CHALLENGES & GAPS IN THE WSA: “Why we need to talk about unvested water in British Columbia” – the story behind the story as told by Donna Forsyth and Mike Wei, retired senior civil servants in the Ministry of Environment (April 2022)
Note to Reader:
The mechanism for bringing forward challenges and gaps in the Water Sustainability Act (WSA) is the current consultation process for the Watershed Security Strategy which has identified 10 desired outcomes.
In their article titled Why we need to talk about “unvested water” in BC, Donna Forsyth and Mike Wei include a table summarizing the vesting provisions for the provincial and territorial jurisdictions in Canada. This scan shows that vesting of all water is common in other Canadian jurisdictions with the exception of BC, Prince Edward Island and Newfoundland-Labrador where only groundwater and surface water in watercourses appear to be vested.
What Vesting of Water Means and Why Everyone Should Care
When the Water Sustainability Act (WSA) came into force in 2016, “certain things were left behind”. Released in January 2022, the government of British Columbia’s Discussion Paper on Watershed Security Strategy represents a once per decade window of opportunity to revisit assumptions and decisions that defined the WSA scope, reflect on the context for those assumptions and decisions, and determine what action should be taken in light of new understanding.
For context, consider that the “request for legislation” that became WSA was introduced in 2012. It then took until 2016 before the WSA came into force. On the 10th anniversary of that request, the door has again opened. Hence, the importance of drawing attention to known gaps and challenges in the WSA, emphasize retired senior civil servants Donna Forsyth and Mike Wei.
Donna Forsyth and Mike Wei bring an informed perspective to their quest to strengthen the foundation for BC water law. They draw on decades of experience to pull threads of understanding from the past through to the present. They are keen to share their insights with an audience that cares about water.
A Call to Action to Address a Jurisdictional Gap
“Simply put, since ‘vesting’ is the legal concept that gives the province the ‘ownership’ of water that gives them the authority to manage its diversion and use, none of the provincial laws around water will apply to ‘unvested water’,” explain Donna Forsyth and Mike Wei.
“Currently, the wording of section 5 of the WSA establishes the vesting ‘boundaries’ in BC. The result is that water that has not reached a ‘stream’ or gone into the ground is ‘unvested’. This would include harvested rainwater or snow.”
“Now we realise that it is possible that no water-related legislation, bylaw, plan or strategy can be applied to ‘unvested water’. At the very least, there is an urgent need to review the impact of having ‘unvested water’ use and users sitting outside the scope of any of our water-related provincial laws.”
“The real issue centres on what government cannot do when the water use involves unvested water. The concern should be whether a jurisdictional gap in the WSA has a domino effect with the potential for unintended consequences,” concluded Donna Forsyth and Mike Wei.
TO LEARN MORE:
Download a copy of article by Donna Forsyth and Mike Wei titled Why we need to talk about “unvested water” in BC.