Category Archives: Water Law

The Milk and St. Mary Apportionment: A Next Step?

By: Nigel Bankes

Matter commented on: International St Mary-Milk Rivers Study Board, Work Plan for the International St Mary-Milk Rivers Study, June 2022, released July 28, 2022

PDF Version: The Milk and St. Mary Apportionment: A Next Step?

This post examines the most recent development in efforts to improve the ability of both Canada and the United States to access its water entitlement to each of the Milk and St. Mary Rivers under the terms of an apportionment order made by the International Joint Commission (IJC) under the Boundary Waters Treaty more than a century ago. Continue reading →

The Senate, the Oceans Act and Marine Protected Areas

By: Nigel Bankes

PDF Version: The Senate, the Oceans Act and Marine Protected Areas

Matter commented on: Bill C-55, An Act to amend the Oceans Act and the Canada Petroleum Resources Act, as passed by the House of Commons, April 20. 2018.

There is a lot of attention focused on the Senate these days, principally in relation to Bill C-69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts, (and the subject of numerous ABlawg posts); but, there are other Bills standing in a long and slowly moving line in that Chamber as well. These Bills include Romeo Saguenash’s private member’s Bill C-262 (also endorsed by the Liberals) to give application to the United Nations Declaration on the Rights of Indigenous Peoples in Canadian law (and the subject of an ABlawg post here), but also proposed amendments to the Oceans Act, SC 1996, c 31 to create an expedited process for establishing marine protected areas (MPAs). This blog post focuses on the latter.

Continue reading →

Minister Sharpens the Wetland Policy’s Teeth, and Beaver Pond is Spared

By: Arlene Kwasniak

PDF Version: Minister Sharpens the Wetland Policy’s Teeth, and Beaver Pond is Spared

Decisions Commented On: Brookman and Tulick v Director, South Saskatchewan Region, Alberta Environment and Parks, re: KGL Constructors, A Partnership (24 November 2017), Appeal Nos. 17-047 and 17-050-R (AEAB), EAB Report, Minister`s Order, and Minister’s Reasons)

The physical setting relating to the 111 page EAB Report (ER), Minister’s Order (MO), and Minister’s Reasons (MR), includes the geologically and ecologically unique Weaselhead Flats Natural Environment Park in south Calgary (containing the only delta in the City), the Tsuut’ina First Nation Reserve, a series of wetlands that drain into the Park and the Glenmore Reservoir, and the long-time materializing Calgary Ring Road. The complex and sometimes intense fact situation may be summarized as follows: Continue reading →

Does a US Entity Have a Cause of Action (Cognizable by the Federal Court) where a Downstream Road/Dyke in Canada Serves to Prevent Dispersion of the Natural Flow of a Transboundary Stream? Answer: No

By: Nigel Bankes

PDF Version: Does a US Entity Have a Cause of Action (Cognizable by the Federal Court) where a Downstream Road/Dyke in Canada Serves to Prevent Dispersion of the Natural Flow of a Transboundary Stream? Answer: No

Case Commented On: Pembina County Water Resource District v Manitoba (Government), 2017 FCA 92 (CanLII)

The Pembina River is transboundary stream. Its geography is as follows (at para 6 of the judgement):

The Pembina River originates in Manitoba and crosses into North Dakota. It then flows eastwards through North Dakota before joining the Red River, which flows northward back into Canada. Within North Dakota, part of the river is “perched” meaning that it is elevated above the level of the surrounding prairie. When the river overflows these elevated banks, as the appellants allege happens “virtually every year,” the water should naturally disperse.

The gravamen of the plaintiffs’ claim was that (at paras 5 and 6):

…. in the relevant areas of southern Manitoba, there is a 99 foot wide road allowance running parallel to the international border. In or around 1940, a raised road was constructed within this allowance. The road [blocks] the flood waters of the Pembina River from crossing into Canada. Continue reading →

Provincial Environmental Appeal Boards: A Forum of Choice for Environmental (and First Nation) Plaintiffs?

By: Nigel Bankes

PDF Version: Provincial Environmental Appeal Boards: A Forum of Choice for Environmental (and First Nation) Plaintiffs?

Decision Commented On: Chief Gale and the Fort Nelson First Nation v Assistant Regional Water Manager & Nexen Inc et al, Decision No. 2012-WAT-013(c), BC Environmental Appeal Board, September 3, 2015

In this important (and lengthy) decision (115pp), British Columbia’s Environmental Appeal Board (EAB) revoked Nexen’s commercial water licence for two reasons: first, the terms and conditions of Nexen’s licence were not technically supportable, and second, the Crown was in breach of its constitutional obligation to consult the First Nation with respect to the decision to issue the water licence.

I think that the decision is important for at least four reasons (notwithstanding the fact that the days for the version of the Water Act, RSBC 1996, c 483 in force at the time of this licence decision are numbered since it is due to be replaced by the new BC Water Sustainability Act in early 2016 and for comment see here). First, and most generally, it is an excellent example of the important role that environmental appeal boards can play in shining a light on the administrative practices of line departments. In the same vein, it is also offers a dramatic illustration of the differences between the role of an EAB and the role of a court on a judicial review or statutory appeal application. An EAB can offer a searching, de novo, technical re-assessment of the merits of the department’s decision; a court is inevitably more deferential and precluded from engaging in an assessment of the merits. I have written at length on this important role that EABs serve, see “Shining a light on the management of water resources: the role of an environmental appeal board” (2006), 16 Journal of Environmental Law and Practice 131 – 185.

Continue reading →