Law Times

Law Times • November 22, 2010 FOCUS Water a 'hot topic' Government seeks to harness key natural resource BY JULIUS MELNITZER For Law Times I t's something we all take for granted, but now the pro- vincial government is look- ing to turn our experience in developing water infrastructure into a growing economic asset. "Water is a hot topic across Canada, so much so that it's likely to be the next wave of government stimulus," says Dennis Mahony of Torys LLP's environmental, health, and safety practice group. In May, the Ontario govern- ment introduced the water op- portunities and water conser- vation act aimed at three key outcomes: making Ontario a leader in developing new tech- nologies for water conservation and treatment domestically and internationally; creating an integrated approach to wa- ter-infrastructure planning to achieve long-term sustainabil- ity; and helping Ontarians to use water more effi ciently. "Th e legislation is not long on details and only represents the thin edge of the wedge of gov- ernment policy," Mahony says. "Th e intention was to make wa- ter policy a subject of pre-election discussion, and if the Liberals are re-elected, to take their success as an endorsement of the principles in the act." Th e government's reluctance to discuss details at this point stems from the fact that water is a very sensitive political topic. Th e key issue — one that will cer- tainly aff ect ratepayers' bills — is how to price water and obtain full cost recovery so as to attract private investment. As of 2005, experts estimated Canada's water infrastructure required a $34-bil- lion capital infusion by 2020 to meet the needs of the system. "If there is any industry that could bring in private invest- ment, it's the water sector," Ma- hony tells Law Times. "And it's pretty clear that the Liberals are cautiously attempting to move forward on that policy front." Just how cautiously is evi- dent in the fate of the Sus- tainable Water and Sewage Systems Act enacted in 2002. Fundamental elements of that statute, including a framework for implementing full-cost ac- counting and recovery for wa- ter and sewer services, remain unproclaimed. Nevertheless, the water op- portunities act seeks to make On- tario a global leader by creating a Recruiting? Visit Us Online 1/3-3X.indd 1 Post your position on GREAT RATES. GREAT REACH. GREAT RESULTS. Contact Sandy Shutt at sshutt@clbmedia.ca for details. www.lawtimesnews.com JobsInLaw 1/4 pg 5X.pdf 1 11/10/10 12:02:13 PM 9/27/10 2:53:03 PM partnership of internationally recognized experts in water tech- nology, researchers, and innova- tors under the rubric of a water- technology acceleration project. Th e project's goals would be to help bring innovative water solu- tions developed in Ontario to do- mestic and international markets, thereby creating jobs. Th e legislation also proposes to help municipalities improve their infrastructure and ser- vices by seeking innovative and cost-eff ective solutions to water challenges such as conservation, optimizing systems, and imple- menting new and emerging Ontario water technologies. To reduce residential water use, the law contemplates bring- ing in water-effi ciency labelling similar to what happens with the U.S. WaterSense programs for appliances and products such as faucets, shower heads, and rain sensors. Th ey tend to be about 20-per-cent more effi - cient than average products. Th e legislation would also al- low the government to require standardized information about water use on utility bills. If it's passed, the new water Drinking Water Act, Ontar- io has the Clean Water Act, passed in 2006. "Th e Clean Water Act su- persedes other planning legis- lation and gives pre-eminence to protection of the resource," Dahme says. Indeed, the Clean Water 'Each of the provinces has legis- lation prohibiting bulk exports, but there is no overriding fed- eral legislation in this area,' says Harry Dahme. opportunities act would con- tinue a trend that has marked Ontario as a water policy lead- er. "Th e Walkerton disaster and the changes to the legisla- tion that ensued put Ontario at the forefront in Canada," says Harry Dahme of Gowling Laf- leur Henderson LLP's Toronto offi ce. Quite apart from the Safe Act mandates a comprehensive scheme of water inventory and assessment, including a reason- able allocation of use and anal- ysis of water-quality criteria and treatment. Users seeking more than 50,000 litres daily must assess the impact before obtaining permits. "Th ere's more and more con- troversy around the issuance of these permits and more and more opportunities for lawyers to participate in the process," Dahme says. On the federal front, the governing Conservatives intro- duced bill C-26 in May. It con- templates amendments to the International Boundary Waters Treaty Act and the Internation- al River Improvements Act. "Each of the provinces has legislation prohibiting bulk ex- ports, but there is no overriding Get more online lawtimesnews.com canadianlawyermag.com federal legislation in this area," Dahme says. Th e most recent amend- ments to the Ontario Water Resources Act, for example, implement an agreement with bordering U.S. states that pro- hibits large-scale diversions and intra-basin transfers. Th e federal legislation, if passed, would strengthen regu- lations prohibiting the export of water resources from Cana- da to the United States. It gives authorities new enforcement and inspection powers and im- poses fi nes of up to $6 million for corporate violations. Critics say the legislation doesn't go far enough. Many would like to see a more com- prehensive strategy that would recognize access to water as a human right. Th ey also ar- gue the amendments actually weaken the law by allowing exports of water in packaged form, such as beverages, to a limit of 50,000 litres daily. Finally, critics note bill C-26 covers only boundary and transboundary waters and doesn't apply to water resources in the North. LT PAGE 13 Fresh Canadian legal news and analysis every week Canadian Lawyer | Law Times | 4Students | InHouse

• Cover
• Libel Ruling Appealed
• Double-dipping
• Focus On Environmental Law