Two non-governmental organizations are challenging the Ontario Ministry of the Environment's decision to change a permit issued to Nestlé Waters Canada by removing conditions that would make it mandatory for the company to reduce its water intake during droughts.
The permit in question, called a "permit to take water," is for the well Nestlé owns in Hillsburgh, Ont., a farm town in Wellington County in the hills north of the Niagara Escarpment.
"We really have to start looking at how we're abusing this resource which is a public trust," argued Mike Nagy, chair of Wellington Water Watchers, an environmental group.
Nagy's group and the Council of Canadians argue the government has a duty to protect resources, like water, that are shared in common.
The saga of Nestlé's permit to take water began last year when the Swiss food giant went to renew its licence for the Hillsburgh well. The ministry gave it a new five-year term, but added two conditions that weren't in its earlier permits that meant the company would have to reduce its take of water during droughts. That made Nestlé the only permit holder in the watershed that would have mandatory reductions.
The company appealed the permit to the Ontario Environmental Review Tribunal.
"It's a matter of principle. Why should Nestlé Waters Canada be held to a different standard than every other water taker," asked John Challinor, director of corporate affairs for the company.
Before the tribunal could rule, Nestlé and the ministry reached an agreement and the two conditions were removed from the company's permit.
That's when the Council of Canadians and the Water Watchers jumped in and launched their own appeal, arguing the ministry was on the right track with the original permit conditions. For them, it was a good start in protecting the groundwater that made its way into the Grand and Credit rivers.
But that didn't last.
Ministry 'capitulation' or administrative error?
"The Ministry of the Environment has now capitulated on their own demands. They've rolled over on it and they seem to be saying, they are no longer going to have mandatory restrictions," said a frustrated Nagy.
"Well, why did the ministry change their mind?"
Simple, said Nestlé's Challinor. It was an administrative error.
"It was a misunderstanding between GRCA [Grand River Conservation Authority] and the Ministry of the Environment," he said.
The GRCA is responsible for determining whether or not there is a drought in the watershed. When they declare one, depending on the severity, they ask water drawers to reduce their take by 10 to 20 per cent.
Farmers, villages and homeowners are all asked to voluntarily cut back. That can mean less water for the field crops that make up the patchwork-quilt countryside and no hoses to wash off dusty pickup trucks.
The GRCA said Nestlé has always been among the first to comply.
Challinor said the GRCA drought declarations were never meant to result in mandatory reductions. A letter from GRCA to the environment minister clarified the conservation authority's position and is what precipitated the change in Nestlé's permit.
None of that matters to Nagy, though. The Water Watchers and the Council of Canadians think the Ontario government is failing in its duty to protect the public trust. They want to set a legal precedent on this matter and are willing to take the case all the way to the Supreme Court of Canada.
Nagy cited the case of Hudson, Que., and the ban on cosmetic pesticides.
"This is a chance to do the same with the public trust doctrine. To say, look, this is where the government will make a clear statement that there are some things that are off-limits. We will decide when we turn on and off the taps," he said.
Good corporate citizen
That's all a bit much for the mayor of Erin, Ont., a town right next to Nestlé's well. Mayor Lou Maieron said Nestlé is a good corporate citizen. The company cuts his town a cheque for $10,000 every year and supplies bottled water at public events.
"It's a legal business, right? We're not talking about selling crack cocaine in Toronto," said Maieron. That said, he's no fan of water in plastic bottles. His council voted symbolically to not renew Nestlé's licence.
But he thinks this is an individual choice.
"If you don't like bottled water, don't buy it," he said.
With the appeal decision pending, the ministry and the minister won't comment on the specifics of the case. But that didn't stop Ontario Environment Minister Jim Bradley from painting some broad strokes.
"Climate change may well have an impact on the availability of water and that means governments have to continue to monitor that to ensure that their policies reflect the reality of the day and not something that was a reality 25 years ago," he told CBC News.
The tribunal is expected to render a decision sometime in the next couple of weeks.