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This document was prepared by the staff of the Parliamentary
Research Branch to provide Canadian Parliamentarians with plain language background and
analysis of proposed government legislation. Legislative summaries are not government
documents. They have no official legal status and do not constitute legal advice or
opinion. Please note, the Legislative Summary describes the bill as of the date shown at
the beginning of the document. For the latest published version of the bill, please
consult the parliamentary internet site at www.parl.gc.ca.
LS-383E
BILL C-6: AN ACT TO AMEND THE
INTERNATIONAL
BOUNDARY WATERS TREATY ACT
Prepared by:
David Johansen
Law and Government Division
12 February 2001
Revised 1 June 2001
LEGISLATIVE HISTORY OF
BILL C-6
HOUSE
OF COMMONS |
SENATE |
Bill
Stage |
Date |
Bill
Stage |
Date |
First Reading: |
5
February 2001 |
First Reading: |
3 October 2001 |
Second Reading: |
8 May
2001 |
Second Reading: |
|
Committee Report: |
30 May
2001 |
Committee Report: |
|
Report Stage: |
4 June 2001 |
Report Stage: |
|
Third Reading: |
2 October 2001 |
Third Reading: |
|
Royal Assent:
Statutes of Canada
N.B. Any substantive changes in this Legislative Summary which have
been made since the preceding issue are indicated in bold print.
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TABLE OF CONTENTS
BACKGROUND
DESCRIPTION AND ANALYSIS
A. Background
B. Definitions
C. Licences
D. Prohibition on Removal of Boundary Waters
E. General
F. Powers of the Minister of Foreign Affairs
G. Regulations
H. Aboriginal and Treaty Rights
I. Offences and Punishment
J. Injunctions
K. Coming into Force
COMMENTARY
BILL C-6: AN ACT TO AMEND THE
INTERNATIONAL
BOUNDARY WATERS TREATY ACT
BACKGROUND
On 5 February 2001, Bill C-6, an Act to
amend the International Boundary Waters Treaty Act, was introduced in the House of Commons
on behalf of the Minister of Foreign Affairs, the Hon. John Manley.(1) The bill would provide for a clearer Act and more effective
implementation of the 1909 Treaty relating to Boundary Waters and Questions arising
along the Boundary between Canada and the United States (commonly referred to as the Boundary
Waters Treaty) by: a) prohibiting the bulk removal of boundary waters from the
water basins in which they are located; b) requiring persons to obtain licences from the
Minister of Foreign Affairs for water-related projects in boundary or transboundary waters
that would affect the natural level or flow of waters on the United States side of the
border; and c) providing clear sanctions and penalties for violation. The
prohibition on boundary water removals would apply principally to the Great Lakes but
would also affect other boundary waters, such as part of the St. Lawrence River, the St.
Croix and Upper St. John Rivers, and the Lake of the Woods.
The amendments to the International
Boundary Waters Treaty Act proposed in Bill C-6 are part of a larger three-pronged
strategy announced by the federal government on 10 February 1999 to prohibit
bulk water removals, including those for export, from all Canadian water
basins. The provinces have primary responsibility for the management of water
resources; however, the Boundary Waters Treaty gives the federal government clear
jurisdiction over boundary waters to the extent stipulated in the Treaty.
Pursuant to section 132 of the Constitution Act, 1867, only the federal government
has the authority to fulfil the Treatys obligations with respect to boundary waters.
In addition to proposing amendments to the
International Boundary Waters Treaty Act and thereby prohibiting bulk water removal
from Canadian boundary waters, including the Great Lakes, the federal strategy also
announced that there would be a joint reference, with the United States, to the
International Joint Commission (IJC) to study the effects of water consumption, diversion
and removal (including for export) from boundary waters, with an initial emphasis on the
Great Lakes. The IJCs final report Protection of the Waters of the Great
Lakes, (February 2000) concluded that the Great Lakes require protection, especially
in light of the uncertainties, pressures and cumulative impacts from removals,
consumption, population and economic growth, and climate change.
Among other things, the report concluded
that:
the waters of the Great Lakes are
a critical resource; on average, less than one percent of the waters of the Great Lakes is
renewed annually.
If all the interests in the [Great
Lakes] Basin are considered, there is never a surplus of water
every drop
of water has several potential uses
International trade law
obligations including the FTA, NAFTA, WTO and GATT do not prevent Canada and
the U.S. from taking measures to protect their water resources and preserve the integrity
of the Great Lakes Basin ecosystem
so long as there is no discrimination by
decision makers against persons from other countries in their application
Canada
and the U.S. cannot be compelled by trade laws to endanger the waters of the Great
Lakes
Recommendations for action to protect the
ecological integrity of the Great Lakes Basin were directed by the IJC to all levels of
government in Canada and the U.S., and provided a basis for developing a consistent
approach to protecting the waters of the Great Lakes on both sides of the border.
These recommendations, if implemented, would effectively prevent large-scale or
long-distance removals of water from the Great Lakes.
According to federal government sources,
the proposed amendments to the International Boundary Waters Treaty Act contained
in Bill C-6 are consistent with and supportive of the IJCs conclusions and
recommendations.
As noted above, water management in Canada
is a shared responsibility. Therefore, as the third part of the federal
governments strategy, the federal Minister of the Environment, the Hon. David
Anderson, sought endorsement by the provinces and territories of a Canada-wide Accord
prohibiting bulk water removals from all major Canadian water basins. According to
federal government sources, as a result of this initiative, all provinces have put into
place or are developing legislation or regulations to accomplish this goal.
Similarly, the territories, in conjunction with the federal Department of Indian Affairs
and Northern Development, are implementing policy measures to achieve this objective.
DESCRIPTION AND ANALYSIS
A. Background
The Boundary Waters Treaty (the
Treaty), signed by Great Britain (on behalf of Canada) and the United States in
1909, established principles and procedures to prevent and resolve disputes, primarily
those concerning the quantity and quality of boundary waters between Canada and the United
States. To help implement its provisions, the Treaty also created the International
Joint Commission (IJC). Through the Treaty, Canada and the U.S. are mutually obliged
to protect natural levels or flows of waters shared by the two countries. With some
exceptions, Article III of the Treaty provides that there shall be no use, obstruction or
diversion of boundary waters on either side of the boundary line affecting the natural
flow on the other side of the line, except by the authority of the United States or Canada
within their respective jurisdictions and with the approval of the IJC.
According to Article IV of the Treaty, the countries agree that, except in cases provided
for by special agreement between them, or unless with the approval of the IJC, they will
not permit, on their respective sides of the boundary, the construction or maintenance of
any remedial or protective works, or any dams or other obstructions, in waters flowing
from boundary waters, or in waters at a lower level than the boundary in rivers flowing
across the boundary, resulting in a rise in the natural level of waters on the other side
of the boundary.
Parliament enacted the International
Boundary Waters Treaty Act in 1911 to implement the Treaty. The Act gives the
federal government jurisdiction over boundary waters, such as the Great Lakes, in order to
fulfil Canadas obligation under the Treaty not to affect unilaterally the level and
flow of waters on the U.S. side of the boundary.
Bill C-6 consists of two clauses.
Clause 1 would add proposed sections 10 to 26 to the Act, while clause 2 concerns the
coming into force of the bill.
B. Definitions
Proposed section 10 would define certain
terms for purposes of proposed sections 11 to 26 of the Act.
The term boundary waters would
mean boundary waters as defined in the Treaty:
For the purposes of this treaty, boundary
waters are defined as the waters from main shore to main shore of the lakes and rivers and
connecting waterways, or the portions thereof, along which the international boundary
between the United States and the Dominion of Canada passes, including all bays, arms, and
inlets thereof, but not including tributary waters which in their natural channels would
flow into such lakes, rivers, and waterways, or waters flowing from such lakes, rivers,
and waterways, or the waters of rivers flowing across the boundary.
For example, boundary waters include the
Lake of the Woods, the Great Lakes, the section of the St. Lawrence River from the outlet
of Lake Ontario to Cornwall, Ontario Massena, New York, the Upper St. John River
(Quebec/New Brunswick) and the St. Croix River (New Brunswick). A river that runs
along the boundary, as opposed to crossing it, is a boundary water (for example, a section
of the St. Lawrence River).
A licence would be a licence
issued under proposed section 16. Minister would mean the Minister
of Foreign Affairs.
C. Licences
The amendments to the International
Boundary Waters Treaty Act proposed in Bill C-6 would formalize a 90-year process
under which the federal government (and the IJC, through its own process) has, under the
terms of the Boundary Waters Treaty, informally examined and approved or
rejected certain projects in boundary or transboundary waters that would have the effect
of altering the natural level or flow of waters on the United States side of the
border. These projects have always required federal approval. The federal
government has in this way met its international obligations under the Treaty. In
light of increasing pressures on freshwater resources, however, the federal government is
now of the view that stronger protections are required and that the licensing arrangements
need to be formalized. Hence, Bill C-6 proposes that these projects would now
require a licence from the Minister of Foreign Affairs (proposed section 16).
Except in accordance with such a licence,
no person would be permitted to use, obstruct or divert any boundary waters in a manner
that affected, or would be likely to affect, the natural level or flow of the boundary
waters on the U.S. side of the international boundary (proposed section 11(1)). This
proposed provision would not apply, however, in respect of the ordinary use of waters for
domestic or sanitary purposes (in accordance with Article III of the Treaty) or the
exceptions specified in the regulations (proposed section 11(2)). Traditional uses,
such as agricultural and industrial withdrawals that remained within the basin, would not
be covered by the licensing system. The above provision would more effectively
implement Article III of the Boundary Waters Treaty.
Also, except in accordance with a licence
issued under proposed section 16, no person would be permitted to construct or maintain
any remedial or protective work or any dam or other obstruction in waters flowing from
boundary waters, or in downstream waters of rivers flowing across the international
boundary, where the effect would, or would be likely to, raise the natural level of waters
on the U.S. side of the international boundary (proposed section 12(1)). The above
would not apply in respect of the exceptions specified in the regulations (proposed
section 12(2)). The provision involves neither water removal nor boundary
waters. It would more effectively implement the first paragraph of Article IV of the
Treaty.
D. Prohibition on Removal
of Boundary Waters
The federal government believes that a
definite prohibition on bulk water removal from boundary waters is necessary to protect
the ecological integrity of these shared basins. Hence, the bill provides that,
notwithstanding proposed section 11, no person would be permitted to remove boundary
waters from the water basin in which they were located (proposed section 13(1)).
For the purposes of the above provision and the application of the Treaty, removing water
from boundary waters and taking it outside its water basin would be deemed, given the
cumulative effect of such removals, as affecting the natural level or flow of the boundary
waters on the U.S. side of the international boundary (proposed section 13(2)). The
above would apply only in respect of the water basins described in the regulations
(proposed section 13(3)). Also, it would not apply in respect of the exceptions
specified in the regulations (proposed section 13(4)); possible exceptions might be
ballast water, water required for short-term humanitarian purposes and water used in the
production of food or beverages.
According to government background
documentation, the above proposed prohibition would recognize that bulk removal of water
out of drainage basins should be managed differently from removal of water for use within
the basin. Bulk removal involves the permanent loss of water from the basin. In view
of the fact that the ecosystems and communities within the basin are dependent on this
supply of water, bulk removal is considered to represent an unsustainable use of the
resource. The government maintains that a prohibition on bulk removal of boundary waters
is also consistent with our international trade obligations as set out in the 1993 Joint
Declaration by the governments of Canada, Mexico and the United States. At the
time, the three countries stated that water in its natural state is not a good or a
product and is not subject to any trade agreement, including the NAFTA.
E. General
The licensing system and prohibition
contained in proposed sections 11 to 13 would be binding on both the federal and
provincial Crowns (proposed section 14).
Proposed sections 11 to 13 would not apply
in respect of uses, obstructions or diversions that were in existence immediately before
these provisions came into force, but would apply in respect of such uses, obstructions or
diversions that were significantly changed after these provisions came into force
(proposed section 15).
F. Powers of the Minister of Foreign Affairs
Subject to the regulations, the Minister
would be empowered to, on application, issue, renew or amend a licence required under the
Act, subject to any terms or conditions the Minister considered appropriate (proposed
section 16). It is expected that the licensing system would be consistent with
existing informal procedures relating to the required approval of water-related projects
in boundary waters.
A licence would not be transferable except
with the consent of the Minister (proposed section 17). The Minister could suspend
or revoke any licence whenever he or she believed on reasonable grounds that the licensee
had contravened the Act or a condition of the licence; however, the Minister would first
have to give the licensee written notice of the reasons for the suspension or revocation
and a reasonable opportunity to provide an explanation (proposed section 18(1)). The
Minister could also suspend or revoke a licence with the consent of, or on application by,
the licensee (proposed section 18(2)).
If a person contravened proposed section
11(1), 12(1) or 13(1), the Minister could either: a) order the person to remove or
alter any obstruction or work to which the contravention related; or b) order the person
to refrain from proceeding with any construction or other work, or to cease the use or
diversion, to which the contravention related (proposed section 19(1)). If the
person failed to comply with such an order, the Minister could remove or alter the
obstruction or work, or anything used in relation to it, or order it to be forfeited to
the federal Crown (proposed section 19(2)). Anything so forfeited could be removed,
destroyed or otherwise disposed of as the Minister directed (proposed section
19(3)). The Ministers cost of removing or altering anything under proposed
section 19(2) and the costs relating to the removal, destruction or disposition of
anything forfeited under proposed section 19(3), less any sum that might be realized from
its disposition, would be recoverable in a court of competent jurisdiction by the federal
Crown from the person who had contravened the order as a debt due to the Crown (proposed
section 19(4)).
According to proposed section 20, the
Minister could, with the approval of the Governor in Council, enter into an agreement or
arrangement with the government of one or more provinces respecting the activities
referred to in proposed sections 11 to 13. The provision would thus enable
co-operative understandings with the provinces in order to reduce duplication and costs in
connection with reviewing projects under the licensing/prohibition scheme.
G. Regulations
The amendments to the International
Boundary Waters Treaty Act proposed in Bill C-6 would provide for the power to make
regulations, something not provided in the current Act. According to proposed
section 21(1), the Governor in Council (Cabinet), on the recommendation of the Minister,
would be given broad powers to make regulations, including regulations specifying what
would constitute a use, obstruction, diversion, or work for purposes of the Act; defining
any word or expression in proposed sections 11 to 26 that is not already defined in the
Act; describing the water basins to which proposed section 13 would apply; specifying
exceptions to the application of proposed sections 11(1), 12(1) and 13(1); prescribing
classes of licences; respecting applications for, and the form of, licences; prescribing
licensing fees; prescribing the duration of licences; respecting the renewal and amendment
of licences; prescribing uses, obstructions, diversions and works for which a licence
could not be issued; and generally for carrying out the purposes and provisions of the
Act.
H.
Aboriginal and Treaty Rights
The House of Commons Standing Committee
on Foreign Affairs and International Trade added a non-derogation clause similar to that
found in a number of other federal statutes. Proposed section 21.1 provides
that nothing in the Act should be construed so as to abrogate or derogate from the
protection provided for existing aboriginal or treaty rights of the aboriginal peoples of
Canada by the recognition and affirmation of those rights in section 35 of the Constitution
Act, 1982.
I. Offences
and Punishment
A person who contravened proposed section
11(1), 12(1) or 13(1) would be guilty of an offence and liable: a) on conviction on
indictment, to a fine not exceeding $1,000,000 or to imprisonment for a term of not more
than three years, or to both; or b) on summary conviction, to a fine not exceeding
$300,000 or to imprisonment for a term of not more than six months, or to both (proposed
section 22(1)). Any such contravention that was continued on more than one day would
be deemed to constitute a separate offence for each day during which the violation was
committed or continued (proposed section 22(2)).
If a person were convicted of an offence
of having contravened proposed section 11(1), 12(1) or 13(1), the convicting court could,
if satisfied that the person had thereby acquired monetary benefits, order the person to
pay a fine (in addition to the fine imposed under proposed section 22) in an amount equal
to those monetary benefits (proposed section 23).
An officer, director, agent or mandatary
of a corporation who directed, authorized assented to, acquiesced in or participated in an
offence committed by the corporation would be a party to and guilty of the offence and
would be liable on conviction to the punishment provided for the offence, regardless of
whether the corporation had been prosecuted (proposed section 24).
In any prosecution of an offence under the
Act, it would be sufficient proof of the offence to establish that it was committed by an
employee, agent or mandatary of the accused, regardless of whether the employee, agent or
mandatary was identified or had been prosecuted for the offence, unless the accused
exercised all due diligence to prevent the commission of the offence (proposed section
25).
J. Injunctions
On application by the Minister, a court of
competent jurisdiction that believed a person had performed, was about to perform, or
would be likely to perform any act or thing constituting, or directed toward the
commission of, an offence under the Act, could issue an injunction ordering the
person: a) to refrain from doing any such act or thing, or b) to do any act or thing
that the court believed might prevent the commission of the offence (proposed section
26(1)). However, no injunction could be issued unless 48 hours notice had been
given to the party or parties named in the application, or unless the urgency of the
situation was such that delay until the notice had been served would not be in the public
interest (proposed section 26(2)).
K. Coming into Force
According to clause 2 of the bill, clause
1 (proposed sections 10 to 26 of the International Boundary Waters Treaty Act), or
any of the proposed sections to be enacted by clause 1, would come into force on a day or
days to be fixed by order of the Governor in Council.
COMMENTARY
(2)
On 23 November 1999, the day after Bill
C-15 (Bill C-6s predecessor) was introduced in the House of Commons, Mr. Bill
Blaikie, M.P. drew the attention of the government to the following motion, which had been
adopted by the House on 9 February 1999:
That, in the opinion of this House, the
government should, in co-operation with the provinces, place an immediate moratorium on
the export of bulk freshwater shipments and inter-basin transfers and should introduce
legislation to prohibit bulk freshwater exports and inter-basin transfers, and should not
be a party to any international agreement that compels us to export freshwater against our
will, in order to assert Canadas sovereign right to protect, preserve and conserve
our freshwater resources for future generations.
Noting that the proposed legislation did
not accurately reflect this motion, Mr. Blaikie asked the government why it was now
abandoning its commitment to a national ban on bulk water exports
. which it
supported only short months ago?
Why are the Liberals in full denial about
the fact that they cannot act the way they said they would act because of NAFTA?
The then Minister of Foreign Affairs, the
Hon. Lloyd Axworthy, responded in part:
the legislation does provide for a
prohibition of bulk removal. What it does not do is follow the recommendation of the
hon. member and some of his party on the west coast, which is to turn this into a trade
issue which would result in a series of trade actions that would totally impede the
capacity of Canada to protect its waters.
The government has specifically addressed
this issue in its background documentation on Bill C-6 and, previously, on Bill
C-15. The government has publicly stated that it agrees that measures need to be
taken to protect the integrity of Canadas water resources but feels that this would
be best achieved by its strategy of prohibiting the bulk water removal from all major
drainage basins in Canada. In the governments view, such a prohibition would
be better than an export ban because it is more comprehensive, environmentally
sound, respects constitutional responsibilities and is consistent with Canadas
international trade obligations
. water is protected in its water basin before the
issue of exporting arises. The government views this as an environmental
protection measure of general application, aimed at preserving the integrity of
ecosystems. It would protect water at its source from bulk removal outside the water
basin by any party, Canadian or foreign. As noted earlier, all jurisdictions
in Canada have put in place or are currently developing legislation or policies to
prohibit bulk water removals out of Canadas major watersheds. In this way,
water is regulated in its natural state, before it becomes a commercial good or a
saleable commodity. The federal government maintains that this is consistent with
Canadas international trade obligations and the statement made by the three NAFTA
countries in 1993 that:
The NAFTA creates no rights to the natural
water resources of any Party to the Agreement. Unless water in any form has entered
into commerce and become a good or a product, it is not covered by the provisions of any
trade agreement, including the NAFTA. And nothing in the NAFTA would oblige any
NAFTA Party to either exploit its water for commercial use, or to begin exporting water in
any form. Water in its natural state in lakes, river, reservoirs, aquifers,
waterbasins and the like is not a good or product, is not traded, and therefore is not and
has never been subject to the terms of any trade agreement.
In response to the argument that it should
place an outright legislative ban on all water exports from Canada, the federal government
claims that this apparently quick and simple solution does not focus on the
environmental dimension, has possible constitutional limitations, and may be vulnerable to
a trade challenge. The government maintains that an export ban would
focus on water once it has become a good and therefore subject to international trade
agreements. Because these agreements limit the ability of governments to control the
export of goods, a ban on exports is likely to be contrary to Canadas international
trade obligations. This contrasts sharply with the federal governments
approach.
Federal government sources point out that
Canadas views on the trade issues have been supported by a wide range of expert
opinion. They note that the IJC came to similar conclusions in its final report, Protection
of the Waters of the Great Lakes (February 2000) after exhaustive public hearings and
submissions that included governmental and independent experts representing every point of
view. They also note that the principle that governments have full sovereignty over
the management of water in its natural state was reconfirmed by the Deputy U.S. Trade
Representative, in a formal submission to the IJC, where he stated that under customary
international law:
water resource management rights
belong to the country or countries where the watercourse flows. We are not aware of
any government having challenged this principle in any forum, let alone before on
international trade body such as the World Trade Organization.
This is not to say
that the WTO rules could never apply to water which has been extracted from watercourse
and actually traded in international commerce. But the WTO simply has nothing to say
regarding the basic decision by governments on whether to permit the extraction of water
from lakes and rivers in their territory.
Maude Barlow, national chairperson of the
Council of Canadians(3) argues that certain key
provisions of the NAFTA place Canadas water at risk. She maintains that if a
single province revoked its ban on bulk water removals and began exporting water, bans in
other provinces would become subject to challenges from companies wanting to buy Canadian
water. She maintains that the federal government
needs to bring in a
full, binding, federal ban on bulk-water exports. And it must work to exempt water
from pernicious trade deals [such as the NAFTA and GATT] that would privatize, commodify
and put our precious water on the open global market for the highest bidder.
The federal government takes the opposite
view, arguing that nothing in Canadas international trade obligations would require
approval to be given to future projects for the bulk removal of water for export, just
because previous projects of this kind had received approval. It notes that Canadian
governments, federal and provincial, retain full sovereignty over the management of
Canadian water in its natural state. According to the government, water in its
natural state is not a good and therefore is not subject to trade obligations. The
government maintains that From the standpoint of trade obligations, the fact
that a government has allowed the extraction and transformation of some water into a good,
including for export, does not mean it (or another government within Canada) must allow
the extraction and transformation of other water into a good in the
future. Federal government sources note that the NAFTA does not require
all provinces to adopt the same regulatory regime. It merely requires that each
province, within its regulatory regime, not treat foreign goods or investors less
favourably than it treats its own goods or investors.
(1) Bill C-6 is similar to Bill C-15 which was introduced in the 2nd
Session of the 36th Parliament but died on the Order Paper with the dissolution
of Parliament.
(2) A
more detailed discussion of some of these following points can be found in: David
Johansen, Bulk Water Removals, Water Exports and the NAFTA, Library of
Parliament, PRB 00-41E,
20 February 2001.
(3) The
Council of Canadians is a citizens watchdog organization in 1985 which came to
prominence in its fight against free trade.
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