Water plus Earth, Wind and Fire. No … it’s not a day at the beach with a great band from Chicago. These are the names of the four classical elements, which in ancient times were thought to explain the nature of how the world worked. They are also the subjects of the next four LawNow Environmental Law columns – the regulation of water, land, air and fire under Alberta law. In each case, we are going to look at five things that I think are interesting and important to think about to get a feel for the area.
We will start this time with water.
1. Alberta water law isn’t found in one place.
Just like the Facebook relationship status of that one wild friend that everyone has, the law about the use of water is complicated. It’s a mixture of common law (including riparian rights, drainage rights and nuisance) modified by written statutes, written regulations and policies put in place by the federal, provincial and municipal governments.
The main provincial statute that deals with granting water licenses and how much water a licence holder can use (called an allocation) is Alberta’s Water Act. Under that statute, the government can approve a water management plan for a river basin. So far there are approved plans in place for the South Saskatchewan River basin and the Battle River basin. Other important provincial statues containing provisions that could affect water in some way include:
- the Environmental Protection and Enhancement Act,
- the Municipal Government Act,
- the Public Lands Act,
- the Alberta Land Stewardship Act (and the regional plans created under it),
- the Irrigation Districts Act,
- the Forests Act,
- the Wildlife Act, and
- many of the regulations and plans created under the above statutes.
Other important provincial rules come from the Alberta Water for Life strategy, the Alberta Wetland Policy and various codes of practice put in place for different industries and activities. Important federal statutes include the Fisheries Act, the Navigation Protection Act, the Species at Risk Act and the new Impact Assessment Act. Municipalities also create bylaws to regulate water use, treatment and disposal. These bylaws can impact things as varied as preserving wetlands within a city’s boundaries to regulating people watering their lawns or washing their cars on the street.
Another wave of complication comes when rivers flow across borders. We covered how the United States and Canada settle cross-boundary water disputes in LawNow in September 2017. Several important rivers originate or have tributaries in one province but flow through others (the Mackenzie River, the North and South Saskatchewan rivers and the Beaver River, among others). Alberta is a party to agreements with British Columbia, the Northwest Territories, Saskatchewan and Manitoba about how those rivers are treated. One of those agreements says that Alberta has to leave one-half of the natural flow of water in the rivers that cross the border into Saskatchewan.
2. You can own the land adjacent to a river, stream or lake but you don’t actually own the water and you probably don’t own the “beds and shores” of the water body.
The provincial Crown claims ownership of all water on or under non-federal land in the province. A water user can only divert water from where it naturally occurs or use it for the purposes set out in the Water Act. The user must either have the benefit of a water licence or fall under one of several possible exemptions. There are exemptions for household water use by landowners whose land touches the water and for some other users. The government uses a system known as “first in time, first in right” (commonly called FITFIR) to decide who gets a water license. If you were there first, you have priority regardless of whether your use of the water is the best use.
Under Alberta’s Public Lands Act, the provincial government also owns the beds and shores of all “permanent and naturally occurring bodies of water” and of “all naturally occurring rivers, streams, watercourses and lakes”.
3. The extraction industries (oil, gas and mining) might be the biggest contributors to GDP in Alberta, but the agriculture industry uses most of the licensed water, primarily for irrigation.
According to the Alberta Water Portal website, the agricultural sector has 45.3% of the total water allocations (water they are licensed to take but don’t necessarily always use) in Alberta and 75% of the allocations in the South Saskatchewan River basin. Irrigation of crops actually uses 60 to 65% of all the licensed water taken in the province. In the Bow River basin, it has not been possible to get a new water licence for most purposes since 2006, largely because of agricultural use.
4. Fish and wildlife need water too.
That might seem like an obvious statement but historically water law has been aimed at promoting economic development and helping settle disputes between landowners. The needs of the natural environment were an afterthought, if they were considered at all. Habitat loss is now seen as the most important factor in loss of biological diversity. With climate change, melting headwater glaciers and pressure from increasing human populations in Alberta, it is becoming more and more important to think carefully about how we manage water. We also need to be more aware about managing the land across which the water flows to drain into our lakes, rivers, streams and wetlands. We have to think on an ecosystem scale and always remember that the effects of many activities out on the landscape are cumulative.
5. You cannot have a full understanding of water law without considering Aboriginal rights and interests.
These include rights under section 35(1) of the Canadian Constitution Act, rights under the Treaties covering land in Alberta (Treaties 6, 7 and 8) and rights to carry on certain traditional activities such as hunting and fishing both on and off reserve. Whenever there is a potential that a law allows activity that impacts Aboriginal rights or interests, governments have a duty to consult and accommodate. This is too big a topic to discuss now but it will be the subject of a future LawNow article.
For anyone who wants to dive a little deeper, an excellent in-depth resource on water law in Alberta is the second edition of Alberta’s Wetlands: A Law and Policy Guide, written by Professor Arlene J. Kwasniak and published by the Canadian Institute of Resources Law at the University of Calgary.