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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 its worth

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 Diversions" position.

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 of Canada.

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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