Because fracking consumes a huge amount of water, Western
Canada Wilderness Committee (WCWC) and the Sierra Club of
B.C. recently challenged how the B.C. government grants water
use approvals to oil and gas companies. The government gives a
series of short term approvals for fracking, frequently renewed,
without regulating the cumulative water taking of an entire
At issue was the interpretation of s. 8 of the Act and,
specifically, whether the provincial oil and gas commission (OGC)
was abusing the power to grant consecutive short-term approvals in
lieu of longer licenses which theoretically require greater
Section 8(1) states:
If a diversion or use of water is required for a term not
exceeding 24 months, the comptroller or a regional water manager
may, on application, without issuing a licence, grant an approval
in writing, approving the diversion or use, or both, of the water
on the conditions the comptroller or regional water manager
The Court pointed out that oil and gas companies "use"
less than 1% of all surface water allocated for use in B.C. and
that hydro power is allocated greater than 90% of all such
approvals. WCWC, supra at para. 16. Oil and gas operators typically
require water use for geophysical exploration, drilling, winter
road construction, well drilling and the testing of pipelines, for
example. The Court also cited statistics from 2012 that show
approvals for fracking were actually on a downward trend compared
to 2009. Moreover, the OGC has developed policies regarding
short-term approvals for fracking; such approvals are generally not
permitted beyond 12 months even though the maximum length possible
under the statute was recently amended from 12 to 24 months.
Policy and practice aside, in answer to the legislative
interpretation question, the Court held that:
 On a plain reading of ...[the] Act, in context with the
scheme of the Act, the object of the Act, and the intention of the
legislature, there is simply no prohibition relating to consecutive
short-term water use approvals or even recurrent approvals lasting
in total in excess of 24 months....
 While s. 8 of the Water Act refers specifically to a
"term not exceeding 24 months", there is no basis upon
which to infer an intention to prevent someone who had received the
same type of approval from re-applying for the same or similar
permission. From a public policy perspective, it is difficult to
discern any difference between this situation and that where a
completely different party may come along and apply for the same or
a similar approval. In either case, ... the Commission ha[s] the
statutory authority to consider the application and make a decision
based on the present information before them.
 If the intention of the legislature was as is contended by
the Petitioners, then it could have easily specified "one
term" or even "multiple terms not exceeding 24
 Where the language of the legislation is clear and
unequivocal, the court should not read-in a prohibition against
recurrent approvals [other citations omitted].
The Court also referred to the legislative history, for the
amendments which came into effect in 2013 lengthening the period of
short-term allowances from 12 to 24 months, and cited then Minister
of Environment, Barry Penner, as stating the purpose of the
amendments was to "reduce the 'administrative burden'
being placed on the ministry, not to prohibit the existing practice
of 'rolling over' the approvals." Id. at
Ultimately, the Court suggested that the concerns of the
petitioners were overblown:
 .... While I agree that short-term approvals were not
intended to provide long term water rights, that does not foreclose
the ability of a person to apply for and obtain a series of short
term approvals, which, again, are all granted pursuant to fresh or
new applications that are reviewed and assessed ... on a de novo
basis each time. In that way, while perhaps not as extensive as
those in relation to a licence, it is the case that there are also
"checks and balances" in the s. 8 approval
...There is nothing to indicate that previous holders of s.
8 approvals are somehow "grandfathered" or favoured in
respect of any application for a new s. 8 approval.
WCWC and the Sierra Club were represented by Ecojustice.
Just days before the case was heard in court, the B.C. government
introduced its new Water Sustainability Act, which
Ecojustice says is targeted precisely to address the
point of the lawsuit, i.e., to expressly legitimize consecutive
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