y arise is a perilous enterprise. However, there are several obvious grounds upon which claims might be made by investors seeking redress arising from government imposed constraints on bulk water exports.S.109 of the Constitution Act, 1867 explicitly provides for provincial ownership of its lands, mines, minerals, including water resources. However it is also clear that these proprietary rights are not without qualification, which for present purposes includes the rights of riparian users, and of licensees under federal or provincial permits. Moreover, it is entirely possible in our view that a foreign investor seeking to exercise such riparian rights for the purposes of bulk water exports might assert a claim that any denial of the opportunity to do so represents expropriation within the expansive terms of Article 1110. Alternatively, water use permits, which are silent with respect to the particular purpose for which the license was granted, might also give rise to claims under Chapter 11.Furthermore, it is very unlikely that we will have any definitive resolution of many of the issues that arise in this context if left to the vicissitudes of dispute resolution under Chapter 11. This is the case because there is no doctrine of ‘stare decisis’ (judicial precedent) that would bind any tribunal to follow the reasoning or adopt the same interpretation of another tribunal that had considered the same or similar issues. For this reason, if the status quo persists, it will be impossible in our view for Canada to develop water policy or regulatory initiatives with any certainty that these would withstand the rigours of investor-state litigation or for that matter, trade challenge. 1.2.4 NAFTA Chapter 12: ServicesChapter 12 of NAFTA sets out a comprehensive regime to govern trade and investment in the services sectors. While the WTO General Agreement on Trade and Services (the GATs) is analogous, the GATs is much less fully devel...
