Instream Flow and Athabasca Oil Sands Development: Contracting Out/Waiver of Legal Water Rights to Protect Instream Flow -- a Legal Analysis

Abstract

As Alberta Athabasca oil sands development increases, so do the oil sands industry's water requirements from the Athabasca River. In an attempt to address the competing interests of industry's needs and maintain sufficient instream flow in the River to support aquatic ecological needs, Alberta Environment and the federal Department of Fisheries and Oceans developed a Water Management Framework designed to identify and protect instream flow requirements. This article examines the Framework's interaction with legal rights, particularly in the context of licences granted under Alberta water rights legislation. The article raises and analyzes issues concerning the enforceability of the Framework as either a contracting out or waiver of legal rights. As well it considers the effectiveness of the industry agreement made in connection with the Framework. Finally, the article discusses alternative possibilities for reconciling industry's water needs with the protection of the aquatic environment.