Report of the Commission on Cyanobacteria in Québec

(BY HUGO)

The report (in French) on lakes and cyanobacteria in Québec by the National Assembly Commission on Transports and the Environment has been released at the beginning of December (previous blog post).

As with the consultation process, the report feels slightly underwhelming. It constitutes more a synthesis of what is known and acknowledged as necessary for better water management with respect to cyanobacteria than a significant innovative proposition for the future. This does not detract from the value of the recommendations presented in the report, among which are the following:

1 - Confirm and assign with more precision the respective responsibilities among stakeholders involved in water management. On this subject, one of the more focussed comments of the Commission is worth quoting because it highlights the tension between, on one hand, homogenisation through integration, and on the other hand, subsidiarity through delegation as well as variability due to adaptation to local conditions - «Cependant, la réglementation sur la gestion de l’eau et de ses bandes riveraines est très variable d’une municipalité à l’autre, voire au sein d’une même MRC. De plus, certains propriétaires riverains estiment avoir des droits acquis qui échappent aux compétences municipales. La Commission souhaite que le gouvernement adopte des mesures concrètes qui visent à harmoniser les règlements municipaux au sein d’un même bassin versant. Il devrait, dans cet exercice, tenir compte des disparités économiques et territoriales et prévoir un soutien technique propre à l’application des règlements. Enfin, on devrait poursuivre par ces réglementations les objectifs énoncés dans les plans directeurs de l’eau.» (p.4)

3 - Grant governmental funding necessary for the realisation of water master plans. The source of funding should come from the fees paid for withdrawing water.

4 - Integrate the water master plans with the RCM Land Use Planning and Development Plan (see the Act respecting Land use planning and development).

8 - The Québec government should provide support to the municipalities and regional county municipality for the implementation of laws and regulations on water management.

9 & 16 - The government should review the criteria for the width of the riparian protection areas to limit phosphorous inputs.

12 - A financial support programme to help poorer segments of the population respect regulatory standards on sceptic tanks should be put in place by the government.

13 & 14 - The revision of the Regulation respecting waste water disposal systems for isolated dwellings should be prioritised with a view to increasing the phosphorous retention capacity of regulated sceptic tanks.

15 - The government should promote a sustainable model for agriculture that takes into account the water support capacity for phosphorous inputs. This recommendation is concomitant with decrees amending the farming insurance programme that push agriculture towards ever higher productivity.

New Right to Water website launched

(BY HUGO)

On 10 december, WaterAid launched a new human rights to water and sanitation website. Some of the main pages of the site related to:

- The legal framework for the human rights to water and sanitation

- How to use the human rights-based approach (HRBA) in water developement

- Recent developments in international law with respects to the human rights to water and sanitation

The web site provides a good introduction to these issues. The site represents the HR advocacy position on the human right to water debate. For example, the site establishes the traditional dichotomy between States - governments, public officials, service providers - as duty bearers and citizens as rights holders. However, the site refers to the plurality of interpretations on what constitutes the HRBA to water (the History of a rights based approach to development section still seems under construction).

For a critical analysis on these issues, see «A Clash of Paradigms in the Water Sector? Tensions and Synergies Between Integrated Water Resources Management (IWRM) and the Human Rights-Based Approach (HRBA) to Development».

A forthcoming book likely to provide significant substance on the reflection about HRBA and the rights to water is due to be published soon: Anna Russell & Malcolm Langford (eds), The Right to Water: Theory, Practice and Prospects (Cambridge: Cambridge University Press, 2011).

2011 Canadian Bar Association Conference on Water

(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.

Greece accedes to the 1997 UN Convention on transboundary waters

(BY HUGO)

Greece acceded to the Convention on the Law of the Non-Navigational Uses of International Watercourses on 2 December 2010 (see UN Treaty Collection Database). Greece has become the 21st country party to the Convention. According to article 36 of the Convention, it shall enter into force when 35 countries are party to it.

The WWF reports on the motivations behind Greece's decision. According to Tina Birbili, Greek Minister of Environment, Energy and Climate Change:

«The promotion of transboundary cooperation on water issues is inherent to Greece’s foreign policy, since around 25% of its surface water extends to or originates from neighbouring countries. The UN Watercourses Convention together with the EU Water Framework Directive constitute the necessary background and reference point for advancing the transboundary negotiations that Greece has initiated with Albania and the Former Yugoslav Republic of Macedonia, on the Prespa Lake; with Turkey, on the Evros basin; and with Bulgaria, on the Nestos, Strymon, Ardas, and Evros basins.»

In light of the above, 2 interesting points are: 1) the blurring of boundaries between international and national law through supranational law with the EU Water Framework Directive; 2) Greece's adherence to the principles of equitable and reasonable use as well as no harm for the management of transboundary waters with Turkey.

Turkey is principally an upstream state sharing waters with parched downstream neighbours in the Fertile Crescent. Turkey's position on transboundary waters is a traditional stance leaning towards the Harmon doctrine. Now, it seems that the principles of the 1997 Convention might be furthered against one of its prominent adversary due to the combination of Turkey's desire to join EU with water management reform in Greece under the WFD. Of note is the fact that Turkey is the state that required a vote on the 1997 UN Convention and voiced strong criticisms in UN plenary meeting at that time (Mr. Çelem, 21 May 1997):

«The draft Convention under consideration today is solely a framework Convention, as reaffirmed by General Assembly resolution A/51/206 and by draft resolution A/51/L.7, which is before us today. The mandate of the Sixth Committee to elaborate a framework convention was established very clearly by General Assembly resolution A/51/206. Accordingly, the draft Convention should have set forth only general principles and its application should have depended upon the drawing up of specific agreements which take into account the particular characteristics of the watercourses. In our view, neither the title nor the content of the draft Convention correspond to this provision of both resolutions.

In this respect, the draft Convention goes far beyond the scope of a framework convention and, in contradiction to its intent and nature, establishes a mechanism for planned measures. This has no basis in general and customary international law. Furthermore, this mechanism creates an obvious inequality between States by stipulating that, in order to implement its planned measures, a State belonging to a certain category is obliged to obtain the prior consent — tantamount to a veto right — of another State belonging to a certain other category.

It should also be stressed that it is not appropriate for a framework convention to foresee any compulsory rules regarding the settlement of disputes and not to leave this issue to the discretion of the concerned States. Furthermore, the draft Convention does not make any reference to the indisputable principle of the sovereignty of the watercourse States over the parts of international watercourses situated in their territory. The draft Convention should clearly have established the primacy of the fundamental principles of equitable and reasonable utilization over the obligation not to cause significant harm. The present text is liable to create confusion as far as implementation of the whole Convention is concerned.

In conclusion, my delegation would like to state that the Republic of Turkey does not intend to sign the Convention on the Non-Navigational Uses of International Watercourses and that this Convention does not and shall not have any legal effect for Turkey in terms of general and customary international law. For the reasons I have just explained, my delegation will vote against draft resolution A/51/L.72.»

The human right to water in Indonesia

(BY HUGO)

Colleague Mova Al Afghani has recently uploaded on SSRN a paper on «The Potential Role of the Human Right to Water in the Management of Indonesia’s Water Resources». The paper argues that:

«there are gaps in the Indonesian legal framework in securing transparency, access to information, participation, access to justice and the procedure in recognizing customary rights in water resources management. Without adequate access to these procedural rights, vulnerable, marginalized and financially weaker groups will be left out from water resources management and will not be able to secure their entitlements. The Human Right to Water has potentials for filling such gap by reforming the implementing regulation of the Water Resources Law and enhancing the possibility to obtain legal recourse.»

A very interesting read, notably for the scope of the legal provisions considered in the analysis, as it provides an integrated legal perspective on the challenges and problems at ground level related to water for domestic consumption. Also interesting is section 5 on the role of the human right to water, and particularly subsection 5.b on the human right to water vs. cultural and customary rights, as well as subsection 5.f on the transposition of the International Covenant on Economic, Social and Cultural Rights in Indonesia.

One question that might be discussed a bit more is related to the interaction between the human right to water and other human rights. Reading the paper, it sometimes feels like the human right to water is constituted of a bundle of ‘substantive’ and ‘procedural’ rights (ex: see p.4 last §, as well as subsection 5.b on Right(s) to participation, transparency and access to information). Are these rights constituent human rights included under a human right to water? Are they considered as autonomous human rights? Is this an illustration of the doctrine of indivisible, inter-related and inter-dependent human rights?

Ontario aims at becoming the leading clean water jurisdiction in North America

(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.

Asian Carp litigation: preliminary injuction dismissed - again

(BY HUGO)

Another loss in a long series of lost battles: Steve Kellman reports for the Circle of Blue that a preliminary injunction to close the locks on the Chicago Canal to prevent Asian Carp entry in the Great Lakes has been rejected - again.

It's particularly interesting to see how the court attacks scientific evidence based on the eDNA tests because this method does not provide certainty as to the establishment of viable Carp communities beyond the Canal locks (see notably p.44 & ff. of the decision).

At an abstract level, there could be a parallel with the processes related to discrediting scientific evidence on human induced climate change. Prevention and precaution appear completely immaterial. We need to hit a wall at full speed to realise there's a problem and take action. We can only cross our fingers and hope the crash is not fatal.

Water, death and human rights

(BY HUGO)

A quote on the human right to water from a Canadian icon, found by chance:

«Go three days without water and you don't have any human rights. Why? Because you're dead.» Margaret Atwood, Observer Magazine, 28 November 2010, p.18 (online here)

Is this a justification for the human right to water? A fortiori, does the same justification apply to air? Should there be a human right to air? Is the emergence of new human rights absolutely good? Does it denote a more profound problem? On these issues, two interesting thoughts may further the reflection initiated here. According to Radha D’SOUZA, «Liberal Theory, Human Rights and Water-Justice: Back to Square One?» (2008) 1 Law, Social Justice & Global Development Journal at 9:

«What is missed by political theorists canvassing for human rights as a means of mitigating the problems of privatisation in the wake of ‘globalisation’ is the fact that the struggle for new rights come with recognition of new market prerogatives. The human right to water arises because water is brought into a private property regime in which it was not included before. What is at stake here is the entrenchment of water as part of a property regime.» [Here, property must not be understood as the legal artefact stricto sensu, as it refers to a political conception of social and economic regimes.] (link)

According to Costas DOUZINAS, «The End(s) of Human Rights» (2002) 26 Melbourne University Law Review 445 at 459:

«Both universal morality and cultural identity express different aspects of human experience. Their comparison in the abstract is futile and the differences between the two are not pronounced. When a state adopts ‘universal’ human rights, it will interpret and apply them, if at all, according to local procedures and moral principles, making the universal the handmaiden of the particular. The reverse is also true: even those legal systems which jealously guard traditional rights and cultural practices against the encroachment of the universal are already contaminated by it. All rights and principles, even if parochial in their content, share the universalising impetus of their form. In this sense, rights carry the seed of dissolution of community and the only defence is to resist the idea of rights altogether – something impossible in the global capitalist world.»

Confirmation of agreement on the management of Lake Champlain

(BY HUGO)

A cooperation agreement on environmental matters regarding the management of Lake Champlain between New York, Vermont and Québec (the Agreement - French version here), signed in March 2010, was confirmed by governmental decree 918-2010 on 3 November 2010.

The Agreement is the latest in a series of agreements between the parties that date back to 1988. In 1990, the American Congress passed the Lake Champlain Special Designation Act (Public Law 101-596) leading to the creation of the Lake Champlain Basin Program, which is now implemented through the Opportunities for Action: An Evolving Plan for the Future of the Lake Champlain Basin (the French version of the Plan, dated 2003, provides details about related institutional and legal frameworks).

The Agreement confirms the role of the Lake Champlain Steering Committee in the cooperative management of the basin. The Steering Committee is notably mandated to implement the Plan and foster interactions between regulation and management programmes related to the monitoring of Lake Champlain (see section 2.6). The Agreement and the Plan recognise the ecosystem approach to basin management.

Water stress in +2C vs. +4C climate changed worlds

(BY HUGO)

The Tyndall Centre for Climate Change Research published the Four Degrees and Beyond Special Issue of the Philosophical Transactions of the Royal Society A Journal (link), with an interesting article by Fai Fung, Ana Lopez & Mark New on «Water availability in +2°C and +4°C worlds».

The paper contrasts water availability and water stress in a world where warming is limited to 2◦C as per the Copenhagen undertakings and one where policy fails and warming reaches 4◦C, a likely scenario according to scientific sources quoted.

The paper defines a water stress index (WSI) based on water resources per capita calculated as the ratio of mean annual surface run-off (MAR) to population. This is recognized as simplistic and reference is made to more complex models in the literature on water stress or scarcity, but a simpler index is justified to reduce uncertainty and limit data requirements. Some interesting parts of the paper discussion are as follows:

«changes in mean annual run-off in a +2◦C world are generally amplified in a +4◦C world: drier areas dry further and wetter areas become wetter. Moreover, as these changes in MAR become amplified, both the consensus and spatial coherence of these changes strengthen. By investigating the changes in water stress in 112 of the world’s major river basins, we have also found that the majority of these river basins are projected to suffer greater water stress in a +4◦C world than in a +2◦C world. However, as we move from a +2◦C to a +4◦C world, there are also a small but increasing number of basins that may experience less water stress, as they are located in regions where rainfall is projected to increase. By using population growth scenarios for the 2030s and 2060s, we find that in a +2◦C world, water stress is dominated by the change in population. However, as we move to +4◦C world and the climate change signal becomes stronger, climate change can play a more dominant role in determining water stress in a river basin. (...)

By examining a subset of the world’s major river basins, we have shown that the picture for water stress in each river basin is dependent on the magnitude of the climate change and the nature of the population growth. For some river basins, the effects of climate change become large enough to offset the large increases in demand in a +4◦C world, e.g. in the Ganges; in most basins, however, climate and population growth combine to increase stress or climate change is insufficient to offset increased demand.

We have also found that seasonality in run-off may be more pronounced in a +4◦C world compared with a +2◦C world; thus, even where annual average runoff increases, dry seasons can become more stressed. This could mean that more sophisticated infrastructure projects may be required in a +4◦C world compared with a +2◦C world in order to prevent flooding and droughts.»

Given the business as usual approach to adaptation in Québec, this could mean that trends in dam building and supply oriented solutions will continue to amplify. Possible impacts of dams on the environment at the provincial level might depend on changes to reservoir release regimes under which the dams must operate (inversion, homogenisation, natural) in order to adapt to climate change. As most large dams operate for power generation, modifications in energy demand to face climate change could be an important factor influencing flow regimes and alterations patterns to freshwater ecosystems. Reductions in heating during winter, increase in climatisation duing summer and increased seasonal run-off variability might all point to a move away from natural reservoir release patterns and towards homogenisation or inversion regimes. The Ouranos Consortium has published studies regarding some aspects of climate change on Québec water resources.

POLIS policy paper on public trust doctine in British Columbia

(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).

Modifications to the Dam Safety Regulation

(BY HUGO)

Projected amendments to the Dam Safety Regulation have been published. The amendments propose to extend the statutory time limits for the performance of safety reviews by the owners of dams. The extended time limits only apply to dams whose failure consequence category is low. The proposed regulatory amendments also correct wordings that posed difficulties with respect to the determination of safety check flood as well as the application of earthquake resistance standards.

2 new project regulations on water resources management in Québec

(BY HUGO)

The Ministry of Sustainable Development, Environment and Parks has published 2 new project regulations.

One is to amend the Regulation respecting the application of section 32 of the Environment Quality Act, the Groundwater Catchment Regulation and the Regulation respecting waste water disposal systems for isolated dwellings. According to the introductory text, the main purpose for these amendments is to relax regulatory controls on businesses and natural resources exploitation:

«The proposed amendments would reduce the administrative requirements related to certain waterworks and sewer projects having little environmental impact. (...) Private institutions, businesses and industries, that own such systems, would also benefit from the proposed amendments since they would no longer be required to obtain a prior authorization to carry out certain water or sewer main replacement work. In addition, enterprises that carry out forest management, mining exploration, transportation or dam work and that must set up temporary industrial camps of 80 persons or fewer would no longer be required to submit plans and specifications to the Minister and obtain the Minister’s authorization before installing waterworks and sewer systems.»

The other projected regulation propose a framework for the authorization of certain projects to transfer water out of the St. Lawrence River Basin. After a very quick preliminary review, one question that can be raised on this regulation project pertains to the limits on access to information regarding the transfer projects (see sections 4 and 5 in fine). For example, why should access be denied to a narrative description explaining why no alternative reasonably accessible supply source is capable of meeting drinking water needs? Or why deny access to a narrative description explaining why the water transfer is necessary?

Could the transparency of the process under the Ontario regulation for transfers outside the Great Lakes St. Lawrence River Basin be a source of inspiration? The website set up with respect to one such transfer for the York region provides a whealth of information on all aspects of the projected transfer.

The contacts for comments on the project regulations are provided both on the Ministry's website and in the texts published in the Gazette Officielle.

New claim under Chapter 11 of NAFTA further to the cancellation of licences for outfitting operations

(BY HUGO)

Thanks to colleague Ana-Maria Daza for the heads-up on this one: the revoking of licences to exploit salmon rivers that were granted to an American owned outfitting operation by the government of Québec seems to have recently triggered a notice of arbitration under NAFTA's Chapter 11, according to CNW:

«The $8 million-plus claim alleges unfair treatment of U.S. citizen William Greiner concerning his Canadian-formed company, a lodge and outfitting business which offered Atlantic salmon fishing and hunting in Quebec. (...) It is alleged in the Notice of Arbitration that government action was taken discriminatorily, without legal authority or due process and in violation of NAFTA. The arbitration raises issues regarding the unfair treatment of American citizens investing in businesses in Canada. The Notice of Arbitration also states that the actions taken by the Quebec Government were done in order to protect investments the Government had made in competing businesses, and that Mr. Greiner was targeted because of his nationality, as well as the nationalities of his clients.»

I would be grateful for any advice on how to get a copy of the claim.

Here's a very helpful quote from our American friend Mr. Greiner: «The Government of Canada should understand that laws are meant to be followed». Wow. Thanks.

According to Foreign Affairs and International Trade Canada, William Jay Greiner and Malbaie River Outfitters Inc. are already involved in a dispute under NAFTA Ch11. They served Canada with a Notice of Intent on September 16, 2008, claiming $5 million and alleging that the province of Quebec severely damaged the investor’s business by changing the lottery system for obtaining salmon fishing licenses in 2005 and harmfully revoking licences (see notice here). Interestingly, the letter from Québec authorities indicating the reasons for the revocation (in attachement to the notice) points to unethical behaviour from Greiner's business in addition to economic reasons.

The legal framework for the management of outfitting operations is detailed by the Act respecting the conservation and development of wildlife as well as its regulations. Among the provisions that might be somehow relevant in this context are the following:

85. The Minister may delimit areas on land in the domain of the State with a view to increased utilization of wildlife resources and the carrying on of recreational activities incidental thereto.

86. The Minister may lease exclusive hunting, fishing or trapping rights on all or part of the lands in the domain of the State contemplated in section 85. The Minister may also lease exclusive trapping rights in a controlled zone or in a wildlife sanctuary.

86.1. Notwithstanding any general law or special Act and subject to the right of first refusal of the Native people provided for in the Act respecting hunting and fishing rights in the James Bay and New Québec territories (chapter D-13.1), a lease of exclusive hunting or fishing rights shall be granted, after a call for tenders, to the tenderer whose bid is the most advantageous. However, the Minister is not required to lease exclusive rights if the Minister is of the opinion that the most advantageous bid is inadequate. A lease of exclusive rights is not subject to a call for tenders if the lease is
(1) a lease for a renewal;
(2) a lease for a transfer;
(3) a lease for an extension of rights;
(4) a lease for the expansion of territory;
(5) a lease of exclusive fishing rights that does not cover outfitting activities or that covers a body of water less than 20 hectares in area.

86.2. Where a part of the lands in the domain of the State is contemplated in an outfitter's licence although the licence holder does not hold a lease of exclusive hunting or fishing rights and where that part of the lands in the domain of the State is subsequently delimited in accordance with section 85, the Minister shall
(1) revoke the licence if a lease of exclusive rights is granted to a person other than the licence holder;
(2) amend the licence if the designation of the lands in the domain of the State affects only part of the territory contemplated in the licence.
The provisions of this division in respect of the acquisition of buildings and structures situated on the territory identified in the lease apply, adapted as required.

88. The lessee of exclusive hunting, fishing or trapping rights may, in view of the increased utilization of wildlife resources, erect buildings and structures on the land assigned to him without being required to comply with the provisions of the Act respecting the lands in the domain of the State (chapter T-8.1) concerning leases or occupation licences for land in the domain of the State. The lessee has a right of occupation on the land where the buildings and structures are erected, for the term of the lease.

89. Where the Minister repeals, amends or replaces the instrument delimiting areas of land in the domain of the State, the Minister must revoke or amend the lease of exclusive hunting, fishing or trapping rights for the territory contemplated by the repeal, amendment or replacement.

90. The Minister may amend, revoke or refuse to renew a lease of exclusive hunting, fishing or trapping rights if
(1) the lessee has failed to comply with the conditions of his lease;
(2) the lease was obtained pursuant to a fraudulent declaration.

91. Upon the revocation of a lease under section 89 or the non-renewal of a lease by the Minister for reasons other than those provided in section 93, the Minister shall
(1) compensate the lessee, if no other lease has been granted elsewhere to the satisfaction of both parties, in consideration of, in particular, his loss of revenue derived from the exercise of his rights under the lease; and
(2) acquire the buildings and structures situated in the territory identified in the lease by paying to the lessee who owns them an amount equivalent to their real value or compensate the lessee in consideration of the decrease in value of the buildings and structures.
Upon the amendment of a lease under section 89, the Minister shall acquire the buildings and structures situated in the territory identified in the lease and affected by the amendment by paying to the lessee who owns them an amount equivalent to their real value or compensate the lessee in consideration of the decrease in value of the buildings and structures.
However, if the exclusive hunting, fishing or trapping rights under the lease not being renewed by the Minister for reasons other than those provided in section 93 are granted to a new lessee, the new lessee has an obligation to acquire the buildings and structures for an amount equivalent to their real value and in no case may he exercise his rights under the lease until he becomes their owner.

92. Upon the revocation or amendment of a lease under section 89, if the Minister compensates the lessee in consideration of the decrease in value of the buildings and structures, the lessee shall, within one year of the date of compensation, remove the buildings situated in the territory identified in the lease and affected by the revocation or amendment, or obtain from the Minister, the right to continue to occupy the land concerned under the Act respecting the lands in the domain of the State (chapter T-8.1).

93. Upon the revocation or non-renewal of a lease pursuant to section 90, or where the lessee has, before the expiry of his lease, notified the Minister of his intention not to renew it, every new lessee has an obligation to acquire the buildings and structures situated in the territory described in the lease by paying to the owner of the buildings and structures an amount equivalent to their real value. The lessee whose lease is revoked or not renewed retains his right of occupation only until a new lessee is designated or until the instrument delimiting the area of land in the domain of the State is repealed, amended or replaced so as to exclude the land where the buildings owned by him are situated. No new lessee may exercise the rights conferred by his lease until he becomes the owner of the buildings and structures contemplated in the first paragraph.

94. If a difference of opinion arises between the new lessee and the former lessee or between the Minister and the former lessee on the real value of the buildings and structures contemplated in sections 91 and 93, the Minister shall appoint an assessor agreed by the parties; the assessment of the appointed assessor is without appeal. The costs incurred for the assessment are assumed equally by both parties.

96. No person may, except with the lessee's authorization, carry on an activity for which exclusive rights have been granted on any land on which exclusive hunting, fishing or trapping rights have been granted.

A recent report by Scott Sinclair from the Canadian Centre for Policy Alternatives provides food for thought on the regulatory chill effect of Ch11.

Public interest in the Québec water allocation regime

(BY HUGO)

Amber Weeks presents an interesting thesis in the article «Defining the Public Interest: Administrative Narrowing and Broadening of the Public Interest in Response to the Statutory Silence of Water Codes», which is published in the Natural Resources Journal.

According to Weeks, U.S. administrative agencies responsible for water management are required to deny applications for new appropriations and transfers that are not in the public interest. Weeks' argument is summarised in the article's abstract:

«the majority of [Western U.S.] states leave the public interest undefined. This article examines contrasting administrative responses to statutory silence in Nevada and Idaho. Ultimately, this article finds that statutory silence has historically led the Nevada State Engineer to narrowly interpret the public interest as water law. In contrast, the Idaho Department of Water Resources has broadly interpreted statutory silence beyond water issues, causing the Nevada Legislature to narrow the public interest definition in 2003. Statutory silence has resulted in both uncertain interpretation of the public interest and a disconnect between the public interest and public values. Consequently, this article calls for legislatures to define the public interest through a combination of statewide public interest criteria and ongoing input from regional planning groups.»

The above is relevant in the context of Québec water law because Act 21 2009 establishing a new water allocation regime relies on the same concept of public interest to apportion resources between users.

Section 31.79 states that the responsible Minister may refuse to issue or renew a water withdrawal authorization or modify the conditions to which the authorisation is subject in order to serve the public interest.

Section 31.81 states that the term for water withdrawal authorizations is 10 years, but that the Minister may issue or renew an authorization for a shorter or longer term to serve the public interest.

Finally, under section 31.106, a prohibition against water transfers out of Québec may be lifted for emergency-response or humanitarian reasons or any other reason considered to be in the public interest.

In other words, this undefined notion of public interest will play a key role under the new Québec water allocation regime once it comes into force. Weeks' findings should be considered by the regulatory authority when developing the regulation for the implementation of the new allocation regime.

Québec water caselaw 15: Earthworks in a wetland without a valid municipal authorisation

(BY HUGO)

In Rivière-Rouge (Ville de) v. Huguet (in French), the Defendant obtains a municipal authorisation to do earthworks on his property in the riparian area of a lake. The works starts on the same day, but a municipal inspector visiting the site realises that the filling is taking place in a wetland, something contrary to the municipal regulation. The municipality immediately informs the Defendant that the authorisation is cancelled and that the work must stop at once. Despite this, the Defendant goes ahead with the earthworks during the following days despite continued warnings from the municipality.

The defendant is charged with a penal infraction in strict liability for having done work without a valid authorisation a contravention to the municipal regulation. Although municipal authorities are not bound by an authorisation granted contrary to the municipal regulation, as is the case in this instance, the municipal inspector does not have the power to stop the works under the applicable municipal regulation. Moreover, the municipal regulation does not allow the municipal inspector to revoke the authorisation. Nevertheless, an illegal authorisation does not grant an acquired right, and the infraction the Defendant faces is to have conducted works without a valid permit. The Court finds that the Defendant has no defence of reasonable diligence, as he understood that municipality asked the works to stop but he rushed to complete the works to put the municipality before a fait accompli.

Water related risks from an insurance perspective

(BY HUGO)

A report from MARSH Canada, A Review of Water-Related Opportunities and Threats, outlines insurance issues in the sector to ensure adequate coverage. The main types of coverage discussed relate to property and general liability, environmental insurance and D&O liability insurance (p.6-7). From an insured's perspective, one question can be how the considerations related to the various risks outlined in the report (operational, litigation, regulatory, financial) have an impact on the duty to disclose. For example:

«Organizations that are heavily dependent on water supply such as beverage, energy, and agricultural producers, as well as technology manufacturers may face significant business interruption losses due to the lack of adequate water supply. As such, it is important that organizations consider this possibility when evaluating their business interruption exposure. Business interruption coverage is available on a property policy as long as the event is
caused by an insured peril.» (p.6)

This has a particular resonance in the context of sections 2408-2413 of the Civil Code of Québec. Sections 2408-2410 CCQ read as follows:

2408. The client, and the insured if the insurer requires it, is bound to represent all the facts known to him which are likely to materially influence an insurer in the setting of the premium, the appraisal of the risk or the decision to cover it, but he is not bound to represent facts known to the insurer or which from their notoriety he is presumed to know, except in answer to inquiries.

2409. The obligation respecting representations is deemed properly met if the representations are such as a normally provident insured would make, if they were made without material concealment and if the facts are substantially as represented.

2410. Subject to the provisions on statement of age and risk, any misrepresentation or concealment of relevant facts by either the client or the insured nullifies the contract at the instance of the insurer, even in respect of losses not connected with the risks so misrepresented or concealed.

From a more general perspective, the vast number of reports in various industry sectors that are currently published on diverse aspects of water and risks (see also previous blog about the CERES report on water risks in finance) illustrates the tension between inherent natural variability in hydrology and ecosystem dynamics on one hand, and increasing efforts to ensure constant and stable access to water and related natural resources as well as constant revenue streams from their exploitation on the other hand. As resources allocation and exploitation reach various peaks or thresholds, the possible impacts of related risks increase.

Financial risks in water utilities: Report from Ceres

(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.

Québec water case law 14: Failure to obtain an authorisation to discharge waste water

(BY HUGO)

In CRI Environnement inc. v. Coteau-du-Lac (Municipalité de) (in French), the Plaintiff builds an industrial waste water treatment plant that discharges treated water containing benzene and chloroform into municipal sewers. The plant is built in 2002 and operated since 2003. However, the Ministry for Sustainable development, Environment and Parks has never issued authorisations to the Plaintiff under sections 22 and 32 of the Environment Quality Act (EQA) because the Plaintiff's discharges in the municipal sewers would exceed the municipal treatment plant's authorised maximal capacity. An additional ground for refusing to authorise the Plaintiff's discharges is that the authorisation under which the municipal treatment operates only allows treatment of grey water.

Hence, the Plaintiff incurs additional costs to transport its treated water to another treatment facility. The Plaintiff alleges that the Defendant municipality committed a fault in 2002 by failing to inform that the municipal sewers could not collect the Plaintiff's treated industrial waste water discharges. However, the Court finds that the Plaintiff's operation was always conditional on preliminary authorisations from the Ministry. The municipality has committed no fault, there is no causality link between damages claimed and the municipality's actions, and proof of the damages is insufficiently established.

The judgement presents some rules governing extra-contractual liability for municipalities and contains comments on the discretionary power of the Ministry to authorise polluting activities under the EQA.

Québec water case law 13: Defective septic tank

(BY HUGO)

In Thériault c. Construction Lortie inc. (in French), the Plaintiff, owner of a house in a riparian area, claims damages resulting from defects affecting the house’s waste water installation against the general contractor for having failed to fulfill its obligations to deliver a house with an adequate and functioning waste water installation. In turn, the general contractor alleges that the specialised subcontractor who built the installation is responsible for the damages. The subcontractor counters that the general contractor has imposed the choice of an inadequate installation to lower the construction costs. Moreover, the subcontractor claims that the municipality approved the inadequate installation and pressured the subcontractor into building it. The Court concludes that the general contractor is liable towards the Plaintiff, that the subcontractor has no extra-contractual liability towards the Plaintiff, and that the municipality is jointly and severally (in solidum) responsible for having failed to act in good faith and with reasonable diligence when authorising the waste water installation under the Regulation respecting waste water disposal systems for isolated dwellings.

The judgment provides some interpretative guidance with respect to the concept of «existing dwelling» in the Regulation respecting waste water disposal systems for isolated dwellings.

Drought under global warming

(BY HUGO)

A recent article from Aiguo Dai, «Drought under Global Warming: A Review», published in Wiley Interdisciplinary Reviews: Climate Change on 19 October 2010, reviews recent literature on drought of the last millennium, and provides an update on global aridity changes from 1950 to 2008. Projected future aridity is also presented based on recent studies and our analysis of model simulations.

The article provides a typology of droughts: meteorological drought; agricultural drought; and hydrological drought, which might be the more difficult to address because it occurs when river stream flow and water storages in aquifers, lakes, or reservoirs fall below long-term mean levels, thus probably requiring systemic adaptation in water allocation patterns and total consumption.

Interesting points from the article are as follows:

- «Successive "megadroughts", unprecedented in persistence (20–40 year) yet similar in severity and spatial distribution to the major droughts experienced in modern day’s North America, occurred during a 400-year-long period in the early to middle part of the second millennium AD over western North America. Compared with these multi-decadal droughts, the modern-day droughts in the 1930s and 1950s had similar intensity but shorter durations.» (p.4, references omitted)

- «One should not use total precipitation alone to measure changes in aridity or drought, as done in many studies. Increased heavy precipitation and reduced light to moderate rain can increase the runoff to precipitation ratio, and increases in surface air temperature and radiative heating can lead to higher atmospheric demand for moisture. These processes can result in drier soils even if the precipitation amount increases.» (p.13, references omitted)

- «Although natural variations (...) have played a large role in the recent drying, the rapid warming since the late 1970s has increased atmospheric demand for moisture and likely altered atmospheric circulation patterns (e.g., over Africa and East Asia), both contributing to the recent drying over land. Since a large part of the recent warming is attributed to human-induced GHG increases, it can be concluded that human activities have contributed significantly to the recent drying trend.» (p.15, reference omitted)

- «Coupled climate models used in the IPCC AR4 project increased aridity in the 21st century, with a striking pattern that suggests continued drying over most of Africa, southern Europe and the Middle East, most of Americas (except Alaska, northern Canada, Uruguay, and northeastern Argentina), Australia, and Southeast Asia.» (p.15)

Preannouncement: National Water Law Symposium 2011

(BY HUGO)

The Dundee UNESCO IHP-HELP Centre has set the dates for the 2011 National Water Law Symposium. The symposium will take place on 20-24 June 2011.

The symposium will focus on water allocation, water quality controls and integrated frameworks for water resources management. Among the various issues discussed will also be the implementation of international agreements at national level, the application of access to water as a fundamental human right and the provision of water services.

Further details will be annouced here.

Conference: Water wars between Alabama, Georgia and Florida

(BY HUGO)

On 27 October 2010, Professor Jake Peters from the USGS Georgia Water Science Centre will give a conference on inter-state tensions over the Apalachicola-Chattahoochee-Flint River Basin at the University of Dundee.

The conference, titled «Dukes of Water Hazard: Alabama, Georgia and Florida wage war over the waters of the Apalachicola-Chattahoochee-Flint river basin, but what about the fish, birds, bugs and bunnies?», is jointly organised by the University of Dundee’s UNESCO Centre for Water Law, Policy and its Centre for Environmental Change and Human Resilience.

Details for the conference can be found here.

Conference: Forum québécois sur l'eau

(BY HUGO)

Just a quick heads-up: on 25-26 October 2010, the Forum québécois sur l'eau (programme here - in French) will aim at bringing into focus the various issues and challenges for water resources management in Québec. This is organised by Les Affaires, Le Devoir and 98,5FM.

This is a real who's who of water in Québec, so if you can attend...

Environmental flows in Australia: Victorian perspective on farmer anger

(BY HUGO)

As widely reported in the media, proposed water withdrawal reductions to protect the environment in the new draft plan for the Murray-Darling River Basin in Australia have angered Australian farmers (article here from Circle of Blue).

In this context, a new report from the Auditor-General of the State of Victoria titled «Restricting Environmental Flows during Water Shortages» evidences inadequate environmental flow protection (a portion of the Murray-Darling Basin lies within Victoria).

Under the Water Act 1989 (Victoria), when there is less water available, the Minister for Water can declare a water shortage and temporarily ‘qualify’ rights to water, including the environment’s rights. This means the minister can alter access to water by either restricting—reducing or suspending—or increasing them to meet a critical need. The Water Act 1989 also allows the minister to alter water rights under a ministerial direction. This restricts or increases rights in a similar way to a temporary qualification. Essentially, the law allows for the allocation of reserved environmental flows to human needs during dry periods.

The objective of the audit was to assess how effectively the Department of Sustainability and Environment (DSE), water corporations and catchment management authorities (CMA) managed temporary restrictions on surface water rights to meet critical needs, including steps to minimise river health damage. The report concludes that:

«DSE and two of the three water corporations examined did not effectively manage restrictions to environmental water rights. DSE’s justification requirements for water corporations wanting to temporarily restrict water rights are sound. However, the water corporations did not consistently follow these guidelines.

Slow action to address environmental risks by South Gippsland Water and a lack of action and limited accountability by Grampians Wimmera Mallee Water (GWMW) around environmental risks meant that it was not possible to demonstrate that the environment had not been unnecessarily put at risk for the Tarwin and Wimmera rivers.

Limited DSE oversight of how the environment’s water rights were restricted meant it could not judge whether the restrictions were effective. This meant it could not effectively identify improvements. DSE did not enforce its own requirements, effectively de-valuing the need to justify environmental water right restrictions.»

Québec water case law 12: The «sleeping giant» v. hydroelectric development?

(BY HUGO)

Uashaunnuat (Innus de Uashat et de Mani-Utenam) v. Québec (General Attorney) (in French) is an interlocutory judgement rejecting demands for third party intervention in an action by First Nation Communities against Hydro-Québec as well as the provincial and federal governments.

The interlocutory jugement is mostly irrelevant from a water management perspective. However, the merits of the case could shed an interesting light on the impact of natives rights, which have often been collectively described as the «sleeping giant» of Canadian water law, on a major river derivation project for hydropower generation (La Romaine River near Havre-Saint Pierre in Minganie).

Further to the authorisation of the hydropower development project, the Plaintiffs globally argue on the merits that they possess native titles and ancestral rights on the relevant territory, that the provincial and federal governments have failed to respect their fiduciary duties towards the First Nations, and that the various authorisations for the project under federal and provincial legislations for environment protection are null and void.

This is one to follow...

Shale Gas in Québec: Lessons from tar sands exploitation in Alberta?

(BY HUGO)

Since the provincial prime minister has made a mockery of the mandate given to the BAPE (see previous post) by declaring that shale gas exploitation was inevitable, one of the central issues identified by Le Devoir and the CQDE that is yet to be discussed is the apportionment of benefits between private interests and the general public.

As revealed this summer by La Presse (one article here from Charles Côté - in French), Québec is the Canadian jurisdiction where the legal framework for mining is the most industry-friendly and taxes or royalties are the lowest. Instead of increasing royalties on the industry, the Minister for natural resources has declared that fees for day-care nurseries would be increased if shale gas exploitation does not go forward as planned (article here from Alexander Shields, Le Devoir).

In this context, an article by Bernard Roth, «NAFTA, Alberta Oil Sands Royalties, and Change: Yes We Can?» (2009) Vol.46 Alberta Law Review 333, would send a clear warning signal to a political class more attuned to the general interest. The problem with initially low royalties is that it might be impossible to increase them for one class of investors without serious difficulties. Roth's conclusion reads as follows:

«The Alberta government has announced an intention to follow suit by increasing royalties on all oil sands production, irrespective of its vintage. This is the first time since Canada entered into the NAFTA that a Canadian government has tried to capture additional value in an attempt to get what it believes to be its fair share of oil production. The NAFTA has arguably created a form of quasi-constitutional property protection for American and Mexican investors in Canada, which does not allow Canadian governments and legislators to expropriate without compensation. It may still be possible to impose this type of expropriation on Canadian investors, just not their American and Mexican counterparts. Alberta's oil sands leasing practices may have been effective when Alberta exercised more or less complete sovereignty over its resources. Before the NAFTA, ambiguities could be clarified through subsequent legislation and responsibility for compensation could be expressly disclaimed. It appears that Alberta did not adapt its Crown leasing practices to make it clear that the grants it makes are subject to an absolute and unfettered right to increase royalties without compensation in a post-NAFTA world. In the absence of a clear reservation to this effect, it may well be reasonable for oil sands investors to demand compensation. Under the NAFTA, a very good case can be made for compensation to recover the loss in value to oil sands investments that would result from increased royalties proposed by the Government of Alberta. The answer to the multi-billion dollar question posed by this article is: Yes we can! But, if we do, the Government of Canada may have to pay very large NAFTA awards to a lot of American oil companies.»

Shale Gas in Québec: Letter from the CQDE to Le Devoir

(BY HUGO)

Just a quick post to point to a letter (in French) from Michel Bélanger of the CQDE to Le Devoir on the absence of legal protection against the environmental impacts of shale gas exploitation in Québec.

Québec water case law 11: obligations under a commercial lease and the cost of a well

(BY HUGO)

In Agritex (Ste-Martine) ltée c. 9049-1135 Québec inc. (Propane du Suroît) (in French), a counter-claim in contractual liability is made to recover the costs incurred by a commercial lessee further to the drying up of an existing well serving the leased property and the sinking of a new well. The tribunal awards the damages based on the commercial lessor's failure to respect the obligations: i) to provide the lessee with peaceable enjoyment of the leased property throughout the term of the lease; and ii) to warrant the lessee that the property may be used for the purpose for which it was leased and to maintain the property for that purpose throughout the term of the lease (section 1854 of the Civil Code of Québec).

In this case, the costs related to an industrial user's access to water are allocated to the user's lessor through the law of contracts. This case illustrates the transversal nature of water law accross traditional legal silos.

National Assembly Commission on lakes with respect to cyanobacteria

(BY HUGO)

The public consultation on lakes and cyanobacteria in Québec by the National Assembly Commission on Transports and the Environment that took place in August and September has been overshadowed by the debate on shale gas exploitation. The memorandum filed by Jean-François Girard for the Centre québécois du droit de l’environnement (available here – in French) provides a great overview of the legal context and related issues. The transcripts of the public consultation are available here (in French). Some interesting points made during the consultation are as follows:

- Lake eutrophication in Québec is related to excessive phosphorus inputs from agricultural activities 95% of the time according to Professors Yves Prairie and Richard Carignan from the GRIL. According to other sources, sewer discharges also contribute significantly to the issue. Michel Lamontagne from Réseau Environnement informs that in 2007, 355 of the 702 sewer discharge treatment plants in Québec rejected 850,000 kg of phosphorus in the aquatic environment. To illustrate the problem, Lake Waterloo in the Yamaska River watershed receives 830 kg/year in phosphorus while its ecosystem can only process a maximum of 320 kg/year (150kg/year might be more sustainable). Given the importance of agricultural impacts on eutrophication, it is particularly interesting to note that the mandate for a public consultation was announced during the summer of 2009 but was delayed for more than a year until August 2010 while amendments to the Agricultural Operations Regulation that governs diffuse agricultural pollution were announced in May 2010 and adopted before the beginning of the consultation on 7 July 2010. According to Christian Lacasse, president of the UPA, the Regulation has resulted in a 29,000 kg/year reduction in phosphorus inputs from agricultural sources. Professor Alain Rousseau from IRNS Eau Terre Environnement deplores that the Regulation establishes limits on phophorus inputs depending on the soil's capacity rather than freshwater ecosystems' capacity to process the inputs. His colleague Isabelle Laurion defines the ecosystem's capacity as the maximal pressure that human activities can exert while preserving ecosystem integrity, but also adds that this capacity remains insufficiently defined and should be the object of more research. Along with other participants, Barry Husk from Blueleaf suggests the idea of an environmental quality standard for phosphorus that would be inspired from an American method called Total Maximum Daily Load (TMDL) which is notably used on the U.S. side of Lake Champlain - apparently, this standard might even serve as a cap for a «Nutrient Credit Trading Program» similar to carbon trading mechanisms;

- The activities generating issues related to cyanobacteria take decades to manifest themselves and the improvements from programmes implemented now to address these issues will become apparent in 20 to 40 years. In short, this is a challenge that requires long term commitment and is at odds with short term electoral policies and limited accountability from decision makers. Some governmental programmes such as the Plan d'amélioration de la qualité de l'eau en milieu agricole 2008-2018 (in French) inject millions of CAN$ to address agricultural impacts on watersheds but surface increases in corn or soya culture will probably offset the gains generated by the programmes. An example of mixed signals difficult to reconcile for farmers is the reform of the Programme d'assurance stabilisation des revenus agricoles (Farm income stabilisation insurance) which pressures farmers toward an increasingly industrialised and productive model for agricultural exploitation while demands for a more sustainable type of farming with lower environmental impacts are made at the same time (articles about the reform of the Farm income insurance here and here - in French). A recent report by the National Research Council, Toward Sustainable Agricultural Systems in the 21st Century, attempts to outline what could ecologically-based farming systems look like;

- The recent Regulation to prohibit the sale of certain dishwashing detergents attempts to decrease phosphorus inputs in lakes from dishwashing. This can have a significant impact on the health of some freshwater ecosystems and reduce 10-15% of the phosphorus load in lakes used mostly for recreational purposes. However, in lakes such as Lake St. Pierre, where the issues related to cyanobacteria are the most accute in the province and stem from agricultural diffuse pollution, the Regulation will probably result in a 1-2% decrease of the phosphorus load. Interestingly, the Regulation was adopted in 2008 and became applicable on 1 July 2010 but Stéphanie Saucier from the Journal of Montréal reports that dishwashing soaps containing 1.6% of phosphorus content rather than the required 0.5% are still available in supermarkets;

- Human excrement is also an important source of phosphorus and nitrates for lakes in recreational areas. The management of human excrement under the Regulation respecting waste water disposal systems for isolated dwellings is designed to prevent contamination from pathogens and is inadequate to address issues related to nitrates or phosphorus seepage from sceptic tanks. Michel Lamontagne from Réseau Environnement indicates that the Regulation should be reformed in order to reduce acquired rights protecting sub-standards sceptic tanks. Maryse Pelletier from Eau Secours! notes a reduction in governmental monitoring capacity in recent years as well as insufficient municipal resources and suggests mandatory inspection for sceptic tanks near surface waters - According to Patrick Huot, 1000 inspections were made by the Government over the last year. Interestingly, Isabelle Mathieu reports in Le Soleil that a municipal regulation from the Québec Municipal County aimed at protecting the municipal drinking water source in the St. Charles River watershed will not ban the installation of sceptic tanks as intended due to governmental regulation supremacy under the Environment Quality Act, but the municipal regulation will contain higher standards nonetheless;

- Along many participants, James Wilkins and Pierre Beaudoin from Renaissance Lac Brome have suggested to integrate more closely existing planning tools at the legal level to ensure more coherent land use development on a watershed basis taking into account constraints from various activities such as urbanisation and farming. In particular, municipal instruments for land use regulation contained in the Act respecting Land use planning and development should include inputs from water master plans, and better use of existing tools should be made before creating new structures. Professor Alain Rousseau appears to suggest that the watershed organisations and water master plans be given more coercive power. According to Pierre Bertrand from Teknika, lake water plans could be used to detail and tailor the management of local surface waters covered by water master plans and could help prioritise various issues in a context of limited resources;

- Adequate information collection and transfer is regarded by Jean-Paul Raîche from the ROBVQ as one of the key elements required to improve water governance. Significantly, the ROBVQ positions itself against a moratorium on new residential developments in riparian areas already affected by eutrophication and cyanobacteria;

- One final point related to food security: Phosphorus availability is a constraint on plant growth (see section 9 «Biological role» in wiki). Phosphorus inputs are essential for modern agriculture. Québec has no phosphorus mine. Apparently, the world's biggest producer, China, barely exports phosphorus anymore. The idea of a peak-phosphorus (for example, see Philip Abelson, «A Potential Phosphate Crisis») similar to peak-oil and peak-water has been suggested during the Commission and a recommendation has been made that a long term policy should be developed to address these issues.

Of note is the fact that the American Water Works Association has announced the publication of a new manual of water supply practices titled Algae: source to treatment.

Shale gas in Québec: The legal provisions hindering the industry

(BY HUGO)

Le Devoir continues its fantastic job on the issue of shale gas development in Québec with an article (in French) by Antoine Robitaille on ties between the industry and the government.

According to the article, representatives for the industry with personal or previous professional relations to members of the cabinet have been mandated with lobbying in favour of shale gas development. Most relevant from a legal perspective, the Québec Oil and Gas Association (QOGA) has been mandated to push for the amendment of a couple of provisions in order to have Québec recognised as a jurisdiction that can welcome shale gas development. As appears from the Québec registry of lobbyists, the industry strives for the modification 2 specific provisions, namely section 22 of the Environment Quality Act (EQA) and section 246 of the Act respecting Land use planning and development (ARLUPD).

Section 22 of the EQA is an obvious hindrance to open access gas extraction as it prohibits unless authorised the operation of an industry, the carrying on of an activity or the use of an industrial process if it seems likely that this will result in an emission, deposit or discharge of contaminants into the environment or a change in the quality of the environment. It appears highly likely that a watering down of the prohibition contained in section 22 EQA would result from an amendment to the Regulation respecting the application of the Environment Quality Act (RAEQA) rather than from a legislative amendment to the EQA. Sections 1 to 6 RAEQA determine the extent of the prohibition contained in section 22 EQA. For example, section 1(2) RAEQA already exempts the staking of a claim and geophysical, geological or geochemical surveys authorized under the Mining Act from the application of section 22 EQA. Interestingly, the industry's desire to modify the scope of section 22 EQA might lead one to suspect that hydraulic fracturing does indeed pollute. This is in contradiction to the industry's official discourse.

Section 246 ARLUPD establishes the paramountcy of the mining regime over the land use and development framework managed at the municipal level. It states that no provision of the ARLUPD or other planning instrument and municipal regulation developed under the ARLUDP has the effect of preventing the staking or designation on a map of a claim, or exploration or search for or the development or exploration of mineral substances or underground reservoirs, carried on in accordance with the Mining Act. This provision has been a bone of contention between municipalities, the mining industry and the government for more than a decade, notably in northern mining regions where municipal sources for drinking water are often dependent on groundwater. Presumably, the QOGA desires to expand the reach of section 246 ARLUPD to include exploitation.

Shale gas: Cultural interlude

(BY HUGO)

For those who believe that stuff outside law is also interesting, do consider viewing Gasland from Josh Fox (special prize at Sundance 2010).

Link here to trailer on Youtube.

Public Consultation on Shale Gas Development in Québec

(BY HUGO)

Public scrutiny has finally forced the government to announce a public consultation (press release here - in French) on shale gas development in Québec. This is essential, as Québec mining law is currently undergoing a reform process. However, it remains a minor victory in a political context where the government pays lip service to participation in order to placate the public.

Le Devoir has excellent coverage on this issue (articles here - in French). A substantial article on hydraulic fracturing regulation in the U.S.A. by Steve Kellman and Molly Ramsey for the Circle of Blue offers a prospective overview of the issues we will face once the government gives the green light to the industry.

For those who doubt that the patterns we see down South will repeat themselves in Québec, here is an interesting detail in the Circle of Blue article. In 2008 the Director of the Pennsylvania Department of Environmental Protection declared about hydraulic fracturing: «What do you have to be afraid of? It’s only sand and water.» As reported in a previous blog at the beginning of 2010, the provincial government declared that only sand and water were used in Québec. In this respect, Jean Baril provides a legal perspective on the loopholes blocking adequate public information on fracking (article here - in French).

Synergies and tensions between IWRM and the HRBA in the water sector

(BY HUGO)

A paper titled «A Clash of Paradigms in the Water Sector? Tensions and Synergies Between Integrated Water Resources Management and the Human Rights-based Approach to Development» is now posted on the Social Science Research Network and is available here. The abstract is as follows:

Water resources management has been shaped by a variety of paradigms reflecting the evolution of government policies and transient societal values. Integrated Water Resources Management (IWRM) became a predominant management framework in the 1990s. The Human Rights-Based Approach (HRBA) to development has also emerged recently as an influential approach in the water sector. IWRM and the HRBA to development in the water sector overlap significantly. The interactions between the two approaches remain largely unexplored although their repercussions may be significant. Because they do not share identical premises and objectives, the concurrent implementation the two approaches might also lead to tensions detrimental to water resources management. The aim of this article is to explore the interactions between IWRM and the HRBA to development in the water sector. Questions raised by perceived conflicts are identified to help address potential tensions when the two approaches coexist. Synergies between IWRM and the HRBA are also detailed to establish how the two approaches are aligned.

The paper notably explores tensions between the following:

- The HRBA as an anthropocentric approach and the need for an ecosystemic contextualisation of claims on water resources;

- The HRBA as an vehicle for developmental aspirations and the acknowledgement of limits in water resources availability;

- The indistinct duties of right-holders in regards to the user-pays principle;

- Economic water management and the need to protect marginal groups and the poor;

- The evasiveness of the HRBA and the need for a stable and consistent framework for prospective water management.

Conference: Shale gas development and water protection in Canada

(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.

UN vote on the right to water: What is the legal value of the resolution?

(BY HUGO)

From a legal perspective, a question that comes to mind is: what is the legal value of the 28 July 2010 UN General Assembly resolution on the human right to water and sanitation in international law?

Article 38(1) of the Statute of the International Court of Justice, which is widely recognised as the most authoritative statement as to the sources of international law, provides that international treaties, international custom, general principles of law, judicial decisions and the teachings of the most highly qualified publicists are considered as international law.

UN General Assembly resolutions are not covered by article 38. This does not mean that yesterday's resolution has no legal value. There is a huge body of doctrine on the legal significance of UN GA resolutions. Malcom Shaw, International Law, 3rd ed., Cambridge, Cambridge University Press, 2003, at pp. 107-112, provides great insight into the legal context of UN General Assembly resolutions (references are omitted):

«Foremost among the issues that have arisen and one that reflects the growth in the importance of the Third World states and the gradual de-Europeanisation of the world order is the question of the standing of the resolutions and declarations of the General Assembly of the United Nations.

Certain resolutions of the Assembly are binding upon the organs and member states of the United Nations [e.g.: article 17 of the UN Charter]. Other resolutions, however, are not legally binding and are merely recommendatory, putting forward opinions on various issues with varying degrees of majority support. This is the classic position and reflects the intention that the Assembly was to be basically a parliamentary advisory body with the binding decisions being taken by the Security Council.

Nowadays, the situation is somewhat more complex. The Assembly has produced a great number of highly important resolutions and declarations and it was inevitable that these should have some impact upon the direction adopted by modern international law. The way states vote in the General Assembly and the explanations given upon such occasions constitute evidence of state practice and state understanding as to the law. Where a particular country has consistently voted in favour of, for example, the abolition of apartheid, it could not afterwards deny the existence of a usage condemning racial discrimination and it may even be that that usage is for that state converted into a binding custom. [...]

Where the vast majority of states consistently vote for resolutions and declarations on a topic, that amounts to a state practice and a binding rule may very well emerge provided that the requisite opinio juris can be proved. [...]

Accordingly, such resolutions are able to speed up the process of the legalisation of a state practice and thus enable a speedier adaptation of customary law to the conditions of modern life. The presence of representatives of virtually all of the states of the world in the General Assembly enormously enhances the value of that organ in general political terms and in terms of the generation of state practice that may or may not lead to binding custom. [...]

Nevertheless, one must be alive to the dangers in ascribing legal value to everything that emanates from the Assembly. Resolutions are often the results of political compromises and arrangements and, comprehended in that sense, never intended to constitute binding norms. Great care must be taken in moving from a plethora of practice to the identification of legal norms.»

Hence, among the most significant issues pertaining to the legal value of yesterday's resolution in international law figures the interrelation between state practice and international custom. In this context, it could be interesting to have a look at which state voted in favour or abstained yesterday, and to put these votes in parallel with the votes cast on the UN General Assembly Resolution on the right to development, 15 February 2000, U.N. Doc. A/RES/54/175, which declares that the rights to food and clean water are fundamental human rights for the right to development (§12 (a)). By the way, it must also be noted that although it is the subject of a GA resolution, the legal status of the right to development in international law remains unclear.

The text of yesterday's resolution and the votes per state can be found here. Canada's official position is as follows:

«The representative of Canada said his delegation had joined the consensus on the resolution that had created the mandate of the independent expert [Catarina de Albuquerque]. The work of that mechanism was expected to further promote study of the issue of access to water and sanitation as a human right and, as such, the text was premature. The non-binding resolution appeared to determine that there was indeed a right without setting out its scope. Since there was no consensus on the matter it was premature to declare such a right in the absence of clear international agreement, he said, adding that he had abstained from the vote.»

The UN resolution on the human right to water is passed

(BY HUGO)

Quick post: the Council of Canadians informs that the UN General Assembly voted today in favour of the resolution on the right to water by 124 yes, 42 abstentions and 0 no.

Conference: The right to water and water rights

(BY HUGO)

The UNESCO-IHE Institute for Water Education hosts a colloquium on «The right to water and water rights in a changing world» on 22 September 2010.

This is a great and timely topic. However, the detailed programme notes indicate that the scope of the colloquium might extend to a host of other issues such as effectiveness, climate change, legal adaptability, floods and scarcity. Such a variety of subjects to cover in a single day might hinder a reflection aimed at clarifying the relationships between the human rights to water and other water rights at international and national levels - in itself a formidable task.

Among the participants are Professors Joyeeta Gupta and Laurence Boisson de Chazournes.

Québec water case law 10: Municipal responsibility for disgorgement of septic tanks

(BY HUGO)

In Dionne v. Gatineau (Municipality of) (in French), residents of a municipality claim damages against the municipality in extra-contractual liability before the Court of Appeal. The claim was rejected in first instance.

The defendant municipality delivered construction permits for new developments on its territory between the beginning of the 1970s and the end of the 1980s.

Instead of requiring particularised percolation tests, localisation plans from a land surveyor and an attestation from an engineer for each septic tank installed on a terrain as the by-laws required, the municipality issue construction permits in bulk and relied on an engineer who was hired by the developers, who ignored the by-laws, and who did not performed the required tests.

The Court of Appeal deals quickly with the element of fault. The municipality deliberately violated its own municipal by-laws on sanitary installations for private residences when issuing the construction permits, thus committing a fault. According to the Court, «the conduct of a municipality cannot be considered reasonable when it decides willingly not to follow its own regulations, or in other words, not to follow the law.» (§15) [Rough translation]

The Court of Appeal identifies the element of causality as more problematic: does the evidence establish, on the balance of probability, that damages suffered by the plaintiffs from the 1990s onward are the result of the defendant’s fault? The Court identifies many causes for the disgorgement of the septic tanks that led to health hazards and to the plaintiffs’ damages, among which soil conditions, inadequate construction and maintenance of sanitary installations... However, the Court concludes that the municipal contribution to the damages claimed rises to 75%, as these alternative causes justify the enactment and respect of the municipal by-laws in the first place.

Of note is the fact that this judgement serves to settle 103 claims through 5 representative files jointly selected by the parties’ attorneys. Causality was therefore examined «globally» by the Court. In this case, it is possible to argue that such a global approach adopted in «Justice's best interest» alters the assessment of evidence on the balance of probability in each claim with respect to causality.

This case can be linked to Beaudin v. Sept-Îles (Ville de) (in French), which was rendered in 2008 by the Superior Court and where another municipality was involved in a dispute relating to sanitation services.

The Kalahari Bushmen and the human right to water

(BY HUGO)

Following up on a previous blog, the BBC reports that the Kalahari Bushmen in Botswana have lost their case to re-open a well that used to be their source of water. To put this case in context, the BBC informs that:

«Diamonds were found in the Central Kalahari Game Reserve, traditional home to the bushmen, in the 1980s - and the government asked them to leave.»

If anyone has a copy of the proceedings and judgement, it would be very kind to provide them.

Meanwhile, the blogosphere is saturated with the news that the UN General Assembly will vote on a motion to recognize the human right to water on 28 July 2010. Will this help the Bushmen? Will Botswana vote in favour of the motion?

Renewed litigation in the Asian Carp dispute

(BY HUGO)

The Great Lakes Law Blog from Professor Noah Hall informs that five American States have filed an action in a federal district court against the Army Corps of Engineers and the Metropolitan Water Reclamation District of Greater Chicago to protect Lake Michigan from the invasive Asian carp. This follows a decision by the Supreme Court not to hear the case earlier this year.

It will be interesting to see whether Ontario will continue to represent Canadian interests in this case as it did before the Supreme Court and intervene in the file before the federal district court.

Environmental flow protection in Québec

(BY HUGO)

A series of very interesting articles (here, here and here - in French) from Louis-Gilles Francoeur in Le Devoir discuss the environmental impacts of current record low flows in Québec rivers, and in particular, outline the importance of environmental flow protection in dam operations.

A doctrinal article on «The Emergence of Environmental Flow Protection in Québec Law» to be published in Les Cahiers de Droit's upcoming special issue on water law details the legal aspects of environmental flow protection in Québec.

In line with Francoeur's reasoning, this article also concludes that Québec water law must address the impacts of dam operations on environmental flows and provide adequate normative guidelines to protect freshwater ecosystems from degradations resulting from unsustainable alterations to surface hydrologic regimes. In particular, the article establishes that the Politique des débits écologiques réservés that aims at protecting aspects of environmental flows in Québec rivers downstream of dams could be improved:

1 - The Politique does not apply to water uses anterior to 1999 and cannot serve to restore aquatic ecosystem quality compromised by an anterior use other than on a voluntary basis;

2 - The Politique's implementation is discretionary, and alterations considered unacceptable under the Politique such as complete river-flow cut-offs are authorised in practice. The economic and technical feasibility exclusion ensures that any type of environmental flow alteration can be authorised, thus significantly reducing the Politique’s effectiveness as a normative instrument;

3 - The Politique focuses exclusively on the provision of water for fish and neglects the effects of flow alteration on other components of the biotic assemblages integral to aquatic ecosystem quality;

4 - Reliance on the principle of compensation for lost habitats in the Politique can lead to the acceptance of important shifts in ecosystem species composition. For example, loss of habitats suitable to species adapted to high flow velocity can be considered acceptable under the Politique because balanced by gains in habitats for species adapted to standing water. However, repetition of such a compensation project after project may homogenise fish biodiversity;

5 - The discrete implementation of the Politique through ad hoc authorisations under various regimes may hinder the capacity to address cumulative impacts on environmental flows and ecosystems. This risk is particularly significant when rivers earmarked for out-of-site habitat compensation are not identified during the authorisation process for specific projects.

As a result, the Government's undertaking in the Québec Water Policy (undertaking 22) to improve environmental flow protection remains essential and must be carried out.