Ecojustice has intervened in an appeal before Ontario's Environmental Review Tribunal, hoping that they
will enforce a public trust in water resources.
Nestle Canada Inc. ("Nestle") runs
Ontario's largest water bottling operation. They pump
groundwater from two different sets of wells in the Guelph area.
Each well requires a Permit to Take Water ("PTTW") from
the Ministry of Environment ("MOE") in order to
Nestle recently had the PTTW for one of their wells renewed by
the Ministry. The renewed permit contains new conditions that
require reduced water takings during periods of summer drought1.
Nestle appealed these conditions to the Environmental Review
Ecojustice intervened in the appeal on behalf of public interest
groups and/or local citizens with a long history of opposing
Nestle's bottled water operations in the area – the Wellington Water Watchers ("WWW")
and the Council of Canadians ("CoC").
While the Ministry of the Environment is the main party
defending the conditions, they have agreed to a settlement of the
appeal. Ecojustice is asking the ERT to continue the hearing, in
order to prevent any settlement agreement from weakening the
anti-drought conditions. Ecojustice argues that the principles of
the public trust doctrine ("PTD") provide an additional
basis for upholding the original conditions. They argue that the
PTD operates both in addition to the OWRA (as a background
principle of the common law which has not been extinguished by the
statutory regime), and within the OWRA itself (as a principle
aiding in the interpretation of the statute's purpose and key
permitting provisions). They say:
"? We live in an era of increasing pressures on freshwater
resources due to population pressures, industry demands, and
climate change. In such times our governments should recognize
their duty to manage these resources as common resources
for the benefit of the public, now and in the future.
o Freshwater resources are part of the commons. The government
holds the resource in trust for the benefit of the public –
now and in the future.
o Public rights to water should be given priority over private,
o One-off permitting decisions that approve large commercial
uses without considering the long-term needs of the local community
and environment could squander our endowment of freshwater.
o Water is a fundamental resource. The MOE should be lauded for
the progressive conditions imposed in this case.
o Provincial governments are legally responsible for the
protection of groundwater supplies. Ontario and other Great Lakes
jurisdictions have committed to a precautionary approach in
o Water bottling businesses, including Nestle, must only be
allowed to draw from Ontario's public groundwater supplies
under adequate conditions."
Final submissions have been filed both for and against the
motion to withdraw the appeal as part of a settlement agreement,
and we await a decision from Member VanderBent. Here are the
submissions of the Ministry of Environment,
Nestle, and Ecojustice.
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