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February 14, 2008 An abridged version of the following letter by trade lawyer and Council of Canadians board member Steven Shrybman appeared in the Globe and Mail today: While it’s refreshing to see the Globe and Mail call for regulation of interbasin freshwater removals, the Munk Centre's Model Water Act touted in Monday's editorial fails to explain how this may be achieved under our existing trade and constitutional arrangements. Take the problem of NAFTA investment rules. Joseph Cumming and Robert Froelich recently argued in the University of Toronto Faculty of Law Review that if our governments were to restrict water licenses in the tar sands, U.S. oil corporations would be entitled to sue Canada under chapter 11 of NAFTA. The Model Act would not prevent this from happening. Of course a water basin approach makes perfect ecological sense, but the Munk report ignores the need for agreement with the US on shared water basins. And rather than urge the federal government to deal with the issues within its jurisdiction, the Model Act would have Parliament regulate water removals from provincial basins. It’s unlikely the provinces would cede their constitutional prerogatives with respect to provincial waters. Canada needs both a national policy that calls for coordinated action by federal and provincial governments, and a treaty with the U.S. that acknowledges our respective sovereign rights to manage water as a public trust and human right, not as a commercial good or investor claim. The issue of bulk water exports is set to heat up this year, with the upcoming release of a Conservative water policy and the as yet unavailable North American Future 2025 project, an initiative of the U.S. Center for Strategic and International Studies (CSIS) in collaboration with the Conference Board of Canada and the Centro do Investigacion y Decencia Economicas (CIDE), still a looming question mark. The CSIS project convened several meetings last spring, one of which discussed “water consumption, water transfers and artificial diversions of bulk water." The final document, which was supposed to be available last fall, was meant as a guide to ongoing Security and Prosperity Partnership talks, proving conclusively that water is in fact on the table.
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