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.
Escalating water challenges in BC require a better understanding and coordinated work to avoid future crisis. Drawing on an extensive review of media, court and tribunal cases, and insights from attending over 100 recent events related to water issues, this report documents dozens of examples of why and where critical water issues exist in the province’s watersheds. It focuses on 5 key issues: (1) Building resilience to droughts & floods; (2) Sustaining water for nature; (3) Understanding the state of B.C.’s watersheds; (4) Protecting water quality for drinking, swimming & fishing and (5) Reconciling the water-energy nexus. The report also suggests possible solutions to these five water challenges to create water security and sustainability over the coming years.
In May 2014, the Province of British Columbia enacted the new Water Sustainability Act, which provides an unprecedented opportunity to fully modernize British Columbia’s water law regime. This report provides an analysis of the Water Sustainability Act and the core regulations required to bring its sustainable aspects into full effect. It outlines leading best practices from around the globe and offers clear recommendations for WSA regulation development in five key areas: (1) Groundwater licensing; (2) Environmental flows; (3) Monitoring and reporting; (4) Water objectives; and (5) Planning and governance.
British Columbia can learn valuable lessons from California’s extreme drought and recent groundwater law reforms as it drafts its own groundwater regulations under the new B.C. Water Sustainability Act. This report analyzes California’s legislation while taking into account the climatic, social, and legal differences between the state and province. It offers a number of key findings and insights including the urgent need to begin piloting groundwater sustainability plans in critical watersheds in B.C.; the necessity for clear performance standards, timelines, and accountability for local decision-making bodies to ensure successful watershed or aquifer plans; and the importance of shared responsibility between senior government and local decision-makers.
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.
This hosts' statement and summary draws on the February 2016 Forum on Environmental Flow Needs in British Columbia, convened by POLIS and WWF-Canada to discuss the need for and steps required to implement an effective environmental flow management regime for BC. Attendees spanned a diversity of groups, including government, First Nations, NGOs, and leading experts and professionals. This document summarizes the context of environmental flows management in British Columbia, and offers recommendations on next steps and priority actions for the Province to advance environmental flows management.
This statement of expectations for an environmental flow needs regulation under B.C.'s Water Sustainability Act (WSA) was spurred by a October 2015 workshop that was attended by a diversity of individuals working on issues related to water sustainability. Attendees represented First Nation groups, watershed boards, funding organizations, stewardship groups, and academia. The stakeholders expect that an environmental flow needs regulation will build on the points set out in the general Environmental Sector Expectations for Regulations under BC's WSA. The 9 expectations for environmental flow needs (EFNs) include:
- EFNs must be addressed in binding regulations,
- First Nations rights and title must be included as part of EFNs management,
- Regulations must require that EFNs be protected when issuing new licences.
British Columbia's Water Sustainability Act (WSA) is expected to come into force in early 2016. In late summer 2015, the Ministry of Environment accepted public feedback to guide the development of the first phase of WSA regulations. Drawing primarily from a forthcoming POLIS report on WSA regulations, the WSP prepared a formal submission specific to the proposed groundwater regulations. This submission outlines key concerns and priorities in moving forward, including seven recommendations to help make B.C.'s groundwater regulations robust and effective.
The first POLIS Water Act modernization submission (April 2010)
The second POLIS Water Act modernization submission (March 2011)
The third POLIS Water Act modernization submission (November 2013)
POLIS WSP's submission on "Pricing B.C.'s Water" Discussion Paper (April 2014)
This summary brief focuses on the significance and implications of the landmark Supreme Court of Canada decision Tsilhqot’in Nation v B.C.This brief provides only a succinct, high-level overview of this detailed and complex decision, with a primary focus on summarizing the outcome of two expert panel discussions regarding the ruling.
The Pacific Business & Law Institute hosted one of these two expert panel discussions in July 2014. The second event, Aboriginal Title and Provincial Regulation: The Impact of Tsilhqot'in Nation v B.C., was hosted by The POLIS Water Sustainability Project and the University of Victoria's Faculty of Law and Centre for Global Studies in September 2014.
This statement of expectations for regulations under B.C.'s Water Sustainability Act was spurred by a May 2015 workshop that was attended by a diversity of individuals working on issues related to water sustainability. Attendees represented First Nation groups, watershed boards, funding organizations, stewardship groups, and academia. The stakeholders expect that that the 7 key areas of improvement outlined in the Province's WSA legislative proposal will be translated into regulations to realize the full potential of the WSA. The 7 overarching expectations include:
- Protect stream health and aquatic environments,
- Improve security, water use efficiency and conservation, and
- Provide for a range of governance opportunities.
This statement of expectations for groundwater regulations under B.C.'s Water Sustainability Act (WSA) was spurred by a May 2015 workshop that was attended by a diversity of individuals working on issues related to water sustainability. Attendees represented First Nation groups, watershed boards, funding organizations, stewardship groups, and academia. The stakeholders expect that groundwater regulations will build on the points set out in the general Environmental Sector Expectations for Regulations under BC's WSA. The 7 expectations for groundwater include:
- The regulations will define sustainable groundwater management,
- There will be substantial reporting and monitoring requirements, and
- Licences will only be issued in compliance with sustainable groundwater management criteria.
This briefing note analyzes the B.C. provincial government’s new fee and rental schedule for water users and sets out several recommendations that the Province may wish to adopt in the coming years to help ensure provincial water licence pricing provides adequate resources to support the full implementation of B.C.'s new Water Sustainability Act and truly reflects the value of fresh water.
This statement of support for B.C.'s Water Sustainability Act and its regulations was the result of an October 2014 workshop that was attended by a diversity of individuals working on issues related to water sustainability. Attendees represented First Nation groups, watershed boards, funding organizations, stewardship groups, and academia. This statement focuses on the need for the provincial government to:
- Ensure meaningful and adequate engagement with First Nations, and
- Provide sufficient ￼resources for implementation of the B.C. Water Sustainability Act.
POLIS Partner and Advisor Deborah Curran (Hakai Professor in Environmental Law and Sustainability, Environmental Law Centre, University of Victoria) authored this summary analysis of B.C.'s new Water Sustainability Act.
On March 11th, 2014, the B.C. provincial government introduced Bill 18-2014 Water Sustainability Act into legislature. In early April 2014, the government accepted public feedback to guide the development of water pricing options for B.C. The WSP prepared a formal response to the government discussion paper Pricing B.C.'s Water. This response provides specific considerations and recommendations, and describes the necessary characteristics and principles of a new water rentals system for B.C.
View the first POLIS Water Act modernization submission (April 2010)
View the second POLIS Water Act modernization submission (March 2011)
View the third POLIS Water Act modernization submission (November 2013)
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 report that provides concise direction on how citizens expect governments to manage freshwater resources.
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.
Moore, M-L., von der Porten, S., Plummer, R., Brandes, O.M., & Baird. J. (2014). Water policy reform and innovation: A systematic review. Environmental Science & Policy, available online February 6, 2014.
A growing need for innovation in water policy is increasingly recognized within water policy and governance scholarship, but the types of innovation and changes being considered or undertaken, and the conditions that enable or hinder those changes remain unclear. A systematic review of water policy reform literature was undertaken to investigate how innovation is defined in this area of scholarship and the enabling conditions or barriers shaping the innovation process. The findings of the review demonstrated that the mainstream water policy reform scholarship that examines innovation is limited. A small portion of the water policy reform literature that addresses innovation considers different types of policy changes as innovative. Therefore, the results are used to propose a typology of water policy innovations. Furthermore, the results demonstrated that preliminary knowledge about the role of policy entrepreneurs, networks, social learning, adaptive approaches, and niche experiments in the innovation process emerge in a sub-set of the water policy reform literature.
To download a copy of the full article, please click here.
Jackson, S., Brandes, O.M., & Christensen, R. (2012). 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. Journal of Environmental Law and Practice, 23(2), 175–199.
The Public trust doctrine is a longstanding legal principle that has the poten- tial to provide protection to ecological values, ensure water for future needs, and protect public uses and interests. While application of the principle is widespread in the U.S., it has yet to be fully articulated in Canada. This paper will outline the opportunity to enshrine the Public trust doctrine into Canadian water law by high- lighting the foundational aspects required in any legal framework. It will highlight key cases in which courts in other common law jurisdictions have applied Public Trust principles, and discuss the interplay between the development of this princi- ple at common law and in legislation. It will provide an overview of the core legal principles of the Public Trust that already exist in Canada’s common law tradition, and discuss the potential to develop these principles in the context of modern water governance using the current water law reform process in British Columbia to il- lustrate the powerful potential of this ancient concept to address modern fresh- water challenges.
To download a copy of the article, visit the publisher's website.
Brandes, O.M., & Nowlan, L. (2009). Wading into Uncertain Waters: Using Markets to Transfer Water Rights in Canada—Possibilities and Pitfalls. Journal of Environmental Law and Practice, 19(3), 267–287.
To download a copy of the full article, please click here.