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How to protect water in B.C. from Nestlé, fracking and misuse

In B.C., public and media attention has been focused on water pricing and Nestlé’s water takings. In February, the B.C. government released water rates which ranged from $0.02 to $2.25. The rates, which take effect January 1, 2016 when the new Water Sustainability Act comes into force, are the lowest across any of the provinces in Canada.

There has been an overwhelming amount of public backlash against the low rates, particularly with Nestlé only being required to pay $2.25 per million litres, a total of roughly $600 per year for the 265 million litres they draw from a well in Hope.

(Photo of Fraser River in Hope, B.C.,CC BY-NC-SA 2.0 Junichi Ishito modified)

After SumOfUs and the WaterWealth Project delivered over 225,000 signatures for a petition calling for increased water rates, the B.C. government surprisingly agreed to review the water rates.

The increased public awareness about Nestlé’s and other water takings is incredible and it is encouraging to see the B.C. government respond to public opposition.

However, while there are key strengths and major improvements in the Water Sustainability Act (WSA), including the start of regulating ground water, there are parts of the act that are still very problematic. The WSA could end up prioritizing permits held by fracking, mining or bottled water companies like Nestlé over municipalities, small farmers or other community water uses because it is still based on the ‘first in time first in right’ (FITFIR) system. The permits that will be issued to groundwater users will be for an indefinite period of time. And this is where the risk of NAFTA, the Canada-EU Comprehensive Economic and Trade Agreement (CETA) or other trade agreements comes into play.

FITFIR, indefinite water permits and NAFTA

Andrew Gage, a lawyer from West Coast Environmental Law, recently wrote that “there is room to increase water rates dramatically without running afoul of NAFTA or other trade agreements.” He argues for getting the price right now and adds that, “Arguably it is only once the water pricing structure is legally enshrined that future changes might amount to an “expropriation” worthy of compensation.”

Despite several improvements of the Water Sustainability Act, it still contains FITFIR as a way of allocating water which gives priority to the oldest licence, regardless of the purpose of the water takings. On the WSA website, the B.C. government notes, “During times of water scarcity, licences with the earlier priority dates are entitled to take their full allocation of water over the junior licences.” It is unclear which water users will get water permits first when the WSA comes into force in January 2016. However, if fracking, mining or bottled water companies like Nestlé get earlier permits  than municipalities, small scale farmers or other community water users, we could see a scenario where the former permits are honored while the latter water users are told they can’t draw water.

Water permits will also be for an indefinite period of time. The WSA notes there could be a review after 30 years but there is no requirement in the Act that a review occur, only that no review will occur before 30 years. The fact that several regions in B.C. are under drought restrictions should raise red flags about the province issuing indefinite water permits to bottled water, fracking or mining companies.

And here is where the risk of NAFTA, the Canada-EU Comprehensive Economic and Trade Agreement or other trade agreements comes into play. If the B.C. government has to revoke any of these permits down the road because of increased drought conditions, these companies could launch a trade challenge and sue for compensation.

Community consent

Today, most of B.C. is on unceded Indigenous territory. Several clauses relate to water protection in the UN Declaration of the Rights of Indigenous Peoples. Article 32(2) specifically notes: “States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.” The B.C. government must obtain free, prior and informed consent for every water taking permit that is on Indigenous territory.  

In Ontario, a public comment period is triggered for every application for a Permit to Take Water. The Environmental Registry in Ontario posts information on proposed new laws, regulations, policies and programs as well as air and water permits. Ontarians can submit comments on permit applications or proposed changes. B.C. also needs a public comment process for all water takings to better engage people in B.C. to ensure they are properly informed and consent to water takings in their watershed and the rest of the province.

Should Nestlé, fracking and mining companies be allowed to withdraw water?

Debbie Moore, president of Nestlé Waters Canada, has agreed that commercial and municipal groundwater users should pay their fair share in her recent opinion piece.

Yet we should be asking ourselves what industries should be allowed to withdraw water? Do we want bottled water companies like Nestlé, fracking companies or other polluting industries withdrawing water in a province that is already experiencing drought? By relying on water pricing to regulate industries, we are ignoring our responsibility to answer this question.

The District of Hope is already experiencing Level 4 drought conditions (extremely dry). The Province reported that Nestlé’s well draws from an aquifer relied upon by about 6,000 nearby residents in Hope.

If we can learn anything from the water crisis in California, we should be limiting the type and amount of water withdrawals.

There are costs associated with water protection and community management of water though funding to implement the WSA should also come from tax revenue and increases in corporate taxes and not hinge solely on water fees. But we do not have to – and should not – consent to water being bottled and exported out of a region nor should we consent to water being used for polluting industries like fracking or tar sands development projects. For these industries, we do not have a drop to spare.

Water is a commons, public trust and human right

Water is a commons to be shared, protected, carefully managed and enjoyed by all who live around them, as Maude Barlow has explained. Surface and ground water should be declared a public trust which will require the government to protect water for a community’s reasonable use. Under a public trust doctrine, private water use would be subservient to the public interest. Water could not be appropriated or subordinated for private gain.

In July 2010, the United Nations General Assembly confirmed the Human Right to Water and Sanitation. This internationally binding resolution must be recognized at every level of government. The recognition of water as a human right gives communities lacking access to clean drinking water a legal tool to exercise this right. It also provides legal recourse if a water source is damaged by industrial activities.

Our Water Future

The list of once-water rich regions now experiencing drought is getting longer. São Paulo, Brazil is experiencing severe water shortages despite Brazil once being one of  the most water rich countries around the world. The California drought has made international headlines because people in California are being forced to reduce their water use while bottled water, fracking and Big Agro companies continue to pump water. People in Taiwan, whose water has been handed over to the global electronics industry, are also being asked to reduce their water use.

Drought puts a spotlight on the power dynamics that exist within a community and globally and exacerbates them. It can allocate access to water along race, class, gender and other divisions. Canada and all provinces need a water governance system that addresses these power dynamics.

Maude Barlow recently wrote, “We humans have used the planet’s fresh water for our pleasure and profit, and created an industrial model of development based on conquering nature. It is time to see water as the essential element of an ecosystem that gives life to us all, and that we must protect with vigor and determination. We need to change our relationship to water, and do it quickly. We must do everything in our power to heal and restore the planet’s watersheds and waterways.”

She adds, “In practice, this means we need a new ethic that puts water and its protection at the center of all of the laws and policies we enact. The world would be a very different place if we always asked how our water practices – everything from trading across borders to growing food and producing energy – affect our most valuable resource.”

Therefore, while we applaud the advances made in the WSA such as Water Sustainability Plans and the consideration of environmental flows, here are some additional points and changes we would like to see included in the Act before it comes into force in January:

  • Scrap the First In Time First In Right provision in which older water-taking permits take priority over new permits; give priority to household and community use

  • Limit the length of the water permits from one to five years depending on the purpose

  • Recognize Indigenous rights and title as stewards of their territories

  • Base the WSA on water as a human right, commons and public trust

  • Properly regulate large-scale water users and charge appropriate fees for their water-takings

  • Ban or limit water takings from the bottled water industry and water-intensive industries such as fracking and certain types of mining (a plan to transition off of fossil fuels and extreme energy sources must be developed outside of the Water Sustainability Act and include a strategy to develop green jobs)

  • Recognize a community’s right to refuse a project that abuses or pollutes their water

  • Create a public comment process to all water taking permits, similar to the Ontario Environmental Registry, and ensure comments are incorporated in the final decision

These additional changes must be included in the WSA in order to ensure that water is properly protected for our ecosystems, wildlife and generations to come.