Is our Oldman watershed in a Federal-Provincial tug-of-war?

Canada is unique: we have one of the oldest original Constitutions in the developed world; we may be proud to be Canadian, yet we cannot agree on what our identity really is; our Canadian heart and soul is found in coffee cups, and we embrace outdoor recreation in -25 weather. Canada is many nations within one, and we must juggle many sides to an issue at once while trying to remain considerate of everyone. One of our many complexities includes the federal division of powers as laid out in the Constitution Act of 1867. This means that we have a federal government with jurisdiction (legal authority) - and simultaneously, we have provincial governments which have their own jurisdiction over particular subject matters as well. The Constitution provides all powers to the federal government, unless specifically provided to the provinces; but as a practical matter, Canadian federalism is “decentralized”. This means that the provinces play a lead role on many matters. In turn, a strong provincial role in environmental management is further guaranteed by provincial ownership over natural resources. To add to the confusion, we have municipal governments who are delegated authority by the province to regulate issues such as private land development and business activity, or administer the provision of utilities.

At times this division of powers is confusing and challenging, but it also has many advantages for us as managers and consumers of water. This article scratches the surface of what it means for our water, in this case the Oldman watershed, to be governed both by the Canadian federal government and our Alberta provincial government.


Context and Federal Jurisdiction

Our Canadian Constitution contains multiple documents and unwritten principles which lay out the framework for who-controls-what. It’s important to note here first that this document has proven to be a versatile, flexible document, throughout history. The Constitution Act of 1867 obviously does not mention certain aspects of our modern life, but has been interpreted by the courts in ways that have allowed it to apply to emerging issues. For example, although the management of the “environment” is not laid out in the Constitution, all levels of government in Canada so far have had the power to make policy decisions on various aspects of the environment. This situation of shared jurisdiction is the case with more specific environmental topics like water management as well.

Several powers provided to the Federal government are relevant to water management: naval defence; navigation and shipping; oceans; seacoast and inland fisheries; pollution from vessels; federal property and First Nations reserves; and boundary waters with the U.S. Likewise, provinces have power over water matters including: sewage and waste management and drinking water quality. The Province of Alberta owns the water in permanent water bodies as well as the beds and shores. It regulates use of water and many of the impacts on water.

Certain areas of environmental governance may sometimes experience administrative overlap between the federal and provincial authorities, such as pollution, fisheries, and environmental assessments, which can be required by both levels of government. While older theories of federalism treated the division of powers as “watertight compartments”, modern interpretations are apt to allow “overlapping jurisdiction” - so long as the federal government and the provinces can each point to a source of their own authority in the Constitution.

With so many authorities involved in environmental issues such as water, it begs the question of who to turn to. Given the decentralized nature of Canadian federalism, the provincial ownership of natural resources, and the further fact that municipal laws and activities are what affect our day to day interactions with our environment and our consumption of water resources, we turn our focus more specifically to provincial jurisdiction and how it affects our water.

Watershed Management is Mainly a Provincial Issue

An upside to shared jurisdiction over water issues, according to Adam Driedzic of the Environmental Law Centre, is that “water doesn’t respect political boundaries.” The same is true of other environmental matters like wildlife, pollution, and climate change. Shared jurisdiction theoretically provides access to more resources including people, money and time. It also has the potential to create multiple safeguards to protect the health of our water through the various levels of government. A great example is that environmental assessments can be required by both the federal and provincial governments where proposed activities could impact the environment.

By the same token, however, critics of shared jurisdiction often refer to the potential for duplication between provincial, federal and even municipal regulatory processes. These processes can waste resources, create uncertainty for business, be confusing and perhaps even unfair. However, Driedzic suggests that duplication is not very common in practice. Federal involvement in environmental management is usually triggered by specific areas of federal jurisdiction such as navigation, fisheries, migratory birds, species at risk or transboundary pollution. The reductions to federal environmental law under the recent Conservative government could further limit federal involvement to situations featuring large water bodies or large development proposals. Driedzic also believes that there are larger issues with the non-implementation of environmental policies at all levels of government that can make questions of who-controls-what somewhat irrelevant.

Finally, Driedzic notes that disputes concerning shared jurisdiction over the environment rarely go to the Supreme Court of Canada. The majority of cases that do occur concern the exercise of federal power: allegations that the federal government overstepped its boundaries; or alternatively, that the federal government breached its duty to act. Most of these cases also raise national issues beyond environmental protection, for example, control of economic activity. In other words, the debate is not really about whether jurisdiction over the environment should be shared, but about the role of the federal government in the Canadian constitutional structure.

Provincial Jurisdiction and Alberta

Alberta has several pieces of legislation relevant to water management, most notably the Environmental Protection and Enhancement Act, the Water Act, the Municipal Government Act and the Public Lands Act. Collectively, these pieces of legislation regulate water quality, water quantity, water use, and land use that may impact waterbodies and watersheds.

This is not to say that they are the sole documents that control our water resources. Often many laws and policies apply in the same situation and must be considered alongside each other. A key distinction to make is between legislation and non-legislated policies. Non-legislated policies are not legally enforceable but they can be important for setting goals, guidelines and standards.

The provincial government is able to outline its own policies and create guidelines for our water resources. However, guidelines are not necessarily legally binding – they are not the same as laws - but they do provide a reference or a framework for how provinces develop strategies for water management. In Alberta, the Water For Life strategy outlines goals and objectives for using our water resources wisely while considering environmental, economic, and social needs of everyone living in Alberta.

One of the ways these goals and objectives are carried out is through Watershed Planning Advisory Councils (WPACs), such as our own Oldman Watershed Council, which plans how to use our water efficiently while preserving and/or restoring our ecosystems.

WPACs provide an essential space for engagement with local residents, First Nations, farmers, and other industries. With their help, WPACs can create well-rounded initiatives for resource management. These initiatives are critical to conservation, infrastructure development, water treatment, and economic activities. Without them, there is potential for our water and land to be consumed in a hazardous way that has major impacts on our environment’s future. In order for us to co-operate using our natural resources sustainably, especially water, it is vital that we plan ahead and try to consider the interests of all stakeholders, but ultimately make decisions that protect the long term public good.

Some provincial documents are a hybrid of law and policy. For example, the South Saskatchewan Regional Plan under the Alberta Land Stewardship Act could potentially have legal weight, or it might have none at all. Its ultimate effect may be in the details of sub-regional plans that are currently being made.

Thus, the province of Alberta has two planning processes on the same land base – a watershed planning process that is concerned with land use – and a land use plans concerned with watersheds. How to integrate land and water planning is an increasingly important question in Southern Alberta today.

The Oldman Watershed

So what can be said about water with regard to the recent change in our provincial government? First things first, it has to be said that government policy changes incrementally in Canada – in other words, a little change here and a little change there. It is a slow process, and it is seen as a poor political move these days to take on big ticket items when you are a fresh, new government. That being said, a second important point that we must acknowledge is that we have a new provincial government in Alberta after 44 years of Progressive Conservative rule. Neither side of this dramatic change is bad; that in itself is democracy. It’s what the new government does with its new glory and the resources available to them that matters to citizens.

It’s very typical for an incoming government to review the previous ruling party’s plans and to take aspects that seem appealing and make them their own. Whether taking parts of the previous government’s plans and implementing them is effective or not depends on timing and the political environment. These are usually items that coincide with the incoming party’s plans, perhaps sometimes giving off the impression that the new party came up it all on their own. This can often create the perception that the previous government was a bad one and the new one is absolutely marvelous. This article is not an attempt to minimize the impact a sweeping change in government has had on Alberta, but to provide some background on how policies and implementation are affected.

Some of the key issues facing the Oldman Watershed might appear new but are actually long-standing conflicts. The Oldman Watershed stretches as far north as High River, and as far east as Taber. Its southern boundaries curve around Raymond and end (in Canada) at the U.S. border south of Cardston. This large area encompasses many municipalities, including Lethbridge, the southern Rockies where our headwaters are found, and drains into the South Saskatchewan Basin, one of the largest and the most at-risk river basins in Canada.

So far under the new NDP provincial government, plans for two new parks in the Castle region are underway. Advocates of enhanced environmental protection in the Castle region have existed for far longer than the last two premiers, and proposals for these two parks have been well received. The ensuing results, once the parks’ formation is completed, should be compelling.

There is currently a moratorium on new water licenses (issued under a previous PC government), but additional strategies are needed in the face of increasing climate change, the economic reliance on resource extraction, and our growing population. Although not specific to water, the NDP commissioned climate change panel will have significant implications for future watershed management. With input from various stakeholders, the climate change panel made recommendations with key issues in mind regarding our environment as a whole, and our new provincial government has announced some significant changes to their environmental policy.

Two big changes coming our way from this review panel are a progressive carbon tax on large emitters and the phasing out of coal-powered electricity. The revenue generated from the carbon tax has been slated for new, green initiatives in the province only. Since water is always a major piece of our ecosystems, any and all activities that will positively affect water are always appreciated.

Even though the environmental budget of the province does not seem to have changed much, these symbolic moves on behalf of the NDP matter a great deal. If the provincial government is better at listening, has better stakeholder appreciation, and has a more active role in the environment, this is already a giant step towards environmental reform in a province dominated by the resource industry.


Case Example: Flooding

Most of us have experienced at least 2 floods in Southern Alberta during our lifetime; we are no strangers to boil water advisories and short showers. The extreme flooding in High River in 2013 will be the most memorable for the province, and has prompted action on behalf of the provincial and federal governments.

Unfortunately, flood mitigation is an ongoing issue in Alberta and previous reports on how to help fix parts of the system were largely ignored until 2013. A major contributing report was the Groenveld Report, which was established in 2006 by the Flood Mitigation Committee led by George Groenveld (HIghwood MLA at the time), which includes up to 18 recommendations for flood prevention in the future.

This document was shelved by the previous government, only to be unearthed in the wake of terrible flooding in High River and Calgary in 2013. The challenge that often plagues flood mitigation projects is, of course, a financial one. Conventional practice includes money being allocated to the province by the federal government to assist with the cost of damages.

This is a key area where federal-provincial overlap gets muddled – the amount of money given to the province obviously depends on how much damage there is at the time of the event – leaving us to wonder about prevention strategies and the financial shortfall that must be experienced in that area.

For example, the Alberta government in 2014 lost about $1 billion dollars in funding from the federal government, mostly because of an unanticipated low number of flood claims from residents. The money lost on a technicality could have easily been put towards the beginnings of flood prevention strategies desperately needed in Alberta, where many municipalities are built around or on river flood plains.

Many flood prevention plans end up falling on municipalities themselves, and whether or not this is a cost they can bear is another story altogether; but, if municipalities most often bear the burden of actual flood prevention infrastructure, how can the provincial and federal governments play an effective role when it comes to floods?

As of the November budget, the province of Alberta is now allocating $170 million of its own money for water and wastewater infrastructure. This is an enduring issue here in Alberta, and our new government seems promising – serious consideration of proposals for berms and dam projects such as Spring Bank in Calgary are also a step in the right direction.

The province has also dedicated funding under programs like the Watershed Resiliency and Restoration Program (WRRP), which aim to promote flood mitigation for the protection of communities through nature’s own built in defenses. The WRRP provides a grant for NGOs, municipalities, First Nations, and stewardship groups and other non-profit organizations, such as our own Oldman Watershed Council, for watershed mitigation projects like planting new vegetation in riparian areas. This year the OWC received this grant for its project in Dutch Creek in the Oldman River basin headwaters. The watershed council plans to establish a demonstration site to “test protocols for land reclamation/restoration and community outreach and engagement to promote stewardship.” The WRRP provides an incredible opportunity for groups like the OWC to utilize nature’s existing functions to lessen the impact on the environment while helping to restore and conserve ecosystems. As well, it provides the ability to promote the awesomeness of nature, and its abilities to prevent damage downstream using natural infrastructure upstream.

*That Oldman river - it just keeps flowing along - for now *

The Oldman Watershed is subject to range of water related issues that stem from the amount of agriculture, logging, and oil and gas extraction in the region. Some issues like flooding have larger impacts and need a more intensive response by all levels of government in order to handle crisis. Regardless, all water activities have an effect on how we can manage water sustainably.

Having water fall under both federal and provincial jurisdiction has its benefits and confusions, possibly creating both increased monitoring and little implementation at the same time, depending on what specific area of water we look at. Perhaps a look at the model of implementation that exists because of federalism is needed to make management of our water more effective.

If provinces take the lead in this area, how best can the federal government help to prop up the province experiencing water related issues? More importantly, if municipalities in Alberta are often the leaders of major issues like flood prevention, how best can the province accommodate them in their planning? I ask this because sustainability is so important; our ecosystems matter, perhaps the most in terms of our own sustainability as humans on this Earth.