Government as sole protector of instream flows: let’s expand who we trust

26 Nov Government as sole protector of instream flows: let’s expand who we trust

Government as sole protector of instream flows:

let’s expand who we trust

Water Conservation Trust of Canada v Alberta (Environmental Appeals Board), 2015 ABQB 686.

In 2010 the Water Conservation Trust of Canada applied under the Water Act to have a licenced allocation of water transferred to the organization for “habitat enhancement, recreation, fish and wildlife management and water management”.  (Note: Transfers of water allocations are only permitted in certain parts of the province.)

The government refused to allow the transfer citing the fact that only the government can hold licences for the maintenance of water levels or flows in support of a water conservation objective under the Act.  The government’s decision was appealed to the Alberta Environmental Appeals Board (EAB) which recommended that the Minister confirm the government’s decision.

The EAB decision was appealed to Alberta Court of Queen’s Bench resulting in a recent decision confirming the EAB’s interpretation of the Water Act.  In relation to issuing instream licences to non-government entities the court notes:

There is nothing to indicate any variance whatsoever from the Crown’s vested rights in the water under s.3(2).  Licensing, other than to the Government, must engage a diversion of water where the operation of a works (such as a dam or canal) or otherwise.  Nothing in the words used contemplates a licence to a person under s.51(1) where the water remains undiverted in situ.

The court further observed (in obiter) “it is not unreasonable to conclude that the absence of a diversion of instream water, regardless of the end purpose in support of a water conservation objective, would disqualify the application of any licence other than the Government under s.51(2)”.

The decision provides added clarity about the Water Act but it also leads us to an unwelcome conclusion about management of environmental flows:  Alberta lacks both law and policy to engage Albertans (and water trusts that they might support) in restoring and maintaining environmental flows in a way that attracts legally enforceable priority over other water diverters.

In effect, managing and protecting instream flows is reliant solely on the exercise of government discretion to seek out senior licences to transfer to an instream licence.  Alberta needs an alternative approach to foster partnerships in instream flow restoration and maintenance.

To this end, the ELC recommends adopting policy similar to that used in other jurisdictions: policy focused on engaging citizens and non-government organizations (like water trusts) in identifying and facilitating water transfers  to support fisheries and aquatic habitats.

The approach maintains government discretion and maintains that instream licence will be held by government.  This policy adjustment (see Figure 1) would create the flexibility to allow Albertans to pursue targeted efforts in finding licence holders, nominating environmental flows and assisting in transfers of water allocations that would be legally protected as a government issued licence. This approach enables a win-win partnerships between government and civil society to restore and maintain environmental flows.  It also would reflect a clear policy intent on the part of government to enable and accept transfers for the specified environmental purpose.

Figure 1: Recommended Environmental Flow (EF) Transfer Policy

To expand the figure see EnvironmentalFlowTransferPolicy_ELC

For a more detailed review and recommendations on managing environmental flows see ELC’s In Water we Trust:  Engaging Albertans in Restoration and Maintenance of Environmental Flows.

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