Sunday, December 25, 2011

UNWC Global Initiative Symposium

Here's an announcement on the UNWC Global Initiative Symposium, co-organised by IHP-HELP Centre for Water Law, Policy & Science (under the auspices of UNESCO), University of Dundee and WWF, on 5th-8th June 2012, University of Dundee, Scotland, UK

The 1997 UN Watercourses Convention – What Relevance in the 21st Century?

Call for Papers

In 1994 the UN General Assembly made the decision to elaborate a global framework instrument on the law of the non-navigational uses of international watercourses (UN General Assembly Resolution 49/52). The resultant Convention was adopted in 1997 by more than 100 nations. Since the Convention’s adoption over 14 years ago, there has been a heightened recognition of the numerous challenges humanity faces in securing water for all, and a widespread acceptance that governance plays a key role. However, the legal architecture for international watercourses remains fragmented, and the UNWC has not yet entered into force.

In recent years, a coalition of institutions under the general rubric of the UNWC Global Initiative has come together to examine the underlying reasons why the UNWC has not yet entered into force. Additionally, the UNWC Global Initiative has sought to further knowledge and understanding of the relevance of the UNWC in addressing the contemporary pressures on the world’s freshwater resources. As part of the activities of the UNWC Global Initiative, the IHP-HELP Centre for Water Law, Policy & Science in collaboration with WWF will be organising a global symposium on the UNWC between 5th and 8th of June 2011. The aim of the symposium is to gather together a wide and diverse range of experts from academia, government, international organisations, civil society, etc, to debate the existing and potential relevance of this global framework instrument.

Towards this endeavour the convenors of the symposium are inviting experts to submit papers on a range of topics related to the UNWC.

Further details are available here 

Friday, October 28, 2011

First Nations and the Constitutional Right to Water in Canada


Professor David Boyd published an article titled «No Taps, No Toilets: First Nations and the Constitutional Right to Water in Canada» in the McGill Law Journal Vol.57 No.1. The article's abstract states the following:

«Do First Nations have an enforceable constitutional right to water? This article suggests that they do, based on the right to life, liberty, and security of the person under section 7 of the Canadian Charter of Rights and Freedoms; the right to equality under section 15 of the Charter; and governments’ obligation to provide “essential public services of reasonable quality to all Canadians” under section 36 of the Constitution Act, 1982

Wednesday, September 28, 2011

Interactions between rainwater harvesting and groundwater recharge


A paper recently published by Hubert Stahn and Agnès Tomini, «Rainwater Harvesting under Endogenous Capacity of Storage : a solution to aquifer preservation?», studies interactions between conjunctive rainwater harvesting and groundwater withdrawal.

Some of the issues explored in the article are particularly relevant given current trends towards increased rainwater harvesting. Previous posts (here and here) were pointing at possible interactions between rainwater catchment and environmental flows. Another set of underlying questions that should be addressed pertains to rainwater as a source for groundwater recharge and aquifer depletion. On these issues, interesting excerpts in the paper are as follows (the paper is too technical for me to follow, but the intro and conclusion are legible for the lay person):

«Rainwater Harvesting (RWH) is a simple technique that has been used for thousands of years. Today, this practice is enjoying a revival in popularity and an international network, the International Water Association, promotes and supports RWH initiatives worldwide as an important component in the sustainable provision of freshwater. However, the co-existence of this technique with groundwater withdrawals is not always a success story, as it can lead to depletion of the water table. (...)

(W)e are dealing with two water sources that are typically interdependent: rainwater that is harvested cannot reach the aquifer. This implies that the quantity of RWH a¤ects the dynamics of the aquifer and even the marginal pumping cost, which depends on the aquifer head. The idea of this paper is to explore this complex dynamics and especially to show that in the long run, the introduction of RWH negatively a¤ects the head of the aquifer. (...)

It is therefore interesting to wonder about the signicance of this result with respect to the principle of sustainable development. Groundwater also maintains the health of the ecosystem, which gives it a conservation value. In other words, the question must be addressed of whether the implementation of this technology might not jeopardize the sustainable level of groundwater for all its different functions

Friday, September 16, 2011

Pembina Institute Report on Shale gas in British Columbia


The Pembina Institute has published a report authored by Karen Campbell and Matt Horne, and titled: Shale Gas in British Columbia: Risks to B.C.’s water resources.

The report, which refers to developments in Québec on a number of issues, makes a series of recommendations that can be summarized as follows:

1. Integrate water withdrawals for energy production in basin plans that include all other uses;

2. Provide timely, regularly updated and easily accessed public information on all water allocations, actual water withdrawals under permits, licences or other means, actual water uses and flowback water;

3. Require water licences for all ground water withdrawals;

4. Place licensing powers and oversight for all water takings within a single B.C. ministry;

5. Require companies to publicly disclose chemicals and additives used in hydraulic fracturing;

6. Undertake an independent audit of oil and gas water use in B.C. to assess the accuracy of company reporting;

7. Undertake improved public mapping of groundwater to allow for informed environmental assessment of oil and gas exploration and production;

8. Ensure transparent and comprehensive compliance and enforcement including automatic prosecution for serious overdue deficiencies;

9. Review and strengthen requirements for drilling, hydraulic fracturing and water storage and disposal as well as the liability of producers in case of contamination.

Tuesday, August 16, 2011

Arbitration between Montréal and Génieau for cancelled water management contract


Linda Gyulai reports in the Montreal Gazette here that the City of Montreal and Génieau have begun arbitration to settle the company’s $34-million claim for compensation on its cancelled $355.8-million water-management contract. Background for this dispute is described in Gyulai's article as follows:

«Mayor Gérald Tremblay announced the city was cancelling the 25-year contract in September 2009, less than two years into the deal, after a report by the city’s auditor-general found irregularities in the way it was awarded.

Auditor-general Jacques Bergeron found overspending, administrative laxity and poor communication in the awarding of the contract, which the city council approved unanimously and without debate in November 2007. His findings included that competition was narrowed during the bidding process in 2006 and 2007.

The contract provided for the city and the company to call in an arbitrator in case of dispute instead of going to court, Sabourin said.

Monday, August 8, 2011

Briefing note by David Boyd on the human right to water


briefing note by Professor David Boyd on the human right to water has been published following the InterAction Council's initiative on the global water cirisis reported in a previous post.

Particularly interesting is the brief review of Canada's opposition to the international recognition of the human right to water. In identifying the reason for Canada's position on this subject, Prof. Boyd states that:

«The more likely rationale is (...) that Canada is failing to meet its obligation to respect, protect, and fulfill the right to water. Thousands of Canadians lack access to safe drinking water, predominantly Aboriginal people living on reserves. The federal government estimates that there are approximately 5,000 homes in First Nations communities (representing an estimated 20,000+ residents) that lack basic water and sewage services. Compared to other Canadians, First Nations’ homes are 90 times more likely to be without running water. As of 2010, 49 First Nations communities have high-risk drinking water systems and more than 100 First Nations face ongoing boil water advisories (out of roughly 600 First Nations in Canada). The federal government admits that “The incidence of waterborne diseases is several times higher in First Nations communities than in the general population, in part because of the inadequate or non-existent water treatment systems.” Many of these deplorable situations have been dragging on for years and in some cases decades.» (References omitted)

Of note is the fact that the McGill Law Journal will soon publish the following article referenced as endnote 53 in the briefing paper:

D.R. Boyd. 2011. “No Taps, No Toilets: First Nations and the Constitutional Right to Water in Canada,” McGill Law Journal, in press.

Tuesday, July 12, 2011

Geoengineering is backed by the IPCC


Since this post, the signals in favour of geoengineering have become stronger - see an article here from John Vidal and another here from Pat Mooney in The Guardian, with a link to the UN preliminary drafts.

The Doctors Strangelove have decided that although we cannot predict what will happen with climate under current conditions, we are able to predict what will happen if we throw a few more variables into the climatic system. It also appears imperative to avoid any international legislation on the issue because that would not be desirable: See Keynote III.1 by Professor Redgewell in the UN preliminary drafts mentioned above.

It's difficult to imagine that efforts aimed at curbing greenhouse gas emissions will increase when we go down the road of climate engineering. Quite worrying is the fact that the impetus towards geoengineering comes not from the traditional right wing politicians but from the IPCC. Clive Hamilton might have a point with his book Requiem for a species as it looks more and more like human intelligence could become an evolutionary dead end: we blatantly disregard the only solution we know works - curbing emissions. Precaution is completely dismissed.

Will the countries with the will and the means to perform such operations, such as the US and the UK, make sure that any potential benefits as well as any adverse impacts are most equitably shared around the globe? Even more unlikely, will the private sector patenting geo-engineering technology act selflessly in the best interest of all? John Vidal in The Observer reports here on fears that manipulating weather patterns could have a calamitous effect on poorer countries...

Sunday, July 3, 2011

Québec water case law 21: The Court of Appeal upholds the validity of municipal by-laws for riparian zone protection


In Wallot v. Ville de Québec (in French), the Court of Appeal of Québec sits on appeal of a Superior Court judgement discussed in a previous post where the facts were thus summarised:

- Lake St. Charles is the source of 50% of the drinking water provided by the defendant municipality Québec City, serving close to 300 000 persons;

- During the summers of 2006 and 2007, toxic cyanobacteria proliferate in the Lake due to phosphate inputs from fertiliser run-offs, septic tank leakage, etc;

- Municipal by-laws are adopted by Québec City in June 2008 to counter this phenomenon by imposing the naturalisation and reforestation of heavily modified riparian areas on a 10 to 15 meters strip of land around the Lake;

- The plaintiffs and appellants are owners of riparian properties around Lake St. Charles. They contest the validity of the by-laws to avoid being forced to return part of their properties to a more natural state.

The Superior Court rejects the plaintiffs’ arguments and concludes that the municipality made reasonable use of its regulatory powers.

The appeal raises the following questions:

1 - Did the Superior Court err in concluding that the defendant municipality could adopt, based on section 19 of the Municipal Powers Act (MPA), the by-laws attacked?

2 - If the defendant municipality had the regulatory power to adopt the by-laws, did the Superior Court err in concluding that the defendant municipality did not exceed the power conferred by the MPA in doing so?

To answer the first question, the Court of Appeal establishes the breadth of the municipal regulatory power under sections 4.4 and 19 MPA by reference to the right to a healthy environment at section 19.2 of the Environment Quality Act, to the Protection Policy for Lakeshores, Riverbanks, Littoral Zones and Floodplains, to the Sustainable Development Act, and to the Act to affirm the Collective Nature of Water Resources and Provide for Increased Water Resource Protection. In this legislative context and given section 2 MPA, the Court concludes that the attacked municipal by-laws correspond to the regulatory powers conferred by the MPA.

With respect to the second question, the Court of Appeal examines whether the municipal by-laws impose constraints on the plaintiffs’ enjoyment of their properties that are prohibitive enough to constitute disguised expropriation. This is mostly a factual question and the Superior Court’s decision can only be quashed if it contains a manifest and dominant mistake, which is not the case. The by-laws are not equivalent to an absolute negation of the plaintiffs’ property rights or a positive confiscation of the properties. The plaintiffs’ rights over their properties remain exclusive. The plaintiffs can continue enjoying their property for residential purposes. Hence, the Court rejects the appeal.

Friday, June 10, 2011

Dignity and access to water for Negev Bedouins


In this article (forthcoming in the Natural Resources Journal) where the operationalisation of human rights to water is discussed, I was raising the question: «Can a person decide to reside in the middle of a desert and then claim water resources from the state on the basis of human rights?», the answer being that such situations must be carefully identified and delineated ex post at the local level by considering the particular facts at hand.

Interestingly in that context, Tomer Zarchin from Haaretz reports that the Supreme Court of Israel recognised some level of access to water for arab bedouins in the Negev desert based on the constitutional right to dignity. Richard Lightbrown provides additional background to the news whereby the hegemonic effect of formal positive legal order tied to state power over informal indigenous arrangements becomes apparent (this effect is also mentioned in section 4.1 of my article, in particular p.43).

Thursday, June 2, 2011

Water security and federal involvement in water management


Thanks to colleague BO for the heads up on this one. The Water Innovation Centre and the International Institute for Sustainable Development have recently published an interesting report written by Karla Zubrycki et al. on «Water Security in Canada: Responsibilities of the federal government».

The report makes 9 priority recommendations that may be summarised as follows (p.4):

1- Review the 1987 Federal Water Policy;

2- Increase federal government leadership on water quality and quantity monitoring;

3- Strong federal leadership by example through best practice on federal lands;

4- Build adaptive management into federal water planning initiatives;

5- Increase federal support on the economic aspect of drinking and waste water municipal initiatives;

6- Upgrade drinking water standards;

7- Facilitate ecosystem-based management across jurisdictions;

8- Map major groundwater aquifers;

9- Consider developing a framework analogous to Europe's Water Framework Directive.

These recommendations address important issues and would surely improve water management in Canada. A few comments on the report are as follows:

- One particularly welcome suggestion in a Québec context is to «[u]se Fisheries Act to enforce instream flow needs, particularly if other options are not effective» (suggestion 19 at p.66). For protecting flows, the provincial government relies on the 1999 Politique des débits réserves écologiques pour la protection du poisson et de ses habitats. The Politique is inadequate as argued here and the government’s undertaking 22 in the Québec Water Policy to improve the Politique remains unfulfilled. Given the renewed drive to develop hydropower in Québec, additional protection for flows is urgently required;

- From a constitutional law perspective, the report argues «that the federal role in water security will need to increase in coming years due to the federal responsibility for peace, order and good government—that water security fits under the purview of POGG [Peace Order and Good Government] because it is an issue of national importance. In essence, the Canadian public expects its government to protect it from harm; the uncertainties of the 21st century and likely impacts on water resources are a compelling reason for the federal government to take renewed leadership on water security.» (p.56; see also p.53-55, 60-62). This is not a new suggestion. Professor Dale Gibson, in an excellent article that remains impressively actual, «The Constitutional Context of Canadian Water Planning» (1969) Vol.7 Alberta Law Review 71, asked whether POGG could «have any relevance to the administration of provincial waters? I believe that it would; not just because water resources are important to the nation (it is not the importance of a matter that moves it from provincial to national control, it is the fact that it cannot be dealt with in the manner desired at the provincial level), and not because it would be desirable to administer water uniformly across the country (water problems in Quebec are quite distinct from those in Saskatchewan, and call for a different approach), but because it would not be possible for any province by itself to create the kind of all embracing, multi-use administrative agency that most resource administrators seem to think would be ideal.»(p.86) The obvious risk of across-the-board increase in federal involvement is the sterilization of provincial legislation due to federal paramountcy. Whether one tilts towards subsidiarity or centralisation in the water management debate (for example, see Gibson p.91 – this article provides interesting reflections regarding the argument in favour of over-arching federal role based on the fact that political lines do not correspond to watersheds), this suggestion appears ill timed due to the current federal government’s disregard for environmental protection. Ultimately, law cannot compensate for the absence of political will to improve water management;

- The connection between the discussion on water security and the study of constitutional law as applicable to water resources feels a bit loose (part 4). The essence of that connection might be reflected at p.62: «Security is linked to “peace, order and good government.” Without security, peace and order are at risk.» This is difficult to contest. But is it enough to justify the report’s suggestion with respect to federal involvement? In Québec, section 85 of the Municipal Powers Act, R.S.Q., c.C-47.1, provides that a local municipality may adopt a by-law to ensure peace, order, good government, and the general welfare of its citizens. (On the municipal POGG, see a recent article from François Tremblay, «Le pouvoir réglementaire pour assurer la paix, l’ordre, le bon gouvernement et le bien-être général de la population : source nouvelle et confirmée d’intervention pour les municipalités» in Barreau du Québec, Développements récents en droit municipal 2011) While the concept of water security is en vogue and convincingly explains why water issues should be at the top of the agenda, the links between that concept and the suggestion that the federal government should use the POGG power to regulate water issues might have been developed in more details;

- A final comment which is not really relevant because it does not address a central point of the report, but while I am at it, why not: on page 60, the report makes a difference between on one hand economic instruments, such as tradable permits and taxes, and on the other hand regulatory instruments, such as legislation and liability. In recent years, this dichotomy has become recurrent in grey literature on water management. However, a clear distinction between economic instruments and regulation is impossible to uphold. A tradable permit requires a regulatory environment to exist. In fact, a tradable permit is a regulatory instrument. Taxes, of course, are often imposed through fantastically complex legislative frameworks. In short, the distinction between economic and regulatory instruments is a myth. Perpetuating it creates a perception of things economic as free and good, while regulation is repressive and to be avoided. At this point, one might get the feeling that there is a political intent behind the sustained effort to differentiate economical and regulatory instruments. A clue as to the nature of that political bias can be found in the ironically paradoxical suggestion to label deregulation policy as a regulatory instrument.

Water and Sanitation Services in Europe: Do Legal Frameworks provide for "Good Governance"?


The IHP-HELP Centre for Water Law, Policy and Science has published a report by Monica Garcia Quesada providing comparative analysis of governance in water services provision (sanitation and water supply) in six countries: England, France, Italy, the Netherlands, Scotland and Spain (link here).

The report develops an analytical framework to study and compare national governance mechanisms. To do so, the research analyses the national regulatory measures that ensure water governance concerning water tariff and customer standards setting. A list of 14 indicators for access to information, public participation and access to justice is employed to compare and contrast national legal mechanisms across the countries.

Sunday, May 22, 2011

Water case law in Québec 20: Municipal liability further to floods


Since the beginning of May, the flow of an emissary of Lake Champlain, the Richelieu River, is near or at record level, and a large area South of Montréal is flooded (see articles here and here from Le Devoir - in French - and some pics here).

In this context, the recent judgement from the Superior Court in Équipements ÉMU ltée v. Québec (Ville de) (in French), is interesting. In this case, the plaintiff owner of two buildings located on the territory of the defendant municipality seeks compensation for damages resulting from floods that occurred in 2003, 2004 and 2005. The buildings damaged by the floods were built in 1987 and 1996.

The plaintiff argues that the defendant’s rainwater drainage system is inadequate and outmoded. The plaintiff also alleges that the defendant failed to take into account a series of professional recommendations made in 1973 by consultant engineers, in 1990 by the Ministry of the Environment, and in 1993 by other consultant engineers. These recommendations were to the effect that urban development should be curtailed or prohibited in the flood plain where the buildings are located, that the drainage system should be adapted to deal with the runoff modifications resulting from increased urbanisation, and that the river running through the flooded area should be maintained according to certain standards.

The defendant essentially counters that the damages result from a series of forces majeures – see section 1470 of the Civil Code of Québec (CCQ).

The plaintiff’s recourse is based on extra-contractual liability and relies on the presumption established by 1465 CCQ. According to this presumption, the defendant’s fault does not have to be proven by the plaintiff. Under section 1465 CCQ, a person entrusted with the custody of a thing is liable to reparation for injury resulting from the autonomous act of the thing, unless he proves that he is not at fault.

The Court finds that the damages were caused by floods resulting from backflow in the municipal drainage system, which includes the sewers and the river itself. The Court also finds that the municipality is custodian of the drainage system. Hence the presumption of section 1465 CCQ applies. Given that the municipality does not establish its absence of fault, and that the exemption of force majeure is refused by the Court, the municipality is held liable. Damages are not dealt with in this judgement.

The text of the judgement is long and the evidence is not summarised. A number of points are worth highlighting:

- This is a test case for the floods that occurred in the relevant area in 2003, 2004 and 2005;

- The floods that occurred in 2003 and 2004 were caused by accumulations of debris and sedimentation. The municipality failed to clear the river adequately;

- The floods that occurred in 2005 were the result of 100 year recurrence rain events. The rules of the art establish that the river, as part of the municipal drainage system, should be maintained in a condition where it is able to discharge 100 year recurrence rain events;

- The capacity of the sewers is not significantly discussed, but they appear to have been designed in accordance with the applicable rules of the art. Their discharge capacity is at or under 15 year recurrence rain events (see §§ 181 and 344);

- The judgement provides a very interesting review of recent case law illustrating the principles applicable to municipal liability for flooding. In particular, a case is referred to where the Court acknowledges the increase in extreme climatic events, the end of climatic stationarity and the irrelevance of statistical occurrence tables;

- Given the ratio of the Court’s conclusions, the initial emphasis on the municipality’s decision not to follow the various recommendations to curtail or prohibit development in the floodplain appears somewhat immaterial. Nevertheless, this type of municipal decisions on land planning and use might possibly have an impact on municipal liability when the consequences of the decisions are entirely foreeable: see part 5 of François Fontaine, «L'arrêt Ciment St Laurent: les principes sont-ils coulés dans le béton?» (here- in French).

Of note is the fact that authorisation for appeal was refused by the Court of Appeal.

Tuesday, May 10, 2011

Hydraulic fracturing from shale gas exploitation pollutes drinking water


Propublica reports on a peer-reviewed article by Stephen Osborn et al., «Methane contamination of drinking water accompanying gas-well drilling and hydraulic fracturing», which was recently published in the Proceedings of the National Academy of Sciences. Excerpts from the abstract read as follows:

«In aquifers overlying the Marcellus and Utica shale formations of northeastern Pennsylvania and upstate New York, we document systematic evidence for methane contamination of drinking water associated with shale gas extraction. (...) We conclude that greater stewardship, data, and— possibly—regulation are needed to ensure the sustainable future of shale-gas extraction and to improve public confidence in its use.»

The article mentions hypotheses about the mechanisms causing drinking water contamination from fracking: 1) gas migration; 2) leaky gas-well casings; and, 3) increased connectivity of the rock formation due to extensive fracturing. Only options 2) and 3) appear probable to the authors, with leaky gas-well a likely possibility.

Hopefully, this type of evidence will be considered in the strategic environmental study to be conducted on shale gas exploitation in Québec.

Saturday, April 23, 2011

Review of Policy proposal for BC Water Sustainability Act


British Columbia is currently reforming its legal framework for water management. In December 2010, a policy was proposed for the province's new Water Sustainability Act (WSA).

An interesting comparison between:
a) the 2008 Living Water Smart provincial initiative which launched the reform process;
b) the recommendations for reform made in 2009 by NGOs;
c) the 2010 policy proposal,
has been prepared by Randy Christensen, a lawyer with Ecojustice Canada, and Linda Nowlan, Director of Pacific Conservation with WWF-Canada. This comparison provides a great perspective to assess the reform process and evaluate whether the initial objectives are met.

The WWF has submitted comments on the WSA policy proposal that focus on environmental flow protection. The WWF argues the WSA should put environmental flows at the centre of the reformed framework through strong legal protection based on a five step process:

1 - Set a single province wide standard to protect environmental flows;

2 - Require regionally specific broad environmental flows standards to be determined, based on a classification scheme to group rivers and streams of the same type;

3 - Require time-bound plans for the most water-stressed areas that set environmental flow conditions and then require all licences to be subject to maintain those flow conditions;

4 - Require environmental flows to be considered in all new licences;

5 - Require review of licences at periodic intervals to enable response to changing flow conditions.

As the proposal now stands, WWF submits that only the third and fourth actions listed above will occur, leaving most of the province unprotected when it comes to environmental flows.

Dundee International Water Law and Transboundary Freshwaters Workshop

The International Water Law and Transboundary Freshwaters Workshop will be held in at the IHP-HELP Centre for Water Law, Policy and Science, University of Dundee, this August. Here's the blurb:

Running from Monday 1st August to Friday 5th August 2011 (inclusive), internationally renowned speakers will explore the role of international water law in the management of freshwater resources. Key topics to be addressed include:

• What is international water law and how does it support 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?

• What special rules exist for the management of groundwater?

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

• How can states use international law to promote hydro-diplomacy?

More info can be found here.

Sunday, April 17, 2011

U.S. congressional committee report on chemichals used in fracking fluids


The U.S.A. House of Representatives Committee on Energy and Commerce, Minority Staff, released yesterday a report on the «Chemicals Used in Hydraulic Fracturing». A part of its executive summary reads as follows:

«The most widely used chemical in hydraulic fracturing during this time period, as measured by the number of compounds containing the chemical, was methanol. Methanol, which was used in 342 hydraulic fracturing products, is a hazardous air pollutant and is on the candidate list for potential regulation under the Safe Drinking Water Act.

Some of the other most widely used chemicals were isopropyl alcohol (used in 274 products), 2-butoxyethanol (used in 126 products), and ethylene glycol (used in 119 products). Between 2005 and 2009, the oil and gas service companies used hydraulic fracturing products containing 29 chemicals that are (1) known or possible human carcinogens, (2) regulated under the Safe Drinking Water Act for their risks to human health, or (3) listed as hazardous air pollutants under the Clean Air Act. These 29 chemicals were components of more than 650 different products used in hydraulic fracturing.»

The U.S. congressional committee notes that common chemical compounds in fracking fluids are known human carcinogens and can damage the central nervous system, liver and kidneys. For example, 2-butoxyethanol, which was used in 126 fracking fluid products from 2005 to 2009 in the U.S.A., is easily absorbed and distributed in the human. It can cause the destruction of red blood cells, as well as damages to the spleen, liver and bone marrow (see p.7 of the U.S. congressional committee report).

This is a very interesting read considering the paucity of information regarding fracking fluids in the recent BAPE report on shale gas exploitation in Québec (see p.57-58 of the BAPE report for public concern on human and environmental contamination as well as p.123-125 for the recommendations).

Tuesday, April 12, 2011

Shale gas exploitation and public interest in Texas


Disputes related to shale gas exploitation have arrived before the courts in the U.S.A. In RailRoad Commission of Texas v. Texas Citizens for a Safe Future and Clean Water, the issue relates to the re-injection of drilling fluids underground after their use for hydraulic fracturing. The Court thus describes the factual background:

«Fracing a well entails pumping large volumes of water and sand into reservoir rock, which then mixes with saline formation water and must be flowed back out of the well before production can begin. A company fracing a well must dispose of the resulting waste. Most companies do so by injecting the waste into subsurface zones which are naturally saline environments, usually in old wells converted to injection wells. A company seeking to convert a well to an injection well for oil and gas waste must apply to the Commission for a permit.»

The Commission can grant an injection permit when, inter alia, the use or installation of the injection well «is in the public interest». In this instance, the Commission granted a permit to a fracking company notably because the «production of hydrocarbons for use by the people of Texas and industry serves the public interest».

This determination is contested before the Court, and the crux of the matter turns on the degree of discretion that the Commission has in interpreting the notion of public interest.

The Court finds that «the phrase “public interest” is anything but clear and unambiguous». As a result, the Court must defer to the Commission's interpretation of the notion of public interest, and the Commission's decision to grant an injection permit stands. A more substantial study of the courts decision by Stephen Dillard, Barclay Nicholson and Kadian Blanson from Fulbright & Jaworski LLP can be found here.

This case is not relevant in the context of both the regulatory regime for natural resources management and the administrative law applicable in Québec. Nevertheless, this case illustrates the risk related to the interpretation of legal notions like public interest when they are tied to authorisation regimes relying on administrative discretion. As argued in a previous post, the notion of public interest found in the new Québec water withdrawal authorisation regime should be further defined to avoid an excessive degree of discretion.

Meanwhile, an article by Robert Howarth et al., «Methane and greenhouse-gas footprint of natural gas from shale formations», has just been published in Climatic Change Letters. Excerpts from the article's summary read as follows:

«[A n]ew study demonstrates that shale gas is not the planet-friendly gas it is thought to be. Natural gas extracted from shale formations has a greater greenhouse gas footprint - in the form of methane emissions - than conventional gas, oil and coal over a 20 year period. This calls into question the logic of its use as a climate-friendly alternative to fossil fuels[...]

[O]verall, during the life cycle of an average shale-gas well, between four to eight percent of the total production of the well is emitted to the atmosphere as methane, via routine venting and equipment leaks, as well as with flow-back return fluids during drill out following the fracturing of the shale formations. Routine production and downstream methane emissions are also large, but comparable to those of conventional gas.»

In light of the Texan case above, one may wonder whether climate change and its potentially catastrophic consequences that are brought about by fossil fuels such as shale gas are in the public interest.

Finally, another excellent article by Louis-Gilles Francoeur in Le Devoir (here - in French) provides a great perspective on the management of energy resources in Québec.

Sunday, April 3, 2011

Québec water case law 19: interpreting section 56 of the Municipal Powers Act


In Tousignant v. Lac-Beauport (Municipalité de) (in French), the appellant, owner of a defective sceptic installation receiving waste water from his residence, was found by the Municipal Court in first instance to contravene to the Regulation respecting waste water disposal systems for isolated dwellings and was ordered to reconstruct the installation in conformity with the regulatory requirements.

Before the Superior Court, the appellant contests the validity of the injunctive orders from the Municipal Court based on lack of competence. In principle, the Superior Court has inherent and exclusive competence in injunctive matters as a court of first instance. Thus, the question is whether the Municipal Court exceeded its jurisdiction when it ordered the appellant to reconstruct the installation.

This debate has been studied recently by doctrine: see Daniel Bouchard & Hélène Gauvin, «L’article 56 de la Loi sur les compétences municipales: une jeune disposition, un vieux débat... latent» in Barreau du Québec, Développements récents en droit municipal 2008 (in French). The relevant provisions are section 29 of the Act respecting municipal courts as well as sections 25.1 and 56 to 61 of the Municipal Powers Act (MPA). In particular, the solution to the issue at hand turns on the interpretation of section 56 MPA: must it be interpreted as giving injunctive powers over immovables to the Municipal Court?

The Superior Court concludes that a restrictive interpretation should be favoured based on 2 principles of interpretation: 1) the expectation of coherence between laws; 2) the presumption of utility or validity of a legal disposition. As a result, section 56 MPA does not grant power to a Municipal Court to order the reconstruction of a sceptic installation, which is a permanent work and an immovable.

Of note is the fact that debate on the constitutionality of section 56 MPA was not addressed directly due to procedural questions.

Sunday, March 27, 2011

Québec water case law 18: Authorisation denied for a class action further to rains and sewer backflow


In Côté v. Montréal (Ville de) (in French), the Superior Court must decide whether to authorise a class action on behalf of all the persons having sustained damages further to the heavy rains of 2 August 2008 on the territory serviced by the water works and sewers of Montréal.

The motion to obtain authorisation alleges that the City's sewer system is outdated and inadequate, and that the City failed to take appropriate measures to ensure that flooding and sewer backflow would be avoided.

The Court first provides a brief overview of the principles applicable at the prior authorisation stage (see sections 1002 and ff. Code of Civil Procedure (CCP)).

Then, the Court proceeds to establish that the cumulative conditions required by section 1003 CCP have not been met: although the facts alleged seem to justify the conclusions sought, the recourses of the members of the group do not raise identical, similar or related questions of law or fact, notably because the sewer system is a fragmented patchwork under the responsibility of 19 different sub-municipal authorities and the amount of rain on 2 August 2008 varied significantly over the municipal territory.

Because of this, the Court does not decide whether the representative seeking to obtain the authorisation is in a position to represent the members of the class action adequately. The authorisation is denied.

Saturday, March 26, 2011

Québec water case law 17: «Lower land is subject to receiving water flowing onto it naturally from higher land»


In Petrecca v. Théodore (in French), the owner of a residence sues in civil liability his neighbour, the contractor who completed earthworks on the neighbour’s property, the seller/developer of his and his neighbour’s property, as well as the city where the two properties are situated. The damages claimed result from the swamping of the Plaintiff’s property further to the earthworks raised on the neighbour’s property.

The Superior Court decides that the neighbour is responsible on the basis of section 976 of the Civil Code of Québec (CCQ). Section 976 CCQ provides that neighbours shall suffer the normal neighbourhood annoyances that are not beyond the limit of tolerance they owe each other, according to the nature or location of their land or local custom. In other words, the earthworks created an abnormal neighbouring annoyance. The tribunal reminds that liability for neighbouring annoyances is a no fault regime according to the Supreme Court’s teachings in Ciment Saint-Laurent v. Barrette.

The property seller/developer is responsible only as a seller - and not as a developer - on the basis of contractual liability for false representations.

The contractor is not responsible under the general extra-contractual liability regime. The city acted correctly in all respect and also cannot be held liable.

Significantly, section 979 CCQ is only invoked when the tribunal proceeds to determine whether the damages claimed for stress, troubles and inconvenience are justified and establish their exact quantum (see §216).

Wednesday, March 16, 2011

WWD webcast


Professor Patricia Wouters, Director of the UNESCO IHP-HELP Centre for Water Law, Policy and Science, will take part in «The Global Water Crisis: Addressing an Urgent Security Issue», and event related to the the Worl Water Day, led by the InterAction Council and chaired by the Right Honourable Jean Chrétien, prime Minister of Canada, 1993-2003.

Here's the site to register for the live webcast.

Saturday, March 12, 2011

Québec water case law 16: Causality and trout mortality


In Michaud v. Équipements ESF inc (in French), the Court of Appeal is on appeal of a judgement rejecting an action in civil liability for damages sustained by the owner of an aquaculture business comprised of a few artificial lakes seeded with trout as a result of heavy fish mortality allegedly caused by hydrocarbon contamination leaking through soil from a neighbouring industrial shop.

In first instance, the damages are established, as is environmental contamination from hydrocarbon leakage. The debate focuses on the causality link between the damages and the leak as well as on the evaluation and award of expert costs. Both these issues are on appeal.

With respect to causality, the Court states the principles relevant to the application of a presumption of causality and refers sections 2804, 2811 and 2849 of the Civil Code of Québec as well as to Morin v. Blais (SCC), Sarrazin v. Québec (Procureur général) (QCA - in French) and Longpré v. Thériault [1979] C.A. 258 (QCA) to find that circumstances are not serious, precise and concordant enough to give rise to a presumption establishing causality. The Court then proceeds to examine whether the appellant has met the burden of proof on causality to establish a link between hydrocarbon leakage and fish mortality under the light of the principles established in Lacasse v. Labrecque [1995] R.R.A. 596 (QCA). The Court concludes that evidence has not established on the balance of probability that fish mortality was caused by the leaks, and that the Superior Court has not made a manifest and dominant mistake on this point.

One last point worth mentioning is from the discussion about expert costs. At §94, the Court states that compliance with precedents stems from a public order imperative that allows justiciables to act and settle their disputes in a predictable framework («Le respect de l’autorité du précédent ne relève pas du caprice, mais elle reflète un impératif d’ordre public qui est de permettre aux justiciables de régler leurs affaires dans un cadre prévisible et d’agir dans ce cadre.»)

Thursday, March 10, 2011

Special issue on water law


Les Cahiers de droit just published their issue 3 & 4, Vol. 51, a special issue on water law with many articles exploring interesting subjects in Québec law. Content includes:

- Jane Matthews Glenn, «Crown Ownership of Water in situ in Common Law Canada: Public Trusts, Classical Trusts and Fiduciary Duties»

- Sylvie Paquerot, «Au-dela d'une ressource naturelle: quels criteres faut-il privilegier pour doter l'eau douce et le cycle hydrologique d'un statut specifique?»

- Madeleine Cantin Cumyn, «L'eau, une ressource collective: portee de cette designation dans la Loi affirmant le caractere collectif des ressources en eau et visant a renforcer leur protection»

- Suzanne Comtois and Bianca Turgeon, «L'eau, chose commune a l'usage de tous: l'Etat quebecois a-t-il les moyens de donner effet a ce statut?»

- Jamie Benidickson, «Cleaning Up after the Log Drivers' Waltz: Finding the Ottawa River Watershed»

- Patrick Forest, «Inter-local Water Agreements: Law, Geography, and NAFTA»

- Yenny Vega Cardenas and Nayive Biofanny Vega, «L'eau douce, son exportation et Ie droit constitutionnel canadien»

- Hugo Tremblay, «The Emergence of Environmental Flow Protection in Quebec Law»

- Catherine Choquette, Edith Guilhermont and Marie-Pier Goyette Noel, «La gestion du niveau d'eau des barrages-reservoirs au Quebec: aspects juridiques et environnementaux»

- Daniel Bouchard and Helene Gauvin, «Plus l'eau a de gardiens, plus elle est en peril»

- David Gilles, «Amenager, canaliser, encadrer juridiquement les rivieres du Quebec: le poids de I'histoire?»

Friday, March 4, 2011

On the triage of species: which ones do we want extinct?


Just a quick post to point to an ongoing debate that originated in California water management about earmarking the extinction of some species as acceptable. Here's a post from Professor Holly Doremus on Legal Planet that provides context and references on the origin of the debate.

This debate raises fascinating issues at the theoretical level about the anthropocentric nature of development and conservation but also at the advocacy or political level about picking the most effective path of action to achieve conservation goals.

Under the federal Species at Risk Act (SARA) in Canada, triage is implicitly accepted, as appears from a previous post. In 2010, the federal government decided not to list the Winter Skate for the following reasons:

«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.»

Thus, under SARA, triage is principally effected at listing level (arguably, triage can also occur during the development of recovery strategies, but this would presumably be less significant since the principal prohibitions to affect the species provided by SARA would already be operational). A brief review of SARA's provisions shows that identification and listing of protected species is subjected to a detailed process formally guided by scientific inputs but ultimately subordinated to political discretion.

A committee of experts in disciplines such as conservation biology, population dynamics or genetics, the Committee on the Status of Endangered Wildlife in Canada (COSEWIC), must assess the status of each wildlife species it considers to be at risk, with priority given to the species more likely to become extinct, in order to classify it as extirpated, endangered, threatened, of special concern or not currently at risk and, as part of the assessment, identify existing and potential threats to the species. (Here are COSEWIC criteria and guidelines for the status assessment of wildlife species)

The COSEWIC must then provide the reasoned assessment of a species status to the federal Minister of the Environment, who then makes a recommendation to the Governor in Council to add a wildlife species to the list of species at risk, to reclassify a listed wildlife species, or to remove a listed wildlife species. The Governor in Council may not accept the recommendation and decide not to add the species to the list of species at risk. All decisions not to add a species to the list despite assessments made by the COSEWIC appear to have been taken under the government in power since 2005 for reasons that include economic costs, absence of data as well as sectoral opposition.

Regarding triage under SARA, one of the main points that may block debate in Canada is that the phenomenon is not explicitly recognized by the legal framework (the preamble and the purpose of SARA) but nevertheless occurs in a completely discretionary space within the regime.

Friday, February 25, 2011

International Water Law Scholarships for GWP Partners


The Global Water Partnership and the University of Dundee offer scholarships for 30 participants to undertake a module in International Water Law, in Dundee, August 1-19, 2011. Applications are accepted from 4 March to 30 April 2011.

The module is aimed at persons working in water resources who wish to acquire specialist knowledge of international water law, especially as it relates to transboundary water challenges in the GWP regions.

Applicants to the joint GWP-University of Dundee IWL Programme should be from GWP Partner organisations and are required to be proficient in English, either as native speakers, or to a standard of an IELTS score of 6.5. A university degree is required in Hydrology, Environmental Science, Law, Agriculture, or related field.

More information here.

Saturday, February 12, 2011

Article on the human right to water in the Canadian Charter of Rigths and Freedoms


A very interesting article about the human right to water in Canadian law by James Harnum, «Deriving the Right to Water from the Right to Life, Liberty and Security of the Person: Section 7 of the Canadian Charter of Rights and Freedoms and Aboriginal Communities in Canada», was just published in the 19th volume of the Review of European Community & International Environmental Law (RECIEL). From the abstract:

«This article examines the question of whether a right to safe drinking water can be derived from the right to life, liberty and security of the person that is protected in the Canadian Charter of Rights and Freedoms. By examining the situation of Aboriginal communities in Canada and the jurisprudence of the Supreme Court of Canada, it appears that a right to water may, in certain circumstances, be derived from other fundamental human rights.»

At the heart of the argument is the impossibility to establish a qualitative difference between negative and positive rights. Harnum refers to a number of cases in which a decision by the Supreme Court clearly had an impact on the regulatory and financial burden of the State to establish that tribunal should not only protect negative rights.

For a related but broader analysis under the Québec Charter, see David Robitaille, «Les droits économiques et sociaux dans les relations États-particuliers après trente ans d'interprétation: normes juridiques ou énoncés juridiques symboliques?» [Social and economic rights in State-individuals relations after 30 years of interpretation: legal norms or symbolic statements?](2006) Numéro thématique «La Charte Québécoise: Origines, Enjeux et Perspectives», Revue du Barreau du Québec 455.

Tuesday, January 25, 2011

Hydraulic fracturing and shale gas leaks in Québec: New science shed light on the «cow farts» leaks


Just a quick post to follow up on reports relating to shale gas leaks from wells in Québec.

The Québec Ministry for Natural Resources and Wildlife, Nathalie Normandeau, has recently described gas leaks from fracking exploration wells as negligible by likening them to cow farts. Thankfully, less clownish politicians have taken a more cautious approach on the issue since then (article here by Robert Dutrisac and Louis-Gilles Francoeur, Le Devoir, 22 January 2011 - in French).

Now, Andrew Revkin from Dot Earth in the New York Times points to interesting scientific developments (blog post here):

- Abrahm Lustgarten, «Climate Benefits of Natural Gas May Be Overstated», 25 January 2011, Propublica;

- Robert Howarth, «Preliminary Assessment of the Greenhouse Gas Emissions from Natural Gas Obtanied by Hydraulic Fracturing», Departement of Ecology and Evolutionary Biology, Cornell University.

All well worth a read, and it supports the work done by Nature Québec (as reported here by Louis-Gilles Francoeur, Le Devoir, 19 January 2011 - both in French). Hopefully, these inputs will be considered by the BAPE.

Follow-up on the sleeping giant in Québec water case law 12


In a previous blog post, a recourse by aboriginal communities on the North Shore of the St. Lawrence River against Hydro-Québec as well as the federal and provincial governments was mentioned as potentially very interesting - and one to follow-up on...

Apparently, it might just end there. CBC reports (in French) that Hydro-Québec could pay CDN$ 125 M to the First Nations in pre-trial settlement of the claim.

Saturday, January 22, 2011

Dundee UNESCO Centre for Water Law Symposium


On 20-24 June 2011, the Centre for Water Law, Policy and Science, University of Dundee, will hold a Symposium on National Water Law: Managing Global Water Resources.

The Symposium will «focus on water resources, rather than the delivery of services, and will take a comparative approach, drawing on experience from different jurisdictions. Best practice will be highlighted based on approaches that have successfuly tackled universal problems.»

Additional information on programme and registration can be found here.

Friday, January 21, 2011

COGESAF Forum on stormwater management in urban area


On 23-25 October 2011, the Saint-Francois Watershed Steering Committee (COGESAF), in partnership with Sherbrooke University and Sherbrooke City, will organize the second edition of International Forum on Integrated Water management on "Stormwater management in urban area".

The Forum «aims to increase the global knowledge on stormwater management in urban areas to all the actors in Quebec, Canada and around the world. Furthermore, an added value will come from the presence of internationally renowned experts wishing to share their advanced research and positive experiences about the development and implementation tools for a better control of stormwater

Theme 1 «Governance, strategy development and territorial planning» notably focuses on legal instrument and governance tools for sustainable stormwater management.

Friday, January 14, 2011

Drinking water fluoride content level to be lowered in the U.S.A.?


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

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

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

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

Thursday, January 13, 2011

New water law blog


Just a quick post to highlight the creation of a new info source on water law with a focus on the neighbouring New York State, the New York Water Law Blog by Rachel Treichler.

Sunday, January 2, 2011

CWRJ Issue on the Hydrogeology of the Châteauguay River Watershed


The Canadian Water Resources Journal has published a special issue on the Hydrogeology of the transboundary Châteauguay River Watershed (2543 km2, 57% in Québec and 43% in New York - 100 000 (or 250 000 depending on the text in the issue) inhabitants on the Canadian side with 20 000 domestic wells, overall dependant on groundwater for 67% of total water use). This is a mostly unconfined or semi-confined aquifer system with northwards groundwater flows that discharge in the St-Lawrence River (see Lavigne, Natsev and Lefebvre, Numerical Simulation of Groundwater Flow in the Châteauguay River Aquifers, p.469 & ff.), making the U.S.A. portion of the aquifer system part of an international watercourse as defined by article 2 of the 1997 UN Convention on non-navigational water uses.

The CWRJ special issue presents the principal results of a large scale project conducted from 2003 to 2007 by a variety of participants on both sides of the border. This is only the 3rd aquifer system mapped in details in Québec. However, it is reported that the success of this project has led to the launch of the current provincial groundwater mapping programme under which five major studies (in la Mauricie, Centre-du-Québec, Saguenay-Lac-Saint-Jean, Abitibi-Témiscamingue and Montérégie-Est) are expected to be completed in 2013.

In addition to the wealth of hard scientific information on the Châteauguay watershed, the special issue includes an article exploring groundwater allocation on the Québec side of the watershed from a social science perspective: Marie-Pierre Dagenais, Analyse Sociologique de l'Allocation de l'Eau Souterraine: L'Exemple de Franklin, Québec, p.543 & ff (in French). The events studied by Dagenais' article relate to commercial bottling projects on a municipal territory in an agricultural zone.

The article shows that municipal residents mobilised together with farmers against the bottling projects due to the possibility of water shortage resulting from increased withdrawal. Lack of reliable information and institutional capacity played a significant part in the escalation of the social conflict from the civil society's perspective. At the same time appeared an asymmetrical relationship where administrative authorities at provincial level favoured direct, bilateral and private information sharing with the bottling project promoters to the exclusion of other stakeholders. It seems that the opacity of the institutions for groundwater allocation, as well as the fragmented skein of applicable laws and regulations played a part in the development of the conflict resulting from the bottling projects (the tail end of the ensuing judicial saga was discussed in an older post).

Regulation on charges payable for the use of water in force


As announced by the Québec Ministry for Sustainable Development, Environment and Parks, the Regulation respecting the charges payable for the use of water published in the Gazette Officielle on 15 December 2010 has come into force 15 days after its publication.

Some of the significant features of Regulation were mentioned in a previous post. Some amendments to previous draft versions of the Regulation are as follows:

- Contrary to earlier versions, the manufacturing of canned, dried or marinated fruits and vegetables will finally not be subjected to the higher tariff (see section 5);

- Contrary to earlier versions, the higher tariff will only be applied to activities that incorporate water in the final product (section 5). This measure can be linked to the virtual water and water trade discussion. In a fall 2010 report on Freshwater Supply and Demand in Canada, Statistics Canada concluded that:

«More water is embedded in forest products than food. When precipitation was included, the production of exported lumber, wood pulp, paper, and other forest products required seven times more water than the production of exported agricultural commodities.» (p.6)

Wood and paper products are subjected to the Regulation (see section 3 and Schedule) but not to the higher tariff.

- The fines for contraventions to the Regulation are increased.

The first charges are due on 31 March 2012.