The current public consultation on a new BC Water Sustainability Act (until November 15th) represents a perfect opportunity to ask: who should benefit from BC’s water? Because right now the proposed Water Sustainability Act focuses on ensuring that private benefits from using water continue – potentially at the expense of stream health, drinking water and other public benefits – except in exceptional circumstances. A law that truly focused on water sustainability should (as British Columbians demanded in public consultations), “proactively protect drinking water … and ecological health” and other public values and First Nations’ rights.
First in Time?
100 years ago many British Columbians believed that we all benefited from activities which took water and used them to develop the land, the province – so settlers, farmers, mines, sawmills, and so on were all given access to water or a first-come, first serve basis – known as the First-In-Time, First-In-Right system (FITFIR). The Water Sustainability Act Blog explains FITFIR:
For example if your licence was granted in 1930 before other licence holders on the same stream, you are a “senior” licence holder and the others are “junior”. In times of water scarcity the senior licences with earlier priority dates retain their full allocation over the junior licences regardless of water use purpose.
Traditional use by First Nations or the environmental flow for fish (keeping water in the stream for fish habitat and other ecosystem benefits) were not viewed as “benefiting” British Columbia (although some Indian Reserves did eventually receive water licences for domestic use).
British Columbians understand that development-oriented uses of water do have a public benefit; however, most British Columbians also rank the public benefit from having water for fish and the environment, First Nations use, drinking water, and agriculture, as being higher priority than many industrial water uses, such as fracking or water bottling.
That’s what the government was told loud and clear during their first consultations on the proposed Water Sustainability Act:
Proactively protect drinking water, food production, clean energy and ecological health.
Respondents called for a water allocation system that prioritizes drinking water, food production, clean energy production and protects ecosystems. There was strong support for environmental flow and stream health standards while promoting efficiencies and recognizing non-consumptive water use in industry.
And yet, the proposed Water Sustainability Act re-affirms the FITFIR system and extends it from not only surface water users to groundwater users (i.e. well owners). As a result, the Act would not give any particular priority to drinking water, ecosystem health, food production, or other uses that today’s public may have stated they want prioritized. First Nations uses – truly the First In Time human uses of water – also continue to be ignored. Instead, today’s priorities take a back seat to priorities set 20, 50, 100 years ago. For future water licences, ecosystem health (through a requirement to “consider” environmental flows) will be addressed, but where there is already existing unsustainable water use, the Water “Sustainability” Act is locking in that unsustainable use (unless and until Water Sustainability Plans are developed under the Act).
If we keep the antiquated 104-year old system, instead of recognizing that priorities can and have changed, as has the world we live in, it will be one of the great lost opportunities of the new Water Sustainability Act.
And yet, much of the government’s resistance to prioritizing drinking water, environmental health, First Nations uses and agriculture comes from its interpretation of a key concept in the existing Water Act: “beneficial use.”
Whatever one may think of the priorities of the drafters of the current 104-year old Water Act, to their credit they did not guarantee a licensee the use of water for all time. A water licence does not grant “ownership” of water – rather, it gives a right to use water only as long as the water use is considered “beneficial.” If water is not used beneficially for more then 3 years, the government is supposed to reclaim it (although in practice this seems to occur only when complaints are made about a failure to use water).
So what is meant by “beneficial”? For whose benefit? Private benefits of water licensees or the benefit of British Columbians? The term “beneficial use” is not defined in the Water Act, and BC’s courts have never answered the question. How you define this key term makes a huge difference to how you interpret the Water Act and the rights that it grants.
The WSA Legislative Proposal says that “beneficial use” is only about private use of the water:
‘Beneficial use’ means using the licensed volume of water for the intended purpose(s) and in compliance with the terms of the water licence.
The proposal gives no source for this definition – implying (incorrectly) that it is found in the current Water Act. But if the current Water Act intended merely to require use as contemplated under a water licence, it could easily have said so without introducing such an odd term. In addition, the current Act gives Ministry of Environment staff the legal power to “determine what constitutes beneficial use of water,” which would seem unnecessary if the proposal’s narrow definition was correct. (In addition, the current Act allows Cabinet to pass regulations defining undefined terms, such as beneficial use).
So if “beneficial” doesn’t mean mere use of water in accordance with a licence (which is the private benefit), what is meant by beneficial use? Could it be that the current Water Act asks us to consider whether water use has a broader public and environmental benefit?
The term “beneficial use” used in the Water Act – as it relates to water law – was originally borrowed from U.S. water legislation. Over 40 years ago, the Legislative Research Center at the University of Michigan Law School reviewed legislation and case-law from a number of U.S. states that used the term “beneficial use” and proposed a definition:
’Beneficial use’ means a use of water … that is reasonable and consistent with the public interest in the proper utilization of water resources, including, but not limited to, domestic, agricultural, industrial, power, municipal, navigational, fish and wildlife, and recreational uses.[Emphasis added]
This definition is supported by U.S. cases, holding, for example:
- Extracting water solely to sell it is not beneficial use (Millheiser v. Long, 10 N.M. 99, 61 P. 11);
- Wasteful use cannot be not beneficial use and actions that cause a public nuisance cannot be beneficial use (State v. McLean, 62 N.M. 264, 308 P. 2d 983) – which would suggest that water use that destroys fish habitat (well established as a public nuisance, and one that can only be authorized by the federal government) cannot be considered beneficial use;
- Recreational and fishing use of water are a beneficial use. (State v. Red River Valley, 51 N.M. 207, 182 P. 2d 421).
- At least in arid regions, and as judged in 1943, “domestic use is the most beneficial use for water” followed by irrigation, “regardless of any statute.” (Tanner v. Bacon, Utah, 1943, 136 P. 2nd 957).
In addition, the fact that the Water Act strongly asserts the public’s interest in water and the management of water provides further support for the view that “beneficial use” is not simply about private water use. Notably, the Act asserts public ownership over water (an assertion that must be viewed in light of First Nations unextinguished title and rights in respect of water), and until 1929 it also explicitly recognized a public right to use water for domestic purposes.
… the general right of all persons to use water for domestic and stock supply from any river, lake, or stream vested in the Crown, and to which there is access by a public road or reserve.
That right, in my opinion, continues to exist (albeit subject to First Nations rights, Water Licences, etc.), since subsequent amendments to the Water Act have never expressly removed it. The 1989 BC Court of Appeal decision in Steadman v. Erickson Gold Mining Corp. described the right as a “fragile right” (according to the court a right that is very similar to rights to use groundwater).
Given this context of public rights and public ownership, a court could adopt the reasoning of the Supreme Court of New Mexico (despite differences in the legislation) that ”the entire statute is designed to secure the greatest possible benefit from them for the public.”
Defining Beneficial Use
When the BC government began consulting on a new Water Act it proposed, as a principle, that “Rights to use water come with responsibilities to be efficient and help protect stream health.” This principle was “well supported by the majority of submissions and in dialogue at regional workshops,” although apparently submissions from the Mining industry were opposed. Some of the submissions “suggested that the responsibility to protect water should be a mandatory component of rights to water use.”
The provincial government, to its credit, has proposed defining “beneficial use” to make it explicit that inefficient water use is not beneficial. However, their definition of “beneficial use” ignores the second responsibility mentioned in their principle – to help protect stream health.
Because beneficial use is an inherent limit on the FITFIR system, it would clarify that a water licence brings with it certain basic responsibilities to steward water resources. Such a definition would allow the government to protect stream health in respect of existing and new licences. The Water Sustainability Act proposal proposes 30 year reviews of licences that will focus on whether the water is being used beneficially. So it is critical to make sure that the definition of beneficial use reflects environmental flows and stream health.
Similar approaches might also be used to require that other values be protected – such as access to drinking water or food security or to address the Crown’s constitutional obligations to protect First Nations rights in relation to water. Certainly the new definition of “beneficial use” must not be narrowly focused on private interests and must allow British Columbia’s proposed Water Sustainability Act to be flexible in addressing changing social and environmental needs.
By defining beneficial use to reflect today’s sense of what benefit we expect to see from our water, the proposed Water Sustainability Act could go a long way to moving us towards a truly sustainable water system. At a minimum we need a Water Act that protects stream health and places that responsibility ahead of private interests. Conversely, locking in a private-interest definition of “beneficial use” will make it difficult for British Columbia to protect stream health and to respond to a changing climate, and to changing needs, in the years and decades to come.
Find out how to make your views known at ourwaterbc.ca. The government is consulting the public until November 15th (here is my comment on the WSA blog based on this post - please feel free to reply to it there).
By Andrew Gage, Staff Lawyer
Photos courtesy of Andrew S. Wright / www.cold-coast.com