Bottled Water Proposal Raises Both Common Sense and Legal Questions
Well, we’ve waded into another controversy over water. You may have read me quoted in the
Globe and Mail or the
Times Colonist expressing concern about bottled water operations proposed for the Bute, Jervis and Toba Inlets on BC’s mid-Coast.
The operation is unusual – unique is probably a better word – in
that it involves water licences, and Crown land leases, for at least 34
different streams in 4 different largely pristine inlets. Each licence
is for the purpose of bottled water and almost all of them are for the
extraction of 112.5 m3/day of water per day.
The bottled water project is a proposal by the
Kwiakah First Nation, working with a numbered company, 0879144 BC Ltd. There are also a series of water licences applied for by the
Da’naxda’xw First Nation
in respect of Knight Inlet, which appear to be related to the overall
project. The Nations say that they need this project to help them
achieve economic self-sufficiency, and, despite a general distrust of
bottled water held by most environmentalists, West Coast has no desire
to throw up unnecessary obstacles to their meeting that goal. But there
are unanswered environmental questions about this project – both from a
legal and a common sense point of view.
The importance of the big picture
The
project first came to light after Arthur Caldicott, a researcher
investigating the bottled water industry in BC for the Watershed
Sentinel, came across a December 8
th, 2010 advertisement in
the Campbell River Mirror inviting the public to comment on 7 licence
applications (and associated leases of Crown land) proposed for water
bottling for the Bute Inlet. After a little digging he later found that
another advertisement had been published the same day in the Powell River Peak in respect of 9
other
licences and Crown land leases, also for bottled water, on the Toba
Inlet. Apparently there was another ad published around the same time in
respect of 8 applications in Jervis Inlet. We have since learned that
a similar ad ran about still more water applications by the Kwiakah Nation in Bute Inlet early last year.
Arthur Caldicott has mapped all current and proposed bottled
licences in the province (based on available data), and it’s hard not to
be alarmed by the
sheer number of licences being applied for on these four inlets
by the Kwiakah, Da’naxda’xw, or 0879144 BC Ltd. If all of the water
applications that are currently proposed by these proponents were
granted and used to their full extent, the total amount of water which
could be taken is a little more than 3,800 m
3/day or
3,800,000 litres/day, or 1.3 billion litres/year! Despite his best
efforts to find out more from the project proponents, there was no
information forthcoming on whether the licences were going to be used to
their full capacity or if some lower amount of water was going to be
taken.
View Water - Bottle Sales in a larger map
I learned about the project on January 27
th – the day
before the deadline for the public to comment on 24 of the applications
were set to end. At Arthur’s request, I immediately
wrote a letter to the Ministry of Natural Resource Operations (MNRO)
asking for an extension of this deadline, and that the public be given
information about the overall scope of the project, rather than
information on individual water licences.
[I]t seems clear that the public has been consulted about the wrong
project – or at least an incomplete project. The environmental, social
and cultural impacts cannot be commented on meaningfully at the
licence-specific level, or even at the inlet level. The impacts of any
individual licence may well be nominal, but the project as a whole may
nonetheless have a significant regional impact. …
The Proponent maintains that this project is being designed in a
way that minimizes its environmental impacts. Despite the inherent
environmental problems associated with the bottled water industry, this
may well be the case. However, the optics of breaking up the project in
this way, and inviting public comment on only individual pieces of the
project in isolation, does not encourage public confidence.
I have not yet received a reply to that letter. Subsequent to my
letter to MNRO, the Friends of Bute Inlet, Sierra Club Quadra Island,
Sierra Club Malaspina, the Sunshine Coast Conservation Association and
the Campbell River chapter of the Council of Canadians
called on Murray Coell, BC’s Environment Minister, to call an environmental assessment of the project. Contrary to
some reports
West Coast was not among the groups calling for an environmental
assessment, but I or my letter (which was referenced in the press
release from those groups) was quoted in a surprising number of the
resulting media stories.
Voelker said one skiff will work in an area where there
are several licences and will take water from each stream and transport
it to a barge. … Multiple licences are needed because the skiff needs
the flexibility to move around different streams or waterfalls based on
conditions, Voelker said.
Water will probably be taken from only a handful of streams each
day, he said. Most applications are for 112,500 litres per day from each
stream.
This underscores the need for more disclosure, and public
consultation, about the scope of the project as a whole. While as a
practical matter it’s reassuring to know that there are no plans to take
the full 3,800 m3/day that would be allowed under the licences (if all are granted), a number of important questions remain unanswered:
- How much water will be taken in each inlet? How many
skiffs and barges will operate per inlet and how many streams can they
visit onto the barge in a day? How many collectively for the
whole project?
- How will the project identify which streams/waterfalls will be
visited on a daily basis? What “conditions” are relevant to this
decision and how will they be evaluated?
Can you do that under the Water Act?
But Mr. Voelker’s comments also raise an important legal question. Under the
Water Act the province
can issue licences for water that is “beneficially used,”
giving the licensee the right to use that water before any other future
water user. Essentially the concept is that water is available on a
first-come-first-serve basis, but licensees can’t just sit on rights to
use water without actually using it for some economically, socially or
environmentally useful purposes.
While taking water for bottling is considered a beneficial use, the
fact is that according to Mr. Voelker the bottled water operation being
considered is actually going to take much less than the about 3,800 m3/day
contemplated collectively by the proposed 34 licences. In one interview
he mentions 3-6 streams per day as a possibility. 6 streams would
amount to about 675m3/day. This means that the project as a whole will use less than 20% of the flow that they could legally use – with over 3,000 m3/day of water which could be to be removed under the proposed licenses not being used.
That 3,000 m
3/day is not available to other future water
users under different licenses. The government is currently proposing
that new rules to recognize and protect environmental flows in streams
will not apply to water already covered by existing licences. And should
the government in future adopt water markets (
a controversial proposal) the proponents with the rights to use that 3,000 m
3/day would be free to trade this surplus water at a profit.
In short, that 3,000 m3/day will potentially not be
beneficially used. While licences rarely involve proponents taking their
full allocation all the time, the Water Act does not contemplate
licences under which 80% of the flow in a licence is generally unused
simply in the name of flexibility. In our view it would not be
appropriate under the Water Act for the province to grant a licence in respect of such a large volume of unused water.
Mr. Voelker says that the proposal needs “flexibility” to determine
where it will gather water on a given day. It’s really not clear
exactly why he thinks that the bottled water operations need this
flexibility; again details at the project specific level are
required. But assuming that there’s a genuine reason why access to
multiple streams is desirable, this flexibility cannot involve applying
for massive amounts of water that they don’t actually intend to use. Two
possibilities occur to me:
- First, the licences could express the expected use of water in
terms of amounts per month, or even per year, recognizing that
there is no intention to use the water in any given stream all the
time, but only on an occasional basis. It should be possible to
estimate, based on the overall project plan, what portion of water
is likely to come from which stream, and include a reasonable
estimate of the water required. This type of licence should
also include a maximum daily rate to prevent excessive short-term
exploitation of a single stream.
- Second, a single licence might cover water use from several
different streams. For example, one licence might cover all the
streams identified for extraction on the Bute inlet and specify (if
that is consistent with the project’s plan) that 2 skiffs might
take up to 450 m3/day from the 15 streams (not to exceed 112.5 m3/day
from any one stream). The licence could then give direction as to
how the streams were to be selected or related to the operation of the
skiffs, etc. This solution has a potential legal problem of its
own – Water licences need to be associated with land in the
immediate geographic vicinity of the water body. It is not
immediately clear whether a geographically wide licence of this type
might be attached to a single piece of land in the area, or to
multiple Crown grants.
Either of these approaches requires the proponent to define key
aspects of their overall project plan and to make it available to the
government and the public. Consultation could then occur at the
appropriate level.
We don’t know if an environmental assessment of this project is
required or not. But clearly full disclosure and public consultation of
the details of the full project is required. And to date that has not
happened.
22 February, 2011
By Andrew Gage, Staff Lawyer
