Water Law
Water law deals with the ownership, control, rights (and obligations), and use of water as a resource. Closely related to property law, water law has its roots in Canada’s British colonial legacy and the historical constitutional division of powers, and it is increasingly influenced by environmental law and Green Legal Theory.
An evolving and complex field of law strongly influenced by local institutions and norms, modern water law in Canada is a product of myriad governmental departments, programs and institutions across federal, provincial, First Nations and regional and municipal governments.
Laws and institutions governing water have far-reaching impacts, given water's vital role to all living things and as a cornerstone of economic and social prosperity. We recognize that the unique nature of water, as a dynamic flow resource with potentially simultaneous (and often competing) uses, presents challenges related to regulation and governance – notably, because most laws and institutions are designed mainly for land management.
Additional work in this theme focuses on the following topics:
- Ecosystem-based water allocations – that prioritize resilience and ecosystem health by emphasizing regulatory and institutional regimes to protect (and promote) instream flows.
- Aboriginal water rights – that address the landscape of customary water laws that has been shifting since Aboriginal rights were constitutionally entrenched in 1982. Land claims and ongoing case law regarding Aboriginal title and rights have become powerful influences on resource management in Canada and promise to extend into the water realm as cases that deal with the nature and scope of these constitutionally protected rights are only now beginning to emerge.
- Wet growth – where urban water law meets smart growth – exploring how the land-water interface relates to water quality and supply issues and, in turn, it influences the density, form, pattern and location of development and urban land-use decisions more generally.
- Water trusts – the “watery” cousins of land trusts that offer a potentially innovative market-based approach to protecting instream flows and ecosystem health. Trusts provide an institutional and legal mechanism to transfer water from extractive uses toward keeping water instream for the broader public benefit and ecosystem health.
Research Reports
This water law report was prepared with the University of Victoria's Environmental Law Center for the Land Trust Alliance of BC. It explains the water management regime in British Columbia in the context of ecosystem health, in order to assist land trusts to evaluate how best to protect instream flows, or the quantity of water in a stream, for conservation.
Discussion Papers, Briefing Notes and Case Studies
This briefing note outlines the opportunity to use the Public Trust Doctrine in BC water law. The Public Trust Doctrine helps protect ecological values, ensure water for future needs, engage the public, and protect public uses and interests. The principles embedded in the Public Trust Doctrine are being used in many places around the world to form the cornerstone of effective, efficient and modern sustainable water management regimes. Many of the foundational aspects of the doctrine—as applied to freshwater management—already exist in British Columbia’s legal framework. Proactively adopting the public trust as part of the Water Act modernization process allows the BC Government to implement the doctrine in a comprehensive and efficient way that is best suited to decision making processes and existing Living Water Smart priorities.
As recognized by Government in Living Water Smart, BC water laws need to be revised in order to sustain the environment and the social and economical well being of British Columbians. This formal submission offers the position of the University of Victoria’s POLIS Project on Ecological Governance and answers the call of the Ministry of Environment and Premier of British Columbia to provide solutions for securing our water future.
Western notions of modernity must necessarily be tempered by an understanding that certain natural resources - especially air, freshwater and oceans - are central to our very existence; and that governments must exercise a continuing fiduciary duty to sustain the essence of those resources for the long-term use and enjoyment of the entire populace. Although Canadians have been slow to embrace the public trust notion, it has played a central role in water and environmental management in the United States since the 1970s; in that country, it mirrors an historic expansion of public consciousness and concern away from immediate private interests to the interests of others in society, future generations of humans, and even non-human life. A number of changes have taken place in Canada over the past few decades that suggest the time may right to move the public trust concept, or at least something akin to it, forward in the Canadian context; the only question that remains is whether policy-makers or the judiciary will take the lead.
The POLIS Project and Friends of the Earth Canada were invited by the Gordon Foundation along with three other experts to review drafts of the Implementing Agreements for Annex 2001 and make recommendations to the Council of Great Lakes Governors in September, 2004.
