The Water Sustainability Act, Groundwater Regulation, and Indigenous Rights to Water: Missed Opportunities and Future Challenges

• Author: Kathryn Gullason
• Position: Completed her BA (International Relations) at the University of Western Ontario and her MA (Global Governance) at the University of Waterloo
• Pages: 29-40

APPEAL VOLUME 23

n

29

ARTICLE

THE WATER SUSTAINABILITY ACT,

GROUNDWATER REGULATION, AND

INDIGENOUS RIGHTS TO WATER:

MISSED OPPORTUNITIES AND FUTURE

CHALLENGES

Kathryn Gullason *

CITED: (2018) 23 Appeal 29

INTRODUCTION

On February 29, 2016, British Columbia (alternatively, the “Province”) updated its

Water Sustainability Act (“WSA”) and the  rst phase of the WSA’s regulations c ame

into forc e.1 e WSA introduces licensing requ irements for groundwater, which was

previously unregu lated. While many celebrate t he end of a system dubbed the “Wild West

for groundwater,” the new regulations also pos e challenges, pa rticula rly for Indigenous

Peoples.2

Although al l Canadian water law is limited by pre-exi sting Indigenous water rights,3 in

British Columbia, the WSA large ly maintains t he status quo colonial water reg ime. On

May 10, 2016, Canada oci ally adopted the United Nations Declaration on the Ri ghts of

Indigenous People s (“UNDRIP”); a nd article 32(1) of UNDRIP st ates “Indigenous Peoples

have the right to determine and develop priorities and strategies for t he development or

use of their lands or territories a nd other resources.”4 But British Columbia continues

to assume jurisdict ion over water and ignore the “prior, superior and unextingui shed

water rights of Indigenous Nations of Britis h Columbia.”5 e WSA represents a missed

opportunity to rig ht a historic wrong perpetrated aga inst Indigenous Peoples and develop

an equitable and susta inable nation-to-nation water governance model.

* Kathryn Gullason com pleted her BA (International Relations) at the Un iversity of Western

Ontario and her MA (Global G overnance) at the University of Waterloo; she is c urrently a third-

year JD candidate at the Universi ty of Victoria. She thank s Professor Deborah Curran (Faculty

of Law, University of Victo ria) and Oliver Brandes (Co-Direc tor, POLIS Project on Ecological

Governance) for their advice and as sistance with this article.

1 Water Sustainability Act, SBC 2014, c 15 [WSA].

2 West Coast Environmental Law, “Underground and Unde r Pressure: Groundwater in BC’s

Northeast” (16 April 2015), online: ttps://www.wcel.org/blog/underground-and-under-

pressure-groundwater-bcs-northeast> archived at .

3 Merrell-Ann S Phare, Denying the Source: The Crisis of First Nations Water Rights (Surrey: Rocky

Mountain Books, 20 09) at 62.

4 United Nations Declaration on the Rights on the Rights of Indigenous Peo ples, GA Res 61/295,

UNGAOR, 61st Sess, Supp No 49, UN Doc A/61/49 (2007) at 15.

5 Union of British Columbia Indian Chiefs, “UB CIC Submission BC Water Act Moderniza tion

Initiative” (30 April 2010), online: <https://engage.gov.bc.ca/app/uploads/sites/71/2013/10/

Union-of-BC-Indian-Chiefs.pdf > archived at J92L> [UBCIC].