Responsibility for water stewardship is awfully murky

By Penny Collenette, Citizen Special - October 14, 2009 4:05 AM

Canadian universities and think tanks are awash in studies about water—water scarcity, water pollution, water leakage, water levels and the growing need for water security as climate change becomes a reality. Even Guy Laliberté has found it necessary to speak from his space pulpit, warning Canadians to wake up to the need for water conservation.

Evidence from many of these studies points to a patchwork system of jurisdictional confusion, historical mistakes, research gaps and uneven standards. Just as worrying as the need for conservation is the need for clarification.

First, confidence is not inspired by the governance of our system. The current concept of watershed management, or place-based approaches, which acknowledge that what enters the water “over there” directly affects the water “here,” has not penetrated our political consciousness. In spite of the existence of 130 water stewardship organizations in Canada, we remain locked within traditional boundaries.

While provincial governments are constitutionally responsible for water supply, environmental leadership and stronger enforcement is needed from the federal level. Simultaneously, Canadians demand immediate answers from our municipalities when sewage seeps into our rivers. Who is responsible for a resource that is not bound by borders or provinces? The lack of clear authority and modern governance is unnerving.

Secondly, our appreciation of water is insensitive. While we may have built our cities around water, we fixated on streets and pavement, not rivers or lakes. While we funded great buildings, we did so at the expense of water infrastructure maintenance. (Let’s face it, monies for sewers are not as glamorous or exciting as the building of a stadium or an opera house.) When we built our country, we ignored the need to map our groundwater and instead hammered in railroad ties and paved highways. And when we needed jobs, we allowed and encouraged tar sands exploration and exploitation, which in turn uses huge quantities of water.

And then there is our water economy. Most Canadians use water at will, mostly because it is inexpensive and reasonably safe. In spite of the tragic deaths at Walkerton and the awareness of “boil water” advisories, especially on First Nations land, we generally turn on the tap and expect that we can drink the water. This “ease of water” may lead Canadians to use more water per capita than any other country besides the United States. Water is cheap and we are careless with it.

Yet, in spite of these challenges, it is not too late for Canada to demonstrate water leadership by acknowledging that water is more than just a blue icon. Water is integral to our very existence and without access to safe and plentiful water, our health as individuals, and our wealth as a country are in jeopardy.

With a redefinition comes an updated awareness and new questions. Do we already have a right to water? If so, where does this right come from, to whom does it belong and who protects it? A 2005 Canadian Senate report avoided the use of the word “right” and instead noted that water is a “basic need,” but other countries have taken a bigger step. The British government has recently recognized the right to water and South Africa has enshrined a right to water within its national constitution.

Maude Barlow from the Council of Canadians is convinced that water should be proclaimed as a human right in Canada, a right that includes safe access to an adequate supply of water and water for sanitation for each individual, no matter their location. In other words, the “right” is limited in scope to safe drinking water for basic needs. This does not, however, mean a “free for all” for Canada’s water. Instead, a strong regime of protection must be established.

But if water is a human right then there must be obligations to protect it. Who has those obligations? Could they have financial consequences? Would there be liability issues if water is not well maintained? What legal redress would be available for violations? What happens if Canada has a water shortage? Who decides who gets what?

Should the government of Canada also have a fiduciary responsibility to protect water—even waters that are not navigable? Whether or not water is declared as a right, should it be described as a public trust or common property, a view espoused by Ralph Pentland, former director of Water Planning and Management in the federal government? He notes that American legal decisions since the 1970s have given credence to the public trust doctrine. Given that we share 100 waterways with our southern neighbours, we might be well advised to also share an evolution in water law together.

Twenty-five years ago, the Pearse inquiry crisscrossed this country to hold hearings on water issues and the future of federal water policy. There were 1,200 staff and a budget of $50 million in the government’s Inland Water Directorate. Then, in the early 1990s in a short-sighted move, that directorate was scrapped. Today, there are 20 departments that all have a “piece” of water but there is no effective co-ordinating or central government agency.

At the moment when a glistening new Museum of Human Rights is being built in Winnipeg, it is certainly time to discuss water and rights. We owe it to our teenagers who will inherit our water decisions. Youth4Water, a Toronto based advisory committee, recently conducted a survey of young people, which indicated a strong demand for increased curricula on water and sanitation in schools and communities. Perhaps a right to water education should be on the books as well.

At a moment when studies tell us water shortages are a possibility in the near future, it is definitely time to update Canada’s water act, to utilize new models of collaborative governance and to practice adaptive policies. At a moment when stimulus spending is all the rage, it is time to invest in our information gaps about our water supplies.

At a moment when we have a minority government, this is the time for all parties to come forward with a clear, national water strategy.

It is time for a new water story for Canada.

Penny Collenette is adjunct professor in the Faculty of Law and executive in residence at the Telfer School of Management at the University of Ottawa. The university is holding a one-day conference today on water issues, (waterandhumanrights.uottawa.ca).

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