Saturday, June 19, 2010

Deluge of reports on water management issues in Canada


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, June 16, 2010

Cloud seeding in Mali: Multi-million dollar contract for an American company


A discussion on cloud seeding in a recent post motivates the reporting of this news (in French - article in L'Essor by Sibiri Konaté) to illustrate the type of operations currently performed in Africa.

Mali is paying a total of around US $27 000 000 for cloud seeding to a consortium led by Weather Modification Incorporated, an American company. The rain enhancement programme was initiated in 2005. The increase in rainfall is reported to vary between 15% and 50% depending on the region. Analysis performed on provoked rainwater reportedly shows no alteration in water quality.

Interestingly, Saskatchewan, British Columbia and Alberta are on the list of Weather Modification Incorporated's clients. The operations in Alberta are still going on and relate to hail suppression.

UPDATE: Another article from David Dembele in Journal du Mali (in French) provides additional details on the seeding campain.

Saturday, June 12, 2010

Federal Bill S-11 to improve drinking water on aboriginal land


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, June 9, 2010

A small California community opposes cloud seeding


Cloud seeding is a method of spraying chemical contaminants in clouds to induce rainfall. The spraying is usually done from airplanes but also from land based equipments. The contaminants, often silver iodine, act as magnets for water vapour in clouds, inducing the formation of water droplets heavy enough to fall to the ground.

This is an old technique. It has been developed in the 1950s in the U.S.A., and since then has been used in the American Midwest, during the Vietnam war (resulting in the ENMOD Convention), in Australia, in South Africa, and even in experimental programs over Alberta, Canada (circa 1980s?). In fact, there is even a statute in Québec regulating cloud seeding, the Act respecting the artificial inducement of rain.

Cloud seeding has remained a marginal activity for decades because of a black box problem. Basically, science is not advanced enough to establish satisfactory correlations between the seeding and rainfalls: it is impossible to track all the dynamic variables in the atmosphere and isolate seeding as the definitive causa causans for precipitations in the area around the seeding activity.

However, cloud seeding has been the object of renewed interest in recent years due to increased water scarcity. The FAO and African countries have looked at cloud seeding to secure water for crops, The Israelis are experimenting with new techniques to induce cloud formation by changing land cover...

Why this renewed interest? Cloud seeding essentially participates from the same process as rainwater harvesting. This is an 'escalation to the extremes' (borrowing from von Clausewitz) between competing users of a limited resource to secure access to water by getting ever closer to the ultimate upstream point of the hydrological cycle.

Legal doctrine (from authors like Edith Brown Weiss in international law and Ray Jay Davis in American law) has approached the legal issues raised by artificial rain inducement. Such studies might become very useful in a context of growing water scarcity and increased use of weather modification techniques.

For example, AlterNet reports of a small community in California that has passed an Ordinance to prohibit cloud seeding on its territory.

NOTE: This is completely off topic, but the article mentions that Coca-Cola extracts groundwater near that municipality but does not have to disclose the quantities withdrawn... because of the company's right to free speech!!! It's always surprising to see how far American law has gone to divorce the morally just from the legally right.

Tuesday, June 8, 2010

France will accede to the UN watercourse Convention


In a speach given on 4 June 2009 at the kick-off meeting for the 2012 World Water Forum, the French Ministry for Ecology, Energy, Sustainable Development and the Sea confirmed that France was in the process of adhering to the 1997 UN Convention on the Law of the Non-navigational Uses of International Watercourses. This decision was voted by the French National Assembly on 8 April 2010 and will soon pass before the French Senate. The Minister's speach is available here (in French) on the World Water Council website.

France would thus follow Guinea-Bissau on 19 May 2010 as well as Spain and Tunesia in 2009 in acceding to the UN Convention. The Convention requires 35 contracting parties to enter into force (see sections 35 and 36). Current status of the Convention and list of the parties can be found here.

Friday, June 4, 2010

Water case law in Québec 7: Class action for contamination of municipal groundwater sources


In an interlocutory decision Spieser v. Canada (General Attorney) (in French), the Superior Court denies a motion by the General Attorney of Canada to annul a 2007 judgement authorising a class action further to the contamination of municipal groundwater sources due to the leakage of trichloroethylene (TCE) from a military base.

According to the General Attorney, the basis for the action is extra-contractual civil liability and requires the demonstration of (i) a fault, (ii) a damage, and (iii) a causality link between both as per section 1457 of the Civil Code of Québec (CCQ) - class action is only the procedural vehicle.

The motion essentially argues that the common questions raised by the action are negligible, and that individual recourses would be more appropriate given the very limited number of persons able to reasonably argue that they were affected by TCE.

The General Attorney stresses that exposure to TCE varies widely between members of the authorised group, as well as the nature of alleged illnesses which might have been caused by a large number of external causes. According to the General Attorney's co-defendant, the medical evidence on file establishes that the existence of a damage and a causality link with exposure to TCE is a fundamentally individual question that cannot be treated collectively.

Thus, the questions addressed by the Court relate to the very conditions enabling the designation of the group required for a class action as well as the description of the group.

The dispositions of the Code of Civil Procedure relevant to class actions in Québec can be found at section 1002 and ff.

The Court first states that the General Attorney's arguments rely on an expert report analysing only a fraction of the facts that may be brought as evidence at hearing on the merits. Second, the Court establishes that analysis of the causality link might not be a fundamentally individual question because the damages claimed might be a function of the increased risk of developing an illness.

After comparing alternative procedural options, the Court concludes that class action is the best procedural vehicle for all the parties to submit their case to the tribunal and dismiss the motion.

Thursday, June 3, 2010

Rainwater Harvesting in Utah


The Utah Water Law and Water Rights Blog informs that the Utah Legislature passed a bill permitting the capture and storage of precipitations.

This seems to be part of a trend in water law towards regulating ever closer to the upstream reaches of the hydrologic cycle. Such a trend appears justified in areas traditionally left unregulated in order to avoid a "tragedy of the commons" given the increasing exploitation of and competition for a limited resource.

Salient points of the Utah legal provision are:

- Reliance on the doctrine of beneficial use tied to the parcel on which the water is captured and stored;

- Constraints on the volumes of rainwater that can be stored - 2 500 gallons if stored in an underground container, and 2 x 100 gallons covered containers if stored above ground. Question: if stored above ground in uncovered container, would there be no volume limit? If such is the case, would this be an indirect invitation to alter extensively overland run-offs by changing the morphology of one's parcel?

Wednesday, June 2, 2010

Minority, indigenous and cultural human rights and basic access to water


An interesting case regarding the capacity of human rights to provide access to water is developing in Botswana.

Ekklesia is informing that the Kalahari Bushmen are taking the Government of Botswana to court over what they describe as its refusal to allow them access to a water borehole on their own land.

A summary statement of fact by Survival International describes the context of the case:

- Boreholes in the Kalahari were the Bushmen's source of water;

- The Botswana Government evicted the Bushmen from the Kalahari in 2002 and sealed-off the wells;

- In 2006, the Botswana High Court ruled that the Bushmen's eviction by the Government was unlawful and unconstitutional, despite the fact that the government had removed the clause protecting Bushmen rights in the constitution during the proceedings. The Bushmen returned to the Kalahari but the Court determnied that the Government had no obligation to provide them services;

- Despite long negociations, the Government currently refuses to reopen the sealed borehole;

- The Bushmen argue that their right to live in the Kalahari surley includes the right to obtain water by their own means;

- The Government argues that the Bushmen's have to face the consequences of their choices for having decided to live in a place where ther is no water, and that the Bushmen endanger the life of wild animals.

This case is loaded with interesting issues regarding the human rights providing basic access to water, including:

- The determination of the specific human right(s) that will provide redress and ultimatly access to water for the Bushmen should the Court accept their claim. This is related to debates on the proliferation and prioritisation of human rights justifying access to volumes of water for basic needs. In the context of the Bushmen's claim, this issue will probably be influenced by the 2006 judgement;

- Protection of the environment as per the Government's argument for denying access to the wells vs the fulfilment of basic human human needs for water. This is related to the extent of the State's duty to respect, protect and fulfil human rights, and is particularly intersting given the fact that the Bushmen are not asking the Government to take positive steps to provide them with water while the Government argues that water cannot be obtained in a desert.

The case is due to be heard at Botswana’s High Court in Lobatse on 9 June 2010. A web search has not yielded the official court documents (for the present claim as well as for the 2006 decision). Many thanks to anyone who can provide access to them.

One last element that appears relevant in the context of the above: the UN Expert on Human Rights, Catarina de Albuquerque, pushes for the implementation of the human right to water and the human right to sanitation in Slovenia as the chosen instrument to redress discrimination against the Roma minority. Moreover, the Commissioner links human rights to water and sanitation to the implementation of the EU Wastewater Directive.

Tuesday, June 1, 2010

Water Energy Nexus: Spectrum IEEE's take


Thanks to collegue BO, here is a link to a Spectrum IEEE special report on the water energy nexus. It provides a nice summary overview of various aspects of the clash between increases in water demand and energy demand given that each is a production input for the other.