A version of the following article appeared in the Hill Times
The Commons Report: Threats to export Canadian water
New House Environment Committee under Chair Alan Tonks has proved
By Elizabeth May
March 28, 2005
The Global Commons are our atmosphere and oceans, fresh water and
clean air. Of all the "hot button" issues on the Canadian
environmental scene, none provokes the immediate passion of threats
to export Canadian water. From former MP Ian Waddell's book, A Thirst
to Die For, to the CBC drama thriller with Paul Gross, H2O, water
issues are hot.
The real life drama of threats to Canada's water are now being
played out through negotiations between the eight Great Lakes governors
and the premiers of Ontario and Quebec. A proposal to permit diversions
of Great Lakes water out of the basin, with the underlying principle
that users in the basin and outside the basin must be treated the
same way, was unveiled in July 2004 with a three-month consultation
period. The Great Lakes Annex had its impetus in the bizarre episode
of the Nova Corporation and its efforts under the Ontario government
of Mike Harris to export tanker loads of water. The Harris government
gave Nova the permit, without an environmental assessment, not to
mention there was no feasibility study, no customer and nothing
but a pipe dream to get rich quick. Public outcry forced the government
to cancel the permit. The episode sent shock waves through the Great
Lakes Basin with all jurisdictions wondering: have we got the proper
laws in place to stop diversions?
Ontario moved to pass laws to prevent any such water takings. In
fact, Ontario now has the best and most rigorous system in the Great
Lakes Basin to protect its water. In the wake of Nova, the Council
of Great Lakes Governors sought a legal opinion about the jurisdictional
hurdles and U.S. Constitution's commerce clause and trade obstacles
to banning diversions. In a perverse and inaccurate legal opinion,
one law firm set out a series of tests to prevent diversions. In
effect, the legal opinion argued that water was already a commodity
in trade and the only way to restrict diversions was to permit them.
That reasoning led to the draft Annex released in July 2004.
Meanwhile, the whole process ignored the 1909 Boundary Waters Treaty
and the traditional role of the International Joint Commission.
It also ignored existing U.S. law and the Water Resources Development
Act and its ban on Great Lakes diversions, failing a unanimous vote
of Great Lakes governors.
The whole issue appeared to be moving under the radar screens of
the federal government, and received little media comment. But fortunately
not everyone was dozing through the threat. Joe Comartin, NDP critic
for the Great Lakes, raised the issue to the House Environment Committee.
Full party support followed to allow the issue of the Great Lakes
and the threat posed by the Annex to be one of the first issues
taken up by the Environment Committee in the new session. As witness
after witness testified to the threat, public consultations sessions
were also held provincially by the Ontario Ministry of Natural Resources.
It would be stirring and dramatic to say that our governments were
conspiring to sell our water, but in reality, all of the governments
involved, including the Great Lakes states, were trying to figure
out how to protect the Great Lakes from diversions. In the middle
of the Parliamentary hearings in mid-November, the Ontario Minister
of Natural Resources James Ramsay reversed Ontario's position (developed
in the previous provincial government). The House of Commons Committee
applied itself to the task and issued a strong set of recommendations.
The committee not only urged a ban on diversions, but also advocated
more funding for fresh water science, a significant assessment of
the threat to climate change in any Great Lakes planning and the
use of the precautionary principle. By January, the Department of
Foreign Affairs also issued a strong rebuke to the draft Annex,
pointing out it could undermine the Boundary Waters Treaty and putting
the federal government firmly on the side of the "Say No to
At this writing, the protracted negotiations between provincial
and state governments in the Great Lakes Basin are nearing a new,
significantly revised draft, to be released in late April or early
May. Another 60-day comment period will be launched. Every indication
is that the new draft will reflect the strong anti-diversion positions
of the governments of Ontario, Quebec and the federal government
Not much of this made it to the daily news. It really should. I
have never been so impressed with a government's ability to listen,
reflect and shift gears as I have been with the Ontario government
on this issue. The federal government of Canada has been very strong
in pressing for a "no diversions" position. Canadian and
U.S. environmental groups, once split on the issue out of concerns
for the legal issues on the U.S. side of the border, are now united
in opposing anything but a strong agreement to prohibit diversions.
It does not happen very often, but every now and again, a government
consultation process is actually an opportunity to change government
policy. It is too early to pop champagne corks, but watch and wait
for the new draft. In the meantime, the new House Environment Committee
under Chair Alan Tonks has proved its worth.
Elizabeth May is executive director of Sierra Club of Canada.
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