Water Licences

As you are now aware, the Crown (or government) retains ownership of all water bodies in the province of Alberta. [1] But if this is the case, how exactly do those people who need more water than you can get out of the regular kitchen faucet get access to water for their own needs? For example, how do farmers water their fields or how do oil and gas companies extract water for use in their power plants? The short answer to this question is that your municipality or the farmer obtain water licences granted by the Government of Alberta. [2]

A typical licence states that the holder is authorized to divert and use water, subject to the terms and conditions of the licence (the applicant specifies what they want to use the water for in their application). [3] The applicant never gets ownership of the water, no matter how long they hold a licence for, rather they are authorized to use the water. [4]

Since the earliest water management legislation, water licences in Alberta have been governed by the first in time, first in right principle. [5] This principle states, in a time of water scarcity, the older licences get water allocated prior to those who got their licence after. In this way the law gives older licences a priority to the water over newer licence holders. Because there is usually enough water to go around, this has rarely been an issue, however, in times of water scarcity, it can become controversial.

Imagine that licence numbers 177 and 150 went to withdraw water during a serious drought. Maybe licence 150 withdrew their entire water allocation and left nothing behind for licence number 177. The law does provide some opportunities to temporarily assign (in effect a loan of water) to another licence holder but that is limited. Also, some regions allow for the ability to transfer all or a portion of the water allocated in a licence, where the transfer is approved by government. Notably, with climate change we will see more droughts, floods and other abnormal water activities and this could mean that the first in time, first in right principle becomes a bigger issue than it has in the past.[6]

How do we get new licences?

Because there is a finite amount of water in Alberta, there must also be a finite number of accompanying water licences. So what happens when we run out?

This problem was recognized by the drafters of early water management legislation and suggestions for a fix came in many forms. One federal suggestion was to create a hierarchy of water uses where certain water uses such as agriculture would be considered more important than others, such as industry. [7] Alberta, however, disagreed with this idea, arguing that it would not work in a province with such diverse activities and geography. Instead, Alberta devised a system that allowed you to transfer your water licence to another individual. This meant that water licences were no longer required to be attached to a specific piece of land and Person A could sell (or gift) all, or a portion, of their licence to Person B. These transfers, if approved by government, could either be permanent or temporary.

The transfer of water licenses has been allowed in some form under the Water Act since 2001, however there remain a number of barriers and such transfers are limited. For example, transfers require a number of permissions before being approved and can only occur where a water management plan or an order of the Lieutenant Governor in Council is in place – currently, this is only available in a few watersheds including the South Saskatchewan River Basin, located in Southern Alberta and the Battle River Basin, located in East-Central Alberta. [8]

Access to Water in First Nation Communities

One issue that may help you understand the complexity and the importance of water licences is by taking a closer look at how water licences have been administered for Indigenous communities.

In the past, Indigenous reserves have not always required a water license and have often used water in their communities without one. [9] However, as we have noted, water supplies are getting more finite and the issue of licenses is becoming more significant.

On one side of this issue, the province of Alberta argues that they own all of the water in the province and have done so for nearly a century, and that this includes water on reserve lands. [10] If this was found to be the case, then Indigenous groups would need to obtain a water licence, the same as anyone else, in order to divert water. These licences would also be some of the newest available licences in the province and would be subject to the first in time, first in right principle – meaning they would be last in time and last in right for water use.

In contrast, Indigenous groups in Alberta have long argued that they have water rights that precede the first European colonies, both on and off reserve, and therefore, they do not require the same type of water licence as other groups. [11] They have also requested that any further changes to the water allocation system or other water initiatives require Indigenous input prior to being enacted. [12]

The decision of whether to offer Indigenous communities senior water licences may also be affected by the fact that when farmers and other agricultural producers first received water licences under the Water Act, they were able to backdate their licences to the date when they first started farming land in Alberta. Indigenous groups have not received this same opportunity and argue that they should be able to backdate their water licence to their initial use – long before water management statutes were written in the province. For example, the Ermineskin Cree Nation was formally established in 1885 while the Province of Alberta was not formally created until 1905. [13]

One example of this tension arose in 2016 when three Indigenous groups in Alberta – the Ermineskin Cree Nation, Samson Cree Nation and Kainai First Nation/Blood Tribe – began talks with the provincial government to determine who had ownership and control of the water on their reserves.[14] This conversation was spurred on after the government started offering Indigenous groups junior water licences. Junior licences would mean that Indigenous communities would be lowest on the priority list and during periods of serious drought they may be at risk for not receiving any water at all. The Indigenous groups began pushing for, if not control over their water, at least senior water licences that accurately reflected their long history on the land. [15]

In early 2019, the Ermineskin Cree and the Kainai First Nation finally reached settlements with the Alberta government. The first agreement was with the Ermineskin Cree reserve which will receive water through a regional water transmission line that currently serves non-reserve communities on their border. The transmission line will be extended into the reserve and the agreement will last until 2051. The Kainai reached an agreement to extract 3.75 million cubic metres of untreated water from St. Mary River Reservoir for irrigation and household use – an agreement which is set to last until 2048. [16]

Notably, Indigenous peoples in Alberta have been using water all along without a licence and it was never an issue until recently. As Alberta becomes a much more water-strapped province, water allocations are becoming a more political issue and a number of Indigenous communities have started to fight for legal recognition of their water rights. The agreements reached with the Ermineskin Cree and the Kainai Nation may be examples for future agreements and may help to lessen tensions over additional water allocations.

Access to clean water for Indigenous communities in Alberta remains a very pressing concern. Recognition of these communities of first peoples of this nation should be reflected in our laws, particularly when our laws set up a system that seeks to give priority to some over others.

For a more in-depth discussion of this issue, from the perspective of the theory of environmental justice, check out our section on Environmental Justice here.
Do you think the water licence system makes sense or can you think of a better way to allocate our water use?

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[1] Water Act, RSA 2000 c W-3, s 3.

[2] Alberta Environment and Parks, “Water Act” (4 September 2018) Government of Alberta online: https://www.alberta.ca/water-legislation-and-guidelines.aspx.

[3] Water Act,  Division 2.

[4] David R. Percy QC & Greg Lane, “Water Law Q&As” A Legal and Institutional Analysis of Alberta’s Water Allocation System Theme 1 and 2 (December 2013) at Q&A #2 online: https://albertawater.com/alberta-water-blog/3159-albertawaterlawqasheets

[5] Water Act, Division 2.

[6] Sonia I. Seneviratne & Neville Nicholls, “Changes in Climate Extremes and their Impacts on the Natural Physical Environment” (2012) A Special Report of Working Groups I and II of the Intergovernmental Panel on Climate Change 109 at 126 IPCC online: https://www.ipcc.ch/report/managing-the-risks-of-extreme-events-and-disasters-to-advance-climate-change-adaptation/changes-in-climate-extremes-and-their-impacts-on-the-natural-physical-environment/.  

[7] David R. Percy, Water Rights Law and Water Shortages in Western Canada (1986) 11:2 Can Water Resources J 14 at 17.

[8] Government of Alberta, “Water Act: Transferring water allocations under a licence – Facts at your Fingertips” online: https://open.alberta.ca/dataset/a5f0c998-3969-47b2-86ac-c8d6d54ee576/resource/c78c0c95-a511-4286-9152-2cb97b463040/download/WaterActTransferringWaterAllocation-FS.pdf.

[9] David Laidlaw, “Water Rights and Water Stewardship: What About Aboriginal Peoples?” (8 July 2010) ABLawg online: https://ablawg.ca/2010/07/08/water-rights-and-water-stewardship-what-about-aboriginal-peoples/ .

[10] Nigel Bankes, “Water Law Reform in Alberta: Paying Obeisance to the ‘Lords of Yesterday’, or Creating a Water Charter for the Future?” (1995) 49 Resources 1 at 5.

[11] David Laidlaw, “Water Rights and Water Stewardship: What About Aboriginal Peoples?”.

[12] David Laidlaw, “Water Rights and Water Stewardship: What About Aboriginal Peoples?”.

[13] Matthew McClearn, “Fluid situation for Alberta reserves”, The Globe and Mail (16 October 2016) online: https://www.theglobeandmail.com/news/showdown-over-water-looms-for-albertareserves/article32386029/

[14] Matthew McClearn, “First Nations, Alberta seek compromise on water rights” (25 September 2016) The Globe and Mail online: https://www.theglobeandmail.com/news/national/first-nations-alberta-seek-compromise-on-water-rights/article32466338/.

[15] Matthew McClearn – First Nations, Alberta seek compromise on water rights.

[16] Matthew McClearn, “Two First Nations reach agreements with Alberta on access to safe water” (2 February 2019) The Globe and Mail online: https://www.theglobeandmail.com/canada/article-two-first-nations-reach-agreements-with-alberta-on-access-to-safe/.