Climate change is impacting water, resulting in increasing scarcity, increasing variability between periods of excess moisture and scarcity, and changing seasonal water patterns. This, combined with increasing demand and population growth in some areas is resulting in water conflicts. Responding to conflict with an expansive legal analysis highlights the ubiquitous and difficult nature of water and water law. Water is labelled an 'uncooperative' commodity as it is characterized by multiple market failures in its supply and it is an imperfect public good as it is nonexcludable, but rivaled in consumption. Solving it simply in a water property frame fails to recognize its special characteristics and fundamental importance for human and planetary sustainability.
Many binaries characterize water including its 'framing' as property (commons versus commodity; public versus private; rights versus commodity) and its framing around consumption (customers versus citizens). This framing debate also has roots in philosophical debates of Adam Smith, principles of sui generis, and worldviews of indigenous people supporting communal rights of Mother Earth. These binaries are also represented in legal principles of property, public trust, human rights, etc. and are sites of conflict that can be examined through case studies of water conflict.
By examining water conflicts in Ontario, Canada (Nestle) and British Columbia (Sun Belt Water, Inc.) the underpinnings, cultural framing, and legal arguments are explored. The results of these case studies confirm that the binaries are dialectics such that one never exists in isolation. Albeit the results of legal process and the positions of legal claimants often advance one binary, the context of a case study illustrates the complex co-existence of many binaries, frames, and philosophies. By examining the legal position of the parties to the water conflicts these binaries can be illustrated. In Nestle the water property regime of the Province and the pressure of a water/soft drink bottling company license usurping community drinking water is analyzed; In Sun Belt bulk water exports, free trade agreements, and federal/provincial water policy is examined illustrating the tensions, contradictions, opposing legal arguments, and then ultimate resolution of these binaries.
The implications of this finding reveals the complexity and reflexivity with which the resolution of water conflicts responds to the changes in the natural and social dimensions of water and climate change. People, NGOs, and governments advance arguments at the margin, opening up formal law, challenging historical rules of precedent and perhaps making change. Regulatory change involving public disclosure of water licensing requests, allowing for possible public consultations and discussions allows for recognition of diametrically opposed framing of water rules.