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Great Lakes Article:

Water privatization may be illegal, group warns
Oliver Moore
Ontario Globe and Mail
12/02/2002

The Ontario government was warned Wednesday that it may not have the legal authority to privatize local waterworks and services, raising echoes of the mid-summer Ontario Superior Court ruling that forced the Progressive Conservative government to rethink its sale of Hydro One.

The Canadian Institute for Environmental Law and Policy argues that in a new report that public access to water has been considered an issue of public trust since "the codification of law in the Roman Empire by Emperor Justinian, in the mid-sixth century." More recently, they say, the 1867 Constitution Act and 1998 Ontario Environmental Bill of Rights both "put into doubt the lawful authority" of the province to transfer ownership of water works and services.

"The Ontario Environmental Bill of Rights does contain language resembling trust language," the report argues. "... It includes as a purpose, 'to protect the right of the present and future generations to a healthful environment as provided in the act' and sets out procedural guarantees to enforce substantive rights. This important statute may have created and/or codified into law legally enforceable public expectations in favour of a public trust in exhaustible natural resources."

The group questioned the government's tactics and called on Attorney-General David Young to produce a legal opinion before introducing Bills 195 (the Safe Drinking Water Act) and 175 (the Sustainable Water and Sewage Act) at Queen's Park early next month.

Calls to Mr. Young's office were re-directed to Minister of Environment Chris Stockwell, where a spokeswoman voiced her confidence that the bills would pass legal muster.

"We believe that these bills are constitutional and we have gone to great pains to ensure that they are," Heather Campanelli, spokeswoman for Mr. Stockwell, told globeandmail.com. "I don't think there's much more that can be said than that. Certainly we have drafted legislation in such a way that we believe it to be constitutional."

The authors of Wednesday's report accuse the government of paying lip-service to implementing the recommendations of the Walkerton Inquiry while actually setting out a role "for the NAFTA-wide private sector in the ownership, operation and financial management of local Ontario water supplies, systems and services.

"If the public loses the actual public access to and wise use of the water resource, the enjoyment of the public trust could be seriously diminished," the report argues.

"Water and especially freshwater is the subject of human rights and a possible public trust. Meeting a basic water requirement for all humans, as well as ecological function takes precedence in government decision-making and allocation priorities over other water management, trade and investment decisions."

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