Last week, the Canadian federal government proposed legislation to ban bulk water removals from “transboundary waters” – meaning waters that cross the U.S.-Canada boundary. To explain the legislation and how it fits within Canada’s other water protection efforts and challenges, Professor Marcia Valiante of the University of Windsor Faculty of Law generously agreed to author the following the guest post. Prof. Valiante is a leading expert on Canadian environmental law with a special focus on water protection and the Great Lakes. She is a member of the International Joint Commission’s Great Lakes Science Advisory Board and active in environmental protection issues regarding the Detroit River. I had the pleasure of co-teaching a course with Prof. Valiante on U.S.-Canadian transboundary environmental law a few years ago and continue to rely on her expertise on issues north of the border. From Prof. Valiante:
On May 13, Lawrence Cannon, the federal Minister of Foreign Affairs, introduced a bill into the House of Commons, to be called the “Transboundary Waters Protection Act.” This bill would amend the International Boundary Waters Treaty Act, the legislation that implements Canada’s obligations under the 1909 Boundary Waters Treaty with the United States. The Bill, C-26, would also make a minor amendment to the International River Improvements Act. Minister Cannon claims that this fulfills a promise made by the Harper government in its 2008 Throne Speech.
Bill C-26 would primarily do two things. First, it would expand the existing prohibition on water removals from boundary waters to include “transboundary waters.” Second, the Bill would add inspection powers and significantly increase the penalties for violations of the IBWTA.
In 2002, the IBWTA was amended to prohibit bulk water removals from the basins of “boundary waters” – including in particular the Great Lakes. This was one of three actions taken by the federal government commencing in 1999 to respond to the well-known Nova Group proposal to remove water from Lake Superior by tanker and ship it to Asia. (The other actions were to refer the issue to the International Joint Commission and to pursue a federal-provincial accord.) Bill C-26 expands application of the ban on removal beyond waters that form the Canada-U.S. boundary to include waters that cross the boundary. The Bill defines “transboundary waters” to include waters set out in a schedule. This schedule is attached to the Bill and is an extensive list – from large river systems such as the Yukon, Red and Columbia Rivers to smaller creeks and streams.
The inspection and enforcement sections bring the IBWTA into line with the enforcement provisions of other federal environmental statutes, which were strengthened in the Environmental Enforcement Act in June of 2009.
Minister Cannon claims that passage of Bill C-26 is necessary to fill an important gap in the protection of Canadian waters being eyed for export. What it accomplishes is actually fairly modest. For constitutional reasons, the Bill does not purport to control all waters in Canada that may be vulnerable to export, but stays safely within the narrow scope of water bodies referred to in the Boundary Waters Treaty. This narrow scope explains the sponsorship of the Bill by the Foreign Affairs Minister, rather than by the Minister of Environment.
Protection for all other Canadian waters remains in the hands of provincial governments, most of which have put in place prohibitions on bulk removal either from major drainage basins or from the province itself. Ontario and Quebec, of course, have legislation in place that implements the provisions of the 2005 Great Lakes St. Lawrence River Basin Sustainable Water Resources Agreement, entered into with the eight Great Lakes States.
The 2008 Throne Speech promise referred to the need to prohibit the “export” of water. For reasons relating to international trade obligations that were debated at length at the time of the 2002 IBWTA amendments, it is not surprising that there is no reference in the Bill itself to the “export” of water. The focus instead is on “bulk removal.”
Bulk removal means removal from the water body and the taking of that water outside its drainage basin “by any means of diversion, including by pipeline, canal, tunnel, aqueduct or channel; or by any other means by which more than 50,000 L of water are taken outside the water basin per day.” It does not include the taking of a manufactured product containing water, including bottled water or other beverages, outside a water basin. Also excluded is water used in vehicles or for a “non-commercial project” for firefighting or humanitarian purposes.
Under the IBWTA, bulk removal is deemed, “given its cumulative effects on boundary waters and on transboundary waters that flow to the United States, to affect the natural level or flow of those waters on the other side of the international boundary.” In other words, bulk removal is deemed to violate the Boundary Waters Treaty.
It is not clear why this Bill is coming forward now. The Minister admitted there was no urgency or imminent threats to divert or export Canadian waters. There has been fairly consistent opposition party and NGO pressure on the federal government to do more to protect water, but there has also been competing advice from several conservative think tanks to allow water export as a potentially lucrative industry for Canada. The government appears to have rejected that advice. Minister Cannon, in introducing the Bill, said “This important legislation makes it clear that we are not in the business of exporting our water… Canadian water is not a commodity. It is not for sale.”
Bill C-26 does fill a gap in the legislation, but is not ambitious either constitutionally or environmentally. It is perhaps an easy way for the government to improve its rather dismal environmental image. It will not antagonize any provinces by stepping on their jurisdiction and the criticisms of the amendments are manageable – in particular the continuation of an exemption for bottled water, which is in the existing IBWTA provision and in the Great Lakes Agreement. However, as some critics have pointed out, bulk water removal is not the most pressing issue facing Canadian waters; there is a need for an overhaul of federal water law – and this isn’t it.