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Water, Modernity and Trust

June 3, 2010

On Sunday (May 30th), I gave a workshop at the Your Water Your Future conference in Nanaimo, organized by the Vancouver Island Water Watch Coalition.  Congratulations to the organizers for a well run and well attended event, with great speakers from Maude Barlow to Rafe Mair. 

My workshop concerned legal tools to protect water sources from logging.  Here’s my Power Point presentation – with notes that hopefully explain what I was talking about.   In essence I suggested that most provincial laws are aimed at facilitating logging in drinking watersheds, but that there are a handful of legal approaches that can shift the debate to public control of watersheds and the public’s right to health and clean water. 

But that’s not what this post is about.  At the Conference I was struck by the number of questions – and fears expressed – about the Water Act Modernization process.  For those not familiar with it, the province is intending to update the province’s Water Act.  And anyone familiar with the Act will agree that it’s in need of modernizing.  Although there were some significant modifications in the early 1990s, the basic structure of the Act has remained unchanged in over a century. 

WAM.jpgOne question, directed to former Cabinet Ministers Rafe Mair (Social Credit) and Corky Evans (NDP), was particularly suspicious of the current government’s purpose in updating the Water Act, seeming to fear that it was a plot to ease corporate access to BC’s rivers. 
In response, Rafe Mair somewhat cynically suggested that whenever government consults they already know what they are going to do, and simply want to say that they’ve consulted.

This is undoubtedly true in some cases: Indeed, I remember many cases of the provincial government claiming to have consulted with West Coast when they’d really just announced to us in a meeting what they were intending to do.  However, we’ve also seen cases where we’ve been able to influence particular legislation through consultations, so I don’t think that the situation is quite as black and white as Rafe suggests. 

However, I thought that Corky Evan’s response was particularly interesting.  He agreed that governments often do use public consultations to confirm what they want to do in any case.  However, he also confirmed that, in his view, the Water Act was in bad need of modernization.  He suggested that his government had been too timid to do so when then Minister of Environment John Cashore had pushed them to do so.  And he then said (as best as I can recollect it):

It’s difficult to know what to do when someone that you don’t trust is trying to solve a problem that you agree is a real problem.  It’s difficult to know whether to cheer them on or stand in their way. 

Without commenting on Corky’s views of the current government’s trustworthiness, West Coast Environmental Law is cheering the province on for trying to update the Water Act. 

We have not always done so.  During the BC Liberal’s first mandate we received a leaked document that the province was intending to rewrite the Water Act to make it “results-based” – a concept which the government was using right, left, and centre at the time to justify environmental deregulation that shifted responsibility for environmental protection from government to industry and private professionals.  At the time we blasted the government for this proposal, and make no apologies about it.  The proposed amendments were abandoned. 

We believe that this time is different.  A review of the province’s Water Act Modernization discussion paper reveals that the government is intending to address a number of very real problems that West Coast and the environmental community has complained about for literally decades, including:

  • Lack of flow for fish and stream health on streams that have too many water licences;
  • A failure to regulate the extraction of ground-water; and
  • Examining options to better include local governments, First Nations and the public in decision-making about water.

Because this seems to be a good faith effort to address these important issues, we, along with 28 other groups, signed a Statement of Expectations outlining the changes we would be looking for in a new Water Act.  In addition, we urged our readers to participate in the process and I attended one of province’s workshops and submitted West Coast’s own detailed comments on the Discussion Paper

That’s not to say that we’re happy with the Discussion Paper – just that it’s a good faith effort to grapple with these issues.  Many of the province’s ideas don’t go far enough.  For example,

  • The proposals for source protection, while better than what presently exists, are still very weak (to tie this post back to my presentation at Your Water – Your Future);
  • While the Discussion Paper pays lip service to the Public Trust Doctrine, the proposals do not clearly create a legal obligation to manage water for the benefit of the public;
  • The Discussion Paper is unclear about exactly how it will address existing licences that already compromise stream health. 

Moreover, in some cases the reality of cut-backs to the Ministry of Environment seems to be driving some proposals that may create new problems.  Take, for example, the proposal that some small-scale (for surface water) and medium-sized (for groundwater) water withdrawals will be “permitted” to take water without a water licence.  The Discussion Paper is very clear that this will ease the workload for the Ministry, but it fails to consider the implications of this major change for the smaller water users:

What are the rights of such “permitted” water users against other water licensees? Water licenses under the old Act have guaranteed their users the right to take a specified flow from a stream. If a domestic user, taking water under a permitted use rule, and a licensed user, find that there is a limited flow, do the rights of the large scale, licensed user take priority? Under the current system it would appear that they would.  …

It is not that these problems are insurmountable. However, until they are addressed the administrative efficiencies of such an approach will introduce a host of new problems.

But the Discussion Paper does ask many of the right questions, and does include some of the right solutions.  And we’re glad that the province has asked those questions and are looking at those solutions, even as we push them to go further. 

This round of official consultations have closed.  The province reports that they received 1008 written submissions – most of which were e-mails from individuals.  The results are supposed to be made public at the end of June.  However, the public can still make comments on the province’s Livingwatersmart Blog as well as write to the government, including their MLAs, to make their views known. 

And we’re hoping that there will be further opportunities for public input and consultation as the province moves forward in developing this legislation.  If we hear of anything we’ll be sure to let you know.