Centre Publications

Public law is concerned with the relationship between the state and society. In Canada, this relationship is undergoing a period of significant reinvention, as evidenced, for example, by the movements for reconciliation and Indigenization, the calls to recognize and remedy systemic racism in institutions including police forces, and the recent extension of human rights protections to prohibit discrimination on the basis of gender identity or expression.

Critical-Public-Law- We are in a moment in which claims that challenge the normative foundations of the discipline of public law itself are being made in real time: claims about citizenship, rights, and access to resources and benefits; claims about what substantive and procedural fairness look like, and for whom; claims about the state’s obligations to proactively address both historical and current injustices and the limits of approaches that centre the state; and challenges to underlying assumptions about the state itself.

Edited by Professors Karen Drake, Kyle Kirkup, Anne Levesque, Jena McGill and Joshua Sealy-Harrington, the Handbook of Critical Public Law will be an open-access volume that takes an expansive, interdisciplinary approach to topical public law issues and grapples with the evolving relationship between the state and society. In doing so, the Handbook will fill a gap in existing Canadian public law literature, which tends to maintain a separation between traditional, largely liberal, public law scholarship and more critical perspectives, such as decolonial and Indigenous legal theory, critical race theory, feminisms, intersectionality, queer theory, and critical disability theory. This collection aims to bridge that divide by highlighting critical theories as not only relevant, but imperative, to robust, fully contextualized understandings of public law topics.

In the late 2020, in order to adapt to climate change and to better protect freshwater, the federal government proposed to create a Canada Water Agency. This announcement marked a possible historic turning point. In fact, it has been more than 50 years since the last federal legislative initiative regarding national water management. The structure of the Canada Water Agency, its mission, and the operationalization of its objectives have yet to be defined. The creation of this new federal agency provides an opportunity to analyze the legislation, policies, and operations of existing water management, conservation, and regulatory organizations in Canada and internationally. It is also an occasion to critically examine the process of creating this new agency. 

This book consists of papers based on the national conference presented by the University of Ottawa’s Forum on Water Law and Governance. Written by experts in various fields of law and governance, these chapters address freshwater from Indigenous, municipal, international, ecosystemic, intergovernmental, and agricultural perspectives. It also provides considerations related to the institutional development of the Canada Water Agency. 
An introduction to freshwater law and governance precedes the enlightening perspectives presented in the various chapters that follow. To better situate the expert discussions in the book, the Canadian hydrographic, geographical, and climatic context is outlined, as well as the constitutional, legal, and institutional frameworks. Recent policy developments relating to the creation of the Canada Water Agency are also detailed. 

The role that the Canada Water Agency can play in decolonizing water governance is discussed. Avenues are presented to address the challenges of current collaborative water governance mechanisms and to ensure that Indigenous perspectives are central to the Agency’s development. The imperatives of public participation, co-construction, and social acceptability in the construction of the Agency are analyzed to propose a flexible governance model – thus allowing the Government of Canada to respect its commitments toward Reconciliation with Indigenous Peoples and to take into account their knowledge in water governance. Legal tools and mechanisms for intergovernmental water management in Canada are examined. The widespread use of the watershed scale as a scope of action is identified, as well as shortcomings in the inclusion of multiple sectors and actors. The role of Canadian municipalities in the field of water governance is highlighted, as well as avenues to modernize water management by considering initiatives developed by municipalities in creating a Canada Water Agency. 

The evolution of international water law and the tensions that have arisen in its management are explained. Some often overlooked aspects are also underlined in the context of the future Canada Water Agency. A comparative look is also taken at the difficult transboundary management of the Indus River Basin in the Indo-Pakistani region and lessons are drawn on the geographical, political, and historical factors that can impact water governance. 
The agriculture and agri-food sector is an important part of the economy and is one of the most significant polluters of freshwater. The interdependent relationship between this sector of the economy and freshwater is unique, as agriculture is also the largest user of freshwater and one of the sectors the most affected by climate change. Should the Canada Water Agency turn out to be merely a successor to the Prairie Farm Rehabilitation Administration, solutions are being proposed for this sector given its significant vulnerability to pressures exerted by a growing population and climate change.