Where did these laws come from? – A brief history of water law in Alberta

Due to our history as a British and French colony, Canada got its first set of colonial laws (as we formally know them today) from Britain and France. [1] After the Battle of Quebec, the majority of Canada fell under English common law while Quebec remained under the French civil system. [2]

At the time of the British colonization of Canada, the prevailing water law was that the person who owned land on the bank of a waterway, whether a river, lake or otherwise, had access to reasonable use of the water, known as riparian rights. [3] Riparian rights were not an issue in areas with a large amount of water or a small population, however, it didn’t take long for European colonizers to realize it was less suitable in Alberta – a land with water restrictions (even then) and an ever-growing population. [4] The next step was to figure out what would work in the territory that would eventually become known as the province of Alberta.

After years of settlement, including increased agriculture and the building of the railway, newcomers to the prairies finally passed legislation governing the water resources in the province. The 1894 Northwest Irrigation Act was an attempt to solve the ongoing dilemma faced by these new English settlers – how to divide up their water use. It was passed by the Dominion of Canada and represented federal control over water, throughout the country. [5] This Act authorized the allocation of water by the government for irrigation and other purposes and it was the first water management statute of its kind. [6] According to the Act, individuals could apply for a water use licence and the government would allocate volume, maximum diversion rate, water source, point of diversion, purpose of use, and priority number. [7]

The priority number was a particularly important part of the Act because it meant that water licences were based on seniority – a system that eventually developed into the ‘first in time, first in right system’ which awards older licenses seniority over newer ones. Remember this idea because although not often an issue, it is still the current system of water allocation in Alberta and may come up more often when new water licences are requested or in times of severe water shortages.

Another important section of the Northwest Irrigation Act was Section 5, which reserved ownership of lakes, rivers, streams or other bodies of water, water contained or flowing therein, and the land forming the bed or shore, for the Crown. This meant that all of the water in the area was now owned and controlled by the government and it was the government that had the authority both to grant licences and to restrict unlicensed water use. [8]

Along with the increased control granted to Canada under the Statute of Westminster also came a transfer of control over natural resources, including water, from the federal government to the provinces.[9]

In response to this newfound power, Alberta passed the Provincial Water Resources Act, a 1931 statute which is the present day Water Act’s ancestor and which was the first provincial water management system in Alberta. [10] It was the Water Resources Act, which, in 1962, expanded the declaration of crown ownership from control over surface water only to include control over groundwater.[11] This amendment meant that the province now had control over nearly all of the water in the province.[12]

Notably, although this Act was amended a number of times before the Water Act came into force in 1999, the current version retained many of the key principles originally derived from the Northwest Irrigation Act, including crown ownership of water and the first in time, first in right principle for water license allocations. [13]

Now that we have learned about some of the laws and regulations that affect how we use water in Alberta, both past and present, lets look at some of the topics that seem to come up again and again when we talk about water law in Alberta.

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[1] Department of Justice, “Where our legal system comes from” (16 October 2017) Government of Canada online: https://www.justice.gc.ca/eng/csj-sjc/just/03.html.

[2] Department of Justice, “Where our legal system comes from”.

[3] Arlene Kwasniak, “Accretion and the Torrens System” (Presentation delivered at the Legal Education Society of Alberta 45th Annual Refresher Course – Real Estate, 6-8 May 2012), [unpublished] at 1-2.

[4] Arlene Kwasniak, “Accretion and the Torrens System” at 2.

[5] David K. Laidlaw & Monique Passelac-Ross, “Water Rights and Water Stewardship: What About Aboriginal Peoples?” (September/October 2010) LawNow at 17.

[6] David K. Laidlaw & Monique Passelac-Ross, “Water Rights and Water Stewardship: What About Aboriginal Peoples?” at 17-18.

[7] Alberta Environment and Parks, “Legislative History of Water Management in Alberta” Government of Alberta (22 July 2014). 

[8] Alberta Environment and Sustainable Resource Development, “Introduction to Water Act & Public Lands Act” Government of Alberta at 3 online: https://www.edmonton.ca/city_government/documents/PDF/Nahirniak_Intro_to_Water_and_Public_Lands_Acts.pdf.

[9] Alberta Natural Resources Act, SC 1930, c 3.

[10] Provincial Water Resources Act, SA 1931, c 71.

[11] David R. Percy Q.C., The Limits of Western Canadian Water Allocation Law (2004) 14 J Env L & Prac 315 at 317.

[12] Water Act,  ss 1(fff) & 3.

[13] David R. Percy Q.C., The Limits of Western Canadian Water Allocation Law at 316-317.

 

 

 

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