privatization may be illegal, group warns
Ontario Globe and Mail
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
"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
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