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GREAT LAKES SUSTAINABLE WATERS WATCH # 8 Great Lakes United, Week of December 24, 2001

CANADA FINALLY PASSES BULK WATER EXPORT AND DIVERSION PROTECTIONS

Acting on a promise made more than two years ago, the government of Canada has finally passed Bill C-6, an attempt to prevent bulk removal of water from the Great Lakes and other “boundary” waters between the United States and Canada.

The bill bans the removal of water from designated water basins (for example, the Great Lakes water basin) and gives the minister of foreign affairs the power to licence uses of water within the basin that would affect levels and flows on the U.S. side of the boundary. Unfortunately, both of these powers contain exemptions, which are as of yet unspecified.

The bill is in the form of amendments to the Boundary Waters Treaty Act, which fulfills Canada’s obligations under a 1909 treaty between the United States and Canada. That treaty commits the two countries to prevent actions that would alter the levels and flows of boundary waters on the other side of the border.

The new amendments are an improvement over the previous version of the Boundary Waters Treaty Act, which did not address bulk water removal, but they have a number of very serious flaws.

First, in theory the amendments effectively ban removals of water that would affect levels or flows of boundary waters. But the text repeatedly provides for unspecified exceptions to this ban. It is not clear why exceptions were built into the bill.

Second, the act leaves to be written into future regulation the definition of the basin from which harmful removals are forbidden.  The previous Liberal government suggested that it would define basins on a continental scale, such as the Atlantic, Pacific, and Arctic basins. A continental-scale definition could leave federal restrictions on export or diversion based on Bill C-6 open to potential challenge as a restriction on trade. One way to defend against such a challenge may be to prevent water removals based on their environmental harm, which is one of the few exceptions to free trade rules allowed in the major trade agreements. But a continental-scale definition of “basin,” which in theory would allow movement of water more than a thousand miles in some cases, could not credibly be defended as primarily an environmental protection measure. The Great Lakes basin, which may itself be too large for the purpose, may not even be defined as a basin under the new law, but merely included as part of the Atlantic Ocean basin.

Finally, the power to grant a licence is invested in the minister of foreign affairs, rather than the minister for the environment, further underlining the fact that the intent of the bill may not be primarily to protect the environment.

Nonetheless, the bill does offer the potential for limited protection for the region from harmful projects such as the 1998 proposal by an Ontario company to export water by tanker to Asia.

The core of the bill is in sections 11 and 13.

Section 11 says in part: “(1) Except in accordance with a licence, no person shall use, obstruct or divert boundary waters, either temporarily or permanently, in a manner that affects, or is likely to affect, in any way the natural level or flow of the boundary waters on the other side of the international boundary.”

Section 13 says in part: “(1) Despite section 11, no person shall use or divert boundary waters by removing water from the boundary waters and taking it outside the water basin in which the boundary waters are located. (2)  . . . removing water from boundary waters and taking it outside the water basin in which the boundary waters are located is deemed, given the cumulative effect of removals of boundary waters outside their water basins, to affect the natural level or flow of the boundary waters on the other side of the international boundary.”

Both sections also go on to allow “exceptions specified in the regulations,” which will be written by the government later. The exceptions could substantially undermine the effectiveness of the bill. The bill does not give guidelines for making exceptions.

The bill grandfathers all existing uses and diversions that might otherwise have been affected.

For the text of Bill C-6 as passed by Parliament, see: http://www.parl.gc.ca/37/1/parlbus/chambus/house/bills/government/C-6/C-6_3/90082bE.html

For official comment on the bill as passed by Parliament, see: http://www.parl.gc.ca/37/1/parlbus/chambus/house/bills/summaries/c6-e.htm

If these links take up more than one line in your email program, cut and paste them into your browser. Remove any hyphens inserted by your email program except those already in the link (at “C-6”, “C-6_3”, or “C6-e”)

ANNEX 2001: THE WAITING GAME

As 2001 comes to an end, the Great Lakes basin community awaits an expected January announcement by the governors and premiers of their workplan for implementing the water use reform promised in the state-provincial Annex 2001 document signed last summer.

The hope by all concerned is that such reform will solve the knotty trade agreement and other problems that may threaten to make it difficult to prevent future water export and diversion proposals.

In the workplan to be announced by the governors and premiers will be a proposal for involving the public both in the debates among the states and provinces about what to do and, more broadly, for comment on draft proposals decided on by the negotiators.

It has been six months since Annex 2001 was signed last June, more than enough to decide merely how to start work. Should the states and provinces delay their promised first step past January, it could signal a lack of willingness to do what is needed to protect the basin from the very serious threat of bulk water removals.

For an Acrobat .PDF version of Annex 2001 see: http://www.cglg.org/projects/water/Annex2001.pdf

For what basin environmental organizations would like to see the implementation of Annex 2001 achieve, see: www.glu.org/swtf/ecosystem%20agenda.htm

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