The Canadian Conundrum - WET 219 - Applied Water Law

The lack of a National Water Policy

Canada has some of the largest renewable freshwater reserves in the World. What we lack is a comprehensive national water policy. Instead, we have a patchwork of federal, provincial territorial legislation that has resulted in a situation that results in having to be knowledgeable of 14 different water law regimes.

Division of Water Governance Authority In Canada

Backlumb, P. (2019). Federal and provincial jurisdiction to regulate environmental issues. https://lop.parl.ca/staticfiles/PublicWebsite/Home/ResearchPublications/BackgroundPapers/PDF/2013-86-e.pdf

Bridge, C. (2015). A national water vision for Canada: Exploring the obstacles and opportunities [Master thesis, Simon Fraser university]. https://theses.lib.sfu.ca/file/thesis/6192
Canada has one of the largest freshwater supplies in the world, yet it does not have a national level vision or strategy for water. Water climate change, urbanization, population threat to Canada’s growth sustainable development . related challenges in Canada, driven by and water pollution, pose a s erious The absence of a Canada has led to fragmented , unsustainable and i national water nadequate, water vision management across Canada.

Bakker, K. & Cook, C. (2011). Water governance in Canada: Innovation and fragmentation. Water Resources Development, 27(2), 275-289 https://doi.org/10.1080/07900627.2011.564969
This paper explores Canada’s approach to water governance. It argues that fragmented governance has had negative impacts on Canada’s ability to manage water resources adequately (particularly in the context of urbanization, agriculture and resource extraction), and to deal with new issues (such as climate change). Further, it argues that Canada’s highly decentralized approach to water governance creates challenges of integration, coordination and data availability. The paper explores possible future strategies for innovations in water governance that may have the potential to improve water anagement outcomes.

Division of Powers - Constitution Act 1867

Constitution Act 1867 - 1982
Beaudoin, G. (2020). Distribution of Powers. In The Canadian Encyclopedia. https://www.thecanadianencyclopedia.ca/en/article/distribution-of-powers
Distribution of powers refers to the division of legislative powers and responsibilities between the federal and provincial governments. The areas of distribution were first outlined at the Quebec Conference in 1864 (see Quebec Resolutions) and are enshrined in the Constitution Act, 1867. They have been a source of debate and tension between the provinces and the federal government for generations. However, this part of the Constitution has remained remarkably unchanged since Confederation.
Honickman, A. (2017). Watertight Compartments: Getting Back to the Constitutional Division of Powers. Alberta Law Review, 55(1), 225–251. https://doi.org/10.29173/alr795
This article offers a fresh examination of the constitutional division of powers. The author argues that sections 91 and 92 of the Constitution Act, 1867 establish exclusive jurisdictional spheres -- what the Privy Council once termed "watertight compartments." This mutual exclusivity is emphasized and reinforced throughout these sections and leaves very little room for legitimate overlap. While some degree of overlap is permissible under this scheme -- particularly incidental effects, genuine double aspects, and limited ancillary powers -- overlap must be constrained in a principled fashion to comply with the exclusivity principle. The modern trend toward flexibility and freer overlap is contrary to the constitutional text. The author argues that while some deviation from the text is inevitable due to the presumption of constitutionality and stare decisis, the Supreme Court should return to a more exclusivist footing in accordance with the text.

Groundwater is an Essential Freshwater Resource in Canada

Groundwater provides drinking water to about one-third of all Canadians (13,509,465). Eighty percent of Canada's rural population depends on groundwater as the source of their drinking water.

Aquifers (stores of groundwater) are under threat and vulnerable to overpumping, climate change, and contamination. Remediation of damaged aquifers is a complex, costly, challenging, and often impossible undertaking.

In Canada, groundwater is plentiful. However, our awareness of the importance of properly managing this natural resource has been limited.

Overpumping of groundwater has led to negative effects on water users and ecosystems that depend on groundwater - this includes impacts on our lakes, rivers, streams, and wetlands which are fed by groundwater, especially during dry periods (drought).

Groundwater also is an essential resource for temperature-sensitive ecosystems such as fish spawning and nurturing habits such as fish hatcheries that require plentiful, cool water supplied at a consistent temperature.

Aquifer contamination also poses a significant risk to groundwater reserves. When precipitation carries contaminants into underground aquifers, it can lead to situations that can make the water unfit for human use. Examples of such situations include Walkerton Ontario and Hullcar, BC.

Understanding how groundwater moves through the ground is essential to managing its availability, and identifying how contaminants pollute aquifers. In many cases, contamination of an aquifer is the result of poor land management practices, faulty infrastructure, or incorrect operating procedures and practices.

One of the most important aspects of protecting and managing groundwater is the gathering and dissemination of authoritative information related to groundwater. This requirement led to the development of the Groundwater Information Network (GIN).

Integrated Water Resources Management in Canada:(IWRM)

Integrated Water Resources Management in Canada: the experience of watershed agencies
Water agencies from 7 of the 10 Canadian provinces shared their experiences regarding history, successes, challenges and lessons learned with integrated watershed management. Based on these contributions, it is clear that an integrated approach does not mean ‘all-encompassing’. Rather, it proposes desirable and feasible solutions through a systems approach based on sound technical information (e.g. biophysical and socio-economic), public engagement and monitoring. The roles of all participants must be clearly defined in order to promote success and facilitate implementation. Enduringand emerging challenges, such as adequate capacity and financing, engagement with Aboriginal communities and other stakeholders, and successful implementation, are identified.