Québec Water Law

UNWC Global Initiative Symposium

2011-12-25T23:19:00.000Z

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

First Nations and the Constitutional Right to Water in Canada

2011-10-28T01:50:00.000+01:00

(BY HUGO)

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.»

Interactions between rainwater harvesting and groundwater recharge

2011-09-28T11:11:00.000+01:00

(BY HUGO)

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.»

Pembina Institute Report on Shale gas in British Columbia

2011-09-16T11:54:00.000+01:00

(BY HUGO)

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.

Arbitration between Montréal and Génieau for cancelled water management contract

2011-08-16T10:41:00.000+01:00

(BY HUGO)

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.»

Briefing note by David Boyd on the human right to water

2011-08-08T10:36:00.000+01:00

(BY HUGO)

A 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.

Geoengineering is backed by the IPCC

2011-07-12T12:03:00.000+01:00

(BY HUGO)

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...

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

2011-07-03T22:45:00.000+01:00

(BY HUGO)

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.

Dignity and access to water for Negev Bedouins

2011-06-10T10:50:00.002+01:00

(BY HUGO)

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).

Water security and federal involvement in water management

2011-06-02T15:59:00.001+01:00

(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.

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

2011-06-02T15:59:00.000+01:00

(BY HUGO)

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.

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

2011-05-22T19:58:00.003+01:00

(BY HUGO)

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.

Hydraulic fracturing from shale gas exploitation pollutes drinking water

2011-05-10T10:39:00.000+01:00

(BY HUGO)

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.

Review of Policy proposal for BC Water Sustainability Act

2011-04-23T12:31:00.003+01:00

(BY HUGO)

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

2011-04-23T10:30:00.000+01:00

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.

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

2011-04-17T12:41:00.001+01:00

(BY HUGO)

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).

Shale gas exploitation and public interest in Texas

2011-04-12T17:14:00.000+01:00

(BY HUGO)

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.

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

2011-04-03T14:32:00.000+01:00

(BY HUGO)

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.

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

2011-03-27T12:24:00.002+01:00

(BY HUGO)

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.

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

2011-03-26T13:33:00.009Z

(BY HUGO)

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).

WWD webcast

2011-03-16T22:12:00.005Z

(BY HUGO)

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.

Québec water case law 16: Causality and trout mortality

2011-03-12T10:04:00.002Z

(BY HUGO)

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.»)

Special issue on water law

2011-03-10T10:46:00.004Z

(BY HUGO)

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?»

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

2011-03-04T10:28:00.013Z

(BY HUGO)

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.

International Water Law Scholarships for GWP Partners

2011-02-25T10:15:00.003Z

(BY HUGO)

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.

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

2011-02-12T10:55:00.008Z

(BY HUGO)

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.

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

2011-01-25T18:41:00.011Z

(BY HUGO)

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

2011-01-25T11:59:00.006Z

(BY HUGO)

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.

Dundee UNESCO Centre for Water Law Symposium

2011-01-22T11:25:00.003Z

(BY HUGO)

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.

COGESAF Forum on stormwater management in urban area

2011-01-21T09:18:00.006Z

(BY HUGO)

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.

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

2011-01-14T10:40:00.006Z

(BY HUGO)

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.

New water law blog

2011-01-13T16:51:00.003Z

(BY HUGO)

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.

CWRJ Issue on the Hydrogeology of the Châteauguay River Watershed

2011-01-02T23:41:00.016Z

(BY HUGO)

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

2011-01-02T16:48:00.016Z

(BY HUGO)

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.

Report of the Commission on Cyanobacteria in Québec

2010-12-16T03:37:00.009Z

(BY HUGO)

The report (in French) on lakes and cyanobacteria in Québec by the National Assembly Commission on Transports and the Environment has been released at the beginning of December (previous blog post).

As with the consultation process, the report feels slightly underwhelming. It constitutes more a synthesis of what is known and acknowledged as necessary for better water management with respect to cyanobacteria than a significant innovative proposition for the future. This does not detract from the value of the recommendations presented in the report, among which are the following:

1 - Confirm and assign with more precision the respective responsibilities among stakeholders involved in water management. On this subject, one of the more focussed comments of the Commission is worth quoting because it highlights the tension between, on one hand, homogenisation through integration, and on the other hand, subsidiarity through delegation as well as variability due to adaptation to local conditions - «Cependant, la réglementation sur la gestion de l’eau et de ses bandes riveraines est très variable d’une municipalité à l’autre, voire au sein d’une même MRC. De plus, certains propriétaires riverains estiment avoir des droits acquis qui échappent aux compétences municipales. La Commission souhaite que le gouvernement adopte des mesures concrètes qui visent à harmoniser les règlements municipaux au sein d’un même bassin versant. Il devrait, dans cet exercice, tenir compte des disparités économiques et territoriales et prévoir un soutien technique propre à l’application des règlements. Enfin, on devrait poursuivre par ces réglementations les objectifs énoncés dans les plans directeurs de l’eau.» (p.4)

3 - Grant governmental funding necessary for the realisation of water master plans. The source of funding should come from the fees paid for withdrawing water.

4 - Integrate the water master plans with the RCM Land Use Planning and Development Plan (see the Act respecting Land use planning and development).

8 - The Québec government should provide support to the municipalities and regional county municipality for the implementation of laws and regulations on water management.

9 & 16 - The government should review the criteria for the width of the riparian protection areas to limit phosphorous inputs.

12 - A financial support programme to help poorer segments of the population respect regulatory standards on sceptic tanks should be put in place by the government.

13 & 14 - The revision of the Regulation respecting waste water disposal systems for isolated dwellings should be prioritised with a view to increasing the phosphorous retention capacity of regulated sceptic tanks.

15 - The government should promote a sustainable model for agriculture that takes into account the water support capacity for phosphorous inputs. This recommendation is concomitant with decrees amending the farming insurance programme that push agriculture towards ever higher productivity.

New Right to Water website launched

2010-12-16T02:57:00.010Z

(BY HUGO)

On 10 december, WaterAid launched a new human rights to water and sanitation website. Some of the main pages of the site related to:

- The legal framework for the human rights to water and sanitation

- How to use the human rights-based approach (HRBA) in water developement

- Recent developments in international law with respects to the human rights to water and sanitation

The web site provides a good introduction to these issues. The site represents the HR advocacy position on the human right to water debate. For example, the site establishes the traditional dichotomy between States - governments, public officials, service providers - as duty bearers and citizens as rights holders. However, the site refers to the plurality of interpretations on what constitutes the HRBA to water (the History of a rights based approach to development section still seems under construction).

For a critical analysis on these issues, see «A Clash of Paradigms in the Water Sector? Tensions and Synergies Between Integrated Water Resources Management (IWRM) and the Human Rights-Based Approach (HRBA) to Development».

A forthcoming book likely to provide significant substance on the reflection about HRBA and the rights to water is due to be published soon: Anna Russell & Malcolm Langford (eds), The Right to Water: Theory, Practice and Prospects (Cambridge: Cambridge University Press, 2011).

2011 Canadian Bar Association Conference on Water

2010-12-16T02:12:00.007Z

(BY HUGO)

The Canadian Bar Association 2011 National Environment, Energy and Resources Law Summit will focus on Water Law - Property, Protection and Policy. The Summit will be held on 7-9 April 2011, in Banff, Alberta. The annoucement for the Summit states:

«Join leading legal practitioners, academics and industry experts from across Canada and from the United States, South Africa and elsewhere, to discuss and understand the implications of differing domestic water allocation regimes on competing demands, the interplay between commercial development and water, the regulation and protection of natural water resources. Learn about the international concerns surrounding trade and the treatment of water as an export commodity, water in the Arctic, and trans-boundary water pollution. Develop insight into local and municipal issues such as restricted water use, pollution control legislation, drinking water delivery, watershed management and issues related to the development of Canada's water related infrastructure and the protection of Canada's drinking water supplies.»

The full details of the Summit are only available to attendees.

Greece accedes to the 1997 UN Convention on transboundary waters

2010-12-16T00:33:00.008Z

(BY HUGO)

Greece acceded to the Convention on the Law of the Non-Navigational Uses of International Watercourses on 2 December 2010 (see UN Treaty Collection Database). Greece has become the 21st country party to the Convention. According to article 36 of the Convention, it shall enter into force when 35 countries are party to it.

The WWF reports on the motivations behind Greece's decision. According to Tina Birbili, Greek Minister of Environment, Energy and Climate Change:

«The promotion of transboundary cooperation on water issues is inherent to Greece’s foreign policy, since around 25% of its surface water extends to or originates from neighbouring countries. The UN Watercourses Convention together with the EU Water Framework Directive constitute the necessary background and reference point for advancing the transboundary negotiations that Greece has initiated with Albania and the Former Yugoslav Republic of Macedonia, on the Prespa Lake; with Turkey, on the Evros basin; and with Bulgaria, on the Nestos, Strymon, Ardas, and Evros basins.»

In light of the above, 2 interesting points are: 1) the blurring of boundaries between international and national law through supranational law with the EU Water Framework Directive; 2) Greece's adherence to the principles of equitable and reasonable use as well as no harm for the management of transboundary waters with Turkey.

Turkey is principally an upstream state sharing waters with parched downstream neighbours in the Fertile Crescent. Turkey's position on transboundary waters is a traditional stance leaning towards the Harmon doctrine. Now, it seems that the principles of the 1997 Convention might be furthered against one of its prominent adversary due to the combination of Turkey's desire to join EU with water management reform in Greece under the WFD. Of note is the fact that Turkey is the state that required a vote on the 1997 UN Convention and voiced strong criticisms in UN plenary meeting at that time (Mr. Çelem, 21 May 1997):

«The draft Convention under consideration today is solely a framework Convention, as reaffirmed by General Assembly resolution A/51/206 and by draft resolution A/51/L.7, which is before us today. The mandate of the Sixth Committee to elaborate a framework convention was established very clearly by General Assembly resolution A/51/206. Accordingly, the draft Convention should have set forth only general principles and its application should have depended upon the drawing up of specific agreements which take into account the particular characteristics of the watercourses. In our view, neither the title nor the content of the draft Convention correspond to this provision of both resolutions.

In this respect, the draft Convention goes far beyond the scope of a framework convention and, in contradiction to its intent and nature, establishes a mechanism for planned measures. This has no basis in general and customary international law. Furthermore, this mechanism creates an obvious inequality between States by stipulating that, in order to implement its planned measures, a State belonging to a certain category is obliged to obtain the prior consent — tantamount to a veto right — of another State belonging to a certain other category.

It should also be stressed that it is not appropriate for a framework convention to foresee any compulsory rules regarding the settlement of disputes and not to leave this issue to the discretion of the concerned States. Furthermore, the draft Convention does not make any reference to the indisputable principle of the sovereignty of the watercourse States over the parts of international watercourses situated in their territory. The draft Convention should clearly have established the primacy of the fundamental principles of equitable and reasonable utilization over the obligation not to cause significant harm. The present text is liable to create confusion as far as implementation of the whole Convention is concerned.

In conclusion, my delegation would like to state that the Republic of Turkey does not intend to sign the Convention on the Non-Navigational Uses of International Watercourses and that this Convention does not and shall not have any legal effect for Turkey in terms of general and customary international law. For the reasons I have just explained, my delegation will vote against draft resolution A/51/L.72.»

The human right to water in Indonesia

2010-12-12T10:56:00.007Z

(BY HUGO)

Colleague Mova Al Afghani has recently uploaded on SSRN a paper on «The Potential Role of the Human Right to Water in the Management of Indonesia’s Water Resources». The paper argues that:

«there are gaps in the Indonesian legal framework in securing transparency, access to information, participation, access to justice and the procedure in recognizing customary rights in water resources management. Without adequate access to these procedural rights, vulnerable, marginalized and financially weaker groups will be left out from water resources management and will not be able to secure their entitlements. The Human Right to Water has potentials for filling such gap by reforming the implementing regulation of the Water Resources Law and enhancing the possibility to obtain legal recourse.»

A very interesting read, notably for the scope of the legal provisions considered in the analysis, as it provides an integrated legal perspective on the challenges and problems at ground level related to water for domestic consumption. Also interesting is section 5 on the role of the human right to water, and particularly subsection 5.b on the human right to water vs. cultural and customary rights, as well as subsection 5.f on the transposition of the International Covenant on Economic, Social and Cultural Rights in Indonesia.

One question that might be discussed a bit more is related to the interaction between the human right to water and other human rights. Reading the paper, it sometimes feels like the human right to water is constituted of a bundle of ‘substantive’ and ‘procedural’ rights (ex: see p.4 last §, as well as subsection 5.b on Right(s) to participation, transparency and access to information). Are these rights constituent human rights included under a human right to water? Are they considered as autonomous human rights? Is this an illustration of the doctrine of indivisible, inter-related and inter-dependent human rights?

Ontario aims at becoming the leading clean water jurisdiction in North America

2010-12-07T21:17:00.009Z

(BY HUGO)

On 29 November 2010, royal assent was given to the Ontario Water Opportunities and Water Conservation Act.

The purpose of the Act is: 1) to foster innovative water, wastewater and stormwater technologies, services and practices in the private and public sectors; 2) to create opportunities for economic development and clean-technology jobs in Ontario; 3) to conserve and sustain water resources for present and future generations.

The Act establishes the Water Technology Acceleration Project corporation to: 1) assist Ontario’s water and wastewater sectors by increasing their capacity to develop, test, demonstrate and commercialize innovative technologies and services for the treatment and management of water and wastewater; 2) assist Ontario’s water and wastewater sectors by increasing their capacity to expand their business opportunities nationally and internationally; 3) provide a forum for governments, the private sector and academic institutions to exchange information and ideas on how to make Ontario a leading jurisdiction in the development and commercialization of innovative technologies and services for the treatment and management of waterand wastewater.

Finally, the Act also: 1) requires that certain municipalities prepare, approve and submit municipal water sustainability plans for municipal water services, municipal wastewater services and municipal stormwater services under their jurisdiction; 2) authorises the making of regulations requiring public agencies including municipalities and ministries to prepare water conservation plans in order to achieve water conservation targets.

Two interesting indications on the direction of the development aimed at in the Act:

- The preamble states that «Ontario has already shown leadership by banning bulk transfers of water out of Ontario’s water basins and in safeguarding public water supplies from source to tap. A new way of thinking about conserving our water resources is needed in Ontario, one that builds on the critical linkages between economic prosperity and long-term environmental sustainability.»

- Subsection 1(2) states that «For greater certainty, the purposes of this Act do not include the privatization of publicly owned water, wastewater and stormwater services.»

This gives a good indication that Ontario intends to develop its water sector through high added value initiatives that have strong inter-sectoral traction effects: high tech, research and development and capacity building through education rather than primary extraction and profit funnelling to shareholders. Sounds nice.

A complete description of the Act is provided here by the Ontario Environmental Registry.

Asian Carp litigation: preliminary injuction dismissed - again

2010-12-06T10:34:00.004Z

(BY HUGO)

Another loss in a long series of lost battles: Steve Kellman reports for the Circle of Blue that a preliminary injunction to close the locks on the Chicago Canal to prevent Asian Carp entry in the Great Lakes has been rejected - again.

It's particularly interesting to see how the court attacks scientific evidence based on the eDNA tests because this method does not provide certainty as to the establishment of viable Carp communities beyond the Canal locks (see notably p.44 & ff. of the decision).

At an abstract level, there could be a parallel with the processes related to discrediting scientific evidence on human induced climate change. Prevention and precaution appear completely immaterial. We need to hit a wall at full speed to realise there's a problem and take action. We can only cross our fingers and hope the crash is not fatal.

Water, death and human rights

2010-12-05T22:01:00.005Z

(BY HUGO)

A quote on the human right to water from a Canadian icon, found by chance:

«Go three days without water and you don't have any human rights. Why? Because you're dead.» Margaret Atwood, Observer Magazine, 28 November 2010, p.18 (online here)

Is this a justification for the human right to water? A fortiori, does the same justification apply to air? Should there be a human right to air? Is the emergence of new human rights absolutely good? Does it denote a more profound problem? On these issues, two interesting thoughts may further the reflection initiated here. According to Radha D’SOUZA, «Liberal Theory, Human Rights and Water-Justice: Back to Square One?» (2008) 1 Law, Social Justice & Global Development Journal at 9:

«What is missed by political theorists canvassing for human rights as a means of mitigating the problems of privatisation in the wake of ‘globalisation’ is the fact that the struggle for new rights come with recognition of new market prerogatives. The human right to water arises because water is brought into a private property regime in which it was not included before. What is at stake here is the entrenchment of water as part of a property regime.» [Here, property must not be understood as the legal artefact stricto sensu, as it refers to a political conception of social and economic regimes.] (link)

According to Costas DOUZINAS, «The End(s) of Human Rights» (2002) 26 Melbourne University Law Review 445 at 459:

«Both universal morality and cultural identity express different aspects of human experience. Their comparison in the abstract is futile and the differences between the two are not pronounced. When a state adopts ‘universal’ human rights, it will interpret and apply them, if at all, according to local procedures and moral principles, making the universal the handmaiden of the particular. The reverse is also true: even those legal systems which jealously guard traditional rights and cultural practices against the encroachment of the universal are already contaminated by it. All rights and principles, even if parochial in their content, share the universalising impetus of their form. In this sense, rights carry the seed of dissolution of community and the only defence is to resist the idea of rights altogether – something impossible in the global capitalist world.»

Confirmation of agreement on the management of Lake Champlain

2010-12-03T10:01:00.010Z

(BY HUGO)

A cooperation agreement on environmental matters regarding the management of Lake Champlain between New York, Vermont and Québec (the Agreement - French version here), signed in March 2010, was confirmed by governmental decree 918-2010 on 3 November 2010.

The Agreement is the latest in a series of agreements between the parties that date back to 1988. In 1990, the American Congress passed the Lake Champlain Special Designation Act (Public Law 101-596) leading to the creation of the Lake Champlain Basin Program, which is now implemented through the Opportunities for Action: An Evolving Plan for the Future of the Lake Champlain Basin (the French version of the Plan, dated 2003, provides details about related institutional and legal frameworks).

The Agreement confirms the role of the Lake Champlain Steering Committee in the cooperative management of the basin. The Steering Committee is notably mandated to implement the Plan and foster interactions between regulation and management programmes related to the monitoring of Lake Champlain (see section 2.6). The Agreement and the Plan recognise the ecosystem approach to basin management.

Water stress in +2C vs. +4C climate changed worlds

2010-11-30T14:08:00.007Z

(BY HUGO)

The Tyndall Centre for Climate Change Research published the Four Degrees and Beyond Special Issue of the Philosophical Transactions of the Royal Society A Journal (link), with an interesting article by Fai Fung, Ana Lopez & Mark New on «Water availability in +2°C and +4°C worlds».

The paper contrasts water availability and water stress in a world where warming is limited to 2◦C as per the Copenhagen undertakings and one where policy fails and warming reaches 4◦C, a likely scenario according to scientific sources quoted.

The paper defines a water stress index (WSI) based on water resources per capita calculated as the ratio of mean annual surface run-off (MAR) to population. This is recognized as simplistic and reference is made to more complex models in the literature on water stress or scarcity, but a simpler index is justified to reduce uncertainty and limit data requirements. Some interesting parts of the paper discussion are as follows:

«changes in mean annual run-off in a +2◦C world are generally amplified in a +4◦C world: drier areas dry further and wetter areas become wetter. Moreover, as these changes in MAR become amplified, both the consensus and spatial coherence of these changes strengthen. By investigating the changes in water stress in 112 of the world’s major river basins, we have also found that the majority of these river basins are projected to suffer greater water stress in a +4◦C world than in a +2◦C world. However, as we move from a +2◦C to a +4◦C world, there are also a small but increasing number of basins that may experience less water stress, as they are located in regions where rainfall is projected to increase. By using population growth scenarios for the 2030s and 2060s, we find that in a +2◦C world, water stress is dominated by the change in population. However, as we move to +4◦C world and the climate change signal becomes stronger, climate change can play a more dominant role in determining water stress in a river basin. (...)

By examining a subset of the world’s major river basins, we have shown that the picture for water stress in each river basin is dependent on the magnitude of the climate change and the nature of the population growth. For some river basins, the effects of climate change become large enough to offset the large increases in demand in a +4◦C world, e.g. in the Ganges; in most basins, however, climate and population growth combine to increase stress or climate change is insufficient to offset increased demand.

We have also found that seasonality in run-off may be more pronounced in a +4◦C world compared with a +2◦C world; thus, even where annual average runoff increases, dry seasons can become more stressed. This could mean that more sophisticated infrastructure projects may be required in a +4◦C world compared with a +2◦C world in order to prevent flooding and droughts.»

Given the business as usual approach to adaptation in Québec, this could mean that trends in dam building and supply oriented solutions will continue to amplify. Possible impacts of dams on the environment at the provincial level might depend on changes to reservoir release regimes under which the dams must operate (inversion, homogenisation, natural) in order to adapt to climate change. As most large dams operate for power generation, modifications in energy demand to face climate change could be an important factor influencing flow regimes and alterations patterns to freshwater ecosystems. Reductions in heating during winter, increase in climatisation duing summer and increased seasonal run-off variability might all point to a move away from natural reservoir release patterns and towards homogenisation or inversion regimes. The Ouranos Consortium has published studies regarding some aspects of climate change on Québec water resources.

POLIS policy paper on public trust doctine in British Columbia

2010-11-26T12:02:00.004Z

(BY HUGO)

Just a quick post to refer to a nice and short policy paper from Elizabeth Hendriks on Implementing the public trust doctrine in British Columbia for POLIS. It provides an overview of the doctrine and the significant legal developments related to it. Good entry point for a more detailed study of the matter. POLIS has already published on this and there are a other articles in Canadian environmental law doctrine on this (ex.: Scott Kidd, «Keeping Public Ressources in Public Hands: Advancing the Public Trust Doctrine in Canada», (2006) 16 J. Envtl. L. & Prac. 187).

Modifications to the Dam Safety Regulation

2010-11-22T10:48:00.007Z

(BY HUGO)

Projected amendments to the Dam Safety Regulation have been published. The amendments propose to extend the statutory time limits for the performance of safety reviews by the owners of dams. The extended time limits only apply to dams whose failure consequence category is low. The proposed regulatory amendments also correct wordings that posed difficulties with respect to the determination of safety check flood as well as the application of earthquake resistance standards.

2 new project regulations on water resources management in Québec

2010-11-16T11:22:00.010Z

(BY HUGO)

The Ministry of Sustainable Development, Environment and Parks has published 2 new project regulations.

One is to amend the Regulation respecting the application of section 32 of the Environment Quality Act, the Groundwater Catchment Regulation and the Regulation respecting waste water disposal systems for isolated dwellings. According to the introductory text, the main purpose for these amendments is to relax regulatory controls on businesses and natural resources exploitation:

«The proposed amendments would reduce the administrative requirements related to certain waterworks and sewer projects having little environmental impact. (...) Private institutions, businesses and industries, that own such systems, would also benefit from the proposed amendments since they would no longer be required to obtain a prior authorization to carry out certain water or sewer main replacement work. In addition, enterprises that carry out forest management, mining exploration, transportation or dam work and that must set up temporary industrial camps of 80 persons or fewer would no longer be required to submit plans and specifications to the Minister and obtain the Minister’s authorization before installing waterworks and sewer systems.»

The other projected regulation propose a framework for the authorization of certain projects to transfer water out of the St. Lawrence River Basin. After a very quick preliminary review, one question that can be raised on this regulation project pertains to the limits on access to information regarding the transfer projects (see sections 4 and 5 in fine). For example, why should access be denied to a narrative description explaining why no alternative reasonably accessible supply source is capable of meeting drinking water needs? Or why deny access to a narrative description explaining why the water transfer is necessary?

Could the transparency of the process under the Ontario regulation for transfers outside the Great Lakes St. Lawrence River Basin be a source of inspiration? The website set up with respect to one such transfer for the York region provides a whealth of information on all aspects of the projected transfer.

The contacts for comments on the project regulations are provided both on the Ministry's website and in the texts published in the Gazette Officielle.

New claim under Chapter 11 of NAFTA further to the cancellation of licences for outfitting operations

2010-11-10T13:04:00.014Z

(BY HUGO)

Thanks to colleague Ana-Maria Daza for the heads-up on this one: the revoking of licences to exploit salmon rivers that were granted to an American owned outfitting operation by the government of Québec seems to have recently triggered a notice of arbitration under NAFTA's Chapter 11, according to CNW:

«The $8 million-plus claim alleges unfair treatment of U.S. citizen William Greiner concerning his Canadian-formed company, a lodge and outfitting business which offered Atlantic salmon fishing and hunting in Quebec. (...) It is alleged in the Notice of Arbitration that government action was taken discriminatorily, without legal authority or due process and in violation of NAFTA. The arbitration raises issues regarding the unfair treatment of American citizens investing in businesses in Canada. The Notice of Arbitration also states that the actions taken by the Quebec Government were done in order to protect investments the Government had made in competing businesses, and that Mr. Greiner was targeted because of his nationality, as well as the nationalities of his clients.»

I would be grateful for any advice on how to get a copy of the claim.

Here's a very helpful quote from our American friend Mr. Greiner: «The Government of Canada should understand that laws are meant to be followed». Wow. Thanks.

According to Foreign Affairs and International Trade Canada, William Jay Greiner and Malbaie River Outfitters Inc. are already involved in a dispute under NAFTA Ch11. They served Canada with a Notice of Intent on September 16, 2008, claiming $5 million and alleging that the province of Quebec severely damaged the investor’s business by changing the lottery system for obtaining salmon fishing licenses in 2005 and harmfully revoking licences (see notice here). Interestingly, the letter from Québec authorities indicating the reasons for the revocation (in attachement to the notice) points to unethical behaviour from Greiner's business in addition to economic reasons.

The legal framework for the management of outfitting operations is detailed by the Act respecting the conservation and development of wildlife as well as its regulations. Among the provisions that might be somehow relevant in this context are the following:

85. The Minister may delimit areas on land in the domain of the State with a view to increased utilization of wildlife resources and the carrying on of recreational activities incidental thereto.

86. The Minister may lease exclusive hunting, fishing or trapping rights on all or part of the lands in the domain of the State contemplated in section 85. The Minister may also lease exclusive trapping rights in a controlled zone or in a wildlife sanctuary.

86.1. Notwithstanding any general law or special Act and subject to the right of first refusal of the Native people provided for in the Act respecting hunting and fishing rights in the James Bay and New Québec territories (chapter D-13.1), a lease of exclusive hunting or fishing rights shall be granted, after a call for tenders, to the tenderer whose bid is the most advantageous. However, the Minister is not required to lease exclusive rights if the Minister is of the opinion that the most advantageous bid is inadequate. A lease of exclusive rights is not subject to a call for tenders if the lease is
(1) a lease for a renewal;
(2) a lease for a transfer;
(3) a lease for an extension of rights;
(4) a lease for the expansion of territory;
(5) a lease of exclusive fishing rights that does not cover outfitting activities or that covers a body of water less than 20 hectares in area.

86.2. Where a part of the lands in the domain of the State is contemplated in an outfitter's licence although the licence holder does not hold a lease of exclusive hunting or fishing rights and where that part of the lands in the domain of the State is subsequently delimited in accordance with section 85, the Minister shall
(1) revoke the licence if a lease of exclusive rights is granted to a person other than the licence holder;
(2) amend the licence if the designation of the lands in the domain of the State affects only part of the territory contemplated in the licence.
The provisions of this division in respect of the acquisition of buildings and structures situated on the territory identified in the lease apply, adapted as required.

88. The lessee of exclusive hunting, fishing or trapping rights may, in view of the increased utilization of wildlife resources, erect buildings and structures on the land assigned to him without being required to comply with the provisions of the Act respecting the lands in the domain of the State (chapter T-8.1) concerning leases or occupation licences for land in the domain of the State. The lessee has a right of occupation on the land where the buildings and structures are erected, for the term of the lease.

89. Where the Minister repeals, amends or replaces the instrument delimiting areas of land in the domain of the State, the Minister must revoke or amend the lease of exclusive hunting, fishing or trapping rights for the territory contemplated by the repeal, amendment or replacement.

90. The Minister may amend, revoke or refuse to renew a lease of exclusive hunting, fishing or trapping rights if
(1) the lessee has failed to comply with the conditions of his lease;
(2) the lease was obtained pursuant to a fraudulent declaration.

91. Upon the revocation of a lease under section 89 or the non-renewal of a lease by the Minister for reasons other than those provided in section 93, the Minister shall
(1) compensate the lessee, if no other lease has been granted elsewhere to the satisfaction of both parties, in consideration of, in particular, his loss of revenue derived from the exercise of his rights under the lease; and
(2) acquire the buildings and structures situated in the territory identified in the lease by paying to the lessee who owns them an amount equivalent to their real value or compensate the lessee in consideration of the decrease in value of the buildings and structures.
Upon the amendment of a lease under section 89, the Minister shall acquire the buildings and structures situated in the territory identified in the lease and affected by the amendment by paying to the lessee who owns them an amount equivalent to their real value or compensate the lessee in consideration of the decrease in value of the buildings and structures.
However, if the exclusive hunting, fishing or trapping rights under the lease not being renewed by the Minister for reasons other than those provided in section 93 are granted to a new lessee, the new lessee has an obligation to acquire the buildings and structures for an amount equivalent to their real value and in no case may he exercise his rights under the lease until he becomes their owner.

92. Upon the revocation or amendment of a lease under section 89, if the Minister compensates the lessee in consideration of the decrease in value of the buildings and structures, the lessee shall, within one year of the date of compensation, remove the buildings situated in the territory identified in the lease and affected by the revocation or amendment, or obtain from the Minister, the right to continue to occupy the land concerned under the Act respecting the lands in the domain of the State (chapter T-8.1).

93. Upon the revocation or non-renewal of a lease pursuant to section 90, or where the lessee has, before the expiry of his lease, notified the Minister of his intention not to renew it, every new lessee has an obligation to acquire the buildings and structures situated in the territory described in the lease by paying to the owner of the buildings and structures an amount equivalent to their real value. The lessee whose lease is revoked or not renewed retains his right of occupation only until a new lessee is designated or until the instrument delimiting the area of land in the domain of the State is repealed, amended or replaced so as to exclude the land where the buildings owned by him are situated. No new lessee may exercise the rights conferred by his lease until he becomes the owner of the buildings and structures contemplated in the first paragraph.

94. If a difference of opinion arises between the new lessee and the former lessee or between the Minister and the former lessee on the real value of the buildings and structures contemplated in sections 91 and 93, the Minister shall appoint an assessor agreed by the parties; the assessment of the appointed assessor is without appeal. The costs incurred for the assessment are assumed equally by both parties.

96. No person may, except with the lessee's authorization, carry on an activity for which exclusive rights have been granted on any land on which exclusive hunting, fishing or trapping rights have been granted.

A recent report by Scott Sinclair from the Canadian Centre for Policy Alternatives provides food for thought on the regulatory chill effect of Ch11.

Public interest in the Québec water allocation regime

2010-11-02T14:12:00.006Z

(BY HUGO)

Amber Weeks presents an interesting thesis in the article «Defining the Public Interest: Administrative Narrowing and Broadening of the Public Interest in Response to the Statutory Silence of Water Codes», which is published in the Natural Resources Journal.

According to Weeks, U.S. administrative agencies responsible for water management are required to deny applications for new appropriations and transfers that are not in the public interest. Weeks' argument is summarised in the article's abstract:

«the majority of [Western U.S.] states leave the public interest undefined. This article examines contrasting administrative responses to statutory silence in Nevada and Idaho. Ultimately, this article finds that statutory silence has historically led the Nevada State Engineer to narrowly interpret the public interest as water law. In contrast, the Idaho Department of Water Resources has broadly interpreted statutory silence beyond water issues, causing the Nevada Legislature to narrow the public interest definition in 2003. Statutory silence has resulted in both uncertain interpretation of the public interest and a disconnect between the public interest and public values. Consequently, this article calls for legislatures to define the public interest through a combination of statewide public interest criteria and ongoing input from regional planning groups.»

The above is relevant in the context of Québec water law because Act 21 2009 establishing a new water allocation regime relies on the same concept of public interest to apportion resources between users.

Section 31.79 states that the responsible Minister may refuse to issue or renew a water withdrawal authorization or modify the conditions to which the authorisation is subject in order to serve the public interest.

Section 31.81 states that the term for water withdrawal authorizations is 10 years, but that the Minister may issue or renew an authorization for a shorter or longer term to serve the public interest.

Finally, under section 31.106, a prohibition against water transfers out of Québec may be lifted for emergency-response or humanitarian reasons or any other reason considered to be in the public interest.

In other words, this undefined notion of public interest will play a key role under the new Québec water allocation regime once it comes into force. Weeks' findings should be considered by the regulatory authority when developing the regulation for the implementation of the new allocation regime.

Québec water caselaw 15: Earthworks in a wetland without a valid municipal authorisation

2010-10-30T09:39:00.001+01:00

(BY HUGO)

In Rivière-Rouge (Ville de) v. Huguet (in French), the Defendant obtains a municipal authorisation to do earthworks on his property in the riparian area of a lake. The works starts on the same day, but a municipal inspector visiting the site realises that the filling is taking place in a wetland, something contrary to the municipal regulation. The municipality immediately informs the Defendant that the authorisation is cancelled and that the work must stop at once. Despite this, the Defendant goes ahead with the earthworks during the following days despite continued warnings from the municipality.

The defendant is charged with a penal infraction in strict liability for having done work without a valid authorisation a contravention to the municipal regulation. Although municipal authorities are not bound by an authorisation granted contrary to the municipal regulation, as is the case in this instance, the municipal inspector does not have the power to stop the works under the applicable municipal regulation. Moreover, the municipal regulation does not allow the municipal inspector to revoke the authorisation. Nevertheless, an illegal authorisation does not grant an acquired right, and the infraction the Defendant faces is to have conducted works without a valid permit. The Court finds that the Defendant has no defence of reasonable diligence, as he understood that municipality asked the works to stop but he rushed to complete the works to put the municipality before a fait accompli.

Water related risks from an insurance perspective

2010-10-29T11:15:00.018+01:00

(BY HUGO)

A report from MARSH Canada, A Review of Water-Related Opportunities and Threats, outlines insurance issues in the sector to ensure adequate coverage. The main types of coverage discussed relate to property and general liability, environmental insurance and D&O liability insurance (p.6-7). From an insured's perspective, one question can be how the considerations related to the various risks outlined in the report (operational, litigation, regulatory, financial) have an impact on the duty to disclose. For example:

«Organizations that are heavily dependent on water supply such as beverage, energy, and agricultural producers, as well as technology manufacturers may face significant business interruption losses due to the lack of adequate water supply. As such, it is important that organizations consider this possibility when evaluating their business interruption exposure. Business interruption coverage is available on a property policy as long as the event is
caused by an insured peril.» (p.6)

This has a particular resonance in the context of sections 2408-2413 of the Civil Code of Québec. Sections 2408-2410 CCQ read as follows:

2408. The client, and the insured if the insurer requires it, is bound to represent all the facts known to him which are likely to materially influence an insurer in the setting of the premium, the appraisal of the risk or the decision to cover it, but he is not bound to represent facts known to the insurer or which from their notoriety he is presumed to know, except in answer to inquiries.

2409. The obligation respecting representations is deemed properly met if the representations are such as a normally provident insured would make, if they were made without material concealment and if the facts are substantially as represented.

2410. Subject to the provisions on statement of age and risk, any misrepresentation or concealment of relevant facts by either the client or the insured nullifies the contract at the instance of the insurer, even in respect of losses not connected with the risks so misrepresented or concealed.

From a more general perspective, the vast number of reports in various industry sectors that are currently published on diverse aspects of water and risks (see also previous blog about the CERES report on water risks in finance) illustrates the tension between inherent natural variability in hydrology and ecosystem dynamics on one hand, and increasing efforts to ensure constant and stable access to water and related natural resources as well as constant revenue streams from their exploitation on the other hand. As resources allocation and exploitation reach various peaks or thresholds, the possible impacts of related risks increase.

Financial risks in water utilities: Report from Ceres

2010-10-25T10:51:00.005+01:00

(BY HUGO)

A new report authored by Sharlene Leurig and titled «The Ripple Effect: Water Risk in the Municipal Bond Market» was published by Ceres last week.

The report studies water scarcity risks for public water and power utilities in the U.S.A and details the related financial risks. This is a very interesting read. Particularly refreshing is the section on why the model for assessing risks related to power utilities may be wrong (see p.41-42 and Annex C). You don't see such an admission often, but it is entierly consistent with the original intent: obtain the most accurate risk assessment possible rather than portray an abstract model as infallible.

Québec water case law 14: Failure to obtain an authorisation to discharge waste water

2010-10-24T09:30:00.002+01:00

(BY HUGO)

In CRI Environnement inc. v. Coteau-du-Lac (Municipalité de) (in French), the Plaintiff builds an industrial waste water treatment plant that discharges treated water containing benzene and chloroform into municipal sewers. The plant is built in 2002 and operated since 2003. However, the Ministry for Sustainable development, Environment and Parks has never issued authorisations to the Plaintiff under sections 22 and 32 of the Environment Quality Act (EQA) because the Plaintiff's discharges in the municipal sewers would exceed the municipal treatment plant's authorised maximal capacity. An additional ground for refusing to authorise the Plaintiff's discharges is that the authorisation under which the municipal treatment operates only allows treatment of grey water.

Hence, the Plaintiff incurs additional costs to transport its treated water to another treatment facility. The Plaintiff alleges that the Defendant municipality committed a fault in 2002 by failing to inform that the municipal sewers could not collect the Plaintiff's treated industrial waste water discharges. However, the Court finds that the Plaintiff's operation was always conditional on preliminary authorisations from the Ministry. The municipality has committed no fault, there is no causality link between damages claimed and the municipality's actions, and proof of the damages is insufficiently established.

The judgement presents some rules governing extra-contractual liability for municipalities and contains comments on the discretionary power of the Ministry to authorise polluting activities under the EQA.

Québec water case law 13: Defective septic tank

2010-10-23T07:30:00.000+01:00

(BY HUGO)

In Thériault c. Construction Lortie inc. (in French), the Plaintiff, owner of a house in a riparian area, claims damages resulting from defects affecting the house’s waste water installation against the general contractor for having failed to fulfill its obligations to deliver a house with an adequate and functioning waste water installation. In turn, the general contractor alleges that the specialised subcontractor who built the installation is responsible for the damages. The subcontractor counters that the general contractor has imposed the choice of an inadequate installation to lower the construction costs. Moreover, the subcontractor claims that the municipality approved the inadequate installation and pressured the subcontractor into building it. The Court concludes that the general contractor is liable towards the Plaintiff, that the subcontractor has no extra-contractual liability towards the Plaintiff, and that the municipality is jointly and severally (in solidum) responsible for having failed to act in good faith and with reasonable diligence when authorising the waste water installation under the Regulation respecting waste water disposal systems for isolated dwellings.

The judgment provides some interpretative guidance with respect to the concept of «existing dwelling» in the Regulation respecting waste water disposal systems for isolated dwellings.

Drought under global warming

2010-10-22T09:48:00.009+01:00

(BY HUGO)

A recent article from Aiguo Dai, «Drought under Global Warming: A Review», published in Wiley Interdisciplinary Reviews: Climate Change on 19 October 2010, reviews recent literature on drought of the last millennium, and provides an update on global aridity changes from 1950 to 2008. Projected future aridity is also presented based on recent studies and our analysis of model simulations.

The article provides a typology of droughts: meteorological drought; agricultural drought; and hydrological drought, which might be the more difficult to address because it occurs when river stream flow and water storages in aquifers, lakes, or reservoirs fall below long-term mean levels, thus probably requiring systemic adaptation in water allocation patterns and total consumption.

Interesting points from the article are as follows:

- «Successive "megadroughts", unprecedented in persistence (20–40 year) yet similar in severity and spatial distribution to the major droughts experienced in modern day’s North America, occurred during a 400-year-long period in the early to middle part of the second millennium AD over western North America. Compared with these multi-decadal droughts, the modern-day droughts in the 1930s and 1950s had similar intensity but shorter durations.» (p.4, references omitted)

- «One should not use total precipitation alone to measure changes in aridity or drought, as done in many studies. Increased heavy precipitation and reduced light to moderate rain can increase the runoff to precipitation ratio, and increases in surface air temperature and radiative heating can lead to higher atmospheric demand for moisture. These processes can result in drier soils even if the precipitation amount increases.» (p.13, references omitted)

- «Although natural variations (...) have played a large role in the recent drying, the rapid warming since the late 1970s has increased atmospheric demand for moisture and likely altered atmospheric circulation patterns (e.g., over Africa and East Asia), both contributing to the recent drying over land. Since a large part of the recent warming is attributed to human-induced GHG increases, it can be concluded that human activities have contributed significantly to the recent drying trend.» (p.15, reference omitted)

- «Coupled climate models used in the IPCC AR4 project increased aridity in the 21st century, with a striking pattern that suggests continued drying over most of Africa, southern Europe and the Middle East, most of Americas (except Alaska, northern Canada, Uruguay, and northeastern Argentina), Australia, and Southeast Asia.» (p.15)

Preannouncement: National Water Law Symposium 2011

2010-10-20T10:15:00.002+01:00

(BY HUGO)

The Dundee UNESCO IHP-HELP Centre has set the dates for the 2011 National Water Law Symposium. The symposium will take place on 20-24 June 2011.

The symposium will focus on water allocation, water quality controls and integrated frameworks for water resources management. Among the various issues discussed will also be the implementation of international agreements at national level, the application of access to water as a fundamental human right and the provision of water services.

Further details will be annouced here.

Conference: Water wars between Alabama, Georgia and Florida

2010-10-20T10:04:00.007+01:00

(BY HUGO)

On 27 October 2010, Professor Jake Peters from the USGS Georgia Water Science Centre will give a conference on inter-state tensions over the Apalachicola-Chattahoochee-Flint River Basin at the University of Dundee.

The conference, titled «Dukes of Water Hazard: Alabama, Georgia and Florida wage war over the waters of the Apalachicola-Chattahoochee-Flint river basin, but what about the fish, birds, bugs and bunnies?», is jointly organised by the University of Dundee’s UNESCO Centre for Water Law, Policy and its Centre for Environmental Change and Human Resilience.

Details for the conference can be found here.

Conference: Forum québécois sur l'eau

2010-10-18T16:58:00.007+01:00

(BY HUGO)

Just a quick heads-up: on 25-26 October 2010, the Forum québécois sur l'eau (programme here - in French) will aim at bringing into focus the various issues and challenges for water resources management in Québec. This is organised by Les Affaires, Le Devoir and 98,5FM.

This is a real who's who of water in Québec, so if you can attend...

Environmental flows in Australia: Victorian perspective on farmer anger

2010-10-17T11:12:00.012+01:00

(BY HUGO)

As widely reported in the media, proposed water withdrawal reductions to protect the environment in the new draft plan for the Murray-Darling River Basin in Australia have angered Australian farmers (article here from Circle of Blue).

In this context, a new report from the Auditor-General of the State of Victoria titled «Restricting Environmental Flows during Water Shortages» evidences inadequate environmental flow protection (a portion of the Murray-Darling Basin lies within Victoria).

Under the Water Act 1989 (Victoria), when there is less water available, the Minister for Water can declare a water shortage and temporarily ‘qualify’ rights to water, including the environment’s rights. This means the minister can alter access to water by either restricting—reducing or suspending—or increasing them to meet a critical need. The Water Act 1989 also allows the minister to alter water rights under a ministerial direction. This restricts or increases rights in a similar way to a temporary qualification. Essentially, the law allows for the allocation of reserved environmental flows to human needs during dry periods.

The objective of the audit was to assess how effectively the Department of Sustainability and Environment (DSE), water corporations and catchment management authorities (CMA) managed temporary restrictions on surface water rights to meet critical needs, including steps to minimise river health damage. The report concludes that:

«DSE and two of the three water corporations examined did not effectively manage restrictions to environmental water rights. DSE’s justification requirements for water corporations wanting to temporarily restrict water rights are sound. However, the water corporations did not consistently follow these guidelines.

Slow action to address environmental risks by South Gippsland Water and a lack of action and limited accountability by Grampians Wimmera Mallee Water (GWMW) around environmental risks meant that it was not possible to demonstrate that the environment had not been unnecessarily put at risk for the Tarwin and Wimmera rivers.

Limited DSE oversight of how the environment’s water rights were restricted meant it could not judge whether the restrictions were effective. This meant it could not effectively identify improvements. DSE did not enforce its own requirements, effectively de-valuing the need to justify environmental water right restrictions.»

Québec water case law 12: The «sleeping giant» v. hydroelectric development?

2010-10-10T19:18:00.004+01:00

(BY HUGO)

Uashaunnuat (Innus de Uashat et de Mani-Utenam) v. Québec (General Attorney) (in French) is an interlocutory judgement rejecting demands for third party intervention in an action by First Nation Communities against Hydro-Québec as well as the provincial and federal governments.

The interlocutory jugement is mostly irrelevant from a water management perspective. However, the merits of the case could shed an interesting light on the impact of natives rights, which have often been collectively described as the «sleeping giant» of Canadian water law, on a major river derivation project for hydropower generation (La Romaine River near Havre-Saint Pierre in Minganie).

Further to the authorisation of the hydropower development project, the Plaintiffs globally argue on the merits that they possess native titles and ancestral rights on the relevant territory, that the provincial and federal governments have failed to respect their fiduciary duties towards the First Nations, and that the various authorisations for the project under federal and provincial legislations for environment protection are null and void.

This is one to follow...

Shale Gas in Québec: Lessons from tar sands exploitation in Alberta?

2010-10-05T10:20:00.009+01:00

(BY HUGO)

Since the provincial prime minister has made a mockery of the mandate given to the BAPE (see previous post) by declaring that shale gas exploitation was inevitable, one of the central issues identified by Le Devoir and the CQDE that is yet to be discussed is the apportionment of benefits between private interests and the general public.

As revealed this summer by La Presse (one article here from Charles Côté - in French), Québec is the Canadian jurisdiction where the legal framework for mining is the most industry-friendly and taxes or royalties are the lowest. Instead of increasing royalties on the industry, the Minister for natural resources has declared that fees for day-care nurseries would be increased if shale gas exploitation does not go forward as planned (article here from Alexander Shields, Le Devoir).

In this context, an article by Bernard Roth, «NAFTA, Alberta Oil Sands Royalties, and Change: Yes We Can?» (2009) Vol.46 Alberta Law Review 333, would send a clear warning signal to a political class more attuned to the general interest. The problem with initially low royalties is that it might be impossible to increase them for one class of investors without serious difficulties. Roth's conclusion reads as follows:

«The Alberta government has announced an intention to follow suit by increasing royalties on all oil sands production, irrespective of its vintage. This is the first time since Canada entered into the NAFTA that a Canadian government has tried to capture additional value in an attempt to get what it believes to be its fair share of oil production. The NAFTA has arguably created a form of quasi-constitutional property protection for American and Mexican investors in Canada, which does not allow Canadian governments and legislators to expropriate without compensation. It may still be possible to impose this type of expropriation on Canadian investors, just not their American and Mexican counterparts. Alberta's oil sands leasing practices may have been effective when Alberta exercised more or less complete sovereignty over its resources. Before the NAFTA, ambiguities could be clarified through subsequent legislation and responsibility for compensation could be expressly disclaimed. It appears that Alberta did not adapt its Crown leasing practices to make it clear that the grants it makes are subject to an absolute and unfettered right to increase royalties without compensation in a post-NAFTA world. In the absence of a clear reservation to this effect, it may well be reasonable for oil sands investors to demand compensation. Under the NAFTA, a very good case can be made for compensation to recover the loss in value to oil sands investments that would result from increased royalties proposed by the Government of Alberta. The answer to the multi-billion dollar question posed by this article is: Yes we can! But, if we do, the Government of Canada may have to pay very large NAFTA awards to a lot of American oil companies.»

Shale Gas in Québec: Letter from the CQDE to Le Devoir

2010-10-01T11:01:00.005+01:00

(BY HUGO)

Just a quick post to point to a letter (in French) from Michel Bélanger of the CQDE to Le Devoir on the absence of legal protection against the environmental impacts of shale gas exploitation in Québec.

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

2010-09-26T18:07:00.005+01:00

(BY HUGO)

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.

National Assembly Commission on lakes with respect to cyanobacteria

2010-09-22T15:30:00.004+01:00

(BY HUGO)

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.

Shale gas in Québec: The legal provisions hindering the industry

2010-09-03T10:11:00.007+01:00

(BY HUGO)

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.

Shale gas: Cultural interlude

2010-09-02T11:59:00.004+01:00

(BY HUGO)

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.

Public Consultation on Shale Gas Development in Québec

2010-09-01T10:34:00.007+01:00

(BY HUGO)

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).

Synergies and tensions between IWRM and the HRBA in the water sector

2010-08-18T16:38:00.005+01:00

(BY HUGO)

A paper titled «A Clash of Paradigms in the Water Sector? Tensions and Synergies Between Integrated Water Resources Management and the Human Rights-based Approach to Development» is now posted on the Social Science Research Network and is available here. The abstract is as follows:

Water resources management has been shaped by a variety of paradigms reflecting the evolution of government policies and transient societal values. Integrated Water Resources Management (IWRM) became a predominant management framework in the 1990s. The Human Rights-Based Approach (HRBA) to development has also emerged recently as an influential approach in the water sector. IWRM and the HRBA to development in the water sector overlap significantly. The interactions between the two approaches remain largely unexplored although their repercussions may be significant. Because they do not share identical premises and objectives, the concurrent implementation the two approaches might also lead to tensions detrimental to water resources management. The aim of this article is to explore the interactions between IWRM and the HRBA to development in the water sector. Questions raised by perceived conflicts are identified to help address potential tensions when the two approaches coexist. Synergies between IWRM and the HRBA are also detailed to establish how the two approaches are aligned.

The paper notably explores tensions between the following:

- The HRBA as an anthropocentric approach and the need for an ecosystemic contextualisation of claims on water resources;

- The HRBA as an vehicle for developmental aspirations and the acknowledgement of limits in water resources availability;

- The indistinct duties of right-holders in regards to the user-pays principle;

- Economic water management and the need to protect marginal groups and the poor;

- The evasiveness of the HRBA and the need for a stable and consistent framework for prospective water management.

Conference: Shale gas development and water protection in Canada

2010-08-05T14:40:00.014+01:00

(BY HUGO)

The Munk School of Global Affairs convenes a conference on water protection in the context of shale gas development.

The conference, titled «Fracture Lines: Will Canada's Water be Protected in the Rush to Develop Shale Gas?», will be held on 14 October 2010 at the University of Toronto. A draft programme is available here.

This is very interesting and timely given the current rush to develop shale gas in Canada. In particular, such developments raise concerns in Québec, where private interests and the government appear to have decided that shale gas exploitation is urgent and necessary. A recent opinion letter in Le Devoir (in French) identifies the social and environmental issues related to this subject in Québec.

Interestingly, a representative of the Québec ministry for Sustainable Development and the Environment will be among the plethora of industry representatives speaking at the Munk Conference.

UPDATE: As possible points of discussion for the conference panels on «statutory authority and regulatory preparedness» and «legal and liability issues», Byard Duncan reports on Alternet that gas companies drilling in Pennsylvania have committed nearly 1,500 environmental violations in just two years, while the Environmental Working Group reports that fracking companies might illegally inject diesel underground.

UN vote on the right to water: What is the legal value of the resolution?

2010-07-29T09:32:00.006+01:00

(BY HUGO)

From a legal perspective, a question that comes to mind is: what is the legal value of the 28 July 2010 UN General Assembly resolution on the human right to water and sanitation in international law?

Article 38(1) of the Statute of the International Court of Justice, which is widely recognised as the most authoritative statement as to the sources of international law, provides that international treaties, international custom, general principles of law, judicial decisions and the teachings of the most highly qualified publicists are considered as international law.

UN General Assembly resolutions are not covered by article 38. This does not mean that yesterday's resolution has no legal value. There is a huge body of doctrine on the legal significance of UN GA resolutions. Malcom Shaw, International Law, 3rd ed., Cambridge, Cambridge University Press, 2003, at pp. 107-112, provides great insight into the legal context of UN General Assembly resolutions (references are omitted):

«Foremost among the issues that have arisen and one that reflects the growth in the importance of the Third World states and the gradual de-Europeanisation of the world order is the question of the standing of the resolutions and declarations of the General Assembly of the United Nations.

Certain resolutions of the Assembly are binding upon the organs and member states of the United Nations [e.g.: article 17 of the UN Charter]. Other resolutions, however, are not legally binding and are merely recommendatory, putting forward opinions on various issues with varying degrees of majority support. This is the classic position and reflects the intention that the Assembly was to be basically a parliamentary advisory body with the binding decisions being taken by the Security Council.

Nowadays, the situation is somewhat more complex. The Assembly has produced a great number of highly important resolutions and declarations and it was inevitable that these should have some impact upon the direction adopted by modern international law. The way states vote in the General Assembly and the explanations given upon such occasions constitute evidence of state practice and state understanding as to the law. Where a particular country has consistently voted in favour of, for example, the abolition of apartheid, it could not afterwards deny the existence of a usage condemning racial discrimination and it may even be that that usage is for that state converted into a binding custom. [...]

Where the vast majority of states consistently vote for resolutions and declarations on a topic, that amounts to a state practice and a binding rule may very well emerge provided that the requisite opinio juris can be proved. [...]

Accordingly, such resolutions are able to speed up the process of the legalisation of a state practice and thus enable a speedier adaptation of customary law to the conditions of modern life. The presence of representatives of virtually all of the states of the world in the General Assembly enormously enhances the value of that organ in general political terms and in terms of the generation of state practice that may or may not lead to binding custom. [...]

Nevertheless, one must be alive to the dangers in ascribing legal value to everything that emanates from the Assembly. Resolutions are often the results of political compromises and arrangements and, comprehended in that sense, never intended to constitute binding norms. Great care must be taken in moving from a plethora of practice to the identification of legal norms.»

Hence, among the most significant issues pertaining to the legal value of yesterday's resolution in international law figures the interrelation between state practice and international custom. In this context, it could be interesting to have a look at which state voted in favour or abstained yesterday, and to put these votes in parallel with the votes cast on the UN General Assembly Resolution on the right to development, 15 February 2000, U.N. Doc. A/RES/54/175, which declares that the rights to food and clean water are fundamental human rights for the right to development (§12 (a)). By the way, it must also be noted that although it is the subject of a GA resolution, the legal status of the right to development in international law remains unclear.

The text of yesterday's resolution and the votes per state can be found here. Canada's official position is as follows:

«The representative of Canada said his delegation had joined the consensus on the resolution that had created the mandate of the independent expert [Catarina de Albuquerque]. The work of that mechanism was expected to further promote study of the issue of access to water and sanitation as a human right and, as such, the text was premature. The non-binding resolution appeared to determine that there was indeed a right without setting out its scope. Since there was no consensus on the matter it was premature to declare such a right in the absence of clear international agreement, he said, adding that he had abstained from the vote.»

The UN resolution on the human right to water is passed

2010-07-28T18:06:00.002+01:00

(BY HUGO)

Quick post: the Council of Canadians informs that the UN General Assembly voted today in favour of the resolution on the right to water by 124 yes, 42 abstentions and 0 no.

Conference: The right to water and water rights

2010-07-27T09:42:00.004+01:00

(BY HUGO)

The UNESCO-IHE Institute for Water Education hosts a colloquium on «The right to water and water rights in a changing world» on 22 September 2010.

This is a great and timely topic. However, the detailed programme notes indicate that the scope of the colloquium might extend to a host of other issues such as effectiveness, climate change, legal adaptability, floods and scarcity. Such a variety of subjects to cover in a single day might hinder a reflection aimed at clarifying the relationships between the human rights to water and other water rights at international and national levels - in itself a formidable task.

Among the participants are Professors Joyeeta Gupta and Laurence Boisson de Chazournes.

Québec water case law 10: Municipal responsibility for disgorgement of septic tanks

2010-07-26T13:22:00.004+01:00

(BY HUGO)

In Dionne v. Gatineau (Municipality of) (in French), residents of a municipality claim damages against the municipality in extra-contractual liability before the Court of Appeal. The claim was rejected in first instance.

The defendant municipality delivered construction permits for new developments on its territory between the beginning of the 1970s and the end of the 1980s.

Instead of requiring particularised percolation tests, localisation plans from a land surveyor and an attestation from an engineer for each septic tank installed on a terrain as the by-laws required, the municipality issue construction permits in bulk and relied on an engineer who was hired by the developers, who ignored the by-laws, and who did not performed the required tests.

The Court of Appeal deals quickly with the element of fault. The municipality deliberately violated its own municipal by-laws on sanitary installations for private residences when issuing the construction permits, thus committing a fault. According to the Court, «the conduct of a municipality cannot be considered reasonable when it decides willingly not to follow its own regulations, or in other words, not to follow the law.» (§15) [Rough translation]

The Court of Appeal identifies the element of causality as more problematic: does the evidence establish, on the balance of probability, that damages suffered by the plaintiffs from the 1990s onward are the result of the defendant’s fault? The Court identifies many causes for the disgorgement of the septic tanks that led to health hazards and to the plaintiffs’ damages, among which soil conditions, inadequate construction and maintenance of sanitary installations... However, the Court concludes that the municipal contribution to the damages claimed rises to 75%, as these alternative causes justify the enactment and respect of the municipal by-laws in the first place.

Of note is the fact that this judgement serves to settle 103 claims through 5 representative files jointly selected by the parties’ attorneys. Causality was therefore examined «globally» by the Court. In this case, it is possible to argue that such a global approach adopted in «Justice's best interest» alters the assessment of evidence on the balance of probability in each claim with respect to causality.

This case can be linked to Beaudin v. Sept-Îles (Ville de) (in French), which was rendered in 2008 by the Superior Court and where another municipality was involved in a dispute relating to sanitation services.

The Kalahari Bushmen and the human right to water

2010-07-22T10:34:00.004+01:00

(BY HUGO)

Following up on a previous blog, the BBC reports that the Kalahari Bushmen in Botswana have lost their case to re-open a well that used to be their source of water. To put this case in context, the BBC informs that:

«Diamonds were found in the Central Kalahari Game Reserve, traditional home to the bushmen, in the 1980s - and the government asked them to leave.»

If anyone has a copy of the proceedings and judgement, it would be very kind to provide them.

Meanwhile, the blogosphere is saturated with the news that the UN General Assembly will vote on a motion to recognize the human right to water on 28 July 2010. Will this help the Bushmen? Will Botswana vote in favour of the motion?

Renewed litigation in the Asian Carp dispute

2010-07-21T00:23:00.006+01:00

(BY HUGO)

The Great Lakes Law Blog from Professor Noah Hall informs that five American States have filed an action in a federal district court against the Army Corps of Engineers and the Metropolitan Water Reclamation District of Greater Chicago to protect Lake Michigan from the invasive Asian carp. This follows a decision by the Supreme Court not to hear the case earlier this year.

It will be interesting to see whether Ontario will continue to represent Canadian interests in this case as it did before the Supreme Court and intervene in the file before the federal district court.

Environmental flow protection in Québec

2010-07-19T10:56:00.009+01:00

(BY HUGO)

A series of very interesting articles (here, here and here - in French) from Louis-Gilles Francoeur in Le Devoir discuss the environmental impacts of current record low flows in Québec rivers, and in particular, outline the importance of environmental flow protection in dam operations.

A doctrinal article on «The Emergence of Environmental Flow Protection in Québec Law» to be published in Les Cahiers de Droit's upcoming special issue on water law details the legal aspects of environmental flow protection in Québec.

In line with Francoeur's reasoning, this article also concludes that Québec water law must address the impacts of dam operations on environmental flows and provide adequate normative guidelines to protect freshwater ecosystems from degradations resulting from unsustainable alterations to surface hydrologic regimes. In particular, the article establishes that the Politique des débits écologiques réservés that aims at protecting aspects of environmental flows in Québec rivers downstream of dams could be improved:

1 - The Politique does not apply to water uses anterior to 1999 and cannot serve to restore aquatic ecosystem quality compromised by an anterior use other than on a voluntary basis;

2 - The Politique's implementation is discretionary, and alterations considered unacceptable under the Politique such as complete river-flow cut-offs are authorised in practice. The economic and technical feasibility exclusion ensures that any type of environmental flow alteration can be authorised, thus significantly reducing the Politique’s effectiveness as a normative instrument;

3 - The Politique focuses exclusively on the provision of water for fish and neglects the effects of flow alteration on other components of the biotic assemblages integral to aquatic ecosystem quality;

4 - Reliance on the principle of compensation for lost habitats in the Politique can lead to the acceptance of important shifts in ecosystem species composition. For example, loss of habitats suitable to species adapted to high flow velocity can be considered acceptable under the Politique because balanced by gains in habitats for species adapted to standing water. However, repetition of such a compensation project after project may homogenise fish biodiversity;

5 - The discrete implementation of the Politique through ad hoc authorisations under various regimes may hinder the capacity to address cumulative impacts on environmental flows and ecosystems. This risk is particularly significant when rivers earmarked for out-of-site habitat compensation are not identified during the authorisation process for specific projects.

As a result, the Government's undertaking in the Québec Water Policy (undertaking 22) to improve environmental flow protection remains essential and must be carried out.

Water case law in Québec 9: Validity of a municipal regulation protecting riparian areas

2010-07-15T20:21:00.001+01:00

(BY HUGO)

Wallot v. Québec (City of) (in French) is another example of what appears to be a trend in Québec environmental law: the municipal arena shapes up to be the major battle front on environmental matters. The quote introducing the judgement immediately sets the tone:

«“There is no such thing as absolute ownership. Ownership is being modified constantly by social exigences” (William de Montmollin Marler)»

The reach of this comment is revealed further as the Court acknowledges that our economic system essentially relies on private property (§158).

In this case, the plaintiffs ask the Superior Court to declare null the defendant municipality’s regulation protecting the riparian area around Lake St. Charles.

The lake is the source of 50% of the drinking water provided by the defendant municipality, 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.

The municipal regulation is adopted 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 are the owners of riparian properties on the Lake St. Charles who contest the validity of the regulation to avoid being forced to return part of their properties to a more natural state.

Firstly, the Court examines whether the defendant municipality is competent to adopt the challenged regulation. The Court states that the extent of municipal powers to regulate environmental matters must be interpreted liberally rather than restrictively. The object of the regulation is to protect the lake’s water quality by preventing the continued degradation of the lake’s riparian area and relates to public interest. This falls within the ambit of the municipal powers to regulate the environment under the Municipal powers Act (see notably sections 2, 4, 6, 19 and 26.1). On this issue, the Court thus concludes that the defendant municipality had the power to adopt the regulation challenged by the plaintiffs.

Secondly, the Court examines whether the regulation is reasonable or abusive. On this issue, the plaintiffs argue that the regulation is equivalent to a «forced dispossession without expropriation and/or a disguised expropriation». This argument mainly relies on section 952 of the Civil Code of Québec, according to which the defendant municipality should have indemnified the plaintiffs. Again, Courts will only interfere with the exercise of municipal powers in exceptional situations. A municipal regulation severely limiting the use of property rights is within the discretionary competence of municipal authorities. In expropriation cases, the general rule is and has long been that any statute providing for expropriation without compensation must be expressed in the clearest and most unequivocal terms, which is not the case for the regulation challenged. However, the Court determines that the plaintiffs keep some usage of the naturalised strip of land subject to the regulation and that their rights are not totally negated. Therefore, the regulation is reasonable and valid.

Thirdly, the Court examines whether the regulation’s adoption process conformed to obligations of procedural equity applicable to acts from an administrative authority. Citizens to which a regulation applies must be informed and have an opportunity to submit their observations. The Court reviews the decision process leading to the adoption of the regulation and determines that it was equitable.

As a result, the plaintiffs’ motion is rejected and the regulation stands. The judgement is on appeal.

On more point is worth mentioning in this judgement. The Court often mentions the precautionary principle and refers to the landmark obiter from the Supreme Court on this subject in 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Ville de) (see §31 of the Spraytech case and §91, 92 and 175 of the Wallot case). More particularly, in the section of the judgement determining the reasonable nature of the regulation, the Court states that the testimonies have established «a significant rational link» between the provisions of the regulation and the protection of a drinking water quality source. At this point, the Court reiterates that, according to the precautionary principle, no scientific evidence is required with respect to the evaluation of the means used in the regulation. In this context, the mention of the precautionary principle can only be considered an obiter in the Wallot case.

Canada vs the human right to water and projected trade agreement with the European Union

2010-07-13T11:06:00.008+01:00

(BY HUGO)

An article by Maude Barlow and Anil Naidoo from the Council of Canadians in the Toronto Star outlines Canada's role as the leading opponent to the materialisation of the right to water as the UN general Assembly has been presented with a motion on this issue.

Canada's official position is that recognition of the right to water would force Canada to share its water with the USA. This is a weak argument from a legal point of view. As the article points out, a state's obligations to respect, protect and fulfil human rights are to its own citizens. The article identifies a more pressing menace to Canadian waters:

«Far more dangerous to this country’s water are the provisions of NAFTA, which give American companies rights to Canada’s water, and the proposed Canada-E.U. Comprehensive Economic and Trade Agreement (CETA), which will give water corporations the right to challenge local public control of water services.»

The impact of NAFTA on water apportionment and conservation in Canada has been studied in detail by legal doctrine. However, the impact of the projected CETA on water resources management needs to be studied.

The Department of Foreign Affairs has some information to start with. A legal opinion by Steven Shybman from Sack, Glodblatt, Mitchell LLP is made available by the Columbia Institute Centre for Civic Governance and focuses on the impact of CETA on municipal procurements and in particular on the procurements related of drinking water services (see p.18 & ff).

I do not have have the time to look at primary sources and the general legal context of CETA at the moment, but Shybman's opinion suggests that the agreement would be detrimental to municipal control over drinking water services in Canada.

It appears that the draft text of CETA was leaked by the Trade Justice Network last April. One question is why governmental secrecy in the first place? Another one is why do Canadian negotiators appear to agree to initially unfavourable terms for Canadian interests? This seems to be a general tend in international economic trade to the extent that incompetence has been envisaged as an explanation (see Shybman's opinion p.22).

I do not believe this is the case. However, as demonstrated regularly over recent years in daily news, a critical perspective on our political leaders' commitment to general public interest and welfare is healthy.

Water case law in Québec 8: Demolition of a new encroachement in the St Lawrence River riparian zone

2010-07-12T15:02:00.005+01:00

(BY HUGO)

In Farazli v. Neuville (Ville de) (in French), the Court of Appeal dismisses the appeal of a Superior Court order to demolish works altering the St Lawrence River riparian zone.

The appellant built a large patio, a septic tank and a boat slip on her property in the St Lawrence River riparian zone in violation of the applicable provincial and municipal regulations and while only works for the stabilisation of the river bank against erosion were authorised.

The Superior Court ordered the destruction of the works and the restoration of the site in its initial condition under section 227 of the Act respecting Land Use Planning and Development. The Court of Appeal upholds the Superior Court decision.

Wasted water in the North American Great Lakes

2010-07-11T18:00:00.008+01:00

(BY HUGO)

Environmental Defence Canada recently published a report, Down the Drain: Water Conservation in the Great Lakes Basin, that shows how wasteful and inefficient water use is in the Great Lakes region. Among notable facts:

«Canadians are among the world’s highest water users per capita, second only to the United States. Current estimates are that Canadians use on average 329 litres of water each day in their homes, the equivalent to over 650 bottles of water (500ml) per day» (p.4)

«the total number of dwellings with inefficient toilets in the Great Lakes and St. Lawrence ecosystem is 4,351,601 – translating into roughly 10 million individuals using inefficient toilets in their homes. Using this information it was determined that a total 213 billion litres of water would be conserved annually by updating all remaining inefficient toilets to efficient ones.» (p.7)

«there is a potential water savings of over 65 billion litres each year if all inefficient shower fixtures in the Great Lakes basin were updated to newer, water efficient models.» (p.8)

«the potential water savings from changing inefficient clothes washers in the Great Lakes basin totals as much as 163 billion litres per year.» (p.10)

«Potential savings from introducing conservation measures on outdoor water use (like lawn watering) is approximately 140 billion litres per year.» (p.12)

As the St. Lawrence River sets record lows flows since the beginning of the year, the report makes an essential and timely point.

Deluge of reports on water management issues in Canada

2010-06-19T11:49:00.047+01:00

(BY HUGO)

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.

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

2010-06-16T10:25:00.011+01:00

(BY HUGO)

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.

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

2010-06-12T11:56:00.006+01:00

(BY HUGO)

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.»

A small California community opposes cloud seeding

2010-06-09T10:22:00.006+01:00

(BY HUGO)

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.

France will accede to the UN watercourse Convention

2010-06-08T11:30:00.005+01:00

(BY HUGO)

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.

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

2010-06-04T23:36:00.001+01:00

(BY HUGO)

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.

Rainwater Harvesting in Utah

2010-06-03T11:53:00.005+01:00

(BY HUGO)

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?

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

2010-06-02T10:07:00.012+01:00

(BY HUGO)

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.

Water Energy Nexus: Spectrum IEEE's take

2010-06-01T14:42:00.003+01:00

(BY HUGO)

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.

Report on the implementation of the Québec Groundwater Catchment Regulation

2010-05-30T15:24:00.019+01:00

(BY HUGO)

On 28 May 2010, the Québec Ministry for Sustainable Development, Environment and Parks published an implementation report (in French) for the Groundwater Catchment Regulation (GCR) covering 6 years from June 2002, the date of entry into force, to June 2008.

The Report provides limited factual data on the implementation of the GCR. It is released almost 2 years after it was due to be made public further to section 64 GCR. The Report bears no date and some of the acronyms listed at the beginning are not used in text of the version released. Nevertheless, some points are worth analysing.

Data on groundwater uses

The Report first provides a portrait of groundwater uses in Québec:

- 20% of the Québec population is dependent on groundwater sources, that number being equally divided between individual wells and municipal systems;

- 54% of the groundwater withdrawn in Québec serves for domestic purposes. Other uses are divided as follows: 39% for agriculture (i.e. 23% of aquaculture and 16% for livestock and irrigation); 7% for industrial usages; 0,08% for drinking water bottling.

These numbers are only indicative as they originate from estimations dating back to 1987. Data on groundwater resources and usages in Québec is insufficient and hampers improved water resources management.

The Ministry attempted to remedy this situation through section 59 GCR, subjecting the owners of catchment sites that yield at least 75 m3 of groundwater per day to an obligation to notify with respect to the location of catchment works, the type of water use, the volume of water drawn daily and the number of days per year when water is drawn. However, according to the Report (p.33), only 251 well owners declared their withdrawals.

Other sources of information stemming from obligations under sections 20 and 21 GCR have not yet resulted in the development of a complete database for groundwater usages in Québec (p.36-37), although the Ministry has received 27726 drilling reports in conformity to section 20 form 2003 to 2008 (p.14).

Further progress on this issue is likely to result from the implementation of the 2009 Regulation respecting the declaration of water withdrawals, that specifically aims at ensuring better knowledge and better protection of the environment by allowing the Government to assess, through the declaration of water withdrawals, the impact of the withdrawals on water resources and ecosystems.

Quantitative management

Under section 31 GCR, the following withdrawals are subject to a ministerial authorisation:

1- groundwater catchment projects having a capacity less than 75 m3 per day intended to supply more than 20 persons;

2- groundwater catchment projects intended to supply water to be distributed or sold as spring water or mineral water or to be an ingredient used in manufacturing, conservation or processing and stated as spring water or mineral water on a product; and

3- groundwater catchment projects having a capacity of 75 m3 or more per day or that will bring the capacity to more than 75 m3 per day.

The Report indicates that 277 authorisations (among which 3 for water bottling) have been delivered between 2003 and 2008 (p.28). The Report fails to detail the number of applications received by the Ministry and does not provide information pertaining to the withdrawal volumes authorised. Significantly, the number of authorisations granted for withdrawal projects with a daily capacity above 300 m3 per day, which is the highest volume bracket under the GCR, accounts for half the authorisations granted.

With respect to the scope of the ministerial authorisation regime, the Report notes two problems: 1) the exclusion of mine dewatering from the regime. This is significant because such withdrawals are reported to be the most important in quantity in Québec. This exclusion is deplored by the Ministry although it results solely from an administrative interpretation of the relevant legal provisions that could have been construed otherwise in order to extend the regime to mine dewatering. 2) The exclusion from the ministerial authorisation regime of withdrawals anterior to the implementation of the GCR. This exclusion was possibly responding to a fear at the time of the Regulation's inception (1996 onward) that the imposition of an authorisation regime would in fact be perceived as an expropriation of private property rights in groundwater.

Both these problems related to the scope of the regime will be resolved when the new authorisation regime provided by the Act to affirm the collective nature of water resources and provide for increased water resource protection enters into force (see section 19 (31.74 and 31.75) of the Act).

With respect to the municipal authorisation regime applicable to groundwater withdrawals subject to the GCR but not covered by article 31, the Report does not identify significant implementation problems and recommends the continuance of this regime (p.8).

Qualitative management

The Report makes a series of recommendations for improving the technical standards applicable to wells that are not subject to section 31 GCR in order to improve groundwater quality protection (better well waterproofing to prevent surface to groundwater seepage, minimal distances between wells and wastewater systems or agricultural activities to prevent contamination, ...).

The most significant provisions with respect to groundwater quality pertain to protection areas around wells subjected to the ministerial authorisation regime that restrict agricultural activities to limit possible contamination (sections 24-30 GCR). Among 476 municipalities operating wells and contacted by Ministry in April 2008, 65% had established protection areas, 20% were in the process of doing so, and 14% had not initiated the process. As each municipality may possess many wells, this translated in approximately 130 catchment systems around which no protection area were established.

In some case, the Report recommends additional measures to prevent groundwater contamination. The Report identifies nitrate contamination resulting from agricultural activities as a significant threat to public health and recommends the development of provisions to protect groundwater sources given the high treatment costs once groundwater is contaminated. The report also recommends the extension of restrictions placed on nitrogen fertiliser spreading in the context of agricultural activities to golf course operations.

However, in many cases, the Report recommends relaxing applicable provisions to reduce constraints on agricultural operations (see p. 21-24). In this context, the municipal powers to regulate such activities might come to play an increasing role. The result of the appeal of a 2009 Superior Court decision, Ferme l'Évasion vs Elgin (in French), will be crucial to determine the extent of the municipal powers in this respect (see notably section 27 GCR and section 124 para.4 of the Environment Quality Act).

Compliance

260 notices of offense have been delivered by the Ministry, among which 85% for agricultural activities conducted too near a well, 8% for having sunk a well and started a withdrawal without a ministerial authorisation, 4% for installing or maintaining inadequate fenced perimeters around wells, and 3% for not filing the adequate drilling reports with the Ministry.

Significantly, compliance with section 21 GCR by small well-owners is extremely low: a maximum of 6% among them (possibly 6% of 27726? - the latter number being the number of wells drilled by operators that complied with section 20 GCR) have fulfilled their obligation to have the water from their well analysed and have actually sent the results to the Ministry (p.15). However, no notice of offence has been delivered by the Ministry for such violations.

On this issue, the Report appears to conclude that the obligation to analyse the water quality of new wells not subject to the ministerial authorisation regime should be abrogated. Strangely, the reason invoked for abrogating this obligation is the false sense of security that water quality analyses might generate. Another more credible explanation might be the cost of the analyses, which could make the administration unpopular with well owners if the penal provisions were enforced. Hence, the Report recommends ministerial disengagement and reliance on existing awareness-raising initiatives.

Federal Bill C-26: new restrictions on transboundary water tranfers?

2010-05-23T00:04:00.001+01:00

(BY HUGO)

A new bill, Bill C-26, was introduced by the federal minister for Foreign Affairs to the Canadian House of Commons on 13 May 2010 in order to prohibit bulk removal of transboundary waters.

According to Reuters, the Bill fulfills a 2008 promise by the Conservative government and complements existing provincial legislation that covers several bodies of water, including the Great Lakes. Through the Bill, the minister for Foreign Affairs declared that Canada is strengthening its resolve to make sure that there are no exports of bulk water that take place.

The Bill would principally amend the International Boundary Waters Treaty Act (IBWTA), which confirmed and sanctioned the 1909 Boundary Waters Treaty (Treaty) between Canada and the U.S.A.

Apart from adding inspection powers and increasing penalities under the IBWTA, the Bill alters the prohibition on water removals contained in section 13 IBWTA. Section 13 currently reads as follows:

«...no person shall use or divert boundary waters by removing water from the boundary waters and taking it outside the water basin in which the boundary waters are located...»

Boudary waters are defined as follows (preliminaty article of the Treaty):

«...the waters from main shore to main shore of the lakes and rivers and connecting waterways, or the portions thereof, along which the international boundary between the United States and the Dominion of Canada passes, including all bays, arms, and inlets thereof, but not including tributary waters which in their natural channels would flow into such lakes, rivers, and waterways, or waters flowing from such lakes, rivers, and waterways, or the waters of rivers flowing across the boundary.»

The prohibition contained in section 13 IBWTA is charaterised by the International Boundary Waters Regulations (IBWR). Sections 5, 6 and 2 IBWR are particularly relevant:

5. Subsection 13(1) of the IBWTA applies only in respect of the Canadian portion of the following water basins: (a) Great Lakes; (b) Hudson Bay Basin; and (c) Saint John — St. Croix Basin.

6. Subsection 13(1) of the Act does not apply to the removal of boundary waters other than the removal of boundary waters in bulk.

2. (1) "removal of boundary waters in bulk" means the removal of water from boundary waters and taking the water, whether it has been treated or not, outside the water basin in which the boundary waters are located

(a) by any means of diversion, including by pipeline, canal, tunnel, aqueduct or channel; or

(b) by any other means by which more than 50,000 L of boundary waters are taken outside the water basin per day.

(2) The removal of boundary waters in bulk does not include taking a manufactured product that contains water, including water and other beverages in bottles or packages, outside a water basin.

The new section 13 contained in the Bill would read as follows:

«(1) ... the bulk removal of boundary waters is prohibited.

(2) ... the bulk removal of transboundary waters is prohibited.»

Whereas the definitions of boundary waters and bulk transfers remain essentially the same, the definition of transboundary waters expands the prohibition of section 13 to waters that flow accross the international boundary in the water basins of the Atlantic Ocean, Arctic Ocean, Gulf of Mexico, Hudson Bay and Pacific Ocean (see section 3(2) and Schedule 2 of the Bill).

As a result, the Bill slightly expands the protection against transboundary bulk water transfers.

A guest post by Professor Marcia Valiante on the Great Lakes Law Blog, concludes that the Bill fills a gap in the legislation but is not ambitious either constitutionally or environmentally, and is perhaps an easy way for the government to improve its rather dismal environmental image.

The Council of Canadians is of the opinion that the Bill is not a ban on water exports and actually weakens the current regime due to the fact that the Bill narrows the definition of bulk removals to exclude water in manufactured products such as beverages. This opinion appears unfounded given that the current wording of section 2(2) IBWR is virtually identical to the wording of the exclusion from the definition of «bulk removal» under the Bill.

Update on the Nile Basin Cooperative Framework

2010-05-19T17:15:00.004+01:00

(BY HUGO)

Thanks to collegue BO for the heads up on the news that Kenya joined Ethiopia, Rwanda, Uganda and Tanzania, and signed the recent Nile Basin Cooperative Framework Agreement: the news can be found here and here.

As a result, only one more signature is required from the 9 basin countries for the agreement to come into force.

Strengthening Legal Protection for Canada's Drinking Water

2010-05-18T11:30:00.004+01:00

(BY HUGO)

On 17 May 2010, FLOW - Forum for Leadership on Water released a report on strenghtening the legal protection for Canada's drinking water.

Some of the challenges highlighted by the report to justify improved protection for drinking water in Canada are:

- In April 2008, the Canadian Medical Association reported that there were 1,776 drinking water advisories in effect across Canada;

- On 30 April 2010, there were 116 First Nations communities across Canada under a Drinking Water Advisory;

- An estimated 20–40% of all rural wells in Canada have nitrate concentrations or coliform bacteria counts in excess of drinking water guidelines;

- Half of the Canadian jurisdictions lack mandatory testing for chemical contamination of drinking water and over half do not require advanced water treatment for surface water;

- Many of the parameters in the voluntary pan-Canadian drinking water guidelines are up to 1000 times weaker than at least one of the other corresponding European standards or Australian guidelines.

To address these fundamental problems, the Report makes the following recommendations:

1 - The federal government could replace the Canadian Guidelines for
Drinking Water Quality with a Safe Drinking Water Act that has health-based long term objectives and legally binding minimum national standards and regulations;

2 - The federal government should ensure the drinking water standards are at least equal to the highest standards in other industrialized nations;

3 - The federal government should take steps to provide resources and support for safe drinking water on federal lands and all First Nations reserves;

4 - Establish consistent standards and reporting mechanisms to increase transparency about drinking water and wastewater systems, notably through a publicly available annual report to Parliament.

The Living Water Policy Project

2010-05-18T11:11:00.007+01:00

(BY HUGO)

An exciting discovery: The Living Water Policy Project.

The Project is an evolving library of Canadian water policy information. The site allows you to review summaries of up to date water policy documents for each province, compare water policies in different provinces with a unique comparison tool.

The Project can help to counter the managerial fragmentation of Canada's waterscape.

Water Energy Nexus: Water and Mining Conference

2010-05-17T10:25:00.008+01:00

(BY HUGO)

On 9-11 June 2010, the second International Congress on Water Management in the Mining Industry will take place in Santiago, Chile. The focus will be on water supply, efficient water use and effluent management in the mining industry:

«In the last few years due to increasing scarcity, on one hand, and the ever growing demand, on the other, important efforts have been undertaken by the mining industry to improve the efficient use of this valuable resource.

Between 2000 and 2008 the average water consumption in the Chilean copper industry decreased from 1.1 m3 to 0.79 m3 of fresh water for each ton of ore processed by flotation, and from 0.3 m3/t to around 0.13 m3/t of ore used in hydrometallurgical processes.»

The programme is available here.

A first step for the Nile Basin Co-operative Framework?

2010-05-15T11:19:00.006+01:00

(BY HUGO)

As reported by AlJazeera and BBC, four of nine Nile Basin countries - Ethiopia, Rwanda, Uganda and Tanzania - have signed on 14 May 2010 a new treaty on the equitable sharing of the Nile waters despite strong political opposition from Egypt and Sudan.

The new agreement, the Nile Basin Co-operative Framework, is to replace a 1959 accord between Egypt and Sudan that gave them de facto control of more than 90 per cent of the water flow. The agreement requires signature of at least six countries and remains open for one year.

Collegue Musa Abseno has been heavily involved in the long negociation process for the Nile Basin Co-operative Framework.

Follow-up on geo-engineering and precaution

2010-05-15T10:59:00.006+01:00

(BY HUGO)

The draft recommendations of the Fourteenth meeting of the Subsidiary Body on Scientific Technical and Technological Advice to the Convention on Biological Diversity reads as follows with respect to geo-engineering:

«(t) [Ensure, in line and consistent with decision IX/16 C, on ocean fertilization and biodiversity and climate change, and in accordance with the precautionary approach, that no climaterelated geo-engineering activities take place until there is an adequate scientific basis on which to justify such activities and appropriate consideration of the associated risks for the environment and biodiversity and associated social, economic and cultural impacts];»

As always, Canada can be relied on in diplomatic fora to present positions as antagonistic as possible to any form of environmental protection. According to IISD reporting services, Canada opposes restrictions on geo-engineering activities:

«CANADA suggested “examining” related geoengineering activities to determine if there is an adequate scientific basis to justify them, rather than preventing such activities until an adequate scientific basis to justify them exists.»

The precautionary principle? Less material than a cloud

2010-05-13T15:14:00.009+01:00

(BY HUGO)

Thanks to collegue BO, who pointed to this article from Karl Burkart from the Mother Nature Network, about manufacturing clouds to increase the albedo of the Earth's athmosphere and presumably reduce greenhouse effect by reflecting the Sun's energy back into space:

«Basically a fleet of ships equipped with screens & vacuums pump up millions of gallons of ocean water and using high-powered water canons introduce the water some 3000 feet in the air, where clouds are formed. The added moisture content would increase the thickness of the water vapor, making the clouds whiter and thus more reflective.»

The proposals for such experiments have been around for years and are part of a wider debate about geoengineering to fend off the anticipated damages resulting from global temperature increases. As reported by Ben Webster for the Times:

«The British and American scientists involved do not intend to wait for international rules on technology that deliberately alters the climate. They believe that the weak outcome of December’s climate summit in Copenhagen means that emissions will continue to rise unchecked and that the world urgently needs an alternative strategy to protect itself from global warming.»

Of course, the resulting alteration of precipitation patterns is completely unpredictable, adding to the increasing variability of water flows in the hydrologic cycle due to climate change.

Why invest massively into such magic-wand solutions rather than into concrete projects to counter green gas emissions? No clue. It just makes no sense, however you want to look at it. The point is, nobody knows the effect of such extreme measure; it's conjectures piled on conjectures,buttressed by conjectures.

Fortunatly, common sense has not entirely left the building. In the current discussions of the scientific advisory body to the Convention on Biodiversity, SWEDEN and ARGENTINA called for applying the precautionary principle to geoengineering. IISD provides some highlights to follow the action here.

It feels like humanity realised it will inevitably crash against a wall, but instead of breaking just decided to accelerate to reduce the damages. Depressingly, great environmentalists like the people at Legal Planet start considering geoengineering solutions as a reasonable possibility.

Water case law in Québec 6: Municipal responsibility for watercourse maintenance

2010-05-11T21:03:00.000+01:00

(BY HUGO)

A recent judgement by the Court of Appeal, Charlevoix-Est (Municipalité régionale de comté de) vs. Tremblay (in French), examines extracontractual liability stemming from the municipal duty to maintain watercourses in good condition.

The Plaintiffs operate a lodge on the banks of a tributary to the St Lawrence River. On 31 August 2005, the remnants of Hurricane Katrina cause precipitations abundant enough to breach 3 beaver dams upstream of the Plaintiffs' lodge, resulting in a flash flood and damages to the Plaintiffs' property. As a result, the Plaintiffs file an action in civil liability against a Regional County Municipality and claim close to half a million Canadian dollars.

First, the Court rejects the Municipality's defence based on force majeure. Second, the Court establishes that the Municipality has an obligation of means under the Municipal Code (see section 782 among others - these sections are now replaced by the Municipal Powers Act, under which the scope of the municipal obligation might be different) to maintain rivers in good condition and free of obstructions that might hinder the flow of water. Finally, the Court concludes that the Municipality has not done anything to fulfill its obligation in conformity to the standard of the reasonable and prudent person, and confirms the Municipality's responsibility for the damages claimed.

The cost of life is paid in water

2010-05-11T17:30:00.006+01:00

(HUGO)

Just a new way of seeing things found by chance in a scientific paper by Arthur Wood and Jennifer Smith, «Universal model for water costs of gas exchange by animals and plants» (2010) Vol.107 No.18 PNAS 8469:

«For terrestrial animals and plants, a fundamental cost of living is water vapor lost to the atmosphere»

Water is the fundamental currency with which one pays to live...