Water security and federal involvement in water management

(BY HUGO)

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.