(BY HUGO)

The Munk School of Global Affairs convenes a conference on water protection in the context of shale gas development.

The conference, titled «Fracture Lines: Will Canada's Water be Protected in the Rush to Develop Shale Gas?», will be held on 14 October 2010 at the University of Toronto. A draft programme is available here.

This is very interesting and timely given the current rush to develop shale gas in Canada. In particular, such developments raise concerns in Québec, where private interests and the government appear to have decided that shale gas exploitation is urgent and necessary. A recent opinion letter in Le Devoir (in French) identifies the social and environmental issues related to this subject in Québec.

Interestingly, a representative of the Québec ministry for Sustainable Development and the Environment will be among the plethora of industry representatives speaking at the Munk Conference.

UPDATE: As possible points of discussion for the conference panels on «statutory authority and regulatory preparedness» and «legal and liability issues», Byard Duncan reports on Alternet that gas companies drilling in Pennsylvania have committed nearly 1,500 environmental violations in just two years, while the Environmental Working Group reports that fracking companies might illegally inject diesel underground.

(BY HUGO)

An article by Maude Barlow and Anil Naidoo from the Council of Canadians in the Toronto Star outlines Canada's role as the leading opponent to the materialisation of the right to water as the UN general Assembly has been presented with a motion on this issue.

Canada's official position is that recognition of the right to water would force Canada to share its water with the USA. This is a weak argument from a legal point of view. As the article points out, a state's obligations to respect, protect and fulfil human rights are to its own citizens. The article identifies a more pressing menace to Canadian waters:

«Far more dangerous to this country’s water are the provisions of NAFTA, which give American companies rights to Canada’s water, and the proposed Canada-E.U. Comprehensive Economic and Trade Agreement (CETA), which will give water corporations the right to challenge local public control of water services.»

The impact of NAFTA on water apportionment and conservation in Canada has been studied in detail by legal doctrine. However, the impact of the projected CETA on water resources management needs to be studied.

The Department of Foreign Affairs has some information to start with. A legal opinion by Steven Shybman from Sack, Glodblatt, Mitchell LLP is made available by the Columbia Institute Centre for Civic Governance and focuses on the impact of CETA on municipal procurements and in particular on the procurements related of drinking water services (see p.18 & ff).

I do not have have the time to look at primary sources and the general legal context of CETA at the moment, but Shybman's opinion suggests that the agreement would be detrimental to municipal control over drinking water services in Canada.

It appears that the draft text of CETA was leaked by the Trade Justice Network last April. One question is why governmental secrecy in the first place? Another one is why do Canadian negotiators appear to agree to initially unfavourable terms for Canadian interests? This seems to be a general tend in international economic trade to the extent that incompetence has been envisaged as an explanation (see Shybman's opinion p.22).

I do not believe this is the case. However, as demonstrated regularly over recent years in daily news, a critical perspective on our political leaders' commitment to general public interest and welfare is healthy.

(BY HUGO)

Three significant reports have been published last week on water management issues in Canada.

Firstly, the National Round Table on the Environment and the Economy released «Changing Currents: Water Sustainability and the Future of Canada’s Natural Resource Sectors» (NRTEE Report). The NRTEE Report is one of the outputs of a two year research program designed to address the following questions: With development of the natural resource sectors on the rise, does Canada have enough water to support economic growth while maintaining the health of the country’s ecosystems? And is Canada in a position to sustainably manage its water resources for future generations?

The NRTEE Report aims at giving an overview of water resources status in Canada as well as identifying the key water issues for natural resources exploitation. The Report identifies four water sustainability issues of national importance: 1) water governance and management; 2) the impact of climate change; 3) the water-energy nexus; 4) public participation.

The NRTEE Report recognises that watersheds deliver ecosystem services to society that, when valued economically, often far exceed the value of water allocated for direct anthropogenic uses. Conventional financial markets do not capture the value of ecosystem services, yet the value provided to society by freshwater cannot be underestimated. In regions where ecosystems are severely degraded, the economic costs associated with lost ecosystem services and efforts to restore them are considerable and can far outweigh benefits of other water uses. The Report then determines that the attempts to value ecosystem benefits are generally at the experimental stage and necessarily imperfect and site-specific. Although this is not stated in the Report, these considerations could be argued to favour prevention and precaution in approaching any projects altering water resources status.

With respect to water governance and management, the NRTEE Report finds that water policies and regulations in Canada are burdensome and complex due to the jurisdictional division of powers between the federal and provincial governments and due to the fact that provinces also delegate some of their authority to municipalities. The Report recognises that water management in Canada has traditionally been achieved through regulatory and legislative tools, but a move toward a broader suite of policy tools for water management is needed in order to enable a more flexible and adaptive policy approach acknowledging regional and local particularities. The fragmentation of water management will require collaborative water governance models which will succeed only if a number of conditions are met:

«• they focus on a clear scope and clear outcomes;
• the right people are brought together, with the right convener;
• participants agree to fully get engaged and there is real commitment to the process;
• clear roles are identified for participants;
• the processes foster shared ownership and accountability; and
• an ongoing dialogue is built.»

Finally, the NRTEE Report stresses in various occasions the importance of alternatives to regulation for water management. The potential of markets appears to attract most of the interest in this respect. This is a notable confusion in an otherwise impressively researched and balanced report. Indeed, markets exist only through regulation. Property rights that are generally considered the essential building blocks of markets have often materialised through expansive frameworks constituting the foundations of legal regimes in Western jurisdictions. In other words, markets cannot be presented as an alternative to regulatory approaches, their very existence depends on regulation.

Secondly, the International Joint Commission Great Lakes Science Advisory Board released «Groundwater in the Great Lakes Basin» (IJC Report). The IJC Report is a fantastic source of data regarding groundwater in the Great Lakes basin. It conveys the enormous importance of groundwater to the Great Lakes Basin:

«It is estimated that there is as much groundwater in the Great Lakes Basin as there is surface water in Lake Michigan. The groundwater contribution to the Great Lakes tributaries ranges from 48% in the Lake Erie basin to 79% in the Lake Michigan basin. Groundwater maintains stream flows and wetlands during dry periods, supporting significant ecosystem functions. Groundwater is an important source of drinking water in the Great Lakes Basin. 8.2 million people, 82% of the rural population, rely on groundwater for their drinking water. Groundwater also provides 43% of agricultural water and 14% (and increasing) of industrial water in the basin.» (p.1)

The IJC Report consists in a short summary of findings and recommendations complemented by a series of 13 appendices on the most pressing issues regarding groundwater, ranging from the impact of chemical contaminants and pathogens to conveyance losses and applicable laws. Among the many points made in the Report are the following:

- the Great Lakes cannot be protected without protecting the groundwater resources in the basin, both at the quantitative and qualitative levels.

- with respect to volumes, even relatively small groundwater withdrawals have important repercussions. For example, withdrawals in the Chicago area shift the Great Lakes drainage divide as groundwater pumped from the basin is released in the Mississippi watershed after usage.

- with respect to quality, fecal pollution and microbial contamination is one of the most frequently identified threats to Great Lakes groundwaters. Pathogens enter the basin ecosystem from sludge, manure and biosolids land spreading, leaking sewer infrastructure and on-site waste water systems, landfills, cemeteries, injection wells, and waste and stormwater lagoons, all of which can impact groundwater quality.

- An impressive 440 273 229 m³/year of water is lost underground every year in conveyance through outdated and broken sewers and main water lines, notably resulting in severe groundwater contamination. This corresponds to economic losses amounting to US $218 306 566 per year. Montréal loses approximately 40% of its total produced water output, which equals 119 858 800 m³ per year at a cost of approximately $ 44 347 756.

Thirdly, the Fraser Institute has released a new report, «Making Waves: Examining the Case for Sustainable Water Exports from Canada» (Fraser Report). The Fraser Institute emulates the right-wing Montréal Economic Institute and argues in favour of water exports. The Fraser Report posits that Canada has so much water that it can be exported. It considers that unallocated environmental water is lost because it is left unused (p.35). Also, water should notably be explored based on the fact that «History is replete with examples of the superiority of trade to optimize resource allocation. Indeed, market pricing is the most powerful means of equalizing demand and supply.» (p.12; see also 36-37)

The central assertions to the Fraser Report are of dubious value. With respect to the over-abundance of water in Canada, both the NRTEE and IJC Reports reflect the fact that there is a looming water crisis in Canada. With respect to the water supposedly lost because left unused in the environment, the Fraser Report contradicts a very strong consensus in the scientific community to the effect that all characteristics of natural hydrological regimes are essential to preserve freshwater ecosystems (the natural flow paradigm). There is no such thing as lost or excess water. The myth of market efficiency is also easily dispelled following the reasoning of Ronald Coase: in situations of imperfect information, as is obviously the case with respect to water resources in Canada, markets fail.

It is interesting to see that Circle of Blue has decided to give air time to the Fraser Report rather than to the other two reports. This is the type of choice in news coverage that sets the terms for public and political debate.

(BY HUGO)

As mentioned in a previous post, the Forum for Leadership on Water (FLOW) has released a report (available online here) suggesting potential avenues for reform regarding safe drinking water management in Canada.

One of the main concerns in the Report pertains to First Nation access to safe drinking water. The Report notably mentions the following:

- «Unequal access to safe drinking water in Canada is particularly evident in Canada’s First Nations communities and in rural and remote communities. As of April 30th, 2010, there were 116 First Nations communities across Canada under a Drinking Water Advisory with a mean average duration of 343 days.» (p.3)

- «Kashechewan is a Cree First Nation community located near James Bay in Northern Ontario. Residents had been living under a boil water advisory for two years when on October 14th, 2005, elevated levels of E. Coli were reported in the local school’s drinking water supply. Adding excessive chlorine to the water to purify it just compounded the problems, resulting in high cases of impetigo among reserve children for over a year. Eleven days later, a state of emergency was declared and 946 people from a community of 1200 were evacuated to surrounding communities.» (p.5)

How did this situation come to be from a historical perspective? It is possible that European colonisation relying on agricultural settlement destroyed an essentially nomadic civilisation, and that fixing First Nations within the boundaries of small reserves imposed the need for "modern" sanitation on an aboriginal culture maladapted to such requirements.

Kenichi MATSUI, Native People and Water Rights: Irrigation, Dams and the Law in Western Canada (Montréal & Kingston, McGill-Queen's University Press, 2009), lends some credibility to these speculations by showing that the colonisers sought to transform a «nomadic and uncivilised people» into a «pastoral and civilised people» (p.35-36).

Whatever the root cause for the dismal state of drinking water supply in today's First Nations, the FLOW Report mentions 5 options for possible new regulatory frameworks that would solve the problem (see Report, p.12).

In this context, the Federal government appears to have made its choice. On 26 May 2010, a first reading of the Bill S-11 respecting the safety of drinking water on First Nation lands was done before the Canadian Senate.

The Bill is essentially a framework structure granting power to the federal government to make regulations applicable on first nation lands governing the provision of drinking water and the disposal of waste water (see sections 3 and 4).

The regulations may differ from province to province and incorporate by reference the laws of a province. Moreover, the federal Minister of Indian Affairs and Northern Development may enter into an agreement for the administration and enforcement of regulations with any province, corporation or other body. In Québec, the applicable provincial regulation is the Regulation respecting the quality of drinking water.

Hence, the Bill should be expected to provide an opportunity for this «cooperative federalism» that has been called for so often with respect to water management in Canada.

From a legal point of view, the necessity for this cooperative federalism stems from the division of powers in the Canadian Constitution. Articles 91 and 92 of the Constitution respectively apportion legislative powers to the federal and provincial governments. Drinking water is not a competence explicitly mentioned in the text of these articles.

As a result, provincial and federal competence over drinking water on First Nation lands can be inferred from a variety of sources. Traditionally, the Québec government has regulated drinking water on the basis, inter alia, that it has competence over local matters and health. However, the Federal government has competence over «Indians, and Lands reserved for the Indians» (section 91(24), Constitution). (For an online overview of constitutional issues related to water in Canada, see Alexandra Bailey, «Water Law: the Interjurisdictional Context», from the Centre for Constitutional Studies)

Hence, some duplication of the applicable legal framework can be expected. One can hope that provincial and federal interventions will be as coordinated as possible to avoid incoherencies and difficulties in interpretation and implementation.

Finally, an important issue relates to the extent of the First Nation juridiction over these matters. In 2007, the Assembly of the First Nations recommended that an eventual federal regime should:

«...recognize First Nations jurisdiction, which would be fully applied when First Nations governments are ready to exercise this jurisdiction and meet or exceed the national standard (for instance, many communities currently utilize provincial standards as a basis). The federal legislation would contain a non-derogation clause, entrench federal roles and responsibilities and establish the First Nations Water Commission model to enhance First Nations governments’ readiness to full exercise of their recognized jurisdiction over water management.»

In this respect, section 6 of the Bill provides that:

«(1) Regulations made under this Act prevail over any laws or by-laws made by a first nation to the extent of any conflict or inconsistency between them, unless those regulations provide otherwise.
2) In respect of an aboriginal body named in column 1 of the schedule, this Act and the regulations prevail over the land claims agreement or self-government agreement to which the aboriginal body is a party, and over any Act of Parliament giving effect to it, in the event of a conflict or inconsistency between this Act and that agreement or Act.»

(BY HUGO)

Thanks to colleague BO for the heads up on this one. The Water Innovation Centre and the International Institute for Sustainable Development have recently published an interesting report written by Karla Zubrycki et al. on «Water Security in Canada: Responsibilities of the federal government».

The report makes 9 priority recommendations that may be summarised as follows (p.4):

1- Review the 1987 Federal Water Policy;

2- Increase federal government leadership on water quality and quantity monitoring;

3- Strong federal leadership by example through best practice on federal lands;

4- Build adaptive management into federal water planning initiatives;

5- Increase federal support on the economic aspect of drinking and waste water municipal initiatives;

6- Upgrade drinking water standards;

7- Facilitate ecosystem-based management across jurisdictions;

8- Map major groundwater aquifers;

9- Consider developing a framework analogous to Europe's Water Framework Directive.

These recommendations address important issues and would surely improve water management in Canada. A few comments on the report are as follows:

- One particularly welcome suggestion in a Québec context is to «[u]se Fisheries Act to enforce instream flow needs, particularly if other options are not effective» (suggestion 19 at p.66). For protecting flows, the provincial government relies on the 1999 Politique des débits réserves écologiques pour la protection du poisson et de ses habitats. The Politique is inadequate as argued here and the government’s undertaking 22 in the Québec Water Policy to improve the Politique remains unfulfilled. Given the renewed drive to develop hydropower in Québec, additional protection for flows is urgently required;

- From a constitutional law perspective, the report argues «that the federal role in water security will need to increase in coming years due to the federal responsibility for peace, order and good government—that water security fits under the purview of POGG [Peace Order and Good Government] because it is an issue of national importance. In essence, the Canadian public expects its government to protect it from harm; the uncertainties of the 21st century and likely impacts on water resources are a compelling reason for the federal government to take renewed leadership on water security.» (p.56; see also p.53-55, 60-62). This is not a new suggestion. Professor Dale Gibson, in an excellent article that remains impressively actual, «The Constitutional Context of Canadian Water Planning» (1969) Vol.7 Alberta Law Review 71, asked whether POGG could «have any relevance to the administration of provincial waters? I believe that it would; not just because water resources are important to the nation (it is not the importance of a matter that moves it from provincial to national control, it is the fact that it cannot be dealt with in the manner desired at the provincial level), and not because it would be desirable to administer water uniformly across the country (water problems in Quebec are quite distinct from those in Saskatchewan, and call for a different approach), but because it would not be possible for any province by itself to create the kind of all embracing, multi-use administrative agency that most resource administrators seem to think would be ideal.»(p.86) The obvious risk of across-the-board increase in federal involvement is the sterilization of provincial legislation due to federal paramountcy. Whether one tilts towards subsidiarity or centralisation in the water management debate (for example, see Gibson p.91 – this article provides interesting reflections regarding the argument in favour of over-arching federal role based on the fact that political lines do not correspond to watersheds), this suggestion appears ill timed due to the current federal government’s disregard for environmental protection. Ultimately, law cannot compensate for the absence of political will to improve water management;

- The connection between the discussion on water security and the study of constitutional law as applicable to water resources feels a bit loose (part 4). The essence of that connection might be reflected at p.62: «Security is linked to “peace, order and good government.” Without security, peace and order are at risk.» This is difficult to contest. But is it enough to justify the report’s suggestion with respect to federal involvement? In Québec, section 85 of the Municipal Powers Act, R.S.Q., c.C-47.1, provides that a local municipality may adopt a by-law to ensure peace, order, good government, and the general welfare of its citizens. (On the municipal POGG, see a recent article from François Tremblay, «Le pouvoir réglementaire pour assurer la paix, l’ordre, le bon gouvernement et le bien-être général de la population : source nouvelle et confirmée d’intervention pour les municipalités» in Barreau du Québec, Développements récents en droit municipal 2011) While the concept of water security is en vogue and convincingly explains why water issues should be at the top of the agenda, the links between that concept and the suggestion that the federal government should use the POGG power to regulate water issues might have been developed in more details;

- A final comment which is not really relevant because it does not address a central point of the report, but while I am at it, why not: on page 60, the report makes a difference between on one hand economic instruments, such as tradable permits and taxes, and on the other hand regulatory instruments, such as legislation and liability. In recent years, this dichotomy has become recurrent in grey literature on water management. However, a clear distinction between economic instruments and regulation is impossible to uphold. A tradable permit requires a regulatory environment to exist. In fact, a tradable permit is a regulatory instrument. Taxes, of course, are often imposed through fantastically complex legislative frameworks. In short, the distinction between economic and regulatory instruments is a myth. Perpetuating it creates a perception of things economic as free and good, while regulation is repressive and to be avoided. At this point, one might get the feeling that there is a political intent behind the sustained effort to differentiate economical and regulatory instruments. A clue as to the nature of that political bias can be found in the ironically paradoxical suggestion to label deregulation policy as a regulatory instrument.

(BY HUGO)

A new bill, Bill C-26, was introduced by the federal minister for Foreign Affairs to the Canadian House of Commons on 13 May 2010 in order to prohibit bulk removal of transboundary waters.

According to Reuters, the Bill fulfills a 2008 promise by the Conservative government and complements existing provincial legislation that covers several bodies of water, including the Great Lakes. Through the Bill, the minister for Foreign Affairs declared that Canada is strengthening its resolve to make sure that there are no exports of bulk water that take place.

The Bill would principally amend the International Boundary Waters Treaty Act (IBWTA), which confirmed and sanctioned the 1909 Boundary Waters Treaty (Treaty) between Canada and the U.S.A.

Apart from adding inspection powers and increasing penalities under the IBWTA, the Bill alters the prohibition on water removals contained in section 13 IBWTA. Section 13 currently reads as follows:

«...no person shall use or divert boundary waters by removing water from the boundary waters and taking it outside the water basin in which the boundary waters are located...»

Boudary waters are defined as follows (preliminaty article of the Treaty):

«...the waters from main shore to main shore of the lakes and rivers and connecting waterways, or the portions thereof, along which the international boundary between the United States and the Dominion of Canada passes, including all bays, arms, and inlets thereof, but not including tributary waters which in their natural channels would flow into such lakes, rivers, and waterways, or waters flowing from such lakes, rivers, and waterways, or the waters of rivers flowing across the boundary.»

The prohibition contained in section 13 IBWTA is charaterised by the International Boundary Waters Regulations (IBWR). Sections 5, 6 and 2 IBWR are particularly relevant:

5. Subsection 13(1) of the IBWTA applies only in respect of the Canadian portion of the following water basins: (a) Great Lakes; (b) Hudson Bay Basin; and (c) Saint John — St. Croix Basin.

6. Subsection 13(1) of the Act does not apply to the removal of boundary waters other than the removal of boundary waters in bulk.

2. (1) "removal of boundary waters in bulk" means the removal of water from boundary waters and taking the water, whether it has been treated or not, outside the water basin in which the boundary waters are located

(a) by any means of diversion, including by pipeline, canal, tunnel, aqueduct or channel; or

(b) by any other means by which more than 50,000 L of boundary waters are taken outside the water basin per day.

(2) The removal of boundary waters in bulk does not include taking a manufactured product that contains water, including water and other beverages in bottles or packages, outside a water basin.

The new section 13 contained in the Bill would read as follows:

«(1) ... the bulk removal of boundary waters is prohibited.

(2) ... the bulk removal of transboundary waters is prohibited.»

Whereas the definitions of boundary waters and bulk transfers remain essentially the same, the definition of transboundary waters expands the prohibition of section 13 to waters that flow accross the international boundary in the water basins of the Atlantic Ocean, Arctic Ocean, Gulf of Mexico, Hudson Bay and Pacific Ocean (see section 3(2) and Schedule 2 of the Bill).

As a result, the Bill slightly expands the protection against transboundary bulk water transfers.

A guest post by Professor Marcia Valiante on the Great Lakes Law Blog, concludes that the Bill fills a gap in the legislation but is not ambitious either constitutionally or environmentally, and is perhaps an easy way for the government to improve its rather dismal environmental image.

The Council of Canadians is of the opinion that the Bill is not a ban on water exports and actually weakens the current regime due to the fact that the Bill narrows the definition of bulk removals to exclude water in manufactured products such as beverages. This opinion appears unfounded given that the current wording of section 2(2) IBWR is virtually identical to the wording of the exclusion from the definition of «bulk removal» under the Bill.

(BY HUGO)

On 17 May 2010, FLOW - Forum for Leadership on Water released a report on strenghtening the legal protection for Canada's drinking water.

Some of the challenges highlighted by the report to justify improved protection for drinking water in Canada are:

- In April 2008, the Canadian Medical Association reported that there were 1,776 drinking water advisories in effect across Canada;

- On 30 April 2010, there were 116 First Nations communities across Canada under a Drinking Water Advisory;

- An estimated 20–40% of all rural wells in Canada have nitrate concentrations or coliform bacteria counts in excess of drinking water guidelines;

- Half of the Canadian jurisdictions lack mandatory testing for chemical contamination of drinking water and over half do not require advanced water treatment for surface water;

- Many of the parameters in the voluntary pan-Canadian drinking water guidelines are up to 1000 times weaker than at least one of the other corresponding European standards or Australian guidelines.

To address these fundamental problems, the Report makes the following recommendations:

1 - The federal government could replace the Canadian Guidelines for
Drinking Water Quality with a Safe Drinking Water Act that has health-based long term objectives and legally binding minimum national standards and regulations;

2 - The federal government should ensure the drinking water standards are at least equal to the highest standards in other industrialized nations;

3 - The federal government should take steps to provide resources and support for safe drinking water on federal lands and all First Nations reserves;

4 - Establish consistent standards and reporting mechanisms to increase transparency about drinking water and wastewater systems, notably through a publicly available annual report to Parliament.

(BY HUGO)

An exciting discovery: The Living Water Policy Project.

The Project is an evolving library of Canadian water policy information. The site allows you to review summaries of up to date water policy documents for each province, compare water policies in different provinces with a unique comparison tool.

The Project can help to counter the managerial fragmentation of Canada's waterscape.

(BY HUGO)

British Columbia is currently reforming its legal framework for water management. In December 2010, a policy was proposed for the province's new Water Sustainability Act (WSA).

An interesting comparison between:
a) the 2008 Living Water Smart provincial initiative which launched the reform process;
b) the recommendations for reform made in 2009 by NGOs;
c) the 2010 policy proposal,
has been prepared by Randy Christensen, a lawyer with Ecojustice Canada, and Linda Nowlan, Director of Pacific Conservation with WWF-Canada. This comparison provides a great perspective to assess the reform process and evaluate whether the initial objectives are met.

The WWF has submitted comments on the WSA policy proposal that focus on environmental flow protection. The WWF argues the WSA should put environmental flows at the centre of the reformed framework through strong legal protection based on a five step process:

1 - Set a single province wide standard to protect environmental flows;

2 - Require regionally specific broad environmental flows standards to be determined, based on a classification scheme to group rivers and streams of the same type;

3 - Require time-bound plans for the most water-stressed areas that set environmental flow conditions and then require all licences to be subject to maintain those flow conditions;

4 - Require environmental flows to be considered in all new licences;

5 - Require review of licences at periodic intervals to enable response to changing flow conditions.

As the proposal now stands, WWF submits that only the third and fourth actions listed above will occur, leaving most of the province unprotected when it comes to environmental flows.

(BY HUGO)

An article by Kelly Cryderman from the Calgary Herlad reports on what appears to be a truly endemic problem in water law and management: deficient implementation and compliance monitoring. According to the article:

«The Alberta government is not systematically following up on whether water licence holders -- including irrigation collectives, corporations or towns and cities -- are illegally withdrawing too much water or breaking other laws, says the province's auditor general»

The report from Alberta's auditor general can be found here (see p.53).

Despite the apparent recurrence of similar problems everywhere, it could be argued that this is not an issue inherent to water law. Rather, it might more probably be caused by lack of political will and/or insufficient funding of enforcement agencies.

(BY HUGO)

The Canadian Bar Association 2011 National Environment, Energy and Resources Law Summit will focus on Water Law - Property, Protection and Policy. The Summit will be held on 7-9 April 2011, in Banff, Alberta. The annoucement for the Summit states:

«Join leading legal practitioners, academics and industry experts from across Canada and from the United States, South Africa and elsewhere, to discuss and understand the implications of differing domestic water allocation regimes on competing demands, the interplay between commercial development and water, the regulation and protection of natural water resources. Learn about the international concerns surrounding trade and the treatment of water as an export commodity, water in the Arctic, and trans-boundary water pollution. Develop insight into local and municipal issues such as restricted water use, pollution control legislation, drinking water delivery, watershed management and issues related to the development of Canada's water related infrastructure and the protection of Canada's drinking water supplies.»

The full details of the Summit are only available to attendees.

(BY HUGO)

An article from Josh Wingrove and Dawn Walton in the Globe and Mail reports on a once-in-a-generation drought that creates water crisis in Alberta.

(BY HUGO)

On 29 November 2010, royal assent was given to the Ontario Water Opportunities and Water Conservation Act.

The purpose of the Act is: 1) to foster innovative water, wastewater and stormwater technologies, services and practices in the private and public sectors; 2) to create opportunities for economic development and clean-technology jobs in Ontario; 3) to conserve and sustain water resources for present and future generations.

The Act establishes the Water Technology Acceleration Project corporation to: 1) assist Ontario’s water and wastewater sectors by increasing their capacity to develop, test, demonstrate and commercialize innovative technologies and services for the treatment and management of water and wastewater; 2) assist Ontario’s water and wastewater sectors by increasing their capacity to expand their business opportunities nationally and internationally; 3) provide a forum for governments, the private sector and academic institutions to exchange information and ideas on how to make Ontario a leading jurisdiction in the development and commercialization of innovative technologies and services for the treatment and management of waterand wastewater.

Finally, the Act also: 1) requires that certain municipalities prepare, approve and submit municipal water sustainability plans for municipal water services, municipal wastewater services and municipal stormwater services under their jurisdiction; 2) authorises the making of regulations requiring public agencies including municipalities and ministries to prepare water conservation plans in order to achieve water conservation targets.

Two interesting indications on the direction of the development aimed at in the Act:

- The preamble states that «Ontario has already shown leadership by banning bulk transfers of water out of Ontario’s water basins and in safeguarding public water supplies from source to tap. A new way of thinking about conserving our water resources is needed in Ontario, one that builds on the critical linkages between economic prosperity and long-term environmental sustainability.»

- Subsection 1(2) states that «For greater certainty, the purposes of this Act do not include the privatization of publicly owned water, wastewater and stormwater services.»

This gives a good indication that Ontario intends to develop its water sector through high added value initiatives that have strong inter-sectoral traction effects: high tech, research and development and capacity building through education rather than primary extraction and profit funnelling to shareholders. Sounds nice.

A complete description of the Act is provided here by the Ontario Environmental Registry.

The 2010 Canadian Freshwater Summit will take place on 1 & 2 June and will focus on the management of inland lakes, and rivers as well as its economic, social, and environmental implications.

Among the distinguished speakers will be David Schindler, who gave a masterful presentation at the recent McGill Conference on the Future of the Canadian Water Strategy, and Maude Barlow.

We have previously posted, here, here, here, here and here about Canadian data usefulness as a predictor of what EFCA might produce in the United States. The Economic Policy Institute has released data on first contract arbitration in Manitoba, the Province with the most EFCA FCA provisions. The small sample study notes that 87.5% (14 of 16) businesses who engaged in FCA between 2001 and 2007, remain in business. The AFL-CIO blog touts this as "evidence" EFCA is not a jobs killer. That a business remains in business is of course a positive fact, but really provides little proof that the business is no worse off than if it had not been required to submit to an imposed collective bargaining agreement. How successful could the 16 have been without this burden, would the two failed enterprises survived? The news in this piece is not that FCA is good, but rather that it was used only 14 times in 7 years.

(BY HUGO)

Just a quick post to refer to a nice and short policy paper from Elizabeth Hendriks on Implementing the public trust doctrine in British Columbia for POLIS. It provides an overview of the doctrine and the significant legal developments related to it. Good entry point for a more detailed study of the matter. POLIS has already published on this and there are a other articles in Canadian environmental law doctrine on this (ex.: Scott Kidd, «Keeping Public Ressources in Public Hands: Advancing the Public Trust Doctrine in Canada», (2006) 16 J. Envtl. L. & Prac. 187).

(BY HUGO)

Just a quick post to point to an ongoing debate that originated in California water management about earmarking the extinction of some species as acceptable. Here's a post from Professor Holly Doremus on Legal Planet that provides context and references on the origin of the debate.

This debate raises fascinating issues at the theoretical level about the anthropocentric nature of development and conservation but also at the advocacy or political level about picking the most effective path of action to achieve conservation goals.

Under the federal Species at Risk Act (SARA) in Canada, triage is implicitly accepted, as appears from a previous post. In 2010, the federal government decided not to list the Winter Skate for the following reasons:

«The prohibitions under section 32 of the Species at Risk Act (“the Act”), which come into effect after listing a species as threatened or endangered, require that any activity that would result in killing, harming, harassing, capturing or taking the listed species be stopped immediately. This would include fishing activity, if the Winter Skate is caught as bycatch while listed as threatened or endangered, as is the case for the Southern Gulf of St. Lawrence and Eastern Scotian Shelf populations, which have been assessed as endangered species and threatened species respectively. The negative socio-economic impacts of listing these populations would be significant and the population trajectory of the species is unlikely to be reversed as a result of the listing. The closure of commercial fisheries in Northwest Atlantic Fisheries Organization areas 4T and 4VW, which would be necessary as a result of listing these populations, would result in millions of dollars in lost revenue annually, as well as significant direct and indirect job losses.»

Thus, under SARA, triage is principally effected at listing level (arguably, triage can also occur during the development of recovery strategies, but this would presumably be less significant since the principal prohibitions to affect the species provided by SARA would already be operational). A brief review of SARA's provisions shows that identification and listing of protected species is subjected to a detailed process formally guided by scientific inputs but ultimately subordinated to political discretion.

A committee of experts in disciplines such as conservation biology, population dynamics or genetics, the Committee on the Status of Endangered Wildlife in Canada (COSEWIC), must assess the status of each wildlife species it considers to be at risk, with priority given to the species more likely to become extinct, in order to classify it as extirpated, endangered, threatened, of special concern or not currently at risk and, as part of the assessment, identify existing and potential threats to the species. (Here are COSEWIC criteria and guidelines for the status assessment of wildlife species)

The COSEWIC must then provide the reasoned assessment of a species status to the federal Minister of the Environment, who then makes a recommendation to the Governor in Council to add a wildlife species to the list of species at risk, to reclassify a listed wildlife species, or to remove a listed wildlife species. The Governor in Council may not accept the recommendation and decide not to add the species to the list of species at risk. All decisions not to add a species to the list despite assessments made by the COSEWIC appear to have been taken under the government in power since 2005 for reasons that include economic costs, absence of data as well as sectoral opposition.

Regarding triage under SARA, one of the main points that may block debate in Canada is that the phenomenon is not explicitly recognized by the legal framework (the preamble and the purpose of SARA) but nevertheless occurs in a completely discretionary space within the regime.

(BY HUGO)

The focus of this year's annual MISC Conference at McGill University is «Canadian Water: Towards a New Strategy».

The Conference will be held on March 25-26, 2010, and will feature key participants from the international development sector such as Margaret Catley-Carlson, and some prominent Canadian academics in water management such as Rob de Loë, Karen Bakker, Madeleine Cantin Cumyn and Linda Nowlan.

The participation of the Honourable Jim Prentice, Canadian Minister of the Environment, and Scott Vaughan, Commissioner of the Environment and Sustainable Development from the Office of the Auditor General of Canada, marks this conference as a high level event for water management in Canada.

(Of note, the Commissioner recently released reports critical of the implementation of two federal legal regimes important for the management of water-related resources - the Fisheries Act and the Canadian Environmental Assessment Act)

Could this conference serve as the spring board for a new federal water management framework? The previous one dates back to 1987 and arguably needs to be revamped.

(BY HUGO)

In the last 10 years, Alberta has experienced an economic boom based on tar sand exploitation. The main tar sand deposits currently exploited are situated in Northern Alberta, in the Athabaska river basin, which is tributary to the Mackenzie river, one of the last great North American rivers left in a relatively pristine state (here is a map of the North American watersheds).

Tar sand exploitation consumes large volumes of water. To extract 1 oil barrel from the sands, a water input of 2 to 4.5 barrels is required depending on the method. The used water is loaded with toxic contaminants and almost all of it ends up in tailing ponds.

Alberta has defined a framework that indicates how much water tar sand companies can remove from the Athabasca River in order to foster economic development while ensuring healthy aquatic ecosystems in conformity with the provincial water strategy (see p.10-11).

Recently, the Cumulative Environmental Management Association (CEMA) has released a report developing recommendations for a Phase 2 Water Management Framework that will prescribe when and how much water can be withdrawn from the lower Athabasca river for cumulative tar sand exploitation. According to the report summary:

«Key lessons and principles that emerged from this exploration, and are strongly recommended to form the basis of the final water management framework, include:

• Water withdrawal rules should generally be more restrictive as flows decrease.

• Although there is a need to provide instream flow protection throughout the entire year, there should be a hierarchy of protection across seasonal time periods: 1)midwinter, 2) late winter/early spring, 3) fall/early winter, and 4) summer.

• A specified EBF threshold is a means of providing increased protection during low flow events and refinements to its application on the Lower Athabasca River should continue to be explored.

• Mitigation using off-stream storage (or other equivalent approach to mitigation) is a necessary means of facilitating an effective water management framework.»

This report has been received with some reservations. The Prairie Chapter of the Sierra Club of Canada has set up the Got Thirst? Campaign that warns of the perils of water resources over-exploitation.

(BY HUGO)

A very interesting article about the human right to water in Canadian law by James Harnum, «Deriving the Right to Water from the Right to Life, Liberty and Security of the Person: Section 7 of the Canadian Charter of Rights and Freedoms and Aboriginal Communities in Canada», was just published in the 19th volume of the Review of European Community & International Environmental Law (RECIEL). From the abstract:

«This article examines the question of whether a right to safe drinking water can be derived from the right to life, liberty and security of the person that is protected in the Canadian Charter of Rights and Freedoms. By examining the situation of Aboriginal communities in Canada and the jurisprudence of the Supreme Court of Canada, it appears that a right to water may, in certain circumstances, be derived from other fundamental human rights.»

At the heart of the argument is the impossibility to establish a qualitative difference between negative and positive rights. Harnum refers to a number of cases in which a decision by the Supreme Court clearly had an impact on the regulatory and financial burden of the State to establish that tribunal should not only protect negative rights.

For a related but broader analysis under the Québec Charter, see David Robitaille, «Les droits économiques et sociaux dans les relations États-particuliers après trente ans d'interprétation: normes juridiques ou énoncés juridiques symboliques?» [Social and economic rights in State-individuals relations after 30 years of interpretation: legal norms or symbolic statements?](2006) Numéro thématique «La Charte Québécoise: Origines, Enjeux et Perspectives», Revue du Barreau du Québec 455.