FIRST NATIONS WATER RIGHTS IN BRITISH COLUMBIA

A Historical Summa y of tbe rights of the Ahhhdt First Nation

Ministry of Environment, Lands and Parks

Management and Standards Branch Copy

NOT TO BE REMOVED FROM THE OFFICE

MINISTRY OF ENVIRONMENT, LANDS AND PARKS WATER MANAGEMENT SECTION

FIRST NATIONS WATER RIGHTS IN BRITISH CO L UMBIA:

A Historical Summary of the rights of the Malahat First Nation

Prepared by: Jubie Steinhauer ' Edited by: Sarah Cheevers

Christina Rocha and Miranda Griffith

Reviewed by: Gary W. Robinson

February 25,1997

Canadian Cataloguing in Publication Data Steinhauer, Jubie.

First Nations water rights in British Columbia. A historical summary of the rights of the Malahat First Nation

ISBN 0-7726-3343-6

1. Water rights - British Columbia - Malahat Indian Reserve No. 11. I. Cheevers, Sarah. 11. Rocha, Christina. 111. Griffith, Miranda. IV. Robinson, G. (Gary), 1949- . V. BC Environment. Water Management Branch. VI. Title. VII. Title: Historical summary of the rights of the Malahat First Nation.

KEB529.5.W3S739 1997 346.71104'32 C97-960240-8 KF8210 .W38S739 1997

ACKNOWLEDGMENTS

The Ministry of Environment, Lands and Parks wishes to acknowledge three partners whose contributions were invaluable in the completion of the Aboriginal Water Rights Report Series:

.. The Ministry of Aboriginal Affairs, was a critical source of funding, support and direction for this project.

The U-Vic Geography Co-op Program, was instrumental in providing the staffing resources needed to undertake this challenging task. Through the services of June Whitmore and her office, the project benefited from the research, writing, editing and co-ordination of these outstanding students:

Jas Gill Christina Rocha Julie Steinhauer Rachel Abrams Kelly Babcock Elizabeth Lee Daniella M o p s Sara Cheevers Miranda Griffith

The services of Clover Point Cartographics Limited of Victoria, was responsible for the preparation of most of the map drawings, which form a valuable part of these documents.

In addition to these three key partners, I must acknowledge the valuable contributions of other Water Management staff, past and present, including Jack Farrell, Jim Mattison, Richard Pemer, Diana Jolly, Greg Blaney, Gary Lucas and Kim Johnston.

The sheer numbers of First Nations groups’ with histories of water rights made the completion of the Report Series seem, at times, prolonged. The determination, patience and vision of the parmers was essential in the completion of the Series and is gratefully acknowledged.

Gary Robinson Project Manager Water Management Branch

TABLE OF CONTENTS

LOCATION ............ ..... . .. . ... . . . . .. .. .... .. ..... . ........ ....... ................................ ... ... .. . . ..... .. ..... .... .... . .. . . . .. .. .1

WATER ALLOCATIONS.. . .. .. . .... .. ........... ... ... , . ....... .......... . ...... . ... ... .. ........ ... ... .. .... ... .... . ....... .. .... 1

HISTORY, CURRENT STATUS AND NOTES

Malahat Creek History ................... .... ............. .................. .. ..... .. .... .... .... ........ . .... ... ... ......... ...... ..... ..2 Current Status ... .................................................................................................... 2 Notes ........................................................................................................................ 2

OTHER INFORMATION.. ...... .......... ... ...... .............. ......... ...... ... ... ............ ..... .... . .... . . ...... .. ... ... .. . 3

ATTACHMENTS UNDER THE FOLLOWING INDEX TABS:

TAB NO.

1. TABLE: Summary of Water Records for the Malahat Band

2. LICENCE, PLAT and ORDER Conditional Licence 34841

3. STREAM REGISTER REPORT Malahat Creek

4. COPY OF THE DATA SUMMARY OF GROUNDWATER RECORDS IN THE MALAHAT AREA

5. MAP: Malahat Reserve No. 11 and area

FIRST NATIONS WATER RIGHTS REPORT

BAND: Malahat

ADDRESS: P. 0. Box 111, Mill Bay, B. C., VOR 2PO

CHIEF: Roddy Albert Modeste Sr.

PHONE: 743-3231 FAX: 743-3251

AFFILIATION: Te’ Mexw

LOCATION:

The Malahat Band occupy a 585.9 acre (237.1 hectare) reserve on the western shore of Saanich Inlet, 2.5 km north of Bamberton. The most recent population figures compiled by the Ministry of Finance show the Malahat Band to have 92 persons living on the reserve as registered and non-registered members. The Bands’ total population including, registered and non-registered members, living on- and off-reserve, is reported as 220.

Located on the western coast of the Saanich Inlet, the reserve sits at elevations ranging from sea level to 120 metres above mean sea level, and experiences a climate in which average daily temperatures range from 5 degrees centigrade in January to between 16 and 20 degrees centigrade in July. Average annual rainfall for the area totals between 100 and 250 centimetres.

Water courses of significance include:

Malahat Creek: flows east, originating in the southwest portion of Malahat Reserve No. 11, and drains into the Saanich Inlet.

WATER ALLOCATIONS:

No record of water allocations made by either the Indian Reserve Commission, the Lieutenant Governor in Council (by Orders-in-Council), or by the Board of Investigation (by Order), exist for the Malahat First Nation. Similarly, there are no records of actions to amend rights authorized by license, under provision of the Water Act, with respect to the Malahat Band.

Malahat First Nation Water Rights Report

2

The water rights of the Malahat Band have been determined by one action of government over the years:

1. The granting of water licenses in response to Federal Government applications requesting authorization for the use of water on reserve lands.

HISTORY, CURRENT STATUS, AND NOTES:

The history of water rights, the current status of rights and notes for the Malahat Band with respect to Malahat Creek are as follows:

Malahat Creek

Historv:

Oct 14,1969

Jun 3,1976

Current Status:

In accordance with an application filed by the Superintendent General of Indian Affairs (Cowichan Agency), the Comptroller of Water Rights issued Conditional Water License 34841, bearing a date of precedence of June 6, 1969, and authorizing the diversion and use of up to 20,000 gallons of water per day. The license is valid year round and the land upon which the license is appurtenant is defined as that part of Malahat Reserve No. 2, Malahat District, lying west of Mill Bay Road.

Realizing that the appurtenant land was incorrectly stated in the original license the Comptroller of Water Rights issued an Order under Section 15 of the Water Act amending the description of the appurtenant lands from Malahat Reserve No. 2, to Malahat Reserve No. 11.

Conditional Water License 34841 is the only active license on Malahat Creek.

Water Survey of Canada has no streamflow records for Malahat Creek, and there is no other current information on file with regards to water availability.

Notes:

1. There are no additional notes with respect to the rights of the Malahat Band on Malahat Creek.

Malahat First Nation Water Rights Report

OTHER INFORMATION:

Groundwater Records:

A review of well records maintained by the Groundwater Section found that 2 wells have been reported on the Malahat Reserve. The wells yield 18 gallons per minute and 2 gallons per minute; further details are attached to this report. The extent to which these wells are utilized at this time is unknown.

As provision of well information to the Groundwater Section is voluntary, this review should not be assumed to be complete.

Municipal Water Sources:

Although the Malahat Band is situated near the Mill Bay Waterworks District, it would not be able to attain water from the District because, according to existing licensing, no usable surplus is available.

Recent Information:

On November 19, 1991 the Malahat Band wrote a letter to the Water Manager at Nanaimo regarding a water application submitted by Bamberton Investments Ltd. on Oliphant Lake and Johns Creek: The Malahat Band objected to this application, stating that they did not recognize title to the lands and waters covered by the Bamberton Investments Ltd. water license application, other than their own. In addition, the Malahat Band formally stated that they would take any action necessary, including legal action, to stop development on their claimed traditional territory.

Malahat First Nation Water Rights Report

ATTACHMENT I

ATTACHMENT 2

WATER RIGHTS BRANCH AND WATER RESOURCES

THE PROVINCE OF BRITISH COLUMBIA-WATER ACT

CONDITIONAL WATER LICENCE

The Superintendent General of Ind ian Affairs (Cowichan Agency) of Ottawa, Ontario

is/arc hcreby authorizcd to d i v e r t and use watcr as follows:- ' I

(CY) Thc sourcc(s) of the WJtCf-SUpply is/are Halahat Creek.

(b) The point(s) of d ivers ion is/arc locatcd as shown on the attachcd plan.

(c) Thc datc from which this liccncc shall havc prcccdcncc is 6 t h June 9 1969

( d ) The purpose for which thc watcr is to be used is waterworks.

(e) The maximum quantity of water which may be diver ted i s 20,000 ga l lons a day,

and such additional quantity as thc Enginecr may from time to timc dctcrmine should bc allowed for losscs.

( f ) The pcriod of the ycar during which thc watcr may be used i s t h e whole year .

( 8 ) The land upon which the watcr is to bc uscd and to which this liccnce is appurtcnant is p a r t of Malahat Indian Reserve No.2, Malahat Dist r ic t , l y i n g west of K i l l Bay Road.

( h ) Tnc works aulhorizcd to bc constructcd arc pump and pipe,

and they shall be locatcd approximately as shown on the attached plan.

(i) Thc construction of the said works has been completed and the water shall be b e n e f i c i a l l y used on or before t h e 3 1 s t day of December, 1971.

. .

LEGEND Point of Divm W.H. RI.1p

TORlA WATER DISTR MALAHAT DISTRICT

~ c r I e 40 Chairs to 1 I t d l

BK.

L’ilx --

Thc boundaria of thc la ic appurrcnanr are shown thus:

DLI~C 3d. June 1976 A - d a d CT, 3 4 8 4 I

File 0285684 Shawnigen Prec inc t

1ee. ,...... . ’.

- I . .

VICTORIA WATER DISTRICT MALAHAT . DISTRICT

Scale: 40 Chains to 1 Inch

Thc bundarics of the land to which tht liccnce is appurtciimt arc shown thus:

. Dotc ........._ d ....... C)=k......&59 ......................... CL 34841 Filc 0285684

.W.*......

D E P A R T M E N T OF E N V I R O N M E N T WATER RESOURCES SERVICE

WATER RIGHTS BRANCH

VICTORIA. B.C.

O R D E R

W A T E R A C T

S e c t i o n 1 5

FILE NO. 0285684

I n the m a t t e r of Condi t iona l Watcr Liccnce 34841, w h i c l i nu tho r i zcs t h e d i v e r s i o n of 20,000 g a l l o n s a day o f water from Plalahat Creek t o be used f o r waterworks purpose on p a r t of Pfalahat Ind ian Reserve hTo.2, Malahat D i s t r i c t , l y i n g w e s t of M i l l Bay Road.

Having determined t h a t t h e l and t o which t h e l i c e n c e is appur tenant was er roneous ly descr ibed and be ing s a t i s f i e d t h a t no person 's r i g h t s w i l l b e i n j u r i o u s l y a f f e c t e d , I hereby amend Clause (g) of t h e s a i d l i c e n c e to read as follows:

( g ) The l and upon which t h e water is t o be used and t o which t h i s l i c e n c e i s appurtenant is t h a t p a r t of Plalahat Ind ian Reserve Xo. 11, Plalahat D i s t r i c t , l y i n g west of I f i l l Bay Road.

Dated a t V i c t o r i a , B.C. t h i s 3rd day of June, 1976.

A . K . Sutlierland, Deputy Comptroller of Water Rights .

ATTACHMENT 3

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ATTACHMENT 5

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0 W.S.C. Gauging Sta. & No. A

Pipeline _ _

= = = I Dyke CLI 2345 Water Licence a12345 Cancelled, Abandoned

or Superceded Water Licence

=i\ 1 \ n ,q4

Malahat Scale 1:50,000

Ministry of Environment, Lands & Parks Date: September 10, 1997 Environment & Lands Divisior