Canada without the commons: federal gov’t undermining water protection

This is an op-ed I wrote that was published in The Mark News yesterday. I’ve included pdf attachments (on Ripl’s 2003 essay and a legal backgrounder from Ecojustice) and embedded videos in this version where possible.

Canada Without the Commons

Jeremy Schmidt

Post-doctoral fellow, Harvard University.
Published: November 5, 2012

Back when excessively complicated legal documents were bound together with red cloth, “cutting through the red tape” became shorthand for reducing unnecessary complexity. Today, in the shadows of successive federal omnibus budgets that “streamline” laws on fishing and navigation, Canada is rapidly cutting through its green tape – the complex mesh of social and ecological relationships supported by water, which are vital to Canadian society and its economy.

While red tape is expendable, green tape is necessary. Yet, cuts to both typically work to the advantage of those with power and at the expense of most everybody else. In this sense, the idea that waters for fishing and navigation are part of a shared commons has often served as an ethical placeholder for a much deeper empirical fact: We are bound together by the water that supports our social and biophysical communities. And this makes the current assault on water – the lifeline of our bodies, and the bloodstream of the biosphere (Ripl 2003)– a particularly negligent move by any who could stop it: legislators, senators, or Canada’s governor general.

Waters for fishing and navigation have been part of a common law heritage across many societies since late Roman times. But the proposed amendments to Canada’s 1882 Navigable Waters Protection Act will mean that the total protected water in Canada will go from nearly nine per cent of the total global supply of freshwater to 62 rivers and 97 lakes. These changes are a continuation of the dramatic changes to Canada’s fisheries laws accomplished this spring. Together, these omnibus bills result in a Canada without a commons, and ignore the fact that protecting water is not an option, but a necessity, for a healthy economy and a flourishing society.

Since the late 1960s, environmentalists have warned about a tragedy of the commons. But they always had something very different in mind: They expected that, without checks on profit maximization, individuals would keep taking more for themselves until the carrying capacity of an ecological system was exceeded and the shared resource base collapsed. In classic Greek style, the early arguments regarding such tragedies saw humans as locked into purely self-seeking behaviour where their fate is cast. More recently, there have been numerous studies of how communities create and foster rules that stop individual behaviour short of collective demise. But the collapse of Canada’s commons is no tragedy. It is not the outcome of personal proclivities, but of a political pen. In fact, 90 per cent of the water that remains protected under the proposed changes will lap against the shores of Conservative ridings.

The choice to abdicate jurisdictional oversight for the water commons at the federal level is one thing. To do so without consulting, or presenting the opportunity to, other levels of government or First Nations who may not be so cavalier about stewarding water is another. Problematically, as Green Party leader Elizabeth May has pointed out, other levels of government are limited in how they may fill the void left as the Conservative government ignores its constitutional responsibilities, because of the way the division of powers operate between different levels of government. So, as the Conservative party crusades against the commons, the best counter appears to be from society itself: the mothers, fathers, health-care providers, and everybody else who recognizes the wisdom in protecting our waters, and who expects the federal government to execute its constitutional duties as a requirement of democratic legitimacy.

There are two possible reasons for the government’s decisions, and they both fail. The first is that a constitutional holiday is needed because of strict, overbearing environmental laws. But Canada’s water laws are decidedly weak, and its capacity to develop evidence-based policies is weakening: Canada is one of the only developed countries in the world without drinking water quality standards (we like “guidelines”). Canada has no national water strategy, even though expert groups have been seeking one for years to stem policy gaps, and after the 1987 Federal Water Policy went nowhere. As of Sept. 30, 2012, there were 116 First Nations communities under drinking water advisories. And the government has recently pulled the plug on its Experimental Lakes Area, a unique world-class facility for developing policies based on evidence at a cost of around $2 million per year. Rick Mercer dedicated his Oct. 30 rant to water, noting that shutting the ELA down will cost around $50 million.

A second possible reason is that perhaps the Navigable Waters Protection Act (NWPA) was never about water itself, but about navigation. This is also false. As Ecojustice has noted [in this NWPA_legal_backgrounder] the Supreme Court of Canada ruled in a case over the Oldman Dam controversy in Alberta that the NWPA is “aimed directly at biophysical environmental concerns that affect navigation” and particularly so because of “the broader common law context in which it was enacted.” In that broader context, Jason Unger of Alberta’s Environmental Law Centre has suggested that litigation may be possible to challenge the proposed changes in the courts.

Once water is seen in the broader context of common law, Canadians should also be concerned with the moral audacity of a six-year-old government acting against the collective wisdom accrued through centuries of protecting common waters. Furthermore, the Conservatives are undercutting water protection at a time when other countries are increasingly prioritizing water. Just last month, U.S. Secretary of State Hillary Clinton declared water a security issue for the U.S. The European Union’s Water Framework Directive states as its first principle that, “Water is not a commercial product like any other but, rather, a heritage which must be protected, defended and treated as such.” And in New Zealand, a river was recently granted legal status as a person. So, while other countries are prioritizing their most precious resources, Canada is going against the current.

How should we prepare for a Canada without the commons, and for policies that cut through the green tape of ecological complexity that support our society and our economy? We should push provinces to maximally execute their constitutional powers in the protection of water. This will not solve federal problems, but it will further lay bare the failure of MPs to represent their constituents while fortifying what we can of our democratic heritage. Thankfully, many provinces and territories already have water strategies as a place to start from, and B.C. is even in the midst of modernizing its water law.

A second lever to pull would be to create democratic pressure elsewhere, such as in the urban municipalities, where 80 per cent of Canadians live. It is these places, particularly the rural municipalities that support our large energy sector, where the downstream costs of failed water protections – costs that will be borne by taxpayers – will be felt acutely as water treatment becomes more costly. Some movement is already afoot on this front, such as with the Alberta Urban Municipalities Association’s recently released water policy. Canada’s senate has taken up water-related concerns in the past, and the governor general should also hear the voices of Canadians.

Finally, what should the message be? Canadian water experts are calling for a new water ethic to replace policies that do not respect water’s constitutional role in sustaining our lives and livelihoods. This new ethic would introduce norms that reflect our interdependence and shared responsibility to steward water for health and well-being. And in this process, we do not need to start from scratch. We can draw on the lessons learned in Canada and abroad regarding how to govern shared resources. Many of these are the outcome of treating water as a common resource, so the current plan to abandon that path without an alternate framework is unacceptable.

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