Our water is a public trust

Opinion

Hey there, time traveller!
This article was published 24/11/2015 (3072 days ago), so information in it may no longer be current.

Mono Lake sits in the shadow of California’s Sierra Nevada mountains, 450 kilometres north of Los Angeles. It teems with brine shrimp and blackflies, sustaining millions of migratory birds. Although the lake is saline, the streams that enter it are not. Since the early 20th century these streams have been diverted to provide potable water for southern Californians. Humans need water, and surely the needs of people trump birds and brine shrimp. Or perhaps not.

In the 1970s, ecologists began documenting the damage to Mono Lake, and it was substantial. The lake level had fallen by half with dramatic effects for local wildlife. Breeding birds abandoned the site. Migratory birds lost an important staging area. This led the National Audubon Society to file a lawsuit against the water utility. At issue was the ecological harm arising from the unsustainable removal of water entering the lake. The case ended up in the California Supreme Court, and the decision was remarkable. Birds and brine shrimp won the day.

Audubon Society lawyers invoked the ancient concept of the public trust doctrine. It dates back to sixth-century Rome and Emperor Justinian who declared:

“By the law of nature these things are common to mankind — the air, running water, the sea, and consequently the shores of the sea.”

A version can be found in the Magna Carta in which King John was prohibited from blocking navigable waterways with fish weirs. Ever since, the public trust doctrine has been embedded in the common law of countries spanning the globe.

Under the doctrine, some natural resources — navigable lakes, rivers and oceans, and the land beneath and beside them — are preserved for public use. The state holds these in trust for current and future generations. At its narrowest interpretation, navigation, commerce, transportation, fishing and recreational uses must be maintained and cannot be sacrificed even for compelling economic interest.

The public trust doctrine was introduced to the United States in the 19th century when the state of Illinois granted much of the land beside and under the Chicago harbour to the Illinois Central Railroad. The courts overturned this decision, ruling the state did not have the right to transfer title to the submerged land.

The public trust doctrine has not yet made its way to Canada, but that time may have arrived. It has an obvious application in Manitoba, where a powerful utility — Manitoba Hydro — maintains hegemony over much of our water resources.

Given the nearly inexhaustible capacity of Manitoba Hydro to defend its interests against the public with an army of lawyers, engineers, biologists and accountants — as was on recent display in Clean Environment Commission hearings — the current regulatory framework clearly lacks balance.

The 10th-largest lake in the world has been transformed into a reservoir to generate hydroelectric power. Keeping the lake high and stable is good for the Manitoba Hydro balance sheet, but destroys coastal wetlands vital to fish, wildlife and water quality. Water management by Hydro alters the natural flow and cycle of water. Endangered sturgeon find rivers blocked by dams; beach-nesting piping plover find breeding sites submerged.

It should not be the job of the utility to decide what the balance between economic gain and ecological value should be. But that is the de facto situation.

Even our elected government faces a conflict of interest as it uses the revenue from the Crown corporation for its own balance sheet. This creates a powerful disincentive to stand in the way of Manitoba Hydro. Hence the bungled release of the Clean Environment Commission report on Lake Winnipeg regulation. Our government hoped to hide the inconvenient recommendations by disclosing them when the public was least likely to notice, on election day. It didn’t work. We noticed. In the wake of the CEC report, there have been multiple calls for the creation of a new oversight body for our water resources, one with teeth.

There is an obvious path to this, one that uses an existing branch of government with impressive dentition: the courts. Simply enact legislation recognizing the concept of the public trust doctrine in Manitoba law, and provide the legal resources for the public to make use of it.

This has teeth and balance.

In the case of Mono Lake, the court balanced human needs with ecological value. Rules were established, based on lake level, specifying how much water could be withdrawn and when. Water removal from Mono Lake was still permitted, but curtailed when the lake was low to protect ecological value.

A similar approach here could provide Manitobans a better, more balanced stewardship of our water resources.

 

Scott Forbes is a University of Winnipeg ecologist who was chief architect of the graduate program in bio-science and policy.