Tory veto of bid to preserve water under appeal

It was touted as a landmark application in June 2010 when an oil and gas company applied to donate half of its water licence on a central Alberta river for recreation, and improvement of wildlife and fish habitats.

But the move was vetoed by the province.

Nearly three years later, the dispute is before Alberta’s environmental appeals board.

“This is the first time we’re faced with this type of argument on water conservation licences,” said Gilbert Van Ness, lawyer for the board.

The appeal, which was heard last week, stems from an application by ConocoPhillips Canada to transfer 50 per cent of its water licence on the Medicine River, a tributary of the Red Deer River, to the Water Conservation Trust — which works to protect and enhance aquatic ecosystems by accepting donations of surplus water from licence holders.

The trust applied for a licence for habitat enhancement and recreation, and fish, wildlife and water management.

Alberta Environment rejected the application, stating that only the government can hold a water allocation in support of conservation objectives.

Neither the province nor ConocoPhillips would comment Tuesday, saying they don’t discuss cases before the appeal board.

Maureen Bell, executive director for the Water Conservation Trust, said they appealed because they believe the Water Act allows for the type of application they sought.

“We’re fairly confident that both the intent of the Water Act and the words of the Water Act let us do it,” she said, noting it sets out about a dozen purposes to hold a water licence — including municipal, agricultural, industrial, habitat enhancement, recreation or water management.

Van Ness said there are two main issues being considered by the environmental appeals board.

“The conservation trust wants a licence for an in-stream flow, meaning they want to make sure ... that there is a certain volume of water available in the river,” he said, noting that’s unlike a normal licence, where you apply to withdraw water. “They want to make sure that stays in the river for the protection of the river.

“The first question is whether you can issue a licence for that.”

In addition, he said the board needs to consider whether the province characterized the transfer properly.

If not, then the licence could be issued provided the water is being used for one of the purposes described by the trust.

If it’s classified as a conservation objective, the board would then have to decide whether anyone other than the province can hold a licence for conservation purposes.

Van Ness said the board is in the midst of reviewing and analyzing the information and will prepare a report with their recommendations for Environment and Sustainable Resources Development Minister Diana McQueen by early March.