Wednesday, April 28, 2010

Water case law in Québec 5: is there an increase in the enforcement of fish habitat protection?


In the spring of 2009, the Canadian Commissioner of the Environment and Sustainable Development produced a report concluding that:

«Fisheries and Oceans Canada and Environment Canada cannot demonstrate that they are adequately administering and enforcing the Fisheries Act, and applying the Habitat Policy and the Compliance and Enforcement Policy in order to protect fish habitat from the adverse impacts of human activity

Could it be that since then, the federal government has stepped up its efforts to enforce the Fisheries Act? Whatever may be, it's now possible to find current case law on that regime's application.

Most recently, the Cour du Québec has rejected a motion to dismiss a procedure against a company for altering fish habitat in Québec (Procureur général) v. 9114-0137 Québec inc.

Monday, April 26, 2010

Asian Carp litigation: The US Supreme Court denies the motion


The U.S.A. Supreme Court has denied the motion to reopen the Wisconsin et al. v. Illinois et al. case and decree. According to the Great Lakes Law Blog:

«The Supreme’s Court denial is disappointing but not surprising, given the Obama administration’s opposition to having the case heard. While other legal options (such as a case in state court or a lower federal court) are still open, it is doubtful that any new legal case would be resolved in time to prevent the Asian carp from spreading into the Great Lakes. The Great Lakes Environmental Law Center is investigating other legal strategies, but at this point the pressure should be on federal agencies and Congress to take effective action immediately.»

Water-food security: higher-yielding salt-tolerant wheat


Limits to volumes of freshwater conveyed through the global hydrologic cycle combine with ever growing human water uses for agricultural purposes that nourish an increaing world population to create a water-food security problem. Collegue BO who works on water security recently twitted that «there is no food security without water security».

In Australia, the water-food security problem is particularly intense due to an extreme and prolongued drought. Over-allocation and over-exploitation of available water resources have resulted in destruction of freshwater ecosystems. Because not enough freshwater is left in the natural environment to wash away minerals in soils, salt concentration in agricultural lands has increased markedly in recent decades and has now reached levels where it represents a serious constraint for food production.

In this context, a recent scientific breakthrough aleviates to some extent the Australian water-food security problem. Science Daily reports that CSIRO researchers have developed a salt tolerant durum wheat that yields 25 per cent more grain than the parent variety in saline soils.

Sunday, April 25, 2010

Conference on the human right to water in Western U.S.A.: Call for paper


The College of Law at Willamette University along with the Law and Government, the Sustainable Environmental, Energy & Resources Law certificate programs, the Law Review and the Center for Sustainable Communities seek submission of scholarly papers from all disciplines exploring Implementation of the Human Right to Water in the West, to be presented in connection with a working conference to be held at Willamette University in Salem, Oregon, USA on February 3 -5, 2011.

Abstract Submission Deadline: June 1, 2010
Notice of Acceptance: July 1, 2010
Full Paper Submission Deadline: November 15, 2010
Conference Presentation: February 3-5, 2011

Friday, April 23, 2010

Update: perspective on the Pulp Mills on the River Uruguay ICJ case


Collegue BO has forwarded the first of a no doubt long list of case comments on the Uruguay River Pulp Mills case: here is ASIL's comment by Cymie Payne.

ASIL's comment claims that «the Court recognized environmental impact assessment as a practice that has become an obligation of general international law in these situations.»

If this is the case, does that mean that aspects of text of the UN 1997 Convention are already obsolete even before the Convention enters into force?: article 12 mentions environmental impact assesments but appears not to impose an specific positive obligation to perform such an assessment.

Asian Carp litigation: expect news on Monday


The U.S.A. Supreme Court decides today whether to reopen the original case and decree concerning the Chicago Ship and Sanitary Canal (Wisconsin et al. v. Illinois et al.).

Usually, orders from Friday are released on Monday. The Court's decision will shape further actions in the Asian Carp crisis, and hopefully the Great Lakes Law Blog will provide legal insights into what can be expected in the near future.

An article by Gabriel Nelson in the New York Times informs that more litigation before lower State or Federal Courts will follow if the Supreme Court declines to reopen the case. According to the article, one potential plaintiff could be Canada.

It would be surprising to see Canada enter the fray in this file, as Ontario has been the point authority in charge since the beginning of the Asian Carp crisis on the Canadian side: Ontario is the only Canadian stakeholder to have filed a memorandum before the Supreme Court, and bilateral federal/provincial agreements with the federal government of Canada might indicate that Ontario could take responsibility in Great Lakes management matters.

In any case, these potential developments might answer the question raised by this older post on the potential use of the recourse provided under Section 7.3 of the 2008 Great Lakes Compact by one of the Canadian Provinces.

While a refusal to reopen the original case and decree might induce significant delays potentially disastrous for the Great Lakes ecosystem, it might also rebalance the 13 December 2005 Great Lakes-St Lawrence River Basin Sustainable Water Resources Agreement which, from an institutional perspective, is tilted in favour of American interest due to U.S.A. Supreme Court original jurisdiction.

If the Court declines jurisdiction, it could be argued that the potential for federal judicial interference decreases, thereby putting the riparian States and Provinces on a more equal footing and more firmly in charge of their basin.

Wednesday, April 21, 2010

News from the ICJ: the Argentina vs Uruguay pulp mills case


On 20 April 2010, the International Court of Justice has rendered judgement in the case concerning pulp mills on the River Uruguay between Argentina and Uruguay. After a very quick initial reading, this post attempts to provide a crude preliminary picture of the salient legal points. More will follow in a latter post with respect to substantive analysis, but many aspects of this decision already appear interesting in the context of a reflection on the interplay between international water law and national legal regimes.

As for the Gabčíkovo–Nagymaros case, this most recent decision from the IJC can be expected to have a noticeable impact in international water law doctrine. Lined-up against each other in the Uruguay case were such heavy weights as Sands, Boyle McCaffrey and Boisson de Chazournes (see §§167-168 for the opinion of the Court on that).

The River is governed by a specific regime established through a Statute from 1975 (see §§26-27).

Interestingly for the wider relevance of the case to general international water law, article 1 of the 1975 Statute states that the parties adopted it «in order to establish the joint machinery necessary for the optimum and rational utilization of the River Uruguay, in strict observance of the rights and obligations arising from treaties and other international agreements in force for each of the parties». (emphasis added)

The ICJ defines the scope of its jurisdiction at §§48-66. Argentina maintains that referral clauses contained in the Statute make it possible to incorporate and apply obligations arising from other treaties and international agreements binding on the Parties. To this end, Argentina refers to the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora, the 1971 Ramsar Convention on Wetlands of International Importance, the 1992 United Nations Convention on Biological Diversity, and the 2001 Stockholm Convention on Persistent Organic Pollutants. The ICJ concludes that:

«The fact that Article 1 does not require that the “treaties and other international agreements” should be in force between the two parties thus clearly indicates that the 1975 Statute takes account of the prior commitments of each of the parties which have a bearing on it.


(T)he various multilateral conventions relied on by Argentina are not, as such, incorporated in the 1975 Statute. For that reason, they do not fall within the scope of the compromissory clause and therefore the Court has no jurisdiction to rule whether Uruguay has complied with its obligations thereunder.


The Parties nevertheless are in agreement that the 1975 Statute is to be interpreted in accordance with rules of customary international law on treaty interpretation, as codified in Article 31 of the Vienna Convention on the Law of Treaties. The Court has had recourse to these rules when it has had to interpret the provisions of treaties and international agreements concluded before the entry into force of the Vienna Convention on the Law of Treaties in 1980.


In the interpretation of the 1975 Statute, taking account of relevant rules of international law applicable in the relations between the Parties, whether these are rules of general international law or contained in multilateral conventions to which the two States are parties, nevertheless has no bearing on the scope of the jurisdiction conferred on the Court under Article 60 of the 1975 Statute, which remains confined to disputes concerning the interpretation or application of the Statute.

The ICJ finds that Uruguay has breached its procedural obligations under the 1975 Statute, and concludes that declaration by the Court of this breach constitutes appropriate satisfaction. In respect to the differentiation between procedural and substantive obligations, §§75-79 are particularly interesting. The ICJ states:

«78.(...) nowhere does the 1975 Statute indicate that a party may fulfil its substantive obligations by complying solely with its procedural obligations, nor that a breach of procedural obligations automatically entails the breach of substantive ones. Likewise, the fact that the parties have complied with their substantive obligations does not mean that they are deemed to have complied ipso facto with their procedural obligations, or are excused from doing so. Moreover, the link between these two categories of obligations can also be broken, in fact, when a party which has not complied with its procedural obligations subsequently abandons the implementation of its planned activity.

79. The Court considers, as a result of the above, that there is indeed a functional link, in regard to prevention, between the two categories of obligations laid down by the 1975 Statute, but that link does not prevent the States parties from being required to answer for those obligations separately, according to their specific content, and to assume, if necessary, the responsibility resulting from the breach of them, according to the circumstances.

On whether Uruguay has breached its substantive obligation to contribute to the optimum and rational utilization of the River as per article 1 of the Statute, the IJC states:

«175. The Court considers that the attainment of optimum and rational utilization requires a balance between the Parties’ rights and needs to use the river for economic and commercial activities on the one hand, and the obligation to protect it from any damage to the environment that may be caused by such activities, on the other. The need for this balance is reflected in various provisions of the 1975 Statute establishing rights and obligations for the Parties, such as Articles 27, 36, and 41.


177. Regarding Article 27, it is the view of the Court that its formulation reflects not only the need to reconcile the varied interests of riparian States in a transboundary context and in particular in the use of a shared natural resource, but also the need to strike a balance between the use of the waters and the protection of the river consistent with the objective of sustainable development.


The Court wishes to add that such utilization could not be considered to be equitable and reasonable if the interests of the other riparian State in the shared resource and the environmental protection of the latter were not taken into account. Consequently, it is the opinion of the Court that Article 27 embodies this interconnectedness between equitable and reasonable utilization of a shared resource and the balance between economic development and environmental protection that is the essence of sustainable development.


183. It is recalled that Article 36 provides that “[t]he parties shall co-ordinate, through the Commission, the necessary measures to avoid any change in the ecological balance and to control pests and other harmful factors in the river and the areas affected by it”.

184. It is the opinion of the Court that compliance with this obligation cannot be expected to come through the individual action of either Party, acting on its own. Its implementation requires co-ordination through the Commission. It reflects the common interest dimension of the 1975 Statute and expresses one of the purposes for the establishment of the joint machinery which is to co-ordinate the actions and measures taken by the Parties for the sustainable management and environmental protection of the river.


187. The Court considers that the obligation laid down in Article 36 is addressed to both Parties and prescribes the specific conduct of co-ordinating the necessary measures through the Commission to avoid changes to the ecological balance. An obligation to adopt regulatory or administrative measures either individually or jointly and to enforce them is an obligation of conduct. Both Parties are therefore called upon, under Article 36, to exercise due diligence in acting through the Commission for the necessary measures to preserve the ecological balance of the river.

188. This vigilance and prevention is all the more important in the preservation of the ecological balance, since the negative impact of human activities on the waters of the river may affect other components of the ecosystem of the watercourse such as its flora, fauna, and soil. The obligation to co-ordinate, through the Commission, the adoption of the necessary measures, as well as their enforcement and observance, assumes, in this context, a central role in the overall system of protection of the River Uruguay established by the 1975 Statute. It is therefore of crucial importance that the Parties respect this obligation.

189. In light of the above, the Court is of the view that Argentina has not convincingly demonstrated that Uruguay has refused to engage in such co-ordination as envisaged by Article 36, in breach of that provision.


190. Article 41 provides that:
“Without prejudice to the functions assigned to the Commission in this respect, the parties undertake:
(a) to protect and preserve the aquatic environment and, in particular, to prevent its pollution, by prescribing appropriate rules and [adopting appropriate] measures in accordance with applicable international agreements and in keeping, where relevant, with the guidelines and recommendations of international technical bodies;
(b) not to reduce in their respective legal systems:
1. the technical requirements in force for preventing water pollution, and
2. the severity of the penalties established for violations;
(c) to inform one another of any rules which they plan to prescribe with regard to water pollution in order to establish equivalent rules in their respective legal systems.”


195. In view of the central role of this provision in the dispute between the Parties in the present case and their profound differences as to its interpretation and application, the Court will make a few remarks of a general character on the normative content of Article 41 before addressing the specific arguments of the Parties. First, in the view of the Court, Article 41 makes a clear distinction between regulatory functions entrusted to CARU under the 1975 Statute, which are dealt with in Article 56 of the Statute, and the obligation it imposes on the Parties to adopt rules and measures individually to “protect and preserve the aquatic environment and, in particular, to prevent its pollution”. Thus, the obligation assumed by the Parties under Article 41, which is distinct from those under Articles 36 and 56 of the 1975 Statute, is to adopt appropriate rules and measures within the framework of their respective domestic legal systems to protect and preserve the aquatic environment and to prevent pollution.


196. Secondly, it is the opinion of the Court that a simple reading of the text of Article 41 indicates that it is the rules and measures that are to be prescribed by the Parties in their respective legal systems which must be “in accordance with applicable international agreements” and “in keeping, where relevant, with the guidelines and recommendations of international technical bodies”.

197. Thirdly, the obligation to “preserve the aquatic environment, and in particular to prevent pollution by prescribing appropriate rules and measures” is an obligation to act with due diligence in respect of all activities which take place under the jurisdiction and control of each party. It is an obligation which entails not only the adoption of appropriate rules and measures, but also a certain level of vigilance in their enforcement and the exercise of administrative control applicable to public and private operators, such as the monitoring of activities undertaken by such operators, to safeguard the rights of the other party. The responsibility of a party to the 1975 Statute would therefore be engaged if it was shown that it had failed to act diligently and thus take all appropriate measures to enforce its relevant regulations on a public or private operator under its jurisdiction.


262. The Court is of the opinion that as part of their obligation to preserve the aquatic environment, the Parties have a duty to protect the fauna and flora of the river. The rules and measures which they have to adopt under Article 41 should also reflect their international undertakings in respect of biodiversity and habitat protection, in addition to the other standards on water quality and discharges of effluent. The Court has not, however, found sufficient evidence to conclude that Uruguay breached its obligation to preserve the aquatic environment including the protection of its fauna and flora.» (emphasis added)

The IJC concludes Uruguay has not breached its substantive obligations under the 1975 Statute of the River Uruguay.

Friday, April 16, 2010

Sounds familiar? Water law's implementation deficiencies in Alberta


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

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

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

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

Monday, April 12, 2010

Drought in Alberta (Canada)


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

The good side of the water energy nexus: Viruses produce hydrogene from water?


A scientifc news flash on a new way to produce energy with viruses and water:

«A team of MIT researchers has found a novel way to mimic the process by which plants use the power of sunlight to split water and make chemical fuel to power their growth. In this case, the team used a modified virus as a kind of biological scaffold that can assemble the nanoscale components needed to split a water molecule into hydrogen and oxygen atoms. Splitting water is one way to solve the basic problem of solar energy: It's only available when the sun shines. By using sunlight to make hydrogen from water, the hydrogen can then be stored and used at any time to generate electricity using a fuel cell, or to make liquid fuels (or be used directly) for cars and trucks.»

The process is not operational yet, as hydrogen atoms are split into constituent protons and electrons. The team still has to find a way to reassemble them into a hydrogen atom.

Sunday, April 11, 2010

Climate change, Water usage and Corporate governance


302 companies have been asked to report their water usage by the investor-backed Carbon Disclosure Project (CDP), which issued its first water-disclosure questionnaire this week.

As reported in this article from Vincent Bevins, Marcus Norton, head of CDP Water Disclosure, said that «the project is the result of investors who are concerned about three risks: physical scarcity, increased regulatory action – which can deny access or raise prices – and damage to a company's public image.»

Justification for disclosure of the water-related risks is articulated in this CDP Report as follows:

«business disclosure of water-related risk will also have a number of valuable benefits:

1. Raising businesses awareness and requiring enhanced understanding of their own issues, risks and opportunities;

2. Supporting efforts to develop standard measures and performance benchmarks;

3. Providing investors, regulators and other stakeholders with better information;

4. Raising general awareness of water-related issues; and

5. Encouraging action and dialogue.
» (p.9)

Findings from the project are planned to be released between Octobre and December 2010.

Friday, April 9, 2010

Human Right to Water: «a concept in search of a content»

A recent post on the new Water and Sanitation Blog reflects on the normative content of the human right to water in the context of inherent human rights indeterminacy.

The post uses the sting of Mazibuko cases to raise very interesting and timely questions on the concrete minimum core of the human right to water.

As perceptively observed in Katherine Young’s article «The Minimum Core of Economic and Social Rights: A Concept in Search of Content», (2008) 33 Yale J. Int’l. L. 113, Professor Peter Danchin recognises that the «insurmountable problem for the notion of core obligations is that the particular forms of duties are intrinsically polycentric and cannot be subject to a definitive ranking».

However, Professor Danchin also states that the emerging area of benchmarks and indicators provides one possible way for the materialisation of a non-relative normative content for the human right to water.

As argued in a previous post and in a forthcoming article, a more defensible position might be to accept the impossibility of an ex ante determinate normative content for the minimum core of a human right to water.

To imbue the human right to water with a determinate, non-relative content necessarily implies the materialisation of quantitative and qualitative standards generally applicable to ensembles of singular situations. It also implies an underlying standardisation of basic human water needs for groups of individuals regardless of discrepancies in concrete personal situation and needs.

Thus, the ex ante standard setting required by the materialisation of a determinate minimum core for human rights to water inevitably leads to the theoretical acceptance of exceptional situations where more water than actually required to cover basic human needs must be provided to a specific individual, BUT ALSO to situations where less water that actually required to cover basic human needs will be provided to a specific individual.

Because of the latter possibility, the idea of ex ante determination of a standardised minimum core for human rights to water must be rejected.

This becomes apparent through the following example:

The UN independent expert Catarina de Albuquerque refers to the World Health Organisation Guidelines as standards for water quality in the context of human rights to water. However, these guidelines specifically mention that scarce resources require targeted regulation based on a risk-benefit approach (p.2).

A priori, this is reasonable: concentrate first on the most critical threat to public health, the threat that can cause the most harm to the largest number of people before moving to address lesser health threats when and if resources allow it.

However, in the meantime, the minority of individuals that suffer from non-prioritised water contamination cannot claim cleaner water based on a human right because the risk-benefit approach integrated into human rights necessarily implies exceptions where actual basic human needs will not be covered.

Hence, 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.

This does not mean that the existence of a human right to water should be contested. On the contrary, this post argues in favour of human rights but focuses on their most potent function: ex post discursive recourses to redress or compensate structural imbalances, imperfections or failures in prospective water resources management regimes.

In this context, recourses to gain access to water based on human rights stay open to all in all situations where human rights are violated, but the minimum core remains generally indeterminate only to be specified on a case by case basis by tribunals when confronted with a concrete particular situation.

To finish this post, a quote from Martti Koskenniemi, «The Pull of the Mainstream», (1989-1990) 88 Michigan Law Review 1946 at 1962, seems appropriate:

«Here is a final paradox: late-modern legal, social, and linguistic theory has taught us that rules, whether extracted from behaviour or texts, are of necessity indeterminate. Thinking of human rights in terms of legal rules will extend indeterminacy into those rights as well. The secularization of human rights rhetoric involved in its becoming mainstream, then, may not be the best way to protect human rights. By remaining in the periphery, in the field of largely subconscious, private, moral-religious experience that defies technical articulation, human rights may be more able to retain their constraining hold on the way most people, and by extension most states, behave.»

Thursday, April 8, 2010

Federal decision not to add the Gulf of St. Lawrence Winter Skate to the List of Species at risk

The Federal Government recently decided not to add the Winter Skate to the List of Species at Risk, as per the Decisions Not to Add Certain Species List of Wildlife Species at Risk Order, SI/2010-14.

Justification for this decision is as follows:

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

There is a lack of support from New Brunswick, Nova Scotia, Prince Edward Island, Quebec and industry stakeholders for the listing of these three populations of Winter Skate. Some Aboriginal communities have also expressed reservations about listing.

Two points can be raised further to this decision:

- There is still a huge gap between the current rethoric about economic valuation of ecosystem services and the actual balancing of economic losses with such services in the context of biodiversity conservation;

- Threshold effects in biodiversity loss that might abruptly reduce ecosystem services appear not to be considered at all, despite consistent scientifc literature on their existence. These threshold effects must play a role in tying the value of ecosystem services to the economic valuation of specific species extinctions.

Wednesday, April 7, 2010

2010 Freshwater Summit

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

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

Monday, April 5, 2010

Minima and maxima constraints on rainwater harvesting


In a previous blog, there was a mention of how it might be more prudent to establish what are the limits to up-scaling rainwater harvesting.

The issue is essentially that harvesting superimposes an artificial catchement connected to cisterns on top of a real catchment where environmental uses require a minimum of water to remain healthy.

A paper by Stephen Ngigi, «What is the limit of up-scaling rainwater harvesting in a river basin?», examine this question... and concludes that there is a clear need for additional research to understand the effects of rain harvesting up-scaling. Nonetheless, Ngigi states that:

«Increased withdrawals of water in rainfed and irrigated agriculture may have negative implications on water availability to sustain hydro-ecological ecosystem services. The expected shifts in water flows in the water balance would affect both nature and economic sectors depending on direct water withdrawals (Rockstrom et al., 2001). Upgrading rainfed agriculture through RWH that enables dry spells mitigation, would involve the addition of water, through storage of runoff, to the rainfed system. The cumulative effect of RWH may have an impact on downstream water availability within a river basin scale. The effects are bound to be site specific and need to be studied further (Rockstrom et al., 2001).»

In a more recent article, «Identifying Barriers to Widespread Implementation of Rainwater Harvesting for Urban Household Use in Ontario», Chantelle Lidi et al. identify barriers faced in implementing rainwater harvesting. The most significant barriers are as follows:

«Initial capital cost, liability for potential health risks, limitations on the end use of rainwater, the Building Code’s poor differentiation between rainwater, greywater and non-potable water, and a lack of public environmental commitment. Health risks would be a paramount concern for public health officials, but were only a moderate concern for the majority of building practitioners interviewed.»

Rainwater harvesting is certainly a solution to some water management problems and a priori a sustainable practice.

However, a familiar worrying pattern seems to appear: constraints to up-scaling are identified, but limits to development remain unknown.

Would precaution and prevention demand that limits be identified before going forward with rainwater harvesting on a large scale?

Symposium on International Law and Transboundary Freshwaters


The UNESCO Centre for Water Law, Policy & Science organises a Symposium and Workshop on International Law and Transboundary Freshwaters - June 21-24, 2010.

Key questions which will be covered are:

• What is international water law and how does it promote regional peace and security?

• How do international legal frameworks support national decision making related to transboundary water resources planning and management?

• Who is entitled to use transboundary freshwater resources – why and how?

• How does international law reconcile competing claims over transboundary freshwaters?

• What diplomatic strategies and tactics can nation-states employ to secure the best legal outcomes possible in light of their transboundary water interests?

Thursday, April 1, 2010

Water case law in Québec 4: defining fish habitat


In Québec (Procureur général) v. Lauzon (in French), the defendant requests ministerial authorisation to excavate the bed of a natural stream running through his property to create an artificial lake on his land. Permission is refused on a preliminary basis and the defendant does not push the matter further.

Some years later, the defendant decides, without applying for an authorisation, to excavate another location on his property in order to create an artificial lake that is filled with water flowing from a nearby wetland. The artificial lake also has hydrological links to the natural stream mentioned earlier.

Within a year of the excavation, an inspector from the Ministry catches fishes in the artificial lake. The defendant is charged with an infraction in strict liability for a contravention to section 35(1) of the federal Fisheries Act. Article 35 reads as follows:

35. (1) No person shall carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat.

2) No person contravenes subsection (1) by causing the alteration, disruption or destruction of fish habitat by any means or under any conditions authorized by the Minister or under regulations made by the Governor in Council under this Act.

The defendant principally argues that the artificial lake and its hydrological connections are not a fish habitat. A fish habitat is defined by the Fisheries Act as follows:

34. (1) (...)“fish habitat” means spawning grounds and nursery, rearing, food supply and migration areas on which fish depend directly or indirectly in order to carry out their life processes

The Court finds that the defendant contravened to the Fisheries Act. The permanent presence of fishes does not have to be demonstrated by the prosecution. The water environment needs only be susceptible to use as a habitat by fish. An intermittent stream can be a fish habitat.

This decision takes a more hydrologically and biologically sound position than other recent case law that does not considers surface waters where fishes are present as «fish habitat» under the Fisheries Act.

PhD studentship in urban flood risk management


A PhD opportunity in flood management posted at Cranfield University. Deadline for application is 15 May 2010.