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At their party's recent policy convention, the youth wing of the Quebec Liberals came up with what they thought was a great idea: stimulate the export of water and facilitate the emission of permits for bottling it, offering a nice new revenue stream for the government. Water is our "blue gold," they pronounced.
Not so fast, warned recently retired McGill Property Law professor Madeleine Cantin-Cumyn, who was present not as a party member but as an invited expert on the issue.
To understand her reservations first requires a bit of background. The Quebec Civil Code established that water, like air, has the legal characterization of res communis, or "common thing." This means that, unlike oil, minerals or wild game, for example, water cannot be property that is owned – by the state or by private individuals – and instead is intended for the general use and benefit of all. This distinction is nothing new, and can easily be traced back to Roman law.
But there have been glitches in Quebec. Most contentious has been confusion surrounding the status of underground water, which some have considered different than surface water and which in practice took on some of the same qualities as property. Scientific advances have demonstrated, however, that underground water is no different than surface water. They interact and are all part of the hydrological cycle.
"It was out of ignorance that this reasoning was pursued," Cantin-Cumyn said. "The situation above ground is the same as underneath – it's the same water."
This brings us to the issue of bottled water, and the system of permits that has been around for about 30 years. "When we started having those permits issued in order to regulate the capture of water in order to bottle it and sell it, it was based on this flawed reasoning – that the owner of the land owned the water underground," she said. "But the law remains the same. The characterization of water as res communis, which prohibits sale because in order to sell you have to own and water is not a thing that can be owned, hasn't changed."
Plainly stated, the permit system for bottling underground water "completely contradicts" the notion in law that water is res communis. While young Liberals are "very concerned with the debt and they see this as one way for the state to make money," Cantin-Cumyn fears they are missing the big picture by allowing our conceptual understanding of water to change.
Uncontrolled exploitation of underground aquifers can harm the people and wildlife who live nearby, particularly if underground water levels are allowed to fall dramatically. "I have been following the difficulties of people who are neighbours of these projects, and it's hell; it's very damaging," she said, adding that "it's totally unfair," given that the permit holder gets an obvious benefit from water that others living on top of it cannot enjoy.
This is an issue that should concern all, she said, regardless of their proximity to particular projects. "With respect to international trade," Cantin-Cumyn said, "if you clearly make water merchandise, you're going to be caught with that, and it will be very hard to back away afterwards," in the sense that characterizing water as a commodity today may make it more difficult to protect as a resource down the road. "I see it as unwise and dangerous, to say the least."
Decrying the idea that water "is like gold or like oil," Cantin-Cumyn believes we urgently need to reinforce our fundamental understanding of water as a common good. The philosophical underpinnings for attributing such a legal status to water are sound and longstanding, while the risks associated with straying from this understanding are indeed alarming.
"To me, it's obvious," Cantin-Cumyn said. "There is absolutely no life without it. That's not so with oil or any other resource – we can live without them. But there will not be any life without water."