 Water
Law Water law deals with the ownership, control,
rights (and obligations), and use of water as a resource. Closely
related to property law, water law has
its roots in Canada’s British colonial legacy and the historical
constitutional division of powers, and it is increasingly influenced
by environmental law and Green
Legal Theory.
An evolving and complex field of law strongly influenced
by local institutions and norms, modern water law in Canada is a
product of myriad governmental departments, programs and institutions
across federal, provincial, First Nations and regional and municipal
governments.
Because of water’s inherent duality –
vital to all living things and a cornerstone of economic and social
prosperity – laws and institutions governing water have far-reaching
impacts. We recognize that the unique nature of water, as a dynamic
flow resource with potentially simultaneous (and often competing)
uses, presents challenges related to regulation and governance –
notably, because most laws and institutions are designed mainly
for land management. At POLIS, we approach the water law theme by
exploring emerging legal trends and institutions specifically designed
to address the challenges associated with water sustainability.
We also seek to investigate the policy applications and implications
of these opportunities.
Our work focuses on the following topics:
Ecosystem-based water allocations
– that prioritize resilience and
ecosystem health by emphasizing regulatory and institutional regimes
to protect (and promote) instream flows.
Aboriginal water rights
– that address the landscape of customary water laws that
has been shifting since Aboriginal rights were constitutionally
entrenched in 1982. Land claims and ongoing case law regarding Aboriginal
title and rights have become powerful influences on resource management
in Canada and promise to extend into the water realm as cases that
deal with the nature and scope of these constitutionally protected
rights are only now beginning to emerge.
Wet growth –
where urban water law meets smart growth – exploring how the
land-water interface relates to water quality and supply issues
and, in turn, it influences the density, form, pattern and location
of development and urban land-use decisions more generally.
Water trusts –
the “watery” cousins of land trusts that offer a potentially
innovative market-based approach to protecting instream flows and
ecosystem health. Trusts provide an institutional and legal mechanism
to transfer water from extractive uses toward keeping water instream
for the broader public benefit and ecosystem health.
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