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Great Lakes
Article:
Proposed Annex 2001 to the Great Lakes
Charter Comments from the Government
of Canada on Annex 2001 to the Council of Great Lakes
Governors
Canada welcomes the opportunity provided by the Council
of Great Lakes Governors to comment on the proposed Annex
2001 to the Great Lakes Charter. As a Party to the 1909
Boundary Waters Treaty, and therefore responsible, together
with the United States, for the rights and obligations
contained in the Treaty, Canada considers the Treaty to
be fundamentally important to protecting the shared waters
of the Great Lakes. Also, through its responsibilities
for the Great Lakes, Canada continues to invest millions
of dollars in protecting the ecological integrity of the
Great Lakes Basin.
Canada appreciates the key role played by the members
of the Great Lakes Charter (the eight Great Lakes states,
and Ontario and Quebec) in the management and protection
of the Great Lakes. Canada does, however, have serious
concerns about the proposed standard in the Annex which
would allow for removals of water out of the Great Lakes
Basin, and about the relationship of the Annex to the
Boundary Waters Treaty.
Canada supports the recommendations of the International
Joint Commission (IJC) February 2000 report Protection
of the Waters of the Great Lakes.
Introduction
Canada recognizes the ongoing efforts of the members
of the Great Lakes Charter to arrive at new, common standards
and procedures for decisions concerning removals or major
new or increased consumptive uses, as well as efforts
directed at improving the information on existing and
potential uses and withdrawals, and the promotion of water
efficiency and conservation. There is a long history of
constructive work within and between the eight Great Lakes
states, and Ontario and Quebec. This work has made a critical
contribution to the improvement over the past 40 years
of the water quality of the Great Lakes. Indeed, in the
years ahead, the environmental challenges on the Great
Lakes will increase, requiring the same strong commitment
and cooperation from all levels of government in Canada
and the U.S.
Canada endorses actions by the Charter members which
will contribute to better management and protection of
the shared waters of the Great Lakes. A number of the
principles and measures outlined in the Annex are consistent
with this objective. However, Canada has concerns with
the proposed Annex in the following areas:
the standard proposed is too permissive, and could compromise
the ecological integrity of the Great Lakes Basin by the
cumulative impacts of diversions below the de minimis
threshold, as well as by opening the door to long-distance,
large-scale removals out of the basin;
there are a number of unanswered legal and jurisdictional
questions, not the least of which is the possibility of
conflict between the Annex and the
Boundary Waters Treaty, thereby diminishing the importance
of the
protections the latter offers to the Great Lakes; and,
there should be greater clarity on a number of important
aspects related to implementation, as these would have
a significant impact on how the Annex is applied.
The Standard
Canada considers that the standard proposed in the Annex
is too permissive. The standard could open the door to
long-distance, large-scale bulk removals out of the Great
Lakes. In addition, the de minimis provisions are set
too high for removals out of the basin and do not take
sufficient account of the cumulative effect of many projects
and other stresses on the ecosystem.
Recognizing that improved conservation measures for consumption
within the Great Lakes Basin are a high priority, Canada
considers that an environmental approach which treats
in-basin and out-of-basin uses
differently is the most effective way of protecting the
Great Lakes.
Prohibiting diversions between major basins is an effective
means of
preventing the spread of invasive species, pathogens and
pollutants, and
recognizes that the sustainability of ecosystems and communities
within the basin is dependent on a natural supply of water.
Bulk removal outside the basin represents a permanent
loss to the basin and is not a sustainable use of water.
When water is withdrawn within the water basin, most of
it usually returns to the boundary waters by a natural
route-on average, there is essentially no or little loss
to the system.
Consumptive losses within the basin should not be equated
to removals out of the basin.
The IJC adopted this approach in its conclusions and
recommendations to the report Protection of the Waters
of the Great Lakes. Canada notes that the IJC considers
that their recommendations are consistent with international
trade obligations, a position the Government of Canada
fully endorses. The IJC, as well as formal submissions
by the governments of Canada and the United States, reaffirmed
the principle that governments retain full sovereignty
over the management of water in its natural state, and
in exercising this sovereignty are not constrained by
international trade agreements.
Canada considers that the IJC recommendations on removals
represent an excellent blueprint for addressing the multi-dimensional,
multi-jurisdictional aspects of the issue. These recommendations,
while not as strict as those adopted by Canada, or by
Ontario and Quebec, represent a viable solution to the
concerns of all jurisdictions within the Great Lakes Basin.
Canada is deeply concerned at the prospect of a regime
being established which is less rigorous than that recommended
by the IJC.
Legal Considerations
The Boundary Waters Treaty has been the bedrock of Canada-U.S.
joint
management of the Great Lakes for over 90 years. For the
40 million
Canadians and Americans dependent on the shared waters
of the Great Lakes, the Treaty represents a fundamental
protection and assurance. The elements of the proposed
Annex raise a number of concerns for Canada regarding
the relationship with and effect on the Treaty and the
IJC.
The Treaty establishes rights and obligations between
Canada and the United States with respect to boundary
waters. The application of provisions in the Annex that
might establish a different regime with different standards
and procedures could affect the ability of both countries
to respect and comply with their Treaty obligations to
the other and result in a weakening of the protections
in the Treaty.
As presently drafted, and as described in associated
material from the
Council, the Annex is presented as a binding agreement
between Canadian provinces and U.S. states. This is contrary
to international law and the Constitution of Canada. If
such a binding agreement is not in fact the intention
of the Annex, there still remain a number of questions:
what is the potential for conflict between the Annex
and the Treaty, as a
result of two standards or regimes on the Great Lakes?
For example, a
project in a connecting waterway, approved by the standard
in the Annex,
could result in a change to the level and flow on the
other side of the
boundary and thus trigger IJC jurisdiction under Article
III of the Treaty.
While that project might have received approval under
the Annex mechanism it would still require approval by
the IJC and, depending on the location, the governments
of Canada and/or the United States.
is the standard under the Annex compatible with Article
IV, paragraph 2 of the Treaty (dealing with pollution)
and the Great Lakes Water Quality
Agreement (GLWQA)? There is considerable uncertainty.
as the Annex does not contain the same priorities and
provisions as Article VIII of the Treaty, could there
not be a clash between the priority system established
under Article VIII of the Treaty and the new mechanism?
since Article V of the Annex commits to a series of obligations
to improve the Great Lakes water management system, including
to "identify and implement effective mechanisms for
decision-making and dispute resolutions", what would
be the relationship between these "mechanisms"
and the existing Treaty regime, including the IJC and
the GLWQA?
These questions, inter alia, raise fundamental concerns
on Canada's part, concerns which Canada intends to discuss
with the U.S. Department of State in greater detail.
Implementation
As the questions identified above demonstrate, many factors
critical to the implementation of the Annex are not known.
Given that these might well have a significant effect
on the operation of the Treaty, great care is essential
so as to avoid the possibility of overlap or conflict
between the Treaty and the Annex.
Canada's Initiative on Bulk Water Removal
Canada announced a strategy in February 1999 to prohibit
bulk water removal out of major drainage basins. All provinces
have in place or are developing legislation or regulations
to prohibit bulk water removal. On February 5, 2001, Canada
reintroduced legislation in Parliament, Bill C-6 (An Act
to amend the International Boundary Waters Treaty Act),
which will prohibit the bulk removal of boundary waters
out of their water basins, including the Great Lakes.
With regard to bulk water removals out of the Great Lakes
Basin, the
prohibition contained in Bill C-6 fulfills Canada's obligation
to the United
States under the Treaty, i.e. not to affect the level
and flow of waters on
the U.S. side of the boundary. The prohibition is also
a non-discriminatory environmental measure of general
application aimed at preserving the integrity of ecosystems
within water basins.
Canada's approach of prohibiting the bulk removal of
water out of water
basins, which is embodied in Bill C-6, is comprehensive,
environmentally
sound and respects constitutional responsibilities. Moreover,
it is
consistent with Canada's international trade obligations
as it does not
target the export of water as a good, but rather protects
water in its water
basin, before the issue of its export arises and before
it has become a good or a saleable commodity.
Conclusion
As the foregoing comments indicate, Canada continues
to have serious
concerns with certain aspects of Annex 2001, in particular
that the proposed standard in the Annex is too permissive
with regard to removals of water out of the Great Lakes
Basin, and about the relationship of the Annex to the
Boundary Waters Treaty. Canada looks forward to an ongoing
dialogue with the Council on these matters
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