Priority? Licence transfers? Here’s how Alberta’s water system works

February 15, 2024 Canuck

Alberta’s relationship with water has changed over the past century and a half — not only how we use it, and how much of it we use, but also how it gets allocated.

As this year seems certain to bring worsening drought conditions, the laws, regulations and history of water in Alberta are increasingly relevant — and worth unpacking.

Who owns the water in Alberta?

The Water Act of 2000 states that all water in the province, as well as the right to its diversion and use, is vested in the Crown. This means that water can only be used with the permission of the provincial government. For municipalities and businesses, including most agriculture, this permission is tied to a licence.

Where did the idea of licensing water come from?

The Water Act certainly isn’t the first time that the Crown had asserted its ownership and control over water. In fact, that idea pre-dates Alberta as a province.

According to David Percy, an expert in water law at the University of Alberta, the province’s current system traces its origin to the arrival of significant numbers of members of the Church of Jesus Christ of Latter-day Saints in the 1880s.

When the Mormons arrived in what is now Cardston, in southern Alberta, “they started doing what they did in Utah, which was to irrigate,” says Percy. “And that was not permitted under the prevailing English common law of riparian rights, which said you can only take a certain amount of water from the river and you can only apply to lands adjoining the river, basically.”

A smiling man in a suit with white hair. — David Percy is an expert in water law and holds the the Borden Ladner Gervais Chair of Energy Law and Policy at the University of Alberta. (Submitted by David Percy)

The passage of the North West Irrigation Act in 1894 laid the foundation for much of today’s water licence system, borrowing from the prior appropriation doctrine that was prevalent in the western United States.

“Water law is not shaped by legal tradition. It’s shaped by geography,” says Percy.

“So if you take a line from Lake of the Woods on the Manitoba, Ontario boundary, to the Gulf of Mexico, everywhere west of that is a priority state or province, including British Columbia. Everywhere east of that, at least initially, was based on riparian rights, because east of that there’s plenty of water, basically.”

How does ‘priority’ work?

There are tens of thousands of licences for surface and groundwater in Alberta. From municipalities to agricultural operations, golf courses and oil companies — with few exceptions, anyone taking or diverting water in meaningful quantities needs a licence to do so.

Each licence comes with a priority number. These numbers are sequential, meaning that the oldest licences are the highest ranked.

The priority principle is known as first in time, first in right. In essence, the users with the earliest water licences are entitled to their water first. More specifically, they have the right to take the full amount of water allocated under their licence before more junior licensees receive any water at all.

In times of plentiful water, or in under-allocated parts of Alberta, this isn’t much of an issue. However, in times of drought, some water licensees could be stuck.

Percy says the principle has “never been applied to cut off a major user.” However, it also provides needed clarity.

“Both in Canada and in the U.S., the clear definition of your water allocation has acted as a springboard to negotiations for sharing the flow of water. Because everybody knows what they’re entitled to.”

The province recently announced negotiations with major water licence holders in the Red Deer River, Bow River and Old Man River basins in order to avoid the worst impacts of water shortages — the first such talks since 2001.

What about new licences, or transferring licences?

New licences are still available outside of the South Saskatchewan River basin, which covers much of southern Alberta. That area of the province has 100 per cent of its water already allocated and new licences stopped being issued in 2007.

A green field of crops being sprayed by a long irrigation apparatus. — Agricultural irrigation is a major use of Alberta’s water, particularly in southern regions of the province. (Kyle Bakx/CBC)

However, existing users in the South Saskatchewan River basin have something uniquely available to them: they are allowed to transfer some or all of their water allocation to someone else. This creates a regulated market for licences in one region of Alberta where new licences are no longer being issued.

How does the licence system affect Indigenous communities?

The North West Irrigation Act was introduced a few years before the signing of Treaty 8, and less than 20 years after the signings of Treaties 6 and 7. Nevertheless, Canadian officials did not take into account the water needs of Indigenous communities.

While licensing of water use proceeded under federal and then provincial jurisdiction, most First Nations in Alberta simply continued taking what water they needed without a licence — a situation that Percy says wasn’t a particular problem, given that this usage amounted to a drop in the overall bucket, and that there was generally plenty to go around.

But Alberta’s population continued increasing, and so did its demands on the water system, particularly in the agriculture and energy sectors. By the time the province started paying attention to the lack of water licences in First Nations communities, they would have only been given very junior licences, with many other users ahead of them — meaning that, in times of drought, they might not be entitled to any water.

That was unacceptable to many.

After many years of unproductive negotiations with the provincial government, Ermineskin Cree Nation signed a water agreement with the province in 2019. Under the deal, the province will provide drinking water to the reserve until 2051.

Carol Wildcat, the consultation co-ordinator for Ermineskin, says a key difference was the shift in tone and approach under the new NDP government.

But years after that agreement was signed, the water has not yet been provided. Wildcat said negotiations around implementation are continuing, but declined to comment further.

For a First Nation whose history here long predates the arrival of settlers, and which has struggled with contaminated drinking water and shortages, water is simply one issue in a bundle of colonial frustrations.

“Who the hell has the right to say who owns my water when I’ve been here from time immemorial? That treaty did not make me. I was in existence way before then. Our stories in the spirit of water have always been here,” says Wildcat.

“This is my land. Why do I have to have a licence?”

While some have held up the agreement, and another between the province and Kainai Nation, as a model for others to follow, Wildcat says it’s only a starting point for future generations to negotiate better nation-to-nation agreements.

“I think it’s the grandparent of models to come,” she says.

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