Sunday, September 26, 2010

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


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.

Wednesday, September 22, 2010

National Assembly Commission on lakes with respect to cyanobacteria


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.

Friday, September 3, 2010

Shale gas in Québec: The legal provisions hindering the industry


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.

Thursday, September 2, 2010

Shale gas: Cultural interlude


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.

Wednesday, September 1, 2010

Public Consultation on Shale Gas Development in Québec


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).