First Nations with reserves that depend upon groundwater or use significant groundwater should be aware of and participate in the ongoing process to allocate groundwater under British Columbia’s new water legislation.
The Government of British Columbia is preparing to implement and proclaim in force the Water Sustainability Act. As part of this, it will introduce a process for allocating, licensing and assigning priority to groundwater resources in British Columbia, including allocating and licensing on-reserve wells. This process may significantly affect First Nations that rely upon well water, especially if that well water supplies more than one household. In the next few weeks, there are upcoming steps and it is important that these First Nations should participate to (1) determine if there is any need to challenge the legality of this process and/or (2) ensure the maximum protection for its groundwater supply.
The Province is proposing to allocate a water supply to any well that supplies more than a single parcel and is over a certain volume. These allocations will also be assigned a priority based on the time the right to the water is recognized; so if water restrictions are imposed for conservation purposes, water supplies will be limited according to those priorities.
It is important these First Nations ensure that the Province recognizes the maximum water allocation for its existing wells and that each well is prioritized as early in time as possible. The legislation allows the government flexibility in assigning priority dates and First Nations should press for an early date (such as the date of reserve creation).
If the Province limits reserve groundwater allocations or prioritizes other local ground and surface water users ahead of reserves, (such as nearby residential or agricultural uses) First Nations should consider whether to challenge the legality of the Water Sustainability Act, the particular allocations or the priority assignment. There may be a variety of grounds upon which to launch such a challenge. In particular, in the common law, the right to drill for and take groundwater (as opposed to surface water) is governed by the Rule of Absolute Capture, which is a right associated with the land. Thus it could be argued that when reserves were established and their administration and control was assigned to Canada for the use and benefit of a First Nation, the reserves included the right to drill for and take groundwater and therefore provincial legislation cannot take that right away or subordinate it to neighbouring rights. Note, however, that the Rule of Absolute Capture also allows water users to operate their wells in such a way to drain their neighbours’ wells. The Province will limit that power through this regulation; so in that respect the proposed new process is not all bad.
The provincial Water Sustainability Branch recently sent out consultation letters regarding the groundwater allocation process. It will host workshops in the next few weeks to discuss the contents of the regulation that will be soon drafted to implement the groundwater management regime. All First Nations that rely on groundwater may be affected by this process. It is important that each Nation reply to this request and participate as soon as possible.
If you need further information on this JFK Law would be happy to assist you and you can contact Robert Janes (firstname.lastname@example.org) or Karey Brooks (email@example.com).