My name is Alexandre Lillo, I am a professor of law at the Department of Legal Sciences of UQAM. I am interested in environmental law issues and in particular in water governance and water management issues in a Canadian context.
My name is Marie-France Fortin and I am an assistant professor in the Civil Law Section of the Faculty of Law at the University of Ottawa. I am also the principal investigator of the University of Ottawa Forum on Water Law and Governance.
So with Alexandre Lillo, I wrote this article on the Canadian Water Agency in the General Law Review, which is volume 51, the first issue, of the General Law Review.
One of the triggers for the article was really the announcements and publications that were made by the federal government when they proposed to create a Canadian water agency, and we based ourselves on the documentation that was published, in particular a document called the discussion paper published in December 2020, in which there were fairly general guidelines for thinking about what this Canadian water agency could be. On the basis of this orientation, we proposed to look at the context of water in Canada, both in terms of water issues, but also in terms of legal issues, the legal context, and to explore the forms that this Canadian water agency could take, based once again on information published by the federal government.
We thought it was the ideal time to draw up a portrait of water governance already established in Canada, so in the first part that’s what we’re trying to do, to lay the groundwork in fact for what has already been done in terms of water governance in Canada, the bilateral and multilateral agreements that are already in force, for example. In the second part, we wanted to use the document produced by the federal government at the end of 2020 to support our hypotheses on the formation of the Canadian Water Agency, and what legal structure this agency will take.
The mission of this agency is not yet clear, there has been little official communication on what the agency would be from the federal government, there has been a lot of communication on what it could be, particularly through public consultations, so we wonder about that. The legal framework that exists today at the federal level is quite simple when it comes to water governance, it is the Canada Water Act, a law that dates back to the 1970s, which is old, which has been criticized in several respects and which has not really been modernized since then, but we have the federal water policy, which is a text that dates back to 1987 and which gives a guideline to the issue of water governance management at the federal level. Unfortunately, this policy has not really been applied and has not really been followed, even though it had the advantage of proposing fairly innovative orientations
There are two pieces of legislation at the federal level that have an indirect impact on water management and governance issues: For example, there is the Fisheries Act, which is concerned with the protection of aquatic ecosystems in certain respects; there is the Navigable Waters Act, which also allows for the protection of certain watercourses under certain conditions; and there is also potentially the Impact Assessment Act, which allows for the protection or at least the assessment of the impact of certain potential projects on watercourses, These are tools at the federal level that the government can mobilize to protect watercourses, but which do not necessarily allow for a harmonized approach or a cross-cutting approach to water protection and governance.
The role of the Canadian Water Agency in this legislative landscape at the federal level is still somewhat ambiguous, there are several alternatives, there are several possibilities that exist from a legal and jurisdictional point of view as well, it could be a fairly basic role of coordinating interdepartmental efforts, or we could consider, and legally it is possible, politically it will be much more complicated, but an agency with a mandate or powers that will bring together intergovernmental action, and then we can think of the provinces, to the territories, potentially to the municipality, to the Aboriginal communities, and this would be a very ambitious approach, but we know that the creation of intergovernmental structures depends on a significant and complicated political effort.
Several federal departments are already involved in the governance of water and an administrative centralization within the Canadian Agency would perhaps allow a better coordination in fact interdepartmental, that would be an option always by remaining at the simple level of the federal level, could also attend a really national centralization where there, constitutionally, there would obviously be some fairly important issues, but the federal government, for example, invoking its power of peace, order and good government, the national dimensions of that power, would therefore invoke this novelty if, since the Reference on Carbon Pricing, we want to establish the Canadian Water Agency and give it a constitutional legal basis, where we would really have a centralization at the federal level
It is quite possible that we could go with a much more cooperative approach, so we would no longer be at the federal level alone, but we could seek cooperation with the other levels of government, obviously the provinces, but we could be much broader and creative and seek out several other players who are involved, such as local players, the municipal actors, obviously the Aboriginal governance structures where there would be an effort either through different multilateral agreements, or outright through laws so a federal law and corresponding provincial laws that would therefore come to create this Canadian agency where really all would act in a much more harmonious way in the governance of water.
The Constitution does not grant anyone specific jurisdiction over water, so the heads of jurisdiction listed in the Constitution do not mention water, and obviously each of the two levels, i.e. federal and provincial, will have a say in water governance, so at the federal level, for example the jurisdiction in criminal law could be invoked as we were talking about the national dimension, so the national interest dimension, but we could also think about the jurisdiction that the provinces have in terms of water governance. They own beds, rivers and lakes. They also have the power to create municipalities, which they have done, and to delegate to them important powers in the area of drinking water, including, for example, the distribution of drinking water, but also zoning regulations to provide for flood plains, etc.
So both levels of government are constitutionally empowered to legislate for water governance. If the federal government chose the option of a unilateral centralization on its part with really what I called in the article a constitutional coach or push? The concern is that even in the Carbon Pricing Reference, the Supreme Court, yes, is making a development in the area of peace and good government on the basis of the national dimension, The concern is that even in the Carbon Pricing Reference, yes, the Supreme
Court is making a jurisprudential development, but it is still identifying a limited scope, that is to say, that the means used or involved in the legislative regime established is really central to the objective that is being tried to be achieved, and in the Carbon Pricing Reference, for example, it was the minimum threshold for the emission of greenhouse gases. I think that there are problems that would be quite obvious if we chose the much more cooperative mode with the provinces as long as we follow the teachings of the Supreme Court and particularly the judgments it rendered concerning the creation of a Canadian Securities Commission. So I think that if we follow this path of truly cooperative federalism, there may be doors that will be a little more open, to ensure effective governance, especially in light of the climate crisis that awaits us.
We are fortunate in Canada to have a lot of water, to have very large water reserves, but this is something that must be put into perspective. There are issues of access, such as the shortages we are experiencing in certain regions of the prairies, and pollution issues, particularly in the Great Lakes. It must really be put into perspective and the fact of creating this kind of structure and thinking about how it can be integrated into the Canadian legal system will really allow us to create a safety net and to manage these different issues that can and do exist, but that will develop and become increasingly important, especially when we think of the impact of climate change. The political and legal issues will go hand in hand, here I think, to serve the public interest. The climate crisis affects us all, it will impact future generations and well, we must hope that on the political side there is this will to make water governance work much more effectively.