WET 219 - Applied Water Law

The overuse and pollution of freshwaters due to under-regulation is a growing concern worldwide, prompting reform of existing water laws and governance institutions. Reforms seek to provide for ecosystem and community needs, empower governance agencies, address environmental injustices, and ensure the sustainable use of freshwater resources in contexts of increased hydrological uncertainty. However, the failure of previous reforms has generated scepticism over the efficacy of law as a mechanism to drive necessary changes in freshwater governance. This dissertation employs a critical geographic lens to examine the potential for water law reform to advance the equitable and sustainable governance of freshwater in British Columbia, Canada. Specifically, it traces how the transformative potential of BC’s new Water Sustainability Act (WSA) is configured through processes of legislation development, its settler colonial history, and implementation pathways. Chapter Two examines how participatory legislation development processes influenced the scope and content of the WSA. Comparison of submissions and legislative outcomes highlights that while consultation processes are intended to promote democratic law reform, they can also serve to fortify elite influence. Chapter Three explores the outcomes of settler colonial water law for BC First Nations, using historical and current water rights data. Past laws and licensing processes are revealed to have contributed to significant water insecurity for First Nations, underscoring the injustice enacted through exclusion of Indigenous water rights from legal reforms. Chapter Four appraises the WSA’s structure and proposed implementation, identifying key sources of uncertainty in reform outcomes. Interviews indicate that while BC’s flexible, enabling approach creates opportunities to address place-specific issues, outcomes remain dependent on political will and governance resourcing. Together, the chapters demonstrate that while ‘modern’ law can improve the tools available for water management, transformative change requires a more fundamental overhaul of existing systems of water rights and law.

After an extensive development period, the British Columbia provincial government introduced Bill 18 - Water Sustainability Act (WSA) into legislature this spring and it received royal assent in May. While it is now officially law, the WSA will not come into force until next year, after certain details have been finalized and particular regulations developed. The new WSA represents the culmination of six years of consultation to modernize the previous Water Act, which was over 100 years old and sorely out of date. The WSA is ushering in a potentially new and exciting era of water stewardship in BC based more on the concept of protection than on rules for resource extraction.

On February 29, 2016, British Columbia (alternatively, the "Province") updated its Water Sustainability Act ("WSA") and the first phase of the WSA's regulations came into force.' The WSA introduces licensing requirements for groundwater, which was previously unregulated. While many celebrate the end of a system dubbed the "Wild West for groundwater," the new regulations also pose challenges, particularly for Indigenous Peoples.

In British Columbia, new legislation is urgently needed to address dwindling water sources and current threats to water. B.C. experienced record levels of drought last summer. Fracking, mining and bottled water industries are draining water at unsustainable rates and are competing with communities for access to local resources. Provincial legislation is needed before water sources are drained dry in the province.

Although markets have proven effective at moving scarce water to high-value uses, the potential economic efficiency gains are often insufficient to convince water users to accept more market-oriented water allocation mechanisms. Water users in the semi-arid areas of British Columbia, including the Okanagan basin, are deeply concerned about the potential negative impacts of water markets. With drought risk rather than chronic water scarcity as the primary water management challenge, water users' concerns are reasonable. Dry-year option contracts may capture some of the benefits of market-based instruments without the risk implications of conventional water markets. Dry-year water option contracts are financial instruments that water-sensitive users can use to hedge themselves against drought impacts, and if appropriately managed through a water supplier, they may be an efficiency-enhancing alternative to crop insurance. We argue that with appropriate support, dry-year option contracts can be a useful low-cost tool to mitigate drought impacts in semi-arid regions of British Columbia. Such contracts may enable the innovative local water management solutions envisioned in British Columbia's recently enacted Water Sustainability Act.

In recent years, a growing number of individuals and municipalities have become interested in rainwater harvesting.' The practice is part of a larger shift towards sustainable building practices and stormwater management. However, the legality of rainwater collection in British Columbia is uncertain. At the same time, freshwater resources in the province are increasingly under stress from heavy use and climate change. As water scarcity increases, conflicts over rainwater harvesting may result. It is therefore pertinent that the legality of rainwater harvesting be considered so that possible conflicts can be anticipated and areas in need of law reform can be addressed. This paper addresses the issue of whether landowners or occupiers have the legal right to capture rainwater falling onto their property and the nature of that right. Upon review of the relevant water-related legislation and applicable common law, it is most likely that rainwater is common property subject to the law of capture. Effectively, rainwater belongs to no one and everyone until it is captured. While landowners do not have a property interest in water until it is captured, their right to harvest rainwater is likely unrestricted and is not subject to concerns of downstream water users.

The overuse and pollution of freshwaters due to under-regulation is a growing concern worldwide, prompting reform of existing water laws and governance institutions. Reforms seek to provide for ecosystem and community needs, empower governance agencies, address environmental injustices, and ensure the sustainable use of freshwater resources in contexts of increased hydrological uncertainty. However, the failure of previous reforms has generated scepticism over the efficacy of law as a mechanism to drive necessary changes in freshwater governance. This dissertation employs a critical geographic lens to examine the potential for water law reform to advance the equitable and sustainable governance of freshwater in British Columbia, Canada. Specifically, it traces how the transformative potential of BC’s new Water Sustainability Act (WSA) is configured through processes of legislation development, its settler colonial history, and implementation pathways. Chapter Two examines how participatory legislation development processes influenced the scope and content of the WSA. Comparison of submissions and legislative outcomes highlights that while consultation processes are intended to promote democratic law reform, they can also serve to fortify elite influence. Chapter Three explores the outcomes of settler colonial water law for BC First Nations, using historical and current water rights data. Past laws and licensing processes are revealed to have contributed to significant water insecurity for First Nations, underscoring the injustice enacted through exclusion of Indigenous water rights from legal reforms. Chapter Four appraises the WSA’s structure and proposed implementation, identifying key sources of uncertainty in reform outcomes. Interviews indicate that while BC’s flexible, enabling approach creates opportunities to address place-specific issues, outcomes remain dependent on political will and governance resourcing. Together, the chapters demonstrate that while ‘modern’ law can improve the tools available for water management, transformative change requires a more fundamental overhaul of existing systems of water rights and law.