Water Law & Policy
The WSP’s Water Law & Policy research theme explores emerging trends and opportunities for reform, with a focus on ways of creating new forms of institutions and systems of governing that prioritize watershed sustainability.
Water law deals with the ownership, control, rights (and obligations), and use of water as a resource. In Canada, modern water law is the product of a myriad of departments, programs, and institutions across all levels of government—federal, provincial, First Nations, and regional and municipal. The WSP recognizes that the unique nature of water—a dynamic flow resource with potentially simultaneous, and often competing, uses—presents challenges related to regulation and governance. Our research focuses on four main topics within water law and policy:
- Ecosystem-based water allocations—the need to prioritize resilience and ecosystem health by emphasizing regulatory and institutional regimes that protect and promote instream flows.
- Aboriginal water rights—addressing the landscape of customary water laws that has been shifting since aboriginal rights were constitutionally entrenched in 1982.
- 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, influences the density, form, pattern, and location of development and urban land-use decisions.
- Water trusts (the “watery” cousins of land trusts)—offer a potentially innovative market-based approach to protecting instream flows and ecosystem health by providing an institutional and legal mechanism for transferring water from extractive uses to keeping it instream for broader public benefit and ecosystem health.
Research Reports
Maintaining Natural BC for Our Children: Selected Law Reform Proposals was published by the Environmental Law Centre (ELC) at the University of Victoria’s Faculty of Law. The book is a series of 35 short, readable articles that describe important environmental law reforms that the next B.C. provincial government should consider. The WSP was pleased to partner on this publication, and contributed background material on water law reform and sustainability priorities, including a chapter that Oliver M. Brandes co-authored with Calvin Sandborn (Legal Director, ELC and editor of Maintaining Natural BC) on the need to reinvent rainwater management in the province.
Cross-Canada Checkup: A Canadian Perspective on Our Water Future offers a first-hand account of the state of fresh water across the country, and outlines the water challenges and priorities facing Canadians.
Capturing the national pulse on water, the report is a synthesis of themes, perspectives, and information from the Forum for Leadership on Water's fall 2011 cross-Canada water discussion series tour. It illustrates the interrelatedness of many water issues common to all Canadians, and documents the growing need for solutions that transcend chronic jurisdictional challenges. It also explores the Northwest Territories’ groundbreaking new water stewardship strategy as a model for water policy reform in the rest of Canada.
The report was co-published by the POLIS Project on Ecological Governance and the Adaptation to Climate Change Team (ACT) at Simon Fraser University.
To download a copy of the report, please click the links below. A two-page report summary is also available for download.
This report describes some of the key mechanisms available to allocate water in times of scarcity, with a particular focus on markets and market mechanisms. It highlights some of the advantages and disadvantages, as well as recent experiences in jurisdictions—such as Alberta—that have begun to include markets formally in their water allocation framework. To access this report on the Conference Board of Canada website click here.
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.
This report outlines the steps necessary to create an effective freshwater strategy in Canada, created by the Gordon Water Group of Concerned Scientists and Citizens. The Gordon Water Group was founded in part by three POLIS Research Associates. The Group brings together a number of organisations, including the Water Sustainability Project and scientific expertise on sustainable water management.
Policy Papers
The FLOW Monitor is a bulletin published by the Forum for Leadership on Water (FLOW). Written primarily by FLOW members, the FLOW Monitor provides independent commentary and information on key water events and issues. The WSP team regularly contributes to the publication. Each edition reviews progress on key national water priorities, celebrates successes, and reviews leading efforts to move towards a federal freshwater strategy. Articles advocate actions and policies from all orders of government, who share responsibility for water security in Canada.
PDFs of the current and past issues can be downloaded at the bottom of this page. For the French versions, please visit http://www.flowcanada.org/policy/monitor/past-issues.
In June 2012, the WSP partnered with the University of Victoria’s Faculty of Law and Environmental Law Centre to host a two-day workshop on water entitlements. With British Columbia's Water Act modernization process underway, the main purpose of the workshop was to disseminate knowledge about legal entitlements in the province, and take lessons from other jurisdictions, including Australia and the United States.
To download the workshop proceedings and the workshop discussion paper, click the links below.
This assessment compares the Government's proposed Water Sustainability Act (2010) to the NGO Statement of Expectations (2009) and the original Living Water Smart promises (2008). It was prepared by Randy Christensen, a lawyer with Ecojustice Canada, and Linda Nowlan, Director of Pacific Conservation, World Wildlife Fund Canada. This assessment was issued by Ecojustice Canada, POLIS Water Sustainability Project, Watershed Watch Salmon Society, and WWF-Canada.
This position paper is the formal response of University of Victoria’s POLIS Project on Ecological Governance to the government's Policy Proposal on British Columbia's New Water Sustainability Act (December 2010). POLIS acknowledges that the policy proposal offers a number of promising new directions. However, the analysis also suggests that a number of critical aspects have been overlooked. These include: protection of environmental flows, an allocation system that embeds the public trust, shared watershed governance, and accountability and oversight.
To see the first POLIS WAM Submission (April 2010), please click here.
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.
This document answers the call of the Premier of British Columbia for citizens to become part of the solution for securing our water future. It outlines key minimum steps critical to protecting this precious resource. This statement of expectations was developed through study and consultation, and the signatory groups urge the BC government to take swift and decisive action on the issues described within.
This Blueprint for a Comprehensive Water Conservation and Efficiency Strategy was prepared in anticipation of the development of Ontario's Provincial Water Conservation and Efficiency Strategy. This policy paper synthesizes research on progressive water conservation policies into a comprehensive plan of action. Implementation of the recommended actions would position Ontario as a leader on conservation. The Blueprint has been endorsed by a number of NGOs and will be utilized to provide input to the province's consultation process.
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.
In November 2008, Water Project Leader Oliver M Brandes, as part of a group of leading Canadian scientists, water law and policy experts and environmental activists, helped develop and release a landmark Freshwater Declaration that calls on all levels of government to take urgent action to develop an integrated freshwater strategy for Canada.
A briefing note outlining priorities and opportunities for sustainable water management in British Columbia prepared for the BC Real Estate Association by Oliver Brandes and Jon O'Riordan.
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.
Peer-Reviewed Articles
A new article about the public trust doctrine and its importance to Canadian water management and governance was published in the April 2012 issue of the Journal of Environmental Law and Practice. The article, "Lessons from an Ancient Concept: How the Public Trust Doctrine will meet obligations to protect the environment and the public interest in Canadian water management and governance in the 21st century," was co-authored by Sarah Jackson, and POLIS' Oliver M. Brandes and Randy Christensen.
Article Access
To download a copy of the article, visit the publisher's website.
Journal of Environmental Law & Practice, 19(3): 267-287, 2009. (I)(+)
Dialogues, Canada West Foundation, 2(1):8, 2006. (I)(+)
