Water Water Everywhere? Legal Issues Affecting Water

As briefly hinted at by Wendy Reynolds here on SLAW a few days ago, water was a topic at the annual conference of the Canadian Association of Law Libraries in Windsor last week with Maude Barlow of the Council of Canadians giving the opening plenary session entitled “We are Stewards of the Great Lakes: Law and Policy for Changing Times.”

Although I have not always been a fan of Maude Barlow, she was a very good speaker and the talk was uniquely depressing and inspiring: depressing because of the real threats to fresh water supplies and the lack of discussion at federal, provincial and municipal levels of water policies that would support sustainable water management practices; inspiring because of the slow progress being made and small successes achieved in Canada and around the world.

I had not realized how little I knew about the topic and anything I say in this post will likely confirm in a public way my limited knowledge.

For example, although I was likely aware in the recesses of my mind about the public trust doctrine (the principle, as explained on Wikipedia, that certain resources are preserved for public use, and that the government is required to maintain it for the public’s reasonable use), I found it interesting that some jurisdictions, such as Vermont, have declared their groundwater reserves to be a public trust.

As stated here by the Council for Canadians, the public trust doctrine applied to Canadian water supplies would ensure a balancing of public and private interests:

The declaration of surface and ground water as a public trust will require the government to protect water for the public’s reasonable use. Under a public trust doctrine private water use would be subservient to the public interest. Permission to extract groundwater under the public trust doctrine, for example, might be granted based on the ability to show public benefit for any proposed extraction. It may also lead to the creation of a hierarchy of use requiring that water use be allocated for ecosystems and basic human needs first, and not corporate needs such as large-scale industrial projects or by bottled water companies.

[The Council for Canadians has a page here devoted to water issues and commented here earlier this week on what it perceives to be loop-holes in Canadian federal Bill C-26, An Act to amend the International Boundary Waters Treaty Act and the International River Improvements Act. The Canadian Environmental Law Association also has a page here on water law resources. Michel-Adrien Sheppard also posted here on SLAW in 2007 about the Globalex Research Guide on Transboundary Freshwater Treaties and Other Resources.]

The public trust doctrine has not been widely discussed in Canadian case law with the only significant mention being by the Supreme Court of Canada in British Columbia v. Canadian Forest Products Ltd., 2004 SCC 38 at para. 74 where Binnie J. acknowledged that “The notion that there are public rights in the environment that reside in the Crown has deep roots in the common law” (however, the majority decision ultimately took a conservative approach to not allow the Crown to succeed in a general claim for damages for “environmental loss” [caused by a negligently undetected controlled burn of slashing and other waste by a logging company] in the absence of a statutory scheme permitting such a claim). Even a search here on my custom Google search of Canadian law firm websites and blogs has only 6 hits on the phrase “public trust doctrine”.

Another example (of many things I didn’t know about) was the concept of virtual water, briefly hinted at in Wendy’s post, that there is a hidden cost in most products we produce of the amount of water it takes to produce the item. According to the foregoing Wikipedia article, for example, the production of 1 kg of beef costs 15,500 liters of water and to produce a single bed sheet takes 9,750 liters of water. The issue here, of course, is that people may not always appreciate the impact on water reserves as a result of the manufacturing processes to make the various goods we purchase.

There are lots of other issues mentioned at the session that I will not expand on here (including bulk water exports, challenges on dealing with environmental concerns affecting the Great Lakes, and the need to better document inventories of water in Canada). Clearly, regardless of where one might stand on these issues, what became clear to me is that, despite the importance of the topic, there has been relatively little public discourse of the issues but this may change as the issues become more pressing.