FAIT Committee Meeting

STANDING COMMITTEE ON FOREIGN AFFAIRS AND INTERNATIONAL TRADE

COMITÉ PERMANENT DES AFFAIRES ÉTRANGÈRES ET DU COMMERCE INTERNATIONAL

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, May 15, 2001

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[Translation]

The Acting Chair (Mr. Bernard Patry (Pierrefonds—Dollard, Lib.)): Pursuant to Standing Order 108(2), and with your permission, we are now going to begin this informal briefing on Bill C-6, an Act to amend the International Boundary Waters Treaty Act.

Today, we have as a witness Mr. Frank Ruddock, Deputy Director, US Transboundary Division, Department of Foreign Affairs and International Trade.

[English]

Welcome, Mr. Ruddock.

We also have, from the Department of Justice, Mr. Jason Reiskind, counsel, International Law and Activities Section. Welcome.

[Translation]

We also have as a witness Mr. John B. Cooper, Director, National Water Issues Branch, Ecosystems and Environmental Resources Directorate, Environmental Conservation Service, Environment Canada.

Thank you very much for being here this afternoon. We are going to start with Mr. Ruddock.

[English]

Mr. Ruddock, please go ahead.

[Translation]

Mr. Frank Ruddock (Deputy Director, US Transboundary Division, Department of Foreign Affairs and International Trade): Thank you, Mr. Chairman.

We are going to give you a brief overview of the legislation, particularly with respect to the licensing system, as that issue was raised a number of times last week and this morning. I hope our documents in English and French have been, or are in the process of being, distributed. Yes, you have them.

In the course of this briefing, we will also be using a map of the boundary and transborder waters in order to explain certain parts of Bill C-6. I will briefly touch on some points that were discussed both last week and this morning. But it goes without saying that although we will be going over these points quickly, we will answer all of your questions.

[English]

We have also distributed to you a paper entitled “Bulk Water Removal and International Trade Considerations”. It features in your legislative binders as tab I, but we brought copies with us in English and French in case you didn't have your binders with you. This was sent to the public and all members of Parliament in 1999 and updated in February 2001 to address the trade law issues.

[Translation]

So I will begin the presentation. I will mention page numbers as we go along.

Page 3 has to do with the map. Does everyone have the document?

This refers, once again, to the multidimensional nature of the issue, which we discussed last week, that is to say, it is important not to view the issue from a single standpoint.

Page 4 says that it is an intergovernmental problem. Once again, the point was made this morning by one of the witnesses that no government acting alone can solve all of the problems around water removal.

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[English]

Page 5 is a résumé of Canada's approach on Bill C-6 and on the bulk water removal issue in general, that it is an environment issue, not a trade issue. We've taken a comprehensive environmental approach that respects provincial responsibilities and other international obligations and engages the U.S. as well.

Pages 6 and 7 deal with the issue that our approach is protecting water in its natural state; that water in its natural state is not a good; that approval of a project in one jurisdiction does not create a precedent elsewhere, which was discussed by the witnesses this morning; that we have full sovereignty over the management of water in its natural state; and that the power of Canadian governments is not constrained in that regard.

The issue on page 8 is why not an export ban? We believe it's unnecessary and inappropriate. It would in effect amount to unilateral federal action and give the provinces no role in the issue. An important point is that it would only regulate the cross-border movement of water once it was good. It would do absolutely nothing to protect water in its drainage basins. Even those who support an export ban have conceded that it would be vulnerable to a trade challenge.

[Translation]

On page 9, we acknowledge that the provinces and territories have responsibilities and that our approach respects that. We have asked the provinces and territories to act within their jurisdiction. With Bill C-6, Canada is acting within its jurisdiction.

On page 10, we point out that we are exercising federal jurisdiction under the treaty and that this is an exclusive federal jurisdiction.

However, between 1998 and 1999, we conducted extensive consultations with the provinces and territories. Consultation on the regulations, which began last year, continues this year.

On page 11, we simply set out the three parts of the federal government strategy, which was announced in February 1999, to prohibit bulk water removal from major Canadian water basins. Those are, of course, Bill C-6, the Canada-wide Accord on environmental harmonization, and bilaterally, reference to the International Joint Commission.

As you have seen, with the Canada-wide Accord on environmental harmonization, federal government action is based on boundary waters. Accordingly, on page 12, we acknowledge that the provinces own the resource. We have therefore asked the provinces and territories to act within their jurisdiction, and as you know, all of the provinces have or are about to put in place legislation or policy prohibiting water removal.

As we said last week, we have made progress. In 1998, only two provinces—Alberta and British Columbia—had legislation in place. Today, all 14 jurisdictions, including federal, have or are about to enact legislation prohibiting water removal.

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[English]

On pages 13 and 14 we describe the conclusions of the IJC report. These we dealt with, I think, in our testimony last week. I can certainly return to them if the members have further questions. But I wanted to move on more quickly to the actual amendments themselves, so I'm going to jump forward to 17.

[Translation]

It is important to note that the 1909 International Boundary Waters Treaty is one of the oldest treaties in Canada. The purpose of the treaty is to prevent and settle disputes, particularly with respect to the quantity and quality of boundary waters.

Here come the copies, I think. Everyone has a map.

I just wanted to clarify the difference between boundary waters and transborder waters, which is an important aspect of the bill. Boundary waters include for example the Great Lakes and Lake of the Woods, in northwestern Ontario. Part of the St. Lawrence River is made up of boundary waters, from the mouth of Lake Ontario to where the borders of Ontario and New York meet. The rest of the St. Lawrence River...

Ms. Francine Lalonde (Mercier, BQ): It would be helpful to have the maps so he could show us precisely what he means.

Mr. Frank Ruddock: I am sorry, we did bring them. I even saw them here.

Ms. Francine Lalonde: So Mr. Chairman, I will be in entitled to individual consultation on my map. Thank you.

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Mr. Frank Ruddock: Please look at your maps and notice an important feature of boundary waters. Take the Great Lakes, for example. Boundary waters leaving the Great Lakes are no longer under federal jurisdiction once they have left the international section of the St. Lawrence River. They then become Quebec provincial waters and are no longer under federal jurisdiction as provided for under the treaty.

[English]

One aspect that is also important to realize is that waters can change their jurisdiction as they flow. That is one reason we chose an approach that deals with all governments. Water does not respect boundaries. That is an important aspect.

[Translation]

Page 18 deals with the legal and policy rationale. Do not forget that federal jurisdiction is consistent with the treaty provisions. If it is a matter of provincial jurisdiction, an important feature of the treaty must be noted. Canada cannot take any action affecting the level or flow of water on the American side of the border. Boundary waters on the Canadian side are still under provincial jurisdiction. That jurisdiction is in no way affected by this act. The act applies only to potential effects on the level or flow of water on the other side of the border, and that can only come under federal jurisdiction because it stems from a treaty.

Page 19 deals with the prohibition of bulk removals of boundary waters from their water basins. I remind you that this prohibition applies only to boundary waters and, we hope, their level and flow. The provinces retain their jurisdiction.

[English]

For example, Ontario has a regulation to prohibit bulk water removal from the Great Lakes. That regulation is still in force. This law does not contradict or overlap in any way with the provincial regulation. It applies to say Lake Superior water because Ontario is still the manager of that water for matters that are within provincial jurisdiction. But Ontario cannot fulfil the obligation that is in the treaty. Only the federal government can fulfil that obligation. So that obligation is being fulfilled by the prohibition in clause 13.

There will be exceptions to the prohibition, such as ballast water and short-term humanitarian projects. But it's important to note that the prohibition is a prohibition. I think there was some confusion in some of the questions that were asked this morning, that the permit system was a way of permitting removal projects, and that's simply not the case. Clause 13 is a prohibition. The exceptions are not for permits. That is the purpose of clause 13.

On the licensing system—and we're turning here to 20—once again it is separate from the prohibition. Because there were a number of questions on the licensing system, it is important to understand here again that under articles III and IV of the treaty, there are certain types of dam projects and other obstructions that must have the approval of the International Joint Commission and the Government of Canada. These do not in any way intrude upon or overlap with provincial jurisdiction because they derive solely from the treaty.

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Perhaps I can give you an example of the status quo and then an example of what it will be like if Bill C-6 is adopted. That might help clarify for people where this stands.

If somebody comes forward with a project under article III or IV, and this is what the licensing system applies to, today, or any time in the last 92 years, they must normally always obtain all provincial and regional government and municipal approvals. That has nothing to do with the treaty. Simply, anybody who is planning a large project would have to go to the province anyway. They must, in addition, get the International Joint Commission and federal government approval for the change in levels and flows if it would affect the U.S. side of the boundary. And that's the only thing the federal approval applies to. It does not apply to anything within provincial jurisdiction.

So today a proponent would have to come to the federal government. The federal government would have to agree or not agree to send it to the IJC. The IJC would give its approval or not. The federal government would give its approval or not. And on the assumption that they had that IJC approval, that federal government approval, and they met all other provincial permitting conditions that have nothing to do with the treaty, the project could go ahead.

If Bill C-6 passes in Parliament, essentially nothing is going to change except that instead of being the final informal federal approval it has been over the past 92 years, there would be a licence. Again, that license would apply only to the effects of levels and flows on the U.S. side of the boundary. It would not in any way touch what the provincial governments would license in such a project, whether it was land use, provincial water quality, or anything like that.

I think that's an important aspect. One of the questions that was raised was that if all we are doing is formalizing what was done in the past, why are we doing this? And if you go to slide 21, as we mentioned, we felt this would better implement the obligations of the Government of Canada to the Government of the United States and afford better protection. There is no new or expanded federal power.

I would note again that over 92 years, under this provision, there have been 60 projects. There have never been any difficulties with overlap with provincial jurisdiction, and we don't anticipate any in the future, because we're not applying the treaty any differently from what we have in the past 92 years.

The exceptions that are mentioned are exceptions that already exist in the treaty, which are things like domestic and sanitary water supply. They've never been subject to the treaty and they won't be in the future.

On slide 22, we mentioned again that the bill introduces clear and strong sanctions and penalties. Essentially, it means that Canada is in a clearer state to enforce the prohibition and the licensing system as well.

You will note at the very back of your binder that the original International Boundary Waters Treaty Act is there along with the treaty, and it doesn't contain any of those elements. I suspect, without wanting to put myself in the minds of the members of Parliament in 1911, they were not concerned that there would be those sorts of difficulties. It does put the government in a clearer and more transparent position to enforce the adopted act.

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That was the extent of the presentation today. As I said, I skipped over a number of the issues we in fact discussed last week when I and my colleagues were here, and they were covered this morning. If somebody wished to return to any of those issues, we're of course more than happy to respond. So I would stop there.

The Chair (Mr. Bill Graham (Toronto Centre—Rosedale, Lib.)): Thank you very much, Mr. Ruddock.

We'll go to questions. Mr. Casson, sir.

Mr. Rick Casson (Lethbridge, Canadian Alliance): I'd like to know what your definition of a “water basin” is. Does it include areas on both sides of the border, or does Canada's treaty just deal with our side?

I would also like some clarification on this licensing thing. I know we've been going around and around on this. You say that implementing this bill will not change what has been going on, yet it's an important part of a three-part strategy. So I don't know why we couldn't have just put it in as it was. Anyway, you might want to comment on that.

It says under “Licences” in proposed subsection 11.(1) that “Except in accordance with a licence...”. Can a licence be given to increase the flow of a river into the other country? I am mostly concerned about decreasing, stopping, diverting, or taking the water away. Would a licence be issued to increase the flow of a certain river? I mean an inter-basin transfer, that type of thing.

When you put the provision for an exception in under authorization of a licence, that's where a lot of the concern and question is coming from. Why is that even needed there?

Mr. Frank Ruddock: I'll ask John to answer the first part and Jason the second.

Mr. John B. Cooper (Director, National Water Issues Branch, Ecosystems and Environment Resources Directorate, Environmental Conservation Service, Environment Canada): With regard to drainage basins, as we explained in the previous meeting, that describes a land area that drains into a common body of water. In Canada's case, we can start off with five major drainage basins that cover the entire land mass of Canada. That's the Arctic, Pacific, Atlantic, Hudson Bay, and the Gulf of Mexico.

Within each of those drainage basins you could subdivide it into smaller and smaller sub-basins or watersheds. They're quite often referred to as watersheds, in much the way as we can come down to the level of the Rideau River watershed and the Ottawa River watershed being part of the overall Great Lakes and then Atlantic watershed. So it's a way of looking at how water flows within the country.

Your second part of that question was whether or not these basins cover parts of the U.S. as well. Certainly in terms of most of these basins, yes, they do extend into the U.S. continent. In terms of legislation, on regulations put in place by either provinces or as proposed under Bill C-6, the actual authority would only extend to the Canadian portions of those drainage basins, as we have no authority in the U.S.

Mr. Rick Casson: So the basin covers both sides of the border and the rivers' flow, but we can only deal with things that affect our side of the border? I thought it was to do the opposite, to stop each other from affecting the opposite side of the border. I'm missing something here.

Mr. John Cooper: In terms of the Boundary Waters Treaty, our obligations are to protect the levels and flow on the U.S. side of the border by taking actions within our jurisdiction to protect those waters within our side of the boundary waters.

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If we look at the bigger picture where we're trying to cover all of Canada by having this prohibition on bulk removal, what we are proposing is that each jurisdiction look at their drainage basins and apply a prohibition on bulk removal at an appropriate scale of drainage basins. But their jurisdiction and their authority to prohibit removals would only apply within the waters within their boundaries.

So while we are protecting the watershed as a whole, our actions can only take place on our side of the border. This is one of the reasons why, as part of our strategy, we undertook a reference with the International Joint Commission to examine ways to protect the Great Lakes from diversions, consumptive uses, and removals, and in that way try to ensure that we have a complementary system—one that supports the approach that we're proposing in Canada.

Mr. Rick Casson: And the question of a licence?

Mr. Jason Reiskind (Counsel, International Law and Activities Section, Department of Justice): It's important to recall the prohibition in proposed section 13. If one is taking a bulk removal of water from the boundary waters and taking it out of the broader basin, then the prohibition applies, the way the act is worded—taking out of the basin that is within Canada.

Then, going back to proposed section 11, both proposed sections 11 and 12 as covered in the treaty were mainly concerned with flooding across the border. That is one of the major concerns of the original treaty—that a state would take action on its side of the border that would cause flooding on the other side. One of the purposes of the treaty was to ensure that such actions that would cause flooding would not take place unless both the country where the project took place agreed with the project and the International Joint Commission, the binational commission, agreed.

So there are elements in proposed section 11 that deal with raising the level on the other side. You are correct. If one would create in boundary waters—let's say, the international section of the St. Lawrence—a blockage on the Canadian side that would cause the water to flow at higher levels on to the United States' part and raise the level at the shore on the U.S. side of the St. Lawrence, that would raise the level on the U.S. side of the boundary water and would require a licence.

Now that is not a bulk removal, but that's an action within the boundary waters that would increase the level on the other side and therefore would require a licence.

Also, if I may look at proposed section 12, that deals with rivers flowing partly into Canada. So if a river coming from the States flowed into Canada and we would put a dam or a blockage in that Canadian portion of the river so that the river would back up, it would create an increase on the U.S. side and may cause flooding—that also requires a licence. The Canadian government would have to approve that, but the International Joint Commission would also have to approve it, and usually it's with conditions. If the level goes too high, the conditions would likely say it's not allowed, or else it may be prohibited altogether.

Mr. John Cooper: Mr. Chair, if I could just follow up on the question of drainage basins, Mr. Jamie Dunn this morning raised the issue of the Pacific and the Atlantic drainage basins extending essentially the length of the western hemisphere, and that under our strategy removals would be allowed to occur from, for example, B.C. down to California, or what have you. I think it's important to point out that our approach is an environmental one, and what sets aside the Atlantic and the Pacific drainage basins is that water flows to the Atlantic and the Pacific.

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That having been said, the ecosystems and the very nature of the ecosystems within the entire Atlantic seaboard or the Pacific seaboard are very, very different as you go from north to south. The water that flows from a B.C. coastal stream has local and regional influences, which have impacts on the estuarian and coastal system within that geographical scope. So our approach is not to say that removal should occur anywhere within the Atlantic or Pacific drainage basin.

You also have to look at those basins and recognize that, like all other basins, they're subdivided into smaller basins. In the case of B.C., we have at least nine distinct subbasins of the Pacific drainage basin just within the province—the Fraser, the Columbia, the Nechako, the Yukon, a number of them. Our starting approach for the accord was to say, let's look at the five drainage basins, and provinces would decide what is the appropriate level of drainage basin to deal with in their jurisdictions to meet their water management needs, because there are needs to move water between subbasins, small-scale basins, for hydroelectric and irrigation purposes. It was not our intention to stop that or to suggest that be stopped, but, in terms of the larger subbasins, then it might make sense.

A last point, which I mentioned before, is that our authority only extends within our borders. The prohibition on removal from, for example, the Atlantic portion of a particular province is the extent of that province's jurisdiction. So the water would not be able to move right down the Atlantic seaboard or, in a similar situation, along the Pacific seaboard.

The Chair: Thank you.

[Translation]

Ms. Lalonde.

Ms. Francine Lalonde: Section 11, which is somewhat surprising, says the following:

11.(1) Except in accordance with a licence, no person shall

do that which the treaty prohibits. When you read the Boundary Waters Treaty, you discover that that which the act seeks to prohibit is prohibited. And section 11 provides that no person shall do that which is prohibited, except with a licence. Is that not a strange way to do things?

[English]

Mr. Jason Reiskind: Well, in some ways I think it parallels the language of the treaty itself.

[Translation]

Ms. Francine Lalonde: Yes, but according to the treaty, the International Joint Commission is responsible for deciding whether or not something may be authorized.

[English]

Mr. Jason Reiskind: In the treaty itself, it has the general approach that there be no new projects in article III that affect the levels and flows in the United States. I quote here:

...no further or other uses...whether temporary or permanent...on either side of the line, affecting the natural level or flow of boundary waters on the other side of the line, shall be made...

So there's the general prohibition, as you see also in proposed section 11, but then you go on:

...except by the authority of the United States or...Canada within their...jurisdictions and with the approval...of the International Joint Commission”.

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So you have the general prohibition unless the Canadian government and the International Joint Commission agree—a double-barrelled agreement—to get around that prohibition in the treaty.

So if you look at proposed section 11, we use similar wording:

...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.

There you have the general no, and then it's similar to the treaty, except in accordance with a license.

Now, the government would plan to... The Canadian government has the authority to say yes or no to a licence under the treaty. But if it says yes, an approval of the International Joint Commission is also required by the treaty. And the government would plan to only issue a license when there is the approval of the International Joint Commission.

But we use this more general language to cover some other situations as well. There is a possibility that a project can go ahead without the approval of the International Joint Commission, where both the Canadian and American governments agree. That is also provided in the treaty in the second part of article III.

[Translation]

Ms. Francine Lalonde: It is in part 4, in the first three lines.

[English]

Mr. Jason Reiskind: There is a provision if both parties... Oh, here it is at the beginning of article III. Pardon me, I was talking about the second paragraph—in addition to the uses to the projects that are already provided for or hereafter provided for “by special agreement between the Parties”. That means that if Canada and the U.S. together agree that a project can go ahead by special agreement, then it doesn't have to be submitted to the International Joint Commission.

Well, proposed section 11 is formulated to cover the case I just mentioned as well as the instances where you need the approval of the Government of Canada and the International Joint Commission. So let's say there is a special agreement for a project between Canada and the United States. Then the Canadian government can issue a license under proposed section 11 based on that agreement, even though it hasn't been submitted to the International Joint Commission. So proposed section 11 is formulated to cover both those cases.

[Translation]

Ms. Francine Lalonde: You have just opened a door on something I had not seen. That means that through an agreement, the United States and Canada could agree to export bulk water to the United States over the objections of Ontario or Quebec and in keeping with the international agreement. That is what you just said.

Suppose there was a different government in office and a drought in the United States for the last couple of years.

Mr. Frank Ruddock: Section 13 clearly provides that bulk water removal is prohibited. Sections 11 and 12 deal with licences for projects authorized under articles III and IV of the treaty. Section 13 does not deal with licences. The object of the act is to prohibit bulk water removal on the one hand, and on the other, to formalize the government of Canada's approval of projects permitted under articles III and IV of the treaty. In my view, it would be illogical for sections 11 and 12 to approve that which is prohibited by section 13, namely bulk water removal.

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Section 13 absolutely prevents bulk removal of water from its basin. But articles III and IV allow for small-scale removal, not bulk removal, but other forms of removal. Section 11 provides for licences for small-scale removal, so to speak.

The Chair: If you are telling me that articles III and IV allow for bulk water removal, then we have a bulky problem.

[English]

Mr. Frank Ruddock: Proposed section 13 takes in part of that.

The Chair: Let me try it in English.

If proposed section 13 prohibits the removal of water from boundary waters, then articles III and IV, as I understand it, permit minor diversions of some kind. And proposed section 11 covers that, but it doesn't permit massive diversions, if we can use that term.

Mr. Frank Ruddock: If you'll allow me, Mr. Chairman, I think proposed sections 11 and 12 simply do not cover massive bulk water removals out of the drainage basin. They cover things like dams—for instance, a dam across a boundary water—barrages, dikes, which would affect the level of flow, and essentially any movement of water within the basin. They have simply nothing to do with removals out of the basin. Of the 60 projects that have been approved, none of them have had to do with removals out of the basin.

It seems to me that it would turn on its head the sense of these amendments to say that in proposed section 13 we are prohibiting bulk water removal, and here are the exceptions—ballast water, humanitarian concerns—and then in another section overturn it. To me it turns it on its head in a way that is clearly not intended. These are the sorts of projects, the ones we would require permits for, as I said, that have been the subject of IJC and Canadian government approval for many years.

Perhaps I can mention one other aspect, and that is the double-barrelled approval there. The IJC is independent. If one wishes to doubt my word on this, read the IJC report on the protection of the waters of the Great Lakes. I don't think it's conceivable that the IJC, under articles III and IV, would ever approve of such a project, because in the report they recommended against it.

The Chair: Okay.

Excuse me, Madam Lalonde, for one moment.

Proposed sections 11 and 12 cover things like building dams and things like that, but they wouldn't permit building a dam that would funnel off a lot of water for agricultural purposes, then, for which dams are often built. So what you're saying is that a dam used for hydroelectricity, which takes the water, diverts it, and puts it back in would be all right, but a dam that serves for agricultural irrigation, which would mean the removal of a lot of water, would not be.

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Mr. Frank Ruddock: Not out of the basin. I mean, it would depend on where the structure was. The interpretation of the treaty over the years...

For example, since domestic and sanitary use is not covered, the city of Toronto sucks in millions of gallons a day and puts millions of gallons back, and that's not covered. The hydroelectric barrage just above Niagara Falls diverts water out of the Niagara River into a turbine and then back in below. That project was covered by the IJC and the Canadian government.

So that's the sort of diversion of water it has covered. It would not cover something that diverted it right out of the water basin.

The Chair: I understand. Fine. Thank you.

[Translation]

Excuse me, Ms. Lalonde, and thank you for that question. I think we have understood something.

Ms. Francine Lalonde: I am not sure about that, because when you go back to the treaty... The act implements the treaty, and under that treaty, the parties can agree to do other than that which the treaty itself provides. That is in articles III and IV of the treaty.

My question about provincial jurisdiction and Canada's international capacity remains unanswered. Take Ontario; that is easier. Ontario might not want to export, and under the treaty, Canada could do it anyway. That is what you said. Canada applies the international treaty.

I have another question. The International Joint Commission made recommendations in February. When you read what it recommends, not to the federal government, but to the states and provinces, with respect to removal, it says that the provinces and states should not accept water removal proposals and should make sure there is no practical alternatives to such removal:

full consideration has been given to the potential cumulative impacts of the proposed removal, taking into account the possibility of similar proposals in the foreseeable future,

To the layperson, this provision seems to suggest that the repeated use of a tanker to remove water and take it elsewhere, although that would not necessarily lower the water level on the other side of the border or in the St. Lawrence River, which might also give us cause for concern, could lead to a drop in the water level.

The commission then goes on to say that the provinces and states must make sure that:

effective conservation practices will be implemented in the place to which the water would be sent,

sound planning practices will be applied with respect to the proposed removal, and,

There is no net loss [...] protects the quality [...]

The reason I am emphasizing this is that with those recommendations, under their general water management jurisdiction, the provinces may impose requirements on those who advocate such things. So what we see in the federal legislation, except where there is a licence, is just prohibition from doing what is forbidden under the treaty.

So I am not just being stubborn; it seems to me that when the minister responds as he did during Question Period and as Mr. Paradis did this morning on the radio to people who have concerns about what the Newfoundland premier is trying to do, by saying that Bill C-6 is the response... Bill C-6 has nothing to do with fresh water removal in Newfoundland. It has nothing to do with that. Besides, if the provinces got together, they could cover everything, including water quality.

So what good does it do to create a new system that is incapable of managing provincial waters? Because this is a new system, a new institution. Tell us clearly why. I still do not know, despite everything you have said, why this bill is being brought forward.

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Mr. Frank Ruddock: First of all, I would remind you that each of the recommendations of the International Joint Commission, although they were directed at all levels of government in Canada and the United States, began with the phrase—I am going to say it in English—

[English]

Without prejudice to the authority of the federal governments of the United States and Canada...

[Translation]

Moreover, the first recommendation concerning bulk water removals ended this way:

[English]

Nothing in this recommendation alters rights or obligations under the Boundary Waters Treaty.

[Translation]

We recognize that, where the Great Lakes are concerned, the eight American states as well as Ontario and Quebec have a very important role to play, but it is a role within their jurisdiction. The rights and obligations under the treaty apply only to the federal government. That is a fact of constitutional law, international law and the treaty. Therefore, only the federal government can meet this obligation. All that we are doing is to ensure that we can protect the water under federal jurisdiction.

The Chair: If I may add a short comment to what Ms. Lalonde has said, what we find a bit confusing is that there was already a system in place to protect against bulk water removals; we had the IJC and also the treaty. What does this legislation add to the system? That is Ms. Lalonde's question. She was saying that there was already protection under the treaty and in the system backing the treaty. What does this legislation add to the system? How will it perfect the system, if you like, Mr. Ruddock?

[English]

Mr. Frank Ruddock: Part of this legal part, I think, is political in a larger sense. For many decades successive Canadian governments of different political stripe have all said they are against bulk water removal at the federal level. The question then that's been raised frequently amongst the public is “What if somebody came forward and decided to do it? How would you give effect to your opposition?” They always pointed to the fact that there was nothing anywhere, nothing in legislation, that explicitly said it couldn't be done. That's not to mention that there was nothing explicitly in legislation that said that the government had the means to stop it—sanctions, injunctions, things like that. The same situation existed—with the exception of the two provinces I mentioned, Alberta and B.C.—at the provincial level.

You could have argued, I suppose, that the treaty as it existed and the International Joint Commission could have given us the means to do so. But after examining the situation at some length, it was our feeling that an act that was clearer on the issue of prohibition, clearer on the power that the federal government in boundary waters could in fact stop such a project, was necessary in order to give that long-standing policy of Canadian governments clear, legal effect. And that's why we did it.

I would point out that every single other provincial jurisdiction has done the same thing. Ontario, Quebec, Manitoba—none of them has had legislation or regulations. They've all put it into effect too, and essentially for the same reason—namely, to make certain there is a clear effect. We're just doing what we asked them to do, and they agreed.

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The Chair: So really, proposed section 13 is the absolute key.

Mr. Frank Ruddock: Yes.

The Chair: The rest deals with problems that might arise around it, but basically this section is the key to the whole thing.

Mr. Frank Ruddock: Yes, although I might make a slight correction, Mr. Chairman. Proposed sections 11 and 12 are not other things “around it”. In the process of amending the act, we recognize that a similar clarity and transparency probably would be advisable on the issue of federal government approval of projects under articles III and IV. As we've stated, however, the licensing system has simply nothing to do with bulk water removal. It's an entirely separate issue.

The Chair: Thank you. I think that helps, perhaps.

Mr. Paradis.

[Translation]

Mr. Denis Paradis (Brome—Missisquoi, Lib.): I will be brief, Mr. Chairman. To begin with, I too would like to bring up the point that you were mentioning earlier in asking what this legislation adds. The current International Boundary Waters Treaty Act contains nine sections. What is being done here, in fact, is to add sections 10, 11 and so on of which the main one, as you mentioned, deals with prohibiting water removals. That is all that we are talking about concerning measures to prohibit bulk water removals from boundary waters.

My question, Mr. Chairman, is for Frank. Clause 13 of the bill reads as follows:

13. (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.

So section 11 is being put aside, and I would call your attention to the word "divert" in the clause where it says "... no person shall use or divert." That is the general prohibition. This morning, Mr. Dunn from the Council of Canadians was a bit confused, in saying that section 11, which deals with licensing, would allow for bulk water removals. It came up again in the House this afternoon in a question asked by the Canadian Alliance. There is a misunderstanding somewhere. In fact, as you mentioned earlier, that is not the thrust of section 11. Section 11 deals with licences, which used to be granted by letter. It would be stated that everyone agreed to allow certain work to go ahead, for example, a dam on a waterway.

But the word “divert” is used twice. I do not want us to go into great detail on the wording, since we will be doing clause-by-clause consideration at a later meeting, but it is the word “divert” that is used twice. You made a distinction earlier between how the word “divert” was used in clause 13, which deals with the general prohibition, and how it is used in clause 11, which deals with the possibility of having a licence. I am not sure, but that may be the source of the confusion. Clause 13 talks about diverting water and so does clause 11, which deals with licensing, as I just said, but still uses the word “divert”. I would like to hear your comments on this.

Mr. Frank Ruddock: Thank you, Mr. Paradis. I believe that it is clear, when we look at clause 13, that when we are talking about diverting boundary waters outside the basin, that the diversion is to somewhere outside the basin, as specified in the bill and in the regulations, whereas the project approved since 1901 under articles III and IV of the treaty, and which are covered by clauses 11 and 12 of the bill, involve diversions within the basin. As I have said, these diversions were usually created by dams or other works that affected the rate of flow or water levels. So, as you can certainly see, these are two quite different things.

• 1645

Mr. Denis Paradis: In your opinion, would it be possible to use another word other than “divert” in clause 11, or to make sure that people realize when they are reading the bill that these are two different things? The word “divert” in clause 13 was what our friends this morning, Mr. Dunn of the Council of Canadians, were talking about.

That was their argument to some extent, and we have now had questions twice in the House from MPs who are saying that we are going to grant licences for water removals.

I wonder if that is something that we could think about. Maybe we will do that when we get to clause-by-clause consideration.

Ms. Francine Lalonde: The word “use” encompasses everything, does it not?

Mr. Denis Paradis: In any case, it may have been the word “divert” that was being used in two different clauses. I mention that in passing.

Mr. Frank Ruddock: I believe that the context is quite clear, since if the word “divert” was used out of context, I might be able to understand the confusion, but the context is very clear, both to me and in keeping with the wording in the bill. In clause 13, “divert” means “bulk removal” from a water basin, whereas the word “divert” has been interpreted over the past 92 years under the treaty to mean a diversion, as I have already said, for a hydroelectric project—

Mr. Denis Paradis: ... minor, within the water basin.

Mr. Frank Ruddock: Yes. It seems to me that this is clear within the context of the bill as well as under the treaty and in the actions of the International Joint Commission since it was created in 1912.

Mr. Denis Paradis: That is all, Mr. Chairman.

The Chair: Thank you.

[English]

Mr. Harvard.

Mr. John Harvard (Charleswood St. James—Assiniboia, Lib.): Thanks, Mr. Chairman.

I think these briefings have been helpful, at least from the point of view that the talk about bulk removal of boundary waters has stirred up a lot of emotions in this country, and perhaps we needed this kind of bill to address those emotions—even though the bill may not be a dramatic new tool. But it has perhaps given the government an opportunity to restate its position on the bulk removal of boundary waters.

But of course we're only talking about boundary waters here, which represent only a small portion of all the fresh water we have in the country.

Mr. Chairman, I thought the other day we were talking about asking someone whether, if a province chose to take water from its own bodies of water and sell it in bulk outside of its own jurisdiction, there was some legal way for the federal government to put a stop to that, through law, order, good government, or whatever was available under the Constitution. Was that question answered, Mr. Chairman? Are we going to have it answered?

Let me put this question to you, Mr. Reiskind, because you're a lawyer. We hear all this talk from Premier Grimes, which he reiterated just yesterday. My understanding is that Newfoundland already has a law in place that would prevent that kind of bulk removal of its water. But let's suppose the premier and his government chose to put an end to that provincial statute, and chose to sell bulk water to some foreign land. If the federal government wanted to put a stop to that, what legal means are at its disposal? If we wanted to stop it, do we have some tool?

I know this is a hypothetical question, and I know that politicians and bureaucrats don't like to answer hypothetical questions, but we may have to cross that bridge some day, so I think it's fair to ask, is there anything in the federal arsenal to put a stop to that, if it ever occurs? I think it's a pretty simple question, though I don't know whether the answer is simple.

• 1650

Mr. Jason Reiskind: I recall the chairman saying in the previous session that the discussions of this committee related only to the Boundary Waters Treaty and the Boundary Waters Treaty Act, since that is the general ambit of the proposed legislation.

The Chair: I don't say Mr. Harvard's question is out of order, but it doesn't actually relate to this bill. We all understand what the bill is, but we are wondering if any of the witnesses could help us in terms of jurisdiction. To be fair to Mr. Harvard, what you told us when you introduced the bill was that this is a joint effort by the federal and provincial governments, and since they own the resource, we've brought them on board. But now we've got a provincial government saying they might want to sell the resource. So we're just asking, is there any constitutional authority to address that? If you're not in a position to answer at this point, because you haven't looked at the question, I appreciate that—it's not in the ambit of the bill. But if you could answer, it might be helpful.

Mr. Frank Ruddock: We have to recognize that we're implementing a policy decided and announced by the government. When the government decided on its policy in February 1999, it looked at a number of things. In your legislative binders, for example, there's a Q and A—number 12, I believe—that specifically addresses the Export and Import Permits Act. That example is under the commerce head of power, and it asks if we considered using that. The answer is yes, we did. But the government rejected it, for the reasons outlined in the Q and A.

Mr. John Harvard: If I may interject, that has to do with boundary waters, but it has nothing to do with water solely in provincial jurisdiction. Am I right?

Mr. Frank Ruddock: No, no, it doesn't. In fact, if you were to contemplate using the Export and Import Permits Act, that could apply to anything, any water that has been turned into a good. The strategy announced by the government in 1999 was to work cooperatively with the provinces, and that's what we're continuing to do.

I can understand the speculation on what Newfoundland has said it would like to reconsider. But as we said, there has been significant progress, and I think we have a far stronger structure today than we did a few years ago. We have many laws in place in many jurisdictions, and at the end of the day I think that having these laws is better than not having them. My minister and others have certainly urged Newfoundland, in question period in the House, to keep its law in place.

You did say, Mr. Harvard, that we hate to answer hypothetical questions. I suppose I'm following true to your prediction in that regard.

The Chair: Very effectively, if I may say so.

Mr. Frank Ruddock: But that's certainly what the strategy of working with the provinces was intended to do, and that's what we're continuing to do.

The Chair: Thank you very much.

Mr. Harvard.

Mr. John Harvard: If the strategy is based on cooperation, and the cooperation is there, then of course it will work. But what happens if the cooperation falls apart? Would we then have the tools to stop the bulk removal of water?

But I think you've answered as well as you can, and I appreciate that. Thank you.

• 1655

The Chair: Colleagues, I think that's it.

Before the witnesses go, I apologize for coming in late, Mr. Ruddock, but after this morning's hearing I questioned you about Mr. Dunn's legal opinion he shared with the committee—and he's going to send the full legal opinion to us—and I asked you afterwards whether the government had a response to that opinion. You informed me that the response was contained at tab I in our materials. I wonder if the other members got that information. I think probably they'll be interested to know that.

Mr. Frank Ruddock: Yes. Before you arrived we distributed it in French and English. This was the paper prepared by the government in November 1999 and it was updated when this legislation was reintroduced. It addresses all of the issues that were discussed this morning by all of the witnesses on trade policy, essentially divided into the issues of water—is it good—the precedent issue in chapter 11. It's what I would refer to as a plain-language paper—i.e., it is not a formal legal opinion, but is based on the legal opinions that have been prepared within government but written in such a way as we hope to be understandable to everybody. Legal opinions sometimes are a little dense.

The Chair: Perhaps they're designed not to be too understandable. You can't charge a lot of money for something that's easily understandable, Mr. Ruddock. But we won't get into that.

Mr. Cooper, you have the last word—and as the environmentalist, you should have the last word.

Mr. John Cooper: Actually this is following on John Harvard's question and in reference to cooperation, because it is so important.

One of the witnesses this morning, Laura Dawson, raised the issue that bulk removal is just part of the microcosm of water issues facing this country today. If we're going to make progress in adjusting these issues, drinking water and sourcewater protection, then it will have to be based on cooperation recognizing provinces have primary jurisdiction for water.

To follow that up, the ministers of environment from across the country did meet at the beginning of this month and did agree to collaborate on adjusting water issues in a collaborative manner. I think this is the best approach when dealing with this issue and a number of other water issues.

Thank you, Mr. Chair.

The Chair: Just on that issue of the environment, maybe one thing puzzled me, because it was said, and I know it was outside the ambit of the bill—we're going back to the Newfoundland example again—it wouldn't matter if some millions of gallons were removed as they were running down into the sea because this was never going to come back anyway.

If I understood your testimony the other day, it was that even fresh water running into the sea affects the nature of the seabed around it, the aquatic water system, the fish that live there, the plants that are there. So if you were to take a large quantity of water out of a riverbed going into the sea, you might say, well, it was going to go away anyway. But you can't say that you wouldn't be not affecting the ecosystem at the mouth of the riverbed. Is that a correct understanding on my part of what you were telling us?

Mr. John Cooper: Yes, Mr. Chair. Certainly we can look upon water as serving solely human needs for drinking water, but actually the water that enters the ocean provides the richest coastal nesting systems and supports fisheries and biodiversity because it brings nutrients like nitrogen. The ocean is very poor in nitrogen, and nitrogen is essential for phytoplankton, zooplankton, and feeding the food chain. What we see is the Grand Banks, the Gulf of the St. Lawrence, and the Fraser River, where you have these large outflows of fresh water, which are also correlated with the best fisheries and biodiversity situations that we have, including the salmon. It's essential for a number of reasons—physical, chemical, ice floe conditions. We can't look upon water going to the ocean as being wasted.

The Chair: So just going back to Mr. Harvard's question about federal jurisdiction, if I could take your point one step further, if you could show that removal of a serious amount of water going into the ocean was going to affect the adjacent fisheries, then presumably there would be a federal government interest in the issue that would somehow bring the fisheries department into it in one way or another.

• 1700

Mr. John Cooper: Certainly, in terms of the Fisheries Act, the Navigable Waters Protection Act, and the Canadian Environmental Assessment Act, all would have a bearing on a bulk removal project of sufficient size. I suggest something of the scale of the La Grande diversion from Hudson Bay into the Great Lakes and south into the U.S. NAWAPA would be effective in preventing such projects.

Our approach here is to gain recognition for the fact that it's not only a single project of bulk removal, where you may be able to mitigate the impacts on fisheries, but it's the cumulative effects of these types of projects that can have a significant impact. And it's not a sustainable practice, because communities and ecosystems do depend on a sustainable supply of water in the watershed.

We're experiencing low levels in the Great Lakes again. The port of Montreal has hit record lows, and we have to be very careful about every project that takes water out of its natural basin.

The Chair: That's great, thank you. It's very helpful.

[Translation]

Ms. Lalonde, did you have a short question?

Ms. Francine Lalonde: There is an unrelated question that I have raised several times, but I have never had an answer. I will ask it very directly.

The fact that you wanted to take responsibility for granting licences certainly means additional costs and hiring additional staff. That is a completely different mechanism from what exists right now, since licensing currently comes mainly under the International Joint Commission and the provinces.

Could you give me an estimate of how much this will cost?

Mr. Frank Ruddock: There will be no additional costs. As we have mentioned, we have had 60 projects over the past 92 years. So this is clearly not an administrative burden. We are talking about less than one licence a year.

Second, when the government submits a project to the International Joint Commission under article III or IV, we obviously expect this independent commission to do its work. The government always waits for the decision from the International Joint Commission before giving its approval. We wait until the IJC has done its work. The licence that is granted takes into account the IJC decision. So there are no additional costs. We are not adding an additional stage to the project approval process. So there's no increase in the administrative burden and no extra staff. As I have said, 60 licences over 92 years does not amount to a lot of administrative work. So we are not expecting that this will create any additional burden.

Ms. Francine Lalonde: I understand even less why we need this bill. It is not so that you can put your signature at the bottom of documents based on approvals from the International Joint Commission.

[English]

Mr. Frank Ruddock: Mr. Chairman, Mr. Reiskind can address this issue, too.

[Translation]

Ms. Francine Lalonde: Thank you, Mr. Ruddock.

• 1705

[English]

Mr. Jason Reiskind: One main theme of the bill is to give a voice to and support for the government's approach of prohibiting bulk removal outside the water basin. The other is to make sure there's an effective implementation of the treaty and the act. For example, I read again from Water Law in Canada by Gérard La Forest, his comments on the existing act, in existence in 1914. Here he's talking about the International Boundary Waters Treaty Act:

The manner in which the Dominion Act of 1914 and its successors have implemented the treaty, however, gives rise to difficult problems. They fail to provide regulation-making powers, penalties and administrative machinery for its enforcement.

Partly because of the generality of the act, it is important to provide for those specific penalties, the specific enforcement and administrative measures. This is another thrust of Bill C-6. It ensures that decisions by the International Joint Commission cannot be ignored by a project's proponents. We will have a clear method, without question, of ensuring implementation of the International Joint Commission's decisions.

[Translation]

Ms. Francine Lalonde: Without it costing a penny more? All right.

[English]

The Chair: Thank you both. Thank you very much for coming back a second time. You've been very helpful.

We have two more hearings, because we have a great many witnesses who would like to speak to the bill. We have a hearing on Thursday and then one on Tuesday morning. Tuesday afternoon we'll go to clause-by-clause study.

Colleagues, it's obviously a short bill. We wouldn't take a long time in clause-by-clause. I don't know how long, but it's not exactly a huge project from this point of view. It's not what we would call a bulk bill. It's a small bill to deal with the bulk problem.

[Translation]

Ms. Francine Lalonde: Will we also be studying the regulations?

The Chair: Yes, the regulations are there.

[English]

Colleagues, we're adjourned until Thursday morning at nine o'clock.