Water Act Modernization
British Columbia’s Water Law Framework
This page describes the evolution of B.C.’s water law framework since it began in 1859. Over time parallels can be seen between resource development activities, technological advances, institutional changes, and shifts in society’s values which, in turn, have prompted government review of B.C.’s water laws. Today, major changes in all these areas are occurring. In response, government is reviewing the water law framework and would like your input.
The Evolution of B.C.’s Water Laws
Water allocation is essential for economic development so it makes sense that major shifts in water laws have been accompanied by major shifts in economic development throughout the history of B.C.
Gold miners and B.C.’s early farming settlers influenced the first big shift in water allocation because they needed access to water away from streams and rivers. Early in the Caribou gold-rush days the inadequacy of the
riparian law system was recognized. A different approach based on security and certainty was necessary to justify the significant investments settlers were making in mining (gold, coal and other minerals), forestry, agriculture, and land settlement. Starting with the Gold Fields Act of 1859, laws changed to grant exclusive rights to use water in return for a rental payment to the Crown and an obligation to use it beneficially for the purposes stated in the licence.
First in time, first in right – or?
Water rights are granted in B.C. according to the priority date or the “first in time first in right” doctrine. For example if your licence was granted in 1930 before other licence holders on the same stream, you are a “senior” licence holder and the others are “junior”. In times of water scarcity the senior licences with earlier priority dates retain their full allocation over the junior licences regardless of water use purpose.
Other jurisdictions have modified this approach to enable the temporary reduction of rights according to the priority of use (rather than date). In effect, this can allow the water manager to reduce the rights of non essential uses (like landscape irrigation) in preference to retaining the more essential rights (like domestic or municipal water supplies) and provide for ecological needs.
B.C.’s first Water Act in 1909 was prompted by frequent disputes and litigation over water rights. It created a single set of water allocation rules and a Board of Investigation to consolidate the allocation rules and information into one system and review all licences, terms and conditions. Over ten years the Board made decisions on 8000 water rights claims and determined the terms and priority of new licences. Many of our older licences have terms and conditions set at this time. Eventually by 1939, all water rights were brought into the new prior appropriation allocation scheme (“first in time first in right”) and relative order and stability was brought to B.C.’s water laws. At the time, the legislation was considered one of the best of its kind.
The 1939 Water Act made significant changes from an organizational and governance perspective. The Board of Investigation was replaced by the current Comptroller of Water Rights role and the Act was drastically reduced from 300 sections to 80. Improvement districts (enabled by the 1920 Water Act) were forming, especially in the Okanagan, and the demand for irrigation licences was increasing in many areas. The principles from earlier laws were retained and still remain with us in 2009.
Governed by W.A.C. Bennett, post-war B.C. saw large changes to the landscape and economy with massive engineering and construction projects (hydroelectric dams, bridges and roads) fuelled by an economic boom in the forestry, mining, and energy sectors. Major trans-boundary negotiations were also occurring in B.C. for water and energy. BC Hydro was formed and, amid controversy, the Columbia Basin Treaty was signed.
The Water Act of 1960 expanded the focus of the Act to include provisions to: apply the Act to groundwater (has never been enacted); enable approvals for making changes in and about streams and; provide for the short term use of water. Environmental protection was just starting to be considered and clauses for environmental protection first appeared in 1960. Language changes and the role of laws in government also required further changes to the Act. Once again, the Act was significantly shortened and much of the prescriptive guidance was removed and placed in regulations, policies or procedures.
The Water Act of 1979 reflected the trend towards decentralization of government power and created Regional Water Managers who were given powers previously held by the Comptroller to allocate rights to water and administer licences. The Environmental Appeal Board was also established at the time (under the Environment Management Act) as an independent tribunal to hear appeals under the Water Act and other environmental legislation, taking that power out of the political arena (cabinet) and the courts.
Few changes were made over the next decades although water (particularly the bulk export of water and environmental protection) did not fade from Canadians’ concerns. The Water Protection Act (1995) was introduced to foster the sustainable use of B.C.’s water resources while conserving and protecting the environment. This Act prohibited the bulk export and major inter-basin transfers of water in B.C. In 1997 the Fish Protection Act brought in additional mechanisms to strengthen the protection of fish and fish habitat from water allocations. Some sections of that Act were not brought into force in 1997 to allow time to consult with affected stakeholders and develop implementation strategies. Since that time the Sensitive Streams and Riparian Area Regulations have been brought into force and in the summer of 2009 Section 9 was also brought into force to allow the minister to temporarily reduce water use during drought. The remaining provisions, such as requiring the consideration of fish in water licensing and mechanisms for permanent reductions, could be brought into force in a new Water Act.
The latest changes to the Water Act came into effect in 2004 driven primarily by growing concerns for the protection of drinking water quality and the Walkerton drinking water tragedy in 2000 when seven people died. In addition to a new Drinking Water Protection Act, the Water Act amendments provided B.C. with its first mechanisms to protect groundwater and a process for watershed management planning to address or prevent conflicts among or between water users and the environment, and the protection of water quality. As well, water licences issued for water power purposes are now limited to a maximum term of 40 years; allowing for a review of the rights after that time frame.
Today the Water Act is the heart of the water governance framework but it has many links to other important provincial and federal laws.
Source: Ministry of Environment
Prior to the Gold Fields Act
of 1859, water law in Canada followed the common-law system of riparian law. This meant that only those who owned land adjacent to water bodies could access and use water. This system is still in place in Eastern Canada.