(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)

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)

Just a quick post on the issue of hydraulic fracturing and contamination of underground drinking water already explored in a previous post. This article shows the potential repercussions of the internalisation of pollution costs on energy and gas producers. If the Amercian Congress regulates to protect groundwater, a merger between energy producers might be threathened. However, Congress is unlikely to act, as quoted analysts report...

(by HUGO)

The amazing New York Time series on Toxic Waters continues, this time with an article by Charles Duhigg on drinking water pollution in the U.S.A.

Basically, you have an outdated drinking water law from a few decades back that regulates less than 100 substances, while 60,000 chemical compounds from human sources are currently used in America. The effects of these substances on human health are mosly or totally unknown and good health research cannot keep pace with technological development:

«Many contaminants are hazardous only if consumed for years. And some researchers argue that even toxic chemicals, when consumed at extremly low doses over long periods, pose few risks. Other argue that the cost of removing minute concentrations of chemicals from drinking water does not equal the benefits.

Moreover, many of the thousands of chemicals that have not been analysed may be harmless. And researchers caution that such science is complicated, often based on extrapolation from animal studies, and sometimes hard to apply nationwide, particluarly given that more than 57,400 water systems in this contry each deliver, essentially, a different glass of water every day.»

This appears to be a clear case where the conjoined application of the principles of precaution and prevention could lead to a salutary ban on the introduction of new chemical substances unless positively proven harmless through comprehensive and exhaustive scientific studies. The European Union has recently taken steps in this direction with the new regulation on chemicals REACH.

(BY HUGO)

The brother blog Indonesia Law Reporter has just posted a few reflections on an recent article by David Zetland, «Water Rights and Human Rights: The Poor Will not Need Our Charity if We Need Their Water».

This interesting article covers many important issues discussed by the Indonesia Law Reporter.

From a purely legal perspective, Zetland's article is guilty of totally ignoring the actual legal classifications pertaining to property rights and ownership, especially in the context of continental legal traditions.

In the Napoleonic tradition, property offers usus, fructus and abusus to the owner. Property may vary in form through specified modalities, and can be divided into constituent rights through recognised dismemberments.

These typologies and the related legal constructs and mechanisms, which are specific to each jurisdictions, have an important impact on the economic management of water resources because they often determine the transaction costs related to transfers of rights.

Unfortunately, blackboard economics tend to overlook the very significant impacts of legal «technicalities», which are particularly crucial in jurisdictions where the doctrine of numerus clausus is accepted (see for example this article).

According to this doctrine, the number of forms for property rights are not infinite, but limited to a specific few recognised forms. This forces newly proposed resources management regime to fit into the existing legal taxonomy for property rights, and constrains inovation.

Finally, although the assessment of the effectiveness of Zetland's proposal is entirely beyond the competences of this blog, it remains usefull to point out that all national scale experiments to create a water market for allocative efficiency have de facto failed up to now, and spectacularly so in most cases.

(BY HUGO)

Global Water Intelligence is taking a stance on the issue of public vs private sector participation in drinking water service provision which is examined by Catarina de Albuquerque, UN independent expert on the right(s) to water and sanitation.

(BY HUGO)

In the province of Québec (Canada), municipalities provide more than 80% of the population with drinking water, and tariffication is not volumetric but generally indirect and linked to municipal real-estate property taxation.

As a result, tariffication of water services is moslty a non-contentious issue and case law relatively scarce.

In this context, the recent delivery of two judgements from the Superior Court in less than a month regarding drinking water tariffication is a notable occurence.

In the first judgement, 2623-4617 Québec inc. v Sept-Îles (Ville de) (in French), the plaintiff company, owner of real-estate properties, requests that be declared inapplicable the municipal regulation setting repayments for the municipal debt incurred further to drinking water infrastructure extension.

The municipal regulation imposes taxation on the owners of immovable property in the sector where service is extended. The Plaintiff opposes this on the basis that it does not actually receive drinking water, that there are no buildings on its lots, that the lots cannot be built upon, and that it does not and cannot derive a benefice from service extension.

The municipal regulation relies on the powers granted by section 487 of the Cities and Towns Act, which reads as follows:

487. [...] the council may impose the special tax for the payment of municipal works of any kind, including works of maintenance, according to either the municipal valuation or the area or the frontage of the taxable property subject to such tax. [...]
The council may also charge the cost of such works
(1) to the municipality;
(2) to the ratepayers of part of the territory of the municipality;
(3) to the ratepayers benefiting from the works when they are carried out in any part of the territory of the municipality [...][Emphasis added]

Section 561 of the Cities and Towns Act adds that:

561. Where the repayment of a loan is to be borne by the owners of immovables of a part only of the territory of the municipality or by those who benefit from the works as determined under section 487, the tax to be levied each year during the term of the loan shall be assessed only on the immovables of the owners concerned. [Emphasis added]

So the question is whether the Plaintiff is an interested owner that benefit from the infrastructure extension.

After a review of case law precedents, the tribunal decide that the municipal regulation is applicable to the Plaintiff. Benefits do not have to be direct and immediate to impose on owners the financial burden of infrastructure extension, but it is necessary that the taxable owner derive a potential future benefit. In this instance, the tribunal decides that it remains possible that the Plaintiff benefit from connection to the service in the future, and the municipal regulation must be applied. Of note is the fact that the infrastructure serves to provide water for fire hydrants.

Legal principles similar to these in various jurisdictions have a significant impact on investment amortization. Investment viability may be influenced by court decisions that interpret the reach of the norms governing who should pay for infrastructure extension. However, economic studies and academic research on watsan provision rarely look at such legal norms and their interpretation in case law. Doing so could help ground blackboard economic studies.

In the second judgement, 2957-6345 Québec inc. c. Roberval (Ville de) (in French), the Plaintiff corporation is the owner and operator of a shopping mall in which the 23 businesses use drinking water provided by the Defendant municipality.

The Plaintiff attacks the validity of a municipal regulation on drinking water tariffication that requires the Plaintiff to pay 23 times the CAN$210 minimal service fee per year.

The Plaintiff's motion is rejected by the Court on the ground that the Plaintiff has not put forward any evidence that the municipal regulation is invalid because unjust, while the burden rests clearly of the Plaintiff's shoulders to do so according to consistent Court of Appeal precedents.

All in all, this case is notable because it is one of the very few that focuses on the interpretation of sections 244.1 to 244.6 of the An Act respecting Municipal taxation in the context of drinking water tariffication.

(BY HUGO)

With little time left until the 2015 deadline to achieve the Millennium Development Goals, the UN General-Secretary produces a preliminary report on progress towards the MDGs through a review of successes, best practices and lessons learnt, obstacles and gaps, challenges and opportunities.

This might have an impact on the international development agenda related to attainment of human right to water and sanitation.

(BY HUGO)

A new report authored by Sharlene Leurig and titled «The Ripple Effect: Water Risk in the Municipal Bond Market» was published by Ceres last week.

The report studies water scarcity risks for public water and power utilities in the U.S.A and details the related financial risks. This is a very interesting read. Particularly refreshing is the section on why the model for assessing risks related to power utilities may be wrong (see p.41-42 and Annex C). You don't see such an admission often, but it is entierly consistent with the original intent: obtain the most accurate risk assessment possible rather than portray an abstract model as infallible.

(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.

(BY HUGO)





The independent expert does not tackle the issue of human rights obligations imposed on transnational corporations (TNCs). This appears justified because states bear the brunt of the obligations with respect to human rights in international public law, and because TNCs remain marginal actors among a variety of other small scale private providers.

This is sensible: regulation of natural monopoly by the state in water services is recommended as a cure to private sector excesses and potential violations of human rights.

However, it also leads to the overburdenning of developping states with very limited capacity. It is doubtfull whether developping states can devise, monitor and enforce a sophisticated reglatory system for drinking water quality protection while a contry as rich as the USA is failing in this task as de facto demonstrated by the Toxic Waters Series from the NYT.

Moreover, neglect of the TNCs as significant actors for the respect of human rights leads to neglecting new emerging normative frameworks such as the OECD Guidelines for Multinational Enterprises (in particular, see p.14, General Policies, §2) that could improve human rights compliance by non-state actors (on the positive effect of the Guidelines, see Larry Backer, «Rights and Accountability in Developement...», in particular p.283 & ff.)

The independent expert also takes particular care to state that human rights are neutral to economic models in general and models of service provision more specifically (for example, see UN HCHR §52). At face value, this is in line with orthodox human rights theory.

However, this apparent neutrality is tested when the independent expert declares that challenges to access to water and sanitation include lack of transparent and democratic decision making, power asymmetries in negociations processes between TNCs and host states, unaffordable or unavailable services for the poorest...

All these challenges imply value judgements at the economic and political levels. In the end, human rights are not neutral, and to pretend so might not be the most adequate position in the long term. Human rights need their substantive values to perform their reforming function.

Finally, the independent expert shows a clear departure from traditional international human rights law theory by orienting the discussion towards standards setting with respect to water quality, regularity of supply, safety of sanitation facilities and affordability of services.

This is an essential step towards concrete objectives, effective monitoring, and possible attainment of the objectives. However, ex ante standard setting for human rights is risky.

For example, the independent expert refers to the World Health Organisation Guidelines as standards for water quality. These guidelines specifically mention that scarce resources require targeted regulation based on a risk-benefit approach (p.2).

Through this approach, human rights become associated to regulatory frameworks that aim at saving a majority by sacrificing a minority, something that could arguably be considered anathema to a more traditional vision of human rights.

In summary, building an entire water resources management regime on human rights appears unworkable and leads to inherent contradictions. The international development community should focus more on human rights when they perform their most potent function: ex post discursive recourses to redress or compensate structural imbalances, imperfections or failures in prospective water resources management regimes.

(BY HUGO)

In the U.S.A., current public health guidelines call for drinking water fluoride levels between 0.7 milligrams per liter and 1.2 milligrams per liter.

However, the U.S. Department of Health and Human Services (H.H.S) now recommends that fluoridation be pegged at 0.7 milligrams, the bottom level of the current guidelines' range. Moreover, on 7 January 2011, the U.S. E.P.A. and the H.H.S., announced that they would review the guidelines to ensure maximal health protection (see E.P.A.'s website for background sources).

One of the issues appears to be the possible adverse health impact of cumulative fluoride ingestion from other sources than drinking water (toothpaste, processed food with high fluoride content due to traces of pesticides, etc).

In Québec, optimal drinking water fluoride levels are set at 0.7 milligrams per liter under the Regulation prescribing the optimum fluoride concentration to prevent tooth decay. One eye should be kept on developments South of the border in the event that the E.P.A. review detemines that a lower fluoride concentration is more protective of public health.