Who "owns" the groundwater in BC?
August 29, 2019
By Mike Wei
To-date, there have been lots of mis-understanding and fears about the recent requirement regarding licensing of groundwater use in British Columbia (BC). Obtaining a water licence to use groundwater is not something we deal with everyday and, in fact, we never had to deal with it here in BC until 2016 when the Water Sustainability Act came into effect. Through this and upcoming posts, I am hoping to provide information, dispel some myths, and allay some of the fears related to groundwater licensing in BC.
Who "Owns" the Water in BC?
In this post, we’ll look at who “owns” the water in British Columbia.
Many BC land owners believe the water underneath their property – groundwater - belongs to them and is, therefore, theirs for the taking. However, this is not true.
In BC and other Canadian provinces, natural resources, including water, are owned and managed by the province. Canadian provinces and territories affirm this ownership in their water legislation (some more clearly than others). For example, Sections 5 (1) and (2) in the Water Sustainability Act (WSA) state that water in a stream and groundwater are vested in the government (i.e., in the Province of BC). The word “vested” is defined as: “secured in the possession of or assigned to a person (Oxford dictionary)”.
So in my mind, “the owner” - in this sense - is more like a trustee or guardian.
A BC land owner or business owner can, however, acquire a right to divert and use groundwater. The right is granted by the BC government via a licence (or use approval if the use does not exceed 2 years). Once a licence has been obtained the land owner or business owner can then legally divert and use groundwater from their well for their benefit.
It's interesting to note that in some jurisdictions, like Alberta, all water is vested. In BC, only water in a stream (“stream” is broadly defined in the WSA) and groundwater are vested; water on a rooftop, in a puddle in a parking lot, from melted snow or rain on land not within a watercourse are not vested in the province of BC; the province does not have jurisdiction to regulate the use of this un-vested water.
There is lots to talk about regarding licencing of groundwater (e.g., what’s in a licence, the priority of rights, water rental fees, etc.) but it’s better to provide this information in bite-sized pieces. So, stay tuned for further discussions in upcoming posts.
Thanks to C. Pinches of Western Water Associates Ltd. for providing suggestions to the draft of this post.