The BC Water Act

2013 November 11, by Chapter Council

Water Act Proposal inadequate

BCP---Final---noguideWe have recently seen a legislative proposal for the Water Sustainability Act and the public has until November 15th to respond to the proposal with comments, concerns and suggestions. During the last round of public engagement in 2011 a great deal of concern was raised by community members, non-profit organizations, industry and indigenous communities about the process and proposal and some of the comments were heard, however a great deal has yet to be addressed. The new proposal also raises some questions.

The public response to the 2011 proposal document has shifted the framework away from a proposed market for water licenses, has prioritized regulation of groundwater use and acknowledged the need for monitoring of environmental flows. However, the proposal remains largely supportive of business as usual for industrial use, limits the ability for effective stewardship and is lacking in consideration for Indigenous Title and Rights as well as the public interest.

You can find the new proposal at Comment by Nov 15. The Council of Canadians have a few specific concerns on the water act proposals.

NO to First in Time, First in Right (FITFIR)

FITFIR is the common law principle that the first person who acquires rights to water in a watershed has first priority for use. The new proposal has retained the FITFIR model of prioritizing water licenses. While the proposal justifies retaining the model as something that is convenient, this model severely limits the ability for local planning and stewardship of watersheds.

While the act proposes prioritizing household use and environmental needs in times of scarcity, it does not allow for community planning in order to proactively avoid periods of water scarcity. The FITFIR model does not prioritize ecological needs and ignores indigenous use of water which ironically (or not) is actually “First in Time”. The Union of BC Indian Chiefs identifies the injustices imposed by the FITFIR model and the inability to reprioritize senior license. “BC has controlled access to surface water through water licenses issued on a “first come, first served” basis. Historically, BC refused to record water allocations made to reserve lands, and in many cases, reserve lands have a lower priority than settler interests.”

Even worse, FITFIR is proposed as the model for groundwater licenses which will be introduced in the new act. A new area of water regulation will not only inherit the flaws of the old model but will also create a gold rush style license grab by industrial users to get the highest priority licenses. Are we “modernizing” using an early 1900s model?

Our solution

Localized governance models with indigenous communities should be empowered to establish and adjust the priorities of water use. We recommend a “priority of use” model instead of FITFIR.

Rejection of the public trust doctrine

The public trust doctrine holds that resources like water, air and land be managed by government (or other official entities) as a Public trusttrust on the public’s behalf. By de-emphasizing Crown ownership and emphasizing management and stewardship, a more just and sustainable management model is possible. The new proposal suggests that because the Public Trust Doctrine is relatively untested in Canada and because it would influence other areas of law it cannot be considered at this moment. However, given aboriginal rights and title, this ownership model is flawed.

The Union of BC Indian Chiefs had made clear in their submission that “the Province does not have the ownership and jurisdiction over water where Aboriginal Title exists, and the proposed Water Act amendments continue with the province’s history of denial which is damaging both to Indigenous Peoples and cultures, and also to the waters and all life that depends upon the water.” By declaring water as a public trust, rather than owned exclusively by the crown, a collaborative stewardship model can be promoted through this act.

Our solution

Use the Public Trust Doctrine  to designate the provincial government as trustees (stewards) of water as opposed to owners. As a trustee the Government cannot sell or commodify water but can promote a stewardship role that may not be in direct conflict with proven and inherent Title and Rights of Indigenous people.  Water allocation must be based upon water as a human right, water as a commons and water as a public trust.

Clarify elimination of limited use purposes per license

Is it desirable to divert water licensed for agriculture to instead a mining operation? The current act has restrictions on such activity. But, section 2.3.1 of the proposal states that “the limit of three water use purposes per licence would also be removed.”

Our solution

More clarity is needed. Having no limit to uses would suggest water licence would be carried with property rights with no regulation on use for those in possession of the licence.

Include saline water in groundwater regulation

While groundwater regulation is included in the proposal, saline groundwater is not. This exclusion is based on an unsupported assumption that there is an “assumed disconnection” of saline groundwater, shallower groundwater and surface water. Saline water use should not have a licensing exemption based on an assumption.

This exemption appears to be an attempt to support the fracking industry that is very water intensive. By using the precautionary principle, even the possibility of impacts to potable water sources or other environmental impacts should be avoided.  The International Water Management Institute warns that “Saltwater intrusion is caused by changes in the natural equilibrium between fresh and saltwater, and could be initiated by increased pumping from a freshwater aquifer.”

Our Solution

Regulate saline water flows like all other groundwater.

Prioritize environmental flows

Fragile ecosystems, salmon streams for example suffer when water is diverted for industry in lean years and environmental floes are not maintained. Without mandatory requirements for maintaining specific environmental flows, watersheds remain vulnerable to the decisions of government appointees.

Our Solution

Establish and enforce minimum flow requirements, and monitor and modify regularly based on good data.

Decision making

While the new proposal provides flexibility for different forms of governance but the issuing of licenses remains with the Comptroller of Water Rights and the Regional Water Manager that are political appointees of the Minister. The licensing process needs to involve more public engagement.

Our Solution

Decisions on the issuing of licenses must involved the most impacted people that are dependent upon the watershed and Indigenous communities. Publicly post all applications so that communities are can meaningfully engage in the decision making, and provide adequate funding for consultation. Indigenous Nations must not simply be included as “stakeholders”.

New Oil & Gas Use

A great deal of pressure will be placed on watersheds due to the dramatic increase oil and gas development in the region. While this industry needs far more regulation of their water use it is questionable to even consider Oil & Gas development as a beneficial use of water. Current cost proposals for industrial use are woefully inadequate and do not promote conservation.

Our Solution

Enact a fracking moratorium until water impacts are addressed. Enact meaningful industrial pricing for water.

Environmental Offsets for Remediation

Offsets have been promoted as environmentally responsible solutions to damage caused by everything from logging to CO2 emissions. However offsets do not provide incentive for the protection of ecosystems. In the proposal environmental offsets are proposed as an option for remediation from dumping and debris. This allows users to essentially declare the areas they’ve damaged as sacrifice zones knowing they can remediate another area. There is then no incentive to limit the damage they may cause in one area knowing they may not be responsible for remediation in that location.

Our Solution

Eliminate all offset based loopholes.

Edited and Modified from email notes of Harjap Grewal.