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 |
APPEAL VOLUME 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 glacier s.1 ese glaciers, all found in t he Rocky Mountains,
are originating sou rces to ve of Alberta’s seven major river basin s, including all of
the rivers that run t hrough Calg ary, Edmonton, Red Deer, Medicine Hat, and Fort
Mc Mur r ay. 2 Many of these glaciers a re also located within national a nd provincial parks
and attract tens of t housands of visitors per year.3 It is surpri sing to discover, then, that
there is no legislation, either at the provincia l or federal level, that explicitly regulate s or
protects Alberta’s glaciers.
e aim of this ar ticle is three-fold. First, it explores why g laciers are of sui generis
character and shou ld be aorded a specic lega l status unto themse lves. It argues that
the unique circumst ances of glaciers mea n that they ca nnot be fully contemplated
under other legislation. Second, it ex amines the provincia l, federal, and internationa l
laws that could provide gu idance to the lega l status of glaciers in A lberta. It concludes
that neither Albert an nor Canadia n law are sucient to cover the sui generis nature of
glaciers, and that t he relevant international law h as no application in Alber ta. ird, it
uses case st udies from other jurisdict ions to suggest a lega l regime for Albert a’s glaciers.
is article concludes t hat, like Argentina, Chile, and Kyrg yzstan, Alberta and Ca nada
should draft leg islation on the specic matter of g laciers. Although ot her jurisdictions,
such as British Columbia, have i ncorporated glaciers in thei r 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 va lue as a public good, and their ma rketable
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
APPEAL VOLUME 21
I. WHY HAVE A LEGAL REGIME FOR GLACIERS?
A. Alberta’s Glaciers
Glaciers can be loosely de ned as solid masse s 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 sur face area of 791.4 square kilometres.4 Fourteen of
these glaciers are b etween 10 and 40 square ki lometers, 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, includi ng in Alberta , are constantly ret reating, fra gmenting,
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 glacier s serve multiple purposes, t his paper focuses on th ree major services t hey
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 scientic study.9 ird, they hold economic value in ter ms
of touristic and scientic deve lopment.10 While there are dierent 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 a n alarming r ate of glacial melt around the world and A lberta’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 Stoel & 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.
10 Ibid.
11 Alexander 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 .
12 Alberta 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:
disappear-within-generation-says-manager-1.2653641> archived at <https://perma.cc/K3YJ-
L58 Z>.
APPEAL VOLUME 21
n
23
As the glaciers melt, t heir ability to be “water towers” also d iminishes. By 2100,
scientists predict that up to 9 0 percent of the Rocky Mountain s’ current glaciers wil l
have disappeared.13 When these glaciers disappea r, so too will a substantia l amount of
Alberta’s water supply.
Glacial melting not only th reatens freshwater supply, but it also raises t he possibility of
Glacial Outburst Flood s (“GLOFs”).14 Although GLOFs have not yet been a n issue in
Alberta, t hey have caused wide-sc ale ooding in t he Himalayas.15 A s climate chan ge
causes glaciers to c ontinually melt, GLOFs could become a problem for Alber ta.
Climate change i s not the only threat to glacier s; development (both for mining and for
tourism) also poses a la rge risk. Mini ng development in Asia and South A merica16 has
damaged gl aciers where high alpine min ing has resulted in g lacial removal a nd
degradation. Moreover, mining development that is si mply near glaciers has been shown
to lead to quicker melting and decrea sed water quality.17 Although m ining has not yet
been a threat to Alber ta’s glaciers, it could be in the future. Touristic development, on the
other hand, has a lready become an issue for A lberta’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 esti mated 47 cubic kilometres of freshwater.19 at mean s
that the water in A lberta’s glaciers could support Canad a’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 origin ate in Alberta’s
glaciers and they del iver water to Calgary, Edmonton, Red Deer, Medicine Hat, and Fort
Mc Mur r ay. 22 Many of these rivers, including t he Bow and Red Deer rivers, go t hrough
Palliser’s Triangle, a notoriously dry region of A lberta, Saskatc hewan, 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
14 Roda Verheyen, Climate Change Damage and International Law: Prevention Duties and State
Responsibility (Leiden, the Netherlands: Martinus Nijho Publishers, 2005) at 280-281 [Verheyen].
15 Ibid 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.
17 Ibid at 81.
18 Canadian 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].
19 Alberta 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].
20 Base 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: rma.cc/ H32U-H9X8>.
www.statcan.gc.ca/tables-tableaux/sum-som/l01/cst01/demo02a-eng.htm> archived at
21 Government of Alberta, Facts about Water in Alb erta (Edmonton: Alberta Enviro nment
Information Centre, 2010) at 6 [Alberta: Water Facts].
22 AWP: Number of G laciers, supra note 1; AWP: Glacier Volumes, sup ra note 19.
23 AWP: Glacier Volume s, supra note 19.
24
n
APPEAL VOLUME 21
As climate cha nge causes more glac iers to melt, this region wil l become substantial ly
dri er,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 Admin istration predicted th at
western North Americ a, particu larly the United States, would face a “mega- drought.”25
If this occu rs, and if Palliser’s Triangle is aected by it, then con icts over water, whether
regional or international, w ill follow. To imagine that glacia l water would be outside this
conict is naïve. A s more droughts are expe cted, and as A lberta’s population continues
to grow, several important questions ne ed to be answered.
As glaciers retre at and their incredible water storag e is used up, who gets priority to
the water? What happens to t he riparian right s downstream when the pri mary source
disappears? W ho can tourist compa nies and national pa rks sue when one of their main
attractions di sappear? What if pre cious minerals, such a s 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 get s the prots?26 What happens to borders,
provincial or international, when t he glaciers that dierentiate them melt?27 Who w ill be
liable in the case of a GLOF?
As argued be low, Canada’s laws do not contemplate the role of glaciers and currently
cannot provide answer s to many of these questions. Ca nada and Alber ta need a legal
regime to tackle t hese issues in order to prepare for the e ects of droughts and cl imate
change.
E. G laciers as sui generis
e above questions cannot be a nswered merely by mapping glaciers onto the cu rrent
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 geog raphical specicit ies and their threef old
importance to the public: intr insic value, marketable value, and as a source of w ater.
Instead, this a rticle argue s that glaciers are of a sui ge neris nature and requ ire their own
body of law. Glaciers support intricate eco-s ystems that regu late stream ow, provide a
historical story of t he earth th at is literally frozen i n time, and contribute to the stable
regulation of the environment.28 ere a re no other geographical fe atures in the world
that share thes e same attributes. Simply mapping glaciers onto the current envi ronmental
or water law regime would fail to c apture their complex role. is rea lity has bec ome
24 Fo 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].
25 Benjamin 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: ; “Svaice: The World’s Most Wanted Icecube”, Svaice, o nline:
glacierhub.org/2015/02/26/mining-a-norwegian-glacier-for-luxur y-ice-cubes/> archived at
27 In 20 07 a dispute arose between Italy and Sw itzerland over the retreat of a borde r-dening
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).
APPEAL VOLUME 21
n
25
more obvious over time, and water scholars a round the world have also ca lled for the
recognition of the sui generis n ature of glaciers.29 Moreover, there is precedence for
recognizing d ierent sources of freshwater as being sui generis.
Groundwater, for example, is a unique form of water storage th at has been aorded
its own body of law. e courts recogni zed groundwater’s sui generis nature a nd thus
came up with a specic c ommon law system related to it.30 e Alberta government also
recognized t his and explicitly added g roundwater to its regulatory sc heme within the
Wate r Act .31 Even though the denition of “water” in the Wat er Act includes “all w ater
on or under the surface of the g round,”32 “groundwater” still has its own de nition.33
Icebergs are another ex ample. Icebergs are lar ge chunks of ice which have c alved 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 iceberg s do not t within the current sy stem of public international law.34
Although there is c urrently no answer, it is evident that however t he law settles, it wil l
have to pull from the unique rea lities of icebergs, rather t han 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 specic 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 eect of provincial a nd national laws on glacier s as well as the applica bility of the
current common law water regime to gl aciers. ree typ es of laws are exam ined herein:
the provincial water reg ulation, provincial and federal park s statutes, and provincial and
federal climate c hange statutes a nd regulations.36 Overa ll, the author concludes that
glaciers are outside the scope of a ll of these statutes and common law.
29 Laure 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].
30 For 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].
31 Water Ac t, RSA 2000, c W-3, s 1(v).
32 Ibid, s 1(f).
33 Ibid, s 1(v).
34 Various 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.
35 Ibid at 42-44.
36 While it is p ossible that other statutes may have an eec 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 ae cted by climate change.
26
n
APPEAL VOLUME 21
A. Statutory Law
e word “glacier” appears once in the entiret y 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 i n three dierent reg ulations all referr ing to glacial uvi al
deposits and glacia l ll, and not to the glaciers t hemselves.39 is mean s that there are
no explicit laws in Alber ta that clari fy the law on glaciers. e ques tion 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 theoretic ally be within t he scope of the Albert a Water Act .40 Spec ic all y,
section 1(f) of the Water Act, t he denition of “water,” could be interpreted to include
glaciers.41 is section denes “water” a s meaning “all of t he 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 interprete d broadly and literally, glaciers cou ld
be subject to the Wat er Act.
However, this is an unli kely interpretation of the Wat er A ct for severa l reasons. First
of all, it would require an overly broad interpretat ion of the word “solid.” Water, in its
solid form, can be both snow and ice, a nd glaciers are in fac t 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 gl aciers, but also under any pa rt of Alberta t hat is covered
in snow. Eectively, then, the Alberta government would own a ll of Albert a, but only
during the winter months. us a n interpretation of section 1(fff ) that includes snow
would lead to an absurdit y that cannot hold water.
Second, even if this a bsurdity could be overcome, it is sti ll unlikely t hat the denition
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 a mbiguous, it should be
interpreted in light of the rest of t he statute.44 As the rest of the Water Act is di rected 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 t he word “solid” was included to make it cle ar that the
Water Act applies to bodies of water rega rdless of whether they have f rozen over the
winter. is interpretation of the Wa ter Act is supported by the water legislation in other
provinces. Several prov inces that do not have glaciers h ave similar or the sa me wording
37 In 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 eect 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-os and
landings on particular g laciers in the Yukon and Northwest Territories.
38 Dunvegan Hydro Development Act, SA 2009, c D-18.
39 Activities Designation Regulation, Al ta Reg 276/2003, s 2(1)(a); Activities Designation Regulation,
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.
40 Water Act, su pra note 31.
41 There is no case law on this provision of the Water Act.
42 Water Ac t, supra note 31, s 1(f) [emphasis added].
43 Ibid, s 3(2).
44 Ruth Sullivan, Statutory Interpretation, 2nd ed (Toronto: Irwin Law, 2007) at 175-178.
APPEAL VOLUME 21
n
27
in their legislation. For inst ance, Manitoba’s Water Protection Act has almost identical
language , and yet, Manitoba has no gl aciers.45 Prince Edward Isl and’s Environmental
Protection Act46 refers to “frozen” bodies of water, and the Nova Sc otia Water Protection
Act47 refers to “ice.” Neither of these provinces h ave glaciers either. While the se words
dier slightly f rom Alberta’s legislation, they eec tively have the same mean ing. It is
unlikely, then, that Albe rta would have used the sa me languag e in order to capture a
completely di erent geographical phenomenon.
is idea receives fu rther credence from the fa ct that British Columbia, t he only other
province whose glaciers subst antially contribute to their w ater supply, recently changed
their water legislation to expl icitly include glaciers. While the pre vious BC Water Act 48 did
not have any langua ge of “solid,” “frozen,” or “ice,” it did refer to “source of water supply”
in the denition of “stream.”49 However, in the new legislation, the Water Sustainabilit y
Act,50 the denition of “stream” was expa nded to include glaciers.51 While this legislat ion
is not yet in force, it is clear that i f glaciers were implicit in the Wa ter Act, then their
addition to the Water Sustainability Act would not have been necessar y.52 Following this
logic, it is unlikely t hat Alberta’s ambiguous lan guage should be interpreted to i nclude
glaciers.
On the other hand, there are t wo strong argument s against th is conclusion. First, the
Yuk on, 53 the Northwe st Territories,54 and New foundla nd and Labrador,55 a ll 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 wou ld use the
same langu age as several ot her provinces that do not have glaciers . Moreover, many of
the glaciers in the Yukon, the Northwes t Territories, and Newfoundland and La brador
are arctic rather t han alpine glaciers. is means that rat her than contributing to t he
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 mea nt to include nor thought they
included glaciers withi n the purview of their legislation.
e second point for including glaciers w ithin the meanin g of “solid” is that if the
denition of “water” in the Alber ta Water Act does not include glaciers, then 47 cubic
kilometres of Alber ta’s water supply would not be protected or regulated by legislation.
Not only does this seem to be a major oversight on t he part of legislature, it se ems to be
a counter-productive interpretation of the provision. Despite this, t he dierence 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 legislat ion would be merely nominal. It would fail to c apture the
important scientic, ec onomic, and water storage qual ities of the glaciers. In fac t, the
extensive licensing sc heme outlined in the Water Act would have no practical application
on the glaciers to which the y were extended.
45 Water Protection Act, CCSM 2005, c W-65, s 1(1).
46 Environmental Protection Act, RSPEI 1988, c E-9, s 2(d).
47 Water Protection Act, SNS 2000, c 10, s 2(c).
48 Water Act, RSBC 1996, c 483, s 1.
49 Ibid.
50 Bill 18, Water Sustainabilit y Act, 2nd Sess, 40th Parl, Brit ish Columbia, 2014 (assented to 29 May
2014).
51 Ibid, s 1(1).
52 The re is no Hansard regarding the addition of this word.
53 Waters Act, SY 2003, c 19, s 1.
54 Waters Act, SNWT 2014, c 18, s 1.
55 Water Resources Act, SNL 2002, c W-4.01, s 2(1)(d).
28
n
APPEAL VOLUME 21
After weighi ng the arguments for a nd against, it is h ighly unlike ly that section 1(f) of
the Water Act does or should include glacier s within its scope. To include glaciers would
not only lead to an absurdity a nd go against t he principle of noscitur a sociis, it would
have no practical ee 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 Albert a Provincial Parks Act58 could theoretica lly provide clarity to t he issue of
the legal regime su rrounding glaciers. Unfortunately, however, they provide little.
Both the Provincial Parks Act and the Cana da National Parks Act have a dua l mandate
to maintain the enjoyment and bene ts to human populations whi le ensuring that t he
landscape rema ins unimpaire d for future generations.59 While t his dual mand ate may
implicitly cover glaciers, they do not ex plicitly mention them. Despite their silence on
the issue, these stat utes oer glaciers a layer of protection th at they would otherwi se
not have. Because so many g laciers are found in nationa l and provincial park s, mining
development nearby has been a moot point. Moreover, in both statutes, 60 the parks have
the power to remove recreational users w ho are causing har m to any part of the park,
including the glaciers . However, the types of activitie s that occur in pa rks generally
have only the potential to do mini mal dama ge. At worst, someone could leave trash or
drop gasoline on the gla cier. ese relatively minor issues a re not the types of con icts
that warrant t he development of a specic legal regime. A s mentioned above, the major
threats to glacier s are climate cha nge and mining development, neither of which a re
contemplated in these statutes.
Luckily, these statutes brin g 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 bur st over their banks a nd send large volumes of water shooting dow n
the mountai n.61 Whi le GLOFs have not been a problem in the Rocky Mountains, t hey
have caused a great dea l of damage in t he Himalayas. 62 Should a GLOF occur on a
glacier within a provinci al or national park, t he respective level of government could
be liable for any human da mage that follows, pa rticularly i f 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 t he precise situation, parks should be awa re
of the possibilities of GLOFs and should mitig ate any potential damage that they m ight
cause. If they fa il to either identify or mitig ate these GLOFs, it is likely that t he parks
would be liable.
Overall, neither the Provincial Parks Act nor the Canada National Parks clarif y the legal
regime of glaciers. W hile they do provide a layer of protection for the gla ciers, and oer
a solution for liability in the ca se of a GLOF, they do not answer questions of who gets
priority when the glaciers melt, whet her the glaciers are a public good, or whet her there
is a right to glaciers. In su m, these statutes a re of limited use.
56 Ommanney, supra note 6 at J204.
57 Canada National Parks Act, SC 20 00, c 32 [National].
58 Provincial Parks Act, RSA 2000, c P-35 [Provincial].
59 Provincial, ibid, s 3; National, supra note 57, s 4(1).
60 Provincial, ibid, ss 17-24; National, ibid, ss 18-22, 32.
61 Verheyen, supra note 14 at 281.
62 Ibid at 280-291.
APPEAL VOLUME 21
n
29
iii. Climate Change Legislation
One might think t hat federal and provincia l laws on climate cha nge might regulate or
protect glaciers. Unfortun ately, this is not the case. Although the e ects of climate change
can be readily p erceived on the world’s glaciers, and clim ate change is current ly 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 i ncapable of addressing the e ects of climate cha nge on
Alberta’s glaciers, and thus on t he changing rea lities of Albert a’s water supply. is
impotence means that t he current climate cha nge legislation in Ca nada falls shor t 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 r ights arise in reg ards to water and its use.
According to a Can LII search, there is no c ommon law pertainin g to rights to glaciers
(per se) or to the application of common law water rights to gl aciers. As Cana da’s
common law came from Engl and, and as glaciers are not a par t of England’s geographical
landscape, t his is not surprising. However, the common law ca n provide a lens through
which to evaluate whet her there is room for glaciers within the common law water ri ghts.
is section wil l examine common law ripa rian rights in t he 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 r ights are the rights a rising out of owning la nd adjacent to bodies of water
and riparian owners h ave the right to take a nd use water for ordinary p ersonal 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 dicult to apply riparia n rights to glaciers for sever al reasons. First, pe ople
do not live along alpine glaciers in t he same way that people live along river s and lakes.
Alpine glaciers in Ca nada are tucked aw ay in the mountains and a re far from cities,
agricultura l development, and, in almost every c ase, roads. e ability to have traditiona l
riparian right s is then limited. Moreover, glaciers shrin k and expand ever y 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 w inter. It may be possible to claim that the nationa l and provincial
parks have riparia n rights to these glaciers, but the ordin ary personal use provision would
not apply.
Second, it would be dicult to apply ripar ian rights to glacier s because of the man ner
that water is contained w ithin the glacier. In sta ndard watercourses, wat er is liquid and
can be collected a s a liquid, even in the winter. e water contai ned within glaciers ,
however, is solid year-round and would thus have to be har vested as ice and melted to
be utilized.
63 For exa mple, see Climate Change and Emissions Management Act, SA 2003, c C-16.7; Specied Gas
Emitters Regulation, Alta Re g 139/2007; Renewable Fuels Regulation, SOR/201-189.
64 Keith v Corry, (1877) 17 NBR 400; La Forest, su pra note 30 at 224.
65 KVP Co Ltd v McKie et al, [1949] SCR 698, 4 DLR 497 [KVP]; La Forest, ibid at 214.
30
n
APPEAL VOLUME 21
Finally, applying riparian r ights to glaciers would be imprac tical due to the remedies
available to violations of ripari an rights. In a sta ndard riparian sit uation, a riparian
proprietor could sue someone upstream who has i nterfered 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 th at comes to glaciers arise s from climate cha nge. If there are riparia n rights
to glaciers, who can t he riparian proprietor sue? eoretica lly there could be multiple
riparian users on t he same glaciers, bec ause glaciers store water in a stat ic rather than
fugitive manner, it is unli kely that any noticeable interference would occur.
It is therefore unlikely t hat the current common law regime of ripa rian rights would or
could apply to glaciers as there a re no glacial riparian owners, gl acial water is solid rather
than liquid, and t he remedies provided to riparian ow ners are impractica l when applied
to glaciers.
After exa mining the applica ble statutes and common law, it is probable that Albert a’s
current legal regi me does not account for the realitie s of glaciers. Rather, there is a
patchwork of laws that tangenti ally aect g laciers. 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 guid ance regardin g the legal statu s of glaciers. Canad a’s common law
water rights also do not give cl arity as the prim ary common law water rig hts, 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 Can ada’s domestic law is eectively silent in relation to gla ciers, international
law is not.67 Specical ly, the United Nations Convention on the Law of the Non-
Navigational Uses of Internat ional Watercourses (“UN Watercourses Convention”)
includes glaciers with in its denition of “a system of surface and groundwaters.”68 While
the UN Watercourses Convention may concern other par ts of Canada, at t his time it has
limited applicability to A lberta.
e UN Watercourses Convention was adopted in 1997 as a way to encourage bet ter 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 utili zation.70 Equitable utilizat ion
focuses on each State u sing a watercourse in a rea sonable and shared manner.71 As such,
equitable utilization c an mean one thing for Ca nada but a completely dierent one for
India. is mea ns that protection of international w atercourses can va ry drast ically
throughout t he world.
66 KVP, ibid; La Forest, ibid.
67 T 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.
68 United 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].
69 Owen M cIntyre, Environmental Protection of International Watercourses under International Law
(Aldershot: Ashgate Publ ishing Inc, 2007) at 1.
70 UN Watercourses Convention, su pra note 68, art 5.
71 Ibid; Ibrahim Kaya, Equitable Utilization: the Law of Non-Navigational Uses o f International
Watercourses (Aldershot: A shgate Publishing Inc, 2003) at 89-91.
APPEAL VOLUME 21
n
31
While the word “glacier” does not appea r in the UN Watercourses Convention it can be
found in the UN provided commenta ry. e commentary to Art icle 2(b) denes “a system
of surface and grou ndwaters” as a hydrological s ystem, which includes glaciers.72 Merely
being in the denition, however, does not mean t hat 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 wh ich are situated in die rent States.”74 According to lega l
scholar Laurence Bois son de Chazournes, putt ing these denitions toge ther in light of
the convention’s prioritization of sharing means that m any glaciers will be excluded from
the statute.75 For instance, g laciers that are not integr al or contributing to international
watercourses would not be covered under t his Convention.76
As a result, thi s law has limited applicabi lity to Alberta’s glaciers. e only plac e where
it could be applied is in the South Sas katchewan R iver 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 gla ciers and, if it does, whether thos e
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 mini mal claric ation in regards to gl aciers, and the law of
international watercourse s has little applicability in A lberta, it follows that Alberta’s laws
cannot respond to the sui gener is nature of glaciers. Given t hat Alberta wi ll likely face
water shortages wit hin the next centur y,78 and that glaciers are the orig inating source of
all of the rivers that r un through A lberta’s major cities, it is only a matter of time until
there is a conict 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 denes glaciers , rather than waiting for the matter to g o to the courts. e reason for
this is three fold. First, passing legis lation before a conict occu rs may help to minimize
opposition to the bill. Once litigation ha s started there w ill have been, by denition,
a conict. When t here is a conict, it means t hat there are competing r ights, and
therefore more opposition to any bill. Second, passi ng legislation could give t he public
an opportunity to be c onsulted. No such opportunit y will be granted by t he courts.79
Finally, legislation on glaciers cou ld be comprehensive, while a court dec ision 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.
72 Comment 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).
73 De Chazournes, sup ra note 29 at 44-45.
74 UN Watercourses Convention, supra note 68, ar t 2.
75 D e Chazournes, supra note 29 at 44-45.
76 See generally Fabienne Quilleré-Maj zoub & Tarek Majzoub, “A qui Protent les Eaux de Glaciers
de Montagne” (2010) 51 Les Cahiers de Droit 69.
77 Alber ta: Water Facts, supra note 21 at 8, 14.
78 D 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.
79 Legi slation could subsequently override any com mon law rules imposed by the court s.
32
n
APPEAL VOLUME 21
Below are four case st udies on the implementation, attempted or reali zed, of legislation
on glaciers. After e xamining t hese cases st udies, this ar ticle will provide sug gestions for
what equivalent legislat ion in Alberta should a im to do.
A. Glacier Protection Laws Around the World
Many countries around t he world protect glaciers, either as an e xplicit part of their
environmental protection schemes,80 or, more recently, through specic legislat ion unto
itself.81 Over the past decade leg islatures around the world real ized that their statute s were
insucient to govern glaciers a nd, some reactively and some proactively, implemented or
proposed legislation that ex plicitly protects glaciers. In t he next subsections, th is article
will exa mine four case stud ies: Kyrgyzs tan, Argentina , Chile, and Switzerla nd. ese
examples demonstrate t he benets of having a proactive legi slature and the pitfa lls that
come from waiting for a conic t to arise.
i. Kyrgyzstan
In 1992, the Kumtor Gold Company gained approval to st art an open pit gold mine
in the Tian Shan Mounta ins. is region, and speci cally the mounta in 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 c ost. 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 a ddition, due to the high alpine location of the
mine’s tailings ponds, conce rns arose over a tail ings pond spill that cou ld pollute waters
all over central A sia. Despite these environmenta l concerns, the project was e xtended
beyond its original 2014 end date and will now continue unti l at least 2023.
In 2014, the Kyrgyz Parliament passed t he Glacier Law. is law laid out liabilit y 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 legisl ation could not be obtained, it is clear t hat the law would leave mining and
other forms of industry li able for destruction and da mage caused to g laciers at a rate to
be determined by the government.84 is u ncertain liability both deters de velopment on
glaciers and gives t he government an incentive to prosecute those who da mage glaciers.
Unfortunately, this law has ne ver been signed by the President of Kyrgyz stan and thus
80 Peru, 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).
81 See 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.
83 Henr y Lazenby, “Proposed Kyrgyz ‘Glaci er Law’ Could Impact on Centerra’s Kumtor Mi ne” (25
April 2014), Mining Weekly, online:
kyrgyz-glacier-law-uncert ain-on-centerras-kumtor-mine-2014-04-25> archived at
perma.cc/C8UD-Z8DT>.
84 Samantha 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.
APPEAL VOLUME 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 clause s in the mining contra ct.85 us, th is
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 Ande s Mountains, right a long the Argentine border and in close prox imity
to three small g laciers.86 Shortly after the project survey ing began, loca l and Indigenous
communities learned of Ba rrick Gold’s plan to dynamite a nd remove parts of the smal l
glaciers in order to acces s the gold underneath.87 ese commu nities 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 par t of any glaciers.88 e project has now gone
ahead.89
is incident brought international med ia attention to the issue of the protection of
Chilean glac iers. For the past several ye ars, there has been s ubstantial internat ional
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 dierent classic ations to dierent glaciers, a nd prohibits any activity
that damag es a glacier. is multi-layered approach provides e xtensive protection for
glaciers within nat ional parks (estim ated 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 rega rding glaciers outside of nat ional parks, potentia lly makin g
these decisions vu lnerable to extensive lobbying.
85 Marke t Wired, “Kyrgyz Parliament Passes L aw on Glacier” (24 April 2014), Market Wired, online:
cg-1903001.htm> archived at .
86 Kronenberg, supra note 7 at 83.
87 Ibid.
88 Barrick 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:
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 March23, 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
scientic 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:
truth/> archived at .
90 Kristen French, “ Will Chile Get its Five-Star Gla cier Law?” (12 March 2015), Glacier Hub, online:
perma.c c/YW 3P-LXUJ>.
91 Unfortunately, no translated version of the law could be ob tained. All information about th e law
has come from secondar y sources.
92 Ibid.
34
n
APPEAL VOLUME 21
iii. Argentina
e Argentine National Glacier Act93 wa s the rst legislation in t he world dedicated to
the protection of glaciers. e legisl ature enacted the law proac tively in response to the
situation in Chile and, compa ratively, it came into eect 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 i s law takes th ree important steps in protect ing glaciers: it recogniz es glaciers
as a public good, creates the Nationa l Glacier Inventory, and prohibits development,
specically m ining, to occu r on glacial or perigla cial regions.96 Scientic and tourist ic
development, however, are allowed on glaciers provided that t hey do no damage.97
Although the mi ning industry i n Argentina fought t he legislation, they were ultimate ly
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 cas e studies in this l ist, Switzerland ha s a long history of glacia l
regulation. e di erence, though, is that t he law is embedded in the Swiss Civ il Code
(“SCC”) and is not about protecting g laciers but rather focuses on ba lancing touristic
development with protection of the scenery t hat makes that tour ism viable.99 e SCC
denes glaciers a s objects with no owner, as having soil u nsuitable for cultivation, and
as public property for common use.100 is denition of glaciers a lso includes the land
immediately around t he glaciers as well a s the point at which the glacia l waters enter
streams, rivers, a nd lakes. Law s 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 Interesti ngly, 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 subs tantial cour t disputes over glaciers in the late 2 0th century. is
occurred for two rea sons. First, many ca ntons and municipalities brought in leg islation
limiting development near gla ciers, despite the fact that t hese areas are of ten popular
for skiing and mounta ineering. Private part ies and companies have ch allenged these
laws with varied suc cess. ese private entities wa nt rights and permits to bui ld
infrastr ucture, such as c able cars, onto and over the glaciated a reas. Wh ile the laws on
cable cars require t hem to be environmentally sa fe, at least one scholar has a rgued that
the current environmental protect ions are not strong enough to protect the gla ciers.104
Despite this, touristic development continues.
93 Arge 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 .
96 ANGA, supra note 93, arts 3, 6.
97 Ibid, ar t 7.
98 Taillant, supra note 29 at 75-78.
99 Other Europ ean countries, such as France and Austria, have simila r provisions in their legislation,
supra note 7 9.
100 Swiss C ivil Code, art 66 4.
101 One 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.
102 Ibid.
103 Ibid at 20.
104 Ibid at 25.
APPEAL VOLUME 21
n
35
Second, due to the rise in popula rity of alpine tourism, there have been more g lacier-
related accidents. For insta nce, there was an ex tended court battle over the 1965 glacier
tragedy in Matt mark. e trage dy occurred in Aug ust 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, k illing 88 people inst antly.105 In addition to infrastr ucture
hazards, t he courts have also ruled on proper alpine techn ique. ey have come up with
several rule s of negligence for glacier and mounta ineer guides, such a s roping in on a
glacier when the route is part ially or completely covered in snow.106
While Switzerla nd’s glacier laws may be imperfec t, they are quite extensive. Unl ike
Kyrgyzst an, Chile, and Ar gentina, Switzerland ha s used the law to carve out a complex
balancing scheme where g laciers’ economic value, intrinsic va lue, and “water tower”
value are all c ontemplated, 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 A lbertan legi slation would need to consider the potential m ining
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 legi slation will become more nece ssary. 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 st udies of Argentina a nd Switzerland demonstrate the i mportance of
balancing touri stic development and scientic research with g lacier protection and safety.
is is an import ant issue for Alberta , as glacier tourism ha s increased over the pas t
few decades, pa rticularly on the At habasca Glacier.107 Wh ile Argentina ha s taken the
approach that any tourist ic development cannot compromise the health of t he glacier,
Switzerland has deve loped a rigorous regulator y scheme for glacial tourism. A lberta
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, Albert a should follow the lead of Argentin a, Chile, and Kyrgy zstan a nd begin
drafti ng legislation that recog nizes and is d irected at the sui generis n ature of glaciers.
is is vital. Merely inc orporating 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 Ch ile, dierent levels of protection should be a orded to glaciers
depending on their location in side or outside of parks. ese layers of protection wi ll
make sure that wh ile most glaciers are protected e xtensively, economic development
outside the parks wil l continue. Within this mult i-layered approach, there should be a
base layer of protection for areas identi ed as glaciated.
105 Ibid at 2 0-21.
106 Ibid at 21.
107 CPAWS 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
108 Given 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
APPEAL VOLUME 21
Fifth, and most controversia lly, a right to glaciers needs to be contemplated. is c ould
be dealt with either by simply ca lling glaciers a “public good,” or by developing a more
elaborate rights scheme. e more elaborate s cheme 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 c ould also force the government to consider how the y
will address f uture water shortages caused by climate c hange. As gl aciers retreat fur ther
each year, it means that e ventually they w ill be unable to provide the same a mounts of
water to the freshwater syste m as they currently do. i s will exacer bate droughts and
could likely mak e Alberta a drier provi nce overall. By contemplating a right to gl aciers,
the government could pre-empt this ret reat of the water supply and could potential ly
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, Alber ta should not wait for a conict to occu r, be it over
water ownership or over mining development. Not only do con icts mean that t he bill
would be more controversial, it would also ta ke longer. e Albertan a nd Canadian
parliaments should sta rt moving towards t his legislation at a time when t he political
costs are low. Many of Albert a’s glaciers are located within park s so the push-back from
the mining commun ity can be expec ted to be minima l. Moreover, this could improve
Canada’s poor environmental reputation. If A lberta and Can ada wait, they may fac e
greater pressures a s climate change pu shes these issues to t he forefront of political
discussion.
CONCLUSION
is article at tempts to answer two quest ions. First, is there currently a leg al regime for
glaciers in Alber ta? Second, if not, what should an eective reg ime look like? e answer
to the rst question is al most certain ly no. e Water Act, the Provincial Parks Act, the
Canada National Parks Act , and climate cha nge laws do not provide any real gu idance
regarding the leg al status of gl aciers. e denition of “water” in the Water Act is too
ambiguous and broad to include gla ciers. e provincial and federa l parks act s provide
a general layer of protection for glaciers w ithin their bounda ries, but say nothing in
relation to glaciers specic ally. Provincial and federal climat e change acts and regul ations
are silent on glaciers and inste ad focus on the reduction of green house gas emissions.
Canada’s common law water riparian ri ghts do not logically apply to the rea lity of
glaciers, and thus add not hing to the legal reg ime. International law cou ld 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 leg islation that is ai med directly at glac iers 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 ge ts priority to the water in glacier s? Who is liable when there is
damage to gla ciers? ese questions are pa rticularly impor tant as Alber ta looks towards
a future with fa r fewer glaciers, and t hus with far less water in t he freshwater system.
Proactive legislation would protect t his unique economic and environmental resource for
Albertan s and Canadian for decades to come.
To continue reading
Request your trial