WET 219 - Applied Water Law - Indigenous Rights

The strategic role of water in the development of the semi-arid and arid regions is nowhere more manifest than in the legal doctrines govern ing its development and use. This paper is an attempt to study critically the legal framework encompassing water-resource development in the western United States. First, the doctrine of prior appropriation, the basic water law employed by the 17 states west of the Mississippi, is described in historical perspective. This is followed by a discussion of the principal features of the prior appropriation doctrine and a brief analysis of some of their implications for the economy and the society. This serves as an appropriate background to the next section which attempts to illustrate the general theory discussed above with specific examples from a number of western states. The analysis deals with surface water laws and ground water laws separately and presents supportive evidence to the conclusion that the doctrine of prior appropriation has through the years evolved into a fairly dynamic body of laws whose operational efficiency has increased considerably in the context of the fast-expanding water needs of the western United States.

Water rights vary between Canadian provinces. Each province falls into one of the following four approaches to water rights: prior allocation, public authority, riparian rights, or civil code. Aboriginal water rights play an important role in each province.

Watertaking refers to the actual physical capture and use of water. Water takingsare often categorized as being a withdrawal or a diversion. A withdrawal generally refers to a water taking that is returned to or kept within the same watershed. On the other hand, a diversion generally refers to a water taking that is removed from a watershed. Throughout this chapter, the term “wateruse” denotes any water “taking.” Any volume of water may be involved: from small quantities of water on land directly adjacent to a river or lake to large-scale removal of water long distances from the water source, including highly controversial “out-of-basin” diversions and water “exports.”

New social, economic and environmental priorities are challengeing the Canadian water law regime. Water law in western Canada, a direct product of the colonial legal system and European settlement, illustrates many of the emerging tensions associated with a modern water management regime in fl ux. In an age of increasing hydrologic uncertainty with drier summers followed by more extreme storm events, lawmakers are seeking to increase resilience both for the environment and also for the institutions and the laws that govern freshwater resources. In Canada evidence of an evolving water law and management regime is already apparent— from developments in Aboriginal law that are changing how and who governs water, retreat by the federal government as an active participant in water resource management, to increased provincial efforts to fi ll that void.