CHAPTER 8 – WATER

8.1.0  GENERAL

8.1.1  Storage, diversion, extraction or use of water and Groundwater will be in accordance with Federal Law and Provincial Law.

8.1.2  A Maa‑nulth First Nation may only sell water in accordance with Federal Law and Provincial Law that permit the sale of water.

8.1.3  Nothing in this Agreement alters Federal Law or Provincial Law in respect of property in water.

8.1.4  The Water Utility Act does not apply to Maa‑nulth‑aht, Maa‑nulth First Nations, Maa‑nulth First Nation Public Institutions or Maa‑nulth First Nation Corporations that are providing water services on Maa‑nulth First Nation Lands.

8.2.0  WATER RESERVATION

8.2.1  On the Effective Date, British Columbia will establish a water reservation for domestic, industrial, and agricultural purposes, in favour of:

a. Huu‑ay‑aht First Nations, of 75,000 cubic decametres of water per year from those Streams listed in Schedule 1;

b. Ka:'yu:'k't'h'/Che:k'tles7et'h' First Nations, of 50,000 cubic decametres of water per year from those Streams listed in Schedule 2;

c. Toquaht Nation of 15,000 cubic decametres of water per year from those Streams listed in Schedule 3;

d. Uchucklesaht Tribe of 50,000 cubic decametres of water per year from those Streams listed in Schedule 4; and

e. Ucluelet First Nation of 57,000 cubic decametres of water per year from those Streams listed in Schedule 5.

8.3.0  LAW-MAKING

8.3.1  Each Maa‑nulth First Nation Government may make laws in respect of:

a. the consent of the applicable Maa‑nulth First Nation contemplated by 8.4.2a. to applications for Water Licences to be applied against that Maa‑nulth First Nation's water reservation established in accordance with 8.2.1; and

b. the supply and use of water from a Water Licence issued in accordance with 8.4.2.

8.3.2  Federal Law or Provincial Law prevails to the extent of a Conflict with Maa‑nulth First Nation Law under 8.3.1.

8.4.0  WATER LICENCES

8.4.1  A Maa‑nulth First Nation, or a Maa‑nulth‑aht of that Maa‑nulth First Nation with the consent of that Maa‑nulth First Nation, may apply to British Columbia for Water Licences to be applied against that Maa‑nulth First Nation's water reservation established in accordance with 8.2.1.

8.4.2  If a Maa‑nulth First Nation or a Maa‑nulth‑aht applies to British Columbia for a Water Licence in accordance with 8.4.1 and:

a. that Maa‑nulth First Nation has consented to the application;

b. the application conforms to provincial regulatory requirements;

c. there is sufficient unrecorded volume of flow in that Maa‑nulth First Nation's water reservation established in accordance with 8.2.1;

d. the application includes provision for storage where the monthly available flow is insufficient to meet proposed consumption; and

e. the application is for a volume of flow that, together with the total volumes of flow licensed for that Stream listed in the applicable Schedule, does not exceed the monthly percentage of Available Flow for that Stream listed in the applicable Schedule,

British Columbia will approve the application and issue the Water Licence.

8.4.3  The volume of flow approved in a Water Licence issued in accordance with 8.4.2 will be deducted from the unrecorded volume of flow in that Maa‑nulth First Nation's water reservation established in accordance with 8.2.1.

8.4.4  If a Water Licence issued in accordance with 8.4.2 is cancelled, expires, or otherwise terminates, the volume of flow in that Water Licence will be added to the unrecorded volume of flow in that Maa‑nulth First Nation's water reservation established in accordance with 8.2.1.

8.4.5  The total volumes of flow under the Water Licences applied against a Maa‑nulth First Nation's water reservation established in accordance with 8.2.1 will not exceed the monthly percentage of the Available Flow of each Stream as listed in Schedules 1 to 5.

8.4.6  A Water Licence issued to a Maa‑nulth First Nation or a Maa‑nulth‑aht for use on the Maa‑nulth First Nation Lands of that Maa‑nulth First Nation in accordance with 8.4.2 is not subject to any rentals, fees, or other charges except taxes, by British Columbia.

8.4.7  A Maa‑nulth First Nation may apply for Water Licences in accordance with Federal Law or Provincial Law, if there is insufficient unrecorded volume of flow in that Maa‑nulth First Nation's water reservation established in accordance with 8.2.1 to issue a Water Licence.

8.4.8  A water reservation established in accordance with 8.2.1 has priority over all Water Licences on the Streams to which the water reservation established in accordance with 8.2.1 applies other than:

a. Water Licences issued before October 3, 2003;

b. Water Licences issued pursuant to an application made before October 3, 2003; and

c. Water Licences issued pursuant to water reservations established before October 3, 2003.

8.4.9  British Columbia will Consult with a Maa‑nulth First Nation respecting applications for Water Licences where the applicant may reasonably require access across or an Interest in its Maa‑nulth First Nation Lands.

8.4.10  British Columbia will provide notice to a Maa‑nulth First Nation concerning applications for Water Licences in respect of Streams wholly or partially within its Maa‑nulth First Nation Lands, which may be in the form of a notice under the Water Act.

8.4.11  If a person other than a Maa‑nulth First Nation or a Maa‑nulth‑aht of that Maa‑nulth First Nation has a Water Licence and reasonably requires access across, or an Interest in, the Maa‑nulth First Nation Lands of that Maa‑nulth First Nation for the construction, maintenance, improvement or operation of works authorized under that Water Licence, that Maa‑nulth First Nation may not unreasonably withhold consent to, and will take reasonable steps to ensure, that access or the granting of that Interest, if that Water Licence holder offers fair compensation to the owner of the estate or Interest affected.

8.4.12  If a Maa‑nulth First Nation or a Maa‑nulth‑aht has a Water Licence approved in accordance with 8.4.2 or 8.4.7 and reasonably requires access across, or an Interest in, provincial Crown land for the construction, maintenance, improvement or operation of works authorized under that Water Licence, British Columbia will grant the access or Interest on reasonable terms in accordance with Provincial Law.

8.4.13  Upon the request of Ka:'yu:'k't'h'/Che:k'tles7et'h' First Nations, British Columbia and Ka:'yu:'k't'h'/Che:k'tles7et'h' First Nations will negotiate and attempt to reach agreement on amendments to the boundaries of Brooks Peninsula Provincial Park or Tahsish-Kwois Provincial Park, as applicable, to enable Ka:'yu:'k't'h'/Che:k'tles7et'h' First Nations to reasonably access water from Amos Creek, Quin‑E‑Ex Creek (unofficial name), Battle River (unofficial name), Power River, Tahsish River, or Tsauk Creek (unofficial name) in accordance with 8.4.1 and 8.4.2, if:

a. Ka:'yu:'k't'h'/Che:k'tles7et'h' First Nations is unable to reasonably access water from such Streams from its Maa‑nulth First Nation Lands, and Groundwater is also not reasonably available on its Maa‑nulth First Nation Lands;

b. water from such Streams is for use on the Maa‑nulth First Nation Lands of Ka:'yu:'k't'h'/Che:k'tles7et'h' First Nations described in Plans 1, 2, 4, 6 and 19 of Appendix B-2, Part 2 (a), which lands are surrounded by Provincial Protected Areas; and

c. the Minister is not able, under Provincial Law:

i. to grant a Water Licence to divert, use or store water from a point of diversion within Brooks Peninsula Provincial Park or Tahsish-Kwois Provincial Park on those Streams if such point of diversion within those parks is reasonably required to access water from those Streams; or

ii. to grant access to, or an Interest in, provincial Crown land located within Brooks Peninsula Provincial Park or Tahsish-Kwois Provincial Park if such access to, or an Interest in, provincial Crown land is reasonably required for the construction, maintenance, use or operation of licensed works or for the flooding of provincial Crown land with those parks,

without an amendment to the boundaries of Brooks Peninsula Provincial Park or Tahsish-Kwois Provincial Park.

8.4.14  If Ka:'yu:'k't'h'/Che:k'tles7et'h' First Nations and British Columbia are unable to reach agreement on the amendments to the boundaries of Brooks Peninsula Provincial Park or Tahsish-Kwois Provincial Park, as applicable, in accordance with 8.4.13, either British Columbia or Ka:'yu:'k't'h'/Che:k'tles7et'h' First Nations may refer the issue to be finally determined by arbitration in accordance with Chapter 25 Dispute Resolution without having to proceed through Stages One and Two.

8.5.0  GROUNDWATER

8.5.1  If British Columbia brings into force Provincial Law regulating the volume of Groundwater under Maa‑nulth First Nation Lands which may be extracted and used, British Columbia will, if Groundwater is reasonably available, negotiate and attempt to reach agreement with the applicable Maa‑nulth First Nation on the volume of Groundwater which may be extracted and used for domestic, agricultural and industrial purposes by that Maa‑nulth First Nation on its Maa‑nulth First Nation Lands for as long as such Provincial Law is in effect.

8.5.2  For the purposes of 8.5.1, British Columbia and the Maa‑nulth First Nation will determine the:

a. volume of flow of Groundwater which can reasonably be withdrawn from the Groundwater aquifer under consideration while maintaining the sustainability and quality of the Groundwater from the aquifer; and

b. existing and reasonable future needs for Groundwater of the Maa‑nulth First Nation and its Maa‑nulth‑aht on its Maa‑nulth First Nation Lands, as well as the existing and future needs of other users in the area,

and take into account any applicable requirement under Federal Law or Provincial Law.

8.5.3  If British Columbia and the Maa‑nulth First Nation are unable to reach agreement in accordance with 8.5.1 and 8.5.2 on the volume of Groundwater which may be extracted and used by that Maa‑nulth First Nation, British Columbia or that Maa‑nulth First Nation may refer the matter to be finally determined by arbitration in accordance with Chapter 25 Dispute Resolution without having to proceed through Stages One and Two.

8.5.4  Access to extract Groundwater on Maa‑nulth First Nation Lands requires the consent of the applicable Maa‑nulth First Nation.

8.6.0  HYDRO POWER RESERVATIONS

8.6.1  In addition to the Maa‑nulth First Nation water reservations established in accordance with 8.2.1, on the Effective Date, British Columbia will establish water reservations of the unrecorded water of the Streams specified in this paragraph, to enable each Maa‑nulth First Nation to investigate the suitability of those Streams for hydro power purposes including related storage purposes, as follows:

a. in favour of Huu‑ay‑aht First Nations, for five years after the Effective Date, for the Sarita River;

b. in favour of Ka:'yu:'k't'h'/Che:k'tles7et'h' First Nations, for five years after the Effective Date, for the Tahsish River;

c. in favour of Toquaht Nation, for two years after the Effective Date, for Draw Creek;

d. in favour of Uchucklesaht Tribe, for two years after the Effective Date for Handy Creek and five years after the Effective Date for Uchuck Creek; and

e. in favour of Ucluelet First Nation, for two years after the Effective Date, for the Nahmint River.

8.6.2  If a Maa‑nulth First Nation applies for a Water Licence for hydro power purposes and any related storage purposes in relation to a water reservation established for that Maa‑nulth First Nation in accordance with 8.6.1, British Columbia will grant the Water Licence if the proposed hydro power project conforms with Federal Law or Provincial Law and there is sufficient Available Flow in the applicable specified Stream subject to that water reservation.

8.6.3  If British Columbia issues a Water Licence in accordance with 8.6.2, the water reservation established in accordance with 8.6.1 will terminate in respect of that Stream.

SCHEDULE 1 – HUU‑AY‑AHT FIRST NATIONS WATER VOLUMES

Streams partially within the Maa‑nulth First Nation Lands of Huu‑ay‑aht First Nations for which a monthly percentage of Available Flow has been specified:

SCHEDULE 2 – KA:'YU:'K'T'H'/CHE:K'TLES7ET'H' FIRST NATIONS
WATER VOLUMES

Streams partially within the Maa‑nulth First Nation Lands of Ka:'yu:'k't'h'/Che:k'tles7et'h' First Nations for which a monthly percentage of Available Flow has been specified:

SCHEDULE 3 – TOQUAHT NATION WATER VOLUMES

Streams partially within the Maa‑nulth First Nation Lands of Toquaht Nation for which a monthly percentage of Available Flow has been specified:

SCHEDULE 4 – UCHUCKLESAHT TRIBE WATER VOLUMES

Streams partially within the Maa‑nulth First Nation Lands of Uchucklesaht Tribe for which a monthly percentage of Available Flow has been specified:

SCHEDULE 5 – UCLUELET FIRST NATION WATER VOLUMES

Streams partially within the Maa‑nulth First Nation Lands of Ucluelet First Nation for which a monthly percentage of Available Flow has been specified:

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