Water for Fish
BC’s New Water Sustainability Act: What is it and does it matter to First Nations in BC?
One hundred plus years later, the Province of BC has finally gotten its Act together: the new Water Sustainability Act, that is.
The Water Sustainability Act (WSA) is BC’s long overdue change to the legislation governing water management in BC. The Act has been given Royal Assent in May 2014 and will come into force with the development of various regulations by the end of 2015 (estimated).
The Act introduces a number of improvements to the governance and management of water in BC and are of particular interest to BC First Nations. However, a number of proposed changes have the potential to impact Aboriginal Title and Rights and the challenge remains in understanding how some of the proposed changes can be effectively advanced in the Province without first addressing and resolving outstanding Aboriginal Title and Rights issues.
Starting with the Water Act Modernization process, the Water Sustainability Act (WSA) has now received Royal Assent and will come into force following the development of supporting regulations (See Figure 1).
Figure 1. Timeline of Water Act Modernization process.
New Policy Areas
The new Act introduces improved measures of water management in BC by focusing attention on seven key policy areas:
Protecting stream health and aquatic environments
Considering water in land use decisions
Regulating groundwater use (BC is the only Canadian province that currently doesn’t)
Regulating water during scarcity
Improving security, water use efficiency, and conservation
Measuring and reporting and
Enabling a range of governance approaches
The policy areas in the Act are short on details with respect to setting standards or establishing mechanisms for enacting the legislation. It is the regulations which will provide details for how the Act is to be implemented and enforced.
Initial regulations under development this year (2015) are considered priority regulations focusing on maintaining business continuity. These will include:
water fees and rentals,
changes in and about a stream, and
violations, tickets and fines.
The remainder of the regulations will be developed once these priority regulations have been completed; they will include water objectives, water sustainability plans, measuring and reporting water, license reviews, designated areas, dedicated agricultural water, and alternative governance approaches.
Opportunities for First Nations to Shape Water Governance and Management in BC
The regulatory development phase represents a significant opportunity for BC First Nations to shape the consideration that these regulations give to:
First Nations priority rights (over acquired license users’ rights) to ground and surface water for First Nations’ use;
Stronger requirements for issuing licenses to protect aquatic ecosystems and stream health according to standards developed by First Nations; and in particular,
How groundwater should be regulated, as the Province estimates that approximately 5000 licenses will impact First Nations.
The Province has also initiated Strategic Engagement Agreements (SEAs) with a handful of First Nations in BC, but it is not clear how or why only these a few select communities have signed on to these agreements.
Our Role at FNFC is Limited
The FNFC is working to engage BC First Nations in shaping these regulations to ensure continued access to surface and groundwater for First Nations use. We advise the Province to, at a minimum, keep commitments to engage, consult and accommodate First Nations through formalized engagement and consultation through SEAs, First Nations advisory board participation, development of First Nations cultural water objectives, and First Nations participation in developing regional water sustainability plans.
However, as an organization that works with BC First Nations, our role is limited. The First Nations Fisheries Council is not a holder of Aboriginal or Treaty Rights as defined in s. 35(1) of the Constitution Act of Canada (1982).
The Responsibility is Yours
Ultimately, the responsibility to assert rights and interests to water lies with each First Nation.
So join us for this special 8-week series as we explore:
1. Specific opportunities and areas of the legislation and regulatory development that we’ve identified as likely being of significant interest to First Nations in terms of how their waters are best managed and governed;
2. The potential for First Nations to collaborate in addressing these initiatives; and
3. Other topics identified by YOU!