WET 219 - Applied Water Law - Indigenous Rights

In 2009, one century after the introduction of British Columbia’s original Water Act of 1909, the Province of British Columbia began the process of modernizing the act. Following a series of public workshops and the gathering of input through a public blog, the province drafted the new Water Sustainability Act (WSA). The legislation came into effect on February 29, 2016, and six priority regulations have been developed to guide the application of the legislation.. This report presents the range of perspectives from several First Nations across British Columbia on the proposed, and now enacted, Water Sustainability Act. Unlike other stakeholders, First Nations have constitutionally protected rights that need to be considered separately to ensure that those rights are not infringed upon. Also important, First Nations have distinct relationships to their lands and waters and can offer unique insights and sustainable solutions to water management within the watersheds that
overlap with their traditional territories.

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.

In response to a need for enhanced water governance, water institution reforms are taking place around the world. Common among these reforms is a shift from monocentric to polycentric governance systems, bridging multiple scales of stakeholders through a mix of institutional arrangements. Benefits of a polycentric approach are commonly associated with higher performance in diverse contexts through better adaption to changing conditions, customized rules that meet local needs and a sense of trust amongst stakeholders. However, even though water reforms identify probable benefits from a polycentric approach, the ability to predict which type of institutional arrangement is likely to yield desired outcomes remains a challenge. This study applies the institutional resource regime framework and transaction cost economics to evaluate the current water regime in British Columbia and identify if an alternative water governance arrangement can promote sustainable outcomes through minimized transaction costs. First, I perform an assessment of the water regime in British Columbia from 1859 to 2016 to identify how and why institutions have changed over time. Second, I compare the perception of transaction costs associated with a watershed agency and a regional district alternative arrangement to the current system to identify if an alternative arrangement can improve coherence through more efficient organizational structures. Third, I assess the perceived transaction costs for a watershed arrangement from respondents in the Okanagan region compared the rest of the province. Data were collected through document analysis and 36 surveys and 5 semi-structured interviews with government officials. Results confirm a complex water regime in British Columbia. Transaction costs under both watershed agency and regional district alternative arrangements were perceived higher compared to the current system, in contrast to what the literature would suggest. In addition, perceived transaction costs do not significantly differ between respondents in the Okanagan region compared to the rest of the province suggesting no additional coherence associated with a watershed agency arrangement in the Okanagan basin. I conclude that the current system is evolving towards integration, but remains complex due to incomplete Aboriginal rights and title to water, jurisdictional and organizational fragmentation and undefined water yield quotas and water quotas.