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CAUT Bulletin Archives

January 2016

Working to effect change

More regulation, aboriginal rights to water needed, says Deborah Curran

Experts are telling us to expect more water shortages and extreme weather conditions caused by climate change. As droughts, floods, river flow shortages, ground-water quality issues, and aquifer degradation become more common in Canada, what can we do to manage water use and protect Canada’s watersheds?

There are only five legal scholars in Canada researching the way water is regulated and who are working for solutions. British Columbia-based Deborah Curran is one of them.

“I went into law specifically to use the law as a tool to work for environmental protection and water law regulation,” Curran said. “With increasing climate variability and outdated colonial laws, Canada has a long way to go to take water more seriously.”

Curran is the Hakai Professor in Environmental Law and Sustainability at the University of Victoria where she studies water law, the way water is regulated, when it is taken, and who can take it.

“Water is the fundamental basis of our economies, yet we don’t have a good system to share water and to respond to the changing hydrology in most watersheds,” she said.

She argues that water management and water regulation laws need to be responsive to water conditions, especially when there are low flows in a particular watershed.

“Our current colonial water law regimes don’t respond to that kind of variability in a real time way,” Curran said, adding that other nations, such as Australia, are potential models for water law reform in Canada.

Greater monitoring of water usage is one key area where Canada lags, even though Canadians are among the biggest water users in the world and pay little to use it.

“In Canada, we have very little information about how water is used,” Curran said. “There is virtually no monitoring of the more than 43,000 licenses for water withdrawal in British Columbia alone.”

In her view, the severe drought declared this summer across the south coast of BC is a sign of more to come as climate change makes water supplies increasingly uncertain.

BC’s response is a new Water Sustainability Act to replace the 105-year-old Water Act. Curran played a role in advising the province on the comprehensive piece of modern water legislation, and says when the new water law and management regime comes into effect this year “it will be the first time in BC we will actually be regulating groundwater.”

Curran says she’s optimistic about BC’s new legislation that brings environmental sustainability considerations into water management and land use decisions. It also introduces changes to water governance and monitoring.

She cautions, however, that the funda­mental structure of water regulation and management is still colonial and the BC government missed an opportunity to even acknowledge aboriginal rights in the new law.

“Aboriginal rights to water are not factored into any colonial water regime, so that will be an issue to be reconciled in the next decade,” Curran notes.

Treaty rights are affirmed in other laws, such as fish protection laws, but still silent in water laws.

“If aboriginals have a right to salmon, then it’s a natural progression to acknowledge their rights to the water where salmon spawn,” Curran adds.

“It will be crucial to work with First Nations and other communities on the implementation of the new water act.”

Curran recently co-authored a report for the POLIS Project on Ecological Governance titled “Awash with Opportunity” recommending best practices to ensure water sustainability through BC’s new water law.

In addition to her role in advising the BC government about the new legislation, Curran and her team at the Environmental Law Clinic have worked with several First Nations communities on advocating for clean running water on reserves.

“The drinking water conditions on reserves are deplorable across Canada,” Curran said.

Even though the federal government has developed guidelines for drinking water quality on reserves, insufficient resources have been allocated to resolve the water system issues.

“It will be interesting to see if the new federal government will act on the massive water quality crisis in First Nations communities,” Curran said.

When asked whether she sees a role for universities and colleges in responding to the water crisis, she responded “absolutely, there are many ways. We need core water courses taught in engineering, business, law and environmental studies. There are numerous academics who do research on water but there is more that can be done to link academics in natural sciences and social sciences.”

In this regard, it would be great if there were more interdisciplinary collaborations, Curran said.

“Obviously there is also a role for universities to play in retrofitting, and promoting LEED certified buildings,” she added. “Every university should be working to reduce water use — not only for primarily ecological purposes, but also for the obvious economic benefits.”

Curran is also the founder of Smart Growth BC, an NGO devoted to fiscally, socially and environmentally responsible land use and development that works with community groups, businesses, developers, planners, municipalities and the public to create more livable communities in British Columbia.