The Province: B.C. should enshrine ‘public trust’ principle to protect its groundwater, says Michigan water lawyer

Read the full article in The Province here

Nestle - Laurence Gillieron, APAmid growing controversy around B.C.’s lax groundwater regulation, an American lawyer who waged a 10-year winning court battle against Nestlé is watching to see how the province modernizes its century-old Water Act.

The Province’s reports last week on Nestlé and other companies extracting B.C. groundwater without regulation caught the attention of Michigan environmental lawyer Jim Olson, who offered his views on the matter.

Olson is no stranger to these issues. In 2010, he was awarded the State Bar of Michigan’s Champion of Justice award for the decade-long court battle he waged on behalf of Michigan citizens against Nestlé.

The case of Michigan Citizens for Water Conservation vs. Nestlé began in 2000, when activists grew concerned the government was not adequately monitoring or controlling Nestlé’s water-taking practices in the region.

Representing the citizens, Olson won the case, resulting in Nestlé being ordered to reduce its water withdrawals during low-flow seasons.

Now, Olson says he’s watching B.C. But beyond the specific details of B.C.’s proposed water regulation — the price charged per million litres, the number of litres allowed, how much to allocate to different users, and so on — Olson says one vital piece of any new legislation is a broader legal concept: the public trust.

“This is true in both the United States and Canada, both states and provinces, no matter what water regime you choose … it’s going to be very important for each province to declare water a public trust,” Olson said from his law office in Michigan.

The public trust concept essentially means water is a public resource owned by the people of Canada, with the government acting as a trustee responsible for taking care of the resource.

“It’s a very important principle, even if it’s a one-paragraph declaration,” Olson said. “It would operate as a shield against unforeseen claims and unforeseen circumstances.”

Olson gives a hypothetical example: if, at some point in the future, B.C.’s water resources were depleted significantly, the government might ask a bottled water company to reduce their water takings accordingly. But without the public trust doctrine enshrined in legislation, it would be much more difficult to make that company reduce its consumption, not unlike Olson’s court case against Nestlé in Michigan.

The public trust doctrine is becoming increasingly common and established in modern water legislation, said Oliver Brandes, a water expert from the University of Victoria’s faculty of law. The legal concept is more evolved in several American states, and has been incorporated into environmental legislation in some parts of Canada, including Yukon, Northwest Territories, and Quebec.

The public trust concept acknowledges that water is different from other resources, said Brandes.

“There are certain resources that are just so special, because life depends on it,” Brandes said. “Something like oil and gas, it isn’t crucial to life. But water, you have to protect it for everybody, because if you take it away, there is no substitute.”

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