Finding a Place for Glaciers Within Environmental Law: An Analysis of Ambiguous Legislation and Impractical Common Law

• Author: Jennifer Cox
• Position: Is a 2016 JD Candidate at the University of Calgary
• Pages: 21-36

APPEALVOLUME 21

n

21

ARTICLE

FINDING A PLACE FOR GLACIERS WITHIN

ENVIRONMENTAL LAW: AN ANALYSIS

OF AMBIGUOUS LEGISLATION AND

IMPRACTICAL COMMON LAW

Jennifer Cox*

CITED: (2016) 21 Appeal 21

INTRODUCTION

Alberta is home to over 700 glaciers.1 ese glaciers, all found in t he Rocky Mountains,

are originating sources to ve of Alberta’s seven major river basins, including all of

the rivers that run through Calgary, Edmonton, Red Deer, Medicine Hat, and Fort

McMurray.2 Many of these glaciers a re also located within national a nd provincial parks

and attract tens of thousands of visitors per year.3 It is surprising to discover, then, that

there is no legislation, either at the provincia l or federal level, that explicitly regulates or

protects Alberta’s glaciers.

e aim of this article is three-fold. First, it explores why glaciers are of sui generis

character and should be aorded a specic legal status unto themselves. It argues that

the unique circumstances of glaciers mean that they cannot be fully contemplated

under other legislation. Second, it examines the provincial, federal, and international

laws that could provide guidance to the legal status of glaciers in Alberta. It concludes

that neither Albertan nor Canadian law are sucient to cover the sui generis nature of

glaciers, and that the relevant international law has no application in Alberta. ird, it

uses case studies from other jurisdictions to suggest a legal regime for Alberta’s glaciers.

is article concludes t hat, like Argentina, Chile, and Kyrg yzstan, Alberta and Ca nada

should draft legislation on the specic matter of glaciers. Although other jurisdictions,

such as British Columbia, have incorporated glaciers in their current legislation, this

article arg ues that their approach cannot capture a ll of the realities of glaciers, including

their role as “water towers,” their intrinsic value as a public good, and their marketable

value as a tourist att raction.

* Jennifer Cox is a 2016 JD Candidate at the Universit y of Calgary. She will begin her art icles with

Kelly Santini LLP in Ottawa i n July 2016. She wrote this paper for her Water Law course, and

would like to thank Professor Olsz ynski for his help and guidance wh ile writing it.

1 Alberta Water Portal, “Learn: Area and Num ber of Glaciers in Alberta”, Alber ta Water Portal,

online:

and-number-of-glaciers-in-alberta> archived at [AWP: Number

of Glaciers].

2 Ibid.

3 John J Clague, Brian Menounos & Roger Wheate, “C anadian Rockies and Coast Mounta ins of

Canada” in Vijay P Singh, Pratap Sing h & Umesh K Haritashya, eds, Encyclope dia of Snow, Ice and

Glaciers (London: Consultant Goldhawk Information, 2012) at 108.

22

n

APPEALVOLUME 21

I. WHY HAVE A LEGAL REGIME FOR GLACIERS?

A. Alberta’s Glaciers

Glaciers can be loosely dened as solid masses of snow, ice, and water that collect

precipitation in the winter, but do not disappear in the sum mer. In Alberta, t here are an

estimated 741 glaciers that cover a surface area of 791.4 square kilometres.4 Fourteen of

these glaciers are between 10 and 40 square kilometers, and 378 of them are between

0.1 and 0.5 square kilometres.5 ese numbers, however, are always subject to c hange as

glaciers around the world, including in Alberta, are constantly retreating, fragmenting,

and re-forming. As such, it is impo ssible to ever say exactly how many glaciers exis t, how

much they contribute to the freshwater sy stem, or how long it will be until they disappea r

completely. Due to the uid lives of glaciers, this a rticle assumes that glaciers a re located

in national park s, provincial park s, and in unprotected areas.6

While glaciers serve multiple purposes, this paper focuses on three major services they

provide to the human population. First, t hey serve as “water towers”7 that store the vast

majority of the world’s fresh water.8 Second, they hold intrin sic value in their contribution

to the environment and to scientic study.9 ird, they hold economic value in terms

of touristic and scientic development.10 While there are dierent ty pes of glaciers, this

article focuse s exclusively on the type in Alberta : alpine glaciers.

B. Threats to Glaciers

e greatest threat to A lberta’s glaciers is, without a doubt, climate ch ange. Climate cha nge

has resulted in an alarming rate of glacial melt around the world and Alberta’s glaciers

are no exception.11 Between 1985 and 2005, Albert a lost 25 percent of its glaciated area .

e Athabasca Gl acier, one of Alberta’s largest glaciers, retre ats by 5 metres every year.12

4 AWP: Number of Glaciers, supra no te 1.

5 Ibid.

6 This is supported by the limited maps availabl e. The only map that the author could loc ate

was in C Simon L Ommanney, “Glaciers of N orth America-Gla ciers of Canada: Glaciers of the

Canadian Rockies”in Richard S Williams Jr & Jan e G Ferrigno, eds, Satellite Image Atlas of Glaciers

of the World: US Geological Survey Profession al Paper 1386-J-1 (Denver: USGS Information Services)

at J204 [Ommanney].

7 Jakub Kronenberg, “Linking Ecologi cal Economics and Political Ecology to Stu dy Mining,

Glaciers and Global Warm ing” (2013) 23 Environ Policy Governance 75 at 78 [Kronenberg];

Martin Beniston, Mar kus Stoel & Margot Hill, “Impact s of Climate Change on Water and Natural

Hazards in the Alps: Can Current Water G overnance Cope with Future Challenges? Examp les

from the European ‘ACQWA’ Project” (2011) 14 Environ Sci Policy 734 at 734; Michael Butl er,

“Glaciers- Object s of Law and International Treaties” (2007) 3 Alpine Space -Man & Environment

19 at 27 [Butler].

8 AWP: Number of Glaciers, supra note 1; S Solomon et al, Contribution o f Working Group I to the

Fourth Assessment Report of the Intergovernmental Panel on Climate Change, 2007 (Cambridge:

Cambridge Universit y Press, 2007) at 341.

9 Kronenberg, supra note 7 at 78.

10Ibid.

11Alexander Gillespie, Climate Change, Ozone Depletion and Air Pollution: Legal Commentaries with

Policy and Science Considerations, (Leiden, the Netherlands: Martinus Nijho Publishers, 2006)

at 117-8; Alberta Water Portal , “Learn: Climate Change Model Scenari os and Glacier Projections”

Alberta Water Portal, online: <http://albertawater.com/glaciers/climate-model-scenarios-and-

glacier-projections> archived at .

12Alberta Water Portal, “Learn: Inve ntory of Glaciers in the Canadian R ockies” Alberta Water Portal,

online: .com/glaciers/inventory-of-glaciers-in-the-canadian-rockies>; The

Canadian Press, “Athabasca Glacier cou ld disappear within a generation , says manager,” CBC

News (25 May 2014),online: calgary/athabasca-glacier-could-

disappear-within-generation-says-manager-1.2653641> archived at <https://perma.cc/K3YJ-

L58Z>.

APPEALVOLUME 21

n

23

As the glaciers melt, their ability to be “water towers” also diminishes. By 2100,

scientists predict that up to 90 percent of the Rocky Mountains’ current glaciers will

have disappeared.13 When these glaciers disappear, so too will a substantial amount of

Alberta’s water supply.

Glacial melting not only threatens freshwater supply, but it also raises the possibility of

Glacial Outburst Floods (“GLOFs”).14 Although GLOFs have not yet been an issue in

Alberta, they have caused wide-scale ooding in the Himalayas.15 As climate change

causes glaciers to c ontinually melt, GLOFs could become a problem for Alber ta.

Climate change i s not the only threat to glaciers; development (both for mining and for

tourism) also poses a large risk. Mining development in Asia and South America16 has

damaged glaciers where high alpine mining has resulted in glacial removal and

degradation. Moreover, mining development that is si mply near glaciers has been shown

to lead to quicker melting and decreased water quality.17 Although mining has not yet

been a threat to Alber ta’s glaciers, it could be in the future. Touristic development, on the

other hand, has already become an issue for Alberta’s glaciers, and some environmental

groups have advocated for greater protection for t hese glaciers in order to prevent further

development.18

C. Glaciers and Droughts in Alberta

Alberta’s glaciers hold an estimated 47 cubic kilometres of freshwater.19 at means

that the water in Alberta’s glaciers could support Canada’s entire domestic water use

for 11 years.20 Alberta’s glaciers are a major source of fre shwater for Alberta, particula rly

in years of drought.21 Five of Alberta’s seven major river systems originate in Alberta’s

glaciers and they del iver water to Calgary, Edmonton, Red Deer, Medicine Hat, and Fort

McMurray.22 Many of these rivers, including the Bow and Red Deer rivers, go through

Palliser’s Triangle, a notoriously dry region of Alberta, Saskatchewan, and Manitoba.23

13“Western Canada to lose 70 percent of glacier s by 2100,” UBC News (6 April 2015), online:

news.ubc.ca/2015/04/06/western-canada-to-lose-70-per-cent-of-glaciers-by-2100/> archived at

//perma.cc/8GQU-CLQZ>.

14Roda Verheyen, Climate Change Damage and International Law: Prevention Duties and State

Responsibility (Leiden, the Netherlands: Martinus Nijho Publishers, 2005) at 280-281 [Verheyen].

15Ibid at 180-3. For instance, there w ere major GLOFs in Nepal in 1985 and in Bhutan in 1994. Over

200 glacial lakes currently po se a threat to communities in the Himalayas. Se e generally Jack

D Ives, Rajendra B Shrestha & Pra deep K Mool, Formation of Glacial Lakes in the H indu Kush-

Himalayas and GLOF Risk Assessment (Kathmandu: International Centre for Integrated Mountain

Development, 2010).

16 Kronenberg, supra note 7 at 75-76.

17Ibid at 81.

18Canadian Parks and Wilderness Socie ty, Special CPAWS Report: Commercial Development

Threatens Canada’s National Parks (Ott awa: Canadian Parks and Wildern ess Society, 2015) [CPAWS

Repor t].

19Alberta Water Portal, “Learn: Gla cier Volumes in Alberta”, Alberta Water Portal, online:

albertawater.com/glaciers/inventory-of-glaciers-in-the-canadian-rockies/glacier-volumes-in-

alberta> archived at [AWP: Glacier Volumes].

20Base d on a calculation of the average perso n consuming 329 litres per day and the current

population of 35.54 million p eople. “Wise Water Use,” Environment Canada, online:

www.ec.gc.ca/eau-water/default.asp?lang=en&n=00EEE0E6-1> archived at

cc/4BET-D7TV>; “Population by year, province and te rritory”, Statistics Canada, online:

www.statcan.gc.ca/tables-tableaux/sum-som/l01/cst01/demo02a-eng.htm> archived at

rma.cc/H32U-H9X8>.

21Government of Alberta, Facts about Water in Alb erta (Edmonton: Alberta Enviro nment

Information Centre, 2010)at 6 [Alberta: Water Facts].

22AWP: Number of G laciers, supra note 1; AWP: Glacier Volumes, sup ra note 19.

23AWP: Glacier Volume s, supra note 19.

24

n

APPEALVOLUME 21

As climate change causes more glaciers to melt, this region will become substantially

drier,24 a nd issues over priority access to the remainin g water supply will arise .

D. Glaciers and Legal Status

In early 2015, the National Aeronautics and Space Administration predicted that

western North America, particularly the United States, would face a “mega-drought.”25

If this occu rs, and if Palliser’s Triangle is aected by it, then con icts over water, whether

regional or international, w ill follow. To imagine that glacia l water would be outside this

conict is naïve. As more droughts are expected, and as Alberta’s population continues

to grow, several important questions ne ed to be answered.

As glaciers retreat and their incredible water storage is used up, who gets priority to

the water? What happens to the riparian rights downstream when the primary source

disappears? Who can tourist companies and national parks sue when one of their main

attractions disappear? What if precious minerals, such as gold or copper, are discovered

underneath Alber ta’s glaciers? Who has ri ghts to glaciers? Is there a right to glaciers? Ca n

glaciers be removed and sold? If so, who gets the prots?26 What happens to borders,

provincial or international, when t he glaciers that dierentiate them melt?27 Who w ill be

liable in the case of a GLOF?

As argued below, Canada’s laws do not contemplate the role of glaciers and currently

cannot provide answers to many of these questions. Canada and Alberta need a legal

regime to tackle these issues in order to prepare for the eects of droughts and climate

change.

E. G laciers as sui generis

e above questions cannot be answered merely by mapping glaciers onto the current

legal regime of environmenta l and water rights. To do so would be to ignore the unique

realities of glaciers, both in terms of their geographical specicities and their threefold

importance to the public: intr insic value, marketable value, and as a source of w ater.

Instead, this article argues that glaciers are of a sui generis nature and require their own

body of law. Glaciers support intricate eco-systems that regulate stream ow, provide a

historical story of the earth that is literally frozen in time, and contribute to the stable

regulation of the environment.28 ere are no other geographical features in the world

that share thes e same attributes. Simply mapping glaciers onto the current envi ronmental

or water law regime would fail to capture their complex role. is reality has become

24Fo r an in-depth examination of the ro le of glaciers in Saskatchewan, se e Laura Elizabeth

Lamplugh Comeau, Glacier Contribution to the North a nd South Saskatchewan Rivers (MSc Thesis,

University of Saskatche wan, Department of Geogr aphy, 2008) [unpublished].

25Benjamin I Co ok, Toby R Ault & Jason E Smerdon, “Unprecedente d 21st Century Drought Risk in

the American Southwest an d Central Plains” (12 February 2015) Science Advances, online:

advances.sciencemag.org/content/1/1/e1400082> archived at <https://perma.cc/5KUD-MAZR>.

26“Gre enland to Sell Bottled Water from Me lting Glaciers”, Time, online:

com/time/video/player/0,32068,52260545001_1947480,00.html>; Kristen French, “Mining a

Norwegian Glacier f or Luxury Ice Cubes”, (26 February 2015), Glacier Hub (blog), online:

glacierhub.org/2015/02/26/mining-a-norwegian-glacier-for-luxur y-ice-cubes/> archived at

; “Svaice: The World’s Most Wanted Icecube”, Svaice, o nline:

.

27In 20 07 a dispute arose between Italy and Sw itzerland over the retreat of a borde r-dening

glacier. Although the dispute was amic able and quickly resolved, it de monstrated the potential

for glacier-caused dispu tes.

28 Kronenberg, supra note 7 at 78. See gener ally Johannes Oerlemans, Glaciers and Climate Change

(Lisse, the Netherlands: A A Bal kema Publishers, 2001).

APPEALVOLUME 21

n

25

more obvious over time, and water scholars around the world have also called for the

recognition of the sui generis nature of glaciers.29 Moreover, there is precedence for

recognizing d ierent sources of freshwater as being sui generis.

Groundwater, for example, is a unique form of water storage that has been aorded

its own body of law. e courts recognized groundwater’s sui generis nature and thus

came up with a specic c ommon law system related to it.30 e Alberta government also

recognized this and explicitly added groundwater to its regulatory scheme within the

Water Act .31Even though the denition of “water” in the Water Act includes “all water

on or under the surface of the g round,”32 “groundwater” still has its own de nition.33

Icebergs are another example. Icebergs are large chunks of ice which have calved from

Arctic or Anta rctic glaciers and oat in international and n ational waters until they melt.

While there is lit tle clarity on exactly what law applies to iceber gs, there is consensus on

the fact that icebergs do not t within the current system of public international law.34

Although there is currently no answer, it is evident that however the law settles, it will

have to pull from the unique realities of icebergs, rather than from the law that a lready

exists.35

With these examples i n mind, the geographically unique feat ures of glaciers bring rise to

the necessity of recog nizing them as a sui generis a rea of law in need of specic protection.

e next section of this a rticle explores whether the provincial, nationa l, or international

laws of Alberta a re up to the task.

II. PROVINCIAL, FEDERAL, AND INTERNATIONAL LAWS ON

GLACIERS

After esta blishing that glaciers a re of sui generis nature, the question t hen turns to whether

and how they are protected with in the Canadian legal s ystem. is section will exa mine

the eect of provincial and national laws on glaciers as well as the applicability of the

current common law water regime to glaciers. ree types of laws are examined herein:

the provincial water reg ulation, provincial and federal park s statutes, and provincial and

federal climate change statutes and regulations.36 Overall, the author concludes that

glaciers are outside the scope of a ll of these statutes and common law.

29Laure nce Boisson de Chazournes, Fresh Water in International L aw (Oxford: Oxford Unive rsity

Press, 2013) at 44-46 [De Chazournes]; Jorg e Daniel Taillant, “The Human Right . . . to Glaciers?”

(2013) 28 J Environ Law Litig 60 at 62 [Taillant].

30For a full e xamination of this, see Gerard V La For est et al, Water Law in Canada: The Atlantic

Provinces (Ottawa: Information Canada , 1973) [La Forest].

31Water Ac t, RSA 2000, c W-3, s 1(v).

32Ibid, s 1(f).

33Ibid, s 1(v).

34Various approa ches to icebergs have been proposed an d rejected, such as recognizing th em

as res nullius, as shipwrecks, or of the commo n heritage of humankind. De Chaz ournes, supra

note 29 at 39-44; Christo pher C Joyner, “Ice-Covered Re gions in International Law” (1991) 31 Nat

Resour J 213 at 231-232.

35Ibid at 42-44.

36While it is p ossible that other statutes may have an eec t on glaciers, or may be used

to prosecute those who harm gla ciers, these statutes were chose n for their more direct

applicability. For instance, t he Water Act was chosen because in British Col umbia, glaciers

are included in the water regul ation statute. The provincial and nati onal parks statutes were

chosen because many of Albe rta’s glaciers are located within th ese parks. The climate change

legislation was chosen be cause glaciers are strongly ae cted by climate change.

26

n

APPEALVOLUME 21

A. Statutory Law

e word “glacier” appears once in the entirety of Alberta’s legislation,37 in reference to

Glacier Power Ltd within the Dunvegan Hydro Development Act.38 e word “glacial,”

on the other hand, appears in three dierent regulations all referring to glacial uvial

deposits and glacial ll, and not to the glaciers themselves.39 is means that there are

no explicit laws in Alberta that clarify the law on glaciers. e question then turns to

whether there are other laws i n Alberta that might implicitly regu late or protect glaciers.

i. The Water Act

Glaciers could theoretically be within the scope of the Alberta Water Act .40Spec ic all y,

section 1(f) of the Water Act, t he denition of “water,” could be interpreted to include

glaciers.41 is section denes “water” as meaning “all of the water on or under the

surface of the ground , whether in liquid or solid state.”42 In simple terms, glaciers are solid

forms of water. us, if this provision is interpreted broadly and literally, glaciers could

be subject to the Wat er Act.

However, this is an unlikely interpretation of the Water Act for several reasons. First

of all, it would require an overly broad interpretation of the word “solid.” Water, in its

solid form, can be both snow and ice, and glaciers are in fact a mix of snow, ice, and

water. Given that the province owns a ll of the beds underneath waterbodies,43 th is broad

interpretation of the word “solid” would mean t hat the province would own not only all

of the water underneath the glaciers, but also under any part of Alberta that is covered

in snow. Eectively, then, the Alberta government would own all of Alberta, but only

during the winter months. us an interpretation of section 1(fff) that includes snow

would lead to an absurdit y that cannot hold water.

Second, even if this absurdity could be overcome, it is still unlikely that the denition

of “water” would include glaciers due to the principle of noscitur a sociis. e principle

of noscitur a sociis states that where a term in a provision is ambiguous, it should be

interpreted in light of the rest of the statute.44 As the rest of the Water Act is directed at

an extensive water licen sing scheme, and as the glaciers are h igh in the mountains and are

far from cities, roads, a nd even most towns, and thus far from water l icenses, it is unlikely

that the legislatu re intended to include glaciers within the scope of the legislat ion.

Rather, it is far more likely that the word “solid” was included to make it clear that the

Water Act applies to bodies of water regardless of whether they have frozen over the

winter. is interpretation of the Wa ter Act is supported by the water legislation in other

provinces. Several provinces that do not have glaciers have similar or the same wording

37In a Canlii search of the word “glacier,” 53 statutes and regulations came up. Fif ty of these

statues and regulations us e the word to designate a geographical l ocation, a name, or a place.

Only three of these search res ults regulated activities in or a round a glacier, but none of them

have any eect in Albert a. Two come from British Columbia and the one feder al regulation, the

National Parks of Canada Aircraft Access Regulations, SOR/97-150 only prohibits take-os and

landings on particular g laciers in the Yukon and Northwest Territories.

38Dunvegan Hydro Development Act, SA 2009, c D-18.

39Activities Designation Regulation, Al ta Reg 276/2003, s 2(1)(a); Activities Designation Regulation,

Alta Reg 211/1996, s 2(1)(a); Mines Safety Regulation, Alta Reg 292/1995, s 212(2)(g). Both glacial

uvial deposits and glac ial ll refer to the solid rocks and oth er debris that is deposited or

moved by glaciers, but does n ot refer to the ice or water itself.

40Water Act, su pra note 31.

41There is no case law on this provision of the Water Act.

42Water Ac t, supra note 31, s 1(f) [emphasis added].

43Ibid, s 3(2).

44Ruth Sullivan, Statutory Interpretation, 2nd ed (Toronto: Irwin Law, 2007) at 175-178.

APPEALVOLUME 21

n

27

in their legislation. For instance, Manitoba’s Water Protection Act has almost identical

language, and yet, Manitoba has no glaciers.45 Prince Edward Island’s Environmental

Protection Act46refers to “frozen” bodies of water, and the Nova Scotia Water Protection

Act47refers to “ice.” Neither of these provinces have glaciers either. While these words

dier slightly from Alberta’s legislation, they eectively have the same meaning. It is

unlikely, then, that Alberta would have used the same language in order to capture a

completely di erent geographical phenomenon.

is idea receives further credence from the fact that British Columbia, the only other

province whose glaciers substantially contribute to their water supply, recently changed

their water legislation to expl icitly include glaciers. While the pre vious BC Water Act 48did

not have any langua ge of “solid,” “frozen,” or “ice,” it did refer to “source of water supply”

in the denition of “stream.”49 However, in the new legislation, the Water Sustainability

Act,50 the denition of “stream” was expa nded to include glaciers.51While this legislat ion

is not yet in force, it is clear that if glaciers were implicit in the Water Act, then their

addition to the Water Sustainability Act would not have been necessar y.52 Following this

logic, it is unlikely that Alberta’s ambiguous language should be interpreted to include

glaciers.

On the other hand, there are two strong arguments against this conclusion. First, the

Yukon,53 the Northwest Territories,54 and Newfoundland and Labrador,55 all have

glaciers, and al l use the language of “ frozen” in their respective legi slation. Unfortunately,

even if one accepts that a ll of these jurisdictions intended to include glaciers, it does not

get around the problem of noscitur a sociis, nor does it explain why they would use the

same language as several other provinces that do not have glaciers. Moreover, many of

the glaciers in the Yukon, the Northwest Territories, and Newfoundland and Labrador

are arctic rather than alpine glaciers. is means that rather than contributing to the

freshwater supply of the province, many of t heir glaciers melt or calf directly into t he sea.

It is more likely, then, that these provinces neither meant to include nor thought they

included glaciers withi n the purview of their legislation.

e second point for including glaciers within the meaning of “solid” is that if the

denition of “water” in the Alberta Water Act does not include glaciers, then 47 cubic

kilometres of Alberta’s water supply would not be protected or regulated by legislation.

Not only does this seem to be a major oversight on the part of legislature, it seems to be

a counter-productive interpretation of the provision. Despite this, t he dierence between

the langua ge in the Water Act and the realities of glaciers are s o drastic that a mere read-

in of glaciers into the legislation would be merely nominal. It would fail to capture the

important scientic, economic, and water storage qualities of the glaciers. In fact, the

extensive licensing sc heme outlined in the Water Act would have no practical application

on the glaciers to which the y were extended.

45Water Protection Act, CCSM 2005, c W-65, s 1(1).

46Environmental Protection Act, RSPEI 1988, c E-9, s 2(d).

47Water Protection Act, SNS 2000, c 10, s 2(c).

48Water Act, RSBC 1996, c 483, s 1.

49Ibid.

50Bill 18, Water Sustainabilit y Act, 2nd Sess, 40th Parl, Brit ish Columbia, 2014 (assented to 29 May

2014).

51Ibid, s 1(1).

52The re is no Hansard regarding the addition of this word.

53Waters Act, SY 2003, c 19, s 1.

54Waters Act, SNWT 2014, c 18, s 1.

55Water Resources Act, SNL 2002, c W-4.01, s 2(1)(d).

28

n

APPEALVOLUME 21

After weighing the arguments for and against, it is highly unlikely that section 1(f) of

the Water Act does or should include glaciers within its scope. To include glaciers would

not only lead to an absurdity and go against the principle of noscitur a sociis, it would

have no practical ee ct on the management of Alberta’s glaciers. e Alberta Water Act,

then, does not govern glaciers.

ii. National & Provincial Parks

Since many of Albert a’s glaciers can be found in pa rks,56 the Canada National Parks Act57

and the Alberta Provincial Parks Act58 could theoretically provide clarity to the issue of

the legal regime su rrounding glaciers. Unfortunately, however, they provide little.

Both the Provincial Parks Act and the Canada National Parks Act have a dual mandate

to maintain the enjoyment and benets to human populations while ensuring that the

landscape remains unimpaired for future generations.59 While this dual mandate may

implicitly cover glaciers, they do not explicitly mention them. Despite their silence on

the issue, these statutes oer glaciers a layer of protection that they would otherwise

not have. Because so many glaciers are found in national and provincial parks, mining

development nearby has been a moot point. Moreover, in both statutes, 60 the parks have

the power to remove recreational users who are causing harm to any part of the park,

including the glaciers. However, the types of activities that occur in parks generally

have only the potential to do minimal damage. At worst, someone could leave trash or

drop gasoline on the glacier. ese relatively minor issues are not the types of conicts

that warrant the development of a specic legal regime. A s mentioned above, the major

threats to glaciers are climate change and mining development, neither of which are

contemplated in these statutes.

Luckily, these statutes bring one point of clarity. GLOFs are one of the major threats

that melting glaciers p ose to human populations. GLOFs occur when high a lpine glacial

meltwater lakes burst over their banks and send large volumes of water shooting down

the mountain.61 While GLOFs have not been a problem in the Rocky Mountains, t hey

have caused a great deal of damage in the Himalayas.62 Should a GLOF occur on a

glacier within a provincial or national park, the respective level of government could

be liable for any human damage that follows, particularly if the GLOF resulted from

negligent maintenanc e of the glacier, or from failing to inform the public of the thre at of

a GLOF. While liability would depend on the precise situation, parks should be aware

of the possibilities of GLOFs and should mitig ate any potential damage that they m ight

cause. If they fail to either identify or mitigate these GLOFs, it is likely that the parks

would be liable.

Overall, neither the Provincial Parks Act nor the Canada National Parks clarif y the legal

regime of glaciers. While they do provide a layer of protection for the glaciers, and oer

a solution for liability in the case of a GLOF, they do not answer questions of who gets

priority when the glaciers melt, whether the glaciers are a public good, or whether there

is a right to glaciers. In su m, these statutes a re of limited use.

56 Ommanney, supra note 6 at J204.

57Canada National Parks Act, SC 20 00, c 32 [National].

58 Provincial Parks Act, RSA 2000, c P-35 [Provincial].

59Provincial, ibid, s 3; National, supra note 57, s 4(1).

60Provincial, ibid, ss 17-24; National, ibid, ss 18-22, 32.

61 Verheyen, supra note 14 at 281.

62Ibid at 280-291.

APPEALVOLUME 21

n

29

iii. Climate Change Legislation

One might think that federal and provincial laws on climate change might regulate or

protect glaciers. Unfortun ately, this is not the case. Although the e ects of climate change

can be readily perceived on the world’s glaciers, and climate change is currently the

biggest threat to g laciers, neither provincial nor federal climate c hange laws or regulations

mention glaciers. Rather, they are d irected at reducing greenhouse gas emis sions.63

Importantly, these laws are incapable of addressing the eects of climate change on

Alberta’s glaciers, and thus on the changing realities of Alberta’s water supply. is

impotence means that the current climate change legislation in Canada falls short of

providing any clari cation in regards to the law around glaciers .

B. Common Law

Since statutory law provides mi nimal guidance, one should inste ad turn to the common

law. In the common law, several types of rights arise in regards to water and its use.

According to a CanLII search, there is no common law pertaining to rights to glaciers

(per se)or to the application of common law water rights to glaciers. As Canada’s

common law came from Engl and, and as glaciers are not a par t of England’s geographical

landscape, this is not surprising. However, the common law can provide a lens through

which to evaluate whet her there is room for glaciers within the common law water ri ghts.

is section will examine common law riparian rights in the context of glaciers. It will

conclude that riparian r ights have no practical applicabilit y in the context of glaciers, and

thus are unli kely to be extended to glaciers.

i. Riparian Rights

Riparian rights are the rights arising out of owning land adjacent to bodies of water

and riparian owners have the right to take and use water for ordinary personal use.64 If

either the quantity or qual ity of the water is interfered with by an upstrea m user, riparian

proprietors can gain a n injunction and obtain da mages.65

It would be dicult to apply riparian rights to glaciers for several reasons. First, people

do not live along alpine glaciers in the same way that people live along rivers and lakes.

Alpine glaciers in Canada are tucked away in the mountains and are far from cities,

agricultura l development, and, in almost every c ase, roads. e ability to have traditiona l

riparian rights is then limited. Moreover, glaciers shrink and expand every year, so a

home that would be directly at tached to a glacier in the summer may be crushed by t hat

same glacier in the winter. It may be possible to claim that the national and provincial

parks have riparia n rights to these glaciers, but the ordin ary personal use provision would

not apply.

Second, it would be dicult to apply riparian rights to glaciers because of the manner

that water is contained within the glacier. In standard watercourses, water is liquid and

can be collected as a liquid, even in the winter. e water contained within glaciers,

however, is solid year-round and would thus have to be harvested as ice and melted to

be utilized.

63For exa mple, see Climate Change and Emissions Management Act, SA 2003, c C-16.7; Specied Gas

Emitters Regulation, Alta Re g 139/2007; Renewable Fuels Regulation, SOR/201-189.

64Keith v Corry, (1877) 17 NBR 400; La Forest, su pra note 30 at 224.

65KVP Co Ltd v McKie et al, [1949] SCR 698, 4 DLR 497 [KVP]; La Forest, ibid at 214.

30

n

APPEALVOLUME 21

Finally, applying riparian rights to glaciers would be impractical due to the remedies

available to violations of riparian rights. In a standard riparian situation, a riparian

proprietor could sue someone upstream who has interfered with the quantity or qua lity

of the water.66 In a glacial sett ing, however, there are no upstream users and most of the

damage that comes to glaciers arises from climate change. If there are riparian rights

to glaciers, who can the riparian proprietor sue? eoretically there could be multiple

riparian users on the same glaciers, because glaciers store water in a static rather than

fugitive manner, it is unli kely that any noticeable interference would occur.

It is therefore unlikely that the current common law regime of riparian rights would or

could apply to glaciers as there a re no glacial riparian owners, gl acial water is solid rather

than liquid, and the remedies provided to riparian ow ners are impractica l when applied

to glaciers.

After examining the applicable statutes and common law, it is probable that Alberta’s

current legal regime does not account for the realities of glaciers. Rather, there is a

patchwork of laws that tangentially aect glaciers. In statutory law, neither the Wa ter

Act, the Provincial Parks Act, t he Canada National Parks Act , nor the climate change laws

provide any real guidance regarding the legal status of glaciers. Canada’s common law

water rights also do not give clarity as the primary common law water rights, riparian

rights, do not logically apply to gl aciers. In sum, glaciers are outside of Albert a’s statutory

and common law legal sy stems.

C. International Law

While Canada’s domestic law is eectively silent in relation to glaciers, international

law is not.67 Specically, the United Nations Convention on the Law of the Non-

Navigational Uses of International Watercourses (“UN Watercourses Convention”)

includes glaciers with in its denition of “a system of surface and groundwaters.”68 While

the UN Watercourses Convention may concern other parts of Canada, at this time it has

limited applicability to A lberta.

e UN Watercourses Convention was adopted in 1997 as a way to encourage better use

and utilizat ion of international watercourses.69 It is a frame work convention that lets each

country apply and adjust it as deemed ne cessary. Most importantly, the UN Watercourses

Convention adheres to the principle of equitable utilization.70 Equitable utilization

focuses on each State u sing a watercourse in a rea sonable and shared manner.71 As such,

equitable utilization can mean one thing for Canada but a completely dierent one for

India. is means that protection of international watercourses can vary drastically

throughout t he world.

66KVP, ibid; La Forest, ibid.

67T his section focuses exclusive ly on international law that is applicable to C anada. There are

other international treaties , such as the Alpine Convention and the Antarctica Treaty that have

developed more ex tensive legal regimes on glaciers . However, they are not relevant to the

Canadian context and thus are not discussed.

68United Nations Co nvention on the Law of the Non-Navigat ional Uses of International

Watercourses, 21 May 1997, 12 UNTS 52106 art 2(b) (entered into force 17 August 2014) [UN

Watercourses Convention].

69Owen M cIntyre, Environmental Protection of International Watercourses under International Law

(Aldershot: Ashgate Publ ishing Inc, 2007) at 1.

70UN Watercourses Convention, su pra note 68, art 5.

71Ibid; Ibrahim Kaya, Equitable Utilization: the Law of Non-Navigational Uses o f International

Watercourses (Aldershot: A shgate Publishing Inc, 2003) at 89-91.

APPEALVOLUME 21

n

31

While the word “glacier” does not appear in the UN Watercourses Convention it can be

found in the UN provided commenta ry. e commentary to Art icle 2(b) denes “a system

of surface and grou ndwaters” as a hydrological s ystem, which includes glaciers.72 Merely

being in the denition, however, does not mean that the UN Watercourses Convention

actually applie s to all glaciers. Rather, it likely only applies to glacier s that are integral to

the water balance of a n international watercourse.73 An international waterc ourse means

“a watercourse, parts of which are situated in dierent States.”74 According to legal

scholar Laurence Boisson de Chazournes, putting these denitions together in light of

the convention’s prioritization of sharing means that m any glaciers will be excluded from

the statute.75 For instance, glaciers that are not integral or contributing to international

watercourses would not be covered under t his Convention.76

As a result, this law has limited applicability to Alberta’s glaciers. e only place where

it could be applied is in the South Saskatchewan River Basin (“SSRB”), the only river

basin in Alber ta that both crosses into the United States and ha s glaciers.77 As there is no

clear map of all of t he glaciers in Alberta, it is impossible to say whether a ny of the water

in the southernmost tip of the SSR B originates in glaciers and, if it does, whether those

glaciers are integra l to the international watercourse. In sum, whi le international law has

started to contemplate a lega l regime for glaciers, th at regime is particularly narrow a nd

mostly inapplicable to Alber ta.

III. GLACIER LAW CASE STUDIES & RECOMMENDATIONS

FOR ALBERTA

Since domestic law provides minimal clarication in regards to glaciers, and the law of

international watercourse s has little applicability in A lberta, it follows that Alberta’s laws

cannot respond to the sui generis nature of glaciers. Given that Alberta will likely face

water shortages within the next centur y,78 and that glaciers are the originating source of

all of the rivers that run through Alberta’s major cities, it is only a matter of time until

there is a conict over A lberta’s glacial waters. e re al question then is whether it will be

addressed by the legi slature or by the courts.

is article su ggests that Alberta should be proac tive in drafting legislat ion that protects

and denes glaciers , rather than waiting for the matter to g o to the courts. e reason for

this is threefold. First, passing legislation before a conict occurs may help to minimize

opposition to the bill. Once litigation has started there will have been, by denition,

a conict. When there is a conict, it means that there are competing rights, and

therefore more opposition to any bill. Second, passing legislation could give the public

an opportunity to be consulted. No such opportunity will be granted by the courts.79

Finally, legislation on glaciers cou ld be comprehensive, while a court decision will likely

only address the par ticular issue before it. For these three re asons, drafting legi slation on

glaciers is preferable to waiti ng for the courts to decide upon the issue.

72Comment ary on United Nations Convention on the L aw of the Non-Navigational Uses of

International Watercourses, 21 May 1997, 12 UNTS 52106 art 2(b) (entered into force 17 August

2014).

73De Chazournes, sup ra note 29 at 44-45.

74UN Watercourses Convention, supra note 68, ar t 2.

75D e Chazournes, supra note 29 at 44-45.

76See generally Fabienne Quilleré-Maj zoub & Tarek Majzoub, “A qui Protent les Eaux de Glaciers

de Montagne” (2010) 51 Les Cahiers de Droit 69.

77Alber ta: Water Facts, supra note 21 at 8, 14.

78D W Schi ndler & W F Donahue, “An Impending Water Crisis in Canada’s Western Pr airie

Provinces” (2006) 103:19 Proc Natl Acad Sci USA 7210 at 7212-7214.

79Legi slation could subsequently override any com mon law rules imposed by the court s.

32

n

APPEALVOLUME 21

Below are four case studies on the implementation, attempted or realized, of legislation

on glaciers. After examining t hese cases studies, this article will provide suggestions for

what equivalent legislat ion in Alberta should a im to do.

A. Glacier Protection Laws Around the World

Many countries around the world protect glaciers, either as an explicit part of their

environmental protection schemes,80 or, more recently, through specic legislation unto

itself.81 Over the past decade leg islatures around the world real ized that their statute s were

insucient to govern glaciers a nd, some reactively and some proactively, implemented or

proposed legislation that explicitly protects glaciers. In the next subsections, this article

will examine four case studies: Kyrgyzstan, Argentina, Chile, and Switzerland. ese

examples demonstrate the benets of having a proactive legislature and the pitfalls that

come from waiting for a conic t to arise.

i. Kyrgyzstan

In 1992, the Kumtor Gold Company gained approval to start an open pit gold mine

in the Tian Shan Mountains. is region, and specically the mountain on which the

open pit mine operated, is covered with gla ciers. For almost twenty years, Kumtor and its

Canadian oper ator, Centerra, have successfully mined sub stantial amounts of gold, but at

a high environmental cost. From 1994 to 2011 they removed 39 million cubic metres of

glacial ice, dumpe d waste on the glaciers that remained , and potentially caused long-term

water pollution issues in the region.82 In addition, due to the high alpine location of the

mine’s tailings ponds, concerns arose over a tailings pond spill that could pollute waters

all over central Asia. Despite these environmental concerns, the project was extended

beyond its original 2014 end date and will now continue unti l at least 2023.

In 2014, the Kyrgyz Parliament passed the Glacier Law. is law laid out liability for

glacier damag e, prohibited development on glaciers, created an inventory for glaciers ,83 and

was clearly ai med at projects such as Kumtor. Whi le a translated version of the proposed

Kyrgyz legislation could not be obtained, it is clear t hat the law would leave mining and

other forms of industry liable for destruction and damage caused to glaciers at a rate to

be determined by the government.84 is u ncertain liability both deters de velopment on

glaciers and gives the government an incentive to prosecute those who damage glaciers.

Unfortunately, this law has never been signed by the President of Kyrgyzstan and thus

80Peru, Colombia , Austria, Italy, and France are examples of regi ons that have incorporated

glaciers into their other st atutes. See Clare Shine & Cyrille de Klemm, Wetlands , Water, and the

Law: Using Law to Advance Wetland and Conservation and Wise Use: IUCN Enviro nmental Policy and

Law Paper No. 38 (Bonn, Germany: IU CN Environmental Law Centre, 1999).

81See examples of Argentina, Chile, and Kyrgyzstan below.

82 Kronenberg, supra note 7 at 80- 81. Some of the chemicals stored on the glacier have be en

absorbed into the glacier an d may be making their way into the water supply. The e ect on the

water supply will not be know n for many years.

83Henr y Lazenby, “Proposed Kyrgyz ‘Glaci er Law’ Could Impact on Centerra’s Kumtor Mi ne” (25

April 2014), Mining Weekly, online:

kyrgyz-glacier-law-uncertain-on-centerras-kumtor-mine-2014-04-25> archived at

perma.cc/C8UD-Z8DT>.

84Samantha Brleti ch, “Eurasian Heart of Gold: What is th e Impact of Kumtor on Kyrgyzstan’s

Gold Mining Sector?” (22 Januar y 2015), Eurasia Review, online: <http://foreignpolicynews.

org/2015/01/22/eurasian-heart-gold/> archived at ; Lazenby, ibid.

APPEALVOLUME 21

n

33

is not in force. Moreover, even if it were in force, it probably would be unable to stop

the Kumtor project due to the arbitration clauses in the mining contract.85 us, this

important step in protecti ng Asia’s glaciers has been lef t in legal limbo.

ii. Chile

In the early 2000’s, Barr ick Gold began a mining project, Pascua La ma, that takes place

high in the Andes Mountains, right along the Argentine border and in close proximity

to three small g laciers.86 Shortly after the project surveying began, loca l and Indigenous

communities learned of Barrick Gold’s plan to dynamite and remove parts of the small

glaciers in order to access the gold underneath.87 ese communities were outraged and

set out to stop the development. In response to this public outcr y, Barrick Gold changed

course and decided not to remove any part of any glaciers.88 e project has now gone

ahead.89

is incident brought international media attention to the issue of the protection of

Chilean glaciers. For the past several years, there has been substantial international

pressure on the country to put in pla ce legal safegua rds for their glaciers and in part icular

to protect them from mining de velopment. However, due to the country’s dependence on

mining, the de velopment of this law has been slow. Since 2013, several versions of the law

have been proposed and rejected.90 In March 2015 the newest version of the legislation

was proposed.91 e new law allows for automatic protection of any area dened as a

“glacier,” assigns dierent classications to dierent glaciers, and prohibits any activity

that damages a glacier. is multi-layered approach provides extensive protection for

glaciers within national parks (estimated to be 80-85% of Chile’s glaciers), but only

limited protection for all other s.92 Under the proposed legislation, a Council of Min isters

would make decisions regarding glaciers outside of national parks, potentially making

these decisions vu lnerable to extensive lobbying.

85Marke t Wired, “Kyrgyz Parliament Passes L aw on Glacier” (24 April 2014), Market Wired, online:

parliament-passes-law-on-glaciers-tsx-

cg-1903001.htm> archived at .

86 Kronenberg, supra note 7 at 83.

87Ibid.

88Barrick Go ld, “Pascua-Lama Update – Que stions and Answers”, Barrick Gold, online:

web.archive.org/web/20071011105043/http://barrick.com/CorporateResponsibility/Issues/

PascuaLama/PascuaLamabrQA/default.aspx> archived at .

89 Barri ck Gold, “Pascua-Lama FAQs”, Barrick Gold, online: s/

argentina-chile/pascua-lama/faq/default.aspx> archived at . The

project is currently und er suspension for several reasons. O ne of the reasons was resolved in

the Chilean Environmental Cour t on March23, 2015. In 2013, local farmers had sue d Barrick Gold

for causing the three glacier s in question to melt faster due to dust f rom the mining operations.

The court rejecte d the evidence put forward by the s tate scientists and instead followe d the

scientic evidence presented by Barrick Gold. Barrick Gold was held not responsible for damage

done to the three glaciers in qu estions. “Science on Trial at Pascua Lama” (26 March 2015), Glacier

Hub, online: org/2015/03/26/chile-environmental-court-rules-on-scientic-

truth/> archived at .

90Kristen French, “ Will Chile Get its Five-Star Gla cier Law?” (12 March 2015), Glacier Hub, online:

5/03/12/will-chile-get-its-ve- star-glacier-law/> archived at

perma.cc/YW3P-LXUJ>.

91Unfortunately, no translated version of the law could be ob tained. All information about th e law

has come from secondar y sources.

92Ibid.

34

n

APPEALVOLUME 21

iii. Argentina

e Argentine National Glacier Act93 was the rst legislation in the world dedicated to

the protection of glaciers. e legislature enacted the law proactively in response to the

situation in Chile and, compa ratively, it came into eect without much incident. Althoug h

a rst draf t of the legislation was vetoe d in 2008,94 a second version of the law passed in

2010.95 is law takes three important steps in protecting glaciers: it recognizes glaciers

as a public good, creates the National Glacier Inventory, and prohibits development,

specically mining, to occur on glacial or periglacial regions.96 Scientic and touristic

development, however, are allowed on glaciers provided that they do no damage.97

Although the mining industry in Argentina fought the legislation, they were ultimately

unsuccessf ul and the law has been well-received.98 e succes s of the Argentinian Glacier

Protection Law should serve as an e xample for other countries to follow.

iv. Switzerland

Unlike the other case studies in this list, Switzerland has a long history of glacial

regulation. e dierence, though, is that the law is embedded in the Swiss Civil Code

(“SCC”) and is not about protecting glaciers but rather focuses on balancing touristic

development with protection of the scenery that makes that tourism viable.99 e SCC

denes glaciers as objects with no owner, as having soil unsuitable for cultivation, and

as public property for common use.100 is denition of glaciers also includes the land

immediately around the glaciers as well as the point at which the glacial waters enter

streams, rivers, and lakes. Laws over individual glaciers, however, vary from canton to

canton. In some cantons where land tr ansfers occurred in t he 19th or early 20th centuries,

glaciers have been determi ned to be a part of privately owned land.101 In contrast, cour ts

in other cantons have ruled t hat glaciers have never been and could never be par t of land

transfers.102 Interestingly, courts have found that tra nsfers in any canton that were done

before 1800 did not include glaciated area s because prior to that date, these area s had no

useful va lue to landowners.103

Switzerland faced substantial court disputes over glaciers in the late 20th century. is

occurred for two rea sons. First, many cantons and municipalities brought in legislation

limiting development near glaciers, despite the fact that these areas are often popular

for skiing and mountaineering. Private parties and companies have challenged these

laws with varied success. ese private entities want rights and permits to build

infrastructure, such as cable cars, onto and over the glaciated areas. While the laws on

cable cars require them to be environmentally safe, at least one scholar has argued that

the current environmental protections are not strong enough to protect the glaciers.104

Despite this, touristic development continues.

93Arge ntine National Congress, Buenos Aires , 30 September 2010, Argentine National Glacier Act:

Minimum Standards Regime for the Preservation of Glaciers and the Periglacial Environment [ANGA].

94 Taillant, supra note 29 at 62.

95“Medio Ambiente”, InfoLeg, online:

anexos/170000-174999/174117/norma.htm> archived at .

96ANGA, supra note 93, arts 3, 6.

97Ibid, ar t 7.

98 Taillant, supra note 29 at 75-78.

99Other Europ ean countries, such as France and Austria, have simila r provisions in their legislation,

supra note 7 9.

100Swiss C ivil Code, art 66 4.

101One such example of a priva tely owned glacier is the Rhone Glac ier which was determined to be

owned by the Seiler family i n 1936. Butler, supra note 7 at 19.

102Ibid.

103Ibid at 20.

104Ibid at 25.

APPEALVOLUME 21

n

35

Second, due to the rise in popularity of alpine tourism, there have been more glacier-

related accidents. For instance, there was an extended court battle over the 1965 glacier

tragedy in Mattmark. e tragedy occurred in August 1965 when the tongue of the

Allain Gl acier calved from the mountain and fel l directly on top of a construction project

being built underneath it, killing 88 people instantly.105 In addition to infrastructure

hazards, t he courts have also ruled on proper alpine techn ique. ey have come up with

several rules of negligence for glacier and mountaineer guides, such as roping in on a

glacier when the route is part ially or completely covered in snow.106

While Switzerland’s glacier laws may be imperfect, they are quite extensive. Unlike

Kyrgyzstan, Chile, and Argentina, Switzerland ha s used the law to carve out a complex

balancing scheme where glaciers’ economic value, intrinsic value, and “water tower”

value are all contemplated, albeit with a particu lar emphasis on economic development.

is legal regi me stands in stark contrast to Alber ta’s limited laws.

B. Summary Recommendations for Alberta

ese case stud ies provide several lessons for any legislation in A lberta that would protect

its glaciers. First, any Albertan legislation would need to consider the potential mining

development that might occur a round glaciers. While mining de velopment near glaciers

is a problem in other parts of the world, such a s in Chile and Kyrgyzst an, so far, it has not

been an issue in A lberta. However, as the price of oil diminishe s and new types of mining

become more important, protective legislation will become more necessary. e case

studies of Chile and Kyrg yzstan demonstrate t hat it is easier to pass this legisl ation before

any mining ta kes place, not after. us, Alberta shou ld be proactive in establishing these

protection s.

Second, the case studies of Argentina and Switzerland demonstrate the importance of

balancing touri stic development and scientic research with g lacier protection and safety.

is is an important issue for Alberta, as glacier tourism has increased over the past

few decades, particularly on the Athabasca Glacier.107 While Argentina has taken the

approach that any touristic development cannot compromise the health of the glacier,

Switzerland has developed a rigorous regulatory scheme for glacial tourism. Alberta

should emulate these approaches in order to ma ke sure that any future development does

not jeopardize the gla ciers. Like with mining development, however, any action here wil l

be mostly proactive, rather t han reactive.

ird, Alberta should follow the lead of Argentina, Chile, and Kyrgyzstan and begin

drafting legislation that recognizes and is directed at the sui generis nature of glaciers.

is is vital. Merely incorporating glaciers into other e xisting legislation, such as British

Columbia has done, fails to re cognize the multitude of purposes that gl aciers serve.108

Fourth, like in Chile, dierent levels of protection should be aorded to glaciers

depending on their location inside or outside of parks. ese layers of protection will

make sure that while most glaciers are protected extensively, economic development

outside the parks will continue. Within this multi-layered approach, there should be a

base layer of protection for areas identi ed as glaciated.

105Ibid at 2 0-21.

106Ibid at 21.

107CPAWS Repo rt,s upra note 18; Brewster Travel Canada, “Glacier Sk ywalk”, online:

brewster.ca/activities-in-the-rockies/brewster-attractions/glacier-skywalk/#/0> archived at

.

108Given that many of Alberta’s glaci ers are on federal land, the fede ral government would need to

pass a companion law. Without this colla boration, any law that Alberta enac ts would only apply

to a portion of its glaci ers.

36

n

APPEALVOLUME 21

Fifth, and most controversially, a right to glaciers needs to be contemplated. is could

be dealt with either by simply calling glaciers a “public good,” or by developing a more

elaborate rights scheme. e more elaborate scheme could contemplate downstream

priority to the water, whether chunks of gl aciers could be removed and sold, and whether

Albertan s have a higher priority than other Canadia ns to the water in the glaciers.

Contemplating a right to glaciers could also force the government to consider how they

will address f uture water shortages caused by climate change. As glaciers retreat further

each year, it means that eventually they will be unable to provide the same amounts of

water to the freshwater system as they currently do. is will exacerbate droughts and

could likely make Alberta a drier province overall. By contemplating a right to glaciers,

the government could pre-empt this retreat of the water supply and could potentially

better conserve water ow. As cl imate change is the biggest threat f acing glaciers, action

on the right to glaciers should happen a s soon as possible.

Finally, and most importantly, Alberta should not wait for a conict to occu r, be it over

water ownership or over mining development. Not only do conicts mean that the bill

would be more controversial, it would also take longer. e Albertan and Canadian

parliaments should start moving towards this legislation at a time when the political

costs are low. Many of Alberta’s glaciers are located within park s so the push-back from

the mining community can be expected to be minimal. Moreover, this could improve

Canada’s poor environmental reputation. If Alberta and Canada wait, they may face

greater pressures as climate change pushes these issues to the forefront of political

discussion.

CONCLUSION

is article attempts to answer two questions. First, is there currently a legal regime for

glaciers in Alber ta? Second, if not, what should an eective reg ime look like? e answer

to the rst question is almost certainly no. e Water Act, the Provincial Parks Act, the

Canada National Parks Act, and climate change laws do not provide any real guidance

regarding the legal status of glaciers. e denition of “water” in the Water Act is too

ambiguous and broad to include glaciers. e provincial and federal parks acts provide

a general layer of protection for glaciers within their boundaries, but say nothing in

relation to glaciers specic ally. Provincial and federal climat e change acts and regul ations

are silent on glaciers and instead focus on the reduction of greenhouse gas emissions.

Canada’s common law water riparian rights do not logically apply to the reality of

glaciers, and thus add nothing to the legal regime. International law could theoretically

provide guidance th rough its principle of equitable utilization, but this principle is leg ally

inapplicable to the glaciers of A lberta. In conclusion, there is no current legal regime on

glaciers in Alber ta.

Alberta should look to create legislation that is aimed directly at glaciers and that

encompasses their th reefold purposes. In designing such legi slation, Alberta should look

to the mistake s and successes of the laws in South Americ a, Europe, and Asia. Is there a

right to glaciers? Who gets priority to the water in glaciers? Who is liable when there is

damage to glaciers? ese questions are particularly important as Alberta looks towards

a future with far fewer glaciers, and thus with far less water in the freshwater system.

Proactive legislation would protect t his unique economic and environmental resource for

Albertan s and Canadian for decades to come.