Water, Water Everywhere – But Did You Get Permission To Take It?

Canada: Water, Water Everywhere – But Did You Get Permission To Take It?

15 December 2009

Fraser Milner Casgrain LLP / Article by Jan-Martin LeBlanc and Pierre Langlois

Québec had a wet summer this past year. While washing out many picnics, the steady rains also replenished our ground and surface water reserves. Although Québec is blessed with abundant water resources, there is wide consensus on the necessity to protect such a critical resource. The Québec legislature has adopted over the past few months new water legislation which will potentially have an impact on businesses. The following summarizes the new regulatory scheme introduced by the Water Act and the Regulation respecting the declaration of water withdrawals.

A New Water Regulatory Regime

The unanimously adopted Act to affirm the collective nature of water resources and provide for increased water resources protection, or Water Act, introduces several mechanisms for protecting and managing water resources. The Québec National Assembly adopted the law June 11, 2009, but had not yet announced the law’s effective date at the time of writing. The Act’s highlights include:

  • civil recourse for the Attorney General to order reparation of any damages to water resources,
  • a new regime for authorizing water withdrawals,
  • acknowledgment that water is a collective resource and part of Québec’s common heritage,
  • water governance rules based on integrated and concerted management of designated hydrographical units,
  • a new water knowledge office, and
  • prohibitions against transferring water outside of Québec that only the government may waive and only for public interest after public consultation.

The Act’s broad civil recourse provisions will have a substantial impact on potential civil liability of companies whose activities are likely to alter the quality of surface or ground water. Basically, in addition to any penal environmental recourse, the Attorney General may commence proceedings for repairs to any water damage caused by or through a person’s fault or illegal act. Under the new law, a company that causes damage to water is liable regardless of intention, carelessness or negligence. Rather, the simple fact that the company caused the damage is enough to establish liability. The Act’s no-fault regime departs from the general civil liability scheme that requires proof of fault. Moreover, unlike cases of environmental regulatory violations, offenders will not be able to raise a due diligence defense to escape liability.

All kinds of water damage are subject to civil recourse under the Act’s broad language. Damage covered includes any degradation of water resources’ physical, chemical, or biological features or ecological functions as well as change in quantity. Offenders may be ordered to restore the resources to their original state, repair through compensatory measures, or pay a lump sum as compensation.

In contrast to other recourse under the civil code that requires complaints be lodged within three years, the new water law only requires the Minister to take action within ten years of the date when the Minister first knew of the damages.

So, to avoid liability under these new provisions, companies will need to pay close attention to the consequences their water activities cause, avoid altering the quantity, and keep from damaging the quality of surface and ground water.

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