Water Rights in Canada

In a recent post I confessed to being perplexed that Canada abstained from the vote to designate clean water as a human right. I have been aware for some time, since the president of the global company I work for told us at an international meeting that water would be the biggest issue on earth within the decade. In order to get some illumination on the Canadian Government's position I searched out the information that I have posted verbatim below. It was found at the University of Calgary's Faculty of Law blog:


http://ablawg.ca/2010/07/08/water-rights-and-water-stewardship-what-about-aboriginal-peoples/

Settler society and Aboriginal conceptions of water rights differ in many respects. At common law water could not be owned but riparian doctrines have in the past maintained a semblance of communal ownership and guarantees of water quality. In common law, riparian lands lay along the shores of non-tidal rivers and streams. The owners of riparian rights were entitled, among other things, to divert waters for domestic consumption and any other reasonable purpose. Downstream owners along the watercourse were entitled to obtain waters not significantly diminished in quantity or quality by upstream uses: Alastair Lucas, Security of Title in Canadian Water Rights (Calgary: Canadian Institute of Resources Law, 1990) at 5-7.

Water scarcity and the commoditization of water have led the Crown to claim ownership of almost all waters. In western Canada, the assertion of federal Crown ownership in and control over waters occurred in the late 19th century with the North-west Irrigation Act, S.C. 1894 c.30, s. 4, am. by S.C. 1895 c. 33, s.2 (NWIA). This ownership was transferred to the province under the 1930 Natural Resources Transfer Agreement (NRTA) being a Schedule to the Alberta Natural Resources Act, S.C. 1930, c. 3. Riparian rights were then extinguished under provincial land grants unless confirmed by a court before June 18, 1931 or by the terms of the grant: Public Lands Act, R.S.A 2000, c. P-40, s. 3. This would include regulating the right for water diversion of riparian property owners: Water Act, R.S.A. 2000, c. W-3, s.22. The current model is for the Crown to allocate (license) fixed amounts of water to municipal or private interests, on some priority basis, usually first in time: David R. Percy, The Framework of Water Rights Legislation in Canada (Calgary: Canadian Institute of Resources Law, University of Calgary, 1988) at 12-14. The individualism of modern settler society and the market imperative have resulted in limited self-regulation and limited regulation of water uses with consequent dangers to the environment, fisheries, water quality and quantity. Current water legislation does not even impose a “beneficial use” requirement as in Western U.S. Water Law; see Arlene J. Kwasniak, “Waste Not Want Not: A Comparative Analysis and Critique of Legal Rights to Use and Re-Use Produced Water - Lessons for Alberta” (2006-2007) 10 U. Denv. Water L. Rev. 357.

Aboriginal conceptions of water usually deem waters to be sacred givers of life. Water must be shared respectfully without any use being paramount. The use of water for sacred purposes, hunting and fishing, transportation, recreation and domestic consumption is a shared responsibility, and must address current needs, the needs of the land and future generations. The use of waters is governed by a natural law, by which the taking of waters without due regard to the environment and the needs of current and future generations can only lead to disaster. Aboriginal peoples see themselves as caretakers with responsibilities to preserve water and life.

It looks like our waters might be safer and more equitably handled in the hands of our Aboriginal people! After all, big business has done so much damage to the waterways of the world that most are unfit for human consumption all right the noses of our goverment. Why is it that no one is ever held accountable for the undoing of the environmental damage that their factories cost and yet they get to keep the profits made while doing so?