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Canadian Legal Framework of Water and Governance in the Prairie Provinces

IWRA World Water Congress 2008 Montpellier France
5. Water Governance and Water Security
Author(s): Margot Hurlbert
Margot Hurlbert, B.Admin., LL.B., LL.M. Asst. Professor Joint Appointment Department of Justice Studies and Sociology and Social Studies University of Regina Regina, Saskatchewan S4S 0A2 Margot.Hurlbert@uregina.ca

AbstractThis paper will outline, compare and contrast the jurisprudential framework of water law and water institutions in Canada against the construction of the governance and rules surrounding water by Canadian citizens, water stakeholders, and institutional employees. The premise of this research is critical legal pluralism, the difference between the jurisprudential positivist view of the law as based on precedent and well established objective legal rules versus the view of law as an institution and practice established and constituted by people, practices and decisions made in a fluid, dynamic, and ever changing manner. In the arid prairies, and specifically Saskatchewan and Alberta, water is necessary for supporting not only agriculture, but also industrial considerations, and leisure and domestic use. These multiple uses compete for water in times of scarcity. As such characteristics of both less developed and most developed countries are existent in this region of Canada. This region of Canada has had significant droughts over the past hundred years and is expected to suffer from periods of water shortage or conversely water overabundance as a result of climate change in the future. In assessing the area’s ability to adapt to climate change, it is critical that vulnerabilities be identified. Vulnerabilities include the inability of social structures, such as the legal structure and framework of water, to respond to unforeseen, new circumstances. In the face of these competing demands, Canada’s water law evolves over hundreds of years from many different sources and influences including the riparian water laws of Britain, where laws developed on a case by case basis in a land of relative water abundance. This archaic and rigid water law has been modified and adapted (to a certain extent) to meet the needs of the western Canadian situation; however many rules and principles remain. The objective of this research is to compare water law and governance in Saskatchewan and Alberta, as found and evidenced in statutes, legal rules and norms (and interpreted by the legal profession) and compare and contrast this with water governance as practiced by the water community, stakeholders and citizens affected. The methods utilized were: (1) the legal framework of water law and governance based on statutes, case law and judicial precedent was compiled; (2) thereafter, interviews were held with various members of the community, members of water non governmental organizations, and government departments in relation to water and the environment. These interviews elicited not only participants’ view on what the legal framework was but also what the legal framework should be. In this way the research was participatory and emancipatory. The results of the interviews are of assistance in conclusions assessing and developing water governance best practices and determining appropriate roles of government and civil society.
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