use thereof, inconsistent with the right of the Crown, and which is not a public right or a right common to the public, is established; and, save in the exercise of any legal right existing at the time of such diversion or use, no person shall divert or use any water from any river, stream, water-course, lake, creek, ravine, canon, lagoon, swamp, marsh or other body of water, otherwise than under the provisions of this Act.251

Section 8:

Any water the property in which is vested in the Crown may be acquired, for domestic, irrigation, or other purposes upon application therefor as hereinafter provided; and all applications made in accordance with the provisions of this Act shall have precedence… according to the date of filing them with the commissioner.252

The North-west Irrigation Act, 1898 was given Royal Assent on June 13, 1898.253

249 House of Commons Debates, 8th Parl, 3rd Sess, vol 46 (17 May 1898) at 5662. 250 Ibid (Mr Sifton). 251 Supra note 234 s 4. 252 Ibid s 8. 253 Supra note 249 at 7889. 55

3.2.5 The interest of the Crown under the North-west Irrigation Act, 1898

Prior to the North-west Irrigation Act, the water law in place in the North-west Territories was the law of riparian rights. As seen above, the North-west Irrigation Act, 1898 vested in the federal Crown the “property in and the right to the use of all the water at any time in any river, stream, watercourse, lake, creek, ravine, cañon, lagoon, swamp, marsh or other body of water”.

This interest was vested “unless and until and except only so far as some right therein, or to the use thereof, inconsistent with the right of the Crown, and which is not a public right or a right common to the public, is established”. After the creation of the province of Alberta in 1905, this interest was transferred to Alberta in 1930. The next section will outline the provincial autonomy movement that gave rise to the Province of Alberta, and the transfer of jurisdiction over natural resources which placed Alberta in similar position to that of the other provinces in confederation with respect to natural resources.

3.3 The Natural Resources Transfer Agreement 1930 and 1938: Jurisdiction over water resources moves from the federal to the provincial level

This section will outline the creation of Alberta from the North-west Territories in 1905, the retention, by the federal government, of control over natural resources in order to facilitate its immigration policy, and the transfer of control to the province over those natural resources in 1930 and subsequent amendments. This section will argue that the interest transferred to the province was the entire interest created by the North-west Irrigation Act.

3.3.1 Population growth, provincial autonomy and the need of the federal government to maintain control over lands

Between 1891 and 1901 the population of the North-west territories grew from 98 967 to

165 555.254 By 1905, federal immigration policy had pushed the population of the Territories to

417 956.255 As a result of this rapid population growth, it was difficult for the government of the

Territories to meet the needs of its people. In the words of F. G. W. Haultain, premier of the North- west Territories, “[t]he immigrant was a distinct asset to the Dominion and, at that time, a distinct liability to the Territories, with their increased need for local improvements.”256 In 1901, the position of the Territories was described in the following manner:

On one hand, our limitations… preclude our doing for ourselves the things that ought to be done, and on the other hand, Parliament makes no effort to assist us with even an approximate degree of adequacy. … The successive annual failures of Parliament to meet the requirements have now brought us face to face with accrued public necessities far and away beyond our means to cope…257

The inability of the territorial government to meet the needs of its growing population was the driving force behind the desire for provincial autonomy.

The Alberta Act,258 created the province of Alberta in 1905. Section 21 of the Alberta Act provided that

All Crown lands, mines and minerals and royalties incident thereto, and the interest of the Crown in the waters within the Province under The North-west Irrigation Act, 1898, shall continue to be vested in the Crown and administered by the Government of Canada for the purposes of Canada, subject to the provisions of any Act of the Parliament of Canada with respect to road allowances and roads or

254 C Cecil Lingard, Territorial Government in Canada (Toronto: University of Toronto Press, 1946) at 8-9. 255 Ibid at 9. 256 Ibid. 257 Ibid at 17. 258 SC 1905 c 3, reprinted in RSC 1985, App II No 20.

trails in force immediately before the coming into force of this Act, which shall apply to the said Province with the substitution therein of the said Province for the Northwest Territories.259

The primary reason for the retention of control over natural resources in the new provinces of

Alberta and Saskatchewan offered by Sir Wilfred Laurier, Prime Minister of Canada from July 11,

1896 to October 6, 1911, was the federal free homestead policy.260 Laurier expressed fear that if the federal government did not retain control over natural resources, the provinces could increase the cost of government lands to prospective immigrants and negatively affect federal immigration policy.261

The federal opposition and the legislative assembly of the North-west Territories were both opposed to the retention by the federal government of the natural resources of the new provinces.

The argument of the opposition against the federal government’s retention of jurisdiction over natural resources was advanced on grounds including that it was unconstitutional,262 that there was no sound reason to do so,263 and that control by the local legislature would be more efficient.264

In describing the position of the federal government with respect to maintaining Dominion control over natural resources within the new Prairie Provinces, Sir Wilfred Laurier stated:

259 Ibid s 21. 260 Supra note 254 at 212 citing House of Commons Debates, 10th Parl, 1st Sess, vol 69 (21 February 1905) at 1432- 1434 (Rt Hon Wilfred Laurier); See Also, Frank Tough, “The Forgotten Constitution: The Natural Resources Transfer Agreements and Indian Livelihood Rights, CA. 1925-1933” (2004) 41: 4 Alta L Rev 4 999, at 1007; See also House of Commons Debates, 16th Parl, 4th Sess, vol 184 (30 April 1930) at 1603 (Right Hon WL Mackenzie King) where Mackenzie King reads into Hansard an Order in Council cited by MacDonald and Laurier in support of Dominion retention of jurisdiction over natural resources which begins “The success of the undertakings by the Dominion government in and for the northwest, depends largely upon the settlement of the lands”. 261 Supra note 254 at 212. 262 Ibid at 213, citing House of Commons Debates, 10th Parl, 1st Sess, vol 70 (22 March 1905) 2929-30 (Mr RL Borden). Owing to s 109 of the Constitution Act, 1867, it was argued by R L Borden, leader of the opposition, that it was ultra vires the dominion parliament to withhold resources from new provinces. 263 Ibid. The lands could have been transferred subject to the condition that the federal immigration policy not be interfered with. 264 Ibid. Local populations were more familiar with local problems. 58

…the proposition that in equity and justice these lands belong to the provinces is not tenable. But for my part I would not care, in a question of this importance, to rest the case on a mere abstract proposition. We must view it from the grounds of policy; and from the highest grounds of policy, I think it is advisable that the ownership of these lands should continue to be vested in the Dominion government. We have precedents for this. This is a case in which we can go to the United States for precedents. They are situated very much as we are regarding the ownership of lands and the establishment of new states. Whenever a new state has been created in the American Union, the Federal government has always retained the ownership and management of the public lands. And when we take the records of our own country, we know that when Manitoba was brought into the Dominion, that province was not given ownership of her lands, but it remained in the Dominion government. True it is that Manitoba made several efforts to acquire the ownership of the lands within her boundaries. She applied more than once to the successive government of the Dominion, but her application was always met in the same way. It was always met by the statement that it was impossible to grant her request. The matter was finally closed in 1884 when the government of Sir John Macdonald, which had been approached on the subject gave forcibly and clearly the reasons why the prayer of that province could not be entertained. I may be allowed to quote to the House the language used by the government of Sir John Macdonald on the occasion. It will be found in an Order in Council of the 30th May, 1884:- The success of the undertakings by the Dominion government in and for the Northwest, depends largely upon the settlement of the lands… These reasons, strong and forcible as they were in 1884, are even stronger and more forcible in 1905, because the current of immigration is now flowing into these Territories in an unprecedented volume, and we are therefore compelled to say to the new provinces that we must continue the policy of retaining the ownership and control of the lands in our own hands. It is conceivable that if these lands were given to the new provinces, the policy of either one of them might differ from ours and clash with our efforts to increase immigration. It might possibly render these efforts nugatory… But I frankly admit, and we must all recognize, that the provinces in the west, in being deprived of the public lands, are deprived of a valuable source of income. And in that way they complain that they are put on a footing of inequality as compared with the older provinces of the Dominion. Realizing that fact, it is the duty of parliament to make ample, even generous, provision which will compensate the provinces for the retention of the lands by the Federal government, and I believe that in making this

provision we shall have the full support of hon. Members whether on one side or on the other.265

In support the federal government’s retention of jurisdiction over natural resources in the new provinces of Alberta and Saskatchewan, Laurier relied on: 1) the precedent set by the U.S. policy of federal control over public lands within newly created states in the west; 2) the retention of federal control over Manitoba’s natural resources; 3) the possibility that provincial differences in immigration policy could render federal policy nugatory, and; 4) the provision of compensation to the new provinces in lieu of control over resources.

It took over twenty five years for Alberta to gain jurisdiction over its natural resources. The next section describes the Constitution Act, 1930 through which the parliament of the United

Kingdom constitutionalized the Natural Resources Transfer Agreements (NRTAs) between the federal government and each of the Prairie Provinces, focusing on the NRTA between Alberta and

Canada.

3.3.2 The transfer of control over resources

The negotiation of the transfer of natural resources to the Prairie Provinces was a political process that took over a decade.266 Prairie premieres pursued the transfer of natural resources especially from 1913 onwards, and the “[c]onferences, sincere promises of a speedy settlement, research, interviews, and correspondence continued through the 1920s”.267 The issue of how each

265 House of Commons Debates, 10th Parl, 1st Sess, vol 69 (21 February 1905) at 1432-33 (Rt Hon Sir Wilfred Laurier). 266 See generally Nicole Colleen O’Byrne, The Answer to the ‘Natural Resources Question: A Historical Analysis of the Natural Resources Transfer Agreements (LLM Thesis, McGill University Faculty of Law, 2005) [unpublished]. 267 Tough, supra note 260 at 1007 and 1009.

of the Prairie Provinces would be compensated for past resource use was contentious, and each province took a different approach.

Although an agreement between Alberta and the Dominion was reached in 1926,268 the federal government refused to confirm the agreement by legislation because of a last minute controversy caused when Alberta made changes to the school lands clause.269 A new agreement270 between Canada and Alberta was eventually concluded and came into effect on October 1, 1930.271

Bill No 17, respecting the transfer of the natural resources of Alberta was given third reading and passed on May 2, 1930.272 The government in power when the agreement was ratified by the

Parliament of Canada was Willima Lyon Mckenzie King’s Liberals. R.B. Bennett’s Conservatives took power on August 7, 1930 and governed until October 22, 1935.273 The debate around the retention and subsequent transfer of natural resources was often framed in political terms, with the

Liberal party depicted as being in favour of retaining federal jurisdiction and the Conservative party depicted as being in favour of the provinces having jurisdiction over natural resources.274

268 Frank Tough described the 1926 agreement as “largely unknown” see ibid at 1006. 269 Ibid at 1010. 270 Constitution Act, 1930, 20-21 Geo V, c 26 (UK) Schedule 2 “Alberta”, reprinted in RSC 1985, App II, No 26. 271 The Alberta Natural Resources Act, No 2, SC 1931, c 15. 272 House of Commons Debates, 16th Parl, 4th Sess, vol 184 (28 April 1930) at 1714. 273 PARLINFO. online: . 274 Supra note 272 at 1562 (RB Bennett).

Despite the conclusion of the agreement in 1930, it was necessary to modify the agreement then reached in each of 1931,275 1938,276 1945277 and 1951.278 The first amendment to the NRTA dealt with when its provisions would take effect. The second and third amendments dealt with waters, and water powers and will be examined below. The fourth amendment dealt with trust monies associated with school lands and will not be addressed.

3.3.2.1 The 1926 Agreement and the federal retention of jurisdiction over waters

Although the 1926 agreement between Alberta and the Dominion was not confirmed by federal statute, it served as a framework for subsequent agreements.279 Clause 6 of the 1926 agreement contained the following:

6. the interest of the Crown in the waters within the Province under The Northwest Irrigation Act, 1898 being chapter thirty-five of sixty-one Victoria, as reserved by section twenty-one of The Alberta Act, and in the land forming the bed or shore of any lake, stream, or body of water, shall continue to be vested in the Crown and administered by the Government of Canada for the purposes of Canada.280

Despite the intention of Alberta and the Dominion government in 1926 that the Dominion would retain control over waters, the agreement reached in 1929 was silent on this issue, much to the chagrin of R.B. Bennett, the leader of the Official Opposition and member for Calgary West, as described below.

275 Supra note 271, changing the date on which the agreement would come into effect from August 1, 1930 to October 1, 1930. 276 The Natural Resources Transfer (Amendment) Act, 1938, SC 1938, c 36, modifying the wording of clause 1 to include the interest of the Crown under both the North-west Irrigation Act, 1898 and the Dominion Water Power Act. 277 The Alberta Natural Resources Transfer (Amendment) Act, 1945, SC 1945, c 10, clarifying the ownership and control of three developed power sites on the Bow River. 278 The Alberta Natural Resources Transfer (Amendment) Act, 1951 SC 1951, c 37, regarding the school lands fund. 279 Tough, supra note 260 at 1006. 280 Agreement Made On The Ninth Day Of January, 1926 Between The Dominion Of Canada And The Province Of Alberta: On the Subject of the Transfer To The Province Of Its Natural Resources AM (RG 17, A1, file 14), cited in Ibid at 1040-41. 62

3.3.2.2 The 1929 Agreement’s silence on the transfer of water and water power

In the Debates of the House of Commons on April 28, 1930, R.B. Bennett stated that:

I think the question of water and water-powers is left in a very uncertain position. The use of half a dozen words would have cured the trouble. The Irrigation Act of Canada provides that all waters in the Northwest Territories are the property of the crown; that is, in Alberta and Saskatchewan the property in the water itself is in the crown. Under the autonomy acts of Alberta and Saskatchewan the crown in the case of water was defined to be the crown in right of the Dominion and not of the provinces. I had a very personal knowledge of that because at that time I was actively engaged in irrigation work with the Canadian Pacific, and I assisted to the best of my ability in making certain that the section of the autonomy acts clearly provided, as perhaps the minister will recall, that the water should be held by the crown in right of the Dominion. Under those circumstances is it clear that the waters in Saskatchewan and Alberta… will belong to the crown in right of the provinces without any further action being taken? … I am certainly very doubtful whether or not the waters and water-powers in Saskatchewan and Alberta have been transferred to the provinces under the agreements.281

R.B. Bennett continued on April 29, 1930:

[the Irrigation Act of Canada]…is not mentioned in this document as being repealed … The Irrigation Act of Canada provides that all the waters, whether they be small streams, whether they be lakes or waterfalls, belong to the crown in the right of the Dominion, and this Dominion is administering those water-powers from time to time… and I point out that I cannot see how we are in any sense handing these over to the province…282

R.B. Bennett concluded:

So far as this agreement is concerned the water under the Irrigation Act and under the Dominion Water Power Act still remains the

281 Supra note 272 (28 April 1930) at 1539 (Hon RB Bennett). 282 Ibid at 1575 (Hon RB Bennett).

property of the Dominion and, if administered at all, must be administered by the Dominion and not by the province.283

The response of Lucien Cannon, the Solicitor General, was that “it is possible that further legislation is necessary”.284

Despite the leader of the opposition’s protestations, the Dominion government in 1929 saw no need to specifically refer to the transfer of waters because it was assumed that reference to lands was sufficient to transfer the federal government’s interest in waters. R.B. Bennett’s arguments about the need to specifically reference the interests created under the North-west Irrigation Act were perceived as overly technical. Charles Dunning, the Minister of Finance, stated that:

This parliament is acknowledging by solemn agreement that the remainder of the natural resource shall be turned over to the provinces… I have no doubt at all that from the standpoint of a lawyer his argument may have some merit. I am not qualified to debate that question nor to deny the merit of his various technical objections… But… the legislature[s] of Manitoba… Saskatchewan… Alberta, and the parliament of Canada, have entered into an agreement in good faith. They all intend that the terms of that agreement shall be carried out, and they will give legislative effect to whatever measures may be necessary in order to carry it out. That is, I think, the best answer that a layman can give to the technical objections that have been raised.285

The agreements were confirmed by provincial, dominion and imperial statutes and became effective October 1, 1930.286

283 Ibid at 1576 (Hon RB Bennett). 284 Ibid at 1576 (Hon Lucien Cannon). 285 Ibid at 1582 (Charles A Dunning). 286 Supra note 271. 64

3.3.2.3 The 1938 Agreement modified the 1930 Agreement to specifically transfer the Crown interest in waters and water power

The issue raised by R.B. Bennett in 1930 was dealt with by retroactive modification of the

1930 agreement by way of concurrent provincial and federal statutes in 1938, after doubts had been “entertained on the part of the province” regarding whether the interest of the Crown in surface waters had been transferred in 1930.287 Bennett repeated his analysis of the effect of the provisions of the 1929 agreement, and further maintained that the provincial and federal governments were not now competent to amend the agreement reached in 1929, due to its constitutional nature.

Again, despite Bennett’s protestations, it was maintained by the government of the day that the action being taken only confirmed, rather than modified, the intention of the 1929 agreement.

The Solicitor General, Ernest Lapointe stated:

Until my right hon. friend raised the point, I did not know that there were any difficulties of the kind he has indicated. I have been told by the officers of the Department of Mines and Resources and the Department of Justice that it was the intention at all times to include waters in the phrase “crown lands, mines and minerals.” In the minds of the officers of the departments there were no practical difficulties, but it was thought better to include waters. I have the greatest respect for the opinion of my right hon. friend, but I submit that the legislation of 1930 transferred all the natural resources to the provinces.288

By concurrent statutes in 1938, Alberta and the Government of Canada retroactively modified the

Natural Resources Transfer Agreement between them to include the interest of the Crown in the waters and water powers within the province under the North-west Irrigation Act, 1898 and the

287 Supra note 276, Schedule, Memorandum of Agreement Between the Dominion and Alberta, Preamble. 288 House of Commons Debates, 18th Parl, 3rd Sess No 3 (30 May 1938) at 3344 (Rt Hon Ernest Lapointe). 65

Dominion Water Power Act. These modifications will be reflected in the provisions of the NRTA described in the next section.

3.3.3 The Natural Resources Transfer Agreement between the Dominion and Alberta as modified by The Natural Resources Transfer (Amendment) Act, 1938

The preamble of the NRTA begins by recalling that the federal government retained its interest in lands, mines and minerals and the interest in the waters under The North-west Irrigation

Act, 1898. It then recognizes that “…it is desirable that the province should be placed in a position of equality with the other Provinces of Confederation with respect to the administration and control of its natural resources as from its entrance into Confederation in 1905…”289 The agreement then sets out 25 clauses. Of the 25 clauses, clause 1, under the heading “Transfer of Public Lands

Generally”, clause 8, under the heading “Water”, clauses 10 and 11 under the heading “Indian

Reserves”, clauses 14, 15, and 16 under the heading “National Parks” and clause 24 under the heading “Amendment of Agreement”, are set out below.

3.3.3.1 Transfer of Public Lands Generally

The first clause of the agreement begins

In order that the Province may be in the same position as the original Provinces of Confederation are in virtue of section one hundred and nine of the British North America Act, 1867, the interest of the Crown in all Crown lands, mines, minerals or royalties derived therefrom within the Province, and the interest of the Crown in the waters and water powers within the province under the Northwest Irrigation Act, 1898 and The Dominion Water Power Act and all sums due or payable for such lands, mines minerals or royalties or for interests or rights in or to the use of such waters or water powers, shall, from and after the coming into force of this agreement and subject therein as otherwise provided, belong to the Province,

289 Constitution Act, 1930, supra note 270, Schedule 2 “Alberta”, preamble.

subject to any trusts existing in respect thereof, and to any interest other than that of the Crown in the same…(Emphasis added)290

Recall from section 3.2.5 that this interest was:

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, unless and until and except only so far as some right therein, or to the use thereof, inconsistent with the right of the Crown, and which is not a public right or a right common to the public, is established…291 (Emphasis added)

The effect of the first clause of the NRTA is that after the coming into force of the agreement, the

“property in and the right to the use of all the water at any time in [surface waters in Alberta]” would belong to the province “unless and until and except only so far as some right therein… inconsistent with the right of the Crown… is established”. As described in The Northwest

Irrigation Act, 1898 the property interest transferred in the NRTA was a contingent interest, subject to other interests at any time established.

The transfer of this contingent Crown interest in surface waters was subject to the other provisions of the NRTA. It appears from the construction of the section that while the transfer was subject to the other provisions of the NRTA, the ownership of natural resources, and not the transfer of natural resources, was to be subject to existing trusts, and to any interest other than that of the Crown in surface waters. It has previously been suggested that transfer of the Crown’s interest in surface waters to the province, subject to interests other than that of the Crown in the

290 Ibid s 1 “transfer of public lands generally” as modified by The Natural Resources Transfer (Amendment) Act, supra note 276. 291 Supra note 234 s 4; see above section 3.2.5.

same, was sufficient to preserve “whatever rights survived the enactment of the Irrigation Act”.292

Such interests could include unextinguished Aboriginal title within the province,293 and the

Aboriginal interest in waters associated with reserve lands.

The interest of the Crown in water-powers under the Dominion Water Power Act was described in section 4 of that Act, which stated:

The property in and the right to the use of all Dominion water- powers are hereby declared to be vested in and shall remain in the Crown, saving, however, any rights of property in or to the use of such powers which before the sixth day of June, one thousand nine hundred and nineteen, have been granted by the Crown; and every undertaking hereunder is hereby declared to be a work for the general advantage of Canada.294

This interest was also transferred to Alberta subject to the other provisions of the agreement. The next sections will examine whether or not anything stated in the NRTA otherwise provides for the disposition of the interests of the Crown under either the North-west Irrigation Act, 1898 or the

Dominion Water Power Act.

3.3.3.2 Water

Clause 8 of the NRTA between Alberta and Dominion set out that:

Canada agrees that the provision contained in section four of the Dominion Water Power Act, being chapter two hundred and ten of the Revised Statutes of Canada, 1927, that every undertaking under

292 Richard H Bartlett, Aboriginal Water Rights In Canada: A Study of Aboriginal Title to Water and Indian Water Rights (Calgary: Canadian Institute of Resources Law, 1988) at 167, stating “The interest of the Crown transferred to the administration of the provinces is subject to whatever rights survived the enactment of the Irrigation Act”; see also David K Laidlaw & Monique Passelac-Ross, "Water Rights and Water Stewardship: What about Aboriginal Peoples?" (2010-2011) 35 LawNow 17 at 21. 293 See N D Bankes, “Indian Resource Rights and Constitutional Enactments in Western Canada, 1871-1930” in Louis A Knafla, ed, Law and Justice in a New Land: Essays in Western Canadian Legal History (Toronto: Carswell, 1986) 129 at 153. Note that the Privy Council decided in St Catherine’s Milling and Lumber Company v The Queen, (1888) 14 App Cas 46 at 58 that unextinguished Aboriginal title was “an interest other than that of the Crown” in relation to section 109 of the Constitution Act, 1867 but that Treaty 7 purports to accept the surrender of Aboriginal title. 294 Dominion Water Power Act, RSC 1927, c210 s 4.

the said Act is declared to be a work for the general advantage of Canada, shall stand repealed as from the date of the coming into force of this agreement in so far as the same applies to undertakings within the Province; nothing in this paragraph shall be deemed to affect the legislative competence of the Parliament of Canada to make hereafter any declaration under the tenth head of section ninety-two of the British North America Act, 1867.295

Clause 8 sets out that undertakings under the Dominion Water Power Act within the province are no longer works “for the general advantage of Canada”, but otherwise does not affect the general transfer of the Crown interest in water or water powers to Alberta.

3.3.3.3 Indian Reserves

The heading “Indian Reserves” contains three clauses. Clause 10 refers to the lands included in Indian Reserves and recognizes that they remain vested in the Crown and administered by the Government of Canada. Clause 11 references and incorporates the agreement between the

Dominion of Canada and the Government of Ontario of 24 March 1924. Clause 12 set out the

Indian livelihood right and is not relevant to this thesis.

Clause 10 sets out that:

All lands included in Indian reserves within the Province, including those selected and surveyed but not yet confirmed, as well as those confirmed, shall continue to be vested in the Crown and administered by the Government of Canada for the purposes of Canada, and the Province will from time to time, upon the request of the Superintendent General of Indian Affairs, set aside, out of the unoccupied Crown lands hereby transferred to its administration, such further areas as the said Superintendent General may, in agreement with the appropriate Minister of the Province, select as necessary to enable Canada to fulfil its obligations under the treaties with the Indians of the Province, and such area shall thereafter be administered by Canada in the same way in all respect as if they had never passed to the Province under the provisions thereof.296

295 Supra note 270, clause 8. 296 Ibid clause 10. 69

Clause 10 set out that Indian reserves remained vested in the federal government but does not on its face affect the general transfer of the Crown interest in water or water powers to Alberta.

Clause 11 sets out that:

The provisions of paragraphs one to six inclusive and of paragraph eight of the agreement made between the Government of the Dominion of Canada and the Government of the Province of Ontario on the 24th day of March, 1924, which said agreement was confirmed by statute of Canada, fourteen and fifteen George the Fifth chapter forty-eight, shall (except so far as they relate to the Bed of Navigable Waters Act) apply to the lands included in such Indian reserves as may hereafter be set aside under the last preceding clause as if the said agreement had been made between the parties hereto, and the provisions of the said paragraphs shall likewise apply to the lands included in the reserves heretofore selected and surveyed, except that neither of the said lands nor the proceeds of the disposition thereof shall in any circumstances become administrable by or be paid to the Province.297

Clause 11 incorporated by reference the named paragraphs of the agreement set out in An Act for the Settlement of Certain Questions between the Governments of Canada and Ontario respecting

Indian Reserve Lands.298

Paragraph 8 of the agreement set out that:

No water-power included in any Indian reserve which in its natural condition at the average low stage of water has a greater capacity than five hundred horse-power, shall be disposed of by the Dominion of Canada except with the consent of the Government of the Province of Ontario and in accordance with such special agreement, if any, as may be made with regard thereto and to the division of the purchase money, rental or other consideration given therefor.299

297 Ibid clause 11. 298 An Act for the Settlement of Certain Questions between the Governments of Canada and Ontario respecting Indian Reserve Lands, SC 1924 (1st Sess), c 48. 299 Ibid, Schedule, ¶8. 70

The reference in paragraph 8 of the agreement between Canada and Ontario set out that no water power included in any Indian reserve would be disposed of by the federal government without the consent of the province. This paragraph manifests an intention to restrict the general transfer of the Crown interest in water powers on Indian reserves to Alberta because it indicates that water powers under 500 horsepower could be disposed of without the involvement of the province while the disposal of water powers greater than 500 horsepower would require the consent of the province.

3.3.3.4 National Parks

The section titled “National Parks” contains 3 clauses. These clauses ensure that: 1) the

National Parks in Alberta will continue to vest in and be administered by the Government of

Canada, 2) that the Government of Canada will have exclusive legislative jurisdiction within the parks, and 3) that the province will not, by works outside of the park, decrease the flow of water below that necessary to “preserve the scenic beauties” of the parks. The clauses are set out below.

Clause 14 states:

The parks mentioned in the Schedule hereto shall continue as national parks and the lands included therein, as the same are described in the Orders in Council in the said Schedule referred to (except such of the said lands as may be hereafter excluded therefrom), together with the mines and minerals (precious and base) in each of the said parks and the royalties incident thereto, shall continue to be vested in and administered by the Government of Canada as national parks, but in the event of the Parliament of Canada at any time declaring that the said lands or any part thereof are no longer required for park purposes, the lands, mines, minerals (precious and base) and the royalties incident thereto, specified in any such declaration, shall forthwith upon the making thereof belong to the Province…300

300 Supra note 270 clause 14. 71

Clause 14 ensured that National Parks, like the Indian Reserves referred to in Clause 10, remained

“vested in and administered by” the Government of Canada. Unlike Indian Reserves set aside before the agreement, however, in the event that any parts of those parks were no longer required for “park purposes” the land would revert to the province.

The Government of Canada reserved exclusive legislative jurisdiction within the parks in

Clause 15. Clause 15 states:

The Parliament of Canada shall have exclusive legislative jurisdiction within the whole area included within the outer boundaries of each of the said parks… provided, however, that all laws of the Province… which are not repugnant to any law or regulation made applicable within the said area by or under the authority of the Parliament of Canada, shall extend to and be enforceable within the same…301

This reservation of exclusive legislative jurisdiction is noteworthy in relation to the absence of a similar provision relating to Indian Reserves.

Clause 16 states:

The Province agrees that… it will not, by works outside the boundaries of any of the said parks, reduce the flow of water in any of the rivers or streams within the same to less than that which the Minister of the Interior may deem necessary adequately to preserve the scenic beauties of the said parks.302

Although both National Parks and Indian reserves remained vested in and administrable by the

Government of Canada, the terms of the NRTA specifically provide that the Government of

Canada retained “exclusive legislative jurisdiction” only in relation to National Parks. This was perhaps because section 91(24) of the Constitution Act, 1867 granted the federal government the

301 Ibid clause 15. 302 Ibid clause 16.

power to legislate with respect to “Indians and Lands reserved for the Indians” but as the law has developed, the difference between the explicit retention of exclusive legislative jurisdiction over

National parks, and not over Indian Reserves is arguably a noteworthy point.303

3.3.3.5 Amendment of Agreement

Clause 24 provided that the agreement could be modified by concurrent statutes of the

Parliament of Canada and the Legislature of the Province:

The foregoing provisions of this agreement may be varied by agreement confirmed by concurrent statutes of the Parliament of Canada and the Legislature of the Province.304

This clause was used four times to modify the terms of the agreement: 1931, 1938, 1945 and 1951, as set out above in section 3.3.2.

3.3.3.6 The 1945 amendment is a specific exception to a general transfer

In introducing Bill No 16, an Act to amend the Alberta Natural Resources Act, on October

5, 1945, the Honourable J.A. Glen, Minister of Mines and Resources, stated:

The agreement in schedule I of the bill provides for the settlement of differences which have arisen between the dominion and the province as to the effect of the natural resources transfer agreement and the ownership and control of three developed power sites on the Bow river lying within or adjacent to the Stony Indian reserve…

The agreement in schedule I provides that the land and water power at the two sites in which the Indian interest predominates, namely Horseshoe and Kananaskis, are to remain under dominion jurisdiction, while the Ghost site, where the provincial interest is substantial, shall be deemed to have passed to the province at the time of the transfer of the natural resources.305

303 See below, section 4.3.2.2 304 Ibid clause 24. 305 House of Commons Debates, 20th Parl, 1st Sess, No 1 (4 October 1945) at 799-800 (Hon JA Glen).

Bill No 16 was given third reading and passed on November 27, 1945.306 The comments of J.A.

Glen in introducing Bill 16, suggest that the scope of the amendment was limited to the ownership and control of three developed power sites on the Bow, namely the Horseshoe Falls, Kananaskis

Falls and Ghost power sites.

The Alberta Natural Resources Transfer (Amendment) Act, 1945307 received Royal Assent on December 18, 1945. Schedule 1 of the Act contained a memorandum of agreement reached on

September 25, 1945 between the Government of the Dominion of Canada and the Government of the Province of Alberta. The preamble set out that:

WHEREAS in giving effect to the provisions of the Agreement entered into between the Government of the Dominion of Canada and the Government of the Province of Alberta on the 14th day of December, A.D. 1929, and the Supplementary Agreement entered into between the on the 5th day of March, A.D. 1938 (together hereinafter referred to as the Natural Resources Transfer Agreement), differences have arisen between the parties hereto in connection with certain water powers on the Bow River lying within or adjacent to the Stony Indian Reserve developed by the Calgary Power Company Limited and its predecessor in interest prior to the 1st day of October, A.D. 1930;

AND WHEREAS differences have also arisen between the parties hereto as to whether the Dominion or the Province is entitled to the benefits and subject to the obligations of the Licensor under the Licences and Water Power Agreements heretofore granted in respect of the said water power;

AND WHEREAS it is desirable that these differences should be resolved so as to carry out the true intent and purpose of the Natural Resources Transfer Agreement;

AND WHEREAS by Paragraph 24 of the Natural Resources Transfer Agreement it was agreed that the provisions of the said Agreement

306 House of Commons Debates, 20th Parl, 1st Sess, No 3 (25 November 1945) at 2546. 307 Supra note 277.

might be varied by agreement confirmed by concurrent statutes of the Parliament of Canada and the Legislature of the Province

NOW THEREFORE THIS AGREEMENT WITNESSETH THAT308

Section 1(a) of the agreement with respect to the water power at Horseshoe Falls set out that:

The interest of the Crown in the bed and banks of the Bow River and in all waters and water power rights appurtenant thereto within the limits of the tract of land described in Schedule “A” hereto shall continue as and from October 1, 1930, to be vested in the Crown in the right of Canada.309

Section 2(a) of the agreement, did the same with respect to the water power at Kananaskis Falls.

Section 3(b) set out with respect to the Ghost site that:

The interest of the Crown in the bed and banks of the Bow River at the Ghost site from the eastern boundary of the Stony Indian reserve to the upstream limit of floodage as shown upon Record Plan numbered 2884 on file in the Office of the Controller of Water Power at Ottawa, and in all waters and water power rights appurtenant thereto shall be deemed to belong and to have belonged to the Province as and from October 1, 1930…310

The 1945 amendment to the NRTA varied the general transfer of the federal Crown’s interest in water powers to Alberta in relation to three specific sites. No reference was made to paragraph 8 of An Act for the Settlement of Certain Questions between the Governments of Canada and Ontario respecting Indian Reserve Lands, or to the implication which arises from incorporation of this Act, that water powers on Indian reserves were specifically exempted from the general transfer of water powers to Alberta. It is further noteworthy that the amendment power in section 24 of the NRTA was restricted to “the foregoing provisions” and that the 1945 amendment does not purport to vary

308 Ibid Schedule I, Preamble. 309 Ibid s 1. 310 Ibid s 3(b).

any specific provisions of the earlier agreement. Nonetheless it has been argued that the 1945 amendment indicates an intention to reserve water rights to reserve lands.311

3.3.4 The effect of the Agreement as amended

As described throughout section 3.3 above, the NRTA of 1930, as modified by the 1938 amendment, generally transferred “the interest of the Crown in the waters and water powers within the province under the North-west Irrigation Act, 1898 and The Dominion Water Power Act” to the province of Alberta. The transfer was subject to the other provisions of the agreement, and the ownership interest in the waters of the province was subject to “any interest other than that of the

Crown in the same”.

Although paragraph 8 of An Act for the Settlement of Certain Questions between the

Governments of Canada and Ontario respecting Indian Reserve Lands specifically limited the general transfer of the interest of the federal Crown in water powers associated with Indian reserves to the province, the 1945 amendment further provided that the federal interest in the bed and banks of the Bow River on the Stoney reserve in relation to the Horseshoe Falls and Kananaskis Falls sites remained vested in the federal Crown. No other provisions specifically restricted the general transfer of the interest of the federal Crown in either the waters under the Northwest Irrigation Act,

1898 or in water powers under the Dominion Water Power Act.

As there were no further provisions in the NRTA which specifically restricted the general transfer of “the interest of the Crown in the waters… under the North-west Irrigation Act, 1898”, the entire interest of the federal Crown under the North-west Irrigation Act, 1898, which included

311 Monique M Passelac-Ross & Christina M Smith "Defining Aboriginal Rights to Water in Alberta: Do They Still "Exist"? How Extensive are They?" (2010) CIRL Occasional Paper #29 at 39. 76

the “property in and the right to the use of all the water at any time” in all water bodies within the

Province of Alberta, was transferred to Alberta in 1930. Alberta’s ownership of the property in surface waters was and is “subject to any interest other than that of the Crown in the same”.

It is interesting to note that, while never ratified, the 1926 agreement specifically provided that the interest of the federal Crown under the North-west Irrigation Act, 1898 was to remain vested in the federal Crown. While the 1929 agreement was silent with respect to the Crown’s interest in surface waters, the removal, between 1926 and 1929, of the clause specifically retaining the interest of the federal Crown under the North-west Irrigation Act, 1898 does suggest that it was the intention of the parties to transfer the interest in surface waters to the province through the general language “the interest of the Crown in all Crown lands, mines, minerals”. If it were otherwise, the 1926 provision retaining the federal interest would not have been necessary.

Assuming that the federal interest in surface waters could be transferred through the general language “the interest of the Crown in all Crown lands, mines, minerals” in the 1929 agreement as originally ratified, the language in clause 10 regarding the retention of “all lands included in

Indian reserves” would have been sufficient to retain the federal Crown’s interest in surface waters associated with Indian reserves. Two things frustrate this analysis: 1) the retroactive modification of the agreement in 1938, and 2) the impracticality of dividing jurisdiction over the allocation of surface waters.

The retroactive modification of clause 1 of the NRTA in 1938 through insertion of a general transfer of the Crown interest in surface waters and water powers, without a corresponding modification of clause 10 limiting the scope of that general transfer, supports the conclusion that the general transfer of the interest in the Crown in surface waters included the interest in surface waters on Indian reserves. Paragraph 8 of An Act for the Settlement of Certain Questions between

the Governments of Canada and Ontario respecting Indian Reserve Lands would appear to still operate as a restriction on the general transfer of the Crown’s interest in water powers (retaining the interest in water powers on reserve), subject to the specific provisions of the 1945 amendment.

The contemporary approach to water management in Alberta supports this reading of the NRTA, because the federal government plays no meaningful role in the administration of the allocation of surface waters within the province. The interconnectedness of riparian systems supports the vesting of responsibility for water management in a single entity: Neither rivers nor the need to fairly mange the allocation of waters stop at the borders of Indian reserves. The next section discusses contemporary water regulation in Alberta.

3.4 Contemporary water regulation in the Treaty 7 area

3.4.1 The Water Act, Alberta’s past position on the existence of Aboriginal water rights, and the Crown reservation of water within the South Saskatchewan River Basin

Today in Alberta, section 3(2) of the Water Act states that “[t]he property in and the right to the diversion and use of all water in the Province is vested in Her Majesty in right of Alberta except as provided for in the regulations.” 312 The regulations do not further provide for any exceptions regarding the continued vesting of the property in water in Alberta.313

Many Aboriginal groups in Alberta hold licenses for the diversion of surface waters under

Alberta’s water allocation framework.314 The priority of these allocations, accords with the date on which the applications for the licenses were made.

312 Water Act, supra note 5 s 3(2). 313 Water (Ministerial) Regulation, Alta Reg 205/1998; See Also, Michael M Wenig, “Looking Through Cloudy Waters – A Historical Analysis of the Legislative Declarations of Crown Water Rights in Alberta” (2010) CIRL Occasional paper #27. 314Interim Licence of “The Blackfoot Indians” for utilization of water from the Bow River, for irrigation purposes, January 6, 1938 File No 4197; Blood Band of Indians, Licence No 848 in the Oldman River Drainage Basin September

In 1991, the government of Alberta set out its position regarding Aboriginal water rights.

The background paper on Aboriginal water issues for “Water Management in Alberta” stated that:

Aboriginal water rights and ownership of river beds are subjects of continuing review and consideration from a legal and constitutional point of view. These issues, in various forms, are before the courts in Alberta and other parts of Canada. The position of the Crown in right of Alberta is that such alleged water rights and alleged rights to river beds, if they ever existed, were extinguished by competent legislation of, and executive action by, the Crown in right of Canada.

The Crown in [r]ight of Alberta further takes the position that by the provisions of the Constitution Act, 1930 and the Alberta Natural Resources Amendment Act, 1938, the water rights and rights to river beds passed to Alberta along with the constitutional jurisdiction over such rights. Such rights are now subject to the provisions of the Alberta Water Resources Act, and the Alberta Public Lands Act.315

The merit of these positions are discussed in Chapter four.316

3.4.2 Bow, Oldman and South Saskatchewan River Basin Water Allocation Order, Alta Reg 171/2007

In 2007, Alberta made a Crown reservation under section 35 of the Water Act. The order set out that:

All the water in the Bow River Basin, Oldman River Basin and South Saskatchewan River Basin that is not, on the date this Order is filed under the Regulations Act, allocated under a licence or registration or specified in a preliminary certificate is reserved.317

25, 1941; Interim Licence No. 19869, issued to The Band Council of the Blood Indian Band, pursuant to the Water Resources Act, online: priority date of 1991-11-07 and authorizes a gross diversion of 40 270 acre feet, with an estimated consumptive use of 35 270 acre feet for an irrigable area of 25 000 acres; Licence No. 00203354-00-00, issued to Alberta Environment, pursuant to the Water Resources Act, online:, licence for 35 000 acre feet of water with a priority date of 2002-12-06. 315 Supra note 14 at 1. 316 See below, sections 4.1.3.2, 4.2.1.1, and 4.2.2.1. 317 Supra note 4 s 2.

Although the regulation specifically permits the director appointed under the Water Act to make allocations of water for use by a “First Nation”318, the value of such allocations, being lower in temporal priority to all other water licenses within the basin, has been described by officials of the government of Alberta as “worthless.”319 Whether this accords with any obligations owed by the

Crown in right of Alberta to Aboriginal groups will be explored in Chapter four.

3.5 Comparison between water law in the western U.S. and in the Treaty 7 area

As described in Chapter two, the federal government in the United States protected the

Indian interest in waters against states, such as Montana, that sought to subject water use on Indian

Reservations to state water appropriation laws. Due to the federal nature of Indian Reservations, and the supremacy of federal laws in the United States, state law is incapable of derogating from the Indian interest in waters on Indian Reservations.

In contrast, in Alberta and the other Prairie Provinces, as outlined throughout this Chapter, the federal government enacted legislation that created property in surface water without taking steps to protect Aboriginal groups’ interests in their respective reserve lands. This failure occurred despite federal recognition that “[i]rrigation would make the land fertile and thus greatly increase the value of the reserve[s]”320 the year prior to the introduction of the North-west Irrigation Act in

1894 in Order in Council 1893-2809 as outlined in section 3.1.5.

Due to the wholesale transfer of jurisdiction over surface waters from the federal to the provincial government, the federal government in Canada is no longer in a position to protect the

318 Ibid ss 1(c) and 3; s 1(c)“First Nation” means the Siksika Nation, Tsuu T’ina Nation, Piikani Nation, Kainai Nation or the Stoney (Bearspaw, Chiniki, Wesley) Nation, each of which is a band within the meaning of the Indian Act (Canada); s 3 “Water reserved under section 2 may be allocated by the Director.” 319 Tsuu T’ina, supra note 3 ¶131. 320Supra note 191. 80

interests of Aboriginal groups in surface waters, unlike the federal government in the United States whose property interest in Indian Reservations is paramount, and includes surface waters.

The water allocation scheme created by the Northwest Irrigation Act was based on temporal priority of application and failed to recognize prior Aboriginal interests in surface waters.

The failure of the Northwest Irrigation Act to recognize prior Aboriginal interests in reserve lands created an inequity which persists to this day.

Chapter four will describe the principles of law which govern Crown fiduciary obligations to Aboriginal peoples in Canada, and attempt to reconcile the water allocation scheme in Alberta with prior Aboriginal interests in reserve lands in the Treaty 7 area through application of those principles.

Chapter Four: The legal obligation to give priority water allocations to Treaty 7 signatories

Chapter three outlined the history of Treaty 7, and the development of water regulation in

Alberta and identified that the failure of the North-west Irrigation Act to recognize prior Aboriginal interests in reserve lands created an inequity which persists to this day. The 1996 Royal

Commission on Aboriginal Peoples, [RCAP] recommended that the historic treaties with the

Aboriginal peoples of Canada should be fulfilled and renewed.321 RCAP also recommended that the Crown act as a protector of Aboriginal interests, and reconcile the interests of society with the terms of the treaties.322 Motivated by these recommendations, Chapter four draws on concepts from Canadian law to describe a way to address the inequity created by the North-west Irrigation

Act’s failure to recognize prior Aboriginal interests in reserve lands.

One way to reconcile Alberta’s water allocation framework with the prior interest of

Aboriginal groups in reserve land is to seek judicial recognition that the creation of a property interest in surface waters gave rise to a fiduciary obligation to protect the Aboriginal interest in reserve lands. In order to outline the basis of such an obligation, Chapter four will present case law that establishes that the relationship between the Crown and Aboriginal peoples is a fiduciary relationship. It will then present case law that establishes that although not all aspects of fiduciary relationships attract fiduciary obligations, such obligations are created when the Crown assumes discretionary control over specific Aboriginal interests. In order to support the contention that the

Aboriginal interest in reserve lands is an interest that gives rise to Crown fiduciary obligations, the

321 Report of the Royal Commission on Aboriginal Peoples: Renewal: A Twenty-Year Commitment, vol 5 (Ottawa: Supply and Services Canada, 1996) Appendix A: Summary of Recommendations Volumes 1-5, recommendations 2.2.2, 2.2.3 and 2.2.4. 322 Ibid recommendation 2.2.3 “The federal government establish a continuing bilateral process to implement and renew the Crown’s relationship with and obligations to the treaty nations under the historical treaties, in accordance with the treaties’ spirit and intent”. 82

legal character of the Aboriginal interest in reserve lands will be described with reference to the corollary concept of Aboriginal title. Subsequently, the test for infringement and justification of

Aboriginal title will be set out, and the remedy of a constructive trust for such infringements will be proposed. To demonstrate that that the provincial government would be responsible for furnishing on reserve water use regardless of the specific preservation of the Aboriginal interest in waters associated with reserve lands by the words of the NRTA, the British Court of Appeal’s recognition that the transfer of jurisdiction carries with it obligations will be laid out. Finally limitation of action issues are briefly examined.

4.1 The Crown-Aboriginal relationship is a fiduciary relationship

4.1.1 The meaning of the word ‘fiduciary’

As was described in Girardet v Crease & Co323 and later cited by the Supreme Court of

Canada in Hodgkinson v Simms,324 “"fiduciary" comes from the Latin "fiducia" meaning "trust".

Thus, the adjective, "fiduciary" means of or pertaining to a trustee or trusteeship.”325 One of the best definitions of a trust, according to Waters’ Law of Trusts in Canada326 is the following:

A trust is the relationship which arises whenever a person (called the trustee) is compelled in equity to hold property, whether real or personal, and whether by legal or equitable title, for the benefit of some persons (of who he may be one, and who are termed beneficiaries) or for some object permitted by law, in such a way that the real benefit of the property accrues, not to the trustees, but to the beneficiaries or other objects of the trust.327

323 (1987), 11 BCLR (2d) 361. 324 [1994] 3 S.C.R. 377. 325 Supra note 323 at 362. 326 Donovan W M Waters, Mark R Gillen & Lionel D Smith, Waters’ Law of Trusts in Canada, 4th ed. (Toronto: Carswell, 2012) at 3. 327 GW Keeton & LA Sheridan, The Law of Trusts, 12th ed (London:Barry Rose Law Publishers, 1993) at 3.

In the recent case of Manitoba Métis Federation v Canada328 [MMF] the Supreme Court of Canada stated that “[g]enerally speaking, a fiduciary is required to act in the best interests of the person on whose behalf he is acting, to avoid all conflict of interest, and to strictly account for all property held or administered on behalf of that person.”329 This description depicts a very onerous standard of behaviour. The Court has previously adopted the more general words of Professor Ernest

Weinrib:

[Where there is a fiduciary obligation] there is a relation in which the principal's interests can be affected by, and are therefore dependent on, the manner in which the fiduciary uses the discretion which has been delegated to him. The fiduciary obligation is the law's blunt tool for the control of this discretion.330

The content of a given fiduciary duty has always depended on the context in which it is invoked.331

Although the obligations owed to Aboriginal peoples, as will be discussed below, are fiduciary, the SCC has described the law of fiduciary obligations owed to Aboriginal peoples as sui generis, or “of its own kind.”332 For this reason such obligations will be explored in the following pages specifically in regards to Crown obligations that have been recognized in relation to Aboriginal peoples and not more broadly.

328 2013 SCC 14 [MMF]. 329 Ibid at ¶47. 330 Guerin v The Queen, [1984] 2 SCR 335 at 384 [Guerin]. 331 Leonard I Rotman, Parallel Paths: Fiduciary Doctrine and the Crown-Native Relationship in Canada (Toronto: University of Toronto Press, 1996) at 155-156. 332 Black’s Law Dictionary (9th ed 2009) sub verso “sui generis”.

4.1.2 Guerin: The fiduciary nature of the Crown-Aboriginal relationship is recognized

A limited fiduciary relationship between the Crown and Aboriginal peoples was first recognized by the Supreme Court of Canada in Guerin in 1984.333 Prior to Guerin, the Crown-

Aboriginal relationship had been described as a political trust, free from judicial interference.334

There were three judgements in Guerin. One written by Wilson J. in which the nature of obligations owed by the government to Aboriginal peoples was described in terms of a trust, one written by

Dickson J. in which they were described as fiduciary and one written by Estey J. in which they were described in terms of agency. As the law has developed, it is unnecessary to discuss Estey

J.’s judgement for the purposes of this thesis.

In Guerin, the Musqueam Indian Band had surrendered a valuable portion of its reserve, located within the city of Vancouver, to the federal government so that it could be leased on certain terms to a golf club.335 The federal government then leased the land to the golf club on less beneficial terms than had been agreed to by the Musqueam.336

In its defence, the federal government argued that it owed no enforceable duty to the

Musqueam. It described any obligation it owed to the Musqueam as “political” and therefore unenforceable by the courts.337 Both Dickson J. and Wilson J. agreed on the point that the obligations of the federal government were not merely political owing to the fact that the Indian

333 See Lenord I Rotman, Fiduciary Law (Toronto: Thomson Canada Limited, 2005) at 524; James I Reynolds, “The Spectre of Spectra: The Evolution of the Crown’s Fiduciary Obligation to Aboriginal Peoples Since Delgamuukw” in Maria Morellato, ed, Aboriginal Law Since Delgamuukw (Aurora, Ont: Canada Law Book, 2009) 107 at 108. 334 See Wewaykum Indian Band v Canada, 2002 SCC 79 at ¶73-74 [Wewaykum]. 335 Supra note 330 at 340-41. 336 Ibid at 347. 337 Ibid at 350.

interest in reserve land was pre-existing and distinct from that created by any statute, ordinance or treaty.338 Justice Dickson wrote:

The “political trust” cases concerned essentially the distribution of public funds or other property held by the government… The situation of the Indians is entirely different. Their interest in their lands is a pre-existing legal right not created by Royal Proclamation, by s. 18(1) of the Indian Act, or by any other executive order or legislative provision.

It does not matter, in my opinion, that the present case is concerned with the interest of an Indian Band in a reserve rather than with unrecognized aboriginal title in traditional tribal lands. The Indian interest in the land is the same in both cases.339(Emphasis added)

It is important to note that Guerin established that the interest in unrecognized Aboriginal title lands is the same as the interest in reserve lands. This equivalence makes statements about the nature of Aboriginal title relevant to a consideration of the Aboriginal interest in reserve lands, including the interest in reserve lands recognized by Treaty 7.

The interest in Aboriginal title lands was described by Dickson J:

It is true that the sui generis interest which the Indians have in the land is personal in the sense that it cannot be transferred to a grantee, but it is also true, as will presently appear, that the interest gives rise upon surrender to a distinctive fiduciary obligation on the part of the Crown to deal with the land for the benefit of the surrendering Indians. These two aspects of Indian title go together, since the Crown's original purpose in declaring the Indians' interest to be inalienable otherwise than to the Crown was to facilitate the Crown's ability to represent the Indians in dealings with third parties. The nature of the Indians' interest is therefore best characterized by its general inalienability, coupled with the fact that the Crown is under an obligation to deal with the land on the Indians' behalf when the interest is surrendered. Any description of Indian title which goes

338 Ibid at 351-53 and 378-79. 339 Ibid at 379.

beyond these two features is both unnecessary and potentially misleading.340

Though they both agreed that the government owed a duty to the Musqueam, Dickson J. and

Wilson J. disagreed about the juristic nature of that duty. Wilson J. found that a trust was created by the surrender of the land in question, while Dickson J. was of the opinion that the law of trusts was inapplicable to the situation,341 stating “although the nature of Indian title coupled with the discretion vested in the Crown are sufficient to give rise to a fiduciary obligation, neither an express nor an implied trust arises upon surrender.”342 Dickson J. limited the similarity between a constructive trust and the Crown’s fiduciary obligation to the fact that they both “arise by operation of law”.343 He distinguished a constructive trust from the facts in Guerin on the basis that the

Crown was in no way enriched by the surrender transaction, which was at the time a requirement for the existence of a constructive trust.344 He went on to state that the absence of enrichment did not alter “either the existence or the nature of the obligation which the Crown owes.”345

4.1.2.1 Conclusion on the importance of Guerin

Dickson J. held that the nature of Indian titled coupled with discretion of the Crown gave rise to a sui generis, or unique, fiduciary obligation in the nature of a trust.346 Guerin marked the beginning of a time when courts were willing to enforce government promises to Aboriginal peoples in Canada in relation to rights to land.

340 Ibid at 382. 341 Ibid at 355 and 386. 342 Ibid at 386. 343 Ibid. 344 See Section 4.6 below for a discussion about how unjust enrichment was removed as a prerequisite for the remedy of a constructive trust in Soulos v Korkontzilas, [1997] 2 SCR 217. 345 Ibid at 386. 346 Ibid at 386-87.

Guerin supports the proposition that the interest in Aboriginal title lands and in reserve lands is the same, and it was the first case to recognize that the Crown-Aboriginal relationship is a fiduciary relationship. The next case to deal with the fiduciary nature of the Crown-Aboriginal relationship was R v Sparrow,347 and it is discussed in the next section.

4.1.3 Sparrow

4.1.3.1 The fiduciary relationship

Narrowly construed, the enforceable fiduciary duty recognized in Guerin was applicable only to surrendered reserve land. In Sparrow, the fiduciary duty of the Crown to Aboriginal peoples was more generally applied by the Supreme Court of Canada. In Sparrow, the scope of section 35 of the Constitution Act, 1982348 was considered for the first time.349 In the context of charges under the Fisheries Act, the Court was asked to determine whether the promise made to

Aboriginal peoples in section 35 constrained the government’s power to make regulations restricting the length of fishing nets.350 After reiterating what it had said in Guerin, the Court stated that:

In our opinion, Guerin, together with R v Taylor and Williams, ground a general guiding principle for s. 35(1). That is, the Government has the responsibility to act in a fiduciary capacity with respect to aboriginal peoples. The relationship between the Government and aboriginals is trust-like, rather than adversarial, and contemporary recognition and affirmation of aboriginal rights must be defined in light of this historic relationship.351 (Citations omitted)

347 [1990] 1 SCR 1075 [Sparrow]. 348 Supra note 135. 349 Supra note 347 at 1082-83. 350 Ibid at 1083. 351 Ibid at 1108. 88

Sparrow remains the authority for the proposition that the relationship between the government and Aboriginal peoples is a fiduciary relationship.

It has been observed that the Court in Sparrow “simply relie[d] upon the characterization of Crown-Aboriginal relations as fiduciary in Guerin and applie[d] that characterization to a different area of Crown-Aboriginal interaction”352 without more fully developing the law. The

Court’s broad description of the Crown-Aboriginal relationship invited many attempts to fit wide- ranging claims within the early rubric.353 Subsequently the Court in Wewaykum delineated where the fiduciary relationship would give rise to specific fiduciary duties.354 Wewaykum will be described below in section 4.2.1.

Sparrow is important for the purpose of this thesis, aside from the broad recognition of the fiduciary nature of the Crown-Aboriginal relationship, for three additional reasons: the idea that regulation of rights is not the same as extinguishment of rights; the justificatory standard required by the Crown when it infringes an Aboriginal right, and; the idea of priority as a way to meet

Crown-obligations to Aboriginal peoples, as described below.

4.1.3.2 Regulation of an Aboriginal right is not extinguishment of that right

It was argued by the Crown in Sparrow that regulation of the right to fish displaced the

Aboriginal right to fish. In response, the Court stated that “[a]t bottom, the respondent’s argument confuses regulation with extinguishment. That the right is controlled in great detail by the

352 Fiduciary Law, supra note 333 at 572. 353 Wewaykum, supra note 334 ¶82. 354 Ibid ¶83; See also Rotman, Fiduciary Law supra note 333 at 580 stating, “Although [Wewaykum] initially articulates the scope of the Crown’s fiduciary duty rather broadly, the tone of Binnie J.’s judgment suggests a rather restrictive vision of the Crown’s fiduciary duty that is inconsistent with the implications of Guerin and Sparrow and with the fiduciary concept generally”.

regulations does not mean that the right is thereby extinguished.”355 The test adopted by the Court for the extinguishment of an Aboriginal right was that “the Sovereign’s intention must be clear and plain if it is to extinguish an aboriginal right.”356 The Court further stated that:

There is nothing in the Fisheries Act or its detailed regulations that demonstrates a clear and plain intention to extinguish the Indian aboriginal right to fish. The fact that express provision permitting the Indians to fish for food may have applied to all Indians and that for an extended period permits were discretionary and issued on an individual rather than a communal basis in no way shows a clear intention to extinguish. These permits were simply a manner of controlling the fisheries, not defining underlying rights.357

Establishment of a clear and plain intention to extinguish an Aboriginal right continues to be required for the Crown to prove extinguishment of an Aboriginal right. Recall from sections 3.2.5 and 3.3.4 that the language used to describe the interest of the Crown in surface waters expressly preserved other interests, and that provincial ownership of the property in water is subject to other interests by the terms of clause 1 of the NRTA.

4.1.3.3 Justification of Crown infringement of an Aboriginal right

The Court identified that “s. 35(1) is a solemn commitment that must be given meaningful content”.358 The Court noted that even though section 35(1) was not subject to section 1 of the

Charter, “[l]egislation that affects the exercise of aboriginal rights will nonetheless be valid, if it meets the test for justifying an interference with a right recognized and affirmed under s. 35(1).”359

The Court continued:

There is no explicit language in the provision that authorizes this Court or any court to assess the legitimacy of any government

355 Supra note 347 at 1097. 356 Ibid at 1099 357 Ibid. 358 Ibid at 1108. 359 Ibid at 1109. 90

legislation that restricts aboriginal rights. Yet, we find that the words “recognition and affirmation” incorporate the fiduciary relationship referred to earlier and so import some restraint on the exercise of sovereign power. Rights that are recognized and affirmed are not absolute. Federal legislative powers continue, including, of course, the right to legislate with respect to Indians pursuant to s. 91(24) of the Constitution Act, 1867. These powers must, however, now be read together with s.35(1). In other words, federal power must be reconciled with federal duty and the best way to achieve that reconciliation is to demand the justification of any government regulation that infringes upon or denies aboriginal rights.360

The Court concluded that: “Our history has shown, unfortunately all too well, that Canada’s aboriginal peoples are justified in worrying about government objectives that may be superficially neutral but which constitute de facto threats to the existence of aboriginal rights and interests.”361

The Court went on to lay out the test for prima facie infringement of an Aboriginal right:

First, is the limitation unreasonable? Second, does the regulation impose undue hardship? Third, does the regulation deny to the holders of the right their preferred means of exercising that right? The onus of proving a prima facie infringement lies on the individual or group challenging the legislation.362

Where a prima facie infringement is found, the analysis moves on to justification.363 The first step is to determine whether government had a valid legislative objective. In Sparrow, the Court determined that the objective of the net length restriction was conservation.364 The Court stated that “the honour of the Crown is at stake in dealing with aboriginal peoples. The special trust relationship and the responsibility of the government vis-à-vis aboriginals must be the first

360 Ibid. 361 Ibid at 1110 362 Ibid at 1112. 363 Ibid at 1113. 364 Ibid at 1114.

consideration in determining whether the legislation or action in question can be justified.”365 The

Court then stated that: “The nature of the constitutional protection afforded by s.35(1) in this context demands that there be a link between the questions of justification and the allocation of priorities in the fishery. The constitutional recognition and affirmation of aboriginal rights may give rise to conflict with the interests of others given the limited nature of the resource.”366 The

Court recognized that the resolution to this conflict needed to be “responsive to the constitutional priority accorded aboriginal rights.”367

4.1.3.4 Priority as a way to meet the Crown’s obligations to Aboriginal groups

With respect to priority in an allocation scheme, the Court adopted Dickson J.’s analysis in

Jack v The Queen368 giving top priority to Indian food fishing as “responsive to the constitutional priority accorded aboriginal rights.”369 Quoting from Jack, the Court stated that the order of priority for the Aboriginal right of food fishing should fall after conservation purposes, but before commercial fishing. The Court identified that the order of priorities in the fishery should be: “(i) conservation; (ii) Indian fishing; (iii) non-Indian commercial fishing; or (iv) non-Indian sports fishing”. 370 The Court stated that:

We acknowledge the fact that the justificatory standard to be met may place a heavy burden on the Crown. However, government policy with respect to the British Columbia fishery, regardless of s. 35(1), already dictates that, in allocating the right to take fish, Indian food fishing is to be given priority over the interests of other user groups. The constitutional entitlement embodied in s. 35(1) requires

365 Ibid. 366 Ibid at 1115. 367 Ibid. 368 [1980] 1 SCR 294 [Jack]. 369 Supra note 347 at 1115. Although Jack dealt with s 13 of the Terms of Union of British Columbia, the Court in Sparrow adopted the reasoning of Dickson J’s dissent as appropriate to s 35. 370 Ibid.

the Crown to ensure that its regulations are in keeping with that allocation of priority. The objective of this requirement is not to undermine Parliament's ability and responsibility with respect to creating and administering overall conservation and management plans regarding the salmon fishery. The objective is rather to guarantee that those plans treat aboriginal peoples in a way ensuring that their rights are taken seriously.371 (Emphasis added)

Priority allocation as a way to meet the fiduciary obligations of the Crown will be further analyzed in relation to the Court’s decision in Delgamuukw v British Columbia372 below in section 4.3.

4.1.3.5 Conclusion on the importance of Sparrow

Sparrow determined that the promise made to Aboriginal peoples in section 35 of the

Constitution Act, 1982 acts as a constraint on the exercise of government power that requires justification when government action infringes Aboriginal rights. Sparrow established that the

Crown must demonstrate a clear and plain intention to extinguish an Aboriginal right when it argues that is has brought about such an extinguishment, and that mere regulation of a right does not manifest such an intention. Sparrow is also important for the recognition that priority allocations within an allocation scheme are one way for the Crown to reconcile the constitutional priority accorded Aboriginal rights with other interests in society.

4.2 Not all aspects of fiduciary relationships give rise to fiduciary duties

It is clear from Guerin and Sparrow that the relationship between the Crown and Aboriginal peoples is a fiduciary relationship, however, not all aspects of a fiduciary relationship attract fiduciary obligations. This section will discuss when the Crown-Aboriginal relationship gives rise

371 Ibid at 1119. 372 [1997] 3 SCR 1010 [Delgamuukw].

to enforceable obligations through reference to the decisions of the Supreme Court of Canada in

Wewaykum373 and MMF.374

4.2.1 Wewaykum

The facts in Wewaykum help to explain why the Supreme Court of Canada felt it necessary to import restrictions on the recognition of obligations in the broad fiduciary relationship between the Crown and Aboriginal peoples developed since Guerin. The dispute involved two bands of the

Laich-kwil-tach First Nation; the Wewaikai (Cape Mudge Indian Band reserve no. 10) and the

Wewaykum (Campbell River Indian Band reserve no. 11). In 1985 the Wewaykum began an action against both the Crown and the Wewaikai based on a clerical error in a Schedule of Indian Reserves which had been first published by the Department of Indian Affairs in 1892.375 By 1902, ditto marks on the schedule made it appear as though reserve 11 belonged to the Wewaykai band, though the reserve was inhabited by the Wewaykum band.376 A subsequent amendment to the schedule in

1907 made it appear as though both reserves 11 and 12 were allocated to the Wewaykum.377 Based on this clerical error and the Crown’s fiduciary duty to Aboriginal peoples, the Wewaykum band claimed ownership of the Wewaikai band’s reserve No. 12. The Wewaikai counterclaimed for title to both reserves, which the schedule at various times had indicated belonged to them.378 Thus, each band argued that, had the Crown acted in its best interest as fiduciary, it would be in possession of both reserves.379 Following the precedent in Guerin, for monetary damages for breach of fiduciary

373 Supra note 334. 374 Supra note 328. 375 Supra note 334 ¶29-32. 376 Ibid ¶32. 377 Ibid ¶41. 378 Ibid ¶64. 379 Ibid.

obligation, each band sought monetary compensation for the loss of the reserve land which the schedule had indicated belonged to it. The trial judge dismissed the claim, and the Federal Court of Appeal dismissed the appeal.

Justice Binnie wrote the decision for a unanimous Supreme Court of Canada in Wewaykum.

He referred to the equitable claims in question as “paper claims”380, “overly technical”381 and

“overly ambitious”382 attempts to allow form to triumph over substance, contrary to equity.383 In dismissing the appeals of both bands and affirming that “neither band emerged from the reserve- creation process with both reserves”,384 he explained the purpose of the Court’s recognition of the fiduciary relationship in Guerin and sought to delimit the types of situations which might give rise to equitable compensation in the Crown-Aboriginal relationship.

Binnie J. looked to “the historic powers and responsibility assumed by the Crown”385 as the basis of the fiduciary duty owed to Aboriginal peoples. He noted that the Court’s recognition of legal rights predating European settlement was relatively recent,386 but that such legal interests had been recognized by the U.S. Supreme court as early as 1823.387 Binnie J. began with the proposition from Guerin that fiduciary duties are imposed despite government functions, and not because of them.388 He stated that the purpose of recognizing such government fiduciary duties was to provide “supervision of the high degree of discretionary control gradually assumed by the

380 Ibid ¶6. 381 Ibid ¶43. 382 Ibid ¶103. 383 Ibid ¶44; equity looks to substance, rather than form. 384 Ibid ¶72. 385 Ibid ¶79, quoting Sparrow supra note 347 at 1108. 386 Ibid ¶75. 387 Ibid. 388 Ibid ¶76.

Crown over the lives of aboriginal peoples.”389 Supervision was required because of the vulnerability of Aboriginal peoples to Crown decisions:

This sui generis relationship had its positive aspects in protecting the interests of aboriginal peoples historically…, but the degree of economic, social and proprietary control and discretion asserted by the Crown also left aboriginal populations vulnerable to the risks of government misconduct or ineptitude.390

Justice Binnie identified that there are limits to the obligations which arise in the fiduciary relationship between the Crown and Aboriginal groups:

The appellants seemed at times to invoke the fiduciary duty as a source of plenary Crown liability covering all aspects of the Crown- Indian band relationship. This overshoots the mark. The fiduciary duty imposed on the Crown does not exist at large but in relation to specific Indian interests…

Since Guerin, Canadian courts have experienced a flood of “fiduciary duty” claims by Indian bands across a whole spectrum of possible complaints, for example:

(i) to structure elections (ii) to require the provision of social services (iii) to rewrite negotiated provisions (iv) to cover moving expenses (v) to suppress public access to information about band affairs (vi) to require legal aid funding (vii) to compel registration of individuals under the Indian Act (viii) to invalidate a consent signed by an Indian mother to the adoption of her child

I offer no comment about the correctness of the disposition of these particular cases on the facts, none of which are before us for decision, but I think it desirable for the Court to affirm the principle, already mentioned, that not all obligations existing between the parties to a fiduciary relationship are themselves fiduciary in nature, and that this principle applies to the relationship between the Crown and aboriginal peoples. It is necessary, then, to focus on the

389 Ibid ¶79. 390 Ibid ¶80.

particular obligation or interest that is the subject matter of the particular dispute and whether or not the Crown had assumed discretionary control in relation thereto sufficient to ground a fiduciary obligation.391 (Citations omitted, emphasis added)

The vulnerability Binnie J. identified was in relation to “specific Indian interests”392 such as the interest in reserve land, or rights recognized by section 35 of the Constitution Act, 1982.393

He noted that the “content of the Crown’s fiduciary duty towards aboriginal peoples varies with the nature and importance of the interest sought to be protected.”394 As the Crown assumed control over various aspects of Aboriginal peoples’ lives, it also took on responsibilities that varied according to the Aboriginal interests involved.

Binnie J. wrote that, once reserves are set aside for an Aboriginal group, the Crown’s fiduciary duty expands to protect the quasi-proprietary interest of that Aboriginal group in the reserve.395 Binnie J. discussed Wilson J.’s holding in Guerin to illuminate this point:

Wilson J. stated that prior to any disposition the Crown has “a fiduciary obligation to protect and preserve the Band’s interests from invasion or destruction” (p 350). The “interests to be protected from invasion or destruction, it should be emphasized, are legal interests, and the threat to their existence, as in Guerin itself, is the exploitative bargain (e.g. the lease with the Shaughnessy Heights Golf Club that in Guerin was found to be “unconscionable”). This is consistent with Blueberry River and Lewis. Wilson J.’s comments should be taken to mean that ordinary diligence must be used by the Crown to avoid invasion or destruction of the band’s quasi-property interest by an exploitative bargain with third parties or, indeed, exploitation by the Crown itself.396 (Emphasis added)

391 Ibid ¶81-83. 392 Ibid ¶81. 393 Ibid ¶84. 394 Ibid ¶86. 395 Ibid. 396 Ibid ¶100. 97

From these comments, it is clear that the interest of an Aboriginal group in reserve lands attracts a fiduciary duty to protect and preserve the band’s interest in the reserve from invasion, destruction and exploitation both from third parties, and from the Crown itself.

The trial judge and the Court of Appeal had held that balancing the interests of both bands with respect to their existing reserves was enough to discharge the fiduciary duty of the Crown.397

Binnie J. disagreed stating:

With respect, the role of honest referee does not exhaust the Crown’s fiduciary obligation here. The Crown could not, merely by invoking competing interests, shirk its fiduciary duty. The Crown was obliged to preserve and protect each band’s legal interest in the reserve which, on a true interpretation of events, had been allocated to it.398

It is important to remember that fiduciary obligations, where they exist, require more than a balancing of interests. The fiduciary standard requires preservation and protection of the unique interest involved.

4.2.1.1 Conclusion on the importance of Wewaykum

From the above discussion it can be seen that since Guerin, through Sparrow and

Wewaykum the Court has been refining its approach to the sui generis fiduciary relationship between the Crown and Aboriginal groups. Though the relationship between the Crown and

Aboriginal groups is characterized as fiduciary, not all aspects of the relationship attract fiduciary obligations. Those aspects of the relationship that do attract fiduciary obligations are in relation to specific or cognizable Indian interests, including rights protected by section 35 of the Constitution

Act, 1982, such as reserves. The standard to be met by the Crown in discharging its duties is one of ordinary diligence in the avoidance of invasion or destruction of a given band’s quasi-property

397 Ibid ¶104. 398 Ibid ¶104. 98

interest by both third parties and by the Crown itself. This aspect of Wewaykum was affirmed in

MMF, which is described below.

4.2.2 MMF

The Supreme Court of Canada revisited the parameters of the Crown-Aboriginal fiduciary relationship in MMF.399 In the action, the Manitoba Métis Federation sought redress for breaches of fiduciary duty which allegedly frustrated or defeated the rights of the Métis people contained in section 31 of the Manitoba Act, 1870.400 McLachlin C.J. and Karakatsanis J. wrote the majority judgement, while Rothstein J. wrote a dissenting opinion in which Moldaver J. concurred.

The Manitoba Act, 1870 was promulgated to facilitate peaceful annexation of the Red

River settlement.401 Section 31 set aside 1.4 million acres of land402 to be divided between the

“children of the half-breed heads of families”.403 There were many problems with the allotment, and the process took fifteen years to complete.404 In the meantime, many Métis moved west while many white settlers moved into what was now Manitoba.405

Over one hundred years later, the Manitoba Métis Federation sought, among other things, declarations that the Crown had breached constitutional and fiduciary duties owed to the Métis and that it had failed to implement the land provisions of the Manitoba Act, 1870 in accordance with the honour of the Crown.406 Although it did not find that a fiduciary obligation existed, the

399 Supra note 328. 400 Manitoba Act, SC 1870 c 3, reprinted in RSC 1985, App II No 8; MMF, supra note 328 (Factum of Appellant ¶1); note that a claim was also made regarding s 32, but it was held to be a “benefit made generally available to all settlers” and not “ a promise made specifically to an Aboriginal group”, Supra note 328 ¶95. 401 Ibid ¶4. 402 5665.6 km2 or an area 5.6 km2 larger than Prince Edward Island. 403 Manitoba Act, supra note 400, s 31. 404 Supra note 328 ¶38. 405 Ibid ¶39. 406 Supra note 328 (Factum of Appellant ¶298).

majority’s decision did set out and clarify the types of fiduciary obligations that can be owed to

Aboriginal peoples by the Crown. In allowing the appeal, the majority held that the honour of the

Crown had been breached because the Crown had failed to interpret the requirements of section

31 of the Manitoba Act, 1870 purposively and act with diligence to fulfill its purpose.407

McLachlin C.J. and Karakatsanis J. set out that there are at least two ways in which fiduciary obligations may arise. The first, in the Aboriginal context, is the assumption of control over specific Aboriginal interests, and the second, more generally, is through a specific undertaking.408 Only the assumption of control over a specific Aboriginal interest will be explored below.

The Chief Justice and Karakatsanis J. cited Haida Nation v British Columbia (Minister of

Forests)409 for the proposition that “[w]here the Crown has assumed discretionary control over specific Aboriginal interests, the honour of the Crown gives rise to a fiduciary duty.”410 The majority did this, strangely, despite the Court not finding such a duty in that case, because the

Aboriginal interest asserted in Haida was not yet proven, and therefore “insufficiently specific for the honour of the Crown to mandate that the Crown act in the Aboriginal group’s best interest, as a fiduciary.”411

The majority in MMF also cited Wewaykum as support for the proposition that specific

Aboriginal interests might give rise to Crown fiduciary obligations.412 The Chief Justice and

407 Supra note 328 ¶128. 408 Ibid 14 ¶49-50. 409 2004 SCC 73 [Haida]. 410 Ibid ¶18. 411 Ibid. 412 Supra note 328 ¶49.

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Karakatsanis J. advanced the propositions from Wewaykum discussed above in section 4.2.1, that

“[t]he focus is on the particular interest that is the subject matter of the dispute”413 and that “[t]he content of the Crown’s fiduciary duty towards Aboriginal peoples varies with the nature and importance of the interest sought to be protected.”414 They then applied these propositions to the factual situation presented in MMF.

In analyzing the Manitoba Métis Federation’s claim that the Crown had breached its fiduciary obligations to the Métis in failing to implement section 31 of the Manitoba Act in a timely fashion, the majority stated that the interest giving rise to any such obligation must be specifically collective and Aboriginal.415 In the context of whether or not the Métis interest in section 31 lands was Aboriginal, the majority stated that “[t]he fact that the Métis are Aboriginal and had an interest in the land is not sufficient to establish an Aboriginal interest in land.”416 The majority stated that for a fiduciary obligation to attach to the interest in section 31 lands, the interest “must be a communal Aboriginal interest in the land that is integral to the nature of the Métis distinctive community and their relationship to the land.”417 The trial judge had found that the Métis held land individually and regarded individual interests as alienable.418 Their attachment to land stemmed from personal history, rather than shared identity.419 Their Aboriginal interest in the land was not collective and therefore there was no fiduciary obligation on the part of the federal government to protect their interest.

413 Ibid. 414 Ibid. 415 Ibid ¶53. 416 Ibid. 417 Ibid. 418 Ibid ¶56. 419 Ibid.

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The majority held that the Manitoba Métis Federation had failed to establish a pre-existing communal attachment to land. The Manitoba Métis Federation also argued that section 31 created such an interest in land, but the majority stated that “[a]n Aboriginal interest in land giving rise to a fiduciary duty cannot be established by treaty, or, by extension, legislation. Rather, it is predicated on historic use and occupation.”420 Because it was held that legislation could not create an Aboriginal interest in land, and because the Métis interest in section 31 lands was not communal, the claim that federal government owed a fiduciary duty to the Métis to protect their interest in lands failed.

4.2.2.1 Conclusion on the importance of MMF

MMF reiterated that the Crown’s assumption of control over specific Aboriginal interests gives rise to fiduciary obligations. Although no such obligations were found in MMF, this case can be distinguished from the situation in Treaty 7 on the basis that the trial judge in MMF found that the Métis owned land individually, and did not have a collective interest in land. The

Aboriginal groups that signed Treaty 7 have collective interests in their respective reserve lands that are recognized by, and not created by, Treaty 7.

As established by Guerin, the Aboriginal interest in reserve lands and in unceded Aboriginal title lands is the same. For this reason, recent cases dealing with the nature of the Aboriginal interest in unceded Aboriginal title lands are relevant to the consideration of the interest of Treaty

7 signatories in their respective reserves. Two cases which discuss Aboriginal title, Delgamuukw421 and Tsilhqot’in422 will be discussed in the next section.

420 Ibid ¶58. 421 Supra note 372. 422 Tsilhqot’in Nation v British Columbia, 2014 SCC 44 [Tsilhqot’in].

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4.3 Aboriginal title is an Aboriginal interest that gives rise to a fiduciary duty

The modern era of Aboriginal land law began with the decision of the Supreme Court of

Canada in Calder v Attorney General of British Columbia,423 where the Court ruled that Aboriginal land rights survived European settlement unless extinguished.424 As a result of that recognition, the legal concept of Aboriginal title was developed in the cases, Delgamuukw, and Tsilhqot’in.

Each case will be presented in turn to develop a framework for understanding what Aboriginal title is.

4.3.1 Delgamuukw

In Tsilhqot’in, the Supreme Court of Canada provided an overview of the law of Aboriginal title. In relation to the earlier case of Delgamuukw the Court stated that it had:

…summarized the content of Aboriginal title by two propositions, one positive and one negative. Positively, “[A]boriginal title encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be aspects of those [A]boriginal practices, customs and traditions which are integral to distinctive [A]boriginal cultures”. Negatively, the “protected uses must not be irreconcilable with the nature of the group’s attachment to that land” — that is, it is group title and cannot be alienated in a way that deprives future generations of the control and benefit of the land. 425 (Citations omitted).

The Court also stated that Delgamuukw:

…confirmed that infringements of Aboriginal title can be justified under s. 35 of the Constitution Act, 1982 pursuant to the Sparrow test and described this as a “necessary part of the reconciliation of [A]boriginal societies with the broader political community of which they are part” (at para. 161), quoting R. v. Gladstone, at para. 73. While Sparrow had spoken of priority of Aboriginal rights infringed by regulations over non-aboriginal

423 [1973] SCR 313. 424 Supra note 422 ¶10. 425 Ibid ¶15.

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interests, Delgamuukw articulated the “different” (at para. 168) approach of involvement of Aboriginal peoples — varying depending on the severity of the infringement — in decisions taken with respect to their lands.426 (Citations omitted)

These aspects of the decision in Delgamuukw, namely the content of Aboriginal title, and what is required to justify its infringement, will be described below.

4.3.1.1 The content of Aboriginal title

In Delgamuukw, Chief Justice Lamer set out that “Aboriginal title encompasses the right to use the land held pursuant to that title for a variety of purposes, which need not be aspects of those aboriginal practices, cultures and traditions which are integral to distinctive aboriginal cultures.”427

Lamer C.J. arrived at this conclusion by referencing Guerin where Aboriginal title was “framed in broad terms and, significantly … not qualified by reference to traditional and customary uses of those lands”.428

Lamer C.J. referenced case law precedent, the Indian Act and the Indian Oil and Gas Act in his analysis of the content of Aboriginal title. In relation to case law, Lamer C.J. referenced the decision of Dickson J. in Guerin for the proposition that the Indian interest in reserves and the interest in Aboriginal title in traditional lands is the same.429 Lamer C.J. characterized the Indian interest in reserve land as “very broad”430 stating with reference to section 18(1) of the Indian Act that:

[the] uses and benefits [to which reserve lands can be put], on the face of the Indian Act, do not appear to be restricted to practices, customs and traditions integral to distinctive aboriginal cultures. The breadth of those uses is reinforced by s. 18(2), which

426 Ibid ¶16. 427 Supra note 372 ¶117 and ¶124. 428 Ibid ¶119. 429 Ibid ¶120, citing Guerin, supra note 330 at 379. 430 Supra note 372 at ¶121. 104

states that reserve lands may be used “for any other purpose for the general welfare of the band”. The general welfare of the band has not been defined in terms of aboriginal practices, customs and traditions, nor in terms of those activities which have their origin pre-contact; it is a concept, by definition, which incorporates a reference to the present-day needs of aboriginal communities. On the basis of Guerin, lands held pursuant to aboriginal title, like reserve lands, are also capable of being used for a broad variety of purposes.431

With respect to the Indian Oil and Gas Act, Lamer C.J. stated that

The statute presumes that the aboriginal interest in reserve land includes mineral rights... On the basis of Guerin, aboriginal title also encompass[es] mineral rights, and lands held pursuant to aboriginal title should be capable of exploitation in the same way, which is certainly not a traditional use for those lands.432

The conclusion of Lamer C.J., that “aboriginal title encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be aspects of those aboriginal practices, customs and traditions which are integral to distinctive aboriginal cultures” 433 was affirmed by the Supreme Court of Canada in Tsilhqot’in.434 The Court in Tsilhqot’in also referred to Delgamuukw for the framework for the justification of infringement of Aboriginal title, which is set out below.

4.3.1.2 Justification for infringement of Aboriginal title

In Delgamuukw, the Court stated that:

What has become clear is that the requirements of the fiduciary duty are a function of the “legal and factual context” of each appeal. Sparrow and Gladstone, for example, interpreted and applied the fiduciary duty in terms of the idea of priority. The theory underlying that principle is that the fiduciary relationship between

431 Ibid ¶121. 432 Ibid ¶122. 433 Ibid ¶117 and ¶124. 434 Supra note 422 ¶15.

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the Crown and aboriginal peoples demands that aboriginal interests be placed first. However, the fiduciary duty does not demand that aboriginal rights always be given priority… Other contexts permit, and may even require, that the fiduciary duty be articulated in other ways.435 (references omitted)

Where the right is subject to an internal limit, as in Sparrow, “the requirement of priority was applied strictly to mean that “any allocation of priorities after valid conservation measures have been implemented must give top priority to Indian food fishing”.”436 The Court contrasted the internally-limited right in Sparrow with the commercial right alleged in Gladstone,437 stating that the right to sell fish commercially was only limited by supply and demand.438 Where the Aboriginal right was not subject to an internal limit, priority would amount to an exclusive right to exploit the fishery. The test for justification was therefore modified in Gladstone in the following way:

Where the aboriginal right is one that has no internal limitation then the doctrine of priority does not require that, after conservation goals have been met, the government allocate the fishery so that those holding an aboriginal right to exploit that fishery on a commercial basis are given an exclusive right to do so. Instead, the doctrine of priority requires that the government demonstrate that, in allocating the resource, it has taken account of the existence of aboriginal rights and allocated the resource in a manner respectful of the fact that those rights have priority over the exploitation of the fishery by other users. This right is at once both procedural and substantive; at the stage of justification the government must demonstrate both that the process by which it allocated the resource and the actual allocation of the resource which results from that process reflect the prior interest of aboriginal rights holders.439(Emphasis added)

435 Supra note 372 ¶162. 436 Ibid ¶163. 437 R v Gladstone, [1996] 2 SCR 723 [Gladstone]. 438 Supra note 372 ¶164. 439 Ibid quoting Gladstone, supra note 437 at [62].

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Lamer C.J. stated that “[t]he general principles governing justification laid down in Sparrow, and embellished by Gladstone, operate with respect to infringements of aboriginal title.”440 He stated that a broad range of legislative objectives might in principle be able to justify infringement of

Aboriginal title, such as “the development of agriculture, forestry, mining, and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations to support those aims”.441 Although these legislative objectives might in principle be justifiable infringements of Aboriginal title, it nevertheless falls to an infringing government to demonstrate that “the actual allocation of the resource which results from that process reflects the prior interest of aboriginal rights holders.”442

In concluding his analysis of the justification of Aboriginal title, Lamer C.J. stated that, due to the “inescapably economic aspect” of Aboriginal title, compensation would also be relevant to the question of justification.443 Lamer C.J. suggested that: “The amount of compensation payable will vary with the nature of the particular aboriginal title affected and with the nature and severity of the infringement and the extent to which aboriginal interests were accommodated”,444 but since the issue of damages was severed from the principle action in the case, he suggested that

“those difficult questions”445 be left for another day.

440 Supra note 372 ¶165. 441 Ibid. 442 Ibid ¶164. 443 Ibid ¶169. 444 Ibid. 445 Ibid. 107

4.3.1.3 Conclusion on the importance of Delgamuukw

Delgamuukw reiterated the idea from Guerin that the interest in reserve lands and the interest in Aboriginal title lands is the same. Delgamuukw also set out that infringements of

Aboriginal title must be justified. Although a broad range of legislative objectives might validly infringe upon Aboriginal title, the doctrine of priority requires the Crown to demonstrate that it has allocated a given resource in a manner respectful of prior Aboriginal interests.

4.3.2 Tsilhqot’in

In Tsilhqot’in, the Supreme Court of Canada further clarified the legal characterization of

Aboriginal title to land, the rights conferred by Aboriginal title, and the constitutional constraints associated with land held under Aboriginal title.446 The Court reiterated that Aboriginal groups’ prior occupation of Canada is an “independent legal interest, which gives rise to a fiduciary duty on the part of the Crown.”447 The Court also clarified the division of powers between the provincial and federal government with respect to Aboriginal title land. These two aspects of the case, 1) the characterization of Aboriginal title and the Crown’s fiduciary duty, and 2) the division of powers with respect to Aboriginal title will be dealt with in turn.

4.3.2.1 Aboriginal title and the Crown’s fiduciary duty

The Court described the content of Aboriginal title stating that: “Aboriginal title is a beneficial interest in the land. In simple terms, the title holders have the right to the benefits associated with the land – to use it, enjoy it and profit from its economic development.”448

446 Supra note 422 ¶1. 447 Ibid ¶69. 448 Ibid ¶70.

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The ability of Aboriginal title-holders to decide how their lands are to be used means that, absent consent of the Aboriginal title holder, governments must justify their infringements.449

Reconciliation is at the heart of justification of infringement of Aboriginal title:

As Delgamuukw explains, the process of reconciling Aboriginal interests with the broader interests of society as a whole is the raison d’être of the principle of justification. Aboriginals and non- Aboriginals are “all here to stay” and must of necessity move forward in a process of reconciliation (para. 186). To constitute a compelling and substantial objective, the broader public goal asserted by the government must further the goal of reconciliation, having regard to both the Aboriginal interest and the broader public objective.450

The Court reiterated the broad types of legislative objectives which could justify infringing

Aboriginal title from Delgamuukw.451 If a valid legislative objective is identified, an infringing government must demonstrate that its action is consistent with the Crown’s fiduciary duty to the

Aboriginal group in question. This influences the justification process in two ways:

First, the Crown’s fiduciary duty means that the government must act in a way that respects the fact that Aboriginal title is a group interest that inheres in present and future generations. The beneficial interest in the land held by the Aboriginal group vests communally in the title-holding group. This means that incursions on Aboriginal title cannot be justified if they would substantially deprive future generations of the benefit of the land.

Second, the Crown’s fiduciary duty infuses an obligation of proportionality into the justification process. Implicit in the Crown’s fiduciary duty to the Aboriginal group is the requirement that the incursion is necessary to achieve the government’s goal (rational connection); that the government go no further than necessary to achieve it (minimal impairment); and that the benefits that may be expected to flow from that goal are not outweighed by

449 Ibid ¶76. 450 Ibid ¶82. 451 Ibid ¶83 quoting Delgamuukw, supra note 372 ¶165.

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adverse effects on the Aboriginal interest (proportionality of impact).452 (Emphasis added)

The idea that depriving future generations of the benefit of the land may not be justifiable is an important consideration for determining whether Alberta’s current water allocation framework could ever be justified because it subjects future water use on reserve to off reserve interests.

In the Court’s analysis under section 35 of the Constitution Act, 1982, the Court reiterated the two inquiries required: 1) does the legislation interfere with an Aboriginal right? 2) Can the infringement be justified? The Court began by considering the incidents of the right at stake, which was Aboriginal title. The Court set out three relevant incidents of Aboriginal title:

(1) the right to exclusive use and occupation of the land; (2) the right to determine the uses to which the land is put, subject to the ultimate limit that those uses cannot destroy the ability of the land to sustain future generations of Aboriginal peoples; and (3) the right to enjoy the economic fruits of the land.453

In order to determine whether Aboriginal title had been infringed, the Court set out that the

Sparrow factors were relevant. The Court considered the factors it had identified in Sparrow, namely, “(1) whether the limitation imposed by the legislation is unreasonable; (2) whether the legislation imposes undue hardship; and (3) whether the legislation denies the holders of the right their preferred means of exercising the right.”454 In its analysis of whether the forestry legislation at issue in Tsilhqot’in infringed Aboriginal title, the Court stated:

General regulatory legislation, which may affect the manner in which the Aboriginal right can be exercised, differs from legislation that assigns Aboriginal property rights to third parties. The issuance of timber licences on Aboriginal title land for example — a direct transfer of Aboriginal property rights to a third party — will plainly

452 Supra note 422 ¶86 and ¶87. 453 Ibid ¶121. 454 Ibid ¶122

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be a meaningful diminution in the Aboriginal group’s ownership right and will amount to an infringement that must be justified in cases where it is done without Aboriginal consent.455 (Emphasis added)

It is clear that granting third parties property rights which interfere with Aboriginal title is a

“serious infringement that will not be lightly justified”.456 Given the Court’s earlier comments regarding incursions on Aboriginal title that would deprive future generations of the benefit of the land,457 it is likely that the chances of the Crown justifying incursions that could interfere with

Aboriginal title are also very low.

4.3.2.2 The division of powers and the end of interjurisdictional immunity

The Court began its analysis by observing that provincial power to regulate land held under

Aboriginal Title is limited in two ways: section 35 of the Constitution Act, 1982 and the federal government’s power over “Indians and Land reserved for the Indians” under section 91(24).458

The Court stated that section 35 “protects Aboriginal rights against provincial and federal legislative power and provides a framework to facilitate negotiations and reconciliation of

Aboriginal interests with those of the broader public”.459

The Court stated that there are two doctrines which apply to interjurisdictional disputes: 1) the doctrine of paramountcy and 2) the doctrine of interjurisdictional immunity.460 The Court set out that there was no inconsistency alleged in Tsilhquot’in which could engage the doctrine of paramountcy: There was only a provincial forestry law and no similar federal law.461

455 Ibid ¶123 456 Ibid ¶127. 457 See Supra, text at note 452. 458 Ibid ¶103. 459 Ibid ¶119. 460 Ibid ¶130 and ¶131. 461 Ibid ¶130. 111

The Court held that the doctrine of interjurisdictional immunity which protected an

“unassailable core” of a head of power under sections 91 and 92 of the Constitution Act, 1867 was not applicable to the regulation of Aboriginal rights. The Court stated:

As discussed, s. 35 of the Constitution Act, 1982 imposes limits on how both the federal and provincial governments can deal with land under Aboriginal title. Neither level of government is permitted to legislate in a way that results in a meaningful diminution of an Aboriginal or treaty right, unless such an infringement is justified in the broader public interest and is consistent with the Crown’s fiduciary duty owed to the Aboriginal group. The result is to protect Aboriginal and treaty rights while also allowing the reconciliation of Aboriginal interests with those of the broader society.

What role then is left for the application of the doctrine of interjurisdictional immunity and the idea that Aboriginal rights are at the core of the federal power over “Indians” under s. 91(24) of the Constitution Act, 1867? The answer is none.

The doctrine of interjurisdictional immunity is directed to ensuring that the two levels of government are able to operate without interference in their core areas of exclusive jurisdiction. This goal is not implicated in cases such as this. Aboriginal rights are a limit on both federal and provincial jurisdiction. 462

The Court stated that the problem in relation to the regulation of Aboriginal rights was not

“competing provincial and federal powers”463 but rather tension between Aboriginal rights and government regulation of those rights.

In support of its determination that interjurisdictional immunity would no longer be applicable to the regulation of Aboriginal rights, the Court stated that its approach would avoid two problems: 1) dueling tests for interference with an Aboriginal right as between interjurisdictional immunity, which would not permit provincial regulation of an Aboriginal right

462 Ibid ¶139 to ¶141. 463 Ibid ¶144 112

based on the exclusive legislative jurisdiction over Indians in section 91(24), and the test for justification of infringement under section 35, and 2) the avoidance of legislative vacuums or a patchwork of legislation which could frustrate legislative goals.464

The Court concluded that the section 35 Sparrow approach now governs provincial laws of general application which affect Aboriginal rights and requires that such laws be justified.

4.3.2.3 Conclusion on the importance of Tsilhqot’in

Tsilhqot’in largely reiterated the tests from Sparrow and Delgamuukw, and confirmed that granting third parties property interests that interfere with Aboriginal title is a serious infringement.

Tsilhqot’in also made clear that the doctrine of interjurisdictional immunity does not apply to

Aboriginal rights, because Aboriginal rights equally constrain the actions of both provincial and federal governments.

4.3.3 Is the interest in Aboriginal title lands the same as the interest in reserve lands?

Although the Supreme Court of Canada in both Guerin and Delgamuukw stated that the interest in Aboriginal title lands and in reserve lands is the same, this issue was not directly before the Court in either case. In Osoyoos Indian Band v Oliver (Town)465 [Osoyoos] the Supreme Court of Canada split on the nature of the interest in a reserve created pursuant to the Indian Act.466

The case came before the Court by way of a stated case involving questions over the ability of an Indian Band to tax lands expropriated by the federal government. The Court noted that though key details were missing from the limited factual record before it, the Court was nevertheless required to answer the questions posed:

464 Ibid ¶146 and ¶147. 465 [2001] 3 SCR 746. 466 Indian Act, RSC 1985, c I-5. 113

In my view, as a general matter the Court should be cautious in taking away interests in land in the absence of a complete evidentiary record. This is especially true when the interest at stake is the aboriginal interest in reserve land. As discussed below, in order to extinguish an aboriginal interest in reserve land the Sovereign must evince a clear and plain intention to do so. In this case, we are faced with the difficult task of determining intention without supporting facts and evidence. Having said all this, as the appeal comes by way of a stated case, we must determine the rights of the parties as best we can using the evidence at hand.467

The Majority, including McLachlin C.J., Iacobucci, Binnie, Arbour, and LeBel JJ., recognized the evolving legal status of Aboriginal interests. The Majority stated:

… our understanding of the nature of aboriginal interests in land has continued to develop. In this connection, when describing the features of the aboriginal interest in reserve land it is useful to refer to this Court’s recent jurisprudence on the nature of aboriginal title. Although the two interests are not identical, they are fundamentally similar.468 (Citations omitted)

For the Majority, the nature of the interest in Aboriginal title lands, and the nature of the interest in reserve lands was “fundamentally similar”.

For the Minority, including L’Heureux-Dubé, Gonthier, Major, and Bastarache JJ., the lack of evidence before the Court was also an issue.469 The evidence before the Court did not reveal anything about the nature of the Aboriginal interest in the reserve lands in question. The Minority stated: “a bare interest in reserve land which is not also the object of aboriginal title, treaty rights or such other aboriginal rights cannot be considered to be an “aboriginal right” that is protected under s. 35 of the Constitution Act, 1982.”470 It is clear that the issue for the Minority in Osoyoos

467 Osoyoos, supra note 465 ¶40. 468 Ibid ¶41. 469 Ibid ¶96. 470 Ibid ¶169. 114

was that there was no evidence before them about the nature of the interest in the reserve lands in question.

Had there been evidence of an Aboriginal interest, such as a treaty right to reserve land or

Aboriginal title, it is arguable that the Minority would have agreed with the Majority description of the interest in Aboriginal title lands, and reserve lands as “fundamentally similar”.

4.4 Summary of sections 4.1-4.3

As described above throughout the previous sections, the interest in reserves and in

Aboriginal title lands is the same (section 4.1.2.1), or fundamentally similar (section 4.3.3).

Aboriginal title is the right to determine the uses to which the land is put and to enjoy its economic fruits (section 4.3.2.1). It has been established that “[t]he general principles governing justification laid down in Sparrow, and embellished by Gladstone, operate with respect to infringements of aboriginal title.” And that this requires that “the actual allocation of the resource … reflect[s] the prior interest of aboriginal rights holders” (section 4.3.1.2). It has also been established that “that incursions on Aboriginal title cannot be justified if they would substantially deprive future generations of the benefit of the land” (section 4.3.2.1).

On the basis of the foregoing, Treaty 7 signatories have an Aboriginal interest in their reserve lands, which gives them the right to determine the uses to which their reserve lands will be put as well as enjoy the economic fruits of those reserve lands. To the extent that Alberta’s water allocation framework grants third parties rights to waters which may impact the uses to which reserve lands may be put, it is a serious infringement of an Aboriginal interest which will not be lightly justified. To the extent that Alberta’s allocation framework does not reflect the prior interest of Aboriginal groups, it would fail the justification test outlined in section 4.3.1.2 for not respecting the doctrine of priority.

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Further, to the extent that the North-west Irrigation Act assumed discretionary control over the Aboriginal interest in waters associated with reserve lands, this Crown action gave rise to a fiduciary obligation to protect the interest of Aboriginal groups in their reserves. Jurisdiction with respect to surface waters was transferred to Alberta in 1930, and Alberta’s interest in water is subject to “any interest other than that of the Crown in the same”. Though these words made it clear that Alberta’s interest in waters is subject to other interests, on the basis of R v Secretary of

State outlined below in section 4.5, even without these words, the transfer of jurisdiction over surface waters to Alberta would have been attended by the Crown’s responsibilities to Aboriginal peoples.

4.5 Jurisdiction carries obligations: R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Indian Association of Alberta and others471

While the Canada Bill was before the Parliament of the United Kingdom, prior to the partition of the Canadian Constitution in 1982, a group of Aboriginal plaintiffs petitioned the

British courts for a declaration “that treaty or other obligations entered into by the Crown to the

Indian peoples of Canada are still owed by Her Majesty in right of Her Government in the United

Kingdom”.472 The applicants appealed the decision of the Crown Office denying them leave to apply for judicial review.473 It was the position of the Foreign and Commonwealth Office that “all relevant treaty obligations insofar as they still subsisted became the responsibility of the

Government of Canada with the attainment of independence, at the latest with the Statute of

471 [1982] 2 All ER 118 [R v Secretary of State]. 472 Ibid at 122 f. 473 Ibid at 121 j.

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Westminster 1931.”474 Three judgements were read in which the appeal was dismissed, two of which are dealt with below.

4.5.1 Lord Denning M.R.

Lord Denning M.R. decided that based on constitutional usage and practice the formerly

“single and indivisible Crown” had evolved into “separate and divisible” Crowns.475 As a result of this evolution, Lord Denning M.R. decided that “those obligations which were previously binding on the Crown simpliciter are now to be treated as divided. They are to be applied to the dominion or province or territory to which they relate: and confined to it.”476 Having considered the entrenchment of Aboriginal and treaty rights in section 35(1) of part II of the Constitution Act,

1982, Lord Denning concluded:

There is nothing, so far as I can see, to warrant any distrust by the Indians of the government of Canada. But, in case there should be, the discussion in this case will strengthen their hand so as to enable them to withstand any onslaught. They will be able to say that their rights and freedoms have been guaranteed to them by the Crown, originally by the Crown in respect of the United Kingdom, now by the Crown in respect of Canada, but, in any case, by the Crown. No parliament should do anything to lessen the worth of these guarantees. They should be honoured by the Crown in respect of Canada 'so long as the sun rises and river flows'. That promise must never be broken.477

Although written regarding the responsibility for obligations of the Crown towards Aboriginal peoples as between Canada and the United Kingdom, Lord Denning’s analysis equally lends itself to a consideration of responsibility for obligations as between the provincial and federal

474 Ibid at 122 h. 475 Ibid at 127-28. 476 Ibid at 128. 477 Ibid at 129-130. 117

governments in Canada. Lord Kerr’s analysis was similar in this regard, and is presented in the next section.

4.5.2 Kerr L.J.

Rather than focusing on the evolution of the Crown into separate and divisible Crowns, Kerr

L.J. more specifically focused on the situs of the obligations alleged to be owed by the Crown in right of the United Kingdom. Based on two propositions: that once structures of government were in place in a colony, that government was to be regarded as distinct from the government in the

United Kingdom,478 and; that the liabilities of a particular territory can only be satisfied out of the revenues of that territory,479 Kerr L.J. stated that “the situs of obligations on the part of the Crown is to be found only in that territory within the realm of the Crown where such obligations can be enforced against a local administration.”480

Citing the decision of the House of Lords in A-G v Great Southern and Western Rly Co of

Ireland481 Kerr L.J. wrote that:

The importance of this case for present purposes is that it shows that there may be a devolution of rights and obligations of the Crown in respect of the government of Great Britain to another government within the Commonwealth without any express statutory or other transfer, but merely by virtue of the creation of the new government and of the assignment to it of responsibilities which relate to the rights and obligations in question.482 (Emphasis added)

Kerr L.J. held that this illustrated that “obligations exist only in respect of that government within the realm of the Crown against which such obligations can be enforced.”483

478 Ibid at 131 e. 479 Ibid at 132 a. 480 Ibid at 132 b. 481 A-G v Southern and Western Rly Co of Ireland, [1925] AC 754. 482 Supra note 471 at 132 f. 483 Ibid at 133 d. 118

4.5.3 Conclusion on the importance of R v Secretary of State

The comments of both Lord Denning and Kerr L.J. are useful in considering the effect of the transfer of the Crown’s property interest in surface waters from the federal government to

Alberta in 1930. Even without the express words qualifying the province’s ownership as being

“subject to any trusts existing in respect thereof, and to any interest other than that of the Crown of the same” the transfer of jurisdiction over surface waters would have necessarily included the transfer of the Crown’s obligations to Aboriginal groups associated with surface waters.

4.5.4 Conclusion regarding an Aboriginal interest in waters associated with reserve lands and a Crown obligation to protect that interest

It is indisputable that the Crown has always had knowledge that the signatories of Treaty 7 have an interest in the waters adjacent to their reserves. Recall from section 3.1.5 that the Governor in Council acknowledged the year before the passage of the North-west Irrigation Act that irrigation would “increase the value of the reserve”. It is also indisputable that the Crown had knowledge that basing a water allocation scheme on temporal priority of licence while at the same time failing to secure licences for surface waters on behalf of Treaty 7 signatories would make future Treaty 7 water allocations contingent upon senior water rights, because temporal priority of allocation was the basis of seniority of right under the North-west Irrigation Act (section 3.2.4.1).

Recall from section 2.7 the words of Special Master Rifkind who stated with regards to the United

States that “it must have been apparent that if [the Indians] were thrown into competition with the more advanced non-Indians in a race to acquire rights to water by putting it to beneficial use, they would have lost the match before it was begun.” Recall also from section 3.1.5 Indian Agent

Wilson’s protestations against the allocation of Blood reserve waters by nearby farmers in

Cardston.

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To the extent that the North-west Irrigation Act assumed discretionary control over the

Aboriginal interest in waters associated with reserve lands, this Crown action gave rise to a fiduciary obligation to protect the interest of Treaty 7 signatories in their respective reserves. The

Crown should have taken steps to ensure that Treaty 7 signatories’ on-reserve water use would not be subject to the rights of off-reserve water users.

Commencing an action against the Crown for breach of fiduciary duty could rectify this inequity. The following section suggests a remedy that would correct the inequity created by the federal and provincial government’s failings to address these issues over the last 121 years.

4.6 A constructive trust is an appropriate remedy for the Crown’s failure to protect the Aboriginal interest in surface waters

The primary reason for the disagreement between Wilson J. and Dickson J. about whether the obligation owed by the Crown in Guerin was a trust or a fiduciary duty was based, from

Dickson J’s point of view, on that the finding of a trust required a finding of unjust enrichment on the part of the Crown.484 The requirement of unjust enrichment for the recognition of a constructive trust was removed in Soulos v Korkontzilas,485 and affirmed in Professional Institute of the Public

Service of Canada v Canada (Attorney General).486

A majority of the Supreme Court of Canada adopted the following definition of a constructive trust in Soulos:

A constructive trust is the formula through which the conscience of equity finds expression. When property has been acquired in such circumstances that the holder of the legal title may not in good

484 See supra, text at note 344. 485 [1997] 2 SCR 217 [Soulos]. 486 2012 SCC 71.

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conscience retain the beneficial interest, equity converts him into a trustee.487

There are in general four criteria which must be satisfied in order for a court to grant the remedy of a constructive trust:

(1) The defendant must have been under an equitable obligation, that is, an obligation of the type that courts of equity have enforced, in relation to the activities giving rise to the assets in his hands;

(2) The assets in the hands of the defendant must be shown to have resulted from deemed or actual agency activities of the defendant in breach of his equitable obligation to the plaintiff;

(3) The plaintiff must show a legitimate reason for seeking a proprietary remedy, either personal or related to the need to ensure that others like the defendant remain faithful to their duties and;

(4) There must be no factors which would render imposition of a constructive trust unjust in all the circumstances of the case; e.g., the interests of intervening creditors must be protected.488

With regard to surface waters in Treaty 7, the first two criteria are met by the assumption of control over surface waters by the Crown. The third criteria is met by Aboriginal groups’ collective interest in their respective reserve lands, and the need to protect that interest for future generations. With regard to the fourth criteria, there are no factors which would render a constructive trust unjust in the circumstances. Although a constructive trust recognizing priority water rights for Treaty 7 signatories would subject water rights holders in southern Alberta to the senior water rights of First

Nations, this is objectively no different from First Nations’ water rights currently being subject to the senior water rights of other Albertans. Further, recognition of a constructive trust affording senior water rights to First Nations would ensure that Alberta’s water allocation framework is

487 Supra note 485 ¶29. 488 Ibid at ¶45. 121

consistent with the constitutional priority of Aboriginal rights, specifically in this case, the Treaty right to reserve land. An action for breach of fiduciary duty, seeking the remedy of a constructive trust, would also have the benefit of being within the relevant limitations period as described in the next section.

4.7 Limitations of Actions and Aboriginal claims

4.7.1 Limitation periods apply to Aboriginal interests

MMF affirms that limitation periods apply to Aboriginal interests.489 For that reason, this section describes the limitations regime in place in Alberta.

4.7.2 Limitation regime in Alberta

Some provincial legislatures, including Alberta, have chosen to exempt Aboriginal claims from ultimate limitation periods.490 Section 13 of the Limitations Act491 sets out that:

An action brought on or after March 1, 1999 by an aboriginal people against the Crown based on a breach of a fiduciary duty alleged to be owed by the Crown to those people is governed by the law on limitation of actions as if the Limitation of Actions Act, RSA 1980 cL-15, had not been repealed and this Act were not in force.492

The sponsor for Bill 205 in 1996, explained the intent of s. 13:

We have added section 12.1 to exclude aboriginal claims from this bill …

It’s a long way of saying that the old limitations provisions will in fact apply to actions brought by aboriginal people against the Crown. To clarify, aboriginal people have a fiduciary relationship with the Crown. This fiduciary relationship is a trust like relationship in which one party undertakes to act on behalf of

489 MMF, supra note 328 ¶138 (agreeing that limitations act limitations apply to Aboriginal claims for breach of fiduciary duty with respect to the administration of Aboriginal property). 490 Ibid ¶251. 491 RSA 2000, c L-12. 492 Ibid s 13.

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another party. The Limitation of Actions Act sets out a number of provisions which may apply to an action based on a breach of a fiduciary duty to Aboriginal people.493

[The] section deals with the amendments we’re recommending to make sure it’s absolutely clear that any right that our aboriginal community has today continues, because there have been some concerns expressed by a number of chiefs of aboriginal communities with respect to Bill 205. This is, I think, our duty: to make sure that whatever limitations, rights they had before this Bill, they continue to have. These are very important people, very important issues, and we would not want to limit their rights in any way shape or form when it comes to aboriginal land claims.494

The relevant portions of the Limitation of Actions Act495 are reproduced below. Section 4(1) sets out that:

The following actions shall be commenced within and not after the time respectively hereinafter mentioned:

…

(e) actions grounded on accident, mistake or other equitable ground of relief not hereinbefore specifically dealt with, within 6 years from the discovery of the cause of action;

…

(g) any other action not in this Act or any other Act specifically provided for, within 6 years after the cause of action therein arose

(2) Nothing in this section extends to an action when the time for bringing the action is by statute specially limited.496

Part 7 of the Limitation of Actions Act is titled “Trusts and Trustees”. The first section of this part, section 40, sets out that:

493 Alberta, Legislative Assembly, Hansard 23rd Leg, 4th Sess, (March 20, 1996) at 707 (Mr Herard). 494 Ibid at 709. 495 RSA 1980 cL‑15. 496 Ibid s 4.

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Subject to the other provisions of this Part, no claim of a cestui que trust against his trustee for any property held on an express trust, or in respect of a breach of the trust, shall be held to be barred by this Act.497

Section 41 sets out that:

(1) In this section, “trustee” includes an executor, an administrator, and a trustee whose trust arises by construction or implication of law as well as an express trustee, and also includes a joint trustee.

(2) In an action against a trustee or a person claiming through him,

(a) rights and privileges conferred by this Act shall be enjoyed in the like manner and to the like extent as they would have been enjoyed in the action if the trustee or person claiming through him had not been a trustee or person claiming through a trustee, and

(b) if the action is brought to recover money or other property and is one to which no limitation provision of this Act applies, the trustee or person claiming through him is entitled to the benefit of and is at liberty to plead the lapse of time as a bar to the action in the like manner and to the same extent as if the claim had been against him in an action for money had and received, except when the claim is founded on a fraud or fraudulent breach of trust to which the trustee was party or privy, or is to recover trust property or the proceeds thereof still retained by the trustee, or previously received by the trustee and converted to his use.498

These sections give rise to the following argument: Section 41 applies to constructive trusts by virtue of section 41(1), and 41(2)(b) prevents constructive trustees from pleading the lapse of time as a bar to an action for the recovery of constructive trust property. The facts as presented in

Chapter three namely that the “property in water” is vested in the Crown, and the law as described in this Chapter, which calls into existence a fiduciary obligation when the Crown assumes discretionary control over an Aboriginal interest, give rise to a fiduciary obligation on the part of

497 Ibid s 40. 498 Ibid s 41. 124

the province to protect the interest of Treaty 7 Aboriginal groups in surface waters. An appropriate remedy for the breach of this obligation is a constructive trust, the subject matter of which is the property in water sufficient to realize the full potential of each Treaty 7 signatory’s reserve for the benefit of future generations.

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Chapter Five: Conclusion

In the United States, the federal government’s property interest in Indian Reservations and the supremacy of federal law prevent derogation of the Indian interest in surface waters by state water appropriation laws. The legal mechanism which recognizes Indian water rights in the U.S. does not exist in Alberta – there is no paramount federal property interest in surface waters. This thesis has demonstrated that the federal government in Canada transferred the entire federal property interest in surface waters under the North-west Irrigation Act, 1898 to the province of

Alberta in 1930.

Despite the legal and historical differences underpinning the approach to Aboriginal water rights in both the U.S. and southern Alberta, the prior interest of Aboriginal groups in both nations is the same. This thesis has argued that Alberta’s water allocation system should reconcile the prior interest of First Nations in their reserves with the interests of other water users in Alberta and has demonstrated that the provincial Crown is obligated to do so.

The Crown has a fiduciary obligation to protect the Aboriginal interest in reserve lands and the Crown recognized that surface waters would increase the value of reserve lands prior to the establishment of its water allocation framework. This thesis has argued that the Crown’s obligation to protect the Aboriginal interest in reserve lands requires that water allocations in Alberta reflect the constitutional priority of Aboriginal and treaty rights, specifically the treaty right to reserve land.

In order for Alberta’s water allocation framework to respect the constitutional priority of the treaty right to reserve land in Treaty 7, Alberta must ensure that senior water rights in sufficient quantity to support the future development of Treaty 7 reserve lands will not be subject to the water

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rights of other Albertans. Such allocations will permit Treaty 7 Aboriginal groups to make decisions about how they use reserve lands now and in the future.

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References

LEGISLATION: DOMESTIC SOURCES

Alberta Act, SC 1905 c 3, reprinted in RSC 1985, App II No 20. An Act for the Settlement of Certain Questions between the Governments of Canada and Ontario respecting Indian Reserve Lands, SC 1924 (1st Sess), c 48. An Act for the Temporary Government of Rupert’s Land and the North-western Territory when united with Canada, SC 1869, c 3, reprinted in RSC 1985, App II No 7. An Act to encourage the gradual Civilization of the Indian Tribes in this Province, and to amend the Laws respecting Indians, S Prov C 1857 (20 Vict), c 26. Bow, Oldman and South Saskatchewan River Basin Water Allocation Order, Alta Reg 171/2007. British Columbia Terms of Union, reprinted in RSC 1985, Appendix II No. 10. Constitution Act, 1867 (UK), 30 &31 Vict, c 3, reprinted in RSC 1985, App II, No 5. Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. Constitution Act, 1930, 20-21 Geo V, c 26 (UK) reprinted in RSC 1985, App II, No 26. Dominion Water Power Act, RSC 1927, c210. Indian Act, RSC 1985, c I-5. Limitations Act, RSA 2000, c L-12. Limitation of Actions Act, RSA 1980 cL‑15. Manitoba Act, SC 1870 c 3, reprinted in RSC 1985, App II No 8. Safe Drinking Water for First Nations Act, SC 2013, c 21. The Alberta Natural Resources Act, No 2, SC 1931, c 15. The Alberta Natural Resources Transfer (Amendment) Act, 1945, SC 1945, c 10. The Alberta Natural Resources Transfer (Amendment) Act, 1951 SC 1951 c 37. The Indian Act 1876, SC 1876, c 18. The Natural Resources Transfer (Amendment) Act, 1938, SC 1938, c 36. The North-west Irrigation Act, SC 1894 c 30. The North-west Irrigation Act, SC 1895 c 33. The North-west Irrigation Act, SC 1898 c 35. The Royal Proclamation, 1763 (UK) reprinted in RSC 1985, App II, No 1. Rupert’s Land Act, 1868 (UK), 31 & 32 Vict, c 105, reprinted in RSC 1985, App II No 6. Rupert’s Land and North-western Territory Order (UK), reprinted in RSC 1985, App II No 9.

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Water Act, RSA 2000, c W-3. Water (Ministerial) Regulation, Alta Reg 205/1998.

LEGISLATION: FOREIGN SOURCES

Act Granting the Right of Way to Ditch and Canal Owners over the Public Lands, and for other Purposes, c 262, 14 Stat 251 (1866). An Act to Provide for the Sale of Desert Lands in Certain States and Territories, c 107, 19 Stat 377 (1877). An Act to Ratify and Confirm an Agreement with the Gros Ventre, Piegan Blood, Blackfeet, and River Crow Indians in Montana, and for Other Purposes, c 213, 25 Stat, 113 (1888). Constitution of the United States. Constitution of the State of Wyoming (1889). Constitution of the State of Montana (1890). Northern India Canal and Drainage Act, 1873 Act VIII (India). The Irrigation Act 1886 (Vic) (Austl).

JURISPRUDENCE: DOMESTIC SOURCES

A-G v Southern and Western Rly Co of Ireland, [1925] AC 754. Calder v Attorney General of British Columbia, [1973] SCR 313. Delgamuukw v British Columbia, [1997] 3 SCR 1010. Girardet v Crease & Co, 1987), 11 BCLR (2d) 361. R v Gladstone, [1996] 2 SCR 723. Guerin v The Queen, [1984] 2 SCR 335. Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73. Hodgkinson v Simms, [1994] 3 S.C.R. 377. Jack v The Queen, [1980] 1 SCR 294. Manitoba Métis Federation v Canada, 2013 SCC 14. Osoyoos Indian Band v Oliver (Town), [2001] 3 SCR 746. Peigan Indian Band v Alberta, 84 Alta LR (2d) 352, 1991 CanLII 5964 (AB QB). Professional Institute of the Public Service of Canada v Canada (Attorney General), 2012 SCC 71. Ross River Dena Council Band v Canada, 2002 SCC 54.

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R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Indian Association of Alberta and others, [1982] 2 All ER 118. Soulos v Korkontzilas, [1997] 2 SCR 217. St Catherine’s Milling and Lumber Co v R, 13 SCR 577 (1887). St Catherine’s Milling and Lumber Company v The Queen, (1888) 14 App Cas 46. Tsilhqot’in Nation v British Columbia, 2014 SCC 44. Tsuu T’ina Nation v Alberta (Environment), 2010 ABCA 137. Wewaykum Indian Band v Canada, 2002 SCC 79.

JURISPRUDENCE: FOREIGN SOURCES

Arizona v California, 439 US 419 (1979). Arizona v California, 373 US 546 (1963). Arizona v California, 373 US 546 (Report of Special Master, 5 December 1960). California-Oregon Power Co v Beaver Portland cement Co 295 US 142 (1935). US v Rio Grande Dam & Irrigation Co., 174 US 690 (1899). Winters v United States, 143 F 740, 74 CCA 666 (1906). Winters v United States, 148 F 684, 78 CCA 546 (1906). Winters v United States, 207 US 564 (1908). Wyoming v US, 492 US 406 (1989).

SECONDARY MATERIALS: MONOGRAPHS

Alberta Environment. Water Management in Alberta: Challenges for the Future: Background Papers: Aboriginal Water Issues (Edmonton: Alberta Environment, 1991) vol 3. August, Jack L Jr. Dividing Western Waters: Mark Wilmer and Arizona v California (Fort Worth, Texas: TCU Press, 2007). Bartlett, Richard H. Aboriginal Water Rights in Canada: A Study of Aboriginal Title to Water and Indian Water Rights (Calgary: Canadian Institute of Resources Law, 1988). Campbell, Lyle. American Indian Languages: The Historical Linguistics of Native America (New York: Oxford University Press, 1997). Canada, Indian Treaties and Surrenders: From 1680-1890 (Toronto: Coles Publishing, 1971). Carter, Sarah. Aboriginal People and Colonizers of Western Canada to 1900 (Toronto: University of Toronto Press, 1999).

130

———. Lost Harvests: Prairie Indian Reserve Farmers and Government Policy (Montreal: McGill-Queen's University Press, 1990). Cumming, Perter A & Neil H Mickenberg eds. Native Rights in Canada 2 ed (Toronto: The Indian- Eskimo Association of Canada, 1972). Deakin, Alfred. Irrigation in western America, So Far As It Has Relation to the Circumstances of Victoria: A Memorandum for the Members of the Royal Commission on Water Supply (Melbourne: Government Printer, 1885). Dempsey, Hugh A. Treaty Research Report: Treaty Seven (Ottawa: Treaties and Historical Research Centre, 1987). Frideres, James S & René R Gadacz. Aboriginal Peoples in Canada, 9th ed (Toronto: Pearson, 2012). Gates, Paul. History of Public Land Law Development (Washington DC: Wm W Gaunt & Sons, 1968). Glenn, Jack. Once Upon an Oldman (Vancouver: UBC Press, 1999). Hueglin, Thomas O & Alan Fenna. Comparative Federalism: A Systematic Inquiry, (Toronto: University of Toronto Press, 2006). Hutchins, Wells A. Water Rights Laws in the Nineteen Western States (Washington, DC: United States Department of Agriculture, 1971). Keeton, GW & LA Sheridan. The Law of Trusts, 12th ed (London: Barry Rose Law Publishers, 1993). La Forest, Gerard V. Water Law in Canada: The Atlantic Provinces (Ottawa: Information Canada, 1973). Lingard, C Cecil. Territorial Government in Canada (Toronto: University of Toronto Press, 1946). Lucas, Alastair R. Security of Title in Canadian Water Rights (Calgary: Canadian Institute of Resources Law, 1990). Matsui, Kenichi. Native Peoples and Water Rights: Irrigation, Dams, and the Law in Western Canada (Montreal: McGill-Queen’s University Press, 2009). McCool, Daniel. Native Waters: Contemporary Indian Water Settlements and the Second Treaty Era (Tucson: The University of Arizona Press, 2002). McNeil, Kent. Native Claims in Rupert’s Land and the North-western Territory: Canada’s Constitutional Obligations (Saskatoon: University of Saskatchewan Native Law Centre, 1982). Miller, JR. Compact, Contract, Covenant (Toronto: University of Toronto Press, 2009). Morris, Alexander. The Treaties of Canada with the Indians of Manitoba and the North-west Territories: including the negotiations on which they were based, and other information relating thereto (Toronto: Belfords, Clarke & Co, Publishers, 1880).

131

Percy, David R. The Framework Of Water Rights Legislation In Canada (Calgary: Canadian Institute of Resources Law, 1988). Pisani, Donald. Water, Land, and Law in the West: Limits of Public Policy, 1850-1920 (Lawrence: University Press of Kansas, 1996). Price, Richard T. ed. The Spirit of the Alberta Indian Treaties 3d ed (Edmonton: University of Alberta Press, 1999). Rotman, I Leonard. Parallel Paths: Fiduciary Doctrine and the Crown-Native Relationship in Canada (Toronto: University of Toronto Press, 1996). ———. Fiduciary Law (Toronto: Thomson Canada Limited, 2005). Samek, Hana. The Blackfoot Confederacy 1880-1920: A Comparative Study of Canadian and US Indian Policy (Albuquerque: University of New Mexico Press, 1987). Shurts, John. Indian Reserved Water Rights (Norman: University of Oklahoma Press, 2000). Stagg, Jack. Anglo-Indian Relations In North America to 1763 and An Analysis of the Royal Proclamation of 7 October 1763 (Ottawa: Research Branch Indian and Northern Affairs Canada, 1981). Talbot, Robert J. Negotiating the Numbered Treaties (Saskatoon: Purich, 2009). Treaty 7 Elders and Tribal Council. The True Spirit and Original Intent of Treaty 7 (Montreal: McGill University Press, 1996). Waters, Donovan W M, Mark R Gillen & Lionel D Smith. Waters’ Law of Trusts in Canada, 4th ed. (Toronto: Carswell, 2012). Wilkinson, Charles. Crossing the next Meridian Land Water and the Future of the West (Washington, DC: Island press, 1992).

SECONDARY MATERIAL: ARTICLES

Anderson, Robert T. “Indian Water Rights, Practical Reasoning, and Negotiated Settlements” (2010) 98 Cal L Rev 1133. Bankes, N D. “Indian Resource Rights and Constitutional Enactments in Western Canada, 1871- 1930” in Louis A Knafla, ed, Law and Justice in a New Land: Essays in Western Canadian Legal History (Toronto: Carswell, 1986) 129. Bloom, Paul L, "Indian Paramount Rights to Water Use," (1971) 16 Rocky Mtn Min L Inst 669. Burchill, CS. “The Origins of Canadian Irrigation Law” (1948) 29:4 The Canadian Historical Review 353. Cohen, Felix S. “Original Indian Title” (1947) 42 Minn. L Rev 28. Daschuk, J W, Paul Hackett & Scott Macneil. “Treaties and Tuberculosis: First Nations People in late 19th-Century Western Canada, a Political and Economic Transformation” (2006) 23:1 Canadian Bulletin of Medical History 307.

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Huffman, James L. “Federal Role in Water Resource Management” (2008) 17 NYU Envtl LJ 669. Hundley Jr, Norris. “The “Winters” Doctrine and Indian Water Rights: A Mystery Re-examined” (1982) 13:1 The Western Historical Quarterly 17. Kirk, Peggy Sue. “Cowboys, Indians and Reserved Water Rights: May a State Court Limit How Indian Tribes Use Their Water? In re The General Adjudication of All Rights to Use Water in the Big Horn River System and All Other Sources, State of Wyoming, 835 P2d 273 (Wyo 1992)” (1993) 28 Land & Water L Rev 467. Kwasniak, Arlene J. “The Supreme Court of Alberta and Water Law” in Jonathan Swainger, ed, The Alberta Supreme Court at 100: History and Authority (Edmonton: University of Alberta Press, 2007) 196. Laidlaw, David K & Monique Passelac-Ross. "Water Rights and Water Stewardship: What about Aboriginal Peoples?" (2010-2011) 35 LawNow 17. Michaels, Sara & Rob de Loë. “Importing Notions of Governance: Two Examples from the History of Canadian Water Policy” (2010) 40:4 American Review of Canadian Studies 495. Milloy, John S. “The Early Indian Acts: Developmental Strategy and Constitutional Change” in Ian L Getty ed, As Long as the Sun Shines and the Water Flows: A Reader in Canadian Native Studies (Vancouver: UBC Press, 1983) 56. Passelac-Ross, Monique M & Christina M Smith. "Defining Aboriginal Rights to Water in Alberta: Do They Still "Exist"? How Extensive are They?" (2010) CIRL Occasional Paper #29. Percy, David R. “Water Rights in Alberta” (1977) 15 Alta L Rev 142. Pisani, Donald J. "The Origins of Western Water Law: Case Studies from Two California Mining Districts" (1991) 70:3 California History 242. ———. “Irrigation, Water Rights, and the Betrayal of Indian Allotment” in Donald Pisani, Water, Land, and Law in the West: Limits of Public Policy, 1850-1920 (Lawrence: University Press of Kansas, 1996). Ranquist, Harold A. “The Winters Doctrine and How it Grew: Federal Reservation of Rights to the Use of Water” (1975) BYU L Rev 639. Reich, David et al. “Reconstructing Native American population history” (2012) 488 Nature 370. Reynolds, James I. “The Spectre of Spectra: The Evolution of the Crown’s Fiduciary Obligation to Aboriginal Peoples Since Delgamuukw” in Maria Morellato, ed, Aboriginal Law Since Delgamuukw (Aurora, Ont: Canada Law Book, 2009) 107. Smits, David D. “The Frontier Army and the Destruction of the Buffalo: 1865-1883” (1994) 25:3 The Western Historical Quarterly 312. Tarlock, Dan A. “Tribal Justice and Property Rights: The Evolution of Winters v United States” (2010) 50 Nat Resources J 471. Taylor, John Leonard. “Two Views on the Meaning of Treaties Six and Seven” in Richard T Price ed, The Spirit of the Alberta Indian Treaties 3d ed (Edmonton: University of Alberta Press, 1999).

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Tobias, John L. Canada’s Subjugation of the Plains Cree, 1879 – 1885 (1983) 64:4 Canadian Historical Review 519. Tough, Frank. “The Forgotten Constitution: The Natural Resources Transfer Agreements and Indian Livelihood Rights, CA. 1925-1933” (2004) 41: 4 Alta L Rev 4 999. Trelease, Frank J. “States’ Rights vs. National Powers” (1965) 19 Wyo L J 189. Veeder, William H. "Indian Prior and Paramount Rights," (1971) 16 Rocky Mtn Min L Inst 631. Michael M Wenig, “Looking Through Cloudy Waters – A Historical Analysis of the Legislative Declarations of Crown Water Rights in Alberta” (2010) CIRL Occasional Paper #27. Williams, Robert C et al. “GM allotypes in Native Americans: Evidence for three distinct migrations across the Bering land bridge” (1985) 66:1 American Journal of Physical Anthropology 1.

SECONDARY MATERIAL: GOVERNMENT MATERIALS

Alberta, Legislative Assembly, Hansard 23rd Leg, 4th Sess, (March 20, 1996). House of Commons Debates, 7th Parl, 4th Sess, vol 38. House of Commons Debates, 7th Parl, 5th Sess, vol 40. House of Commons Debates, 8th Parl, 3rd Sess, vol 46. House of Commons Debates, 10th Parl, 1st Sess, vol 69. House of Commons Debates, 10th Parl, 1st Sess, vol 70. House of Commons Debates, 16th Parl, 4th Sess, vol 184. House of Commons Debates, 18th Parl, 3rd Sess, No 3. House of Commons Debates, 20th Parl, 1st Sess, No 1. House of Commons Debates, 20th Parl, 1st Sess, No 3. Indian Claims Commission, Blood Tribe/Kainaiwa Big Claim Inquiry (Ottawa, March 2007). Parliament, “Rupert’s Land and the North-West Territory” by Geo E Cartier & WM MacDougal in Sessional Papers, No 25 (1894). Parliament, “Annual Report of the Department of the Interior for the year 1893” by AM Burgess in Sessional Papers, No 13 (1894). Parliament, “Report of the Superintendent of Mines on Irrigation in the North-west Territories” by WM Pearce in Sessional papers, No 13 (1895). Report of the Royal Commission on Aboriginal Peoples: Renewal: A Twenty-Year Commitment, vol 5 (Ottawa: Supply and Services Canada, 1996).

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SECONDARY MATERIAL: DICTIONARIES, ENCYCLOPEDIAS, AND ONLINE SERVICES

Tarlock, A Dan. Law of Water Rights and Resources (Eagan, Minn: West, 2014) (WL). Black’s Law Dictionary 9th ed (WL). Corpus Juris Secundum: A Complete Restatement Of The Entire American Law As Developed By All Reported Cases (Brooklyn: American Law Book Co, 1936-) (WL).

OTHER MATERIALS

2012 Fall Assembly of Treaty Chiefs Official Resolution R10-2012-09-27. Aboriginal Affairs and Northern Development Canada, “Historic Treaties” Online: . Blackfoot Indians - S.G.I.A. [Superintendent General of Indian Affairs] 1893/10/23 recds. [recommends] expendr. [expenditure] portion of capital on irrigation of reserve, PC 1893- 2809, (approved 28 Oct 1893) online: Library and Archives Canada . Blood Band of Indians, Licence No 848 in the Oldman River Drainage Basin September 25, 1941; Interim Licence No. 19869, issued to The Band Council of the Blood Indian Band, pursuant to the Water Resources Act, online: . Indian Reserves, Manitoba and Northwest Territories covered by Treaties 4, 6, 7 and part of No. 2 - Supt Genl 1889/05/15 recs confirmation of, PC 1889-1151 online: Library and Archives Canada . Interim Licence of “The Blackfoot Indians” for utilization of water from the Bow River, for irrigation purposes, January 6, 1938 File No 4197. Irrigation licence, Dept. [Department of] Indian Affairs, water from Bow River to irrigate Blackfoot Indian Reserve - Min Int [Minister of the Interior] 1897/02/20 recs [recommends], PC 1897-0495. online: Library and Archives Canada . Licence No. 00203354-00-00, issued to Alberta Environment, pursuant to the Water Resources Act, online:< http://www.envinfo.gov.ab.ca/LicenceViewer/pdf.aspx?ApvID=203 354>. Natural Resources Canada, “Historical Indian Treaties” online: < http://ftp2.ctis.nrcan.gc.ca/pub/geott/atlas_tif/atlas6/Reference/English/treaties.pdf >. O’Byrne, Nicole Colleen. The Answer to the ‘Natural Resources Question: A Historical Analysis of the Natural Resources Transfer Agreements (LLM Thesis, McGill University Faculty of Law, 2005) [unpublished]. PARLINFO. Online:

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9ebc144f1806&Language=E&MenuID=Lists.Parliament.aspx&MenuQuery=http%3A%2F% 2Fwww.parl.gc.ca%2Fparlinfo%2FLists%2FParliament.aspx>. Settlement Agreement dated the 16th day of July 2002 among: Her Majesty the Queen in Right of Canada and The Piikani Nation and Her Majesty the Queen in Right of Alberta.

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Appendix 1: Text of Treaty 7

Copy of Treaty and Supplementary Treaty No. 7 between Her Majesty the Queen and the

Blackfeet and Other Indian Tribes, at the Blackfoot Crossing of Bow River and Fort

Macleod

ARTICLES OF A TREATY

Made and concluded this twenty-second day of September, in the year of Our Lord, one thousand eight hundred and seventy-seven, between Her Most Gracious Majesty the Queen of Great Britain and Ireland, by Her Commissioners, the Honorable David Laird, Lieutenant-Governor and Indian Superintendent of the North-West Territories, and James Farquharson MacLeod, C.M.G., Commissioner of the North-West Mounted Police, of the one part, and the Blackfeet, Blood, Piegan, Sarcee, Stony and other Indians, inhabitants of the Territory north of the United States Boundary Line, east of the central range of the Rocky Mountains, and south and west of Treaties numbers six and four, by their Head Chiefs and Minor Chiefs or Councillors, chosen as hereinafter mentioned, of the other part. WHEREAS the Indians inhabiting the said Territory, have, pursuant to an appointment made by the said Commissioners, been convened at a meeting at the ·Blackfoot Crossingº of the Bow River, to deliberate upon certain matters of interest to Her Most Gracious Majesty, of the one part, and the said Indians of the other; And whereas the said Indians have been informed by Her Majesty’s Commissioners that it is the desire of Her Majesty to open up for settlement, and such other purposes as to Her Majesty may seem meet, a tract of country, bounded and described as hereinafter mentioned, and to obtain the consent thereto of Her Indian subjects inhabiting the said tract, and to make a Treaty, and arrange with them, so that there may be peace and good will between them and Her Majesty, and between them and Her Majesty’s other subjects; and that Her Indian people may know and feel assured of what allowance they are to count upon and receive from Her Majesty’s bounty and benevolence; And whereas the Indians of the said tract, duly convened in Council, and being requested by Her Majesty’s Commissioners to present their Head Chiefs and Minor Chiefs, or Councillors, who shall be authorized, on their behalf, to conduct such negotiations and sign any Treaty to be founded thereon, and to become responsible to Her Majesty for the faithful performance, by their respective Bands of such obligations as should be assumed by them, the said Blackfeet, Blood, Piegan and Sarcee Indians have therefore acknowledged for that purpose, the several Head and Minor Chiefs, and the said Stony Indians, the Chiefs and Councillors who have subscribed hereto, that thereupon in open Council the said Commissioners received and acknowledged the Head and Minor Chiefs and the Chiefs and Councillors presented for the purpose aforesaid; And whereas the said Commissioners have proceeded to negotiate a Treaty with the said Indians; and the same has been finally agreed upon and concluded as follows, that is to say : the Blackfeet,

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Blood, Piegan, Sarcee, Stony and other Indians inhabiting the district hereinafter more fully described and defined, do hereby cede, release, surrender, and yield up to the Government of Canada for Her Majesty the Queen and her successors for ever, all their rights, titles, and privileges whatsoever to the lands included within the following limits, that is to say: Commencing at a point on the International Boundary due south of the western extremity of the Cypress Hills, thence west along the said boundary to the central range of the Rocky Mountains, or to the boundary of the Province of British Columbia, thence north-westerly along the said boundary to a point due west of the source of the main branch of the Red Deer River, thence south- westerly and southerly following on the boundaries of the Tracts ceded by the Treaties numbered six and four to the place of commencement; And also all their rights, titles and privileges whatsoever, to all other lands wherever situated in the North-West Territories, or in any other portion of the Dominion of Canada: To have and to hold the same to Her Majesty the Queen and her successors for ever: And Her Majesty the Queen hereby agrees with her said Indians, that they shall have right to pursue their vocations of hunting throughout the Tract surrendered as heretofore described, subject to such regulations as may, from time to time, be made by the Government of the country, acting under the authority of Her Majesty and saving and excepting such Tracts as may be required or taken up from time to time for settlement, mining, trading or other purposes by Her Government of Canada; or by any of Her Majesty's subjects duly authorized therefor by the said Government. It is also agreed between Her Majesty and Her said Indians that Reserves shall be assigned them of sufficient area to allow one square mile for each family of five persons, or in that proportion for larger and smaller families, and that said Reserves shall be located as follows, that is to say: First. --- The Reserves of the Blackfeet, Blood and Sarcee Bands of Indians, shall consist of a belt of land on the north side of the Bow and South Saskatchewan Rivers, of an average width of four miles along said rivers, down stream, commencing at a point on the Bow River twenty miles north- westerly of the Blackfoot Crossing thereof, and extending to the Red Deer River at its junction with the South Saskatchewan; also for the term of ten years, and no longer, from the date of the concluding of this Treaty, when it shall cease to be a portion of said Indian Reserves, as fully to all intents and purposes as if it had not at any time been included therein, and without any compensation to individual Indians for improvements, of a similar belt of land on the south side of the Bow and Saskatchewan Rivers of an average width of one mile along said rivers, down stream; commencing at the aforesaid point on the Bow River, and extending to a point one mile west of the coal seam on said river, about five miles below the said Blackfoot Crossing; beginning again one mile east of the said coal seam and extending to the mouth of Maple Creek at its junction with the South Saskatchewan; and beginning again at the junction of the Bow River with the latter river, and extending on both sides of the South Saskatchewan in an average width on each side thereof of one mile, along said river against the stream, to the junction of the Little Bow River with the latter river, reserving to Her Majesty, as may now or hereafter be required by Her for the use of Her Indian and other subjects, from all the Reserves hereinbefore described, the right to navigate the above mentioned rivers, to land and receive fuel cargoes on the shores and banks

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thereof, to build bridges and establish ferries thereon, to use the fords thereof and all the trails leading thereto, and to open such other roads through the said Reserves as may appear to Her Majesty's Government of Canada, necessary for the ordinary travel of her Indian and other subjects, due compensation being paid to individual Indians for improvements, when the same may be in any manner encroached upon by such roads. Secondly --- That the Reserve of the Piegan Band of Indians shall be on the Old Man's River, near the foot of the Porcupine Hills, at a place called "Crow's Creek." And, Thirdly --- The Reserve of the Stony Band of Indians shall be in the vicinity of Morleyville. In view of the satisfaction of Her Majesty with the recent general good conduct of her said Indians, and in extinguishment of all their past claims, she hereby, through her Commissioners, agrees to make them a present payment of twelve dollars each in cash to each man, woman, and child of the families here represented. Her Majesty also agrees that next year, and annually afterwards forever, she will cause to be paid to the said Indians, in cash, at suitable places and dates, of which the said Indians shall be duly notified, to each Chief, twenty-five dollars, each minor Chief or Councillor (not exceeding fifteen minor Chiefs to the Blackfeet and Blood Indians, and four to the Piegan and Sarcee Bands, and five Councillors to the Stony Indian Bands), fifteen dollars, and to every other Indian of whatever age, five dollars; the same, unless there be some exceptional reason, to be paid to the heads of families for those belonging thereto. Further, Her Majesty agrees that the sum of two thousand dollars shall hereafter every year be expended in the purchase of ammunition for distribution among the said Indians; Provided that if at any future time ammunition become comparatively unnecessary for said Indians, Her Government, with the consent of said Indians, or any of the Bands thereof, may expend the proportion due to such Band otherwise for their benefit. Further, Her Majesty agrees that each Head Chief and Minor Chief, and each Chief and Councillor duly recognized as such, shall, once in every three years, during the term of their office, receive a suitable suit of clothing, and each Head Chief and Stony Chief, in recognition of the closing of the Treaty, a suitable medal and flag, and next year, or as soon as convenient, each Head Chief, and Minor Chief, and Stony Chief shall receive a Winchester rifle. Further, Her Majesty agrees to pay the salary of such teachers to instruct the children of said Indians as to Her Government of Canada may seem advisable, when said Indians are settled on their Reserves and shall desire teachers. Further, Her Majesty agrees to supply each Head and Minor Chief, and each Stony Chief, for the use of their Bands, ten axes, five handsaws, five augers, one grindstone, and the necessary files and whetstones. And further, Her Majesty agrees that the said Indians shall be supplied as soon as convenient, after any Band shall make due application therefor, with the following cattle for raising stock, that is to say: for every family of five persons, and under, two cows; for every family of more than five

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persons, and less than ten persons, three cows, for every family of over ten persons, four cows; and every Head and Minor Chief, and every Stony Chief, for the use of their Bands, one bull; but if any Band desire to cultivate the soil as well as raise stock, each family of such Band shall receive one cow less than the above mentioned number, and in lieu thereof, when settled on their Reserves and prepared to break up the soil, two hoes, one spade, one scythe, and two hay forks, and for every three families, one plough and one harrow, and for each Band, enough potatoes, barley, oats, and wheat (if such seeds be suited for the locality of their Reserves) to plant the land actually broken up. All the aforesaid articles to be given, once for all, for the encouragement of the practice of agriculture among the Indians. And the undersigned Blackfeet, Blood, Piegan and Sarcee Head Chiefs and Minor Chiefs, and Stony Chiefs and Councillors on their own behalf and on behalf of all other Indians inhabiting the Tract within ceded do hereby solemnly promise and engage to strictly observe this Treaty, and also to conduct and behave themselves as good and loyal subjects of Her Majesty the Queen. They promise and engage that they will, in all respects, obey and abide by the Law, that they will maintain peace and good order between each other and between themselves and other tribes of Indians, and between themselves and others of Her Majesty's subjects, whether Indians, Half Breeds or Whites, now inhabiting, or hereafter to inhabit, any part of the said ceded tract; and that they will not molest the person or property of any inhabitant of such ceded tract, or the property of Her Majesty the Queen, or interfere with or trouble any person, passing or travelling through the said tract or any part thereof, and that they will assist the officers of Her Majesty in bringing to justice and punishment any Indian offending against the stipulations of this Treaty, or infringing the laws in force in the country so ceded. IN WITNESS WHEREOF HER MAJESTY'S said Commissioners, and the said Indian Head and Minor Chiefs, and Stony Chiefs and Councillors, have hereunto subscribed and set their hands, at the "Blackfoot Crossing" of the Bow River, the day and year herein first above written.

Signed by the Chiefs and Councillors

Reproduced from: Aboriginal Affairs and Northern Development Canada. Online: http://www.aadnc-aandc.gc.ca/eng/1100100028793/1100100028803.

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Appendix 2: Blackfoot Indians - S.G.I.A. [Superintendent General of Indian Affairs]

1893/10/23 recds. [recommends] expendr. [expenditure] portion of capital on irrigation of

reserve, PC 1893-2809

141

Reproduced From: Library and Archives Canada online: http://www.collectionscanada.gc.ca/databases/orders/001022-100.01-e.php

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