WATER LAW, PRAIRIE PROVINCES
The origin of European-based water law in the Canadian Prairie Provinces lies with the Hudson's Bay Company and the century of company administration that followed establishment of its first inland trading post on the Saskatchewan River in 1774. Along with the company's trade goods came a less tangible but equally powerful force of change: English civil and criminal law. Included within this complex web of principles and procedures was the doctrine of riparian rights. Under this doctrine, water rights are restricted to those who have title to property abutting upon bodies of water, and each shoreline or riparian owner is entitled to receive the flow of water to his or her property undiminished except for that quantity withdrawn by upstream riparians for their domestic purposes. Given the situation where water resources far outstripped the needs of the small population settled along the Red River and at the handful of company fur posts farther west and north along the Prairie fringe, the accepted doctrine of riparian rights remained uncontroversial during the first decades of European settlement.
Canada's purchase of the Hudson's Bay Company's Rupert's Land territory in 1869 brought a new but nonetheless common law– based administration. While the shared common law tradition assured continuity in such matters as riparian rights, federal authority over navigable waterways was anchored in the Canadian Constitution. A more direct and far-reaching manifestation of Canadian authority came in 1870 with the Manitoba Act that created the first Prairie Province and governing institutions for the territory beyond. The act stipulated that control of all public lands within the new province would remain in federal hands, a precedent followed when Alberta and Saskatchewan became provinces in 1905. The manner in which Ottawa intended to administer public or Crown lands in the West was outlined in the 1872 Dominion Lands Act. Based largely upon the U.S. Homestead Act, the Canadian statute implicitly recognized homesteaders' riparian rights. As settlement moved farther west on to the semiarid southwestern Prairie known as Palliser's Triangle, the shortcomings of the riparian rights doctrine in water-scarce regions soon became apparent. Following a comprehensive review of water legislation in the western United States and elsewhere, Parliament, guided by irrigation enthusiast William Pearce, passed the Northwest Irrigation Act (1894). Closely modeled upon the Australian Crown Colony of Victoria's 1886 Irrigation Act, the Canadian legislation marked a radical departure from the Anglo-Saxon riparian rights doctrine in favor of the principle that surface waters should be reserved for the public in the name of the Crown, which would allocate water rights in the common interest. Withdrawal of water for other than domestic purposes was subsequently managed through a licensing system.
As the self-proclaimed arbiter of water access in the dry belt, Ottawa immediately had to confront the delicate issue of proposed water diversion schemes on rivers that traversed the Canadian-American border. The mechanism to resolve diãerences was found in the International Joint Commission, a Canadian-American intergovernmental body established by the Boundary Waters Treaty (1909).
Power sites and facilities that relied on water embraced another aspect of federal water management. At first regulation was facilitated under the general provision of the Dominion Land Act requiring the proper management of public lands, but by 1919 the electricity needs of a growing and increasingly urban population required the passage of a specific act. The Dominion Water Power Act provided for the granting of rights to the use of water for power purposes, and where there were applications to use the same supply of water for different purposes, these could be adjusted with reference to the two acts (Power and Irrigation), bearing in mind that the Irrigation Act specified that priority be given to water required for domestic and municipal purposes, followed by irrigation.
In 1930 federal jurisdiction over lands and natural resources in the Prairie West was surrendered to the provinces of Manitoba, Saskatchewan, and Alberta. With regard to water law, the principles established in the federal statutes were incorporated into provincial law with only minor changes, and they remain the foundation of contemporary legislation.
David H. Breen University of British Columbia
Cochrane, M. F. Water Powers of Canada: The Prairie Provinces and the Northwest Territories. RG89, vol. 304, file 4801, National Archives of Canada, Ottawa, 1922.
Gisvold, Per. A Survey of the Law of Water in Alberta, Saskatchewan, and Manitoba. Pub. 1046. Ottawa: Economics Division, Canada Department of Agriculture, 1959.
Percy, David R. "Water Rights in Alberta." Alberta Law Review 15 (1977): 142–65.