Ecojustice Blog – Healthy communities Posted on August 21, 2013 (updated: February 17, 2015)

A refreshing win for the public interest in Ontario

Will AmosLawyer

“Water, water, everywhere and not a drop to drink.”  Although this is an ancient mariner’s rhyme, the reality is, less than one percent of the world’s fresh water (or about 0.007 per cent of all water on earth) is readily accessible for direct human use.

Canada has a relative abundance of surface and groundwater per capita, but approximately 60 per cent of Canada’s freshwater drains to the north while 85 per cent of the population lives in the southern part of Canada, within 300 km of the U.S.-Canadian border. That’s why it is critical that Canadians know what is happening to their drinking water.

That’s also why last week’s decision from Ontario’s Environmental Review Tribunal is so important. The Tribunal declared that a settlement agreement between Nestlé Canada Inc. and the Ontario Ministry of the Environment was not consistent with the purpose and provisions of the Ontario Water Resources Act or with the public interest. The Tribunal also ordered a full hearing on the matter.

The proposed settlement agreement would have eliminated certain restrictions on Nestlé’s permit to withdraw water, during drought conditions, from an aquifer in Wellington County, Ont. Nestlé currently withdraws 1.13 million litres of water per day from this well, which it then bottles and sells.

In February, Ecojustice — representing Wellington Water Watchers and the Council of Canadians — filed a submission challenging the settlement agreement, arguing that it was not in the public interest.

Ecojustice and our clients are very excited about the Tribunal’s decision, and will start preparing for the full hearing.  As we told the Globe and Mail, “This is a shot across the bow at provincial governments who are not issuing permits for water with precaution front and centre in their thinking.”

The Tribunal however, did not resolve the question of the nature and breadth of the public trust doctrine,  as we hoped it might. That said, it did not close the door to future use of the public trust either. And while the affirmation of the public trust doctrine to Canada’s groundwater remains for another day, the ruling confirms the importance of government accountability and the public interest in water allocation decisions.

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