Water as a person concept growing

Regulations surrounding water access and usage are increasing and getting tougher, as well as the concept of personhood appearing on the horizon in some jurisdictions, as referenced by Sharon Singh, partner at Bennett Jones in a recent article in Canadian Lawyer. All of which means miners, in whatever environment they are working in, will have to step up their game in terms of their water performance, but just as importantly, reporting on it. The concept of personhood for water resources will add another twist to this emotive issue, but what does the concept of water as a person actually mean? "One of the primary drivers in recognising rivers as persons has been the perceived or real gap in protecting rivers or other integral aspects of nature. Communities around the world have a variety of relationships with nature, including rivers. From India where rivers such as the Ganges and the Yamuna are worshipped to New Zealand, Colombia and Canada where indigenous communities have unique and intrinsic rights and relationships with certain waterbodies. Although most of these countries have environmental protection and management laws, there is a broader push to recognise easier pathways to demand stewardship action be undertaken to protect rivers and nature. Such action could be greater co-management and co-governance with indigenous peoples or a recognition of the inherent rights of certain communities to undertake environmental protection measures," said Singh.In Ecuador, in February 2021, the canton of Cuenca went to the polls to block mining in highland paramo areas and water sources. Some proposed mining developments in Colombia have faced similar local opposition, particularly in Santander department and parts of the Middle Cauca Belt. Potential impacts on water sources have seen communities resist the development of Northern Dynasty's Pebble project in Alaska, and Antofagasta's Twin Metals project in Minnesota, both in the USA.From a legal perspective, Singh said been different tools have been used by different countries and indigenous communities in recognising the legal rights of rivers, be it the right to be healthy and a right to survival, or the right to exist in a clean environment. "Recognised and enforceable grants of personhood gives a river the standing to sue and protections which can be enforced, like corporations," she said.Water resource stewardship and who has access to water is governed by government (federal, provincial, municipal and indigenous), with water stewardship planning often undertaken to decide what's the highest and best use of water, and who gets access to what. There is also public input and input from indigenous nations and communities and as a river is not going to go to court it is often communities that initiate legal action where it sees maleficence. For example, indigenous communities in the Atacama Salar in northern Chile initiated legal action against copper and lithium miners for deterioration of local water sources, which earlier this year the courts accepted and resulted in fines and other remedial action being handed out to the miners.For Singh, personhood is almost a red herring. Instead, she says the broader assessment should assess the issues related to water scarcity, consumption and stewardship and how these issues are affecting organisations now, and how they will affect them in the future. "Water is an integral aspect of ESG criteria. When we look at addressing ESG factors in terms of how we assess risk, it should be on top of an organisation's priority to address how an entity looks at its water use and what does inaction in water stewardship mean for an organisation," said Singh.Skarn Associate's water expert Raymond Philippe closely follows the water debate and helped develop the firm's recently launched water tools for copper and gold as a means to fill the information gap which persists. He rails against efforts to shoehorn it into a similar construct as carbon emissions. While it is valid to talk about a net zero carbon footprint of a mining operation or country, he is firmly against the concept of net zero water."Net zero water is not aligned with the reporting standards in place for the industry (ICMM, WAF, GRI, SASB, CDP, TCFD, etc), there is no standard, approved, definition of the concept , and in the current way the definition is used it amounts to greenwashing by global water specialists. Accepted definitions for water balance include the concept of consumption, which is loss of water due to entrainment, evaporation and losses (not returning water directly back to the hydrological cycle)," said Philippe.Philippe also observed that water has local effects which are not considered within the net-zero water claims and that water availability is time dependent, which makes the net zero claim meaningless.The debate on water personhood is in many ways a broad debate on management, efficient use and distribution of available water in which the focus of governance should not be on water but on planning of (commercial) activities in such a way that they do not affect water availability from an environmental and social perspective but now also from its own inherent right as an independent person."It is also about organization assessing their relationship with water and how reliant it is are upon water discharge, withdrawal, and consumption for the activities that it undertakes. As water stewardship over the scarce resource continues and regulation continues, access to water to undertake your operations may be more expensive and more regulated," said Singh. Bennett Jones partner Sharon Singh In Latin America, water issues are becoming critical political issues in countries like Ecuador, Colombia Chile and Peru. Indigenous communities are pushing for something similar to personhood for water, that it has recognised legal rights, while in Chile, the recommendations of the environment committee of the Constituent Assembly including greater protection of water and the ending of private water rights. Earlier this year, the government amended the water code which included an article giving human consumption priority in times of extreme drought. It seems certain there are going to be greater restrictions on water access and usage, which is already impacting the natural resource sector, which, as you say, is forcing the natural resource sector to rethink how it uses water.The 2018 Escazú Agreement is also relevant as it recognises the right of present and future generations to live in a healthy environment, although it has yet to be ratified by Chile, Peru or Ecuador, and it includes the right to access certain environmental information related to environmental management.The management of water related risk is a key concern for an increasing number of mining projects, and something Singh increasingly advises clients about, and her advice is straightforward."We have been advising on these issues for a while now. Assess your exposure to water, assess your water management practices, analyse what your future operations and objectives are, determine the touch points and interconnectivity to water and the related risks and opportunities that arise. The opportunity that arises from water restrictions or watershed management could be generated through innovation and where your ability to reduce and/or reuse water becomes a competitive advantage. Treating water as a shared resource as a public good helps with the analysis," she said.Treating water as a shared resource is a concept gaining traction and leading to the discussion of the development of shared water infrastructure to reduce water provision costs and environmental impacts.Douglas Aitken, GM of SMI-ICE Chile, which is part of the Sustainable Minerals Institute of Australia's University of Queensland, spoke about this during the World Copper Conference in Santiago, Chile in March and said analysis, undertaken with research group Cesco and Germany's GIZ points to potential savings of 50% in capital and operating costs and a 75% land use reduction through shared water infrastructure development at a basin level, just from the pipelines. "With miners in Chile planning huge water investments, we see huge opportunity of developing water distribution infrastructure using multiple sources of water in a basin with long-term thought to provide an holistic solution," he said.Better water management at any level requires better data with which to make decisions, which was one of the drivers for the development of the Skarn water tools, in the absence of meaningful metrics beyond things like flow rates.Skarn's Water Tools are benchmarking tools for water use in the mining sector, which provides a deep dive into water risk at asset level. The tool allows users to identify the water-related financial risks for mines and mining companies. A key and critical differentiator of the Skarn Water Tools is that it presents financial water management risks that have so far been lacking, such as the production and revenue at risk from impacts of water surplus or shortage, as well as the impact of water risks on all-in sustaining costs."You have water withdrawal or discharge rates in your permits but you don't generally have high-level data about our interactions with water and how we manage water. There is more of a narrative than numbers, so to speak, and the narratives are, frankly, all over the place. You have something very generic which doesn't really add much to anything. But I am heartened by some of the reporting frameworks out there," said Singh. Skarn Associates' Raymond Philippe While stopping short of seeking personhood for water, water rights are an active legal debate in Chile both within the constitutional reform process and the government of Gabriel Boric, although it began to gather steam under the administration of Sebastian Piñera with a mandate to reduce the percentage of continental water used in the mining industry to not exceed 10% by 2025 and 5% by 2040. In early May, Chile's constitutional assembly accepted articles drafted by the environment committee relating to water governance with a focus on water availability and expanded protection for water in indigenous territories, as well as expanding protections for wetlands, native forests and land essential to the water cycle.In March, president Boric signed into law a new water code, some 11 years in the making, which prioritises human use, includes climate change and puts time limits on water rights. Minister of Public Works, Juan Carlos Garcia, whose portfolio includes the Direction General of Waters (DGA) said the reform seeks the "fair water transition, which solves the problems of inequity suffered by thousands of people in access to this vital element."Under the new code, water rights will be given for a maximum of 30 years depending upon the availability of water sources, rather than indefinitely as under the previous Water Code. Water rights will automatically renew if they are being used and can be extinguished if they are not being used.The new water code is not expected to have a big impact on the mining sector given that it has been working for years to reduce its continental water usage through the increasing use of seawater, while also improving water usage efficiency through increased recycling and adopting processes which use less water. Despite this, underground water continues to be a key source of water."This won't have a big impact on mining given that 90% of the available water rights in Chile have already been delivered. However, the system is changing for companies that do not use their water rights. Up until now, if you didn't use your water rights you had to pay a fee to the government. Now, if you don't use your water rights, after five years you will lose them," a Santiago mining lawyer told Mining Journal.The water debate continues with the only certain conclusion being that water usage will be under increasing scrutiny from governments, communities, investors and other stakeholders and so it behoves miners to improve their data generation and analysis in addition to find ways to become part of the solution for sustainable water source management.

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