Proposals to protect Great Lakes waters
aren't perfect, but we can't walk away from the table,
says water policy analyst and negotiator
By Sarah Miller
Globe and Mail, Canada
Published September 21st, 2004
This month, in public meetings across Ontario and Quebec,
Canadians have been invited to come and defend our greatest
national treasure - our water - from diversions and harmful
withdrawals. These meetings may well be our last chance
for decades to create binding laws to protect the Great
Pierre Trudeau's parable of Canada-U.S. relations is
apt: For years, Ontario and Quebec have been two mice
in bed (a waterbed) with eight elephants, the Great Lakes
states. Any jostling and their fragile mattress could
spring a leak. Meantime, climate change, trade agreements
and growing water shortages within and outside the Great
Lakes Basin make all 10 strange bedfellows fearful of
I was one of the few Canadians invited to participate
on a stakeholders' advisory committee during the protracted
negotiations for new legal protections. Frankly, I am
terrified about the consequences of failure in this round.
It's worth noting that these negotiations have survived
elections and changing governments in all 10 jurisdictions.
Despite this, the negotiators have persisted in their
efforts to create the first legally binding agreement
since the antiquated 1909 Boundary Waters Treaty. Yes,
there are potential flaws with the agreement they have
come up with. But we cannot quit now.
Concern about potential drains on our fresh water resurfaced
in 1998 when Ontario granted a permit to the Nova Group
to export water from Lake Superior to the Orient. Diplomatic
notes flew between Washington and Ottawa; the International
Joint Commission (IJC) was summoned to study the protection
of Great Lakes waters.
Although Ontario withdrew Nova's permit, the lakes' vulnerabilities
had been revealed. The IJC and the best legal advice that
could be bought concurred that the Great Lakes had inadequate
protections to manage and sustain the waters now and for
In June of 2001, the Great Lakes-area state governors
and provincial premiers announced their intent to negotiate
a legally binding annex to the Great Lakes Charter.
Since then, Ontario has tightened up its laws and now
has the strongest water allocation system of all the 10
jurisdictions. It scrutinizes all withdrawal requests
of more than 50,000 litres and has put a moratorium on
withdrawals between watersheds. And Quebec has placed
a moratorium on out-of-province diversions until it has
implemented its new water policies.
But no similar new protections are yet in place in the
This should be of great concern to Canadians, a quarter
of whom depend on the Great Lakes for their drinking water.
Since 1985, when the Great Lakes Charter (a sort of gentlemen's
agreement) was signed, we have had little power to protect
Great Lakes waters when U.S. claims arise. Our only (slim)
hope to stop diversion proposals south of the border has
been that one Great Lakes state would veto a water diversion
proposal by another one under the U.S. Water Resources
In the current talks about preserving the Great Lakes,
U.S. negotiators acknowledge that they're very concerned
about weaknesses in the Water Resources Development Act.
Many believe it may not endure a court challenge. For
one thing, they say the act covers only surface waters.
That is, as it now stands, the act may not stop a groundwater
diversion proposal such as the claim by Waukesha, Wisc.,
that it has a right to divert some of Lake Michigan's
waters to feed its growing thirst, by right of the fact
that some of its groundwater flows into Lake Michigan.
No wonder U.S. conservationists are so eager to tighten
up the act's terms.
Despite prior notice and consultation provisions in the
1985 agreement, Ontario and Quebec have not always been
invited to discuss diversion proposals. Indeed, decisions
on diversion proposals have been purely political. There
have been no ecological protection standards in place
that would give those seeking to protect the Great Lakes
rational reasons to just say no.
And as North American water shortages increase, the elephant
herds will search for new resources to quench their thirst.
A strong public response at the public meetings being
held in Quebec and Ontario this month (today's is in Windsor,
tomorrow's is in London and the last will be in Kingston
on Sept. 28) can have a major impact on the outcome, as
will public input before the negotiators' Oct. 18 comment
Negotiators have tried to put together a series of legally
binding protections and rules that are at least as rigorous
as trade regimes. Critics of these draft agreements charge
that, despite the negotiators' best efforts, the new rules
could lead to more diversions. But if we walk away from
the table now, having no rules in place will almost certainly
allow new drains on the Great Lakes. Deep-sixing this
attempt to protect the lakes can only make many industrial
farming operations and other water-intensive users very
From my glimpses into the negotiating room, I think it's
a miracle we have got this far. Constitutional and other
differences have almost been insurmountable, which is
why we have ended up with two distinct agreements. One
is a U.S. compact that legally binds the eight state "elephants"
to act together as a herd; the other is a regional agreement
signed by all 10 jurisdictions that allows Ontario and
Quebec to participate as two solitudes on common interests
and to bind themselves by incorporating the decision-making
standard into their domestic laws.
If signed by all 10 jurisdictions, the agreement sets
high hurdles for diversions, with strong burden-of-proof
demands. Parties seeking Great Lakes water must prove
they have no reasonable alternatives. Parties who take
out water are required to return water - what's known
as "return-flow requirements." Such parties
must prove their activities have no significant or cumulative
impacts on the water system. They must show proof of water
conservation, and they must seek consensus among all jurisdictions.
The agreement also requires all jurisdictions to improve
their day-to-day water management, data collection and
water conservation practices. And it will finally give
us a way to force ourselves to relinquish the title of
the world's No..1 waster of water.
If we act like mice and run away from these negotiations,
everyone - every creature - who depends on the Great Lakes
ecosystem will suffer and so will future generations.
The Canadian Environmental Law Association urges concerned
Canadians to keep working on these agreements. Let's strengthen
them - and strengthen the protection of our shared treasure.
Sarah Miller is a water policy researcher with the Canadian
Environmental Law Association.