Conference: The right to water and water rights

(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

(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

(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

(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

(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.