I. Policy Overview  

Provincial Policy Overview: British Columbia  

British Columbia Water Protection Act 1995  

The Water Protection Act (WPA) prohibits the removal of water from British Columbia unless the person  

a)      is a licensed registrant under a registered license that remains in effect and complies with the license (there are only 6 license holders),  

b)      removes the water in containers of 20 liters capacity or less, of water that has been packaged in British Columbia , or  

c)      obtained the water outside British Columbia .  

The WPA also prohibits large-scale transfers between the Province’s 6 major watersheds  

a)      A person must not construct or operate a large-scale project capable of transferring water from one major watershed to another  

b)      A person must not modify a project capable of diverting or of extracting water if the modification results in the project having the capability of transferring water at a peak instantaneous flow of 10 m³ or more a second from one major watershed to another major watershed. (10 m³ / second is equal to 580 acre-feet per day, the amount of water the city of Vancouver uses per day)  

Exceptions:  

The WPA provides that water originating in British Columbia may be used outside British Columbia ’s boundaries if:

• water is carried in vehicles, vessels or aircraft for the use of persons and animals while in transit across British Columbia ’s boundaries

The prohibition does not apply to:

• small-scale projects (less than 10 m³ /s or 580 afd) within or between major watersheds or
• the transfer of water by large-scale projects within major watersheds.   

Both of these categories are covered by the Province’s Environmental Assessment Act.   

Environmental Assessment Process for Bulk Water Removals  

At present, bulk water removal projects which are allowed within British Columbia are subject to a process under the Province’s Environmental Assessment Act.[11]  The assessment process is designed to ensure that all relevant information about a project is obtained and evaluated in terms of predicted environmental, economic, social, cultural, heritage and health impacts.   

The process requires joint decision making by the provincial Minister of Sustainable Resource Management and the Minister of Water, Land and Air Protection, but all steps of the process are open to public review and comment. Where a public hearing is conducted by the Environmental Assessment Board, the Cabinet makes the final decision.   A balanced approach in making recommendations to the ministers is fostered through the direct involvement of provincial and federal agencies, local governments, First Nations and neighboring jurisdictions.   

Project sponsors (proponents) must consult with the public. Their consultation programs are approved and monitored by the project committee, and the Environmental Assessment Office may require additional public consultation, including the establishment of a public advisory committee. 

First Nations which have traditional territory located in the vicinity of a proposed project are provided with the opportunity to be directly involved in the environmental assessment process and through participation on the project committee.  Proponents must consult with First Nations and report on the issues identified and the measures proposed to respond to those issues.  

The assessment process may consider all phases of a project’s lifecycle, from construction to abandonment.  The Environmental Assessment Act also enables the review of “stand alone” activities where no physical construction is involved, but where environmental effects may occur.  

Water Licenses to Remove Water from British Columbia  

If a water removal project is approved, the proponent is then issued appropriate permits and water use authorization. The water license is the key permit and is issued by the Water Management Branch of the Ministry of Sustainable Resource Management.  An important condition of a water license is its priority date.  When more than one license has been issued for the same stream, the license with the earliest priority date has first right to available supply.  The license with the second earliest priority date has second right, and so on. This rule applies regardless of the size and nature of project.  

The terms and conditions of a typical water license include the following:

• the name and location of the stream from which water may be taken or stored,
• the location of the intake on the stream,
• the priority date of the license,
• the purpose for which the water may be used,
• the maximum quantity of water which may be used or stored,
• the time of the year during which the water may be used,
• the property where the water is to be used and to which the license is attached,
• authorization to construct works to divert and convey the water from the stream to the place of use.  

 
Federal Policy Overview: Canada  

In Canada , the federal government’s policy on bulk water exports consists of three parts:  

1.      Joint Reference with the U.S. to the International Joint Commission (IJC)  

2.      Amendment to the International Boundary Waters Treaty Act  

3.      Canada-wide Accord for the Prohibition of Bulk Water Removal from Drainage Basins  

Joint Reference with the U.S. to the IJC  

In February 1999, the governments of Canada and the United States requested that the IJC examine, report upon, and provide recommendations on matters that may affect levels and flows of waters within the boundary and transboundary basins, principally the Great Lakes , and shared aquifers.  In its final report, the IJC advised that the Canadian and US governments, “should not permit any new proposal for removal of water from the Great Lakes basin to proceed unless the proponent can demonstrate that the removal would not endanger the integrity of the Great Lakes Basin .” [12]  

The IJC’s decision was based on their conclusion that there is uncertainty about the availability of Great Lakes water to meet all ecosystem needs, including human needs over the long term.[13]  

In June 2001, the governors of the eight states that border the Great Lakes and the premiers of Ontario and Quebec signed the Great Lakes Charter Annex 2001 in which they agreed to establish new limits within three years on the diversion or sale of water within the Great Lakes Basin to other parts of the country or abroad.[14]
   

Amendment to the International Boundary Waters Treaty Act (IBWTA)  

In December 2001, the Canadian federal government enacted legislation amending the IBWTA.  This new legislation prohibits the bulk removal of water from Canadian boundary waters and sets in place a licensing regime for water projects on these boundary bodies.

 
Canada-wide Accord for the Prohibition of Bulk Water Removal from Drainage Basins  

Through the Canadian Council of Ministers of the Environment (CCME), the federal government of Canada has encouraged all provinces and territories to endorse a voluntary national accord to prohibit bulk water removals of surface and groundwater from the Canadian portions of major drainage basins.  To date, all provinces and territories have signed the accord and enacted legislation that bans the removal of bulk water from its natural basin. New Brunswick has signed the accord but has yet to enact legislation.  The federal government is currently working with the three territories to implement a prohibition on bulk water removals.  The following table outlines the legislation on bulk water removals from each province.  

II. Legislative Overview  

Jurisdictional Responsibilities for Canada’s Freshwater Sources

In Canada , the responsibility for water management is shared by the federal, provincial, and municipal governments, and in some instances, by First Nations and/or indigenous governments under self-government agreements.  Although Canada ’s Constitution Act does not mention water, waters that lie solely within a province's boundaries fall within the constitutional authority of that province.

The waters flowing in the national parks, First Nations reserves, and other federal lands come under federal jurisdiction. The federal government is also responsible for waters that form or flow across the international boundary between Canada and the United States and for waters in the Northwest Territories , the Yukon , and Nunavut , with the exception of certain limited authorities for indigenous governments as defined in self-government agreements.

Overlaps between federal and provincial legislation on water are common; but if there is a direct conflict between valid federal and provincial legislation, then the federal legislation is paramount.  Nevertheless, governments often negotiate arrangements with one another rather than test the legal limits of their power to act unilaterally.[15]

The shared responsibility for fresh water in Canada necessitates close cooperation and collaboration among all levels of government, First Nation/indigenous peoples, and the public.

Below is a breakdown of jurisdictional responsibilities for water according to each level of government.   

Federal  

• Navigation;
• Fisheries;
• Federal Lands;
• First Nation Lands with exceptions[16];
• Boundary and transboundary waters;
• Works for ‘the general advantage of Canada ’[17]; and
• National Security (‘peace, order and good government’)[18]

 
Provincial  

• Flow regulation;
• Authorization of water use development, i.e. granting licenses or permits to use water;
• Authority to legislate areas of water supply, pollution control, irrigation, safe drinking water, thermal and hydroelectric power development; and
• Overseeing municipal water and sewer infrastructure.

   
Federal-Provincial (Shared)  

• Interprovincial water issues;
• Agriculture;
• Significant national water issues; and
• Health.

Territories  

The federal government has responsibility for administering Crown land and water resources in the North. It does this through the development and implementation of policies, legislation, regulations and programs offered primarily through the federal Department of Indian Affairs and Northern Development's (DIAND) regional offices in Northwest Territories , Yukon and Nunavut .
   

Municipal  

Municipalities manage the infrastructure related to water treatment and delivery, as well as plan, finance, and control the operations related to it.  They carry out these operations according to legislation in the respective province or territory.  

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