Annotated Bibliography of Western Canadian Water Law

 

Provincial Government (Legislation, Publications)

Alberta Environment Website: http://www3.gov.ab.ca/env/water/index.cfm

      The Alberta Environment website has a few main topical sites, including this one, which focuses on water.  The site contains useful information on different topics relating to water, such as legislation, publications, forms, and water conservation.  Also part of this site is Water for Life, the web page for Alberta’s water strategy.  Publications available include the Preliminary Report from the Water Use Practice and Policy Advisory Committee, which identifies potential public concerns with oil and gas practices and how these practices could affect the water cycle and the environment.  The report begins to address these concerns, providing recommendations on potential conservation strategies.  The information on the web site itself is considerable, although basic.  The site provides good background knowledge relating to water issues in Alberta.

Percy, David R, “Water Rights in Alberta”. Alberta Law Review, vol 15 (1977), pp 142-165.

            This article begins with an overview of the development of water law in Alberta from the Northwest Irrigation Act (1894) through the Water Resources Act in force in 1977.  The author then considers the ways to acquire water rights in Alberta: licensing, ‘reserved’ water, water rights under the Irrigation Act, and riparian rights.  After a review of the scope of these rights, Percy concludes that the Water Resources Act is not an effective way of ensuring the most beneficial use of water. In particular, priority being established by date of issue, and constraints on transferability prevent, or impair, the most beneficial uses of water. This article is the foundational article on Alberta water rights. 

Percy, David R, Framework of Water Rights Legislation in Canada. Calgary: Canadian Institute for Resources Law, 1988, pp. 100.

            This book presents a comprehensive overview of water rights legislation found throughout the common law jurisdictions of Canada.  The book is divided into three sections: one exploring Western water law, another northern water law and a third, Ontario, is chosen as being representative of Eastern provinces.  Each section covers development of the law, the means of allocating rights under the system and suggests reforms.  Percy does, however, only deal with issues of water quantity, or flow, and not issues of water quality. 

            After a thorough review of the history of Western water law, Percy describes a system that he calls the Basic Western Model (BWM).  The BWM is characterized by all water rights vesting in the Crown, with a mechanism in place to distribute water rights.  In cases of dispute between two or more licencees, the principle of prior allocation gives to the first licence holder priority over subsequent licencees in diverting all of the water to which they are entitled.  He also notes that a system of reserved water rights is employed to give the Crown more flexibility.  Percy then describes the interaction of rights under the BWM and riparian rights.  He identifies which riparian rights continue to exist, and to what extent.  Finally, Percy includes a critique of the BWM, and provides some insight into how reform could proceed.  Particularly, transferability of water rights, modification and cancellation are all issues of concern under the BWM.  After discussing the reforms undertaken by Saskatchewan (which introduced the Water Corporations Act, S.S. 1983-84, c.W-4.1), Percy suggests other avenues of reform including easing restrictions on transferability and adopting a system of priorities reflective of today’s society. 

            According to Percy Northern water law adopts an authority management scheme.  The Northern Inland Waters Act is a fairly recent legislative attempt to provide a long-term solution to water rights issues.  Like the BWM, all water rights in this scheme vest in the Crown, and are distributed through an allocation system.  The principal distinction relates to the priority of allocation.  Under the NIWA water rights are assigned a priority on the basis of who makes the best use of the water (decided by a list of priorities established by each Water Board).  After discussing the relationship between this scheme and riparian rights, Percy provides a critique of the scheme.  Three important critiques include leaving too much discretion and responsibility in the hands of administrators, failure to protect instream uses, and cumbersome public hearings requirements.

Winterbourne, Katie Jane. Constitutional and International Trade Law Challenges to Provincial Regulation of Water Exports. (LLM, University of Calgary Law, 2002) [Unpublished?] 245 pp.

      This thesis examines provincial water legislation to determine the effect of water export regulation and prohibition.  This thesis focuses on the legislation of Ontario, Newfoundland, Alberta and British Columbia.  Each province takes a slightly different approach with respect to water export regulation  For example, Ontario restricts transfers across hydrological boundaries, while Newfoundland restricts transfer across political boundaries.  The thesis focuses on potential challenges under the Canadian constitutional division of powers, and under international trade agreements.  For example, the thesis looks at the federal trade and commerce, criminal and peace, order and good government powers, as well as potential obligations under GATT and NAFTA.  This thesis is insightful with respect to potential weaknesses in the provincial legislation