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UPDATE: House of Commons set for first vote on C-26

C-26, An Act to amend the International Boundary Waters Treaty Act and the International Rivers Improvement Act, was introduced by Foreign Affairs Minister Lawrence Cannon on May 13, 2010. Still in its first reading stage, it appears that it may be voted on in the House of Commons on Tuesday June 1.

Council of Canadians national water campaigner Meera Karunananthan says, “We don’t see Bill C-26 as a ban on bulk water exports. It does not appear to cover waters that are not boundary or transboundary waters.” National chairperson Maude Barlow highlights, “This legislation seems to narrow the definition of bulk removals to exclude water in manufactured products such as beverages. It appears the legislation continues a provision that allows for up to 50,000 litres of water a day to be exported in packaged form, such as bottled water.” We believe that Canada needs a comprehensive national water policy that bans all bulk water exports, excludes water from NAFTA and recognizes water as a public trust.

Barlow noted in the Toronto Star that the bill is a “good beginning” but demanded that the federal government address the threat of NAFTA. She said, “NAFTA still has the possibility, if one provinces disobey the federal law, of extending the notion of water as a commodity. We also need a full new Water Act to protect water in many, many other ways. This the first step of a very badly needed set of legislation on water. Our Water Act is 40 years old.”

Karunananthan said in Vancouver’s Georgia Straight weekly, “We would like to see the federal government seriously address the fact that we’re seeing increasing competition between commercial interests and the public interest and environmental interests. We would like a more comprehensive strategy that would address that—that would recognize water as a human right. Recognition of water as a public trust would force governments to look at water resources as public and ensure that when they make decisions about the allocation of water resources that they keep the public interest in mind.”

The Canwest News Service has reported that, “Ottawa MP Paul Dewar, the New Democratic Party’s environment critic, signalled amendments will be sought to (the bill).” We have contacted Mr. Dewar’s office to find out more about the amendments he intends to introduce.

Professor Marcia Valiante, a leading expert on Canadian environmental law with a focus on water protection and the Great Lakes, comments: “In 2002, the IBWTA was amended to prohibit bulk water removals from the basins of ‘boundary waters’ – including in particular the Great Lakes. Bill C-26 expands application of the ban on removal beyond waters that form the Canada-U.S. boundary to include waters that cross the boundary. The Bill defines ‘transboundary waters’ to include waters set out in a schedule. This schedule is attached to the Bill and is an extensive list – from large river systems such as the Yukon, Red and Columbia Rivers to smaller creeks and streams.”

“Minister Cannon claims that passage of Bill C-26 is necessary to fill an important gap in the protection of Canadian waters being eyed for export. What it accomplishes is actually fairly modest. For constitutional reasons, the Bill does not purport to control all waters in Canada that may be vulnerable to export, but stays safely within the narrow scope of water bodies referred to in the Boundary Waters Treaty. Protection for all other Canadian waters remains in the hands of provincial governments, most of which have put in place prohibitions on bulk removal either from major drainage basins or from the province itself.”

“The 2008 Throne Speech promise referred to the need to prohibit the ‘export’ of water. For reasons relating to international trade obligations that were debated at length at the time of the 2002 IBWTA amendments, it is not surprising that there is no reference in the Bill itself to the ‘export’ of water. The focus instead is on ‘bulk removal.’ Bulk removal means removal from the water body and the taking of that water outside its drainage basin ‘by any means of diversion, including by pipeline, canal, tunnel, aqueduct or channel; or by any other means by which more than 50,000 L of water are taken outside the water basin per day.’ It does not include the taking of a manufactured product containing water, including bottled water or other beverages, outside a water basin.”

“Bill C-26 does fill a gap in the legislation, but is not ambitious either constitutionally or environmentally. It is perhaps an easy way for the government to improve its rather dismal environmental image. It will not antagonize any provinces by stepping on their jurisdiction and the criticisms of the amendments are manageable – in particular the continuation of an exemption for bottled water, which is in the existing IBWTA provision and in the Great Lakes Agreement. However, as some critics have pointed out, bulk water removal is not the most pressing issue facing Canadian waters; there is a need for an overhaul of federal water law – and this isn’t it.”

Both Barlow and Valiante raise the issue of provincial prohibitions on the bulk removal of water. Embassy magazine reported in December 2008 that, “While the federal government is responsible for boundary waters, such as the Great Lakes, provinces control resources solely within their borders. In 1999, the federal and provincial governments entered into a voluntary agreement banning bulk water exports. According to Environment Canada, all provinces have in place legislation, regulations, or policies prohibiting the bulk removal of water.”

NDP Trade critic Peter Julian, says, “Any province deciding to bring about bulk water exports, approving bulk water exports, would automatically put pressure on every other province because the chapter 11 provisions that exist right now allow companies who apply for bulk water exports and [who] are denied, to sue those governments for having taken that decision.” Because water is a provincial jurisdiction, Julian said the only way to ensure total confidence Canada will not lose control of the resource would be changing NAFTA. “That’s the problem we are facing now. It’s not a federal government decision, it’s the provincial governments who could choose, because of the vacuum that exists, to press ahead with bulk water exports. So NAFTA has to be reopened for that reason and a number of other reasons.”

In 1999, Maude Barlow stated, “A voluntary accord would be just that — voluntary — and would not bind any province in any meaningful way to protect its water resources now or in the future. Although responsibility for fresh water comes largely under provincial jurisdiction, international trade is the exclusive domain of the federal government. Only the federal government has the jurisdiction to impose a meaningful national ban on water exports and only the federal government can deal with the trade threat it has unleashed on the provinces. The WTO also poses a risk to Canada’s water. Article XI of GATT specifically prohibits banning the export of a tradable commodity. GATT does have a provision to allow countries to use certain measures, such as export taxes, to protect natural resources, but these are prohibited under NAFTA.”

On June 5, 2007, the House of Commons voted 134 to 108 to take action to exclude water from NAFTA. Tabled by the Standing Committee on International Trade, the motion recommended that the federal government “begin talks with its American and Mexican counterparts to exclude water from the scope of NAFTA.” While all the opposition parties backed this motion, the Harper Conservatives voted against it. No action has been taken to remove water from NAFTA – and its threat to water remains.

Our campaign blog – ‘Council concerned about C-26’ – http://canadians.org/campaignblog/?p=3593, and our media release, http://canadians.org/media/water/2010/17-May-10.html. Professor Valiante’s analysis from the Lake Ontario Waterkeeper website, http://www.waterkeeper.ca/2010/05/18/canadian-feds-propose-ban-on-bulk-water-removal-from-transboundary-waters/?printerFriendly. The Embassy article is at http://www.vancouverislandwaterwatchcoalition.ca/go264a/Water_Export_Ban_Law_-not_Tackle_NAFTA. The Bill itself, http://www2.parl.gc.ca/HousePublications/Publication.aspx?DocId=4528706&Language=e&Mode=1.