Research Area: Water Sustainability

Capturing the national pulse on water, the report is a synthesis of themes, perspectives, and information from the Forum for Leadership on Water's fall 2011 cross-Canada water discussion series tour. It illustrates the interrelatedness of many water issues common to all Canadians, and documents the growing need for solutions that transcend chronic jurisdictional challenges. It also explores the Northwest Territories’ groundbreaking new water stewardship strategy as a model for water policy reform in the rest of Canada.

The Public trust doctrine is a longstanding legal principle that has the potential to provide protection to ecological values, ensure water for future needs, and protect public uses and interests. While application of the principle is widespread in the U.S., it has yet to be fully articulated in Canada. This paper will outline the opportunity to enshrine the Public trust doctrine into Canadian water law by highlighting the foundational aspects required in any legal framework. It will highlight key cases in which courts in other common law jurisdictions have applied Public Trust principles, and discuss the interplay between the development of this principle at common law and in legislation. It will provide an overview of the core legal principles of the Public Trust that already exist in Canada’s common law tradition, and discuss the potential to develop these principles in the context of modern water governance using the current water law reform process in British Columbia to illustrate the powerful potential of this ancient concept to address modern freshwater challenges.