This post was originally published on ABlawg.ca

Conclusions

This ABlawg post has critiqued the amendments to the Water Act that expand government emergency powers focusing on the ability of Cabinet to order an inter-basin transfer to deal with emergencies. With respect to inter-basin transfers, we conclude that as inter-basin transfers need prior long-term planning, have potential serious ecological and economic impacts, and could require tremendously impactful infrastructure all without regulatory, public, or Indigenous community review. The obvious follows: responding to emergencies with Executive ordered inter-basin transfers smacks of perversity. This is so, not even considering what this post did not discuss: the impacts inter-basin transfers can have on water rights, both licensed and non-licensed.

We believe that the day-to-day rule of law governing water and environmental management could be comprehensive and flexible enough to set out legislated courses of action to deal with true, unexpected emergencies related to water. If there are to be Executive powers related to such emergencies, they should be clearly defined and limited and their exercise should be appealable. Emergency response is not the place to tuck huge, practically unlimited Executive power. At the very least, the non-amended emergency provisions regarding water in the Water Act should be restored, and the water related amendments deleted, with certain exceptions such as the provision stipulating that emergency measures apply to deemed licenses. We believe that government and Legislature, with public and expert input, and meeting Constitutional obligations to Indigenous communities, should carefully examine the day-to-day water management law with the goal that it incorporates emergency response, as much as possible and feasible. This will require amendments to effect better rational and equitable water management, including regarding the mitigation of climate change and efforts to adapt to these changes, and to live within our ecological limits. Legislatively giving the Executive broad and ill-defined power and the almost unlimited discretion to avoid complying with the laws and policies that apply in “non-emergency” situations is a failure of governance. This is especially evident in respect to responding to water related emergencies through inter-basin transfers.