GREAT LAKES SUSTAINABLE WATERS WATCH # 8 Great Lakes
United, Week of December 24, 2001
CANADA FINALLY PASSES BULK WATER EXPORT AND DIVERSION
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
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
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:
For official comment on the bill as passed by Parliament,
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: