(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...
Tuesday, July 12, 2011
Sunday, July 3, 2011
Québec water case law 21: The Court of Appeal upholds the validity of municipal by-laws for riparian zone protection
(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.
- Lake St. Charles is the source of 50% of the drinking water provided by the defendant municipality Québec City, serving close to 300 000 persons;
- During the summers of 2006 and 2007, toxic cyanobacteria proliferate in the Lake due to phosphate inputs from fertiliser run-offs, septic tank leakage, etc;
- Municipal by-laws are adopted by Québec City in June 2008 to counter this phenomenon by imposing the naturalisation and reforestation of heavily modified riparian areas on a 10 to 15 meters strip of land around the Lake;
- The plaintiffs and appellants are owners of riparian properties around Lake St. Charles. They contest the validity of the by-laws to avoid being forced to return part of their properties to a more natural state.
The Superior Court rejects the plaintiffs’ arguments and concludes that the municipality made reasonable use of its regulatory powers.
The appeal raises the following questions:
1 - Did the Superior Court err in concluding that the defendant municipality could adopt, based on section 19 of the Municipal Powers Act (MPA), the by-laws attacked?
2 - If the defendant municipality had the regulatory power to adopt the by-laws, did the Superior Court err in concluding that the defendant municipality did not exceed the power conferred by the MPA in doing so?
To answer the first question, the Court of Appeal establishes the breadth of the municipal regulatory power under sections 4.4 and 19 MPA by reference to the right to a healthy environment at section 19.2 of the Environment Quality Act, to the Protection Policy for Lakeshores, Riverbanks, Littoral Zones and Floodplains, to the Sustainable Development Act, and to the Act to affirm the Collective Nature of Water Resources and Provide for Increased Water Resource Protection. In this legislative context and given section 2 MPA, the Court concludes that the attacked municipal by-laws correspond to the regulatory powers conferred by the MPA.
With respect to the second question, the Court of Appeal examines whether the municipal by-laws impose constraints on the plaintiffs’ enjoyment of their properties that are prohibitive enough to constitute disguised expropriation. This is mostly a factual question and the Superior Court’s decision can only be quashed if it contains a manifest and dominant mistake, which is not the case. The by-laws are not equivalent to an absolute negation of the plaintiffs’ property rights or a positive confiscation of the properties. The plaintiffs’ rights over their properties remain exclusive. The plaintiffs can continue enjoying their property for residential purposes. Hence, the Court rejects the appeal.
Friday, June 10, 2011
Dignity and access to water for Negev Bedouins
(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).
In this article (forthcoming in the Natural Resources Journal) where the operationalisation of human rights to water is discussed, I was raising the question: «Can a person decide to reside in the middle of a desert and then claim water resources from the state on the basis of human rights?», the answer being that such situations must be carefully identified and delineated ex post at the local level by considering the particular facts at hand.
Interestingly in that context, Tomer Zarchin from Haaretz reports that the Supreme Court of Israel recognised some level of access to water for arab bedouins in the Negev desert based on the constitutional right to dignity. Richard Lightbrown provides additional background to the news whereby the hegemonic effect of formal positive legal order tied to state power over informal indigenous arrangements becomes apparent (this effect is also mentioned in section 4.1 of my article, in particular p.43).
Thursday, June 2, 2011
Water security and federal involvement in water management
(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.
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"?
(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.
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.
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