Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue 1 - Evidence - November 22, 2007
OTTAWA, Thursday, November 22, 2007
The Standing Senate Committee on Energy, the Environment and Natural Resources, to which was referred Bill S- 208, An Act to require the Minister of the Environment to establish, in cooperation with the provinces, an agency with the power to identify and protect Canada's watersheds that will constitute sources of drinking water in the future, met this day at 9:30 a.m. to give consideration to the bill.
Senator Tommy Banks (Chair) in the chair.
[English]
The Chair: Good morning, senators. The Standing Senate Committee on Energy, the Environment and Natural Resources is meeting this morning to consider matters dealing with Bill C-208.
To my far left is Senator Mira Spivak, from Manitoba; next to Senator Spivak is Senator Willie Adams, from Nunavut; on my far right is Senator Burt Brown, representing Alberta. Next to Senator Brown is Senator Ethel Cochrane, representing Newfoundland and Labrador.
I am pleased to welcome as our guest today Senator Jerry Grafstein, who is here to talk about Bill C-208, of which he is the author. It is a happy coincidence that it happens to be the same number that this bill had in the last session of Parliament. I will assume, Senator Grafstein, that the wording in both bills is exactly the same.
Hon. Jerahmiel S. Grafstein, sponsor of the bill: Yes, Senator Banks, with the exception of the requirement of the ministry to enter into an agreement, and I think the date in the bill is December 2007. I was very optimistic when I drafted that bill.
The Chair: Yes, you were. As we all know, the mills of the gods grind slowly.
Senator Grafstein, Senator Nolin sends his apologies; he is in Budapest at a NATO meeting. The committee members have determined that there are three aspects of this bill they would like to look at, the third being the substance of the bill and what it does. The first two aspects are, first, and most importantly, the constitutional question. This is an area of shared jurisdiction between Canada and the provinces on the other, which raises constitutional questions.
The second aspect is the potential of overlap or redundancy having to do with the Canada Water Act, as revised in the statutes. It is an old act that has been revised many times between then and now.
I called to remind members, and new members have received notes prepared by our Ms. Kristen Douglas, comparing Bill C-208 with the Canada Water Act and pointing out the differences between them.
Senator Grafstein, if you can address those matters, we would be very pleased. We have been joined by Senator Grant Mitchell from Alberta.
Senator Grafstein: First, I want to thank you very much for taking the time and energy to prepare for this particular bill. As you know, the issue of water has been an issue for me for seven years. I have had outstanding bills on the Order Paper.
I will give you a bit of a history of how I became interested in the water issue. Yesterday, I dug out a book called The Politics of Purpose, written by John Turner in 1968. If you take a look at this book, he acknowledged that a special debt of gratitude was owed to political aides over the past two years: Jerry Grafstein, Julien Bèliveau, Dave Smith, and Lloyd Axworthy. We were all working for John Turner at that time.
On October 19, 1965, Mr. Turner gave a speech to a paper-industry conference called ``Clean Water: A national priority.'' That speech is in his book. It was when I was doing the research for the speech, which I helped to draft that I became interested in national water policy. I am here to report that since 1968 little progress has been made. In fact, the situation with the water policy has deteriorated since then.
Before I address your questions, I think I would like to put the bill into context. In 2000, my Aboriginal colleges brought to my attention the disastrous situation with clean drinking water. I soon discovered that we had not really attended to that particular problem. It continues to be an increasing problem, which I will touch on briefly.
Before addressing the subject matter of this bill and the three points that you raised, I thought I would talk about the obstacles we face in this country and why Canada does not have a national clean water policy. It is better to say we have the absence of a clean water policy as some of the policies, frankly, are counterproductive.
Anyone who has worked in this field — public servants and citizens from coast to coast to coast — share the frustration of a lack of political will, the conscious and unconscious obstacles that prevent Canadians from having their birthright, which is a very simple thing: clean drinking water. We do not have clean drinking water for each and every Canadian.
The Constitution provides equality for all. The health department says you must have eight glasses of clean drinking water a day. Some of us in Ottawa are privileged to have that clean water, but many Canadians do not. Millions of Canadians are deprived of it every day. There is a contradiction between our health policy on the one hand and our action on the other.
Why is it, honourable senators, that we do not have a policy for clean drinking water? First, we are blessed with the so-called largest freshwater resources in the world; statistics say we have 18 per cent of the world's freshwater. We are the largest consumers of water; we consume five times more water than the Americans. We are the most profligate users of water.
What is true now is that it is no longer scientific or accurate to say we have 18 per cent of the world's freshwater, because one assumes that freshwater means clean water. Quite frankly, that is not the case. There is no science in Canada today to tell us what percentage of that 18 per cent is not polluted. There is no way of knowing that number.
There is not an area of freshwater that does not bear the earmarks of pollution and other environmental hazards. The Great Lakes have been invaded by invasive species and this situation has become worse in the last few years. These foreign species have moved up the St. Lawrence are over to Lake Superior. Not only do we have polluted, bad water but also invasive species in it. We have done little to deter these species.
Science today cannot determine exactly how much freshwater we have, particularly with the everyday onslaught of global warming and other ecological hazards.
My bills are meant to deal with these problems, but I want to talk a bit about some of the reasons why there are obstacles. One of the reasons is the fact that we are complacent about water. Next, is our misreading of the Constitution as to the ability of the federal government to get involved in this issue. By the way, the Americans overcame this issue years ago because in the early 1970s they had drinking water problems across the country and dealt with it by way of a federal oversight bill. Their state rights are stronger in some respects than our provincial rights and they used federal override to provide a bill. That bill provides oversight. It does not displace the states or municipalities, but is a federal oversight to ensure people know whether the drinking water in their areas is clean and safe to drink. It is not a big deal.
The obstacles include constitutional problems and an institutional problem. The institutional problem is that in Canada, and in federal, provincial and municipal areas, we have pillars of institutions. These institutions act as breaks against change. There is a huge institutional problem in Canada where departments do not talk to one another; they fight with one another. That is overlaid with our provincial problems as well. Many agencies are responsible for water, and at the end of the day no one is responsible for water. We have, at the essence of national policy, the absence of responsible government.
The Constitution is absolutely clear. It is as clear as water. I want to address your first point: Constitutionality.
The Constitution does not refer to water. I am not being disrespectful to Senator Nolin or to the great constitutional experts in this country who say that the federal government cannot get involved in national water policy because — guess what — it is provincial, they are absolutely wrong. There is no reference to water in the Constitution. The word ``water'' does not appear.
We do have a division of powers. On the one hand, we have property rights, which is at the heart and soul of provincial jurisdiction. On the other hand we have international and criminal powers, which are the heart and soul of federal jurisdiction. In between, these pillars argue from time to time that it is constitutionally inappropriate.
To sum up my two bills, they are interconnected but exclusive. One is a downstream bill; the amendment to the Food and Drugs Act which will hopefully come before this committee again. I want to commend the committee because it took that bill and improved it. After a lot of resistance from two governments on both sides, the Senate has decided to speak independently of those two governments and pass the bill. Both Liberal and Conservative governments opposed this bill and honourable senators decided to be independent and pass the bill.
Senator Brown, you will find that sometimes the Senate can be independent of government.
The Chair: That is in reference to Bill C-206.
Senator Grafstein: Yes and that bill is to amend our Food and Drugs Act using the criminal power to provide federal mandatory standards for water at the community level. I call that the downstream bill.
The bill before you is a watershed bill to deal with the upstream problem of source water. I will describe the bill and then deal with the Constitution.
The bill is simple. It is complex in its language, but it is simple. The bill's purpose is to map the watersheds of Canada, to take an inventory of our water. By the way, once we map the watersheds and get the science, then we can decide federally and provincially how to deal with those watershed surfaces so they will not be abused or misused in the public interest.
It is clear, honourable senators, that water is a diminishing resource. We always thought that because there was so much water, it was a replenishing and sustainable resource. That is no longer the case, and therefore, it is important for us to take inventory to know what we have to protect.
The proposed legislation calls all ministers to focus on one federal-provincial agreement to establish a light regulatory regime to ensure a regulatory regime, locality by locality, on each of these watersheds. Each watershed is complex and different. This should be dealt with and that is the essence of Bill S-208.
Why is there no constitutional objection to it? If you take my position on this, it will be clear that we have a crisis and a coming water famine. I will touch on the constitutionality briefly, after which I will answer questions.
Remember that water is not in the Constitution. It is inferred from other powers that there is provincial or federal oversight. No one quarrels with the federal criminal power or the international power when dealing with the Great Lakes, which constitute an interstate boundary. There is no question about that but other questions arise. Recent cases indicate that if there were a national dimension or concern test, the Constitution of Canada would give clarity such that the federal government has the power:
. . . to make laws for the peace, order and good government in relation to all matters not coming within the classes of this act signed exclusively by the legislatures of the provinces.
It is clear.
All the science will show you that unless we change our policies, we will have a water famine — a biblical drought. We cannot allow the federal government to override the normal distribution of powers set out in sections 91 and 92 of the Constitution Act, 1982.
The courts have developed two tests to determine whether something that would be classified normally as a provincial matter has become a federal subject matter. First, the matter must be defined as an emergency, and clearly we have an emergency because after 40 years the situation is worse. How do you define ``emergency'' and ``crisis?'' It is clear to me.
Second, an easier test is to deem it a national dimension or concern. I now turn to the public polls. Surely this is a matter of national dimension or concern. Most recent polls demonstrate, and both parties can look at their internal polls, that water matches health care as a public concern. Why? Because the public sees that water is a problem in their respective regions. They see it when they go to their summer homes. They see it in their rivers and lakes and they taste it in their tap water. Clearly, this is a matter of national dimension or concern. The existing system has not worked. If it were working water would be better than it used to be it is not better. Rather, it is getting worse every day.
Honourable senators, last week I was a keynote speaker at a conference entitled the National Workshop on Watershed Conservation. The conference brought together federal, provincial and municipal bureaucrats and activists from across the country. Some nationalists claim that we simply have to stop the bulk sale of water. However, the problem also encompasses the quality and essence of our water not only for humans but also for the fishery and for habitation.
Let me return to a more specific case because this was obviously for Senator Nolin and Senator Beaudoin. He and I disagreed on this issue. He had what I consider to be a narrow provincial view and I have a federalist view. The federalist view is overriding because we now move to a national concern. In R. v. Crown Zellerbach Canada Ltd., [1988] 1 S.C.R. 401, the judge applied the national concern test of peace, order and good government to find that provincial-federal legislation prohibiting the placement of any matter, whether toxic, in any ocean water by any person without the necessary permit from the federal government, even when this had occurred in purely provincial waters, was valid. A federal minister said that toxicity in a provincial stream was valid on the basis that ocean pollution had taken such a national dimension as to overcome normal provincial jurisdiction. That was a decision of the Supreme Court of Canada, 1988, and the court was late in doing it.
I will refer to an earlier case. In another decision concerning the jurisdiction in the case of pollution of interprovincial waters, the Supreme Court of Canada took a different approach than the case found above. Without reference to a national concern or dimensions test, the court held that the basic rule is that the general legislative authority in respect of all that is not within the provincial is federal. It was a different test but it drew the same conclusion. Here, we are faced with a pollution problem that is not really local in scope but truly interprovincial. The court explained it in Interprovincial Co-Operatives Ltd. and Dryden Chemicals Ltd. v. R., [1976] 1 S.C.R. 477, pages 321-357. The decision notes:
. . . pollution necessarily had an interprovincial effect and hence as subject matter within the exclusive authority of Parliament in accordance with its residual power over matters of interprovincial concern not specifically allocated under the Constitution Act, 1967.
I will not go on unless the committee wants to talk about interprovincial works and undertakings or commerce or the criminal power. There is no question in my mind, and any sound Supreme Court of Canada judge will come to the same conclusion, that the question of water can be exercised by the federal jurisdiction if it chooses to do so. That raises the question of obstacles.
There is inertia in the country and in Parliament to deal with this matter. We have had scandalous situations for years in Aboriginal communities in respect of clean drinking water, and that is clearly within the federal jurisdiction but there has been no action. In December 2006, there were 178 boil-water advisories in Aboriginal communities. From one third to two thirds of every Aboriginal community in this country do not have clean drinking water. In Newfoundland, many of the outports still have to boil their water every day because they do not have clean drinking water; that is scandalous. The UN has not drawn attention to one of our great scandals. We are so rich and competent yet silly because we do not provide clean drinking water to our citizens but instead ship clean water machinery to Darfur, Afghanistan and Iraq. We do this while we cannot deliver clean water to our Aboriginal communities or to the communities in Northern Quebec or in Newfoundland and Labrador. The irony of this is quite intense.
I will complete this constitutional tirade. I become so upset with senators when they stand up in the Senate and proclaim to understand the Constitution and then do not look at the facts. Facts are inseparable from the Constitution.
This next comment is quite interesting and comes from the Interprovincial Co-operatives decision, which states that there is no title in flowing water. It goes on to say that if any regulatory authority to have interprovincial effect is to exist in respect of pollution of interprovincial waters, it would have to be established under federal jurisdiction. It is clear. It is not confusing and not difficult. It is simple. It is not in the Constitution. The federal government has a concern, and we should be concerned. The population is concerned. Facts and policy all merged together. We have clear jurisdiction to deal with this matter.
I want to deal with the second aspect, which is the overlap between the Canada Water Act, which has a long and tortuous history, and my bill, and why I did not just seek to amend the Canada Water Act. The Canada Water Act, quite frankly, is functus; it has not worked for many different reasons, and I will not go into the details. I am sure your advisors and researchers will do that. It does not work because Parts II, III and IV were never implemented. There was supposed to be regulatory oversight and, under the law, there was supposed to be a report made to Parliament. They have not made a report for five years. Why? The answer is because the report would be scandalous.
The Canada Water Act is functus. It does not work, and it has not worked because within that piece of legislation is the reason why we do not have a national water policy. The authorities — both governments, and I am not critical of Liberals or Conservatives — had bureaucratic inertia. There was self-censorship. They said we cannot have one national agreement. We will putter around and go province by province and region by region and end up with a patchwork of agreements dealing with watersheds. By the way, it does not even deal with watersheds. My bill deals with watersheds, which is larger and more capacious than the subject matter of that bill. It does not work. It is functus. There have been no reports. Senator Banks, you are the expert on useless legislation. It was you, sir, and I commend you for this, who brought to our attention of number of pieces of legislation that were passed by Parliament and never proclaimed. Your bill is still languishing. Where is it today? How many pieces of legislation are in the same situation? There are dozens.
This bill does not work because the concept is wrong. It was piecemeal, and they did not understand that this issue was of national scope and required the pillars of government, both federal and provincial, to meld and mould and reform and work together in unison.
We do not keep statistics. Why is it that we do not keep statistics about public health in this country? Why do we not keep statistics about the number of people in Canada who are sick every year because of bad drinking water? Vancouver keeps track and in one year alone, 17,000 people became ill due to bad drinking water. The health department does not want to keep track, and governments do not want to keep track, because if they keep track, they would have to act. There is a silent inertia about not moving on these issues.
Finally, honourable senators, I will conclude by thanking you for your patience and your interest. If we do not move on this, and if we do not move on it now, and if we do not remould and refashion the institutions that in fact are blocking a national water policy, we will leave this country in a devastating state.
One of the reasons I came to Ottawa, and I am sure it is the same for each of you, was to make things a little better. For us to let this file deteriorate is to deprive each and every Canadian of something that I think they are entitled to, which is eight glasses of clean drinking a day to maintain their health and productivity. This is a crisis; it is a scandal. There is a malaise and inertia in this country.
I will finish by not ranting against governments but against the media. It is only recently that the media has caught hold of this issue. There were more articles in the last six months about water than in the last five years. Why is that? The public senses there is something wrong when they go to their lake and all of a sudden their boat is in mud, where the lake water used to be right to their cottage. People know what is going on, but they do not know what to do about it. Public opinion is ahead of Parliament, and it is up to us as parliamentarians and senators to catch up with public opinion. That is the purpose of these two bills.
I hope that you will give this bill full consideration. I look forward to the evidence you will be taking from others. I will be available to come back and give a rebuttal to each and every witness. If they are correct, I will support what they say, and if they are wrong, I will be here to give you an alternate view. Thank you.
The Chair: Before I go to the list of questioners, I will ask you to confirm, with respect to the constitutionality question, two things. First, the 1988 decision of the Supreme Court did refer to a ``provincial stream,'' so there appears in that decision to be a recognition that there is such a thing as a provincial stream and, therefore, one presumes, provincial jurisdiction.
Senator Grafstein: The point of the case is that even in that situation where there is clearly a provincial stream, the federal government has an override because of the toxicity and the possibility of the other issues.
The Chair: I understand that, but there is such a thing, in the court's view, as a provincial stream.
The second thing is that you are right that the Constitution does not say the word ``water,'' but it does say ``resources.'' If one assumes that water is a resource, then there is a division of responsibility in the Constitution as between the provinces and Canada; is there not?
Senator Grafstein: I do not disagree with that. The bill is clear about that. The bill essentially mandates the federal minister to enter into an agreement with the provincial authorities, and then the regulatory oversight, having established that as a national issue, now has to be implemented regionally. That is essentially the architecture of this particular bill.
The Chair: It would be true to say that the bill per se recognizes the provincial jurisdiction to the extent that it exists because it requires an agreement between Canada and all of the provinces as precedent to anything happening under it.
Senator Grafstein: I prefer to say this: We have a structure in Canada of two orders of government. The federal government, if it chose, could do this on its own, but that is not the way we work in this country. We work cooperatively. If I had crafted the bill the other way, which could happen as it has before in national emergencies and so on, I would think that it would inhibit the progress of the bill. This is a good, cost-effective way of doing it, because existing bureaucratic authorities are looking at this question. I am not suggesting there is an absence of water policy province by province. If the federal government had the political will, then it could do it on its own. That, to my mind, would cause a greater consternation and impede the progress of a national water policy. The essence of federal- provincial cooperation goes to the mechanical problem, not the constitutional, in my view.
Senator Spivak: I am in support of your proposal, particularly because as a committee we noticed that there was no database for well water or watersheds. I could not agree more with the protection of watersheds.
Do you consider water a non-renewable natural resource? The Constitution does not just say ``natural resources''; it says ``non-renewable natural resources.''
Senator Grafstein: I will answer it in a different way and then come back to your question. In my view, the new oil is water.
A friends of ours, Diane Francis, wrote a column a month or so ago echoing what other columnists have said around the world. Water has become, in the Aboriginal communities and many places of Canada, the new oil. Without water, we cannot exist.
Senator Spivak: And you cannot get oil.
Senator Grafstein: In my view, water has not become a national concern because we do not have the seven great oil sisters who, with money and energy, promoted it.
When you read the business section, you will find everything about oil; the price of oil, where it is delivered, what it costs, where it is found. We are focused on oil because there is huge money in oil and we know that. However, there is nothing on the water side because we have this myth in Canada that we have a capacious and endless stream of water. Science is saying that unless we take action, water will not be able to sustain itself. Man-made habitation and man- made problems, in conjunction with the cyclical weather, has combined in such a force as to deteriorate our water supply. That is why we spend $5 billion a year in Canada for bottled water. We import Fiji rain water for drinking. It costs about $4.95 and the reason I say is because I go to a lot of charitable events at hospitals, and they have Fiji water on the table. I ask myself what Fiji water is doing on the table at the Mount Sinai Hospital in downtown Toronto. Yet, that is the case. My point to you is that the bottlers know that this is a huge revenue stream, and it has come from $1 billion to $5 or $6 billion a year in Canada. People are now afraid to drink the drinking water in Toronto, although the drinking water there is better than most of the water in the world. At one time, when I was a kid and went to France for the first time, my mother said to drink bottled water. We never did that in Canada; it was a joke. There is was a feeling in this country that water is not safe, and that needs to be addressed. However, more importantly the source water is now becoming a problem and that is the reason for the coming water famine.
There was a book written in the early 1960s by Jim Wright. He was a Speaker of the American Congress who wrote a book entitled The Coming Water Famine. The book caused a great deal of consternation with farmers across the country because they were starting to get concerned about the allocation of water for their particular resources. Now we have a contest for water. It is not just for human habitation, but also for the oil sands, which consume a great deal of water. Pollution is a problem. There are tremendous demands on water. If the water kept repeating itself and was sustainable in a clear way, we would not have a problem. However, clearly it is not. Pollution is increasing as a percentage and, as it increases, water is no longer sustainable.
Senator Spivak: So it is non-renewable.
Senator Grafstein: It is non-renewable. Science seems to indicate that it is non-renewable because of a number of factors including pollution, invasive species, et cetera.
Senator Spivak: If it is a non-renewable natural resource like oil, then it is a provincial matter.
Senator Grafstein: You are missing my point. Oil is not digestible. I am sure that you do not drink oil; I do not drink it. Some people I know drink gasoline, but most people do not. The difference between a resource such as timber and lumber, and something that goes to the question of health is a different definition of a resource.
Senator Spivak: Look, I am on your side. I am just saying to you that if you consider that water is a non-renewable resource then that gives an argument.
Senator Grafstein: I think I said that there is a thread or a danger of it becoming a non-sustainable resource because the science is not clear.
Senator Cochrane: Senator Grafstein, thank you once again for appearing before us, and thank you for the passion that you bring to this committee in regards to drinking water.
Please tell me, do you have any idea how much good work has been done since the Walkerton and the North Battleford affair? Could you bring us up to date on that subject?
Senator Grafstein: I think we have made terrific progress. This does not deal with the watershed bill, as the watershed bill is a source water bill the other is a downstream bill. I think the Province of Ontario has made terrific progress. I read every line of the 700-page report from Justice O'Connor, and he affirms the constitutionality of the other bill. I think we have made terrific progress in Ontario and in Saskatchewan. I am told we have made good progress in Quebec. Everyone tells me of great progress. That is the statutory approach.
Having said that, boil water advisories are on the increase. This summer in Montreal, they had E. coli in the local swimming pools. At the end of day, while the regulatory regimes appear to be taking hold, the bottom line is: The situation is no better. I think the reason for that is that while it is one thing to pass an act, it is another thing to implement an act. Therefore, I think there has been progress in Ontario and in Saskatchewan; there has been progress across the country. However, when I talk to officials — and I spoke to officials from every region of the country last week — all of them will tell you that we are lagging. Here is an example right before us: The Clean Drinking Water Act. Here is an act, on its face, pretty good but not implemented and not workable. The purpose of the other bill, in a nutshell, is to provide federal oversight to that act. As you may recall, we had the Auditor General lambasting the water regime in Canada as well as the provincial ability to even meet a voluntary standard. That was just last year, some four years after Walkerton. On paper: Yes, there is progress, but not satisfactory progress.
Senator Cochrane: In the dialogues that you have had with the various people from across the country, did you consult with the provinces and other parties who were drafting the bill? Could you please tell us about their response to your efforts?
Senator Grafstein: Well, I have had a bipolar response to my effort. At the officials' level, off the record, there has been tremendous support. There has not been one public official below ministerial level that has not complimented me for my efforts.
Senator Cochrane: In all of the provinces?
Senator Grafstein: Not in all of them, but in most. Quite frankly, senator, I have not spoken to the officials in all the provinces. However, I have spoken to senators and I have spoken to activists such as the Sierra Club and Ducks Unlimited in all the provinces. To be fair, I have not consulted ministries because when I do so here I get the public line: ``Everything is moving along.'' I am just one senator. The research for that bill has come from me. I am responsible for it, I have done my own research and my own work on this, and I have not consulted with all the provinces. However, it would be a good idea for the Prime Minister to consult with the provinces when he has the Federal-Provincial-Territorial Meeting of Ministers in January. It would be a good idea for him to consult with them and see where they stand. If he concludes that there is tremendous progress and this would be useless work, I might accept that. I do not think he will find that.
Senator Cochrane: This bill does bring into effect all the provinces and federal government.
Senator Grafstein: It is a cooperative federalism effort.
Senator Cochrane: I am wondering if you have done any homework in that regard. I conclude that you have not.
Senator Grafstein: That is not fair. What I am saying is that I have not spoken to the ministries, but I have spoken to officials in practically all the regions and they have spoken to me. I did not know that there was even a group called the National Workshop on Watershed Conservation. I discovered this has been put together by a combination of former federal and provincial officials, and citizens. They were all there at the workshop, and I will leave this file for you. This is from Quebec, and another from the Fraser Valley. Here is one from Moose Jaw, one from Dufferin, and here is one from South Tobacco Creek. I will give it to the committee and leave it for you.
You should call these people or at least the group to get a sense of whether they think this bill is important. I received unanimous support for this bill at this workshop. To my mind, I would rather listen to the people that are working at the job than people who are responsible for the job.
Senator Cochrane: I asked you the question because this deals with provincial and federal people, and it is going to be an agreement with the federal and provincial ministers. This bill emphasizes a need to map out the groundwater aquifers or the watersheds right across the country. Can you tell me how many aquifers and watersheds we are talking about?
Senator Grafstein: That is exactly the point of the bill. We do not know. Nobody knows.
Senator Cochrane: Could you say whether there are hundreds or thousands or millions? Could you give me an overall figure? What do you think? You have done a lot of homework on this, senator; you have some idea.
Senator Grafstein: I have not calculated the number of aquifers. I do not think anyone knows. That is the very purpose of the bill — to find out. I will tell you what we do know in Canada: we know about oil reserves and gas reserves, but we do not know about water reserves.
Senator Cochrane: We know about oil and gas.
The Chair: To confirm that, I am trying to find where in the bill in says ``aquifers'' because I do not think it does.
Senator Cochrane: It does include watersheds.
The Chair: That is surface water.
Senator Grafstein: To be fair, we are talking about source water, so the source water would include aquifers. I have not specifically dealt with aquifers because there are a number of ways of defining the issue. Rather than getting into a nitpicking definition I thought I would deal with source water in the watersheds, which has become the modality of looking at source water. These are changing definitions, but I accept what the senator says.
We do not know the number of aquifers or source water. We know that there are many aquifers and much work has been done on them, but the work is not a priority.
The Chair: I have to point out that this committee has issued a report that points out specifically that we do not know. No one can tell us the answer to that question.
Senator Cochrane: Is it possible to find out?
The Chair: Yes, when the federal government decides to spend enough money to lead the research on it, then it will be possible to find the answer. That is exactly the point we made in the report.
Senator Cochrane: What level of funding would be needed to achieve this answer?
Senator Grafstein: Could I wait to respond to that important question? The question should first be asked of those departments that are already trying to do this to see what they estimate it would be. I would think that it would be a very large number. The question is how much, how fast and how quickly we can do it.
I have learned from my experience that when we take on a countrywide issue, the costs come down; the costs do not go up. In other words, once we develop a template as to how to do it scientifically and effectively, the costs come racing down. It is the same as the impact with computers: the smaller they get, the more powerful they become and the cheaper they are. The oil and gas experience will give you that. It is faster and cheaper today to drill deep for oil and water than it was years ago.
I will come back to you on that, senator, before the hearing is finished.
Senator Cochrane: Every time you start something, and this is the beginning of something, the price does not go down; it escalates. I look at buildings today, but that is a sideline, senator.
Senator Grafstein: It is an important question. I will try to address it. It might be useful to ask the government officials about this because maybe that is another invisible barrier. I do not believe it is.
Senator Cochrane: What happens if the provinces do not agree to this bill?
Senator Grafstein: There is federal override.
The Chair: That is not contemplated in this bill.
Senator Grafstein: No, but if this effort fails, my next approach would be to come back with another bill to provide federal override.
The Chair: However, in the bill before us, the answer to the question with respect to the provinces not agreeing is that nothing would happen.
Senator Grafstein: It is a mandatory requirement. Under the other bill, there was a voluntary requirement for the provinces or the federal government to enter into the agreements. My bill mandates the government to enter into it and then to account for the reason, obviously, if it cannot. To my mind, it puts pressure on the federal government to take leadership, so the thrust is different.
The Chair: The answer is nothing would happen if the provinces do not come to an agreement, under this bill.
Senator Mitchell: Senator Grafstein, this is excellent and inspirational. You are absolutely right, and something needs to be done.
I would like to make a comment about Senator Cochrane's request as to whether or not you have consulted the provinces. It seems to me she should be equally interested in the fact that the Prime Minister, Mr. Harper, is notorious for never speaking to the provinces, and I could list the places where it should be done and has not occurred.
I come from Alberta and I am concerned about the issue of water as it affects Albertans and Canadians. Specifically with Alberta, it is clear that there are demonstrably reduced water flows over the last few decades, probably 40 per cent or 50 per cent reduced. There are serious implications for agriculture, not to mention general water usage.
There is massive use of water by the oil sands, much of it fresh water. They are making every effort to use non- potable water. There is a demonstrable recession of glaciers. Everybody knows it in Alberta; it is obvious there are clear water problems.
I congratulate you on doing this, and I encourage the Senate and, ultimately, the House of Commons to support this bill. Something needs to be done.
You said that Canada uses a great deal more water than the U.S. Do the oil sands have a lot to do with that reason?
Senator Grafstein: It is our mindset. The first thing we learn in school is that Canada is a country of limitless resources, that we are profligate when it comes to water. We always have been profligate, and UN statistics demonstrate that we are the highest per capita users of water in the world. We look around, see lakes, streams and rivers, and think we have so much water. There is an interesting statistic in one of Mr. Turner's statements. I just discovered it, and it is on page 156, where Mr. Turner remarks that we are one of the most fortunate nations on earth because of our total water supply. Mr. Turner wrote:
The total flow of all our rivers has been estimated at about 2.5 billion cubic feet per second, which is equivalent to 70,000 gallons per day per person in Canada. Just compare this to our next-door neighbour the United States, whose total river flow amounts to 1.8 billion or little more than 5,000 gallons per day for each person in the country. And even at that the United States is fortunate compared to some other nations in the world.
Even in 1965 we had this belief, and I obviously wrote that. I cannot remember writing it, but I am sure I dug out the statistics that demonstrated that we were using 70,000 gallons of water per day. I do not know what those numbers would be today, but the most recent UN statistics demonstrate that Canada uses five or ten times more water than any other country in the world. We believe in it. Water is a part of our big Canada. Water is part of our attitude of from sea to sea to sea, from to coast to coast to coast, land of limitless lakes, the Great Lakes. We believe that. It is hard to change our idea that we have limitless water. That is part of the problem with our policy.
Senator Mitchell: In the midst of what is generally a very serious problem, it is clearly a particularly serious problem for Aboriginal communities.
Senator Grafstein: The worst.
Senator Mitchell: It is unacceptable. What implications would this bill have for Aboriginal communities? Certainly in that area there can be no question of constitutional overlap.
Senator Grafstein: My advice to the Prime Minister would be to begin mapping in the Aboriginal communities. It is absolutely disastrous there, as Senators Adams, Watt and Sibbeston know. They are having troubles with the fishery and drinking water. Water is their source of life. One of the Aboriginal gods is a water god. At the end of the day, it is a huge crisis for them, and it is a shame; it is a scandal.
I tell this story over and over again, and forgive me for that, but I cannot get it out of my head. Three or four years ago, Dennis Mills, a former member of Parliament, and I, who were working on this issue, were involved in a water conference in an Aboriginal community north of Toronto. A woman from Grassy Narrows said that the situation in her reservation was so bad that, when she decided she was going to have a baby, she had to leave the reservation for three years to cleanse her womb so that the child would not be born deformed because of the chemicals in the water.
I have told that story in the Senate. People are shocked, yet we do nothing. That story galvanized me to do more, to ask: How can we let that happen in Canada in the 21st century? It is a horrible situation, and it is not getting any better.
Senator Mitchell: I was compelled by your point that we do not track public health statistics on the health implications of bad water and incidence of disease and illness because of it. Would this bill allow for that, or would that be another issue?
Senator Grafstein: No, I think the other bill would, because the government would have to take it seriously. It is my view that with my clean drinking water bill we would be reducing the cost to the Canadian taxpayer because we would be reducing health costs. The 17,000 people in Vancouver represent not only a direct cost to the health system; while in addition, those people are off work. I believe there is a cost benefit analysis to be done on this issue.
We have been profligate with water. We do not charge very much for it. We could charge a little more, which would go a long way. In Toronto, for example, one third of the existing water system leaks. In Toronto, the system only provides two thirds of the water I pay for. There must be an infusion into capital infrastructure.
I am working on an infrastructure bill as well, because, when you identify a problem, I believe that you are compelled to try to deal with it from the financial aspect. In the next month or two I hope to have completed my work on an infrastructure bill that will deal with the question of renovating water systems across Canada on a cost-effective basis.
Senator Brown: Senator Grafstein, your bill has an admirable target. No one would oppose healthy drinking water. However, we have completely missed the level of government that is responsible for this issue. Municipal governments everywhere are responsible for the drinking water that goes through their pipelines. In the Walkerton tragedy, the people who were supposedly testing the water were not doing so. The authorities tried to put them in jail, but I think they were only reprimanded, although a number of people died.
The Aboriginal situation cannot be solved with a federal bill; it has to be solved with a water treatment plant on- reserve that meets a certain healthy standard. I have personal knowledge of projects in Alberta. The Knee Hill Water Commission tried to build a pipeline from the Red Deer River to various towns. They also tried to sell the idea to farmers with the idea that they would be able to shut down their wells and use pipeline water. Unfortunately, the price became too high. They told farmers it would cost $40,000 to connect to the water pipeline, plus the cost of the water. As a result, the farmers decided to wait for their wells to run dry and then buy a share, if they needed to. As a result, although the Knee Hill Water Commission line had the capacity to pump 20,000 cubic metres of water a day, it was pumping less than 6,000.
On behalf of some of the people in one of the towns involved, I told the Minister of the Environment in Alberta, who is responsible at the provincial level, that the situation was getting dangerous, because when you inject water into a pipeline, you have to put colouring in it every 20 miles. This was a 65-mile-long pipeline and, because the water flow was so low, the pipeline was not even full. Within two days of my telling him that it was a dangerous situation, there was a boil-water advisory in Beiseker and Irricana. It was not entirely due to the treatment plant; it was because there was a huge amount of rainfall in the Red Deer River that overwhelmed the capacity of the filtration lagoons at Drumheller, which was the source for the pipeline. It was temporary, but it was also dangerous.
My point is that a number of things can happen overnight, and I do not think federal regulation will solve those problems. I cannot imagine how many communities in this country have leaking water systems. Pipelines built 40 or 50 years ago are rusting out and need to be replaced. There is no question about it. The local people have to test that water every few hours, or at least daily. I know of one town just outside of Calgary that is testing its water every eight hours. If that breaks down, people will be ill.
Bottled water is the biggest sales coup in the world. We never needed to drink bottled water, and we still do not need to drink bottled water. People are supposedly bringing water all the way from Fiji and charging $4 a bottle. In New York, they found that most people who were bottling water were actually using tap water out of the New York system.
Senator Grafstein: As they do in Canada.
Senator Brown: Finally, on the oil sands, I brought some graphs with me today and gave them to Senator Banks. Maclean's magazine has said that the oil sands are pumping the Athabasca River dry. In fact, 80 per cent to 90 per cent of the tailing water is being recycled through the system. Less than 10 per cent of the water pumped out of the Athabasca River is lost. The Athabasca River has what they call a ``red zone.'' Any time the red zone is reached, they have to quit drawing water from the river, and the red zone has never been reached.
The Chair: I think that Senator Grafstein will make the point, but I want to do so, too, the coming out of the end of the tap thing is addressed in a different bill, is it not?
Senator Grafstein: That is Bill S-206.
Senator Brown, I agree with practically everything you have said, but I think you should look at the purposes of the federal government's criminal law power. The purpose is not to put people in jail but to change conduct and to have people avoid falling below a criminal standard. The purpose of my bill is not to put people in jail but to know that there is an enforceable law that says if you do not do what you are supposed to do, the criminal law could take effect.
Harry Truman was once asked what he thought his role was as president of the United States. He said that his role was very simple; it was to get people to do what they were hired to do in the first place.
Criminal power is essentially warning people that they have to do the job that they were hired to do in the first place, which is to provide good drinking water or good governance to the public. That is the purpose of the criminal power — not to put people in jail but to change conduct.
Senator Brown: Senator Grafstein, if your bill said only that you wanted to have a criminal law bill that said the people at the municipal level that are testing the water are responsible for either shutting the system down when it is not healthy water or ensuring that it is healthy water by treating it with whatever chlorine or sediment treatments it needed and it ended there, then I would say you are 100 per cent on the mark and that is what you should do. You should pass a bill that says it is illegal to work in a municipal water system and not provide healthy water, period, and here is the penalty — three years, five years,10 years in jail or whatever.
All I am saying is that this happened so fast in a period of hours. If these municipal people do not do their job, then you should give them a penalty, absolutely. You should throw them in jail because they are risking people's lives. People are in danger and may actually die from their actions. They have the kind of responsibility that an airline pilot has to ensure that he does everything he can to get people from one point to another and get them there safely.
It is very important if it becomes just a criminal bill. However, when you talk about identifying areas of the Great Lakes and streams that are being polluted, we already have some laws on that. I would say instead, let us make the federal law that you are proposing a little stronger law. For example, in B.C. recently a contractor dug up an oil line and sprayed an entire neighbourhood with crude oil. Those actions should have some very strong federal reactions. People should be held responsible, by huge fines or jail terms.
As far as the watersheds and the aquifers go, at least in Alberta — I know, because I deal with the people who do this — every time a well is drilled it is logged. They have been logged for 40 years. When my company does a rezoning or a subdivision, we have to pull the log wells from 40 years back in a given area around a proposed subdivision and do a computer projection of what the drawdown would be if a certain number of wells were drilled in that aquifer.
I know this will sound a little crazy but it is also true; I have a rural well where I live that went dry years ago. We drilled a new well and then my neighbours asked me to testify on what was happening with coal bed methane because when you create a differential between the pressures in certain aquifers, whether they are natural gas, coal bed methane or water, one moves into the other.
I testified before the Alberta Utilities Board and said that methane gas was moving into my neighbour's well. When I drilled a well, methane moved into it about a year and a half after I did that testimony. When I go home on Friday, I will be able to turn on the bathroom taps and light them with a match. That will continue for 10 or 15 seconds. Charges of gas will come out of the taps and it will be a blue flame.
What I am trying to get at here is that no matter what it is, it is a municipal issue in terms of preventing people from dying. If Senator Grafstein's bill is to punish those who do not do every possible thing they can do, then I am 100 per for it. However, I think the municipal water systems in this country have been pretty good. Walkerton is the only one I know of that has been bad. I have heard about the Aboriginal systems but I blame that on whoever is supplying the water on the reserves — not on the federal government or provincial government.
The Chair: True. We must now conclude, honourable senators, but I want to point out that there is a separate bill of Senator Grafstein's that talks exactly about that. That is not this bill; it is Bill S-206 and we will be dealing with it shortly, I hope. It is what Senator Grafstein referred to as the downstream bill.
This is a different matter. It happens to deal with drinking water but this is the upstream bill, before the water gets into anyone's tap. Bill S-206 does exactly what you are talking about; this bill does not address that specifically because they are separate issues.
Senator Grafstein: I would welcome any amendments to the drinking water bill to strengthen it. The Senate is all about strengthening and improving bills. If Senator Brown feels that the downstream bill is not strong enough and the penalties are not strong enough, he can move an amendment and I certainly would support it.
The Chair: Thank you, Senator Grafstein. We may take you up on your offer to come back and speak to us again, depending on what our next witnesses on this bill say. Thank you very much.
Senator Grafstein: I will leave these watershed projects across Canada with you. This may be part of your formal record, if the committee agrees.
The Chair: Absolutely. That is perfectly in order. In fact, that may provide us with an excellent source of witnesses to come and speak further to this bill.
The committee adjourned.