The adaptation of water law to climate change

Water law is an important institution contributing to the adaptive capacity of people to respond to climate change. Adaptive capacity is the ability of a system to design and implement effective adaptation strategies to climate variability (or climate change) or to react to evolving hazards and stresses (Burton et al., 2005). Well‐developed institutions (such as the institutions of water law) have been identified as facilitative of the management of climate‐related risks and thus important in reinforcing adaptive capacity (Intergovernmental Panel on Climate Change – IPCC, 2007). Law is a foundational institution in determining the resolution to conflicts relating to water.

The potential for conflict as a response to resource scarcity has been well‐documented (Homer‐Dixon, 1999) from a theoretical and practical perspective. The existence of resource scarcity increases societal focus on distribution of that resource. Social and biophysical realities are intimately linked with the potential for conflict as people experience changes in their perceived security, well being, and relative equality (Deaton, 2001; Dollar and Gatti, 1999). Increased conflict results in increased vulnerability and risk when responding to climate change and climate variability. Because water law plays a central role in resolving water conflict, effective and adaptive law resolves conflict and promotes the resiliency of communities to climate variability. Conversely, ineffective law fails to resolve conflict and exacerbates community vulnerability to climate variability.

This paper examines the institution of water law in the context of the larger institution of water governance. Water law is an important foundation for water governance. Water law establishes the formal framework of rules within which people and organizations operate in relation to water and sets the framework for the organizational structure of government institutions with mandates relating to water. Water governance refers to the both the range of political, social, economic, and administrative systems that are in place to regulate the development and management of water resources and provision of water services at different levels of society (UNDP, 2007) and the process of making decisions and reconciling competing priorities (UNHSP, 2007). By examining case studies relating to the resolution of water conflicts this paper brings to light water governance in action, or the manifestation of water law through real situations.

Water governance is also an important societal institution in respect of adaptation to climate change and ensuring that conflict is minimized. At the 2000 World Water Forum, it was concluded that the water crisis is mainly a crisis of governance. Institutional structures and an enabling environment allow stakeholders to work together for effective water governance (Global Water Partnership, 2000). The study of the resolution of water conflicts in the broader context of water governance (and not the formal context of a court of law) provides important insight into law reform and policy.

These cases studies originate in the South Saskatchewan River Basin (SSRB) which is an ideal setting for investigation for four reasons:

• 1.

  It is the most arid area of the prairies in the Canadian provinces of Alberta and Saskatchewan, covering an area of 420,000 square kilometres with an estimated population of 1.5 million.

• 2.

  It has historically experienced periods of extreme climate variability affecting agricultural development. This particular area is at risk of desertification. When European immigrants first settled this region at the start of the twentieth century, there was a period of water abundance. However, the 1930s were an extremely difficult time for agriculture with many people vacating parts of this area. Droughts have followed with the most recent occurring in 1998 and again from 2001 to 2003. This history of periods of water scarcity over the past century has allowed for much learning about vulnerabilities to climate and the development of many institutional adaptations including the development of the formal legal water laws.

• 3.

  In the future, this area is expected to suffer drier conditions, with more extreme weather events, and increasing climatic uncertainty with climate change (Sauchyn et al., 2002); as well, there will be impacts on water resources in terms of quantity and quality (Lapp et al., 2009) and increased periods of water scarcity (Sauchyn and Kulshreshtha, 2007).

• 4.

  The basin is under the jurisdiction of two provincial governments, Alberta and Saskatchewan, the Federal Government of Canada, and several First Nation governments. There are also a large number of local governments (rural municipalities) and approximately 225 rural communities (Sobool and Kulshreshtha, 2003). Competing uses of agriculture, hydroelectric and power generation dams, drinking water for 45 percent of Saskatchewan's population, diversions, irrigation, and recreation occur and, sometimes in periods of water shortage, result in conflicts.

This paper will define and discuss water law and governance. Thereafter, case studies of water conflict in this arid region of the Canadian Prairies will illustrate how water conflicts are resolved and the current state of water governance, which often does not represent the formal legal water law rules. These conflicts and their resolution provide a realist view of the institution of water governance and important guidance on vulnerability and adaptive capacity for responding to climate change. This guidance ultimately shapes future water law and governance policy decisions.

Law is generally regarded in a positivist fashion as a set of rules reflected in the wording of legislation and decisions of judges all forming a code binding on subsequent legal subjects (Luhmann, 2004). In system‐theoretical terms, law is an operatively closed network of communications which constantly refers to its own decisions, expressly based in turn on legal principles and procedures. However, in the actual workings of the legal system, people are not merely law “abiding” but also law “changing” and law “inventing” (Kleinhans and Macdonald, 1997). The legal system is composed of the interaction and intersection of different legal spaces operating simultaneously. Although it is recognized there is a social structure composed of statute and established precedent, there is a vaporous edge of this structure of legal conjecture, where definitive legal opinions about what the law is or not cannot be given. It is along this vapourous edge that the formal legal rules change, are changed, and adapt to changing geophysical and cultural norms.

Canadian water law illustrates the law's history of adaptation. Water rights were based on two common law theories, the English riparian doctrine (a set of usufructuary rights) and the American prior appropriation doctrine (Lucas, 1990). The riparian doctrine was inherited in Canada from England (Gibson, 1968, p. 81). In British common law, water, in its natural state, was incapable of ownership (Lucas, 1990). Landholders next to water acquired riparian rights of use which included a reciprocating obligation to return the water substantially undiminished in quality and quantity (Lucas, 1990). The common law riparian doctrine assumes an abundant, if not an inexhaustible, water supply such as existed in eighteenth century England. Because the common law riparian doctrine could not meet the development needs of the arid area of western Canada, statutes replicating portions of the USA' prior appropriation system based on a first come, first right doctrine were eventually passed (Percy, 2004, p. 315). Currently, each of Alberta and Saskatchewan have their own statutes enshrining detailed schemas of water rights, priorities, rules of transferability (or non transferability) of interests and conflict resolution procedures. These water laws have continued to change and adapt over time.

In relation to water law in this paper, there is also a variation between the positivist legal institution respecting water law, or the formal legal rules constructed by lawyers, and the same informal rules constructed in resolution of water disputes by legal participants. These informal rules of resolving water issues may reflect the formal legal rules or not (sometimes with participants knowingly in derogation of the legal rules, and sometimes not knowing that their resolution was different than provided for by the formal rules). It is the actual rules effected to resolve water conflict and issues which is the essence of water governance.

Water governance involves many organizations (many formal institutional actors), many institutions (such as water law and the separate but related institution of water policy), and informal institutional settings and actors (such as the rural community and households). Water governance, through this definition, is much broader than the formal legal rules and policies which only experts in various water organizations and lawyers could define with certainty. Water governance comprises of all those institutions and organizations playing a part in the decisions made respecting water quality and quantity. By way of illustration, the research in this paper will show that in the drought of 2001‐2002 water allocations were not made according to the strict legal rules of water allocations, but in accordance with community norms of sharing and reciprocity. In this way, the informal community setting was significant in its role of water governance.

The complex institutional structure of water governance in Canada and the positivist legal rules established by provincial governments lay the foundation for the operation of water governance. The following case studies illustrate the variety and diversity of governance in practice and provide important insight into the adaptive capacity of water law to reduce vulnerability and potential reforms which could be made.

The Institutional Adaptation to Climate Change – project assessed water governance organizations and processes in 2007 in Chile and Canada IACC(2008). This paper is focused on Saskatchewan and Alberta. Information was obtained from multiple sources, including public documents, focus group sessions, and in‐depth interviews with approximately 60 people connected to Saskatchewan and Alberta water governance, including water users, associations, watershed and environmental groups, community representatives, and local, provincial and federal government agencies. Data about several climate variability issues were gathered including: situations of water stress, learnings from past episodes of water stress, mechanisms to support and satisfy water resource needs of rural communities especially during water stress, and legal instruments to facilitate water governance roles. All interviews were transcribed and coded by theme. The following are cases which came to light during these interviews of responses, outcomes and learnings to situations of water stress combined with information obtained from other reports of the IACC project.

In 2001, the lower Southwest corner of Alberta experienced a drought. Legal rules would dictate a system of priority based on first in time license interests. Usually, during years of water shortages regional people with Alberta environment have to advise junior licenses (or last in time licensees) that they need to shut down their pumps and are being cut off. In the St Mary's river in 2001 there was a severe water shortage which was going to allow only six or seven licenses to operate. Stop orders would have had to be issued on 500‐600 licenses. This could have dried up the river. The sharing provisions which were put into the Alberta water statute between 1993 and 1996 allowed two licenses to share water back and forth (if physically possible) as long as no other licensee complains that it is hurting their right.

Irrigation districts sent out letters to their licensees and held meetings to discuss water shortages. A smaller percentage of water allocation for each license was agreed on (approximately 60 percent). However, because irrigators and other uses of water could not meet their agricultural or business needs with this smaller allocation of water, novel arrangements were made. Farmers transferred their allocation to another farmer in exchange for agreed upon consideration which allowed at least one farmer to irrigate and obtain a crop that year. Approximately, 70 licensees did not agree to the sharing arrangement and received stop orders as a result. The actual water allocations agreed upon during this time were significantly different than those provided for in the formal institution of water law (first in time, first in right). Partly, due to social relationships of communication and trust and partly due to flexible water governance mechanisms, a more beneficial outcome was negotiated in response to the water shortage.

The Oldman Dam conflict is a classic dispute regarding the building of a dam in Alberta in the late 1980s and its failed opposition by indigenous peoples (the Piegan Indian Band) and environmentalists (Daschuk and Marchildon, 2006). Politicians and water agencies took the lead and managed to end run the Alberta Environmental Assessment Guidelines, the Province of Alberta issued itself a license to build the dam, and the Cabinet worked around in stream flow policy in the “public interest” in order to allow the promised quantity of water to irrigators (Glenn, 1999, p. 130). Once the matter was in the court system the behaviour of the two governments was to deny access to information, and refuse to comment publicly because of the court proceedings effectively ending public debate. Both of these actions are contrary to a government's elected mandate.

This case illustrates that it is futile to look to the courts to protect the environment (Glenn, 1999, p. 273) and governments continue to treat indigenous people unfairly (Glenn, 1999, p. 275) thus further marginalizing them. A research project which was part of the IACC project revisited the Oldman Dam conflict and concluded that as a result of this conflict improvements have been made to the procedure for approving such development projects which involve stakeholders in more meaningful and extensive consultations (Rojas et al., 2008). However, this conflict resulted in an increase to the vulnerability of the Pickani people by exacerbating divisions in their community over values and priorities (Rojas et al., 2008).

The Blood Tribe Indian Reservation is located in the Southwest corner of Alberta and comprised of 349.295 acres covering 545.8 square miles in the heart of Blackfoot territory (Magzul and Rojas, 2006). The Blood Tribe is comprised of 9,000‐10,000 members but less than half live on the reserve. The Blood Tribe operates many businesses but the main one is the Kainai Agri‐business Corporation which is the agricultural arm of the reserve. About 20,000 acres of the reserve are irrigated in the northeast corner of the reserve. The corporation also runs a feedlot and has stock initiatives (Magzul and Rojas, 2006).

During the droughts of 2001 and 2002 in the SSRB, the Blood Tribe did not decrease their water intake from the river(s). The Blood Tribe does not acknowledge the provincial water allocation system of Alberta. They would not have respected a provincial enforcement order to suspend their intake, nor did they participate in the voluntary agreement described in the previous section relating to St Mary's 2001. The Blood Tribe do not deal with provincial governments, only the federal government and believe that, as their reserve is surrounded on three sides by water (the rivers), they own the water to the middle of the water course. This opinion, although perhaps contentious or believed incorrect by some, is reasonable when considering the historical development of Canadian law.

Because of Canada's colonial development, Indian reservations are not governed in the same manner as provincial lands surrounding them. Historically, Aboriginal peoples were within the jurisdiction of the federal government, not the provincial governments. The federal government established through federal legislation, the Indian Act, R.S.C. 1985, c. I‐5, Indian “Bands” and their mechanisms of governance and establishment of reserve lands. Indian reserves, and Indians, have been held not to be an “enclave” of federal jurisdiction^[1] (Lysyk, 1967). The general rule is that provincial laws do not apply to Indians and land reserved for the Indians. However, there are exceptions for matters with only incidental effects (Hogg, 2002, p. 586). For the most part, provincial legislation dealing with land on reserve and incidentally water, will not apply (Hurlbert, 2006). As a result, provincial laws dealing with priorities and enforcement of provincial environmental and water laws may be unenforceable on reserve land.

This case study illustrates the power of Indians on reserve land because of their unique position in law. However, in other water conflicts the occupation of a separate place may not play out as advantageously, as illustrated in the Oldman Dam conflict. If a reserve were downstream of irrigators, the natural system may have rendered the special place of the reservation ineffective. This had important implications for a meaningful involvement of aboriginal people in water governance.

An example of an effective upstream geophysical water priority effecting water governance differently than that envisioned in the formal institution of water law occurred in Saskatchewan in the Swift Creek shortage of 1988. In 1988, the Swift Current Creek, one of the main Saskatchewan tributaries into the SSRB ran dry. This creek is fed by snow pack in the Cypress Hills located in the Southwest corner of Saskatchewan and because of low snow pack that year suffered drought. Licensed Saskatchewan water users along that creek experienced water shortages. The licensed users shorted were those downstream. Upstream users were able to withdraw water. As such, priority was based on geographical and environmental determinants, not first in time, first in right uses. This area did not experience water shortages in the 2001 time frame because of the abundance of snow pack in the Cypress Hills.

Now the Swift Current Watershed Stewards group has been formed (not due to this specific drought, but other water quality issues along the Swift Current Creek). It is anticipated that this organization might be a forum to help alleviate a year of water shortage such as 1988 and provide a more equitable solution to water shortages.

Climate is the initiating factor of all of these case studies dealing with water shortage and was also the historical impetus for the modifications to water law in Saskatchewan and Alberta by government through the late nineteenth and twentieth centuries. Given increased periods of water scarcity are anticipated with climate change (but when exactly they occur cannot be predicted) and more extreme weather events and increased climatic uncertainty is also expected (Sauchyn et al., 2002; Lapp et al., 2009), this is increasingly an important area of study. The case studies relating to droughts (St Mary's, Blood Tribe, Swift Current, 1988) are relatively recent examples of climate variability and provide important learning for reducing vulnerability and responding effectively to increasing climate variability in the future. These case studies provide five important lessons.

These case studies illustrate that regional responses to climate and water shortage are not necessarily consistent with the boundaries of a river basin but relate to other features such as local government boundaries. The St Mary's case study related to a group of water interests situated in Alberta in close enough proximity to one another to enter into the sharing arrangement discussed. It did not apply to the same river basin suffering shortages in Saskatchewan (a neighbouring province). This is consistent with findings in other studies in Europe (Moss, 2008).

These cases also show that formal legal rules, the resolution of which often requires lengthy court processes, were not resorted to, presumably given the short advance notice of water shortage. Because of this short notice, response to shortages must occur over the space of several days or weeks. This requires flexible, quickly accessible institutions of water governance for responding to water shortages. These institutions are not so much deterministic institutions (as formal legal rules would be) but facilitative of adaptation processes and decision making for optimization of results.

Although law is often regarded as the determining factor in times of competing water interests, these cases show that this is not always the case (in fact was not the case in any of the identified case studies). Other factors of importance in determining the outcome of water shortage due to climate include the geophysical property of the natural resource of water and the institutional mechanisms allowing the creative and optimal resolution of conflict. These are important areas of focus for policy makers. This is consistent with previous literature respecting institutional adaptation to climate change (IISD, 2006; Brooks, 2002).

Variability in resolution of conflicts in legal institutions in water governance would be argued by some to reflect lack of certainty and increase risk of conflict and protracted legal disputes. However, in the field of adapting to climate change and variability, this diversity of water conflict resolution in the cases of St Mary's, and the Blood Tribe is cause for some optimism. The St Mary's case illustrates a novel solution for water shortages able to optimize the water resource through consensus of parties for water sharing and not strict enforcement of first in time water rights. The Blood Tribe case illustrates an optimal solution for these Aboriginal people and reflects the special place of Aboriginal peoples in Canada. These cases also illustrate very important features of adaptive capacity critical for responding to climate variability and climate change: well‐established decision‐making frameworks and processes, grassroots civic engagement, and subsidiarity or integrated decision making.

Adaptive capacity requires flexibility of institutions to deal with the unanticipated conditions that may result from the impacts of climate change. In respect of governance, the role of institutions includes implementing an enabling environment that allows civil society to deal successfully with the challenges of climate change and applying specific policies (resource mobilization and allocation and incentives and disincentives). Adaptive capacity, to be successful, must allow for the identification and resolution of communities' problems and the satisfaction of their needs in a fair, efficient and sustainable manner. Thus, the fundamental contribution of governance to reducing the vulnerabilities of people rests on its ability to anticipate problems and to manage risk and challenges in a way that balances social, economic, and natural interests (IPCC, 2007). This entails a well‐established decision‐making framework and process involving grassroots civic engagement. This is not the same as a rigid, positivist framework of water law only requiring dissemination to the constituents affected by it. The St Mary's case study evidenced a flexible responsive decision framework successful in quickly responding to the 2001 drought in a manner allowing the efficient allocation of water priorities maximizing economic return. This was done within a very short time period of a few weeks; a solution the institution of formal water law arbitrated by courts could not offer.

The second element of this pluralistic water law and governance institutional framework illustrated by these case studies is that of subsidiarity or integrated decision making. Subsidiarity and decentralization, or delegation of responsibility and authority of water management to the lowest feasible level involves managing surface waters at the catchment's level with involvement of all stakeholders (WWCWAU, 2003; Brooks, 2002). Decentralization and subsidiarity is important for two main reasons:

• 1.

  Decentralized management decisions and planning allows for local community practices and values which are then adopted and embraced in practice. Community participation ensures community commitment.

• 2.

  Decentralization also allows a three part economic analysis which incorporates externalities which might otherwise be lost in the cost‐benefit analysis: a conventional top down economic perspective reflects prices paid and relative values of inputs and outputs; a bottom up perspective that reflects the true value to the community and its residents of what might be otherwise marginal resources to outsiders; and lastly a sideways interaction of economic interventions with non economic values such as health benefits from improved water quality.

In order to achieve the goal of subsidiarity in relation to adaptive capacity, a formulistic positivist set of water laws will only limit and bind grassroots participants and water stakeholders in making water management decisions. Consequently, water management decisions will be very diverse (or inconsistent perhaps) if made embracing the three features: well‐established decision‐making frameworks and processes, grassroots civic engagement, and subsidiarity. The St Mary's 2001 drought also illustrates this principle. The constituent parties were able to arrive at an agreement reflecting their values, including economic values with very little advance notice, in a time of water shortage. Although traditional water priorities existing in Alberta may have to be retained for commercial reasons (such as certainty) the legal institutions such as the courts take months if not years to resolve water conflict. Flexible institutions facilitating adaptive practice are important for adaptive water governance in order to respond to water shortage on short notice as is predicted in relation to climate change.

Important policy implications also arise from the Oldman Dam Blood Tribe Conflict and Blood Tribe Indian Reservation cases. These case studies show an exclusion of Aboriginal voices from the grassroots civic engagement and decision making frameworks. The Oldman Dam conflict case study research confirms and illustrates how failing to adequately integrate these voices and their relegation to expensive time consuming and lengthy court challenge further marginalizes these voices (Rojas, 2008). It is still not too late for corrections to water governance and ultimately law to occur. The development of adaptive capacity requires the participation of all members of a community in a manner balancing social, economic, and natural interests. Although these case studies illustrate the emergence in water governance of important practices facilitating adaptive capacity, measures in policy and law need to be implemented to ensure the meaningful participation of marginalized voices, specifically Aboriginal and environmental. Changing laws to ensure this participation and meaningful engagement should be a priority.

With the exception of the Swift Current Creek and Oldman Dam River Conflict cases, the cases discovered in this research project illustrate flexibility and civic engagement for the resolution of water conflicts. It is these characteristics which are important for reducing vulnerability and promoting resiliency in adapting to climate change. Community resolution of water conflict allows for community commitment to result and the incorporation by the community of important considerations both socially and economically into decisions. What might be determined to be scattered fragmented water governance, on careful examination, is really an important development in water governance in adaptation to climate variability and change. Facilitating this somewhat messy institutional process of dialogue in water governance will be important.

Climate change in the SSRB is expected to result in drier conditions with increasing climatic uncertainty (Sauchyn et al., 2002). Because of increased scarcity, more water conflicts and pressure on balancing water interests for development is expected. These case studies show positive aspects of water governance and institutional capacity in responding to this climate change in the SSRB to reduce vulnerability of people and adapt to these conditions with ingenious solutions such as occurred in St Mary's in 2001.

However, attention needs to be paid to nurturing the flexible institutions that allowed these creative solutions to occur and building on and expanding this institutional strength. The obstacle of geo physical barriers to such solutions (which incent upstream priority regardless of both legal priority and optimal economic solution) needs to be tackled so situations such as what occurred in Swift Current in 1988 can be prevented. Institutions of governance must be available and flexible due to climate variability and the fact that water shortages occur in an unpredictable pattern from year to year with very little notice. The time frame of this variability does not allow for the long, protracted resolution of water interests pursuant to legal means such as courts (which take months if not years).

Lastly, the absence of effective participation by Aboriginal people needs to be remedied. Their exclusion from the important institutional process of water governance and adaptation as found in St Mary's and their marginalization evidenced in the Oldman Dam conflict, does not reflect the diverse, just, inclusive country Canada holds itself out to be.

Margot Hurlbert is jointly appointed in the Department of Justice Studies and Department of Sociology and Social Studies at the University of Regina. She researches in the area of adaptation to climate change, governance and environmental justice. Margot Hurlbert can be contacted at: margot.hurlbert@uregina.ca