Contract must protect the public

Could a company contracted to design, build and operate Abbotsford’s new Stave Lake water system sell the water to other customers?

Could a company contracted to design, build and operate Abbotsford’s new Stave Lake water system sell the water to other customers?

If they had a dispute with their partner in the water system – the City of Abbotsford – who controls the water during the dispute?

These are some of the questions being raised by representatives of Water Watch Mission-Abbotsford (WWMA) and other opponents of the proposed P3 (public private partnership) plan that will be the subject of a referendum question during next month’s municipal election.

According to lawyer John Haythorne, who has considerable P3 experience and expertise, a good contract would be protective of the public’s interests.

He has not been involved in the Abbotsford P3 contract, but the partner in Fraser Milner Casgrain has spent 27 years working in engineering and construction law, and is the firm’s national P3 team leader. He has been involved in numerous projects, including the Canada Line.

Haythorne said under a normal P3 contract, the water rights “remain with the people,” and it would be “very unusual for the operator to have the right of access to sell water.”

He said under such agreements, the city owns the water rights, and invites the private sector to design, build and operate the necessary infrastructure.

The lawyer also said P3 contracts are highly protective of the public interest, and in a normal P3 contract the operator is repaid for its investment against proper performance. Contract provisions generally mean that operators receive reduced payment for non-performance. Standards to be met are all built into the P3 contract.

“A properly structured P3 will in many ways give a higher level of performance to the public,” Haythorne said.

What’s more, there are fundamental concepts in Canadian law that prohibit people being cut off from necessities of life, including water.

He said P3 contracts are now used to build highways, hospitals and even RCMP buildings.

“It is a good way to deliver infrastructure.”

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