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Water definition at core of debate

The Western Producers reports, “Ottawa trade lawyer and water rules expert Stephen Shrybman says the 20-year debate over whether water is covered by the North American Free Trade Agreement is irrelevant. Of course water is governed by NAFTA rules, he says.”

“‘The fact is that water is an investment and a service category that is captured by the NAFTA,’ said Shrybman, from the law firm Sack Goldblatt Mitchell.”

“As an example, the bankrupt paper company AbitibiBowater is using Chapter 11 of NAFTA to sue the Newfoundland government over its decision to take back the company’s licence to have access to provincial water once it closed its plant, claiming loss of investment returns. ‘There is no argument that a NAFTA panel has jurisdiction to hear this case,’ Shrybman said in an interview. ‘Water is part of the agreement.’”

“Less certain, as NAFTA critics have complained since the first free trade deal was signed with the United States in 1989, is whether water will be considered a commodity that can be exported and that a thirsty U.S. economy will be able to demand access under national treatment provisions.”

“That is the core of the debate, said Maude Barlow, Council of Canadians chair and former United Nations special adviser on water. “The American government is looking outside its borders for energy, so why wouldn’t they look for water too as their supplies dwindle and demand increases? ‘Once one province decides its water is a commodity that can be exported, then NAFTA says it would no longer be Canadian water but North American water, like our energy.’”

“Shrybman said the jury still is out about whether water would be considered a commodity subject to export trade rules. There has never been a NAFTA case on the issue. ‘The simple answer is we don’t know if water would be considered a commodity, although it certainly is used as a commodity in business projects, in irrigation, in water bottles,’ he said. ‘The only way the issue will be resolved is by a trade dispute panel.’”

“Before that happens, he said Canada should try to negotiate a deal with the U.S. to specifically exclude water from NAFTA. Barlow argues that the way to do that is to have government declare water a ‘national trust’ and a resource that is publicly owned, fairly apportioned and adequately conserved.”

“The Council of Canadians has targeted as dangerous proposals made to the Alberta government that provision of water within the province increasingly be open to private management and control. ‘This would be setting the stage for a market model like that in Chile and Texas that would put allocation and distribution in the hands of private companies, open to foreign investment,’ said Barlow. ‘This would open the door.'”

Montreal Liberal MP Francis Scarpaleggia, chair of the party water caucus, has been working for four years on a water policy that the party expects to highlight in the next election. ‘As a civil society, we are just beginning to explore the issues of water and frankly it is one of the most complex policy areas I’ve ever come across,’ he said in an interview. ‘It is difficult to capture this in a few paragraphs or a short policy statement. There are so many issues, which I think explains why we have never had a national water policy.’ He has proposed a private member’s bill that would stop diversion of water between water basins and by extension between Canada and the United States but he acknowledged that issue is just the tip of the water policy iceberg.

The full article is at http://www.producer.com/Markets/Article.aspx?aid=15797.