<p> This thesis aims to provide a normative evaluation of the Western U.S. water law of prior appropriation through a contextual analysis of water value pluralism. The first chapter begins with a preliminary account of the major justificatory arguments made in defense of prior appropriation, followed by two critiques that undermine some proposed advantages of the water policy. The purpose of this analysis is to elucidate the normative claims that underlie many of the arguments within this debate but which fail to be made explicit. It becomes clear that these normative claims assume a utilitarian criterion for resource distribution, according to which water is primarily viewed as an economic good with a monetary value. The second chapter challenges the legitimacy of this assumption by introducing non-monetary water values, with attention to the particular social and cultural contexts in which they emerge. Through a review of four economic proxies, these non-monetary water values are shown to be incommensurable with monetary valuations. Finally, the third chapter offers a theoretical framework for the incorporation of non-monetary water values into resource distribution decisions. From this normative analysis, it is concluded that a necessary condition for achieving just resource distribution decisions is for prior appropriation to incorporate value pluralism by recognizing the legitimacy of non-monetary water values.</p>

As the province of British Columbia seeks to rapidly develop an extensive natural gas industry, it faces a number of challenges. One of these is that of ensuring that development does not disproportionately impact some of the province’s most marginalized communities: the First Nations on whose land extraction will take place. This is particularly crucial given that environmental problems are often caused by unjust and inequitable social conditions that must be rectified before sustainable development can be advanced. This research investigates how the BC Oil and Gas Commission’s consultation process addresses, and could be improved to better address Treaty 8 First Nations’ concerns regarding shale gas development within their traditional territories. Interviews were conducted with four Treaty 8 First Nations, the Treaty 8 Tribal Association, and provincial government and industry staff. Additionally, participant observation was conducted with the Fort Nelson First Nation Lands and Resources Department. Findings indicate that like many other resource consultation processes in British Columbia, the oil and gas consultation process is unable to meaningfully address First Nations’ concerns and values due to fundamental procedural problems, including the permit-by-permit approach and the exclusion of First Nations from the point of decision-making. Considering the government’s failure to regulate the shale gas industry in a way that protects ecological, social and cultural resilience, we argue that new governance mechanisms are needed that reallocate authority to First Nations and incorporate proposals for early engagement, long-term planning and cumulative impact assessment and monitoring. Additionally, considering the exceptional power differential between government, industry and First Nations, we argue that challenging industry’s social license to operate is an important strategy for First Nations working to gain greater influence over development within their territories, and ensure a more sustainable shale gas industry. / Graduate / 0768 / 0615 / kgarvie@uvic.ca

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