Will Environmental Tribunal Enforce Public Trust In Water?
by Dianne Saxe, Saxe Law Office, May 22 2013
Ecojustice has intervened in an appeal before Ontario’s Environmental Review Tribunal, hoping that they will enforce a public trust in water resources.
Nestle Canada Inc. (“Nestle”) runs Ontario’s largest water bottling operation. They pump groundwater from two different sets of wells in the Guelph area. Each well requires a Permit to Take Water (“PTTW”) from the Ministry of Environment (“MOE”) in order to operate.
Nestle recently had the PTTW for one of their wells renewed by the Ministry. The renewed permit contains new conditions that require reduced water takings during periods of summer drought1. Nestle appealed these conditions to the Environmental Review Tribunal (“ERT”).
Ecojustice intervened in the appeal on behalf of public interest groups and/or local citizens with a long history of opposing Nestle’s bottled water operations in the area – the Wellington Water Watchers (“WWW”) and the Council of Canadians (“CoC”).
While the Ministry of the Environment is the main party defending the conditions, they have agreed to a settlement of the appeal. Ecojustice is asking the ERT to continue the hearing, in order to prevent any settlement agreement from weakening the anti-drought conditions. Ecojustice argues that the principles of the public trust doctrine (“PTD”) provide an additional basis for upholding the original conditions.
They argue that the PTD operates both in addition to the OWRA (as a background principle of the common law which has not been extinguished by the statutory regime), and within the OWRA itself (as a principle aiding in the interpretation of the statute’s purpose and key permitting provisions). They say:
“We live in an era of increasing pressures on freshwater resources due to population pressures, industry demands, and climate change. In such times our governments should recognize their duty to manage these resources as common resources for the benefit of the public, now and in the future.
o Freshwater resources are part of the commons. The government holds the resource in trust for the benefit of the public – now and in the future.
o Public rights to water should be given priority over private, commercial uses.
o One-off permitting decisions that approve large commercial uses without considering the long-term needs of the local community and environment could squander our endowment of freshwater.
o Water is a fundamental resource. The MOE should be lauded for the progressive conditions imposed in this case.
o Provincial governments are legally responsible for the protection of groundwater supplies. Ontario and other Great Lakes jurisdictions have committed to a precautionary approach in managing water.
o Water bottling businesses, including Nestle, must only be allowed to draw from Ontario’s public groundwater supplies under adequate conditions.”
Final submissions have been filed both for and against the motion to withdraw the appeal as part of a settlement agreement, and we await a decision from Member VanderBent. Here are the submissions of the Ministry of Environment, Nestle, and Ecojustice.