Category Archives: Water Law

The New Alberta Wetland Policy: White Area Wetlands, Just a Pawn in the Game?

PDF Version: The New Alberta Wetland Policy: White Area Wetlands, Just a Pawn in the Game?

Policy commented on:  Alberta Wetland Policy

On September 10, 2013, the Alberta Government released its new Alberta Wetland Policy (“New Wetland Policy”).  The release was long anticipated. It was preceded by 20 years of an “interim policy” applying to only part of the province, and by about 10 years of both lengthy and spurts and starts of consultations and processes aimed toward the province developing a comprehensive wetland policy approach applicable to the entire province. This ABlawg post presents and discusses the New Wetland Policy in a comparative, legal/political, and historical context. It describes the importance of wetlands and outlines wetland protection and conservation approaches in Alberta and elsewhere. It reviews the New Wetland Policy in this context to demonstrate how the New Wetland Policy compromises the protection of slough/marsh wetlands. A forthcoming ABlawg post by University of Calgary LLM student Dave Poulton will focus on the New Wetland Policy’s mitigation hierarchy and the offset provisions.

Continue reading →

No Public Interest Standing at the Alberta Environmental Appeals Board

PDF version: No Public Interest Standing at the Alberta Environmental Appeals Board

Decisions considered: Alberta Wilderness Association v Alberta (Environmental Appeal Board), 2013 ABQB 44; Water Matters Society of Alberta et al v Director, Southern Region, Operations Division, Alberta Environment and Water, re: Western Irrigation District and Bow River Irrigation District (10 April 2012), Appeal Nos. 10-053-055 and 11-009-014-D (AEAB), (the “EAB Standing Decision”).

Over the past decade, Alberta Environment has amended water licenses held by irrigation districts (IDs) to allow these IDs to allocate water for commercial purposes other than irrigation. Some question the authority of Alberta Environment to approve these amendments under the Alberta Water Act, RSA 2000, c W-3. The general argument here is that such change-of-purpose license amendments should be handled as a transfer of license allocation under the Water Act. And this argument is grounded on several points, including that by using the license amendment route rather than a transfer the conservation holdback provision of the Water Act is avoided and the amendment approach involves significantly less opportunity for public oversight over water management. This latter point has borne out further as public interest groups have been consistently denied standing to contest these approvals by Alberta Environment and the Alberta Environmental Appeals Board (EAB). The summary point is that Alberta Environment and the EAB assert public interest groups do not qualify as “directly affected” by a license amendment, and thus have no standing to file a statement of concern with Alberta Environment and/or a notice of appeal with the Board under the Water Act to challenge the legality of these amendments.

Continue reading →

The Responsible Energy Development Act and the Water Act – cloudy confluences

PDF version: The Responsible Energy Development Act and the Water Act – cloudy confluences

After 18 consecutive hours of steamed debate Alberta Legislature passed Bill 2, the Responsible Energy Development Act, (REDA) into law on November 21st, 2012 (see Calgary Herald, 11-21-2012, here).  The Bill received Royal Assent on December 10th, and except for some exceptions, comes into force on Proclamation (REDA, s 113).  The ABlawg has distilled much of the Bill in its numerous discussions posted on Bill 2 (see posts under the category Responsible Energy Development Act here) and will continue its stream of comments on the REDA.  This ABlawg post navigates some of the actual and potential impacts of the REDA on water management in the Province under the Water Act, RSA 2000, c W-3 (canlii), one of the “specified enactments” under the REDA.  As will be seen, subject to forthcoming regulations, there could be a deluge of potential impacts, that could, unless the regulations are very clear, circumscribed, and publicized,  obfuscate water management and perplex water users and the public.

Continue reading →

Court of Appeal approves decision concluding that water rights did not pass with a transfer of land

PDF version: Court of Appeal approves decision concluding that water rights did not pass with a transfer of land

Cases Considered: Canada Finance Corporation Limited v Hirsche Herefords, 2012 ABCA 315

The Court of Appeal has dismissed the appeal from a decision of Justice Strekaf in which she had approved the sale by the receiver of a water right separate from the sale of lands to which the water right was appurtenant.  In an earlier ABlawg post I commented on Justice Strekaf’s decision (here).

Continue reading →

Access to Justice: University of Calgary Environmental Law Clinic in 2011/2012 – “What’s legal is not always what is just” – Rick Collier

PDF version: Access to Justice: University of Calgary Environmental Law Clinic in 2011/2012 – “What’s legal is not always what is just” – Rick Collier

Case and Decision considered: Kelly v Alberta (Energy Resources Conservation Board), 2012 ABCA 19,

Hohloch v Director, Southern Region, Environmental Management, Alberta Environment and Water, re: Eastern Irrigation District (29 March 2012), (AEAB), Appeal No 10-043-ID2

 As the Fall 2012 term approaches we here at the law school have started to prepare for the return of students and the resumption of lectures.  In my case, this includes getting ready for another year of supervising our environmental law clinic.  Before the new term arrives for the clinic, however, I want to look back on some highlights from 2011/2012.  The clinic allows one to step out of the law school and into the field of environmental disputes in Alberta.  If there was a common theme to all of our files last year, it was access to justice.  I’ve chosen to end this recap with a tribute to Rick Collier who stood up for wilderness in an act of civil disobedience to protest the lack of public input into resource and environmental decision-making in Alberta.

Continue reading →