Intervenor: Vol. 25 no. 2 April - June 2000

CELA's perspective on the future of public drinking water in Ontario

Editor's Note: This article is taken from comments by Theresa McClenaghan to the 2000 OWWA/OMWA (Ontario Water Works Assoc./Ontario Municipal Water Assoc.) joint annual conference, May 8, 2000 in Windsor, Ontario-almost a month before the Walkerton tragedy. The Canadian Environmental Law Association has been actively involved in water issues for a long time. It is a co-founder of WaterWatch; it consults with governments on water issues regarding both quantity and quality; it represents individuals and citizens' groups in a variety of forums on a variety of water issues. Water is one of CELA's major law reform priorities.

It is very useful for all of us to take a step back to consider what's at stake and what principles should be influencing our decisions about water supply, water protection, water infrastructure and the ecological systems in which we are placed.

In March of this year, the International Joint Commission released its final report on bulk water diversions from the Great Lakes system. The Final Report responds to the request made by the governments of Canada and the United States in their February 10, 1999 Water Uses Reference for recommendations for the protection of the Great Lakes.

CELA concurs with the recommendations of the IJC, which include increasing water prices to water users and no water removals that endanger the integrity of the Great Lakes ecosystem.

Quebec is first out of the starting gate on provincial water policy with its Report of the Commission on the Management of Water in Quebec, released April 2000. CELA is extremely pleased with this Commission's recommendations and will be strenuously urging Ontario to follow suit. The entire report can be found by going to www.bape.gouv.qc.ca

Turning to specific concerns regarding control and ownership of public water resources, I will make a few comments. At CELA, we analyze these issues from two perspectives, primarily:

1. Since we're an environmental law organization, what is the impact on ecosystem integrity?

2. Since we are a legal aid clinic and concerned about environmental protection for impoverished and disadvantaged communities, what is the impact on equitable access to safe drinking water?

Our analyses lead us to assert the need for a conservation-based, ecologically sustainable water management system. We advocate reduction of consumption amounts; improved efficiency and finding water for growth from the improved efficiencies. Accordingly, any ownership management system that does not accomplish greater conservation and efficiency, in an ecosystem context, is of great concern.

A very significant study of the ten largest water corporations was published in March 2000, just prior to the Ministerial meeting in The Hague where delegates from 165 governments pledged to cut in half by 2015 the number of people who lack safe water or proper sanitation. The Final Frontier was authored by Gil Yaron, and prepared for the Polaris Institute. That report highlighted several concerns that have arisen in jurisdictions that have tried some model of privatized water management, including public-private partnerships. Privatization of water management has lead, for example:

  • to increased water rates (a very common result of privatization and a concern for access to an essential human need);
  • to decisions not to meet the local water standards or not to meet previously agreed commitments to environmental standards in one case expressly because of the government stepping back in to put the lid on rate increases;
  • to lack of access to information;
  • to concerns about health and safety standards as well as environmental impacts arise when citizens cannot be assured that they will be entitled to find open information from the water system;
  • to perverse incentives (a desire to sell more water and therefore not to fix leaks and to keep or increase bulk purchase discounts;
  • to narrow perspectives with water management decisions that are not consistent with ecosystem boundaries, like river watersheds, as well as failure to include all interests; and
  • to the lack of any attempt to include or take account of First Nations and aboriginal interests in water management decisions.

The Final Frontier made many recommendations but the key one was that water and water management must remain ultimately in public control. Even where service agreements are reached the ultimate decisions and accountability must remain public. Furthermore, all such arrangements must remain reversible both legally and practically, so that they can be adjusted or replaced with an all-public system when necessary.

In Ontario, of all places, we should be able to guarantee equitable access to safe drinking water and other water resources in an ecosystem with a sustainable approach. Ironically, we have a great deal of work to do in Ontario to achieve that goal and much work to do to resist the many pressures that are working in the opposite direction.

But it's easy to come up with shopping lists. The Fraser Institute has even come up with a list of environmental indicators that have improved. Shopping lists are not the point, and whether we are doing better or worse these days at protecting the environment is not the question. We can always do better, regardless of the indicators-and we should. The question is, who is minding our investment in the environment, and therefore our health and our children's legacy?

The Final Frontier made many recommendations but the key one was that water and water management must remain ultimately in public control. Even where service agreements are reached the ultimate decisions and accountability must remain public. Furthermore, all such arrangements must remain reversible both legally and practically, so that they can be adjusted or replaced with an all-public system when necessary.

In Ontario, of all places, we should be able to guarantee equitable access to safe drinking water and other water resources in an ecosystem with a sustainable approach. Ironically, we have a great deal of work to do in Ontario to achieve that goal and much work to do to resist the many pressures that are working in the opposite direction.
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Theresa McClenaghan is a lawyer at CELA