Embedded indeterminacy in the modernization of British Columbia's water law

Authors: Kiely McFarlane*, University of British Columbia
Topics: Water Resources and Hydrology, Human-Environment Geography, Canada
Keywords: water, environmental law, Canada, governance
Session Type: Paper
Day: 4/11/2018
Start / End Time: 8:00 AM / 9:40 AM
Room: Studio 10, Marriott, 2nd Floor
Presentation File: No File Uploaded

Changing environmental conditions and knowledge are prompting new interest in how legal instruments may be structured to enable more adaptive, responsive management and governance of environmental resources. In Canada, British Columbia’s government took up this challenge in the modernization of its water act, the primary legislation governing the diversion and use of water resources in the province. The new BC Water Sustainability Act (WSA, 2014) introduced a range of mechanisms intended to enable the flexible, place-based, and adaptive management of water resources. This paper identifies three key ways in which the WSA incorporates such flexibility and responsiveness: 1) the use of discretionary language; 2) inclusion of ‘enabling’ legislative tools; 3) reliance on policy instruments. Drawing on interviews with ministry officials and water experts in British Columbia, together with BC’s history of water legislation, this paper critically examines the logics and implications of these three facets of BC’s water act modernization. Attention is paid to whether and how these mechanisms are expected to improve the sustainable management of BC’s freshwater resources, as well as their equity implications. While analysis remains speculative at this point in the WSA’s implementation, the study identifies significant concerns over whether enabling provisions will be implemented, their variability across space, and the costs of implementation. As such, the WSA provides a cautionary tale of how attempts to modernize environmental legislation may result in embedded indeterminacy, where the outcomes of legislative reform remain uncertain, and the burden of responsibility remains on local and non-state actors seeking environmental protection.

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