Water Law in a Drought: Testing Alberta’s Framework for Water Use

Guest Speaker: Dr. David Percy, Borden Ladner Gervais, Chair of Energy Law and Policy

Water law is a critical issue that often operates behind the scenes but plays a significant role in determining how water resources are allocated, particularly during times of drought. The current situation in Alberta paints a stark picture of a critical water shortage brought about by a dry summer in 2023 and an unusually dry winter. Regions such as the Peace River and Athabasca River, along with Southern Alberta, are experiencing signs of water scarcity. The high demand for water, especially for resource extraction, in the Peace River and Athabasca River basins has exacerbated the situation. Interestingly, signs of drought are now appearing further north than previously observed, indicating a shifting pattern of water scarcity in the region.

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Understanding the historical context of water law in Alberta is crucial to comprehend the current mechanisms employed by the government to manage water resources during the ongoing drought. In the 1880s, as European settlers moved westward and established agricultural settlements, Riparian Rights were utilized to determine water usage. According to Riparian Rights, only Riparian landowners could use water for domestic purposes, ensuring that downstream water quantity was not significantly diminished. However, as concerns over water scarcity grew during a seven-year drought, William Pearce, a key figure in the Department of the Interior for Northwest Territories, recognized the need for irrigation practices to support new settlers. Despite the benefits of irrigation, Riparian law posed limitations on its implementation, prompting a re-evaluation of water allocation strategies.

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The Northwest Irrigation Act of 1884 marked a significant shift in water rights in Canada, with the crown gaining control over water usage through a licensing system. This Act introduced the principle of priority of time, where those who applied for water use earlier were given precedence. Initially, these licenses were permanent and tied to the land, with no restrictions on water consumption. However, concerns over water scarcity post-World War I led to changes in the system. In 1921, licenses could be revoked and reissued for higher priority uses, impacting all western provinces, even those not primarily reliant on agriculture.

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In 1930, the federal government transferred public land and all natural resources to the provinces; this included water. Alberta renamed the Northwest Irrigation Act, and it became the Water Resources Act. They also implemented an avenue for licensees to transfer water rights when there is a water management plan in place that has been approved by the cabinet. The only area currently able to transfer water rights in Alberta is the South Saskatchewan River Basin. Although only 22% of Albertan’s support the market-based system to allocate water rights, in the 22 years since the allowance of water allocation transfers in the South Saskatchewan River Basin, there has not been any controversy or issues. There has never been a case in Alberta where a major licensee has insisted on its priority.

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Water use in Alberta’s current drought situation is beginning to take shape as government is implementing steps to arrange workshops in order to develop water sharing agreements. If agreements have not been reached by April, the government will be declaring an emergency and will be allocating the water. In two prior droughts, agreements had been reached. All senior licensees participated in the negotiations and agreed to use only 60% of their allowed consumption and to implement conservation measures. While the priority system defining water rights was not withheld in these instances, it played a crucial role in negotiations and encouraged parties to reach mutually beneficial agreements. This cooperative approach highlights the importance of effective water management strategies and collaboration among stakeholders to ensure sustainable water use, especially during challenging environmental conditions like droughts.

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Thank you to Dr. David Percy and the ACR’s Environmental Forums Committee for the webinar presentation on Water Law in a Drought. Check out www.acr-alberta.com for more information on upcoming webinars and events.

Webinar recap written by: Jennifer Cummings