Clerical error threatened water rights of southern Alberta ranchers

Environment: News Roundup from the April 2018 issue of Canadian Cattlemen

Historic water rights became a source of contention for ranchers relying on the Milk River watershed this winter, due to what provincial officials are now calling a bureaucratic error.

Last December several ranchers in the Milk River basin received letters from Alberta Environment and Parks (AE&P) cancelling their traditional water rights applications, which were submitted 16 years before.

Aaron Brower, who ranches at Aden, Alta., received his letter December 27, informing him that because he had failed to respond to requests for additional information on his 2001 application, his file was being closed. Brower was initially confused by the request since the last time he was contacted by the department for additional information was in 2011. “They said they had some incomplete files on the same conversation, and I went into their office and their folder was depleted,” Brower told the assembled ranchers at the 2018 annual general meeting of the Western Stock Growers’ Association. So he had to provide a copy of his original documents “so they had a copy of it.”

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Eventually a government official came out to his ranch and recorded the GPS locations of his wells and dams.

“That’s the only time that I had consultation with them in this whole 16-year process,” says Brower.

The original water source on his ranch, which was previously a North West Mounted Police livestock quarantine station, was developed in 1910. His family later developed other water sources under the regulations of Alberta’s Water Resources Act, which permitted agricultural producers to access water for both household and stock watering without obtaining a licence.

When the Water Act was enacted in 1996, the new legislation allowed producers to continue using their historic water sources and apply for a registration or licence under the new framework. The original application deadline was December 31, 2001.

Brower’s frustrations continued this winter when he attempted to find out what was missing from his application, and why it was still being processed 16 years later. “I couldn’t even get them to have a conversation with me to see what the problem was,” said Brower. “They didn’t consult me that there was an issue, which they have to do. They just took it. It was outright theft.”

The letter did not mention that Brower had 30 days to appeal the decision, after which his ranch’s water use would be considered in contravention of the Water Act.

After some discussions with other government officials, Brower hired a lawyer and filed an appeal with the Alberta Environmental Appeals Board.

On that first visit to the Lethbridge office Brower was told that AEP was reviewing every file in the province. “It’s something that everyone needs to be aware of.”

“At the end of the day, if you don’t have water, you’re done.”

While Brower was told he could reapply for a licence, it would require him to resubmit all the files that the department already had, and also cause him to lose his priority as a 2001 applicant.

“At no point did I ask for a green light on my application,” he said. “Through this process I’ve only asked for three things: I want the letter that I got… suspended immediately, because I wasn’t even aware that there was an issue. Second of all, I want my application put back to the 2001 status, and third, I want a conversation on this,” he told the WSGA members.

In January, the WSGA and the Alberta Grazing Leaseholders Association (AGLA) posted his letter of appeal on their websites to let other producers know what he and others in the area were facing.

“The delivery of these sorts of letters and this type of ultimatum to producers of any stripe in agriculture that rely on water is very unfortunate,” said Larry Sears, a past president of the AGLA. “It is irresponsible, inconsiderate and… ignores the grandfathering that took place when the Water Act was written.

“It’s inexcusable that after 17 years that this should come up. These files should all have been done, wrapped up. Any omissions should have been taken care of long ago.”

Some ranchers approached lobby groups such as the the Alberta Beef Producers who agreed to raise these issues with the appropriate government officials to be sure they understand the need for producers to feel secure about their access to land and water.

On February 23, Shannon Phillips, minister of environment and parks, posted a statement on her Facebook page: “I can tell you in no uncertain terms that not a single rancher in Alberta is going to be stripped of their water access.

“Department officials, in their work to address some legacy issues around modernizing water licences, incorrectly closed applications from a small number of producers who needed to provide some additional information in modernizing their licences. We are now working to correct this error.

“I have directed my officials to sit down with each and every rancher who has licence issues and support them in ensuring they have the access to water they need to continue to care for their livestock and earn a living off the land.”

Matt Dykstra, a spokesperson for Phillips’ office, explained in an email that the department reviewed more than 1,000 water applications from the South Saskatchewan River region “in order to address a backlog of water licence applications and ensure applications were up-to-date.”

When asked why some of these applications had been processing for 16 years prior to this review, Dykstra said that “some applications date back to the early 2000s, and were missing critical information for AEP staff to consider granting a water licence.”

It remains unclear why officials did not tell Brower exactly what information was missing from his application when he first called to investigate the cancellation letter.

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