What laws exist to manage and protect our water?

Water Act [1]:

 The Water Act is Alberta’s current water management legislation. This Act came into force on January 1, 1999, and focuses primarily on the planning for and enforcement of water use in Alberta. Some of the main features of the Water Act are outlined below:

    • It vests ownership of all water in the Province with the Crown.[2] This includes the right to use and divert water.[3]
    • It defines a ‘body of water’ as “any location where water flows or is present, whether or not the flow or the presence of water is continuous, intermittent or occurs only during a flood, and includes but is not limited to wetlands and aquifers but does not include a water body that is part of an irrigation work.”[4]This is a good definition to use when thinking about water in Alberta. It is widely used and is relied on by other government bodies, such as the Alberta Energy Regulator as a fall-back definition for pieces of legislation where water is not specifically defined.[5]
    • It distinguishes between, and defines, three main forms of water use in Alberta:
      • Household use: when a person owns or occupies land above groundwater or beside a lake, river, or stream and uses the water available to them for their household needs. This does not apply to water that comes out of your tap when you live in a municipality (such as a city or town);
      • Licensable use: Albertans can apply for, and receive, licenses which allow them to use and divert water, for purposes such as irrigation or industry. The Act also allows license transfers between individuals, under certain circumstances; and
      • Exceptions: there are other exceptions to the licensing requirements under the Water Act, such as when you need water for firefighting.[6]
    • It regulates proposed activities that are to be that may impact surface and ground water. For example, if you are planning to do something that may affect the quality of the water or the land or vegetation on a river bank, you may require prior authorization from Alberta Environment and Parks.[7] This authorization may take the form of a Water Act approval, a water licence or both.
    • The Water Act gives Alberta Environment and Parks and the Alberta Energy Regulator the authority to determine when and how a water licence will be issued. Before getting a licence, individuals need to apply, specifying the amount of water needed and where it will be used. The government will then decide whether they should issue the license as requested, determine whether it should be altered, or even denied.[8]
    • It provides for a recovery plan in the event of a spill – such as oil being spilled into one of our water bodies.[9]
Public Lands Act[10]

 The Alberta Public Lands Act manages the use of crown land, which is land that is owned by the provincial government. This is a big job because most land in Alberta is public or crown land, meaning that it is neither privately owned nor is it a provincial or national park. The Public Lands Act governs the activities that can be conducted on this land and includes enforcement and compliance provisions when the land is harmed or improperly used.

This Act also plays a role in the governance of any water on these lands. In Alberta, the beds and shores of permanent and naturally occurring bodies of water (such as permanent wetlands) and the beds and shored of rivers and lakes are owned by the Crown, just like ownership of water is vested in the Crown under the Water Act. Section 3(2) identifies some exceptions to this crown control and ownership, however the provincial government still holds a significant amount of power when it comes to deciding how, and by whom, our water bodies, and the land surrounding them, are used.

Environmental Protection and Enhancement Act[11]

The Environmental Protection and Enhancement Act (EPEA) is the primary provincial statute dealing with pollution. In this regard, the EPEA also plays and important role in managing and preventing water pollution.

For example, Part 7 of the EPEA is focused on managing potable water and prohibits anyone from releasing a substance into any part of a waterworks system that causes (or may cause) potable water to be unfit for use.[12] Part 8 also states that hazardous substances must be stored and transported so as to ensure that they do not contaminate water.[13] If contamination occurs, the EPEA enables the Director to issue an environmental protection order to prevent or manage the contamination.[14] The EPEA also prevents waste from being disposed of into or under water or ice, unless the specific disposal falls under an approved exemption.[15]

The EPEA is also the Act that sets out the environmental assessment process required for some large scale projects in the province.[16]

Both the pollution prevention and environmental assessment provisions of the EPEA enable the Act to protect and manage water.

Species at Risk Act[17]

 The Species at Risk Act or SARA is federal legislation whose overarching purposes include the prevention of animal, plant, and insect species from becoming extinct or extirpated, providing for the recovery of species at risk, and ensuring that species of special concern (a lower designation) do not become threatened or endangered.[18]

If you want to learn more about species at risk legislation, check out our section on species here.

If species at risk are present, SARA may affect how a water body can be used and what human activity can occur near or on the water.

In Canada, the federal government has jurisdiction over certain aspects of water when it is related to fisheries, navigation, international relations such as boundary waters, and federal lands such as national parks.[19] Much of the protection for aquatic species and their habitat comes from the Fisheries Act, however this protection regime is echoed in Section 34(1) of SARA.[20]

Fisheries Act[21]

 The Fisheries Act is the federal statute that manages Canadian fisheries. The four fundamental subject matters dealt with in this legislation include: the proper management and control of fisheries; the conservation and protection of fish; the protection of fish habitat; and the prevention of pollution. In summer 2019, the federal government amended the Fisheries Act and brought back some increased protections for fish habitat, improving the conservation aspect of this Act.[22]

In Alberta, the Fisheries Act is the Act that dictates how water bodies where fish live, reproduce in, or otherwise occupy, are managed. The Constitution awards the federal government with control over fishies which means that federal jurisdiction over fisheries and fishing licences must be weighed alongside provincial control over the management of water, public lands or property, and civil rights. Additionally, both federal and provincial powers have to take Indigenous rights, protected under Section 35 of the Constitution, into consideration.

To learn more about the Canadian constitution and to better understand how federalism works, check out our section on Constitutional Law here.
Municipal Government Act[23]

The Municipal Government Act (MGA) is the Act that puts in place the legislative framework for all municipalities and municipal entities across the province of Alberta. This means that it provides the governance model for local governments and lays the foundation for how municipalities operate, how municipal councils function, and how citizens can work with their municipalities. It also has a role to play in the governance of Alberta’s water.

The MGA defines a water body as, “a permanent and naturally occurring water body or a naturally occurring river, stream, watercourse or lake”.[24] Following this definition, in Section 60, the MGA states that a municipality has the direction, control and management of the bodies of water within the municipality, including the air space above and the ground below, subject to other enactments including in the Water Act.[25] As you may have already been able to tell, governing and legislating for water is a complex feat that involves every level of government.

So, what control do municipalities have? Among other things, the MGA gives them the authority to choose whether development permits will be issued beside a body of water or on land subject to flooding or near a wetland; to award budget allocations to water treatment and/or water storage; to mandate that the owners of proposed subdivisions designate a portion of the proposed land as an environmental reserve – including land use around waterbodies and to choose to do so as a means of preventing water pollution.[26] The MGA awards municipalities more control over day to day governance, which, in turn, awards them more power and control over the environment including our water.

Canada National Parks Act [27]

The Canada National Parks Act begins by dedicating the national parks of Canada to the people of Canada for their benefit, education, and enjoyment and states that the parks shall be maintained and made use of so as to leave them unimpaired for the enjoyment of future generations.[28]

In Alberta, there are five national parks: Banff National Park, Jasper National Park, Elk Island National Park, Waterton Lakes National Park and Wood Buffalo National Park.[29] This land base is widely used for numerous outdoor activities including skiing, hiking, camping and other outdoor enjoyment.

National Parks are federal land, which means that other federal legislation such as the Species at Risk Act applies. The SARA can place certain restrictions on national parks if species at risk are present.

Check out our section on Species here, for more information.

Additionally, the Canada National Parks Act and associated Regulations impose limits on the use of water resources in the Parks. For example, Section 21 of the Canada National Parks General Regulation prohibits any type of motorized watercraft, water-skiing equipment or sub-surface diving equipment, unless specifically authorized.[30]

<< Water Law

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

[1] Water Act, RSA 2000, c W-3.

[2] Water Act, s 3(2).

[3] Water Act, s 3(1).

[4] Water Act, s 1(ggg).

[5] Alberta Energy Regulator, “Q&A – Water Act” online: https://www.aer.ca/applications-and-notices/application-process/qa-water-act.

[6] Water Act, s 1 (x).

[7] Check here for authorization types: https://www.alberta.ca/authorizations-issued-under-the-wateract-or-epea.aspx#toc-0. 

[8] Water Act, s 37(1).

[9] Water Act, s 105.

[10] Public Lands Act, RSA 2000, c P-40.

[11] Environmental Protection and Enhancement Act, RSA 2000, c E-12 [Environmental Protection and Enhancement Act].

[12] Environmental Protection and Enhancement Act, s 148.

[13] Environmental Protection and Enhancement Act, s 155.

[14] Environmental Protection and Enhancement Act, s 156.

[15] Environmental Protection and Enhancement Act, s 181.

[16] Environmental Protection and Enhancement Act, part 2, div 1.

[17] Species at Risk Act, SC 2002, c 29.

[18] Species at Risk Act.

[19] Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5, ss 91(10) & (12); Natural Resources Canada, “Water governance: federal policy and legislation” (7 June 2017) Government of Canada online: https://www.canada.ca/en/environment-climate-change/services/water-overview/governance-legislation/federal-policy.html.

[20] Species at Risk Act, s 34(1).

[21] Fisheries Act, SC 2019, c 14.

[22] Fisheries Act.

[23] Municipal Government Act, RSA 2000, c M-26.

[24] Municipal Government Act, s 1(1.2).

[25] Municipal Government Act, s 60.

[26] Municipal Government Act, ss 242, 640(l) (i)-(iii) & 664.

[27] Canada National Parks Act, SC 2000, c 32.

[28] Canada National Parks Act, s 4(1).

[29] Travel Alberta, “National Parks” Government of Canada online: https://www.travelalberta.com/ca/places-to-go/national-parks/.

[30] National Parks General Regulation, SOR/78-213 s 17.

 

 

 

Water Law

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