Seven Deadly Sins of Canadian Water Law

Abstract:     
An ideal legal regime for the governance of water quality would include the following: clear and enforceable obligations on the part of government for the provision of clean water; citizens' rights to the supply of such water; and an ecologically sound approach to the protection of water quality. In Canada, water law has none of these things. Instead, it has at least seven flaws: (1) citizens have no legal right to clean drinking water, and government liability for failing to provide clean water is limited; (2) governments are either reluctant or unable to strictly enforce environmental standards; (3) water management is characterized by an unclear and complex division of powers and responsibilities distributed among three levels of government; (4) water quality is controlled by government, arguably the worst polluter in the country; (5) standards for drinking water are not based upon the precautionary principle; (6) water laws do not protect ecological units such as ecosystems or watersheds; (7) the approach to water management is predominantly remedial, not preventative. This article proposes three steps to mitigate the flaws in Canada's water laws. The first is the creation of the right of private persons to require provincial governments to provide drinking water to prescribed standards. The second is the development of drinking water standards that are based upon the precautionary principle - standards that prohibit all contaminants except those specifically identified. The third is the separation of the function of developing standards from that of achieving them. These three changes would vastly improve the quality and dependability of drinking water in Canada.

Keywords: water law, precautionary principle, government liability, environmental rights, environmental management, judicial review

JEL Classification: K32, K13

Accepted Paper Series