Ethical Water Stewardship [1st ed.] 9783030495398, 9783030495404

This interdisciplinary book brings philosophers and non-philosophers to the table to address questions of water ethics,

1,771 42 8MB

English Pages XIII, 352 [359] Year 2021

Report DMCA / Copyright

DOWNLOAD FILE

Polecaj historie

Ethical Water Stewardship [1st ed.]
 9783030495398, 9783030495404

Table of contents :
Front Matter ....Pages i-xiii
Front Matter ....Pages 1-2
Valuing Water (Ingrid Leman Stefanovic, Clifford Atleo)....Pages 3-21
Water and Ecological Ethics in the Anthropocene (Bruce Jennings, Kathryn [Kintzele] Gwiazdon)....Pages 23-41
Contextualizing a Human Rights Perspective for Water Ethics: From Exploitation to Empowerment and Beyond (Alex Wellington)....Pages 43-77
Uses of Feminist Eco-Criticism for Water Policy (Annette Louise Bickford)....Pages 79-94
Water, Stakeholder Values, and Decision Making (Bruce Morito)....Pages 95-110
Front Matter ....Pages 111-112
The Ethics of Blue Urbanism (Timothy Beatley)....Pages 113-132
Water Security Challenges in the Canadian Arctic (Andrew S. Medeiros, Alannah Niemeyer)....Pages 133-145
First Nations, Traditional Knowledge, and Water Ethics (Deborah McGregor)....Pages 147-163
Water Ethics in the Middle East (Ilmas Futehally)....Pages 165-178
The Ethics of Water Securitization: Understanding the 1999 Bombing Campaign in Kosovo (James Horncastle)....Pages 179-194
Front Matter ....Pages 195-196
Water Pricing: A Strategy for Rights Fulfillment or Rights Violation? (Kerry Ellen O’Neill)....Pages 197-216
Ethics of Infrastructure Reinvestment (Rebecca Dziedzic)....Pages 217-236
Philosophical Issues in Water Law (Graham Mayeda)....Pages 237-260
Ideas, Values, and Ethics: Integrating a Values-Based Approach into Water Policy in Canada (Carolyn Johns)....Pages 261-292
Streams of Consciousness: New Demands on Philosophy and Water Policy in a Crowded World (Deborah Harford)....Pages 293-315
Ethical Dimensions of the Water-Related International Development Agenda (Zafar Adeel)....Pages 317-338
Ethics of Shaping Water Futures (Ingrid Leman Stefanovic, Zafar Adeel)....Pages 339-352

Citation preview

Water Security in a New World

Ingrid Leman Stefanovic Zafar Adeel  Editors

Ethical Water Stewardship

Water Security in a New World Series Editor Zafar Adeel, Pacific Water Research Centre, Simon Fraser University, Burnaby, BC, Canada

There is a greatly heightened sense of awareness amongst politicians, policymakers, researchers and the general public that water security is a new and emerging threat. Just in the past few years, a number of high-level meetings involving the world’s leaders and thinkers have focused on water security. With water security now commanding global attention, specific questions are posed on the likelihood of armed conflict and war over shared water resources, on the continuing availability of water resources to produce sufficient food for 9 or 10 billion people, on the probability of providing safe drinking water to every man, woman and child, and on the impact of climate change to create extreme water events – such as typhoons, floods and droughts – for which we are not prepared. By bringing together inputs from the world’s leading thinkers, experts, practitioners and researchers, the Water Security in a New World series aims to provide evidence-based and policy-relevant responses to these and many other questions related to water security. The volumes in this series will provide in-depth analysis of the various dimensions of water security and are meant to be used by researchers, policymakers and practitioners alike. Editorial Board: Zafar Adeel, Pacific Water Research Centre, Simon Fraser University, Canada (Editor-in-Chief) David Devlaeminck, Xiamen University, China Dustin Garrick, University of Oxford, UK Michael Glantz, University of Colorado, Boulder, USA Joyeeta Gupta, University of Amsterdam, The Netherlands Uma Lele, Independent Scholar, Formerly Senior Advisor, The World Bank, USA Bob Sandford, University of British Columbia, Canada. More information about this series at http://www.springer.com/series/13406

Ingrid Leman Stefanovic  •  Zafar Adeel Editors

Ethical Water Stewardship

Editors Ingrid Leman Stefanovic Professor Emerita, Department of Philosophy University of Toronto Toronto, ON, Canada

Zafar Adeel Simon Fraser University Burnaby, BC, Canada

ISSN 2367-4008     ISSN 2367-4016 (electronic) Water Security in a New World ISBN 978-3-030-49539-8    ISBN 978-3-030-49540-4 (eBook) https://doi.org/10.1007/978-3-030-49540-4 © Springer Nature Switzerland AG 2021 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Preface

The notion of defining ethical principles around sharing and provisioning of water resources is not new. All societies in human history have had to deal with water abundance or scarcity, or even both at different times, and developed moral and ethical approaches to achieve equity and social security. With the advent of industrialization in the nineteenth century—coupled with development of new health and sanitation standards, rapidly increasing populations, intense urbanization, and a subsequent water-thirsty green revolution in the mid-twentieth century—the ethical underpinnings of water sharing have gradually and almost imperceptibly changed. Some might argue that those underpinnings have eroded significantly. Commercialization of water provisioning and commoditization of water as an entity in the twenty-first century have brought about even more significant changes in public perception of water. These changed perceptions are also reflected in the policies and actions governments have taken at various levels and geographies. The “progress” has often been dissociated from an adequate and corresponding understanding of a range of new and interconnected ethical dilemmas. This book is all about reviewing those ethical dimensions: identifying successes, failures, and knowledge gaps and exploring ways of addressing those gaps. The genesis of this book lies in a dialogue in 2017 that brought us to a realization that we can gather together a range of perspectives that can help build a knowledge base rooted in the intersection of water and ethics. A number of external events helped convince us even more that a comprehensive review of ethical stewardship of water was timely. One key Canadian milestone was the Ontario government’s moratorium on offering new and expanded water-bottling permits, a reaction to the strong advocacy by environmentalists the previous year against bulk water-taking permits given to Nestlé Canada. The exploitation of scarce water resources by many water-bottling companies had exposed the sometimes problematic underbelly of their business model of exclusive exploitation of a natural resource. Similarly, the international community had collectively set global targets just 2 years earlier, under the 2015 Sustainable Development Goals, for universal provisioning of safe water to every woman, man, and child on earth. It was deemed a victory by many in the water community—policymakers, researchers, activists, and v

vi

Preface

civil society representatives—and a logical next step to declaring water as a human right in 2010. However, many sobering voices in the research community were already pointing out that designating water as a human right or setting aspirational global targets was not quite the panacea to worldwide water challenges that it might have seemed to be on the surface. Were the underlying inequities and injustices really being addressed? How might we ethically design our policies and responses to address those problems? To be sure, issues of water ethics are increasingly the subject of articles and books of high academic integrity. And yet, moral dilemmas we are encountering cover an ever-widening range of practical problems: from the ethics of consuming bottled water to the costs and moral benefits of infrastructure provision and renewal; ethical water sharing across competing sectors such as agriculture, mining, and manufacturing; water as a human right of Indigenous communities; ethical regulatory constraints for pollution control; balancing community rights with water privatization—and the list goes on. As a result, understanding ethics is a complex, embodied, and implaced undertaking that requires continued and persistent dialogue. To address this complexity, we reached out to a diverse range of researchers, academics, and experts to bring together a comprehensive and nuanced analysis. The contributors to this volume include environmental philosophers, researchers of Indigenous issues, practitioners in environmental law and policy formulation, experts in international security and development, and water rights advocates. We divided their intellectual contributions into three interconnected streams: exploration of fundamental concepts around water ethics and dispelling of a few myths; a review of water ethics based on culture, languages, and places; and the intersection of ethical principles with a range of contemporary water challenges. This approach takes lay readers on a journey in which they are gradually introduced to a range of topics, followed by the real-world application of more abstract concepts. We round out the volume by asking some hard questions: Where do we stand in adopting ethical approaches to using and sharing water? What are the deeper reasons for disconnects between ethical considerations and policy responses? And how might the situation be changed? We recognize the value of the continued process of deliberation, dialogue, and fine-tuning of ethical water principles as we accommodate diverse challenges. This book is one attempt to advance such dialogue in a way that is meaningful to both ethicists and decision makers. We hope this volume takes us one step closer to advancing water security in an ethical manner—locally, nationally, and across the globe. Burnaby, BC, Canada Ingrid Leman Stefanovic 25 Zafar Adeel  March 2020

Acknowledgments

We are pleased to acknowledge the financial support provided by the Social Sciences and Humanities Research Council of Canada, in the form of an Insight Development grant to convene an initial workshop with potential authors, undertake research, and support editorial preparation of the current volume. Our special thanks are extended to copy editor Anne Louise Mahoney, whose loyal and invaluable assistance ensured a carefully prepared final set of chapters prior to submission to the press, and to Leslie Barker, who prepared a comprehensive book index. We are particularly grateful, of course, to our authors, whose insights and careful articulation of compelling arguments constitute the body of this work and enlarge the dialogue in a significant way around water ethics and public policy. Our gratitude is also extended to the Editorial Board for the Springer Series Water Security in a New World, who provided useful feedback to guide the direction of this work. A word of thanks to members of the Dean’s Office at Simon Fraser University’s Faculty of Environment, who provided us with ongoing professional support, allowing us to find opportunities during weekend breaks and vacations to complete the editing of this volume. Finally, we are grateful to our families, who provide each of us with the core support necessary to pursue projects such as this one, and to find meaning and purpose within our work.

vii

Contents

Part I Understanding Water Ethics 1 Valuing Water������������������������������������������������������������������������������������������    3 Ingrid Leman Stefanovic and Clifford Atleo 2 Water and Ecological Ethics in the Anthropocene��������������������������������   23 Bruce Jennings and Kathryn [Kintzele] Gwiazdon 3 Contextualizing a Human Rights Perspective for Water Ethics: From Exploitation to Empowerment and Beyond��������������������������������   43 Alex Wellington 4 Uses of Feminist Eco-Criticism for Water Policy����������������������������������   79 Annette Louise Bickford 5 Water, Stakeholder Values, and Decision Making��������������������������������   95 Bruce Morito Part II Place-Based Challenges 6 The Ethics of Blue Urbanism������������������������������������������������������������������  113 Timothy Beatley 7 Water Security Challenges in the Canadian Arctic������������������������������  133 Andrew S. Medeiros and Alannah Niemeyer 8 First Nations, Traditional Knowledge, and Water Ethics��������������������  147 Deborah McGregor 9 Water Ethics in the Middle East������������������������������������������������������������  165 Ilmas Futehally 10 The Ethics of Water Securitization: Understanding the 1999 Bombing Campaign in Kosovo ��������������������  179 James Horncastle

ix

x

Contents

Part III Contemporary Water Ethics: Policy and Decision Making 11 Water Pricing: A Strategy for Rights Fulfillment or Rights Violation? ������������������������������������������������������������  197 Kerry Ellen O’Neill 12 Ethics of Infrastructure Reinvestment��������������������������������������������������  217 Rebecca Dziedzic 13 Philosophical Issues in Water Law ��������������������������������������������������������  237 Graham Mayeda 14 Ideas, Values, and Ethics: Integrating a Values-Based Approach into Water Policy in Canada ������������������������������������������������  261 Carolyn Johns 15 Streams of Consciousness: New Demands on Philosophy and Water Policy in a Crowded World��������������������������������������������������  293 Deborah Harford 16 Ethical Dimensions of the Water-Related International Development Agenda ������������������������������������������������������������������������������  317 Zafar Adeel 17 Ethics of Shaping Water Futures������������������������������������������������������������  339 Ingrid Leman Stefanovic and Zafar Adeel

Contributors

Zafar  Adeel  is the Executive Director PWRC and Professor of Professional Practice at SFU. His 25-year work experience covers a range of environmental and policy issues, including 18 years as a senior UN official. Clifford  Atleo  is a Nuu-chah-nulth/Tsimshian scholar researching Indigenous governance and political economy. He teaches at the School of Resource and Environmental Management at Simon Fraser University on the unceded territories of the Coast Salish peoples of the xʷməθkwəy̓ əm (Musqueam), Skwxwú7mesh (Squamish), and Səl̓ ílwətaɬ (Tsleil-Waututh) Nations. Timothy Beatley  is the Teresa Heinz Professor of Sustainable Communities at the University of Virginia, where he has taught for the last 30 years. He is the author of more than 15 books, including Green Urbanism, Biophilic Cities, and Ethical Land Use. Annette  Louise  Bickford  Associate Professor, Interdisciplinary Social Science, Department of Social Science, York University specializes in historical anthropology with a focus on climate change, ecosocialism, the history of Western consciousness, and critical animal geographies. Bickford is the author of Southern Mercy: Empire and American Civilization in Juvenile Reform, 1890-1944 (University of Toronto Press, 2016) Rebecca Dziedzic  is an Assistant Professor in the Department of Building, Civil and Environmental Engineering at Concordia University. She combines her consulting experience in asset management and research in water distribution system sustainability to develop decision support tools for sustainable infrastructure. Ilmas Futehally  is the co-founder and Executive Director of Strategic Foresight Group, an international think tank that has worked with 65 countries. Under the auspices of the think tank, she has led many diplomatic initiatives for water cooperation in the Middle East, Africa, and Asia. xi

xii

Contributors

Kathryn [Kintzele] Gwiazdon  J.D., is a lawyer who specializes in international environmental law and ethics. She is co-chair of the Biosphere Ethics Initiative of the IUCN World Commission on Environmental Law, a soft law program that seeks to highlight, implement, and inform local, regional, and global ethical principles of biodiversity conservation. Gwiazdon’s work focuses on the intersection of environmental law and social justice at all levels of governance, from legislative bodies to the judiciary. Deborah Harford  is a lifelong environmentalist, nature lover, and poet and is co-­ founder and executive director of ACT (the Adaptation to Climate Change team) at Simon Fraser University. James Horncastle  is Assistant Professor in the Hellenic Studies program at Simon Fraser University. His research interests include: population movements, conflict, and identity formation in the Balkans, with a specific focus on Greece and the former Yugoslavia. He is the author of Macedonian Slavs in the Greek Civil War, 1944–1949. Bruce Jennings  M.A., is Senior Fellow at the Center for Humans and Nature, a nonprofit research institute that studies ethical and social issues in environmental, health, and public policy issues. He is also Adjunct Associate Professor in the Department of Health Policy and the Center for Biomedical Ethics and Society at Vanderbilt University and Senior Advisor and Fellow at The Hastings Center, where he worked for 25 years, serving as Executive Vice President from 1991 to 1999. He has taught at the Yale School of Public Health and has served as Chair of the Ethics Advisory Subcommittee at the Centers for Disease Control and Prevention. A political scientist by training, he has written widely on public policy and bioethics issues. Carolyn  Johns  is a Professor in the Department of Politics and Public Administration at Ryerson University and Chair of the Geoffrey Bruce Fellowships in Canadian Freshwater Policy. Her research focuses on environmental policy, water policy, and complex water governance. ​ Graham Mayeda  is an associate professor in the Faculty of Law of the University of Ottawa, Canada. He is interested in legal philosophy, environmental law, administrative law, and twentieth-century Japanese philosophy. Deborah McGregor  is a Canada Research Chair, cross-appointed with Osgoode Hall Law School and the Faculty of Environmental Studies, York University. She has been at the forefront of Indigenous environmental justice and Indigenous research theory and practice. Over the years, she has achieved international recognition through her creative and innovative approach using digital and social media to reach Indigenous communities and the public. Her work has been shared through the IEJ project website https://iejproject.info.yorku.ca/ and UKRI International Collaboration on Indigenous research https://www.indigenous.ncrm.ac.uk/.​

Contributors

xiii

Andrew S. Medeiros  is an expert on quantifying the influence of environmental change in the context of freshwater security. He is particularly motivated in applying new methodologies to community-based research in the Canadian Arctic, where he has worked since 2005. Bruce Morito focuses on practical ethics, concentrating on valuational, world view, and epistemological matters, with respect to environmental, First Nation/Crown relation, and climate change–related issues.  

Alannah Niemeyer  is originally from Mount Albert ON and completed her B.Sc. Hon. in Biology at Trent University. Alannah is an MES candidate in the School for Resource and Environmental Studies at Dalhousie University, with expected completion in 2020. Her research focuses on understanding the productivity of aquatic ecosystems along permafrost degradation gradients near Inuvik, N.W.T. As such, she has a keen interest in the Canadian Arctic and has had the opportunity to have spent time conducting fieldwork in Iqaluit, Igloolik, and Hall Beach, NU. Kerry Ellen O’Neill  is a Ph.D. Candidate in Ethics and Public Affairs at Carleton University where she analyzes conditional cash transfer programs and their impact on gender equality. Her current research is centered around issues of justice and gender equity, human rights, and exploitation through an analysis of social protection policies and is supported by SSHRC and OGS. Ingrid Leman Stefanovic  is an author and consultant in environmental and institutional change management. A former dean of the Faculty of Environment at Simon Fraser University, Vancouver, Canada, she is professor emerita, Department of Philosophy, University of Toronto, where her research and teaching focused on how values affect public policy, planning, and environmental decision making. Recent books include The Wonder of Water: Lived Experience, Policy and Practice. Alex  Wellington  is Associate Professor of Philosophy in Faculty of Arts, cross appointed to Faculty of Law, at Ryerson University. Alex has graduate degrees in philosophy, law, and environmental studies.

Part I

Understanding Water Ethics

As we move into the United Nations’ International Decade for Action on Water for Sustainable Development, there is growing concern that a “40 percent shortfall in freshwater resources by 2030, coupled with a burgeoning world population … has the world careening towards a global water crisis” (United Nations 2019). To avert such a crisis, the objectives of the decade are to 1 . advance sustainable development, 2. energize implementation of existing programs and projects, and 3. mobilize action to achieve the 2030 Agenda (United Nations 2019). There is growing awareness that to accomplish these objectives means more than only advancing technological innovations, as vital as they are to achieving progress. Human factors influence how strategic priorities are defined; understanding value systems helps to resolve conflicting judgment calls. For this reason, progress during the water decade and beyond requires a better understanding and articulation of the field of water ethics. Part I of this book provides some introductory readings in this field of growing importance. In Chap. 1, “Valuing Water,” Ingrid Leman Stefanovic and Clifford Atleo present some common Western moral theories, from utilitarianism to deontology, as well as Indigenous and less traditional postmodern and ecofeminist approaches to water ethics, drawing an example from boil water advisories in Canada. The chapter aims both to introduce some fundamental approaches to water ethics and to show how these approaches might be reconciled when it comes to decision making around issues of water policies and practices. In Chap. 2, “Water and Ecological Ethics in the Anthropocene,” Bruce Jennings and Kathryn Gwiazd similarly present a relational approach to water ethics. They argue that it makes no sense to consider water merely as physical matter, or as a resource to be commodified in market exchanges. Instead, recognizing that human beings exist always in relation to the world in which they are ontologically implaced, the chapter suggests that a relational ethics of interdependence is essential to developing global governance principles and water trusteeship.

2

I  Understanding Water Ethics

In Chap. 3, “Contextualizing a Human Rights Perspective for Water Ethics,” Alex Wellington provides a compelling description of the pros and cons of two prevalent approaches to water: one that defines water as humanity’s common heritage, and another that views water as a market commodity and a subject of economic concern. Arguing that neither approach is optimal, Wellington speaks instead in favor of a third alternative, grounded in a human rights perspective. The chapter closes with a practical discussion of how such a framework is helpful in informing water governance and policy decisions. Chapter 4 addresses the topic of “Uses of Feminist Eco-criticism for Water Policy.” Annette Louise Bickford presents an ecofeminist critique of our political economy, focusing on issues of water privatization and the impact of the meat industry on the politics of water and land use. Ecofeminism expands moral considerability beyond narrow human concerns and traditional, dualistic paradigms, questioning a “logic of domination” to focus instead on fundamental interrelationships between humans, animals, and the world in which we are implaced. Finally, in Chap. 5, philosopher Bruce Morito explores how stakeholder values shape decision making around environmental and water issues. Rather than arguing for a particular water ethic, Morito’s interest is in deciphering both explicit and implicit moral assumptions that shape communities’ engagement in policy development and actual practices. Drawing upon research that investigated the 2001–2002 drought in Southern Alberta and Saskatchewan, Morito and his team conducted a “values analysis,” identifying what mattered to stakeholders, subsequently leading a process of justifying moral beliefs to generate mutual understanding across communities. Distinguishing between core and negotiable values, the aim was to uncover an “ethic of attunement” by generating mutually acceptable ways forward among apparently incommensurable value systems of diverse stakeholders. Morito’s chapter offers a useful transition to Part II: Place-based Challenges, as it casts the philosopher in the engaged role of values interpreter, rather than simply moral theoretician. After all, while the field of water ethics is certainly of growing interest to the philosophical community, ultimately, any discussion of moral tenets must aim to impact changing values, policies, and wiser decisions around water use as implaced locally, as well as within the broader global community.

Reference United Nations (2019) Sustainable development goals: water action decade. https://www.un.org/ sustainabledevelopment/water-action-decade. Accessed 13 Dec 2019

Chapter 1

Valuing Water Ingrid Leman Stefanovic and Clifford Atleo

Ensuring that everyone has the clean water they need to live and thrive has to be a high priority for all of us. Hillary Rodman Clinton, US Secretary of State, World Water Day 2012

Abstract  This chapter presents some central moral theories and differing worldviews as they relate to a particular case study in the authors’ home country  – Canada’s boil water advisories. It may appear shocking to readers that a highly developed country still supports communities that rely on unsafe water that must be boiled before use. The chapter describes how this is the case and presents multiple perspectives – including the utilitarian, deontological, Indigenous, postmodern, and ecofeminist – relating to the ethics of boil water advisories. The argument is made that environmental decision making proceeds on the strength of both explicit as well as implicit value judgments. A new role for philosophers is proposed, requiring them to work in interdisciplinary settings with multiple communities as the water crisis advances and as conflicting, taken-for-granted assumptions and moral values require resolution. Keywords  Water ethics · Indigenous boil water advisories · Decision making

I. L. Stefanovic Department of Philosophy, University of Toronto, Toronto, ON, Canada e-mail: [email protected] C. Atleo (*) School of Resource and Environmental Management, Simon Fraser University, Burnaby, BC, Canada e-mail: [email protected] © Springer Nature Switzerland AG 2021 I. L. Stefanovic, Z. Adeel (eds.), Ethical Water Stewardship, Water Security in a New World, https://doi.org/10.1007/978-3-030-49540-4_1

3

4

I. L. Stefanovic and C. Atleo

The World Health Organization estimates that more than 297,000 children under 5 years of age die every year from diarrheal diseases emerging from poor sanitation or unsafe drinking water (WHO 2019). While solutions demand financial commitments, the suffering and death of vulnerable children remind us that water holds more than simply market value. One need not be a formally trained ethicist to feel the full moral weight and existential value of water to each and every innocent child. That said, moral controversies around water security abound. Is safe, clean water for all best distributed according to utilitarian calculations of maximizing benefits at minimal costs? Does the human right to water mean that such calculations are secondary to other sorts of principled arguments? Is water not only a biological need but an ontological good, or even a spiritual good? These kinds of questions are more than theoretically significant. Answers will drive decision making and influence lives, even when value judgments only implicitly frame public policies and priorities. This chapter aims to introduce the growing field of water ethics, arguing that its relevance must extend beyond the narrowly academic to include the complexities of lived experience. By way of illustration, we focus on a problem of critical proportion in Canada, relating to the inaccessibility of safe water on First Nations reserves. Two-thirds of this nation’s Indigenous communities have been under at least one drinking water advisory between 2004 and 2014 (Levasseur and Marcoux 2015). In 2016, the federal government committed almost $2 billion over 5 years, funded by Indigenous and Northern Affairs Canada, to end such drinking water advisories on all reserves by March 2021.1 In the 2018 federal budget, an additional $172.6 million over 3 years was proposed to improve access to clean, safe drinking water on reserves and to support more speedy and efficient construction and renovation of water systems (Indigenous Services Canada 2019). At the time of writing of this chapter, 56 long-term boil water advisories remained in effect.2 Drawing from this example, the first part of this chapter illustrates how traditional, anthropocentric ethical theories, such as utilitarianism and deontology, might weigh in on such boil water advisories. Many aspects of environmental decision making in Western societies are driven by these traditional moral value systems, as will become evident in our discussion. The second part of the chapter presents a markedly different Indigenous worldview. As life-giving and indeed as sacred in itself, water is far more than a singular tangible moral commodity or resource holding anthropocentric value. The final part of the chapter builds on this broader conversation around the meaning of water to explore how multiple narratives might inform the growing field of water ethics. The fact is that from ecofeminism to

1  Indigenous and Northern Affairs Canada has been reorganized, with Crown-Indigenous Relations and Northern Affairs Canada, and Indigenous Services Canada, taking its place. 2  See Indigenous Services Canada, https://www.sac-isc.gc.ca/eng/1506514143353/153331713066 0. Accessed 20 August 2019. Once long-term water treatment systems are installed, the declared boil water advisory is lifted, despite the fact that some systems break down within a year. In those cases, they are no longer deemed to be a government priority for repairs, since they do not constitute a “long-term” boil water advisory. Statistics do not reveal some of the complexities of the real story here.

1  Valuing Water

5

postmodernism, philosophers are aiming to disrupt top-down theoretical models and introduce complexities of power struggles and local narratives in describing the lived experience of water ethics. A new role for water ethicists as interpreters and mediators is suggested, for cases where moral frameworks conflict. Overall, the chapter shows that the role of ethics and taken-for-granted value judgments is central, albeit inadequately acknowledged, in the stewardship and secure provisioning of water.

1.1  Anthropocentric Ethics: From Theory to Application In Canada, drinking water advisories are public health statements issued to communities to inform them about actual or possible health risks in their drinking water. The advisories are meant to be precautionary, ideally issuing notice before significant water quality issues arise (ECCC 2018). Three types of drinking water advisories exist: a “do not consume” notification, a “do not use and boil water” notification, and boil water advisories – the most common type of advisory, constituting 98% of those issued (ECCC 2018). Communities notified of a boil water advisory are instructed to bring their tap water to a rolling boil for at least one minute before drinking it or using it for other purposes, such as cooking, washing fruits and vegetables, or bathing infants (Health Canada 2018).3 In 2017, 77% of boil water advisories in Canada were issued to communities of 500 people or fewer (ECCC 2018). Despite the enactment of the Safe Drinking Water for First Nations Act in 2013, 56 First Nations reserves are currently subject to drinking water advisories, with water quality affected by a range of issues, from inadequate binding regulations on reserves to persistent underfunding of water system operations and maintenance, poor conditions of source water, and lack of support for water operators. That said, the recent commitments by the federal government to eliminate long-­ term boil water advisories on First Nations reserves is not the first time Canada has sought to address these challenges. A 1995 assessment revealed that one in four First Nations water systems posed “significant risks” to human health (Indigenous and Northern Affairs Canada 2007–2008). By 2002, a follow-up assessment showed increasing deterioration, despite hundreds of millions of dollars of investments, with approximately one third of on-reserve drinking water systems, and one sixth of their wastewater systems, posing high risks to water quality and human health (Indigenous and Northern Affairs Canada 2007–2008). Given those conditions, the First Nations Water Management Strategy was developed in 2003 by Indian and Northern Affairs Canada and Health Canada. It provided a plan to upgrade and build water and wastewater facilities; introduce a water 3  We are grateful to Jack Satzewich, master’s student in the School of Resource and Environmental Management at Simon Fraser University, for providing some of the background research regarding boil water advisories in Canada.

6

I. L. Stefanovic and C. Atleo

quality operation, monitoring, and maintenance program; offer training and management protocols; and increase public awareness and new policies through a “multi-barrier” approach (Indigenous Affairs Canada 2010). By 2007, a summative report was prepared to evaluate the Strategy’s success. The purpose was to assess the relevance and appropriateness of its approach, as well as to evaluate progress made in providing safe drinking water and wastewater treatment on reserves from 2003, when the Strategy was developed. It is significant to note some of the language used in that report. Perhaps unsurprisingly, there was interest in assessing value for money, where the cost-effectiveness of financial investments in the upgrading of water systems and the monitoring of drinking water quality were investigated (Indigenous and Northern Affairs Canada 2007–2008: 75.) As will become clear, a strongly utilitarian moral system underlies much of this language. Several key factors were found to affect the cost of building and operating First Nations communities’ water and wastewater systems. Predictably, it was noted that the “relatively small size and remote location of many First Nations communities serve to increase costs” (Indigenous and Northern Affairs Canada 2007–2008: 79). In fact, a related study found that the price of providing and maintaining water infrastructure in remote or isolated communities is up to three to four times higher than in more densely populated areas (Anderson 2007). More specifically, in an urban community, simply providing piping to service a household was estimated a decade ago to be $9,000 for a five-person family, whereas in a rural community, an additional $36,000 was estimated. For remote and isolated communities, the costs could “easily” reach $144,000 per connection (Anderson 2007). The reality is that economies of scale exist for providing water and wastewater facilities in terms of provision, operations, and maintenance. Why are these figures important? To be sure, the Liberal government said in the “reconciliation” statement in its 2018 budget that “it is unacceptable that any person living in Canada should be unable to safely drink the water that comes out of their taps.” That said, providing safe water – building the infrastructure, operating it, and properly maintaining it – comes at a significant cost. For this reason, governments often assess “value” based on three essential criteria: economy (i.e. “appropriate qualities and quantities of resources are obtained at the lowest cost”); efficiency (i.e. “a given amount of resources produces optimum outputs”); and cost-effectiveness (i.e. “the unit costs of outcomes are minimized)” (Indigenous and Northern Affairs Canada 2007–2008: 80). Such language – drawing on concepts of optimal efficiencies and outputs or minimizing costs while maximizing benefits to human societies – is clearly rooted in anthropocentric, utilitarian moral frameworks (which are themselves arguably often embedded in racist, colonial attitudes toward Indigenous communities). An anthropocentric approach means that what is morally right is evaluated from the perspective of what is good for humans first and foremost. In fact, quantifying that value often means assessing it from the point of view of economic efficiency and cost-­ effectiveness to society, precisely as noted above.

1  Valuing Water

7

The language used in the report similarly draws centrally from a common version of anthropocentric ethics: utilitarianism. The Stanford Encyclopedia of Philosophy (2014) calls utilitarianism “one of the most powerful and persuasive approaches to normative ethics in the history of philosophy.” Indeed, it is arguably the most prevalent moral theory underlying most instances of professed rational decision making in modern Western society. While some have extended the theory to include sentient non-human animals within the sphere of moral considerability, human interests typically dominate conversations around utilitarianism. Even when the theory is extended to animals, it is often their ability to experience pleasure and pain, similarly to humans, that is seen to justify including animals within the utilitarian framework (Singer 1975). John Stuart Mill and his predecessor Jeremy Bentham are the classical philosophers credited with developing utilitarian theory (Mill 2007). The fundamental axiom of their approach defined the measure of right and wrong action to be evaluated in terms of “the greatest happiness of the greatest number” (Burns and Hart 1977: 393). In the case of Mill, that happiness was defined in terms of maximizing overall pleasure over pain. Those who support utilitarianism note that, as an approach to rational decision making, it is arguably impartial, privileging no particular set of citizens over others. In that sense, it aims at neutrality and lack of bias in assessing the value of providing a particular resource, such as clean, safe water. Utilitarianism is widely accepted in Western secular society, as it seeks to remain uninfluenced by arbitrary cultural or religious preferences. As a version of philosophical “consequentialism,” it focuses on a commonsense view that consequences of one’s actions matter in moral decision making. Applying the principle of utility allows for quantification of positive and negative effects, precisely in the way in which cost-benefit analyses are conducted in a variety of management scenarios. Drawing on our case of boil water advisories in Canada specifically, there simply are significant economic realities associated with providing infrastructure for clean water to remote Indigenous communities. Quantifiable, utilitarian assessments may provide legitimate data to inform decision making in that regard, as noted in the First Nations Water Management Strategy summative evaluation, discussed earlier. Moreover, there are opportunity costs in delivering water to remote communities, if one compares how one might use those same financial resources in other apparently more fiscally efficient ways. Incorporating those opportunity costs in a utilitarian assessment ensures a broad-based, robust evaluation of costs and benefits overall. While utilitarian arguments often prevail in discussions of water policy, critics raise multiple objections to such consequentialist approaches to moral reflection. One might ask: In theory and in practice, is it ethically justifiable that smaller remote communities do not have access to safe drinking water while urbanites perceive that they have water to waste? Is it truly possible to impartially calculate all consequences of our actions when the future is essentially unknown? What happens in cases of unequal distribution in a utilitarian calculus, where one suffers while many benefit? Do we never have special obligations to particular persons? Where and how do non-utilitarian judgment calls enter into these equations? If a building is burning or a water system is contaminated, is one ever justified in saving one’s family first?

8

I. L. Stefanovic and C. Atleo

And do the ends always justify the means? If I kill one person to save five others, am I justified in killing anyone at all, even if from a strict, quantificational perspective the overall benefit is maximized? Finally, how accurately do we assign value to notions of happiness or pleasure when these are qualitative rather than quantitative notions? Interestingly, while on the one hand, the First Nations Water Management Strategy summative evaluation refers to utilitarian “value for money,” it also acknowledges the limits to narrow utilitarian assessments of cost-effectiveness as such a measure of moral worth. The report notes that “there are a number of outcomes or benefits [of water and sanitation improvements] which cannot be measured in terms of cost, such as existence value (people value the fact that the environmental good exists) and bequest value (people want future generations to be able to enjoy it)” (Indigenous and Northern Affairs Canada 2007–2008: 84). The report similarly acknowledges that “Aboriginal witnesses repeatedly testified to the cultural value of water and the holistic role it plays in their societies” (Indigenous and Northern Affairs Canada 2007–2008: 84). Overall, the report briefly concludes that there might indeed be “additional outcomes with inherent, non-monetary value” when it comes to evaluating water and sanitation improvements, both nationally and globally (Indigenous and Northern Affairs Canada 2007–2008: 84). How does one begin to assess these questions from other than a utilitarian perspective? The most common approach in Western societies is to turn to deontological, principled approaches to decision making. Deontology is a theory that assesses the moral value of a decision – not on the basis of consequences, but on the strength of the actions themselves. In the case of boil water advisories in remote communities, deontologists argue that decision making should not be based simply on cost-­ benefit analysis; rather, we should be guided by a moral intuition of our duties and responsibilities, proper actions, social and environmental justice, as well as basic human rights. Human Rights Watch (2016) has declared, for instance, that in Canada, a “broader systemic crisis … leaves many First Nations persons facing daily challenges just to access safe water for drinking and hygiene  – a fundamental human right easily enjoyed by most Canadians” (italics mine). Irrespective of costs and benefits, the United Nations General Assembly explicitly recognized in 2010, through Resolution 64/292, the human right to water and sanitation, acknowledging that “clean drinking water and sanitation are essential to the realization of all human rights” (United Nations 2014). More recently, the UN 2030 Agenda for Sustainable Development presents 17 goals to achieve a more sustainable future. Goal 6 relates to water and sanitation, and here again, it is clearly stipulated that “[a]ccess to water, sanitation and hygiene is a human right” (United Nations 2016). Such rights-based language around water security reflects deontological, principlist values. Decisions are seen to be morally justifiable – not simply in terms of the nature of the consequences and overall benefits of an action, but rather on the basis of rational assessments of one’s own responsibilities and fundamental duties to others. The classic proponent of deontological ethics is Immanuel Kant, who made it clear that “an action done from duty derives its moral worth, not from the purpose

1  Valuing Water

9

which is to be attained by it, but from the maxim by which it is determined” (2009: 59). Rather than by calculating maximum beneficial consequences, right actions are guided by a categorical imperative that demands that I act “only on that maxim whereby thou canst at the same time will that it should become a universal law” (Kant 2009: 60). Applying a deontological ethic to the issue of boil water advisories results in a very different language than the utilitarian. Rather than balancing economic costs and benefits, notions of a human right to water and our duties and responsibilities to deliver clean water to remote communities becomes the norm. In Kant’s classical reflections, such rights could be extended properly only to humans, although more recently, philosophers such as Tom Regan have extended similar moral considerability to animals. Mammals themselves hold rights because they are “subjects-of-­ a-life,” meaning that they hold beliefs and desires, perceptions, memories, emotions, preferences, and a sense of the future, and they are able to experience pleasure and pain (Regan 1983: 243). As a result, sentient non-human animals arguably also have a right to safe, clean water within our ecosystems. Some have accorded rights not only to non-human animals but also to natural systems such as rivers and waterways. In 2017, the Whangunui River, considered sacred by the Indigenous Maori people, was defined as a living entity with full legal rights in New Zealand, almost at the same time that a court in northern India ordered that the Ganges and a main tributary, the Yamuna River, be granted the same legal rights as human beings (Safi 2017). The Indian judges declared that the river and its tributaries would be “legal and living entities having the status of a legal person with all corresponding rights, duties and liabilities” (Safi 2017). In New Zealand, tribal representatives similarly declared that “treating the river as a living entity is the correct way to approach it, as an indivisible whole, instead of the traditional model for the last 100 years of treating it from a perspective of ownership and management” (Safi 2017). Extending the anthropocentric language of rights to non-human entities, while sometimes awkward, signals the growing need to afford value to water differently than through narrow, utilitarian, calculative moral paradigms. While to some extent such ethical extensionism is a new move in environmental philosophy, according meaning and value to water in a more holistic fashion has arguably long been embedded within historical Indigenous worldviews. The Assembly of First Nations suggests that “one key operative element” and “preliminary concept” in providing safe drinking water requires “recognition of First Nations Values, Culture, Knowledge and Relationships to Water” (2018). In the next section, we explore what such a recognition might mean.

10

I. L. Stefanovic and C. Atleo

1.2  S  hifting Paradigms: Lessons from Traditional Ecological Knowledge Water and Indigenous communities have been in the news frequently, mostly due to an appalling lack of safe drinking water and ongoing threats to water and land by large-scale oil and gas extraction, processing, and transportation projects. From widespread Indigenous opposition to these projects, we have heard rhetoric likening the earth to that of Mother and water to the blood of her veins, with slogans emerging to remind us that “water is life.”4 Passionate appeals to protect water have arisen out of the practical necessity of clean drinking water as well as from the growing recognition of a duty to protect that which is sacred. In the words of Anishinaabeg scholar Deborah McGregor, “water quality is not just an environmental or ecological issue … all aspects of Creation are inter-related” and therefore deserving of respect (2012: 10). The fact is that diverse Indigenous perspectives on water often run counter to anthropocentric Western views. While admittedly there is no single Western culture, there are normative similarities within Western (and northern) neoliberal capitalist democracies that merit analysis here. Additionally, there is no single Indigenous culture. There are many Indigenous cultures. That said, it is possible to identify some common currents among various Indigenous peoples, worldviews, and cultures, while remaining mindful of specific Indigenous communities to illustrate our points. Many Indigenous peoples strongly identify with water. Cutcha Risling Baldy, an enrolled member of the Hoopa Valley Tribe in Northern California, unequivocally writes, “[w]e are the water and the water is us” (2017: 14). Of the Ojibwe people who live among the Great Lakes, Melissa Nelson reflects how “Anishinaabeg people are water people” (2013: 215). Many Indigenous peoples navigated their territories via water and had strong canoeing cultures. Food as varied as fish, shellfish, whales, rice, and seaweed are harvested from traditional Indigenous waterscapes. An affinity with water is not limited to fresh water. Indigenous peoples on the coast of British Columbia have often referred to themselves as “salt water people,” confirming their strong attachments to the water that sustains their lives and livelihoods (Atleo 2018). Beyond the not-insubstantial physical practicalities, McGregor writes, “Water is alive. It is a being with its own spirit” (2012: 10). There are two issues that we wish to expand on here. The first is the belief that water is alive, endowed with spirit and agency; we consider how this conviction 4  This is also connected to the Mni Wiconi, Water is Life movement, whose mission is “To create a global water protection action group that will support communities worldwide where the peaceful actions against the fossil fuel and related industries are happening. Encouraging people to support organizations, events and peaceful actions in their community. As Water is central to life and connected to all living things we are a group of concerned human beings intent upon bringing connection to communities from across the world in order to stand up to protect water for the benefit of present and future generations world wide.” www.waterislifemovement.com. Accessed 22 May 2019 [site is now defunct].

1  Valuing Water

11

impacts Indigenous “water views” (Yazzie and Baldy 2018). The second issue is that of water as a “relative” and the ethical implications that flow from this realization. Both issues significantly influence Indigenous water ethics.

1.2.1  Water with Spirit Yazzie and Baldy state that water is “an ancestor and relative with agency … who deserves respect, care and protection” (2018: 1). Anishinaabe/Haudenosaunee scholar Vanessa Watts adds that “habitats and ecosystems are better understood as societies from an Indigenous point of view; meaning that they have ethical structures, inter-species treaties and agreements …” (2013: 23). Many Indigenous peoples believe that they come from a common source of all creation. Nelson writes, “the Ojibwe people trace the original clans to a story that says they came out of the sea, and so our very social organization with the clan systems has its origins in water” (2013: 218). She adds that there are many practical connections to water as well, including the reliance upon waterways for transport, and the fact that manomin (wild rice), a beloved staple of Ojibwe people, is “the food that grows on water” (Nelson 2013: 218). Nelson points out that these relations have been reciprocal, but that “somewhere along the journey of assimilation, many of us stopped feeding the land and water” (2013: 228). Many stopped reciprocating. Some Indigenous peoples conducted ceremonies and observed protocols as ways of showing their respect to the land and water. Tongva and Acjachemen scholar Charles Sepulveda states, “[i]n a Native spiritual perception of reality, human beings have a sacred responsibility to the earth” (2018: 43). This responsibility includes recognizing water’s spiritual essence by giving thanks and not acting in ways that would threaten the health of our water. How else do Indigenous people engage with their water relations? Many regard their lands and waters as teachers and actively learn from them. In the words of Nehiyaw scholar Shawn Wilson, “[k]nowledge itself is held in the relationships and connections formed with the environment that surrounds us … there is no distinction made between relationships that are made with other people and those that are made with our environment” (2008: 87). This notion of relationality with water, which is recognized as a spiritual force with agency, is meant to guide ethical behavior. Anishinaabeg scholar Leanne Simpson similarly notes that “Our knowledge comes from the land, and the destruction of the environment is a colonial manifestation and a direct attack on Indigenous Knowledge and Indigenous nationhood” (2004: 377). Finally, Anishinaabeg novelist Louise Erdrich adds, “you could think of the lakes as libraries” (Nelson 2013: 215). Indigenous knowledges are enriched from deep relational connections to lands and waters that nonetheless remain precariously under threat. Frequently, Indigenous people enact relations with water through ceremonial practices. Baldy writes how “[m]any of our ceremonies give us an intimate connection to the river, they remind us that we are responsible for our river, our

12

I. L. Stefanovic and C. Atleo

environment. These ceremonies teach us that our well-being is tied to our environment and our community. They teach us that we are intertwined with our world, not separate, not dominant” (2017: 15). Such practices emphasize the inseparability of Indigenous peoples and their terrestrial and aquatic territories. In a Nuu-chah-nulth context, cold-water bathing is an important aspect of spiritual preparation for feats great and small. On young Indigenous women’s coming of age preparation ceremonies, Yazzie and Baldy write, “[b]athing helps the young woman to become intimately tied to the river, and by extension the land and her community” (2018: 14). These ceremonies are thus vital, cultivating and maintaining connections not only to territories, but also to Indigenous cultures and ways of being.

1.2.2  On Water Relationality A common Indigenous refrain is “all my relations,” acknowledging not only interconnectivity but close relationships among all creation. Citing Maori scholar Shane Edwards, Ahenakew et al. write, “the Earth is my Mother, the Sky is my Father, I am a younger sibling of all my relations on Earth” (2014: 221; emphasis in original). The human positioning here is noteworthy, for Edwards is saying that we are not only related to all creation, but we are the younger sibling. This stands in contrast to the conventional anthropocentric point of view that places humanity in a hierarchically superior position over everything on earth. It is within this context of relationality that many Indigenous people also understand their interactions with water. For instance, McGregor writes, “[w]ater is a relative … One speaks to water as one would a relative, with caring and compassion. Water is not a commodity to be bought and sold. It is to be revered and treated with respect and dignity” (2012: 10–11). It might go without saying, but McGregor is stressing that one should be a good relative to water, not a negligent one. Yazzie and Baldy confirm that “[t]o be a water protector is to be a good relative. To be a land defender is to be a good relative. To struggle together is to be a good relative … We will have no future if we are bad relatives” (2018: 16). In positioning oneself and one’s community to be closely related to water, with the expectation of being a good relative, many Indigenous people draw clear ethical implications from this relationality. Some go so far as to suggest that to be Indigenous is to be a good relative (Deloria 1998: xxxiv). Yazzie and Baldy reiterate that Within this framework of relationality, water is not seen as a resource to be weaponized for the interests of capital by corporations that harness, obstruct, pollute, and discipline water through infrastructure projects like dams and pipelines to boost the capitalist economies of settler nation-states. No, within an Indigenous feminist framework, water is a relative with whom we engage in social (and political) relations premised on interdependency and respect. (2018: 3)

McGregor concisely adds, “Appropriate water use is about appropriate relationships … based on respect and the recognition that water is a living spiritual force” (2012: 11).

1  Valuing Water

13

Central to many Indigenous worldviews is the concept of oneness. The Nuu-­ chah-­nulth people say, Hishuukish tsa’walk, or “everything is one.” Umeek writes that this concept goes beyond the earthly realm: “Heshook-ish tsawalk is a Nuu-­ chah-­nulth perspective that is inclusive of all reality, both physical and metaphysical” (2004: 20–21). In this regard, it can be difficult to find Indigenous people speaking or writing about water exclusive of other interrelated entities. This is nicely captured by the Cree word aski, which, as Cree scholar Michelle Daigle explains, “encompasses land and water … It is a concept that expresses the holistic relationship of land and water, and which does not set up a binary between land and water” (2018b: 160). If the earth is our mother and the water is her veins, then we can appreciate that damage to one often damages the other. Indigenous people have long struggled to get Settler governments and corporations to understand this in the contexts of mining, oil and gas extraction, and forestry.

1.2.3  Water Threatened Indigenous lands and waters remain under threat of “colonial capitalist resource exploitation” worldwide (Daigle 2018b: 160). And despite international efforts to address climate change, biodiversity loss, and other environmental crises through initiatives like the Paris Climate Agreement or the United Nations 2015 Sustainable Development Goals, the threat to Canadian waters has only intensified in recent years. Although physical protests and legal challenges have somewhat slowed the construction of oil and gas transportation infrastructure, Canada remains committed to the fossil fuel economy. In April 2018, Prime Minister Justin Trudeau declared, “We are going to get the [Trans Mountain] pipeline built. It is a project in the national interest … this project will go ahead” (Snyder 2018). One month later, the government of Canada paid $4.5 billion to buy the pipeline from the original project proponent, Kinder Morgan. Despite some rhetoric to the contrary, this move is not necessarily surprising. Governing parties of all political stripes are seemingly unable to chart an aggressive new course toward that sustainable clean energy that scientists say is absolutely required; instead, governments appear to remain committed to smoothing the way for ongoing resource extraction that threatens our waterways. Trudeau’s predecessor, Stephen Harper, enacted a law – Bill C45 – in 2012 that included amendments to the Navigable Waters Act, removing protection for thousands of lakes, rivers, and streams (Daigle 2018b: 166). This was also the piece of legislation that sparked Idle No More, an unprecedented Indigenous protest movement that managed to garner significant sympathy and solidarity from non-­ Indigenous Canadians and supporters worldwide. It is also worth noting that water threats can be seen to have genuine, direct consequences to the well-being and health of remote Indigenous communities. High social costs, such as elevated youth suicide rates in these communities, arguably are not unrelated to a sense of desperation and frustration that emerges when one is unable to conduct daily activities due to the lack of access to abundant and safe

14

I. L. Stefanovic and C. Atleo

water. The health outcomes, such as higher rates of cancers and diabetes, are also quite real and non-trivial (Waldner et al. 2017; Human Rights Watch 2016).

1.2.4  Indigenous Resurgence and Water Defenders Indigenous people continue to protest threats to their waters and lands. Members of the Grassy Narrows First Nation and their supporters continue an annual 1700 km walk from their homelands to the Ontario provincial legislature as well as pursuing legal remedies/restitution. Wet’suwet’un land and water defenders continue to physically oppose natural gas pipeline incursions into their territories. The Heiltsuk First Nation is taking the Kirby Corporation and the federal government to court over a catastrophic diesel oil spill in their territories. Scores of Indigenous communities are carrying out myriad efforts to protect their lands and waters. While these are often reactionary measures, they are not solely reactionary. According to the Dene scholar Glen Coulthard, when Indigenous communities say no to destructive development, their decisions “also have ingrained within them a resounding ‘yes’: they are the affirmative enactment of another modality of being, a different way of relating to and with the world” (2014: 169; emphasis in original). When Indigenous people say no to Settler development, they are often also saying yes to their own laws and priorities, which they have often not forsaken or surrendered. Not all Indigenous people are resisting these extractive projects. It has been reported that with respect to the Trans Mountain pipeline, Kinder Morgan had signed 43 “mutual benefit agreements” with Indigenous groups in Alberta and British Columbia (Bailey 2018). With Canada having purchased the pipeline, there has even been talk of an Indigenous ownership stake in the project. This does not mean that those communities are not feeling ambivalent, nor have they completely abrogated their duties to protect their lands and waters. Cheam First Nation chief Ernie Crey states, “The pipeline goes through our territories. Our job is to look after our territories and make sure things of value in those territories are taken care of. To do that, we need to be more than advisers” (Bailey 2018). That said, many Indigenous leaders remain torn on the issue. Chief Ken Hansen of the Yale First Nation, who signed a mutual-benefit agreement with Kinder Morgan, has said, “When I signed this deal, I felt a lot of shame” (Paling 2018). Clearly, many Indigenous leaders and communities are faced with difficult existential decisions. We would argue that the nature of many of those decisions are unjust, but our addiction to fossil fuel extraction and the constraints of our neoliberal capitalist economy leave few with any genuine options. Indigenous peoples are also doing more than just trying to resist or adapt to Canada’s carbon economy. Indigenous people across the land are resurging and reconnecting with their territories. Daigle reports that members from her community “have sought to rebuild relations with aski, and specifically with Mushkegowuk waterways, through extended paddles on Kishiichiwan with the intention of connecting youth with Knowledge Holders and Elders in the community” (2018b: 168).

1  Valuing Water

15

The Hooksum School on Vancouver Island and Dechinta program in the Northwest Territories are only two examples of several programs that focus on land-based education, combining traditional Indigenous knowledge and critical anti-colonial theory. These initiatives aim to reconnect Indigenous youth with their territories and encourage them to become land defenders and water protectors. McGregor favors these Indigenous-centric efforts, adding that “[i]t is felt that current mainstream processes for protecting water are misguided, limited, and too dependent on the compartmentalized approach of science and technology” (2012: 12). Yazzie and Baldy also introduce the idea of “radical relationality,” which “brings together multiple strands of materiality, kinship, corporeality, affect, land/body connection, and multidimensional connectivity …” (2018: 2). Although most of these efforts derive their authority from their own Indigenous laws, they are also affirmed by international convention. Article 25 of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) (2007) states: “Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.” Prime Minister Trudeau has promised to enact reconciliation in the form of nation-to-nation relationships and fully implement the UNDRIP into Canadian law. For him to do this in good faith, he must recognize and truly respect Indigenous rights to self-determination and avoid threatening the lifeblood of Indigenous territories. That unsafe water and boil water advisories exist in Indigenous communities across the country reflects a failure by Canada to acknowledge the reality that Indigenous worldviews hold land and water to be sacred. Any genuinely informed water ethic must respect this fact.

1.3  Navigating among Plural Moral Perspectives Certainly, boil water advisories across the country are not all the direct result of resource extraction. As the Government of Canada points out, 83% of them are a result of “equipment and process-related problems,” admittedly exacerbated by the fact that many communities do not have sufficiently trained individuals who can ensure continuous, sustainable operation of these treatment systems (ECCC 2018: 5). But no matter the cause of environmental degradation, the Indigenous way reminds us that all waterways in Canada deserve to be safe and secure, revered as the source of all life and well-being that they are. Indigenous insights remind us that, given that water is life itself, providing water security means more than simple financial investments in water infrastructure, essential though such investments may be. More to the point, Indigenous peoples “understand struggles for water, in all its complexity, as embedded in the historical and ongoing rupture of [their] self-­ determination, including our political and legal relationships with nipi [water in Cree]” (Daigle 2018a: 6). Safe water means not simply providing potable water but holistically preserving waterways as well as interconnected, relational ecologies

16

I. L. Stefanovic and C. Atleo

and healthy, respectful ways of life. The ethical provision of safe water means more than providing temporary technological fixes: it requires a long-term commitment to protecting the social, cultural, and economic well-being of all communities. As policymakers grapple with the ethics of water security, these Indigenous voices – especially given the proliferation of boil water advisories within Indigenous communities in Canada – certainly must be heard in a genuine, respectful way. But if environmental decision making requires dialogue among a diversity of moral perspectives, as is arguably the case, the question arises as to how to reconcile competing claims. How, if at all, does the policymaker acknowledge the Indigenous perspective regarding the sacredness of water together with the utilitarian calculations and high costs of delivering efficient infrastructure to remote communities? And whose rights among which communities, from taxpayers to rural dwellers, are to have precedence in solving problems of boil water advisories and the provision of safe water? The questions become even more challenging when one recognizes that the Western history of ethics is certainly far richer than a conversation between only utilitarian and deontological theoretical perspectives. Natural law theory, for instance, saw Thomas Aquinas build on the teleological aspects of Aristotle’s thought by arguing that the purpose of nature – its telos – is understood specifically in terms of God’s divine law. Since the activities of natural objects were derived from God’s plan and purpose, the natural order and the moral order were one and the same. Universal and objective moral laws themselves were discoverable through human reason and divine revelation. Aquinas argued that the Great Chain of Being means that there is a hierarchy among living entities, with plants, animals, humans, angels, and God ranked in ascending categories of perfection. Such a hierarchy was confirmed in the Bible through Genesis 1:28-29, where it is written that God created humans in his own image to “be fruitful and multiply, fill the earth and subdue it, rule over the fish in the sea, the birds in the sky and every living thing that moves upon the earth.” Both the hierarchical priority and “logic of domination” of humans over other living beings, and the notion of a divine ordering of the natural world, are sometimes called into question by contemporary theorists (Warren 1987). Nonetheless, one might argue that an underlying paradigm of human superiority, integral to natural law theory, drives policies that privilege technological, controlling, engineering solutions over more modest preservationist approaches to environmental problems. On such a reading, solving the problem of boil water advisories might simply be a matter of providing technical infrastructure to Indigenous communities, rather than dealing with more complex issues, such as enabling social justice or seeking to extend empathy and care to those lacking safe water. On the other hand, the philosopher John Rawls is a classic example of someone who argues for the primacy of social justice as fairness in policy making. According to Rawls, principles of social justice “provide a way of assigning rights and duties in the basic institutions of society and define the appropriate distribution of benefits and burdens of social co-operation” (Rawls 1971: 4). While also certainly interested in advancing fair and just solutions, ecofeminists like Karen Warren believe that

1  Valuing Water

17

speculative moral abstractions, espoused by traditional moral theorists like Rawls, are less important than advancing an ethic of care. By developing an environmental ethic that “takes seriously connections between the domination of women and the domination of nature,” Warren argues in favor of “values of care, appropriate trust, kinship, friendship” – values that are “often lost or underplayed in mainstream ethics” (1999: 541, 547.) She and other ecofeminists express concern about implicit dualisms that privilege reason over emotion, men over women, humans over nature, the technical over the social. In place of such dualistic paradigms, ecofeminist perspectives consider “how the relational attitudes of humans to others – humans as well as nonhumans – sculpt both what it is to be human and the nature and ground of human responsibilities to the nonhuman environment” (Warren 1999: 551). More important than what is related is the relations themselves among humans and their engagement with the natural world around them. We might easily continue to enumerate other ethical theories, from virtue ethics to postmodern moral reflections. For the purposes of this chapter, however, while acknowledging that the field of ethics – and, indeed, water ethics – is rich with theoretical debates, the question that policymakers will want to ask is this: How do these theoretical approaches best inform policy when there is little consensus or few universal rules that emerge among them? To be sure, some ethicists do believe in a top-down model of moral justification, arguing that ethics involves applying a general rule or principle to a particular case. However, if applied ethics is simply a matter of applying the right theory to a particular problem, and no consensus emerges among philosophers as to what that right theory could be, then how, if at all, is ethical deliberation useful to advise policy decisions? Perhaps the relation between ethics and environmental decision making is better understood not as a top-down application of theory to praxis but rather a bottom­up – or, even better, an iterative – process of uncovering implicit values that underlie particular practical problems while collectively generating with key stakeholders guiding moral principles to inform solutions to those problems (Beauchamp 2005: 7). In that case, moral rules and principles would be derived from the complex variabilities of each specific case, rather than being resolved in advance of evaluating the ethics of a decision. In his classic article entitled “Before Environmental Ethics,” environmental pragmatist Anthony Weston points out that ethical ideas “are deeply interwoven with and dependent upon multiple contexts: other prevailing ideas and values, cultural institutions and practices, a vast range of experiences and natural settings as well” (1999: 597). If Weston is right, then to assume that philosophers can simply theorize optimal, universal ethical norms, irrespective of the vagaries of each individual situation, may be naive. Ethics may be better understood as implaced in a complex context of social, cultural, regulatory, technological, economic, geographical, temporal, and ecological settings. So, it may be more realistic to suggest that an alternative “sociological or ‘evolutionary’ view of values is not somehow the death knell of ethics. Instead, such a view seems to be almost an enabling condition of modern philosophical ethics” (Weston 1999: 601).

18

I. L. Stefanovic and C. Atleo

Weston is not the only one who argues for a different meta-ethical perspective: one that is messier than the traditional view of applied philosophy as a process of inventing a plausible theory and then simply applying it to public policy and practices in a neat, linear, top-down fashion. He is joined by philosopher Robert Frodeman, who argues that the role for his colleagues is twofold: first, we must “provide an account of the specifically philosophical aspects of our environmental problems”; and second, the role of the philosopher is to help to navigate an interdisciplinary dialogue, developing “a synopsis of how the various disciplines relate within a given problem” (Frodeman 2003: 20). More integrative thinkers than lofty, abstract metaphysicians, philosophers are invited to engage directly in the complexities of lived environmental problems to help synthesize conflicting perspectives and uncover a moral pathway forward. The renowned German philosopher and critical theorist Jürgen Habermas suggests that the role for ethicists, then, is less one of remaining aloof and fashioning speculative theories than to serve as “stand-in interpreters,” assisting communities to develop moral insights and universal obligations by uncovering a communicative rationality among committed stakeholders (1990). The role of philosophers is one of helping to decipher what are a community’s core values, and which ones are negotiable. It is a matter of inserting oneself into the process of environmental decision making and helping to elucidate a wise way forward that respects both practical realities of an environmental challenge while also ensuring an ethically sound process of decision making. On such a reading, philosophy might become more a matter of mapping values and revealing the rationality of productive, moral discourse than a case of simply justifying universal theoretical constructs. In that sense, moral discourse should never “separate school from life” by neglecting the important truth that practice informs philosophy, rather than simply the other way around (Kockelmans 1983: 381).

1.4  Final Reflections When it comes to the ethics of boil water advisories in Canada, the ethical way forward may be less a matter of simply completing a utilitarian cost-benefit analysis or citing human rights than it is an invitation to philosophers to insert themselves into the public discourse, helping to identify specific, pragmatic challenges in delivering safe water to each community individually, uncovering taken-for-granted core and negotiable values, and then assisting in the process of charting a morally justifiable way forward. The infamous IT analyst Edward Snowden is right to say that “all the choices we make are informed by a cache of assumptions, both empirical and logical, unconsciously derived and consciously developed. We use these assumptions to assess the potential consequences of each choice … But even the smartest among us rely on assumptions that we’ve never put to the test – and because we do, the choices we make are often flawed” (2019). Working to uncover logical fallacies of reasoning is

1  Valuing Water

19

core to the philosophical profession. Moreover, uncovering implicit value judgments and evaluating their cogency equally defines the field of ethics. To be sure, the process of ethical reflection, deliberation, and dialogue in the Habermasean role of “stand-in interpreter” generates more than a linear “how-to” manual that we may choose to follow. Ethics is not mathematics; each situation will demand different strategies of engaging stakeholders. But the process of helping to bring to light convoluted patterns of reasoning, as well as identifying and evaluating core versus negotiable values in a process of moral values mapping, can only find useful allies in the philosophical profession. Certainly, the process is more time consuming and messy than formulating a universalizing moral theory and then simply applying it across all boil water advisory contexts. Nevertheless, such a careful, deliberative approach of interpreting moral judgments allows for a more discerning, rational, discursive, and collaborative process of ethical environmental decision making. In the end, Canada is faced with a serious set of challenges around water security, with multiple narratives, from the Indigenous to the economistic and anthropocentric. If philosophers can help to articulate underlying, taken-for-granted moral values and place-based narratives, and thereby help to guide the way to both a practical and morally sound resolution to an environmental problem, then they will be serving society in a truly meaningful way. Without doubt, 15-year-old Indigenous water activist Autumn Peltier is right to say that “maybe, we need to have more elders and youth together sitting at the decision table when people make decisions about our lands and waters” (Canadian Press 2019). But arguably, we ought to have discerning, rational, caring philosophers at the table as well.

References Ahenakew C, de Oliveira Andreotti V, Copper G, Hireme H (2014) Beyond epistemic provincialism: de-provincializing Indigenous resistance. AlterNative 10(3):216–231 Anderson R.V.  Associates Limited (2007) Small community water/wastewater servicing report. Ottawa Assembly of First Nations (2018) First Nations safe drinking water preliminary concepts: for discussion only. http://www.afn.ca/wp-content/uploads/2018/11/First-Nations-Safe-DrinkingWater-Preliminary-Concepts-July-2018.pdf. Accessed 20 Jan 2019 Atleo C (2018) Change and continuity in the political economy of the Ahousaht. PhD thesis. University of Alberta Bailey I (2018) Some First Nations seek inclusion in Trans Mountain talks. The Globe and Mail, June 6 Baldy CR (2017) Water is life: The Flower Dance ceremony. News Native Calif 30(3):12–15 Beauchamp T (2005) The nature of applied ethics. In: Frey RG, Wellman CH (eds) A companion to applied ethics. Blackwell, Malden, pp 1–16 Burns JH, Hart HLA (1977) The collected works of Jeremy Bentham. Oxford University Press, Oxford

20

I. L. Stefanovic and C. Atleo

Canadian Press (2019) Canadian Indigenous water activist Autumn Peltier addresses UN on clean water. CBC News, September 28. https://www.cbc.ca/news/world/canadian-indigenous-wateractivist-autumn-peltier-addresses-un-on-clean-water-1.5301559. Accessed 21 Feb 2020 Coulthard GS (2014) Red skin, white masks: rejecting the colonial politics of recognition. University of Minnesota Press, Minnesota Daigle M (2018a) Embodying kinship responsibilities in and through nipi (water). In: Ellis J, Calgary AB (eds) Water rites: reimagining water in the West. Calgary University Press, Calgary Daigle M (2018b) Resurging through Kishiichiwan: the spatial politics of Indigenous water relations. Decolonization Indigeneity Educ Soc 7(1):159–172 Deloria PJ (1998) Playing Indian. Yale University Press, New Haven Environment and Climate Change Canada (ECCC) (2018) Canadian environmental sustainability indicators: drinking water advisories. https://www.canada.ca/content/dam/eccc/documents/ pdf/cesindicators/drinking-water-advisories/drinking-water-advisories-en.pdf. Accessed 20 Feb 2020 Frodeman R (2003) Geo-logic: breaking ground between philosophy and the earth sciences. State University of New York Press, Albany Habermas J (1990) Moral consciousness and communicative action: Reason and the rationalization of society (trans: McCarthy T). Beacon Press, Boston Health Canada (2018) Drinking water and health. https://www.canada.ca/en/health-canada/topics/ health-environment/water-quality-health/drinking-water.html. Accessed 7 Aug 2018 Human Rights Watch (2016) Make it safe: Canada’s obligation to end the First Nations water crisis. https://www.hrw.org/report/2016/06/07/make-it-safe/canadas-obligation-end-first-nationswater-crisis. Accessed 8 Aug 2018 Indigenous and Northern Affairs Canada (2007–2008) Summative evaluation of the First Nations water management strategy. http://www.aadnc-aandc.gc.ca/eng/110010001201 6/1100100012033#sub1_3. Accessed 15 July 2018 Indigenous and Northern Affairs Canada (2010) First Nations water management strategy. https:// www.aadnc-aandc.gc.ca/eng/1100100010369/1100100010370. Accessed 31 Jan 2019 Indigenous and Northern Affairs Canada (2019) Safe drinking water for First Nations Act. https:// www.aadnc-aandc.gc.ca/eng/1330528512623/1330528554327. Accessed 2 Feb 2020 Indigenous Services Canada (2019) Water in First Nations communities. http://www.sac-isc.gc.ca/ eng/1100100034879/1521124927588. Accessed 1 Feb 2019 Kant I (2009) The fundamental principles of the metaphysics of morals. In: Scalet S, Arthur J (eds) Morality and moral controversies: readings in moral, social and political philosophy, 8th edn. Prentice Hall, New Jersey Kockelmans JJ (1983) The foundations of morality and the human sciences. In: Tymieniecka A-T, Schrag CO (eds) Foundations of morality, human rights and the human sciences. D. Reidel, Dordrecht Levasseur J, Marcoux J (2015) CBC News Manitoba. http://www.cbc.ca/news/canada/manitoba/ bad-water-third-world-conditions-on-first-nations-in-canada-1.3269500. October 14 McGregor D (2012) Traditional knowledge: considerations for protecting water in Ontario. Int Indigenous Policy J 3(3):1–21 Mill JS (2007) Utilitarianism. Dover, Mineola Nelson M (2013) The hydrology of the Anishinaabeg: will Mishipizhu survive climate change, or is he creating it? In: Doerfler J, Sinclair NJ, Kiiwetinepinesiik H (eds) Centering Anishnaabed studies: understanding the world through stories. University of Manitoba Press, Winnipeg, pp 213–233 Paling E (2018) B.C. chiefs say they don’t support Trans Mountain pipeline despite signing agreements. Huffington Post, June 10. https://huffingtonpost.ca/2018/06/10/b-c-chiefs-say-theydon’t-support-trans-mountain-pipeline-despite-signing-agreements_a_23455419/. Accessed 21 Feb 2020 Rawls J (1971) A theory of justice. Harvard University Press, Cambridge, MA Regan T (1983) The case for animal rights. University of California Press, Berkeley

1  Valuing Water

21

Safi M (2017) Ganges and Yamuna rivers granted same legal rights as human beings. The Guardian, March 21. https://www.theguardian.com/world/2017/mar/21/ganges-and-yamunarivers-granted-same-legal-rights-as-human-beings. Accessed 3 Jan 2019 Sepulveda C (2018) Our sacred waters: theorizing Kuuyam as a decolonial possibility. Decolonization Indigeneity Educ Soc 7(1):40–58 Simpson LR (2004) Anticolonial strategies for the recovery and maintenance of Indigenous knowledge. Am Indian Q 28(3/4):373–384 Singer P (1975) Animal liberation. HarperCollins, New York Snowden E (2019) Permanent record. Metropolitan Books, New York Snyder J (2018) ‘We are going to get the pipeline built’: Trudeau begins federal talks with Kinder Morgan to guarantee Trans Mountain. National Post, April 15. http://nationalpost.com/news/ we-are-going-to-get-the-pipeline-built-trudeau-begins-federal-talks-with-kinder-morgan-toguarantee-trans-mountain. Accessed 10 June 2018 Stanford Encyclopedia of Philosophy (2014) The history of utilitarianism. https://plato.stanford. edu/entries/utilitarianism-history. Accessed 25 Oct 2018 Umeek (E. Richard Atleo) (2004) Tsawalk: a Nuu-chah-nulth worldview. UBC Press, Vancouver UN Declaration on the Rights of Indigenous Peoples (UNDRIP) (2007). https://www.un.org/ development/desa/indigenouspeoples/declaration-on-the-rights-of-indigenous-peoples.html. Accessed 15 Feb 2020 UN Water (2014) Human rights to water and sanitation. http://www.unwater.org/water-facts/ human-rights. Accessed 25 Oct 2018 United Nations (2014) International decade for action: water for life: 2005–2015. http://www. un.org/waterforlifedecade/human_right_to_water.shtml. Accessed 25 Oct 2018 United Nations (2016) Goal 6: clean water and sanitation. Sustainable development goals. https:// www.un.org/sustainabledevelopment/water-and-sanitation. Accessed 15 Feb 2020 Waldner CL, Alimezelli HT, McLeod L, Zagozewski R, Bradford LEA, Bharadwaj LA (2017) Self-reported effects of water on health in First Nations communities in Saskatchewan. Results from community-based participatory research, Canada. Environmental Health Insights. https:// doi.org/10.1177/1178630217690193. Accessed 2 Jan 2020 Warren KJ (1987) Feminism and ecology: making connections. Environ Ethics 9:3–20 Warren KJ (1999) The power and promise of ecological feminism. In: DesJardins J (ed) Environmental ethics: concepts, policy, theory. Mountain View, Mayfield, pp 541–554 Watts V (2013) Indigenous place-thought & agency amongst humans and non-humans (first woman and sky woman go on a European world tour!). Decolonization Indigeneity Educ Soc 2(1):20–34 Weston A (1999) Before environmental ethics. In: DesJardins J (ed) Environmental ethics: concepts, policy, theory. Mayfield, Mountain View, pp 597–608 Wilson S (2008) Research is ceremony: indigenous research methods. Fernwood, Black Point World Health Organization (WHO) (2019) Drinking-water. https://www.who.int/news-room/factsheets/detail/drinking-water. Accessed 25 Feb 2020 Yazzie MK, Baldy CR (2018) Introduction: indigenous peoples and the politics of water. Decolonization Indigeneity Educ Soc 7:1: 1–1:18

Chapter 2

Water and Ecological Ethics in the Anthropocene Bruce Jennings and Kathryn [Kintzele] Gwiazdon

Abstract  Today, there is wide theoretical agreement and international recognition of the ideal that access to, and prudent use of, freshwater is ethically significant to all humankind and to the biosphere as a whole. Therefore, clear and explicit thinking concerning ethics and values must guide decision making concerning water resources and their stewardship. Somewhat less progress has yet been made, however, on identifying the requisite ethical principles and standards and clarifying their rationale. The aim of this chapter is to assess the contribution that an Earth-system perspective and a relational ethics of interdependence can make to that conversation and to global water trusteeship and governance. Keywords  Commons · Earth systems · Ethics · Rights · Solidarity · Trusteeship

2.1  Introduction A relational approach to ethical analysis is emerging that calls for a reconceptualization of many traditional ethical principles and values (Nedelsky 2013). A new awareness of the geologic, biologic, and social effects of human economic and technological activity has led to attempts to locate human ethical rights and obligations in a broader temporal and ecological context than was typical, at least in Western thought, heretofore. Planetary systems have geo-physical and bio-ecological interdependencies, which manifest themselves in complex interactions and transformations. Many of these systems  – atmospheric and oceanic dynamics of climate, biodiversity in  local and regional ecosystems and watersheds, phosphorous and nitrogen cycles, and hydrological cycles, for instance – have limits and tolerances beyond which their functioning changes and their resilience breaks down.

B. Jennings (*) · K. K. Gwiazdon Center for Humans and Nature, Brentwood, TN, USA e-mail: [email protected] © Springer Nature Switzerland AG 2021 I. L. Stefanovic, Z. Adeel (eds.), Ethical Water Stewardship, Water Security in a New World, https://doi.org/10.1007/978-3-030-49540-4_2

23

24

B. Jennings and K. K. Gwiazdon

Anthropogenic stresses (or “forcings”) of these systems have come close to or have exceeded the safe operating margins of such planetary limits.1 In recognition of this reality, Earth-system science, and a corresponding approach to normative analysis that might be called earth ethics, presents many new ways to conceptualize water and new rules for the ethically responsible relationship that human beings maintain with it. From an Earth-system perspective, it makes little sense to think of water simply as (1) physical matter, the use of which should only (or even primarily) be subject to private property rights; (2) a commodity subject to market exchange; or (3) a resource, the value of which is only instrumental in relation to human interests, and the supply of which should be technically controlled and efficiently managed in light of utilitarian standards of rationality and efficiency. Such conceptualizations inform practices of water usage in many places, but they are not inherent in the chemistry and ecology of water. Many other sustainable and practicable human uses and relationships with water exist. Understanding water as an integral part of multiple and interactive Earth systems is also within our ken. Framing water as a component of an ecosystemic commons upon which all human societies and economies depend is the basis for water trusteeship practices that remain available for us in the Anthropocene future. In his study of the philosophy and politics of water governance, Jeremy Schmidt traces the evolution of water management theory and practice against the background of the political philosophy of liberalism and the growing imperial and hegemonic power of the United States in the twentieth century (Schmidt 2017). He describes this project as “the aim of bringing water’s social and evolutionary possibilities into service of liberal forms of life” (Schmidt 2017: 5). Here, the priorities and perspectives of, initially, industrial capitalism and, later, global capitalism are joined with an American vision of the proper political and economic development of colonies, former colonies, and developing nations. Schmidt looks beyond this paradigm, which he views as increasingly ill-suited to global conditions in the Anthropocene, to a much more ecological and multifaceted water commons and more localized water governance. In a way, Schmidt’s account – which is not explicitly addressed to developing ethical principles of water conservation and governance – comes full circle when he arrives at something like an Earth-system perspective. This is because water (and other natural systems) was placed in what might be called a philosophical geology, and early scientific thinking in the late nineteenth and early twentieth centuries actually took on a geologic and planetary point of view for a time. Influential thinkers and policymakers such as John Wesley Powell, W.J. McGee, and Otis Tufton Mason saw water in a planetary process of “Earth-making” and turned the science of geology toward geomorphology – that is, an emphasis on the 1  We are pleased to acknowledge the contribution of Dr. Paul Heltne to the initial planning and drafting of this chapter several years ago, when it was intended for another publication. However, as he was not able to play an active role in its eventual development and modification, he does not bear responsibility for its content as a co-author. His inspiration has left its mark on both of us and we thank him for his mentorship.

2  Water and Ecological Ethics in the Anthropocene

25

relationship among forms and processes. Rejecting any kind of non-naturalist metaphysics, they nonetheless firmly opposed the liberal individualism associated with social Darwinism and capitalist laissez-faire economics. Instead, they were interested in human and nonhuman (both organic and inorganic) interdependence, what McGee referred to as “the solidarity of life.” This was not a proposition of moral philosophy or a basis from which moral principles could be deduced. Rather like Darwin’s theory of natural selection, McGee saw this solidarity as a non-­teleological process, contingent all the way down (Schmidt 2017: 43–67). But when life on earth, via the mind of one of its species, finally became self-conscious of this geologic form-process and began to intentionally engage in Earth-making, then a bridge between ethics and geology – human agency and planetary agency – opened up. The ethical question could be asked: How should human beings try to direct the conditions of planetary systems, including water, and to what ends (Schmidt 2017: 68–89)?

2.2  The Challenge of the Anthropocene All discussion of ethical and justice issues involved in the human use of water must now be informed by the fact that humanity has entered a new relationship with all planetary systems. The direction of ethics should take place against the backdrop of a movement from a Holocene to an Anthropocene planet. The Holocene designates a time of stable and mild climate since the last Ice Age ended about 12,000 years ago. “The Anthropocene marks a new period in which our collective activities dominate the planetary machinery,” says Chris Rapley, a climate scientist at University College London. “Since the planet is our life support system – we are essentially the crew of a largish spaceship – interference with its functioning at this level and on this scale is highly significant … the shift into the Anthropocene tells us that we are playing with fire, a potentially reckless mode of behaviour which we are likely to come to regret unless we get a grip on the situation” (Carrington 2016). Playing carelessly with fire we may well be, but we are also playing selfishly with water. The retreat of glaciers and the moderation of temperatures that characterized the time of the Holocene have been a great boon to humankind. It is no exaggeration to say that we owe the development of our species to Holocene climate and flora. Soon enough, we began transforming our environment into cities and farms. “The world as we know it is a relatively new phenomenon,” Johan Rockström notes. “It has only been during the past 10,000 years … that factors necessary for human societies to develop have been reliably present. Before that, Earth was often a horror show” (Rockström and Klum 2015: 31). And so it could be again. That prospect alone is enough to suggest that human activity in the Anthropocene must be marked by a new sense of ethical obligation and precaution. Now that we know the extent of our influence, stability and change in planetary conditions are no longer simply imposed on humankind by natural necessity: they become part of our ethical remit. The conditions in spaceship Earth conducive to abundant, resilient, flourishing life have moved from chance to choice,

26

B. Jennings and K. K. Gwiazdon

and therefore to ethical responsibility. Note that this anthropogenic perspective does not equate to an anthropo-centric approach to ethics. The desires, interests, and purposes of human beings do not occupy pride of place in an Earth-system ethics, but our actions do carry the weight of responsibility for how well human life goes and how the lives of other creatures go as well. In the coming years of the Anthropocene, the activities of extraction, fabrication, and excretion within national and global political economies will have to change on a very large scale. The Anthropocene invites a fundamental alteration at the roots of our thinking. Serious planetary alterations are not in question any longer. Only the nature and impacts of such change are still in play: change for good or ill, change with consequences that are equitably borne or unjustly parcelled out. Jeremy Schmidt, Peter Brown, and Christopher Orr capture the essence of the predicament well: “The Anthropocene is a storm in which ethics and science are entangled: ethical systems moderate behaviors that shape the Earth System, while new categories often informed by science … shape ethical calls for planetary stewardship” (Schmidt et al. 2016: 193). Thinking as we have been taught to interpret the world by most of our academic disciplines will mislead us because these disciplines assume a Holocene continuity that can no longer be taken for granted: if our current disciplines, including ethics, notice planetary-scale changes at all, they assume that such alterations take place so slowly, relative to the human time scale, that they can be safely ignored. We shall have to learn new things, in new ways, but we also must unlearn some older things. Can a moral philosophy and ethical life attuned to integrated planetary systems, and not simply to particular ecosystems, emerge? Can such an ethics play a meaningful role in bringing about the needed changes in human conduct as the Anthropocene unfolds? A reconceptualization of the context of moral thought and ethical life also carries with it a reconceptualization of ethical categories themselves. And it is necessary to consider the shape that ethical discourse and argumentation might take if rethought on much larger physical and temporal scales, with a much greater appreciation of systemic boundaries, limits, complexity, and symbiosis. For example, as mentioned earlier, contesting the notions of water as property to be controlled unilaterally by certain individuals or groups, as a commodity to be bought and sold, or as a passive natural resource for human use seems quite appropriate when one adopts an Earth-­ system perspective on ethics (Jamieson and Di Paola 2016). And to push this reconceptualization one step further, how would we have to restructure our cultural practices communicatively and institutionally if we saw nonhuman beings as agentic rather than as ontologically passive and reactive? Or if we saw geo-physical materiality, such as water, as active rather than inert? Writing against the background of water politics and management in Bolivia, Francese Bellaubi and Rocio Bustamante argue that “the Cochabamba Water Agenda (AdA) appears as an opportunity for social change to move water as a resource toward water as a commons. Recognizing water as a commons means recognizing water as a being with which one lives, accepting the diversity of its expressions in rivers, lakes, and streams” (Bellaubi and Bustamante 2018: 11–12).

2  Water and Ecological Ethics in the Anthropocene

27

The methods of ethics, as well as its substantive content, are challenged by recognition of the Anthropocene. Moral theories and ethical constructs in cultures that assert the unique value of human persons often assume that they are saying this in some kind of abstract logical vacuum, or from some moral point of view from nowhere. But they are not. These ethical systems are founded on the Holocene, an entire earth system operative for thousands of years, which has made it possible for human beings to devise ethical discourse (with many different contents) and integrate it into their social lives and organizational practices. An ethics of justice and obligations grounded on individual human rights is possible only because the climatic and other aspects of the Holocene were the preconditions for the very possibility of conceiving, valuing, and protecting individual rights in the first place. As Schmidt et al. put it, “In the Anthropocene … the state of the Earth System does not provide for the kind of functional stability assumed by, but largely unacknowledged within, conventional ethics. … The human-induced flux on the Earth System characteristic of the Anthropocene challenges how, or if, conventional ethics may be reliably anchored” (Schmidt et al. 2016: 193). An earth ethics for the Anthropocene, and a water ethics anchored to it, does not need to abandon the concepts of individual human rights and social justice; it simply needs to repudiate the past uses of those concepts to justify activities that are destructive of the resilience of Earth’s systems. It needs to base the ethical obligations operative within human culture and society – especially within the political economy – on the ethical obligations to the earth as a complex totality and system of life. In place of a reductionist, atomistic ethic focused on independent individuals, an earth ethic calls for an explicitly relational way of looking at the natural and social circumstances of ethical concern, such as the ethical stakes of water use: health, well-being, and justice. Water is dynamic, elusive, determined, and a fecund source for the human moral and spiritual imagination. We talk about water as a medium of disease transmission, as a fluid essential for biological functioning, and as a thing to be manipulated with wells, pumps, sluice gates, dams, and dikes. While we talk about the scientific and engineering aspects of water, we should not lose sight of the fact that water is also a vital source of cultural meaning that sustains not only our biological life but also our imagination and spirit (Reynolds 2003). No culture or tradition known to us is indifferent to it. It is a source of power, creation, and spirituality. It figures prominently in the foundation myths and creation stories of many cultures, including the Judeo-­ Christian tradition. It is a symbol of purification, rebirth, and reconciliation, even as it is also a source of animosity and conflict. There is a prototypically two-sided aspect to the way water is represented and imagined in most traditions. Water is the basis for structured, organized activities, but it is itself without fixed form. It is protean and relentless. It floods and recedes, indifferent to human constructions on a floodplain. It finds tiny fissures and eventually splits the hardest rock and enters the best-sealed dwellings. Its changing physical state slowly reshapes the geology of the planet as ice sheets progress and recede, as sea levels rise, as rain falls, and as rivers find new channels. Human things are small by comparison. We move and channel water, we harness the energy of its

28

B. Jennings and K. K. Gwiazdon

movement, to meet our needs and do our bidding, but to think that we thereby control it is an illusion. Of course, there are anthropogenic forces affecting both the oceans and freshwater sources. But cause is not control. All in all, an attitude of accommodating ourselves to the nature of water, coming to a modus vivendi with it, is much more sensible than striving for its mastery (Vintinner and Sterling 2008). The complexity of how best to understand the meaning of water and how best to place it in a proper human, social, and natural context should not be underestimated. Water is equally vital to a healthy human body as it is to a body politic marked by justice (Ingram et al. 2008).

2.3  Right Relationship with Water What does an ethical right relationship between humanity and water require? What does water ask of us? In 2010, the United Nations General Assembly (Resolution 64/292) recognized the human right to water and sanitation (United Nations Department of Economic and Social Affairs 2014). Indeed, the right to water and sanitation is a “basic” right – that is, a right that is a precondition to the enjoyment of all other rights (Shue 1996). Working in partnership and collaboration with local cultures and traditions, governments and civil society organizations throughout the world have significant obligations regarding this right. They must provide financial resources, build local capacity and education concerning water management and use, and develop and transfer appropriate technologies to support best practices in water management and trusteeship (Brelet 2004). Top-down and distant water resource planning, although often employed, is not always the answer (Alcorn and Papp 2013; Schmidt 2017: 165–186). In sum, we must arrange access to freshwater so as to be equitable for all. And how will this be done and by whom under coming climate change circumstances that do not appear auspicious (Sabatier et  al. 2005; Le Quéré et  al. 2018; IPCC 2018)? Moreover, many are asking if clean water is destined to become for the twenty-first century what petroleum was for the twentieth: a source of geopolitical power and conflict (Shiva 2002; Pearce 2006). Attacking water supplies and access may be used as a political tactic to prompt upheaval and change, as it was in India in 2016 when protestors opposed to India’s illegal yet still practiced caste system attacked public water facilities, leading to a lack of clean water access for millions of people (Singh and Cullinane 2016). Will technological innovation provide a solution, or will cultural and value change be the necessary ingredient to stave off (and bring peace to) the “water wars”? Concurrent with the ecological dimensions of the water crisis are public health dimensions, including, but not limited to, the spread of waterborne diseases, particularly in the developing world (Porto 2004; Acreman 2004; Frumkin 2010). Fortunately, in public health. the understanding of water health (and of environmental health generally, especially in relation to climate change) is becoming broader and more expansive (Shrader-Frechette 2005).

2  Water and Ecological Ethics in the Anthropocene

29

Threats to freshwater quality and supplies can no longer be thought of simply in terms of discrete entities, such as carcinogenic substances, pathogens, or toxic chemicals, that intrude upon an otherwise healthy bio-ecology (Kessel and Stephens 2011). They are manifestations of our economic system and its driving values. This is nowhere more apparent than in the case of climate change and atmospheric system disruption, both closely bound to water systems. Like climate, water is one of the planetary boundaries upon whose safe operating margins human technology is encroaching (Rockström et  al. 2009). Water is not so much a resource as it is a lynchpin in the entire web of planetary life. The focus of ethics is therefore not on water in isolation, but on the water cycle and how the cycle connects the land and the atmosphere (Priscoli et al. 2004). The notion of a “watershed” has this connotation, connecting water, the soil, and the biotic community.

2.3.1  A  spects of Water Ethics: A Relational Perspective and Six Principles Lord Selborne, Chair of the Commission on the Ethics of Scientific Knowledge and Technology (COMEST) Sub-Commission on the Ethics of Fresh Water, offered an interesting perspective on the foundations of a water ethic: First, the ethics we require should be built on a sense of shared purpose and in harmony with nature. Second, ethics must be based on a balance between traditional human values regarding conservation and the use of new technological advances. Rarely have either worked alone and it is time to stop pitting one against the other. Third, ethics, even in our advanced technological age, should seek to find a new harmony between the sacred and utilitarian in water, between the rational and the emotional. Water resources managers need to understand the wisdom encoded in traditional religious and secular symbols and rituals surrounding water. Today, our technology tells us that there is enough water – if we cooperate. One of the most important elements for co-operation is something that experts in negotiation call ‘superordinate values’, meaning those that are beyond immediate utilitarian benefits and to which competing parties can subscribe. Rekindling the sense of the sacred in water, unquestionably a superordinate value, is one way to move the debate to higher levels and thus bear on the capacity to manage conflict and reach agreement. This balancing is not new—it is what humans have been doing throughout history as they constantly learn how to deal with environmental uncertainty. Talking of such a balance means to appreciate the intrinsic and profound value of water that is not captured in the traditional utilitarian calculus of transactions. It is to recognize that water is not only a means to other goals, it is essential as an end in itself. (Selborne 2000: 9)

Nonetheless, there is no gainsaying the fact that mainstream water management and public policy follow primarily a utilitarian ethic of resource use aimed at maximizing aggregate net human welfare or utility and benefit (valued output) relative to cost (valued input). This outlook is appealing because it seems to offer the most rigorous, even quantitative, approach to normative questions, and this comports well with fields such economics, policy analysis, and public health. It offers something like a lingua franca among policymakers for the purposes of determining large-scale policy or distributional issues (Goodin 1995). A countervailing ethics

30

B. Jennings and K. K. Gwiazdon

orientation is a rights-based ethical outlook that focuses on equity, fairness, and respect for the freedom and equal moral worth of each individual. From this point of view, welfare or utility maximization is not ethically sufficient to justify institutions or policies that produce distributional patterns of benefit and burden for individuals that are discriminatory or lead to significant social inequality and disadvantage. Arguably, however, neither of these ethical theories is sufficient (Ingram et al. 2008: 298–301). What is needed is a value perspective that reinterprets conditions of efficiency in ecological terms and conditions of equity in relational terms. This outlook would avoid the excessively individualistic character of rights-based ethics or social welfare–maximizing theories like utilitarianism, where populations are understood not holistically, but as aggregations of individuals. A relational ethic, one that is now growing in influence in both environmental and health ethics, stresses the moral importance of the fabric that binds human beings together in mutually beneficial, caring, and nurturing societies, within resilient, sustainable natural ecosystems. With these ethical orientations and practical considerations in mind, we offer the following principles of water ethics. We seek principles that help support concrete practices of sustainable interdependence in human relations with watersheds, the land, and the biotic community. The ethical implications of these principles in jurisprudence and law provide the basis for a transition away from water privateering toward water trusteeship. In each case, there is a meaningful application of the principle to the relationship between humans and water and the effects of the various technologies of water utilization (purification, sanitation, groundwater mining, agricultural irrigation, and the like). Similar principles have been formulated by the Waters of Wisconsin Project (Wisconsin Academy of Science, Arts and Letters 2003) and by UNESCO’s International Hydrology Programme (IHP), intercultural and interdisciplinary working group on the Ethics of the Uses of Freshwater, and by the COMEST Sub-Commission on the Ethics of Fresh Water Use (Brelet 2004: 1–2; Priscoli et al. 2004: 15–17). The World Water Forum, a global governmental and NGO community that meets biannually, also has an ethics working group that seeks to highlight ethical principles as they relate to water protection and conservation for humans and nature (WWF 2015).

2.4  Principles of Water Ethics The six ethical principles presented here are intended to bridge the environmental and human health aspects of humanity’s right (or just) relationship to water. These principles incorporate the undeniable values of efficient use of resources for the promotion of well-being and health and the centrality of equal rights. They also underscore the significance of ecological or relational perspectives on responsibility and trusteeship and the connecting threads of inclusivity, voice, and discursive and ecological democratic participation.

2  Water and Ecological Ethics in the Anthropocene

31

In thinking about these or any principles, however, there is an important caveat to bear in mind. When we think about a right relationship with watersheds, other creatures, or landscapes, it is important to ensure that we are making sensitive decisions rather than imposing some set of general criteria or principles with a heavy hand. Thus, ethical theory and principles need to be accompanied by what we think of as place-based deliberative discourse and social learning. This involves thoughtful attention to the detailed characteristics of a place, both its ecological and its social-historical landscape. The Principle of Equal Respect for Human Dignity  This principle calls for the meeting of basic needs and the promotion of human health and well-being. It incorporates the underlying notion behind the framework of universal human rights. This is a fundamental principle of public health ethics; when it is construed in relational terms, the concept of human dignity is not at odds with respect for other creatures and for nature and thus is fundamental to environmental ethics as well. This is one of the important ways that a relational perspective on ontology (the nature of being) and ethics (the nature of right conduct) differs from a human-centered and individualistic perspective. In an individualistic perspective, the dignity of a human being is constituted by his or her self-mastery and freedom from domination by others, and this is understood as separation from others. A relational perspective places the dignity of the individual in a symbiotic connection with the dignity of others. Hence dignity – and other closely related ethical and value concepts, such as rights, freedom, health, and happiness – is sustained by mutuality rather than by separation or superiority, while ethical wrongs, such as domination and objectification, are excluded by principles of right relationship (and wrong relationship) rather than by conditions of power and control. The Principle of Equity and Proportionality  Meeting the needs and promoting the health of all persons is important, but equity and proportionate response are required in the face of limited resources to give priority to the least well off, those most immediately at risk, and those who are made vulnerable by past discrimination, exclusion, and powerlessness. The Principle of Solidarity  Respect and equity should be pursued with a recognition of the limits of each individual’s ability to determine the conditions of their own lives and of our mutual interdependency, and reliance on outside support, care, and assistance. The notion of solidarity and interdependence applies in a social context, among human individuals and groups, but it applies with equal importance and resonance in an ecological context, between human and biotic communities (Goodpaster 1978; Jennings 2015; Jennings and Dawson 2015). The Principle of the Common Good  This principle calls for the recognition of situations in which the pursuit of apparently rational self-interest by each individual leads to outcomes that are irrational and harmful to the collective. The human interests served by water and by the biodiversity water makes possible are often not well

32

B. Jennings and K. K. Gwiazdon

served by behavioral strategies of individual interest maximization such as those fostered by libertarian property rights. Predictably, these lead to collectively ­suboptimal “tragedy of the water commons” scenarios, as when during a drought, wells on private land are drilled deeper so that they deplete aquifers extending across legal property lines on the surface. In one way or another, the solution is to treat water as a common pool resource and sustainable water utilization as a common good from which all benefit and all have a solid obligation of justice to support (Ostrom 1990; Ostrom et al. 2012). A global debate focused on water is taking place that grows out of the involvement of private, for-profit multinational water corporations in running networked water supply systems around the world. This debate pits a position often referred to as “market environmentalism” against a human rights approach. Karen Bakker characterizes this debate as follows: Proponents of market environmentalism in the water sector argue that water is an increasingly scarce resource, which must be priced at full economic and environmental cost if it is to be allocated to its highest-value uses, and managed profitably by private companies whose accountability to customers and shareholders is more direct and effective than attenuated political accountability exercised by citizens via political representatives. Opponents of market environmentalism argue that water is a non-substitutable resource essential for life, and call for water supply to be recognized as a human right, which (they argue) both places an onus upon states to provide water to all, and precludes private sector involvement. (Bakker 2007: 432)

Bakker argues that the policy options in question are not clarified by inclusive labels and generalizations but require close attention to local details and specific legal and policy instruments. Moreover, rather than oppose markets to rights, a more apt account would distinguish policies and practices treating water as a commodity versus those treating it as a commons. Thus, she goes on to point out that in much of the literature on “neoliberal nature” (and in many NGO and activist campaigning documents), water as a “commodity” is contrasted to water as a “human right”. Careful conceptualization of the neoliberalization of water demonstrates that this is misleading, insofar as the term “commodity” refers to a property rights regime applicable to resources, and human rights to a legal category applicable to individuals. The more appropriate, but less widely used, antonym of water as a “commodity” would more properly be a water “commons”. As explored in the following sections, this distinction has had significant implications for the success of “antiprivatization” and “alter-globalization” struggles around the world. (Bakker 2007: 436)

The Principle of Responsible Trusteeship  The principles of solidarity and the common good call for collective action in relationship to public health and water management. The principle of responsible trusteeship addresses the substantive content and effects of such collective action. The responsible course of action is context and situation specific. It is determined by a combination of general principles and values and factual scientific, social, and cultural knowledge. In the case of public health, for example, failure to correctly identify a pathogen and the administration of the incorrect vaccine or medication would constitute medical malpractice, and unwarranted use of quarantine or stigmatization would constitute a failure of trusteeship in the practice of public health. Similarly, the unsustainable use of an

2  Water and Ecological Ethics in the Anthropocene

33

aquifer or the biological degradation of a watershed and its dependent ecosystems are forms of environmental malpractice. Responsible trusteeship aims to establish right relationships between the human beings who use and affect water with artificial construction and technology, on the one hand, and the specific ecosystemic realities (i.e. the biological, chemical, and physical realities of water and watershed) on the other (Brown and Garver 2009). The Principle of Inclusive and Discursive Participation  Just as the principle of right relationship and responsible trusteeship addresses a substantive ethical standard for the content of public health and water management policies, so the principle of participation addresses the values inherent in the process of policymaking and decision making. Often the mechanisms and institutions of democratic governance are selective and rely on bargaining and interest maximization strategies by powerful, well-organized, and well-represented groups, and there is no one speaking for nature. This type of governance and decision making may not be well suited to the protection, conservation, and equitable distribution of common goods. More adequate governance mechanisms, from an ethical point of view, involve a deliberative, discursive, and participatory process marked by transparency, universal access to information, inclusiveness, and individual and community empowerment so that all may take advantage of the open information and the participatory opportunities (Jennings 2016).

2.5  The Law of Water: Private Property, Public Trust In the United States, particularly in urban areas, freshwater access and distribution have traditionally been governed by public entities. However, as overburdened and financially struggling public utilities fight to provide basic services, private companies are entering the scene with purchase agreements. The idea of owning water or any other natural resource is highly contested. The concept of water ownership varies dramatically in different parts of the US. For future development in law, there is an ethical opportunity to move from ownership of water – on the model of private property – to trusteeship for water – on the model of communal, participatory common pool resource management (Alcorn and Papp 2013). Two property rights doctrines form the basis of water rights in the US: the “prior-­ appropriation doctrine” and the “public trust doctrine.” (Glennon 2004: 13–21, 29–31; Kent 2003). Qui prior est in tempore, potior est in jure, or “first in time, first in right,” summarizes the gist of the post-appropriation doctrine that forms the basis of water allocation in the western US.  The first parties to have legally secured a valid right are permitted to take water before those whose rights vested later. Under this doctrine, tradition, security, and stability trump sound social policy. The system is essentially a tool for property allocation, with no consideration to social equity or non-administrative values. It creates a stable, predictable system, and this certainly has a social utility and serves some procedural values. But it is

34

B. Jennings and K. K. Gwiazdon

largely inattentive to the ethical and ecological principles outlined earlier in this chapter. The doctrine has inequitable distributional implications. In the American West, this has worked in favor of the traditional white landowners, at the continued expense of Indigenous Americans and other people of color (Savoy 2015). The prior appropriation doctrine is also out of touch with the scientific understanding and the broader social and environmental goals that contemporary water management policy and law should encompass. The public trust doctrine is increasingly being argued successfully as a legal tool to protect resources that should be held as common property. The concept of “the commons” includes the idea that through our public institutions, certain natural resources should be preserved for future generations (Bollier and Helfrich 2012; Ostrom 1990; Ostrom et al. 2012; Wall 2014). Water is a commons because it is the ecological basis of all life and because its sustainability and equitable allocation depend on cooperation among community members. The public trust doctrine, then, is the government’s legal tool whereby the common water resource is held in trust for the public, and the government regulates the commons in the public interest. The doctrine also promotes the goal of responsible trusteeship of essential resources from nature. These resources are so intrinsically important, and are of such a public nature, that private interests should not be permitted to appropriate or use them in ways that subordinate the public good to private interests. American law values precedent, and the public trust doctrine has a strong legal history. The doctrine is often traced back to sixth-century Roman civil law, in the declaration of the Justinian Institutes: “By the law of nature these things are common to all mankind—the air, running water, the sea, and consequently the shores of the sea.” In the case of Illinois Central Railroad Co. v. Illinois in 1892, the courts first recognized the public trust doctrine as a well-known common law rule, and Illinois Central remains good law today. In that case, the Court established two important principles. First, the public trust doctrine extends beyond tidal waters to include navigable freshwater bodies such as lakes, streams, and ponds. Second, although a State may convey the shores and beds of navigable waters to private parties, such conveyances are limited by the public trust in common resources. The private use must benefit the public’s interest in navigation, swimming, fishing, or other use of the waterway. The second principle of Illinois Central entails that government as trustee must act in a fiduciary capacity to protect trust resources. This has enduring value in applying the doctrine to other resources, such as permitting overgrazing, the disposal of dangerous wastes, failure to control erosion, and the like. The public trust doctrine also promotes what we have called the principle of inclusive and deliberative participation. A functioning trust relationship requires transparency of the trustees’ actions and inclusive participation by those who have a stake in the proper preservation and use of the entrusted resource. This calls for some combination of representational and participatory democratic mechanisms. And it raises the intriguing question of how non-human entities and future human generations are to be included in such democratic oversight (Freyfogle 2003, 2007).

2  Water and Ecological Ethics in the Anthropocene

35

2.5.1  A  pplying Ethical Principles: Right Relationship and Trusteeship in Water Management During the millennia of the Holocene, the water cycle in any given region has reached a dynamic equilibrium condition for surface and groundwater. The native flora and fauna have evolved to fit that water regime. Humans can share in the bounty of this essential substance with other creatures over time if we pay careful attention to the nature of the resource and see our relationship to water as one of holding it in attentive trust. Most experts agree that water conservation potentials have barely been tapped, and water conservation is not uniformly practiced. Instead, most societies persist in managing freshwater and wastewater as though they think that they still have an endless frontier of water supplies and disposal sites.

2.5.2  A  ccommodating the Interconnectivity of Water in Fair Governance and Use A fundamental fact in constructing an ethic for water is that all water is connected as part of the hydrological cycle (Llamas 2004). Most visible to us is the surface water, but that water is connected to the atmospheric water and the water hidden in the land, as well as that embodied in living things or their remains. Connectivity means that a use of water for one purpose may diminish other uses of water; likewise, the misuse of land or pollution of the atmosphere may harm water resources. In actuality, all water is in use all the time, in some part of the hydrological cycle or by living things. If all water is in use, then “ownership” can be only partial and temporary, which implies trusteeship or stewardship. Indeed, it makes no sense to say that we own or control the water that makes up 60–70% of our own bodies. Only a very small portion of Earth’s total water is free from bacterial or chemical contamination (the most common being salt) and thereby fit for drinking by humans. Moreover, water of potable quality or purer is necessary for many industrial processes as well. The good news is that processes of evaporation and evapotranspiration from plants continually renew this freshwater (rainwater) free of charge. Even so, two assumptions, not often explicitly stated, must be called into question by ethical water management: first, the assumption that all water is always available for human purposes; and second, that the health and functioning of the water cycle as a whole is essentially unaffected by what human beings do to water as it passes through a portion of that cycle. The first is questionable because equity and trusteeship pertain not only among humans, but between humans and other species. The second is mistaken because unsustainable land use and agricultural practices undermine the natural systemic basis upon which more sustainable practices might be reestablished and ultimately rest (Postel 2008). Water should be understood from an Earth-system perspective and a cognate relational ethical perspective precisely because the connectivity of water is so

36

B. Jennings and K. K. Gwiazdon

crucial to so many other bio-physical phenomena. The image of damming a river is only one of the many ways human activity affects the movement and connectivity of water and so raises ethical questions of ethically responsible trusteeship and conservation and equitable allocation of water, especially healthy drinking water, among human and nonhuman users (Acreman 2004). The purifying functions of evaporation and evapotranspiration, generated by wind and solar heating, transform water into water vapor. In the atmosphere, the stored (latent) energy released (as water vapor cools and condenses) becomes a potent generator of weather systems. As the Earth heats up with climate change, more evaporation will generate more storms, more intense rain events, hurricanes, and tornadoes, and more periods of drought (Kling et al. 2003). In addition to atmospheric turbulence and violent weather, global warming is releasing freshwater long stored in polar and glacial ice, which will eventually raise the sea level, inundating low-lying coastal areas and further intensifying the effects of storms on these places. The inundated or storm-swept sites may be far from the sources of carbon dioxide emissions. Thus, we must recognize that our simple daily energy uses are impacting the water cycle in distant places. In 2012, assumptions for the eventual Paris Agreement set global mean sea level rise at 2 m by 2100. In 2017, the National Oceanic and Atmospheric Administration (NOAA) increased its estimates of global mean sea level rise to 2.5 m (8.2 feet). These estimates are changing because massive ice sheets in Greenland and the Antarctic have begun to collapse more rapidly and more extensively than previously projected. Earlier models did not take this into account (NOAA 2017). There is enough water in Greenland ice alone to raise the world’s oceans by 22 feet. Land-based ice sheet collapse has a tipping point, but we do not know what it is. What does seem certain is that steps must be taken to adapt to sea-level rise and its related effects. A gradual repositioning of the coastlines of the world will be punctuated by sudden disasters of flood damage and relentless incursion of salt water into freshwater aquifers. Two out of three of the world’s cities are located on coastlines, and a large percentage of the world’s population lives there. Such flooding and freshwater shortages can be expected to produce massive inland movement of climate refugees. Jeff Goodell describes the prospect this way: “The difference between three feet and six feet [of sea level rise by 2100] is the difference between a manageable coastal crisis and a decades-long refugee disaster” (Goodell 2017: 69). Water bodies have long been used as dumping grounds. We have purposely dumped or discarded troublesome materials into rivers, lakes, streams, and wetlands. Atmospheric dust is an additional source of pollution. Dust particles often bear residues of pesticides, herbicides, and fungicides, extensively used in modern agriculture. These chemicals are carried back to earth in precipitation (acid rain is one example) and often land in places where they are harmful. Materials that do not break down can be taken up into the food chain and become concentrated in higher parts of the chain, causing disease and death all along the way. For example, no part of the Earth from the Greenland ice cap to the waters of the Antarctic is now free from DDT residues, which are often found in high concentrations in fish, mammals, and birds (Hassan et al. 2005: 750). This fact has been known for several decades.

2  Water and Ecological Ethics in the Anthropocene

37

The oceans are the ultimate dumping area, long thought to be an inexhaustible locale for dilution or conversion. Recently, however, researchers have documented that considerable portions of the surface waters of the North Atlantic Ocean surface are saturated with CO2, a condition once considered impossible (Schuster and Watson 2007). Moving now from a large system and cycle perspective to a more bioregional one, each place on the landscape has a set of conditions related to water, particularly consumable water. Issues concerning the relationship of the water to the land include the location of the water; how abundant it is in each of the places where it is found; how accessible and pure it is; how variable its supply is; how it is used in the local ecosystem; the upstream and downstream surface or subsurface flows; and how it is related to adjacent watersheds. These considerations must be an integral part of assessment and policymaking if policy is to fulfill the principle of responsible trusteeship. They make possible management decisions that, with the appropriate monitoring systems, can nourish long-term flourishing of the whole community of life in a given place (Whiteley et al. 2008). On land, the water cycle starts with precipitation, which may seep into the soil or run off more or less rapidly into streams or lakes. The infiltration and rate of run-off are determined by place and scale of the precipitation event and by the characteristics of the locale in terms of soil types and their saturation, plant cover, or hilliness. Scale factors include the intensity of the precipitation event, the recent frequency of events, the distance to rivers or wetlands, and the size of areas that retard these flows. Run-off makes its way to wetlands, lakes, or streams. Wetlands slow and hold water. If rainfall is heavy or large amounts of snow melt rapidly, flooding can occur locally or over wide areas. Farming on many kinds of soils, forests, and grasslands may alter the flow of the water. Lawns, roofs, and hard surfaces of all kinds speed the run-off into streams, leading to local or more widespread flooding. In many areas, the prevailing management consideration is to drain fields and business, industrial, and housing areas as rapidly as possible. A greener management of rainwater is now being energetically advocated in some areas; these measures include porous pavement, swales, and rain barrels, which together greatly slow run-off, even in heavy rain events. For most parts of the world, and increasingly also in the US, stormwater is lost drinking water, lost ecosystem water (Acreman 2004). Ethically responsible water management must consider the geography of the entire watershed and understand its potentials and limitations to safeguard water sources. Finally, nature, as well as humans, has ways of containing water, particularly in rock formations called aquifers that receive and hold water infiltrating from the surface. Water stored in many aquifers does not regenerate as readily as water moving through other parts of the water cycle. Indeed, it may take decades, or even centuries, to naturally restore depleted groundwater levels. As with stores of water in human containments, naturally stored groundwater is subject to human attempts to appropriate water and then to redistribute it among various uses by various individuals and groups. Depletion of deep aquifers is currently taking place in several areas around the world that are experiencing prolonged drought or increased population demand,

38

B. Jennings and K. K. Gwiazdon

such as parts of India and the Central Valley of California, a major source of fruit and vegetables for the global market (Zamora et al. 2015).When water is pumped from an aquifer, a cone of depression of the water level develops around the well pipe. When the water has been pumped to such an extent that the cone drops below the bottom of the well pipe, then further pumping will not bring up water. If another well is sunk to a deeper level, water again may be pumped up. In some cases, an individual, business, or city may sink a well deeper than a neighboring well and take all of the water away from the shallower well. Aquifer rock formations may be quite expansive and extend across the boundary lines of private property on the surface. Laws that permit a surface landowner to tap into groundwater in an unlimited way will affect others who are drawing from the same aquifer. To complicate matters still further, wells may interact with each other and with aquifers below in ways that deplete or degrade water resources collectively. In some aquifers, the water from deeper in the aquifer contains minerals that make it unusable. Private rights and commodification provide no efficient solution to this kind of collective action dilemma. In the case of groundwater, we see that a complex set of conditions governs the actual availability of the water from an aquifer. The complexity is composed of the nature of the geological structure and history of the place, the time it takes to recharge an aquifer, the rate of pumping, the depth of the wells, the chemical contaminants of the surface layers, and the chemical constituents of the deep layers. Careless disposal of materials on the surface can cause the contamination of an aquifer that may not be naturally resolved for hundreds or thousands of years and may require expensive treatment of pumped water, if indeed that water can be used at all.

2.6  Conclusion Ecologically informed and ethically responsible water management is essential for public health and is necessary to secure water resources for the future generations of all life forms. As human beings and as individuals in a society, we must find a way to fulfill our ecosystemic and intergenerational responsibilities. An important first step is to acknowledge a simple truth: each of us is utterly dependent upon the diverse complexity of the ecological and planetary systems and cycles that provide life to all living things. From this foundational understanding, we must then recognize and acknowledge our individual and relational responsibilities in political discourse, in public policy and law, and in our educational systems. The motivations and commitments that lead a democratic society to support a regime of ecological conservation and protection include considerations of human dignity, equity, solidarity, the common good, and trusteeship. Recognizing the myriad ways in which human health is affected by the human uses of water entails taking the next step of democratically mandating water governance policies and management practices that protect and support the integrity of watershed dynamics,

2  Water and Ecological Ethics in the Anthropocene

39

groundwater conservation, and the healthy functioning of the regenerative water cycle: that is, respecting the water commons. To support a strong public health system, each individual must value not only their own health, but also the health of others and the health of the entire community of life. Similarly, to support a healthy water commons, each individual must also respect the fragility and limitations of Earth’s water plenitude.

References Acreman M (2004) Water and ethics: water and ecology, UNESCO Water and Ethics Series, Essay 8. UNESCO, Paris Alcorn J, Papp K (2013) Right scale, resilient watersheds: managing complexity through nodal networks. Minding Nat 6(1): 35–47. http://www.humansandnature.org/right-scale-resilientwatersheds. Accessed 21 Feb 2020 Bakker, K. 2007. The ‘commons’ versus the ‘commodity’: alter-globalization, anti-privatization and the human right to water in the global South. Antipode Radical J Geogr 39:3: 430–455. https://doi.org/10.1111/j.1467-8330.2007.00534.x. Accessed 21 Feb 2020 Bellaubi F, Bustamante R (2018) Towards a new paradigm in water management: Cochabamba’s water agenda from an ethical approach. Geosciences 8:177 Bollier D, Helfrich S (eds) (2012) The wealth of the commons: a world beyond market and state. Levellers Press, Amherst Brelet C (2004) Some examples of best ethical practice in water use. UNESCO: World Commission on the Ethics of Scientific Knowledge and Technology, Paris. https://unesdoc.unesco.org/ ark:/48223/pf0000134430. Accessed 21 Feb 2020 Brown PG, Garver G (2009) Right relationship: building a whole earth economy. Berrett-Koehler, San Francisco Carrington D (2016) The Anthropocene epoch: scientists declare dawn of human-influenced age. The Guardian, August 29. https://www.theguardian.com/environment/2016/aug/29/declareanthropocene-epoch-experts-urge-geological-congress-human-impact-earth. Accessed 21 Feb 2020 Freyfogle ET (2003) The land we share: private property and the common good. Island Press, Washington, DC Freyfogle ET (2007) On private property: finding common ground on the ownership of land. Beacon Press, Boston Frumkin H (ed) (2010) Environmental health: from global to local, 2nd edn. Wiley, San Francisco Glennon R (2004) Water follies: groundwater pumping and the fate of America’s fresh waters. Island Press, Washington, DC Goodell J (2017) The water will come: rising seas, sinking cities and the remaking of the civilized world. Little Brown, New York Goodin R (1995) Utilitarianism as a public philosophy. Cambridge University Press, Cambridge Goodpaster K (1978) On being morally considerable. J Philos 75(6):308–325 Hassan R, Scholes R, Ash N (eds) (2005) Millennium ecosystem assessment: ecosystems and human well-being: Current states and trends, vol 1. Island Press, Washington, DC Ingram H, Feldman D, Whiteley JM (2008) Water and equity in a changing climate. In: Whiteley JM, Ingram H, Perry RW (eds) Water, place, and equity. MIT Press, Cambridge, MA, pp 271–308 IPCC (2018) Global warming of 1.5°C: an IPCC special report on the impacts of global warming of 1.5° (Eds: Masson-Delmotte V, Zhai P, Pörtner HO, Roberts D, Skea J, Shukla PR). World Meteorological Organization, Geneva. https://www.ipcc.ch/sr15. Accessed 21 Feb 2020

40

B. Jennings and K. K. Gwiazdon

Jamieson D, Di Paola M (2016) Political theory for the Anthropocene. In: Held D, Maffetonne P (eds) Global political theory. Polity Press, Malden, pp 254–280 Jennings B (2015) Ecological solidarity. Minding Nat 8(1):4–10 Jennings B (2016) Ecological governance: toward a new social contract with the Earth. University of West Virginia Press, Morgantown Jennings B, Dawson A (2015) Solidarity in the moral imagination of bioethics. Hast Cent Rep 45(5):31–38 Kent PG (2003) The public trust doctrine in the twenty-first century: challenges and opportunities. In: Meine C (ed) Wisconsin’s waters: a confluence of perspectives, Transactions of the Wisconsin Academy of Sciences, Arts and Letters, vol 90, pp 37–50 Kessel A, Stephens C (2011) Environment, ethics, and public health. In: Dawson A (ed) Public health ethics: key concepts and issues in policy and practice. Cambridge University Press, Cambridge, pp 154–173 Kling GW, Hayhoe K, Johnson LB, Magnuson DJ, Polasky S, Robinson SK, Shuter BJ, Wander MM, Wuebbles DJ, Zak DR (2003) Confronting climate change in the Great Lakes region: Impacts on our communities and ecosystems. Union of Concerned Scientists/Ecological Society of America. https://www.ucsusa.org/resources/confronting-climate-change-greatlakes. Accessed 21 Feb 2020 Le Quéré C, Andrew RM, Friedlingstein P, et al (2018) Global carbon budget 2018. Earth Syst Sci Data 10: 2141–2194. https://www.earth-syst-sci-data.net/10/2141/2018. Accessed 21 Feb 2020 Llamas R (2004) Water and ethics: Use of groundwater, UNESCO Water and Ethics Series, Essay 7. UNESCO, Paris National Oceanic and Atmospheric Administration (NOAA) (2017) Global and regional sea level rise scenarios for the United States. NOAA Technical Report NOS CO-OPS 083. National Oceanic and Atmospheric Administration, Silver Spring. https://tidesandcurrents.noaa. gov/publications/techrpt83_Global_and_Regional_SLR_Scenarios_for_the_US_final.pdf. Accessed 21 Feb 2020 Nedelsky J (2013) Law’s relations: a relational theory of self, autonomy, and law. Oxford University Press, New York Ostrom E (1990) Governing the commons: the evolution of institutions for collective action. Cambridge University Press, Cambridge Ostrom E, Chang C, Pennington M, Tarko V (2012) The future of the commons. Institute of Economic Affairs, London Pearce F (2006) When the rivers run dry: water – the defining crisis of the twenty-first century. Beacon Press, Boston Porto M (2004) Water and ethics: human health and sanitation, UNESCO Water and Ethics Series, Essay 6. UNESCO, Paris Postel S (2008) The missing piece: a water ethic. Am Prospect:A22–A23 Priscoli JD, Dooge J, Llamas R (2004) Water and ethics: overview, UNESCO Water and Ethics Series, Essay 1. UNESCO, Paris Reynolds GC (2003) A native American water ethic. In: Meine C (ed) Wisconsin’s waters: a confluence of perspectives, Transactions of the Wisconsin Academy of Sciences, Arts and Letters, vol 90, pp 143–162 Rockström J, Klum M (2015) Big world, small planet: abundance within planetary boundaries. Yale University Press, New Haven Rockström J, Steffen W, Noone K, Persson A, Chapin FS III, Lambin EF, Foley JA (2009) Planetary boundaries: exploring the safe operating space for humanity. Ecol Soc 14(2):32 Sabatier P, Focht W, Lubell M, Trachtenberg Z, Vedlitz A, Matlock M (2005) Swimming upstream: collaborative approaches to watershed management. MIT Press, Cambridge, MA Savoy L (2015) Trace: history, race, and the American landscape. Counterpoint, Berkeley Schmidt JJ (2017) Water: abundance, scarcity, and security in the age of humanity. New  York University Press, New York Schmidt JJ, Brown PG, Orr CJ (2016) Ethics in the Anthropocene: a research agenda. Anthropocene Rev 3(3):188–200

2  Water and Ecological Ethics in the Anthropocene

41

Schuster U, Watson AJ (2007) A variable and decreasing sink for atmospheric CO2 in the North Atlantic. J Geophys Res 112:C11. https://doi.org/10.1029/2006JC003941 Selborne L (2000) The ethics of freshwater use: a survey. UNESCO: World Commission on the Ethics of Scientific Knowledge and Technology, Paris. http://unesdoc.unesco.org/ images/0012/001220/122049e.pdf. Accessed 21 Feb 2020 Shiva V (2002) Water wars: privatization, pollution, and profit. South End Press, Cambridge, MA Shrader-Frechette K (2005) Environmental justice: creating equality, reclaiming democracy. Oxford University Press, New York Shue H (1996) Basic rights: subsistence, affluence, and U.S. foreign policy, 2nd edn. Princeton University Press, Princeton Singh HS, Cullinane S (2016) Agreement with Delhi caste protesters reached after clashes, water disruption. CNN, February 23. http://www.cnn.com/2016/02/22/asia/india-unrest-water-crisis. Accessed 21 Feb 2020 United Nations Department of Economic and Social Affairs (2014) The human right to water and sanitation. http://www.un.org/waterforlifedecade/human_right_to_water.shtml. Accessed 21 Feb 2020 Vintinner E, Sterling E (2008) Natural solutions to our water crisis. In: Lohan T (ed) Water consciousness: how we all have to change to protect our most critical resource. AlterNet Books, San Francisco, pp 134–145 Wall D (2014) The commons in history: culture, conflict, and ecology. MIT Press, Cambridge, MA Whiteley JM, Ingram H, Perry RW (eds) (2008) Water, place, and equity. MIT Press, Cambridge, MA Wisconsin Academy of Sciences Arts and Letters (2003) Waters of Wisconsin: the future of our aquatic ecosystems and resources. Wisconsin Academy of Sciences, Arts and Letters, Madison World Water Forum (WWF) (2015) Water ethics Charter 2.0. http://waterethics.org/the-waterethics-charter. Accessed 21 Feb 2020 Zamora A, Kirchner L, Lustgarten A (2015) California’s drought is part of a much bigger water crisis: here’s what you need to know. ProPublica, June 25. https://www.propublica.org/article/ california-drought-colorado-river-water-crisis-explained#. Accessed 21 Feb 2020

Chapter 3

Contextualizing a Human Rights Perspective for Water Ethics: From Exploitation to Empowerment and Beyond Alex Wellington

Abstract  Throughout policy discussions about water management, two familiar solutions to achieve security and sustainability are proposed: markets and states. Advocates of market environmentalism champion the use of market pricing and significant involvement of the private sector in water systems to achieve water conservation and efficiency. That perspective has affinity with Dublin Statement principles affirming the finitude and vulnerability of water and emphasizing that water should be recognized as an economic good. Critics warn that markets suffer from numerous and serious flaws. Left unregulated, markets generate externalities such as pollution and fail to protect the interests of the most marginal and vulnerable. The decision-making processes that are typical of markets neglect to ensure opportunities for participation in decision making by those most affected: communities and consumers. It is recommended here that the focus of water policy should not be on a simple binary, market or state, in isolation. Instead, from a human rights perspective, the crucial consideration is where, when, and how the market and state should each play their respective roles in the pursuit of sustainability and water security. A human rights perspective offers us a shift in priorities, a way to reaffirm values and priorities that are obscured at best and disregarded at worst by market environmentalism. Core elements of human rights are reflected in other Dublin Statement principles advocating for a participatory approach to water management and incorporating a concern for equity and non-discrimination in access to water. This chapter suggests that we need human rights, and specifically the human rights to water and sanitation, because we do not yet live in a socially just, ecologically sustainable world. Keywords  Water policy · Market environmentalism · Efficiency · Human rights · Empowerment · Sustainability · International law

A. Wellington (*) Ryerson University, Toronto, ON, Canada e-mail: [email protected] © Springer Nature Switzerland AG 2021 I. L. Stefanovic, Z. Adeel (eds.), Ethical Water Stewardship, Water Security in a New World, https://doi.org/10.1007/978-3-030-49540-4_3

43

44

A. Wellington

3.1  Introduction Water is essential to human survival and indispensable for living a human life in dignity. Ironically, while water is abundant on the earth, in the potable form that is most needed it can be, and often is, in short supply. Benefits-generating human activities depend on having the right amount of water in the right place at the right time. Too much at the wrong time in the wrong place can be just as dangerous as too little (Grey and Sadoff 2007: 547). Achieving the balance in access to water can be exceptionally challenging.1 Water has many meanings for human beings, as a natural resource with substantial potential for ecological functionality and ecosystem services,2 serving as a means of transportation and place for recreation, and a substance with significant aesthetic, cultural, and spiritual value (Pradhan and Meinzen-­ Dick 2003: 51). Water can function as a collective public good, a community resource, or a marketable good. The proper management of water is a major resource issue for all communities, cities, and countries. Thinking about the myriad human uses of water leads naturally to considering our personal relationships to water and the ways that water helps to mediate our relations with each other. These uses include meeting basic needs for survival and facilitating daily domestic tasks of hygiene, grooming, and food preparation. Some people rely on water for their lawns and gardens, or to fill their swimming pools and fountains. Others depend upon water for subsistence farming or small-scale farms that are crucial to maintaining communities where there are no alternative employment options within a reasonable commuting distance (Feitelson 2017: 61). Many industries have a business model that requires water as a factor of production or a sink for disposal of wastes. Water is needed to be retained by and returned to nature to ensure the flourishing and even survival of ecosystems. Nonhuman animals, too, have their own needs for water of sufficient quality and quantity to ensure their survival and accomplish their daily tasks. Deep reflection and careful consideration should be given to the question of which policies will be best suited to prioritize and resolve conflicts between these not always compatible uses of water. It might be hoped that water could be viewed as a public good, part of the common heritage of humanity, and that there will be enough for all. However, 1  I am grateful for the commentary by Sari Graben and Patricia Hania, and questions and suggestions from Daniele Bertolini, Chris MacDonald, and Hasko Von Kriegstein, when I presented this work during the Business Ethics in the 6ix Annual Forum at Ryerson University, in Toronto, Ontario, Canada, in May 2018. I would also like to give special thanks to Allan Greenbaum and Peter Shepherd for feedback on earlier versions of the work. 2  The concept of ecosystem services captures myriad benefits that people obtain from ecosystems, including provision of water, food, timber, and fiber, and extending to supporting services such as flood control, nutrient cycling, photosynthesis and soil formation, and climate regulation. Other aspects of ecosystem services include water purification (contributing to disease prevention) and carbon sequestration, as well as contributions to human security garnered through clean water and nutritious food. Ecosystem services provided a crucial focus for the Millennium Ecosystem Assessment, initiated in 2001 by then United Nations Secretary-General Kofi Annan. See Adeel 2012; Blanco and Razzaque 2009.

3  Contextualizing a Human Rights Perspective for Water Ethics: From Exploitati…

45

experience has shown that overall demands for water across societies often can and do exceed availability, and there are expected increased future demands upon water supplies due to continuing urbanization, industrial development, population growth, and further changes in daily diet (toward even more water-intensive ingredients) (Winkler 2012: 16, 20ff). Moreover, dire warnings of impending water shortages on the horizon, resulting from the intensification of the climate crisis, would caution against complacency. Water governance poses particular challenges for achieving policy goals of human security and ecological sustainability. A familiar understanding of sustainability comes from the 1987 World Commission on Environment and Development (WCED), otherwise known as the Brundtland Commission. In the report titled Our Common Future, the Commission provided the much-quoted definition of sustainable development as the wise use of resources to serve the needs of the present generation without jeopardizing the needs of future generations. For human beings to have meaningful security, they need sustainable access to water that is available and of sufficient quality and quantity to ensure human survival, individual flourishing, and societal well-being (World Economic Forum 2011; Bigas 2012).3 Water is especially salient to several distinct meanings of security (Adeel 2012; Cook and Bakker 2013; Leb and Wouters 2013; Schmidt 2012; UN DP 2006). On a more narrowly circumscribed definition, security is achieved through the absence of civil unrest or armed conflict. Distributional inequities of water abound, arising from disparities between water-rich and water-poor locales. Such disparities can generate conflict between neighbors. Those who are better endowed with respect to water resources could leverage that advantage, a point emphasized by the US National Intelligence Council in its report on global water security (United States Office of the Director of National Intelligence 2012). Security more broadly understood can be viewed as a fundamental aspect of human well-being; such a perspective can be found in the Millennium Ecosystem Assessment (Adeel 2012). In this sense, a person needs to have water security, as well as food security, adequate shelter, means of earning a livelihood, good health, and a clean and safe environment, to have well-being. Overall social benefit can be jeopardized by water insecurity. The Global Water Partnership, an intergovernmental organization focusing on integrated water resource management, has reported on economic costs resulting from lack of water security, as evidenced in costs of drought, flooding, and water-borne illnesses. Access to affordable and available water is a crucial aspect of the realization of many human rights, including most specifically the human right to water, but it is also fundamental for the fulfillment of the rights to food, health, housing, and work. Principles articulated in the context of the Dublin Statement on Water and Sustainable Development can help to ground the discussion here. The first principle states that “fresh water is a finite and vulnerable resource, essential to sustain life,

3  Grey and Sadoff (2007: 548) characterize security in terms of an “acceptable level of waterrelated risks to people, environments and economies.”

46

A. Wellington

development and the environment” (WMO 1992: 1–2). Effective management, it is urged, should aim to be holistic, linking social and economic development with protection of ecosystems. It could be argued that recognition of the finitude and vulnerability of the resource is a crucial first step in the development of optimal water policy in pursuit of security and sustainability. The question, then, is which ethical perspective best captures that sense and builds fruitfully upon it. Throughout policy discussions about water management, one finds debated several familiar “solutions” to achieve security and sustainability: markets and states. Advocates of market environmentalism champion the use of market instruments, market pricing, and significant involvement of the private sector in water systems in pursuit of conservation and efficiency. They contend that water is fruitfully understood as a marketable good, a proper subject of economic exchange, and one suitably subjected to market pressures. Water, in this competing perspective, is framed as individual private property, to be packaged and sold, providing a focus of speculation on futures markets. Water policy, then, on this account, should be governed by considerations of efficiency. Market environmentalism has been championed by many, including, prominently, Terry Anderson and Donald Leal (2004, 2015); it has also generated its share of detractors and critics. Critics warn that markets suffer from numerous and serious flaws. Left unregulated, markets generate externalities such as pollution and fail to protect the interests of the most marginal and vulnerable citizenry. The decision-­ making processes that are typical of markets neglect to ensure opportunities for participation in decision making by those most affected: communities and consumers. In opposition to market environmentalism, critics charge that there is plenty of value that is missing, such as sufficient consideration of equity issues and community concerns, as well as incorporation of norms of participatory decision making. Governments abdicate their responsibilities when they hand public utilities over to private sector entities. Yet, the turn to markets as a solution was premised on the failings of the state to meet needs and to provide access to water of sufficient quality or quantity, whether due to bureaucratic inertia, waste, or corruption. The stark choice between states and markets seems to represent an intractable policy dilemma. Different approaches to water management reflect distinct normative perspectives; in turn, these can generate contending policy options (Rose 1991; Stefanovic 2015).4 By our choice of approach to water governance, we tell a different story about the ways that we view ourselves, our relations with each other, and our mediated relations to nature. This chapter is dedicated to a consideration of nuances that may be missed when markets and states are viewed in isolation. It shifts the focus of analysis to the intersections and interstitial spaces that open up with recourse to a human rights perspective on water. From such a perspective, the question is not whether it should be markets or states acting alone, but instead when, where, and

4  Ingrid Leman Stefanovic (2015) provides a Canadian case study that examines the role of values, perceptions, and attitudes in the context of decision making in water management.

3  Contextualizing a Human Rights Perspective for Water Ethics: From Exploitati…

47

how the market and the state should each play their respective roles, and what the proper relations between them should be in the water sector. The structure and trajectory of the present work unfolds as follows. The first section canvasses and scrutinizes claims made by advocates of market environmentalism in the context of water, focusing on market pricing and private sector participation (PSP). The promise of a human rights perspective for water ethics is the focus of the second section. While human rights advocates, too, have their challenges (and their challengers), it is proposed that the emphasis on inclusivity and participation, the focus on equity and non-discrimination, the determination that rights have to be pursued through proper processes, and the insistence upon the need for remedies for breaches redeems the potential of that perspective as a pathway forward.

3.2  R  esource Exploitation and Market Environmentalism: Conservation and Efficiency A common feature of the contemporary public policy landscape is the participation of private sector entities, relying upon markets as mechanisms for resource allocation in meeting basic needs for food and housing as well as water (Vandenhole and Wielders 2008). This perspective connects directly to an oft-quoted principle from the Dublin Statement, affirming that “water has an economic value in all its competing uses and should be recognized as an economic good” (WMO 1992: 2). Such an approach relies upon a combination of policy measures, including allocation of private property rights, development of partnerships between public authorities and the private sector, and contractual arrangements for delivery of drinking water and sanitation services. Governments seeking to realize greater efficiencies, to motivate conservation, and to attract investment turn to the private sector for help. For their part, private sector entities expect to find opportunities for making profit and some assurances of protections against the considerable risks that can arise (Morgan 2006a: 393; Woodhouse 2003). Economic instruments, insist their advocates and champions, can help to achieve efficiency, promote conservation, and stimulate innovation, with the right alignment of incentives and disincentives (Garrick and Hope 2013: 206ff; Segerfeldt 2005; Shirley 2002).

3.2.1  Terminological and Conceptual Clarifications Conservation and efficiency serve as guiding values motivating and animating this ethical perspective. The latter merits a brief explication, since it is a term that has both everyday and specialized meanings in this context. Efficiency, in the ordinary sense of the term, refers to the production of a desired effect with a minimum of effort, expense, or waste. Efficiency in economic theory refers to the extent that a

48

A. Wellington

particular allocation of resources maximizes overall value measured in terms of how many people’s “preferences” could be satisfied by a particular course or action or policy.5 Ensuring that a natural resource will be used in accordance with its “highest value use” ensures economic efficiency. The term “conservation” serves in its everyday capacity in the policy literature. Popular discourse in which debates over water policy appear prominently can leave the impression that private sector involvement in the water sector is tantamount to the commercialization of water (Barlow and Clarke 2003; Barlow 2007, 2013; Shiva 2016). Commercialization can be differentiated from privatization, as can commodification (Bakker 2005: 542). Commercialization refers to practices such as cost-recovery pricing, methods such as cost-benefit analysis, and goals such as for-profit maximization (Bakker 2005: 544).6 In media coverage and popular culture discussions of water policy, debates tend to use the term “privatization” as an umbrella term, or treat it as shorthand covering a range of diverse arrangements and measures. In the present work, the phrase “private sector participation” (and the acronym PSP) will serve to capture the broad range of ways that private sector entities participate in water systems and water services, including concession contracts, leases, public–private partnerships (PPP) for public utilities, and more. The narrow sense of privatization that entails the divesture or sale of assets from the public to the private sector is quite rare for water (Murthy 2013: 124; Woodhouse 2003: 300).7 The assumption is often made that PSP and market pricing work in tandem, although they are distinct and should not be conflated. PSP relates to arrangements for private sector entities to take on management functions and responsibilities for water systems and services; true privatization, as just noted, brings about a change in ownership from the public sector to the private sector. Public systems could adopt cost-recovery pricing for water, and systems involving contracting services out to the private sector may rely upon a distribution principle other than market pricing. Yet, it is the case that typically privatization and reliance upon market pricing do coincide (Hall and Lobina 2006; Kishimoto et al. 2014, 2015). The patterns observed by numerous researchers who have focused on the role of business in water illustrate the common convergence of market pricing and privatization.

5  Passage draws upon Wellington (2018: 228–229). Economic efficiency reflects the state of Pareto optimality, in which no individual could be made better off (by a resource allocation option) without thereby making another individual worse off (Bakker 2005: 561, n. 3). See Wellington (2018) for elaboration; the topic is beyond the scope of this work. 6  Commodification can be even more complex to define; that topic is beyond the scope of the present work. See Bakker (2005) and the papers collected in Ertman and Williams (2005). 7  Bakker (2010: xv–xvi) uses “privatization” to cover both broad and narrow senses, while differentiating “small-scale private entrepreneurs” as a distinct category. Bakker does not include community groups, cooperatives, nongovernmental organizations, or religious associations that play a role in water supply, particularly to the poor, under the umbrella of either “private” entities or “public” entities.

3  Contextualizing a Human Rights Perspective for Water Ethics: From Exploitati…

49

3.2.2  Markets as a Remedy for Tragedy of the Commons Arguments for market environmentalism draw from a convergence of normative frameworks, including utilitarian consequentialism and welfare economics. The former has been identified by Peter Brown and Jeremy Schmidt (2010), in their collection of readings on Water Ethics, as a “default ethics” for water resource development and management.8 Welfare economics, concerned with achieving optimal resource allocation in society, is focused on property rights and market instruments as the means for doing so. Markets are well suited to motivate, mobilize, and facilitate exchanges between individuals, firms, and corporations, with money serving as a relatively transferable medium to track readily quantifiable values. Natural resource exploitation is a much-vaunted way to generate social benefit, but it is not without its challenges. A familiar refrain is that natural resources in particular are at risk from the tragedy of the commons (Hardin 1968; Hardin and Baden 1977; Noonan and Baden 1998). The tragedy can arise when natural resources are treated as “open access,” to be shared and available to all, and then depleted. With open access, or property that serves as a common pool with no rules or restrictions on access or use, anyone may exploit it to any degree provided that the marginal benefits to oneself exceed the marginal costs (to oneself) of doing so (Blomquist 1998: 2). Real-world examples of unsustainable resource extraction practices include the extinction of passenger pigeons through unregulated hunting and the overdraft (when extraction exceeds recharge over the longer term) of regional groundwater aquifers in California attributed at least partly to the history of open access management (Ayres 2018; Ayres et al. 2018; Chappelle et al. 2017). In addition to the risk of overuse, the commons was in jeopardy of excess pollution, since (according to the theory) polluters would have no incentive to control their pollution.9 Angela Kallhoff envisages a village beside a lake, the residents of which have continued for some time to treat the lake as a source and a sink for waste and who come to realize that they can no longer keep doing so (2017: 92). Carol Rose has characterized the classic story of unowned resources in these terms: “They are likely to be overused and under-cared for, and even interested or well-meaning parties are helpless to do anything about the situation” (1991: 4). Hardin offered up the risks of destruction and pollution of the commons in order to argue for his preferred policy option: private property rights in natural resources (Smith 1981). Hardin and his supporters insisted that the problem lay with the market’s failure to internalize costs of resource depletion and pollution (Flatt 2006: 122). The optimal correction of the market failure could be secured by internalizing costs through property rights, and appropriate market signaling. If privatization was

8  Ingrid Leman Stefanovic (2015) discusses the implications of a failure of vision that neglects broader considerations of rights and concerns of communities with a too narrow focus on utilitarianism. 9  The notion of excess pollution relies, for contrast, upon a conception of optimal, or below excess levels, rather than affirming a goal of zero pollution. See e.g. Baxter (1974).

50

A. Wellington

not on the horizon, Hardin insisted that an autocratic role for the state would instead be needed to prevent depletion and excess pollution.

3.2.3  W  hy Do Governments Welcome PSP?: Conservation and Water Pricing Citizens rightly expect that their governments will be on their side, looking out for and acting in their interests. Champions of social justice are skeptical that governments could properly discharge their duties to their citizens by involving the private sector. Nevertheless, numerous governments have rationalized their relationships with business by insisting that it can help them to fulfill their obligations. Advocacy of private sector involvement in the water sector has come from international financial institutions (IFIs), bilateral organizations devoted to development aid, professional associations, and scholars (Lobina and Hall 2003: 3). These institutions, organizations, associations, and individuals have expressed the belief that governments, faced with shrinking resources, ballooning budget deficits, complexities of coordinating delivery and oversight of public services, and ever mounting infrastructure maintenance and renewal costs, could, and should, enter into deals with private companies to fill the gaps. The motivations and rationales for governments to enter into contractual arrangements with private companies were explored and summarized in an OECD-­ sponsored roundtable on regulation and competition in the water sector from 2004. Proponents of free-market environmentalism insist that water is an increasingly scarce resource and that it needs to be allocated to highest-value uses, as determined by market mechanisms. Such proponents would endorse increasing participation of private, for-profit, and often multinational corporations in operating water supply systems, on the grounds of efficiency and in pursuit of the goal of water conservation. In general, it is argued that market-based mechanisms will generate greater efficiencies. Specifically, it is charged that when water is provided by the public sector, there is wastage, unaccounted-for water, and leaks that spring all over. Empirical research on water systems around the globe has revealed that many municipal governments operating water services are not covering the full costs through water tariffs (Davis 2005; Murthy 2013). To forestall or stave off water scarcity issues, it could be prudent for the price of water to reflect its total costs (Woodhouse 2003: 302). Experience shows, however, that it is politically risky for governments to raise water tariffs to even come closer to cost recovery (Davis 2005: 154). It could be a rational strategy, then, for government to “outsource” water services to the private sector, thereby providing government with “cover” for a politically unpopular policy change from subsidized access to cost-recovery pricing (Murthy 2013: 128). It is argued that if the price of water is subsidized, as it may well be in public systems, there is a risk of artificially depressing the “actual” costs and reducing

3  Contextualizing a Human Rights Perspective for Water Ethics: From Exploitati…

51

incentives to conserve (Draper 2008: 495). The result, it is claimed, is overuse or waste of the resource. Putting a (cost recovery calibrated) price on water reflects the assumption that supply and demand will determine the “true” price of water and cut down on “excessive” consumption. The theory suggests that customers will be incentivized to avoid wastage, given the relative costs of using more water. Cost recovery pricing, which typically accompanies PSP, could better motivate and incentivize water conservation. User charges, set at the right levels, would help to ensure that use of water moves from lower-value to higher-value uses. Behind the claim that market pricing is needed to deter waste and ensure conservation is the assumption that such a deterrent is needed across the board. Here it is crucial to differentiate between water for non-basic or other-than-basic needs (such as golf courses; see Hiskes 2010) and water for basic needs. The latter, as is stressed by O’Neill (2016: 83), “is not wasteful consumption and the amount being used for basic needs does not need to be conserved or deterred; the water is required to live.” For so many in our world in our time, there is an inability to pay the price for water when it is priced for cost recovery, an issue of significant normative import when the water is needed to meet basic needs. The tension between a right to access water and economic considerations becomes especially acute when the goal is to achieve efficiency more broadly.

3.2.4  Scrutinizing Claims of Efficiency Gains from PSP Water is obtained by end users through many different means: public taps (connected to public utilities facilities), community taps, standpipes, boreholes, tube wells, dug wells, cisterns, water tankers, carts, kiosks, and bottled water, as well as directly in the form of rainwater (O’Neill 2016: 55). Responsibility for water delivery can rest with municipal, regional, subnational, or national governments (OECD 2004). A government can elect to enter into contractual arrangements with private entities for concession, lease, or management of water operations.10 A concession is a license to run a water system and then to charge customers. Under such an arrangement, a company, as holder of the concession, would be contractually responsible for performance of public functions such as water distribution (or power generation) and obligated to make investments in infrastructure and to cover expenses of repairs, as well as costs of extending coverage to more and more customers (Hall and Lobina 2006: 11–12). Companies entering into concession arrangements may be expected to agree to targets for amounts of investment or for numbers of connections achieved. Under a lease arrangement, a company would be responsible for running a water system and for costs of repairs and renewal of assets, but not for extensions of coverage (Hall  The terms Build-Operate-Transfer (BOT) or Build-Own-Operate-Transfer (BOOT) refer to situations in which companies receive a concession to finance, design, construct, and operate (or else both own and operate) water services and water systems.

10

52

A. Wellington

and Lobina 2006: 12). Under a contract for management of a water system, a company would not have responsibility for investment. Companies could also be contracted to construct treatment plants for water and sewage. It is important to emphasize that in addition to the role of multinational enterprises in the bottled water industry, and as participants through PPPs, or concession arrangements, there are numerous “small-scale private entrepreneurs” (Bakker 2010: xvi) active in delivering water to customers throughout countries in the global South. Last, but not least, for-profit consulting companies play critical roles throughout the global water sector. Governments have entered into public–private partnerships (PPP or P3) or privatization arrangements of various sorts in the hope that private industry will provide enhanced conservation (as discussed just above) and maximal efficiency. Governments have expected that private investors, with enhanced borrowing capacity, would provide much-needed resources to build, operate, and manage expanded water supply systems and to repair aging infrastructure. It was also anticipated that private entities would be incentivized to innovate and could devise ways to upgrade facilities at decreased costs. Defenders of PSP insist that the private sector could be counted on to provide access to capital, innovative technology, and managerial expertise. With the access to needed capital, water systems could benefit from expanded capacity and repairs to infrastructure, helping to stem the leaks. Another incentive for PSP is the challenge of unaccounted-for water (UFW), also known as non-revenue water (NRW) (Davis 2005: 161; Murthy 2013: 137). Public water supply systems are fraught with infrastructure flaws; aging and underresourced systems suffer from significant water loss due to leaky pipes. Public systems have also been found to suffer from inaccurate metering (or sometimes no metering for households) and high amounts of unbilled consumption, including failure to bill government entities (Araral 2009: 224; Shirley 2006). Other reasons for UFW and NRW include illegal connections and meter tampering. Some public systems have been afflicted with the problem of leaky accounting, resulting in resource diversion through corruption (TI and WIN 2008). It is conjectured that PSP is a fix for the threat of corruption in the public sector. However, as scholars are increasingly reporting, there are serious risks of corruption in the private sector (a point also made by O’Neill 2016: 79).11 Setting aside the issue of corruption, private sector firms tend to be more vigilant, proactive, and demanding with respect to billing. Pressures toward privatization have come from donors of international aid and from past World Bank policies in the context of structural adjustment programs (SAPs) (World Bank 2003). In the past, the World Bank tended to make the granting of aid for developing countries conditional upon privatization of public utilities (Thielborger 2014: 146). The place of privatization in World Bank policies has since been subjected to scrutiny (see World Bank 2005), and conditioning loans and development aid on adoption of SAPs have been formally abandoned (Smith 2017:

 Paxton (2018) reports on the 2018 Global White Collar Crime Survey, by the University of Manchester and law firm White and Case LLP.

11

3  Contextualizing a Human Rights Perspective for Water Ethics: From Exploitati…

53

19).12 That change in policy reflects the widespread recognition that instead of alleviating poverty, as promised, SAPs had exacerbated poverty and income inequality (Smith 2017: 19). Protracted debates continue about PSP that fall short of the objectives of privatization.

3.2.5  Challenging Assumptions Ultimately, the claim is that market mechanisms applied to water could realize the core value of efficiency, achieve the goal of conservation, and affirm central virtues of the marketplace. Through access to capital and impetus for innovation, consumer satisfaction should be assured and overall social benefit achieved. It needs to be acknowledged that hoped-for social benefits generated by well-functioning markets depend upon a number of conditions being in place. Factors associated with efficiency gains that have especial salience for water include (i) healthy competition and absence of monopoly or oligopoly; (ii) avoidance of abuse of market power; (iii) sufficient information to prevent information asymmetries; (iv) avoidance of distortions through unaccounted for externalities; and (v) well-defined, transferable, and enforceable private property rights (Draper 2008). There is reason to be skeptical that market mechanisms for water services (as distinct from bottled water as a product), left to function in a laissez-faire manner without proper regulatory oversight, would ensure overall social benefit. The first of the conditions for well-functioning markets, avoidance of monopoly, is illusory in the case of water systems. Water can be stored relatively cheaply, but it is costly (relative to the value per unit volume) to transport and deliver to consumers; the result is a naturally arising monopolistic water structure (Bakker 2005: 552, 555; Bakker 2006: 147; Dagdeviren 2011: 34). As emphasized by the OECD (2004: 11), the fixed costs for water distribution networks and infrastructure are very high. It simply would not be feasible to have the construction of multiple sets of competing pipes and multiple infrastructures, by multiple operators, to ensure robust competition (OECD 2004: 11; Pardy 2012: 138). There may be opportunities for competition to get into the market (although sometimes there is not even that), but not competition within the market for water services (Thielborger 2014: 148; Bakker 2005: 552–555). Bakker (2005: 556) and other commentators have observed that direct competition in the water supply sector is much more limited than is the case with other privatized utility industries. It is not clear that there would be potential for economies of scope by combining services for water and sewage treatment, although there might be from vertical integration of abstracting, treating, and distributing water (OCED 2004: 11, 194).

 Smith (2017: 19) observes that the formal change in policy regarding SAPs coincided with the adoption of Millennium Development Goals (MDGs).

12

54

A. Wellington

Another dimension for assessing the functioning of markets is the potential for abuse of market power. There is considerable debate about how to ascertain that a market actor is taking undue advantage of market power and what should be the response of regulators when that is happening. Critics often point to the market power of top multinational companies that deal in bottled water or in water treatment, which are among the world’s successful companies, and expected to continue to be highly profitable in coming decades. Other commentators express concern that when municipalities are fully in control of a water system, the natural monopoly of water provides them with a dominant position (OECD 2004: 200). Lacking access to clear and adequate information is one of the biggest failings of water markets (Shirley 2006: 15) Consumers are unable to discern, without technical assistance, whether their water supply is contaminated by microorganisms or heavy metals. Utilities cannot easily find out where leaks are occurring in underground pipes and may lack capacity to keep managerial control and oversight of all of their pipes. Investors cannot cheaply determine how well water infrastructure located underground has been maintained (Shirley 2006: 15). It is difficult to fully achieve efficiency through better matching demand and supply by price indicators if customers are not given specific information as to demand: that is, how much water each household uses. Yet, as was recounted in the summary of an OECD report on water markets (2004: 11, 190), there are jurisdictions without universal metering of non-commercial customers, due to the expense of fitting meters. Externalities are impacts on the well-being or welfare of third parties that are unaccounted for through transactions between parties to an economic transaction; these afflict the water sector (Draper 2008: 498). An example is the impacts of water pollution on the members of a community reliant upon that polluted source (Kallhoff 2017: 92). To fully achieve market efficiency, pricing needs to incorporate externalities. Difficulties in accurately measuring and properly remedying efficiencies abound with water. The problem of water pollution, a familiar negative externality, is especially acute in relation to drinking water. The dire risks of improperly treated water for human health and safety are evident in the daily news. There is a significant need for regulatory oversight to ensure that health and safety standards relating to water are met. In discussion of the potential for market mechanisms, such as tradable pollution rights as an approach to water management, a decided preference is expressed for regulatory options (OECD 2004: 197). There are determinate benefits to relying upon a watershed-oriented framework for planning and management that is committed to the pursuit of ecological protection, environmental sustainability, and intergenerational justice (Draper 2008: 498). Economists Christopher Jeffords and Farhed Shah (2013) have subjected the human right to water to an analysis that builds upon assumptions of a neoclassical economics framework. They begin by making certain assumptions about the quality of water, unimpeded physical access, non-discrimination, and the ease of obtaining information at no cost. These are not, as they observe, innocuous assumptions, given that so many of the world’s water problems involve physical inaccessibility, poor quality, discrimination, and information asymmetry (Jeffords and Shah 2013: 72). Still, there is reason to be skeptical about the capacity of market mechanisms to

3  Contextualizing a Human Rights Perspective for Water Ethics: From Exploitati…

55

further the social objectives associated with the human right to water (Jeffords and Shah 2013: 88). Economists Manuel Couret Branco and Pedro Damiao Henriques (2010) have an even more pointed critique of the market-based approach. They envisage a fundamental contradiction, in that the more optimal outcomes as understood in traditional economic analysis are ones that can easily generate violations of the human right to water (Branco and Henriques 2010: 154). The problem, in their view (2010: 154), is rightly doing the wrong economics, rather than wrongly doing the right economics. PPPs and PSP, according to Riedel (2006: 23), privatize gains and socialize losses. In so many of the experiments with PSP to date,13 few of the many promised efficiency gains were realized, and crucially, preexisting inequities were, if anything, intensified and made more prominent. Hall and Lobina (2006) observe that there were two demonstrable indicators of performance, and neither was particularly welcome to communities affected by privatization. There was frequently a reduction in the number of staff per 1000 connections, which meant job losses in the local area (Hall and Lobina 2006). And there was increased efficiency in revenue collection processes, which only made the dramatic hikes in charges ever more visible and led to people being cut off from water for nonpayment more quickly.

3.2.6  Clashes Over Values and Unfulfilled Expectations Research on the fallout from the “wave of privatization” has revealed that expectations and hopes of citizens, companies, and governments went unfulfilled in many of the experiments with private sector involvement in water services (Davis 2005; Hall and Lobina 2006, 2008, 2012; Lobina and Hall 2003).14 The performance of the private sector has been poor in many ways, in many places, at many times. Surveying the literature, Kishimoto et al. observe that, too often, promised benefits failed to materialize (2014, 2015). Companies found that what they would view as desirable, or even acceptable, returns were jeopardized by economic crises, including currency devaluation and mismatch between overoptimistic projections and realities on the ground (Shirley 2006 citing Guasch 2004). The response by many companies was to inflate prices, at times to exorbitant levels, which led to c­ onsumers  Websites for the World Bank and the International Finance Corporation reveal that from 1993 and 2013, of 847 water projects completed (nearly half in Latin America), 64 projects (or 24 percent of total investment) ended up in cancellations or projects in distress. Of all complaints received, 40 percent related to water projects. 14  Research has focused on Buenos Aires and Tucuman, Argentina (Dagdeviren 2011; Olletta 2007); Cochabamba and La Paz, Bolivia (Baer 2015; Nickson and Vargas 2002; Shultz and Draper 2009; Woodhouse 2003); and Manila, Philippines (Rangan et al. 2009). Morgan (2006a, b, 2008) examined developments in Argentina, Bolivia, Chile, Colombia, New Zealand, and South Africa. Vandenhole and Wielders (2008) focused on Chile, Philippines, and a number of European countries. Bakker (2001, 2005) examined privatization developments in England and Wales and then expanded to urban centres around the globe (Bakker 2010). 13

56

A. Wellington

being frustrated and outraged at soaring water bills and at risk of losing their muchneeded access to drinking water and sanitation. In many cases, consumers were subjected to poor service quality or poor water quality, or both. By comparison to other sectors, such as energy or communications devices, there seemed to be less incentive for and pursuit of technological innovation in relation to water services (Shirley 2006: 13). Lessons learned from contractual disputes evidence problems arising from contractual terms that neglected to specify consequences for noncompliance with agreed-upon targets and spurred companies to request renegotiation in light of failing to meet targets (Dagdeviren 2011: 30–33). Some companies active in the water market underbid during negotiations and won the concession with inflated targets for investment and for expansion of services (Dagdeviren 2011: 30). Upon being granted concessions, companies tended to focus their efforts on maintenance of existing water infrastructure and be highly selective regarding which areas would receive service extensions, leaving low-income areas underserved (De Albuquerque and Winkler 2010: 168). Despite their promises, private sector entities often did not meet agreed-upon targets for coverage or for investment in infrastructure (Davis 2005). Upon failing to meet targets, the companies then asked for renegotiation of targets with the threat of raising tariffs for leverage.15 Worried about the political fallout that tariff hikes could generate, many local and regional governments agreed to lowered targets, leaving many people without the promised access to water. In Atlanta, Georgia, the company that had contracted to provide drinking water discovered that the deal struck had underestimated the expenses of operating, maintaining, and upgrading the aging infrastructure and had overestimated the expected savings. When the city refused the company’s request for renegotiation, the company sought to cut expenses by reducing the workforce and cutting back on training. Complaints proliferated about poor water quality, boil water alerts, inadequate water pressure, an “epidemic of watermain breaks,” and a lack of responsiveness on the part of the company, United Water (Jell 2003). The financial arrangement was eventually terminated and the water supply returned wholly to the public sector. The situation in Cochabamba, Bolivia, colloquially known as the “water wars” (Guerra del Agua), spanning from January 1999 to April 2000, dramatically exemplified and encapsulated the problems with PSP. It was also the focus of extensive media scrutiny and has attracted considerable scholarly attention as well (Baer 2015; Bakker 2010, ch. 6; Morgan 2012a; Nickson and Vargas 2002; Rose 2006; Salzman 2006; Shultz 2010; Shultz and Draper 2009; Thielborger 2014; Woodhouse 2003). A consortium contracted to privatize the water supply began to raise rates sharply to cover costs of modernization and risks to investors. Fears among the citizenry, both rural and urban, of pending losses of access to water led to a civil society alliance of farmers, neighborhood organizations, students, professionals, and water committees that formed to undertake civic strikes, roadblocks, and popular  Shirley (2006: 16), citing Guasch (2004), notes that 75 percent of 1000 water infrastructure concessions were subject to frequent renegotiation, as compared to only 10 percent of electricity concessions.

15

3  Contextualizing a Human Rights Perspective for Water Ethics: From Exploitati…

57

assemblies to express their discontent.16 Some of the strongest opposition coalesced around legal provisions that gave private utilities, such as the consortium, control even over private sources of water, leading to concerns that local people would lose their access to existing water sources or face exorbitant prices to access them (Morgan 2012a: 96). The Bolivian government was forced to reverse its decision to privatize the water supply, to cancel the concession contract, and to substantially reform the laws to reflect the concerns of the social movement activists (Morgan 2012a: 94, 101); the water supply has since remained wholly public.17 Other developments include a complaint by the Bechtel company to the International Centre for the Settlement of Investment Disputes (ICSID), which was ultimately settled for a token sum.18 As Morgan (2008: 34) has emphasized, the recourse to an international investment arbitration forum (such as the ICSID) tends to further exacerbate the grievances of local citizens (see also Thielborger 2014: 152–162). The discussion thus far should help readers to appreciate how and why some of the most heated and polarized debates about water policy have been over whether and to what extent governments should welcome PSP in the water sector. Empirical research and analysis reveal that faulty assumptions, factual uncertainty, and overemphasis on certain values over others lay behind the pattern of disappointing or worse results with experiments in water privatization (Davis 2005). Companies were beset with deterioration in the financial and economic viability of their business ventures. Governments were affected by the social unrest among their citizenry over the unaffordability of water charges and concerns about water quality. The difficulties have led scholars to surmise that the economics of water and sanitation are “more consistent with the longer-term planning horizon of government and not with the risk-minimization and profit-maximization priorities of private firms” (Davis 2005: 151–152). In more recent times, not surprisingly, there has been a decided shift away from privatization and toward republicization, or specifically remunicipalization due to the striking failures of so many of the experiments.

 The Bolivian government struck a deal with Aguas del Tunari consortium (Bechtel Corporation was controlling partner). The consortium was given exclusive rights to water and a guarantee of a minimum 15–16% return on its investment. It increased tariffs before making significant investments or service improvements and continued increasing rates by up to 35 percent. People who could not pay were cut off from water connections. There were demonstrations in the streets, hundreds of injured protestors, and the death of a protestor. 17  The new law gave recognition to Indigenous and customary water uses. Bakker (2010: ch. 6) and Morgan (2012a: 111ff.) provide extensive discussion of developments after the reversal of privatization. 18  Subsequently, Bolivia withdrew from the International Convention on the Settlement of International Disputes and, significantly, passed a new constitution containing a guarantee of the right to water. 16

58

A. Wellington

3.2.7  Shift Toward Remunicipalization It has turned out that Cochabamba’s and Atlanta’s remunicipalization are not isolated events. Saikoto Kishimoto et  al. (2014, 2015) have documented the trend toward remunicipalization and conclude that it is here to stay.19 Although prior to the late 1990s it seemed that privatization of water was increasing (Morgan 2006a, b, 2008, 2012b), since the early 2000s the pattern has been one of disengagement and withdrawal of multinationals from water systems. Scholars draw many lessons from the failures of privatization. Contracts were designed without the participation of the citizens, the water users, who are the main stakeholders. The lack of financial transparency throughout the process was a significant concern. Core principles associated with a human rights perspective, including participation and inclusion, equity and non-discrimination, accountability and transparency, went unacknowledged, unrecognized, and unfulfilled. In the context of the disappointments over the failings of privatization, the human right to water has been a rallying cry for advocates of global justice, who have viewed it as a powerful tool for mobilizing and a platform for motivating policy networks. States have crucial roles to play to ensure that markets will function well. Governments need to carefully and sensitively craft the rules that shape markets and facilitate their functioning (Agrawal and Lemos 2007: 44). They also need to design and implement distributive policies that “guard against the worst effects of efficiency-­ driven market dynamics” (Agrawal and Lemos 2007: 44). Remunicipalization offers governments the flexibility, incentives, and motivation to address distributive justice concerns, as well as opportunities to incorporate consultative and participatory processes (Morgan 2006b: 394). It provides a context for experimentation in governance, including the underutilized prospect of public–public partnerships (Kishimoto et  al. 2014, 2015). Remunicipalization may provide local governments with the motivation and impetus to improve their performance to incorporate some reliance upon pricing to reduce excessive usage along with rationing to pursue conservation objectives and deal with scarcity of supply. Before leaving the market environmentalist ethical perspective, it is important to emphasize that historical treatments of diverse societies around the world reveal numerous instances of mixed approaches relating to water, combining rights-based access and market-based access. James Salzman (2006, 2012) has traced the history of diverse human practices relating to drinking water. In his work, Salzman (2006: 118) established that human societies have experimented with a range of management regimes that are oriented to distinct goals and objectives, including fulfilling rights (the “right of thirst”)20 and securing payment for access to water. Salzman

 The researchers undertook an extensive study of 235 cases in 37 countries.  Salzman (2006: 98–100; see also 2012) emphasized the role of “right of thirst,” found in Jewish and Islamic law, which accorded special status to drinking water as akin to a human right. Salzman (2006: 120; 2012) finds that the spirit of the right of thirst has endured across many different cultures across time.

19 20

3  Contextualizing a Human Rights Perspective for Water Ethics: From Exploitati…

59

highlights the example of the Roman empire, which left an enduring legacy of water architecture and engineering, emblematic of its expansionist and innovative civilization (Roda 2016). Roman society recognized both a moral right for a person in need to have priority access to water (available through communal sources outside homes) along with something more like a market-oriented access. The latter was comprised of the water taxes charged to private citizens for the water delivery into the home, and whose demands exceeded what would be needed to meet a basic need for water (Salzman 2006: 103–106; 2012; O’Neill 2016: 71ff). Salzman (2006: 117) cautions against an ahistorical framing of debates over water policy that presents the options as a binary conflict between “rights versus markets [or] public versus private management.” Water, in many senses, is an ordinary good with extraordinary importance (Morgan 2006a: 413). In addition to being essential, water needs to be treated, supplied, and accessed locally. Water management has been the locus for experimentation with various types of market-based policy instruments and different levels and extent of PSP.  Yet water markets have been the focus of direct action, litigation, grassroots politics, lobbying, and high-profile global media campaigns by activists concerned about justice and human rights (Morgan 2006a, b, 2008). As Agrawal and Lemos (2007: 43) have articulated, “the dominance of market-based approaches favours problem solving at the expense of equitable access, [and] valorizes corporate involvement at the expense of community participation.” The influence of the critique can be seen in the rewording of the abovementioned (fourth) Dublin Principle by the Global Water Partnership (GWP) as follows: “water has an economic value in all its competing uses and should be recognized as an economic good as well as a social good.”21 The time is apposite to turn to the ethical perspective, which may be better situated to capture the sense of water as a social good.

3.3  A Human Rights Perspective: Empowerment and Equity Discussions of the human right to water began with a trickle in the late 1990s (e.g. Gleick 1998) and have increased to a steady flow in the recent decade.22 As Pierre Thielborger (2014: 197) recounts, human rights scholars and campaigners have questioned whether water is a suitable subject for a right, whether rights are the best

21  The Global Water Partnership was founded by the UN Development Programme and the World Bank, with the objective of fostering global adoption of integrated water resources management (IWRM) (Smith 2017: 29, n. 5). See Aldaya et al. (2017) for a discussion of ethical dimensions of IWRM. 22  See the debates between Langford (2006a, b, c) and Tully (2005, 2006); the development of the framework in Gleick (2006), Thielborger (2014), and Winkler (2012); and collections edited by Riedel and Rothen (2006) and Sultana and Loftus (2012b). For discussions that are specifically concerned with the right to sanitation, see Ellis and Feris (2014) and Khalfan and Kiefer (2008a, b); see also COHRE (2008).

60

A. Wellington

approach to take to address basic needs for water, and whether such rights are properly understood as human rights. The answers to these questions, for Thielborger and many more, is decisively and determinedly “yes.” Among those who endorse the human rights to water and sanitation, there is continuing controversy over whether, and if so, in which ways, market pricing and PSP are compatible with the pursuit of human rights. In the literature, human rights have been characterized in at least three different ways: (i) as moral norms that can be justified by moral reasoning and in relation to moral theories (see Chociej and Adeel 2012; Craven 2006; Meisch 2017; O’Neill 2016; Thielborger 2014); (ii) as legal rights implemented in national legislation or in a nation’s constitution (typically referred to as civil or constitutional rights); or (iii) as legal rights within the context of international law. For reasons of space, it will not be possible to do justice to either of the first two dimensions; the focus here will be predominantly on the third. The spirit of a human rights perspective is reflected in a normative principle in the Mar del Plata conference Action Plan (1977). That principle stated: “All peoples … have the right to have access to drinking water in quantities and of a quality equal to their basic needs” (UNWC 1977). The gist was well encapsulated by Kofi Annan (then United Nations Secretary General) on World Water Day in 2001: “Access to safe water is a fundamental human need and, therefore, a basic human right. Contaminated water jeopardizes both the physical and social health of all people. It is an affront to human dignity” (UN 2001). A human rights perspective offers us a shift in priorities, a way to reinscribe and reaffirm values and priorities that are obscured at best and disregarded at worst by market environmentalism. One core element of human rights is captured by yet another of the above-mentioned principles from the Dublin Statement (WMO 1992: 2): “water development and management should be based on a participatory approach, involving users, planners and policy-makers at all levels.” Rather than making the exploitation of natural resources a central focus (as does market environmentalism), a human rights perspective makes the empowerment of people a central focus. In addition, attention is focused intently and decisively on scrutinizing the legitimacy and accountability of powerful actors, including private sector entities (especially multinational corporations) as well as governments. Human rights are norms intended to affirm the entitlement to dignity, and protection from egregious mistreatment and abuse, for all human beings (Nickel 2007). On a rights-based approach, priority is given to inclusion and effective participation of marginalized groups, and to policy options that ensure nondiscrimination (see UNESCR 2008). This dimension is reflected in another (third) principle from the Dublin Statement (WMO 1992): “women play a central part in the provision, management, and safeguarding of water.” Women have played a crucial and inspiring part in mobilizing their communities to resist privatization and have been central in struggles of activists demanding water justice in Cochabamba (Ahlers 2005; Bustamente et al. 2005), Tucuman, Argentina (Giarracca and Del Pozo 2005), and elsewhere. Women deserve to play crucial roles in the formalized organizational structures in which authoritative decision making around access to water occurs,

3  Contextualizing a Human Rights Perspective for Water Ethics: From Exploitati…

61

even though they are often shut out (Bennett 2005; Giarracca and Del Pozo 2005: 103). The crucial role played by gender in “resource struggles and power relations involving bodies, spaces, and environments,” and the need for a feminist lens for theorizing about water, is emphasized by Farhana Sultana (2011: 163). The human rights perspective is the one that most directly and explicitly addresses issues of equity, along with empowerment.

3.3.1  L  egal Rights: International (and National) Human Rights to Water Focusing on human rights as legal rights offers the prospects of a coherent normative framework with recognized legitimacy, one that draws attention to both outcomes and processes (Filmer-Wilson 2006: 62). As numerous human rights scholars have elaborated, confining consideration to unmet basic needs may call up compassion (if virtue reigns, but the response may be indifference or worse, if it does not), and may elicit action from the charitable and the altruistically inclined (or again, it may not). What is needed instead is a perspective that construes the persons who suffer from deprivation as legal rights holders with demands (Filmer-Wilson 2005: 223). To put it simply, legal rights give rise to corresponding legal obligations (Winkler 2012: 228). Governments place themselves under binding obligations by signing international treaties and are expected to act upon their expressed commitments generated through collective deliberation. Contextualizing human rights involves appreciation of sources of norms in international law. Multilateral treaties, such as the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), are agreements that generate binding obligations for their signatories: sovereign states. The main mechanism for enforcement consists of monitoring by committees of independent experts, who (upon invitation) undertake country visits to gather general information about trends, laws, and policies relevant to compliance, along with particular information on alleged violations (UNOHCHR 2011). Reports are produced from that monitoring process and publicly disseminated, indicating where progress has been made – and, importantly, where future progress is needed. Interpretive activities of the United Nations Economic, Social and Cultural Rights Committee, in General Comment No. 15 (UNESCR 2008), and the United Nations General Assembly (UNGA) have connected rights to safe drinking water and sanitation to other human rights. Those connections include primarily the right to life, to an adequate standard of living, to the highest attainable standard of physical and mental health, and to human dignity (UNGA 2016: 4). Connections can also be made to other human rights, such as the right to food, to housing, to

62

A. Wellington

enjoyment of cultural rituals and practices, and to taking part in cultural life.23 Several international treaties expressly and explicitly incorporate rights to water.24 Another significant source of international law norms is characterized as “soft” law (in contrast to treaties, known as “hard” law). These include declarations and statements of principles, such as those arising from the UN Water Conference in Mar del Plata (1977), the Rio Declaration on Environment and Development (1992), and the International Conference on Water and the Environment that produced the Dublin Principles (UNCED 1992). Commentators have traced a pathway to the culminating recognition of international human rights in UN resolutions through a series of steps and stages that “propelled awareness of the global water and sanitation crisis to new heights, while raising a host of challenging issues” (Murthy 2013: 89; see also Smith 2017). The human right(s) to water has emerged from a cluster of initiatives from international environmental conferences (as just noted), as well as a progression of resolutions from the UNGA (2010b, 2012). For example, the UNGA proclaimed the period from 1981 to 1990 the International Drinking Water Supply and Sanitation Decade (UNGA 1979), and 2005–2015 was deemed the International Decade for Action “Water for Life” (UNGA 2004). The UNGA established 2008 as the International Year for Sanitation and declared 2013 the International Year of Cooperation (UNGA 2016: 2). Most prominent and significant was the milestone resolution (64/292) in July 2010, affirming the human right to water and sanitation and recognizing that a right to safe and clean drinking water and sanitation was “essential for the full enjoyment of life and all human rights” (UNGA 2010a).25 That resolution was introduced and championed by Bolivia, which is perhaps not surprising given the disastrous experience with water privatization in Cochabamba. That experience (discussed briefly in 3.2.6 above) helped to mobilize “water warriors” in a social movement that framed human rights as a vehicle to oppose commercialization, privatization, and apparent “commodification” of water (Murthy 2013: 98; Bakker 2010). The July 2010 resolution (64/292) was soon followed by a similar resolution (15/9) on the part of the UN Human Rights Council (UNHRC 2010). In a December 2015 resolution, the UNGA provided a progress report as well as a consolidation and crystallization of the human rights to water. Some key themes merit attention. The UNGA (2016: 3) stressed the primary responsibility of states to ensure full realization of human rights and emphasized their role in developing global partnerships for sustainable development to achieve goals of the 2030 Agenda for  The right to life is Article 6 of International Covenant on Civil and Political Rights (ICCPR); the right to health is Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). Article 11 of ICESCR enshrines the right to an adequate standard of living. The right to food and the right to housing are also parts of Article 11 of ICESCR. The right to take part in cultural life is Article 15 (a) of ICESCR. 24  See Article 24 (1), Convention on the Rights of the Child [CRC] and Article 14 (1), Convention on the Elimination of Forms of Discrimination Against Women [CEDAW]. 25  The vote was 122 in favour, none against, and 41 abstentions (UNGA 2010c). 23

3  Contextualizing a Human Rights Perspective for Water Ethics: From Exploitati…

63

Sustainable Development (Resolution 70/1). In the context of the 2030 Agenda for Sustainable Development, one of the 17 Sustainable Development Goals (SDGs) is Goal 6: “Ensure availability and sustainable management of water and sanitation for all” (UNGA 2016: 18). That goal, in effect, replaces Goal 7c of the Millennium Development Goals (UNGA 2000)26; both are linked to the UN Global Compact’s CEO Water Mandate.27 The hope at the heart of Goal 6 is that universal and equitable access to safe and affordable water will be achieved by all (6.1), and that access to adequate and equitable sanitation and hygiene will be achieved by all (6.2) by 2030. Ways for Goal 6 to be realized specifically include reducing pollution (6.3); increasing water-use efficiency (6.4); implementing integrated water resources management at all levels (6.5); and protecting and restoring ecosystems (6.6) (UNGA 2016: 18–19). Authoritative definitions of what is meant by the human right(s) to water in the context of international law are provided by the United Nations General Assembly in its December 2015 resolution. The UNGA (2016) expressly stated that there are two distinct legal rights: one human right to drinking water and the other human right relating to sanitation. The human right to safe drinking water “entitles everyone, without discrimination, to have access to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic use” (UNGA 2016: 4). The human right to sanitation “entitles everyone, without discrimination, to have physical and affordable access to sanitation, in all spheres of life, that is safe, hygienic, secure, socially and culturally acceptable and that provides privacy and ensures dignity” (UNGA 2016: 4). Differentiating so explicitly between the two human rights, as independent albeit closely related rights, was something that the first UN Special Rapporteur on the right to safe drinking water and sanitation, Catarina de Albuquerque, had called for.28

 Goal 7 of the Millennium Development Goals (MDGs), in effect from 2000 to 2015, focused on environmental sustainability. One target was to halve, by 2015, the proportion of the population without sustainable access to safe drinking water and basic sanitation. With respect to drinking water, the goal was met, but not the goal for sanitation. UN MDG website, Goal 7: https://www. un.org/millenniumgoals/environ.shtml. Accessed 29 March 2020 See World Health Organization [WHO] and UNICEF Joint Monitoring Programme [JMP] 2017. 27  The United Nations Global Compact, launched in July 2000, is a principles-based framework, calling on companies to align their corporate decision making, operations, and strategic planning in accordance with principles relating to human rights, labor, the environment, and anti-corruption. UN Global Compact website: https://www.unglobalcompact.org/what-is-gc. Accessed 15 February 2020. The CEO Water Mandate is a public–private initiative dedicated to encouraging and facilitating companies to develop and disclose policies and practices to ensure water sustainability. In part, the CEO Water Mandate seeks to align corporate actions with the pursuit of Sustainable Development Goals. Website: https://www.unglobalcompact.org/take-action/action/water-mandate. Accessed 15 February 2020. 28  Catarina de Albuquerque had been appointed by the Human Rights Council in September 2008, serving first as an Independent Expert and then as the Special Rapporteur until 2014. See De Albuquerque (2012); see also Thielborger (2014: 135–145) for a comprehensive discussion of the work of the Special Rapporteur. 26

64

A. Wellington

States are obliged to refrain from interfering with their citizenry’s enjoyment of the right, to prevent violations of the right by third parties (such as multinational corporations), and to take appropriate measures toward the full realization of the right. These three prongs of the right to water correspond to the general tripartite duties upon states to respect, protect, and fulfill human rights. There are water-­ related examples of each. Governments have an obligation to respect the right to water by not passing a law that would prevent any group from accessing water for personal or domestic use. Governments can protect the right to water by preventing non-State actors, such as private companies, from polluting water sources and jeopardizing the health of citizens and communities. To fulfill the right to water, governments are to take appropriate measures toward its realization. The language used in ICESCR (Article 2) is significant: governments are obliged to “take steps individually and through international assistance and cooperation … to the maximum of available resources, with a view to achieving progressively the full realization” of the rights. Human rights scholars have expended considerable energy and effort developing an understanding of the minimum core obligations that must be realized immediately with respect to economic, social, and cultural rights. In the context of human rights to water, the minimum core would consist of an essential level of access to water sufficient to ensure human survival and dignity (see Winkler 2012: 115–125). The obligations of states are as follows: “[t]o ensure the progressive realization of the human rights to safe drinking water and sanitation for all in a non-­ discriminatory manner while eliminating inequalities in access, including for individuals belonging to groups at risk and to marginalized groups,”29 with particular consideration of progressively eliminating disparities arising from one’s residence, whether urban, or rural, or in an informal settlement (5(a)); to engage in continuous monitoring and evaluation (5(b)); to address structural causes of failures, “while undertaking holistic planning aimed at achieving sustainable universal access, including in instances where the private sector, donors and non-governmental organizations are involved in service provision” (5(d)); to promote leadership by women, with their “full, effective and equal participation in decision-making on water and sanitation management and to ensure that a gender-based approach is adopted in relation to water and sanitation programmes” (5(e)); “to consult and coordinate with local communities and other stakeholders; including civil society and the private sector, on adequate solutions to ensure sustainable access” (5(h)); and “to provide for effective accountability mechanisms for all water and sanitation service providers to ensure that they respect human rights and do not cause rights violations or abuses” (5(i)) (UNGA 2016: 4–5).30

 Such groups include women, children, minority groups, Indigenous peoples, refugees, asylum seekers, internally displaced persons, migrant workers, prisoners, and detainees (UNESCR 2008, para. 16). 30  Two other itemized obligations relating to sanitation found in the UNGA (2016: 5) document are 5 (f) and 5 (g). 29

3  Contextualizing a Human Rights Perspective for Water Ethics: From Exploitati…

65

It is not just governments that have human rights obligations: domestic and international institutions and organizations play a clear role in activities that constitute rights violations, and they have crucial roles to play in preventing, ameliorating, and remedying those rights violations (O’Neill 2016: 48; Thielborger 2014). The need for expansive international cooperation and capacity-building support to developing countries is highlighted, along with the importance of strengthening the participation of local communities, in the context of the Sustainable Development Goals (6a and 6b, respectively) (UNGA 2015: 19). The UNGA (2016: 5) also highlighted the crucial role for non-state actors, including business enterprises to comply with their own responsibilities to protect human rights (see Andreopoulos et  al. 2006; Ruggie 2013). The topic of implementation of the human rights to water in domestic or national law merits a brief mention. International human rights will have the greatest prospect of efficacy if they are implemented and embedded in national laws, accompanied by pressures for compliance and enforcement mechanisms, as well avenues for litigation in national courts (in the face of noncompliance). There are a number of countries that have entrenched legal rights to water in their constitution (such as South Africa and Uruguay), or protected rights explicitly or implicitly through domestic law (Boyd 2012; Thielborger 2014, ch. 2; Amnesty International and WASH United 2015).31 Interestingly, in some cases, the inclusion of the right to water in the constitution was accompanied by ruling out PSP in the provision of water services.32 It is important to carefully delineate the relevant contrasts between market environmentalism and human rights. Human rights are sometimes framed as being in complete opposition to markets, as in certain variants of anti-globalization discourse. In those variants, the resistance to privatization in the water and sanitation sector is aligned with positing the human right to water (Bakker 2010). There is a dichotomy between the views of water as an economic good and water as a fundamental human right, to be sure (Cullet 2012: 57). That dichotomy opens up the space for normative debate and policy evaluation determining the respective merits and demerits of markets, regulations, and a host of civil society initiatives – and the proper mix between them. The crucial consideration is whether market instruments and practices are the “best strategy” for realization of the human rights to water and sanitation (Cullet 2012: 60). Many legal scholars have emphasized that market pricing, PSP, and the like are not outright incompatible with a human rights perspective (Bluemel 2004; Murthy 2013; Thielborger 2014; Winkler 2012). In an influential

 For discussion of legal developments in Ecuador, India, and South Africa, see (respectively) Hyer 2015; Cullet 2012; and Rodina 2017. See also Chenoweth et  al. (2013), who focus on Kisumu, Kenya, and Addis Ababa, Ethiopia. 32  After a referendum, Uruguay did both: it amended its constitution to include a right to water and it legally ruled out PSP. See Hall et al. (2004). 31

66

A. Wellington

report, Caterina de Albuquerque (2010: para. 63) emphasizes that the human rights framework is neutral and “does not call for any particular form of service provision.”33 We have come full circle from the issue that prompted our discussion: the consideration of what ought to be the role of business in relation to water. Conservation and efficiency are worthy goals, but they should not be allowed to eclipse other crucial values, such as the allocation of water to meet basic human needs; equity and inclusion; and empowerment and participation in decision making that reflects best practices of accountability and transparency (adapted from Smith 2017: 21). From a human rights perspective, the unmet basic needs of people who are unable to pay cost recovery prices (or even partially subsidized tariffs for water) are prioritized. In keeping with their obligations to their citizens, governments need to find ways to cover for the “unaccounted-for water,” to work out cross subsidies that balance between those who can afford to pay and those who cannot. Governments should be attentive to the ways that disparities in access to water benefit the relatively wealthy and middle-class urban residents, while leaving the poor and Indigenous communities in rural areas without access, and figure out how to redress them (Thielborger 2014: 150). In the relations between a community of nations, countries are obliged to seek assistance from international organizations when they are themselves underresourced and to provide that assistance when able (Bluemel 2004: 1006). The human rights to water and sanitation thus have significant implications for development policies (Filmer-Wilson 2005, 2006). Even when there is remunicipalization, business still plays a role, notably the small-scale, informal water providers that provide service to so many rural and poorer communities. Although social justice advocates tend to focus their attention on the activities of multinational corporations active in water markets, it is worth emphasizing that those informal small-scale water service providers, relying upon trucks, standpipes, or kiosks, may be more expensive – sometimes considerably more expensive  – than water from public utilities.34 Such supplies are also not guaranteed in terms of quality or safety. Research does suggest that informal small-scale business enterprises are not making exorbitant profits (since they may be purchasing their supplies at high initial rates) and that whatever profits there are do not typically leave the country (or perhaps even the region), as is often the case with profits of multinational companies (Davis 2005). What is crucial, from a human rights perspective, is for governments to do their part in regulating the activities of any form of water businesses. Governments, after all, are the source and the administrators of regulations. One further and increasingly prominent role for the state in relation to business is to facilitate and encourage initiatives comprising genuine corporate social  The report arose from Caterina de Albuquerque’s work as Independent Expert on the Issue of Human Rights Obligations Related to Access to Safe Drinking Water and Sanitation. 34  De Albuquerque and Winkler (2010: 169) recount that almost 50 percent of urban populations in some parts of Africa, and up to 25 percent of urban populations in parts of Latin America, rely on small-scale providers. Due to the large number of intermediaries and other features of the smallscale water providers market, people could pay up to 10 or even 20 times as much as the prices from water utilities. See UNDESA (2007). 33

3  Contextualizing a Human Rights Perspective for Water Ethics: From Exploitati…

67

responsibility, helping to make “blue be the new green,” but not just as a form of greenwashing (Salzman 2012). It is beyond the scope here to delve into corporate social responsibility and its potential for water companies; yet it merits mention as another instance of the intertwining of states and markets (see Cernic 2011; Hepworth and Orr 2013; and Moyo and Liebenberg 2015). A human rights perspective is well resourced to help us integrate our many selves as we interact with and act upon water: ecological, economic, political, social, and spiritual. Through a series of landmark initiatives culminating in resolutions of the United Nations General Assembly and the Human Rights Council in 2010, human rights to drinking water and sanitation have come to be recognized as binding obligations on states, as well as responsibilities of non-state actors. It is argued here that the human rights perspective is the most comprehensive and inclusive in its values and principles. It is capable of encompassing some concerns that animate and motivate market environmentalism while avoiding the excesses that afflict that perspective, as well as contributing its own distinctive and especially promising elements. There is considerable synergy potentially between a human rights framework and respect and recognition for communal property relations and sovereignty of Indigenous peoples, although this topic cannot be addressed here for reasons of space.35 It is worth emphasizing that for Indigenous peoples, the human right to water would be just one of a larger bundle of rights relating to water that would include the use of water for cultural reasons, prohibition of pollution of their water resources, along with the connections between water and more general land rights (Misiedjan and Gupta 2014: 90). Scholars have cautioned that the international framework of human rights, as presently configured, is more comfortably oriented to individuals. Some have called for articulation, declaration, and, ultimately, implementation of a third generation of human rights, which would include collective rights to development, peace, a healthy and ecologically balanced environment, as well as self-determination of peoples (Vasak 1977).36 It is hoped that collective rights of that sort, which currently have ambiguous juridical status, would be even more welcoming and accommodating. The adoption and incorporation of a human rights perspective for motivating and incentivizing innovation in water governance would not, and could not, be a panacea (Pardy 2012). Debates will continue over the status of the human right to water, and implementation challenges abound. Skeptics and critics will continue to be concerned about ensuring that the human rights approach does not simply become an empty declaration that perpetuates the status quo (Blanco and Razzaque 2009: 714; Cullet 2012: 72), leaving undisturbed the pervasive and pernicious inequities in  There are ongoing discussions about the appropriate terminology. Within North America, one can find references to Aboriginal persons, American Indians, First Nations, Inuit, and Métis. In the literature with which the author is most familiar, the term “Indigenous peoples” has gained currency. 36  Karel Vasak, who advocated for a third generation to follow upon the first generation (civil and political rights) and second generation (economic, social, and cultural rights), was first Secretary General of the International Institute for Human Rights and later advisor to UNESCO. 35

68

A. Wellington

power, status, and resources within, among, and between communities (Bakker 2012: 33). It needs to be acknowledged that human rights are, as currently conceived, inextricably anthropocentric. Perhaps they can still play an important role, nonetheless, in transitioning toward an even more inclusive and ecologically responsive vision (see Ziegler et al. 2017).

3.4  Conclusion Water, as we have seen, can be viewed as a social, economic, ecological, or spiritual good. It can be abundant or scarce as a natural resource. Water is the target of disputed efforts on the part of corporations for commodification, market exchange, and privatization. The right to water is also importantly the focus of committed efforts on the part of advocates of global justice for entrenchment in national constitutions and domestic laws, and enshrinement in international human rights law (see Wellington 2011). Water poses particular challenges for achieving policy goals of security and ecological sustainability. Governance challenges that are fraught tend to generate simplified and divergent proposals for remedies: markets or states. The contest between dueling discourses might make for greater drama, but the debate so characterized is simply too binary, incomplete, and unhelpful at best. Harnessing water has led to the rise and growth of empires in the past and the pursuit of exorbitant profits by some multinational corporations in the present. The time is well past due to achieve greater social justice for all by ensuring that the dispossessed and disenfranchised have their share of water to ensure their flourishing. An alternative conception of human rights that is aligned with global justice is what is needed. Such a conception would focus on redistribution of resources and remedying power inequalities, especially as those relate to access to water. It would ensure affirmation of the entitlements of the poorest and most vulnerable among us to have their basic needs to water of sufficient quantity and quality that is safe, accessible, and affordable met. There would be avenues for robust and impactful citizen engagement and participation in democratic water governance as well as meaningful accountability. The right to water should be contextualized as part of a broader and enduring transformation. Human rights, it has been argued here, give recognition to the inherent worth of human beings and encapsulate the sense of dignity that is so deserving of respect. They also have instrumental value, serving as an impetus for strategic collective action to remedy wrongs. The human rights to water and sanitation, in particular, draw our attention to the egregious injustice and pervasive suffering of so many in our time. Responding to the genuine needs that are central to fulfillment of those rights demands rethinking the ways that our relations with each other are mediated by and through access to water. We need human rights, and specifically the human rights to water and sanitation, because we do not yet live in a socially just, ecologically sustainable world. Until we reach that happy state, furthering the realization of

3  Contextualizing a Human Rights Perspective for Water Ethics: From Exploitati…

69

human rights and championing the right to water as it has been articulated here is the least we can do.

References Adeel Z (2012) A human development approach to water security. In: Bigas H (ed) The global water crisis: addressing an urgent security issue. UNU-INWEH, Hamilton, pp 70–75 Agrawal A, Lemos MC (2007) A greener revolution in the making?: environmental governance in the 21st century. Environment 49(5):36–45 Ahlers R (2005) Gender dimensions of neoliberal water policy in Mexico and Bolivia. In: Bennett V, Davila-Poblete S, Rico MN (eds) Opposing currents: the politics of water and gender in Latin America. University of Pittsburgh Press, Pittsburgh, pp 53–71 Aldaya MM, Martinez-Santos P, Ramon Llamas M (2017) The relevance of ethical factors in the pursuit of integrated water resources management. In: Ziegler R, Groenfeldt D (eds) Global water ethics: towards a global ethics charter. Routledge/Earthscan, London/New York, pp 131–147 Amnesty International and WASH United (2015) Recognition of the human right to water and sanitation by UN member states at the international level: an overview of declarations and resolutions that recognise the human rights to water and sanitation. Amnesty International and WASH United, April 2. https://www.amnesty.org/download/Documents/IOR4013802015ENGLISH. PDF. Accessed 29 Mar 2020 Anderson TL, Leal DR (2004) Free market environmentalism, Rev. edn. Palgrave Macmillan, New York Anderson TL, Leal DR (2015) Free market environmentalism for the next generation. Palgrave Macmillan, New York Andreopoulos G, Kabasakal Arat ZF, Juliver P (eds) (2006) Non-state actors in the human rights universe. Kumarian Press, Bloomfield Araral E (2009) The failure of water utilities privatization: synthesis of evidence, analysis and implications. Polic Soc 27:221–228 Ayres AB (2018) What California’s history of groundwater depletion can teach us about successful collective action. Environmental Defence Fund, September 26. http://blogs.edf.org/ markets/2018/09/26/what-californias-history-of-groundwater-depletion-can-teach-us-aboutsuccessful-collective-action. Accessed 29 Mar 2020 Ayres AB, Edwards EC, Libecap GD (2018) How transaction costs obstruct collective action: the case of California’s groundwater. J Environ Econ Manag 91:46–65 Baer M (2015) From water wars to water rights: implementing the human right to water in Bolivia. J Hum Rights 14:353–376 Bakker K (2001) Water pricing and equity in England and Wales. Trans Inst Br Geogr 26(2):143–164 Bakker K (2005) Neoliberalizing nature?: market environmentalism in water supply in England and Wales. Ann Assoc Am Geogr 95(3):542–565 Bakker K (2006) Water is life: the debate over private sector participation in water supply. In: Laxer G, Soron D (eds) Not for sale: decommodifying public life. Broadview Press/Garamond Press, Peterborough, pp 141–154 Bakker K (2010) Privatizing water: governance failure and the world’s urban water crisis. Cornell University Press, Ithaca Bakker K (2012) Commons versus commodities: debating the human right to water. In: Sultana F, Loftus A (eds) The right to water: politics, governance and social struggles. Routledge/ Earthscan, London/New York, pp 19–44 Barlow M (2007) Blue covenant: the global water crisis and the coming battle for the right to water. McClelland and Stewart, Toronto

70

A. Wellington

Barlow M (2013) Blue future: protecting water for people and the planet forever. House of Anansi Press, Toronto Barlow M, Clarke T (2003) Blue gold: the battle against corporate theft of world’s water. McClelland and Stewart, Toronto Baxter W (1974) People or penguins: the case for optimal pollution. Columbia University Press, New York Bennett V (2005) Introduction. In: Bennett V, Davila-Poblete S, Rico MN (eds) Opposing currents: the politics of water and gender in Latin America. University of Pittsburgh Press, Pittsburgh, pp 1–9 Bennett V, Davila-Poblete S, Rico MN (eds) (2005) Opposing currents: the politics of water and gender in Latin America. University of Pittsburgh Press, Pittsburgh Bigas H (ed) (2012) The global water crisis: addressing an urgent security issue, Papers for the InterAction Council, 2011–2012. UNU-INWEH, Hamilton Blanco E, Razzaque J (2009) Ecosystem services and human well-being in a globalized world: assessing the role of law. Hum Rights Q 31(3):692–720 Blomquist W (1998) Common property’s role in water resource management. Prepared for The second international conference on property rights, economics and environment theme 1998: water resources, Center for Applied Economics, Université d’Aix-Marseille, France, July 6–8. http://dlc.dlib.indiana.edu/dlc/bitstream/handle/10535/5468/Common%20propertys%20 role%20in%20water%20resource%20management.pdf?sequence=1. Accessed 29 Mar 2020 Bluemel EB (2004) The implications of formulating a human right to water. Ecol Law Quart 30:957–1006 Boyd DR (2012) The right to water: moving from international recognition to national action. In: Bigas H (ed) The global water crisis: addressing an urgent security issue. UNU-INWEH, Hamilton, pp 128–135 Branco MC, Henriques PD (2010) The political economy of the human right to water. Rev Radical Polit Econ 42(2):142–155 Brown PG, Schmidt JJ (eds) (2010) Water ethics. Island Press, Washington, DC Bustamente R, Peredo E, Udaeta ME (2005) Women in the “water war” in the Cochabamba Valley. In: Bennett V, Davila-Polete S, Rico MN (eds) Opposing currents: the politics of water and gender in Latin America. University of Pittsburgh Press, Pittsburgh, pp 72–90 Centre on Housing Rights and Evictions [COHRE] (2008) The human right to water and sanitation: legal basis, practical rationale and definition, 26 March. http://www.wasa-gn.net/private/ admin/ficheiros/uploads/2a59d73c61acd1e302933b95765c953b.pdf. Accessed 20 Mar 2020 Cernic JL (2011) Corporate obligations under the human right to water. Denver J Int Law Policy 39(2):303–345 Chappelle C, Hanak E, Harter T (2017) Groundwater in California. Public Policy Center, Public Policy Institute of California, May. https://www.ppic.org/publication/groundwater-in-california . Accessed 20 Mar 2020 Chenoweth J, Malcolm R, Pedley S, Kaime T (2013) Household water security and the human right to water and sanitation. In: Lankford B, Bakker K, Zeitoun M, Conway D (eds) Water security: principles, perspectives, and practices. Routledge/Earthscan, London/New York, pp 307–317 Chociej Z, Adeel Z (2012) Legal and ethical dimensions of a right to water. In: Bigas H (ed) The global water crisis: addressing an urgent security issue. UNU-INWEH, Hamilton, pp 122–127 Cook C, Bakker K (2013) Debating the concept of water security. In: Lankford B, Bakker K, Zeitoun M, Conway D (eds) Water security: principles, perspectives, and practices. Routledge/ Earthscan, London/New York, pp 49–63 Craven M (2006) Some thoughts on the emergent right to water. In: Riedel E, Rothen P (eds) The human right to water. Berliner Wissenschafts-Verlag, Berlin, pp 37–47 Cullet P (2012) Right to water in India: plugging conceptual and practical gaps. Int J Hum Rights 17(1):56–78 Dagdeviren H (2011) Political economy of contractual disputes in private water and sanitation: lessons from Argentina. Ann Public Coop Econ 82(1):25–44

3  Contextualizing a Human Rights Perspective for Water Ethics: From Exploitati…

71

Davis J (2005) Private-sector participation in the water and sanitation sector. Annu Rev Environ Resour 30:145–183 De Albuquerque C (2010) Report of the independent expert on the issue of human rights obligations related to access to safe drinking water and sanitation. United Nations Human Rights Council, U.N. Doc. A/HRC/15/31, June 29 De Albuquerque C (2012) On the right track: good practices in realising the rights to water and sanitation. https://www.ohchr.org/Documents/Issues/Water/BookonGoodPractices_en.pdf. Accessed 20 Mar 2020 De Albuquerque C, Winkler IT (2010) Neither friend nor foe: why the commercialization of water and sanitation services is not the main issue in the realization of human rights. Brown J World Aff 17(1):167–179 Draper SE (2008) Limits to water privatization. J Water Resour Plan Manag 134(6):493–503 Ellis K, Feris L (2014) The right to sanitation: time to delink from the right to water. Hum Rights Q 36:607–629 Ertman MM, Williams JC (eds) (2005) Rethinking commodification: cases and readings in law and culture. New York University Press, New York Feitelson E (2017) A hierarchy of water needs and their implications for allocation mechanisms. In: Ziegler R, Groenfeldt D (eds) Global water ethics: towards a global ethics charter. Routledge/ Earthscan, London/New York, pp 149–165 Filmer-Wilson E (2005) The human rights-based approach to development: the right to water. Neth Q Hum Rights 23(2):213–241 Filmer-Wilson E (2006) The human right to water and the human rights-based approach to development. In: Riedel E, Rothen P (eds) The human right to water. BWV/Berliner Wissenschafts-­ Verlag, Berlin, pp 53–63 Flatt VB (2006) Let us drink our fill: The history of water and its impact on resource and environmental management. Yale J Law Humanit 18(Supp):122–133 Garrick D, Hope R (2013) Water security risk and response: the logic and limits of economic instruments. In: Lankford B, Bakker K, Zeitoun M, Conway D (eds) Water security: principles, perspectives, and practices. Routledge/Earthscan, London/New York, pp 204–219 Giarracca N, Del Pozo N (2005) To make waves: water and privatization in Tucuman, Argentina. In: Bennett V, Davila-Polete S, Rico MN (eds) Opposing currents: the politics of water and gender in Latin America. University of Pittsburgh Press, Pittsburgh, pp 91–106 Gleick P (1998) The human right to water. Water Policy 1(5):487–503 Gleick P (2006) Implementing the human right to water. In: Riedel E, Rothen P (eds) The human right to water. BWV/Berliner Wissenschafts-Verlag, Berlin, pp 143–147 Grey D, Sadoff CW (2007) Sink or swim? Water security for growth and development. Water Policy 9:545–571 Guasch JL (2004) Granting and renegotiating infrastructure concessions: doing it right. The World Bank Institute, Washington, DC Hall D, Lobina E (2006) Pipe dreams: the failure of the private sector to invest in water services in developing countries. Public Services International Research Unit (PSIRU), University of Greenwich, London, UK, and World Development Movement (WDM). http://gala.gre. ac.uk/3601/1/PSIRU_9618_-_2006-03-W-investment.pdf. Accessed 29 Mar 2020 Hall D, Lobina E (2008) Water privatisation. Public Services International Research Unit (PSIRU), University of Greenwich, London, UK. April. http://www.psiru.org/sites/default/files/2007-09W-Latam.doc. Accessed 20 Mar 2020 Hall D, Lobina E (2012) Conflicts, companies, human rights and water: a critical review of local corporate practices and global corporate initiatives. A report for public services international for the 6th world water Forum at Marseille, March. http://www.psiru.org/sites/default/ files/2012-03-W-Resources-noannexe.docx. Accessed 29 Mar 2020 Hall D, Lobina E, de la Motte R (2004) Making water privatization illegal: new laws in Netherlands and Uruguay. Public Services International, November 31. http://www.psiru.org/sites/default/ files/2004-11-W-crim.doc. Accessed 29 Mar 2020

72

A. Wellington

Hardin G (1968) The tragedy of the commons. Science 162(3859):1243–1248 Hardin G, Baden J (eds) (1977) Managing the commons. W.H. Freeman, New York Hartman LP, Werhane PH (eds) (2009) The global corporation: sustainable, effective and ethical practices: a case book. Routledge, New York Hepworth N, Orr S (2013) Corporate water stewardship: exploring private sector engagement in water security. In: Lankford B, Bakker K, Zeitoun M, Conway D (eds) Water security: principles, perspectives, and practices. Routledge/Earthscan, London/New York, pp 220–238 Hiskes RP (2010) Missing the green: golf course ecology, environmental justice, and local fulfilment of the human right to water. Hum Rights Q 32(2):326–341 Hyer TJ (2015) Considering Ecuador’s new water law through the lens of Indigenous rights under international law. Williamette Environ Law J 52(3):63–95 Jeffords C, Shah F (2013) On the natural and economic difficulties to fulfilling the human right to water within a neoclassical economics framework. Rev Soc Econ 71(1):65–92 Jell D (2003) As cities move to privatize water, Atlanta steps back. The New  York Times, February 10 Kallhoff A (2017) Transcending water conflicts: an ethics of water cooperation. In: Ziegler R, Groenfeldt D (eds) Global water ethics: towards a global ethics charter. Routledge/Earthscan, London/New York, pp 91–106 Khalfan A, and Thorsten Kiefer/Centre on Housing Rights and Evictions (COHRE) (2008a) The human right to water and sanitation: legal basis, practical rationale and definition Centre on Housing Rights and Evictions (COHRE) Right to Water Programme, March 26. http://www. wasa-gn.net/private/admin/ficheiros/uploads/2a59d73c61acd1e302933b95765c953b.pdf. Accessed 23 Mar 2020 Khalfan A, and Thorsten Kiefer/Centre on Housing Rights and Evictions (COHRE) (2008b) Why Canada must recognise the human right to water sanitation. Centre on Housing Rights and Evictions (COHRE) Right to Water Programme, March 26 Kishimoto S, with contributions from Meera Karunananthan and Susan Spronk (2016) Remunicipalization: a practical guide for communities and policy makers. Water Justice TookKit, December. http://www.blueplanetproject.net/waterjustice/wp-content/uploads/ TK-PublicWater-Dec8-Remun.pdf. Accessed 29 Mar 2020 Kishimoto S, Lobina E, Petitjean O (2014) Here to stay: water remunicipalisation as a global trend. Public Services International Research Unit (PSIRU), Transnational Institute (TNI) and Multinational Observatory. https://www.tni.org/en/publication/here-to-stay-water-remunicipalisation-as-a-global-trend. Accessed 23 Mar 2020 Kishimoto S, Lobina E, Petitjean O (2015) Our public water future: the global experience with remunicipalization. Transnational Institute (TNI), Public Services International Research Unit (PSIRU), Multinationals Observatory, Municipal Services Project (MSP) and the European Federation of Public Service Unions (EPSU) https://www.tni.org/en/publication/our-publicwater-future. Accessed 29 Mar 2020 Langford M (2006a) Ambition that overleaps itself? A response to Stephen Tully’s critique of the general comment on the right to water. Neth Q Hum Rights 24(3):433–459 Langford M (2006b) Expectation of plenty: response to Stephen Tully. Neth Q Hum Rights 24(3):473–479 Langford M (2006c) Tragedy or triumph of the commons? Human rights and the world water crises. Castan Centre for Human Rights Law, Faculty of Law, Monash University. http://www. monash.edu/law/research/centres/castancentre/conference-2014/2006/conf-06-langford-paper. Accessed 4 Aug 2017 Lankford B, Bakker K, Zeitoun M, Conway D (eds) (2013) Water security: principles, perspectives, and practices. Routledge/Earthscan, London/New York Laxer G, Soron D (eds) (2006) Not for sale: decommodifying public life. Broadview Press and Garamond Press, Peterborough Leb C, Wouters P (2013) The water security paradox and international law: securitisation as an obstacle to achieving water security and the role of law in desecuritising the world’s most

3  Contextualizing a Human Rights Perspective for Water Ethics: From Exploitati…

73

p­ recious resource. In: Lankford B, Bakker K, Zeitoun M, Conway D (eds) Water security: principles, perspectives, and practices. Routledge/Earthscan, London/New York, pp 26–45 Lobina E, Hall D (2003) Problems with private water concessions: a review of experience. Public Services International Research Unit (PSIRU), University of Greenwich, London, UK, November. http://www.psiru.org/reports/problems-private-water-concessions-review-experience.html. Accessed 20 Mar 2020 Meisch S (2017) What is water ethics and to what end do we study it? Lessons for the water ethics charter. In: Ziegler R, Groenfeldt D (eds) Global water ethics: towards a global ethics charter. Earthscan/Routledge, New York, pp 37–55 Millennium Ecosystem Assessment (2005) Ecosystems and human well-being: synthesis. Island Press, Washington, DC Misiedjan D, Gupta J (2014) Indigenous communities: analyzing their right to water under different international legal regimes. Utrecht Law Rev 10(2):77–90 Morgan B (2006a) Chapter 11: Emerging global water welfarism: Access to water, unruly consumers and transnational governance. In: Trentmann F, Brewer J (eds) Consuming cultures, global perspectives. Berg Press, New York Morgan B (2006b) Turning off the tap: urban water service delivery and the social construction of global administrative law. Eur J Int Law 17(1):215–246 Morgan B (2008) Comparative regulatory regimes in water service delivery: emerging contours of global water Welfarism? Research report No. 33, Comparative Research in Law and Political Economy (CLPE) research paper series 4(7). https://papers.ssrn.com/sol3/papers. cfm?abstract_id=1292785. Accessed 29 Mar 2020 Morgan B (2012a) Rights and regulation as a framework for exploring reverse legal transfers: hegemony and counter-hegemony in the Bolivian water sector. In: Gillespie J, Nicholson P (eds) Law and development and the global discourses of legal transfers. Cambridge University Press, Cambridge, pp 82–118 Morgan B (2012b) Water on tap: rights and regulation in the transnational governance of urban water services. Cambridge University Press, Cambridge Moyo K, Liebenberg S (2015) The privatization of water services: the quest for enhanced human rights accountability. Hum Rights Q 37:691–727 Murthy S (2013) The human right(s) to water and sanitation: history, meaning and the controversy over privatization. Berkeley J Int Law 31:89–149 Nickel J (2007) Making sense of human rights, 2nd edn. Blackwell, Malden Nickson A, Vargas C (2002) The limitations of water regulation: the failure of the Cochabamba concession in Bolivia. Bull Lat Am Res 21(1):99–120 Noonan DS, Baden JA (eds) (1998) Managing the commons, 2nd edn. Indiana University Press, Bloomington O’Neill KE (2016) The human right to water: duties and rights fulfilment strategies. McMaster University, Master of arts thesis. https://macsphere.mcmaster.ca/handle/11375/20494. Accessed 29 Mar 2020 Organisation for Economic Cooperation and Development [OECD] (2004) Competition and regulation in the water sector. OECD Directorate for Financial, Fiscal and Enterprise Affairs Competition Committee, Policy Roundtable, August. http://www.oecd.org/regreform/sectors/33691325.pdf. Accessed 20 Mar 2020 Pardy B (2012) False panacea: the human right to water. In: Bigas H (ed) The global water crisis: addressing an urgent security issue. UNU-INWEH, Hamilton, pp 136–141 Paxton J (2018) New global survey highlights bribery and corruption in business. University of Manchester, Phys.org blog post, December 3. https://phys.org/news/2018-12-global-surveyhighlights-bribery-corruption.html. Accessed 29 Mar 2020 Pradhan RP, Meinzen-Dick R (2003) Which rights are rights? Water rights, culture, and underlying values. Water Nepal 9/10(1/2):37–61

74

A. Wellington

Rangan VK, Wheeler D, Comeault J (2009) Manila water company. In: Hartman L, Werhane P (eds) The global corporation: sustainable, effective and ethical practices: a case book. Routledge, New York, pp 140–158 Riedel E (2006) The human right to water and general comment no. 15 of the committee on economic, social and cultural rights. In: Riedel E, Rothen P (eds) The human right to water. BWV/ Berliner Wissenschafts-Verlag, Berlin, pp 19–36 Riedel E, Rothen P (eds) (2006) The human right to water. BWV/Berliner Wissenschafts-­ Verlag, Berlin Roda I (2016) Aqueducts: quenching Rome’s thirst. National geographic history, November/ December. https://www.nationalgeographic.com/archaeology-and-history/magazine/2016/11-12/roman-aqueducts-engineering-innovation. Accessed 20 Mar 2020 Rodina L (2017) Reflections on water ethics and the human right to water in Khayelitsha, South Africa. In: Ziegler R, Groenfeldt D (eds) Global water ethics: towards a global ethics charter. Routledge/Earthscan, London/New York, pp 167–182 Rose C (1991) Rethinking environmental controls: management strategies for common resources. Duke Law J 1991(1):1–38 Rose C (2006) Privatization: the road to democracy. Saint Louis Univ Law J 50:691–720 Ruggie J (2013) Just business: multinational corporations and human rights. W.W.  Norton, New York Salzman J (2006) Thirst: A short history of drinking water. Yale J Law Humanit 18(Supp):94–121 Salzman J (2012) Drinking water: a history. Overlook Press/Duckworth, New York Schmidt JJ (2012) Scarce or insecure? The right to water and the ethics of global water governance. In: Sultana F, Loftus A (eds) The right to water: politics, governance and social struggles. Routledge/Earthscan, London/New York, pp 94–109 Segerfeldt F (2005) Water for sale: how business and the market can resolve the world’s water crisis. Cato Institute, Washington, DC Shirley MM (2002) Thirsting for efficiency: the economics and politics of urban water system reform. The World Bank/Pergamon, Washington, DC Shirley MM (2006) Urban water reform: what we know, what we need to know. Paper prepared for the annual meeting of the International Society for New Institutional Economics (ISINE), Boulder, Colorado, September 21–24. https://www.researchgate.net/publication/241045250_ Urban_Water_Reform_What_We_Know_What_We_Need_to_Know. Accessed 29 Mar 2020 Shiva V (2016) Water wars: privatization, pollution and profit. North Atlantic Books, Berkeley. [Reprint from Boston: South End Press, 2002] Shultz J (2010) The Bolivian water revolt, ten years later. The democracy centre website, April 10. https://democracyctr.org/the-bolivia-water-revolt-ten-years-later. Accessed 23 Mar 2020 Shultz J, Draper M (eds) (2009) Dignity and defiance: stories from Bolivia’s challenge to globalization. University of California Press, Berkeley/Los Angeles Smith RJ (1981) Resolving the tragedy of the commons by creating private property rights in wildlife. Cato J 1(2):439–468 Smith SL (2017) The historical and intellectual context of global water ethics. In: Ziegler R, Groenfeldt D (eds) Global water ethics: towards a global ethics charter. Routledge/Earthscan, London/New York, pp 13–33 Stefanovic IL (2015) Ethics, sustainability, and water management: a Canadian case study. In: Filho WL, Sümer V (eds) Sustainable water use and management: examples of new approaches and perspectives. Springer, Cham, pp 3–16 Sultana F (2011) Suffering for water, suffering from water: emotional geographies of resource access, control and conflict. Geoforum 42(2):163–172 Sultana F, Loftus A (2012a) The right to water: prospects and possibilities. In: Sultana F, Loftus A (eds) The right to water: politics, governance and social struggles. Routledge/Earthscan, London/New York, pp 1–18 Sultana F, Loftus A (eds) (2012b) The right to water: politics, governance and social struggles. Routledge/Earthscan, London and New York

3  Contextualizing a Human Rights Perspective for Water Ethics: From Exploitati…

75

Thielborger P (2014) The right(s) to water: the multilevel governance of a unique human right. Springer, London Transparency International and Water Integrity Network (TI and WIN) (2008) In: Zinnbauer D, Dobson R, Despota K (eds) Global corruption report 2008: corruption in the water sector. Cambridge University Press, New York Tully S (2005) A human right to access water? A critique of general comment no. 15. Neth Q Hum Rights 23(1):35–63 Tully S (2006) Flighty purposes and deeds: a rejoinder to Malcolm Langford. Neth Q Hum Rights 24(3):461–472 United Nations [UN] (2001) Access to safe water fundamental human need, basic human right, says Secretary-General in message on world water day. United Nations meetings coverage and press releases, March 12. http://www.un.org/press/en/2001/sgsm7738.doc.htm. Accessed 15 Mar 2020 United Nations Conference on Environment and Development (1992) Rio declaration on environment and development, UN Doc. A/CONF.151/26 (vol. I); 31 ILM 874 (1992). https://www. un.org/en/development/desa/population/migration/generalassembly/docs/globalcompact/A_ CONF.151_26_Vol.I_Declaration.pdf. Accessed 29 Mar 2020 United Nations Department of Economic and Social Affairs [UN DESA] (2007) Providing water to the urban poor in developing countries: the role of tariffs and subsidies. Sustainable development innovation briefs, Issue 4, October, UN Department of Economic and Social Affairs, Division for Sustainable Development. https://sustainabledevelopment.un.org/content/documents/no4.pdf. Accessed 23 Mar 2020 United Nations Development Programme [UN DP] (2006) In: Ross-Larson B, de Coquereaumont M, Trott C (eds) Human development report 2006: beyond scarcity: power, poverty and the global water crisis. Palgrave Macmillan, New York United Nations Economic, Social and Cultural Rights [UNESCR] Committee (2008) General comment No. 15: The right to water (Art. 11 and 12), UN Doc. HRI/GEN/1/Rev.9 (Vol. I), 27 May. https://www.refworld.org/pdfid/4538838d11.pdf. Accessed 29 Mar 2020 United Nations General Assembly [UNGA] (1979) Follow up to and implementation of the Mar del Plata Action Plan of the United Nations Water Conference, 108th plenary meeting, 18 December. UN Doc. A/RES/34/191. https://www.refworld.org/docid/3b00f178c.html. Accessed 29 Mar 2020 United Nations General Assembly [UNGA] (2000) United Nations millennium declaration. UN Doc. A/RES/55/2, 18 September. https://undocs.org/A/RES/55/2. Accessed 9 Jan 2020 United Nations General Assembly [UNGA] (2004) International decade for action: water for life, 2005–2015. Resolution adopted on 23 December 2003. UN Doc. A/RES/58/217, 9 February. https://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/58/217. Accessed 23 Mar 2020 United Nations General Assembly [UNGA] (2010a) 64/ 292: The human right to water and sanitation. Resolution adopted by the general assembly on 28 July. UN Doc. A/RES/64/292, 3 August 2010. http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/64/292. Accessed 9 Mar 2020. See also UNSDG website, Goal 6: https://www.un.org/sustainabledevelopment/ water-and-sanitation. Accessed 9 Mar 2020 United Nations General Assembly [UNGA] (2010b) General Assembly adopts resolution recognizing access to clean water, sanitation as human right. United Nations general assembly, press release GA/10967, 28 July. https://www.un.org/press/en/2010/ga10967.doc.htm. Accessed 29 Mar 2020 United Nations General Assembly [UNGA] (2010c) Summary of the 108th plenary meeting of the 64th general assembly. UN Doc. A/64/PV.108, 28 July. https://undocs.org/en/A/64/PV.108. Accessed 29 Mar 2020 United Nations General Assembly [UNGA] (2012) The human right to safe drinking water and sanitation. United nations general assembly, human rights council, twenty-first session,

76

A. Wellington

agenda item 2, UN Doc. A/HRC/21/L.1, 20 September. https://documents-dds-ny.un.org/doc/ RESOLUTION/LTD/G12/168/66/PDF/G1216866.pdf?OpenElement. Accessed 29 Mar 2020 United Nations General Assembly [UNGA] (2015) 70/1: Transforming our world: the 2030 agenda for sustainable development. Resolution adopted by the general assembly on 25 September 2015. UN Doc. A/RES/70/1, 21 October. http://www.un.org/en/development/desa/population/ migration/generalassembly/docs/globalcompact/A_RES_70_1_E.pdf. Accessed 29 Mar 2020 United Nations General Assembly [UNGA] (2016) 70/169: The human right to safe drinking water and sanitation. Resolution adopted by the general assembly on 17 December 2015. UN Doc. A/ RES/70/169, 22 February. https://undocs.org/A/RES/70/169. Accessed 29 Mar 2020 United Nations Human Rights Council [UNHRC] (2010) 15/ 9: Human rights and access to safe drinking and sanitation. Resolution adopted by the human rights council [30 September 2010]. United Nations general assembly, human rights council, fifteenth session, agenda item 3, UN Doc. A/HRC/RES/15/9, 6 October. https://documents-dds-ny.un.org/doc/UNDOC/GEN/ G10/166/33/PDF/G1016633.pdf?OpenElement. Accessed 29 Mar 2020 United Nations Office of the High Commissioner for Human Rights [UNOHCHR] (2011) Chapter 20: Manual on human rights monitoring. United Nations, Geneva. https://www.ohchr.org/ Documents/Publications/Chapter20-48pp.pdf. Accessed 15 Feb 2020 United Nations Water Conference [UN WC] (1977) Report of the United Nations water conference, Mar del Plata [Argentina], March 14–25. UN Doc. E/CONF.70/29. https://www.ircwash. org/sites/default/files/71UN77-161.6.pdf. Accessed 29 Mar 2020 United States Office of the Director of National Intelligence (2012) Global water security. Intelligence assessment, ICA 2012–08, 2 February. https://www.dni.gov/files/documents/ Special%20Report_ICA%20Global%20Water%20Security.pdf. Accessed 29 Mar 2020 Vandenhole W, Wielders T (2008) Water as a human right – water as an essential service: does it matter? Neth Q Hum Rights 26:381–424 Vasak K (1977) Human rights: a thirty-year struggle: the sustained efforts to give force of law to the universal declaration of human rights. UNESCO Courier 30(11):29–32 Wellington A (2011) Water. In: Chatterjee D (ed) Encyclopedia of global justice. Springer, Dordrecht Wellington A (2018) Water ethics. In: Dellasalla DA, Goldstein MI (eds) Encyclopedia of the Anthropocene. Elsevier, Amsterdam, pp 227–238 Winkler IT (2012) The human right to water: significance, legal status and implications for water allocation. Hart Publishing, Oxford Woodhouse EJ (2003) The ‘Guerra del Agua’ and the Cochabamba concession: social risk and foreign direct investment in public infrastructure. Stanford J Int Law 39:295–350 World Bank (2003) World development report 2004: making services work for poor people. World Bank, Washington, DC. https://openknowledge.worldbank.org/handle/10986/5986. Accessed 24 Mar 2020 World Bank (2005) Review of World Bank conditionality. World Bank, Washington, DC. http://documents.worldbank.org/curated/en/228751468134390047/Review-of-WorldBank-conditionality. Accessed 29 Mar 2020 World Bank (n.d.) Private participation in infrastructure database: sector snapshots – water and sewerage. Highlights 1990–2016. http://ppi.worldbank.org/snapshots/sector/water-and-sewerage. Accessed 24 Mar 2020 World Economic Forum (2011) Water security: the water-food-energy-climate nexus. World economic forum water initiative. https://www.weforum.org/reports/water-security-water-energyfood-climate-nexus. Accessed 4 Mar 2020 World Health Organization [WHO] and UNICEF Joint Monitoring Programme [JMP] (2017) Progress on drinking water, sanitation and hygiene. 2017 update and MDG assessment. https:// www.who.int/mediacentre/news/releases/2017/launch-version-report-jmp-water-sanitationhygiene.pdf. Accessed 29 Mar 2020 World Meteorological Organization [WMO] (1992) The Dublin statement and report of the conference: international conference on water and the environment: development issues for the 21st

3  Contextualizing a Human Rights Perspective for Water Ethics: From Exploitati…

77

century: 26–31 January, Dublin, Ireland. Hydrology and water resources department, World Meteorological Organization, Geneva. http://www.wmo.int/pages/prog/hwrp/documents/english/icwedece.html. Accessed 24 Mar 2020 Ziegler R, Groenfeldt D (eds) (2017) Global water ethics: towards a global ethics charter. Routledge/Earthscan, London and New York Ziegler R, Gerten D, Doll P (2017) Safe, just and sufficient space: the planetary boundary for human water use in a more-than-human world. In: Ziegler R, Groenfeldt D (eds) Global water ethics: towards a global ethics charter. Routledge/Earthscan, London/New York, pp 109–130

Chapter 4

Uses of Feminist Eco-Criticism for Water Policy Annette Louise Bickford

Abstract What can materialist/socio-economic ecofeminism contribute to the question of water policy? This chapter examines ecofeminist critiques of the current “neoliberalization of nature,” arguing that, along with water privatization, the meat industry – which has had a dramatic impact on the politics of water and land use, as well as on greenhouse gas emissions – should be a central policy concern in the face of an increasing shortage of water due to climate change. Critical ecological feminists advocate collective action based on diverse human interdependence as well as interdependency with the natural world as necessary to ecological balance, and our very survival. Keywords  Post-humanist feminist eco-criticism · Grain-oilseed-livestock complex · Water privatization · Human/nature dualisms · Critical animal geographies · Secondwave feminism · New materialists · Emergence · Holistic consciousness · Ideological mechanisms · Agro-ecological techniques · Collective mobilization

In August 1995, World Bank Vice President Ismail Serageldin identified water management and distribution as a critical policy issue, warning, “if the wars of this century were fought over oil, the wars of the next century will be fought over water” (Serageldin n.d.). Water conflicts have already begun. For instance, Nestlé has, since 1978, depleted California’s spring-fed Strawberry Creek, ruining the ecosystem for resident wildlife and plants. The corporation has drained up to 162 million gallons of fresh water annually from the San Bernardino National Forest, profiting hugely off its resale in single-use plastic bottles, even after repeated assessments have rated the watershed as impaired and in severe drought. Projections show that by 2050, plastic will surpass fish in the oceans (Patel and Moore 2017: 23–24; Chow 2018; Neuman 2018). Meanwhile, in northern California, in the face of acute water shortage, the industrial livestock complex, with its tremendous pull on freshwater ecosystems, continues unabated. A. L. Bickford (*) York University, Toronto, ON, Canada e-mail: [email protected] © Springer Nature Switzerland AG 2021 I. L. Stefanovic, Z. Adeel (eds.), Ethical Water Stewardship, Water Security in a New World, https://doi.org/10.1007/978-3-030-49540-4_4

79

80

A. L. Bickford

The Economist (2008) quoted Dow chemical chief executive Andrew Liveris as saying, “Water is the oil of the 21st century.” While many still presume inexhaustible supplies of freshwater, availability is actually uneven, and increasingly precarious, especially in less temperate countries of the global South. Less than 3% of our planet’s water is fresh, with most frozen either at the poles or in glaciers, or circulating in the atmosphere (Weis 2013: 41). UN-Water predictions foretell a shortfall of fresh drinking water by 2025, with “1.8 billion people … in regions with absolute water scarcity, and two thirds of the world population … under water stress” (Weis 2013: 32, 41). Between 1990 and 2025, the number of people living in countries without adequate water is projected to rise from 131 million to 817 million (Shiva 2016: viii). Exacerbating existing scarcity, water trade has become a corporate right, causing a global water crisis that is “the most pervasive, most severe, and most invisible dimension of the ecological devastation of the earth” (Shiva 2016: 1). Global institutions including the International Monetary Fund, World Bank, G-7 governments, and World Trade Organization have assisted corporate privatization of water in direct opposition to the sustenance requirements of billions of people and millions of species (Shiva 2016: xvii, vii, 1). Lobbyists pressure Western governments for water privatization policies involving for-profit multinational water corporations, arguing that water, as an increasingly scarce resource, should be paid for and apportioned accordingly. Opponents of this privatization, advanced as “market environmentalism,” claim water as a human right essential for life (Bakker 2007: 432; Klein 2014: 18, 40–41). This chapter examines ecofeminist critiques of the current “neoliberalization of nature,” assessing its potential contribution to considerations of water policy. Broadly, ecofeminists examine water ecology through a lens that interrupts entrenched justifications of human mastery over nature (and all that is subsumed under that, including human outgroups, and nonhuman animals). A late-twentieth-­ century development of affinity politics, ecofeminism lacks a totalizing epistemology or any unified theoretical framework, drawing disparate groups of Marxists, feminist ecosocialists, goddess worshippers, spiritual pagans, and others focused on cultural or materialist orientations. Ecofeminist analyses gravitate to two main areas: the cultural-symbolic, and the materialist/socio-economic. While cultural ecofeminists problematically focus on individual consciousness and personal spiritual identity, scholars like Carolyn Merchant have sought radical structural change, insisting upon materialism and collective action as the most effective force for social change.1 In its focus on idolatry of the feminine, idealism, and universalism,

1  Critiquing Marxism, however, socialist ecofeminists argue for the significant contribution of social and biological reproduction to relations of production, as well as unpaid labor, calling for an expanded focus beyond traditional analyses (Carlassare 2010: 90–91, 93, 96, 100–101, 103). Ariel Salleh argues for recognition that labor relations to capital, nature, and labor are constructed differently along gender lines: “Continued capital accumulation and the expanding hegemony of transnational operations deepens nature’s and women’s subjection. This is not to say that capitalism has been the only source of such oppression, nor to argue that capital does not also exploit men” (1995: 22). See also Adams and Gruen (2014: 7–11).

4  Uses of Feminist Eco-Criticism for Water Policy

81

New Age ecofeminism neglected important analyses of political economy (Gaard 2011; Deckha 2012; Carlassare 2010: 7, 32). Conflated with extensions of cultural feminism, ecofeminism across the board fell out of academic favor during the 1990s for its gynocentric essentialism, ethnocentrism, and New Age mysticism upholding dubious claims of a spiritual feminine alignment with Nature. Poststructuralist feminists rejected the celebratory preservation of “woman’s” exclusion from technology and culture as reactive. Decades later, many climate theorists are gleaning and reviving certain key ecofeminist insights in promising ways (Gaard 2011). Current feminist ecocriticism has much to contribute to water policy deliberations in its renewed attention to hegemonic dualisms that fundamentally underpin the disconnected ways in which we treat the natural world, and how we treat each other. Ecofeminism has as its central tenet the argument that a series of interrelated dualisms emergent over a long history – from the ancient reason/nature, possibly originating in Platonic philosophy, to the modernist, post-Enlightenment dualisms of human/nature and subject/object – form a fault line that runs through Western culture’s entire conceptual system, entrenching relations of domination and exploitation (Plumwood 1993: 42; Gaard 2001: 159). Platonic, Aristotelian, Cartesian rationalist, and Christian rationalist frameworks gave rise to current nature/society dualisms that would begin to manifest their current significance by the mid-­sixteenth century within European colonialism, the Scientific Revolution, and the rise of industrial capitalism. Dualisms are different from distinctions, difference, and even dichotomies and binaries, because they operate primarily as hierarchical; power relations distinguish them (Plumwood 1993: 42–43, 48–49, 55). They polarize through the institutionalization of radical exclusion, naturalizing the othered as a different kind, constructing them as innately inferior to the extent that movement toward equitable economic opportunity and privilege becomes unthinkable. We overlook commonalities in our constructed, hyper-separated orders of being in society/nature, men/women, human/ animal dualisms, such that domination comes to seem natural and inevitable. Ecofeminists challenge this designation of entities relegated to nature, like water, to the sphere of expediency to be used as an endless resource pool or, alternatively, as a cesspool (Plumwood 1993: 69–70; Salleh 2017: 1–2). Cartesian dualism has historically been a normative call to exploit the “othered” including the colonized, racialized, working classes, and most women, classified as belonging not to “civilization,” but to the natural world. Descartes developed two laws of capitalist ecology in 1641 to separate mind (thinking things, including some humans) from body (extended things, all catalogued under nature), and the mastery of the former over the latter. “Nature should be dominated and controlled,” mastered and possessed by European civilization, he wrote (Plumwood 1993: 52). Francis Bacon (1561–1626) employed similar allegories: … science should as it were torture nature’s secrets out of her. Further, “the empire of man” should penetrate and dominate the “womb of nature.” Science must “hound nature in her wanderings, and you will be able, when you like, to lead and drive her afterwards to the same place again … Neither ought a man to make scruple of entering and penetrating into

82

A. L. Bickford these holes and corners, when the inquisition of truth is his whole object. (Patel and Moore 2017: 53)

Gender is a focus for ecofeminists because this dualistic hierarchy was fundamentally gendered – “gyn/ecological” from the beginning – with male/female binaries mirroring nature/society (Patel and Moore 2017: 53–54, 61).

4.1  Fresh Water: A Human Right? Water is imperative for survival. Globally ascendant since the 1970s, and expedited by the International Monetary Fund, World Bank, and World Trade Organization, neoliberal capitalism has enabled market deregulation and water privatization with minimal government interference. Such privatization jeopardizes non-market access for the public good. The commons, “the great trove” of once abundant fresh water that has historically been our collective birthright as citizens of the earth, is diverted to a wealthy few through privatization schemes (Plumwood 1993: 13; Public Citizen n.d.; Malm 2018: 188–190; 195). In response to statistics documenting 900  million people living without clean water, the United Nations General Assembly, on 28 July 2010, recognized the human right to water in its Resolution 64/292. Clean drinking water and sanitation, it declared, are essential to the realization of all human rights. The UN thereby called upon States and international organizations to safeguard all citizens (United Nations 2009–2010; Patel and Moore 2017: 2). The UN Resolution would have had more clout prior to the rise of neoliberal capitalism. In an “epic case of bad historical timing,” Klein observes, scientists confirmed the climate threat just as governments relinquished control to the deregulated market. It is “our great collective misfortune,” she argues, that calling for drastic government regulation in response to water scarcity and global warming has become preposterous (Klein 2014: 18, 40): How, for instance, could societies invest massively in zero-carbon public services and infrastructure at a time when the public sphere was being systematically dismantled and auctioned off [through privatization]? How could governments heavily regulate, tax, and penalize fossil fuel companies when all such measures were being dismissed as relics of “command and control” communism? And how could the renewable energy sector receive the supports and protections it needed to replace fossil fuels when “protectionism” had been made a dirty word? … What the climate needs to avoid collapse is a contraction in humanity’s use of resources; what our economic model demands to avoid collapse is unfettered expansion. Only one of these sets of rules can be changed, and it’s not the laws of nature. (Klein 2014: 24)

As a system predicated on a compulsive, ever-increasing commodification of biophysical resources, capitalism must expand at an ever-increasing rate or go into crisis, bringing ecological disaster through rampant destruction of planetary diversity and fecundity (Dawson 2016: 12–14, 16, 24; Klein 2014: 18, 40; Patel and Moore 2017: 2). Human ecologist Andreas Malm (2018: 185) observes that such a trait would never occur in nature: “Any creature that had it would be fantastically

4  Uses of Feminist Eco-Criticism for Water Policy

83

maladaptive and quickly go extinct; capital has been able to maintain it into the twenty-first century only by establishing complete dominion over tellurian nature.” It is unsustainable.

4.2  Neoliberalization of Cheap Nature Related to anthropogenic climate change, the new geological epoch, conventionally known as the Anthropocene, refers to notable human impact on the geology of the earth, along with its ecosystems, since the end of the last ice age. The term presumes a flawed human nature, and as a universalized concept questionably implicates humanity as a whole, obfuscating the unaccountable elite who are overwhelmingly responsible for  – and, in many cases, actually profit from  – climate change (Plumwood 1993: 69–70, 12). In 2017, eight people owned as much wealth as half of humanity. Currently, the emissions of the wealthiest 1% of Americans, Saudis, and Luxembourgians are 2000 times more than those of the world’s poorest; their carbon footprint is 175 times that of the poorest 10%. One tenth of the global population is responsible for one half of current emissions, and half the population accounts for one tenth. Statistics demonstrate a similar asymmetrical pattern of carbon dioxide accumulated on a global scale since 1820 (Malm 2018: 188–189). Malm points to “the grotesque concentration” of planetary resources among the wealthiest eight people (1%) as a scourge. “An effective climate policy,” he notes, “would be the total expropriation of the top one to ten percent. That could eliminate up to half of all emissions in one fell blow, and finance a global transition several times over” (Malm 2018: 190). Environmental historian and historical geographer Jason Moore prefers “Capitalocene” to “Anthropocene” as a more accurate term, given that modern history (since the fifteenth century) has unfolded as an economic system built on a dualistic ideological frame that sets social relations in opposition to the natural world through a logic of domination. By definition, capitalism must harness and exploit “cheap” nature, inexorably leading to increased economies of scale for an ever-expanding market. Under modernity, capitalism developed through a dependence upon the labor extracted from the enslaved, most women, nonhuman animals, the colonized, the increasingly disposable poor, the working class, and the racialized. Though essential to capital, this labor was regarded as “not quite labor.” More than just inexpensive, cheap nature is the process through which capitalism exploits “undenominated relationships of life” – geological, human, animal, and botanical work – extracting them as profitable commodities at the lowest price possible, or with the least possible compensation (Moore 2016: 78–79; Patel and Moore 2017: 3, 9, 22; Salleh 2017: 108). Capitalist markets and commodities mediate our interactions with ecosystems and natural resources, like water, advancing through the commodification and appropriation of anything “relegated” to the natural world, including riparian

84

A. L. Bickford

systems, waterways, nonhuman animals, othered human outgroups, and rainforests. Capitalist appropriation is distinguished by its focus on economic profit and productivity beyond subsistence value (or what we actually need, and what the biosphere can sustainably provide). Ecofeminists note the persistent ideological underpinning of this: a conceptualization of nature as opposed to society in an intrinsically hierarchical, dualistic relationship that necessarily objectifies and alienates nature. Before delving into an assessment of ecofeminist insights for water policy, I briefly turn to a consideration of climate change and water use in the grain-oilseed-­livestock complex to illustrate the practical dynamics of this problematic dualistic ideology under advanced neoliberal capitalism.2

4.3  The Pull of Meat on Fresh Water Agriculture poses by far the greatest threat to biodiversity and ecosystem function. Claiming 70% of the pull on global freshwater ecosystems, agriculture is at the root of the crisis of freshwater scarcity. Most North American waterways have been diverted for irrigation, with significant damage to riparian ecosystems and biodiversity, and the negligible amounts of water returned to waterways from farms bear irreversible, irreparable contamination loads. Livestock feed crops contribute half of agriculture’s total freshwater consumption (Weis 2013: 2–10; Hoekstra 2012; Postel 1997: 190; Borgstrom 1981; Proyect n.d.). The burgeoning livestock industry requires overdrawing from lakes and rivers, including the mining of ancient aquifers (nonrenewable water supplies), resulting in the decline of free-flowing waterways and riparian ecosystems. Statistics show that by the turn of the twentieth century, 150–200 km3 more groundwater was being pumped annually than was being replenished. Weis predicts that problems associated with falling water tables will only grow in magnitude with heightened evapotranspiration accompanying continued climate change (Weis 2013: 48–49). The industrial grain-oilseed-livestock complex makes tremendous freshwater demands, annually claiming a staggering 128  trillion liters of fresh water. The global water footprint of livestock production is 2422  billion m3/year (Hoekstra 2012:6). Sandra Postel (1997:190) estimates that approximately 20,500 liters of fresh water are used to produce 0.45 kg of beef on a typical California cattle farm. Conservative figures generally cite 9,464 l per 0.45 kg. Most of the fresh water used (98%) to produce meat is taken up by feed production. Industrial livestock sites, too, require an extensive water infrastructure delivered by fossil-fueled transport. Livestock production requires huge volumes of water for frequent flushing of waste from farm enclosures and feedlots, kill floors, and packing plants. Drinking water 2  It is beyond the scope of this chapter to discuss the impact of livestock production on soil, air, greenhouse gas emissions, land use, and human health, including the compelling evidence that suggests that our dentition and general physiology do not support normalized and naturalized notions of humans as natural carnivores, or even omnivores.

4  Uses of Feminist Eco-Criticism for Water Policy

85

for cows actually accounts for just 1% of the water footprint of beef production, and so it is particularly disturbing that the industry economizes “by withholding water from animals on their way to slaughter, often over long hauls, because it would fail to add to their commodity value” (Hoekstra 2012: 6; Weis 2013: 123). The industrial grain-oilseed-livestock complex represents a monumental transformation in modern agriculture from grains for human subsistence to those grown for animal feed. According to political ecologist Tony Weis, this shift has had a catastrophic impact – more so than any other factor in modern times – on the politics of food distribution and land use, as well as greenhouse gas emissions. One billion people (one seventh of the world’s population) suffer from chronic hunger. Massive volumes of usable nutrition are lost, burned inefficiently in the metabolic processes of livestock (Weis 2013:3–4). Water is also wasted through feed conversion losses; meat, dairy, and eggs “contain much more embedded water per unit of nutrition than if it were derived directly from grains or oilseeds” (Weis 2013: 47, 132–134). A 2016 study in Nature Climate Change estimates that on average, global wheat yield will decline 5.7% per centigrade increase in temperature. Social fractures will deepen as a result, especially around the tropics, where crop losses will be in the order of 11–20% (Malm 2018: 225–227). According to the Food and Agricultural Organization of the United Nations, salinization, erosion, and waterlogging decimate 75 billion tonnes of soil (10 million hectares [ha] of arable land) annually, with 20 million ha abandoned because of soil deterioration (Weis 2013: 48). Continuing expansion of livestock onto more marginal areas (including deforestation of rainforests globally since the 1960s) is a leading cause of desertification, projected to result in an 8–20% decline in crop land globally by mid-century. Arable land is projected to shrink from 0.2 ha/person to 0.14 or 0.12 – a threefold decline since 1960 (Weis 2013: 48, 132). This is linked to capitalist production, which, driven by an agenda of incessant growth and profit over sustenance, exhausts more and more biophysical resources, progressively stripping the earth of its fecundity and diversity through euphemistic “resource development” (Dawson 2016: 12–13, 16, 24). The industrial grain-oilseed-livestock complex causes 51% of all greenhouse gas emissions (including methane and nitrous oxide), according to the 2009 World Watch report (Weis 2013: 50–51). Livestock production also contributes considerably to pollution through its reliance upon fossil energy, extracted through natural gas fracking (which annually consumes 378 billion gallons of fresh water), the tar sands, and deep ocean drilling (Weis 2013: 49, 132–34). Mediated by an array of corporate interests, the shift in global agriculture from food to feed grains (grain and oilseed monocultures) has depleted and poisoned fresh water and caused soil degradation and biodiversity loss. Monocultures that sustain factory farms cause soil erosion and a proliferation of insects, weeds, and disease. Overrides involve the stopgap application of pesticides, fungicides, herbicides, potash, and other unsustainable fertilizers, in addition to disinfectants, antibiotics, and other pharmaceuticals (Weis 2013: 8–9, 123–124, 132). For most of the 10,000 years that we have practiced agriculture, humanity has consumed only very occasional and small quantities of meat, dairy, and eggs (circumpolar peoples are exceptional) (see, e.g., Lee 1979; Sperling 1991; Sussman

86

A. L. Bickford

1999). Since the 1960s, capitalist agribusiness has driven the ever-increasing “meatification” of diets, especially in the global North. While these populations consumed just 5 kg of eggs and 23 kg of meat per person in 1961, by 2011 the figures rose to 10  kg of eggs and 43  kg of meat per person. The United Nations’ Food and Agriculture Organization predicts an increase to 52 kg of meat per person annually by 2050, along with an increase in world population to 9.3 billion. By 2050, then, we may see meat production increase by two thirds to feed one third more people. In other words, in 2010, we slaughtered 64  billion animals, up from 8  billion in 1961; this number is expected to rise to 120 billion by the year 2050 (Weis 2013: 1–2). To put this in perspective, a billion days ago, it was 2.7  million years ago (Futurism.com 2015). As the meatification of diets continues to grow, agricultural irrigation will demand more and more unsustainable pumping of groundwater. Ecofeminists along with ecosocialists have examined capitalism’s prioritization of profit as a key driver of human and animal exploitation in the livestock industry, as well as climate change. Corporate production and control of food sources has an enormous impact on climate change. R.J. Reynolds/Del Monte and other corporations own extensive cattle-grazing land for fast food in countries all across Central America, including Honduras, Guatemala, and Costa Rica. This practice damages ancient ecosystems, denudes rainforests, and then exhausts the soil, poisons the water, and destroys the lives of subsistence farmers expelled from the land, along with animals bred and slaughtered as commodities (Proyect n.d.). Slaughterhouse workers are exploited through brutalized labor, while animals are handled as automata. “The ideology that animals are lesser beings, less endowed with the potential for rich emotional and social lives, and less conscious of pain, must hold for the system to function” (Corman 2014). Ecofeminists have exposed underlying ideological dualisms that rationalize human attempts to subjugate the natural world, at our own peril.

4.4  E  cofeminism, Essentialism, and the Gendered Devaluation of Nature For Julia Mason, the “social mentality that leads to the domination and oppression of women is directly connected to the social mentality that leads to the abuse of the environment … [thus] it is not coincidental that we treat both the earth and women badly” (Adamovich 2015). Western consciousness gradually loosened far-reaching connections between humans and nature, such that the natural world came to be seen mechanistically (instead of holistically) as an externalized store of resources, there to be extracted and controlled (Malm 2018: 184). The rise of European capitalist agricultural practices beginning in the fourteenth century, in conjunction with scientific advances in the sixteenth and seventeenth centuries, exacerbated this. “Some precious things were broken in the process” (Malm 2018: 183). Holistic

4  Uses of Feminist Eco-Criticism for Water Policy

87

conceptions of nature and our place in it fell into obsolescence at the expense of the environment and, arguably, all its inhabitants. The decimation of forests in England along with the Enclosure movement – a legal process beginning in the thirteenth century that ended the ancient practice of farming in open fields (the commons) and destroyed peasant livelihoods in the process – involved an economic shift away from medieval Western European feudalism to the management of agriculture for profit through global trade. Mechanistic interpretations gradually redefined water as a resource to be exploited, along with the rest of nature, with maximum efficiency. The new ideology and practices extended to the often-violent regulation of women’s bodies, since patriarchal ideology regarded nature and females as commensurate (Malm 2018: 182–185; Merchant 1980: 43–68; Gaard 2001: 159). Ecofeminists have traditionally subscribed to associations of women (as othered) with the natural world, examining ecology primarily through a gendered lens, reactively ascribing a positive value to a disparaged gendered nature. As feminist utopianism, ecofeminism has problematically envisioned women at peace with the natural world, free of any hierarchy, inequality, poverty, or oppression through military or technological might exercised through “the hostile intent of men.” This is a utopia, Val Plumwood explains, “where people care for one another and for nature, where the earth and the forest retain their mystery, power and wholeness, where the power of technology and of military and economic force does not rule the earth, or at least that part of it controlled by women … it is life versus death, Gaia versus Mars, mysterious forest versus technological desert, women versus men” (1993: 7). She shares Malm’s observation that the “dominance of ‘rational’ man threatens ultimately to produce the most irrational of results, the extinction of our species along with many others” (1993: 7). Ecofeminists regard climate change as a gender issue, with diverse perspectives on exactly what it is that links the domination of women with the domination of nature. Prioritizing analyses of underlying nature/culture dualisms, materialist ecofeminists focus on ways in which capitalism exploits women and nature (Salleh 1995). Val Plumwood and Greta Gaard argue that Western patriarchal dualisms – between women/nature/the body/emotion versus rational “civilization” – while not reducible to gender, are fundamentally gendered, with gender ideals integral to the question of reason. Consider again the ordered nature of dualisms. They involve two sets: one deemed superior, and the other, inferior. Each assemblage lists naturalized qualities, with the “superior” category credited to a eugenically exclusive group deemed representative of full, “civilized” humanity and reason (and every related trait is represented as a form of reason), while the opposing lot, as an inferior monolithic counterpart, subsumes most of humankind (including the racialized, the insane, most women, working-class white men, and so on) as well as nature and nonhuman animals – all damned as the marginal othered (Plumwood 1993: 44). In contradistinction to radical and other feminists, liberal feminists pursue inclusion in the “superior” group, rarely questioning existing economic and political

88

A. L. Bickford

structures. Cultural ecofeminists, on the other hand, embrace and even deify their ostensible oneness with nature, animality, the body, emotions, primitivity, irrationality, and faith  – reinforcing gender essentialism through an arguably collusive understanding of reason as the sole purview of men. Western women in the global North are as complicit as men in supporting environmentally deleterious practices, including the meatification of diets and the clothing trade. It is simplistic to reinscribe historical Western constructs like the Cult of True Womanhood with “angel in the ecosystem” narratives (Plumwood 1993: 9–10). On the other hand, Ariel Salleh demonstrates how ideological associations of women with water have produced actual conditions of gendered dominance around water. If women are deemed closer to nature, one might presume them to be natural stewards of water. Historically and cross-culturally, though, management of and access to water is often a site of gender demarcations, at least in patriarchal and patrilineal societies, where gender allegories inform control over water, a privilege coincident with (male) land ownership. Thus, according to Salleh, water politics and masculinity are mutually reinforcing, and the authority to make decisions about water policy are part of wider power relations. With this in mind, it is notable that globally, those who suffer from water scarcity are the very ones who lack market power (Gaard 2001: 161; Salleh 2017: 190–196). Triangulating Marxism, environmentalism, and feminism, Malm calls for “a revolution in economic priorities” (2018: 184). Ecosocialists argue that ecofeminism must include a call for public ownership of raw materials, including the commons – water, for instance, as well as facilities employed in the production of goods and services (means of production) to avoid its usual essentialist associations of women and nature. A recuperation of ecofeminism, post-humanist feminist eco-criticism practices intersectional analyses of society/nature dualisms incorporating gender studies, post-colonial studies, and critical animal geographies, with the understanding that oppression operates within an interlocking assemblage of imbricated political and economic structures (Gaard 2001: 159). For instance, Salleh’s (2017) ecofeminism synthesizes political economy, feminism, postcolonial studies, and ecological objectives in analyses that are able to extend themselves beyond some of the limitations of liberal politics. Critical ecological feminism additionally challenges radical feminisms that neglect to consider networks between labor and nature. But its persistent preoccupation with gender in analyses of power relations tends to deemphasize other structural relations, and in the process, middle-class white women reemerge as ambassadors representing “universal woman” (as Western men [“Man”] conventionally stand as representatives of “human”), taking up the discarded mantle of second-wave feminist theory (Carlassare 2010: 8–9, 90–91; Deckha 2012: 527–545; Plumwood 1993: 7, 32).

4  Uses of Feminist Eco-Criticism for Water Policy

89

4.5  Should We Dissolve Society/Nature Dualisms? Capitalism, according to Jason Moore, was the first civilization built upon a dualism that made (some) humans “the masters and possessors of nature.” Determined to “shake the conceptual structures of oppression to their foundations,” ecofeminists expose Western dualisms as a key organizing principle of the lucrative commodification of the natural world (Moore 2015: 12; Gaard and Gruen 1993; Mies and Shiva 1993; Plumwood 1993: 1). Bruno Latour and other new materialist hybridist scholars seek to transcend these boundaries through imbroglios or hybrids that render the social and nature indistinguishable (Malm 2018: 46–47). New materialists therefore attribute agency – defined as “making some difference to a state of affairs” rather than acting with conscious intentionality  – to humans and nonhuman nature alike. To illustrate this, consider the case of nonhuman animal consciousness and intentionality. Western philosophy has long declared the capacity for rational thought and its manifestation in language (consciousness, language, agency) as that which distinguishes human and nonhuman animals. But it is shared by many animals, and not possessed by some humans. Animals communicate perfectly well among their own various species, and chimpanzees can communicate through sophisticated sign language, transferring signs spontaneously to new referents. “If a chimp can be said to ‘speak’ using his hands, where does the difference between the species lie? Where is our power then?” (Fudge 2002: 118). Crows demonstrate analogical thinking, and octopus intelligence is profound. Are pets simply animals, given their status as family members? What about (highly skilled) seeing-eye dogs? Our perceptions are based on our limitations and the fact that animals’ abilities and experiences exceed our capacity to conceive of them. “It is easier to assume human difference than to have to reassess the possibility of animal capacity” (Fudge 2002: 113–166). Nonhuman animal subjectivity “has always been, and continues to be, a blind spot, a conundrum for mainstream European thought” (Corbey 2013: 69). Recent research has demonstrated the influence of both collective and individual nonhuman personalities on wildlife ecology. “To maintain that this is natural while human societies are unnatural is to robotize the nonhuman world, denying agency and intentionality in our fellow creatures and rejecting Darwin’s claim that the difference between ourselves and other animals “is one of degree and not of kind” (Martindale 2018). Without necessarily concurring with hybridism and new materialism, most ecofeminist and critical animal geography scholars would challenge Malm’s dismissal of nonhuman agency. He understandably retains the dualism to make the appropriately urgent argument that collective human action is pivotal to confronting climate change. Malm distinguishes between society and nature, but as nonhierarchical entities that have fundamentally different properties. He has no interest in devaluing nonhuman animals and nature, but insists upon some form of human mastery over these as a matter of taking responsibility for anthropogenic climate change. He concedes that nature/society boundaries are often blurred through interaction, rejecting

90

A. L. Bickford

hybridist claims, especially in relation to agency and climate politics. If agency is as ubiquitous as Latour claims, where agency is attributed to carbon dioxide atoms, for instance, then human agency as a specific cause of climate change is obscured, freeing human perpetrators from responsibility and thwarting urgently needed action. Malm, quoting Kate Soper, defines nature as “those material structures and processes that are independent of human activity (in the sense that they are not a humanly created product), and whose forces and causal powers are the necessary conditions of every human practice, and determine the possible forms it can take” (Malm 2018). Our grave ecological concerns, he argues, are produced by social drivers like capitalism, and thus we need to recognize the fundamental conflict between capitalism and nature. For him, this requires critical analysis that unequivocally distinguishes social drivers from the nonhuman world. Unlike ecofeminists, Malm does not distinguish between binaries and (hierarchical) dualisms, possibly overlooking the theoretical importance of the distinction. “Why is it violent and oppressive to distinguish between things?” he asks, arguing that “in a world like this, where the contradictions between the apex of wealth and the conditions supporting human existence are reaching catastrophic intensity … political warfare demands manuals brimful with binaries” (Malm 2018: 179, 182, 188, 189). Ecofeminists would not disagree, but neither would they conflate binaries and intrinsically hierarchical dualisms. Scholars in feminist eco-criticism are divided on the question of whether transcending the foundational Cartesian legacy, dismantling the ideological alienation of society from nature, would mobilize collective action for needed change (Malm 2018: 181; Gaard 2001: 158). Would a merger of hyper-separated nature/culture dismantle capitalism or halt water privatization? Plumwood observes that in general, “… such a merger strategy is neither necessary nor desirable, because while dualism makes difference the vehicle for hierarchy, it usually does so by distorting difference. The attempt to eliminate distinction along with dualism is misconceived on both political and philosophical counts” (Plumwood 1993: 58–59). Dualism with hyper-separation sees mutual exclusivity: “To call that approach dualist  – in the Cartesian sense – is comparable to denying your heart is not an integral part of your body, and a distinct organ with unique features and functions” (Malm 2018: 180). We can view society as separate from nature (the Earth system) and, at the same time, as a fundamental part of it.

4.6  Water Policy and Critical Ecofeminism Linking intersectionality to ecology and seeking to develop an alternative ontology and epistemology in nature–humanity relations, materialist ecofeminists offer needed insight into protective water management and distribution policies. Ecofeminists urge us to begin to resolve the Western network of dualisms that underlie climate change as “no longer simply a matter of justice, but now also a matter of survival.” Latour (2016) argues that under modernity, we have shed the

4  Uses of Feminist Eco-Criticism for Water Policy

91

“old earthbound in us.” Deep-seated hegemonic conceptions of the social and natural worlds have naturalized human mastery and domination over the natural world, alienating us to the point where we see ourselves “as only minimally and accidentally connected to the earth” (Plumwood 1993: 6, 102, 148). Corporate capitalists problematically search for solutions that facilitate the continued burning of fossil fuels and that promote risky geo-engineering projects that call for increased control over the biosphere. Some scholars implore us to “rewild ourselves” (Latour 2016), problematically implying some natural human condition we have become alienated from and must salvage in order to ensure planetary security. It is more hopeful to frame our task in terms of emergence, involving new ways of being in relation to the natural world, occasioned by climate change. We need to develop a holistic consciousness of an integral ecosystem supported by corresponding sociopolitical and economic structures. Feminist eco-criticism scholars discern some major ideological mechanisms to facilitate human connectedness to the natural world, which better operationalized, might contribute to effective collective mobilization for climate action. Most materialist ecofeminists support the move to find new economic models with emancipated labor and production centered away from commodities and exchange value and toward use values in flourishing ecosystems. They also advocate a holistic worldview of an integral ecosystem that incorporates people as part of the natural world, one species among many; transformative agents disengaged from mechanistic rationales of radical human separation from the nonhuman (Plumwood 1993: 7; Martindale 2018). Ideological shifts can take generations to come to fruition, and climate action requires immediate action. Neoliberal capitalism limits government intervention, but with all the world at stake, we require strong governmental protection of the renewable energy sector, equitable regulation of water resources as a common good, and an end to capricious and predatory extraction of natural resources for profit. We need critical interventions that give prominence to trenchant policies reversing water (and other resource) privatizations, enforce pollution bans, tax fossil fuels, and heavily subsidize green technologies (Klein 2014: 39, 54, 61–62). Continued fossil fuel use is reckless. “Surely [large-scale fossil fuel combustion] reaches a new level of demented aggression,” Malm argues, “when temperatures have increased by 1.5 C or a sea level rise of several meters has been locked into the earth system. If the resistance to fossil fuels has been feeble up this point, it ought to become ferocious after it” (Malm 2018: 18). We are in the midst of climate emergency: we need our governments to compel those most responsible for climate destruction to radically cut per capita greenhouse gas emissions (in the order of 80% in wealthy countries). Our greenhouse gas annual emissions cap should be set far below UN Framework Convention on Climate Change targets, rationing emissions (Weis 2013: 45). Achievable policies, Malm argues, would necessitate the removal of obstructionist capitalist interests. Possibly billions of lives would be spared through interventions including the dismantling of the meat industry, large-scale reforestation and protection of tropical forests; halted oil, natural gas, and coal extraction, closure of

92

A. L. Bickford

affiliated plants and a ban on new ones; wind and solar power for electricity as well as road and sea travel; and the expansion of mass public transit, with subsidized intercontinental high-speed trains and subways. Government intervention would end the expansion of air, sea, and road travel, while heavily investing in vital technological advances in these industries, and green tech in general. Policies would promote local supplies over transported food, and require insulation upgrades to old buildings, along with zero-carbon new construction (Malm 2016, 2018: 134–135). Large-scale ecological restoration also depends upon agro-ecological techniques. Renaturalization of forests and reclamation of land for self-organizing ecosystems (streams and rivers, wetlands, riparian zones, native grasslands) would mitigate climate change. Some ecofeminists envision the protection of water through small-­ scale economies supported by noncapitalist local grassroots democracy. Citing the global peasant movement Via Campesina, Weis advocates small farming as a way to reduce the pull on freshwater ecosystems, improve the efficiency of irrigation, and protect continuing loss of biodiversity. Bio-intensive farming would limit the amount of arable land needed for agriculture, stopping rapacious conversions of land for agriculture, along with forest burning/clearance for cattle ranching, most urgently in tropical rainforests (which absorb carbon in the greatest volumes). This would reduce the monumental water budget of livestock operations and the extensive, high-input monocultures (biologically simplified landscapes) supporting them. The nutritional output per hectare on bio-intensive farms is maximized, producing a higher content of micro-nutrients than monocultures, along with lower chemical residues (Weis 2013: 44, 123, 148–149).

4.7  Conclusion Water privatization and livestock agribusiness should be central concerns in the face of an increasing shortage of water due to climate change. For Klein, entrusting water protection to the free market (corporate, big military, big engineering responses), taken to its logical conclusion, will result in a Mad Max dystopic future. In their trepidation over the possibility of direct confrontation with politicians and their financiers, various groups of climate advocates have squandered “precious decades attempting to make the square peg of the climate crisis fit into the round hole of deregulated capitalism,” hoping the market might solve the problem (Klein 2014: 20). It will not.3 Fredric Jameson’s (1994: xii) famous quote, “it is easier to imagine the end of the world than to imagine the end of capitalism,” is portentous. “Eternity is determined now,” Malm (2018:7) warns, “supercharging our moment with time,” given that catastrophic climate change would last “longer than the entire history of human civilization thus far.” Despite risks of vast destruction, our governments continue to

 Bakan (2004) argues that “corporate responsibility” is an oxymoron.

3

4  Uses of Feminist Eco-Criticism for Water Policy

93

protect water privatization, while avoiding the depth of response required to ensure a stable climate. In keeping with ecosocialists, critical ecological feminists advocate mass reversals of water privatization agreements, along with economic degrowth, accompanied by organized opposition to neoliberal capitalism and the public austerity that ultimately supports it. Their primary and pivotal contribution to water policy deliberations is demonstrated in their call for collective action based upon a revived consciousness that sees humans as an integral part of the world.

References Adamovich A (2015) WMEAC.org: Ecofeminism: environmental justice with a gender and intersectional lens. https://wmeac.org/ecofeminism-environmental-justice-gender-intersectionallens/2015. Accessed 27 Jan 2019 Adams CJ, Gruen L (eds) (2014) Ecofeminism: feminist intersections with other animals and the earth. Bloomsbury Academic, New York Bakan J (2004) The corporation: the pathological pursuit of profit and power. Free Press, New York Bakker K (2007) The “commons” versus the “commodity”: Alter-globalization, anti-­privatization and the human right to water in the global South. Antipode 39:430–455. https://doi. org/10.1111/j.1467-8330.2007.00534.x Borgstrom G (1981) Impacts on demand for and quality of land and water. Cited in cowspiracy. com. http://www.cowspiracy.com/facts. Accessed 8 Feb 2019 Carlassare E (2010) Socialist and cultural ecofeminism: allies in resistance. Ethics Environ 5(1):89–106 Chow L (2018) U.S. allows Nestlé to keep piping water from drought-ridden Southern California. Ecowatch, 28 June Corbey R (2013) Race and species in the post–World War II United Nations discourse on human rights. In: Corbey R, Lanjouw A (eds) The politics of species: reshaping our relationships with other animals. Cambridge University Press, New York, pp 67–76 Corman, L (2014) Capitalism, veganism and the animal industrial complex. Rabble.ca. April 21 Dawson A (2016) Extinction: a radical history. OR Books, New York Deckha M (2012) Toward a postcolonial, post humanist feminist theory: centralizing race and culture in feminist work on nonhuman animals. Hypatia 27(3):527–545 Fudge E (2002) Animal. Reaktion Books, London Futurism.com (2015) How much is one billion? (infographic). Futurism, March 5. https://futurism. com/how-much-is-one-billion-infographic. Accessed 15 Feb 2020 Gaard G (2001) Women, water and energy: an ecofeminist approach. Organ Environ 14(2):157–172 Gaard G (2011) Ecofeminism revisited: rejecting essentialism and re-placing species in a material feminist environmentalism. Fem Form 23(2):26–53 Gaard G, Gruen L (1993) Ecofeminism: toward global justice and planetary health. Soc Nat 2:1–35 Hoekstra AY (2012) The hidden water resource use behind meat and dairy. Hoekstra 2:2. https:// waterfootprint.org/media/downloads/Hoekstra-2012-Water-Meat-Dairy_2.pdf. Accessed 19 Mar 2019 Jameson F (1994) The seeds of time. Columbia University Press, New York Klein N (2014) This changes everything: capitalism vs. the climate. Knopf, Toronto Latour B (2016) On a possible triangulation of some present political positions. Eurozine, August 18. https://www.eurozine.com/on-a-possible-triangulation-of-some-present-political-positions. Accessed 19 Mar 2020 Lee RB (1979) The !Kung san: men, women and work in a foraging society. Cambridge University Press, New York

94

A. L. Bickford

Malm A (2016) Revolution in a warming world: lessons from the Russian to the Syrian revolutions. In: Panitch L, Albo G (eds) Socialist register 2017: rethinking revolution. Merlin Press, London. https://socialistregister.com/index.php/srv/article/view/27131. Accessed 2 Apr 2020 Malm A (2018) The progress of this storm. Verso, New York Martindale D (2018) Nature defends itself. Boston Review, July 9. http://bostonreview.net/sciencenature/dayton-martindale-nature-defends-itself. Accessed 19 Jan 2020 Merchant C (1980) The death of nature: women, ecology and the scientific revolution. HarperCollins, San Francisco Mies M, Shiva V (1993) Ecofeminism. Fernwood, Halifax Moore JW (2015) Putting nature to work: Anthropocene, Capitalocene, and the challenge of world-­ ecology. In: Wee C, Schönenbach J, Arndt O (eds) Supramarkt: a micro-toolkit for disobedient consumers, or how to frack the fatal forces of the Capitalocene. Irene Books, Gothenburg, pp 69–117 Moore J (2016) The rise of cheap nature. In: Moore J (ed) Anthropocene or Capitalocene? Nature, history, and the crisis of capitalism. PM Press, Oakland, pp 78–115 Neuman S (2018) Nestlé offered permit to continue taking water from California watershed. NPR, June 28. https://www.npr.org/2018/06/28/624156334/nestl-offered-permit-to-continue-takingwater-from-california-stream. Accessed 24 Jan 2020 Patel R, Moore J (2017) A history of the world in seven cheap things: a guide to capitalism, nature, and the future of the planet. University of California Press, Oakland Plumwood V (1993) Feminism and the mastery of nature. Routledge, London Postel S (1997) Last oasis: facing water scarcity. W.W. Norton, New York Proyect L (n.d.) Cattle and capitalism. http://www.columbia.edu/~lnp3/mydocs/ecology/cattle. htm. Accessed 18 Jan 2020 Public Citizen (n.d.) Top 10 reasons to oppose water privatization. https://www.citizen.org/wpcontent/uploads/Top_10_PDF.pdf. Accessed 9 Feb 2020 Salleh A (1995) Nature, woman, labor, capital: living the deepest contradiction. Capital Nat Social 6(1):21–39 Salleh A (2017) Ecofeminism as politics: nature, Marx and the postmodern. Zed Books, New York Serageldin I (n.d.) Global water partnerships. http://www.serageldin.org/water.htm. Accessed 18 Jan 2020 Shiva V (2016) Water wars: privatization, pollution and profit. North Atlantic Books, Berkeley Sperling S (1991) Baboons with briefcases: feminism, functionalism, and sociobiology in the evolution of primate gender. Signs J Women Cult Soc 17(1):1–27 Sussman RW (1999) The myth of man the hunter, man the killer and the evolution of human morality. Zygon J Relig Sci 34(3):453–471 The Economist [UK], Running dry. 21 August 2008. https://www.economist.com/business/2008/08/21/running-dry. Accessed 30 Mar 2019 UN General Assembly (2009–2010) Summary record of the 64th session. https://digitallibrary. un.org/record/687002. Accessed 27 Mar 2020 United Nations Department of Economic and Social Affairs. Water for life decade. http://www. un.org/waterforlifedecade/human_right_to_water.shtml. Accessed 11 Feb 2020 Weis T (2013) The ecological hoofprint: the global burden of industrial livestock. Zed Books, New York

Chapter 5

Water, Stakeholder Values, and Decision Making Bruce Morito

Abstract  Water management is in a peculiar position among the various resource management regimes. Besides air quality management, perhaps, no other arena of resource management involves a substance so fundamental to human life that it can be said that, without it, there would be no human life. This paper is an attempt to draw out the significance of this aspect of water for water management as it attempts to address the multiple and often conflicting water-related values that bear on managers and policymakers. Where managers employ an ethic, either explicitly or implicitly, in their deliberations and decisions, they can, as a consequence, create conflict. The ethical perspective that best avoids the generating of conflict and enables the integration of multiple values I call an ethic of attunement, an ethic that places listening and understanding ahead of justification and prescription. Keywords  Water management · Ethics · Stakeholder values · Conflict · Moral failure · Attunement

This paper is an attempt to address the ethics of water resource management and decision making, with an eye toward the multiple and complex conditions and motivations that drive stakeholder conflicts. I have argued elsewhere (Morito 2002, 2010) that if matters of motivation and associated assumptions about how the world actually works are not adequately addressed, prescribed ethical solutions are not only likely to fail but are likely to exacerbate conflicts. The approach adopted here, in contrast, is descriptive and analytic. I hope to show how an ethic can arise when this approach is appropriately structured, and in a way that is not so vulnerable to reversal. The idea is to begin with an empirical investigation into what matters (what is of value) to stakeholders, observe how priorities are established, and then discuss how moral commitments arise from the prioritizing of values.

B. Morito (*) Athabasca University, Athabasca, AB, Canada e-mail: [email protected] © Springer Nature Switzerland AG 2021 I. L. Stefanovic, Z. Adeel (eds.), Ethical Water Stewardship, Water Security in a New World, https://doi.org/10.1007/978-3-030-49540-4_5

95

96

B. Morito

5.1  Background In 2016, Donald Trump was elected president of the United States, largely on the promise that he would right the wrongs committed against Americans by past administrations1 – wrongs attributed to liberal immigration policies (especially for Muslims), lax management of the manufacturing sector, and environmental protection policies.2 At the time of this writing, Trump has stayed the course and continues to retain a great deal of support. Moreover, since his election, a global shift toward conservatism appears to have occurred, a shift characterized by resistance to immigration and to climate change mitigation. These shifts speak to a growing anger and resentment toward progressives and their normative principles. An extremely divided United States has emerged over the last few years. Past measures designed to produce a more equitable, stable, and safe living situation for all have arguably contributed to the production of the opposite outcome. When the world appears so combative, committing to developing mutual understanding is admittedly to go against the tide. There is a growing need for rational communication, rather than a positioning among opposing positions. Demonstrating the viability of this approach, values analysis was a desired outcome that research assistant Sara Bagg and I employed in a stakeholder consultation process that formed part of a research project on climate change–induced stakeholder vulnerability. Describing this process illustrates how an initially nonprescriptive, communicative approach to ethics can be structured and, in the process, produce normative commitments. The research focused on the 2001–2002 drought in southern Alberta/ Saskatchewan. These provinces have had to attend to growing demands on water resources and to the resulting conflicts. Most responses to these demands so far have taken the form of regulation, determining how much water can be used by different rights holders and under what conditions. Such responses, however, have been falling short because of their too narrow purview and, consequently, a perceived failure to protect certain sectors of society, such as Indigenous stakeholders (those who hold water to be sacred) and other-than-human water stakeholders. Challenges to water management are exacerbated by growing impacts of climate change. Where scarcity (drought) has often been a focus, the severity and variability of extreme weather events (flooding and violent storms) have emerged as equally important. Where allocation rights and regulation of extraction were once deemed adequate, climate change is demanding that more attention be paid to disaster response and adaptation to different kinds of stressors, such as pests and hail. Although the predicted increase in drought scenarios is placing pressure on agricultural systems to switch, for instance, from dry-land wheat farming to irrigation cash crop farming, disasters in the form of flooding and violent storms have been forcing  For a summary account of Trump’s promises during the campaign, see Qiu (2016).  See his positions on climate change and the use of fossil fuels as summarized by Yale Environment (2016). 1 2

5  Water, Stakeholder Values, and Decision Making

97

managers to examine a wider range of physical impacts as well as social, economic, and even psychological impacts, since the kinds of impacts (such as large-scale fires varying with flooding) are now being seen as making stakeholders vulnerable in more and varied respects. Unpredictability and uncertainty are being drawn to the center of management concerns. This, in turn, is making problems of weighting the appropriateness and worth of various adaptive measures that much more difficult. More occasions for confusion and conflict subsequently arise. To further exacerbate management problems, climate change is giving impetus to the inversion/reversal phenomenon. As calls to mitigate climate change become ever more emphatic, so too are modes of resistance. Not only have deniers made their voices abundantly clear, but others want us to reverse how we value climate change. Take Patrick Moore, a founder of Greenpeace, as an extreme example (Moore 2015). He is now advocating for CO2 increases as a way to save the planet, to return greenhouse gas levels to those of a time when far more life was present on Earth. He has expressed disgust at the “doom and gloom” sector (the “green media nexus”) and fears an “intellectual Gulag with Greenpeace as my prison guards” (Moore 2015). Such emotion-based analysis constitutes a reaction against moral prescriptivism. Although Moore’s resistance does not merge well with the Trump-­ style deniers of climate change, it does take the same form of reversal. It is aimed at reversing the direction of moral prescriptivism.3 As an ethicist, my contribution to the south Alberta/Saskatchewan research was guided in part by an awareness of how prescriptive responses to harms can set reversals and inversions in motion. Our aim was to identify and analyze the various water-related values of stakeholder communities, with insights taken from parallel research carried out in Chile’s Elqui River Basin, to identify stakeholder values pertinent to water management. The approach, designed to reduce the likelihood of inversion and reversal, was to give voice to stakeholders as comprehensively as possible. We conducted interviews and participated in data-gathering focus group workshops, preparing ahead of time by familiarizing ourselves with data gathered by others on the Institutional Adaptations to Climate Change (IACC) research team (SSHRC n.d.). Interviews were open-ended, giving respondents opportunities to elaborate on or change their initial responses and to discuss related matters as they wished. Respondents were asked how they adapted to water-related stressors and why they chose those responses. Our task was to interpret what mattered to stakeholders and identify the values that grounded their responses. We attempted to identify what mattered to stakeholders by asking for clarifications and explanations, sometimes offering alternative descriptions of responses, which stakeholders would confirm, correct, or deny. Initially, stakeholders described what mattered to them in straightforward ways. When respondents talked about 3  This is not to say that prescriptive approaches are never to be preferred. Murder and child abuse seem to be rather obvious cases where condemnation is appropriate, where the condemnation does not threaten basic motivations. They may threaten perversions of basic motivations, as in cases where a murderer is the product of childhood trauma, or child abuse is the consequence of oneself being abused as a child, for example.

98

B. Morito

their use of various technologies, such as irrigation networks (dams, pipelines), trucking water, local water catchment systems, and other water conservation techniques (such as alternate watering days), we characterized these responses as “technological innovation,” “financial support,” “economic stability,” and similar. Following these initial responses, when many stakeholders described their resistance to external interventions or interference (such as by governments), we used “self-reliance” or “autonomy” to characterize the responses. When pride in being able to adapt under their own initiative was expressed, and efforts to protect their local school or church from closing were mentioned, we identified categories such as “community” or “family.” All characterizations were open to challenge and refinement in light of new information and reflection. But the main purpose of these fora was to amass as many responses as stakeholders wished to provide. By preparing interviewers with historical, economic, and geographical background, we were able to frame processes in ways that enabled stakeholders to see immediately the relevance of the process. For example, knowing that the southern Alberta irrigation districts were governed according to a “first in time, first in right” (FITFIR) principle directed us to ask about how that principle affected adaptations. Further, some of our student field researchers relocated to some of the communities prior to “official” meetings to become familiar with those communities, to identify key stakeholders, and to allow the communities to become familiar with the research team and its purpose. This practice helped not only to frame the terms of reference according to which we interpreted stakeholder responses, but to provide confidence in the relevance of the approach we were taking. We also welcomed those occasions where respondents did not always adhere to our expectations, instead taking opportunities to reflect on seemingly unrelated matters (such as the loss of the family farm culture). We treated these apparent departures from the formal research theme as indications of an implicit web of operating values. Key findings revealed that, except for the Blood tribe (Kainai), when asked about how they adapted to the drought of 2001–02, respondents identified technological and financial instruments as primary adaptive measures. They eventually began talking about how they worked with neighbors, cultivating one farmer’s land while leaving another’s fallow and then sharing whatever profits (or losses) accrued. Sometimes respondents (particularly government resource managers, whom we included as stakeholders) reported visiting farmers and ranchers to suggest that meetings be held to discuss the community’s adaptive strategy. Some managers were from the area; they emphasized how friendships and kinship were crucial for bringing stakeholders together to plan. They used these relationships first to gain an audience (such as getting invited for coffee) and then to persuade people to gather for community meetings. These and other types of responses (such as references to mistrust of government, cooperation with neighbors and others) disclosed how senses of community operated.4

 More of this process is described in Corkal et al. (2016: 251–278).

4

5  Water, Stakeholder Values, and Decision Making

99

The open-ended approach seemed to free respondents to talk about these kinds of factors, since matters concerning family, local schools, relations with neighbors, and similar were mentioned after describing more technological and financial measures. In the case of the Blood tribe (or Kainai), as our researcher, Lorenzo Magzul (2009), discovered, our initial questions might not have led to the most important disclosures had it not been for the open-endedness of the process. Many respondents said we could not properly understand their lack of adaptive capacity because their problem was flooding, not drought. Since our focus was on drought, we might have left it there. But the open-ended nature of the interviews enabled respondents and Magzul to follow a different line of inquiry. He was told that we would have to understand the impact of residential schools and the government’s assimilation programs on the community if we were to understand why they lacked an adaptive capacity to stressors. The undermining of traditional forms of governance, family, and social structure had resulted in First Nations’ inability to count on friendships, kinships, and the broader community. The relationship between water stressors and the values related to governance, community, and identity is perhaps most clearly illustrated, albeit negatively, in these Kainai responses. The impact of not having robust cultural, communal, and familial relations to draw on as resources, indicated by these stakeholders’ anger and despondency, helped us identify the implicit importance to water security of social structure and capital, spiritual sense of well-­ being, and confidence in one’s identity. Kainai responses helped us refine the descriptions of how various values and types of values operated (such as functionally or dysfunctionally). For instance, we could more clearly see how certain social, cultural, and political conditions either enabled people to act on their avowed values or denied them this possibility. The conditions to which the Kainai were subjected frustrated their ability to act on avowed values, which led to anger, despondency, and conflict (especially internal), in particular when those values were ignored or denigrated.

5.2  Values Analysis Identifying what matters to stakeholders constitutes the first stage of a values analysis. Values analysis, as I conceive it here,5 is a stage-like process involving identification, categorization, and evaluation. During the first stage, data about what matters 5  A brief explanation of the language I have been using is in order. The way I understand values does not exactly fit the language I am using. In Morito 2002, 2003, I attempt to develop a value theoretical framework that departs from that of the dominant tradition. In brief, I hold that there are in fact no such things as values, but that value claims or value ascriptions represent activities of valuers. The more primitive formulation is “p values v,” not “p has value v.” The use of the noun form in the latter formulation is typical of the dominant tradition. The verb form is more characteristic of Eastern and Indigenous traditions and is reflected in process metaphysics. Without going into detail, suffice it to say that axiologies more compatible with Eastern and Indigenous cultures take the noun form to be derivative. In the Western tradition, Heraclitus, A.N.  Whitehead, and

100

B. Morito

to stakeholders is amassed and characterized in terms of the values they express. Since respondents usually want to explain and justify their actions and claims, this stage can also begin to disclose underlying beliefs, worldviews, and enabling conditions. As respondents begin to shift from simply describing their actions to explaining their actions, they begin to narrow the ways in which they articulate what matters to them as they strive to ensure that others understand the reasons for their actions. This shift involves elements of the second stage, where the relation between values is formulated, as, for example, when explanations indicate how morally sound financial instruments are related to the importance of saving schools. Again, responses by Kainai members illustrate how justifications and explanations aim at generating mutual understanding and begin narrowing modes of articulation. For Kainai respondents, their perceived inability to rely upon the same kinds of enabling conditions as other communities was related fairly directly to their inability to draw on shared values (such as friendship and family), given the destruction of cultural, political, and other supporting conditions. Identifying residential school and assimilation forces as destructive of these conditions enabled respondents and researchers to see how adaptive capacity was dependent on an array of often hidden factors. It also revealed how shared values could be enabling when connected to belief systems (such as about the way the world works, the Creator) and ways of knowing/teaching (epistemologies/pedagogies). Their perception was that the system in which they had to operate did not recognize those systems. Power to choose (autonomy), communicate, and act could likewise be affected. In the transition from description to explanation/justification, stakeholder values get sorted and ordered into types (such as financial, community), both explicit (avowed) and implicit (underlying and supportive). Categorization becomes more explicit during the second stage. For example, when farming stakeholders talked about how water shortages made farming unstable and, as a result, made the community unstable, they connected political values (expressed as demands that the government lobby for fair market conditions) to declining community population. This in turn was connected to concerns about schools and churches closing and the disappearance of the family farm. They described how instability resulted from the assimilation of family farms into large corporate farms, and how this in turn resulted in a disappearing way of life. Technological, financial, and political values could, as a result, be identified as means to protect family and lifestyle values. Some values could then be categorized as means to satisfying other values (underlying ends). Sorting values into types, such as avowed but suppressed versus avowed and supported, ends and means, suggests that some values can be categorized as first order, while others are of a second order, where second-order values are the reasons for David Bohm are key proponents of the verb orientation; they understand the world to be a flux or process, not a collection of static and independently existing parts. To make the analysis of values completely consistent with my theoretical commitments would require far more conceptual and terminological development than can be tolerated here. So, for present purposes, the noun orientation I adopt should be treated more as a convenient way to represent the act of valuing or valuational activity, rather than value essences.

5  Water, Stakeholder Values, and Decision Making

101

adopting first-order values. Technological and financial values can be categorized, for the most part, as first order, whereas identity and community values can be categorized as second order. This categorization process clarifies the hierarchical order according to which different values operate. Some second-order values can be categorized as normatively relevant where, for example, community values are seen as ends that oblige stakeholders to act protectively and cooperatively. Or, by appealing to family and friendship values to gain audience, managers could use second-order values of obligation and responsibility. As normative elements are identified, a third stage begins: evaluation. As means– ends relationships are articulated, some of those relationships acquire obvious normative import when connected to expectations that members have of one another. Once hierarchy is recognized, the process becomes more explicitly evaluative by bringing into relief how various instruments and actions actually did or did not help satisfy second-order values. For instance, references to government practices and policy seemed to evoke criticisms of programs or regulations that had been imposed on communities. Some described this situation as “Someone sits at their computer and makes a decision for us from far away [such as Red Deer], without having been here or knowing anything about the community” (paraphrased). We noted how certain categorizations (such as governance values) were closely connected to attitudes of resistance, cooperativeness, violation, and the like. Sometimes this led respondents, especially in the farming communities, to say of governments that they should get out of their way and stop interfering with local activity. This valuing of autonomy and feeling of being violated generated resistance, as in the BSE (bovine spongiform encephalopathy) or mad cow disease incident. Rather than reporting infected cows, as government policy required, certain stakeholders adopted a more informal policy of “shoot, shovel and shut up.” The open-endedness and prior preparation of the research team helped generate a more comprehensive and complex understanding of the community’s resistance. Communities, especially those with a history of working with government agents under the federal program known as Prairie Farm Rehabilitation Administration (PFRA), often described the PFRA in favorable terms. They explained their support of PFRA as a response to the fact that its agents lived in the community, sent their children to their schools, and attended their churches. Hence, resistance to government policy and intervention was conditional on the way governments behaved. Stakeholders tended to agree that government policy and practices could be supportive of their autonomy when the government’s agents were appropriately communicative and connected to the community. Government interventions could, then, be assigned positive value when appropriate conditions were satisfied. When respondents explained how the PFRA differed from other government agencies, they were describing enabling/disabling conditions of government–community relations, in the same sense as Kainai respondents were. In telling their stories and giving explanations, respondents were providing accounts of how the complex of values and underlying conditions worked. Although their accounts could be somewhat plastic (shifting to some extent with new disclosures and

102

B. Morito

contributions by others), they helped us piece together how community, autonomy, innovation, and other values were related. This process of identifying underlying conditions and relationships among values enabled fine-tuning of value profiles and explanations of what mattered and how it mattered. Wes Cragg (1997) has used “core” versus “peripheral” as a categorial scheme that roughly corresponds to the ends-versus-means distinction. It is particularly useful at the evaluation stage, because “core” is more expressive of importance, whereas “end” is more neutral, and because it more clearly helps articulate how normative force emerges in the process of value analysis. In an attempt to address conflicts over natural resource management, Cragg used what he called “values mapping” (from which I derive my values analysis) to chart stakeholder values in an attempt to enable all stakeholders to express what mattered to them and to understand one another’s values. He used the category of peripheral values to indicate how some values are typically more amenable to negotiation than are core values. He found “negotiable” and “non-negotiable” to be of further aid in sorting values. This four-­ way distinction can be placed in a simple table, with the core versus non-core categories in the rows and the non-negotiable versus negotiable in the columns. The matrix allows for expansion and greater complexity if, for instance, the difference between core and peripheral can be represented better on a continuum. Even in its simple form, however, stakeholders and researchers were able to use the matrix to see how their own values were related to others’ values and then to begin distinguishing between what values could and could not be compromised. By structuring value relationships in this way, levels of commitment can be more precisely identified, analyzed, and communicated. Value relations can then be structured in a somewhat systematic way, rather than represented merely as a collection or even perhaps as a clash of values. When conflicts between avowed ends (such as autonomy, profit, community solidarity, security, fairness, religious and cultural recognition) occurs, and conflicts are identified in terms of the values at stake, conflicts based on confusions – one party arguing that a sacred mountain must be preserved versus another party arguing that the economic benefits of exploiting it for its minerals outweighs other considerations – can be identified in terms of the core and peripheral values at stake. In the course of identifying the level (order) at which values operate, sacredness can be categorized as non-negotiable and core (identity), while the economic values can be categorized as negotiable and peripheral. This is not to say that the core values automatically take precedence over the peripheral, but the categorization does disclose how second-­order values are different from first-order values and are to be evaluated against different metrics. Values analysis treats the incommensurability between types and orders of value explicitly, revealing the fact that certain values operate at levels that require different typology and analysis than values operating at other levels. Where a costbenefit analysis, for instance, might be appropriate when evaluating the relative value of alternative irrigation technologies, it may not be appropriate when evaluating core, second-order, in relation to peripheral, negotiable values. Expecting parents to adopt a cost-benefit analysis when approached by a slave trader who is

5  Water, Stakeholder Values, and Decision Making

103

prepared to offer fair market compensation in exchange for their child is completely out of line with how we value our children. Similarly, it can become clear how valuing the sacredness of a mountain by assigning a monetary value to it can be seen as a sacrilege when the incommensurability between the two modes of valuing is identified. Since affront, insult, or the senses of violation are not measured according to the same metric as are commodities, formalizing the distinction analytically in accordance with a categorial scheme can help stakeholder consultations avoid the use of inappropriate frames of reference in their attempts to reach mutual understanding. By bringing the incommensurability of different levels and kinds of values into relief, we can better understand what has to be managed and how it is to be managed. In calling for a direct approach to addressing the multiplicity, incommensurability, and associated complexity of values, values analysis can help avoid various kinds of resistance and backlash. A negative case scenario can perhaps best indicate why complexity must be addressed directly – and not just because it helps avoid resistance. Environmental impact assessments (EIAs) are designed to help safeguard the public against negative environmental impacts resulting from resource development projects. All relevant information is to be disclosed during the assessment to produce a comprehensive understanding of benefits, potential harms, and risks. Until relatively recently, certain kinds of impacts of large-scale developments were not considered in the EIA process. These included social, cultural, and psychological impacts, mostly because they fell outside the parameters of the assessment framework. Gradually, the EIA process has come to include social, cultural, and other sorts of impacts, as assessors have come to accept that, without including them, assessment is incomplete.6 One EIA in particular illustrates how attempts at including social impact assessments can fall short in ways relevant to values analysis. Comparing the physical impact assessment against the social impact assessment in EIA reports of the deep geological repository (DGR) project on the Bruce Peninsula in Ontario, Canada (Golder Associates 2011), shows how an indirect approach in a socio-economic environmental assessment (Golder Associates 2011: Vol. 1, viii) can be misconceived and misleading. The EIS Guidelines include a requirement that the assessment be undertaken in consultation with potentially affected stakeholders, including the local public. … The purpose of the program was to identify stakeholder issues, to identify communication/consultation needs and concerns, to inform stakeholders, to provide opportunities for input from stakeholders, and to document the consultation process and results. … Stakeholders were identified using a systematic process. Various methods were then used in the consultation process to inform and obtain input from the stakeholders. These included: newsletters, notification letters, stakeholder briefings/interviews, Open Houses, committee meetings, workshops, library 6  See, for example, Mackenzie Valley Environmental Impact Review Board Report of Environmental Assessment and Reasons for Decision On Ur Energy Inc.: Screech Lake Uranium Exploration Project (EA 0607-003), 2007; Jackpine Mine Expansion Project Joint Review Panel: Shell Canada Energy Application to Amend Approval 9756, Jackpine Mine Expansion Project, Fort McMurray Area, 2013 ABAER 011, AER Application No. 1554388, CEAA Reference No. 59540.

104

B. Morito

repositories, a telephone contact number and email address. The results of the consultation process are documented and key issues raised by the stakeholders were considered in the assessment. (Golder Associates 2011: Vol. 1, ix)

The proponent, Ontario Power Generation (OPG), also committed to working with First Nations, taking traditional knowledge, values, and epistemological systems into account. What they took into account were the people’s expressed interests in the project and insights based on traditional knowledge (Golder Associates 2011: 1-1–1-20). What counts as the socioeconomic component is said to represent “population, economic base, municipal services and finance, residents and communities, land use, transportation networks and elements, landscape and visual setting and Euro-Canadian cultural heritage resources” (Golder Associates 2011: Vol. 1, viii). Informing the public and First Nations, then gauging the level of subsequent support, constituted the socioeconomic component. The procedures were based on first disseminating information about nuclear power and waste management and then using various methods to gather feedback on those dissemination efforts. One problem with the procedure is that it does not engage the same degree of rigor in analysis as the physical impact assessment, since the data collected is a set of opinions and impressions of various stakeholders. A social impact assessment needs to identify and analyze both explicit opinions (representative of stakeholder values) and the underlying and implicit conditions, which can show those opinions to be either well supported, poorly supported, or merely whimsical. OPG’s approach is indirect and can be seriously misrepresentative, substituting public opinion for systematic sociological and psychological investigation. Further, as noted in the value analysis process, opinions and impressions can be open to revision upon gaining new information and reflection. None of this kind of analysis and revision was engaged in the EIA to correct for omissions and errors in explanation. Since social impacts involve implicit and hidden factors (worldviews, epistemologies, cultural expectations, and similar), OPG’s simplified attempt at collecting and disseminating information, opinions, and impressions fails as a social impact assessment.

5.2.1  Sidestepping the Problem In defense of the EIA procedure, seeking to simplify the analysis of complex value systems is not new. In the early 1800s, Jeremy Bentham’s frustration with British legal and political systems was over the fact that judges and legislators enjoyed considerable individual power of opinion, allowing for capricious and arbitrary decision making. This led him to defend a single-metric approach to address such problems. Utilitarianism, in general, can be seen as a response to this problem of arbitrariness, making decision-making processes more universalizing (what most people would agree to most of the time). The use of substitutive simplifying instruments, such as cost-benefit analysis and single-value metrics, can seem rational and preferable in light of the difficulties faced when dealing with multiple values and differing levels of analysis and complexity.

5  Water, Stakeholder Values, and Decision Making

105

However, the problems with avoiding complexity have proven too serious to bypass. Moreover, values analysis may not perform as clearly and efficiently in overcoming arbitrariness and generating a sense of universality and legitimacy, but it may perform more effectively. Values analysis emphasizes stakeholder responsibility as much as rights. Although values analysis is predicated on stakeholder rights to holding their own opinions, the procedure also defines stakeholders as agents responsible for understanding the accounts that others give of their views and, therefore, of reaching mutual understanding (even if this is not the same as complete agreement). However capricious and idiosyncratic their initial positions might be, the need to make their positions cognizant to others also gradually deindividualizes the way they articulate their positions. Categorization procedures shape the way in which stakeholders make their claims, as interlocutors seek and negotiate terms of reference to make their positions mutually cognizant, intelligible, and amenable to justificatory procedures. And as values are sorted into core and peripheral, non-­negotiable and negotiable, the process acquires structure. It thereby facilitates the establishment of an ordered common ground to which interlocutors eventually commit, because together, they generate that common ground. A logic is at work here in the analysis of means/ends, core/peripheral, and non-­ negotiable/negotiable categories, and can be illustrated in cases where stakeholders claim that their religious values are core values. Stakeholders can and often do assert that their religious values are non-negotiable because they are perceived as core. But the categorization process reveals that they in fact serve to satisfy more universal second-order values; identity, meaningfulness, sense of purpose, social cohesion, belonging. People hold to religious beliefs because such beliefs give them purpose, identity, and a sense of meaning. Such purpose values are held in common across many, if not all, religions, not to mention cultures, genders, and political persuasions. When stakeholders participate in consultation fora to influence decisions (excepting those of extremist conviction), they situate themselves in a context that compels them as interlocutors to convince others of the legitimacy, or at least reasonableness, of their positions. Typically, this takes the form of demonstrating how their positions are more in line with a common metric than those of their interlocutors. It is especially revealing when people appeal to ideas and principles of their interlocutors to show how their positions are superior, even from their interlocutor’s own perspective. To be an interlocutor, then, is to assume a potential for communicating and convincing others, based on some ability to appeal to second-order values and principles. In the value analytic process, the second-order common ground is constructed by the interlocutors themselves, making it a product of their own autonomous activity. In so producing a common ground, they have fewer reasons to resist good arguments presented by others, and fewer reasons to define their interactions as conflictual ahead of time. Thus, unless they are extremists or irrationally entrenched in their views, stakeholders implicitly and systematically recognize common (more universal) second-order values, criteria of legitimacy, and, indeed, the value of tolerance for others’ first-order values.

106

B. Morito

5.3  Competence The Kainai case illustrates how a decision-making system that is focused on competence over justification can also be more effective in producing more universally recognized just outcomes than traditional prescriptive approaches, especially in complex situations. Kainai responses are in many ways typical of other Indigenous communities in having their culture, epistemologies, and worldviews – and, in turn, their adaptive capacities – undermined. Historically, in the eyes of past governments and some churches, these policies and practices were justified (under the Indian Act) and conceived as acts of benevolence. However justified under Canadian law and the dominant culture’s moral compass, the results today are recognized as unjust. Despite the justificatory procedure to legitimate the policies and practices, justification was based on many questionable assumptions (such as the belief that “Indians” needed to be civilized) that demonstrated how unattuned historical decision makers have been. History could have been written very differently had decision makers sought to understand Indigenous people and their history. Admittedly, citing the Blood tribe case invites a rejoinder. An ethic aimed at legitimation might be possible where decision makers and the communities they govern are culturally homogeneous, but mutual understanding across diverse cultures (with different worldviews and epistemologies) is more difficult to achieve (see e.g. Clammer et al. 2004); hence, expectations that a common ground will arise to guide the decision-making process in mutually acceptable ways may be futile. The assimilation of Indigenous peoples into the dominant society was justified as necessary to establish a workable system of governance. Examining the First Nations/Crown historical relation, however, shows that the rejoinder fails. Just as familiarizing ourselves with the history of the Canadian prairies in preparation for field research enabled the IACC researchers to ask informed questions and avoid making wrong or misleading assumptions, so too could decision-making bodies have spent time developing a more informed understanding of Indigenous peoples. The records of Indian Affairs archived in government institutions (such as Library and Archives Canada) are replete with information on the historical relationship that go as far back as the mid-1600s. In these records, we read how key agents of the English/British crown understood how a lack of attunement to Indigenous worldviews and non-negotiable values (such as freedom and autonomy) made treaty negotiations illegitimate (see Morito 2012: ch. 3). This case demonstrates how those who deny that we have the ability to reach mutual understanding across cultural barriers are often mistaken. Canadian history (US and British included) illustrates how a system of cross-cultural legitimation (the wampum-based treaty relationship) is possible when interlocutors are committed to attuning themselves to one another and to becoming competent in establishing mutual understanding. The story (and lessons to be learned) is longer than can be told here.7 We can, however, conclude that an ethic of attunement can be effective  I attempt to provide it in Morito 2012.

7

5  Water, Stakeholder Values, and Decision Making

107

in generating an operative sense of legitimacy in cases of cross-cultural dialogue around values.

5.3.1  Implications for Water Management While some fairly straightforward implications for water management can be drawn, a further observation is in order, since water is a special case of natural resource management.8 To be attuned to underlying conditions draws attention to the fact that people are constituted primarily of water (50–86%, depending on the individual), an ontologically significant fact. Water is constitutive of human life (if not all life), not merely a means by which we live. It is not only of instrumental value (for hydration, as a solvent), but it bears on core values in a special way. It is not core merely in the sense that it is a basis for evaluating peripheral values, but in the sense that without it, valuers would not exist. Our history (especially of Western European–dominated cultures) of identifying water merely as a resource  – in Lockean terms, that which acquires value because we confer value onto it – occludes this fact. Such an approach obstructs the task of understanding the conditions that enable human individuals and moral communities to exist and thrive. In light of the historically dominant focus on water as a resource and nature being value neutral, the need to examine the assumptions and the analytic competencies on which water management decisions have been based has become all the more vital. Managerial decisions may be operating on the basis of false assumptions of a fundamental order. Decision-making leadership needs, then, to ensure that stakeholder processes do not ignore the possibility that an examination of basic assumptions may be required to develop appropriate adaptive measures competently. How might decision making shift toward recognizing the ontological status of water? Alberta’s Water for Life strategy (Government of Alberta 2020) offers an example, modest as it might be. Owing to the context in which it is situated, a politically conservative and resource exploitive society, it is an example worth noting. “Water is not only a resource, it is a life source.” This sentence opens the Water for Life strategy web page. As skeptical as one may be about how operational such statements are, it does suggest that the Government of Alberta is open to questioning some of its assumptions that have grounded former policies and practices. In Alberta, the main historical concern has been distribution. The new strategy takes safety and security of water quality, as well as the health of aquatic ecosystems, to be major concerns (Government of Alberta 2003: 7). Over time, as indicated by the three iterations of the strategy, a need for deeper shifts in how we think about distribution has been recognized. In the initial 2003 document, the FITFIR principle was held as almost sacrosanct. “Alberta must preserve the ‘first-in-time, first-in-right’

8  Here I adopt a quasi-Habermasian discourse ethics framework, more fully articulated in chapter 4 of Morito 2012. The Habermas material is taken from Habermas 1984.

108

B. Morito

principle for granting and administering water allocations, but water allocations will be transferable to ensure societal demands and needs can be met” (Government of Alberta 2003: 6). In the 2008 renewal document, the Strategy reads, “Alberta currently recognizes ‘first-in-time, first-in-right’ for existing water allocations, which can be transferable to ensure societal demands and needs can be met” (Government of Alberta 2008: 7). In the 2009 document, key actions are to 3.1 Develop and implement a viable governance system that supports sustainable management of water • Review and renew Alberta’s current water allocation system to meet future needs including the environment and other protected uses ○  Develop and implement an enhanced water rights transfer system that supports sustainable economic development…. (Government of Alberta 2009: 15)

All three documents were produced by Conservative governments. The FITFIR principle has gone from being virtually sacrosanct to one that is heavily qualified in the face of many other pressing concerns, including the ontological value noted earlier. It appears that a constant concern, formulated as “water is a vital requirement and a source of life,” has influenced this shift in emphasis, which is affecting reconceptualizations of management goals and methods. Despite their focus on knowledge (research, information dissemination, education), the later documents also convey an underlying current of dissatisfaction, inchoate perhaps, with the basic goals and principles of historical water management values. The diminishing focus on and commitment to FITFIR reflects a diminishing confidence in the values that have dominated in policy and practice. The result is a gradual recognition of the need to sacrifice the once-clear line of decision making that the FITFIR principle afforded to make room for more comprehensive decision making. FITFIR can settle legal conflicts, but it can no longer competently resolve the moral, social, and political conflicts that have arisen in the province. Competent decision making, in this light, requires more than a clear justificatory scheme. The Water for Life Strategy developed, as a result, into a forum in which multiple stakeholder groups can now provide input to policymakers. Indeed, inviting me to present “Values and Water Resource Management,”9 where I explained the need for a values analysis, is a sign of a growing concern to become more attuned to what matters to the community of stakeholders. Arguably, then, the Water for Life preamble statement is not, and was not intended to be, a mere platitude. Despite how modest the changes in policy statements are, the fact that a government so committed to social and fiscal conservatism began a process that could very well challenge those commitments is indicative of a growing realization that once unquestioned assumptions need to be evaluated against a more comprehensive understanding of our relationship to water.

9  Alberta Environment Inaugural Workshop for the Athabasca River Basin Watershed Planning and Advisory Council, April 15–16, 2008, Best Western Hotel, Sherwood Park, Alberta.

5  Water, Stakeholder Values, and Decision Making

109

5.3.2  Leadership and the Role of Philosophers Resource management, within a value analytic framework, is an exercise in leadership, where decision makers are conceived as stakeholders with a stake in protecting water-related values. To lead in this sense is to ensure that decision-making processes move toward mutual understanding and protection of core values. Since an examination of ontological assumptions is involved, leadership is needed to maintain a constant awareness among stakeholders of the need to deliberate at sufficient depth to ensure that mutual understanding does not rest on false assumptions. The role of the philosopher, from a professional philosopher’s perspective, has likely been obvious from early on, although it may be unpalatable to the professional accustomed to pronouncing on right and wrong. Rather than prescribing what ought to be done, the philosopher’s role is to listen, interpret, and analyze. Philosophers can contribute by helping decision makers lead deliberation processes through to competent analyses and decisions, first by helping to interpret what is at stake and then by analyzing what stakeholders value and why they do so. The primary role of the philosopher here is that of interpreter, whose task is to help draw out the meaning and structure of various stakeholder positions and expressions, to help others listen to one another. Owing to the complexity of the relationship between values, this interpretive role involves sorting values into categories in an attempt to engender mutual understanding. Interpretation can be directed at helping interlocutors communicate at various levels, including those that involve hidden or implicit factors and the worldviews that accompany them. It also, however, involves clarifying lines of justification and explanation, or even standing in to help stakeholders formulate these arguments. Helping to ensure that processes do not ignore ontological considerations may be a particularly important philosophical task. Reconceptualizing water and, consequently, humanity, ethical relations, and community, could turn out to be especially important, as we attempt to avoid past and current pitfalls.

References Clammer J, Poirier S, Schwimmer E (2004) Figured worlds: ontological obstacles in inter-cultural relations. University of Toronto Press, Toronto Corkal DR, Morito B, Rojas A (2016) Values analysis as a decision-support tool to manage vulnerability and adaptation to drought. In: Diaz H, Hurlbert M, Warren J (eds) Vulnerability and adaptation to drought: the Canadian prairies. University of Calgary Press, Calgary, pp 251–278 Cragg W (1997) Values mapping workshop. Eaton Hall Inn, Ontario, October 15–17 Golder Associates Ltd. (2011) OPG’s deep geologic repository for low and intermediate level radioactive waste: environmental impact statement. Joint Review Panel: Deep Geological Repository Project, Canadian Environmental Assessment Agency, Environment Canada, March. Report #00216-REP-07701-00001-R000. Appendices Report #00216-REP-07701-00001 R000. https://iaac-aeic.gc.ca/050/documents_staticpost/17520/49818/vol1.pdf. Accessed 6 Apr 2020 Government of Alberta (2003) Water for life: Alberta’s strategy for sustainability. https://open. alberta.ca/dataset/77189444-7456-47f7-944c-085272b1a79c/resource/17c41dc3-1692-4cf9-

110

B. Morito

b931-2892c57a62b1/download/2003-water-life-albertas-strategy-sustainabilitynovember-2003.pdf. Accessed 5 Apr 2020 Government of Alberta (2008) Water for life: a renewal. https://open.alberta.ca/ dataset/16e373f7-35c6-438c-8028-b9ab7e3e2fee/resource/bd7930bf-da3b-449a-8630ef0b11dde99e/download/waterforlife-renewal-nov2008.pdf. Accessed 5 Apr 2020 Government of Alberta (2009) Water for life: action plan. https://open.alberta.ca/dataset/2a91e8c6ea9a-44c4-a76d-cd35a9a296f7/resource/49531a5a-e16c-4250-a9a4-0028fa500854/ download/2009-waterforlife-actionplan-nov2009.pdf. Accessed 5 Apr 2020 Government of Alberta (2020) Water for life strategy. https://www.alberta.ca/water-for-life-strategy.aspx. Accessed 5 Apr 2020 Habermas J (1984) The theory of communicative action: reason and the rationalization of society, vol 1. Beacon Press, Boston Magzul L (2009) The blood tribe: adapting to climate change. In: Marchildon GP (ed) Dry oasis: institutional adaptations to climate on the Canadian Plains. University of Regina Press, Regina, pp 289–309 Moore P (2015) Greenpeace founder: let’s celebrate CO2. Breitbart, October 15. http://www.breitbart.com/london/2015/10/15/greenpeace-founder-lets-celebrate-co2. Accessed 5 Apr 2020 Morito B (2002) Thinking ecologically: environmental thought, values and policy. Fernwood, Halifax Morito B (2003) Intrinsic value: a modern albatross for the ecological approach. Environ Value 12:317–336 Morito B (2010) Ethics of climate change: adopting an empirical approach to moral concern. Hum Ecol Rev 17(2):106–116 Morito B (2012) An ethic of mutual respect: covenant chain and aboriginal–crown relations. UBC Press, Vancouver Qiu L (2016) Politifact, July 15. https://www.politifact.com/article/2016/jul/15/donald-trumpstop-10-campaign-promises. Accessed 5 Apr 2020 Social Sciences and Humanities Research Council of Canada [SSHRC] (n.d.) Institutional adaptations to climate change project: Canada–Chile case study on adaptation. http://www.parc.ca/ mcri/index.php. Accessed 15 Feb 2020 Yale Environment (2016). https://e360.yale.edu/features/hillary_clinton_donald_trump_on_ energy_and_environment_2016_presidential_election. Accessed 5 Apr 2020

Part II

Place-Based Challenges

It may appear self-evident to say that, inasmuch as we exist, we must exist somewhere. The fact is that to understand human values means we must understand how humans comport themselves in the vagaries of local cultures, languages, and places within which they are situated. Philosopher Edward Casey has remarked how the mediaeval dictum ex nihilo nihil fit (from nothing, nothing can emerge) signifies that there is no creation in the absence of place. “To exist at all … is to have a place – to be implaced” (Casey 1993: 13, 15). Place is, as Casey and others have noted, the condition of the possibility of our engagement with the world. It arises not only in terms of distinct geographies but also plural social, cultural, economic, regulatory, technological, and ecological contexts (Relph 1976; Stefanovic 2000; Mugerauer 1994; Donohoe 2017). This section of the book focuses on how unique ethical concerns around water occur within such distinct local contexts. Advocating in Chap. 6 for “The Ethics of Blue Urbanism,” Timothy Beatley explores how urban dwellers may connect in a morally responsible manner with the water around them. Urban planning issues are inherently environmental issues: not only does the physical design of our cities matter to ecological health and well-being, but how we design our urban places reflects how we care for and value marine nature and advance sustainability within our built environments. In Chap. 7, we move from the urban to the wildness of circumpolar regions, as Andrew S. Medeiros and Alannah Niemeyer delve into some of the “Water Security Challenges in the Canadian Arctic.” Northern communities are especially vulnerable to the impacts of climate change and global warming, where freshwater security ordeals are particularly acute. How Inuit are obliged to function as environmental stewards under these conditions and how Inuit rights themselves are impacted by water security challenges are discussed. The discussion of Inuit culture opens the door to Chap. 8, where geographer Deborah McGregor reflects on “First Nations, Traditional Knowledge, and Water Ethics.” Focusing on the Anishinaabe worldview, McGregor shows how Indigenous rootedness in place invokes responsibilities toward the land and the water in ways

112

II  Place-Based Challenges

that “require action, not just words.” The chapter is an exemplary introduction to Indigenous ways of engaging with water in a deeply ethical, sacred manner. In Chap. 9, Ilmas Futehally moves the discussion internationally, inviting the reader to reflect upon “Water Ethics in the Middle East.” Issues of security in the Middle East have pervaded modern consciousness for decades. The issue of water security deserves attention as arguably one of the highest threats to well-being in the region. Some of the moral challenges of securing water safely and equitably in the Middle East are presented. Finally, building on the theme of disruption to place, James Horncastle considers in Chap. 10 “The Ethics of Water Securitization: Understanding the 1999 Bombing Campaign in Kosovo.” When places are under military threat, often water security becomes a tool to manipulate outcomes. This chapter draws from the case of the NATO bombing campaign in Kosovo and Serbia, describing how both the inadvertent and directed bombing of water treatment and sewage plants contributed to the refugee crisis. At the same time, these events where water was weaponized helped to inspire the Responsibility to Protect (R2P) initiative, a global political commitment to prevent genocide and crimes against humanity. From exploring notions of belonging to place, building places, vulnerability of place, and, finally, to disrupting sense of place, the authors in this section collectively show how water security is more than an abstract notion: it remains deeply embedded in the cultural experiences, landscapes, and environmental settings that define who we are, individually and as a global society.

References Casey E (1993) Getting back into place: toward a renewed understanding of the place-world. Indiana University Press, Bloomington/Indianapolis Donohoe J (ed) (2017) Place and phenomenology. Rowman & Littlefield, London Mugerauer R (1994) Interpretations on behalf of place. State University of New  York Press, New York Relph E (1976) Place and placelessness. Pion, London Stefanovic IL (2000) Safeguarding our common future: rethinking sustainable development. State University of New York Press, New York

Chapter 6

The Ethics of Blue Urbanism Timothy Beatley

Abstract  Blue urbanism represents a compelling new vision (and movement) for how we think about cities and urbanization on the blue planet. It emphasizes a new connection with, and emphasis on, the marine environments and nature within which coastal cities are situated. It advocates for new forms of urban design, parks, and conservation that recognize this profound marine setting. Advancing this vision will require taking on a host of ethical and value dilemmas: this chapter is an initial effort to identify and sort through some of the bigger of these open ethical questions. They include important questions about the moral status of marine nature and the extent of ethical duties that blue cities have both to protect the marine nature and wildness and to invest in programs to connect urbanites to this marine nature. Other important categories of ethical questions include the extent to which there are public rights to the blue; questions about the fairness of risk associated with climate change and sea-level rise, and forms of ethical adaptation; intergenerational and intertemporal ethics; virtue ethics and blue citizenship; and questions about the ethics of the politics and decision-making processes through which blue urbanism emerges, among others. Less a definitive treatise than an exploratory discussion, the chapter is meant to show how ethical quandaries permeate the new vision and agenda of blue urbanism. The author begins as well to identify here some of the elements of an ethical blue urbanism to guide this emerging movement. Keywords  Blue urbanism · Marine nature · Ethics · Ethical and value dilemmas · Moral community · Fair risk · Ethical adaptation · Blue ctizenship

We live on the blue planet – that is now obvious to all – and as the planet continues to urbanize at a rapid pace, it is also the planet of cities. Yet, the blue and the urban are rarely considered together, at least in urban design and planning circles. This has led me to begin to articulate a body of theory and practice that integrates these

T. Beatley (*) University of Virginia, Charlottesville, VA, USA e-mail: [email protected] © Springer Nature Switzerland AG 2021 I. L. Stefanovic, Z. Adeel (eds.), Ethical Water Stewardship, Water Security in a New World, https://doi.org/10.1007/978-3-030-49540-4_6

113

114

T. Beatley

realms under the moniker of blue urbanism. Early products have included a book, Blue Urbanism: Connecting Cities and Oceans (Beatley 2014), and, more recently, a documentary film, Ocean Cities, that has begun airing on selected PBS stations around the US (see also Beatley 2018). The vision of blue urbanism is an inclusive one: it is about the physical design of urban shorelines and urban water landscapes, but also about the need for cities to connect emotionally and to actively care about the marine world. It is about changing perceptions of nature, recognizing the remarkable marine biodiversity near to cities but also the need (and indeed the ethical obligation) to take the lead in protecting and conserving marine nature. It is also a call for rethinking the ecological and other impacts associated with cities and urban life and shifting urban consumption (such as the consumption of seafood) in more sustainable directions. Given the breadth and diversity of the policy and planning dimensions to an agenda of blue urbanism, it is not surprising that many ethical issues and quandaries have emerged or will emerge. Climate change and the effects of sea-level rise especially will exacerbate and amplify many of these ethical dilemmas. This chapter is meant to represent an exploratory analysis of some of the main ethical dimensions of blue urbanism as a movement, a vision for the future, and a set of actions and policies. It is not meant to be comprehensive, nor is it meant to thoroughly work through the difficult dilemmas identified. Needless to say, much more work, much more thinking and analysis, will be necessary in the months and years ahead.

6.1  Defining the Moral Community (of Blue) An important set of ethical questions with special relevance to blue cities is how we define the moral community – the group of people or things to which we have an ethical obligation or moral duties. Important temporal, geographical, and biological dimensions are involved in how we define the community in the context of blue cities or blue urbanism. Some marine organisms – larger and more visible ones such as orcas or humpback whales – are clearly valued and important to urban residents, and there is a sense of care and concern about this species, to be sure. Less so, perhaps, for fish, or for a marine arthropod such as a horseshoe crab or a sea spider. Just as we can be said to exhibit a bias on land for larger, more charismatic species, so also do we seem to favor and prioritize certain marine species. To what degree do we value marine organisms that are largely unfamiliar to us? Many coastal cities – New York and San Francisco are two recent examples – are experiencing visits to harbors and nearshore waters by cetaceans: humpback whales in the case of New York and gray whales in the case of San Francisco. How do we treat these highly social, highly intelligent creatures, and are there special ethical duties that cities must follow?

6  The Ethics of Blue Urbanism

115

Blue urbanism calls for expanding our awareness of and care for the remarkable marine biodiversity that exists nearby, much of it just below the surface of our human sight. We are (understandably) biased in favor of terrestrial environments and for the nature – plants, animals, biodiversity – that exists on land, and that we can readily see, hear, and experience. The marine world, even just a few feet from shore’s edge, remains largely a mysterious place: it occupies in our minds and hearts a profound otherness or foreignness. With the exception of a few urban residents – scuba divers, for instance, who represent only a small percentage of an urban population – most people have no direct visual, physical, or emotional connection with the sea, perhaps making it difficult to establish the moral worth or intrinsic value of the life contained therein. Perhaps those of us who live in blue cities have a duty not just to define the moral community but to actively expand our sense of it. How do we, or can we, actively work to overcome the psychological and physical gulf between the human terrestrial world and the underwater world? Two years ago, we filmed a remarkable evening at Gig Harbor on Puget Sound, aimed at doing just that. Pier into the Night, run by a nonprofit called Harbor WildWatch, was an effort to provide a window into this exotic world. Volunteer divers equipped with a camera and lights dive looking for marine life, sending the images to a screen on a public dock, revealing in real time what they are finding. Kids and families cluster around the screen as a marine naturalist narrates what they are seeing. It is a creative, relatively inexpensive method for connecting, emotionally and perhaps morally, land and sea. Fostering these kinds of connections is a key goal of blue urbanism.

6.2  Which Nature in Blue Cities? How conflicted we are regarding the ethical status of marine organisms is evident in a recent controversy in the city of Seattle. The internet lit up when a 2012 video surfaced of a 19-year-old community college student hunting and killing a giant Pacific octopus, bringing his catch to the surface and to a cove “informally regarded as a [public] park” (Mapes 2012). For many who scuba dive, seeing this particular species, the world’s largest octopus, is a treat indeed. The young diver had applied for and received a shellfish permit permitting the hunt, so he was taken aback by the extent of the controversy and (rightly) noted the ethical inconsistencies present. “There is no sign [indicating a public park], and I see people fishing there. How could I know this is not morally acceptable?” (Mapes 2012). Were the objections that such a majestic, intelligent creature was being hunted and killed, or more about the location where this was taking place (a popular cove, tantamount to a public park)? Similar difficult questions are now being debated about the status of fish, as more evidence emerges about their intelligence. Ethicist Peter Singer now passionately argues that we have a moral duty to shift from harvesting fish, which are sentient

116

T. Beatley

and feel pain, to other forms of seafood and aquaculture where pain and suffering are less (favoring such things as oyster aquaculture and seaweed harvesting, for instance). Writing about this in an op-ed article in The Guardian, Singer calls fish the “forgotten victims” (Singer 2010): Why are fish the forgotten victims on our plate? Is it because they are cold-blooded and covered in scales? Is it because they cannot give voice to their pain? Whatever the explanation, the evidence is now accumulating that commercial fishing inflicts an unimaginable amount of pain and suffering. We need to learn how to capture and kill wild fish humanely – or, if that is not possible, to find less cruel and more sustainable alternatives to eating them.

The sentience and intelligence of fish adds additional moral uncertainty to our seafood production system. Along with a shift toward more sustainable local fishers, it can be argued that we should also move in the direction of humane treatment of fish in production and harvesting. This has implications for both aquaculture and wild harvest. Some fishers are beginning to employ humane stunning of fish before they are processed, for example (see Leschin-Hoar 2017a, b).

6.3  Fostering Empathy for Marine Life Many believe that cities, including blue cities, can and should play a role in fostering empathy for other forms of life. This is certainly a key ethical stance in blue urbanism. But there is a tension today between those who argue for more investments in nature primarily because of the benefits to humans, and the notion of inherent worth or intrinsic value. Blue nature benefits humans in many ways  – there is stress-­ reducing therapeutic value to the views of water and coastlines, and the uplifting aspect of joy that whale watching provides, for example. These are anthropocentric perspectives, of course, and tend to dominate in public discussions about the importance of nature. Few, though, would dispute that there are other, more non-anthropocentric ethical views, for instance that cetaceans, because of their special intelligence and complex social lives, have moral value irrespective of what enjoyment humans might gain from watching them. Marine life is complex and diverse and is not easily reducible to a hierarchy. Should we avoid diminishing the moral importance and status of all marine life that inhabits the bluespaces around cities, taking into account factors such as sentience and complex social structure? Perhaps a biocentric or ecocentric view is a better way to approach our ethical duties to marine environments. Nowhere in Aldo Leopold’s important book A Sand County Almanac is there any mention of the marine world, but we might productively extend his notion of the land ethic to include marine environments and seascapes (Leopold 1949). At the heart of his work is a belief in the importance of respecting the larger community of life. We ought, it can be argued, to attach inherent worth to the harbor, the bay, the seascape, upon which all living organisms rely. Is there a marine version (or interpretation) of Leopold’s famous admonition: “A thing

6  The Ethics of Blue Urbanism

117

[a blue intervention] is right when it tends to preserve the integrity, stability, and beauty of the [marine world] biotic community. It is wrong when it tends otherwise”? There has been an extensive literature in environmental ethics and active and ongoing discussions about the appropriate ethical theory or frame that should guide society. The classic dichotomy (a continuum, really) between a human-centered or anthropocentric ethics and non-anthropocentric or biocentric forms of ethics remains. Utilitarianism remains the most potent form of anthropocentrism (human-­ centered ethics): it can be and is being applied to how we make decisions in coastal cities and coastal environments (and how we decide the moral import or value of an octopus or a whale). Calculations of damages and court awards following oil spills, for example, attempt to place economic values on species like sea otters and shore birds, using methods such as contingent valuation, asking respondents what they might be willing to pay to ensure the continued existence of these species. There remains an open question whether marine life, such as a giant Pacific octopus, ought to be valued (in turn guiding decisions about its management and protection) based on its value to humans, or rather we should acknowledge the intrinsic moral value or inherent right to exist that such species may hold. The import of this category of ethical questions is greater than might be initially thought. What sort of seafood-harvesting economy should a blue city invest in and support, for example, and how should it manage the port and ship traffic in ways that are respectful of marine life? What are the implications for the management of land use around a coastal city that might negatively affect marine species?

6.4  Does the Ocean, or a Harbor, Have a Legal Right? Perhaps the focus of ethical analysis should not be so much on the individual organisms that inhabit marine environments, whether microscopic and obscure or large and charismatic, whether sentient or not. Perhaps it is the larger marine ecosystem itself that has intrinsic value or inherent worth and thus is owed a duty of care. Much of this line of thought was initiated in Christopher Stone’s highly provocative law review essay “Should Trees Have Standing?” – later published as a book under the same title (Stone 1974). “I am quite seriously proposing,” Stone says, “that we give legal rights to forests, oceans, rivers and other so-called ‘natural objects’ in the environment – indeed, to the natural environment as a whole” (Stone 1974). The idea has been percolating for decades. Only in the last several years is it gaining traction, specifically around legal rights for rivers, something that has happened in three countries: New Zealand, Colombia, and India (Benohr and Lynch 2018), though many details concerning implementation remain unclear. For legal rights to apply to a marine ecosystem, say a harbor or lagoon, Stone believes three conditions must apply: it must be able to institute legal action, its injury must be taken into account, and damage awards must flow to the benefit of it. Contrast this with the usual approach to ecosystem damages: courts award damages (say for loss of fish

118

T. Beatley

harvests due to an oil spill) based on how human beings are impacted, and any resulting monetary awards end up in a human bank account, not spent to repair or restore the ecological damages incurred. How might this work in a marine setting? Perhaps Boston Harbor or the Venice Lagoon might be awarded legal personhood. Some guardianship structure would need to be appointed that could institute legal action on behalf of the harbor or the lagoon and could generally speak on behalf of this otherwise inaudible and unrepresented system of marine life. Might the Guardians of the Harbor object, for instance, to proposed land uses or development that could result in sedimentation or other non-point water pollutants, or a significant shoreline habitat loss? In the example of Venice, might the lagoon institute legal action to stop the MOSE flood gates, as they are likely to reduce natural water flow and flushing and thus diminish the ecological health of this ecosystem? Whatever the practical issues of implementation might be, it is a provocative but valuable ethical (and legal) frame that emphasizes the inherent value of marine ecosystems (a variant of what environmental ethicists would call ethical holism).

6.5  The Value of (Marine) Wildness in a Modern City Increasingly, coastal cities are being reimagined as places not simply surrounded by “empty” spaces below waterfront or shore edges but rather embedded in a biodiverse marine habitat. Overcoming this presumption of empty space has not been easy, and the work continues. Landscape architect Kate Orff has coined the term “oyster-tecture” to describe her work designing forms of blue infrastructure like the Living Breakwaters project, installing oyster reefs that at once protect against flooding and help cleanse the water of New York Harbor (Orff 2016). For her, a strong personal ethical position is to see the water as important living environments, anything but empty. British writer and environmentalist George Monbiot does a wonderful job, in his book Feral: Rewilding the Land, the Sea, and Human Life, documenting the immense extent of the marine abundance that has existed in the recent past, and how easy, through the phenomenon of shifting baselines, it has been to mask the level of wildness that we have lost. The story of New York City’s oysters is a cautionary case in point. When Europeans arrived, there were likely 350 square miles of oyster beds, a harbor remarkably full of oysters, and descriptions of very large oysters (10-inch oyster shells have been found in oyster middens: Nigro 2011), all filtering the water of the harbor. The Harbor School in New  York is spearheading an exercise in rewilding through the Billion Oyster Project. High school students become aqua-culturalists, raising oysters with the help of New York restaurants that save and recycle the shells. The oysters also become a way to educate area elementary students about the ecology of the harbor and engage them directly in restoring wildness. So far, more than 20  million oysters have been placed in the harbor, a far cry

6  The Ethics of Blue Urbanism

119

from 1 billion; even a billion is a far cry from the wild and fecund nature that existed when Hudson arrived in 1620. Is there an ethical duty to further expand and accelerate this restoration, and to recognize how essential wildness is to the lives of residents of cities like New York? Providing opportunities to experience moments of wildness in the blue city is certainly a key part of the vision of blue urbanism. Such opportunities might arise through the chance to snorkel a few minutes from one’s apartment or home, or to find quiet spots along the shore’s edge where contemplation and observation might be possible. In many ways, this urban seascape is analogous to the conventional land use patterns in the terrestrial world and raises a host of similar questions about appropriate use and intensity. Should a determination of “highest and best” economic use carry the day, or should other values and ethical positions be considered and given priority (yes!)? A city’s harbor or nearshore marine habitat can accommodate a variety of uses and human demands that require balancing. These spaces are used by recreational fishers, kayakers, commercial boats, and urban transportation (such as ferries and taxis), in addition to the many nonhuman needs and uses. Harbor waters are habitats but also routes and channels for water-borne transportation, and these uses often conflict. Seattle’s heavy and loud ferries, as an example, have been recognized as negatively impacting the acoustic environment for orcas in Puget Sound, leading to recent plans to shift  – as a result of the recommendations of the Governor’s Southern Resident Killer Whale Task Force (Washington Governor’s Office 2018) to quieter electric ferries. In some coastal cities, the location of shipping lanes has been shifted to reduce whale strikes by ships. And many coastal cities are engaged in clear and ongoing disputes about which activities and uses should be given priority in a limited shorefront or waterfront. Cities like Portland, Maine, have grappled, for example, with the gradual squeezing out of fisher spaces or working waterfront uses in favor of those more oriented to homes and offices and tourism. During a recent protest by fishers, signs such the following could be seen: “No Portland Without the Lobster Community” (Russell 2018).

6.6  The Ethics of Blue Commoning One question is how much of this urban seascape should be set aside as marine parks and protected areas. Are cities duty-bound to establish such areas? And the perennial question: How much should be set aside? Blue cities do indeed have an ethical responsibility to protect marine biodiversity and marine habitats. Some cities, such as Wellington, New Zealand, acknowledge an important marine conservation agenda. This city has undertaken the world’s first Marine BioBlitz and embraces as its own a nearby marine protected area, the Taputeranga Marine Reserve, a mere 6 km from the city’s center. Another example, Plymouth, known as “Britain’s Ocean City,” is promoting the idea of a city marine park that would help to connect

120

T. Beatley

residents to the sea and enhance quality of life – though it would apparently be less about protecting marine biodiversity (see Pittman et al. 2019). How much we protect or set aside in the way of marine protected areas or parks remains an open question. Globally, only around 7% of marine areas are in a protected status, even though in 2016 the World Conservation Congress set the goal of setting aside a minimum of 30 percent (Pew 2018). To what degree and in what ways can blue cities help to move the planet in the direction of this ambitious goal? Cities often lack legal jurisdiction, but they can do more than is sometimes thought: for instance, establishing shoreline parks and protected areas that extend into the marine realm. They can also advocate for and work with federal and state agencies to identify and establish new marine protected areas. Partly, this is about the need to protect marine biodiversity, but also can be framed in terms of the value of wildness in close proximity of cities. Not wilderness, but wildness  – marine habitats and organisms that are independent from and little affected by humans, that reflect a vastness and mystery and uncontrollability, and of course the beauty, of the natural world.

6.7  Public Investments in Marine Awe? Is there an ethical duty to foster connections to the sea and to marine life to facilitate experiences of awe and wonder that they evoke? Blue cities can go even further in advancing the vision of a marine-connected city and a city where residents are inspired and positively affected by the marine nature and awe around them. This involves a whole set of ways that cities can entice or encourage the citizenry to engage in more marine-connected activities. Elsewhere, I have argued that a biophilic city is defined by more than just the presence or absence of nature: it is defined by the ways that residents engage (or not) with the nature around them. Do they spend much time outside in nature, or in nature-­ connected activities, such as birdwatching or hiking or gardening? How important is nature to them and how much do they care about that nature? Can they identify common species of flora and fauna (Beatley 2014)? Partly, it is about activating the shoreline parks and marine spaces in and around cities so that they are more accommodating and better able through their programming to facilitate nature connections. In New  York City, for instance, this might include design for public docks and shore edges that make it easy to put in a kayak. It may also involve signage and interpretation or the presence of humans in the form of marine nature docents who help visitors to recognize and learn about the marine organisms they might see, for instance at low tide. It remains an open question whether a local city council should rightly invest in such opportunities and whether there is a legitimate and important public purpose in nudging its citizenry in the direction of connecting with the marine world around them. I believe strongly that this is the case and that there is a clear, broader public interest in having more residents sailing, kayaking, hiking, scuba diving,

6  The Ethics of Blue Urbanism

121

beachcombing, and otherwise enjoying marine nature in a variety of ways. Others may disagree and see this opportunity-enhancing and nudging function as something that extends well beyond the usual municipal services: regulatory and other usual functions of city government. Local governments have a long history of underwriting social clubs and health-­ enhancing organizations and activities. At a minimum, there is an important health agenda here: as we know from the evidence, contact with blue nature delivers significant physical and mental health benefits and offers the chance to form friendships and social connections that are increasingly important in an era marked by increased loneliness and social isolation. Berkeley law professor Joseph Sax argues eloquently in his book Mountains Without Handrails that government serves a legitimate role when it (democratically) taxes its citizens to provide a service or experience that would not otherwise be supported by the private marketplace, but of which it believes citizens should avail themselves (Sax 1980). Subsidizing and underwriting experiences like scuba diving or sailing helps to tempt residents of blue cities to explore experiences that will likely be deeply enjoyable and valuable and will contribute meaningfully to a flourishing life in a marine city.

6.8  Are There Public Rights to the Blue? Contact with water – physical and visual access to water and shorelines – delivers important human benefits and raises the question whether this contact and blue spaces and blue edges ought to be protected primarily for public use. These spaces are an important urban design element of blue cities and are essential (for any city) in providing the many opportunities for civic functions and social interaction (e.g. Sennett n.d.). Public spaces of all kinds are essential to a democratic society; bluespaces are a special subcategory of these areas, taking many forms, including public beaches, shoreline promenades, and shoreline parks. Should shorelines be for everyone? Investments in new bluespaces are often motivated by a desire to promote social equity and to ensure that all members of the community equally enjoy the benefits of water and blue nature. Recent examples include Newark’s new Waterfront Park and distinctive orange walkways along the Passaic River, and San Francisco’s Blue Greenway: both projects aim to provide waterfront access and benefits to underserved neighborhoods and populations. The history of modern coastal cities and settlements reflects a conflicted and contradictory view about who is entitled to access water and shorelines. On one hand, much modern coastal real estate development reflects a drive to secure, to restrict the public, to solidify the private, and to exclude the larger public. In cities like Boston, there is an active debate (sometimes acrimonious) about whether that city’s accelerating shoreline development adequately protects the public’s right to access and enjoyment of the water. Public access is required but not always meaningfully provided. The Intercontinental Hotel on Atlantic Avenue in Boston was

122

T. Beatley

permitted under the condition that public space be provided and maintained, something that the Conservation Law Foundation, a local watchdog group, says has not happened (Moran 2017): “Today, the area that was envisioned to be a plaza is used for outdoor dining for the hotel’s restaurant patrons. The harborwalk-side of the plaza is lined with large potted plants – signaling to passersby that if they want to sit there, they must loop around the lawn and instead enter the plaza on the building side, where they are greeted by a maître d’.” On the other hand, the public trust doctrine and other variants of English common law are at their core an acknowledgment of the public’s inherent right of access and use. In most US states, there is a public right of access to at least the wet beach (usually formally extending to the mean high water); in several states, such as Oregon and Texas, the public beach extends to the dry beach (the first line of vegetation). In California, the debate about this issue is vociferous and fraught with strong emotion. If there is a moral right to access to water, the precise extent of this right remains an open question. Cities like New York and Copenhagen have moved aggressively to extend the public connections with water. This has taken the form of physical access, to be sure: new public parks, like Brooklyn Bridge Park in New York, that allow residents to come to the water’s edge. Cities like Oslo have also encouraged such physical contact, even reimagining urban design and building projects. The Oslo Opera House is a notable example: visitors can walk along and sit and, if they choose to, even touch the water from the slanting side of this visually distinctive structure. The goal of protecting public rights of access often bumps up against the desire to protect private property. Southern California has become the center of several high-profile conflicts between private landowners who wish to restrict public access and efforts to ensure public access to beaches and coastal areas, as required under the California Coastal Act. In a recent case, a billionaire landowner was legally required by the California Appellate Court (through a lawsuit brought by the Surfrider Foundation) to unlock a public access point serving a popular surfing beach (Wong 2018). The landowner sued the California Coastal Commission, arguing that public beach access would amount to unconstitutional “takings” of private property. In this case, the US Supreme Court recently let stand a lower court opinion in support of the state. Visual connection to water is another way of thinking of this right to access. New York has sought to open up sightlines to the harbor, a key objective of the city’s important waterfront plan. We know that humans are drawn to and prefer beautiful prospect-expansive views of water and shorelines, and that this is arguably something we are now hardwired to prefer. It may be difficult or impossible to implement an egalitarian approach to views of Central Park but, given the extent of waterfront in cities like New  York, this represents a kind of collective therapy and collective resource that should be protected and secured for all or most residents in the blue city. One interesting planning question relates to the ethics of public spaces and the important role they play in building trust and social connections. Public spaces of all kinds in the city are essential to achieving key functions of urban life: interacting with many others who may be different; and providing opportunities for political,

6  The Ethics of Blue Urbanism

123

social, and artistic expression, while offering physical space for the many collective activities from celebratory parades to protests to opportunities for collective grieving and healing (the way that parks and public spaces were used following the terrible events of 9/11). Richard Sennett speaks of open cities, contrasting them with closed cities. Closed cities are top-down, “over-specified,” frozen, and fixed; as a result, they are “brittle.” Open cities create the physical context for adaptation and change over time, with buildings and spaces that can be creatively modified; they are cities that are “dense and diverse.” “[S]uch physical conditions can prompt the unexpected encounter, the chance discovery, the innovation which is the genius loci of cities” (Sennett n.d.: 7). The important public spaces in blue urbanism (value-laden and civic-enhancing) will include shoreline parks and promenades, streets and plazas, and edges of buildings that touch water and tide, but also the bluescapes of rivers, harbors, and blue belts of various kinds that will be increasingly imbued with publicness. “City of Water Day,” organized in New York by the Waterfront Alliance, is an example of what is possible: seeing the harbor as a backdrop and venue for such things as PortNYC boat tours and cardboard kayak races. What are coastal parks and blue spaces of various kinds for? What uses and activities should be given priority? Does every park need to accommodate the full mix of different uses, or are some to be left in more pristine condition, for instance? An equally important question has to do with whose stories these spaces tell. Whose deeds or accomplishments are monumentalized in such public spaces? And whose histories do we privilege along the shore’s edge? There are other ethical questions about the extent to which these blue spaces are truly inclusive. They may be technically public, as are Santa Monica pier or the beach at Carmel, but what about the associated services and businesses that might truly make those spaces public? We have had a serious issue in many cities with the availability of adequate public restrooms, for example. Affordable accommodations, restaurants, parking, or even better access to these supposedly public spaces by public transit all become necessary requirements, in addition to the actual spaces themselves. And what is the extent of the obligation of a city (or businesses or developers or service providers of various sorts) to ensure that these requisite conditions of “publicness” are satisfied? As in other cities and in non-coastal urban settings, the distribution of goods and bads varies greatly. I have described elsewhere the paradoxes of blue nature today – that we are drawn to water and to shorelines, as they provide remarkable levels of “delight,” but increasingly serious “dangers” from climate change also exist (increased storm activity and coastal flooding, and the impacts of accelerating climate change) (Beatley 2017). What constitutes an equitable distribution of blue (urban) benefits and costs? In one of the first empirical studies of this issue, Harvard University researchers found that in Florida’s Miami-Dade County, single-family homes at locations of higher elevation were appreciating much faster than other single-family homes, especially those in low-lying neighborhoods. Climate change is likely to exacerbate and magnify existing wealth inequalities (Keenan et al. 2018). Similarly, any public

124

T. Beatley

investments in parks or marine nature, or hazard mitigation, will be met with the potential for gentrification and displacement (what some have called eco-­ gentrification), again raising questions about equity and the need to take proactive strategies to minimize or moderate these negative effects.

6.9  Fair Risk and Ethical Adaptation One of the key points of conflict relates to what kinds of climate responses are appropriate and acceptable, and who will have the right to undertake them. In many ways, these issues have been around a long time and therefore predate the present concerns about climate change. Does a property owner have the right to build a sea wall to protect their home or building, even when this act has negative impacts on adjoining properties and the larger public? Long-time Duke University coastal geologist Orrin Pilkey was a controversial voice in this debate for decades, going back to the 1970s. He believed strongly that coastal communities faced an inevitable choice: protect buildings or protect the beach. Especially damaging, Pilkey argued, are engineered shore-hardening structures, such as seawalls and groins, that exacerbate erosion and impede movement of barrier islands especially. The best approach is to design with nature and to tread lightly. Structures should be built to be moveable, Pilkey argued, or their owners must be ready to accept their eventual loss to the sea. He is not especially optimistic about the future of such shorelines in one of his latest books, The Last Beach (Pilkey and Cooper 2014). Pilkey has been one of the early advocates for strategic shoreline retreat, and herein lies a major category of ethical dilemma in blue cities. Should blue urbanism gradually move people and property out of harm’s way, perhaps by prohibiting or preventing reconstruction after a damaging storm, and through programs aimed at reducing density and actively relocating structures? Much of Pilkey’s work has focused on the efficacy (or really the lack thereof) of beach renourishment programs, a commonly chosen alternative to any form of relocation. He concludes that their longevity is consistently overestimated (and the impact of coastal storms underestimated). They also raise another category of significant ethical questions: Who should pay for such coastal protection projects? In the US framework, much of the cost of coastal protection is covered by the general public (through Congressional appropriations to the US Army Corps of Engineers), even though coastal communities and coastal property owners are the primary beneficiaries. Is it fair to ask the larger public to cover some or all of the costs of such projects, even though communities and constituencies far away are not likely to benefit directly from such investments? Another important equity question has to do with the extent to which government (or society) increasingly substitutes its own assessments of risk for those of

6  The Ethics of Blue Urbanism

125

individuals. A coastal building code that defines safety in terms of a design wind speed (say, designing to withstand 120-mile-per-hour winds) takes some of the judgment about coastal risk out of the hands of individuals (and can raise the price of that housing). Indeed, there is a long tradition of local governments stipulating minimum design codes and construction standards. How stringent these should be, and what constitutes appropriate, specific design elements, remain important open questions that are sometimes quite controversial. Another related question has to do with who has, or should have, the primary responsibility to make decisions about acceptable risk. The gradual direction over the last half-century has been in the direction, at least in the US, of federalizing risks and shifting responsibility away from individuals. Do such federal regulations go too far? John Stuart Mill famously argued that government has no duty (indeed no right) to intervene in decisions about risk that essentially regard individuals, where the impacts of one’s choices or actions fall primarily on the individual (rather than the larger public). But if a building fails in a hurricane, are the impacts (death and injury) essentially individual or is there a larger public-regarding (and public health) impact that justifies government intervention? We know that few purely individual-regarding risks exist in the world, and that any one person’s risk assumptions likely impact others. But are we as a society duty-bound to find mechanisms that help to moderate or mitigate public effects of individual risks, while seeking to maintain the ability of individuals to live their lives in individually meaningful ways? One example of a possible solution might be to assess a building constructed in a flood hazard zone a fee that helps to pay for the public costs of emergency response or rebuilding in the event that a flood takes place. The coastal adaptation option of accommodation, evident in cities like Venice, raises some interesting questions about how we should ultimately think about events like coastal storms and flooding. If we are able, as a blue city, to put into place adaptive mechanisms (such as technologies and systems for quickly erecting public elevated walkways during an acqua alta event, or perhaps a smartphone app that not only alerts you to coming dangers but also guides you across the city, sending you down streets that are dry on that day), how do we best distinguish between unpleasant inconveniences and catastrophic events? We might even begin to appreciate the wonder and awe of such events. We know that hurricanes and coastal storms have always been an aspect of coastal living: when they occur, there is for many a sense of the vastness and power of nature, the extent of a force and power beyond ourselves. Is there value in the position that says we must live with these natural forces, accommodate and moderate their effects, but understand that along the Gulf or Atlantic coastlines of the US, for instance, hurricanes are an important feature of the ecosystem and place and serve the function of redistributing equatorial energy? One response, of course, is that much of the danger that we are now experiencing or will experience in the decades ahead is anthropogenic at its source. As damages

126

T. Beatley

and loss of life increase, accommodation becomes harder, as does the sense that such effects are a natural part of living in a specific place. How to communicate the risks associated with coastal living raises ethical issues also. There has been a widespread belief, for instance, that coastal property owners deserve to be informed of coastal risks, and real estate disclosure requirements are common. How energetic ought the warnings to the general public to be of an oncoming storm event? Are efforts to sufficiently scare the public into evacuating or taking other preparatory actions justified? It is interesting to see the visualizations used by the Weather Channel to convey (in advance of Hurricane Florence) the likely impacts of a 9-foot surge: the newscaster stands on a street as the simulation vividly shows the rising and engulfing (and frankly terrifying) waters. Arguably, we are duty-bound to develop and use such visualization tools if they spur residents to action and end up saving lives. A related question is whether cities (and states) have the right or the duty to mandate evacuation in the event of an oncoming storm. Legal powers vary, but the ethical questions remain. One major category of ethical dilemmas faced by coastal cities relates to how proactive they should be in responding to the long-term risks associated with sea-­ level rise. We are finding, not surprisingly, a wide variation in the extent to which mayors and other elected officials transparently confront and communicate the risks that are present and likely to increase in their communities. Some mayors, such as the former mayor of Coral Gables, has famously – and some say courageously – raised the alarm about vulnerability in that South Florida community (see Beatley 2018). But even in cities where climate change and the need to address its impacts are widely accepted, it is unclear how honestly leaders are dealing with the much larger threats that are expected to unfold in a period beyond a couple of decades. Miami Beach has been investing in adaptation in the form of increased pumping capacity and elevating streets by several feet. These are helpful actions in the short term, but largely inadequate in the longer term, and some would say even help to accelerate development in dangerous locations. City officials acknowledge the severity of the risks, but also state clearly their intent to do whatever it takes in the future to maintain the existence of this barrier island city. As Bruce Mowry said in an interview, “the goal is that we’re going to be here forever … Retreat is not considered as an option” (Beatley 2018). Some signs of what this future development might look like are already apparent, and the vision of a more watery urban life painted in the bestselling novel New York 2140 (where the city is flooded, like Venice is experiencing now) is instructive: a world of sky bridges, water transport, rooftop farms. A new luxury tower, Monad Terrace, designed by Ateliers Jean Novel, has been approved for Miami Beach; it may illustrate well the paradox of this watery future. Designed with additional building elevation (11.5 feet) and windows that will sustain the force of a Category 5 Hurricane, it is also impressively biophilic and natureful, with draping plant facades and spectacular water views. Whether blue cities will be able to balance the danger effectively and delight remains unclear.

6  The Ethics of Blue Urbanism

127

6.10  A  n Affirmative Duty to Protect (Remote) Marine Nature? Circling back to our initial discussion of how we define the moral community in the blue city, some important questions about the geographical dimensions remain unresolved. To whom or to what beyond our boundaries do we have ethical duties? Do such duties exist at all? Does our definition of moral community include distant marine worlds and nature? The current debate about climate change is infused with such questions. Arguably, the historic carbon emission of the industrial cities and economies of the global North are largely responsible for sea-level rise and climate dangers in cities and countries of the global South – suggesting that as a matter of fairness, some form of compensation or resource transfers, or at least significant financial supports for mitigation and adaptation programs, are owed to places like Dhaka, Bangladesh, or Jakarta, Indonesia. There are many steps that blue cities like New York could take. New York mayor Bill De Blasio, for instance, recently announced that city’s decision to commit 2% of its pension funds to investments in renewable energy and companies that are tackling climate change. Even though this is only a small percentage of the total fund, it is a huge investment: $4 billion, as it turns out (Madson 2018).

6.11  Virtue Ethics and Blue Citizenship Important questions also surround virtue ethics and duties of citizenship in blue cities. Blue urbanism as a vision and movement argues that residents and citizens should care about and be directly engaged in the marine environments around them. We are seeing in coastal cities around the world a new form of citizenship emerging, stronger in some places than others, centered on water. It provokes empirical observations but also ethical commentary. Elsewhere, I have argued for new forms of local citizenship, reflecting a deeper and more expansive commitment to place. And I have imagined in Blue Urbanism that citizens will take direct action in many ways to work on behalf of the marine world. What are the ethical demands of a citizen of a blue city? Working positively to enhance and restore and repair marine environments would seem to be one ethical requirement. There are many different ways in which to connect to marine environments., Adjusting one’s diet might be one way; perhaps joining a community-­ supported fishery that sends income in the direction of local, more sustainable fishers would be an appropriate step. Direct action can occur through many kinds of volunteering. Wellington, New Zealand, organizes annual ocean clean-ups, where scuba divers look for and collect marine trash. Here is how they do it in Wellington: Once we bring the rubbish to the surface, we go through a process called de-crittering. Every piece of rubbish is catalogued and checked for sea creatures, e.g.: octopus, starfish,

128

T. Beatley

etc. Experts from the Island Bay Marine Education Centre often help removing the creatures safely to return them to the sea and entertain and educate the shore-crew and bystanders with their knowledge about the little critters.

More specific ethical questions arise about the duties and obligations of individuals in blue cities. Are residents duty-bound to seek out more climate-adaptive neighborhoods and buildings, for example, or to volunteer some of their time to restore or advocate on behalf of coastal nature, or at least to modify their lifestyles and consumption to better support the marine world? Poet Mary Oliver has put it beautifully: “Attention is the beginning of devotion” (Oliver 2016: 8). Paying attention, noticing what is around, especially the smaller sights and cues, the nuances of water, the abundance of the marine areas near to cities, is indeed an essential step on the way to a deeper, more committed citizenry of place. And attention is a virtue that citizens can cultivate and social institutions can support. If you lived on the edge of a wondrous forest, is there an ethical duty to learn more about it, to visit and explore it, to tell others about it, and to work in any ways you can on its behalf? Many would say this is an obvious duty, but it becomes more difficult when it is a giant kelp forest – no less wondrous, just as immense and beautiful, but more invisible to terrestrial humans. Direct and active engagement in the blue realm of cities is perhaps easier today than ever before, as the opportunities for involvement in citizen science have expanded and the technology for this involvement (including smartphones and other digital devices) is ubiquitous. Snapping images of marine nature, through software such as iNaturalist, is a low bar, to be sure, but could serve to open up more extensive forms of engagement. Community organizing around marine conservation may be a natural extension of the classic forms of political activism (letter writing, attending meetings, and of course voting, all still very important), further enabled by the technology we have at our disposal today. Part of what we need to do is rethink the educational systems and approaches we have taken on the blue planet. As a reflection of our terrestrial biases are educational biases as well. Given that two thirds of the surface of our planet is water, should not every person be exposed to marine ecology and science?

6.12  Intergenerational and International Blue Ethics At least two other very important categories of ethical issues arise around blue cities: one is geographical and the other is temporal. To address the temporal issue first, it is clear that most decisions about the marine world, near to cities or farther away, reflect a clear bias in favor of the present and rarely take full account of the deeper, longer time frame over which benefits and impacts occur. An expanded definition of the moral community would include several  – perhaps many  – generations into the future. Many blue urban decisions,

6  The Ethics of Blue Urbanism

129

whether about land use commitments or damage to shoreline ecosystems, will have implications that extend hundreds of years or longer into the future. Similarly, many blue urban aspirations, such as improvement in water quality or replanting billions of oysters, as in the case of New York, will require much longer time frames. One recent example is the City of Norfolk’s adoption of its Vision 2100 plan, an explicit effort to lay out a longer-term strategy for adapting its infrastructure and land use to a future of significant sea-level rise and a recognition that the 20-year time frame of its comprehensive plan is insufficient (City of Norfolk 2018). The current US federal administration appears to firmly believe that little is owed (morally, economically, socially, or in any sense) to people or countries beyond our borders. This contradicts a long tradition of acknowledging the existence of duties beyond borders and perhaps is but a short-term blip in the larger arc of international affairs (though, to be sure, there has long been a suspicion among American conservatives about giving over too much power to global institutions like the United Nations). On the blue planet, we are interconnected in unusually complex and undeniable ways. Greenhouse gas emissions going back to the beginning of the Industrial Revolution have resulted in a nearly 2  °F rise in global temperatures. Cities and countries of the global North have benefited tremendously from these emissions economically, yet we increasingly realize that the burden is falling on the global South at precisely the time when they wish to grow and develop their own economies. What duties do we have to compensate for or reduce or help to moderate the sea-level rise and coastal storm impacts on the global South that we in the global North have brought about? It is a contentious and open question, with many different points of view, of course. I have argued elsewhere that the vision of blue urbanism requires cities to assume greater leadership around ocean conservation (Beatley 2014). Partly this is born from a recognition that cities, and the consumption and production they stimulate, have a huge impact on global ocean environments. (We now know, for example, that oceans are absorbing a much larger amount of heat from climate change.) And partly it is a result of the economic and political power of cities, individually and collectively, and the role they could play in advancing ocean conservation. This global leadership could take many different forms: I have suggested, for example, that blue cities adopt one or more marine sister cities: near, medium, or even very distant marine features, ecosystems, or habitats that become focal points for education, awareness, and conservation actions. Increasingly, blue cities are taking steps and coordinating with other cities globally to address climate change, and more can and must be done. As Jackson Browne declares in his song “It Is One,” “we don’t decide where we are born.” Moral luck is one way to describe those life circumstances over which you have little or no control. Cities – especially wealthier cities of the global North – have a duty to help other cities. But the form that aid and assistance takes is equally important and can be

130

T. Beatley

extremely problematic. Exporting a particular model of coastal adaptation and seeking to impose it on cities where it may not work (especially in the global South) reflects an unfortunate level of arrogance and disrespect. (See Yarina 2018 for more about this issue.)

6.13  Fair Processes for Making Blue Urban Decisions Many important ethical issues emerge from the ways  – political and administrative – that decisions about the blue city and its marine environments are made. How democratic, inclusive, and participatory are these decisions? One thing to remember (again) is that conventional local politics is not likely to represent very well the larger moral community that is potentially affected. These decisions are biased in favor of humans over non-humans, current and present priorities over longer-term interests and residents, and residents who reside within the political boundaries of a local jurisdiction (the city or county). Blue cities might undertake a variety of possible steps to enhance the ethics of decisions and governance. Conflict-of-interest laws could be strengthened, as could efforts to make it easier to vote and to participate in meaningful ways in coastal decisions. Restrictions on the extent of campaign contributions allowed and provisions for public funding of elections (as already exist in some cities, such as New York) could help to reduce the undue influence of corporations and the wealthy in shaping coastal urban policy. There are likely to be other important sources of decision bias. Local elected and appointed bodies rarely reflect the diversity of the communities they represent, with the viewpoints of minorities and women consistently underrepresented, raising important questions about the fairness of political and policy outcomes. Ethics rules exist in many cities, but they are often not aggressively enforced. Recent examples from California show the extent to which ex parte communications and donations by developers to charities supported by city councillors (who will soon decide on their projects) raise real questions about how fair and ethical the outcomes will be.

6.14  S  ome Concluding Thoughts About the Ethics of Blue Urbanism The vision and agenda of blue urbanism are broad and inclusive. They include the goal of reconnection, rediscovery, and rewilding of the marine environments around cities, but also the need to plan for and adapt to sea-level rise and the hazards of proximity to the water’s edge. Ethical issues and quandaries permeate this agenda; this chapter has sought to be more illustrative than exhaustive. These

6  The Ethics of Blue Urbanism

131

ethical issues concern the ways we balance and reconcile many competing demands for how we use urban bluespaces, but also who or what counts in this moral decision making. There are many questions as well about the fairness of the politics and planning processes through which these issues are framed. Too often, we focus narrowly on the political and legal dimensions without considering the larger set of ethical issues present. Moving forward, the blue urbanism movement should seek to elevate and clarify these ethical dimensions. We need to unearth them and bring them to the fore in the process of rethinking blue cities.

References Beatley T (2014) Blue urbanism: exploring connections between cities and oceans. Island Press, Washington, DC Beatley T (2017) Seeking a blue urbanism: the paradoxes of blue nature. Europe now. https://www. europenowjournal.org/2018/12/10/seeking-a-blue-urbanism-the-paradoxes-of-blue-nature. Accessed 1 Apr 2020 Beatley T (2018) Blue biophilic cities: nature and resilience along the urban coast. Palgrave Macmillan, London Benohr J, Lynch PJ (2018) Should rivers have rights? A growing movement says it’s about time Yale Environment 360, August 18. https://e360.yale.edu/features/should-rivers-have-rights-agrowing-movement-says-its-about-time. Accessed 1 Apr 2020 City of Norfolk (2018). Vision 2100. https://www.norfolk.gov/DocumentCenter/View/27768. Accessed 1 Apr 2020 Keenan JM, Hill T, Gumber A (2018) Climate gentrification: from theory to empiricism in Miami-­ Dade County, Florida. Environmental Research Letters, April 23 Leopold A (1949) A sand county almanac. Oxford Press, Oxford Leschin-Hoar C (2017a) Will fish get a humanely harvested label? These brothers bet $40 million on it. NPR, June 14. https://www.npr.org/sections/thesalt/2017/06/14/532845573/will-fish-geta-humanely-harvested-label-these-brothers-bet-40-million-on-it. Accessed 1 Apr 2020 Leschin-Hoar C (2017b) Do you care if your fish dinner was raised humanely? Animal advocates say you should. NPR, October 20. https://www.npr.org/sections/thesalt/2017/10/20/558576179/doyou-care-if-your-fish-dinner-was-raised-humanely-animal-advocates-say-you-sho. Accessed 1 Apr 2020 Madson D (2018) New York City will invest a portion of its pension fund in climate solutions. Yale Climate Connections, December 27. https://www.yaleclimateconnections.org/2018/12/ nyc-pension-fund-to-invest-in-climate-solutions. Accessed 1 Apr 2020 Mapes L (2012) Diver surprised by reaction to his octopus hunt. Seattle Times, November 3. https://www.seattletimes.com/seattle-news/diver-surprised-by-reaction-to-his-octopus-hunt. Accessed 1 Apr 2020 Moran D (2017) Boston: when public spaces aren’t really public. Conservation Law Foundation, July 14. https://www.clf.org/blog/boston-public-spaces-arent-really-public. Accessed 1 Apr 2020 Nigro C (2011) History on the half-shell: the story of New York City and its oysters. New York Public Library. https://www.nypl.org/blog/2011/06/01/history-half-shell-intertwined-storynew-york-city-and-its-oysters. Accessed 1 Apr 2020 Oliver M (2016) Upstream: selected essays. Penguin, New York Orff K (2016) Toward an urban ecology. The Monacelli Press, New York

132

T. Beatley

Pew Charitable Trust (2018) The push to safeguard 30% of the ocean. https://www.pewtrusts.org/ en/research-and-analysis/fact-sheets/2018/10/the-push-to-safeguard-30-percent-of-the-ocean. Accessed 1 Apr 2020 Pilkey O, Cooper JAG (2014) The last beach. Duke University Press, Durham Pittman SJ et al (2019) Marine parks for coastal cities: a concept for enhanced community well-­ being, prosperity, and sustainable city living. Draft shared by the author Russell E (2018) Fisherman, others protest Portland waterfront development. Press Herald, June 9. https://www.pressherald.com/2018/06/09/fisherman-others-protest-portland-waterfrontdevelopment. Accessed 1 Apr 2020 Sax J (1980) Mountains without handrails: reflections on the national parks. University of Michigan Press, Ann Arbor Sennett R (n.d.) The open city. https://www.richardsennett.com/documentdownload. axd?documentresourceid=2. Accessed 1 Apr 2010 Singer P (2010) Fish: the forgotten victims on our plates. The Guardian, September 14. https:// www.theguardian.com/commentisfree/cif-green/2010/sep/14/fish-forgotten-victims. Accessed 1 Apr 2020 Stone C (1974) Should trees have standing? Towards legal rights for natural objects. W. Kaufmann, Los Altos Washington Governor’s Office (2018) Saving the southern resident orca. Policy brief, December. https://www.governor.wa.gov/sites/default/files/SRKW-policy-brief.pdf. Accessed 1 Apr 2020 Wong JC (2018) Tech billionaire, ordered to reopen public beach, appeals to Supreme Court. The Guardian, February 23. https://www.theguardian.com/environment/2018/feb/23/martinsbeach-california-vinod-khosla. Accessed 1 Apr 2020 Yarina L (2018) Your seawall won’t save you: negotiating rhetorics and imaginaries of climate resilience. Places Journal, March. https://placesjournal.org/article/your-sea-wall-wont-saveyou/?cn-reloaded=1. Accessed 1 Apr 2020

Chapter 7

Water Security Challenges in the Canadian Arctic Andrew S. Medeiros and Alannah Niemeyer

Abstract  Northern communities across the circumpolar Arctic face water challenges that are particularly difficult to both manage and mitigate in the face of ongoing environmental change. This chapter draws from the history of freshwater security across northern Canada. Vulnerability is contextualized, the ethical considerations of Inuit as environmental stewards are outlined, and directions for planning and development of freshwater resources in a warming future are proposed. Keywords  Water Security · Freshwater · Arctic · Inuit · Environmental Change

7.1  Introduction Access to clean and affordable freshwater is integral for sustainable community development, yet the consequences of environmental change of freshwater resources are disproportional. Northern ecosystems are particularly vulnerable to the influence of climate change at a time when the present conditions of northern systems are constantly changing, even before they are fully understood. Within this context, we find ourselves looking to the Arctic as a means of understanding the trajectory of environmental change with respect to the flora and fauna of northern ecosystems; however, the reality of environmental change also inherently places a strong burden on northern peoples. For Inuit, who have evolved deep-rooted connections between the terrestrial and aquatic biosphere in the north, warming challenges the basis of subsistence, culture, and personal well-being. Human society across the circumpolar Arctic is predicated upon generations of individual experiences translated as collective knowledge over thousands of years (Simon 2011). Indeed, the push and pull of a changing climate is thought to be a primary mechanism of migration for both the ancestors of modern-day Inuit as well as a component of the traditional nomadic lifestyle prior to colonization (Wenzel A. S. Medeiros (*) · A. Niemeyer School for Resource and Environmental Studies, Dalhousie University, Halifax, NS, Canada e-mail: [email protected]; [email protected] © Springer Nature Switzerland AG 2021 I. L. Stefanovic, Z. Adeel (eds.), Ethical Water Stewardship, Water Security in a New World, https://doi.org/10.1007/978-3-030-49540-4_7

133

134

A. S. Medeiros and A. Niemeyer

2009; Friesen et al. 2019). While this migration occurred during a warmer period around 1200–1300 CE, adaptation to a cooling Arctic climate has occurred since the middle of the millennium (Wenzel 2009). Adaptation to, and knowledge of, seasonal transitions in water and water resources enabled the evolution of intricate hunting, fishing, transportation, recreation, and relational networks across challenging landscapes (Laidler 2012). These knowledge systems developed over generations; however, they are increasingly strained due to pronounced environmental change that is occurring in a single generation. Thus, while Inuit have long demonstrated a capacity for adaptation to challenging environments, drastic shifts in seasonality and variability in weather as well as long-term shifts in temperature-mediated processes have forced northern communities to adapt within a short and increasingly unpredictable timeline. A consequence of a subsistence-based economy is a very direct relationship between northern peoples and the ecosystems they depend on for survival. As such, the health of Inuit depends on ecosystem conditions much more directly than is typical of other North American cultures. Inuit also share particularly close cultural and spiritual connections with the physical environment, developed through a long history of both adaptation and resilience. Traditional knowledge of the land, water, and climate have formed the basis of life, with an inherent ability to predict and respond to variability in weather (Weatherhead et al. 2010). Thus, for Inuit, water is more than a basic human right. Water, and the seasonal transition of snow and ice, form the history and basis of cultural identity of Inuit as a people. As Sheila Watt-­ Cloutier, past president of the Inuit Circumpolar Council, has noted, Inuit have framed the biggest challenge to their future as “a right to be cold” (Watt-­ Cloutier 2015).

7.1.1  Culture of Water and the Environment Knowledge of water has formed the basis of a sustainable existence as well as a spiritual connection for the Inuit, where water, weather, and environment have been incorporated in a rich and long cultural history. Traditional hunting and subsistence harvest also rely heavily on the seasonal migration of species, particularly those species that use or live within aquatic habitats and/or the sea. The significance of hunting and fishing to Inuit identity and way of life is evident through both art and story, which often present scenes of the Arctic landscape that include water resources (Fig. 7.1). Many species that are considered an integral part of the traditional Inuit diet are migratory and have a connection to both freshwater and marine habitats. As a result, the spiritual culture of Inuit is closely related to the land, freshwater, and sea; in particular, the animals that inhabit those ecosystems are regarded as having spiritual significance. Similar to other Indigenous cultures, Inuit believe that the spirit world is intertwined with the physical world, meaning that an individual’s actions always have spiritual consequences (Heyes 2007: 66). Moreover, Inuit believe that all living

7  Water Security Challenges in the Canadian Arctic

135

Fig. 7.1  Connections of the environment and Inuit: demonstrating the influence of climate change and colonialism on both. Images depict artworks that represent the significance of water (carving by William Pigalak, Kugluktuk, 1992), culture (Daniel Shimout, Coral Harbour, 2008), the land (Daniel Shimout, Coral Harbour, 2006), hunting and fishing (Anonymous, n.d.), and spirituality (Kenojuak Pudlat, Cape Dorset, n.d.). (Items photographed with permission from Ukpik Inuit Art, Halifax, NS. Background image by A. Medeiros, Arviat, 2006)

things have a soul and should therefore be treated with respect. This is significant to the harvesting of animals, such as walrus, seals, and fish, as hunters respect their prey and aim to cause no unnecessary harm; if they did so, there would be spiritual consequences (Heyes 2007: 67). Sheila Watt-Cloutier (2015) cited four core values of Inuit culture and life, originally described by Finn Lynge, a Greenlandic Inuit: nunamut ataqqinninneq refers to pride in having a close association with the biotic and abiotic components of the environment; akisussaassuseq describes the environment as being a charge of Inuit; tukkussuseq refers to the significance of sharing with kin and community; and Inuk nammineq stresses the personal responsibility of Inuit in environmental and personal decision making. Thus, ethical treatment and care of the environment are engrained as core values. The connection between the ocean, land, and water is often a key component of Inuit mythology. Mythology and storytelling outline the spiritual connection between the environment, purpose, and place (see Fig. 7.2). Stories of creation from Ungava Inuit of modern northern Quebec describe the Earth as originally completely covered with water, which then subsided to reveal land on which the first human was created (Heyes 2007: 74). Water creatures form a basis of

136

A. S. Medeiros and A. Niemeyer

Fig. 7.2  Sedna & Bear, Carving by Kakee Nineosiak, Cape Dorset, 1999. (Image by A. Niemeyer. Item photographed with permission from Ukpik Inuit Art, Halifax, NS)

interconnectedness between water and subsistence, which is demonstrated through lessons from story, such as Mitilik, a transformative being whose relatives would seek out the hunter that killed it (Heyes 2007: 71), as Mitilik cannot be eaten and therefore should not be killed. Spirituality of Water Traditional celebrations of the beginning of winter included fighting off the return of Sedna, a transformative being that is both fish and human, created through a struggle between families and culture. Freshwater was provided as a gift to Sedna, which would enable predictions of the future related to ice variability (Pearce 1987).

7.1.2  Colonialism and Water Infrastructure In Canada, the plight of Indigenous communities, in the context of water, directly and indirectly results from colonization and forced assimilation. Inuit are protected by section 35 of the Constitution Act (1982); however, Inuit were not originally part of the Indian Act. As a result, the federal government regularly ignored Canada’s

7  Water Security Challenges in the Canadian Arctic

137

Inuit populations until compelled by a 1939 court decision to do so.1 Colonial policies of assimilation followed, including forced relocations into sedentary (non-­ nomadic) communities and the introduction of a numerical identification system given to each individual for administrative purposes. Environmental dispossession was also a major factor, and consequence, of colonialism (Richmond and Ross 2009). Reduced access to traditional lands, territories, and subsequently resources can be illustrated by mass relocations that occurred during the mid-twentieth century (Tester and Kulchyski 1994). Moreover, relocations were driven by the Canadian government’s goal of assimilation (Tester and Kulchyski 1994). Prior to relocation, Inuit practiced seasonal nomadic lifestyles. This had traditionally followed seasonal cycles of harvest and environmental conditions (Daley 2013: 61). By 1975, most Inuit in Canada were relocated to permanent settlements through forced relocation, migration, and dislocation. Inuit were also subjected to the residential school system, where the federal government separated children from their families to assimilate their culture and disrupt Indigenous knowledge systems to favor Western education and values (Milloy 1999). These permanent settlements did provide access to services, including water and sewage – constitutional rights in Canada under section 36 of the Constitution Act (1982), which bestows “essential public services of reasonable quality to all Canadians.” While having water available was seen as a positive advancement at first in many Inuit communities, a lack of reliability for service and treatment of water systems quickly led to household-level stress and ultimately mistrust in government-driven (municipal) water sources. For example, municipal infrastructure in most communities in the territory of Nunavut relies on a single shallow lake basin for providing water. As infrastructure ages, and as the shallow sources of water are exposed to warmer and longer summer conditions, taste and odor problems have become common. In addition, decades of boil water advisories and associated illness have further eroded trust in municipal water provisioning.

Traditional Collection of Water Women play a key role in Inuit subsistence culture and are often responsible for collecting drinking water (Dowsley et al. 2010) (See Fig. 7.3.). Traditional collection of water had long been from rivers and streams, with a deep-rooted knowledge of illness from stagnant sources, such as lakes (Medeiros et  al. 2011). Disruption to traditional values and knowledge of the environment through colonial pressures have meant that daily tasks, such as gathering water from the land, has changed to a reliance on municipal infrastructure.

1  The 1939 Supreme Court of Canada decision ruled Inuit would be considered “Indians,” and as a result were subject to the Indian Act, which deemed them to be wards of the Crown. This was then strengthened and enforced by the Family Allowance Act of 1944, requiring the Canadian government to formally claim responsibility for Inuit (Tester and Kulchyski 1994).

138

A. S. Medeiros and A. Niemeyer

Fig. 7.3  Water girl, bone carving by Jason Ikeperiak, Igloolik, 2018 (Image on sealskin by M. Elliott)

Indigenous communities in Canada often face long-term boil water advisories, as approximately 39% of all Indigenous water systems are considered to be at a high risk of contamination (Wright et al. 2018a). Approximately one third of all Inuit adults within Canada considered their water to be contaminated at multiple times throughout a calendar year (Statistics Canada 2010). The prevalence and length of boil water advisories within an Indigenous community can foster negative perceptions of potable water sources, which has been connected to individuals seeking alternative sources of water that can result in personal health degradation (Wright et al. 2018b). Wright et al. (2018a) suggest that these contemporary issues of negative perceptions of municipal water have driven most of the population of Rigolet, Northern Labrador, to gather potable water from dispensing units or nearby water bodies; however, it has also been suggested that the popularity of such methods of gathering water is due to the connection to their cultural past. Thus, the current attitudes of Inuit communities in Canada toward municipally sourced potable water reflects the still recent history of colonization, which resulted in uneven allocation of resources, mistrust, and ultimately a desire to return to the land through cultural practices, such as gathering water.

7  Water Security Challenges in the Canadian Arctic

139

7.1.3  Vulnerability to Environmental Change The stark imagery of completely dry lakes and streams is a shocking but increasingly common feature of northern regions. Historically, Inuit traversed distances across vast landscapes through their knowledge of sea ice, lake and river crossings, and the ocean, as traditional knowledge was passed down through generations of collective memories. Hunting, fishing, transportation, recreation, and relational networks (connecting communities, food sharing) all require detailed knowledge of climate and the environment. Indeed, families can be separated by vast and challenging distances, where travel is an integral part of Inuit family structure (Gearheard et al. 2010); knowledge of the interplay of weather and climate is critical for cultural connectivity and well-being (Aporta 2009). Environmental change challenges this fundamental concept by limiting travel due to dangerous ice conditions and extreme weather events and by breaking down traditional knowledge systems built upon generations of adaptation and collective resilience. Environmental change has also increased food insecurity by denying access to hunting and fishing grounds (Huntington and Fox 2005), while impacting the ability of the next generation to learn traditional cultural connections to the environment. This fundamental erosion of culture and heritage, coupled with a decline of traditional means of subsistence for Inuit, has social consequences, especially for youth that no longer have access to the same ice-based connectivity between land, water, and communities. Vulnerability is often understood as a diminished resilience to stress. The concept of vulnerability is relative, and can depend on adaptability, resistance, and recovery parameters. In fact, vulnerability can be acutely linked to poverty, isolation, and insecurity. Differences in vulnerability are a consequence of exposure, risk, and adaptability, often affected by socio-economic and cultural factors. Equally challenging is a lack of capacity in northern communities. Capacity is determined by the availability of resources. Such resources are often infrastructure related, but can also be based on how communities are organized. For isolated northern communities, there is difficulty in ensuring adequate skills and capacity for growth, planning, and development in addition to the inherent vulnerability associated with isolation, limited economic means, and increased risk associated with amplification of climate-related change. For northern peoples, climate-driven water insecurities are fundamentally exacerbated by limited technical and financial capacity, inadequate and aging infrastructure, growing populations, and an increasing legacy of reliance on short-term, engineered solutions. There is an inherent risk of water shortages when any population relies on a single water source. Civil infrastructure in remote and northern communities, such as municipal water supplies and treatment, is also often limited and can present daily challenges. There is often a lack of highly qualified personnel: engineers, operators, and experienced managers. Due to the remote environments, there is also an inherent difficulty in both recruitment and retention, which can decrease the resilience of municipal infrastructure with respect to normal operational wear as well as long-term planning and adaptation. From a policy

140

A. S. Medeiros and A. Niemeyer

development standpoint, aging infrastructure and gaps in management strategies with respect to increased variability in weather and climate is exemplified by a lack of existing policy frameworks behind freshwater resources (Medeiros et al. 2017). This has led northern regions to be highly susceptible to water insecurity and may be one of the most significant challenges for development into the future.

7.1.4  Water Quantity and Quality in a Warming Future Freshwater ecosystems in the Arctic are predominantly defined by narrow seasonal temperature thresholds and the underlying permafrost horizon that limits infiltration. During the melt-water season, these systems are inundated and normally fill to capacity, giving the impression that the Arctic is characterized by large expanses of wetlands, lakes, streams, and rivers. Yet, much of the Canadian Arctic is considered a polar desert, with very low amounts of precipitation to sustain freshwater systems throughout the dry summer months. Winter precipitation, in the form of snow and ice, released during spring (May–June) is what primarily maintains yearly water balances throughout Arctic watersheds during typically dry summers. Less snowfall, or an increase in the duration of the melt season, can cause widespread desiccation of watersheds in the later summer. Conversely, if the spring melt is delayed due to an extended winter season, the amount of water available for recharge could also be less, due to rapid overland flow during a shorter recharge period combined with higher vaporization potential during the high sun season, as was observed in 2018. Both scenarios have obvious impacts on the sustainability of the freshwater ecosystems, wildlife, and northern communities that rely on lakes for their municipal water supply. For many freshwater systems, there is little historical information available to determine whether the recent reductions in water quantity observed are unusual within a long-term context. This information is critical for determining the influence of human activities and for developing and assessing environmental management and mitigation programs. The lack of capacity for policy planning and management are compounded when there is an inherent lack of information necessary to achieve these goals. For Arctic communities, the high cost of basic scientific inquiry has left much of these analyses to high-priced outside consulting firms. The reliance on outsourcing monitoring and assessment capacity has led to decision making that has focused on short-term development and planning without a long-term focus on adaptation, as well as fundamentally reinforcing southern colonial control over the future of northerners. This perpetuates an unjust reality where Inuit are now ultimately responsible for managing inadequate and rapidly deteriorating colonial infrastructure without the capacity to do so, as well as not having the ability to adapt and plan for the future. Concerns over water in the Arctic can lead to direct and indirect stress at both the family and community level. The anticipation of poor water quality or lack of water (or both) can also lead to a fundamental disruption in the everyday lives of residents. This can be a perception of health, but also an economic burden. Stress and

7  Water Security Challenges in the Canadian Arctic

141

uncertainty over access to clean and affordable freshwater can manifest in multiple ways: economic stress associated with the cost of alternative store-bought water; environmental stress associated with the knowledge of a disconnect between environmental stewardship and provisioning; and family stress associated with fear about the quality of water provided to one’s family. Stress at the family level is acute for women, who are regarded as both protectors and providers of water (Wesche et al. 2016). This is especially apparent in young mothers, who can experience stress over the quality of water they give to their children (and the source of water used to mix with formula).

Accessible Water Volume [1000m3]

Water Emergencies The lack of a long-term freshwater policy or planning (Nunavut is one of the only jurisdictions in Canada without any freshwater strategy or climate change adaptation plan for water resources) has left the territory unprepared for a water crisis that is already occurring. In 2015, the hamlet of Igloolik suffered an unusually harsh winter that followed an unusually dry summer. The lack of adequate recharge and prolonged ice cover meant the community completely exhausted its municipal freshwater supply. Left without options, the community tapped into the closest alternative water source, which had never been adequately considered as being potable. The community has since upgraded its reservoir capacity. Bakaic and Medeiros (2017) identified extreme vulnerability to the water supply of Rankin Inlet and Iqaluit, suggesting that both communities may exhaust their supply of freshwater within 5 years without immediate supplemental sources. In both cases, the root causes were failing infrastructure, lack of planning, and a lack of capacity for basic maintenance and monitoring. For Iqaluit, the forecast (Fig.  7.4) came sooner than expected, as the city declared a water emergency in 2018 after an extended winter following a dry year. However, these situations are common in northern communities, as municipal supply sources in Arctic regions are often isolated lakes in close proximity to town, thereby limiting the resilience of potable water systems.

Lake Geraldine Water Supply Climate Ranges

2000 1800 1600 1400 1200 1000 800 600 400 200

Low Consumption - 299 LCD Current Consumption - 352 LCD High Consumption - 401 LCD

0 2015 2016 2017 2018 2019 2020 2021 2022 2023 2024 2025 2026 2027 2028 2029 2030 2031 2032 2033 2034 2035 2036 Date

Fig. 7.4  Long-term forecast for the municipal freshwater supply of Iqaluit, Nunavut. Projections indicate exhaustion of available water supply by the summer of 2024 (Bakaic and Medeiros 2017)

142

A. S. Medeiros and A. Niemeyer

7.1.5  M  oving Toward an Ethical Future: The Rights of Inuit and Freshwater Security On the international stage, the Arctic Council (an intergovernmental forum that addresses issues of Arctic states), and the Indigenous people of the Arctic, launched a wide-reaching investigation of the influence of climate change on Arctic lands, waters, and people in 2000. Known as the Arctic Climate Impact Assessment, the process was grounded in scientific knowledge to provide clear evidence of vulnerability, which substantiated Indigenous knowledge of the changing landscape, to inform future policy. The resulting reports made the ethical considerations of climate change evident, while including statements that articulated the connections between Inuit and environmental change. This assessment represented a significant shift in the dialogue on climate change; the perspective began to focus on northern peoples and how their lives are being negatively impacted and their rights infringed upon. Subsequent reports, including the Intergovernmental Panel on Climate Change, reflected paradigms of climate change that focused on the importance of human vulnerability (Cameron 2011; Watt-Cloutier 2015). In December 2005, Watt-Cloutier filed a petition on behalf of the Inuit Circumpolar Council – related to the effect of climate change on the Inuit way of life – to the Inter-American Commission on Human Rights. This marked the first legal action on climate change, which presented the case of how anthropogenic climate change attributed to greenhouse gas emissions originating from the United States violated the rights of Inuit under the 1948 American Declaration of the Rights and Duties of Man. Also, the petition was substantial in terms of Inuit autonomy and action, as it was supported by Inuit in both Canada and the US, representing shared values and connectivity concerning the environment (Watt-Cloutier 2015). This action, and subsequent testimony at a hearing on human rights and climate change in 2007, marked the beginning of recognizing Indigenous rights as an ethical component of climate change. It garnered considerable media attention, resulting in global adaptation of this perspective (Watt-Cloutier 2015). Inuit later had their rights to Arctic lands and waters affirmed by the United Nations Declaration on the Rights of Indigenous Peoples (UN General Assembly 2007), which enshrined the rights that “constitute the minimum standards for the survival, dignity and well-­ being of the indigenous peoples of the world” (Article 43). However, Indigenous rights and title continue to evolve in both priority and content. The ethical consideration of Inuit rights in the context of water have been described in terms of the infringement of travel, stability, subsistence, cultural use, and health (Watt-Cloutier 2015). The development of a water security strategy is a logical extension of Inuit rights. Such a strategy allows for coordination between ethics, infrastructure investments, emergency preparation, and environmental protection. Nunavut currently does not have any form of freshwater protection or planning through which effective municipal and regional adaptation and mitigation can be directed. As a result, assessing the vulnerability of freshwater supply and adaptation options in the context of a warming future is particularly difficult. While

7  Water Security Challenges in the Canadian Arctic

143

similarities exist in terms of the types of issues and challenges faced across the circumpolar north, regional differences in how warming influences freshwater ecosystems must be addressed as each territory works to improve its own water policy and governance. The absence of both policy guidance and territory-wide planning for water use and management makes broader considerations, such as addressing cumulative impacts, effectively impossible.

7.2  Conclusions The verity of the current and ongoing impact that environmental change has on the Arctic suggests that immediate mitigation and adaptation action are required; however, the colonial reality of this region means that action must be undertaken with active participation and leadership by Inuit in order to be ethical. Likewise, as Cameron (2011) notes, any meaningful actions to truly mitigate climate change in the north must take place in the south, which is the source of the problem. The largest perpetrators of carbon emissions are not the people who are most vulnerable to the consequences. Thus, the colonial and climate realities that Inuit now face have resulted in unethical living conditions, both physically and mentally, including addiction, suicide, disconnect, loss of freedom, loss of stability, and poverty (Watt-­ Cloutier 2015). These realities demonstrate the dire circumstances and the faces of vulnerability; adaptation and mitigation must allow room for these voices to be heard to create meaningful change, through impactful avenues such as new policies and reporting strategies. The benefits of sustainable sources of clean and accessible freshwater for healthy and sustainable community development are clear. The importance of the hydrologic cycle and its natural trajectory in Arctic ecosystems is not as evident for decision makers. Likewise, environmental change is having a disproportional and often unknown effect on northern ecosystems and the infrastructure challenges that communities face. The integration of scientific knowledge and policy decision making is needed to raise a better awareness of the benefits and importance of northern ecosystems. While there have been multiple large initiatives geared toward research in the north in recent years (such as International Polar Year), researchers have much to learn about communicating the importance and linkages behind the benefits of northern research to policymakers, industry stakeholders, and northern peoples. Ultimately, the future for northern regions with respect to water availability may invite even more variability and subsequent uncertainty. Recent developments in research identifying vulnerability prior to water shortages is encouraging. Likewise, the increasing attention to water security as a priority for growth and development in northern regions may increase our understanding of the trajectory of freshwater ecosystems under continued warming. This may also help to ameliorate the burdens of northern peoples, who are at the forefront of environmental change.

144

A. S. Medeiros and A. Niemeyer

References Aporta C (2009) The trail as home: Inuit and their pan-Arctic network of routes. Hum Ecol 37(2):131–146 Bakaic M, Medeiros AS (2017) Vulnerability of northern water supply lakes to changing climate and demand. Arct Sci 3(1):1–16. https://doi.org/10.1139/as-2016-0029 Cameron E (2011) Development, climate change and human rights from the margins to the mainstream? Social development working papers 123. The World Bank, Washington, DC. https:// doi.org/10.1596/27308 Daley K (2013) A qualitative case study of relationships between public health and municipal drinking water and wastewater in Coral Harbour, Nunavut. Unpublished master’s thesis, Theses Canada. AMICUS no. 42001092 Dowsley M, Gearheard S, Johnson N, Inksetter J (2010) Should we turn the tent? Inuit women and climate change. Études/Inuit/Studies 34(1):151–165 Friesen M, Finkelstein S, Medeiros AS (2019) Climate variability of the common era (AD 1–2000) in the eastern North American Arctic: impacts on human migrations. Quaternary International, June 11. https://doi.org/10.1016/j.quaint.2019.06.002 Gearheard S, Pocernich M, Stewart R, Sanguya J, Huntington HP (2010) Linking Inuit knowledge and meteorological station observations to understand changing wind patterns at Clyde River, Nunavut. Clim Chang 100(2):267–294 Heyes S (2007) Inuit knowledge and perceptions of the land–water interface. Unpublished master’s thesis, Theses Canada AMICUS no 34436174 Huntington H, Fox S (2005) The changing Arctic: indigenous perspectives. In: Arctic climate impact assessment. Cambridge University Press, Cambridge Laidler G (2012) Societal aspects of changing cold environments. In: French H, Slaymaker O (eds) Changing cold climates: a Canadian perspective. Wiley-Blackwell, Oxford, pp 267–300 Medeiros A, Luszczek C, Shirley J, Quinlan R (2011) Benthic biomonitoring in Arctic tundra streams: a community-based approach in Iqaluit, Nunavut, Canada. Arctic 64(1):59–72. https:// doi.org/10.14430/arctic4080 Medeiros AS, Wood P, Wesche SD, Bakaic M, Peters JF (2017) Water security for northern peoples: review of threats to Arctic freshwater systems in Nunavut, Canada. Reg Environ Chang 17(3):635–647. https://doi.org/10.1007/s10113-016-1084-2 Milloy J (1999) When a language dies. Index Censorsh 28(4):54–64 Pearce SM (1987) Ivory, antler, feather and wood: material culture and the cosmology of the Cumberland Sound Inuit, Baffin Island, Canada. Can J Nativ Stud 7(2):307–321 Richmond CA, Ross NA (2009) The determinants of First Nation and Inuit health: a critical population health approach. Health Place 15(2):403–411. https://doi.org/10.1016/j. healthplace.2008.07.004 Simon M (2011) Canadian Inuit. Where we have been and where we are going. Int J 66(4):879–891. https://doi.org/10.1177/002070201106600415 Statistics Canada (2010) The health of First Nations living off-reserve, Inuit, and Métis adults in Canada: the impact of socio-economic status on inequalities in health. Statistics Canada, Ottawa Tester FJ, Kulchyski PK (1994) Tammarniit (mistakes): Inuit relocation in the Eastern Arctic, 1939–63. UBC Press, Vancouver Assembly UG (2007) United Nations declaration on the rights of indigenous peoples: resolution/ adopted by the General Assembly, 2 October 2007. A/RES/61/295 Watt-Cloutier S (2015) The right to be cold: one woman’s story of protecting her culture, the Arctic, and the whole planet. Penguin, Toronto Weatherhead E, Gearheard S, Barry RG (2010) Changes in weather persistence: insight from Inuit knowledge. Glob Environ Chang 20(3):523–528 Wenzel GW (2009) Canadian Inuit subsistence and ecological instability: if the climate changes, must the Inuit? Polar Res 28(1):89–99. https://doi.org/10.3402/polar.v28i1.6103

7  Water Security Challenges in the Canadian Arctic

145

Wesche SD, Ohare-Gordon MA, Robidoux MA, Mason CW (2016) Land-based programs in the Northwest Territories: building indigenous food security and well-being from the ground up. Can Food Stud 3(2):23–48. https://doi.org/10.15353/cfs-rcea.v3i2.161 Wright CJ, Sargeant JM, Edge VL, Ford JD, Farahbakhsh K, RICG, Shiwak I, Flowers C, IHACC Research Team, Harper SL (2018a) Water quality health in northern Canada: stored drinking water and acute gastrointestinal illness in Labrador Inuit. Environ Sci Pollut Res 25(33):32975–32987. https://doi.org/10.1007/s11356-017-9695-9 Wright CJ, Sargeant JM, Edge VL, Ford JD, Farahbakhsh K, Shiwak I, Flowers C, Gordon AC, Harper SL (2018b) How are perceptions associated with water consumption in Canadian Inuit? A cross-sectional survey in Rigolet, Labrador. Sci Total Environ 618:369–378. https://doi. org/10.1016/j.scitotenv.2017.10.255

Chapter 8

First Nations, Traditional Knowledge, and Water Ethics Deborah McGregor

Abstract  In the Anishinaabek tradition, theoretically, practice is embedded in inquiry: one does not really know until knowing occurs. As such, inquiry is not just concerned with generating knowledge, but doing something about it in an ethical and responsible manner. Anishinaabe gikendaasowin (knowledge) is rooted in place and reminds us through engaging directly with people, the waters, and the landscape that we have responsibilities and obligations that require action, not just words. This chapter provides insights into how Anishinaabe place-based research has incorporated such practices that reflect expression of water ethics and that contribute to water justice and governance. Keywords  Water governence · Traditional knowledge · Ethics · Gender

In this chapter, I will describe what I have learned from working with Elders, traditional knowledge holders, and practitioners for the past two decades, starting with my involvement in the Chiefs of Ontario’s submission to the Walkerton Inquiry. This work in some ways represents not only writing about water ethics, but actually realizing these ethics through the words that will be shared in the following pages. As such, this chapter will frame First Nations water ethics from a traditional knowledge perspective. I will speak to the scholarly and community-based work in which I have been engaged and how these various initiatives inform a distinct First Nations water ethic that finds expression in Indigenous political and governance arrangements (McGregor 2014). Furthermore, I will illustrate how First Nations water ethics are embedded within Indigenous legal orders, which fundamentally speak to the reciprocal set of obligations and responsibilities between humans and the waters (Craft 2014; McGregor 2015). This chapter begins from the premise that Elders and traditional knowledge holders and practitioners have for decades made it very clear that part of our responsibilities as First Nations peoples is to take care of the waters. These responsibilities D. McGregor (*) Osgoode Hall Law School, York University, Toronto, ON, Canada e-mail: [email protected] © Springer Nature Switzerland AG 2021 I. L. Stefanovic, Z. Adeel (eds.), Ethical Water Stewardship, Water Security in a New World, https://doi.org/10.1007/978-3-030-49540-4_8

147

148

D. McGregor

must be expressed and honored in our daily lives and work. There is a gendered aspect to consider as well that continues to influence the discussion on water ethics. In the Anishinaabek tradition, it is the women who speak for water (Chiblow 2019; Craft 2018; Mandamin 2012). As an Anishinaabe-kwe (Anishinaabe woman), the water governance work I am part of contributes to the personal and collective responsibilities the Anishinaabe have to protect the waters. The ideas and insights that I will share in this paper are essentially lessons and teachings that I have learned from Elders, knowledge holders, Anishinaabek thinkers and scholars, and others over the years. Nothing I will say here is therefore particularly original, as these teachings have been passed on for countless generations within the Anishinaabek Nation. Although these teachings/knowledges have been previously shared in policy and governance circles, they are just beginning to emerge as part of the scholarly literature. My goal is simply to share what I have learned thus far from those far more knowledgeable than I. It is part of my role as an Anishinaabe-kwe is to share such knowledge.

8.1  Anishinaabek Traditional Knowledge and Responsibilities One of the most important Anishinaabek protocols is to acknowledge the sources of our knowledge. Indigenous inquiry respects and acknowledges the role of culture and how culture is expressed and mediated by an individual’s own relationship with that culture. This means that our own positionality influences how we understand “water ethics” and how we go about expressing and practicing it. One of the most important aspects of Indigenous inquiry, and one that is closely related to the concepts of responsibility, relationships, and reciprocity, is accountability. Once you know (have obtained knowledge or understanding of) something, it stays with you: it becomes part of who you are. So what will you do with that knowledge? You are accountable to your family, community, nation, the collective (Indigenous peoples), the ancestors, those yet to come, other beings in Creation and the spirit world. You are also accountable to the water itself! How does water know that you have fulfilled your obligations and responsibilities? Anishinaabek water ethics is not just what we know or can say about ethics, but also what we do about it. In Anishinaabek tradition, it is important to respect the knowledge of the people and recognize the sources of that knowledge. Although I am a scholar, conduct research, and teach, the knowledge I share is not mine alone. My professional experiences over the past 20 years have provided me with various perspectives on traditional ecological knowledge and environmental and water governance. One aspect of discussing water ethics is to better understand what we mean by “water” and the role it plays in our lives. In Anishinaabemowin (Anishinaabek language), water is often referred to as nibi, although there are numerous other terms to describe water

8  First Nations, Traditional Knowledge, and Water Ethics

149

of varying forms. In this chapter, I will relate stories as a way of conveying some of these Anishinaabek conceptions of water. Indigenous peoples across Canada as diverse nations have developed their own water relationships with respect to their own knowledge, legal, and governance systems. For example, Wilson et al. (2019), based on their research with First Nations in the Yukon, found that “While Indigenous relationships to water are highly diverse, they tend to express and understand water as a living entity with agency or ‘spirit’ to which Indigenous peoples have reciprocal responsibilities; a perspective which sharply contrasts with settler views of water as a ‘resource’ available for human use and extraction.” They add that all aspects of Indigenous water relations are informed by relational ontologies and epistemologies that are not easily characterized by a dualistic lens that separates the material from non-material dimensions of water, and humans from other than human relatives such as water. These relationships to water are multifaceted, structured by protocols, and encompass practices and knowledge about the relationships between humans and the other-than-­ human world that are the basis of Indigenous systems of governance and law. (Wilson et al. 2019)

This broader orientation to Indigenous perspectives on water ethics is also reflected internationally, expressed through international Indigenous water declarations, as discussed further in this paper.

8.2  Sweet Water and the Ethic of Reciprocity In a story told by Anishinaabe Elder Edward Benton-Benai, in his book about how maple syrup came to the Anishinaabek, he brings us to a time when the Anishinaabek were experiencing a crisis (Benton-Banai 2008). It was springtime, when the food stores were often seriously depleted, and families were beginning to starve. Before dispersing to seek what nourishment could be found, some women went to pray beside an Aninaatig (maple tree) to ask for assistance. These women heard a voice tell them to return the next day. Frightened but hopeful, the women consulted with the Elders. They were told to return to the Aninaatig as instructed by the spirit. The next day, the women and some other community members returned to the tree. The people prayed again and then noticed water dripping down the side of the maple tree. At first, they were afraid. It was the children who tasted the water first and found it to be sweet and nourishing. As the weather gradually warmed during that early part of the spring, the sap flowed increasingly from the tree; and from the sap, the Anishinaabek learned how to make maple syrup and maple sugar. The Anishinaabek were thus saved from starvation by the Aninaatig, which was willing to share its life-giving sweet water, or medicine water. One of the things we understand from this is that the sap flows at a time when it is most needed. Every spring, the Aninaatig shares this gift, fulfilling its responsibilities, and the Anishinaabek continue to receive the gift and thrive. In honour of the Aninaatig’s gift, the sweet

150

D. McGregor

water ceremony is practiced as a reminder of the original gift offered to the Anishinaabek so long ago in a time of great need. The spring is also the time of year when the water breaks and begins to flow: snow and ice melt, and streams and rivers begin to run again. All of this is much like when the water breaks before childbirth. The spring, the water breaking, the sweet water or sap flowing to ensure continued survival: all point to rebirth and renewal. Minookming (spring) is a special time of year for my family, as it is the time for making aninaatigo ziiwaagmide (maple syrup). All generations are involved. Just as I went into the bush every spring to contribute when I was a child, so now do my sons, my nieces and nephews, and so on. It is a traditional practice my family has been involved in for countless generations. There is much traditional knowledge involved in making ziiwaagmide, from knowing when to tap the trees (certain weather conditions have to be met), which trees to tap in any given year, how to take care of the fire, the proper wood to burn, etc. Through these kinds of cultural practices and activities, knowledge is passed on from one generation to the next and is reinforced every year through storytelling and lived experience. Syrup making has become a commercial enterprise in some predominantly non-­ Indigenous communities. The more “modern” practice of making ziiwaagmide occurs through what my family calls the “pipeline method,” where long tubes connect to the trees and the sap flows through these tubes to where it is collected and boiled down in industrial-size tubs or reverse osmosis machines. Although my family certainly has the capacity to adopt these “modern methods” to obtain more syrup, perhaps more efficiently, we have consciously chosen not to do so. The reason is deeply embedded in how we relate to the maple forest, including the trees themselves, the spirit in the trees, and the obtaining of each tree’s permission to share its gifts. As my late father, Murray McGregor Sr, Gaiashkoos explained it, if we take up the commercial ways of making ziiwaagmide, including hooking up the trees to lines leading to a central location to boil away the sap to produce maple products, we are no longer receiving the gifts the maple trees offer every spring. We no longer have the same intimate, personal, and loving relationship that governs our conduct. We change from a giving mode to a taking mode. Should we begin merely taking the sap from the trees, our relationship with the trees and with the forest changes: we no longer receive the gift as originally intended. Each spring, my father would visit every maple tree in the stand before deciding which trees will be tapped that year. There is communication, a personal relationship that is fostered and maintained over generations. Receiving a gift rather than taking something that has not been given is an ethical (as well as a spiritual, ecological, moral, legal, and profoundly personal) experience and a responsibility that serves to maintain balance and harmony with the trees. If we just take, the temptation to begin to take more than we need becomes easier to succumb to; we no longer experience our relationship with the trees and forest in the same way. In this sense, my family’s lived experience over countless generations is an important source of my environmental and ecological knowledge at a philosophical, ethical, and practical level. The way I understand it, “receiving” rather than “taking” is a legal principle. In Anishinaabek law, our good relations with others are understood as a set of mutual

8  First Nations, Traditional Knowledge, and Water Ethics

151

obligations, responsibilities, and duties to the natural world, or Creation, including other orders of beings (Craft 2014). Understanding that we are receiving a gift enables “good” relations with the Aninaatig; once we take instead of receiving, we create an imbalance in the relationship, the relationship becomes unsustainable, and life is threatened. Understanding this, the Anishinaabek and other Indigenous peoples, although they could have taken more than they needed, chose not to. This was an entirely conscious decision, arrived at not because we were “too primitive” or somehow lacked the capacity to be destructive, as is often suggested, but because we had a set of legal orders that guided our conduct and ensured ethical relations with all our “relatives,” our “teachers” (other beings in Creation). This ethic of reciprocity is something I learned in a very real and practical sense from the late Grandmother Josephine Mandamin (Beedawsigaye), who was from my mother’s home community of Wikwemikong, and who, like my mother, was a residential school survivor. In Anishinaabek thought, an ethic of reciprocity (among a number of others) stands as an important principle for ensuring sustainability and harmonious relations with all of Creation (McGregor 2013). The late Grandmother Mandamin is the founder of the Great Lakes Mother Earth Walks (Mandamin 2012); she literally walked the talk. She walked thousands of kilometers, raising awareness about water on her journeys to both Indigenous and non-Indigenous communities. Her strength and commitment came from realizing her responsibilities to speak for and to take care of the waters. She offered an example of how we can act upon the ethic of reciprocity with the lands, the waters, the trees, plants, animals, and so on, a practice that has existed for thousands of years in Anishinaabek society. Josephine also explained that fasting (not consuming food or water) is something in which many Anishinaabek continue to engage, sometimes for very personal reasons, and other times for more collective purposes. She pointed out that the cultural and spiritual practice of the fast is an important way to enact reciprocity. During a fast, because we are not taking from the Earth, we are giving the Earth a break. Our fast is a gift to the Earth, a break for the Earth from humanity’s constant demand for nourishment; the fast is a chance to replenish the Earth through ceremony and prayer. Humanity is constantly demanding and taking from the Earth, offering little in return. We may on occasion try to mitigate damage to the Earth in our activities, but rarely do we actually give back to the Earth. During a fast, you are not taking anything, you’re not drinking, you’re not eating; this sacrifice is our gift back to the Earth: an act of reciprocity, acknowledgment, respect, and thankfulness.

8.3  Water Ethics The stories relayed above offer different ways of thinking about relating to water than what might generally come to mind when we in Western society think about water ethics. As Anishinaabe/Métis scholar Aimee Craft observes, “water is treated as a subject or an object, often to be owned and used” (Craft 2018: 58). Water in the international human rights discourse is a “resource” which humans must have in

152

D. McGregor

order to live. When most people think of water, they think of big and small bodies of water (lakes, streams, springs, oceans, groundwater, for example), but water comes in many forms, such as the sweet water from the Aninaatig or birth water from women. In Anishinaabek ways of understanding, water may exist in four main forms in the physical world: • Water as found in streams, rivers, oceans, lakes, bays, etc., water as we in Western society commonly think of it, and that we often strive to possess as a commodity or property • Water that comes from the sky realm (rain, snow) • Women’s water, the water of childbirth • Water that comes from all our bodies: our tears, our sweat, water that is us. The teachings vary, as Aimee Craft points out, so that water is also understood to be “fresh water, salt water, rain water and birth water” (Craft 2018: 58). Water is not seen as an isolated entity; it always exists in relation to something or someone. In the example of making ziiwaagmide, for instance, there is the integral relationship between the aninaatig, the sweet water, and the Anishinaabek. In a fast, water exists in relation to the Earth, to prayer, to ceremony. When we speak of water ethics from an Anishinaabek cultural grounding, it goes far beyond what is typically understood in Western thought. As one example, Anishinaabe cultural teacher Deb Danard writes that “the Thunderbirds … are protectors of the water that is held in the sky realm. The water is kept clean through the balance of the Thunderbirds (thunder) and the Snake (lightning). The connection between the physical water and the sky realm is made through the water ceremony” (Danard 2015: 115). Water is understood to be connected to and in relation to other beings. It is not correct to think about water ethics alone; it is always in relation to other beings.

8.4  Starting with Creation: It All Begins with Spirit As the spirit is at the center of you and me, so the spirit is at the center of everything that is of this creation. (Dumont 2006: 7)

Creation includes people, of course: our families, clans, nations, other Nations, and those yet to be born. Creation also includes other beings: birds, animals, plants, stars, and moon, for example; all are viewed as our relatives. James Dumont adds that “the very last act of Creation was to create Earth … Here in this earthy realm is that place in the whole expansive universe where, through your fingertips when you reach and touch the world, your spirit is able to experience life” (Dumont 2006: 6). Creation, Dumont explains, constantly moves toward “the creation and re-creation of life … our job as human beings, as it is with the animals, trees, and all beings within creation, is to live by that” (2006: 10).

8  First Nations, Traditional Knowledge, and Water Ethics

153

Humanity’s relationships and responsibilities within Creation are tied to the recognition that people are part of, not above or separate from, the Earth itself. As Dumont describes it, “the human person is of the earth and from the earth” (Dumont 2006: 12 [italics in original]). He adds: As humankind is a conscious and interdependent member of the Earth family, so are the creatures (as other-than-human beings) aware of and responsible to be related in a good and caring way within the family of Creation. The Earth herself is a living, breathing, conscious being, complete with heart/feeling, soul/spirit, and physical/organic life, as it is with all the relatives of Creation. (Dumont 2006: 12)

In the context of this discussion of environmental sustainability and traditional knowledge, the Anishinaabek understanding of ourselves as of the earth and from the Earth helps us to recognize what our responsibilities are to ensure that Creation continues. As Dumont has so eloquently pointed out, the Anishinaabek concept of environmental sustainability is much broader than the dominant Western one: it includes the physical/natural world, but also the spiritual realm, with a philosophical understanding that we, along with all other beings in Creation, have a responsibility for life. Central to our conception of environmental sustainability are ideas of responsibility and relationships. Creation stories instruct us on our duties and responsibilities to other beings, entities, and elements within Creation. For thousands of years, the Anishinaabek have generated and passed on knowledge resulting in sustainable relationships with all of Creation. From Creation stories, we learn how to establish, maintain, and help our relationships with all beings in Creation and with Creation itself to flourish. From the Creation and Creation stories comes our knowledge. What are those protocols and how are you supposed to relate properly to other beings in Creation? What are the ethical ways? Our instructions provide guidance for how to work in coexistence with other beings. It has only been over the last 30 or 40 years that the emerging field of traditional knowledge (TK) – also known as Indigenous knowledge (IK) or traditional ecological knowledge (TEK) – has gained headway in being recognized internationally as having potential for helping to achieve sustainable development (McGregor 2014; Nakashima 2010). TK is now mentioned, for example, in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which highlights the importance of “recognizing that respect for Indigenous knowledge, culture and traditional practices contributes to sustainable and equitable development and proper management of resources” (UNGA 2007). TK is mentioned in other major international commitments, such as the United Nations Convention on Biological Diversity and Agenda 21, agreements that flowed from the United Nations Conference on Environment and Development, or Earth Summit, in Rio de Janeiro in 1992. In comparison to the thousands of years over which Indigenous peoples have generated TK in order to maintain sustainable relationships with Creation, the field of TK in the international arena is very recent. Many Anishinaabek refer to this knowledge as Anishinaabe-gikendaasowin (Geniusz 2009). Anishinaabe-­ gikendaasowin helps us to achieve a good life, or Mnaamodzawin, what Elder

154

D. McGregor

Cecile King refers to as “the art of living well” (King 2013: 10). Mnaamodzawin involves living on respectful and reciprocal terms with all of Creation on multiple planes (spiritual, intellectual, emotional, and physical) and scales (family, clan, nation, and universe) (Manitowabi and Marr 2014). Anishinaabe-gikendaasowin has existed for thousands of years; what is new is the interest by others who would like to access it (McGregor 2013). Indigenous sustainable or environmental knowledge has been used by Indigenous peoples to sustain their communities, territories, and Nations since time immemorial.

8.5  Traditional Knowledge and Water Water is life. Elder Anne Wilson (McGregor and Whitaker 2001a)

Elders, TK holders, and practitioners have consistently stated over time that water is regarded as sacred and has life force (LaValley 2006). Water as a living entity possesses agency, and like people, has duties and responsibilities to fulfill (McGregor and Whitaker 2001b). I began my research in this area when the Chiefs of Ontario invited me to prepare a research report on traditional knowledge and water. I was asked to speak to Elders and TK holders from across the province to gain their perspectives on water. I was asked to do this work as part of a contribution that Chiefs of Ontario was preparing for the Walkerton Commission, which would include a First Nations perspective. The Walkerton Commission was established after a tragedy took place in 2000  in Canada, where contaminated water in the Walkerton municipal supply killed seven people and made over 2000 others severely ill (O’Connor 2002). While this tragedy was unusual in that it affected non-Indigenous people in a southwestern Ontario municipality, living with poor water quality is a fact of life in many First Nation communities across Canada (Phare 2011). The Walkerton Commission brought national attention to the fact that there’s something wrong with the current system of water governance and the way we are managing water. My role was to prepare the traditional knowledge piece for the Chiefs of Ontario’s submission to the Walkerton Inquiry (Kamanga et al. 2001). To learn about the role of TK in water governance, I talked to and listened to what Elders, TK holders, Grandfathers, and Grandmothers from all over Ontario were saying. Ontario has a diversity of Indigenous nations and is geographically diverse, yet I found a high degree of consistency in terms of how First Nations understand their relationships and responsibilities to waters. Without exception, water is associated with life itself – it is essential for living beings. Water has always been, and continues to be, recognized as a life-giving force; threats to water are threats to life itself. Other water-related initiatives followed that facilitated continued engagement with Elders, Grandmothers, Grandfathers, TK holders, and more. Some key observations shared over time included the following:

8  First Nations, Traditional Knowledge, and Water Ethics

155

Water is sacred. Water is regarded as sacred and is often used in ceremonies. It is a powerful medicine and must be respected as such. It has life-giving properties. We need to water to live. “Water is life” is a common sentiment expressed among many through traditional teachings. Water is a relative. Not only is water alive and infused with spirit, it is a relative. In one workshop, an Elder referred to water as “my little brother,” and scolded participants for speaking about water as if it were a thing. One speaks to water as one would a relative, with caring and compassion. Water is not a commodity to be bought and sold. It is to be revered and treated with respect and dignity. Water is part of a holistic system, a part of Creation. Water is not a single, discrete aspect of the environment; it is part of a greater interconnected whole. When one considers water, therefore, one must consider all that to which water is connected and related. Elders found current government initiatives around water to be limited and short-sighted. When one considers water, one must consider all that water supports and all that supports water. Therefore, a focus on just drinking water is misguided. It is not in keeping with traditional principles of holism and the interdependence of all living things. One must also consider, for example, the plants that water nourishes, the fish that live in water, the medicines that grow in or around water, and the animals that drink water. Water is key to survival. Water is critical for the spiritual, emotional, physical, and intellectual life of Indigenous peoples. Water fulfills many functions for continued life on Earth. The role of water in life must be recognized. Therefore, it is not appropriate to deprive others (including other beings of Creation, such as fish, plants, and land animals) of water by hoarding water for oneself. Appropriate use of water is about proper relationships. From a traditional perspective, one does not really use water. One speaks to and seeks permission from water to draw on its life-giving properties. One does not seek to treat water as a commodity, but should find an appropriate relationship with water based on respect and the recognition that water is a living spiritual force. Water is regarded as a gift. In traditional teachings and values, there are protocols to ensure that proper relationships with water are maintained so that water in turn is able to fulfill its responsibilities. Water must be treated with an ethic of thanksgiving. Water is critical to the survival of all life on Earth. For this, Indigenous peoples are most thankful for water’s existence. There are protocols and ceremonies for giving thanks to water and for establishing and maintaining a spiritual connection to

156

D. McGregor

water. A central component of the Haudenosaunee Thanksgiving Address involves giving thanks to the waters. In Indigenous cultures, water is not taken for granted: its life-giving qualities are routinely recognized and honored. People have specific responsibilities to protect water. People are taught that they have an obligation, a responsibility, to care for water. Work with Elders over the years has also revealed that women in particular are considered to have specific responsibilities in relation to water (Lavalley 2006; McGregor 2015). This means that consideration must be given to the gender of decision makers, especially with respect to women. Knowledge regarding water must be shared. There was a strong sentiment that Indigenous peoples’ unique views and values in relation to water must be shared with non-Indigenous society. It was conveyed that current mainstream processes for protecting water are misguided, limited, and too dependent on the compartmentalized approach of Western science and technology. Elders feel that traditional teachings around water would benefit the broader community, so non-Indigenous people can also learn to develop proper relationships with water. Women have a central role. Everyone has a responsibility to care for the water. Women, however, carry the responsibility to talk for the water. Elder Ann Wilson (McGregor and Whitaker 2001a)

The recognition of women’s role in creating life along with water means that women and water have a special bond. This bond is often expressed in ceremonies, where the role of Anishinaabe-kwe is to speak for the water: In the water ceremony we make an offering to water, to acknowledge its life-giving forces and to pay respect. We have a responsibility to take care of the water and this ceremony reminds us to do it. Women bring forth life, the life of the people. Water brings forth life also, and we have a special role to play in this responsibility that we share with water. (Akii Kwe, in McGregor and Whitaker 2001b)

Language retention is critical. Another common theme that emerged over time is the importance of language. Reclaiming language and renaming the waters with their proper names (rather than the newcomers’ names) is important in helping the waters heal. Grandmother Josephine Mandamin, in a Great Lakes water workshop in the summer of 2010, said, “Learning the proper names and stories for particular places relating to water will also help Anishinaabe people heal as people” (Mandamin 2012). In summary, Elders reiterated over time the need for a traditional knowledge perspective in relation to understanding water. However, TK must not be merely appropriated for the benefit of others: it must benefit the water as well. Elders also emphasized that the rights and responsibilities of water must be respected. Most current discourse (including Indigenous) focuses on rights to water, rather than rights of water. Water has as much right to live and fulfill its

8  First Nations, Traditional Knowledge, and Water Ethics

157

responsibilities as we do. Furthermore, all waters need to be protected, not just water for drinking. There is a need to heal all of the waters, not solely to make them safe for human consumption. Another key message relayed to me was that protecting water is not a new concern for First Nations people. First Nations have always been aware of the importance of water and have always been concerned with the kinds of decisions being made by various governments that impact the waters in negative ways. Elders and TK holders also pointed out that traditional knowledge is not recognized or considered by decision makers. They felt that TK should be part of any decision regarding water. Water legislation in Canada is very much focused on the protection of drinking water – for good reason. The Walkerton tragedy was a reminder that water must be safe for people to drink. This is important to First Nations as well, because as noted earlier, many First Nation communities still do not have access to clean drinking water (Harden and Levalliant 2008; Lukawiecki 2018). However, a focus on drinking water only is limited. Because of First Nations’ cultural and spiritual beliefs about water, all the waters are regarded as important, not just those used for drinking. Water is important in ceremonies, and aquatic life (plants, fish, etc.) and wildlife need water to survive as well. This is reflected in the Chiefs of Ontario’s Anishinabek, Muskegowuk & Onkwehonwe Water Declaration, where all waters are regarded as important and deserve respect, acknowledgment, and protection (Chiefs of Ontario 2008). As with other issues, First Nations struggle with getting their voices heard in broader environmental and legal governance processes in Canada (Walkem 2007). This situation is not unique to Canada; Indigenous peoples in international fora have had similar experiences (Corpuz 2006). Nevertheless, Indigenous peoples have been engaged in water dialogue at the international level as well, although exclusion from decision-making processes still characterizes these interactions (Boelens et al. 2006). There are numerous different international Indigenous declarations specifically relating to water. For example, the Indigenous Peoples Kyoto Water Declaration, from the Third World Water Forum in Kyoto, Japan, in 2003, states that “We, the Indigenous Peoples from all parts of the world assembled here, reaffirm our relationship to Mother Earth and responsibilities to future generations to raise our voices and solidarity to speak for the protection of water” (Indigenous Peoples Kyoto Water Declaration 2003: 1). The Tlatokan Atlahuak Declaration (2006), from the fourth World Water Forum, states: 4. We reaffirm the same Declaration to honor and respect water as a sacred being that sustains all life. Our traditional knowledge, laws and forms of life teach us to be responsible and caring for this sacred gift that connects all life. 5. We reaffirm that the relationship we have with our lands, territories and water constitute the physical, cultural and spiritual basis of our existence. The relationship with our Mother Earth obligates us to conserve our fresh water and seas for the survival of present and future generations. We assume our roles as guardians, with rights and responsibilities that defend and guarantee the protection, availability and purity of water. We unite to respect and implement our traditional knowledge and laws, and to exercise our right of self-determination to preserve water and life. (art. 4-5)

158

D. McGregor

The Garma International Indigenous Water Declaration, a result of a convening of Indigenous peoples in Australia, states, “Indigenous Peoples have responsibilities and obligations in accordance with their Indigenous Laws, Traditions, Protocols and Customs to protect, conserve and maintain the environment and ecosystems in their natural state so as to ensure the sustainability of the whole environment” (2008: 1). These international Indigenous water declarations offer a counter-narrative to the “water as subject/object, resource/property/commodity” discourse found in other international fora. Indigenous water declarations point to responsibilities and obligations to water (as a living entity) and to future generations. The declarations also point out that Indigenous peoples have their own laws that for countless generations have guided appropriate and ethical relationships with water. In 1993, the United Nations General Assembly designated March 22 as World Water Day. Indigenous peoples have built upon this initiative and now celebrate their own world water day that emphasizes culture, spirituality, responsibilities, and sustainable relationships to water. In response to the growing international recognition of a looming water crisis, in 2010 the UN adopted Resolution 64/292: Human Right to Water and Sanitation (UNGA 2010), intended to guarantee that water and sanitation are available, accessible, safe, and affordable for all people, without discrimination. Again, this approach reinforces the binary separation between water and humans. It advocates for the human right to water. The Government of Canada’s approach, noted earlier, through various strategies, protocols, and assessments, represents a very limited approach to addressing the water crisis in First Nation communities. The proposed “solutions” are highly technical and scientific and do not consider TK at all in their current approach. Traditional knowledge, the concerns of women, and other cultural perspectives are conspicuously absent. They are not dealing with traditional knowledge; instead, they are only looking specifically at the technical and scientific aspects of trying to solve the water crisis situation in First Nation communities. In contrast, First Nations initiatives focus on traditional knowledge, embracing responsibilities and rights to protect the waters (Chiefs of Ontario 2008).

8.6  The Indigenous Response First Nations have not been idle; they have responded with their own strategies and approaches for dealing with water-related challenges in their communities based on their own water ethics. First Nations recognize (and remember) that government “solutions” for addressing First Nation “problems” have failed time and time again, over centuries (RCAP 1996). Many international Indigenous declarations, such as UNDRIP, focus on rights, with good reason. However, there is another element of equal importance to Indigenous peoples: responsibilities. Such responsibilities are outlined in the Chiefs of Ontario’s Anishinabek, Mushkegowuk and Onkwehonwe Water Declaration and point to respectful and reciprocal relationships with the

8  First Nations, Traditional Knowledge, and Water Ethics

159

waters. What comes through very clearly in the many water-specific declarations by Indigenous peoples is a real ethic of responsibility. A wonderful example of realizing these responsibilities is found in the Great Lakes Mother Earth Water Walks led by the late Grandmother Josephine Mandamin, discussed earlier. Grandmother Mandamin was not politically motivated per se, but was inspired to raise awareness about the importance of water and encourage Indigenous and non-Indigenous peoples alike to “take care of the waters” (Mandamin 2012). Grandmother Josephine did not wait for government permission, or an Act, or funding, or some new strategy to protect the waters: she just started on her walks, exercising her responsibilities to care for water. She has inspired many other communities to take up their responsibilities, and as a result, grassroots water walks have sprung up in many locations across First Nations territory. Grandmother Mandamin spoke of each one of the Great Lakes as having its own personality. Each lake has its own being; she got to know each one because she walked around all of them. Water is the lifeblood of Mother Earth, so for each of us, water was the environment we lived in before we were born. When we are born, water flows before us, and these waters need protecting. The government response is just to protect drinking water, not all waters. Due to colonial forces, we have to reeducate ourselves, recreating awareness of our responsibilities to all waters. Grandmother Josephine Mandamin is living traditional knowledge.

8.7  Water Governs Us Deb Danard writes that we have it all wrong when it comes to water governance, or, more appropriately from a First Nations TK point of view, “how we take care of water.” People think we can govern water. In fact, the way people are “governing” water (or think they are) has resulted in a global water crisis (UNWWAP 2015). Danard argues that water governance must occur from the perspective of water or be led by water. She writes beautifully of this idea: The concept of a governance structure by the water for the water may sound impossible. However, it is within this impossibility that there is possibility. Water will continue to demonstrate its creative and destructive form, doing the work that the water was instructed to follow since the beginning of Creation, nourish life. As human beings connecting to the water inside and outside of us, we begin to understand that governance from [the] perspective of water. In the spirit of decolonizing thought, when we connect to water we understand the desire of water to fulfil its teaching to nourish life and our desire as human beings to continue to exist from the blessing of water’s generous gift. As with any gift, we are indebted to the water and should attempt to “repay” that debt with love and gratitude. Continued attempts to rigidly and systemically control the power of water demonstrates the limitations of man-made governance as being a centric belief of man in domination over natural laws. (2015: 119)

The notion of water governance expressed above is reflected in the Ontario Indigenous Women’s Water Commission (OIWWC) Water Rights Tool Kit. Like

160

D. McGregor

Danard’s remarks, the OIWWC tool kit is based on traditional knowledge. The purpose of the tool kit is to provide Aboriginal1 women with the tools they may require to ensure that their issues regarding water rights and water safety are being addressed at the community and governmental levels. This toolkit supports the needs of Aboriginal women to effectively participate in decision-making processes around water, recognizing the unique relationship that Aboriginal women share with the water.

The specific goals of the tool kit are as follows: Provide Aboriginal women with information on how to proactively become involved in environmental advocacy; Support Aboriginal women in their efforts to assert their traditional roles as the keepers of the water; Unite Aboriginal women to help promote the sustainability of our waters; Foster community-awareness regarding the importance of caring for our water and honouring our cultural responsibilities to the water. (ONWA 2014: 2)

In the tool kit, traditional teachings and ceremonies are offered as “empowerment tools” that can guide action. An important aspect of the tool kit is the acknowledgment of colonialism and how its historical and ongoing forms have undermined the value of Indigenous women and their responsibilities. It also advocates that the best way to assert water rights is to embrace the responsibilities to water and to “Honour the water through engaging cultural ceremony, participating in water walks, educating our children/youth in regards to the importance of respecting and conserving the water” (ONWA 2014: 13). The tool kit emphasizes spiritual relationships with water and encourages ceremony, prayer, and song. It concludes with encouraging people to learn the nibi/water song. Conventional approaches to water security and ethics rely on the materiality of water, but “‘non-material’ dimensions of water security including emotional, affective, relational and spiritual relationships to water need to be considered alongside material dimensions such as water access, quality and use” (Wilson et al. 2019). It is more about “fostering a wider set of hydro-social relations to promote well-­ being” (Wilson et al. 2019). In fact, Indigenous peoples point to historical and settler colonialism as the main threat to ethical relations with the waters. Settler laws and various forms of colonialism, such as residential schools, sought to alienate Indigenous peoples from their lands and are based on the dominance of an external power (Chiblow 2019). Wilson et al. write: Thus, settler colonialism impacts water security not only through initiating material loss (e.g., the impacts of resources development on water quality), but also has political onto1  Since the adoption of the United Nations Declaration on the Rights of Indigenous Peoples, the term “Aboriginal peoples” (the constitutional and legal definition referring to the original peoples of Turtle Island) has been replaced with “Indigenous peoples.” In the tool kit, “Aboriginal peoples” is used to emphasize the rights recognized in the Canadian Constitution.

8  First Nations, Traditional Knowledge, and Water Ethics

161

logical implications (e.g., the imposition of systems of governance based on settler ­understandings of water as a resource rather than as a living relation impacts the socialsociocultural and spiritual connections with water). (2019: 4)

What is required, as international and regional Indigenous water declarations point out, is the serious engagement of a different set of legal orders, knowledge systems, and governance approaches that focus on a set of reciprocal responsibilities and obligations to water relations (Chiblow 2019; Craft 2018; McGregor 2014).2

8.8  Conclusion In this chapter, I have offered insights into how concepts of Anishinaabek gikendaasowin are critically important in relation to water ethics that can in turn inform alternative approaches to water relations. Water is a living spiritual being with its own responsibilities to fulfill. As Anishinaabek strive to address the challenges we face in relation to the water in our communities, we must go beyond the “techno-­ fix” advocated by governments and others (Longboat 2015). We must acknowledge that perhaps humans have no business trying to govern water, but that we should aim to respect, co-exist with, and honour water instead. First Nations water ethics points to a very different way of relating to water, including more fully understanding how water in turn relates to other entities. Reliance on science and technology has not adequately addressed the global water crisis. These solutions tend to be short-sighted and do not deal with the root of the problem. There are no quick-and-ready answers for the challenges that lie ahead. Meeting these challenges will take innovation and a complete turnaround in terms of how we think about and relate to water, including what we even understand water to be. Water must be considered in a holistic fashion, including recognizing how it relates to the other aspects of Creation and the role that people have played in producing the current water crisis. While the tools of science, applied appropriately, can aid us in finding real solutions, we must turn as well to the traditions and knowledge that did not fail us for thousands of years. While we are indeed facing new challenges, these traditions are as viable as they have always been. Just as the Aninaatig continues to fulfill its life-giving responsibilities despite all odds, so must we. There is much that we can learn from water itself.

2  I choose not to get into reconciliation in this discussion, as it would change the orientation of this chapter.

162

D. McGregor

References Benton-Banai E (2008) Anishinabe almanac: living through the seasons. Indian Country Communications, Hayward Boelens A, Chiba M, Nakashima D (eds) (2006) Water and indigenous peoples, Knowledges of nature 2. UNESCO, Paris Chiblow S (2019) Anishinabek women’s nibi giikendaaswin (water knowledge). Water 11(2):209 Chiefs of Ontario (2008) Water Declaration of Anishinabek, Mushkegowuk and Onkwehonwe in Ontario. Chiefs of Ontario, Toronto. http://www.coo.org Corpuz V (2006) Indigenous peoples and international debates on water: reflections and challenges. In: Boelens R, Chiba M, Nakashima D (eds) Water and indigenous peoples, Knowledges of nature 2. UNESCO, Paris, pp 24–35 Craft A (2014) Anishinaabe Nibi Inaakonigewin report: reflecting the water laws research gathering. University of Manitoba Human Rights Research (CHRR) and the Public Interest Law Centre (PILC), Winnipeg. http://static1.squarespace.com/static/54ade7ebe4b07588aa079c94/ t/54ec082ee4b01dbc251c6069/1424754734413/Anissinaabe-Water-Law.pdf Craft A (2018) Navigating our ongoing sacred legal relationship with nibi (water). In: UNDRIP implementation: more reflections on the braiding of international, domestic and Indigenous laws. Centre for International Governance Innovation & Native Law Center, Waterloo Danard D (2015) Be the water: women and water. Can Woman Stud/Les cahiers de la femme 30(2/3):115–120 Dumont J (2006) Indigenous intelligence. Inaugural J.  W. E.  Newberry Lecture. University of Sudbury, Sudbury Garma International Indigenous Water Declaration (2008). https://www.afn.ca/uploads/files/env/ garma-international.pdf. Accessed 30 Mar 2020 Geniusz W (2009) Our knowledge is not primitive: decolonizing botanical Anishinaabe teaching. Syracuse University Press, Syracuse Harden A, Levalliant H (2008) Boiling point! Six community profiles of the water crisis facing First Nations within Canada. Polaris Institute, Ottawa Indigenous Peoples Kyoto Water Declaration (2003) Third World Water forum. Kyoto, Japan, March. http://www.waterculture.org/uploads/IPKyotoWaterDeclarationFINAL.pdf. Accessed 30 Mar 2020 Kamanga D, Kahn J, McGregor D, Sherry M, Thornton A (2001) Drinking water in Ontario First Nation communities: present challenges and future directions for on-reserve water treatment in the Province of Ontario. Submission to Part 2 of the Walkerton Inquiry Commission. Chiefs of Ontario, Toronto King C (2013) Balancing two worlds: Jean-Baptiste Assiginack and the Odawa Nation 1768–1866. Saskatoon Fastprint, Saskatoon Lavalley G (2006) Aboriginal traditional knowledge and source water protection: First Nations’ views on taking care of water. Chiefs of Ontario, Toronto Longboat S (2015–2016) First Nations water security: security through Mother Earth. Women and water. Can Woman Stud/les cahiers de la femme 30(2/3): 6–13. Lukawiecki J (2018) Reconciling promises and reality: clean drinking water for First Nations. David Suzuki Foundation, Vancouver Mandamin J (2012) N’guh izhi chigaye, nibi onji: i will do it for the water. In: Corbiere A, McGregor D, Migwans C (eds) Anishinaabewin Niizh: culture movements, critical moments. Ojibwe Cultural Foundation, McChigeeng, pp 12–23 Manitowabi D, Marr M (2014) The impact of socio-economic interventions in Anishinaabeg health and well being. In: Corbiere A, Corbiere MA, McGregor D, Migwans C (eds) Anishinaababewn Niwin: four rising winds. Ojibway Cultural Foundation, M’Chigeeng, pp 115–130 McGregor D (2013) Anishinaabe environmental knowledge. In: Kulnieks A, Longboat D, Young K (eds) Contemporary studies in environmental and indigenous pedagogies: a curricula of stories and place. Sense Publishers, Rotterdam, pp 77–88

8  First Nations, Traditional Knowledge, and Water Ethics

163

McGregor D (2014) Indigenous knowledge. In: Rowe D (ed) Achieving sustainability: visions, principles, and practices, vol 2. Cengage Publishing/Macmillan Reference USA, Boston, pp 471–474 McGregor D (2015) Indigenous women, water justice and zaagidowin (love). Women and water. Can Woman Stud/les cahiers de la femme 30(2/3):71–78 McGregor D, Whitaker S (2001a) Water quality in the province of Ontario: an aboriginal knowledge perspective. Report prepared for Chiefs of Ontario (COO), Toronto McGregor D, Whitaker S (2001b) Linking traditional knowledge and SOLEC.  Report two: the experience of First Nations participants at SOLEC 2000. Prepared for Chiefs of Ontario and Environment Canada–Ontario Region, Toronto, ON Nakashima D (ed) (2010) Indigenous knowledge in global politics and practice for education. Science and culture. UNESCO, Paris O’Connor D (2002) First Nations. In: Part two – report of the Walkerton inquiry: a strategy for safe drinking water. Queen’s Printer for Ontario, Toronto, pp 485–497 Ontario Native Women’s Association (ONWA) (2014) Ontario Indigenous Women’s Water Commission (OIWWC) water rights tool kit. Ontario Native Women’s Association, Thunder Bay Phare ME (2011) Restoring the lifeBlood: water, opportunities and opportunities for change: background report. Walter and Duncan Gordon Foundation, Toronto. http://www.gordonfoundation.ca Royal Commission on Aboriginal Peoples (RCAP) (1996) Lands and resources. In: Report of the royal commission on aboriginal peoples, Vol. 2: Restructuring the relationship. Canada Communication Group – Publishing, Ottawa Tlatokan Atlahuak Declaration (2006) Fourth world water forum. http://internationalfunders.org/ images2/IndigenousDeclaration.pdf. Accessed 20 Mar 2020 United Nations General Assembly (UNGA) (2007) United Nations declaration on the rights of indigenous peoples. http://www.dd-rd.ca/site/_PDF/un/A_61_L67eng.pdf. Accessed 30 Mar 2020 United Nations General Assembly (UNGA) (2010) Human right to water and sanitation. Resolution 64/292. http://www.onwa.ca/upload/documents/un-water-as-a-human-right.pdf. Accessed 30 Mar 2020 United Nations World Water Assessment Programme (UNWWAP) (2015) The United Nations World Water Development Report 2015: Water for a sustainable world. UNESCO, Paris. http:// www.unesco.org/new/en/natural-sciences/environment/water/wwap/wwdr/2015-water-for-asustainable-world ww.unesco.org/new/en/natural. Accessed 30 Mar 2020 Walkem A (2007) The land is dry: indigenous people, water, and environmental justice. In: Bakker K (ed) Eau Canada: the future of Canada’s water. UBC Press, Vancouver, pp 303–319 Wilson NJ, Harris LM, Joseph-Rear A, Beaumont J, Satterfield T (2019) Water is medicine: reimagining water security through Tr’ondëk Hwëch’in relationships to treated and traditional water sources in Yukon, Canada. Water 11(3):624

Chapter 9

Water Ethics in the Middle East Ilmas Futehally

Abstract  Currently, a significant deficit in international water discourse is the absence of a universally accepted ethical framework. The lack of such a framework is particularly evident in a complex region such as the Middle East, from Egypt and Sudan in the west to Iran and Iraq in the east. Such a deficit can also be observed in other parts of the world, but this chapter will primarily examine the issue in the context of the vast region from the lower Nile basin to the eastern reaches of the Tigris basin. In the current discourse on water ethics, two UN conventions and some regional conventions attempt to embody the principles of ethical water governance in the transboundary water context. There are suggestions made by think -tanks for ethical water governance in primarily the domestic context, with a focus mainly on transparency, accountability, and integrity. However, we have to bear in mind that ethics has a much greater scope than elements of some of the principles embodied in the UN and regional conventions or the international water law in its broader application. The mere absence of corruption or presence of transparent and accountable governance is not ethics. It is only a partial and inadequate manifestation of ethics. A comprehensive and realistic ethical framework will mostly be applicable at the global, regional (trans-boundary), national, and local level. It must be as applicable in times of conflict, famine and drought as in times of normalcy. Keywords  Ethical framework for water · Transboundary water resources · Middle East and North Africa region · Water and violence

I. Futehally (*) Strategic Foresight Group, Mumbai, India e-mail: [email protected] © Springer Nature Switzerland AG 2021 I. L. Stefanovic, Z. Adeel (eds.), Ethical Water Stewardship, Water Security in a New World, https://doi.org/10.1007/978-3-030-49540-4_9

165

166

I. Futehally

9.1  Global Commons The Water Ethics Network brought together diverse stakeholders to develop a Water Ethics Charter, the purpose of which was to serve as a tool to guide morally based decision making for water management (Water Ethics Network 2015). The latest version of the Charter, as of 2015, approaches water ethics through five themes: environmental issues, economic issues, social principles, cultural and spiritual principles, and principles of water governance. The Charter then identifies moral principles underlying each theme. It is based on the general principle of recognizing water as a global commons: that is, water as a common resource and people around the world having a responsibility toward its protection and management. Put differently, whether a country is directly dependent on a water source or not, all countries have a moral obligation to preserve and protect water resources  (Water Ethics Network 2015). In the first-ever session on Water, Peace and Security convened by the United Nations Security Council on 22 November 2016, the Strategic Foresight Group appealed to the international community to declare water a “strategic resource of humanity” (UNDPI 2016). The consideration of water resources as a global commons or a strategic resource of humanity is essentially a moral question. It is most pertinent in the Middle East (see Fig.  9.1 for a depiction of the region) (Maddocks et  al. 2015; Engelke and Passell 2017). Modern human civilization was born in the basins of the Nile, Jordan, Tigris, and Euphrates rivers. This is where the first communities came into existence 8000–10,000 years ago. This is also where the first states were constructed about 5000 years ago. The evolution of human civilization and its organization through communities and states originally took place on account of the availability of water from springs, rivers, and lakes of the modern-day Middle East and North Africa (MENA). Later, the rivers in Asia, Latin America, and elsewhere gave birth to communities and societies in those parts of the world. The Nile, Jordan, and Euphrates-Tigris rivers, as well as the aquifers and springs of Israel and Palestinian territories, are cradles of human civilizations. In terms of international law, modern states outside of the countries in the region do not have legal obligations or rights over water resources in the MENA region (Strategic Foresight Group 2015a). In terms of ethical obligations of humanity, the international community at large needs to be concerned about the status of water resources in the basins that gave birth to modern human civilization. The responsibility of the international community to preserving the water resources in the Middle East is a test case for the fine difference between international water law and international water morality. While international water law may derive from the ethical principles that should govern international water relations, it may not be adequate to explain the rights and obligations of humanity that extend beyond the rationality of legal principles.

9  Water Ethics in the Middle East

Lebanon

167

Syria

Israel Palestine Jordan

Iraq

Iran Kuwait

Egypt

Qatar Saudi Arabia

UAE Oman

Sudan

Yemen

Fig. 9.1  Delineation of the Middle East region, as used in this chapter

The 2016 Budapest Water Summit declared water to be an absolute, ethical imperative and a critical global issue: While water is managed at a local, basin and regional level, it is a global issue because its ramifications are global  – interconnected through the planetary water cycle and global economy  – and is now a strategic resource worldwide. Water, through the hydrological cycle and global value chains, embedded in agricultural and other traded goods, utilized in mining and industry for producing global commodities and products, is essential for energy production. Mitigation cannot and is no longer managed alone within local political and/or market boundaries. Policies and crises on one side of the world can impact water resources all over the globe. Because a water crisis is a global challenge, a global response is needed. (Budapest Water Summit 2016)

The movement toward recognition of water as a critical global resource has thus begun with the historical UN Security Council Open Session on Water, Peace and Security and the final declaration of the Budapest Water Summit, both held in November 2016 (Budapest Water Summit 2016; UNDPI 2016). The river basins and aquifers of the MENA region, being the birthplace of human civilization, are the most appropriate places for global society to reaffirm its ethical commitment to the global nature of the water issue.

168

I. Futehally

9.2  Water Ethics Charter for MENA Considering that most water resources in the MENA region are trans-boundary, it is necessary to have an ethical framework for the region that underpins the shared responsibility. Some countries in the region have national laws that declare water as a territorial resource to be managed as per the principle of national sovereignty. Therefore, one of the sharpest contests between law and ethics can be witnessed in the region (Strategic Foresight Group 2011, 2015a). What is legally correct in the context of national laws may not be in harmony with international conventions. What is compliant with the international law may not be always and necessarily adequate for the treatment of water resources with an ethical imperative. Therefore, it is necessary for the civil society in the region to agree on a Water Charter based on ethical principles. Such a charter may draw from the Principle of Cooperation adopted at the High Level Forum on Blue Peace in the Middle East, held in Istanbul in September 2013. These principles include the following: 1. Water resources should be accepted as a common and shared responsibility. 3. Benefit sharing approach should be promoted through cooperation to achieve water, food and energy security. 5. Each country should manage water resources efficiently. 6. Water should not be used as an instrument of war and water resources should be protected from terrorist activities and violent actions. 7. Sustainable water management should particularly address the situation of vulnerable communities. (Strategic Foresight Group 2015b) It should be possible for civil society to develop a comprehensive, regional water ethics charter combining principles of cooperation enunciated by the High Level Forum of Blue Peace in the Middle East, with principles embodied in the Water Ethics Charter and the key messages of the Budapest Water Summit. Such a charter should at a minimum recognize the global nature of water resources, the role of the region’s watercourses in the foundation of human civilization, the role of water governance and the importance of a participatory approach, the importance of transboundary cooperation, and the ethical obligation of humanity, regional states, and civil society to prevent water being used as a target of violence or a weapon of war.

9.3  Water and Violence The UN Security Council session on Water, Peace and Security, held within the framework of the Security Council Meeting 7818 of 22 November 2016, emphasized the need to prevent water and water installations being used as a target or instrument of warfare (UNDPI 2016). The Security Council Resolution 2341 of 13

9  Water Ethics in the Middle East

169

February 2017, calling for international cooperation to protect critical infrastructure from terrorist attacks, particularly named water supply systems (UNSC 2017). The application of the sentiment expressed in the UN Security Council meeting 7818 and resolution 2341 is most relevant to the MENA region. This application should be viewed in the context of the fine difference between law and ethics. Water installations in the region have been used as a target or weapon of war by terrorist groups in the Euphrates-Tigris basin, particularly from 2012 to 2017 (Strategic Foresight Group 2014b). In the strict legal sense, responsibility for the protection of these assets lies with the state authorities of countries in the region. However, considering that Iraq and Syria, where many incidents of abuse of water installations took place, had weak and unstable state structures during the period, and given that an internationally outlawed organization  called Islamic State in Iraq and Syria (ISIS, also locally known as Daesh) engaged in extreme forms of violence and took possession of the water installations by force with a view to harm populations, the international community assumed an ethical responsibility to free the water installations from the control of ISIS (Strategic Foresight Group 2014b). The actions of ISIS during the aforementioned period include the capture of the Mosul dam, Fallujah dam, Tishrin dam, Samarrah barrage, and Tabqa (Euphrates) dam. During the period of capture, ISIS deliberately opened or closed the gates of these facilities to flood or starve downstream populations. ISIS could not retain control of these assets for more than several weeks, except in the case of the Tabqa dam, which is discussed elsewhere in this paper. There were also incidents of the capture of water installations by other terrorist groups. PKK was involved in attacks on the Silvan dam and in blocking access for Turkish engineers to the Cizre monitoring stations in the border area of Turkey and Iraq. There were reports of water poisoning in Aleppo, Deir Ez Zor, Rakka, and Idlib in Syria in 2013, with no clarity about who was responsible for these acts (Krzymowski 2020). When water is treated as a target of violent conflicts, there is a deliberate effort to • damage water and sanitation infrastructure such as natural or manmade water bodies, dams, water treatment plants, supply networks, sewage networks, and pipelines; • damage supplementary infrastructure such as hydropower plants, electricity cables connected to any water-related activity, roads, bridges, infrastructure in proximity of natural or manmade water bodies; • contaminate water using chemicals, bacteria, or other harmful substance; and, • drain natural and manmade water bodies by cutting off water supply to those bodies, or filling them up with soil, rocks, cement, or other material (Strategic Foresight Group 2014b). When water is used as an instrument of violence, there is a deliberate effort to • harm civilians by flooding towns, cutting off water supply to communities, polluting or drying up water bodies, and terminating hydropower supply; 

170

I. Futehally

• ruin the economy by disrupting supplies to agricultural and industrial areas, flooding farms and industrial areas, overexploitation and destruction of water infrastructure; and, • harm political opponents by flooding or drying up key opponent settlements, poisoning their water supplies, destroying their water infrastructure, imposing sanctions (Strategic Foresight Group 2014b). In either case, • Destroying water also impacts the environment and those dependent on it, while using it as a weapon against a specific target adversely impacts the water resource/ infrastructure in the long run. • Using water in a violent conflict has a multiplier impact across regions, sectors, and populations, causing large-scale collateral damage. (Strategic Foresight Group 2014b) The case of the Tabqa dam presents a major ethical challenge to the international community (Krzymowski 2020). The dam, located on the Euphrates River in Syria, is considered one of the largest dams in the Levant region. ISIS captured it in 2014 and used it as a shelter for its leadership and high-value prisoners, knowing that the international coalition opposed to it would not be able to bomb the dam for fear of flooding a large part of Syria. The terrorist group also set up its tax office in the dam. It had control of the dam’s hydro-electric generation plant and sold electricity to the Assad regime, its enemy, in what is known as a dirty deal. Within a month of the passage of UNSC Resolution 2341, the international coalition airlifted combatants belonging to the Syrian Defence Army to surround ISIS combatants managing the dam and was able to evict ISIS from the dam by May 2017. The Syrian Defence Forces primarily include YPG, a group labelled by Turkey as a terrorist group. After ISIS lost control of the Tabqa dam, YPG took charge, with full support of the international coalition. This is an ethical challenge. On the one hand, it is ethically incorrect not to free the dam from the control of ISIS, while it is equally incorrect to let another alleged terrorist group take control of such an asset. Arguably, it is also unethical for the international coalition to manage the dam without formal authorization by the United Nations until the status of Syria’s sovereignty is established (Krzymowski 2020). While some of the options may be justified on political or even legal grounds, they cannot be justified on moral and ethical grounds.

9.4  Agreements and Implementation The terrorist groups and other non-state armed actors have found space in the Middle East because states have refrained from engaging in water cooperation over the years, creating a vacuum. The failure of cooperation is evident in all relationships, including those between Syria, Lebanon, and Jordan; Syria, Iraq, and Turkey; Israel, Palestine, and Jordan; and Egypt, Ethiopia, Sudan, and some of the bilateral

9  Water Ethics in the Middle East

171

relationships within this complex paradigm (Engelke and Passell 2017; Strategic Foresight Group 2011, 2014b).

9.4.1  Syria, Lebanon, Jordan Syria has bilateral treaties with Lebanon on the allocation of the Asi-Orontes River and with Jordan on the use of the Yarmouk River. The 1994 bilateral agreement between Lebanon and Syria on the Orontes River stipulated that Lebanon was to receive 80 MCM/year if the river flow exceeds 400 MCM and 20% of the annual flow if the discharge volume is less than 400 MCM/year (Namrouqa 2012). The terms of the 1994 agreement were deemed unfair to Lebanon; annexes were added in 1997. The original 1994 agreement was further amended in 2001 to allow Lebanon to construct a dam on the Orontes. The use of the Orontes at present is disproportionate between the two countries, with Lebanon using the river for small-­ scale farming, fish farms, and tourism. Syria has implemented multiple unilateral infrastructure projects to regulate the flow of the Orontes. The 1994 treaty did not make any reference to the principles of equitable use and was considered to be a win-lose situation for Lebanon. The 2001 amendment was guided by the principles of the 1997 UN Convention and allowed upper riparian Lebanon to develop water infrastructure on the Orontes. While Lebanon is likely to implement unilateral infrastructure projects in the coming years on the river, the basic approach in constructing the relationship has been governed by the asymmetry of power rather than ethical principles. The 1953 agreement between Jordan and Syria on the Yarmouk River made provisions for the construction of the Wahdah dam in Syria. The dam was to provide irrigation water to Jordan and electrical power to both countries. The 1987 agreement altered the provisions of the 1953 agreement. This new agreement made provisions for the construction of a smaller dam and for a mechanism of intergovernmental mediation to resolve disputes. The agreement also authorized Syria to implement and use 25 dams on the Yarmouk and its tributary rivers and wadis. Jordan agreed to a share of 208 MCM in the 1987 agreement with Syria, and Syria was given the right to use 6 MCM of the Yarmouk River downstream of the Wahdah dam for irrigation of land along the riverbank. In reality, Jordan receives about 50–100 MCM; the amount is further reduced in dry years. Since Jordan is a downstream riparian of the Yarmouk River, it is dependent on cooperation with its upstream riparian neighbor, Syria. Scholars have argued that the text of the 1953 and 1987 agreements reflects an asymmetric balance of power in favor of Syria. Syria has also been accused of violating the terms of the 1987 agreement by building 48 dams as opposed to 25, the number agreed upon in the 1987 agreement. Moreover, Syria has failed to provide the agreed upon water share to Jordan, citing decreased precipitation as the reason for the reduced flow of the river (Namrouqa 2012).

172

I. Futehally

9.4.2  Syria, Iraq, Turkey The lack of a basin-wide agreement has impeded cooperation in the region and has led to disputes over water resources. Lower riparian countries of Iraq and Syria have accused Turkey of affecting the flow of the Euphrates by implementing unilateral infrastructure projects. According to the 1987 accord between Turkey and Syria on the Euphrates River, an annual 16 BCM (500 m3/s) of water is to be released at the Syrian-Turkish border. As per the 1990 Syrian-Iraqi Water Accord, 42% of the Euphrates water measured at the Syrian-Turkish border is allocated to Syria, with the remaining 58% allocated to Iraq (Comair et al. 2013; Strategic Foresight Group 2014a). According to the downstream riparian countries, reduced water levels on the Euphrates are due to Turkey using more than its share of the water. Turkey argues that it has not obstructed the flow of the rivers and has been abiding by the 1987 agreement. In a strict legal sense, all three parties may be complying with the 1987 and 1990 agreements on the basis of the analysis of the annual flow (Strategic Foresight Group 2014a). It is, however, necessary to assess the agreement on an ethical basis to see whether water flows during the times required by downstream communities and the criticisms of upstream countries of downstream neighbors are fair. It is expected that this dilemma may get resolved in the context of the Tigris River flow, which mostly flows from Turkey to Iraq, with a very small segment in Syria. In a Blue Peace meeting in London in September 2016, leaders of the two countries agreed to set up a joint monitoring station on the Tigris River in the border area as a confidence-building measure. Further, in an intergovernmental meeting between the water ministers of the two countries in March 2017, Turkey offered information on the Ilusu dam to the Iraqi counterparts. Thus, there is now potentially an ethical basis for the Tigris relationship. It remains to be seen how it is implemented.

9.4.3  Israel, Palestine, Jordan The Israeli–Palestinian Joint Water Committee (JWC) was revived in early 2017 after 6 years of communication breakdown (Savir 2017; Rasgon et al. 2017). It has been reported that the two sides are working on conceptualizing a long-term strategic plan toward the year 2040. Talks of agreements on pipelines supplying an additional 10 MCM of water to Gaza and 20 MCM of water to the West Bank have also resumed. As per the provisions of the Israeli-Palestinian Interim Agreement of 1995 (also known as Oslo II), the Joint Water Committee was first established to function for a term of 5 years (Selby 2013). The JWC was created to facilitate the equitable distribution of shared water resources between Israel and Palestine. Not only has the Committee surpassed its 5-year term, but prior to its recent revival, it was defunct

9  Water Ethics in the Middle East

173

and provided veto power only to Israel, thus failing to provide equitable and fair access to both parties. Several components of Oslo II have resulted in a disproportionate power dynamic in favor of Israel (Selby 2013). The Palestinian Authority has no say in Israeli management of the Jordan River and the Israeli sections of the Coastal Aquifer. The Palestinian Authority has unilateral control over the water resources in the areas of the Gaza Strip under Palestinian control. However, overextraction has resulted in Gaza being on the verge of aquifer failure. The Palestinians have no access to the water resources of the Jordan River, and Palestinian water infrastructure development in the West Bank is subject to prior Israeli approval. Oslo II also grants Israel veto powers over Palestinian infrastructural and water resource projects in the West Bank. This disproportionate power dynamic has resulted in an ethical crisis in the region, reflected in a humanitarian and political crisis. It appears that Israel is using its stranglehold on the regional power dynamics to sell desalinated water to the Palestinian people, who have a fraction of the Israeli per capita income. Israel can achieve full self-sufficiency in water with its desalination capacity. Yet it uses water of the Kinneret (Tiberias) lake for its population in the northern districts. Legally, it can claim its right to do so. Ethically, it would be better to make this water available to the people of Jordan and the Palestine territories. There is also criticism of the 1994 agreement between Israel and Jordan on moral grounds, given the power asymmetry. The ethical approach would be for Israel, Palestine, and Jordan to reach a comprehensive cooperation agreement for the entire Jordan Valley from the Kinneret (Tiberias) lake to Aqaba and involving all aquifers in the region. Such an approach is not politically feasible in the current circumstances. As a result, a humanitarian crisis is waiting to explode in Gaza, and political conflict is bound to deepen. Thus, the case of Israel-Palestine-Jordan water relations shows that ethical challenges are reflected in humanitarian and political costs, negatively impacting the fabric of society.

9.4.4  Egypt, Ethiopia, Sudan The hydro politics between upstream and downstream riparian countries are integral to understanding the power dynamics and the failure of ethical imperative in the Nile Basin. Despite the Nile Basin Initiative achieving cooperation in different technical spheres, the political unity of the Basin has been the main challenge facing the riparian countries (Strategic Foresight Group 2013; Kimenyi and Mbaku 2015; Nile Basin Initiative 2016). The Cooperative Framework Agreement of 2010 has been signed by the six upper riparian countries. However, Egypt and Sudan have declined to sign the agreement, citing Article 14(b) as the main issue of contention. Article 14(b) states that member countries would work together to “not significantly affect the water security of any other Nile Basin State.” Egypt and Sudan have argued that the alternative wording for Article 14(b) should be as follows: member countries should work together “not to significantly affect the water security and current uses

174

I. Futehally

and rights of any other Nile Basin State” (Kimenyi and Mbaku 2015). Upstream riparian states did not agree to this wording, as it would allow Egypt and Sudan to retain their hegemony over the Nile waters as per the agreements signed in 1929 and 1959. The 1929 agreement granted Egypt veto powers over construction of projects on the Nile River; the 1959 agreement allocated 55.5 BCM to Egypt and 18.5 BCM to Sudan (Kimenyi and Mbaku 2015). Upstream riparian countries were not parties to these agreements and do not recognize the same. The Framework for General Cooperation between Egypt and Ethiopia was signed on 1 July 1993 (Strategic Foresight Group 2013). Through this framework, the parties agreed to “refrain from engaging in any activity related to the Nile waters that may cause appreciable harm to the interests of the other Party” (Art. 5). Through this agreement, the two parties also agreed to take measures with respect to the “conservation and protection” of Nile waters. The framework encourages the parties to “endeavour towards a framework for effective cooperation among countries of the Nile Basin for the promotion of common interest in the development of the Basin” (Art. 8). Egypt registered this instrument with the United Nations in 2010 (Strategic Foresight Group 2013). The agreement entered into force in 1993; both parties are bound by it. The foundation for the construction of the Grand Ethiopian Renaissance Dam (GERD), located on the Blue Nile, was laid in 2011. The project was about 70% complete as of late 2019. While the GERD project initially met with strong resistance from the Egyptian government, there has been a shift in Cairo’s policy in the past few years. The Khartoum declaration, signed between Egypt, Sudan, and Ethiopia in March 2015, was expected to pave the way for cooperation over the Nile waters (Sudan Tribune 2015). This Declaration of Principles of March 2015 endorsed the principles of international water law. In December 2015, it was reported that the three countries had signed an agreement with respect to the GERD. This new agreement was expected to address the technical issues pertaining to the dam, and the parties agreed to appoint a new company to conduct technical studies alongside the previously appointed company. As of March 2017, according to the Ethiopian Ministry of Water, Irrigation and Electricity, the technical studies were being carried out on schedule by the firms and the results were expected to be submitted within 11 months. Two firms were appointed to conduct two studies on the potential socio-economic impact of the GERD on the lower riparian countries. Despite multiple assurances from Ethiopian officials that the dam would not impact the flow of water to Egypt, a study published by the Geological Society of America found that the GERD construction on the Blue Nile could reduce the flow of water to Egypt by as much as 25%. With Egypt’s dependence on Nile waters, the construction of the GERD is expected to cause food and freshwater shortages in the country in the future. However, a March 2017 report by the Atlantic Council found that the GERD’s impact on lower Nile water for Egypt is likely to be in the short term. The GERD is also expected to have the capacity to generate 6000 megawatts of electricity. The World Bank reported that exporting power from the GERD to neighboring countries could earn Ethiopia an estimated

9  Water Ethics in the Middle East

175

$1 billion per year. The dam is expected to provide relief to the Ethiopian population, of which only 15–20% have access to power at this time. The relationships in the Nile basin have faced moral challenges from the beginning, though a gradual change might be possible in the coming years. In the first place, Egypt and Sudan should have included Ethiopia, an independent country, in the 1959 Agreement on the Nile River. While this was the right ethical choice, the two countries tried to proceed on the basis of a balance of power. The bilateral agreement in 1993 between Egypt and Ethiopia provided an opportunity, and the accord used soothing words. In reality, no sincere effort was made to construct an equation that would satisfy the needs of people and environment in the region. Ethiopia responded with its own unethical approach by building the GERD, while earlier it had the option of building a cascade of dams that would provide it with electricity without affecting the flow of the river to the downstream countries. It was in 2015 that the leaders of the three countries found it necessary to agree on the Declaration of Principles (Sudan Tribune 2015). While the understanding is restricted to the GERD project, it can form the basis of a future relationship based on the ethical imperative to serve the people, rather than succumb to mere power bargaining.

9.5  Crisis of Quality Water relations in the Middle East are, for the most part, limited to bilateral agreements between countries. A majority of these bilateral agreements and treaties focus on water allocation as opposed to collaborative management of water resources in the region. The region lacks a cooperative mechanism and a robust structure with a legal basis. The Nile Basin Initiative, for example, remains a transitional mechanism owing to the contention over the Cooperative Framework Agreement between Egypt, Ethiopia, and Sudan (Strategic Foresight Group 2013). In the case of the Levant region, not even a temporary arrangement like the Nile Basin Initiative has been found acceptable. As discussed above, most of the agreements reflect the power balance rather than an ethical concern for the welfare of all people concerned. Also, most of these agreements were signed years ago; the quantities allocated are now outdated, owing to deterioration and depletion of water resources. While quantity was a point of contention between countries in the region in the past, the quality of the already scarce water resources in the region will prove to be a source of regional tensions in the future. According to an analysis by the World Resources Institute, water supplies in the Middle East are expected to deteriorate over the next 25 years (Maddocks et  al. 2015). Over 90% of the water in the Gaza strip is not fit for human consumption. According to a report by the Brookings Institute, pollution in the Tigris River has been a major impediment to the availability of freshwater in Iraq (Kimenyi and Mbaku 2015). Farming waste due to poor agricultural practices and overpumping

176

I. Futehally

have led to the pollution of groundwater in cities like Damascus. The conflict in Syria, and subsequent depletion of water supplies, has led to migration and disease, and has sparked a pollution crisis in Lebanon. Migration has put further pressure on the water resources in the Middle East. An increase in solid waste and untreated sewage has put even more pressure on water resources in Lebanon. The crisis of water quality and pollution also plagues the Nile basin. The deterioration of water quality in the Nile has affected the health of the citizens and has led to the death of fish in large numbers owing to ammonia and lead poisoning. According to the Egyptian Center for Economic and Social Rights, 95.5% of the Egyptian population consumes improperly treated water, making them vulnerable to waterborne diseases (Bottoms 2014). According to a report by the World Bank, urban wastewater discharges and industrial effluents are the primary causes of pollution in the Nile. Poor water quality has put the Egyptian population at risk for disease and has negatively impacted livelihoods. Research also suggests that the Nile Basin is highly vulnerable to the impact of climate change due to heavy extraction and high evaporation (Nile Basin Initiative 2016; Strategic Foresight Group 2013). Climate change could directly impact livelihoods, affect food security, and worsen public health. A further deterioration in the resources of the Nile Basin can result in regional conflicts over water resources in the face of increasing demand.

9.6  Regional Cooperation The analysis of the hydro-political relations in the MENA region shows that water is not treated as a global or even regional commons. As a result, states in the region have been guided by the balance of power rather than moral principles in negotiating treaties and agreements. Moreover, even when treaties are negotiated, they are not implemented. This situation has resulted in an ethical crisis in the region, which is manifested in three forms. First, several hotspots in the region face a humanitarian crisis due to shortage of water resources. Second, almost all segments of the population suffer from the poor quality and pollution of water resources, affecting drinking water, aquaculture, and agriculture. Third, the vacuum created by the failure of cooperative arrangements is filled by terrorist groups and non-state actors who use water installations as targets or weapons of war. As international military coalitions enter the region to fight the terrorist groups and non-state actors, sometimes favoring one over the other, the states and societies in the region lose effective sovereignty. If the leaders of the Middle East and the Nile Basin had entered into cooperative agreements guided by an ethical concern for their populations, they would be real masters of the destiny of their nations today instead of struggling to find space in competition with terrorist groups and foreign powers. There are indications that the elite of the region are considering rational and ethical choices. The agreements between Iraq and Turkey over the Tigris River and between Egypt, Sudan, and Ethiopia over the GERD indicate willingness to

9  Water Ethics in the Middle East

177

consider a principled approach. There is a risk that such initiatives may prove to be too little, too late. To avert such a risk, it is necessary for the people and leaders of the countries in the region to make conscious efforts to create regional cooperation mechanisms for sustainable and collaborative management of water resources and to embed principles of ethics within those mechanisms. In 2011, Strategic Foresight Group formulated the Blue Peace approach for the Middle East region and recommended its application to the Nile Basin in the following year. The Blue Peace approach goes beyond Integrated Water Resource Management and river basin organizations. The Blue Peace approach aims to transform water from a source of crisis into an instrument of cooperation and peace. It is based on ethical concern for societal and ecological needs, belief in institutional frameworks, and appreciation of political realities. It suggests that a regional cooperation mechanism should be created in a manner that provides scope for engaging heads of government and helps them to negotiate bargains between the supply of water and other public goods, taking into consideration the overall peace and prosperity of people. The Middle East, cradling the Euphrates, Tigris, and Jordan river basins and the Nile Basin, needs to adopt water ethics charters and use them as the basis to form regional cooperation councils for the sustainable management of water resources, taking into consideration quantity and quality factors as well as the relationship between water and other public goods. The precise nature of such arrangements can be negotiated by the stakeholders in the region. Many examples of water cooperation exist in developing countries. Lack of resources, natural or financial, has not obstructed the development of cooperative regimes in Africa, Asia, and Latin America. Continued failure to engage in cooperation will not be without costs. Indeed, the cost may be in the form of complete destabilization of the state and the society, as in the case of Syria, and the supremacy of terrorist groups over dams and pipelines, and a loss of sovereignty. In other words, the cost that the Middle East may have to incur for the absence of cooperation, morality, and wisdom would be the very existence of the countries and their population. The societies in the Middle East have reached a stage where they have to choose between ethical cooperation or the end of their existence.

References Comair GF, McKinney DC, Scoullos MJ, Flinker RH, Espinoza GE (2013) Transboundary cooperation in international basins: clarification and experiences from the Orontes river basin agreement: part 1. Environ Sci Pol 31:133–140 Bottoms I (2014) Water pollution in Egypt – causes and concerns. Egyptian Center for Economic & Social Rights. https://ecesr.org/en/wp-content/uploads/2015/01/ECESR-Water-Polllution-En. pdf. Accessed 6 Apr 2020 Budapest Water Summit (2016) Messages and policy recommendations. Ministry of Foreign Affairs and Trade, Hungary. https://www.worldwatercouncil.org/sites/default/files/2017-10/ BWS2016_Messages_Policy_Recommendations.pdf. Accessed 2 Apr 2020

178

I. Futehally

Engelke P, Passell H (2017) From the Gulf to the Nile. Atlantic Council, Washington, DC. https:// www.atlanticcouncil.org/in-depth-research-reports/report/from-the-gulf-to-the-nile-watersecurity-in-an-arid-region. Accessed 2 Apr 2020 Kimenyi MS, Mbaku JM (2015) The limits of the new Nile Agreement. The Brookings Institution, April 28. https://www.brookings.edu/blog/africa-in-focus/2015/04/28/the-limits-of-the-newnile-agreement. Accessed 2 Apr 2020 Krzymowski A (2020) Water as a weapon of war in the Tigris-Euphrates Basin. Przegląd Strategiczny (12):319–334 Maddocks A, Young RS, Reig P (2015) Ranking the world’s most water-stressed countries in 2040. World Resources Institute, August 26. https://www.wri.org/blog/2015/08/ranking-world-smost-water-stressed-countries-2040. Accessed 2 Apr 2020 Namrouqa H (2012) Yarmouk water sharing violations require political solution. Jordan Times, April 30. http://mideastenvironment.apps01.yorku.ca/2012/04/yarmouk-water-sharing-violations-require-political-solution-jordan-times. Accessed 2 Apr 2020 Nile Basin Initiative (2016) Keeping the Nile flowing and boosting livelihoods. Nile Basin Initiative website, January 18. http://www.nilebasin.org/index.php/our-story/36-keeping-thenile-flowing-and-boosting-livelihoods. Accessed 2 Apr 2020 Rasgon A, Lazaroff T, Udasin S (2017) Israel gives Pal. Authority limited water autonomy in West Bank. Jerusalem Post, January 17. http://www.jpost.com/Arab-Israeli-Conflict/Israel-givesPal-Authority-limited-water-autonomy-in-West-Bank-478672. Accessed 2 Apr 2020 Savir A (2017) Israel, PA resume cooperation on water issues. World Israel News, January 17. https://worldisraelnews.com/israel-pa-resume-cooperation-water-issues. Accessed 2 Apr 2020 Strategic Foresight Group (2011) The blue peace: rethinking Middle East water. Strategic Foresight Group, Mumbai. http://strategicforesight.com/publication_pdf/40595Blue%20 Peace_Middle%20East.pdf. Accessed 2 Apr 2020 Selby J (2013) Cooperation, domination and colonisation: The Israeli-Palestinian joint water committee. Water Alternatives 6(1):1–24 Strategic Foresight Group (2013) Blue peace for the Nile. Strategic Foresight Group, Mumbai. http://strategicforesight.com/publication_pdf/84153Blue%20Peace%20for%20the%20Nile. pdf. Accessed 2 Apr 2020 Strategic Foresight Group (2014a) Consensus on Tigris River. Strategic Foresight Group, Mumbai. http://strategicforesight.com/conference_pdf/47694Consensus%20On%20Tigris%20River_ Revised%20Sep14.pdf. Accessed 2 Apr2020 Strategic Foresight Group (2014b) Water and violence: crisis of survival in the Middle East. Strategic Foresight Group, Mumbai. http://strategicforesight.com/publication_pdf/63948150123-web. pdf. Accessed 2 Apr 2020 Strategic Foresight Group (2015a) Blue peace in the Middle East: high level forum. Strategic Foresight Group, Mumbai. http://strategicforesight.com/conference_pdf/6209Conference%20 report-%20HLF%20Geneva.pdf. Accessed 2 Apr 2020 Strategic Foresight Group (2015b) Blue peace in the Middle East: progress report. Strategic Foresight Group, Mumbai. https://www.strategicforesight.com/publication_pdf/33406Blue%20 Peace%20Progress%20Report.pdf. Accessed 7 Apr 2020 Sudan Tribune (2015) Sudan, Egypt and Ethiopia reach agreement on Renaissance Dam. Sudan Tribune, December 30. http://www.sudantribune.com/spip.php?article57526. Accessed 2 Apr 2020 United Nations Department of Public Information (2016) Secretary-General, in Security Council, stresses promotion of water-resource management as tool to foster cooperation, prevent conflict. SC/12598, 22 November. https://www.un.org/press/en/2016/sc12598.doc.htm. Accessed 2 Apr 2020 United Nations Security Council (2017) Resolution 2341: threats to international peace and security caused by terrorist acts, S/RES/2341 Water Ethics Network (2015) The water ethics charter. http://waterethics.org/the-water-ethicscharter. Accessed 2 Apr 2020

Chapter 10

The Ethics of Water Securitization: Understanding the 1999 Bombing Campaign in Kosovo James Horncastle

Abstract  The 1999 bombing of Kosovo by the North Atlantic Treaty Organization (NATO) represented a considerable shift in the manner that states waged conventional wars. In the literature, academics represent the means employed by the parties involved as innovative developments from a warfare standpoint. The methods all militaries and paramilitaries used, however, relied extensively on principles surrounding the securitization of water. The Serbs, in their efforts to expel the Kosovar Albanians, deployed it as a tool to ethnically cleanse the province. NATO, while initially hesitant to target the electrical grid of Yugoslavia for fear that the media and others would portray the strain it would place on the civilian population in a negative light, eventually did so as the ethnic cleansing campaign in Kosovo accelerated. While not typically discussed in the literature, the securitization of water by all parties formed a key consideration for their policies throughout the campaign, and an important ethical question for both academics studying the issue and practitioners as they pursued warrelated activities. Finally, the weaponization of water in Kosovo helped provide impetus for the development of Responsibility to Protect (R2P), which while not explicitly emphasizing water has significant implications for the ethics of water security. Keywords  Water securitization · Just war · Kosovo · Yugoslavia · NATO · Conflict studies

By late May 1999, the North Atlantic Treaty Organization (NATO) had been bombing military targets within the Federal Republic of Yugoslavia without achieving its stated objective of stopping the Serbs’ ethnic cleansing of the Kosovar Albanian population. While NATO believed its bombing campaign had significantly damaged the Yugoslav Army (it had not), the Yugoslav state reportedly accelerated its ethnic cleansing operations in Kosovo (Judah 2000). With frustration building within both the military and the political elites of the NATO countries, the alliance decided to J. Horncastle (*) Simon Fraser University, Burnaby, BC, Canada © Springer Nature Switzerland AG 2021 I. L. Stefanovic, Z. Adeel (eds.), Ethical Water Stewardship, Water Security in a New World, https://doi.org/10.1007/978-3-030-49540-4_10

179

180

J. Horncastle

place direct pressure on the civilian population in Serbia proper. Previous measures, such as temporarily knocking out the power grid with carbon-filament bombs, did not achieve rapid results (Gordon 1999). Therefore, on 23 May 1999, NATO began an extensive bombing campaign against Yugoslavia’s power grid. While officially for strategic purposes of limiting military gains, the attack had the effect of depriving 80% of the country of water. The increased pressure on the civilian population was not the official reason for the raid, but it helped create significant dissatisfaction within Yugoslavia and facilitated NATO’s broadly perceived triumph in the conflict. The concept of water securitization, although rarely articulated by the political and military officers involved in the conflict, nevertheless influenced the conduct of the 1999 Kosovo War and its aftermath. The employment of water as a weapon to coerce a population has existed since the start of warfare itself. That said, military officers have rarely articulated it, and water securitization is not prevalent in contemporary literature on the subject. In the late 1990s, the concept of water securitization was not particularly well known to military commanders or the political leadership of the countries involved in the conflict (Cordesman 2001). Nevertheless, while the parties did not articulate their objectives in terms of water securitization, key concepts of it influenced the conduct of the campaign and the post-war operations. The 1999 Kosovo War demonstrates that water securitization, rather than being a term that can help analyze contemporary conditions, is a valuable tool for military historians as well. It also indicates that the ethical dilemma of military and political forces’ efforts to achieve success by undermining the water securitization of civilian populations will remain an issue well into the future.

10.1  Methodology One of the strengths of water security is also its most troublesome aspect: the plethora of ways in which the term is both defined and employed by scholars. As Zeitoun et al. (2013) note, “there may be as many interpretations of ‘water security’ as there are interests in the global water community.” Furthermore, many of these debates are relatively new. Karen Bakker and Christina Cook (2013) explain that while the term “water security” emerged in the early 1990s in the academic literature, it was used only sporadically within academia in the years immediately following its articulation and has just witnessed continued discussion since 2005 onwards. While the growth in the term’s usage only benefits discourse on the matter, it also makes defining what one means when referring to water security essential. Specifically, this paper examines the Kosovo bombing campaign through the lens of international relations and securitization. The process of securitization emphasizes how water, often viewed as a neutral substance, is transformed into a matter of political and military significance through the scarcity principle (Sinha 2005). This belief gave rise to the “water wars” thesis in the 1990s, where scholars argued that increased demand for limited water resources would define warfare in the twenty-first century (Brown 2000). While the water wars thesis remains

10  The Ethics of Water Securitization: Understanding the 1999 Bombing Campaign…

181

contested and challenged, notably by Barnaby and others, it did bring into focus the important role that the competition for water resources has played in past and current conflicts (Barnaby 2009; Rahaman 2012). For example, contemporary literature on the securitization of water emphasizes how states attempt to employ limited water resources to obtain political gains, most notably in the Nile Delta and the Indus Valley (Alam 2002). While these are important considerations, what the water wars thesis and the broader discussions of securitization miss is the role that water as a commodity, its necessity for life, and potential targeting of it by military forces has played in past conflicts, and how this will affect future ones as well. When they do discuss ethics, securitization scholars note that politicians sacrifice peacetime ethics to meet wartime objectives. This has led critical security scholars, such as Browning and McDonald, to argue that more needs to be done to bring the actions of states and political actors in line with traditional ethics (Browning and McDonald 2011). This argument, however, ignores how political and military leaders argue that the violation of peacetime ethics in war is actually more ethical, as it minimizes the duration of the war and allows for a quicker resumption of peacetime ethics and human rights (Whetham 2008). It is this logic that permeated the thinking of both the Serb forces under Milosević and NATO’s political and military leadership when it came to the weaponization of water before and during the Kosovo War. This chapter, therefore, examines how water became weaponized before, during, and after the Kosovo bombing campaign and how it forms an intrinsic, although often overlooked, aspect of the war. In particular, this chapter is interested in how military and political officials securitize water to create pressure upon civilian populations in pursuit of state interests. The fact that military forces have used it throughout human history to coerce civilians was one of the primary reasons for including it in the 1977 Additional Protocols, which extended the Geneva Conventions protections to civilians in wartime conditions (ICRC 1977: Art. 54). That said, given its placement relatively late within the Additional Protocols, it was not their primary focus. The effects of climate change, while not going to the extremes of the water wars thesis, will make state actors’ use of water against civilian populations to pursue their interests more prominent in the future (Biswas and Tortajada 2015). Thus, it is important to examine case studies of past campaigns, like the Kosovo bombing campaign, to gain insights into how militaries and politicians might weaponize water in the future. Such an examination will also demonstrate the legal and ethical gap that exists regarding the weaponization of water, especially as Kosovo would help give rise to the Responsibility to Protect (R2P) doctrine, which has significant implications regarding a populace’s right to water security (Devlaeminck 2013).

10.2  Background The modern struggle for Kosovo centers on competing Serb and Albanian claims to the territory. For the Serbs, the foundation of their national identity focuses on the Battle of Kosovo Polje in 1389, where they allege that the Serbs sacrificed

182

J. Horncastle

themselves to preserve Christianity from the Ottoman Turks (Judah 2002). As a result, the territory of Kosovo has particular resonance for Serb nationalists. Modern-day Kosovo, however, is predominantly inhabited by Kosovar Albanians due to population movements in the seventeeth and eighteenth centuries and changing demographic trends in the twentieth century (Judah 2002). Although the Kingdom of Serbia conquered Kosovo and attempted assimilationist policies in the interwar period under the Kingdom of Serbs, Croats, and Slovenes (later Yugoslavia), these actions did not achieve their desired effect of Serbianizing Kosovo. Instead, Kosovar Albanians increasingly developed their sense of national identity in the face of the Serbianizing policies of the government. This trend continued after the Second World War in Tito’s Yugoslavia, where Kosovo, although officially granted autonomous status, still faced significant Serbianizing trends from the federal government (Judah 2000). Only Tito’s position of promoting equality among the peoples of Yugoslavia caused Kosovar Albanians to refrain from more drastic actions.

Map of the former Yugoslavia and its constituent regions. Source: Cartographer of the United Nations – The Cartographic Section of the United Nations (CSUN)

Tito’s death, however, meant that the Kosovar Albanians lost the one individual whom they trusted to pursue their national objectives. Furthermore, the abject poverty of Kosovo – it was the poorest region of Yugoslavia by a fair margin – meant that the opportunities for people to improve their positions in Yugoslav society were minimal (Judah 2002). In 1981, student protests at the University of Pristina, due to the lack of job prospects, quickly transformed into a generalized protest against

10  The Ethics of Water Securitization: Understanding the 1999 Bombing Campaign…

183

Kosovo’s status in the federation. Yugoslav authorities managed to suppress the uprising, but only through the imposition of martial law (Judah 2002). The Kosovo Uprising, furthermore, highlighted for Serbs that they were losing their spiritual homeland. Slobodan Milosević, a rising politician in Serbia during the 1980s, was able to exploit this feeling among Yugoslav Serbs by positioning himself as the champion of the Serbs throughout Yugoslavia. It was a position that, combined with rising tensions over the economic stagnation of Yugoslavia during the 1980s, eventually led to the disintegration of the state starting in 1991 (Judah 2000). In many ways, the most restive region of Yugoslavia during the post-war period, Kosovo, was relatively calm during the initial phases of the disintegration of Yugoslavia, from 1991 to 1995. There were several reasons for this peculiar development. First, in 1989, as part of the so-called Anti-Bureaucratic Revolution, which was, in reality, a play for power, Milosević passed legislation that significantly reduced Kosovo’s political autonomy, meaning that the Kosovar Albanian leadership had fewer levers of power to exploit than Slovenia, Croatia, and the other separatist regions of Yugoslavia (Judah 2000). Furthermore, unlike that in the other republics, the political leadership of the Kosovar Albanians did not initially view violent separation as a viable path. Instead, the Albanian leadership, under Ibrahim Rugova, originally pursued non-violence and the creation of a parallel government, under the hopes that outside intervention would help create an independent Kosovar state. When contrasted with the rest of Yugoslavia, their actions, Rugova argued, would demonstrate their right to independence (Judah 2002). The international community, however, quickly forgot about Kosovo in its efforts to obtain peace elsewhere in the region; the 1995 Dayton Accords contained no provisions regarding Kosovo (Judah 2000). As a result, increasing Kosovar Albanian dissatisfaction boiled over into dissent against Rugova’s leadership, which led to the creation of several paramilitary groups seeking to take the struggle’s mantle – the most successful of which was the Kosovo Liberation Army (KLA) (Kurtaj 2015). The KLA and other militants started a campaign of terror against the Yugoslav authorities that culminated in late 1998/early 1999. The KLA’s attacks succeeded in provoking the Yugoslav authorities into a brutal crackdown of the region. However, the KLA wanted the Yugoslav state to start a crackdown on the province. The Yugoslav authority’s brutality in its counterinsurgency campaign and its unwillingness to listen to outside offers to mediate the crisis shocked the international community. This reaction by the international community raises an important question: why did it react significantly differently to the Kosovo campaign than in 1981, or even to the more recent wars in Slovenia, Croatia, and Bosnia? The reason that the international community responded differently than in the past was that in the post–Cold War era, concepts of humanitarian intervention became more prominent among Western leaders and societies than in the past. During the Cold War, as exemplified by the 1948 Universal Declaration of Human Rights and the 1977 Additional Protocols, there was an increased cognizance of the importance of Humanitarian Law (Hoffman and Weiss 2017). These developments, however, were always superseded by Cold War realities and state

184

J. Horncastle

sovereignty; a state’s ethical treatment of its civilian population mattered less than its position in the international order. The end of the Cold War, and the way states could use sovereignty to the detriment of the local population, such as in the case of Iraq, Rwanda, and Bosnia, caused people to question the limits of state sovereignty (Hoffman and Weiss 2017). The result was that while, in the past, Yugoslavia could claim that the police actions represented part of their right to employ force within their borders as they saw fit, the 1990s meant that this inalienable state right was increasingly permeable, even if the world had not yet articulated R2P. Kosovo would therefore become a significant case in the limitations of state sovereignty. The KLA stepped up its operations in 1998, having acquired arms from Albania after that country’s collapse in 1997 (Judah 2002). The Yugoslav Army and Ministry of the Interior’s response to the crisis, involving low-scale ethnic cleansing, galvanized the international community to action. After the Kosovo and Yugoslav representatives failed to reach a peaceful agreement at Rambouillet, NATO’s political leaders, particularly the United States and Great Britain, managed to rally support for intervention. On 24 March 1999, NATO began what its leaders thought would be a brief campaign to convince Milosević and the Yugoslav leadership of its commitment. It would be anything but brief, as NATO’s campaign extended until the end of the spring, officially terminating on 11 June 1999. Although NATO’s bombing campaign was ultimately successful, in that it forced Milosević to acquiesce to Western demands, it simultaneously accelerated his plans to ethnically cleanse the region (Gregory 2015). By the end of NATO’s bombing campaign, the United Nations High Commissioner for Refugees (UNHCR) stated that Yugoslav authorities expelled 863,000 Kosovar Albanians from the province; several hundred thousand more were displaced internally within Kosovo (UNHCR 2000). The reintegration of these refugees into Kosovo significantly extended NATO’s mission in the region. In fact, NATO’s Kosovo Protection Force (KFOR) remains in the province to the present day (NATO 2019).

10.3  W  ater Security as It Played out Before, During, and After the Kosovo War Even before the first bombs fell on Kosovo, the Serbs weaponized water as a tool of oppression against the Kosovar Albanians. Perhaps most telling was the status of water within Kosovo’s hospitals before the war. For example, only three of the seven major hospitals in Kosovo had water 24 hours a day (Ashford and Gottstein 2000). Furthermore, within the Kosovo hospital system more broadly, safe drinking water and proper disposal of human waste were not a given; the standards meant that infections and other diseases from poor water treatment within the hospitals were quite high; for example, 34% of children suffered from watery diarrhea (WHO 1999). Poor water treatment facilities further taxed the inadequate health care system in the province. The majority of the 197 epidemics in the region during the

10  The Ethics of Water Securitization: Understanding the 1999 Bombing Campaign…

185

1990s, such as the frequent outbreak of diarrheal disease, can be directly attributed to poor water quality (Ashford and Gottstein 2000). Milosević’s government used Kosovo’s limited medical and water resources to pursue its nation-building exercise. Minimal infrastructure within Kosovo forced the Kosovar Albanian population to seek medical services in Serbia proper. Given that doctors and nurses conducted these medical services in Serbia, one can see how the Belgrade government’s unwillingness to pursue infrastructural developments for clean water in Kosovo became an important part of its Serbianization campaign of the province. The Serbian authorities engaged in making living conditions as deliberately difficult for the Kosovar Albanian population as possible to encourage them to emigrate from the region. The only hospital that met minimum standards of health was the University of Pristina hospital, which provided services to the Serb minority in Kosovo (Ashford and Gottstein 2000). This policy fit within Milosević’s overall plans for long-term Serbianization of Kosovo (Hoffman and Weiss 2017). In short, even before the war began, the Serbian authorities had already securitized water as a means of pursuing their nation-building exercise. Given that Milosević and his allies viewed the nation-state as being under threat, they prioritized saving the state over the ethical concerns of inhibiting the Kosovar Albanians’ water supply, as for Milosević the Kosovar Albanians were a foreign element. While not an ethically sound argument, it provided him with a rationalization for inhibiting the water security of the Kosovar Albanians. The start of NATO’s bombing campaign only increased the Yugoslavs’ willingness to use water as a weapon to achieve their idealized nation-state. With the advent of the bombing campaign, Serb forces faced a choice: capitulate, or accelerate their efforts and attempt to present the world with a fait accompli (Ramet 2005). Unsurprisingly, given past instances of genocidal regimes, they chose the second option (Valentino 2004). In these efforts, the securitization of water was crucial to their objective of creating an ethnically homogenous Kosovo. Human Rights Watch, in its post-mortem analysis of the Serb paramilitary campaign against the Kosovar Albanians, noted that one of the Serbs’ most effective tools in their ethnic cleansing campaign was through the deliberate contamination of Kosovo’s water supply (Human Rights Watch 2001). The most detailed assessment came from the International Red Cross. It noted: “Of the 20,000 wells in Kosovo, over half are believed to have been contaminated with animal or human remains or with rubbish, or have simply grown stagnant through lack of use” (Human Rights Watch 2001). Although this number included those wells rendered useless before the start of the bombing campaign, one can state that NATO’s bombing campaign accelerated the matter. As a point of reference, the UNHCR noted after the bombing campaign that 39 of 44 villages in the Djakovica region were contaminated with “either human or animal bodies” (Reitman 1999). This development from the bombing campaign is not to pass judgment on NATO, whose actions accelerated the ethnic cleansing campaign. Instead, it is important to note how the dynamics of water securitization can help inform our understanding of ethnic cleansing and genocide, as one can pressure a people to leave a region indirectly, rather than solely by force.

186

J. Horncastle

Serb paramilitaries did not weaponize water merely to force the refugees into fleeing Kosovo. They also used water to incentivize the people to flee. While paramilitaries destroyed Kosovar Albanian villages and contaminated the water supply to incentivize the population to escape, they simultaneously provided water and provisions to those individuals who were leaving the province for Albania and Macedonia (Human Rights Watch 2001). Thus, Serb paramilitary forces, by controlling the supply of water, made individuals’ flight from the region their only means of survival. NATO carefully considered what effect targeting the electrical grid, a joint military-­civilian piece of infrastructure, would have upon its desired strategic outcomes and the perceptions of its civilian population, despite the US Air Force’s desire to deliver overwhelming force to all segments to Yugoslav society. The necessities of the NATO alliance meant that the politicians did not give the US Air Force the free rein it so desired. First, while support for intervention existed within the American public and the executive branches, there was considerable opposition within the legislative branch to the war (Cohen 2001). Likewise, while the other countries of NATO supported measures to end Milosević’s persecution of the Kosovar Albanian minority, the means by which NATO should do so was open to considerable debate (Daalder 2001). This opposition caused President Clinton and his advisers to adopt two important conditions for the campaign against the Federal Republic of Yugoslavia. The first was that NATO would not commit ground troops to the campaign. Throughout the campaign, NATO military and political leaders emphasized that they would not commit ground forces to appease domestic opponents of the bombing campaign, as well as those members of the alliance that were tentative about it (Wright 2001). The second decision was that, given the tenuous support that existed for the bombing campaign itself, the politicians and military officers involved decided to not bomb below 15,000 feet for much of the campaign. While this significantly mitigated the risks to NATO planes, it also meant that their ability to accurately identify targets was impaired. Even if the political leadership of NATO was not explicitly speaking to water security, crucial concepts of what would later be known as water securitization were intrinsic to the “humanitarian” war (Ignatieff 2000). One of the pressing concerns of NATO’s leadership was that its campaign, put forward in terms of humanitarian intervention, should not be interpreted as an aggressive act (Cohen 2001). Given that NATO justified the action on humanitarian principles, it could not cause undue suffering to the population of Serbia proper without losing its moral high ground. Furthermore, international humanitarian law, specifically Article 54 of the Additional Protocols, meant that NATO could not target many of the sites it so desired in bringing Milosević to heel (ICRC 1977: Art. 54). Although the United States has not ratified the 1977 Additional Protocols, it was one of the initial signatories and generally abides by the principles outlined. Therefore, for the United States to target infrastructure that had dual military-civilian purposes, it needed a reason that trumped concerns over the Serb civilian impact. Milosević gave them such a reason when he accelerated the ethnic cleansing of Kosovo almost immediately after the bombing campaign commenced (Judah 2002).

10  The Ethics of Water Securitization: Understanding the 1999 Bombing Campaign…

187

Military frustration by the Air Force and political leaders due to their inability to achieve their decisive victory and the Serbs’ acceleration of the ethnic cleansing campaign meant that the type of targets considered for bombing increased significantly throughout the campaign. Initially, NATO limited its targets to strictly military sites, particularly those related to Yugoslavia’s air defense network (MacLennan 2017). These attacks, however, actually had the effect of increasing support for Milosević among the Yugoslav population, especially within Serbia proper. Furthermore, weather conditions and NATO’s strict command protocols limiting collateral damage meant that NATO’s bombing efforts often devolved into “counting tanks” – essentially emphasizing the destruction of tanks as a sign of military progress (MacLennan 2017). While effective at destroying the Yugoslav Army’s ability to wage a conventional war, it by no means assisted NATO in preventing the ethnic cleansing of Kosovo (Judah 2002). As such, NATO’s political and military leadership considered ways to increase pressure on Milosević and the Serb population. The need to appear reasonable in its escalation, in fact, was the reason that NATO first targeted carbon filaments on Serbia’s electrical grid on 3 May 1999. As The New York Times reported, “By broadening the scope of its air strikes and attacking Yugoslavia’s electrical system, NATO today crossed a threshold in the 40-day campaign, with bombing that had an immediate and widespread effect on the Yugoslav people” (Gordon 1999). That said, as it was arguably a violation of the 1977 Additional Protocols, NATO leadership claimed that its purpose was to “disrupt military communications, command centers and air-defense systems” (Gordon 1999). Given that the disruption was considerably greater to the civilian population than the military – which had prepared for such eventualities with backup generators – the civilian population felt the effects disproportionately. As the bombs did not use explosives to damage the electrical grid, the disruption, while demonstrative of NATO’s power, did not deprive the population of water for an extended period. In this regard, while the bombing campaign using filaments was disruptive, it can be viewed as fitting within the proportionality portion of just war theory. The demonstrative raid did not force the Federal Republic of Yugoslavia to surrender. Furthermore, targeted bombing raids against Yugoslav leaders failed to achieve their desired effect (UNEP 2000). As a result, on 23 May 1999, NATO escalated its bombing campaign against Yugoslavia’s electrical grid. Instead of bombs that deployed carbon filaments, which only temporarily knocked out the power grid, NATO bombs used explosives. Cordesman, who is sympathetic to NATO’s efforts, notes that on 23 May “NATO began a bombing campaign of the Yugoslav electricity grid, creating a major disruption of power affecting many military-­related activities and water supplies” (Cordesman 2001). This raid left 80% of Yugoslavia without electricity (Lambeth 2001). While the lack of power was otherwise an inconvenience, the disruption to the electrical grid deprived these people of water – a resource vital to their survival. Furthermore, the fact that NATO bombers had extensively targeted chemical factories throughout Yugoslavia during the bombing campaign meant that runoff caused by the attacks had rendered other sources of drinking water toxic (Ashford and Gottstein 2000). While all these

188

J. Horncastle

targets had military implications and thus were legally valid targets, they disproportionately affected the civilian population by damaging its access to potable water. The civilian population of Yugoslavia, now with an existential threat to its survival, increased the pressure upon Milosević to capitulate.

10.4  After the War: Water Securitization and the End Game Matters of water securitization significantly complicated NATO’s goal of a rapid exit from Kosovo after successfully using it to pressure Yugoslavia into submission. The first major problem, from an infrastructure standpoint, was that the bombing campaign aggravated the preexisting infrastructural issues within the province. NATO did not explicitly target the infrastructure of Kosovo during the bombing campaign (ICTY 2000). Nevertheless, in its efforts to limit the tactical mobility of the Serb forces, one of its primary targets was the bridges throughout the region, in particular those linking Kosovo to Serbia proper. In total, NATO destroyed 50 bridges within Kosovo as part of its bombing campaign against Yugoslavia. Furthermore, near the end of the conflict, the Serb paramilitaries sought to make conditions unlivable for those Kosovar Albanians who remained. Clark notes that “as the Serbian forces departed Kosovo their last gestures were vandalism: they left wells poisoned by rotting carcasses (including some human corpses), water supply systems to be reconnected …” (Clark 2002). A retreating army poisoning wells is not a new tactic. Historians throughout recorded history, and particularly in the modern period, have noted retreating armies’ tendency to contaminate water with the goal of inflicting suffering upon the advancing enemy force (Murray 2008; Trotter 2003; Geissler and Guillemin 2010). The Balkan states in the twentieth century, in particular, used irregulars extensively in such matters as part of their nation-­ state building exercise (Gerolymatos 2000). The Serbian paramilitaries’ use of such tactics in their withdrawal highlights the relationship between water security and nation-state building. It was not only Kosovo that suffered in the aftermath of the bombing campaign; the damage done to Serbia proper meant it possessed a compromised ability to provide clean water to its population after the conflict. Perhaps most notable was NATO’s decision to bomb industrial facilities on the Danube River as part of its effort to cow Milosević into submission. NATO’s bombing campaign severely damaged or destroyed industrial plants all along the Danube (Gregory 2015). While this imposed crippling economic losses upon the Federal Republic of Yugoslavia as it sought to rebuild, it also created a water security nightmare for the country. Many of the industrial facilities, having been built in the communist era, lacked adequate guards to prevent leakage into the surrounding soil and river before the bombing campaign even began in earnest (Ashford and Gottstein 2000). The bombing campaign, however, aggravated this problem to an unprecedented degree; its legacies on the health of the people are still under examination today (Gocanin 2019).

10  The Ethics of Water Securitization: Understanding the 1999 Bombing Campaign…

189

Furthermore, the destruction of bridges over the Danube reduced the ability of the Federal Republic of Yugoslavia authorities to respond to such a crisis. NATO’s destruction of the chemical factories on the Danube, and the resulting contamination, also brings into focus the point that modern wars have effects that go beyond the limited spatial confines of the battlefield. From Serbia, the Danube River flows into Romania and Bulgaria. From the bombing of the chemical plants, a slurry of “mercury, 1,2-dichloroethane, dioxins, and other compounds … enter[ed] the river” (Weller and Rickwood 1999). All the aforementioned chemicals are considered hazardous to human health and remain persistent within the environment (UNEP 1999). While the long-term consequences of the chemical spills in the Danube remain debated, what is not open for debate is that the Kosovo bombing campaign created an environmental crisis. Instead, it is a debate over the magnitude. The fact is that the environmental consequences are severe enough to debate.

10.5  W  ater and the Ethics of War in the Kosovo Campaign and Beyond As we can see above, despite the efforts of the International Community to restrict the use of water against civilian populations, the 1977 Addendum to the Geneva Conventions was, at best, a weak solution. In the case of NATO, it was able to convincingly argue during the bombing campaign that its targeting of dual-purpose facilities was an effort to reduce the efficacy of the Yugoslav military (ICRC 1977: Art. 54). NATO took this tack in their public pronouncements despite the fact that damaging the electrical grid affected the civilian population of Yugoslavia disproportionately – thus arguably violating Thomas Aquinas’ arguments toward proportionality in just war theory. Nevertheless, the postwar report by the United Nations on potential war crimes committed during the campaign found NATO’s arguments convincing; the UN declared that NATO had not committed war crimes against the civilian population of Yugoslavia for the reasons that NATO outlined (UNEP 2000). Given that NATO’s attack, however, disproportionately affected the civilian population, whereas the military had private generators and was able to adapt, the current laws are insufficient and as such create an ethical quandary when it comes to preventing water from being weaponized during conflicts. As this ethical and legal quandary serves the interests of state actors, however, it is unlikely to be resolved in favor of the civilian populations in the immediate future. Both NATO and Yugoslavia applied the belief that state interests, and wartime ethics, trump ethical concerns that may otherwise be significant in peacetime. Problematically, while paramilitaries’ targeting of the Kosovar Albanians’ water security was an important component of the ethnic cleansing campaign, the physical attacks on the Kosovar Albanian population are both where scholars and legal experts after the conflict directed their focus. Only minimal attention has been given to how the Yugoslav forces’ efforts to imperil the civilian populations water security

190

J. Horncastle

facilitated the ethnic cleansing of the province (Human Rights Watch 2001). Because practitioners and politicians perceive it as being tied to broader developments within war, water securitization is often neglected. The lack of attention given to it after the fact, however, makes it appealing for politicians and military officers to resort to such tactics in time of war. Water’s weaponization in Kosovo raises an important question: What can be done beyond the existing measures to protect civilians’ water supply in times of war from belligerent actors? The reason that water continues to be weaponized not only in Kosovo but also in other present-day conflicts is that there is a significant gap in the Geneva Conventions between the necessity of protecting civilian populations and regulating the nature of war. Following the Second World War, the 1949 Geneva Convention sought to limit the abuses suffered by civilian populations, but it was seen as insufficient. The 1977 Addendum sought to further restrict the actions of armies that could damage the civilian population (ICRC 1977). However, the Geneva Conventions are a series of documents that, while intending to civilize war and limit its impact on non-combatants, work to normalize war’s use in international relations (Ratner 2011). In short, the 1949 Convention primarily works to legitimize the actions of armies, rather than act as a punishment mechanism for those who violate its principles. While some may view the Geneva Conventions as restricting documents in the sense that they limit certain forms of warfare, there remains a wide swath of means by which states can prosecute war. Furthermore, the necessities of war often mean that peacetime ethics are ignored, although many practitioners argue that this is for valid, and in some cases ethical, reasons. The realities of war often force states and armies to adopt the principle that the expediency of ending the war outweighs consideration of peacetime ethical matters. For all their goals and aspirations, the Geneva Conventions are typically ignored or interpreted in such a manner as to mitigate their influence when they appear inconvenient to states and armies’ objectives. NATO’s bombing campaign of Kosovo demonstrated that the expediency of eliminating popular support for Milosević triumphed over considerations of imperiling water security for a vast majority of the Yugoslav population. By ending the war as expediently as possible, NATO minimized the long-term damage done to the civilian population (Lebow 2007). NATO’s bombing campaign demonstrated that the water security of a population is often one of the first principles sacrificed by states in pursuit of military expediency, thus conforming to securitization scholars’ expectations. The ethics of waging war, in other words, outweigh the ethical concerns of providing potable water to the civilian population. That said, given that the same argument was used for strategic bombing in the Second World War, and post-analyses of the campaign frequently demonstrate the inefficiency of this style of warfare, the underlying premise of it possessing a military expediency needs to be fundamentally questioned. The Kosovo war in 1999, while commonly associated with the rise of R2P, also helped give rise to the recognition that more needs to be done for water security. Devlaeminck convincingly argues that, given that water is a human right, it is covered under the principles of R2P, which requires states to intervene in instances

10  The Ethics of Water Securitization: Understanding the 1999 Bombing Campaign…

191

of genocide, war crimes, ethnic cleansing, and crimes against humanity (Evans 2008). As the water security of a population is often directly linked to the above factors, it is not explicitly stated. The United Nations’ General Assembly, recognizing this oversight, in 2010 reaffirmed that the right to water is a human right (United Nations General Assembly 2010). Unfortunately, as it was passed by the General Assembly, the legal implications of the vote are minimal, and states continue to use legal distinctions to act in an unethical behavior. Nevertheless, just because compromising the water security of a population is difficult to prosecute does not make it ethically right. If NATO’s campaign against Yugoslavia were the only instance where a state actor compromised the water security of a civilian population, it would be less worrisome. As the Pacific Institute’s Water and Conflict Chronology demonstrates, the weaponization of water is becoming a troublesome trend in civil conflicts, which one could claim the insurrection in Kosovo was before NATO intervened (Pacific Institute 2019). In the Darfur war, the Sudanese central government cut off water access to the rebel forces as a means of coercing their acquiescence, much as Milosević and the paramilitaries did in Kosovo (Schlein 2011). Likewise, in the ongoing Syrian civil war, outside observers have documented how the Islamic State has sought to restrict water access to predominantly Shia areas for both practical and ideological purposes (DuBois King 2015). In short, the problem of state and sub-state actors compromising the water security of civilian populations for what they believe is the greater good is a problem that is not going away. Unfortunately, the current international environment makes it unlikely that significant progress will be achieved in protecting civilians’ right to clean and adequate water in wartime. While the UN Security Council has held three sessions in the past 2 years on the relationship between water and security, the effects of these meetings on international conflicts has been minimal. The fact that both state and sub-state actors are weaponizing water speaks to the pressing need for this issue to be addressed, but at the same time underscores that only a multilateral approach will help to stem the problem. Regrettably, the most dominant actor in international relations, the United States, has signaled that it is not in favor of multilateral treaties and instead is focused on bilateral agreements (Dionne Jr. 2018). Without an activist great power taking the matter seriously and attempting to impose international norms, it is likely that water security will remain a tool for states to exploit pursuing policy. While from a moral and ethical standpoint it is clear that water should not be weaponized as a tool against civilian populations, the nature of warfare, and particularly the dominance of the concept of total war, means that the line between civilian and military is increasingly blurred. Necessary for both military and civilian applications, water and its utility to both groups allow generals and politicians to apply pressure to noncombatants by arguing that it is a military necessity. Without specific legal clarification on at what point excessive duress caused by water insecurity on a civilian population constitutes a war crime, states will continue to bend these laws, and peacetime ethics, to pursue military and political objectives.

192

J. Horncastle

10.6  Conclusion Even if military and political leaders did not articulate it in such terms, water securitization played a vital role in the policies of both parties involved in the conflict. In the case of the Federal Republic of Yugoslavia’s efforts to nationalize Kosovo, water was employed as a weapon both before and after the conflict in pursuit of a greater Serbian state. By limiting water infrastructure development and deliberately destroying what little infrastructure existed after the conflict, the Republic sought to create conditions whereby the Kosovar Albanians would emigrate from the region. In the case of NATO, while disrupting the water security of Serbia proper was a policy tool and NATO leaders believed this act to be one that was ethical for bringing the war to a more rapid conclusion, it could not portray the act in such terms for fear of compromising domestic support. Even though American air doctrine considered targeting facilities such as the electrical grid and water treatment facilities as crucial for creating pressure on the Serbian government, political considerations meant that this was impossible, at least initially. As Milosević remained defiant, and NATO bombing of military installations proved incapable of cowing him, targets with implications for the water security of the Republic, as well as other countries in the region, became more viable. While some might argue that such actions were useful in ending the conflict, such actions created serious consequences for the area that have continued to the present. Furthermore, they highlight the fact that while countries, due to humanitarian and ethical concerns, have sought to limit the water security of a civilian population from being targeted in war, it is often one of the earliest principles sacrificed in wartime conditions. Only through more concrete legislation over viable targets in war will the matter be resolved, but the current international climate means that ethics surrounding a civilian’s right to water are likely to be some of the first principles sacrificed in wartime well into the future. While water security and conflict studies’ academics have often overlooked the weaponization of water in international conflicts, instead either ignoring it or looking at its potential for bringing cooperation between states, it should not be overlooked, even if the more direct actions perpetrated by armies receive more attention.

References Alam U (2002) Questioning the water wars rationale: a case study of the Indus Water Treaty. Geogr J 168(4):341–353 Ashford M-W, Gottstein U (2000) The impact on civilians of the bombing of Kosovo and Serbia. Med Confl Surviv 16(3):267–280 Bakker K, Cook C (2013) Debating the concept of water security. In: Lankford B, Bakker K, Zeitoun M, Conway D (eds) Water security: principles, perspectives and practices. Routledge, Milton Park, pp 49–63 Barnaby W (2009) Do nations go to war over water? Nature 458:282–283

10  The Ethics of Water Securitization: Understanding the 1999 Bombing Campaign…

193

Biswas AK, Tortajada C (2015) Water security, climate change, and sustainable development. In: Tortajada C, Biswas AK (eds) Water security, climate change and sustainable development. Springer, New York, pp 7–27 Brown LR (2000) How water scarcity will shape the new century. In: Stockholm water conference. Earth Policy Institute, Stockholm Browning CS, McDonald M (2011) The future of critical security studies: ethics and the politics of security. Eur J Int Rel 19(2):235–255 Clark H (2002) Kosovo: work in progress – closing the cycle of violence. Coventry University, Coventry Cohen EA (2001) Kosovo and the new American way of war. In: Bacevich AJ, Cohen EA (eds) War over Kosovo: politics and strategy in a global age. Columbia University Press, New York, pp 78–116 Cordesman AH (2001) The lessons and non-lessons of the air and missile campaign in Kosovo. Praeger, Westport Daalder IH (2001) Winning ugly: NATO’s war to save Kosovo. Brookings Institution Press, Washington, DC Devlaeminck D (2013) The human right to water and the responsibility to protect. McMaster University, Hamilton Dionne Jr. EJ (2018) French president provides a defense of multilateralism. The Washington Post, April 29 DuBois King M (2015) The weaponization of water in Syria and Iraq. The Washington Quarterly 38(4):153–169 Evans G (2008) The responsibility to protect: ending mass atrocity crimes once and for all. The Brookings Institution Press, Washington, DC Geissler E, Guillemin J (2010) German flooding of the Pontine Marshes in World War II: biological warfare or total war tactic? Politics Life Sci 29(1):2–23 Gerolymatos A (2000) The Balkan wars: conquest, revolution and retribution from the Ottoman era to the twentieth century and beyond. Basic Books, New York Gocanin S (2019) Serbian accusation lingers of link between NATO bombing, health woes. Radio Free Europe, March 25 Gordon MR (1999) Crisis in the Balkans: the overview – NATO air attacks on power plants pass a threshold. The New York Times, May 4 Gregory RH (2015) Clean bombs and dirty wars. University of Nebraska Press, Lincoln Hoffman PJ, Weiss TG (2017) Humanitarianism, war, and politics: Solferino to Syria and beyond. Rowman & Littlefield, Lanham Human Rights Watch (2001) Under orders: war crimes in Kosovo. Human Rights Watch, New York Ignatieff M (2000) Virtual war. Metropolitan Books, New York International Committee of the Red Cross (ICRC) (1977) Article 54. In Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June. ICRC, Geneva Judah T (2000) The Serbs: history, myth and the destruction of Yugoslavia. Yale University Press, New Haven Judah T (2002) Kosovo: war and revenge. Yale University Press, New Haven Kurtaj H (2015) KLA war in Nerodime operation area. Qendra, Prishtina Lambeth BS (2001) NATO’s air war for Kosovo: a strategic and operational assessment. Rand, Santa Monica Lebow RN (2007) Coercion, cooperation, and ethics in international relations. Routledge, New York MacLennan JA (2017) From protection to policing: military air power and the governance of humanitarian crises, 1992–2011. PhD thesis. Carleton University, Ottawa Murray W (2008) Versailles: The peace without a chance. In: Murray W, Lacey J (eds) The making of peace: rulers, states, and the aftermath of war. Cambridge University Press, Cambridge, pp 209–239

194

J. Horncastle

North Atlantic Treaty Organization (NATO) (2019) NATO’s role in Kosovo. http://www.nato.int/ cps/en/natolive/topics_48818.htm. Accessed 22 Feb 2020 Pacific Institute (2019) Water conflict chronology. https://www.worldwater.org/water-conflict. Accessed 22 Feb 2020 Rahaman MM (2012) Water wars in 21st century: speculation or reality? Int J Sustain Soc 4(1):3–9 Ramet SP (2005) Thinking about Yugoslavia: scholarly debates about the Yugoslav breakup and the wars in Bosnia and Kosovo. Cambridge University Press, Cambridge Ratner SR (2011) Law promotion beyond law talk: The Red Cross, persuasion, and the laws of war. Eur J Int Law 22:459–506 Reitman V (1999) Kosovo wells emerging as mass graves. Los Angeles Times, August 10 Schlein L (2011) Water scarcity root of Darfur Conflict. VOA News, June 10 Sinha UK (2005) Water security: a discursive analysis. Strateg Anal 29(2):317–331 Trotter WR (2003) The winter war: the Russo-Finnish war of 1939–40. Aurum Press, London UNHCR Standing Committee (2000, February) The Kosovo refugee crisis: an independent evaluation of UNHCR’s emergency preparedness and response. Accessed 20 Sep 2020. https://www. unhcr.org/excom/standcom/3ae68d19c/kosovo-refugee-crisis-independent-evaluation-unhcrsemergencypreparedness.html United Nations Environment Programme (UNEP) (1999) The Kosovo Conflict: consequences for the environment and human settlements. United Nations, Geneva United Nations Environment Programme (UNEP) (2000) United Nations High Commissioner for Refugees (UNHCR). 2000. The Kosovo refugee crisis: an independent evaluation of UNHCR’s emergency preparedness and response. UNHCR Evaluation and Policy Analysis Unit, Geneva United Nations General Assembly (2010) Resolution 64/292. https://www.un.org/en/ga/64/resolutions.shtml. United Nations International Criminal Tribunal for the former Yugoslavia (ICTY) (2000) Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign against the Federal Republic of Yugoslavia. ICTY, The Hague Valentino BA (2004) Final solutions: mass killing and genocide in the 20th century. Cornell University Press, Ithaca Weller P, Rickwood P (1999) Kosovo: war on the environment. The Ploughshares Monit 20: 3. https://ploughshares.ca/pl_publications/kosovo-war-on-the-environment. Accessed 9 Feb 2020 Whetham D (2008) Ethics, war, and human rights. Def Strateg 8(1):49–57 World Health Organization (1999) Report on Kosovo hospitals. WHO, Geneva Wright J (2001) European security after Kosovo. In: Buckley M, Cummings S (eds) European security after Kosovo. Continuum, New York, pp 219–232 Zeitoun M, Lankford B, Bakker K, Conway D (2013) Introduction: a battle of ideas for water security. In: Lankford B, Bakker K, Zeitoun M, Conway D (eds) Water security: principles, perspectives and practices. Routledge, Milton Park, pp 3–10

Part III

Contemporary Water Ethics: Policy and Decision Making

The third part of the volume draws heavily on the concepts discussed in the first two parts. It combines the broad ethical principles discussed in Part I, and their manifestation in different geographies as described in Part II, to better understand contemporary water challenges and to find ethically justifiable ways of responding to them. The chapters address many knowledge gaps in water policy circles, but often extend beyond that domain to review overarching political and decision-­making processes. In particular, the contributing authors deconstruct policy issues that are considered to be within the political science or economics or engineering domains and reconceptualize them through ethical perspectives. This reconfiguration of policymaking and decision-making approaches is meant to help envision a different way of managing the “water business” and inform processes within various policy tiers – ranging from local to national to international to global. “Water Pricing: A Strategy for Rights Fulfillment or Rights Violation” is an important dilemma that is skillfully addressed by Kerry Ellen O’Neill in Chap. 11. The context for her analysis is rooted in the United Nations General Assembly Resolution 15/9, which recognized access to safe water as a human right in 2010. She argues that while fulfillment of this right to water may ostensibly lead to the public sector financing this service, an ethically defensible approach must include ways of pricing it fairly. The ability of countries in the global South, with generally limited financial resources, to meet the right to water may be dependent on pricing the service and on restructuring to achieve a more supportive global order. In Chap. 12, Rebecca Dziedzic drills even deeper into “Ethics of Infrastructure Reinvestment” to explore ways of surmounting worldwide investment deficits in water infrastructure. She highlights the enormous magnitude of the challenge and its underlying causes – mostly a failure to constantly renew and rejuvenate aging infrastructure assets. The investment gaps exist in all countries, but pose greater threats to public health and safety in developing countries. Reviewing a brief history of the prior assumptions, biases, and potential pitfalls allows her to argue that ethical codes in various professional practices related to public safety are essential. Infrastructure investment approaches, however, must also include ways of overcoming systemic discrimination and minimizing social and environmental impacts.

196

III  Contemporary Water Ethics: Policy and Decision Making

Graham Mayeda investigates “Philosophical Issues in Water Law” in Chap. 13 as a way of assessing the value systems that underlie various regulatory approaches used to manage water. He divides his analysis of water laws into three jurisdictional levels: non-state-based regulations, national laws (public and private law approaches), and international water laws. He contrasts instrumental water law approaches, which consider the value of water primarily for anthropogenic purposes, with non-instrumental water law approaches, which presume that water is valuable in itself. He suggests that improper development of laws can result in profound policy consequences for specific groups. For example, the dominant gender, race, and social class may develop legal rules that favor their own interests. In Chap. 14, Carolyn Johns reviews “Ideas, Values, and Ethics: Integrating a Values-based Approach into Water Policy in Canada.” Using Canada as a case study, she explores how water policies may be driven by value systems. She unpacks how these values gained the attention of policymakers in the past, particularly pertaining to the interface with Indigenous populations in Canada and their value systems, and how they might influence water governance in future. Based on findings of the RBC Canadian Water Attitudes Survey over the years, she argues that greater integration of multidisciplinary approaches is critical to the promotion of a new, alternative water ethic. In Chapter 15, Deborah Harford examines “Streams of Consciousness: New Demands on Philosophy and Water Policy in a Crowded World.” Echoing the arguments presented by Carolyn Johns, Harford argues that a new set of values is needed. She extends that argument further by stating that worldwide interconnectedness should be underpinning our thinking toward any new philosophical approaches. Harford suggests that a global shift is already taking place and cites a Canadian urban success story to bolster her position. Zafar Adeel takes on a more “Ethical Dimensions of Water-Related International Development Agenda” perspective in Chapter 16. He proposes that a significant redesign of the international development architecture pertaining to water may be needed to achieve global targets of poverty eradication, universal health care, universal education, hunger eradication, and gender equality. He considers some underlying dilemmas as the world attempts to achieve the UN Sustainable Development Goals (SDGs) by 2030 and offers insights into the adverse consequences of less-than-perfect achievement of the SDGs. This final section of the book brings together strands of policies for economic development and growth, water laws at different jurisdictional scales, human rights considerations, and responsibilities of the international community. Like a jigsaw puzzle, these pieces must align with each other using a common but innovative water ethic as the glue and must fit well enough to avoid leaving social or development gaps  – particularly gaps that leave out peoples who are often politically, socially, and economically marginalized. This section also sets the stage for the concluding chapter of the book, in which the volume editors piece together a set of future scenarios for ethical water stewardship.

Chapter 11

Water Pricing: A Strategy for Rights Fulfillment or Rights Violation? Kerry Ellen O’Neill

Abstract  Providing and gaining access to safe drinking water has been a challenge across millennia. Today, approximately two billion people lack secure and sustainable access to safe water. In 2010, the United Nations’ member states voted in favor of Resolution 15/9, recognizing access to safe drinking water as a human right. In this chapter, I examine the role that water pricing plays in the fulfillment and violation of the human right to water. I argue that a tax base or other forms of public revenue, where feasible, should be used to cover the cost of a minimum amount of safe drinking water. Under the current global order, it may not be economically possible for many nations, especially countries in the global South, to cover the cost of a minimum amount of water; however, a restructuring of the global order could enable nations in the global South to use their public revenue to provide their citizens with access to a minimum amount of safe drinking water. Keywords  Water pricing · Human rights · Moral rights · Safe drinking water

11.1  Introduction In 2010, the United Nations recognized safe drinking water as a human right – a right deemed necessary for leading a dignified life and for the realization of all other human rights – through Resolution 15/9 (UNHRC 2010). As a result, the UN and other international organizations have sought to find ways to secure the right to water, especially for populations who have traditionally been unserved or underserviced with regard to safe drinking water access. Water pricing – the idea that providing water services costs money and that this cost must be recovered – is one strategy being used by international organizations and national governments to secure access to safe drinking water. In this chapter, I explore the strengths and weaknesses of water pricing. In doing so, I argue that water pricing often (though not always) violates the right to water. K. E. O’Neill (*) Carleton University, Ottawa, ON, Canada e-mail: [email protected] © Springer Nature Switzerland AG 2021 I. L. Stefanovic, Z. Adeel (eds.), Ethical Water Stewardship, Water Security in a New World, https://doi.org/10.1007/978-3-030-49540-4_11

197

198

K. E. O’Neill

First, I offer a primer on moral rights before moving on to provide a brief history of freshwater provisioning to show that water pricing is not a new phenomenon. I then describe how water came to be understood as an economic good in contemporary society using the Dublin Principles (The Dublin Statement on Water and Sustainable Development: United Nations 1992). Next, I turn to an examination of water pricing and draw on Bolivia and South Africa as water pricing case studies. In the final section of the chapter, I provide arguments showing how, depending on the water pricing strategy used, the nonfulfillment of the human right to water can be understood as a violation of the right. Given this consequence, I conclude that taxes (national or global) could be used as one strategy to cover the cost of 50 L of water per person per day, just as taxes are used to pay for other basic human needs of citizens.

11.2  The Human Right to Water In July 2010, the United Nations formally recognized the right to “safe and clean drinking water and sanitation as a human right that is essential for the full enjoyment of life and all human rights” (UNGA 2010). That same year, the UN Human Rights Council entered the right to water and sanitation into international law through Resolution 15/9 (UNHRC 2010). If access to water is a right, then we first need to know what it means for some object X to correctly be considered a right and what, if anything, a right requires us to do. Rights are typically classified as moral rights or legal rights (Buchanan 2013; Nickel 2007; Shue 1996). A moral right, according to Henry Shue, “provides (1) the rational basis for a justified demand (2) that the actual enjoyment of a substance be (3) socially guaranteed against standard threats” (1996). Moral rights allow us to make justified demands for the enjoyment of some right X that is socially guaranteed. When human rights are considered moral rights, one is able to criticize oppressive regimes for rights violations, even if the regime fails to accept the existence of or fails to recognize certain, or all, human rights in their legal systems (Nickel 2007). Since the right to subsistence is, according to Shue, a moral right, it necessarily follows that access to water is a fundamental component of ensuring that this right is realized. The right to water allows individuals to make justified demands for the actual enjoyment of the right to water and requires that this right be socially guaranteed against standard threats. In this way, moral rights provide individuals with the ability to demand that others, through correlative duties, fulfill their rights or, at a minimum, do not prevent their rights from being fulfilled. Consequently, one can argue that a government violates the right to water even if that government has not enacted legislation regarding access to safe water and refuses to accept that access to safe water is a human right. A moral right also provides the demand for the actual enjoyment of whatever the substance of the right consists of. A moral right not only enables us to make the demand of others, but also allows us to demand the conditions that make the enjoyment of that right possible. Concerns here arise from the fact that a proclamation of

11  Water Pricing: A Strategy for Rights Fulfillment or Rights Violation?

199

some right X does not mean that the right is being fulfilled, as proclamations are sometimes used as a substitute for the fulfillment of that right (Pogge 2011). For Shue, the social guarantee is the final and most important aspect of a right because the social guarantee generates the correlative duties (1996). For something to be a right, other people must make arrangements to ensure that one is able to enjoy the content of one’s right, especially if one does not have the power or ability to secure the substance of the right on one’s own (Shue 1996). The social guarantee acts as a safety net whereby if someone is unable to secure the substance of a right, then society steps in to secure the right for that person. If we understand rights in the way that Shue intends, then it follows that certain others are duty-bound to create and maintain just institutions that enable people to realize their rights and protect these rights from violations (1996). If our global institutions are unjust and ineffective at fulfilling rights, which they are, then it is our duty as citizens of the world to create institutions that are better suited to fulfill rights. A central component of a right is the ability to make a justified demand to others, thereby creating the relevant duties. According to Shue, there are three correlative duties for every basic right (rights essential for the enjoyment of all other rights and the rights that can be demanded if no others can be). These duties are (1) duties to avoid depriving; (2) duties to protect from deprivation; and (3) duties to aid the deprived (1996). Interestingly, General Comment no. 15 (on the right to water) imposes at least three obligations on member states: obligations to respect, protect, and fulfill the right to water (UNCESC 2002)  – the very duties Shue outlines as critical to the fulfillment of any right. This explicit understanding of the important role that water plays in the fulfillment of the right to an adequate standard of living and the right to the highest attainable standard of health led to the UN’s formal recognition of the right to water in 2010.

11.3  A Brief History of Drinking Water One of the oldest known water laws comes from a Jewish law in Ur, Mesopotamia, circa 3000 BCE. As reflected in the Talmud, naturally occurring water was considered common property; if one came upon a water source, like a river or stream, then one was able to consume the water by right (Caponera and Nanni 1992). In many circumstances, however, water came from wells. In these cases, well water was viewed as a community resource, but was not free to whomever and for whatever purposes. Access to well water was prioritized according to the water’s intended use. Water to be used for drinking was given priority over water to be used for other purposes, with the highest priority for access being granted to those in need of drinking water, whether or not the individual was a member of the well’s community of owners (Salzman 2012). This Talmudic law amounts to what is known as the “Right of Thirst,” whereby a person in need of water is able to gain priority access to the water source and cannot be denied drinking water.

200

K. E. O’Neill

Followers of Islam also expressed a conception of the Right of Thirst in their belief that water was a gift from God to all his peoples. According to Islamic tradition, sharing water was understood to be a holy duty. Water needed for basic survival was considered a right common to all people within and outside the community. Islamic water law was adopted into the legal code of the Ottoman Empire and can still be seen in practice by the Bedouin in the Negev and the Berbers in Morocco (Salzman 2012). The takeaway from these historic examples is that across cultures and historical periods, people rarely, if ever, turned away those in need of water. The reason for this was simple. Individuals could easily find themselves without water and at the mercy of others to provide it. Thus, while drinking water has been closely monitored and protected by communities, those who find themselves in need of drinking water were rarely refused it, signifying the widespread acceptance of water as a moral right, since access to water was not protected by law at the time. Similarly, the fact that thirsty individuals were not turned away also shows that communities and individuals not only believed they had a duty to provide drinking water to those in need, but also felt obligated to act on this duty. While communities have had laws governing water usage for millennia, Rome was the first major city to manage drinking water as a priced resource through the vectigal and the lacus. (The Marcia aqueduct, built in 144 BCE, was specifically intended for drinking water.) The lacus served one primary function: to provide Romans with the water they needed for domestic use free of cost. The lacus were so common that most people collected their water from these public basins. Not everyone, however, relied on the lacus; the Roman economic system was heavily dependent on the demand for private water. Around 40% of water delivered in Rome was delivered to private buildings, including private households. The convenience of piped water delivered to a house came at a cost: a special water tax called a vectigal. The amount of tax one paid depended on the size of the water supply nozzle in the building, rather than the amount of water used. Because of the constant flow of water through the pipes, it is estimated that the amount of water delivered to a Roman household per day was equivalent to a modern household’s water usage for 2 months (Salzman 2012). Having piped water into a household was and still is a sign of considerable wealth. The Roman water system, therefore, had two distinct yet interconnected economic components: the lacus and the vectigal. The funds raised by the vectigal remained an integral part of Roman water infrastructure; the funds were used to cover the costs of maintaining the water system, thereby allowing the lacus to remain functional. Hence, for those affluent enough to afford piped water, water was treated as a priced good. (The water itself was free; the wealthy paid to have it delivered to them.) Roman leaders recognized the importance of maintaining their system of water delivery, and the vectigal provided a secure source of money for infrastructure maintenance and development. And yet, water for the average Roman was free for the taking – from the lacus or nearby rivers. In essence, water from the lacus was a fully subsidized municipal service (Salzman 2012).

11  Water Pricing: A Strategy for Rights Fulfillment or Rights Violation?

201

It is clear that, to some extent, water was understood differently in Rome than in communities that upheld the Right of Thirst. What remains undeniable is the clear expression of the moral right to water present throughout the historical examples. For Rome, water was understood as both a public good and private good. It is Rome’s classification of water as a private good that enabled the city to provide cross-subsidized drinking water to ensure that drinking water retained its public nature. This model of subsidized drinking water would continue for some 500 years before evolving into a system more recognizable to our present water systems (Salzman 2012). Rights-based water management has existed since the formation of communities. This is not to say that ancient communities had entrenched laws providing citizens with the right to water through legal doctrine. Instead, many ancient communities, like the ones mentioned above, seem to have acknowledged drinking water as a moral right – something a person could not be denied on the basis of their humanity, especially when in dire need. Rules, whether customary or codified, have traditionally governed the use of water, and often prioritized drinking water over other water uses. Payment for water services has also existed for at least a few thousand years. Water rights and water markets have often coexisted alongside one another, as seen in the case of Rome. As a result, it can be difficult to assess whether and to what extent water pricing may contradict theories of human rights. Some authors argue that charging individuals for water does not violate rights, while others argue the opposite point: water should be free because it is a human right. To determine if water pricing results in violations of the human right to safe drinking water, it is helpful to look at different examples of water pricing schemes. It is not possible to claim that all water pricing initiatives violate the right to safe drinking water on the basis of a handful of particular examples. We can, however, examine cases of water pricing, determine the benefits and burdens of those strategies, and make assessments about which strategies are preferable. The mere existence of water pricing does not entail that those unable to afford water will be denied access to it, but practical difficulties may make it difficult for people to gain access to safe water when pricing strategies are employed. Historically, those with the means to do so have been able to pay for water services. Where this discussion becomes particularly challenging is when individuals cannot afford to pay for safe drinking water.

11.4  Water Becomes an Economic Good Drinking water has largely been viewed as a public good throughout history. Over the last several decades and with the rise of capitalism, this idea has been challenged; society increasingly views water as a private good, thereby inviting notions of water pricing and the privatization of water systems. With a few

202

K. E. O’Neill

exceptions, the global North primarily has public water systems, whereas the global South relies chiefly on privatized (and, in many cases, informal) water systems (Rahaman et al. 2013).1 The 1992 Dublin Statement on Water and Sustainable Development (Dublin Principles) led to a critical turning point in the way water was viewed. The Dublin Principles arose from an international conference on water and the environment, where it was concluded that human health and welfare were at risk unless water and land resources were managed more effectively in current and future decades than they had been in previous decades (United Nations 1992). Out of the conference came four guiding principles that significantly impacted the way the world interpreted drinking water specifically. These principles are as follows: 1. Fresh water is a finite and vulnerable resource, essential to sustain life, development and the environment. 2. Water development and management should be based on a participatory approach, involving users, planners and policy-makers at all levels. 3. Women play a central part in the provision, management and safeguarding of water. 4. Water has an economic value in all its competing uses and should be recognized as an economic good. (United Nations 1992) Thus, water should, according to the Dublin Statement, be understood as an economic good, and just like any other good, water should come at a cost. Water pricing gained popularity during the 1990s, resulting in and because of the Dublin Principles, as a policy intervention strategy to affect the environmentally, socially, and economically efficient use of water (Dinar et al. 2015). Beginning in the late 1980s and early 1990s, international development agencies began promoting water pricing initiatives and conditioned loans and other financial aid on governments enacting pricing schemes to secure project funding. Due to increased attention on water and environmental issues, many countries have turned toward water pricing as a policy tool to help manage water consumption. Dinar et al. note that while everyone agrees that water is essential for life, the more challenging aspect has to do with how water should be regulated by society. There is no single best way of managing water resources, and so there is no single water pricing strategy that fits all scenarios (Dinar et al. 2015). Water pricing strategies must be examined to determine whether they contribute to the fulfillment of the right to water or whether they violate the right to water and prevent individuals from securing access to safe drinking water.

1  Most water systems in the global North are publicly subsidized. It is unlikely that these water systems will ever be completed privatized, because citizens of these countries would protest the high price of water. As we shall see, this is interesting given the fact that full cost-recovery pricing is often seen as necessary in the global South.

11  Water Pricing: A Strategy for Rights Fulfillment or Rights Violation?

203

11.5  Water Pricing: An Analysis Water pricing has become increasingly popular and widely implemented in recent decades through public, private, or public–private collaboration systems. Due to differing citizen needs, there is no single best approach for water pricing; the cost of water must be malleable so it can face different situations, depending on particular water sectors and water needs (Dinar et al. 2015). There are many clear benefits to water pricing for countries in the global South. It is beyond the scope of this chapter to weigh all the strengths and weaknesses of water pricing. However, I discuss some of the most pertinent arguments in favor of water pricing and provide some objections to those claims. One of the most significant ways in which water pricing is beneficial is its ability to provide financial resources for infrastructure development. Many countries in the global South lack adequate water supply infrastructure, and public water utilities do not have the funds required to build new and maintain current water infrastructure. Simply put, the water provision available in developing countries is subpar because of the lack of capacity of public utilities (Salzman 2012). This state of affairs has resulted in a considerable shift of support from public water utilities to private water utilities in the global South. The privatization of water can range from complete privatization of water infrastructure, to public–private agreements, to management contracts, and even to leases (Salzman 2012). The provision of water is not limited to large-scale endeavors, as most countries in the global South have an informal water sector (such as water tanker trucks and bicycles) that provides water delivery services at a much steeper cost (Bluemel 2004). The privatization of water services provides multiple benefits; many argue that privatization is the answer to the problem of safe drinking water in the global South (Salzman 2012). When the public sector is unable to come up with the capital required, the private sector can typically gather the technological resources and capital needed for investments that improve water services and ensure efficient management of the water system. Thus, one benefit of a private water system is the increased access to private capital. Private companies, driven by profit, focus on efficiency and have access to much larger sums of money in shorter periods of time than local governments (Salzman 2012). Another benefit of privatization is that water services are less vulnerable to corruption than when under the control of local governments (Salzman 2012). Some argue that when local governments, which are easily corrupted in developing countries, manage public water systems, officials may not make the best use of the resources and capital available for water infrastructure (Rahaman et  al. 2013; Pogge 2007).2

2  Growing evidence suggests that privatization can promote corruption in the global South. Moreover, corruption, through bribes, has been widely accepted in business negotiations between the global North and global South, and was only recently (in 1999) curbed by the global North.

204

K. E. O’Neill

It is indeed a grave problem that public water utilities are often unable to come up with the necessary resources and capital to maintain existing infrastructure or build new infrastructure. Though, the problem with public water infrastructure runs deeper than most of us care to admit and requires much more attention than is often given to it within the literature on water pricing. The international community is responsible for at least some of the current inability of countries in the global South to come up with the necessary public funds to cover the cost of water infrastructure. Beginning in the early 1990s, international development agencies promoted water pricing initiatives: receiving financial help (via loans and other development aid) was conditioned on implementing pricing schemes (Dinar et al. 2015). This meant that international financial institutions like the World Bank and the International Monetary Fund (IMF) made privatization a core lending condition to nations in the global South (Salzman 2012). When poor nations were unable to pay back their loans, the World Bank and IMF agreed to renegotiate the loans on the condition that structural adjustment programs (SAPs) be implemented in countries needing to renegotiate. These SAPs required nations to sell off their public enterprises and utilities and privatize all essential public services, including water (Barlow 2007). Indebted countries, in dire need of money, had little choice but to accept the conditions of SAPs and so were forced to privatize their water services to get their loans renegotiated. The 1990s were a crucial period for water pricing, as this was a time when various international organizations and international financial institutions encouraged poor nations to let in European water corporations and allow the corporations to run their water systems for profit. By 2006, most loans regarding water were conditional on privatization (Barlow 2007). Examples of this can be seen in the IMF loan conditions that explicitly contain water privatization and cost recovery conditions as a requirement of the loan. Countries including Benin, Honduras, Rwanda, and Senegal were required to transfer ownership of their water in order to receive their IMF loans (Rahaman et al. 2013). The right to water views nations as relatively isolated from one another in the sense that it fails to adequately take into account actions by the global North that have inhibited development in the global South. Thus, placing the onus for fulfilling the right to water on individual nations can be problematic, because doing so isolates nations from one another and from international institutions (including the World Bank and IMF), which hides the complex realities that nations face today, given the policies from SAPs, among others. Many nations have been unable to secure the right to water for their citizens because of (i) the way our current transnational production occurs; (ii) inequitable relationships of global inequity upheld through commerce; and (iii) imperialistic tendencies of the global North that allow it to shape international agreements and international financial policies (Miller 2009). Authors argue that such practices are nefarious, taking advantage of the weaker bargaining power of poor nations and violating the rights of the poor. In these cases, it can easily be argued that countries renegotiating their loans were involved in unfair bargaining interactions of the kind Richard Miller warns against. It is for these reasons that some authors claim we have a duty to aid nations whose

11  Water Pricing: A Strategy for Rights Fulfillment or Rights Violation?

205

rights we have previously violated (Miller 2009; Pogge 2001, 2002, 2011; Eweje 2006; Ikporukpo 2004).

11.5.1  Water Pricing as a Deterrent Some argue that an advantage to water pricing is its ability to deter wastefulness and protect against environmental degradation. As the standard of living and income has significantly increased over the last several decades, a growing middle class has led to a sharp increase in water use that is ultimately unsustainable (UNESCO 2015). Most, if not all, literature on water pricing emphasizes its ability to motivate wasteful water users to use water more efficiently to save money (Dinar et al. 2015; Van den Berg 2015; Meija et al. 2015; CMAP 2012; Ayoo and Horbulyk 2008). There are, however, problems with this argument and how it is portrayed. Caroline Van den Berg notes that there is no consensus on what effect different water prices have on consumer behavior, because little empirical work has been done on this matter (Van den Berg 2015). Most literature on water pricing takes for granted the idea that water pricing deters wastefulness, but it is difficult to find the origins of this claim. Van den Berg directs the readers to a paper by Dalhuisen et al. as proof of the statement that “pricing is an important means to reduce water consumption” (2015). Unfortunately, Dalhusien et al. present a meta-analysis of the price and income elasticities of residential water demand that is distinctly biased toward the United States. The authors themselves note that the income elasticities in Europe and elsewhere are sufficiently different from those found in the US (Dalhuisen et al. 2003). This analysis, however, has been widely cited across water pricing literature as evidence of the waste-deterrent effect of water pricing around the world.3 Importantly, an analysis of water pricing in the United States, or the global North more broadly, is not representative of the effects of water pricing in the global South, let alone all cities in the US. An analysis of residential water demand taken from a segment of the American population is not representative of all residential, urban, and rural locations. It would be false to conclude from Dalhusien et al. that water pricing is an important way of reducing water consumption, because this conclusion cannot be drawn from the analysis – and yet this is precisely what has been done. I find it difficult to assert the claim that water pricing promotes conservation given the apparent lack of proof for this claim. However, let us assume for argument’s sake that effective water pricing does promote water conservation; even so, there is still room for further reflection. Consider that the human right to water, according to Resolution 15/9, “entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses” (UNHRC 2010). The Resolution and I are strictly

 This analysis has been cited over 446 times and so is considered to be widely accepted.

3

206

K. E. O’Neill

concerned with the water required for basic human needs.4 Water used for basic needs is not wasteful consumption, and the amount being used for basic needs does not need to be conserved or deterred; the water is required to live. If we want to deter wastefulness, then we ought to be targeting mass consumers of water: the agricultural industry. A UN report claims that the agricultural industry is the largest user of water resources and accounts for approximately 90% of all freshwater withdrawals in most of the world’s least-developed, water-scarce countries (UNESCO 2015). Perhaps the agricultural sector should pay more for its water usage so as to conserve water usage within the sector, rather than further disadvantaging the world’s most vulnerable populations. Moreover, on an individual level, water users in the global North are more wasteful than their counterparts in the global South, and tend to receive water at a subsidized cost, allowing them to waste water for less money. (This is not limited to the global North–global South dichotomy.) Hence, those with the money to pay for water are more likely to use excessive amounts of water to, for example, water lawns, fill swimming pools, and take long showers. Given the high discrepancies between incomes both within and outside of countries in the global South, there exists the likely possibility that the economically powerful will continue to waste water at the expense of the poor, since it is the poor who will be the first group unable to afford safe water while the rich will continue to be able to afford being wasteful (Shiva 2002).

11.5.2  The Cost of Water Pricing Water pricing literature does not say what exactly the true cost of water is or should be, since the cost depends on a number of variables. There are three components for determining the true cost of water. The true cost of water must cover (i) capital for infrastructure; (ii) operating costs for pumping, treating, and supplying water; and (iii) management costs for running the bureaucracies responsible for water delivery. Even with these components considered, it can be difficult to determine what exactly the true cost of water is – and the cost varies across regions. Whatever the cost is determined to be in a particular context, there are a limited number of ways to cover the true cost of water: transfers, tariffs, and taxes (OECD 2010). Transfers include monies moved into a government or public utilities’ hands by a third party, such as development aid agencies or banks (in the form of loans). Transfers are difficult to rely on because of the undependable and unsustainable nature of such aid. Tariffs are the amount of money the consumer pays for their water usage. The final method to recover the costs of water is through the tax base. Through taxation, the government is able to subsidize to varying degrees the cost of

4  Peter Gleick (1996) argues that 50 L of clean water per day is needed for individuals to cover their drinking water, sanitation services, bathing, and kitchen and cooking activities.

11  Water Pricing: A Strategy for Rights Fulfillment or Rights Violation?

207

water paid by citizens. Both transfers and taxes play a significant role in determining what the tariffs to be paid are: that is, what price the people will be required to pay for their water. Those in favor of water pricing often claim that because the very poor already pay quite a bit for their water, it is likely that they could and would pay for piped water (Salzman 2012). Alongside other arguments in favor of water pricing, the ability to pay for water is often cited as a reason why those in the global South should pay for the water required for subsistence. Individuals in the global South do often have to pay for their water, either at the water source (well, borehole, etc.) or through the informal water sector and water vendors. However, the fact that people pay for the water needed for basic subsistence does not mean that they ought to pay for this water. If someone is asked whether one would prefer to have unsafe water or pay for safe water (piped or otherwise), it is foolish to think that they would answer otherwise than that they would pay for water. However, people often pay for their water at the expense of other necessary goods and services, making it difficult to claim that those in such circumstances have their right to water fulfilled. The UN calls for a pro-poor water pricing policy that would keep the cost of water as low as possible while still ensuring that enough money was being paid to cover the costs of maintenance and potential expansion of the water system (UNESCO 2015). But how do we determine what this price is? And what about those who are still unable to pay the amount required for water for subsistence? Ought we to deny water to those unable to pay for it? Surely not, but there is more than enough evidence to suggest that this is in fact what happens to those unable to afford water in cases of water privatization. In a 2006 UN-Water report, the UN notes that those from the wealthy sectors of society, almost exclusively, benefited from the private water services in the global South (UNESCO 2006). The fact is that the private sector sees providing water services to the poorest populations in a country as a high-risk enterprise, with few to no opportunities for economic return (Barlow 2007). Corporations are unlikely to invest in and develop water infrastructure in poor rural communities because the return on investment will not be as high. Private providers would likely disconnect services to those unable to pay their water bill to protect the provider’s efficiency and profitability, creating mass disconnection for those living in slums and poor regions (Rahaman et al. 2013). Public utilities must ensure that they can provide water to individuals, especially those who are left behind by the private water sector.5 Rural areas are seen as especially high risk by the private sector because of the population living in those areas. Those living in rural areas in Ghana, for example, are largely unemployed and uneducated, and often live on significantly below-­ average income levels. As a result, rural areas are considered unattractive to capitalists and multinational corporations bidding on water supply projects, and on

5  The Flint, Michigan, water crisis is one example of the failure of local government and public utilities to step in and provide citizens with access to safe water. See Jordan 2016.

208

K. E. O’Neill

this basis are often excluded from proposal bids (Rahaman et al. 2013). As Barlow (2007) succinctly argues, those people who cannot pay will not get served, at least not by the private sector alone. Another reason that the wealthy sectors of society benefited from the privatization of water is couched in the Millennium Development Goals (MDGs). Cities and highly populated areas were the main target of the water MDG because those were the areas where the biggest impact could be made in the shortest amount of time. There was also a political agenda in choosing to provide water services in urban areas. Politicians enjoy working on large-scale urban projects because of their increased visibility, in comparison to small-scale projects in rural areas. Large-scale projects also require more capital, which allows politicians more opportunities to misappropriate funds and engage in political corruption that benefits themselves rather than the community (WHO 2012; Mills and Garrett 2013). Through the use of public utilities, private investors and governments choose to service wealthier areas because of the convenience and the increased political impact. This has been one of the biggest criticisms of the MDG water target (7C) (Langford 2013).6 MDG target 7C did not help the poor and marginalized populations as intended; this is where the Sustainable Development Goals are supposed to step in, as their primary focus is alleviating poverty among the poorest and most marginalized populations. It is clear that urban populations benefited from the MDG water target, and not all of this benefit was from the private sector. Many of the two billion people who gained access to improved water sources did so through the public sector, and yet they still drink unsafe water (Onda et al. 2012; O’Neill 2018). Providing access to safe water in urban areas remains problematic, since not all urban areas could be serviced: urban slums, for instance, contain many narrow alleys, making it virtually impossible to service the areas. While the pro-water pricing proponents claim that the poor paying for water shows that they can and would continue to pay for safe drinking water, there is one remaining problem: How much should people pay, if at all? It is difficult to determine the affordability of water services, and no one, generalized agreement exists on the appropriate proportion (UNESCO 2015). A UN report asserts that those who are unable to afford the cost of water should be financially supported instead of lowering the cost of water, since lowering the cost benefits only the wealthy (UNESCO 2015). But what does this mean? How do we best support those who are unable to pay for the water they need for subsistence? Drawing from examples of South Africa and Cochabamba, Bolivia, the subsequent section of this chapter focuses on the question of whether water pricing can be said to fulfill the right to water or acts as a violation of that right.

6  Another criticism is that the MDGs were a vehicle for promoting privatization of water services rather than a method of quickly and efficiently securing universal and sustainable access to safe water.

11  Water Pricing: A Strategy for Rights Fulfillment or Rights Violation?

209

11.6  The South African Case Various water pricing strategies have been implemented to address growing concerns about the provision of safe drinking water to citizens. In this section, I argue that the South African water pricing strategy is one that successfully works toward the fulfillment of the right to water, particularly when compared to the privatization strategy put in place in Cochabamba, Bolivia, in 2000. When apartheid ended in 1994, around 37.5% of South Africans lacked access to basic water supplies; the majority of them (80%) lived in rural areas (Bluemel 2004). Exacerbating this problem was the fact that the majority of people lacking access to basic water supplies were black people and other marginalized groups within the country since, during apartheid, most of the nation’s water was concentrated in the hands of the white minority (Bluemel 2004; Schreiner 2015). In South Africa, water provision is recognized as a function of local governments. In 1994, the White Paper on Water Supply and Sanitation advocated for a social tariff, stating that “water services should be paid for by everyone except poor communities that were unable to afford basic services, in which case the state would subsidize the construction costs of the basic minimum services but not the operating, maintenance, or replacement costs” (Schreiner 2015). The White Paper also argued for a system of water pricing with a minimum of three block tariffs: social tariff, normal tariff, and marginal cost tariff for high levels of consumption (Schreiner 2015). The 1996 South African constitution explicitly recognized the right to sufficient water: the new constitution requires that international law be considered when interpreting its Bill of Rights (Bluemel 2004). This means that the South African government recognizes the right to water and interprets this right in a very similar manner to the right to water outlined in General Comment no. 15. According to the constitution, the right of access to sufficient water in s 27(2) does not mean the State is obliged to provide water freely to all its citizens. Rather, the State has an obligation to create mechanisms that enable people to have access to sufficient amounts of water (Government of South Africa 1999/2000). In spite of this, the South African government has traditionally interpreted the right to water as requiring the government to provide the water needed for survival free of cost, above which a progressive pricing schedule is used to recover costs (Bluemel 2004). In 2000, what is known as the Principle of Free Basic Water was introduced in South Africa. The principle argued that the inability to pay for water could not be used as an excuse to prevent poor South Africans from accessing the right to water and, in turn, this meant the social tariff (6 kl per household per month) should be provided free of charge, though interpretation of this principle varies across municipalities (Bluemel 2004). The right to sufficient water under the South African constitution also needed to be defined for the government to take any meaningful steps toward its fulfillment. “Sufficient water” is understood to refer to both the quality and quantity of water required to satisfy basic domestic needs (Government of South Africa 1999/2000).

210

K. E. O’Neill

The right to water in this context refers to the minimum quantity of water necessary for meeting basic needs that is also free from harmful substances. The Department of Water Affairs and Forestry in South Africa set the minimum quantity of water at 25 L per person per day and “the minimum cartage distance at 200 metres, with consideration for varying landscapes” (Government of South Africa 1999/2000). In an effort to combat disparity in access to basic water supplies, the South African government provided free basic water supplies to around 27 million people (60% of the population) between 1996 and 2002; it was anticipated that the entire population could have access to free basic water supplies by 2009 (Bluemel 2004). As of 2015, around 95% of the population has access to improved water sources for domestic use (Schreiner 2015). However, this number is likely inaccurate, given the way that access to water is measured and keeping in mind that having access to an improved water source does not mean people have sustainable access to safe water in adequate quantities (Onda et al. 2012; O’Neill 2018). The case of South Africa is, nevertheless, atypical, since the country already had well-functioning infrastructure in place and had substantial institutional and technical capacities as well as the economic development necessary to implement the right to sufficient water (Bluemel 2004). According to Bluemel (2004) there are at least three problems associated with the South African water pricing strategy. • First, the overall improvement in efficiency of the water infrastructure resulted in the elimination of systemic losses of water. While bad for the efficiency of the system, water leakage points serve as places of water access, upon which many impoverished people depend. Hence, the greater efficiency of the water pipes resulted in the loss of water points for many people. • Second, while quite developed, South Africa faces difficulties in fully implementing its right to water as a result of financial constraints, inadequate water sources, and local implementation limitations. • Third, and finally, the poor were disproportionately burdened by the cost of connection fees and tariff schedules that were designed to achieve full cost recovery. As is the case with many development projects, it is the marginalized groups that bear the brunt of the cost of development. These criticisms do not go unnoticed by the South African government. The 3rd Economic and Social Rights Report outlines and responds to several critiques. The report concludes by stating: Ideally, water should be free so that everyone can have access to water. Currently, the right of access to water is not enjoyed by everyone because water is not delivered free of charge to all the people of South Africa. The most vulnerable amongst the sectors of the community, the unemployed, people who live in dire poverty are amongst those denied access to the right of access to water. The cause of this is due to the inability to pay for water, uncompleted, abandoned and dysfunctional projects, which were initiated to supply water, infrastructure problems, unsolved problems between and amongst service providers (local authorities) who deliver water and sanitation services to the people. (Government of South Africa 1999/2000)

11  Water Pricing: A Strategy for Rights Fulfillment or Rights Violation?

211

Hence, the report recognizes the need for all parties (local, provincial, and national) to make coordinated efforts enabling the government to realize, to the best of its abilities, access to sufficient water (Government of South Africa 1999/2000). Although South Africa has not yet been able to achieve universal access to basic water, an admirable goal, it has made significant strides in working toward the fulfillment of the right to water. The provision of the minimum amount of water needed for subsistence (50  L per person per day, according to Gleick 1996) ought to be provided free of charge to consumers and ought to be paid for through taxes. In this way, all inhabitants of a nation would be able to have meaningful access to safe water regardless of their (in)ability to pay for the water. In cases where this is possible, the government would be fulfilling its obligations to protect people from deprivation through the designing of institutions that do not violate our duty to avoid depriving others. Governments would also be fulfilling their duty to aid, since they would be providing access to safe water to those who were their special responsibility. In respecting these duties, the government is also increasing its ability to avoid depriving individuals of their access to water.

11.7  Cochabamba, Bolivia While the South African water pricing strategy may be a clear example of water pricing being used to fulfill the right to water, the case of Cochabamba, Bolivia, is a clear example of the right to water being violated. The Cochabamba case study is an oft-cited example of the extreme greed of corporations and an example of how we ought not to go about fulfilling the right to water. In 1999, the World Bank recommended that Cochabamba’s municipal water supply company be privatized. Later that year, government subsidies ended, which allowed for the privatization of water through the Drinking Water and Sanitation Law (Shiva 2002). Water costs soared under the international water giant Bechtel, which was trying to recover its costs, and many users received water bills of USD $20/month in a country where the average minimum wage is less than USD $60/ month (Barlow 2007). People could not afford to pay the high increase in their water bills, and those unable to pay had their water cut off. Protests against water privatization began almost immediately: after 4 months, the Bolivian government terminated the privatization concession and forced Bechtel out of Cochabamba (Salzman 2012). Cochabamba is a case where the water pricing strategy constituted a violation of the right to water. Recall our duties for the right to water: (I) To avoid depriving (respect) (II) To protect from deprivation (protect)

a. By enforcing duty (I); and b. By designing institutions that avoid the creation of strong incentives to violate duty (I)

212

K. E. O’Neill

(III) To aid the deprived (fulfill)

a. Who are one’s special responsibility; b. Who are victims of social failures in the performance of duties (I), (IIa), and (IIb); and c. Who are victims of natural disaster.

In the Cochabamba example, the duty to avoid depriving is not being satisfied. Bechtel and its subsidiaries turned off the water for those who were unable to pay and, under the privatization concession, people were even charged for the rainwater they collected in cisterns (Barlow 2007). Hence, if they could not pay for water, they were unable to access water in any meaningful way and were therefore deprived of their right to water. In this way, the duty to respect the right to water went unmet. The duty to protect from deprivation also went unmet, since there was no enforcement of the duty to avoid depriving. Moreover, the institutions in place were designed in ways that violated the duty to respect – the exact opposite of duty II. As a result of the violations of duty I (to respect) and duty II (to protect), duty III (to fulfill) is also unmet in the Cochabamba scenario.

11.8  A Path Toward Fulfillment of the Right to Water Water pricing strategies can be used to secure sustainable access to adequate quantities and quality of water. One way this could be achieved is through a national tax plan. In Canada, for example, taxes are often used to cover the cost of services considered so important that no one ought to go without them. Taxes are used to pay for universal health care, hospitals, schools, post-secondary education, welfare, employment insurance, road works, and infrastructure. If we consider that for Shue, our subsistence rights include access to unpolluted air, unpolluted water, adequate food and clothing, and minimal preventive public health care, then Canada should expand what it pays through taxes to include safe water. However, not everyone believes that safe water should be provided through taxes or public revenue. Bruce Pardy argues that providing water through taxation entails the political ideology that water must be provided by the government alone, rather than by private means, meaning that the costs of water systems are not borne by those who use them (2011). Similarly, arguments can be made about the unfairness to others, who are forced to shoulder the burden of paying for water they do not use. The criticisms raised by Pardy (2011), however, fall short in at least three ways. First, providing water through taxation does not necessarily entail the political ideology that water must be provided by governments alone. Taxes could be used to cover the minimum amount of water required for subsistence. The water user would pay for water used above this level; so water could be provided by both public and private means. Second, a system where taxes pay for water means that those who use it do not carry the costs of the water system. This is untrue. Canadians would be required to

11  Water Pricing: A Strategy for Rights Fulfillment or Rights Violation?

213

cover directly the costs of the water system above the 50 L per person per day. It is not the case that water users would be able to truly exploit the system and get more water for free so they do not have pay out of pocket. Third, our taxes already cover services (health care) that function in a similar manner to the way that taxes would cover the cost of water. As a Canadian, I can visit the doctor or emergency room and not have to pay out of pocket for my visit. Health care usage above this minimum level (prescriptions, medical equipment, and some specialists, such as physiotherapists) is paid for by the user, unless they have other user-paid health insurance that covers this cost. As a society, we understand that no one in Canada ought to be denied access to health care services; likewise, no one ought to be denied access to safe water. Hence, a water system that provides a basic amount of water free of charge (paid for through taxes) would be beneficial and would work toward the fulfillment and social guarantee of the human right to water. Those using water above the basic amount would be charged for the service.

11.8.1  Global Taxes and the Provision of Safe Water Covering the cost of 50 L per person per day through taxes in Canada may be quite possible. It is probable that many nations in the global North could afford the expense of providing a basic amount of water to their citizens. Unfortunately, not all countries have the ability to pay for this expense. As Gillian Brock points out, it is quite difficult for countries in the global South to sustain efficient, effective, and equitable taxation systems for at least six reasons (Brock 2015): 1. Tax administration is weak in the global South and so taxes often fail to be collected. 2. Large informal sectors, including the informal water sector, restrict a nation’s ability to collect taxes from all citizens fairly. 3. Citizens must be willing to pay and comply with tax laws. When citizens feel they do not benefit fairly from taxes, they may be unwilling to pay. 4. Complex relationships exist between citizens and their governments and the expectation of good governance when taxes are paid. 5. Favourable tax environments (tax havens, etc.) are created to attract attention from foreign investors.7 6. Non-transparent resource sales enable corruption and theft of resources. It is for these reasons, and many others, that it may be difficult for governments in the global South to use taxation as a strategy for fulfilling the right to water for its citizens. 7  An estimated US $6.6 trillion was lost in developing and emerging economies between 2003 and 2012. Approximately US $385 billion is lost every year in developing countries as a result of tax evasion. In 1999, Microsoft paid no tax on its reported profit of $12.3 billion. See Kar and Spanjers 2014; Brock 2008a, 2015.

214

K. E. O’Neill

A cosmopolitan, like Brock, would argue that we have no good reason to prioritize the needs of our compatriots over the needs of our non-compatriots anyway, especially when the non-basic needs of our compatriots are being prioritized over the basic needs of our non-compatriots (Brock 2008a, b, 2015). If we are willing to accept that our governments should provide safe water, then perhaps we should also accept that we have no good reason to limit this provision to compatriots. If a nation is unable to fulfill the rights of its citizens, then who is obligated to step in and ensure that rights are being fulfilled? Many authors argue that the international community has an obligation to ensure that rights are being met in foreign nations. A global tax initiative is one strategy that could be employed to eradicate poverty. Thomas Pogge argues for a Global Resources Dividend whereby anytime a government uses or sells off resources, they would have to pay a small part (1%) of the resource’s value. This would raise an estimated US $300 billion per year (Pogge 2001). Brock also identifies a number of ways in which global tax initiatives could function; she argues that they could be largely successful at raising the funds necessary to address the underlying causes of poverty. In support of her position, Brock provides a number of examples where global taxes are already used and working, including the carbon tax and airline ticket tax (Brock 2008a, 2015). Roughly US $1.25 trillion to $2.25 trillion per year for 20 years is needed to implement water-related sustainable development to meet the Sustainable Development Goals (Schuster-Wallace and Sandford 2015). A global tax initiative could raise many billions of dollars in support of sustainable access to safe water. Eliminating tax havens frees up large amounts of taxable money that could also contribute to the provision of safe water worldwide. These are some of the many possible strategies that could be employed to cover the cost of providing 50 L per person per day of safe water.

11.9  Conclusion Water pricing strategies do not necessarily have to violate the right to water. In some cases, water pricing strategies serve as a pathway toward fulfilling the right to water, because long-term service provisioning of water requires sustainable financing that pricing strategies may be able to offer. This chapter discussed the ways in which water was traditionally understood under the Right of Thirst and the Roman lacus system. In both cases, water was recognized as a kind of communal property in the sense that no one who was thirsty would be denied access to the water. Current water pricing strategies can be and have been criticized as systems that sometimes deny people their right to water, such as in Cochabamba, Bolivia. Obviously, Cochabamba represents an extreme version of water privatization. Water pricing does not entail the privatization of water. At the other extreme is the South African example, where taxes pay for the 25 L per person per day that is deemed required for subsistence. Perhaps what is needed for the realization of the human right to water is a shift in thinking – a shift back to viewing water as common property. Or at least, a shift

11  Water Pricing: A Strategy for Rights Fulfillment or Rights Violation?

215

back to thinking that no one ought to be deprived of water and that no one should be left thirsty or left to drink unsafe water. According to a commons strategy, community resources, including water, would be “actively protected and managed for the good and benefit of all” (Cooper et al. 2014). Perhaps a system of taxes, at a national or international level, covering the basic requirement of water is the best chance we have at fulfilling the human right to water and ensuring equitable access to safe water for all.

References Ayoo CA, Horbulyk TM (2008) The potential and promise of water pricing. J Int Aff 61(2):91–104 Barlow M (2007) Blue covenant: the global water crisis and the coming battle for the right to water. McClelland & Stewart, Toronto Bluemel EB (2004) The implications of formulating a human right to water. Ecol Law Quart 31(4):957–1006 Brock G (2008a) Taxation and global justice: closing the gap between theory and practice. J Soc Philos 39(2):161–184 Brock G (2008b) What do we owe to others as a matter of global justice and does national membership matter? Crit Rev Int Soc Pol Phil 11(4):433–448 Brock G (2015) What burden should fiscal policy bear in fighting global injustice? In: Gaisbauer HP, Schweiger G, Sedmak C (eds) Philosophical explorations of justice and taxation. Springer, New York, pp 185–201 Buchanan AE (2013) The heart of human rights. Oxford University Press, New York Caponera DA, Nanni M (1992) Principles of water law and administration: national and international, 2nd edn. CRC Press, Rotterdam CMAP, Sea Grant Illinois-Indiana, and University of Illinois (2012) Full-cost water pricing guidebook for sustainable community water systems. University of Illinois, Urbana Cooper N, Swan A, Townend D (2014) A confluence of new technology and the right to water: experience and potential from South Africa’s constitution and commons. Ethics Inf Technol 16(2):119–134 Dalhuisen JM, Florax RJGM, De Groot HLF, Nijkamp P (2003) Price and income elasticities of residential water demand: a meta-analysis. Land Econ 79(2):292–308 Dinar A, Pochat V, Albiac-Murillo J (2015) Introduction. In: Dinar A, Pochat V, Albiac-Murillo J (eds) Water pricing experiences and innovations. Springer, New York, pp 1–10 Eweje G (2006) Environmental costs and responsibilities resulting from oil exploitation in developing countries: the case of the Niger Delta of Nigeria. J Bus Ethics 69:27–56 Gleick PH (1996) Basic water requirements for human activities: meeting basic needs. Water Int 21(2):83–92 Government of South Africa (1999/2000) The right to sufficient water. In: 3rd Economic and social rights report, 297–322. http://www.gov.za/documents/economic-and-social-rights-3rdreport-19992000. Accessed 3 Mar 2020 Ikporukpo CO (2004) Petroleum, fiscal federalism and environmental justice in Nigeria. Space Polity 8(3):321–354 Jordan R (2016) Stanford water expert on lessons of Flint, Michigan, crisis. Stanford News, March 11. https://news.stanford.edu/2016/03/11/flint-water-luthy-031116. Accessed 2 Mar 2020 Kar D, Spanjers J (2014) Illicit financial flows from developing countries: 2003–2012. Global Financial Integrity, Washington, DC Langford M (2013) Rethinking the metrics of progress. In: Langford M, Sumner A, Yamin AE (eds) The millennium development goals and human rights: past, present and future. Cambridge University Press, New York, pp 461–483

216

K. E. O’Neill

Meija A, Santos JL, Rivera D, Uzcatequi GE (2015) Pricing urban water services in the developing world: the case of Guayaquil, Ecuador. In: Dinar A, Pochat V, Albiac-Murillo J (eds) Water pricing experiences and innovations. Springer, New York, pp 393–405 Miller RW (2009) Global power and economic justice. In: Beitz CR, Goodin RE (eds) Global basic rights. Oxford University Press, Oxford, pp 156–180 Mills JE, Garrett J (2013) Keeping promises: why African leaders need to deliver on their past water and sanitation commitments. Water Aid, New York Nickel JW (2007) Making sense of human rights, 2nd edn. Blackwell, Malden O’Neill KE (2018) Gendered labour divisions and a reconception of the right to water. J Ethical Urban Living 1(2):67–88 Onda K, LoBuglio J, Bartram J (2012) Global access to safe water: accounting for water quality and the resulting impact on MDG progress. Int J Environ Res Public Health 9(3):880–894 Organisation for Economic Co-operation and Development (OECD) (2010) Pricing water resources and water and sanitation services. OECD, Paris Pardy B (2011) The dark irony of international water rights. Pace Environ Law Rev 28(3):907–920 Pogge TW (2001) Eradicating systematic poverty: brief for a global resources dividend. J Hum Dev 2(1):59–77 Pogge TW (2002) Moral universalism and global economic justice. Politics Philos Econ 1(1):29–58 Pogge TW (2007) Severe poverty as a human rights violation. In: Pogge T (ed) Freedom from poverty as a human right: who owes what to the very poor? Oxford University Press and UNESCO, Toronto, pp 11–53 Pogge TW (2011) Are we violating the human rights of the world’s poor? Yale Hum Rights Dev J 14(2):1–33 Rahaman AS, Everett J, Neu D (2013) Trust, morality, and the privatization of water services in developing countries. Bus Soc Rev 118(4):539–575 Salzman J (2012) Drinking water: a history. Overlook Duckworth, New York Schreiner B (2015) Water pricing: the case of South Africa. In: Dinar A, Pochat V, Albiac-Murillo J (eds) Water pricing experiences and innovations. Springer, New York, pp 289–311 Schuster-Wallace CJ, Sandford R (2015) Water in the world we want. United Nations University Institute for Water, Environment and Health and United Nations Office for Sustainable Development, Hamilton Shiva V (2002) Water wars: privatization, pollution, and profit. Between the Lines, Toronto Shue H (1996) Basic rights: subsistence, affluence, and U.S. foreign policy, 2nd edn. Princeton University Press, Princeton UNESCO (2006) Water: a shared responsibility. UN World water development report. UNESCO, Paris UNESCO (2015) Water for a sustainable world. UN World Water Development Report. UNESCO, Paris United Nations (1992) The Dublin statement on water and sustainable development. Dublin, Ireland, January 26–31 United Nations Committee on Economic, Social and Cultural Rights (UNCESC) (2002) General comment no. 15: The Right to Water. E/C.12/2002/11 United Nations General Assembly (UNGA) (2010) The human right to water and sanitation. A/ RES/64/292 United Nations Human Rights Council (UNHRC) (2010) Human rights and access to safe drinking water and sanitation. A/HRC/RES/15/9 Van den Berg C (2015) Pricing municipal water and wastewater services in developing countries: are utilities making progress toward sustainability? In: Dinar A, Pochat V, Albiac-Murillo J (eds) Water pricing experiences and innovations. Springer, New York, pp 443–461 World Health Organization (2012) UN-Water global analysis and assessment of sanitation and drinking-water: The challenge of extending and sustaining services. GLAAS 2012 report. WHO, Switzerland

Chapter 12

Ethics of Infrastructure Reinvestment Rebecca Dziedzic

Abstract  The fact that infrastructure does not last should not come as a surprise. It is evident within our households and on the streets we traverse every day. Yet, there is a global infrastructure gap. This gap widens not only due to population growth but also due to the failure to proactively renew and maintain aging assets. The repercussions of a backlog in water infrastructure can range from interruptions to water delivery to more serious threats to health and safety. Whether or not these trade-offs are made explicit in reinvestment decisions, they exist. This chapter explores the historical actions that have led to the infrastructure funding gap, as well as current practices, their assumptions, biases, and potential pitfalls. Key questions to identify these issues are posed in each of the steps to asset management, which include establishing the condition of infrastructure, life-cycle costs, required levels of service, risk of failure, optimized investment, and funding strategy. Keywords  Asset management · Risk · Life-cycle costs · Funding

12.1  Background The development of public infrastructure is generally aligned with local expansion and growth. Investment naturally accompanies growth; however, even as growth subsides, investment must continue in order to maintain a good condition of infrastructure. It is estimated that the world will need to invest around $3.3 trillion annually to keep pace with projected growth. And if current investment rates remain unchanged, the funding gap will grow. This does not account for the investment needed to meet basic infrastructure needs in lower-income regions as well as mitigate climate change and cope with its effects. Another $1.1 trillion per year would be required to meet the United Nations Sustainable Development Goals in developing countries (McKinsey Global Institute 2016). R. Dziedzic (*) Building, Civil and Environmental Engineering, Concordia University, Montreal, QC, Canada e-mail: [email protected] © Springer Nature Switzerland AG 2021 I. L. Stefanovic, Z. Adeel (eds.), Ethical Water Stewardship, Water Security in a New World, https://doi.org/10.1007/978-3-030-49540-4_12

217

218

R. Dziedzic

The story of declining investment and growing infrastructure gaps is similar for many economically developed countries. Examples from Canadian water and wastewater systems are used here to highlight the issues shared by cities around the globe facing the first replacement cycle of a large percentage of their infrastructure. In Canada, widespread development began in the early 1800s with the first roads, canals, and railways. A century later, the home comforts afforded by industrialization, such as electrification, tap water, and waste management, were beginning to spread. Further investment in the national transportation system, part of the “if you build it, they will come” mentality, also supported manufacturing and industrial growth. The decades following the Second World War, up to the 1960s, were Canada’s infrastructure “golden age,” with investment in municipal infrastructure supporting both urban and rural development (Canadianinfrastructure.ca 2016). In 1961, provinces and territories owned the largest share of Canada’s infrastructure, around 45%, while the federal government controlled 24% and municipalities controlled 31%. Between the mid-1950s and the ‘70s, new investment in infrastructure grew almost 5% per year. This steep investment aligns with national population growth and the rate of urbanization at the time (FCM 2006: 37). In the ‘70s, however, as the postwar economic boom wore off, government spending on public infrastructure declined. In the following decades, the responsibility for the infrastructure also shifted. The federal government’s share dropped to 7% in the early 2000s, and the municipal share grew to 52%, an increase of nearly 70%. Municipalities were not able to keep up investments. From 1970 to 2000, infrastructure investment grew only 0.1% per year. Although the rate of population growth declined, this does not entirely explain the reduction in investment. Since this period, the average age of assets has increased. Capital reinvestment has increased recently; however, this has been more focused on urbanization and less on renewal. Overall, aging is not necessarily a concern if the reinvestment rate is able to maintain an adequate condition of the infrastructure and meet required levels of service. Furthermore, if maintenance is proactive, assets can last longer than initially expected. However, if a city were developed quickly and the majority of the infrastructure were to be of the same era, it will likely fail around the same period as well. This creates a peak in required reinvestment and can lead to financial distress. Issues arise when infrastructure is failing faster than the rate of renewal. The deferral of investment, as is the case in most of Canada, increases the cost of renewing aging assets, creating a vicious circle. Much like an outstanding credit card debt, the longer it is left unpaid, the more it grows. According to the Conference Board of Canada, the municipal infrastructure deficit itself is growing across the country at the rate of $2 billion annually (Engineers Canada 2016). The Canadian Infrastructure Report Card (CIRC) estimates that 36% of all water, wastewater, and stormwater infrastructure is in poor or very poor condition. A poor condition rating is assigned to assets approaching end of service life, with condition below standards; a large portion exhibit significant deterioration. Very poor condition is assigned to assets near or beyond expected service life that show widespread signs of advanced deterioration, and perhaps are even unusable. Table  12.1

12  Ethics of Infrastructure Reinvestment

219

Table 12.1  Current condition and reinvestment in Canadian water, wastewater, and stormwater systems

Adapted from Canadian Infrastructure Report Card Canadianinfrastructure.ca (2016)

summarizes the current condition of Canadian water, wastewater, and stormwater systems and compares their current reinvestment levels against targets. Values are based on the CIRC’s survey of 106 water utilities, extrapolated to represent all of Canada. Despite the backlog of assets in poor and very poor condition, their overall percentage is not large, and systems are generally in good condition. Reinvestments, however, do not meet targets. Linear infrastructure, such as distribution water mains and sewer mains, generally last longer than non-linear infrastructure, such as treatment plants and pumping stations. Therefore, linear infrastructure requires less reinvestment as a percentage per year. A reinvestment rate of 1% means infrastructure is renewed every 100  years. Most pipe materials have a service life shorter than 100 years, though. If utilities do not meet these targets, overall condition will slowly decline, and backlogs will grow. Of particular concern are the linear stormwater

220

R. Dziedzic

systems, with the lowest reinvestment rate: 0.3%. Until recently, drainage systems were largely funded through taxes, which meant they were competing with other infrastructure needs. Various municipalities have begun instituting stormwater rates, providing a more consistent source of funding that should be able to increase reinvestment. The United States also faces the challenge of deteriorating infrastructure and growing investment gaps. The American Society of Civil Engineers’ Infrastructure Report Card assigns grades to infrastructure systems based on capacity, condition, funding, future need, operation and maintenance, public safety, resilience, and innovation. Drinking water systems across the United States have received a D grade, and wastewater systems a D+. A D grade is assigned to infrastructure in poor to fair condition, with a large portion of the system exhibiting significant deterioration (ASCE 2018). According to an analysis by the American Water Works Association, investment needs for US buried drinking water infrastructure are expected to total more than $1 trillion over the next 25 years (AWWA 2012). The same study found that needs differ by region. Regions with higher population growth are expected to require more investment, but in regions where growth has dwindled and the population has shifted away, the challenge of renewing infrastructure will be greater. Poor financial performance inevitably compromises service. Indeed, following the E. coli outbreak in Walkerton, Canada, in 2000, the Walkerton Inquiry found that “over the long term, safety depends on stable and adequate financing to maintain the water system’s infrastructure and its operational capacity to supply high-­ quality water consistently. Without adequate resources, corners will inevitably be cut, whether in the day-to-day operation of the facility, or in its long-term capital infrastructure. Ultimately, safety will be jeopardized” (O’Connor 2002). The lack of investment also emerged as one of the underlying causes for the failures in the Flint water crisis. In an attempt to save money, the city of Flint, Michigan, in the US switched water sources from Lake Huron to the Flint River while a new pipeline was under construction. The new source has slightly more acidic water; the city failed to use corrosion inhibitors, causing lead to leach from pipes. Thus, with the goal of saving approximately $5  million over the course of 2 years, the government inadvertently created upwards of $1.5 billion in socioeconomic damage. Flint is expected to spend over $55  million in the following years to replace most of its water distribution infrastructure (D’Angelo 2016). Without economies of scale, the challenge of reinvestment may become more complicated in smaller communities. With fewer people, and the population more spread out, each consumer in smaller communities is essentially responsible for paying for more infrastructure. This is also true for remote locations (AWWA 2012). In Canada, the level of infrastructure deficiencies is bleak in many First Nations communities. A CBC news investigation in 2015 revealed that two thirds of all First Nations communities in Canada have been under at least one drinking water

12  Ethics of Infrastructure Reinvestment

221

advisory at some time in the last decade. It also found that 400 out of 618 First Nations communities had some kind of water problem between 2004 and 2014 (Levasseur and Marcoux 2015). The Government of Canada reported that there were 56 long-­term drinking water advisories affecting public systems on public reserves as of September 2019 (Indigenous Services Canada 2019). In order to lift these advisories, the federal government has been investing in on-reserve water and wastewater projects. The government is committed to ensuring that all long-term advisories on water systems on reserves will be lifted by March 2021 (Indigenous Services Canada 2019). According to a Canadian Water and Wastewater Association advocacy report, proper asset management is the most essential step toward setting local priorities (CWWA 2016). A survey of 59 Canadian municipalities and water utilities found that nearly a quarter of respondents are using a completely reactive approach to investment decisions. Approximately half of participants reported using asset life-­ cycle costing for investment prioritization, which is part of an asset management approach (Public Sector Digest et al. 2018). ISO 55000 defines asset management as “the coordinated activity of an organization to realize value from assets.” The realization of value is intended to involve a balance of costs, risks, opportunities, and performance benefits (ISO 2014). In Canada, asset management gained prominence at the municipal level in 2009 when the Public Sector Accounting Board introduced the PSAB 3150 standard for accounting for tangible capital assets (PSAB 2007). Several provinces and the federal government have since introduced asset management planning requirements to promote maturity in the sector. In 2017, the Province of Ontario approved a new municipal asset management planning regulation. All municipal governments are expected to have a finalized initial strategic asset management policy by 2019, an asset management plan for core assets by 2021, and plans for all asset types by 2023; plans should include a discussion of proposed levels of service by 2024 (AMO 2018). In Building Together, Ontario’s plan to invest in public infrastructure, the province stated that any municipality seeking provincial infrastructure funding must demonstrate how its proposed project fits within a detailed asset management plan. Such a plan should contain the state of local infrastructure, expected levels of service, an asset management strategy, and a financing strategy (Government of Ontario 2018). To drive the potential benefits from advanced asset management practices, the Water Environment Research Foundation (WERF) developed the SIMPLE (Sustainable Infrastructure Management Program Learning Environment) process. SIMPLE defines 10 steps toward asset management, described in Fig. 12.1. The steps are related to six overarching questions concerning asset condition, life-cycle costs, levels of service, risk, optimized investment, and funding strategy. Each of these questions and their ethical implications are explored in the following sections.

222

R. Dziedzic

1. What is the current state of my assets?

2. What are the life cycle costs?

3. What is the required level of service?

1. Inventory Assets

2. Assess Condition

3. Determine Residual Life

4. Life-Cycle & Replacement Costs

5. Set Target LOS

6. Determine Asset Risk

7. Optimized Capital Investment Strategy

8. Optimized Operation and Maintenance Program

9. Determine Funding Strategy

10. Build AM Plan

4. What is the risk of failure?

5. What are the best O&M and capital improvement strategies?

6. What is the best funding strategy?

Fig. 12.1  SIMPLE: 10 steps to asset management (WERF 2010)

12.2  State of Assets The push for asset management has already generated a public discourse that suggests the state of infrastructure is dire and billions of dollars are needed to rehabilitate and replace it. The age of the infrastructure clearly supports this notion, but the exact condition and need for reinvestment is difficult to ascertain. Moreover, the utilities themselves are responsible for conducting or paying for condition assessments and have an incentive to inflate the size of the deficit. Similarly, some estimates are based on standards set by associations that also benefit from inflated deficits (Fenn and Kitchen 2016). Canadian water and wastewater utilities have indicated that the most common source of condition information for linear assets is proxy information such as age and pipe material. For non-linear assets, the opinion of municipal staff is the most common source of condition information (Canadianinfrastructure.ca 2016). The latter clearly leads to subjective condition assessments, where a motivational bias toward greater local investment can skew results. To avoid this bias, a third party could conduct assessments instead. However, even if a consultant is hired, they are being remunerated by the municipality, and the success of their work is determined by the satisfaction of the client. The availability bias, whereby the assessor’s estimation of condition is more dependent on memory than an evaluation of possible events, can also affect results. An objective analysis based on visual inspections and relevant data, regardless of the memory of issues arising in the past, could provide more impartial results (Nikolic 2018). However, availability of data is still an issue for many utilities. For most municipalities embarking on asset management, this is the first time an asset inventory is created. This means the install date of the asset might even be unknown, and previous maintenance has likely not been recorded digitally.

12  Ethics of Infrastructure Reinvestment

223

Creating detailed standards for assessing the state of assets can reduce subjectivity. The International Infrastructure Management Manual (IIMM) (NAMS and IPWEA 2011), for example, provides definitions for condition ratings for different types of water and wastewater assets. A 5-point scale is recommended, ranging from very good to very poor. Very poor condition of mechanical and electrical assets is defined as “Failed or failure imminent. Plant and component effective life were exceeded and excessive maintenance costs incurred. A high risk of breakdown with a serious impact on performance. No life expectancy. Health and safety hazards exist which present a possible risk to public safety, or asset cannot be serviced/operated without risk to personnel. Major work or replacement required urgently” (IPWEA 2006). Although this definition is quite descriptive, each of the factors is also subjective. What constitutes failure may vary for different assets, systems, and individual perspectives. Key to assessing the state of assets and estimating future reinvestment needs is understanding expected service life. Service life is usually determined for each asset type based on one or more of these factors: manufacturer specifications, industry standards, and local history of asset failures. It will also depend on local factors that may not be captured by the general average life of certain assets within a system. For example, the service life of a water main depends not only on material and age, generally used as proxies, but also on local soil characteristics, water pressure, and maintenance practices. For many utilities, it might not be feasible to visually assess the condition of all mains within the system and collect all of the supporting local data. This is why several organizations rely on heuristics. Gaps in data lead to assumptions, which sometimes skew results. Because establishing the condition of the assets is key to the subsequent reinvestment decision-­ making process, underlying biases and assumptions should be made explicit so that resulting plans can be interpreted with certain caveats. In addition to the biases in assessing the state of the assets, there might be deeper biases in collecting data. The gaps themselves might be indicative of the omission of certain neighborhoods or groups of people who are purposely or unintentionally excluded from regular assessments and engagement. For example, a certain more powerful demographic might be able to participate more in City meetings or complain directly to council about the condition of the infrastructure in their neighborhood and thus be prioritized, despite other areas requiring more attention. Ensuring an ethical and inclusive process of decision making becomes all important under such circumstances.

12.3  Life-Cycle Costs In asset management, asset life is defined as the period from asset creation to asset end of life (ISO 2014). Creation, however, is not meant to be the extraction of raw material or production of the asset, but the design, acquisition, and installation of infrastructure. The end of life refers to the disposal of the asset. Because asset management focuses on financial management, the life cycle is defined as the period during which the organization is financially responsible for the asset.

224

R. Dziedzic

Defining the limits of the life cycle can become more challenging where assets are consistently patched and modified (IAM 2015). Managing residual liabilities, such as in replacing asbestos cement pipes, should also be included in the life cycle. A life cycle assessment (LCA), on the other hand, comprises a different scope. The LCA is a technique for assessing the environmental aspects and potential impacts associated with a product. As part of this concept, the life cycle includes raw material acquisition, production, use, and disposal. The three general impact categories considered in LCA are resource use, human health, and ecological consequences (ISO 2006). These impacts, which do not represent direct costs to organizations, are not accounted for in asset management. By applying asset management, an organization automatically subscribes to the worldview supported by its framework. The emphasis on direct financial impacts, without valuing social and environmental impacts, might not be supported by all stakeholders. Even if social and environmental impacts are valued financially, this is still a solution more aligned with anthropocentric and short-term worldviews. Biophysical models such as material flow analysis, ecological footprint, and energy accounting would be favored by ecocentric views (Gasparatos 2010). Because stakeholders will almost certainly never share the same views, a variety of tools or indicators should be employed to be more representative of the group. For example, the Municipal Natural Assets Initiative is seeking to integrate natural assets in financial planning and asset management programs. Natural assets are the stock of natural resources and ecosystems that yield a flow of benefits to people. They include aquifers, forests, streams, riparian areas, and foreshores that provide services equivalent to those of certain engineered assets (MNAI 2017). Through this methodology, natural assets are valued based on the cost to replace them with engineered assets that would provide the same services. These costs should also cover the life cycle of the asset. Whereas engineered assets have high start-up costs, natural assets usually already exist, or their implementation can be more easily phased in. It is expected that this approach to natural asset management can save capital and operating costs, especially in the long term, as natural assets create value, benefit the local system, and reduce risk (Town of Gibsons 2017). Different methodologies can help support diverse perspectives and base decisions on broader stakeholder views.

12.4  Required Level of Service Levels of service refer to parameters which reflect social, political, environmental and economic outcomes that the organization delivers. These parameters can include safety, customer satisfaction, quality, quantity, capacity, reliability, responsiveness, environmental acceptability, cost and availability (ISO 2014). The required levels of service reveal the goals of the utility and should reflect the needs and expectations of the community.

12  Ethics of Infrastructure Reinvestment

225

The main objectives of the organization when defining levels of service are two-­ fold: to understand user groups’ needs, values, satisfaction, and willingness to pay; and to understand what the organization currently provides and what it can provide (Esmaili and El-Diraby 2017). This leads to some core questions for municipalities: • • • •

Do we always need to spend more money and what happens if we don’t? Can we adjust our service levels? How do we maintain service levels while decreasing the cost to provide the services? How do we engage the community in these discussions? (Canadianinfrastructure.ca 2014)

While the process of estimating life-cycle costs and optimizing investment based on risk aligns with a utilitarian value system, which seeks to facilitate the greatest good for the greatest number, the definition of levels of service brings a deontological perspective, where duties and individual rights are prioritized. At the most basic level, the UN has established the human right to water that is sufficient, safe, acceptable, physically accessible, and affordable (UNGA 2010). Water utilities are also responsible for meeting quality regulations, providing sufficient flows to conform with fire safety standards, and conforming to local pressure standards to avoid the intrusion of contaminants. These duties are unquestionable, unless standards change. However, in most cities, utilities provide a higher level of service, and users expect this. This is why stakeholder engagement is key to determining required levels of service. Stakeholder engagement can be approached by an organization in different ways. Ideologically, it can be viewed as a management technique, a rights-based requirement, or a forum for dialogue. As a management technique, engagement is largely utilitarian and concerned with identifying claims, individuals, groups, or organizations that are important to manage. As a rights-based requirement, it considers citizens as stakeholders having the right to determine the services they require. This view is more aligned with the definition of levels of service and is rooted in participatory governance and transparency. The third approach of dialogue views engagement in less tangible terms of mutual learning (Mathur et al. 2008). Even though stakeholder engagement is a part of asset management, how it is interpreted and carried out will largely affect results. Organizational interests can drive the type of engagement sought, the identification of stakeholders, and the prioritization of needs. The IIMM suggests consultation based on surveys and customer user group meetings to seek input on levels of service. Asking users specifically what level of service they expect, such as the acceptable number of water main breaks per year, without explaining financial, social, and environmental impacts will likely not lead to a productive discussion. This is why it is recommended that organizations develop options based on their knowledge of current levels of service; minimum required levels of service based on technical, environmental, and legal requirements; and maximum level of service based on the capability of the system and best practices. An overall knowledge of customer attitudes and priorities is still needed prior to developing options (NAMS and IPWEA 2011). However, many engineers and water resource managers do not have this awareness, and do not even seek customer consultation in determining levels of service.

226

R. Dziedzic

Although they have expert knowledge and plenty of experience, they often focus on the technical aspects of asset management. As a result, customer satisfaction levels do not rise with increases to budgets, because customers’ perspectives are not considered in prioritizing how the management budget is allocated. Customers focus on what they can see; they can provide input only on what they know. They prioritize attributes with the greatest perceived direct impact to them, such as drinking water safety and service life of mains, as opposed to water pressure across the system, which might be harder to visualize. Their satisfaction is also more linked to customer service, such as the time needed to respond to service interruption, call center service, and availability of information online (Han et al. 2015). It is essential to balance customer levels of service and technical levels of service and to understand the links between the two. Performing well in technical aspects, such as increased preventative maintenance, can lead to an improvement in customer-­ facing operations, such as decreased number of unexpected service interruptions.

12.5  Risk The underlying goal of asset management and reinvesting in infrastructure is to balance performance, costs, and risks. Through this process, risks are supposed to be reduced to an acceptable level. Risk is often defined in this context as the product of the likelihood and the consequences of an event (ISO 2014). The probability of physical asset failure is related to its condition and expected service life. Therefore, assumptions made in estimating the state of the asset are carried over to the risk assessment and ultimately drive reinvestment decisions. The consequence of failure can include consequences to the organization and the community, including economic, social, and environmental impacts. Either of these factors can be assessed qualitatively or quantitatively. If a qualitative assessment is selected, results are converted to a numerical scale. Even if the assessment is quantitative, it is open to subjectivity. As mentioned previously, utilities generally cannot predict with accuracy when infrastructure will fail. The estimation of consequences depends on how economic, social, and environmental impacts are quantified. One common approach is to assign weights to these different spheres and to types of consequences, such as loss of water service to a hospital, closing of a road with a bus route, or a sewer main break next to a fish creek. These weights should represent the priorities of all stakeholders, but this engagement is not always sought; managers again may be in control of interpretation and prioritization. Weighted scoring reveals a utilitarian framework, since the goal of the process is to produce a set of weighed events that can objectively advance the greatest net benefit, or lowest net impact, overall. While rights and duties are included in the discussion of levels of service, they can become an afterthought in risk assessment. There should be nonnegotiable limits to consequences, but once they are averaged

12  Ethics of Infrastructure Reinvestment

227

out over the system, they can become less important. The divergence between utilitarian and deontological approaches often helps explain the root of many stakeholder conflicts. It thus becomes important in any decision-making process to make such divergent value systems explicit early on and encourage communication (Stefanovic 2015). Value assumptions or preferences influence the determination of the magnitude of risk as well as its acceptability. The Alachlor controversy is a classic example of the tension between a utilitarian risk assessment and a deontological human rights approach. In 1985, even though the supplier of the Alachlor herbicide and Canadian farmers believed benefits outweighed potential consequences, the federal government canceled the product’s registration on the principle of safety alone due to carcinogenic risks (Brunk et al. 1991). This example also illustrates how organizations can be more aware of their respective benefits and undervalue consequences to stakeholders. It should not be the responsibility of the organization to accept risks on behalf of stakeholders. Those excluded from decision-making processes may disproportionately bear the negative impacts of projects while not benefiting from positive impacts. Decisions need to be made by those expected to bear the main impacts (INVOLVE 2005). The biases of water utility staff can lead to systemic discriminations. In a survey of California water systems, interviewees reported that local water boards sometimes discriminate against residents on the basis of language, ethnicity, socioeconomic status, or homeownership (Balazs and Ray 2014). These biases, even if not voiced, can also cause more serious impacts. Another case study in California established that ethnicity and socio-economic class were correlated with exposure to nitrate and arsenic contamination and with noncompliance with federal standards in community water systems (Balazs et al. 2012).

12.6  Optimized Investment Optimizing investment is the main objective of asset management and the multi-­ step process described thus far, including assessing the condition of assets, estimating their life-cycle costs, establishing required levels of service, and evaluating risks. The goal of optimizing investment clearly frames asset management as a financial endeavor in which a mathematical solution will provide the greatest benefit. This can undermine social and environmental considerations if these consequences are not adequately contemplated throughout the decision-making process. The IIMM notes that in addition to a risk-based prioritization of investment, more advanced organizations can add enhancements to the decision-making process, such as including the life-cycle cost analysis to determine optimal timing, or analyze the possibility of improving the level of service for under-capacity assets, or add extra dimensions to address external factors. The fact that analyses that include “external” factors are completed only by advanced organizations suggests that these consequences are likely not significant and can be ignored. However,

228

R. Dziedzic

negligence and negative impacts can cluster in already marginalized areas and communities, as evidenced by the California examples. This is where the utilitarian approach fails. To ensure that the optimized investment does not unwillingly reinforce a pattern of discrimination, utilities should assess where previous work and planned reinvestment cluster. Because people of similar backgrounds and socio-economic class cluster in different areas of a city, reinvestment and user type can be spatially overlaid. These differences are intuitive to local residents and have been studied in depth by marketing analytics companies. Customer segments can be created based on a number of indicators that integrate geographic, demographic, and psychographic data. Segments of different incomes, ethnicities, religions, and ages can even be identified at a postal code level (Environics 2015). Although water utilities might not have access to such detailed customer data, available billing, demographic, and land use data can already provide insights (Dziedzic et al. 2014). In addition to setting a strict level of service requirements for all users, analyzing reinvestment by customer segments could help spread investment to areas that might have previously been considered to have a low risk of failure. Entire utilities and cities, however, might be underfunded. The challenge for communities is then not only to allocate reinvestment according to needs and risks, but also to secure funding. This is evident in cities with declining population, such as Detroit, as well as small and remote communities, such as First Nations reserves. The current condition of infrastructure and lack of funding may also be the result of historical racial discrimination and colonial systems that are still in place today. In the 1930s, the US Federal Housing Authority developed “redlining” housing maps. These maps were used to inform infrastructure funding and what types of lending and housing each neighborhood would receive. Non-white neighborhoods that were ethnically or economically diverse were redlined and would not be able to secure federally backed mortgages. Developers also avoided these areas, resulting in neglect, stagnated services, and poverty (Pietila 2010).

12.7  Funding Strategy Different from other types of infrastructure, the majority of revenue for water and wastewater utilities in Canada and the US is provided through rates. Over the last decades, grant-based infrastructure funding has shrunk, and the responsibility for securing funding has fallen on municipalities. As shown in Fig. 12.2, around 70% to 80% of revenue in Canadian municipal water utilities originates from rates, and about 10% from service charges. Less is provided through development charges, municipal taxes, grants, and interest earned. Grants represent only 1–2% of revenue. Other sources can include rental income, sale of scrap metal, bad debt recovery, and micro power generation. Water utilities in general are collecting more revenue from rates, whereas wastewater utilities rely slightly more on service and development charges, taxes, and grants. Each of these sources of revenue may motivate different levels of consumption and types of reinvestment.

12  Ethics of Infrastructure Reinvestment 100% 90%

0.6% 1.0% 2.0%

229

5.1%

3.6%

3.2%

4.8%

9.2%

6.0%

80%

Other Interest Earned Grants

11.2%

Municipal Taxes

70.9%

Development Charges Service Charges

78.9% 70%

1.5% 1.9%

60%

Rates

50% 40% 30% 20% 10% 0% Water

Wastewater

Fig. 12.2  Revenue sources for water systems in Canada. (Adapted from National Water and Wastewater Benchmarking Initiative NWWBI 2018)

Metering has allowed utilities to better price water use according to consumption and rely less on one-time fixed service fees or alternate sources of revenue. While a flat rate that does not change according to consumption is simple and can provide revenue stability, it does not entirely reflect costs, nor does it incentivize conservation. Uniform rates – a constant rate per volume – support fairness and conservation. Because around 90% of water and wastewater utility costs are not fixed and don’t actually depend on the volume of water consumed, utilities must balance the use of volumetric rates and fixed charges to ensure fairness, conservation, and sufficient revenue. While water and wastewater rates are recurring, service charges are administrative fees, such as for bill reprinting, new account setup, new connection installation, water meter installation, or fire hydrant flow testing (CWN 2018). Taxes can be a relatively easy source of revenue, since the billing system is already in place, and they are tied to properties. But they might have a negative public perception. It is often politically difficult to raise taxes, and it is risky to compete for revenue with other areas of local government. However, certain water

230

R. Dziedzic

system services are provided for the benefit of the property and can be adequately represented by property taxes, such as stormwater management and fire protection (USEPA 2007). Developers’ charges are based on the principle that growth should pay for growth. They can be the main source of funding for growth-related projects, limiting the amount of new debt needed or paying off past development-related debt. However, because they are only meant to fund growth-related investments, they cannot cover maintenance and renewal requirements of the infrastructure deficit. Development charges can be a more equitable alternative to property taxes, since they are based on contributing area instead of property value. Still, most Canadian municipalities impose the same charge regardless of whether a property is located close to existing facilities or farther away, even though more distant developments cost more. The consequence of uniform pricing can be urban sprawl. Area-specific charges can encourage developers to direct growth more efficiently toward already developed areas that have lower development charges. Even if charges are calculated by area, an unwanted consequence of development charges can be the increase in price of the existing housing stock, diminishing housing affordability (Clayton 2014). Grants, on the other hand, signal a commitment from other levels of government to support municipal infrastructure. They may, however, not be reliable in the long term and can distort decision making. Grants can lower the price of some services, and often require municipalities to spend the funds they receive according to the guidelines of federal or provincial governments and not according to local priorities. For example, the “shovel ready” requirement of many grants leads municipalities to favor capital projects based on readiness rather than need. The Canadian Water and Wastewater Association emphasized that the uncertainty of federal and provincial funding support is one of the greatest obstacles to long-term sustainability. Quick responses to short-term grant programs lead to improper planning or improper asset management. Some projects cannot be designed, contracted, and built in short time frames. Flexibility in time frames would allow municipalities to find the best solutions for their communities, providing greater impact and greater “value for money” (CWWA 2016). A lack of technical, managerial, and financial capacity at the municipal level can also hinder the ability to access funding. Water systems that are shovel ready are likely to be those that already have the capacity to develop credible plans. The funding conditions may thus, instead, be reinforcing exposures and social disparities. When external support is not provided, the full burden of reinvestment falls on local users. This can lead to disenfranchised residents, inadequate water system responses, regulatory failures, and ultimately vulnerability (Balazs and Ray 2014). Furthermore, even though grants represent 1–2% of municipal water utility funding, this level is not sustainable for small and remote communities, which rely on a smaller population to fund more infrastructure. Collaboration between communities can help reduce risks and costs. For example, First Nations communities with municipal-type service agreements are 11% less likely to be under a boil water advisory (OPBO 2017).

12  Ethics of Infrastructure Reinvestment

231

In general, when faced with the need for significant capital reinvestment, water utilities are not able to fund large rehabilitations or renewals strictly from current fees and charges. Therefore, apart from securing grants, utilities must either save a portion of revenues against a future expense or borrow the funds needed. If reserves aren’t generated, the required funds are borrowed and the expenses of servicing and repaying that debt are spread over future water rates as debt payments are made. Reserves can improve the financial stability of the system, but it can take many years to accumulate capital for a large project, and it may be politically difficult to restrict funds for the intended use (MPIR 2005). Most cities have moved toward greater reliance on reserves for replacing non-linear assets such as facilities and equipment. Nevertheless, the use of reserves breaks the link between expenditures and revenues over time. Debt can enable utilities to better match the flow of revenues to costs over a project’s life span. Users in the future will be paying the debt created by that infrastructure. Although municipalities generally prefer to minimize debt, the amount of debt maintained by water utilities is much higher than reserves. Municipalities in Canada are restricted by provincial/territorial governments in terms of how much they can borrow. Even within these restrictions, most Canadian municipalities have considerable unrealized borrowing capacity (Tassonyi and Conger 2015). A greater reliance on debt rather than on reserves may not prohibit full cost recovery, but can diminish financial stability. Therefore, utilities must balance debt and reserves based on current water rates and future financial needs to ensure stability while avoiding rate shock. The balance between funding sources is key to ensuring intra- and intergenerational equity. Table  12.2 provides a simplified summary of potential sources of funding for water infrastructure and characteristics of the individuals contributing to these funds. For example, people paying water tariffs are the same as those paying property taxes. Nevertheless, the burden of payment is higher for customers using Table 12.2  Sources of water infrastructure funding and characteristics of contributors Source of Funding Federal grants (federal taxes) or federal transfers Provincial grants (provincial taxes) Municipal taxes Developers’ charges Rates Reserves (past rates) Debt (future rates)

Who National population

When Today

Provincial population

Today

Local residents and businesses New development residents and businesses Local residents and businesses Local residents and businesses Local residents and businesses

Today

Basis Income, goods and services, excise (e.g. fuel) Income, sales, excise (e.g. carbon) Property value

Today and Property area future Today Water consumption and related services Past Water consumption and related services Future Water consumption and related services

232

R. Dziedzic

more water in the first case and for more expensive properties in the second case. The reliance on reserves versus debt for funding large capital projects will determine the relative responsibilities of current and future users. Current and future users have already inherited the gap created by earlier consumers. Even though previous generations funded the water and wastewater systems operating today, the rates paid previously rarely covered the full cost of supply, distribution, treatment, maintenance, and replacement. The continued failure to recover full costs has led to the existing backlog, which not only entails aged infrastructure and a decline in the level of service, but also a potential risk to health and safety. It is thus the responsibility of current and future generations to replace and continually upgrade their water systems (Allen et al. 2018). It has been argued that future people cannot possess any rights against the current population for conceptual reasons. However, it is consistent with rights-based moral theories that a more basic right of one person can take precedence over a less basic right of another person. Future people will exist and will have the same basic rights as individuals today. Thus, corresponding duties exist to people living in the future (Steigleder 2016).

12.8  Summary of Analysis

Are certain areas assessed more frequently? Where are there gaps in data? Are these gaps representing larger gaps in stakeholder feedback?

What are the minimum levels of service required by laws and regulations? What is the maximum level of service that can be achieved and at what cost? What forms of stakeholder engagement will be used to identify expectations? What service options can be given to customers for them to prioritize?

Fig. 12.3  Questions for ethical asset management

How are these qualified, quantified, and / or weighted? Who provided these ratings and weights? And what are the underlying value assumptions? Are risk limits set based on level of service? Are stakeholders involved in the risk assessment? Are stakeholders aware of the risk they are undertaking?

Are external social, environmental, and economic impacts included in the evaluation? Which areas of the City does the plan favour? Why have these areas been favoured? Where do previous and future failures cluster? What are the characteristics of the customers living in these areas?

6. What is the best funding strategy?

How often is condition assessed?

What are the goals of the utility?

Does the consequence of failure include social, environmental, and economic impacts?

5. What are the best O&M and capital improvement strategies?

Who assessed the condition?

Is a variety of tools being applied?

Do the levels of service reflect social, political, environmental, and economic outcomes?

4. What is the risk of failure?

Is there only proxy information, or were condition inspections completed?

What is the scope of the life cycle? Are social and environmental impacts also being evaluated?

3. What is the required level of service?

What information feeds into the assessment?

2. What are the life cycle costs?

1. What is the current state of my assets?

The discussion of the asset management decision-making process in the previous sections has raised a number of questions that shed light on the complexity of the analysis (Fig. 12.3). These questions are summarized below to highlight areas where

What are the current backlog, reserve fund, debt ceiling, grant funding, and rates? What increase in investment is necessary to meet expected levels of service?

Who will this investment benefit? Are the beneficiaries able to pay for this investment, today and into the future? If not, what form of subsidization is feasible (e.g. other local user’s rates, taxes, or grants)?

12  Ethics of Infrastructure Reinvestment

233

assumptions may not be explicit, biases can skew outcomes, and systemic impacts must be considered.

12.9  Future Developments Water utilities are collecting more data each year, informing smarter decisions. Data can be used to communicate more effectively with staff, customers, and other stakeholders, analyze asset health, develop warnings of potential failure, and predict customer complaints. However, the majority of utilities are not creating the links between the data to plan reinvestment and improve communication. Data are thus not being used to their full potential (Wallis-Lage 2019). There are significant opportunities for improving technical and customer levels of service through better data collection, management, and analysis. To avoid the unintended consequences of a strictly utilitarian approach, digital data collection can also help in gathering customer feedback and overlaying financial plans over customer characteristics. Some water utilities are using operations data to provide detailed and up-to-date information on their website on service interruptions and expected time for service to be restored. Others are making some of their data, such as water main location, diameter, material, and history of breaks publicly available. This leads to a larger debate between transparency and privacy, which obviously is not restricted to water utilities. Overall, managing and analyzing data can be a costly endeavor. Balancing the benefits and costs of data collection is necessary while remaining aware and including external social, environmental, and economic impacts in the decision-making process. Although utilities may still currently choose not to collect or review available data, this may not always be the case. Not being aware of certain impacts to stakeholders or the environment does not necessarily shield utilities from liability. In addition to meeting regulations, all that is required of water and wastewater utilities is reasonable care. The standard of care refers to the degree of care a prudent and reasonable person would exercise under the given circumstances. For example, tearing up streets to inspect pipes or performing extensive excavation to detect a leak, although aimed at improving performance, would be impractical. However, as less intrusive and more data-reliant methods of inspection and detection are developed, a utility may need to employ these methods to avoid liability, especially if these methods have become the industry norm (Richards 2012). In the future, standards may even become more prescriptive with regards to maintenance and repair requirements. Engineers Canada has suggested that the scope of infrastructure codes, standards, and related instruments should be extended to include maintenance standards that are infrastructure specific. The organization argues that scheduled infrastructure maintenance should be a part of design to support budget planning and protect communities (Engineers Canada 2016). Ultimately, the engineers planning and managing infrastructure reinvestment must abide by a code of ethics. The imperative canon of all engineering ethics codes

234

R. Dziedzic

is related to public safety. For Engineers Canada, the number one duty is to “hold paramount the safety, health, and welfare of the public and the protection of the environment and promote health and safety within the workplace” (2012). This is a requirement that must be met on every project. But, even if each project is safe, protects the surrounding environment, and promotes local health, these efforts may be ignoring larger issues. This statement is not meant to undermine local efforts, but instead to emphasize the need for a systems perspective on a municipal and national scale. The question of reinvestment is one of prioritization. Budgets are limited. Trade-­ offs being made should be clear to the decision makers as well as the stakeholders. If the concerted efforts of municipalities and engineers reinforce systemic discrimination and other social and environmental impacts, then reinvestment plans should be reviewed with the same attention to detail and external impacts as multi-million-­ dollar construction projects, even if plans are eventually completed in a piecemeal fashion. On a broader scale, if smaller, lower-income, and remote communities consistently struggle to provide safe and sustainable water services, then grants should support reinvestment or the development of innovative approaches to reduce costs.

References Allen M, Clark R, Cotruvo JA, Grigg N (2018) Drinking water and public health in an era of aging distribution infrastructure. Public Works Manag Policy 23(4):301–309. https://doi.org/10.117 7/1087724X18788368 American Society of Civil Engineers [ASCE] (2018) America’s 2017 infrastructure report card. https://www.infrastructurereportcard.org. Accessed 9 Feb 2020 American Water Works Association [AWWA] (2012) Buried no longer: confronting America’s water infrastructure challenge. American Water Works Association, Denver Association of Municipalities of Ontario [AMO] (2018) New municipal asset management planning regulation. AMO, Toronto Balazs CL, Ray I (2014) The drinking water disparities framework: on the origins and persistence of inequities in exposure. Am J Public Health 104(4):603–611 Balazs CL, Morello-Frosch R, Hubbard A, Ray I (2012) Environmental justice implications of arsenic contamination in California’s San Joaquin Valley: a cross-sectional, cluster design examining exposure and compliance in community drinking water systems. Environ Health 11:84 Brunk C, Haworth L, Lee B (1991) Value assumptions in risk assessment: a case study of the alachlor controversy. Wilfrid Laurier University Press, Waterloo Canadian Water and Wastewater Association [CWWA] (2016) CWWA advocacy and the federal budget. CWWA, Gloucester Canadian Water Network [CWN] (2018) Balancing the books: financial sustainability for Canadian water systems. CWN, Waterloo Canadian Infrastructure Report Card (2014) Asset Management Primer. http://canadianinfrastructure.ca/downloads/circ_asset_management_primer_EN.pdf Canadian Infrastructure Report Card (2016) Informing the Future: The Canadian Infrastructure Report Card. http://canadianinfrastructure.ca/downloads/Canadian_Infrastructure_Report_2016.pdf Clayton FA (2014) New direction for funding growth-related water and wastewater infrastructure in the Greater Toronto Area and Hamilton. Centre for Urban Research and Land Development, Ryerson University, Toronto

12  Ethics of Infrastructure Reinvestment

235

D’Angelo N (2016) An aging infrastructure: policy recommendations to modernize aging water distribution networks to protect human health. 2016 AIChE annual meeting, November 14 Dziedzic R, Margerm K, Evenson J, Karney BW (2014) Building an integrated water–land use database for defining benchmarks, conservation targets, and user clusters. J Water Resour Plan Manag 141:4 Engineers Canada (2012) Code of ethics. Guideline on the code of ethics, G03-2012. Engineers Canada, Ottawa Engineers Canada (2016) Submission to the Government of Canada on community infrastructure. Engineers Canada, Ottawa. https://engineerscanada.ca/sites/default/files/engineers-canadacommunity-infrastructure-submission-2016.pdf. Accessed 9 Feb 2020 Environics (2015) PRIZM 5. http://www.environicsanalytics.ca Esmaili D, El-Diraby TE (2017) Organizational competency in urban water infrastructure asset management. Can J Civ Eng 44:1056–1070 Federation of Canadian Municipalities [FCM] (2006) Building prosperity from the ground up: restoring municipal fiscal balance. FCM, Ottawa Fenn M, Kitchen H (2016) Bringing sustainability to Ontario’s water systems: a quarter-century of progress, with much left to do. Ontario Sewer and Watermain Construction Association, Toronto Gasparatos A (2010) Embedded value systems in sustainability assessment tools and their implications. J Environ Manag 91(8):1613–1622 Government of Ontario (2018) Building together: guide for municipal asset management plans. Queen’s Printer for Ontario, Toronto Han S, Chae MJ, Hwang H, Choung Y (2015) Evaluation of customer-driven level of service for water infrastructure asset management. J Manag Eng. https://ascelibrary.org/doi/10.1061/%28 ASCE%29ME.1943-5479.0000293. Accessed 9 Feb 2020 Indigenous Services Canada (2019) Update on long-term drinking water advisories on public systems on reserve through August 2019. Ottawa: Government of Canada, September 6. https:// www.canada.ca/en/indigenous-services-canada/news/2019/09/monthly-progress-updatethrough-august-2019-on-drinking-water-advisories-on-public-systems-on-reserves.html. Accessed 4 Apr 2020 Institute of Asset Management [IAM] (2015) Asset management: an anatomy. IAM, New York Institute of Public Works Engineering Australasia [IPWEA] (2006) International infrastructure management manual, version 3.0. IPWEA, North Sydney International Organization for Standardization [ISO] (2006) ISO 14040: environmental management: life cycle assessment – principles and framework. ISO, Geneva International Organization for Standardization [ISO] (2014) ISO 55000: asset management: overview, principles and terminology. ISO, Geneva INVOLVE (2005) People and participation: how to put citizens at the heart of decision-making. INVOLVE, London Levasseur J, Marcoux J (2015) Bad water: ‘Third World’ conditions on First Nations in Canada. CBC News, October 14 Mathur VN, Price ADF, Austin SA (2008) Conceptualizing stakeholder engagement in the context of sustainability and its assessment. Constr Manag Econ 26(6):601–609 McKinsey Global Institute (2016) Bridging global infrastructure gaps. McKinsey & Company, New York. https://www.un.org/pga/71/wp-content/uploads/sites/40/2017/06/Bridging-GlobalInfrastructure-Gaps-Full-report-June-2016.pdf. Accessed 3 Apr 2020 Ministry of Public Infrastructure Renewal [MPIR] (2005) Watertight: the case for change in Ontario’s water and wastewater sector. Queen’s Printer for Ontario, Toronto. http://www.probeinternational.org/EVfiles/Watertight-panel_report_EN.pdf. Accessed 3 Apr 2020 Municipal Natural Assets Initiative [MNAI] (2017) Defining and scoping municipal natural assets. https://mnai.ca/media/2018/02/finaldesignedsept18mnai.pdf. Accessed 9 Feb 2020 National Water and Wastewater Benchmarking Initiative [NWWBI] (2018) National Water and Wastewater Benchmarking Initiative data from 2014–2017 for 38 utilities. AECOM New Zealand Asset Management National Steering Group [NAMS] and Institute of Public Works Engineering Australasia [IPWEA] (2011) International infrastructure management manual. IPWEA, North Sydney

236

R. Dziedzic

Nikolic J (2018) Biases in the decision-making process and possibilities of overcoming them. Econ Horiz 20(1):43–57 O’Connor, The Honourable Dennis R (2002) Report of the Walkerton inquiry: the events of may 2000 and related issues. Queen’s Printer for Ontario, Toronto Office of the Parliamentary Budget Officer [OPBO] (2017) Budget sufficiency for First Nations water and wastewater infrastructure. Ottawa, Canada. https://www.pbo-dpb.gc.ca/web/default/ files/Documents/Reports/2017/FN%20Water/FN_Water_EN.pdf. Accessed 9 Feb 2020 Pietila A (2010) Not in my neighborhood: how bigotry shaped a great American city. Ivan R Dee, Chicago Public Sector Accounting Board [PSAB] (2007) Public sector accounting handbook, section 3150: Tangible capital assets. http://www.municipalaffairs.gov.ab.ca/documents/ms/psab_3150_4_ toolkit_full_document.pdf Public Sector Digest, Canadian Water Network, and Canadian Water and Wastewater Association (2018) Leveraging asset management data for improved water infrastructure planning. Canadian Water Network, Waterloo Richards K (2012) Water, water everywhere: is a municipality liable for damages caused by a leak in its water supply system? NYSBA Munic Lawyer 26(3):7–10 Stefanovic IL (2015) Ethics, sustainability, and water management: a Canadian case study. In: Filho WL, Sümer V (eds) Sustainable water use and management: examples of new approaches and perspectives. Springer, New York, pp 3–16 Steigleder K (2016) Climate risks, climate economics, and the foundations of rights-based risk ethics. J Hum Rights 15(2):251–271. https://doi.org/10.1080/14754835.2015.1083849 Tassonyi AT, Conger BW (2015) An exploration into the municipal capacity to finance capital infrastructure, SPP research papers 8:38. University of Calgary School of Public Policy, Calgary Town of Gibsons (2017) Advancing municipal natural asset management: the town of Gibsons’ experience in financial planning & reporting. Town of Gibsons, Gibsons United Nations General Assembly [UNGA] (2010) 64/292. The human right to water and sanitation. United Nations, Geneva United States Environmental Protection Agency [USEPA] (2007) Tools for financing water infrastructure. USEPA, Washington, DC Wallis-Lage C (2019) Harnessing the power of data streams. J Am Water Works Assoc 111:2. https://doi.org/10.1002/awwa.1234 Water Environment Research Foundation [WERF] (2010) Sustainable infrastructure management program learning environment. WERF, Alexandria

Chapter 13

Philosophical Issues in Water Law Graham Mayeda

Abstract  The use of law to regulate water raises many philosophical issues. This chapter examines the two principle moral justifications on which legal regulation rests: regulating water is important primarily because it ensures human access to it (the instrumental justification); regulating water is important because water is valuable in itself (the non-instrumental justification). The chapter will also explore the meaning of “law” by comparing various systems for regulating water, including non–stated-based systems (such as community, social, cultural, moral, or religious rules) and state-based systems (including international human rights law, domestic constitutional law, administrative and regulatory approaches, environmental stewardship, and traditional private law mechanisms). Throughout the chapter, we will also identify various critical perspectives that force us to consider whether the concept of law that supports legal regulation of water or whether specific laws and rules that societies have created treat marginalized groups such as women, the poor, racialized groups, and Indigenous peoples fairly. Keywords  Law · The right to water · International human rights law · Constitutional law · Regulatory law · Private law · Law of equity · Sustainable development · Indigenous peoples · Gender equality · Poverty · Philosophy of law

13.1  Introduction The legal regulation of water raises a number of philosophical issues about why we value water and how we choose a regulatory framework that reflects this value. This choice in turn raises questions about the values that underlie particular legal regulatory models, such as the human rights model, the administrative law model (based on the rules that govern government decision making), the private law model (based

G. Mayeda (*) Faculty of Law, University of Ottawa, Ottawa, ON, Canada e-mail: [email protected] © Springer Nature Switzerland AG 2021 I. L. Stefanovic, Z. Adeel (eds.), Ethical Water Stewardship, Water Security in a New World, https://doi.org/10.1007/978-3-030-49540-4_13

237

238

G. Mayeda

on property and tort law), and the public trust model (based on theories of stewardship derived from the law of equity). The purpose of this chapter is to indicate pathways for further exploration and research; it does not offer a complete account of the philosophical issues that can arise. In this chapter, I will discuss issues relating to three main sorts of “regulation”1: 1. Non–state-based regulation of water – systems of rules and regulations that are not created by states2; 2. The regulation of water in international law, with a primary focus on the human rights approach and the sustainable development approach; 3. The regulation of water in national (domestic) law, including both public law (constitutional and administrative law) and private law (property and tort law) approaches. The philosophical approaches to the regulation of water fall broadly into two categories: non-instrumental and instrumental. A non-instrumental approach presumes that water is valuable in itself, independent of how useful it is for human beings; in contrast, an instrumental approach, the approach taken by the majority of the theories examined here, values water primarily for its role in sustaining human life and contributing to human flourishing. Most of the philosophical issues I identify relate to moral, legal, and political philosophy; however, I will also touch on the philosophy of religion and phenomenology (the philosophy of human experience).

13.1.1  W  ays to Regulate Water That Are Not Anchored in State-Based Law In most countries today, access to and protection of water and other natural resources are regulated by the government. Such regulation is usually instrumental – it presumes that water should be protected and regulated because it is of use to humans. In contrast, non-instrumental approaches to the regulation of the water often resort to forms of regulation other than formal state-based law, such as non-legal rules and codes, social practices, rites and rituals, and moral sanctions. These forms of regulation are prevalent among many groups that are not organized as states in international law, such as religious communities, Indigenous communities, and other ethnic and non-state social groups. We will begin this chapter with a survey of these 1  I have placed “regulation” in quotes because I will discuss moral and religious rules that some societies use to regulate water. Some people do not consider such rules to be regulations in the same way that laws enforced by the government are. 2  I use the word “state” in the international law sense to refer to polities that are recognized in international law. I restrict it to this use to make it clear that law exists outside of such states (hence the term “nons-state-based law”), for instance in the polities of Indigenous peoples and ethnic minorities, which have systems for regulating water that preexist or coexist with those created by officially recognized states.

13  Philosophical Issues in Water Law

239

non-instrumental, non–state-based approaches to the regulation of water because they raise fundamental philosophical questions about the nature of legal regulation and even the nature of water. A study of non–state-based systems prompts us to consider whether informal systems such as religious rites and rituals or ethical and moral rules can serve the same functions as formal law – the law taught in most modern law schools. It also raises the question of whether informal regulation can supplement or strengthen state-based law, and whether it is important for state-­ based law to conform to social and religious practices. As an example of a non–stated-based approach to regulation, consider access to water in the Western Sahara, a territory in Northern Africa claimed by several states and inhabited primarily by the Sahrawi people. The Sahrawi, like all communities, have extensive rules for accessing water, which is especially scarce in the desert. The existence of such rules raises the question of the role that the rules and laws of the Sahrawi people should play when designing a suitable state-based legal framework for regulating water.3 Is there a moral or legal obligation to take into account their traditional rules? Would we create better state-based laws if we consulted with groups such as the Sahrawi when designing them? What role should Sahrawi law play in regulating access to water for non-Sahrawi people? These are the sorts of philosophical, social, and political issues that arise from acknowledging the existence of non–state-based regulation of water. There are many theories about the appropriate role of non–state-based regulatory systems in an overall system for managing scare resources. Using insights drawn from law and economics (especially  New Institutional Economics in this case), Richard Posner has argued that non–state-based legal systems often serve similar social functions to formal state-based systems (Posner 1980).4 It follows from this that when determining the appropriate form of state-based regulation of water in an area in which customary rules and laws operate, it is useful to first determine what these laws are and how they function before considering how to supplement or supplant them. The reflection necessary to document and understand non–state-based legal systems raises these philosophical questions: What, if anything, distinguishes state-based law from non–state-based law? What is the function of each respective system in a given society? Why do European countries and their former colonies tend to reserve the term “law” chauvinistically for systems that look like theirs?5 Apart from the question of the difference between state-based and non–state-­ based law, philosophers throughout history have had an interest in water for its own sake as an essential element or principle of life.6 Indeed, this approach to water is a 3  For a discussion of the international law position in regard to what law applies to the Western Sahara, see the Western Sahara Case (1975: 12). Water is discussed in para 137. 4  For a good introduction to New Institutional Economics, see North (1995) and Ostrom (2008). 5  For a discussion on whether rules of an informal, spiritual, or moral nature constitute “law” in the sense used in European legal traditions, see the writings of those in the legal pluralist tradition such as MacDonald (2011) and Chiba (1998). 6  Two ancient Greek philosophers, Thales and Hippo, both held the view that water is a basic principle that explains the functioning of the natural world. See for instance Simplicius’ summary of

240

G. Mayeda

feature of many non–state-based legal systems both past and present. It has given rise to various types of regulation that take the form of moral, social, or spiritual rules that most modern lawyers would not consider “laws” but that often fulfill a law-like function. Examples of such systems of regulation can be found in rites and rituals in East Asia, such as the Engishiki (延喜式, 927 CE), an early Japanese text that instructs officials on when and how to perform rites and festivals devoted to the various kami (gods), including those associated with water (Jenkins 2010: 360; Felicia Gressit Bock 1970).7 While today we might consider this text to be religious rather than legal, in the 10th century CE when it was compiled, the Japanese considered the Engishiki to be a guide for the implementation of Japanese law understood in broad terms as a set of rules for the proper ordering of society (Bock 1990). The Engishiki is modeled on similar ancient Chinese legal and administrative manuals, the most famous of which is the Book of Rites (liji, 禮記). One of the Five Confucian Classics, it has been dated to the first century BCE, but is believed to be based on earlier sources (Ching 1993: 55–56). Such rites and rituals have always been of tremendous interest to East Asian philosophers, and there is a rich philosophical literature on the topic.8 Indigenous traditions throughout the world have long provided for the regulation of scarce resources such as water. These traditions have inspired both Indigenous and non-Indigenous philosophers and legal scholars to reflect on the nature of such regulation, which is frequently based on an understanding of the relationship between humans and nature that can be very different from views held by non-­ Indigenous societies.9 The water laws of contemporary Indigenous groups in Canada provide an example of a form of regulation that is not based on a purely instrumental approach to water. For instance, The Water Declaration of the First Nations in Ontario, Canada, begins by stating the various forms that water takes in the territory of these Indigenous groups: the Declaration pertains to “rain waters, waterfalls, rivers, streams, creeks, lakes, mountain springs, swamp springs, bedrock water veins, snow, oceans, icebergs, [and] the sea …” (First Nations in Ontario 2008: 2).10 It then situates water in its natural setting; here it differs from most international and national state-based systems for regulating water, which consider water abstractly as a resource independent of its role in a given landscape or environment. The legal obligations of the Anishinaabek, Mushkegowuk, and Onkwehonwe toward the protection of water interweaves concepts familiar from sustainable development law their views in Urmson (1992: 23:21–29). Chinese philosophers had similar views: an example can be found in the Guanzi (管子; ch. 39). For an interpretation of the relevant passage, see Fung (1952: 166–67). 7  For examples of codes for the regulation of water from other regions, see Nanni (2007: ch. 2–3). 8  For an introduction to the topic by a contemporary Chinese philosopher, see Tu Wei-ming (1972). 9  For instance, see the Indigenous Peoples’ Earth Charter of 1992, in which Indigenous peoples describe their relationship to their territory in spiritual terms. Para 31 of the Charter states that “Indigenous Peoples were placed upon our Mother, the Earth, by the Creator. We belong to the land. We cannot be separated from our lands and territories.” 10  See also the Garma International Indigenous Water Declaration (2008) and Sanderson (2008).

13  Philosophical Issues in Water Law

241

with important spiritual and moral principles, such as the need to maintain natural balance and to ensure that the use of water reflects social relationships and the relationship between the people and their Creator (First Nations in Ontario 2008: 32). Indigenous traditions throughout the world offer many models for the regulation of water based on recognition of the inherent value of water independent of human uses and of the spiritual relationship between water, the Creator, and humans. The nature of these relationships and the role they should have in the regulation of water more generally is an area of emerging and ongoing philosophical interest, as is reflection on the appropriate relationship between Indigenous laws and the systems of laws imposed by European or other settlers.11 Modern European philosophers such as the German Idealists and Romantics of the late eighteenth and early nineteenth centuries have also written about the appropriate moral attitude toward nature and the environment.12 Although their views have not been applied frequently to the legal regulation of water, they constitute a rich source of critical perspectives on instrumentalist state-based regulation. These philosophical traditions are often inspired by the way that artists, such as poets, composers, and visual artists, relate to nature. For instance, Friedrich Hölderlin (1770–1843) wrote a number of poems about German rivers such as the Danube (which he calls by its Greek and Thracian name, “Ister”) and the Rhine (Hölderlin 1984). The poet’s relationship to the river provides a perspective that is often left out of the instrumentalist approach that undergirds most state-based approaches to the regulation of water. In his 1942 lectures on Hölderlin’s poem “Der Ister” (based on Heidegger 1993), twentieth-century German phenomenologist Martin Heidegger applies the critique implicit in Romantic poetry to criticize the instrumental attitude toward nature characteristic of modern European approaches.13 He argues that if we approach nature in an instrumentalist way, it fundamentally changes how we experience it. For instance, in his essay “The Question Concerning Technology,” Heidegger uses the example of how building a hydroelectric dam on the Rhine creates a different relationship between humans and the river than an old wooden bridge across it does. He explains: The hydroelectric plant is set into the current of the Rhine. It sets the Rhine to supplying its hydraulic pressure, which then sets the turbines turning …. In the context of the interlocking processes pertaining to the orderly disposition of electrical energy, even the Rhine itself appears as something at our command. The hydroelectric plant is not built into the Rhine River as was the old wooden bridge that joined bank with bank for hundreds of years. Rather, the river is dammed up into the power plant. What the river is now, namely, a water power supplier, derives from out of the essence of the power station. (Heidegger 1977: 16)

 For some ideas in this regard, see Assembly of First Nations: http://www.afn.ca/honoring-water  Friedrich Hölderlin (1770–1843), Novalis (1772–1801), Friedrich Wilhelm Joseph Schelling (1775–1854) and Karl Wilhelm Friedrich Schlegel (1772–1829) are but a few examples. The themes of German Romanticism are also famously taken up by the poet Johann Wolfgang von Goethe (1749–1832). 13  As an example of such critique, see Heidegger (1977). 11 12

242

G. Mayeda

This kind of phenomenological analysis inspires us to reflect on whether an instrumentalist approach to regulating water through law can transform our relationship to it. If so, we must ask ourselves whether this new relationship is desirable. Philosophers belonging to other philosophical traditions have, like Heidegger, linked the destruction of the natural environment, including water, to the individualistic philosophy that supported the emergence of modern science and the Industrial Revolution (Berque 2008). They suggest a number of philosophical countermeasures that provide both a critique of current instrumentalist approaches to the regulation of water and practical alternatives. For instance, Augustin Berque, the French philosopher and geographer, suggests an alternative to the instrumentalist approach that he calls “landscape thinking/reflecting” (pensée paysagère), which takes as its starting point “recovering our links with the Earth.”14 His work, which draws inspiration from European sources and from Japanese and Chinese philosophy,15 emphasizes how human existence is shaped by and shapes the environment within which it arises. As we have seen, the comparison of non–state-based regulation of water in various religious, spiritual, and philosophical traditions can lead us to question the nature of legal regulation and the relationship it bears to moral, ethical, and religious principles. Such reflection can in turn lead us to reflect on how non–state-­ based law can be used to design and implement effective state-based laws and regulations by ensuring that the latter dovetail with the former. Finally, because non–state-based forms of regulation are often inspired by art and morality, examining the concepts that underlie such forms of regulation – many of which adopt a non-instrumental attitude toward nature – can lead to powerful critiques of existing state-based approaches. In the next section, I turn to the philosophical underpinnings of more conventional state-based forms of legal regulation.

 “‘La pensée paysagère’, qu’est-ce que cela veut dire?” (presented on December 9, 2017; on file with author), 12. See also “Existe-t-il un mode de pensée forestier?” (presented on January 28, 2017, at the University of Paris-Sorbonne; on file with author). 15  In regard to Japanese philosophy, Berque is particularly inspired by the work of Watsuji Tetsurō, especially his concept of aidagara (“betweenness”), which Berque translates as “médiance.” Watsuji’s notion of this term is described in works such as his three-volume Ethics (Rinrigaku), a portion of which is translated into English as Watsuji Tetsurō’s Rinrigaku: Ethics in Japan, trans. Yamamoto Seisaku and Robert E.  Carter (New York: SUNY Press, 1996), and Climate and Culture: A Philosophical Study, trans. Geoffrey Bownas (Westport, CT: Greenwood Press, 1988). 14

13  Philosophical Issues in Water Law

243

13.1.2  I nstrumental Approach 1: How International Law Regulates Water through Human Rights Law and the Law of Sustainable Development International law has adopted two principal approaches to the regulation of water: a human rights approach and a sustainable development approach. Both are instrumentalist approaches because they value water not as a good in itself, but rather because it plays an essential role in sustaining human life and human health and in protecting the health of the natural environment that humans value. As we will see, the human rights approach raises many philosophical issues about the nature of law, the nature of rights, and the effectiveness of the promotion and protection of human rights, including the right to water, for advancing human interests. The sustainable development approach to the regulation of water raises similar issues, but adds questions about which specific principles (the precautionary principle, intergenerational equity, common but differentiated responsibilities, etc.) are required to provide a coherent foundation for promoting sustainable development and human flourishing.

13.1.3  The Human Rights Approach – The Right to Water The human rights approach to the regulation of water has its origin in various international legal documents that promote the protection of water as a natural resource used by humans to achieve their goals. The UN International Covenant on Civil and Political Rights, Article 1(2), states that humans must have the ability to use “natural wealth and resources” to achieve “their own ends” (UNGA 1966: 171). Not valued as an end in itself, water is instead valued because it is essential for humans to achieve their social, economic, and political goals (Salman and McInerney-Lankford 2004: 3). This instrumental approach to water was further reinforced in General Comment No. 15 on the Right to Water, adopted by the United Nations Committee on Economic, Social and Cultural Rights in 2002. It recognizes the importance of water for ensuring human health, preventing disease, and ensuring that humans can cook and be clean (UNCESCR 2003). It was followed by UN Resolution 64/292 (United Nations 2010), in which the General Assembly asserted that access to “safe and clean drinking water and sanitation” is a human right, a declaration that was further reinforced by a resolution of the UN Human Rights Council in 2011 (United Nations 2011). As we can see, these international legal documents approach water instrumentally as an essential element for ensuring that humans have the capacity to pursue human goals.16

 For a discussion of the importance of promoting human rights to protect these capacities, see Sen (1999).

16

244

G. Mayeda

The philosophical justification for regulating water as a human right is derived from the justifications for protecting and promoting human rights in general, of which we will consider the two principal approaches. The first, which I will call a moral justification, takes as its starting point that human existence has inherent value, and so laws must ensure the physical, social, economic, political, and cultural conditions that are necessary to protect it (Donnelly 2003: 7; Nagel 2005: 126–127).17 A second approach is based on prudence. On this approach, we have reason to promote and protect human rights simply because doing so can lead to many benefits, such as a peaceful, non-violent society, economic growth, and so on. I will address each of these in turn in the following sub-sections. 13.1.3.1  T  he Right to Water as a Human Right – Type 1: Moral Justifications Some philosophers consider the protection of our water resources to be essential because they are necessary to ensure that we can live truly human lives – dignified lives that reflect the value of human existence. This value is often captured by terms such as “human dignity” (Waldron 2015: 117–137; Tasioulas 2012, 2013; McCrudden 2013), “autonomy” and “agency,” or “freedom,”18 which are meant to recognize that to be truly human, we must be able to choose how to lead our lives and have the capacity to actualize these choices. To do so, we must have sufficient resources so that we can pursue our goals free from physical and psychological oppression.19 Such an approach is usually universalistic – it presumes that because we all share the same humanity, we must protect the rights of all humans equally. As Thomas Nagel writes, “the demands of justice derive from an equal concern or a duty of fairness that we owe in principle to all our fellow human beings …” (Nagel 2005: 119).20 Some moral approaches to human rights are natural law theories that anchor human rights such as the right to water in values that proponents of these theories consider universal because they are recognized by many religions (Maritain 1951), or because they reflect some fundamental aspects of human existence that they consider undisputable (Donnelly 1993, 2003). For example, many natural law theories of human rights assert that the capacity to act rationally is a fundamental human quality because this capacity is what allows us to make good choices and pursue them effectively rather than simply being batted back and forth by the emotions and desires that often undermine our ability to lead good lives.

 See generally Alston (2013).  Alan Gewirth claims that human freedom is the fundamental value underlying human rights. See Gewirth (1982). For similar natural rights views, see Finnis (2011), Griffin (2008), and Perry (1998). Henry Shue (1996: 23) includes a right to unpolluted water as a “basic right.” 19  See, e.g., Finnis (2011: 205), citing Hart (1971: 200–1). 20  Joseph Raz (2010: 39) writes that according to traditional human rights theories, human rights are “universal because they are rights every human being has as a human being.” 17 18

13  Philosophical Issues in Water Law

245

Natural law approaches exist in many philosophical traditions. In European philosophy, an example is found in the ancient Greek and Roman Stoics. Martha Nussbaum is a modern feminist philosopher inspired by such ideals. She argues for the protection and promotion of certain basic human rights on the basis that this provides humans with the essential conditions they need to pursue their basic function. What is this function? Drawing on the Stoic philosopher Seneca and the ancient Greek philosopher Aristotle, Nussbaum explains that what makes humans distinctive is our ability to reason; therefore, our basic purpose is to act rationally and make good moral choices in the situations we encounter in life.21 She goes on to explain that we can only truly fulfill these human functions if we have certain basic “supports” (2000: 73; 2002).22 These needs are universal, Nussbaum notes, because there is a broad cross-cultural consensus about them (2000: 74). Among universal human needs is life itself, but not just any life – a life in good health (Nussbaum 2000: 78). The right to life and the right to good health both require access to food and water (Nussbaum 2006: 76–78). Many philosophers and legal theorists have challenged the claim of natural law theorists that human rights, including the right to water, are universal. These critics argue that the diversity of cultures, societies, and states requires that we abandon universal claims about what humans value and recognize a diversity of opinions on this point. Makau Mutua, for instance, writes that “the human rights corpus as a philosophy that seeks the diffusion of liberalism and its primacy around the globe can ironically be seen as favorable to political and cultural homogenization and hostile to difference and diversity, the two variables that are at the heart of the vitality of the world today” (2002: 3). Antony Anghie (2005) has written an interesting post-colonial critique of the European and Eurocentric origin of international law23 in which he characterizes international human rights law as an attempt by European countries (and their former colonies in the developed world, such as the United States, Canada, New Zealand, and Australia) to govern and manage the developing world. He explains how institutions such as the International Monetary Fund and the World Bank, in the name of promoting a universal conception of human rights, have linked economic support for developing countries to these countries’  Aristotle believed that to understand what it means to be human and to know how to act as a human, one must understand the “function” of humans (Nicomachean Ethics 1097b24). This function, Aristotle argues, is to act in accordance with our reason, which in turn requires that we act virtuously (NE 1098a15-17). It is in this sense that Nussbaum (1995: 118), like other philosophers, argues that what makes us truly human is our capacity for practical reason (moral reasoning). For a very good discussion of Aristotle’s argument and its critics, see Korsgaard (2009). 22  Nussbaum is developing the idea of Aristotle that the function of the state is to ensure that people have what they need in order to fulfil their function, which is to act in accordance with reason in the pursuit of virtue. She writes, “The job of [the future legislator] is to give to the people in his city the necessary conditions for choosing a flourishing human life. The city aims at making people capable of such choices. A life that is not even human at all is, a fortiori, not a good human life. And it is Aristotle’s claim that many conceivable political and economic arrangements do, either wholly or in part, remove the humanity from political life by removing choice from people – either in a single sphere or across the board” (1995: 118). 23  See also Hardt and Negri (2000). 21

246

G. Mayeda

p­ erformance in achieving human rights in ways that can reproduce colonial patterns of domination of developing countries by their former colonizers.24 Many moral philosophers are aware of these critiques and have tried to respond to them. A good example is Joseph Raz, who accepts that the content of human rights might change with time and that such rights are arguably specific to particular cultural, social, and political systems (2010: 41) rather than being universal or based on more fundamental universal moral principles. Raz advocates respecting human rights not because they are universal, but because they are “assumed in contemporary human rights practice” and underline our “commitment to the value of human life” (2010: 41). How do we identify rights if they are not based on some essential human quality such as freedom or human dignity? Raz suggests that we do so simply by asking ourselves whether our society presently places sufficient value on something, such as water, to justify protecting it by law (2010: 43, 47). To use the example of a right to water, we should promote such a right only if in a particular place and at a particular time, access to water has such a “special role in our moral universe” that it makes sense to impose on others a duty to respect it. Although Raz does not specifically address the right to water, we can see how he thinks about the issue by examining his argument for why there can be no universal right to health: I hope that everyone would agree that health should not take priority over all else. All of us, to various degrees, find satisfaction and fulfilment in activities that risk our health and life, and sometimes the risk is part of the point of those activities. The crucial point is that different cultures have different, conflicting, and yet reasonable attitudes to such conflicts. There is no single way of striking the balance between health and other concerns. In their lives different individuals strike a different balance, and, in their public policies, different countries strike a different balance. Some ways of neglecting or risking life for other ends are senseless or even wrong. But many different individual attitudes and public policies, though inconsistent with one another, are sensible or at least acceptable. (Raz 2010: 46)

Given the different balance that individuals and societies strike between health and other human interests, Raz does not believe that we ought to promote a right to health. It is worth reflecting on whether he would similarly disapprove of protecting a right to water. To apply Raz’s reasoning to water, if we recognize a right to water, according to Raz’s definition of rights, we would be entitled to impose duties on states to ensure access to this resource. But of course, the value placed on water differs from place to place. For instance, the residents of Toronto, a big, rich North American city situated on one of the largest freshwater lakes in the world, value freshwater differently than those living in western Rajasthan, a desert region in India. Thus it is doubtful that one can identify a right to water, since we might not be justified in imposing duties on Toronto’s city council to place the protection of water above other interests like economic growth, although we might be justified doing so in a desert region. Not all theories of human rights justify them on the basis of more fundamental values such as autonomy, freedom, or human dignity. In the next sub-section, we

24

 For a discussion focused more on human rights, see Anghie (2013).

13  Philosophical Issues in Water Law

247

will look at a different approach to human rights, one that justifies rights in terms of the benefits that the protection and promotion of them can bring to human flourishing.

13.1.3.2  T  he Right to Water as a Human Right – Type 2: Prudential Theories In contrast to moral theories of human rights, prudential theories argue that we should protect and promote human rights not because they represent the essential preconditions to human life, which is itself valuable, but rather because the promotion of these rights allows humans and the institutions we create to flourish. The classic statement of this view is that of John Stuart Mill. He believed that the reason we protect certain rights is not because they derive from some more fundamental value such as freedom or autonomy, but because protecting them contributes to our overall well-being – protecting human rights like the right to water ensures that we live happier lives.25 Simon Caney surveys some of the philosophers who advocate such a view, whom he lumps together as proponents of “well-being-based” justifications (2005: 72–77). They include Ronald Dworkin (2000: 242–276), Will Kymlicka (1989:10–12; 2002: 13–20, 214–217), James Griffin (1986), and Amartya Sen (1999).26 For those who take a prudential approach to human rights, rights are conceived in terms of the benefits they bring to humans. Thus we would promote a right to water to the extent that doing so would increase human flourishing or human welfare. On this view, water is a commodity that can be used to help humans to achieve economic growth, a healthy life, or simply enjoyment of natural beauty. Such an approach invites an economic analysis of the right to water in which water is conceptualized as a commodity. Economists have debated exactly what kind of commodity or good water is. Some argue that it is a public good, defined as a good accessible to everyone for which one person’s use does not detract from another’s.27 Others argue that water is actually a “common-pool” good  – something “from which it is difficult to exclude access, but the consumption of which by one individual can reduce the benefits for others” (Bakker 2010: 30).28 Economic approaches to the protection of natural resources have given rise to many forms of legal regulation. Most of these require recognizing property rights of various kinds in water to avoid people squandering it or polluting it, behaviours that can result from

 For a good modern development of Mill’s approach to human rights, see Talbott (2010).  I discussed Nussbaum’s work in the section on natural law theories because I believe her inspirations – the Stoics and Aristotle – fit into this paradigm. As an economist, Sen’s philosophical reasons for promoting the “capabilities approach” are slightly different than those of Nussbaum. 27  This is discussed in Hanemann (2006). The original distinction between private and public goods originates with Samuelson (1954: 387–389), elaborated in Samuelson (1955). 28  For an argument that water is a public good, see Barlow (2007). 25 26

248

G. Mayeda

unrestricted access to water and are given the label of the “tragedy of the commons.”29 Approaches to regulation of this nature raise philosophical issues about whether natural resources such as water can or should be considered commodities and traded for other goods, or whether they have intrinsic value, in which case such commodification might be inappropriate. One of the principal examples of an instrumental approach to nature is that of sustainable development. It is an instrumental approach because it takes for granted that nature is a resource that can be used for the purpose of human development, which is often understood in economic terms as economic growth or the alleviation of poverty. One of the earliest legal documents to adopt this approach is Principle 21 of the Stockholm Declaration, an important source of principles of sustainable development that acknowledges that states have the “right to exploit their own resources.” Likewise, Principle 2 of the Rio Declaration acknowledges that states have “the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies.” Thus sustainable development presupposes that nature is a resource that can be used for attaining economic, social, and cultural development. For many years, the term “sustainable development” was not clearly defined, nor was it clear what states, corporations, or individuals were required to do to achieve it. Many philosophers have sought to fill these gaps. For instance, one of the most influential definitions of “sustainable development”  – that of the Brundtland Commission – defines it as “… development that meets the needs of the present without compromising the ability of future generations to meet their needs” (WCED 1987: 43). This definition invokes our obligations both to present generations (intragenerational equity) and to future generations (intergenerational equity). Many philosophers have questioned what each of these forms of equity mean and what specific principles each entails for protecting natural resources such as water. In the 1970s and ’80s, philosophers such as Derek Parfit (1982), Thomas Schwartz (1978: 3), Jan Narveson (1978: 38), and Gregory Kavka (1978: 188), among others, debated whether it made sense to say that humans in the present owe obligations to future humans who do not yet exist. Parfit argued that moral obligations can only be owed to specific people. This poses a problem for recognizing moral obligations to future people, because environmental protection measures we take today might affect who future people are and how many of them exist, and so we cannot identify a particular group of future humans to whom we have a duty to use natural resources wisely (Parfit 1976: 101). Edith Brown Weiss instead defended the concept of intergenerational equity, arguing that we do not have to be able to identify particular humans to whom a duty is owed for sustainable development to be a valid principle. Rather, we can determine our obligations to protect the environment simply by knowing that there will be a group of people – a generation – that will exist in the future. She concludes, “To evaluate whether the interests  For a discussion of how law and economics treats “common-pool” goods and various solutions for regulating them through institutions such as private property rights, see Trebilcock (1997: 138–141).

29

13  Philosophical Issues in Water Law

249

represented in planetary rights are being adequately protected does not depend upon knowing the number or kinds of individuals that may ultimately exist in any given future generation” (1990: 205). Philosophers have not only been interested in the coherence of the principle of sustainable development; they have also tried to identify the specific principles we must follow to achieve it. Some of these principles include the “precautionary principle,” which affirms that governments and individuals are justified to proceed with caution if there is scientific uncertainty about whether laws, regulations, or policies could harm the human or natural environment; the “polluter pays” principle; and the principle of “common but differentiated responsibilities,” which accepts that present and past inequality (such as between developed and developing countries) requires that different countries take on different moral and legal obligations to protect the environment (Mickelson 2000: 79). A significant philosophical issue is examining how these subsidiary principles are related to their parent, the principle of sustainable development. As an example, take the principle of common but differentiated responsibilities: it is not clear why rich, developed countries have a greater responsibility than poorer countries to protect the environment. For instance, why should Canada curtail the use of coal and promote renewable energy if China does not? Another issue is whether there are other principles that ought to be used to give meaning to sustainable development. The right to water can be considered a human right both on the basis that water is essential for promoting fundamental moral values and on the basis that protecting human access to water is essential for promoting other human interests such as development (however defined), welfare, or economic growth. But this is not the end of the philosophical issues raised by the right to water. Indeed, philosophical issues arise in regard to the form that the regulation of water should take in the domestic law of states. I turn to these issues in the next section.

13.2  The Regulation of Water in National (Domestic) Law Domestic law is traditionally divided into public law and private law, although today the border between the two can be hard to identify. Both are sources of laws and legal principles that apply to the regulation of water, and both raise philosophical issues about what forms of law are most consistent with how we understand the nature of the right to water. For instance, if water is simply a resource, then perhaps it should be treated like other resources, such as trees or animals: licenses can be granted by administrative agencies to access it, drain it, reroute it, and so on (this is the approach most legal systems use today). However, if water is valuable in itself, perhaps a more appropriate model for regulating it is that of stewardship, in which the government, as the chief steward, undertakes not just to regulate access to water, but seriously commits to acting in the best interests of water, doing its utmost to protect it. These and other philosophical issues are raised by the various approaches to the legal regulation of water.

250

G. Mayeda

13.3  Public Law Approaches Public law as lawyers usually understand it deals with rules that regulate the relationship between individuals and the government. Sources of these rules include a country’s constitution and the laws enacted by legislators. However, some theorists define public law more broadly to encompass any rules created by government, including rules, regulations, and policies developed, adopted, and implemented by bureaucrats and administrators.30 To understand the difference, take Canada’s Species at Risk Act (2002: c. 29). The text of the general law was drafted by the government and voted on by legislators sitting in Parliament. However, the law does not go into much detail in many areas; this was dealt with later by creating regulations under that Act to deal with specific endangered species. Such regulations are usually left to bureaucrats to create and administer. Both kinds of public law – laws of general application enacted by lawmakers and bureaucratic and administrative rules created by government administrators  – give rise to different philosophical issues, as discussed in the following sub-sections.

13.3.1  P  hilosophical Issues Arising in Constitutional Law and Laws of General Application that Regulate Water We have examined the right to water as an issue of international human rights law. Similar issues to those raised at the international level arise in the domestic context because the constitutions of countries often contain a bill of rights that protects many of the human rights that are recognized in international law. However, philosophical issues different from those we discussed in the section on human rights can arise in the domestic context. For instance, there may be competing or incompatible legal regimes operating within the same country, especially in the case of former colonies, where Indigenous laws may coexist with state-based ones. Or, in a multicultural state, different groups might have varying views of the importance of water and the natural environment; these differences can create political tensions. The resolution of such tensions has been the topic of much philosophical reflection and given rise to many practical policy challenges. Another area of philosophical reflection is in regard to the kind of institutions and organizational structures that countries should put in place to create and enforce the laws and rules for protecting and promoting environmental rights, such as the right to water. For instance, if a right to water or a right to a healthy environment is included in a country’s constitution, who will interpret and enforce the protection of these rights? Should courts do so? Should bureaucrats from the country’s environmental protection agency be given this responsibility? Or are (elected) lawmakers the ones who should have primary responsibility for implementing and applying 30

 Such administrative rules and the law that regulates them are discussed in Loughlin (2010).

13  Philosophical Issues in Water Law

251

environmental rules and regulations? While in many countries courts have a role in enforcing environmental protection law, some political and legal philosophers have challenged the legitimacy of courts in carrying out this function because judges in most countries are not elected. Environmental law scholar David Boyd puts the democratic concern this way: Opponents of constitutional recognition of human rights [including the right to water] argue that transferring decision-making power from elected legislators to unelected judges is undemocratic. The basic argument is that in a democracy, important decisions ought to be made by elected individuals who, at least in theory, represent the viewpoints of their constituents. This perspective views the legislature’s role as determining what should be done and the courts’ role as limited to reviewing how things are done. In other words, courts ought to focus on process, not substance, and should avoid disturbing the decisions of elected governments about the distribution of risks, costs, and benefits within society. … [Also,] courts lack the institutional capacity, technical expertise, and resources required to address complex environmental issues and are the wrong place for resolving polycentric issues involving conflicting values and diverse interests. (2012: 28)

Moreover, in some states, courts are highly politicized: as a result, they may give a meaning to environmental rights or strike a balance between environmental interests and other legitimate interests that lawmakers and the people they represent would not approve of. Boyd goes on to explain why he thinks that having courts involved actually promotes democracy. In his view, although judges may not be elected, giving the public access to courts ensures that ordinary people can access government information about what is being done to protect these rights. Courts facilitate such access to information because they have the power to order the government to disclose policy documents. Also, the arguments that lawyers make before courts on behalf of their clients can lead to public debate and a more informed public. Finally, well-respected courts understand that their role is to enter into a dialogue with elected officials and environmental policymakers rather than to simply assert the court’s own view of the meaning of environmental rights or the settlement of an environmental dispute (Boyd 2012: 106).31 Thus, courts can be trusted to act with restraint and not overstep the boundaries set for them by constitutional law. While enshrining a right to water in a country’s constitution may appear to settle the issue of its legal status, this is rarely the case. Constitutions can be hard to interpret because the rights they protect are described in very general terms. This raises the question of who should interpret these rights: courts, lawmakers, or government administrators? The answer to this question requires political and legal philosophers to identify the proper form of accountability for creating and enforcing rules, regulations, and laws that apply to the protection of water and control access to it.

 On the dialogue theory that explains the back and forth between courts and legislatures in the process of interpreting laws and the constitution, see Roach (2001).

31

252

G. Mayeda

13.3.2  P  hilosophical Issues Arising from the Regulation of Water by Administrative Officials and Bureaucrats As I mentioned above, public law is far broader than just a state’s constitution and the laws of general application enacted by its lawmakers, who are generally elected officials. It also includes regulations authorized by those laws, as well as departmental policies and procedures developed by bureaucrats to implement government policies. Constitutions and laws of general application enacted by legislators are very general and rarely provide for all the detailed rules that are needed to give guidance to government officials when enacting and enforcing a law. Administrative rules and regulations are needed to put them into action. To use the example of water law, Canada’s federal government enacted the International River Improvements Act in 1955 and the Canada Water Act in 1970. These acts contain only very general directions. They give discretionary power to officials in the Ministry of Environment and various government agencies to create specific rules for granting licenses for building dams, canals, reservoirs, and other structures on rivers (IRIR n.d.); testing the quality of water; creating water resource management plans; designing conservation systems for water resources; and implementing the rules they make (Canada Water Act 1970: ss. 5, 6). The primary philosophical debates that arise in this area address whether it is legitimate for lawmakers, especially democratically elected ones, to give significant discretion to bureaucrats and other government officials to implement the law. After all, these officials are not elected, and most lawmakers have no idea what the officials are up to or whether they are implementing the laws as the lawmakers intended. Theorists have suggested a variety of ways to ensure that government officials really do act in the public interest rather than in their own interest. One technique is to ensure that environmental protection legislation specifically includes values and standards against which the decisions of government officials can be measured. Whether this is feasible and what values should be included is a topic of significant interest for legal theorists and legal philosophers. Philosophical issues also arise in regard to the norms and values that underlie administrative law, the body of rules that most modern states use to ensure that the bureaucrats charged with implementing environmental protection legislation remain accountable. Mary Christina Wood has criticized administrative law approaches to the regulation of the environment on the basis that they have resulted in large-scale exploitation of the environment rather than protection of it (2009a, b). Research has shown that government officials in environmental protection agencies rarely forbid government or private sector actors from doing things that harm the environment. Thus, Wood complains that “the majority of [administrative] agencies spend nearly all of their resources to permit, rather than prohibit, environmental destruction” (2009a: 56). She argues that we must adopt a new set of values to animate environmental law: [T]he task is to locate a reservoir of legal obligation to steer discretion in a way that effectuates government’s true purpose—protecting the interests of the citizenry. Agency discretion must be redirected in a way that protects, rather than destroys, natural resources that citi-

13  Philosophical Issues in Water Law

253

zens rely on for survival, economy, and prosperity. Such redirection is the type of transformational change that would harness the full spectrum of governmental authority on behalf of the people. While at first glance this redirection seems politically naive because of the corporate hold on many parts of the agencies, a reorientation of this nature may gain strength and momentum by drawing upon the deeply held philosophical assumptions invigorating American democracy. (2009a: 63)

Wood suggests a shift from the administrative law paradigm toward a trust law paradigm: a shift from seeing administrators as faithful servants of legislators and the statute these legislators enact32 to one in which the administrators are conceived as “stewards of the earth” (2009a: 65). If this shift were accomplished, government officials would be transformed from facilitators for the exploitation of the environment (and water) to “government trustees, who serve at the will of the public….” The value that would animate their decisions as public trustees is that they “may not allocate rights to destroy what the people legitimately own for themselves and for their posterity” (2009a: 69). The philosophical roots of this concept of public trust or stewardship is to be found in many religions and philosophies (Wilkinson 1989). In contemporary political circles, it is often justified on the basis of both Kantian principles of right and republican principles of non-domination (Fox-Decent 2012: 78–79, 94–95). For non-lawyers, a stewardship approach may seem like common sense. But it is not presently an approach taken by any states regulating the environment or water.

13.3.3  Private Law Approaches Water has been regulated in the United Kingdom and the former British colonies largely by the common law rules33 of private law that govern the relationships between individuals; these rules are distinguished from public law, which is primarily about the relationship between government and individuals. Legal philosophers have long been interested in identifying and explaining the fundamental principles of private law. To the extent that private law rules for resolving disputes between individuals over access to waterways (called “riparian” law) engage these debates, they will be relevant to our discussion of the philosophical foundations of the regulation of water. Disputes over water have historically arisen between competing farmers, who require access to water for agriculture, but also between farmers and manufacturers, who often wished to put the same resource to different uses such as irrigation, power

 Wood describe this approach as based on the assumption that environmental “agencies are neutral and objective agents of the public, constituted to carry out statutory objectives without regard to internal or external political agendas” (2009a: 59). 33  In the UK and its former colonies, “common law” is law made by judges; it is contrasted with law made by legislators such as elected officials. In other countries that are governed by civil law, the kinds of rules contained in the common law are often found in the country’s civil code. 32

254

G. Mayeda

generation for mills and manufacturing equipment, and disposal of waste. The increase in urban populations has also pitted city-dwellers against farmers. These disputes involved two areas of private law: property law and tort law (Getzler 2006). Many theoretical challenges arise because water is mobile, while land, the paradigm for property law, is not. As a result, one of the key challenges was to adapt laws suited to immovable property to water. Understanding the theoretical foundation of private law continues to be area of significant interest and dispute among legal theorists. As an example, let us look at the doctrine of nuisance, which has played an important role in private law approaches to regulating water. One of the fundamental principles of the law of nuisance is the Golden Rule, sometimes called the “neighbor principle”: you should “do to others what you would have them do to you” (Getzler 2006: 276–277). Applied in the law of nuisance, the rule is that one should not use one’s own property in a way that denies others the right to use theirs. In other words, one should avoid using one’s land or using shared waterways in a way that creates a nuisance for others and impairs their ability to farm their land, use it for manufacturing, or simply live on it. It is based on this rule that one sues one’s neighbor if she is too noisy, produces foul smells next door, or allows waste to seep from her land to one’s own. Legal theorists continue to argue over the theoretical justification for this fundamental principle of the common law. Two traditional approaches are a moral or rights-based approach, derived from Kantian or Hegelian notions of right, and a utilitarian or public policy–based approach. For Kantian rights theorists, the neighbor principle is justified as a way of protecting each person’s freedom. The law must prevent my neighbors from ruining my use and enjoyment of my land because otherwise the neighbor’s interests are given priority over mine, which restricts my freedom to use my land as I please and denies that my rights are as important as the neighbors’ (Weinrib 1995: 98). In contrast to rights-based theories, utilitarian and public policy approaches suggest that the law of nuisance should consist of rules that maximize social welfare. Sometimes, individuals’ rights might have to give way to the interests of society as a whole, or at least a section of it. Law and economics theorists adopt this view. While a Kantian or Hegelian scholar focuses on an individual’s right, a person analyzing legal rules from an economic perspective instead asks, “Is it likely that this particular transaction [or use of land or water], will make individuals affected by it better off in terms of how they perceive their own welfare …?” (Trebilcock 1993: 7). The welfare-based approach can have an effect not just on what kinds of uses of land or water are legal or illegal, but also on the kind of remedy available. On a rights-based view, the guiding rule of remedies is to place the person whose right to access water has been harmed back in the position she would have been in had the access not been wrongfully limited. In contrast, a welfare approach might set the level of compensation a person is owed for losing access to water (by diversion, pollution, etc.) based on what amount is necessary to prevent people in future from polluting water or affecting others’ access to it, even if this is considerably more (or less) than is needed to compensate the person harmed.

13  Philosophical Issues in Water Law

255

Proponents of public policy approaches or welfare-based approaches to private law tend to view the role of a judge much differently than rights-based theorists do. While the latter consider the judge as an adjudicator between conflicting rights claims, the former recognize that a judge must also decide a case in a way that creates a legal rule that benefits everyone, not just the specific parties to a legal dispute. Such an approach was promoted by the maverick American jurist Oliver Wendell Holmes, who believed that judges should decide the rights of various parties to use a limited resource such as water in a way that will increase overall social utility. For instance, in his 1894 essay “Privilege, Malice and Intent,” he criticized the formalistic rights-based justification of the neighbor principle (which he expresses in Latin), arguing that the proper way to decide such a case is based on sound public policy: Questions of policy are legislative questions [i.e., questions about balancing competing interests], and judges are shy of reasoning from such grounds. Therefore, decisions … often are presented as hollow deductions from empty general propositions like sic utere tuo ut alienum non laedas [the neighbor principle], which teaches nothing but a benevolent yearning, or else are put as if they themselves embodied a postulate of the law and admitted of no further deduction. … But in all such cases the ground of decision is policy; and the advantages to the community, on the one side and the other, are the only matters really entitled to be weighed. (3–4, 7, 9)

As Felix Cohen, one of the early proponents of American Legal Realism, explained it, legal rules are often “economic prejudice masquerading in the cloak of legal logic” (1935: 817). Holmes firmly believed that judges make public policy, but they hide this fact behind the pretense that they are resolving the rights between parties. Today, many groups have taken up the realist position that legal rules reflect policy decisions by judges who balance competing social interests; these groups reject the view that legal rules express fundamental moral principles, as the advocates of rights-based theories maintain. Most critical analysis of law is based on this realist view that the rules judges create and the way they apply them have profound consequences for advancing or hindering the interests of different groups in society. Those who apply an economic analysis to law draw on this realist insight; they study how private law rules applied to disputes over access to water create incentives for people to share scarce water resources or create effective disincentives to pollute it.34 For instance, law and economics scholars might study how the rules that courts have created for the sale of water in California (where water is very scarce) have shifted water use from agriculture to urban areas. They will make recommendations about how these rules should change in future to make the distribution of water more efficient.35

 For a good overview of research methods used by law and economics, see Trebilcock (1997: 124). For an application of law and economics analysis to environmental law, see Green (2006). 35  See, e.g., Brewer et al. (2007). 34

256

G. Mayeda

The insights of the public policy approach to law adopted by legal realists has proven to be a powerful tool for identifying the negative impact of private (and public) law on equality-seeking groups such as women, racialized people, the poor, the elderly, people with disabilities, and so on. Critical feminism and critical race theory, for instance, accept the realist insight that legal rules, far from being the result of applying a universally valid legal principle using valid legal reasoning, have profound (often negative) policy consequences for specific groups. For instance, critical feminists might argue that the legal rules that apply to the regulation of water have been developed by men from the dominant race and social class of a given society, which has led to a set of legal rules that, not unsurprisingly, favor the interests of this dominant group over that of others, such as women.36 They might also document how water pollution or limitations on access to water can have a different effect on women than on men. Critical race theorists pose similar questions about why legal rules exclude or marginalize the interests of racialized groups.37 The various ways in which water is regulated is naturally amenable to critique from these perspectives; indeed, creating a just system of regulation necessitates such critique. As we can see, private law approaches to the regulation of water raise many philosophical issues about the norms that underlie private law (rights-based approaches versus public policy or welfare-based approaches) and the way private law is applied to protect and promote the environment, including water. The increasing acceptance that adjudicating legal rights affects public policy (the “legal realist” insight), has been used by advocates of equality-seeking groups such as women and racialized people to document and oppose the differential application of laws and regulations about water to various social groups. The issues of social, political, and legal philosophy that are raised by using the private law to regulate water continue to be of interest to contemporary philosophers.

13.4  Conclusion In this chapter, I have identified a few of the philosophical issues raised by using law to regulate water. Some of the issues relate to the nature of law itself – does law include non–state-based rules such as moral, religious, social, and cultural practices, or is law restricted to formal rules and regulations put in place by a country’s lawmakers? Other issues are about identifying the moral and legal values that underpin approaches to the legal regulation of water in international and national (domestic) law. We examined both moral and prudential theories of human rights  For a general description of feminist methods for studying law, see Bartlett (1990: 829). Similar questions are asked by non-lawyers, such as those interested international development. In this regard, see Beetham and Demetriades (2007). See also Harris et al. (2015). 37  For critical race approaches in general, see e.g. (Razack et al. 2010; Matsuda 1988; Crenshaw 1991; Harris 1990; Razack 1998). In regard to the environment, see Sturgeon (1997) and Moore et al. (2003). 36

13  Philosophical Issues in Water Law

257

and identified how each affects the way international law protects and promotes the right to water. At the national level, we touched on the thorny questions of whether a country’s constitution should recognize a right to water (or a right to a healthy environment) and the role of different levels of government (courts, legislators, and bureaucrats/ administrators) in creating and applying laws and regulations to water. We also reflected on whether law is primarily about the protection of people’s rights or whether it must also balance the competing interests of different social groups, allocating to these groups varied levels of access to water to maximize efficient use of this scarce resource. Finally, we were prompted to reflect on whether law values water as a good in itself, or whether its value is entirely derived from the benefits it secures for humans, recognizing that these benefits differ based on whether we are part of a dominant social group or a group that is marginalized on the basis of gender, race, Indigenous identity, social class, disability, or other factors. The legal regulation of water is a rich field for philosophical reflection.

References Alston P (2013) International human rights: texts and materials. Oxford University Press, Oxford Anghie A (2005) Imperialism, sovereignty, and the making of international law. Cambridge University Press, Cambridge Anghie A (2013) Whose utopia? Human rights, development, and the third world. Qui Parle Crit Humanit Soc Sci 22(1):63–80 Bakker K (2010) Privatizing water: governance failure and the world’s urban water crisis. Cornell University Press, Ithaca Barlow M (2007) Blue covenant: the global water crisis and the coming battle for the right to water. McClelland & Stewart, Toronto Bartlett KT (1990) Feminist legal methods. Harv Law Rev 103(4):829–888 Beetham G, Demetriades J (2007) Feminist research methodologies and development: overview and practical application. Gend Dev 15(2):199–216 Berque A (2008) La pensée paysagère. Archibooks, Bastia Bock FG (1990) The enthronement rites: the text of Engishiki, 927. Monum Nippon 45(3):307–337 Boyd DR (2012) The right to a healthy environment: revitalizing Canada’s constitution. UBC Press, Vancouver Brewer J, Fleishman MA, Glennon R, Ker A, Libecap G (2007) Law and the new institutional economics: water markets and legal change in California, 1987–2005. Arizona legal studies discussion paper no. 07-35 (December). http://ssrn.com/abstract=1079685. Accessed 6 Apr 2020 Canada Water Act (1970) R.S.C. 1985, c. C-11 Caney S (2005) Justice beyond borders: a global political theory. Oxford University Press, Oxford Chiba M (1998) Other phases of legal pluralism in the contemporary world. Ratio Juris 11(3):228–245 Ching J (1993) Chinese religions. Orbis, Maryknoll Cohen F (1935) Transcendental nonsense and the functional approach. Columbia Law Rev 35(6):809–849

258

G. Mayeda

Crenshaw K (1991) Mapping the margins: intersectionality, identity politics, and violence against women of color. Stanford Law Rev 43(6):1241–1299 Donnelly J (1993) International human rights. Westview Press, Boulder Donnelly J (2003) Universal human rights in theory and practice, 2nd edn. Cornell University Press, Ithaca Dworkin R (2000) Sovereign virtue: the theory and practice of equality. Cambridge University Press, Cambridge Felicia Gressit Bock, trans (1970) Engi-Shiki. Procedures of the Engi Era, Books I-IV. Sophia University, Tokyo Finnis J (2011) Natural law and natural rights, 2nd edn. Oxford University Press, Oxford First Nations in Ontario (2008) Resolution 08/87 passed at the 2008 Special Chiefs Assembly in Toronto. https://www.afn.ca/uploads/files/sca-res-08.pdf. Accessed 6 Apr 2020 Fox-Decent E (2012) Sovereignty’s promise: the state as fiduciary. Oxford University Press, Oxford Fung Yu-L (1952) A history of Chinese philosophy, vol 1 (trans: Bodde D). Princeton University Press, Princeton Garma International Indigenous Water Declaration (2008) www.afn.ca/uploads/files/env/garmainternational.pdf. Accessed 6 Apr 2020 Getzler J (2006) A history of water rights at common law. Oxford University Press, Oxford Gewirth A (1982) Human rights: essays on justification and applications. University of Chicago Press, Chicago Green AJ (2006) You can’t pay them enough: subsidies, environmental law and social norms. Harvard Environ Law Rev 30(2):407–440 Griffin J (1986) Well-being: its meaning, measurement, and moral importance. Oxford University Press, Oxford Griffin J (2008) On human rights. Oxford University Press, Oxford Hanemann WM (2006) The economic conception of water. In: Rogers PP, Llamas MR, Martinez-­ Crotina L (eds) Water crisis: myth or reality? Taylor & Francis, London Hardt M, Negri A (2000) Empire. Harvard University Press, Cambridge, MA Harris AP (1990) Race and essentialism in feminist legal theory. Stanford Law Rev 42(3):581–616 Harris LM, Phartiyal J, Scott DN, Peloso M (2015) Women talking about water: feminist subjectivities and intersectional understandings. Can Women’s Stud J Les Cahiers de la Femme Spec Issue Women Water 30(2/3):15–24 Hart, HLA (1971 Oxford essays in jurisprudence: second series, Simpson AWB (ed). Oxford University Press, Oxford Heidegger M (1977) The question concerning technology and other essays (trans: Lovitt W). Harper and Row, New York Heidegger M (1993) Hölderlin’s Hymne ‘Der Ister’. In: Martin Heidegger Gesamtausgabe, vol 53. Vittorio Klostermann, Frankfurt Hölderlin F (1984) Hymns and fragments (trans: Sieburth R). Princeton University Press, Princeton Holmes OW (1894) Harvard law review 1. Quoted in Weinrib. 1997. Tort law: cases and materials. Emond montgomery, Toronto, pp 15–16 Indigenous Peoples’ Earth Charter (1992) Kari-oca, Brazil, May 25–30 International River Improvements Act (1955) R.S.C. 1985, c. I-20 International River Improvements Regulations (n.d.) C.R.C., c. 982, s. 10 Jenkins W (ed) (2010) The spirit of sustainability. In: Encyclopedia of sustainability, vol 1. Gale, Farmington Hills Kavka G (1978) The futurity problem. In: Sikora RI, Barry B (eds) Obligations to future generations. Temple University Press, Philadelphia Korsgaard CM (2009) Aristotle’s function argument. In: Korsgaard (ed) The constitution of agency: essays on practical reason and moral psychology. Oxford University Press, Oxford. https://doi.org/10.1093/acprof:oso/9780199552733.003.0005 Kymlicka W (1989) Liberalism, community and culture. Oxford University Press, Oxford

13  Philosophical Issues in Water Law

259

Kymlicka W (2002) Contemporary political philosophy: an introduction, 2nd edn. Oxford University Press, Oxford Loughlin M (2010) Foundations of public law. Oxford University Press, Oxford MacDonald R (2011) Custom made: for a non-chirographic critical legal pluralism. Can J Law Soc 26(2):301–327 Maritain J (1951) Man and the state. University of Chicago Press, Chicago Matsuda M (1988) Affirmative action and legal knowledge: planting seeds in plowed-up ground. Harvard Womens Law J 11:1–17 McCrudden C (ed) (2013) Understanding human dignity. Oxford University Press, Oxford Mickelson K (2000) South, North, international environmental law, and international environmental lawyers. Yearbook Int Environ Law 11:52–81 Moore DS, Kosek J, Pandian A (2003) Race, nature, and the politics of difference. Duke University Press, Durham Mutua M (2002) Human rights: a political and cultural critique. University of Pennsylvania Press, Philadelphia Nagel T (2005) The problem of global justice. Philos Public Aff 33(2):113–147 Nanni M (2007) Principles of water law and administration, national and international, 2nd edn. Taylor & Francis, London Narveson J (1978) Future people and us. In: Sikora RI, Barry B (eds) Obligations to future generations. Temple University Press, Philadelphia North DC (1995) The new institutional economics and Third World development. In: Harriss J, Hunter J, Lewis CM (eds) The new institutional economics and third world development. Routledge, London, pp 17–26 Nussbaum M (1995) Aristotle on human nature and the foundations of ethics. In: Altham JEJ, Harrison R (eds) World, mind, and ethics: essays on the ethical philosophy of Bernard Williams. Cambridge University Press, Cambridge, pp 86–131 Nussbaum M (2000) Women and human development: the capabilities approach. Cambridge University Press, Cambridge Nussbaum M (2002) Capabilities and human rights. In: de Greiff P, Cronin C (eds) Global justice and transnational politics: essays on the moral and political challenges of globalization. MIT Press, Boston Nussbaum M (2006) Frontiers of justice. Harvard University Press, Boston Ostrom E (2008) Doing institutional analysis: digging deeper than markets and hierarchies. In: Ménard C, Shirley MM (eds) Handbook of new institutional economics. Springer, New York, pp 819–848 Parfit D (1976) On doing the best for our children. In: Bayles MD (ed) Ethics and population. Schenkman, Cambridge, MA, pp 110–115 Parfit D (1982) Future generations: further problems. Philos Public Aff 11(2):113–172 Perry M (1998) The idea of human rights: four inquiries. Oxford University Press, Oxford Posner R (1980) A theory of primitive society, with special reference to law. J Law Econ 23(1):1–53 Raz J (2010) Human rights in the emerging world order. Transl Leg Theory 1(1):31–47 Razack S (1998) Looking white people in the eye: gender, race and culture in courtrooms and classrooms. University of Toronto Press, Toronto Razack S, Smith M, Thobani S (eds) (2010) States of race: critical race feminism for the twenty-­ first century. Between the Lines, Toronto Roach K (2001) The supreme court on trial: judicial activism or democratic dialogue. Irwin Law, Toronto Salman SMA, McInerney-Lankford S (2004) The human right to water: legal and policy dimensions. World Bank, Washington, DC Samuelson PA (1954) The pure theory of public expenditure. Rev Econ Stat 36(4):387–389 Samuelson PA (1955) Diagrammatic exposition of a theory of public expenditure. Rev Econ Stat 37(4):350–356

260

G. Mayeda

Sanderson CD (2008) Nipiy wasekimew/clear water: the meaning of water, from the words of the Elders: the interconnections of health, education, law and the environment. PhD thesis, Simon Fraser University. http://summit.sfu.ca/item/9050. Accessed 6 Apr 2020 Schwartz T (1978) Obligations to posterity. In: Sikora RI, Barry B (eds) Obligations to future generations. Temple University Press, Philadelphia, pp 3–13 Sen A (1999) Development as freedom. Anchor Books, New York Shue H (1996) Basic rights: subsistence, affluence and U.S. foreign policy, 2nd edn. Princeton University Press, Princeton Species at Risk Act. S.C. 2002, c. 29 Sturgeon N (1997) Ecofeminist natures: race, gender, feminist theory and political action. Routledge, London Talbott WJ (2010) Human rights and human well-being. Oxford University Press, Oxford Tasioulas J (2012) Towards a philosophy of human rights. Curr Leg Probl 65(1):1–30 Tasioulas J (2013) Human rights, legitimacy and international law. Am J Jurisprud 58:1–25 Trebilcock MJ (1993) The limits of freedom of contract. Harvard University Press, Boston Trebilcock MJ (1997) An introduction to law and economics. Monash Univ Law Rev 23(1):123–158 Tu W-m (1972) Li as process of humanization. Philos East West 22(2):187–201 United Nations (2010) The human right to water and sanitation. GA Res. 64/292. UNGAOR, 64th Session. UN Doc A/RES/64/292 United Nations (2011) The human right to safe drinking water and sanitation. Res 18/1. UNHRC, 18th Session, UN Doc A/HRC/RES/18/1 United Nations Committee on Economic, Social and Cultural Rights [UNCESCR] (2003) General comment no. 15: the right to water (Arts. 11 and 12 of the Covenant), January 20. E/C.12/2002/11 United Nations General Assembly [UNGA] (1966) International covenant on civil and political rights, December 16. United Nations, Treaty series, vol 999 Urmson JO (trans) (1992) Simplicius: corollaries on place and time (Ancient Commentators on Aristotle) 23:21–29. Bloomsbury Academic, London/New York Waldron J (2015) Is dignity the foundation of human rights? In: Cruft R, Liao MS, Renzo M (eds) Philosophical foundations of human rights. Oxford University Press, Oxford, pp 117–137 Weinrib EJ (1995) The idea of private law. Harvard University Press, Boston Weiss EB (1990) Our rights and obligations to future generations for the environment. Am J Int Law 84(1):198–207 Western Sahara Case. Advisory opinion of 16 October 1975, ICJ reports 1975 Wilkinson CF (1989) The headwaters of the public trust: some thoughts on the source and scope of the traditional doctrine. Environ Law 19(425):429 Wood MC (2009a) Advancing the sovereign trust of government to safeguard the environment for present and future generations (Part I): ecological realism and the need for a paradigm shift. Environ Law 39(1):43–89 Wood MC (2009b) Advancing the sovereign trust of government to safeguard the environment for present and future generations (Part II): instilling a fiduciary obligation in governance. Environ Law 39(1):91–139 World Commission on Environment and Development [WCED] (1987) Our common future. Oxford University Press, Oxford

Chapter 14

Ideas, Values, and Ethics: Integrating a Values-Based Approach into Water Policy in Canada Carolyn Johns

Laws and policies sail on a sea of ethics (Water Ethics Network 2016)

Abstract  Values and ethics related to water are clearly reflected in laws and policies that are designed to “govern” water. Public policy scholars have long recognized the importance and role of ideas, values, and ethics in the policy process. This chapter focuses on the central role of values in water policy; how values have gained the attention of policy makers at the international level and in Canada; and the degree to which water law and policy reflect fundamental values related to water in Canada. The chapter outlines the importance of a values-based approach related to improving water policy and governance in the future, but also outlines why changing water policy using this approach remains challenging. The chapter highlights how a values-based approach and policy discourse can play a role in shifting water policy to reflect different water values and a new water ethic in Canada. Keywords  Water values · Water policy · Water ethic · Indigenous water values · Water legislation · Water charter

14.1  Introduction Water ethics and values guide our everyday behavior and the complex governance behaviors of policy actors. Ethics are deeply embedded in policies and governance arrangements. However, public policy has always been viewed as a rational, technical, evidence-based approach where decision making is the responsibility of experts and elected politicians. While this is true in many instances, public policy scholars C. Johns (*) Department of Politics and Public Administration, Ryerson University, Toronto, ON, Canada e-mail: [email protected] © Springer Nature Switzerland AG 2021 I. L. Stefanovic, Z. Adeel (eds.), Ethical Water Stewardship, Water Security in a New World, https://doi.org/10.1007/978-3-030-49540-4_14

261

262

C. Johns

have long recognized the importance of ideas and values held by a broad range of policy actors who seek the right thing to do. Evidence itself includes ideas, values, and ethics (Bromell 2012). As Freiberg and Carson (2010) have argued, evidence alone is not the only determinant of policies or policy outcomes; value conflicts are an important part of policy change (Stewart 2009). However, studying the role of values and ethics in public policy is complex. This is evident in environmental policy (Paehlke 2000) and water policy, which has multiple meanings and cultural foundations, local and global dimensions, and multiple uses in societies and economies across the globe. Analyzing water values and ethics in relation to water policy is therefore challenging. Answers are needed to basic questions such as: What are the water values and ethics that dominate water policy in Canada? Do different segments of Canadian society hold different water values? If so, how are these reflected in current water policies? Are the water values held by elites and policy actors the same as or different from those held by Canadians? How important are changing values to changing water policies in Canada? As this volume clearly indicates, scholars from a number of disciplines now see the importance of ethics in understanding our past, present, and future actions and decisions related to water. Public policy and public administration scholars have long recognized the place of values in the policy process in influencing the behavior of policy actors and in explaining current policies and policy outcomes. One of the classic approaches in policy studies is to examine the important role of ideas, interests, and institutions in shaping and constraining water policy internationally and in Canada. For some time, the dominant approach of water policy scholars has been to focus primarily on state institutions  – more recently, policy networks as institutional arrangements that exist for purposes of policymaking or policy implementation. The focus on the significance of institutions and powerful vested interests are well documented in water policy in Canada. The water governance and policy implications of central institutions such as the Constitution, division of powers, the federal system, the bureaucracy, and the courts are also well documented. A focus on interests and policy actors is another key element of policy analysis, particularly when it comes to questions of access to water, users of water, rights of various interests to water, and the power dynamics associated with some actors having privileged rights related to water use in the pre- and post-Confederation periods (Sproule-Jones et al. 2008). Indeed, the analysis of important institutions and powerful interests in various periods of water policy development reflect different values that we have related to water. Values related to water are clearly reflected in laws, policies, and institutions that have been designed and redesigned over time to “govern” water. Social, scientific, political, and economic ideas, particularly those held by dominant policy elites, are reflected in water policies and court decisions in Canada (Brooks 2003). These values are reflected in both formal and informal policy processes and institutions. It is thus common in policy studies to focus on institutions, both formal and informal, and how they reward certain interests and marginalize other interests in power systems. Formal institutions are those typically embodied in law, both written and

14  Ideas, Values, and Ethics: Integrating a Values-Based Approach into Water Policy…

263

conventional law; these formal rules address rights to, access to, and use of water. Informal institutions are those that may not be written down but are the rules that also determine collective action and behavior. Ideas and moral values are also evident in water conflicts. Contested views of water similarly are evident in some policy documents and processes as the policy process plays out in legislatures, cabinets, bureaucracies, courtrooms, and a wide range of quasi-governmental institutions and policy networks. In many instances, laws, policies, and institutions have been designed to address or, in some cases, reinforce conflicts over various uses of water. Historical institutional approaches have clearly outlined how property rights, economic uses, and human uses have come to dominate water laws and policies in Canada (Brooks 2003; Sproule-Jones et al. 2008). For many policy scholars, rules, backed by state authority, are typically the starting point for policy analysis: they seek to understand how policies developed, reinforced, and privileged some interests and ideas, and help us to understand why water policies are difficult to change. However, rules themselves embody moral values. From this perspective, one cannot understand water ethics without understanding how past, present, and future institutions and policies reflect values and therefore guide the behavior of various policy actors. This chapter focuses on the central role of values in water policy. The chapter begins with a brief theoretical overview of how policy scholars who place an emphasis on ideas focus on the important role of values and how this is done without disregarding the significance of interests and institutions in policy and governance. The first section focuses on the theoretical foundations that inform the powerful role of ideas, values, and ethics in water policy. The second section reviews how values have gained the attention of policymakers at the international level and examines similar developments in Canadian water policy. The third section reviews the importance of an understanding of water values to policy change and to improving water policy and governance in the future. This section uses a few illustrative cases to highlight how water law and policy reflect fundamental values related to water in Canada. The final section outlines why changing water values are so challenging in water policy in Canada and explores the role that discourse in policy must play if we, as a collective, are to gradually shift water policy to reflect a different ethic in water policy in Canada. It is argued in this chapter, and in this book, that more fully integrating approaches and perspectives from a number of disciplines is critical to furthering our understanding and promotion of a new water ethic and policy change.

14.2  Theoretical Foundations: Ideas, Values, and Ethics In pluralist, liberal democracies, people are committed to basic moral principles in different ways. They hold diverse conceptions of the good, desired outcomes, and policy goals and have conflicting ideas about how social goods should be distributed (Bromell 2012). As Rawls has noted, the political culture of a democratic society is always marked by a diversity of opposing and irreconcilable religious,

264

C. Johns

philosophical, and moral doctrines (Rawls 1987). This diversity among doctrines underpins political liberalism (Rawls 2005). In public policy, these ideas, values, and ethics underpin the policy process and policies themselves, policy outcomes, and policy change. For the purposes of this chapter, ideas, values, and ethics are seen as central to understanding policy and governance. Ideas are thoughts, mental impressions, cognitions, frames, opinions, or beliefs related to a possible course of action. They can be individual or held collectively. Values refer to a set of ideas that guide individual or group thought and behaviors. They are principles or standards of behavior based on what humans believe is important, worthy, or useful. Values govern the way we behave, communicate, and interact with others. They vary across time and space and guide the way we live our lives and the decisions we make as individuals or collectives. Values are personal or cultural standards that give intrinsic or extrinsic worth to subjects or objects of behavior (Groenfeldt and Schmidt 2013). Dominant values are those that are widely shared among a group, community, or culture. For 35 years, the world values survey has been trying to define and measure values across the globe. Specific to water, values vary across a scale: they have different instrumental and intrinsic meanings for Indigenous and Western societies globally (Groenfeldt 2003) and for Indigenous and non-Indigenous peoples in Canada (Groenfeldt and Schmidt 2013). Ethics are a set or system of moral principles or values that guide the actions or decisions of an individual or group (Matthews et al. 2007: 337). A water ethic, in contrast, can be defined as a “normative framework guiding actions that affect water” (Schmidt 2010: 4). Ideas, values, and ethics are deeply intertwined in water policy, as they influence policy actors both as individuals and in collective action. Extending this definition to public policy, a water ethic is a framework or “policy frame” for guiding policy decisions related to water. Leading water ethics scholars Groenfeldt and Schmidt have outlined that there are four overlapping approaches to ethics in water governance: (1) a managerial perspective; (2) an institutionalist perspective; (3) a socio-ecological systems and sustainability perspective; and (4) a values-based perspective (2013). Of these, they argue that the values-based approach is the least developed; other approaches could be enhanced “through explicit attention to underlying values.” While they do not identify key features or components of a values-based approach to water governance, they do indicate that the following are elements of this approach: • it is place-based and recognizes that different cultures have different ways of understanding water and reasoning about particular meanings of water; • there are multiple values associated with water; • how water is distributed has ethical consequences; • value dimensions multiply and are more complex in transboundary water governance; • it focuses on the underlying values of water policies; and • making our water ethic explicit is one way to reorder governance (2013: 14).

14  Ideas, Values, and Ethics: Integrating a Values-Based Approach into Water Policy…

265

Public policy and public administration scholars have for some time viewed underlying ideas and values as important in policy systems. Concepts like bounded rationality have long been associated with limitations of policymakers to consider all ideas, values, and sources of information (Simon 1957), and cognitive limitations are an important foundation of theories of incrementalism (Lindblom 1959). However, it was not until the 1990s that the ideational turn in public policy scholarship resulted in a more explicit focus on the role of ideas in public policy theory and methods (Blyth et al. 2016). Several influential works have emerged over the years, such as Kingdon’s work on the “problem stream” in the policy process (1984), Peter Hall’s book The Political Power of Economic Ideas (1989), Debora Stone’s work on “causal stories” (1989), and other related works on “epistemic communities” (Haas 1992), “advocacy coalitions” (Sabatier and Jenkins-Smith 1993), “policy monopolies” (Baumgartner and Jones 1993), “discourse coalitions” (Hajer 1993; Fischer 2003), and “narrative policy analysis” (Roe 1994). Since that time, a number of scholars have been interested in the role of ideas and values in the processes of public policymaking, implementation, and change. Scholars who focus on ideas are interested in how ideas underpin policy development and change; how policy ideas and values are the source of conflict in the policy process; and how ideas and values influence the behaviors of an increasingly diverse set of policy actors. The focus is often on dominant and competing ideas, policy narratives, and policy frames. All of these scholars are interested in the role of ideas in policy change or stasis; policy success or failure; explaining policy outcomes; or understanding how ideas embedded in public policy are reinforced through powerful interests and institutions. The scholarship building on Peter Hall’s work and policy paradigms has been particularly fruitful in terms of studying dominant ideas and how ideational change relates to policy change. As Baumgartner notes, policy “paradigms are ideas on steroids: such powerful ideas that they become unspoken. These are similar to the price of entry, where if one does not share the paradigm, one is not part of the conversation” (2014: 476). In the past decade, a growing number of scholars have tried to bring the focus on ideas to the forefront of the classic “ideas, interests, and institutions” approach in policy research. The focus on ideas, values, and ethics, however, has not been divorced from the longstanding focus on interests and institutions (Jones and Baumgartner 2005). This approach has been used by both mainstream and more critical institutionalist perspectives. The Advocacy Coalition Framework, for example, involves the transformation of core policy beliefs by the dominant policy actors (Jenkins-Smith and Sabatier 1993). More critical policy approaches, such as political economy, feminist institutionalism, and ecofeminist scholarship, clearly demonstrate how institutions and policies are embedded in socio-economic and gendered power relations that enable certain ideas and interests to dominate and even oppress others with different ideas and values. Critical policy scholars view public policy as a discursive contract with multiple meanings reflected in language and discourse (Fischer 2003).

266

C. Johns

Broadly, this approach in policy studies has been used to examine the role of ideas and values in describing and explaining public policy across a wide range of jurisdictions and domains. Blatter and Ingram brought this focus to new approaches to transboundary water governance (2001). Lowry has demonstrated how different sets of ideas, values, and ethics, when aligned with interests and institutions, can result in policy change (Lowry 2003). Johns has outlined how a human health framework dominated the ideas and discourse of the Walkerton Inquiry and had a major influence on the water policies that followed that inquiry in Ontario (Johns 2008, 2014). Others have shown how a dominant utilitarian narrative and economic values have created environmental injustices for Canada’s First Nations through forms of development, such as dams (Gaard 2001) and biodiversity (Matsui 2012) that rely on a hierarchical set of values where maximizing human well-being is accomplished through the total control of water and without regard for non-economic values. Heinmiller has demonstrated the power of economic ideas, interests, and institutions in Canadian water policy (2017). Stefanovic has illustrated how perceptions and values underpin policy, decision-making and water management at the municipal level (Stefanovic 2015). Many of these studies focus on ideas and values while at the same time including a focus on interests and institutions. This approach has gained prominence to now rival the other major variants of institutionalism in policy theory which, all to varying degrees, acknowledge the role of ideas in policy analysis (Peters 2012). Ideational institutionalism (Hay 2001) and discursive institutionalism (Schmidt 2008) are the most recent addition to these other variants of institutionalism. Vivien Schmidt (2008) clearly outlines that a new focus on the interface of ideas and institutions includes both theoretical and methodological dimensions. Like other institutional theories of public policy, this theory recognizes the importance of how ideas become embedded in, and reinforced by, institutions over time. However, it supports a more dynamic view of change in which ideas and discourse can overcome obstacles in a way that other more equilibrium focused or path-dependent focused theories posit as insurmountable. This approach “takes as a given that ideas and discourse matter, in order to focus on the more interesting set of questions, namely how, when, where and why ideas and discourse matter” (Schmidt 2008: 305). Ideas are viewed as the substantive content of discourse, and discourse is the interactive process of conveying ideas. In Schmidt’s approach, ideas exist at three levels ranging from micro to macro and are evident in programs, policies, and philosophies (2008). At the program level, policy scholars typically focus on problem definitions, policy goals, or policy solutions that contain ideas and values. At the policy level, they can take the form of frames or policy paradigms. Philosophical ideas “undergird policies and programs with organizing ideas, values and principles of knowledge and society” and “generally sit in the background as underlying assumptions that are rarely contested except in times of crises” (Schmidt 2008, 306). Schmidt argues that ideas can be categorized into two broad types: cognitive and normative. Cognitive ideas elucidate “what is and what to do,” whereas normative

14  Ideas, Values, and Ethics: Integrating a Values-Based Approach into Water Policy…

267

ideas indicate “what is good or bad” in light of “what one ought to do.” In addition, she argues, ideas come in two forms: the coordinative discourse among policy actors and the communicative discourse between political actors and the public (2008: 303). In the policy sphere, the coordinative discourse consists of the individuals and groups at the center of policy construction who are involved in the creation, elaboration, and justification of policy and programmatic ideas. The communicative discourse occurs in the political sphere. It consists of the individuals and groups involved in the presentation, deliberation, and legitimation of political ideas to the general public. (Schmidt 2008: 309–310)

Schmidt’s coordinative and communicative discourse contains the main ideas and values of policy actors operating within and between institutions. She explains that relations between the realms of coordinative and communicative may be separate or interactive. Schmidt also outlines that policy entrepreneurs may be catalysts for changes in ideas in discursive policy communities and coalitions. As others have noted, discourse is not easily separated from the interests that are expressed through it, nor from the institutional interactions that shape their expression or the cultural norms that frame them (Fischer 2003). Institutions are viewed as structuring discourse and meaning in certain directions. This is a useful way to conceptualize ideas, values, and ethics related to key policy actors and institutions involved in the policy process. In keeping with the assumptions and approach of discursive institutionalism, this chapter adapts this approach to examine water ideas, values, and ethics in water policy. As Fig. 14.1 illustrates, this allows for an examination of various layers of ideas, values, and ethics related to water policy. Figure 14.1 builds on Schmidt’s focus on ideas and discourse in discursive institutionalism. It views ideas, values, and ethics as layered and nested within each other across time and at various scales. First, the approach used here (and outlined in Fig. 14.1), is based on the assumption that different ideas, values, and ethics are nested in broader international, Indigenous, and Canadian culture. Canada is a diverse country with a diverse history, different relationships to water, and different policy paths and trajectories over time and space. As a result, there are many different water ideas, values, and ethics in water policy. This layered approach allows for analysis of international developments and context related to water values and ethics and the degree to which these developments are evident in Canadian water policy. Second, the approach is used to take a closer look at general water ideas, values, and ethics in the Canadian water policy context to attempt to tease out dominant and contested ideas, values, and ethics. Third, a few illustrative examples are used to identify and highlight the significance of the core water ideas, values, and ethics and the potential to use this approach to examine water policies at various scales across Canada. Finally, some of the alternative or competing water values and ethics frameworks that have been proposed to integrate a more values-based approach to water policy in Canada are reviewed.

268

C. Johns

Global water ideas, values, and ethics Core/ coordinative policy ideas, values and ethics Communicative policy ideas, values and ethics

General water ideas, values and ethics in Canada Fig. 14.1  Water policy ideas, values, and ethics

14.3  I deas, Water Policy Values, and Ethics on the Global Scale Across the globe, some laws and policies reflect water values and ethics based on valuing water in its natural, uninhibited, and free-flowing state, but other laws and policies clearly reflect the value that water is something to be controlled as a resource valued primarily for its human and economic uses. In John Stanmeyer’s photography, it is clear that water is revered in human cultures and religion across the globe (2010). Canadian photographer Edward Burtynsky’s book Water (Burtynsky 2013), film Watermark (Baichwal and Burtynsky 2014), and more recent film Anthropocene (Baichwal et al. 2018) outline how human values continue to result in behaviors and actions that are clearly unethical when it comes to water. Dams, agriculture, and irrigation, drilling for groundwater and exploiting aquifers, particularly in the past 100  years, are all obvious examples of water ethics challenges. At the same time, citizens around the world want to be near water, own property close to water, and have long-standing rituals and sacred relations with water. A case in point is the pilgrimage to the Ganges in India, a river that supports over 400 million people, yet is one of the most polluted in the world. There are clear conflicts in our ideas and values related to water across the globe. At the heart of these conflicts lie water policies. It is clear in the international realm that water values and ethics take different forms in different cultural groups. In Western societies, ethical restrictions tend to

14  Ideas, Values, and Ethics: Integrating a Values-Based Approach into Water Policy…

269

take the form of behavioral rules that ultimately are codified in law. In non-Western societies, they may take the form of taboos or rights that develop into customs of behavior with the social sanction of the community (Priscoli et  al. 2004). Land rights and property rights, both individual and collective, have evolved to be foundational to different water values. There is a very real concern by international policy actors that the value of water to human beings is increasing; conflict and crises are evident in both water-abundant and water-scarce regions of the world. In the past 25 years, there have been several attempts at the international level to open the global and transnational discourse about values and ethics related to water and several calls for a “new water ethic.” The 1992 Dublin Statement articulated several guiding principles for water (WMO 2018); also, UNESCO’s Ethics of Freshwater Survey (UNESCO 2000) and Best Ethical Practices in Water Use (UNESCO 2004), the International Law Association’s Berlin Rules on Water Resources in 2004 (Dellapenna 2004), and several UN resolutions contain value statements and ethical principles for water based on human rights and environmental concerns (Rossi 2015). Matthews et al. (2007) review several international developments related to the rising concerns of ethical water issues. Some are part of broader sustainability ethics; others are specifically focused on water ethics. They outline that both integrated water resource management (IWRM) and Indigenous values related to water have advanced thinking about water values and ethics; they have a common emphasis on the interconnectedness of water and other aspects of life (Matthews et  al. 2007). Rossi also shows how several key concepts, such as hydro-solidarity and IWRM, include principles, values, and ethical dimensions (2015). Internationally, there is also some recognition that a gendered element exists in water values and ethics frameworks. Women in many communities have special responsibilities related to water, yet are rarely involved in strategic and policy decisions on water resource management (Priscoli et al. 2004: 18). Many believe that there must be a just and equitable balance of the multiple uses of water, in keeping with an ecosystem approach that recognizes and embraces Indigenous water values, ethics, and knowledge. Over the past two decades, considerable efforts have been made to advance water values and ethics on the international front. In 2002, the United Nations Committee on Economic, Social and Cultural Rights adopted General Comment No. 15, stating that “the human right to water is indispensable for leading a life in human dignity. It is a prerequisite for the realization of other human rights” (UNCESCR 2002). In 2010, the UN General Assembly explicitly recognized the human right to water and sanitation through a formal resolution: it acknowledged that clean drinking water and sanitation are essential to the realization of all human rights (UN 2012). This idea was also included in the Millennium Development Goals (MDGs). Target 7C stated that by 2015, the goal was to cut in half the proportion of the global population without sustainable access to safe drinking water and basic sanitation (UN 2015). This goal has been achieved related to drinking water, but not yet for sanitation. Canada clearly meets these goals and has played a role in helping other jurisdictions meet them through international aid, development work, and water

270

C. Johns

technologies. In 2015, the United Nations developed 17 Sustainable Development Goals with 169 associated targets: Goal 6 reaffirms a global policy goal of ensuring availability and sustainable management of water and sanitation for all by 2030. Despite these important international policy developments and achievements, to date there is no universal or widely accepted or applied set of values, principles, or ethics related to water policy and decision making. The need for a Water Ethics Charter was a recommendation of the 2012 World Water Forum in Marseilles. An international Water Ethics Charter Steering Committee formed in 2013 at UNESCO drafted a Water Ethics Charter that was released in 2015. The Charter has an explicit policy purpose: The aim of this Charter is (1) to educate water policy makers, water users, and the public at large about their moral responsibilities in making choices which involve water directly or indirectly, (2) to foster an ethical attitude towards water bodies, and in so doing, (3) to improve water management and governance. (Charter Draft 2.0: 1) The Charter is a moral statement intended to inform and guide policies. It lays out general ethical principles which are intended as guidance for the development of operational policies and practices in specific contexts. (Charter Draft 2.0: 2)

The Charter has been influenced by the work of anthropologist David Groenfeldt, who in 2010 founded the Water-Culture Institute in the United States to promote the integration of values, ethics, and Indigenous and traditional cultural values into water policies. He is the current Director of the Water Ethics Network, a key organization in the International Steering Committee that consists of nine representatives from organizations across the globe working on water ethics. As stated by Groenfeldt, the Charter “will be applicable at any scale where there is a governance body with decision-making authority. It could be endorsed by an NGO, a city, a public agency, a river basin organization, business associations, corporations, etc.” (Water Culture.org 2014). A co-edited book entitled Global Water Ethics: Towards a Global Ethics Charter, published in 2017, contains cutting-edge thinking and research from several of the leading scholars on water ethics (Ziegler and Groenfeldt 2017). However, there has been no formal advancement of the draft Water Ethics Charter as of 2018, and there is no evidence that Canadian water policymakers have been involved in the Steering Committee or any of the meetings related to the development of the Water Ethics Charter. There is no similar push for a water ethics charter in Canada. It is therefore difficult to determine if these developments in the international policy context have, or will have, any significance for water policy in Canada. There is also no evidence of Canadian involvement in other similar initiatives. In 2009, the Alliance for Water Stewardship (AWS), consisting of members from business, NGOs, and the public sector across the globe, began to develop the International Water Stewardship Standard (AWS Standard), “a globally-applicable framework for major water users to understand their water use and impacts, and to work collaboratively and transparently for sustainable water management within a catchment context” (AWS 2019). The first AWS Standard was released in 2013. Version 2.0 of the AWS International Water Stewardship Standard Version 2.0 was released in March 2019 (AWS 2019). It has five stated values designed to achieve

14  Ideas, Values, and Ethics: Integrating a Values-Based Approach into Water Policy…

271

five water stewardship outcomes: (1) good water governance, (2) sustainable water balance, (3) good water quality status, and (4) healthy status of important water-­ related areas and (5) safe water, sanitation and hygiene for all (AWS 2019). The aim is to have organizations in the private and public sectors adopt the standard and commit to water stewardship planning and action. Its membership includes many multinational companies and some government sponsors (AWS 2019). To date, organizations and representatives from Canada have not been active in this initiative. In addition to these efforts, in 2015, the Organisation for Economic Co-operation and Development (OECD) Water Governance programme developed 12 water governance principles that were endorsed by OECD member countries. Three key components are at the core of these principles: effectiveness, efficiency, and engagement. However, values and ethics are not explicitly part of the principles. In 2016–17, the OECD worked on developing water governance indicators based on the principles. At the World Water Forum in March 2018, the full list of water governance indicators was publicly released in the report Water Governance at a Glance (OECD 2018). As of 2018, there have been some within-country applications of the OECD’s 36 water governance indicators at various scales, but no applications in Canada, the US, or transboundary water basins (OECD 2018). The indicators are grounded more in institutions and engagement of interests rather than being focused on ideas and values. Also, there is no indication that Canadian water policymakers have been closely involved in the water governance program or this initiative. Given these developments related to articulating and documenting water values and ethics on the global scale, it is important to reflect on how water values and ethics have evolved in Canada. It is clear that a values-based approach has been a key water policy approach in the international arena. However, it is not clear whether developments on the international stage have had an impact in Canada. This may stem in part from the lack of a values-based approach in Canada or the challenge of identifying a dominant set of ideas, values, and ethics related to water policy in Canada.

14.4  Do Canadian Water Values Exist? Theoretically, each individual, group, policy community, policy network, policy regime, or jurisdiction might have its own set of water values in democratic political systems. Public policy should reflect the concerns and values of its citizenry. Yet, as Blatter and Ingram note, even within nation-states and jurisdictions, water has multiple meanings and can be framed in policies as connected and disconnected from the natural environment (2001). In modern policies, water has territorial significance, is related to diverse identities, and has different legal, technical, economic, property, and security meanings (Blatter and Ingram 2001). This is true in Canada. It is clear that water values predate the Canadian nation-state and that there is no single, universal set of values.

272

C. Johns

As noted above, Canada is a diverse country with a diverse history, different relationships to water, and different policy paths and trajectories over time and space. Different ways of conceptualizing water, and human relations to it, have various ethical implications. One of the challenges for the policy scholar is to determine if there is a dominant set of water ideas and values in Canada and if these are reflected in water policies. The typical ideational approach in policy studies is to look for dominant and competing discourses that embody clearly differentiated sets of ideas, values, and ethics related to water and to understand how they relate to interests and institutions in the policy process. An important starting point is the question of whether Canadian water ideas, values, and ethics exist. There is some empirical scholarship on this question, but the interface between values and water policy in Canada is not well understood. Some sources broadly characterize water values, but these are not without their limitations. For example, the most recent data collected from the World Values Survey, in which Canadians participated (2006), do not provide much insight into Canadian water values. There is some indication that Canadians feel that, globally, water quality is an issue: 79.5% express that they felt that world environmental problems related to pollution of rivers and lakes are “very serious” (WVS 2006: 57). Just over one quarter (27.7%) believe that water quality in their community is “very serious,” with 51.4% indicating that water quality in their community is “not very serious” or “not serious at all” (WVS 2006: 55). Here the data is very limited. It focuses only on ideas and values related to water-quality questions. Another important data source that policy analysts could look to is the RBC Canadian Water Attitudes Survey, which has been conducted annually since 2008. Findings from the surveys of Canadians in 2017 and 2016 (RBC 2016, 2017) are summarized in Table 14.1. One of the most interesting findings from this research is that since 2008, Canadians have consistently ranked water around 12th on the list of the most important issues facing the country, with those in rural communities ranking the issue slightly higher than those in urban and suburban areas. The economy, health care, and unemployment consistently rank as the top three issues. The environment and climate change consistently rank in the top 10, with environment ranking about fifth in each of the past 10 surveys. These rankings are fairly consistent across regions, age, gender, and community size. Water is thus not seen as being as significant as other policy issues; this is reflected in election platforms at federal and provincial levels. However, when asked specific questions about natural resources, almost half of Canadians rank water as Canada’s most significant natural resource. This was double the next ranked category of oil and gas, which only 20% rank as Canada’s most significant natural resource (the exception is Alberta respondents, who ranked oil as more significant than water) (RBC 2017). The key findings from specific questions about water, summarized in Table 14.1, clearly indicate that Canadians value water and feel that governments and industrial users have certain responsibilities related to water.

14  Ideas, Values, and Ethics: Integrating a Values-Based Approach into Water Policy…

273

Table 14.1  Key findings from RBC Canadian water attitudes survey Highlights from the 2017 Survey  Almost all Canadians (93%) “strongly agree” (59%) or “somewhat agree” (34%) that access to water is a human right  45% of Canadians continue to view freshwater as Canada’s most important natural resource  More than half of Canadians “strongly agree” that water is an important part of Canada’s national identity  60% feel freshwater is very important to Canada’s national economy; another 34% say it is somewhat important  Climate change and global warming have become the top perceived threat to Canada’s freshwater supply, with one in 5 Canadians saying this in 2017 compared to one in 10 in 2008. One-quarter of respondents think climate change will have no impact  9 in 10 Canadians are “very” or “somewhat” confident about the safety and quality of the water in their homes; 3 in 10 have experienced living in an area under a boil water advisory  79% are “very” or “somewhat” concerned about water conditions on First Nations reserves  Nearly half of Canadians “strongly agree” that commercial enterprises should pay the full cost of delivering and treating the water they use (49%) and obtain licenses for groundwater use (48%), and that there is a need for stricter rules and standards to manage water use by industries and municipalities (45%)  Canadians feel they are individually making reasonable efforts (86%) to conserve freshwater  64% say they put effort into reducing both energy and water consumption equally, while 26% say they put more effort into saving energy  Of those who say they put more effort into saving water, the primary motivation is to better protect the environment (71%) Highlights from the 2016 Survey  Nearly 2/3 of Canadians swim in lakes and rivers annually; 2/3 express concern about the quality of the water they are swimming in  Swimming is the most-mentioned activity that Canadians like to do that involves water, followed by spending time on the beach and fishing  Non-governmental organizations (78%) and conservation authorities (79%) are the most trusted to provide information about water quality and safety in Canada; municipal governments: 75%; provincial government: 69%; and media: 67%  Most Canadians get their water information from municipal websites (46%) or at the water body itself (29%)  92% think that developing stricter rules and standards to manage water use by industry and municipalities is the best way Canada can better protect and manage freshwater

These values are also evident on a regional scale. Survey data collected from residents in the Great Lakes support the findings that Canadians value water, in terms of not only domestic and economic uses, but also environmental values (IJC 2016, 2018; Maack et al. 2014). In 2013, pollution or contamination was by far the most widely cited environmental concern, mentioned by 73% of residents as one of their top three concerns regarding the Great Lakes (Maack et al. 2014). This survey also found that there are only minor differences between Canadian and American residents in terms of ideas, values, and opinions related to the Great Lakes. In a 2018 survey commissioned by the International Joint Commission, 88% of over 4000 respondents felt that it is important to protect the Great Lakes (IJC 2018).

274

C. Johns

However, 24% could not identify the most significant problems facing the lakes (IJC 2018: 10). With respect to who should be responsible for protection, 39% said everyone, 23% said federal governments, and 18% said the state or provincial government (IJC 2018: 11). The survey found that 80% of respondents believed individuals or their households have an important or very important role to play in protecting the Great Lakes. Some 30% in the IJC’s 2016 poll said they didn’t know what they could do to be better stewards, yet 18% in the 2018 poll identified waste and recycling as the way they could alter their behavior to better protect the lakes (IJC 2018). This provides some interesting insights into water values, ethics, and behavior. Although respondents clearly view individuals, governments, and industry as having responsibilities for waters in the Great Lakes, there is not a lot of knowledge about how their own values and behaviors connect to the protection and state of the lakes. However, some populations seem to have particularly high levels of awareness grounded in a different set of values. The IJC’s most recent poll included interviews with 300 Indigenous people, including First Nations, Tribal and Métis respondents. Survey results show consistent and strong support for Great Lakes protection (99%) as well as high levels of awareness of the lakes and the issues affecting them. Only 8% were unable to name an issue facing the lakes, compared to the 24% average for other survey participants (IJC 2018: 4). Overall, these social surveys provide some data on water values and attitudes, but we have very little social science and policy research on how water ideas, values, and ethics relate to our everyday and policy behaviors. If the old adage is true, and actions speak louder than words in terms of reflecting water values, then we know very little about how behaviors reflect values or connect to water policies. One indicator of water values that is often cited is water use. Per capita, Canadians use the second highest amount of water; 2011 data show US residents using more (Environment Canada 2016). However, as a percentage of its total renewable freshwater resources, Canada’s water-use rate is the lowest of G8 countries, at 1% (Environment Canada 2016). This data is interesting. Although Canadians are big users of water, the country has a relative abundance of water at its disposal. However, this water-use data is connected to what many in policy discourse refer to as the “myth of abundance” that permeates water policy in Canada.

14.5  D  oes Water Policy Reflect Water Values and Ethics in Canada? Children of a culture born in a water-rich environment, we have never really learned how important water is to us. William Ashworth (1982)

Canada is a vast country, and water is part of our national identity. The prevailing view is that we are water rich. We take water for granted in our perception of the volume of both fresh and saltwater. Nevertheless, while “Canada has a relatively

14  Ideas, Values, and Ethics: Integrating a Values-Based Approach into Water Policy…

275

large supply of water per capita, it does not necessarily have a large supply per region”; “this misconception has deep implications for government decisions” (Sprague 2007: 31). It also has deep implications for water beliefs, values, and ethics, and for behaviour and water policy. The myth of water abundance leads Canadians to believe that they have a surplus of freshwater available, and this can result in policy decisions that jeopardize Canada’s water resources and environment in the future. Canadians need to think realistically about their water supply, considering local supply and the regional impacts of fresh water diversions, rather than relying on mythic volumes of water to guide their decision-making. (Program on Water Governance 2010: 2)

Although Canada has a relatively high amount of freshwater available per capita, the availability of freshwater varies dramatically by region. Similarly, there is some evidence that water values vary by region, province, community, or proximity to water. However, we know very little about how the myth of abundance affects water policy overall or in specific jurisdictions. Some have concluded that the myth of abundance is very powerful and important in Canadian water policy and has reinforced the human use and power structure that support it. “The old approach, with its theme of ‘man over nature’ is supported by a powerful myth concerning the abundance of Canada’s fresh water” (Brandes et al. 2007: 281). Others have noted this in formal policy statements: Environment minister Tom McMillan said, “Put simply, Canada is not a water-rich country. Still, we Canadians tend to be complacent about water. It is an article of faith that our country is lavishly endowed with crystaline rivers and lakes. Generations of us have been conditioned to view Canadian water as a bottomless well. But the well is neither as deep nor as full as we think” (Federal Water Policy 1987). Despite this fact, the connections between the myth of abundance and water policy are not well understood. The visual presence of water and the close proximity of most Canadians to lakes and rivers, the reality that water scarcity and shortages are not common, and the low economic value we place on water all reinforce the myth of abundance. Thus, it is difficult to use the label of myth as a widely held but false belief or idea about water, as it does not connect with individual perceptions and mental images that Canadians hold about water. This is a key challenge for policymakers. Also, there are different interpretations of what would be considered core water values in water policy in Canada. This brief review outlines that the myth of abundance is a core water idea in Canada that needs to change. Others argue that human uses, and particularly economic uses and property rights, related to water as dominant ideas and values need to change (Sproule-Jones et al. 2008). Still others argue that the fundamental value of water for human health, as opposed to ecosystem health, are the core ideas, values, and ethics that underpin current water policies (Johns 2008, 2014). There is growing recognition that Indigenous water values are an important foundation for improving water governance (McGregor 2012; AFN 2018). The reality is that many core ideas and values underpin water policy in Canada, across jurisdictions and scale. Some of them are in tension. Some of them relate to our broader values about

276

C. Johns

the environment and nature. Others are about our individual livelihoods and well-being. Canada has numerous statutes and policies related to water, but as many scholars and advocates note, we do not have a national water policy or an overarching constitutional or national policy statement related to water. This fact reflects the dominant idea that has evolved over time that water is a natural resource and that constitutionally, it remains the responsibility of the provinces. If one were to take any piece of water law or policy, or a sampling of several pieces of water policy, over time across Canada, we can see the evolution and multiple values related to water that policymakers have espoused. Several key water policies exist at the federal level – the most formal being the Canada Water Act 1970 (amended 1985) and the 1987 Federal Water Policy. Both are still viewed as foundational for the federal role in water policy, and both provide some insights into water values at a given point in time. The Canada Water Act (1985) states the objective of the legislation as “An act to provide for the management of the water resources of Canada, including research and the planning and implementation of programs relating to the conservation, development and utilization of water resources” (1985). The 1987 Federal Water Policy states: “The overall objective of the federal water policy is to encourage the use of freshwater in an efficient and equitable manner consistent with the social, economic and environmental needs of present and future generations” (1987: 5). Core water values are more explicitly stated in the Federal Water Policy: The Federal Water Policy is a statement of the federal government’s philosophy and goals for the nation’s freshwater resources, and of the proposed ways of achieving them. It recognizes that water is, at present, Canada’s most undervalued and neglected natural resource. In no part of Canada is freshwater of sufficient quality and quantity that it can continue to be overused and abused in the way it has been in recent decades. The underlying philosophy of the policy is that Canadians must start viewing water both as a key to environmental health and as a scarce commodity having real value that must be managed accordingly. (1987: 3)

As Minister Tom McMillan explains, We must manage water like any other valuable resource – with care. The object should be to use it in our own time in a way that leaves it unimpaired for our children and their children after them. Most of all, we must recognize its worth. The federal water policy in this document calls for a radically new attitude toward Canada’s water – one that attaches real value to the resource itself. The policy also recognizes the need for a more open style of decision-making in this area. (1987: Opening Statement)

The overall goals and objectives in these policies clearly indicate the values of management and human use, but also a change in values during a heightened period of awareness related to the poor water ethic that had dominated the policy landscape until the 1970s. However, on the first page of the same policy document, a change of wording and the deletion of the word “scarce” before “commodity” sends a different message: “The Need for a Policy: ‘We must now start viewing water both as a key to environmental health and as a commodity that has real value, and begin to manage it accordingly’” (FWP 1987).

14  Ideas, Values, and Ethics: Integrating a Values-Based Approach into Water Policy…

277

The two stated goals of the Federal Water Policy – to protect and enhance the quality of the water resource, and to promote the wise and efficient management and use of water (FWP 1987: 5) – also embody key values. Both goals include language related to the human use and management of water. They embody one of the fundamental value conflicts we have related to water: the values related to conservation and protection, and the values related to uses of water. The FWP goes on to reflect another important idea related to water: shared responsibility. “This objective should not be just the government’s – water so pervades our lives that all sectors of society and Canadians individually must embrace the fundamental ‘value of water’ concept” (FWP 1987). These policy statements clearly highlight the fact that policymakers have documented some fundamental values related to water in Canada and that values can and do change over time. Also, these are only two federal water policy statements. Value statements related to water are also indirectly found in other federal legislation and policies, such as the Fisheries Act, the Department of the Environment Act, the Canadian Environmental Protection Act, and the International Boundary Waters Treaty Act. As noted earlier, water values vary across time and space. In the Canadian federation, most formalized water policies are developed and implemented at the provincial level; municipalities and First Nations also have water policies that embody a different set of water ideas and values. While a large sampling of these policies is not possible for this chapter, for illustrative purposes we can briefly examine three pieces of water legislation in Ontario to identify and analyze some of the province’s core water values. Ontario has numerous pieces of legislation and policies related to water. Many of the water policies reflected the dominance of water works and human health in municipal policies that predate Confederation (Benedickson 2002, 2007) and the dominance of economic uses and private property rights up until the 1970s (Brooks 2003). Since that time, there has been a proliferation of water policies in Ontario, particularly in the post-Walkerton period. Like other provinces, Ontario has moved from having one or two comprehensive pieces of water legislation, such as the Ontario Water Resources Act in the 1950s, to more specific statutes reflecting different water policy goals and values (Nutrient Management Act 2002; Safe Drinking Water Act 2002; Clean Water Act 2006; Water Opportunities Act 2010; Great Lakes Protection Act 2015). The province also has other long-standing and important pieces of legislation related to water, such as the Conservation Authorities Act (1940, 1990), which has evolved from focusing on flood control to reflecting broader water stewardship values. For illustration, the policy goals as reflected in the purpose statements of three statutes are included in Table 14.2: This simple illustration highlights that within jurisdictions, and even within legislation, policymakers have documented conflicting water values. From this very small sample, it is also evident that some common values are both explicit and implicit. A larger sample of both formal statutes and policy documents, as well as more thorough discourse analysis of formal water policy documents, is one approach that illuminates water values in Canadian water policy as water values are reflected

278

C. Johns

Table 14.2  Comparison of water ideas, values and ethics in Ontario water legislation Legislation Ontario Water Resources Act (1990 with Amendments to 2014)

Purpose statement(s) 0.1 The purpose of this Act is to provide for the conservation, protection and management of Ontario’s waters and for their efficient and sustainable use, in order to promote Ontario’s long-term environmental, social and economic well-being

Ontario Water Opportunities Act (2010)

1. (1) The purposes of this Act are  (a) to foster innovative water, wastewater and stormwater technologies, services and practices in the private and public sectors;  (b) to create opportunities for economic development and clean-technology jobs in Ontario; and  (c) to conserve and sustain water resources for present and future generations

Ideas, values, and ethics Conservation/ protection Management Efficiency Sustainable use Well-being Innovation Technologies

Economic development

Jobs/ employment Conservation Sustainability over time Ontario Great Lakes 1. (1) The purposes of this Act are, Protect/restore Protection Act (2015)  (a) to protect and restore the ecological health of the Engagement Great Lakes-St. Lawrence River Basin; and Ecological  (b) to create opportunities for individuals and health communities to become involved in the protection and restoration of the ecological health of the Great Lakes-St. Lawrence River Basin The purposes set out in subsection (1) include the Human health following: 1. To protect human health and well-being through the Well-being protection and restoration of water quality, hydrologic functions and the ecological health of the Great Lakes-St. Lawrence River Basin, including through the elimination or reduction of harmful pollutants

in both policy documents and the discourse of policy actors identified by Schmidt and others. However, as water policy scholars have noted for some time, just because a written statute or policy document includes stated values does not mean that the policy reflects those ideas in actual implementation. Combined with the values evident from the existing social survey research above, Table  14.3 outlines some of the general attitudes that are evident in Canada and reflected in water policies.

14  Ideas, Values, and Ethics: Integrating a Values-Based Approach into Water Policy…

279

Table 14.3  Water values reflected in water policy in Canada Water is…  Generally thought to be abundant  Part of our national identity  Fundamental for human health  generally safe for drinking and human uses  Able to support multiple human uses (domestic, fishing, shipping, food, energy, recreation, spiritual, etc.)  Important to Canada’s economy  Able to be managed  A collective natural resource and common good, yet also important related to property rights, and values  The shared responsibility of individuals, industry, and government  Under stress in some areas  Influenced by climate change

14.6  A  lternative Foundations for New Ideas, Values, and Ethics in Water Policy in Canada Some argue that a new set of values must be at the heart of water policy change if Canadians are to change their behaviors and policy outcomes are to improve. Some discussion aims to shift water policy in Canada away from ideas that water is both a public and an economic resource; this long-standing view is informed by political liberalism and capitalist values (Schmidt 2012: 108) that have been in place for the past 100  years. There is growing momentum toward placing more emphasis on balancing human and ecological values. This section reviews four of the most common suggestions.

14.6.1  Hard Path – Soft Path Brandes et al. argued over 10 years ago that “a new script for water management is emerging” (2007) and that a new set of water values is shifting water policy in Canada from a hard path to a soft path. The hard path relies almost exclusively on centralized infrastructure and decision making: dams and reservoirs, pipelines and treatment plants, water departments and agencies where natural sources of water are typically shared, but the end use is not (Wolff and Gleick 2002: 1, 7). Some even argue that this hard path in water policy leads us to an impoverished environment, undemocratic decision making, and growing social, political, and economic costs (Christein-Smith et  al. 2013). While the political and cultural contexts of these reforms have varied, international water reforms reflect a greater focus on soft path water solutions. These include new concepts of water supply, expanded efforts at

280

C. Johns

improving water conservation and efficiency, smarter water pricing and economic strategies, and more participatory water management (Brooks et al. 2009). At the heart of this alternative set of water values is a shift from policies based on supply and provision to a different set of underlying values. Brandes et al. argued that infrastructure limits, safety concerns, and wild cards such as climate change are supporting a shift in the script from supply to demand management. They believe that a new soft path is required. [The] objective is to satisfy demands for services rather than to supply water per se … demand management focuses on how, whereas the soft path focuses on why use water to do this in the first place? Demand management focuses on making technological and institutional changes … soft path focuses on broader changes that conserve natural resources and alter how water efficiency calculations are made … the soft path involves more than choices about efficiency, it also involves social choices and cultural values. (Brandes et  al. 2007: 292)

Moreover, “[s]oft path analyses and strategies are explicitly normative establishing the values of sustainability and equity as social goals and promoting the changes in technology, institutional structures, and personal consumption patterns needed to achieve those goals” (Brandes et al. 2007: 293). They add, “The soft path is a long-term approach to water management and includes four key principles: treat water as a service rather than as an end in itself; ensure ecological sustainability; conserve quality as well as quantity and look ahead by looking backwards” (Brandes et  al. 2007: 293–294). The Pacific Institute, a global water think tank, states that “the soft path has a different, broader set of goals: the delivery of water-related services matched to users’ needs and resource availability. The soft path also uses centralized infrastructure … but also seeks to take advantage of the potential for decentralized facilities, efficient technologies and strives to improve the overall productivity of water use rather than seek endless sources of new supply” (Pacific Institute 2013). The Institute outlines six ways that the soft path differs from the traditional hard path. None of the six explicitly focus on new water values and ethics, although they do so implicitly. The focus, however, is still on the primacy of human use. Others define the soft path somewhat differently. Instead of viewing water as an end product, the soft path views water as the means to accomplish certain tasks. As a matter of principle, the soft path works within ecological limits and promotes local public participation to ensure sustainability of our water resources. Soft path planning looks 20–50 years into the future and proposes major changes in our water infrastructure and institutions (Chiefs of Ontario 2016). While the soft path features some different ideas and values related to water policy and management, it does not contain a set of ideas that fundamentally challenge the dominant anthropocentric policy frame that is centered on human use and economic development values. These values are also reflected in both the green infrastructure and “one-water” approaches.

14  Ideas, Values, and Ethics: Integrating a Values-Based Approach into Water Policy…

281

14.6.2  From Grey to Blue-Green and One-Water Approaches Grey infrastructure forms the backbone of water systems in many communities and cities across Canada. It consists of engineered systems for managing water and connecting residents, industries, and a wide range of users to water and wastewater systems. Traditional grey infrastructure systems take water from surface or groundwater sources, treat the water, and provide it to users through pipe and treatment facilities. Sewage, or used water, is channeled through grey infrastructure to treatment facilitates and then, in most cases, to receiving bodies such as rivers and lakes. These systems, which have been at the heart of water policies since before Confederation, underpin what Jamie Benedickson has called our “culture of flushing” (2007). In the past 20 years, the concept of green infrastructure has evolved in policy and scholarly discourse. The literature is now full of definitions. Green infrastructure includes a wide range of natural vegetative systems and green technologies that provide many environmental, economic, and social benefits (GIOC 2014). At the core of this discourse related to water is the idea that a new set of values related to water is central to making the shift from grey to green infrastructure. In Canada, this alternative frame has been propelled by incidents of flooding, urbanization, and stormwater management challenges associated with climate change. Ideas that small systems, innovative technologies, and installations that incorporate green infrastructure reflect a different set of water values are also key to promoting this view. While mainly part of the urban discourse, the values associated with this alternative policy frame espouse a different approach to water management by individuals and communities. A growing literature explores the challenges of using and implementing a green infrastructure approach. Several scholars have identified organizational culture and political culture and social values more broadly as significant barriers to this policy approach (Brown and Farrelly 2009; Lobina 2012; Dhakal and Chevalier 2016, 2017; Johns 2019). In the past few years, the “one-water” approach has also been gaining some traction in the discourse of policy actors and water practitioners related to alternative views of water, water systems, and infrastructure. It builds on IWRM approaches on the global scale, but attempts to integrate new values related to water use in the future. Similar to green infrastructure approaches, the one-water approach challenges the conventional water paradigm and the water policy and governance challenges associated with the dominant paradigm of centralized and siloed systems as well as short-term and fragmented views of water (Mukheibir et  al. 2014). The Water Research Foundation in the US has outlined that this approach requires a new blueprint for water users and the water industry by removing the barriers traditionally separating water, wastewater, stormwater, and water reuse (WRF 2017). While changing ideas and values are related to this approach, it is fundamentally anthropocentric and based on a particular view of water stewardship.

282

C. Johns

In keeping with the AWS International Water Stewardship Standards outlined above, the green infrastructure and one-water approaches generally place human use and management at the core. The main principle is that humans are stewards who hold some specific responsibilities related to water. Although there is an expectation that a shift is required from an ethic of water management to one of water stewardship, these shifts will not necessarily alter the dominant water policy and governance approach globally or in Canada.

14.6.3  Indigenous Water Ideas, Values, and Ethics In addition to the shift from a hard path to a soft path, from grey to green, or from water management systems to a one-water approach, another alternative set of values might guide water policy globally and in Canada. An emerging consensus finds that Indigenous peoples have much to offer in terms of developing a more sustainable water ethics framework that can be integrated into Canada’s water policies or the foundation of new water policies. Indigenous cultures around the globe recognize the spiritual nature and inherent value of water. Indigenous peoples have been formally advocating for incorporation of their ideas into water policy on the global stage since the Indigenous Peoples’ Kyoto Water Declaration at the World Water Forum in 2003. Although water has different meanings across various Indigenous cultures and communities, they share some fundamental values. Many are associated with spirituality and creation stories. These stories vary from nation to nation, but as a fundamental component of the Earth, water plays a central role in each of them. Women have a special relationship with water, since, like Mother Earth and water, they have life-giving powers (McGregor 2012). Fundamental water rights are at the heart of many First Nations communities and land claims, resulting in calls for a new water ethic (Phare 2009). Honoring water means honoring the fact that it is the lifeblood of the land and of Indigenous peoples and cultures (Walkem 2007: 310–311). Water teaches us that everything is cyclical. It is deeply embedded in key Indigenous worldviews, such as the seventh-generation principle: the recognition that all living things are interconnected. Water bodies need to be valued for their own sake rather than merely for what they can give to humans (Walkem 2007: 314). “Decisions relating to water must treat it with awe and reverence rather than merely one more resource to be managed, controlled, exploited and used” (Walkem 2007: 316); traditional ecological knowledge needs to become more central in water policy (McGregor 2012). Over the past 15 years, water problems have been at the forefront of the agenda for Canada’s Indigenous peoples. Awareness of the plight of First Nations people to protect and access clean water is growing. The Women’s Water Walk is a prime example. The first water walk, by Josephine Mandamin around Lake Superior in 2003, covered more than 1300 km. It has inspired an annual water walk that seeks to remind people in the Great Lakes region and across Canada of their responsibilities to water. Each walk works to raise awareness about water and to change the

14  Ideas, Values, and Ethics: Integrating a Values-Based Approach into Water Policy…

283

perception of water from that of a resource to that of a sacred entity (Women’s Water Walk website). Tragic water events such as long-standing boil water advisories, the evacuation of Kasheshewan in 2005 due to contaminated water, and the shocking reality that the majority of First Nations communities have water problems have led the UN and several environmental groups and Indigenous groups to demand action and policy change. The Chiefs of Ontario have tried to formalize these proposals in a Water Declaration. As outlined in Table  14.4, this alternative approach is based on the recognition that there are “important differences between the philosophies and worldviews that guide decision making in Indigenous and Canadian societies” (Walkem 2007: 315). Indigenous laws and culture have much to teach us about emphasizing limits to human use, limits to science and technology, and moving beyond short-sighted water policies (McGregor 2012). Indigenous peoples hold the view that water is more than a commodity or resource to be managed. Water is life. These values are not reflected in water policies generally or in those that are supposed to improve water governance for Indigenous peoples and communities in Canada. For example, the Safe Drinking Water for First Nations Act came into effect in 2013 after the deplorable state of water quality had been on the policy agenda for years. The Act was designed to enable the development of federal regulations to ensure access to safe, clean, and reliable drinking water; to better manage wastewater; and to protect sources of drinking water on First Nations lands. However, the legislation is not based on Indigenous values and knowledge. Critical policy analysts view this Act and other water-related policies as paternalistic, stemming from colonialism, and severely lacking in terms of implementation (AFN 2018). Although the federal government set a goal of ending all drinking water advisories in First Nations by 2021, this remains a significant policy challenge. The current approach does not incorporate Indigenous values at its core, and many questions remain about what reconciliation really means for water policy and governance in Canada. At the heart of these challenges are fundamental differences in values related to water and the need for a new water ethic.

14.7  T  oward New Ideas, Values, and Ethics in Water Policy in Canada Matthews et al. (2007) argue that there are some basic components of a new water ethic in Canada. They identified five imperatives from the literature that must underpin a new water ethic and added a sixth. As outlined in Table 14.5, their imperatives are action oriented and can be the motivation for decision making and action at both the individual and policy levels. They argue that a new water ethic in Canada must be “incorporated into mainstream legislation and regulation, policies, programs, and project planning decisions so that, gradually, these underlying ideas become the

284

C. Johns

Table 14.4  Excerpts from Water Declaration of First Nations in Ontario (Chiefs of Ontario 2008) Relationship to Water 4. First Nations in Ontario through the teachings of women have the responsibility to care for the land and the waters by our Creator 5. First Nations in Ontario know that we need to respect, honour, and share the spirit of the waters in the ceremonies given to us by the Creator 7. First Nations in Ontario have the laws and the protocols to ensure clean waters for all living things 9. First Nations in Ontario have knowledge, laws and our own ways to teach our children about their relationship to the waters 13. First Nations in Ontario’s fundamental water rights is a social relationship based on an expression of a power relationship between ourselves and the Creator 17. First Nations in Ontario are going to honour the spirit of the waters to begin a healing process which begins with men and women knowing their roles and responsibilities when it comes to the waters. 19. We announce and proclaim our role as the First peoples of Turtle Island – the original caretakers – with rights and responsibilities to defend and ensure the protection, availability and purity of freshwaters and oceans for the survival of the present and future generations Conditions of Our Waters 22. The First Nations in Ontario have made a preliminary survey of the waters within our territories and found that the sensitive balance of the ecosystem has been compromised by the intervention of non-indigenous people 26. First Nations in Ontario have been denied a role in the decision making which results in the contamination of this precious resource 31. First Nations in Ontario have observed that waters are increasingly being subjected to review and governed by foreign economic values that further alienate the relationship between First Nations in Ontario and our relationship to all waters Major Themes 32:8 The important role of First Nations collective knowledge systems in the protection of water sources and how our collective knowledge can complement and be superior to western science at times; the need for proper protocols to determine when and how to share this knowledge including a proposal from an elders workshop held a few months ago to establish a regional panel of elders in Ontario to provide advice to governments seeking traditional knowledge and relationship-building among First Nations communities 32: 15 First Nations have a right to fully participate in decisions rather than having an input 32: 16. First Nations are not stakeholders Right to Water and Treaties 35. When our First Nations negotiated and concluded treaties with the Crown, we were exercising our right of self-determination as nations. Our Treaties are recognized under international law and are a source of rights. As Treaty Nations, Canada has a legal obligation to engage us in a dialogue to determine their role in relation to the wellbeing of Mother Earth 41. The Crown needs to engage in a process to determine how good faith consultation is going to take place in relation to our relationship to the waters

14  Ideas, Values, and Ethics: Integrating a Values-Based Approach into Water Policy… Table 14.5  Six imperatives for a new water ethic (Matthews et al. 2007: 353).

285

Six Imperatives 1. meet basic human needs to enhance equity today and for the future 2. safeguard ecosystems by allocating sufficient water resources 3. encourage efficiency and conservation of water resources 4. establish open and participative decision-­ making processes 5. respect system complexity and emphasize precaution 6. see multiple sustainability benefits from water centred initiatives

assumed normal framework for water-related choices” (2007: 353). They cite provincial statutes such as Quebec’s Water Policy (2002) and Alberta’s Water for Life policy document (2003) as moving in this direction. However, they also note that “a new water ethic is no magic wand” (2007: 355). Others have also made this point as well: “a values approach to water governance does not resolve ethical dilemmas, but it improves our understanding of how and why ethical issues are central to the task of adapting technical and political issues to changing patterns of water governance” (Groenfeldt and Schmidt 2013: 14). Groenfeldt and Schmidt argue that several policy approaches can be used to integrate a values-based perspective into water policy and enhance “explicit attention to underlying values” (2013: 14). A values-based approach requires some faith that our beliefs may legitimately change over time, with new knowledge and evidence. One fundamental step toward such change is to make values an explicit part of policy processes and discourse. Policy scholars and policy strategists have long recognized that this kind of ideational change can be incorporated into both the communicative and coordinative realms that Schmidt argues should be the focus of policy discourse analysis. This section highlights some possible strategies to begin incorporating a more values-based orientation into water policy in Canada.

14.7.1  Principles, Guidelines, and Charters As outlined above, many organizations and coalitions around the globe are in favor of developing new principles, guidelines, charters, and standards to support legitimate water stewardship. Although there is not a lot of evidence that Canada has been at the forefront of these international efforts to develop a Water Ethics Charter, International Water Stewardship Standards, or ethical water governance indicators, Canada has not been idle on these matters. The Canadian Water Resources Association outlined Sustainability Principles for Water Management in Canada back in 1994. Other examples are the Water

286

C. Johns

Declaration work by the Chiefs of Ontario in 2008 and the statement of principles and concepts by the Assembly of First Nations related to safe drinking water policies (AFN 2018). Comparing these efforts highlights the significant value gap that underpins water policy. As noted by Matthews et al. (2007), like other charters and statements of principles, these documents target decision making by governments and other organizations based on the idea that if organizations and water practitioners adopt such principles, guidelines, and charters, moral values will permeate individual and organizational culture and behavior. Similar types of statements have been used across the public service to try and engrain policy practitioners with broadly accepted core values in the Canadian federal public service. Although the debate on the significance and impact of such charters and statements of principles is ongoing, their value is mainly seen in terms of placing ethics and values at the center of discussions about policy goals and objectives and bringing different perspectives together. For example, discussions of existing international charters and statements are a starting point for a wide range of policy actors in Canada and for outlining policy frameworks for both dominant and competing water policy approaches. Charters and statements are viewed as a way to align individual, organizational, and broader policy goals. If used as part of a broader values-­ based approach to policy development, implementation, and evaluation, they can be the source of what Groenfeldt and Schmidt call a more “explicit attention to underlying values” (2013).

14.7.2  D  eveloping and Using a Water Values Lens in Policy Analysis One of the most common ways for policy practitioners to incorporate a values-­ based approach in everyday discourse and decision making is through the use of a values lens. In Canada, the two most common examples are the use of the NAFTA lens following the adoption of the North American Free Trade Agreement and the gender-based analysis lens that the federal government formally adopted in 1999. Gender-based analysis is an analytical tool that systematically integrates a gender perspective into the development of policies, programs, and legislation, as well as into planning and decision-making processes. Both these lenses require policy practitioners to explicitly view policy from a certain perspective. They tease out underlying values that are embedded in policy processes, language, and documents. The Water-Culture Institute for water ethics in the US has recommended a similar approach. This institute is developing an Ethics-Based Decision Support Tool for guiding technology, policy, and investment decisions in the water sector. It is intended for cities, watershed, and river basins, but could be applied at any level. Through a process of interviews and facilitated workshops, water stakeholders are guided through a process to document their priority values about local water and water ecosystems. The tool orders these values into a systematic framework, which can then be incorporated into existing local water governance arrangements. (waterculture.org 2016)

14  Ideas, Values, and Ethics: Integrating a Values-Based Approach into Water Policy…

287

The tool is modeled on similar tools being used in the ethical investments realm. “Incorporating ethics principles into a formal decision tool is common in the business world, but has not yet been applied to water policy” (Ziegler and Groenfeldt 2017: 1). The development and use of such tools are based on the assumption that policies are more likely to be developed, adopted, and implemented successfully when a values-based approach is used that engages a diverse set of policy actors in dialogue. Announced at the White House Water Summit in 2016 as one of nearly 200 Commitments to Action on Building a Sustainable Water Future, the tool was piloted in three locations in the US in 2016–17, with plans to roll it out nationwide in 2018. As of 2018, there are no signs that this tool has been rolled out or what effect the Trump administration has had on this initiative. There is also no indication if this tool might have broader potential outside of the US or if it could be customized to reflect dominant or alternative water values in other jurisdictions. However, Canadian policymakers and practitioners have some experience with similar values-­ based approaches in public policy. The potential exists to develop similar tools to move toward more reflection and discussion about current water values to improve water policy outcomes and governance in the future.

14.8  Conclusions There are numerous, and often competing, ideas and values related to water globally and in Canada. Most water policies, past and present, value multiple uses of water and stewardship. However, different and often competing values underpin water policy in Canada. Public policy scholarship clearly indicates that developing and implementing a values-based approach to water policy in Canada is possible: it will be determined by a number of factors, including the interests and institutions that shape and reinforce water policies over time. Some cynics may argue that the true driving forces behind water governance and management are always economic and political powers, and that any attempt at change would not be successful (Rossi 2015: 100). A values-based perspective, on the other hand, places some faith in policy change and the central role of values in fostering that change, whether gradual or radical. Pursuing a values-based approach to water policy requires a more concerted focus on ideas, discourse, and ethics in policy analysis. A focus on water values and ethics explicitly recognizes that different governance constellations have the effect of legitimating certain normative positions while undermining others (Schmidt 2012: 61), and that interests and institutions must be part of the framework of analysis. By focusing on who participates in policy discourse, which existing ideational policy frameworks are dominant, and how marginalized alternative ideas are in the policy process, policy analysis by practitioners and scholars can become more values based. Moving toward a new water ethic requires “understanding the ethics we have” and making a concerted and intentional effort to incorporate more and stronger ethics into policies (Ziegler and Groenfeldt 2017). “Defining the ethics we

288

C. Johns

want,” “making ethics explicit,” and “comparing and debating competing ethical paradigms” are also key parts of moving toward a new water ethic (Ziegler and Groenfeldt 2017). This chapter highlights that some progress has already been made in moving toward a values-based approach at the global level and in Canada. However, this chapter and edited collection also outline some of the challenges of moving toward a more values-based approach to water policy in Canada and elsewhere. That said, moving toward such an approach is necessary if water policy is to progress and policy outcomes are to improve in the future.

References Alberta, Water for Life Strategy (2003) https://www.alberta.ca/water-for-life-strategy.aspx. Accessed 3 Apr 2020 Alliance for Water Stewardship [AWS] (2019) The AWs international water stewardship standard. http://a4ws.org/about/the-aws-standard. Accessed 12 Mar 2020 Ashworth W (1982) Nor any drop to drink. Summit Books, Orangeville Assembly of First Nations [AFN] (2018) First nations safe drinking water: preliminary concepts. http://www.afn.ca/wp-content/uploads/2018/11/First-Nations-Safe-Drinking-WaterPreliminary-Concepts-July-2018.pdf. Accessed 3 Apr 2020 Baichwal J, Burtynsky E (2014) Watermark. Madman Films. https://www.edwardburtynsky.com/ projects/films/watermark Baichwal J, de Pencier N, Burtynsky E (2018) Anthropocene: the human epoch. Mercury Films. https://www.edwardburtynsky.com/projects/films/anthropocene-the-human-epoc Baumgartner FR (2014) Ideas, paradigms and confusions. J Eur Publ Policy 21(3):475–480 Baumgartner FR, Jones BD (1993) Agendas and instability in American politics. University of Chicago Press, Chicago Benedickson J (2002) Water supply and sewage infrastructure in Ontario, 1880–1990s: legal and institutional aspects of public health and environmental history, Issue paper for the Walkerton inquiry. Ontario Ministry of the Attorney General, Toronto Benedickson J (2007) The culture of flushing: a social and legal history of sewage. UBC Press, Vancouver Blatter J, Ingram H (2001) Reflections on water: new approaches to transboundary conflicts and cooperation. MIT Press, Boston Blyth M, Helgadottir O, Kring W (2016) Ideas and historical institutionalism. In: Fioretos O, Falleti T, Sheingate A, Blyth M, Helgadottir O, Kring W (eds) The Oxford handbook of historical institutionalism. Oxford University Press, Oxford, pp 142–162 Brandes O, Brooks D, M’Gonigle M (2007) Moving water conservation to Centre stage. In: Bakker K (ed) Eau Canada: the future of Canada’s water. UBC Press, Vancouver, pp 281–300 Bromell D (2012) Evidence, values and public policy. Australian and New Zealand School of Government occasional paper. https://www.anzsog.edu.au/resource-library/research/evidencevalues-and-public-policy. Accessed 3 Apr 2020 Brooks S (2003) Water policy. In: Brooks S, Miljan L (eds) Public policy in Canada: an introduction, 4th edn. Oxford University Press, Toronto Brooks D, Brande OM, Gurman S (eds) (2009) Making the most of the water we have: the soft path approach to water management. EarthScan, London Brown RR, Farrelly MA (2009) Delivering sustainable urban water management: a review of the hurdles we face. Water Sci Technol 59(5):839–846

14  Ideas, Values, and Ethics: Integrating a Values-Based Approach into Water Policy…

289

Chiefs of Ontario (2008) Water declaration. https://www.afn.ca/uploads/files/water/08-10-00.pdf. Accessed 3 Apr 2020 Chiefs of Ontario (2016) The soft path for water in a nutshell. https://www.yumpu.com/en/document/view/48719182/the-soft-path-for-water-in-a-nutshell-chiefs-of-ontario. Accessed 3 Apr 2020 Christein-Smith J et al (2013) A twenty-first century water policy. https://pacinst.org/wp-content/ uploads/2013/02/introduction_soft_path_for_water3.pdf. Accessed 12 Mar 2020 Dellapenna J (2004) International law association’s berlin rules on water resources. Technical report. http://www.cawater-info.net/library/eng/l/berlin_rules.pdf. Accessed 12 Mar 2020 Dhakal K, Chevalier L (2016) Urban stormwater governance: the need for a paradigm shift. Environ Manag 57(5):1112–1124 Dhakal K, Chevalier L (2017) Managing urban stormwater for urban sustainability: barriers and policy solutions for green infrastructure applications. J Environ Manag 203(1):171–181 Environment Canada (1987) Federal water policy. http://publications.gc.ca/collections/collection_2014/ec/En4-247-1987-eng.pdf. Accessed 12 Mar 2020 Environment Canada (2016) Canada’s water use in a global context. https://www.canada.ca/en/ environment-climate-change/services/environmental-indicators/water-use-global-context. html. Accessed 3 Apr 2020 Fischer F (2003) Reframing public policy: discursive politics and deliberative practices. Oxford University Press, New York Freiberg A, Carson W (2010) The limits to evidence-based policy: evidence, emotion and criminal justice. Aust J Public Adm 69(2):152–164 Gaard G (2001) Women, water, energy: an ecofeminist approach. Organ Environ 14(2):157–172 Government of Canada. Canada Water Act. (R.S.C., 1985 c.C-11). https://laws-lois.justice.gc.ca/ eng/acts/c-11/index.html. Accessed 3 Apr 2020 Green Infrastructure Ontario Coalition [GIOC] (2014) Health, prosperity and sustainability: the case for green infrastructure in Ontario. https://www.ecojustice.ca/wp-content/ uploads/2014/08/Health-Prosperity-and-Sustainability_The-Case-for-Green-Infrastructure-inOntario.pdf. Accessed 3 Apr 2020 Groenfeldt D (2003) Water development and spiritual values in Western and Indigenous societies. https://www.academia.edu/1766797/Water_development_and_spiritual_values_in_Western_ and_indigenous_societies. Accessed 3 Apr 2020 Groenfeldt D, Schmidt JJ (2013) Ethics and water governance. Ecol Soc 18:1 Haas PM (1992) Introduction: epistemic communities and international policy coordination. Int Organ 46(1):1–35 Hajer MA (1993) Discourse coalitions and the institutionalization of practice: the case of acid rain in Britain. In: Fischer F, Forester J (eds) The argumentative turn in policy analysis and practice. Duke University Press, London, pp 43–76 Hall PA (1989) The political power of economic ideas: Keynesianism across nations. Princeton University Press, Princeton Hay C (2001) The ‘crisis’ of Keynesianism and the rise of neoliberalism in Britain: an ideational institutionalist approach. In: Campbell JL, Pedersen O (eds) The rise of neoliberalism and institutional analysis. Princeton University Press, Princeton, pp 193–218 Heinmiller BT (2017) The politics of water policy development in Canada. In: Renzetti S, Dupont D (eds) Water policy and governance in Canada. Springer, New York, pp 215–229 International Joint Commission (2016) 2015 binational Great Lakes Basin poll. http://ijc.org/files/ tinymce/uploaded/WQB/WQB_GreatLakesPollReport_March2016.pdf. Accessed 3 Apr 2020 International Joint Commission (2018) Second binational Great Lakes Basin poll. http://ijc.org/ files/tinymce/uploaded/WQB/WQB_Second_Poll_Report.pdf. Accessed 3 Apr 2020 Jenkins-Smith H, Sabatier P (eds) (1993) Policy change and learning: an advocacy coalition approach. Westview Press, Boulder

290

C. Johns

Johns C (2008) Non-point source water pollution institutions in Ontario before and after Walkerton. In: Sproule-Jones M, Johns C, Heinmiller T (eds) Canadian water politics: conflicts and institutions. McGill-Queen’s University Press, Montreal, pp 203–242 Johns CM (2014) The Walkerton inquiry and policy change. In: Inwood GJ, Johns CM (eds) Commissions of inquiry and policy change in Canada. University of Toronto Press, Toronto, pp 214–243 Johns CM (2019) Understanding barriers to green infrastructure policy and stormwater management in the City of Toronto: a shift from grey to green or policy layering and conversion? J Environ Plan Manag 62(8):1377–1401 Jones BD, Baumgartner FR (2005) The politics of attention. University of Chicago Press, Chicago Kingdon J (1984) Agendas, alternatives, and public policies. Little, Brown, Boston Lindblom C (1959) The science of muddling through. Public Adm Rev 19(2):79–88 Lobina E (2012) Water service governance, technological change, and paradigm shifts: a conceptual framework. Int J Water 6(3/4):155–175 Lowry W (2003) Dam politics: restoring America’s rivers. Georgetown University Press, Washington, DC Maack E, Mills S, Borick CP, Gore C, Rabe BG (2014) Environmental policy in the Great Lakes Region: current issues and public opinion. Issues Energy Environ Policy 10(April). http:// greatlakespolicyresearch.org/sites/greatlakespolicyresearch.org/files/2014closup-glprn-greatlakes.pdf. Accessed 3 Apr 2020 Matsui K (2012) Water ethics for first nations and biodiversity in Western Canada. Int Indigen Policy J 3:3 Matthews C, Gibson RB, Mitchell B (2007) Rising waves, old charts, nervous passengers: navigating toward a new water ethic. In: Bakker K (ed) Eau Canada: the future of Canada’s water. UBC Press, Vancouver, pp 335–358 McGregor D (2012) Traditional knowledge: considerations for protecting water in Ontario. Int Indigen Policy J 3:3. https://doi.org/10.18584/iipj.2012.3.3.11 Mukheibir P, Howe C, Gallet D (2014) What’s getting in the way of a ‘one water’ approach to water services planning and management? Water 41(3):67–73. https://aquadoc.typepad.com/ files/one_water_awwa.pdf. Accessed 10 Feb 2020 Organisation for Economic Co-operation and Development [OECD] (2018) Implementing the OECD principles on water governance: Indicator framework and evolving practices, OECD studies on water. OECD Publishing, Paris Pacific Institute (2013) Soft path for water. https://pacinst.org/soft-path-for-water. Accessed 3 Apr 2020 Paehlke R (2000) Environmental values and public policy. In: Kraft M (ed) Environmental policy. CQ Press, New York, pp 77–97 Peters BG (2012) Institutional theory in political science: the new institutionalism, 3rd edn. Continuum, New York Phare MS (2009) Denying the source: the crisis of first nations water rights. Rocky Mountain Books, Surrey Priscoli JD, Dooge J, Llamas R (2004) Water and ethics. https://www.internationalwaterlaw.org/ bibliography/articles/Ethics/Overview.pdf. Accessed 3 Apr 2020 Program on Water Governance (2010) Fact sheet: Canada’s myth of water governance. http:// watergovernance.sites.olt.ubc.ca/files/2010/04/FS_Myth_of_Water_Abundance.pdf. Accessed 3 Apr 2020 Quebec. Quebec Water Policy (2002) http://www.environnement.gouv.qc.ca/eau/politique/indexen.htm. Accessed 12 Mar 2020 Rawls J (1987) The idea of an overlapping consensus. Oxf J Leg Stud 7(1):1–25 Rawls J (2005) Political liberalism, Expanded edn. Columbia University Press, New York Roe E (1994) Narrative policy analysis: theory and practice. Duke University Press, Durham Rossi G (2015) Achieving ethical responsibilities in water management: a challenge. Agric Water Manag 147(1):96–102

14  Ideas, Values, and Ethics: Integrating a Values-Based Approach into Water Policy…

291

Royal Bank of Canada (RBC) Blue Water Project (2016) 2016 Canadian water attitudes study. http://www.rbc.com/community-sustainability/_assets-custom/pdf/CWAS-2016-report.pdf. Accessed 3 Apr 2020 Royal Bank of Canada (RBC) Blue Water Project (2017) 2017 Canadian water attitudes study. http://www.rbc.com/community-sustainability/_assets-custom/pdf/CWAS-2017-report.pdf. Accessed 3 Apr 2020 Sabatier PA, Jenkins-Smith HC (eds) (1993) Policy change and learning: an advocacy coalition approach. Westview Press, Boulder Schmidt VA (2008) Discursive institutionalism: the explanatory power of ideas and discourse. Annu Rev Polit Sci 11(1):303–326 Schmidt JJ (2010) Water ethics and water management. In: Brown PG, Schmidt JJ (eds) Water ethics: foundational readings for students and professionals. Island Press, Washington, DC, pp 3–15 Schmidt JJ (2012) Ethical enigmas in modern water policy: the Albertan example. PhD thesis. London, ON: University of Western Ontario, Electronic thesis and dissertation repository. https://ir.lib.uwo.ca/etd/606. Accessed 3 Apr 2020 Simon H (1957) Administrative behavior: a study of decision-making processes in administrative organization, 2nd edn. Macmillan, New York Sprague JB (2007) Great net worth: Canada’s myth of water abundance. In: Bakker K (ed) Eau Canada: the future of Canada’s water. UBC Press, Vancouver, pp 23–37 Sproule-Jones M, Johns C, Heinmiller T (eds) (2008) Canadian water politics: conflicts and institutions. McGill-Queen’s University Press, Montreal Stanmeyer J (2010) Sacred waters (photography). National Geographic (April). https://www. nationalgeographic.com/magazine/2010/04/sacred-waters. Accessed 2 Apr 2020 Stefanovic IL (2015) Ethics, sustainability and water management: a Canadian case study. In: Leal Filho W, Sümer V (eds) Sustainable water use and management: examples of new approaches and perspectives. Springer, New York, pp 3–16 Stewart J (2009) Public policy values. Palgrave Macmillan, New York Stone D (1989) Causal stories and the formation of policy agendas. Polit Sci Q 104(2):281–300 United Nations (2015) Millennium development goals: goal 7: ensure environmental sustainability. http://www.un.org/millenniumgoals/environ.shtml. Accessed 3 Apr 2020 United Nations Committee on Economic, Social and Cultural Rights [UNCESCR] (2002) General comment no. 15. https://www.escr-net.org/resources/general-comment-no-15-right-water. Accessed 12 Mar 2020 United Nations Educational, Scientific and Cultural Organization (UNESCO) (2000) The ethics of freshwater use: a survey, Report of COMEST. UNESCO, Paris. https://unesdoc.unesco.org/ ark:/48223/pf0000122049. Accessed 3 Apr 2020 United Nations Educational, Scientific and Cultural Organization (UNESCO) (2004) Best ethical practice in water use, Report of COMEST.  UNESCO, Paris. http://unesdoc.unesco.org/ images/0013/001344/134430e.pdf. Accessed 12 Mar 2020 United Nations Educational, Scientific and Cultural Organization (UNESCO) (2015) Water ethics charter (draft). http://waterethics.org/the-water-ethics-charter. Accessed 3 Apr 2020 Walkem A (2007) The land is dry: indigenous peoples, water and environmental law. In: Bakker K (ed) Eau Canada: the future of Canada’s water. UBC Press, Vancouver, pp 303–320 Water Research Foundation [WRF] (2017) Blueprint for one water. https://www.waterrf.org/ research/projects/blueprint-one-water. Accessed 3 Apr 2020 Waterculture.org (2014) Water ethics charter working document: background and context. http:// www.waterculture.org/uploads/WEC_General_presentation_March_2014-1.pdf. Accessed 12 June 2016 Waterculture.org (2016) The water ethics charter. https://waterethics.org/the-water-ethics-charter. Accessed 3 Apr 2020 Wolff G, Gleick PH (2002) The soft path for water. https://pacinst.org/wp-content/uploads/2013/02/ worlds_water_2002_chapter13.pdf. Accessed 12 Mar 2020

292

C. Johns

Women’s Water Walk website. www.motherearthwaterwalk.com World Meteorological Organization [WMO] (2018) The Dublin statement on water and sustainable development [original text]. http://www.wmo.int/pages/prog/hwrp/documents/english/ icwedece.html. Accessed 12 Mar 2020 World Values Survey [WVS] (2006) Wave 5 (2005–2009) results: Canada. http://www.worldvaluessurvey.org/WVSDocumentationWV5.jsp. Accessed 3 Apr 2020 Ziegler R, Groenfeldt D (2017) Global water ethics: towards a global ethics charter. Routledge, New York

Chapter 15

Streams of Consciousness: New Demands on Philosophy and Water Policy in a Crowded World Deborah Harford

Abstract  The challenge for today’s philosophers is to articulate a new set of values based on our existence as a global people. Philosophical approaches that emphasize the worldwide interconnectedness of our actions are urgently needed if we are to work together effectively enough to support the survival of the human race as well as other species. Given the environmental impacts of globalized consumerism, and policy’s dependence on the changeable nature of government leadership, we must look beyond governance mechanisms to the philosophical underpinnings of Western society, its influence on decision making, and how changes in our perceptions of what we take for granted as normal could be shifted. An example of this process is grounded throughout this chapter in the story of the restoration of Still Creek, an urban stream in the city of Vancouver, British Columbia, Canada. Using a narrative structure, the story emerges at key intervals, reflecting both the meandering of the stream and actions embodied in the process of its rejuvenation that illustrate solutions to the issues being identified. Keywords  Water · Philosophy · Ethics · Rivers · Ecosystem health · Climate change · Consumerism · Indigenous · Worldviews · Deep frames

In 2012, a small miracle occurred. For the first time in 80  years, salmon spawned in the heart of Vancouver, Canada’s biggest west coast city. Ten years earlier, their spawning ground, Still Creek, was one of Canada’s most polluted waterways, full of rusting bicycles and trash. Hemmed in by concrete walls as part of the storm sewer system and contaminated by faulty plumbing connections as well as human detritus, its sorry state reflected both the polluted, diminished condition of many of Earth’s water bodies today and a dis-

D. Harford (*) Faculty of Environment, Simon Fraser University, Vancouver, BC, Canada e-mail: [email protected] © Springer Nature Switzerland AG 2021 I. L. Stefanovic, Z. Adeel (eds.), Ethical Water Stewardship, Water Security in a New World, https://doi.org/10.1007/978-3-030-49540-4_15

293

294

D. Harford

dain for ecosystem health embodied in city development worldwide during the great urbanization explosion of the twentieth century. Still Creek is one of only two streams that still flow in the city: its death and successful revitalization are an illustration of what can be possible when philosophy and policy come together to benefit both humans and ecosystems – a small story with large implications that offers inspiration given the challenges we currently face. (See Figs. 15.1, 15.2, 15.3, and 15.4.)

15.1  Setting the Scene Rivers and their tributaries are the arteries of the planetary body, giving life to ecosystems and their dependent species wherever they flow. According to Colombia’s Indigenous Kogi tribe, the planet’s health depends on that of the rivers (Reddy 2013). What happens in estuaries affects the source, they say – drain or pollute the lower reaches, and the sources will die. Indigenous peoples the world over agree, and so does science: healthy watersheds play a crucial role in everything from Fig. 15.1  Heron fishing in Still Creek (image courtesy of Still Moon Arts Society)

15  Streams of Consciousness: New Demands on Philosophy and Water Policy…

295

Fig. 15.2  Still Creek and Renfrew Ravine aerial photo (image courtesy of Google Maps)

Fig. 15.3  Map showing location of Still Creek and the boundary between the cities of Vancouver and Burnaby, BC

agriculture to energy, to the health of both humans and aquatic and territorial biodiversity. River basins help regulate climate and weather patterns; their presence underpins plant life and vegetation cover and supports the formation and maintenance of soil, which absorbs and stores impressive amounts of carbon and excess moisture, as well as bolstering against drought. In a warming world, it is more important than ever to plan for and implement policies and planning that promote sustainable watershed governance.

296

D. Harford

Fig. 15.4  Map of Canada showing Vancouver (image courtesy of wordtravels.com)

The Kogis’ alarm about the deleterious effects of human behavior in this regard has escalated in recent years, and with good reason. The human population currently stands at an unprecedented seven and a half billion and growing; projections estimate that our number will reach nine and a half billion by 2050 (United Nations 2015), and a staggering 11 billion by 2100. Resource extraction, habitat loss, and emissions of pollutants affecting rivers, lakes, and oceans around the globe have tracked this increase in human numbers in an unprecedented confluence of impacts known as the Great Acceleration (IGBP 2015). This expansion and its increasingly grimy footprint are reflected in the alarmingly rapid extinction of species, which are dying out 114 times faster than the background average. This devastation threatens Homo sapiens as well, partly because we too are susceptible to the conditions that are wiping out species, and partly because the ecosystems on which we rely depend on species diversity for health. We now face another acceleration – that of global warming. This is known as “climate change” because although the root problem is a gradual warming of the biosphere, some of its effects manifest as weather and precipitation extremes that may include huge snow events or ice storms, for instance, in the cold years we have left. Investment in disinformation by the fossil fuel lobby and lack of public

15  Streams of Consciousness: New Demands on Philosophy and Water Policy…

297

understanding have in some cases led to such events being touted as evidence against global “warming.” Confusion over the difference between year-over-year local weather events and climate trends, augmented by the billions of dollars that have been invested in the obfuscation of climate science, led to a shift in terminology designed to assist communication of the issues. John Holdren, President Obama’s science advisor, coined the term “global climate disruption” in an effort to reflect warming’s disturbance effect on the atmosphere and the fact that extreme heat may not be the most immediately tangible impact (Fox News 2010), but “climate change” is the term that stuck. Climate change, then, is being forcefully driven by greenhouse gases in the atmosphere that are rapidly accumulating due to human activity. It has measurably begun and is advancing at an alarming rate. Due to inertia in the system and the longevity of carbon dioxide in the atmosphere, warming is locked in, likely for centuries. How much the earth will warm, and how fast, is still within some measure of human control; however, we are likely committed to at least two degrees above the average temperature in which human life evolved. This shift is happening too quickly for species, including us, to adapt adequately, and water is the medium in which the majority of the changes are most evident. In the words of Jim Bruce, the eminent Canadian hydrologist and co-founder of the IPCC, “If climate change is a shark, then water is its teeth” (2011). Those teeth are already leaving their mark. Aquatic species that evolved in a predictable range of temperatures are struggling to survive as these temperatures spike to higher levels. The warming atmosphere holds more moisture, which, combined with disrupted weather patterns, is driving hydrologic extremes from extended drought to catastrophic floods. These changes are accompanied by a relentless reduction in confidence for crop success, energy production, supply chains, and human security, and an increase in natural disasters of magnitudes so far outside the historical range upon which we have built our engineering standards and social expectations that we have trouble preparing for them because we can’t imagine them (Milly et al. 2008). (See Figs. 15.5, 15.6, and 15.7.) This shift is known as the “loss of stationarity.” It has such eye-popping implications for life on earth that some go so far as to predict that it may presage near-term human extinction (Snow and Hannan 2014). Yet despite widespread knowledge of these issues, and clarion calls of alarm from environmentalists and Indigenous peoples such as the Kogis stretching back for decades, we have largely failed to respond. This is partly due to the aforementioned disinformation campaigns by industry giants that stand to lose profits, and partly due to the scale of the issues, but the unwillingness to change cannot be solely attributed to these influences. The fact is that we resist because the adjustments required clash with our conditioned beliefs about what constitutes human success.

298

D. Harford

Well-Equipped

Vulnerable

Japan

China Climate risk to supply chain

High

Fig. 15.5  Calgary, Canada climate change impacts example (image courtesy of Canadian Geoscience Education Network)

United States

Italy

India United Kingdom

Germany Canada

Brazil

Sustainable Supplier sustainability response

Low

France

Inactive Low

Spain

High

Fig. 15.6  Supply chain vulnerability to climate change (image courtesy of Carbon Disclosure Project (CDP))

15  Streams of Consciousness: New Demands on Philosophy and Water Policy…

299

Fig. 15.7  Multiple impacts of global warming and climate disruption on agriculture (accessed February 27, 2020 at http://ebooks.dynamic-learning.co.uk/prod_content/extracted_ books/9781471859083-1.20.1/OEBPS/c10-1.htm)

15.2  T  he Underpinnings of the Climate Change– Philosophy Nexus In his 1974 book Frame Analysis: An Essay on the Organization of Experience, sociologist Erving Goffman notes that “common sense” is merely an act or notion that resonates with one of our “deep frames.” George Lakoff (2006) further defined this term as the expectations and assumptions instilled in us by our cultural upbringing and surroundings – ideas and beliefs that are so much a part of us that we are unaware of them. According to Lakoff, deep frames are “the mental structures that allow human beings to understand reality – and sometimes to create what we take to be reality. But frames … have an enormous bearing on politics … they structure our ideas and concepts, they shape the way we reason.” The most influential members of the global population – Western capitalist consumers  – have emerged with a core belief that wealth is a side effect of correct behavior, and that demonstration of social status through possessions made visible to others (Veblen 1899) is a central way to communicate and experience success. This is not an accident. With the onset of the Industrial Revolution and the new capacity for mass manufacturing delivered by a combination of cheap fossil fuel, scientific ingenuity, and automation, a focused effort was made in the early twentieth century to discover ways to sell people goods they do not really need. Captains

300

D. Harford

of industry hired psychologists to advise them. The answer came back: “Undermine their confidence,” and the advertising industry was born (Ewen 1976). As a result, both social status and personal happiness have become increasingly pinned to the ownership of, or potential to own, things; we have been trained to think so. “The part which advertising plays in the modern life of production and trade … is that of education … it makes new thoughts, new desires and new actions” (Presbrey 1929). It’s not all bad, of course. The advent of mass production is a leveler that has made items available to the poor that had previously only been available to the rich – and new luxuries available to all – including advanced health care, plentiful food and clean water, toys and clothes, transportation, communication methods, education, and entertainment. The internal, personal shifts required for us to challenge this paradigm echo the concept of the loss of climate stationarity. As with the extremes of climate change, we must face the challenge of redefining our expectations of the human experience to ones more appropriate to equity, the survival of other species, and the limits of the planetary system. The vast majority of emissions, and of land and water degradation, is traceable to the behavior and choices of Western consumers and those who are selling them products. We can – indeed we must – conclude that a new philosophy of life, one rooted in our emerging situation as a human population of many billions, is essential for us to begin disrupting these deep frames. The challenge for today’s philosophers is to articulate a new set of values based on our existence as an unprecedented number of people living together on a blue-­ green globe that has no equal for billions of light years in every direction. Philosophical approaches that emphasize earlier conclusions about the global interconnectedness of our actions, and articulate new ideas that speak directly to our current reality, are urgently needed if we are to wake people up in time for them to act effectively in favor of our own survival and that of the other species with which we share the planet. Policy has the potential to effect enormous benefits in this regard, through measures such guidelines, codes and standards, environmental assessments, and pricing mechanisms. But given the challenge outlined above, and policy’s dependence on the changeable nature of government leadership, we must look beyond policy to the philosophical underpinnings of Western society, its influence on decision making, and how changes in our perceptions of what we take for granted as normal could be shifted. The role of philosophy in influencing policy is manifold, yet slippery to define: philosophy resides in the minds of individuals and informs their choices as well as entire cultural frameworks. Philosophy has the potential to serve a disruptive or correcting function. One of its roles is to dispel illogical thinking and misconceptions: it is a place in which visionary thinkers can create new ways of thinking outside the dominant paradigm about old problems and has often been the locus of the human conscience, a crucible for moral reasoning. One thing philosophy does not do well, however, is translate directly into policy; it must be simplified, codified, and translated into practical, applicable terms if it is to be useful to policymakers. Philosopher and policymaker Jonathan Wolff, in his book Ethics and Public Policy: A Philosophical Inquiry (2011), suggests that this is because philosophy, in its essence,

15  Streams of Consciousness: New Demands on Philosophy and Water Policy…

301

deals in large-scale concepts and the ingredients for radical change, while policy tends to be predicated on details and incremental change that reflect the overall status quo. It is hard for leaders elected for short terms, in need of ribbon-cutting opportunities and other visible measures of electorate benefits, to introduce reforms that directly counter vested corporate interests that strive through donations and lobbying to influence government directions. The views of the majority of voters are largely focused on short-term economic benefits due to our deep frame conditioning that positions material affluence as the pinnacle of human aspiration. The situation is even more challenging because effective action to reduce and build resilience to climate change is designed to achieve benefits that will principally be enjoyed by future generations in the form of reduced levels of extreme weather damage due to lower levels of emissions heating the atmosphere. Carbon dioxide and other greenhouse gases are largely invisible, so there is no great visual achievement to which to point. Our economies are based on plentiful supplies of cheap fossil fuels. Even though there are new renewable technologies emerging, and with them job opportunities and other economic benefits, most industries are centered on those supplies, and familiarity is a compelling force. In a nutshell, change is hard; most humans don’t choose to make dramatic changes unless something painful or dangerous pushes them in a new direction. While the extreme weather events, crop failures, and water shortages projected to occur with climate change may prove effective in this regard, we cannot wait until the worst is occurring. By then, it will be too late. Carbon dioxide stays in the atmosphere for hundreds of years. If we want to consciously slow down our risk of creating a world that is uninhabitable, we have to decide ahead of time. This means changing minds through building a sense of morality in terms of our responsibilities to both the earth and future generations, and through illustrating scenarios that reveal the dangers we face in advance and thus galvanize change. We do this on a daily basis with our children. We inform them about future challenges and instill in them a sense of right and wrong and the consequences of poor choices. But adults take less kindly to such instruction. Where environmental philosophy may have the most traction in influencing policy, therefore, is in informing the worldview of the decision makers themselves and of individuals who may effectively push for change  – either through policy shifts that translate philosophical conclusions into practical actions, or via pressure on leaders from voters who wish to support a particular direction. In 2002, the City of Vancouver developed a plan to rehabilitate Still Creek. In the highly urbanized watershed containing over 100,000 residents, channelization and pollution had reduced its open portions to little more than an open sewer. Partly mobilized by champions such as Canadian conservationist Mark Angelo, whose philosophy states that “we should never give up on any river” (Angelo 2012), the enterprise involved many organizations, experts, and

302

D. Harford

champions, including planners, flood consultants, academics, First Nations, and local groups, with a strong focus on public art and community events. Establishment of partnerships contributed to coordinated decision making and municipal prioritization of ecosystem health. Innovative financing mechanisms helped fund the project, and community engagement helped to incorporate local knowledge and raise awareness (Boyle and Nichol 2017). Still Creek began to come back to life.

15.3  The Consequences of Ignoring Ethical Conundrums The impacts of consumerism and population growth on water worldwide include pollution from industries such as mining, oil and gas, and agriculture. Fertilizer runoff is causing freshwater algal blooms, which, in a vicious circle exacerbated by and contributing to global warming, are creating a massive increase in eutrophication. More heat leads to more algal growth. The increase in intense precipitation driven by climate change leads to more runoff, resulting in lakes that are oxygen deprived, covered in thick green algae mats, and increasingly deadly for their native fish. This process is also creating “death zones” in oceans, including the Gulf of Mexico, the Caspian Sea, the Bering Sea, and the Arabian Sea. Shortsighted governance approaches add insult to these injuries, with negative effects not just on ecosystems, but also on people. We celebrate the end of slavery and the disappearance of the servant class in the Western world, but the fact is that via globalization, we have displaced servitude onto the citizens of developing countries, where Western consumer goods are mined and manufactured by people often working in inhumane conditions for a pittance. Billions in overseas aid from affluent Western countries designed to help poorer countries advance has largely failed to offset these issues. This is due partly to mismatches between the cultures giving and receiving the funds, and partly to the fact that the actions of corporations exploiting resources in poorer countries are not bound by conditions designed to reinforce the beneficial effects of aid spending. In fact, “the net effect of aid looks likely to be a strengthening of the status quo and thus of the forces which keep poor people poor” (Vernon 2009). Now, the benefits to affluent Westerners are emerging as not only unfair, but also short-term, with disastrous consequences for those in the very countries being exploited to provide the materials we use. One of the cruelest ironies of climate change is that its effects are and will be worse in the global South than in North America and Europe – the home of the highest per capita emitters in the world and, not coincidentally, the drivers of global consumerism. Even ostensibly environmentally friendly consumer choices are affecting ecosystems in deeply disturbing ways. Take the so-called clean, green option of hydropower. Despite well-researched conclusions that smaller, more adaptable energy infrastructure is more beneficial in terms of both costs and the environment, large dams are being constructed at a feverish pace worldwide in the service of electricity

15  Streams of Consciousness: New Demands on Philosophy and Water Policy…

303

production for industry and large urban centers (Ansar et al. 2014). These mega-­ projects regularly run far over their construction and operating budgets; cause significant emissions via methane released by rotting vegetation; inundate agricultural land that will be increasingly essential as climate change disrupts global food supplies; and destroy habitat. They very often also displace Indigenous peoples, submerging what is left of their traditional lands and removing all vestiges of their culture. The worldwide fight to stop such destructive approaches is turning increasingly deadly. Killings of environmental activists rose 20% between 2014 and 2015, according to campaign group Global Witness (2015), which recorded 116 deaths worldwide. These figures include a spike in deaths related to hydropower programs. A total of 14 people died defending lands and rivers against dam projects. Indigenous Honduran activists Berta Caceres and Lesbia Yaneth Urquia were murdered within 4 months of each other in 2016 for their parts in a campaign against a major corporate hydropower development, sanctioned by the national government, which will destroy their homeland. Given the widespread need for power, for instance in subSaharan Africa, it therefore would make more sense from all perspectives – budgetary, humanitarian, and sustainability  – to consider small-scale widely distributed renewable projects instead. The untimely disappearance of Bolivia’s Lake Poopo further illustrates the combined impacts of accelerated warming and consumer choices. Diminished by major upstream diversions in response to exploding Western demand for the widely marketed health benefits of quinoa while its levels were simultaneously rapidly reduced by high temperatures, the lake dried up and has disappeared along with its fish, turtles, and plants. The Uru-Murato tribe, which existed in harmony with the lake’s cycles for centuries, has been displaced along with the lake’s birds, on which they relied for traditional medicine and other cultural essentials. Uprooted from a life that stretches back unbroken in their memories and folklore, they have gone to work in salt mines in an alien environment that is both humiliating and grueling. The Uru-­ Murato’s deep frames say that their people fish, that they live on the water. Now that the water is gone, their culture has evaporated as well. Such existential impacts on Indigenous cultures, which shake the foundations of their very concepts of existence, now loom large for communities around the globe. (See Figs.  15.8, 15.9, and 15.10.) Perhaps the most visceral example of the physical impacts threatened by climate change is the plight of the inhabitants of small island states, who face the disappearance of their homes beneath the waves due to sea-level rise as global warming exceeds 1.5 degrees (AOSIS 2015). The cry of AOSIS (Association of Small Island States) of “1.5 to stay alive” at the 2015 Paris Conference of the Parties on climate change attempted to convince the global community of the urgency of reducing the rate of warming. But the likelihood even of staying below a two-degree increase is a fast-vanishing hope. We have already warmed by over one degree on average globally. Even if all countries adhere to their voluntary emissions reduction commitments, they are projected to drive global temperatures up beyond a three-degree

304

D. Harford

Fig. 15.8  Lake Poopo now (David Mercado/Reuters)

Fig. 15.9  Location of Lake Poopo (accessed on February 27, 2020 at http://www.maphill.com/ bolivia/oruro/lago-poopo/location-maps/savanna-style-map/)

15  Streams of Consciousness: New Demands on Philosophy and Water Policy…

305

Fig. 15.10  This photo combo of satellite images provided by the USGS shows Lake Poopo filled with water on Oct 11, 1986, left, and almost dry on Jan. 16, 2016, right (USGS via AP)

increase. The need to influence both individual consumers and decision makers who implement policy on an ethical level is increasingly urgent. (See Fig. 15.11). How we make sense of issues, and how we communicate them, are equally crucial. According to the Kogis, Westerners are not good at listening; we are much more focused on teaching. We have learned to control the world through language and insistence on the power of our own logic over that of other worldviews. If we are to change, we need encouragement to absorb the wisdom of other cultures and to consider carefully the most effective ways to communicate what we need to change. Language and messaging can make or break the likelihood that people and policymakers will act on key information. While those working on climate change and environmental issues have made some progress, we have not been successful enough, due to a combination of the complexity and magnitude of the challenges, apathy, and confusion produced by disinformation campaigns paid for by those who refuse to accept the scientific evidence on climate change. In the words of Australian National University researcher Elizabeth Boulton, “Global warming exceeds modern humans’ cognitive and sensory abilities. To overcome this impasse, climate communication needs to engage people at a philosophical, sensory and feeling level” (2016).

Man-made environmental catastrophes

Extreme weather events

Food crisis

Failure of climate change mitigation and adaptation

Water crisis

State collapse or crisis

Profound social instability

Mismanaged urbanization

Large-scale involuantary migration

Poverty

Interstate conflict

Unemployment or underemployment

Failure of national governance

Fig. 15.11  Interconnections of climate change and migration, adapted from Global Risks Interconnections Map 2016 of the WEF Global Risk Report 2016. Green: Environmental Risks; red: Societal Risks, orange: Geopolitical Risks, blue: Economic Risks

Biodiversity loss and ecosystem

Natural catastrophes

Spread of infectious diseases

306 D. Harford

15  Streams of Consciousness: New Demands on Philosophy and Water Policy…

307

In a stroke of lucky timing, performance artist Carmen Rosen moved into the Still Creek neighborhood of East Vancouver in 2000, just before the City embarked on its restoration odyssey. Dismayed by the state of the creek, Rosen formed a non-profit organization called the Still Moon Arts Society to raise awareness of the creek and rejuvenate interest in its well-being. Rosen’s efforts have included poetry walks, river goddess ceremonies, public art projects, youth outings in collaboration with local schools, and the inauguration of a fall festival held in the adjacent park, timed to coincide with the full moon. The Renfrew Ravine Moon Festival acknowledges the wide variety of cultural backgrounds of local residents and features young musicians as well as public art and dance performance; now in its 15th year, it attracts over 5000 people. These community events supported and expanded the City’s restoration efforts, inspired East Vancouver residents of all ages, and helped them build a living awareness of, and relationship with, Still Creek.

Concerted action at a variety of scales and in many languages, including those of the arts, and especially that of environmental ethics, are required in the context of water if we are to effect change on a wide enough scale to transform human behavior. The capacity to shape ideas and communicate them to global audiences has undergone its own Great Acceleration due to the exponential development of digital communications technologies that now connect millions. The building blocks for such ideas already exist: in Indigenous worldviews, in the conclusions from research on climate change adaptation and mitigation, in planning approaches such as integrated water resource management, and in the new UN Sustainable Development Goals (SDGs). Developed by a working group of 70 countries between 2012 and 2015, the SDGs replace the Millennium Development Goals but go much further: they address the root causes of issues such as poverty, look at means as well as ends, and are intended to be universal rather than applied only to the developing world. Through the SDGs, UN member states have committed to addressing global challenges via 17 key areas, including poverty, food supply, energy, the oceans, and water, an ambitious agenda that outlines the potential for transformative planning at all levels of global society. Of the 17 goals, the measures related to water may be the most crucial. According to Peter McCornick, Deputy Director General of the International Water Management Institute, “Water use has been growing at more than twice the rate of population increase in the last century … water appears explicitly as a recurring theme in many of the 17 SDGs, and the proposed ‘targets’ that serve as guideposts toward their achievement” (McCornick 2015). This is especially important given that population growth is largely occurring in poorer areas that will be particularly vulnerable to extreme heat, drought, and resultant crop failures, suggesting that water stresses will contribute to more instances of the destabilization due to drought that helped fuel the Syrian refugee crisis. Education can help reduce

308

D. Harford

population growth: as countries acquire modern agriculture, sanitation, and medicine, childbirth rates fall. However, it takes at least a generation for people to adjust; population booms before it decreases. In China and Brazil, the fall happened within three or four decades, but the trend is slower in sub-Saharan Africa. Nigeria’s population, already Africa’s largest, will more than quintuple by 2100 to over 900 million (Kunzig 2014). However, as populations gain modern technologies, they also absorb the global communications network, which is effectively a giant advertisement for the Western lifestyle. The capitalist society that is now the dominant global ideology places every consumer at the center of opaque webs of influence that reverberate out from every dollar spent. It’s a fair bet that the environmentalists who make up a significant proportion of the citizens of Still Creek’s home, Vancouver – branded by its sincere pioneering city council as the “greenest city in the world by 2020” – are almost all the proud owners of at least one computer and cell phone, and possibly more than one of each. This ownership contributes to poisonous impacts on water bodies in China, where the rare earths that are essential components of electronics are mined. It also fuels the impending extinction of gorillas in the Democratic Republic of Congo at the hands of slaves hungry for bushmeat while they mine a rare earth central to the production of electronics – coltan – at gunpoint. The jeans, coffee, shampoo, quinoa, electronics, and cake mix that Vancouverites consume could be graphed as an extraordinary starburst of effects on water and ecosystems around the world, including Lake Poopo. Extrapolate this staggering reach and unknowing damage by otherwise well-­ meaning consumers based in much larger cities such as Los Angeles, London, or Tokyo, and the cumulative choices being made by seven and a half billion people and their impacts on the biosphere emerge as a crisis that is moving faster, with a wider spread of impacts, than we can easily understand. There is no part of the planet now that has not been affected by humans. Despite good intentions on the part of many in terms of emissions reduction, consumer society shows no signs of slowing down. For the first time in our planet’s history, a single species has altered the climate. As some have said, and which we must keep repeating until we understand and act on it decisively, “We are the asteroid.” Unlike space rocks, we have a choice – if not to prevent all the impacts of our existence, at least to reduce the worst of them. Given our cumulative reach and impact, our decision now must literally be whether we wish to perpetuate our own existence. We must wrestle with the moral implications of our responses to that question in terms of our impacts on each other and on other species, not to mention our miraculous blue-green planet as a whole. According to James Lovelock, in his hypothesis that spans science, philosophy, and metaphysics, our planet is a self-­ regulating organism that he named Gaia, which balances its atmosphere and creates conditions for life autonomously (Lovelock 2007). Colombia’s Kogi agree. Their spiritual leaders, or Mamas, are selected at birth and raised in darkness for the first 9 years of their lives, living in caves and exploring only at night, to attune them to natural processes (Mejia n.d.). The Kogi Mamas say the planet is self-aware and alive – they call it Aluna – and that the point of human

15  Streams of Consciousness: New Demands on Philosophy and Water Policy…

309

existence is to communicate with it. Lovelock seems to acknowledge this concept and the importance of our waking up to it: Perhaps the saddest thing is that if we fail Gaia will lose as much or more than we do. Not only will wildlife and whole ecosystems go extinct but in human civilization the planet has a precious resource. We are not merely a disease; we are through our intelligence and communication the planetary equivalent of a nervous system. We should be the heart and mind of the Earth, not its malady. (Lovelock 2007)

The capitalist consumer ethos now causing such disruption positioned the natural world as a mere source of resources; places “discovered” by the white man were expropriated for these resources, while the needs and interests of their Indigenous peoples were trampled underfoot. This brutal process has been described in many literary works, from Conrad’s Heart of Darkness to Hawthorne’s short story “Main-­ Street” to oral histories such as Black Elk Speaks, in which an Oglala-Lakota medicine man shares his life story with a white historian, John G. Neihardt. While the latter is a white man’s representation and translation of an Indigenous holy man’s words, the text remains an important account of colonization. Black Elk’s account of the Lakota life before and after the white people’s arrival is suffocating in its horror. The Lakota had no interest in the yellow metal scattered around on their land, as it served no purpose in a world full of food and plenty. They were amused, at first, by the crazy-making effect of this yellow metal on the white newcomers, who proceeded to do what we are still doing at an ever faster rate to the planet – split up the land into property parcels; murder and subdue the free peoples who were living there in harmony with nature; kill the abundant wildlife, often for fun; and dig up the yellow metal to take it back to their part of the world, where it gilded Queen Victoria’s carriage and lined the pockets of investors – the point of the whole exercise both then and now. In Black Elk’s words, as reported by Neihardt, “When I look back now from this high hill of my old age, I can still see the butchered women and children lying heaped and scattered all along the crooked gulch as plain as when I saw them with eyes still young. And I can see that something else died there in the bloody mud and was buried in the blizzard. A people’s dream died there. It was a beautiful dream” (Black Elk 1961). As Ta-Nehisi Coates comments in Between the World and Me, his life-­changingly frank account of growing up black in the US, the formation of America was also built on a dream: the philosophy of “life, liberty and happiness” – for those who have access to it. Along with capitalism, this philosophy has formed the deep frames of those who have grown up in North America, and it has infected thinking around the world. According to Coates, technology has freed the proponents of this philosophy “to plunder not just the bodies of humans but the body of the Earth itself” (Coates 2015: 150). The power of the multinational corporations driving much of the current wave of damage is rapidly expanding via legally binding international trade agreements that supersede national-level environmental policies and the voluntary emissions-­ reduction commitments made by parties to the Paris Agreement. Deep ecologist

310

D. Harford

Aldo Leopold compared the beauty and intricacy of our ecosystems to exquisite architecture, and our insensitive treatment of them as akin to remodeling it “with a steam-shovel” (Leopold 1949). The need to hold multinationals to account for such damage, and the potential to do so through the actions and choices of consumers and/or shareholders, should act as an additional motivator for change. We also urgently need champions, but they must walk the talk. Eco-celebrities should be applauded for their efforts on behalf of the environment, but often fail to convince because they model affluent lifestyles. Actions, as always, speak louder than words. What philosophers must now attempt to articulate and widely communicate is what those actions should be – and why.

15.4  B  ringing About Ethical Change – Environmental Stewardship It is not popular to advocate for a large-scale reduction in consumer choices and activities, but without such a shift we will not have a functioning planet on which to live, even if we succeed in stabilizing temperatures by reducing emissions. Philosophy could be said to be at the root of this dilemma, and also to contain the seeds of the answers to it. John Stuart Mill acknowledged that we should extend consideration to “the whole sentient creation” (Mill 1861). Early philosophies were developed when there were less than one billion people in existence, against the backdrop of an apparently inexhaustible landscape that was viewed as essentially inhospitable unless tamed. The priority was to organize society into a structure that would ensure we avoided a life that was “poor, nasty, brutish and short” (Hobbes 1924). Ironically, it now seems that human existence will become exactly that if we do not develop new approaches to environmental ethics based on the needs of a population of billions who are both trying to emulate the traditions of our far less overpopulated ancestors and consume the new products being marketed to us on a daily basis. This need was also noted by Mill when he said that “the consideration of what would happen if everyone did the same, is the only means we have of discovering the tendency of the act” (Mill 1861). We all see ourselves as acting individually, framed by our own personal needs and interests. We forget that if seven billion or even seven million other people all do the same thing, the effects will add up. If I buy a takeout coffee in a disposable cup because I need a pick-me-up, or a plastic bottle of water because the weather is hot and I’m thirsty, these seem like small and easily justifiable acts. If seven billion other people do the same, we have an enormous waste of resources and plastic piling up in the oceans. Indigenous relationships with the natural world refer to this moral concept obliquely by considering the impact of actions on the seventh generation. Because of their deep connections with the landscape, Indigenous worldviews commonly feature respect for their surroundings, above all water. This knowledge and respect

15  Streams of Consciousness: New Demands on Philosophy and Water Policy…

311

are manifest in traditional histories and stories, from place names based on the presence of water to a protective regard for water on the level of a family relative. These beliefs are examples of deep frames shared by Indigenous peoples around the world. In contrast, the deep frames currently shared by consumers around the world do not involve the land and water as priorities beyond their utility to humans; this worldview has reached a peak in the increasingly hollow triumph of consumerism. Our predicament reveals the extent of the compromise we have reached in the human capacity for understanding the miracle of our existence in an apparently otherwise unpopulated universe, on what is certainly the only perfectly inhabitable planet available to us, whose existence is the only reason we are here at all. Our capacity to perceive our place in the biosphere is simultaneously expanding through advanced technological tools and atrophying as we fall under the spell of instant amusement delivered via ubiquitous electronic screens, and where children grow up in mega-cities with little or no connection to the ecosystems on which all life depends.

In November 2015, the Still Moon Arts Society took grade 8 and 9 students to Still Creek to see the salmon spawning in their neighborhood. This activity was part of an effort to reach more youth with creative, learning, and leadership opportunities. To date, thousands of young people have participated in activities around the creek that celebrate the importance of wild salmon to the health of the whole watershed, such as weaving with invasive species plant materials; creating bionetting out of dried English ivy and using it to stabilize slopes planted with native plants; cedar weaving and native beading workshops initiated by local First Nations youth; lantern making and needle felting workshops; as well as stewardship activities in the ravine. Most people need to have hope if they are to act. Motivation comes from feeling rewarded, from the conviction that small actions, such as advice from social activist Naomi Klein (2014) to simply “consume less,” can cumulatively make a difference. Others need shock and awe to shake them from complacency. Either way it will be – it is – hard. The disillusionment that follows from studying history and our cumulative impacts on the biosphere is not one that most people willingly choose, not least because it is tough to accept that our national identities are built on the violent, dishonest subjugation of other cultures; that our otherwise innocent purchases, our exciting new electronic gadgets, are wiping out people, species, and ecosystems in faraway places. Nevertheless, we must be brave, for we are fighting for our lives. We must be creative in how we work to convey this information and disrupt the deep frames on which we are operating. Environmental philosophers must be galvanized anew to challenge consumer ignorance, educate people of all ages on ethical concepts, and pose questions about our nature as one people living on planet Earth with a much more important role to play than the authors of our own and the biosphere’s

312

D. Harford

destruction. The process should support implementation of the UN SDGs in a resounding call to action at all levels. Here are a few of the inconvenient truths that we may wish to instill in a new take on environmental philosophy for a planet of seven and a half billion: We have global reach through our purchasing power, and we must consider the ethical implications of our personal choices for other species, people, and, most of all, the planet. Our economies must transition away from the concept of infinite growth based on cheap fossil fuels. We must cooperate with those with whom we disagree, even those we hate, in the search for ways to transform our deeply entrenched, destructive paradigms. Each of us has power, and none of us has a pass that exempts us from action in this matter. There will be thousands, maybe millions, of ways these imperatives can be acted upon, from individual choices at the store to the formation of new organizations designed to facilitate action; from government policy to technological innovation; from academic studies and artworks to social media campaigns. The key now is for us to realize the global challenge that we all face, and as we do, to celebrate the emergence of global thinking that will move us cumulatively beyond the limitations of policy and regulation to emerge as a new philosophy for humanity.

15.5  Conclusions The urgency of developing a new set of ethics for a global population of seven and a half billion was recently articulated by perhaps the only people to have a sense of the true scale of the challenge – astronauts. Having observed the earth from the vast, silent darkness of space, they have been moved to speak out. Space journalist Phil Plait reports that, after some time in orbit, astronauts experience something called the “overview effect”. Eighteen astronauts acted on the power of this experience by sending a message to the December 2015 Paris climate change conference, urging the world to act on climate change (Plait 2016). In the video message, viewers hear: “Borders slip away, the sense of ownership over a particular piece of land fades, and they find themselves a citizen not of a nation, but of a world” (Plait 2016). In the words of International Space Station Commander Scott Kelly, “You … notice how the atmosphere looks and how fragile it looks. It makes you more of an environmentalist after spending so much time looking down at our planet” (Planetary Collective 2015). Indian cosmonaut Rakesh Sharma observed that “Sustainable development is impossible if it is accompanied by non-sustainable consumption” (Planetary Collective 2015). This is one of the most crucial issues addressed by SDG 12: “Ensure sustainable consumption and production patterns.” Yet it may be one of the hardest to answer given our global interconnectedness, for what is sustainable for a Western consumer may constitute ecological devastation in a developing country. It is Dan Barry’s comment that most succinctly sums up the need for a new ethical approach: “Our atmosphere connects us all. What happens in Africa affects us in

15  Streams of Consciousness: New Demands on Philosophy and Water Policy…

313

North America, what happens in North America affects Asia” (Planetary Collective 2015). This is the deep frame, the root of a new take on environmental philosophy, that we must build and communicate and on which we must construct new responses to the challenges of living on an overpopulated planet. We and all other species rely on freshwater to survive, and it is on the health of our living aquatic systems that we must focus. Canada is in the fortunate position of having large areas of intact wilderness and Indigenous voices that are increasing in strength. Both factors remind us of the widespread – and, in many cases, total – loss of both in Europe, the home of the colonizers. Canadians’ deep frames include an expectation of the existence of charismatic megafauna, such as bears, elk, eagles, and mountain lions, as well as the presence of salmon in great icy cold green-blue rivers fed by glaciers, although all of these are threatened by both climate change and human development. As a country, we are facing up to the shame of the profoundly cruel and unfair treatment of the Indigenous peoples who were here thousands of years before Caucasians arrived. We are sharing in the development of a new narrative that this time is being led by, and co-created with, First Nations, Inuit, and Métis. Even though our history is so dark in this regard, the awareness of Indigenous presence and powerful, beautiful wilderness are undoubtedly integral to Canadian deep frames. As a result, the Canadian perspective straddles the old and new worlds, a situation that invites development of a new vision, a philosophy of global governance that features both conservation and restoration of the complex and fragile ecosystems that are our heritage, and on which all life relies. As noted at the outset of this chapter, it would be difficult to translate this shift in perspective directly into policy; it is a radical shakeup of our beliefs that few leaders could credibly introduce. We must distill the central message down into one simple rubric that can underpin communications, planning, and policy on everything from agriculture to energy, development to conservation, education to health. This message has already been enunciated, in its essence, by experts such as the authors of the SDGs; Indigenous peoples, including the Kogis of Colombia; collaborative community leaders like Still Creek champion Carmen Rosen; and many others. Our survival may depend, now more than ever, on our being able to understand, translate, and act on the myriad directives embodied in these three small words: “Protect the rivers.”. In the fall of 2017, the salmon spawned in East Vancouver for the sixth year running, swimming up from the sea into the Brunette River, through Burnaby Lake, navigating the subterranean darkness of culverted pipes, and on into the cool green shadows of Still Creek’s banks. (See Fig. 15.12).

314

D. Harford

Fig. 15.12  Salmon in Still Creek (image courtesy of Still Moon Arts Society)

References Angelo M (2012) Still Creek: rebirth of an urban stream in Metro Vancouver. Partnership for water sustainability in BC, December 11. http://waterbucket.ca/wscblog/2012/12/11/still-creekrebirth-urban-stream-metro-vancouver. Accessed 3 Apr 2020 Ansar A, Flyvbjerg B, Budzier A, Lunn D (2014) Should we build more large dams? The actual costs of hydropower megaproject development. Energy policy, March, 1–14. http://ssrn.com/ abstract=2406852. Accessed 4 Apr 2020 AOSIS (2015) AOSIS opening statement for 21st conference of parties to the UNFCCC, Paris. https://unfccc.int/sites/default/files/cop21cmp11_hls_speech_aosis_maldives.pdf. Accessed 4 Apr 2020 Black Elk. Trans. John Neihardt (1961) Black Elk speaks: being the life story of a holy man of the Oglala Sioux as told through John G. Neihardt (Flaming Rainbow). University of Nebraska Press, Lincoln Boulton E (2016) It’s time for a new age of enlightenment: why climate change needs 60,000 artists to tell its story. The conversation, June 7. http://theconversation.com/its-time-for-anew-age-of-enlightenment-why-climate-change-needs-60-000-artists-to-tell-its-story-58774. Accessed 4 Apr 2020 Boyle C, Nichol E (2017) Low carbon resilience and transboundary municipal ecosystem governance: a case study of still creek. Adaptation to Climate Change Team, Simon Fraser University, Vancouver Bruce J (2011) If climate change is the shark, then water is its teeth. FLOW Water Monitor 4:6–7 City of Vancouver (2002) Still Creek rehabilitation and enhancement study. http://vancouver.ca/ files/cov/still-creek-rehabilitation-enhancement-study.pdf. Accessed 4 Apr 2020 Coates T-N (2015) Between the world and me. Spiegel & Grau, New York Ewen S (1976) Captains of consciousness: advertising and the social roots of the consumer culture. McGraw-Hill, New York Fox News (2010) White house: global warming out, ‘global climate disruption’ in. http://www. foxnews.com/politics/2010/09/16/white-house-global-warming-global-climate-disruption. html. Accessed 4 Apr 2020

15  Streams of Consciousness: New Demands on Philosophy and Water Policy…

315

Global Witness (2015) How many more? https://www.globalwitness.org/en/campaigns/environmental-activists/how-many-more. Accessed 4 Apr 2020 Goffman E (1974) Frame analysis: an essay on the organization of experience. Northeastern University Press, Boston Hobbes T (1924) Leviathan. J.M. Dent, London International Geosphere-Biosphere Program [IGBP] (2015) Great acceleration. Anthropocene review, January 16. http://www.igbp.net/globalchange/greatacceleration.4.1b8ae20512db69 2f2a680001630.html. Accessed 4 Apr 2020 Klein N (2014) The change within: the obstacles we face are not just external. Naomi Klein website, April 22. https://naomiklein.org/change-within-obstacles-we-face-are-not-just-external. Accessed 4 Apr 2020 Kunzig R (2014) A world with 11 billion people? New population projections shatter earlier estimates. National Geographic, September 18. https://www.nationalgeographic.com/ news/2014/9/140918-population-global-united-nations-2100-boom-africa. Accessed 4 Apr 2020 Lakoff G (2006) Communicating our American values and vision. Farrar, Straus and Giroux, New York Leopold A (1949) A Sand County almanac: and sketches here and there. Oxford University Press, New York Lovelock J (2007) Lecture to the royal society: climate change on a living earth, October 29. http:// www.jameslovelock.org/climate-change-on-a-living-earth. Accessed 4 Apr 2020 McCornick P (2015) Water flows through the SDGs. https://wle.cgiar.org/thrive/2015/09/21/ water-flows-through-sdgs. Accessed 4 Apr 2020 Mejia L (n.d.) The Kogi: lost tribe of Pre-Columbian America. https://www.tribalink.org/kogi/ thekogi.htm. Accessed 18 July 2016 Mill JS (1861) Utilitarianism. Parker, Son and Bourn, London Milly PCD et  al (2008) Stationarity is dead: whither water management? Science 319(5863):573–574 Plait P (2016) Astronauts want to save the world. Slate, January 5. http://www.slate.com/blogs/ bad_astronomy/2016/01/05/video_of_astronauts_about_climate_change.html. Accessed 4 Apr 2020 Planetary Collective. (2015) Call to earth – a message from the World’s Astronauts (video). Retrieved from: https://www.youtube.com/watch?v=NN1eSMXI_6Y Presbrey F (1929) The history and development of advertising. Doubleday, Garden City Reddy J (2013) What Colombia’s Kogi people can teach us about the environment. The Guardian, October 29. https://www.theguardian.com/sustainable-business/colombia-kogi-environmentdestruction. Accessed 4 Apr 2020 Snow D, Hannan P (2014) Climate change could make humans extinct, warns health expert. Sydney Morning Herald, March 31. http://www.smh.com.au/environment/climate-change/ climate-change-could-make-humans-extinct-warns-health-expert-20140330-35rus.html. Accessed 4 Apr 2020 United Nations (2015) Transforming our world: the 2030 agenda for sustainable development. https://sustainabledevelopment.un.org/post2015/transformingourworld. Accessed 9 Feb 2020 Veblen T (1899) The theory of the leisure class: an economic study in the evolution of institutions. Macmillan, London Vernon P (2009) Overseas development aid: is it working? openDemocracy, November 9. https:// www.opendemocracy.net/phil-vernon/overseas-development-aid-is-it-working. Accessed 4 Apr 2020 Wolff J (2011) Ethics and public policy: a philosophical inquiry. Routledge, New York

Chapter 16

Ethical Dimensions of the Water-Related International Development Agenda Zafar Adeel

Abstract  The international development agenda was catalyzed into a higher gear during 2015, primarily through the establishment of the Sustainable Development Goals (SDGs), which cover a broad range of interlinked development issues. The overall development objectives of poverty eradication, universal health, universal education, removing hunger, and achieving gender equality squarely intersect with worldwide protection of water as a resource and its universal provision as a service. This chapter explores how water truly fits within this emerging international development agenda. Discussions revolve around the various water-related targets in the SDG framework and how human, institutional, and financial resources can be mobilized to achieve these targets. A number of emerging ethical dilemmas related to the scope of the targets, addressing complexity of targets and equitable mobilization of financial resources, are discussed. The chapter offers some insights into what the future might hold if the SDG framework is implemented in an imperfect way. Keywords  International development agenda · Sustainable development goals (SDGs) · Ethical dilemmas · Equity in development · Mobilization of finances

16.1  O  verview of the Emerging International Development Agenda 16.1.1  2015 Agreements Pertaining to International Development Let us start by taking stock of how the agenda for international economic, social, and environmental development has evolved in the past decade. Understanding this process will allow us to better understand the motivation of various parties and set us up for exploring the underlying ethical conundrums. Overall, three strands of Z. Adeel (*) Simon Fraser University, Burnaby, BC, Canada e-mail: [email protected] © Springer Nature Switzerland AG 2021 I. L. Stefanovic, Z. Adeel (eds.), Ethical Water Stewardship, Water Security in a New World, https://doi.org/10.1007/978-3-030-49540-4_16

317

318

Z. Adeel

international dialogues that pertain to international economic and social development converged to their respective conclusion in 2015: design of a global development framework, creation of financial mechanisms to support that framework, and conclusion of a decade-long climate change debate. Arguably, the most notable achievement of the year was a gathering of the world’s heads of state and leaders at the United Nations General Assembly in New York, which passed a resolution in September 2015 that formally approved the Sustainable Development Goals (SDGs) (UN 2015). This suite of 17 goals and underlying 169 specific targets was collectively termed the 2030 Agenda for Sustainable Development (see Annex 1 for details). The “2030” refers to the deadline for achieving a vast majority of the targets embedded within the SDGs by the year 2030. Formulation of the 2030 Agenda was preceded by a global dialogue on mobilizing financial resources related to international development. The United Nations Third Financing for Development conference (held in Addis Ababa, Ethiopia, on 13–16 July 2015) was a gathering of world leaders to discuss the best ways of mobilizing finances to meet ambitious global development targets, which included the yet-to-be-approved SDGs. While the agenda for the conference was lofty – with an aim to “end poverty and hunger, and to achieve sustainable development” – the outcomes and actions listed in the Addis Ababa Action Agenda (AAAA) were business as usual (Kjorven et  al. 2015; Chhibber 2016). Instead of making any new commitments to meet their lofty ideals presented in the AAAA, world leaders saw it as appropriate to suggest to developing countries that they should reprioritize their own investments and seek financial resources from the private sector (Montes 2016). A third significant achievement was the 2015 Paris Agreement, which was signed by the world leaders gathered at the Conference of the Parties of the United Nations Framework Convention on Climate Change, held in Paris from 30 November to 12 December 2015 (Bodansky 2016; Schellnhuber et al. 2016). This agreement marked the culmination of a prolonged period of renegotiation of the 1992 Kyoto Protocol, another non-binding agreement to reduce the emission of greenhouse gases. Several elements of this agreement were designed to motivate governments to take action so the trend of global warming could be restricted to a 2 °C change above pre-­industrial levels. Achieving that broad goal would require significant voluntary reductions on the part of governments and investment of new funding to the tune of US$100 billion a year (Bodansky 2016). It was also agreed that the goals and targets of the Paris Agreement would be reviewed every 5 years and revised as needed. The Paris Agreement also left a number of open-ended questions pertaining to monitoring and measurements of achievements by different UN member states. The most notable challenge was to ensure “incrementality” of initiatives that could be claimed a response to the Paris Agreement; that is, incremental over and above the other initiatives that governments were already planning for in 2015 (Schellnhuber et al. 2016).

16  Ethical Dimensions of the Water-Related International Development Agenda

319

16.1.2  Some Innovations in the 2015 Agreements The so-called landmark agreements in 2015, achieved under the aegis of the United Nations, brought about a number of changes that were somewhat unique in the history of international developmental policies. It is important to understand these unique elements to put them in historical perspective and dissect them for the purposes of examining the implicit and explicit ethical challenges. First, the notion of universality of these agreements was the most obvious departure from the previous norms (Long 2015; Chasek et al. 2016). Most of the international dialogue and major previous agreements had adopted an ‘us-versus-them’ approach of distinguishing between developed and developing countries. It was previously implied that developed countries had achieved the pinnacle of social, economic, and environmental development, and thus were now in a position to offer their wisdom and largesse to other, less fortunate countries. It was also implicit that developed countries did not need to monitor or report on their own development trajectories. The SDGs and the 2015 Paris Agreement flipped that notion on its head, suggesting instead that every UN Member State should be equally and equitably subjected to the same set of development targets (UN 2015; Long 2015). That meant that the international monitoring and reporting regimes, which had traditionally been focused on developing countries, would now monitor those same measures of success for developed countries as well (Osborn et  al. 2015; Dodds et al. 2017). Second, the international leadership embraced complexity and rejected simplified and reductionist explanations of the development process. For example, many streams of dialogues taking place between 2012 and 2015 argued that the SDGs should not be more than 10 in number and each goal should not have more than four or five targets. Such an approach would lead to a manageable number of goals with the associated level of reporting that could be handled more conveniently by developing and developed countries alike. There was also a related argument that any number of goals more than 10 would be a hard sell politically to domestic audiences, and most people would lose interest because of complexity (Chasek et al. 2016). Despite having a counterproposal by the Sustainable Development Solutions Network – led by Columbia University professor Jeffrey Sachs and supported by a group of prominent world-class statesmen – that provided a 10-SDG model, the UN Member States opted for a much more complex version (Sachs 2014; SDSN 2014). One may argue that this embrace of complexity was politically counterintuitive, and yet it prevailed for two reasons: a strong push by various lobby groups that wanted to protect their turf by ensuring an exclusive SDG for their own domain; and an extensive and expansive dialogue process that solicited over two million “voices” on sustainable development (UN-Water 2018). On the latter point, one may argue that those responsible for managing and synthesizing the voices also demonstrated direct or indirect influence by various lobbies. The somewhat surprising aspect of this process is that the UN organizations and agencies were part of that lobbying process, realizing that being left out of the SDG formulation process could spell financial disaster for

320

Z. Adeel

them. Starting during the mid-1990s, with Kofi Annan at the helm of the UN as Secretary General (1997–2006), the operations of UN organizations and agencies were increasingly under scrutiny and subject to ever-tightening financial controls (Blanchfield 2015). This tightening of the purse strings by the developed countries meant that those leading these UN organizations had to fight for a bigger piece of the pie that was shrinking overall. Against that backdrop, not having a dedicated SDG that served their agenda could be ultimately fatal for a UN organization. Third, the notion of stakeholder engagement was pushed much harder in each of the three dialogue processes around financing for development, sustainable development, and climate change. The most notable of these engagements was the involvement of the private sector in the dialogue process. While the private sector still does not have a vote and in most situations is not even present at the negotiating table, it does have increasing influence on the thematic focus of the discussion, strategies for crafting future scenarios, and modalities of implementation of the future development agenda. A number of mechanisms that were established during Kofi Annan’s time as UN Secretary General now came of age and played a significant role in these dialogues. Founded in 1999, the UN Global Compact (https://www.unglobalcompact.org/) is a prominent example of such an establishment that was set up under the UN umbrella to engage corporate stakeholders  – a group whose membership has grown to over 13,000 participants and other stakeholders. In parallel to the negotiations being conducted at the UN General Assembly and supportive work being undertaken by the various UN organizations and agencies, the Global Compact conducted its own dialogue about the relative significance of various development issues and provided input to the formal negotiating processes (Dodds et al. 2017). Another form of stakeholder engagement was through a wide range of professional associations, nongovernmental organizations, lobby groups, activists’ organizations, and a range of civil society groups. In the same period of 2012–2015, when formal planning and negotiations were ongoing, these groups conducted their own dialogues and engaged with their constituents. The result was a richness of perspectives and ideas that were reflected in the form of the two million “voices” mentioned earlier. Inclusion of such groups in the COPs of the UN Framework Convention on Climate Change had been a fairly regular feature in the twenty-first century but was relatively new to the UN negotiation processes. Ostensibly, by having these broad range of stakeholders “informing” the formal UN negotiating process, it was argued that a greater level of representation had been achieved in the formulation of the goals and targets assembled in 2015. The veracity of these claims can be challenged; a more cynical perspective might claim that dominant UN Member States were still very much in the driver’s seat and were responsible for the architectural design of the development agenda – while these additional perspectives only filled in the finer details of what the development agenda would eventually look like.

16  Ethical Dimensions