Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue 7 - Evidence - February 24, 2005
OTTAWA, Thursday, February 24, 2005
The Standing Senate Committee on Energy, the Environment and Natural Resources met this day at 8:35 a.m. to examine and report on emerging issues related to its mandate.
Senator Ethel Cochrane (Deputy Chairman) in the chair.
[English]
The Deputy Chairman: I wish to welcome the Honourable Herb Gray. There is no need to tell senators about our guest's background, because we all know where he came from and how long he has been on Parliament Hill. However, Mr. Gray is now chair of the Canadian section of the International Joint Commission, IJC, which is an independent, binational organization that was established by the Boundary Water Treaty of 1909. The purpose of the IJC is to help prevent and resolve disputes relating to the use and quality of boundary waters, and to advise Canada and the United States on related questions.
The commission has six members, three of whom are appointed by the President of the United States with the advice and approval of the Senate, and three of whom are appointed by the Governor in Council of Canada on the advice of the Prime Minister. The commissioners must follow the treaty as they try to prevent or resolve disputes, and are expected to act impartially in reviewing problems and deciding on issues, rather than representing the views of their respective governments.
That is just an overview of what Mr. Gray will be talking about today.
The Right Honourable Herb Gray, P.C., C.C., Q.C., Chair, International Joint Commission: Thank you very much, Madam Chair, and other members of this distinguished Senate committee. I am very pleased to be here. I want to thank Senator Cochrane for her introduction because it will enable me to move more quickly through my presentation.
[Translation]
I shall be pleased to answer your questions and comments in English or in French, but I shall make my presentation in English.
[English]
As the chair pointed out, the International Joint Commission was created by a treaty signed between the United States and Great Britain, acting on behalf of Canada, in 1909, and the commission has been operating since 1911. It deals not simply with boundary waters but with the entire Canada-U.S. transboundary environment. We have had much success over the last nearly 100 years in preventing and resolving disputes involving the boundary waters and the air above them.
Some key principles of the treaty are equal and similar rights to the use of boundary waters. There is an order of precedence in the treaty for their use: first, sanitary and domestic, then navigation, then power generation and then irrigation.
It says in the treaty that structures and diversions are not to affect levels and flows in boundary waters or to raise levels of transboundary waters in the other country without binational agreement or IJC approval.
What is remarkable for a treaty signed in 1909, when people were not as conscious as they are today about environmental matters, is that it says that one country must not pollute the water on the other side of the boundary to the injury or health of property on that other side. There is complete equality between Canada and the U.S. under the treaty and in the work of the commission even though the U.S. has ten times the population and a much larger economy than Canada.
As commissioners, we make decisions by consensus, much like a cabinet committee or a cabinet. We do not vote; I think there have been only three votes in over 94 years. The IJC is a creation of the treaty but not a creature of governments; it does not report to Parliament or Congress. It is an international organization, a permanent, objective, independent, and unitary body. We are in very close contact with at least six different departments at the federal level in Canada and their U.S. federal counterparts, particularly the foreign ministries and environment departments.
As you will see by the map that I have distributed, and one of the slides in the handout, the International Joint Commission operates from east- to-west, west-to-east, from ocean-to-ocean, along the border and in the North, and on the border between Alaska, the Yukon and British Columbia. We have a range of jurisdiction over 8,000 kilometres, and 40 per cent of those boundaries are composed of water. We list some of the major basins in which we have an interest.
What does the commission do? It receives references and formal mandates from the Canadian and American governments to provide reports on specific topics. It responds to permanent references, written into other binational agreements, the Great Lakes Water Quality Agreement, the Canada-U.S. Air Quality Agreement, and the Lake of the Woods Convention and Protocol, in particular. It alerts governments to emerging transboundary environmental issues and it has a quasi-judicial jurisdiction to consider applications for approval of transboundary structures.
When we deal with a specific reference, we first establish an expert binational group to examine the science and develop a common fact base. We then seek the public's views on the expert group's report. We then write our own report, which we submit to the governments, but we also release the report to the public. We do not deal with secret reports. Everything we do is in terms of dealing with the governments; we also inform the public.
An example of a reference on a specific topic is the concern in 1998 about possible bulk water exports from the Great Lakes. The governments asked us to look into that issue. We made a report in which we said that the Great Lakes do not offer a vast reservoir for an increasingly thirsty world. Although the Great Lakes contain about 20 per cent of the fresh water on the earth's surface, only 1 per cent of this water is renewed each year from snowmelt and rain. In effect, we said there really is not a surplus to be exported in bulk from the Great Lakes.
What happened with respect to governments' response? Our federal government presented to Parliament what is known as Bill C-6, to amend the International Boundary Waters Treaty Act. The amendments and related regulations came into force on December 9, 2002. They prohibit the removal of boundary waters from their basins in Canada, potentially all the basins, but they started by including the Great Lakes in particular under the act by regulation.
What about on the American side? There they have a different approach. They have been negotiating a compact, which once adopted by the legislatures of the Great Lake States and the federal Congress, would be legally binding and would set out a regime for regulating the removal of waters basically from the American side of the basin.
Under a federal law in the U.S., this cannot be done in the meantime unless all the Great Lakes governors agree. There is a Great Lakes Charter signed by the Great Lakes States and Ontario and Quebec. They prepared an annex in 2001 setting out principles for regulating the export of water, or preventing the export of water, depending how you read the annex, from the American side of the basin. They released proposals for implementing the annex for 90 days of public comment last July. The reaction, particularly in Canada, was — I think it would be fair to say — generally negative. The current Ontario government criticized elements of the proposal and said they would not agree to sign it. The Canadian government tabled a submission saying there are some good things in the proposal, for example, monitoring and collection of data, but they said it would weaken the existing regimes and they thought it should be looked at again. A working group of the Great Lakes Governors met in Chicago in January. They decided to take into account the various comments and develop another version of the proposals, which will be put out for further public consultation.
You may ask, what does the IJC say about this? We said in an update report on our 2000 report, Protecting the Waters of the Great Lakes, that the commission recommends that the outcome of the 2001 process should include a standard in management regime consistent with the recommendations in our 2000 report. Until it is complete, the commission said, and there is a final draft, it is not possible to say whether, and to what extent ``Annex 2001'' and the measures taken under it will give effect to the recommendations in the commission's 2000 report.
What about permanent references? I mentioned the Great Lakes Water Quality Agreement. In it, we are required to assist the governments in the implementation of the agreement, and we assess the effectiveness of the government's measures in achieving the purposes of the agreements to restore the chemical, physical and biological integrity of the waters of the Great Lakes Basin ecosystem. By ``governments,'' I mean particularly the federal governments of the two countries. We have a role in the Canada-U.S. Air Quality Agreement which I will describe.
The next slide lists all the scientific boards and task forces reporting to us. We have two kinds of boards: the scientific boards and task forces, and control boards. The latter I will talk about in a minute.
We alert the governments to emerging issues, for example, the alien aquatic species, the Asian carp, which is moving up the Mississippi River, and if it gets into the Great Lakes it will cause great damage to domestic species. It is being kept out of the lakes by an electronic barrier in the Illinois River. We are encouraging the governments of the State of Illinois and the federal government to strengthen the barrier and add another one.
What about applications and orders? If someone wants to build a structure on, over or under a boundary water, they have to go to the two foreign ministries, Canada and the U.S. If they agree, then an application has to come to the commission which holds hearings and has the full authority to issue orders either approving or disapproving, or approving the application with conditions.
Generally, over the years the commission has approved the application but set out conditions, and created permanent control boards to oversee the carrying out of the conditions. Examples of the structures under IJC control orders are the outlets of Lake Superior at the Sault, and Lake Ontario at the international section of the St. Lawrence. I have to tell you there have not been any major applications since the completion of the Seaway and the Columbia River Treaty structures, but I think that if there is a move because of cross-boundary truck and passenger car traffic continuing to burgeon, there will be proposals for new bridges or structures at places like Windsor and Detroit. That was mentioned specifically in the budget speech last night, and if the proposals involve structures that have to have part of their elements in the water, then I do not know if it will be the current commission. That depends how long it will be, but there will likely be a renewal of the quasi-judicial role.
We have a slide listing all our control boards. Moving along to the conclusion, I will tell you about some of our current activities. You asked me here, to give you some thoughts about a mandate for this committee, in looking into water issues.
We are completing a five-year study of the control structures and the orders under them, involving the lower Lake Ontario and the international section of the St. Lawrence between Cornwall and Messina. This study is funded by the two governments, U.S. and Canada, for $30 million over five years. We are now in the last year. As I said, we are reviewing the Control Orders, which date back to 1952/1956, which apportion the waters for the structures in the St. Lawrence and, by the way, ensure the Port of Montreal would have enough water to accommodate the international vessels and their cargos that come to it.
Now the study is looking at uses not considered in the 1950s, such as recreational boating, sports fishing and environmental matters. The study will deliver recommended options for new criteria and plans for water level and floor regulations to the commission this coming October. We will then probably have some more public hearings, and then we will write a report in which we set out whether or not the orders are to be changed and if so how.
We have another very interesting project underway. In 1921, the IJC issued an order apportioning the waters of the St. Mary and Milk Rivers between the U.S. and Canada. As you may know, they criss-cross the boundary between Montana and the provinces of Alberta and Saskatchewan. These waters are used to irrigate hundreds of thousands of hectares of farmland basically south of Lethbridge to the border, and by associated processing plants located in places like Taber, Alberta. There are these kinds of activities on both sides of the border but mainly in Alberta.
The Government of Montana, since this original order was made in 1921, has never been totally satisfied with it, and periodically approaches the commission to have the order reopened and modified. In the past, the commission has always refused to reopen the order, but after a current request by Governor Judy Martz of Montana who just completed a term and there is now a new governor, we held hearings along the border last summer. Hearing is not the right word though. They are more like public consultation meetings. We decided to do something different, and that was to set up a special task force, the St. Mary's and Milk River administrative task force to see if the administrative procedures under the 1921 Order can be adjusted to improve the apportionment of the waters of these rivers for both countries. It will report to the IJC, which will make the final decision on whether the order is to be reopened, modified or left alone.
An interesting point about the IJC jurisdiction is that these Control Orders are not subject to appeal once they are made. If someone does not like the order or they think conditions have changed, what they can do is come back and ask us to review or reopen, but it is interesting in terms of sovereignty that there is no provision in the treaty for appealing these orders.
Moving on through another topic, we held hearings in December and we are currently writing a report on the environmental water quality issue regarding Missisquoi Bay of Lake Champlain in Quebec, and the rest of the lake which lies between Vermont and New York. If you look at the big map or the smaller map you will see how the border moves along and because of, for example, how it cuts across Lake Champlain, it gives us jurisdiction under the treaty.
Under the Great Lakes Water Quality Agreement every two years we have to write a major report on how the governments are carrying out their responsibilities, and the progress they are making to clean up the Great Lakes. Our last such report, 12th Biennial Report on Great Lakes Water Quality, came out in September. If you look at sheet number 19, we tell you what is in that report, but in terms of our current work we are presently completing a report on spills in the connecting channels of the Great Lakes to be completed in a few months.
There has been a concern on both sides of the border of communities bordering on the St. Clair River about spills of chemicals getting into the river, primarily from the Canadian chemical valley in the Sarnia area. I will go into this in more detail during discussion period if you like, but the concern was that these chemicals are getting into the water, and the notice about this to the municipalities down river has not been prompt enough. The Government of Ontario brought out a very important report on that, and our Great Lakes office director is one of the technical advisers.
The next point I want to raise, and I am really extending an invitation to the members of the committee and staff, is about our 2005 Great Lakes Conference and Biennial Meeting, which will be held June 9 to 11 at Queen's University in Kingston. Every two years we have a major public conference, basically linked with our biennial reports on the Great Lakes water quality. These meetings have technical workshops, but they also have public sessions open to anyone who can come and get up to the microphone and speak about the environment and pollution. We have outstanding guest speakers. Dr. David Suzuki will be speaking. The international award-winning professor, David Schindler, from the University of Alberta, will be speaking. We just have confirmations that federal Environment Minister Stéphane Dion and his provincial counterpart Leona Dombrowski will be there. There will also be American congressional and Senate personalities who are interested in the Great Lakes restoration. I want to extend an invitation to all and sundry, those in the room, and I understand this is being broadcast publicly. You can register now at www.ijc.org. People are welcome. There are no registration fees except for the initial technical workshops.
I mentioned we have a role under the Canada-U.S. Air Quality Agreement. In particular, we have to invite and receive public comment on the progress reports the two governments have to make on what they are doing under this agreement every two years, and provide the synthesis of these comments to the governments to assist them in implementing the agreement. The latest such report was issued in December. We have been having round table meetings to get comments from groups and they have been writing to us. If this committee or any of the senators or any organizations you are connected with would like to make comments on this latest report, you can get it from our website, again, www.ijc.org, and you can send the comments. I believe our current deadline is February 28.
By the way, it does not have to be a hundred-page brief with footnotes and slides. You can just send in a letter with a couple of paragraphs making your basic comments. That is equally or perhaps more welcome, and will be sent to the secretary of the Canadian side of the commission. We are just a few blocks away at 234 Laurier Street.
In regard to possible future IJC activities, under the Great Lakes Water Quality Agreement, roughly every six years the two governments have an overall review of the Great Lakes Water Quality Agreement. They carry it out basically after every third biennial report. We will be participating in this review. We will not only be submitting comments but we may well be asked to carry out all the public consultation side of it. There is a scoping committee of the two governments working out a plan for the review. I think there is something on the website now. The review has not yet begun. The governments first want to finalize a plan because this will be a very big, comprehensive activity.
Another possible activity is with regard to reviewing the Control Orders that we have issued on the structures at the St. Mary's River, at the Sault, and basically a study of the upper lakes like the one we are completing on the lower lakes.
Also, on the matter of alien invasive species, the government has put out a plan for dealing with them, aquatic and land-based. The budget, by the way, talks about funding for more work to deal with this major issue. We have asked that we be given a reference to assist and coordinate the binational activities to control or prevent the entry of aquatic, alien invasive species. This is being considered.
We also want to turn our boards and basins along the international boundary into watershed basin boards. You may want to consider whether this is a practical or good thing to do.
Finally, as to possible activities, we have been asked by the Native peoples living along the Columbia River on the Canadian side to look into whether the Grand Coulee Dam on the Columbia is creating the loss of upstream Native fishing opportunities. We are considering now whether we have jurisdiction.
Other issues governments may send to the International Joint Commission include the issue of Devil's Lake in North Dakota. If water from that gets into the Red River, there are those who argue that it will create environmental damage to the Canadian side of the Red River and Lake Winnipeg.
We cannot take up matters in terms of looking at the things in a formal way and issuing reports and recommendations unless we get references from the two governments. The treaty says that a reference can come from only one government, but the convention has developed that references always come from two governments. That makes sense, because if one government does not participate, it will not likely pay attention to the report in the same way as if it joined in asking for it. Our expert boards are comprised of officials from the government departments, and sometimes universities seconded to serve part-time as required. If we did not have a joint reference, perhaps the other government would say, ``We are not sending any officials to help the commission.''
We notice that Fargo, North Dakota, said they would like to get water out of Lake of the Woods. There is some kind of major Red River Valley water supply project. This would be very controversial for the people living around Lake of the Woods and those already in Canada using the water. For example, as Senator Spivak knows, there is a channel bringing water into the city of Winnipeg, and has for almost 100 years, from Lake of the Woods.
Also, there is a controversial proposed mine and road development in British Columbia near the boundary waters created by the Taku River going from B.C. to the Alaska Panhandle. Then the Teck Cominco smelter in Trail has been accused by the U.S. Environmental Protection Agency — and they reject that — of dumping polluted material into the waters of the Columbia River, which then goes down into the U.S. across the border.
There is another issue in the west. The Flathead River goes from B.C. into Washington State. Washington State is concerned that the Government of British Columbia may approve a methane coal-mining or fluidized coal-bed development that they claim would create pollution issues. This is again a challenge by those proposing the project.
Finally, back to eastern Canada, our jurisdiction includes Lake Memphremagog, which is east of Lake Champlain. Coventry, Vermont, is creating a big dump which the people on the Canadian side of Lake Memphremagog, the cities and communities, feel is not a good idea. They would like us to look into it, and again we need a reference.
You asked me here to help you get some ideas for a major study. I based that on telling you about the IJC and what it does, and some of the things we are working on or could work on may well be of interest to this committee.
I would end by reminding you that in the Speech from the Throne of last October, 2004, the following appears:
The government will work with the United States and agencies like the International Joint Commission on issues such as clean air, clean water and invasive species.
We were very flattered that we were specifically mentioned in the Speech from the Throne. Certainly, we listened with interest. I made a point of being present to hear the budget speech and the references to the green infrastructure and work on alien invasive species and the renewal of the Great Lakes program of the federal government.
As to other topics you may want to look at, and I know my time is up, I am ready to get the hook here, something that has been on the books for many years is the Canada Water Act. You may want to look at how it is being applied or whether it is inactive, and whether there should be national drinking-water standards established by the federal government.
I thank you for your patience. I am available for your questions or comments.
The Deputy Chairman: Thank you very much. That certainly was in depth. You have a difficult task on your hands. I had no idea what you were doing, Mr. Gray, since you left Parliament, but now I know.
Senator Spivak: Mr. Gray, you have an unbelievable job. My first thought is, do you have enough money to do this stupendous job? It will increase in the future.
Mr. Gray: We are not a sole financing body. We are funded through the estimates process in both countries. Our budget basically consists of money for staff, accommodation, travel and public information. If we get a reference and so on, then additional funds have to come. We do not have a program budget. If the governments want to give us a reference, with very minor exceptions, they have to give us additional funds. We do not have the money to carry out all the potential work we have outlined, but if the governments want to do it, I think they know that they have to provide additional funding. In terms of our ongoing activities, we are living within our budget and so on, but certainly there are pressures. If you want to recommend that this be looked at, I would not tell you not to do it.
Senator Spivak: My specific question is with regard to the proposed annex. There is water being drawn from the Great Lakes now — Chicago, for example, as I understand it. How much water is being drawn now?
Given the pressures that will be put on the southern United States, and the fact that the Ogallala aquifer is being drawn down, suppose there are legal challenges to the kind of disputes that will probably take place, and the fact that the governments have put in some kind of legislation. In the end, who trumps? What is the sovereignty issue here?
Mr. Gray: First of all, there is a canal, the Chicago Sanitary and Ship Canal, that links the Great Lakes at Chicago with the Mississippi. It was originally developed, strangely enough, to divert sewage away from the lakefront area of Chicago into the Mississippi, and then it became an entity for barge traffic. The water going out through the Chicago Sanitary and Ship Canal is roughly matched by water coming into the Great Lakes from the Ogoki Diversion going into Lake Superior. The amount that can be diverted through the Chicago canal is fixed by a ruling of the U.S. Supreme Court. The Chicago canal pre-dates the Boundary Waters Treaty, so it is grandfathered, in a sense.
In terms of major quantities of water going out, I am told that the amount going out is matched by what is going in through the Ogoki Diversion. A lake and a river that went into James Bay were turned around during the Second World War to help provide power for hydro plants, so the water coming in matches what is going out through the Chicago canal.
To get to your point more precisely, in fairness, it should be noted that the states bordering on the Great Lakes have not expressed any interest in allowing water to be removed. Whatever the state of the aquifer is, there is no way that the water could be taken out of the lakes for that or any other purpose across the territory of the U.S. Great Lakes states unless they agreed. As far as I can see, at the present time they are not interested in accepting massive diversions for whatever purpose.
As we mentioned in our 2000 and 2004 reports, the growth of urbanization in areas like Chicago have caused the development of near-basin communities that are technically on the other side of the height of land separating the Great Lakes from the Mississippi. This height of land comes very close to the Great Lakes in some areas. These communities would like to have more access to waters from the Great Lakes, as they believe that they are part of the same urban community. This issue must be dealt with.
All the major proposals that existed into the early 1990s to divert water by canal or through tankers have fallen off the table due to cost considerations and due to action on the Canadian side under federal law. On the American side, there is a federal law that provides that if any governor objects to a diversion, even if it is not in his or her state, it cannot go ahead.
In the mean time, they are negotiating this compact. In order to go into effect it would have to be approved by the legislatures of each of the states and the Congress, which would take quite a while. In the mean time, the federal government of Canada has issued a formal statement that the current draft proposals are unsatisfactory, and Ontario has said the same thing. The Attorney General of Michigan has also expressed concern about this. The concern is not simply on the Canadian side; there is concern on both sides.
Hopefully these working groups, taking these comments into account, will come up with compromise language that everyone can live with.
The government of the United States has filed an intervention with this working group in which they say that in all matters they have to give priority and pre-eminence to the Boundary Waters Treaty and the role of the International Joint Commission, which was also said in the Canadian government presentation. We will see how things turn out.
As far as further formal comment by the commission, since we work on a consensual basis and there is one commission, I can only draw your attention to what we said in our report in the middle of last year.
Senator Spivak: That is very helpful. However, you cannot see what will happen in the future. Suppose there is disagreement between all the legislatures, the American government and the IJC. Is that a question for litigation? Is it clear what prevails? Does the treaty prevail?
Mr. Gray: You are asking questions involving international law, which I do not claim to be qualified to deal with in detail. However, this compact would be between the U.S. federal government and the Great Lakes states. The IJC will not be a party to this. It will have ongoing jurisdiction created by the treaty. Great Britain, on behalf of Canada, and the United States sign the treaty, and under international law they are responsible for ensuring that the terms of the treaty are carried out.
I suppose that the commission can always draw to the attention of the government in a formal way anything that they consider to be inconsistent with the treaty. Unlike me, though, you are entitled to look at hypothetical questions. I do not think one should assume that something will not be worked out that will be satisfactory to the two federal governments as well as the Great Lakes states.
[Translation]
Senator Lavigne: First of all, I wish to thank you for having accepted to come here today. I have known you for many years, Mr. Gray, as I have been sitting in Parliament with you. You are a very cultured and wise man.
Earlier, you referred to the St. Lawrence Seaway leading to the Port of Montreal. Will the Commission have a role to play concerning the dredging operations that will be required to allow vessels to reach the Port of Montreal, given the lower water level in the St. Lawrence?
Mr. Gray: I do not think that we will be involved in this project because the dredging will not occur in boundary waters. The St. Lawrence crosses the border between the two countries outside the province of Quebec and inside Canada. This is not a boundary area.
We are mainly responsible for the distribution of the St. Lawrence's waters so that water levels be maintained to allow international marine traffic to access the Port of Montreal. We are not going to examine those dredging projects because they are outside boundary waters.
Senator Lavigne: You mentioned earlier the creation of a dump site near Memphremagog Lake. Is the Commission going to be involved or do you need to wait for a request from the government, parliamentarians or senators?
Mr. Gray: Communities on the Canadian side of Memphremagog Lake have asked the government to give us an official mandate to investigate that dump site project. Some members, like Mr. Paradis, have asked that the Commission be given a mandate or a reference concerning that issue. However, we have no formal rule at the present time because we did not receive a reference. If you could convince the government to give us such a reference as it did for Champlain Lake, we shall be pleased to fulfill our responsibilities. But for now, we are following these issues.
Senator Lavigne: The matter has not been referred to you yet?
Mr. Gray: It is the responsibility of members of the public, elected officials or honourable senators to ask the government to give us such a mandate.
[English]
Senator Milne: Mr. Gray, your mandate says that you can only do things that are referred to you by both governments. How difficult is it to get things referred to you by both governments?
Mr. Gray: Some would say it is difficult. For example, Canada would like to have a reference on Devil's Lake in North Dakota, which is of great concern to the provincial government of Manitoba. The current American administration is not ready to do that. The government of North Dakota is very much against it, as are your counterparts in the U.S. Senate.
You will see in the treaty that a reference can come from either government. It does not have to come from both governments, but the formal understanding has grown up that unless both governments agree that there be a reference, there is no reference sent. I explained earlier why that is probably a good idea, even though there are those who have called for the Canadian government to go ahead on its own.
We are following the issue very closely and especially because we have a Red River board dealing with pollution on the Red River as it crosses the boundary. We go to meetings of the Red River commission where this comes up. We do not have a formal role in which to look into and make recommendations on this matter as we did, for example, when there was a major flood on the Red River. We issued this report, Living with the Red, which, among other things of the 41 recommendations, called for a major expansion of the floodway around Winnipeg; this is now underway. When the governments announced that, they were good enough to refer to our report as one of the inspirations for that action.
We could be given a reference by one government. I do not think it has ever happened. It is probably a good idea, but I know that the Canadian government is saying that perhaps they will raise this with the new Secretary of State when she visits. I understand she will be here in March. We will see what happens. We are ready to work on this formally. Right now, we are informing ourselves informally. We cannot actually go to work and say, ``Here is what should be done'' or ``Devil's Lake is a problem,'' or ``not a problem,'' et cetera.
Senator Milne: When you talk about the St. Mary and Milk Rivers Administrative Measures Task Force, you say they are trying to get the 1921 order, the administrative procedures, adjusted. What exactly does adjusted mean? To me, it means more for the U.S, and less for Canada.
Mr. Gray: I want to make clear that the IJC, in setting up its administrative task force, is not saying that it intends to change the order. All it is saying is, can there be adjustments within the existing language that, without doing any harm to Alberta, which will satisfy concerns of Montana. The governments of Alberta and Saskatchewan are very much against any change. The government of Montana would like to see a change. They allege that the waters have not been apportioned fairly and they are not getting as much water as they think they are entitled to under the treaty in the 1921 order. The governments of Saskatchewan and Alberta strongly disagree, as does the Canadian federal government. They issued an intervention to our commission saying that is not the case.
Senator Milne: How is the water apportioned now? Is it on a population basis?
Mr. Gray: It is very complicated. I will have to come back for a separate meeting about that.
Senator Milne: Maybe you could send us something.
Mr. Gray: We can send you something. There were two issues that helped bring about the negotiations that lead to the treaty. One was the apportionment of water on the Niagara River for the Sir Adam Beck Power Plant and for the falls. The other was the dispute which had begun some years before between farmers and ranchers on both sides of the border about apportioning the waters. They had already begun digging canals and so on. It was written into the treaty, a formula for apportioning the water. I draw your attention to article 6 and then to further clarify article 6, the commission issued an order in 1921.
This is very complicated but it says for example, the two rivers:
...are to be treated as one stream for the purposes of irrigation and power, and the waters thereof shall be apportioned equally between the two countries, but in making such equal apportionment more than half may be taken from one river and less than half from the other by either country so as to afford the more beneficial use to each.
Then it goes on. You can read it one way as Montana does, and say we are not getting enough water. You can read it another way as Alberta does, in particular, but also Saskatchewan, and say this is unfair. They argue that one of the problems that Montana faces is that its pipes and channels for bringing the water to the farmers are not as efficient and in as good repair as the Alberta ones are. The legislature in Montana is now examining apportioning money for a major upgrade of the facilities on the American side and they are asking for U.S. federal money. I am putting this before you.
Senator Milne: Is it so that they do not have as much leakage or evaporation?
Mr. Gray: That is what some people argue. This is one of the points made at our hearings. Some people argue that Alberta has been more efficient in maintaining the structures or replacing them or updating the technology. Montana is saying the language says we should get more water. I am seeing press reports saying that their legislature is examining apportioning money to upgrade their facilities. I am not making any judgment.
We have this task force that started holding hearings. I might mention it shows you what a wonderful big country we have. This involves hundreds of thousands of acres, hundreds of millions of dollars of investment in land and equipment, and very modern processing plants in Taber for potatoes, vegetables and sugar beets, very much like the processing plants in Southern Ontario.
Senator Adams: I heard that sometimes the Americans are getting less water than Canada. Do the Americans have access to it — you have a yellow line here.
Mr. Gray: These maps are not detailed hydrographic maps. They are there to show people like myself who are not experts where we have a role. By the way, the text here is also a very good discussion or description of the ongoing work of the commission.
I do not think that either country could begin drawing water from boundary waters in a way that disturbs the present distribution. The treaty says both countries have equal access. It is interesting that we have this jurisdiction in the North, but we have been called upon to exercise it in a very limited way in places like the Taku River.
I might mention that because of the way the Yukon River and the Porcupine River cross boundaries and so on, when they build pipelines from Alaska and the pipelines disturb the level or flows of water, either the two governments would have to enter into a separate by binational agreement, or refer the matter to the committee to hold hearings.
We did not get involved totally in the Columbia River Treaty because that was looked on as a binational agreement. We have a dispute settlement role in the treaty, which we have never been called on to exercise. We do have a Control Order under the huge Grand Coulee Dam and related reservoirs. That dam predates the treaty. We are involved with the Columbia and the Columbia Basin, but not with the treaty as a whole. This could well be the case when they start building pipelines. It might be a separate binational agreement, but we might get involved.
As far as I am aware in terms of the federal governments, neither country wants to have major removals from the existing waters. I am not aware of any interest on the part of the administration of either country. Canada, federally, has already legislated that water should not be removed from the Canadian side of the basins.
Senator Adams: The water in the Great Lakes is very polluted and that water flows into the St. Lawrence. What happened to those lakes that has made the water unfit to drink? Are you working on that problem?
Mr. Gray: In 1972, after reports from the commission and things that everyone saw like rivers catching on fire and so on, the two governments signed the Great Lakes Water Quality Agreement. Since then, hundreds of millions of dollars have been spent on upgrading sewage treatment plants. There was legislation banning certain chemicals going into the lakes, particularly phosphorous.
There has been tremendous improvement, but the job is so big that it is still not done. There is still need for upgrading sewage treatment plants. With the growth of urbanization, water runoff from urban areas is carrying pollutants into the lakes. Factory farming is an issue as well, with runoff from the farms.
A new development is that chemicals that were not developed at the time the agreement was signed, such as fire retardants, are getting into the water and building up in fish, which people eat. Scientists are very worried about this. Also, some people dump their unused prescriptions down the sink. Apparently sewage treatment plants in both countries are not designed to deal with these chemicals, and they can get into the water we drink.
More work has to be done on these emerging issues. I do not think the day will come when the Great Lakes will be declared 100 per cent clean, because this is a dynamic situation. As we clean up one thing, there is a risk of backsliding. As an example, phosphorous is again turning up in Lake Erie. Also, new chemicals are being developed, which hopefully the provincial and federal governments will deal with.
We have to be vigilant. I believe it was Andrew Jackson, an American president, who said that eternal vigilance is the price of liberty. You can apply the same principle to environmental issues and say that eternal vigilance is necessary to have a safe environment.
Senator Adams: In the 1980s and 1990s, we heard a lot about the Oldman River that runs down into the United States. Is that issued settled?
Mr. Gray: I think they are still working on it. That is the issue of the Garrison Diversion Project. It is still talked about but is not an active proposal. Canada and Saskatchewan were very concerned about that. The garrison plan is still talked about, but there is no active push, of which I am aware, to implement it.
The Deputy Chairman: Mr. Gray, does the jurisdiction of the Boundary Waters Treaty cover groundwater aquifers that cross borders?
Mr. Gray: Yes. We consider groundwater to be covered by the treaty and a matter of concern for both state and provincial governments as well as federal governments. Of course, there is groundwater that does not flow into the lakes, but we take an interest in groundwater as well, assuming that it is connected with the lakes or a boundary river.
Senator Spivak: My first question is about the Devil's Lake diversion. I understand that there was a report that recommended a sand or gravel barrier in the Devil's Lake construction, which would have prevented a lot of things from coming into the Red River Basin, but that recommendation was not accepted. Would that be a feasible solution?
I had no idea that withdrawal of water from the Lake of the Woods might affect the Shoal Lake water that comes into Winnipeg. That water used to be pure and now they have chlorine lagoons, but it was an ingenious construction.
Mr. Gray: For colleagues who are not familiar with this, Devil's Lake is a lake without a permanent outlet, so that when water goes into it, not only does it raise the level of the lake but also there is a build-up of all sorts of chemicals.
The state of North Dakota and the U.S. Corps of Engineers, which in spite of its military title is a U.S. federal civil engineering agency, both developed projects to create outlets from Devil's Lake with the water going into the Red River, and I guess even into the Cheyenne River and the Missouri River. The Corps of Engineers decided not to go ahead with their project. Their project would have involved a filtration concept before the water got into the Red River, but that project stalled. I guess the money for it was not voted. The U.S. project is not going ahead, but it would have provided a filtration system before the water got into the Red River.
The state of North Dakota has its own project, which they are actually working on, that would create an outlet from Devil's Lake into the Red River, although I do not think their project has a provision for filtering the water. They are doing this on their own and Manitoba has been challenging it in court; so far unsuccessfully. What you are talking about was in a project that did not go ahead.
Your second question was about Shoal Lake. I do not want to create any alarm. I am just reporting what was said at Fargo, North Dakota in a meeting of the Red River Commission. They said that they would like to deal with their water problem by taking water from Lake of the Woods. No project has been designed and there is no regulatory approval whatsoever. It is just something that they floated — to use a water-borne metaphor. In the Red River water project there are five different proposals. I do not want to create alarm that the water from Shoal Lake in Winnipeg is under any immediate or long-term threat.
However, the Lake of the Woods District Property Owners Association, which is a very large and well-financed group of about 4,000 members, has expressed concern about the water quality in Lake of the Woods. There are two boards, one all-Canadian and one binational, which oversee the water levels and the availability of water for Shoal Lake, Winnipeg and so on. The Lake of the Woods property owners have expressed the hope that our commission will get a mandate to deal with water pollution, because algae blooms are building up there. They had a very good seminar on this.
Again, if the governments would like to give our existing control board a role in water quality, we would be happy to be given that responsibility. I cannot speak for my colleagues, but if they give us that responsibility, we have to do it.
Senator Spivak: Dr. Schindler appeared before our committee. The Red River basin is huge and may even affect other boundary waters. It is not a small thing.
Mr. Gray: That is right.
Senator Spivak: I am wondering if the American government is aware that this is not just a dispute between North Dakota and Manitoba. It is huge. Perhaps they do not have the right information.
Mr. Gray: As far as I am aware, it was brought to the attention of the Canadian federal government, certainly by the Province of Manitoba. They have been very active and outspoken. For example, the Minister of Water Stewardship for the Government of Manitoba has been very active. We had a very good discussion about this in our offices here in Ottawa a few weeks ago. They are aware of this. There again, here is a topic that you folks might want to look into more broadly, not just Devil's Lake as such but the whole Red River basin and its implications. I leave this with you, because you asked me to come with suggestions.
This is not simply a Canada-U.S. issue; it is also an issue between states. By that, I mean the State of Minnesota has joined Manitoba in objecting, I am told, to the North Dakota outlet project from Devil's Lake. In fairness, one has to recognize that many of these issues are not simply Canada-U.S., but it is also one state differing with another state, which is a good way to approach it.
Senator Christensen: I apologize for being late, Mr. Gray. Unfortunately, medical appointments get in the way. I understand you have not spoken about the Telsequah on the Taku River. Have you been involved with that? This is the application of the mine on the Telsequah, which is in northern British Columbia, and runs into the Taku.
Mr. Gray: It will not come to our attention unless we get a formal reference from the governments.
Senator Christensen: I thought you had received it.
Mr. Gray: At one time we did have a reference. I could be wrong on this. We have been operating for close to 100 years.
Senator Christensen: This project has just been in the last five or six years. It is a reopening of an old mine in northern British Columbia on the Telsequah River. It runs into the Taku, and I know Juneau and the fisheries in that area have major concerns about it. I thought perhaps your board would be dealing with it.
Mr. Gray: We are keeping ourselves informed, but we have no role at present. To have a role, the governments would have to give us a reference.
Senator Milne: Mr. Gray, did you have a previous reference on this?
Mr. Gray: I am mixing this up with another river with a similar name. I withdraw what I said, and I want to correct myself.
I should mention, and this is a technical point, that generally once we issue our public report and recommendations, the reference is considered completed. There are some exceptions. We have ongoing references involving air pollution in the Great Lakes, but unless the governments say, ``You carry out a permanent reference overseeing the Great Lakes Water Quality Agreement,'' once we issue our report with our recommendations, then basically it is for others to carry on.
Senator Milne: You have no role whatsoever in overseeing whether governments actually do something?
Mr. Gray: Well, first, the governments have to reply to our recommendations. They have to give us a reply.
Second, we may already have control boards in the area operating under other circumstances. We have asked our control board involving the Red River to give us a report on how the 41 recommendations for preventing major flooding of the Red River are being carried out. Either we have a permanent reference to see how things are being carried out, as with the Great Lakes, or we may have an opportunity through existing control boards to monitor what is going on.
Senator Milne: Following on from Senator Cochrane's question about aquifers, I am so glad that I have this map. It is very interesting. It helps to clarify our minds very much about what waters you have some jurisdiction over.
Do you have any jurisdiction over aquifers other than underneath these marked areas? It would be interesting to see an overlay of the aquifers that also flow into, or end up in, these areas.
Mr. Gray: Perhaps you can ask people from Natural Resources Canada or the Department of the Environment, but it is my understanding that unless the waters are involved in these basins, then our role is not there.
Senator Milne: I was pretty sure that would be the answer anyway, but it would be interesting to see an overlay of aquifers on this map.
Mr. Gray, has the control board for the St. Mary's River and the structures on the St. Mary's at the Sault been set up, and what precisely is happening up there?
Mr. Gray: Yes, the control board there has been in operation for many years. As with all our boards, it is binational, with Canadian and U.S. chairs and equal numbers of Canadian and U.S. members. They oversee the terms of the orders we issued at the time that applications were made for constructing some of the structures there. Basically they have in the order what they call a rule curve. Within the rule curve, the water can be apportioned, and sometimes more can go for one thing than for another. They oversee the carrying out of the terms of the order for apportioning the waters. They have the locks, and they have the power plants on both sides of the border. There is the system of locks on the Canadian side, which now I think are basically recreational. There is a compensating works to help maintain the level of the water. Downstream there are fishing rights for the First Nations people in the area. The control board has been operating since, I do not know, 1900s I suppose.
We have suggested to the governments that just as they asked us to review and gave us a special budget for the control order for the St. Lawrence and lower Lake Ontario, we should be given a budget and asked to review the control orders for the St. Mary's River at the Sault, which affect the water levels of the Great Lakes upstream and even downstream. The governments are considering that. It would require a major allocation of funds.
It has been a very wonderful exercise. About 100 people are involved in our lower lakes study, permanent members and citizens' groups, and the whole project included very unusual modeling techniques bringing all the factors into consideration in a computerized way. There are those who argue it would be very timely to do that with respect to the upper lakes as well.
[Translation]
Senator Lavigne: What official mandates did you get from the government in the last twelve months?
Mr. Gray: What type of mandate?
Senator Lavigne: Any mandate concerning Canadian waters. Which mandates did you get from the Canadian government with the required budgets?
Mr. Gray: We are finishing a report on chemicals in the Great Lakes and we are reviewing the agreement between the two countries for the Great Lakes restoration.
For instance, we have updated our report entitled Protection of the Waters of the Great Lakes — Review of the Recommendations in the February 2000 Report and we are waiting for the government's response to our second biennial report on the progress made in the clean-up of Great Lakes waters. I hope that this answers your question.
We get specific referrals or ongoing referrals in the global agreement on Great Lakes restoration or in the agreement between Canada and the United States on air quality above the boundary area.
Senator Lavigne: Earlier, you asked for a mandate from the government for the dump site in Memphremagog Lake. This is a very important issue, but it has not been resolved yet.
Mr. Gray: We are not asking for a mandate. The mayors of municipalities and provincial and federal members of Parliament are asking the government to give us that reference. I am sure that they would be very happy to get it. In the meantime, we are staying up to date as much as possible about this case.
Senator Lavigne: As you know, this is a very complex issue that might cause a lot of destruction in the Memphremagog Lake area.
Mr. Gray: I hope that if we get a reference, it will be possible to visit the lake in the summer or in the spring, but not in the middle of winter as happened for Champlain Lake.
Senator Lavigne: In winter, you will have to visit it on snowmobile.
[English]
The Deputy Chairman: Senator Banks asked me to ask you this question, Mr. Gray.
On the St. Mary's River, Alberta is claiming a drop in water availability as a reason not to change the 1921 order. As a result of that, can you comment on global warming and the subsequent decline of water source in the west in relation to treaties and conventions?
Mr. Gray: Global warming is something we take into account in our work. We have commented, for example, in our twelfth report on the Great Lakes that global warming can have an effect on water levels and also the concentration of dangerous chemicals or the proliferation of micro creatures and so on. Certainly, I think it follows that global warming could have an effect on levels and flows of waters in southern Alberta and northern Montana.
Glaciers feed the St. Mary's River in the Glacier National Park on the American side, and it is linked with Waterton Lakes. There are those who say, and I have seen this myself, just looking at the glaciers from a difference, that they seem a lot smaller than they might have seemed just a few decades ago. That is something to be very conscious of.
The Deputy Chairman: I just have one question of my own. On page 17 of your report, you mention the St. Mary and the Milk River Administration Task Force will report to the IJC, which will make their final decision on any changes, but there is no appeal process.
Mr. Gray: That is right.
The Deputy Chairman: You can open the file, but there is still no appeal process?
Mr. Gray: It is the way the treaty is written. It is a unique joint ceding of sovereignty to the commission by the two countries. I wonder if a treaty like this could be written today. Once the commission makes an order, only the commission can change it. There is no appeal to an international tribunal or to the governments. I suppose at the end of the day the two governments could amend the treaty and write into the amendment a different approach, but they have never done that.
When we are asked to review an order, the governments will make an intervention. The federal Government of Canada will publish a statement, and you can get it off the relevant website, saying that they support Alberta and Saskatchewan, and they think the clauses on apportioning the water of the St. Mary's and Milk Rivers are being properly interpreted. I do not think the American government has issued any statements so far.
There is another clause under which we can be given a reference, and that is clause 10. What we have been talking about are references under clause 9 of the treaty. Clause 10 enables the governments to give us a reference to make a recommendation that would be in the form of an arbitral award binding on both countries. At the last minute, I am told, the U.S. Senate insisted there be a clause put in that this section could not be used unless the U.S. Senate agreed. It has never been used, but the treaty says that if it is used, there can be an appeal to the International Court of Justice in The Hague in the Netherlands. This is something for scholars to talk about, because the U.S. Senate has never agreed to any reference under which there could be a binding award.
The Deputy Chairman: Thank you so much. I omitted to introduce Mr. John Heisler, who is an assistant to Mr. Gray.
I want to thank you so much, because as you have already stated, the water study that we are doing is just so important, and the information you have given us will help guide us in our direction.
Mr. Gray: I thank you for your courteous reception and your very insightful questions. If I personally or our commission can help the committee in its work, please feel free to call us.
I may be breaking a rule here, but I see in the audience a distinguished former chairman of the International Joint Commission, who is still interested, on behalf of the Canadian Institute of International Affairs, Blair Seaborn, former deputy minister and senior diplomat.
The Deputy Chairman: We welcome you as well. You are not breaking any rules. We accept anything from you. Thank you very much.
The committee adjourned.