Proceedings of the Standing Senate Committee on
Foreign Affairs and International Trade
Issue 25 - Evidence - Meeting of May 2, 2013
OTTAWA, Thursday, May 2, 2013
The Standing Senate Committee on Foreign Affairs and International Trade, to which was referred Bill C-383, An Act to amend the International Boundary Waters Treaty Act and the International River Improvements Act, met this day at 10:34 a.m. to give consideration to the bill.
Senator A. Raynell Andreychuk (Chair) in the chair.
[English]
The Chair: Honourable senators, today the Standing Senate Committee on Foreign Affairs and International Trade is continuing its examination of Bill C-383, An Act to amend the International Boundary Waters Treaty Act and the International River Improvements Act.
In this session, we are pleased to have three witnesses: Adèle Hurley, Director, Program on Water Issues, the Munk School of Global Affairs, University of Toronto; J. Owen Saunders, Senior Fellow and Adjunct Professor, Canadian Institute of Resources Law, University of Calgary; and Ralph Pentland, Acting Chair, Canadian Water Issues Council, University of Toronto.
I understand that each of you has a short opening statement, so I will turn to Ms. Hurley first. Welcome.
Adèle Hurley, Director, Program on Water Issues, University of Toronto, Munk School of Global Affairs: Good morning. Thank you for the opportunity to be here with all of you. I am Director of the Program on Water Issues at the Munk School of Global Affairs at the University of Toronto, and with me today are my colleagues Owen Saunders and Ralph Pentland. We are here representing the Canadian Water Issues Council, or CWIC, as we call it. CWIC is a project of the Program on Water Issues at the Munk School of Global Affairs. It comprises Canadian water experts and former senior water policymakers. It was formed in 2007 to conduct non-partisan policy research, within a university setting, on the topic of Canada-United States transboundary water issues.
Biographies for the three of us who are here today, as well as for our colleague members on the Canadian Water Issues Council, form part of this record.
Our objective has been to be a resource for all parties that demonstrate good will and cooperation in accomplishing the goal of protecting this country's water. For example, over the years we have had opportunity to work with Francis Scarpaleggia and Lawrence Cannon on their bills, and we have offered technical information to Larry Miller during the formation of his private member's bill.
We recognize that this proposed legislation will not address all of the concerns that have been raised with respect to the export of water. For example, potential marine tanker exports would not be covered. However, while we do not preclude other legislative initiatives, apart from existing provincial legislation, to address this possibility, we also recognize that neither the International Boundary Waters Treaty Act nor the International River Improvements Act is likely to be the appropriate vehicle for such measures.
Concerns have also been expressed about existing statutory exceptions that permit the export of manufactured products containing water, including bottled water or other beverages. Again, we do not believe that this proposed legislation would preclude addressing issues through additional legislative initiatives.
Importantly, we welcome and acknowledge the spirit of cooperation that has characterized the various legislative efforts to deal with this issue to date, and we were very pleased when Bill C-383 received unanimous approval in the House of Commons.
Now, I would like to turn to my colleagues Mr. Saunders and Mr. Pentland.
J. Owen Saunders, Senior Fellow and Adjunct Professor, Canadian Institute of Resources Law, University of Calgary: Good morning. I would also like to thank the committee for the opportunity to be with you this morning.
My remarks today reflect the long-standing interest that the Canadian Water Issues Council has had in the issue of inter-basin removals of water generally and water exports more specifically. About five years ago, CWIC developed a model act for preserving Canada's waters, with a view to stimulating debate on this very subject. The model act suggested one approach to foreclosing the possibility of water exports, one that was built on the protection of water basins. However, we recognized that there were other possible legislative avenues for addressing the issue. Regardless of the particular approach, there is no doubt as to how Canadians feel about the ultimate goal. Canadians have consistently insisted that their endowment of freshwater resources not be put at risk through inter-basin transfers in the name of chasing, at best, doubtful economic gains.
In this respect, while Bill C-383 takes a somewhat different approach than that suggested in CWIC's model act, it nevertheless achieves the same ends.
As members of this committee are no doubt aware, the issue of water exports has arisen on a number of occasions in the past five decades, beginning with a series of proposed megaprojects in the mid-1960s and then emerging again, first in the context of trade negotiations in the 1980s and 1990s and, most recently, as the result of an abortive private sector proposal to export water by tanker from the Great Lakes. This proposal led to an amendment to the International Boundary Waters Treaty Act in 2003 and the issuing of a joint reference by Canada and the United States to the International Joint Commission.
In the 2003 amendments, the government addressed one potential threat to Canada's waters by prohibiting, with certain limited exceptions, the inter-basin removal of boundary waters, that is, those waters through which the international boundary runs, for example, the Great Lakes. It did not address the potential threat of using transboundary rivers, that is, rivers that cross the boundary, as a vehicle for exporting freshwater. While the 2003 amendments had the constitutional advantage of fitting clearly within the empire treaties clause of the Constitution, they had the obvious disadvantage of leaving unprotected important potential pathways for water export.
Subsequent to its Throne Speech undertakings, in the spring of 2010 the federal government brought forward its own legislative initiative on water exports with the introduction of Bill C-26, which eventually died on the Order Paper with the last federal election. CWIC commented on Bill C-26 in a letter to the minister. While we supported the intent of the bill in general, our view was that it did not go far enough in precluding bulk removals, especially those proposals for bulk removal of any practical significance. In particular, while it addressed removals from transboundary waters, it did not deal with the far more likely scenario of using transboundary rivers as the vehicle for exporting waters that were neither boundary nor transboundary.
The current Bill C-383, while in most respects very similar to Bill C-26, includes a critical addition in its amendment to the International River Improvements Act. The key provision in this respect is the prohibition on licences for international river improvements linking non-boundary or boundary waters to an international river, the purpose of which is to increase its annual flow. Especially in light of the broad definitions of ``international river'' and ``international river improvement'' in the legislation, this seems to finally effectively accomplish the task of precluding the use of transboundary rivers as a vehicle for carrying out the export of freshwater.
Finally, to echo Ms. Hurley's earlier comments, we recognize that Bill C-383 does not address all the concerns that have been raised by some Canadians with respect to water exports. However, issues such as tanker exports or bottled water are more appropriately dealt with through other legislative initiatives if they are thought desirable. Neither of the statutes that are the subject of the amendments proposed by Bill C-383 is an appropriate vehicle for addressing such concerns.
In sum, the Canadian Water Issues Council welcomes this legislation and endorses it. As Ms. Hurley has indicated, we are particularly pleased to see the level of cross partisan support it seems to have achieved to date.
Ralph Pentland, Acting Chair, Canadian Water Issues Council, University of Toronto: I would also like to thank you for this opportunity. My colleagues have covered the topic quite well, but I will add a few thoughts. I have been either following or working on this issue for about half a century now, 30 years while I was inside government and 20 years outside. I will not burden you with all that history, but I want to add a little bit of perspective to the issue.
There has always been a broad consensus among Canadians that we should not export water to the United States. Polls have shown that over and over again, but over the last 15 years or so there has also been a growing professional water expert consensus that one should not move water in any large amounts between natural river basins. That is a broad consensus. The federal government has had that policy for the last 10 or 15 years, and they give four reasons. One is to sustain the natural supply within water basins. The second is to prevent the introduction of non-indigenous and biota parasites, diseases and pollutants into receiving water basins. The third is to protect biological diversity and productivity within ecosystems. The fourth is to ensure the sustainable use of water to meet future needs of communities within watershed basins. That is the current policy.
As Mr. Saunders said, this came to a head 10 years ago on the Great Lakes. He mentioned one of the results of that were amendments to the International Boundary Waters Treaty Act. The other thing that happened at that time, because of the controversy, was a lot of interest in Parliament. I recall testifying before a parliamentary committee at the time because there was a lot of fear that Americans might want to start diverting massive amounts of water south. Someone might want to take it by ship to China and so on. That resulted in five years of very intense negotiations where Ontario and Quebec and the eight Great Lake states got together and negotiated two very effective agreements. One was between Canadian provinces and U.S. states, the other among Great Lake states in the U.S. That was passed into law in the U.S. in a compact and by the Congress and signed by the President in 2005, I think. That would effectively prohibit any major diversions from the Great Lakes.
There are small exceptions, as in this bill. The Great Lakes are covered off well both by legislation and by agreement. This one here fills in the remaining gap, which is the possibility that someone may divert water through a river — not from the river necessarily — running south into the United States. That is filling in the last gap.
I will leave it at that and be open to questions.
The Chair: Thank you for that information and for framing it. We heard testimony yesterday and I was trying to put the pieces together. You have done that very well as a framework for us. I think we are up to speed and I do have questioners.
Senator Downe: I would also like to thank the panellists today. I thought their presentations were excellent, very clear on their positions and the issues.
Ms. Hurley, my understanding is that like the other panellists, you support this legislation. Even though there are gaps as you indicated — potential coastal tanker exports are not covered by this bill — you and the other panellists support what this bill does. That is my understanding of your testimony.
Ms. Hurley: That is a correct understanding.
Senator Downe: That is the consensus of the room, and I know the opposition in the Senate is supportive of this legislation as well.
Chair, if you would allow me five minutes, this is a bit off topic. Since we are all agreed the bill is good, what are the major issues regarding water in Canada? Since we have your expertise here I would like to get educated.
Mr. Pentland: Climate change is the big one. Climate change, toxic chemicals and impacts of major resource extraction are the three big ones. Endocrine disrupting chemicals are the things that may disrupt development in children. This is the toxic substances issue. I will do a little bit of advertising. I have a book coming out in a month on these topics.
Senator Downe: I look forward to that.
I am from Charlottetown. We have a growing water problem, mainly because of the weather change. In Charlottetown, municipal officials are taking appropriate steps to restrict water, perhaps not cleaning vehicles in your driveway in the summer when the water table is low, but there is a concern. A large number of cruise ships go into Charlottetown. They buy bulk water, in effect. Many residents wonder why we are restricted locally but the cruise ships are buying bulk water. I assume they are buying it. The city is charging. Is this common? Again, this may be outside your expertise. It is one of those under-reported bulk water transfers, but some of these cruise ships are massive.
Mr. Pentland: One thing that every ship does is take on ballast water. They just take it on and do not pay for that generally. The main concern about ballast water is whether or not you are transferring foreign biota. A lot of the problems in the Great Lakes with foreign species have arisen because of ballast water being taken from one country and dumped off in another country. That is the big issue with regard to ballast water.
A lot of water is now shipped in bottles, and there is no restriction on bottled water exports because free trade agreements would prohibit that kind of prohibition. A lot of that takes place between continents. It takes place by ship.
I do not know of any bulk water exports per se that take place by ship right now. There are a lot of people trying to do that, but the economics do not work yet.
Senator Downe: When these cruise ships leave a port in Canada, most of them do not have any sewage treatment system, so they have to go X number of miles offshore. Is that part of the water contamination that you have information on? Is it in your book that is coming out in four weeks?
Mr. Pentland: No, but Canadian law does prohibit the dumping of sewage in Canadian waters. It is under the Canada Shipping Act or something. That is well regulated and not a major problem; it is not a major source of pollution.
Ms. Hurley: Being from Prince Edward Island, you no doubt know that your province is 100 per cent dependent on groundwater. It is the only province in the country for which that is true. On June 25, with the Munk School of Global Affairs and the Program on Water Issues, we will convene an international conference on that subject. We are looking at mapping and monitoring groundwater in this country, including the security angle of knowing where our groundwater is.
The head of the groundwater program from Denmark is coming. Denmark is in some respects very similar to Prince Edward Island in that it is a small country that is 100 per cent dependent on groundwater, and it is highly agricultural, with 25 million pigs and 5 million people. They are very worried about nitrates and runoff. In the 1970s, they started to have a lot of problems, so they put a program in place that is almost complete. We think it will be a very good model for a lot of people to hear about, particularly people from Prince Edward Island.
I will make certain that you are sent an invitation.
Senator Downe: I certainly appreciate that.
I am no expert on climate change, but if you live in Prince Edward Island, you see what is happening. We have these massive rainstorms now and tremendous runoff from the agricultural fields. Fish kills are becoming a problem, over and above what it does to the water.
Then we have these summers. For the first time that I can recall, I did not have to mow my lawn in August because there was simply no rain. It caused serious problems with the water table. It seems not to be changing.
I look forward to hearing about that conference. Thank you very much.
The Chair: I cannot resist: Professor Saunders, do you have a book or conference to put on the record?
Mr. Saunders: I do not have anything to plug, except perhaps a legal perspective on these broader issues. It touches on climate change and resource extraction, and it really goes to the whole question of who does what. That was implicit in Mr. Pentland's remarks, namely, how does the federal government see its role as opposed to the provinces?
Traditionally we have left resource management to the provinces, but some of the issues we are talking about now, such as climate change, raise questions as to whether those sorts of things can appropriately be dealt with by the provinces. If so, what is the role of the federal government? It does not have to be a heavy-handed role, necessarily. However, especially in terms of some of the disappointment with the follow-through on the 1987 Federal Water Policy, I think there are questions whether the federal government itself — and this goes across a number of governments — has clearly defined its role, whether it is a leadership role or an active role.
I have a pretty good idea of the federal role in the United States, but I am far less clear here. As I said, I think there is a fair bit of disappointment that the federal government has not followed through on its own fairly bipartisan water policy of 1987, which I should mention was authored by Mr. Pentland.
The Chair: I want to follow up with a supplementary question, Professor Saunders. I very much respect our Constitution and the federal-provincial roles, and I have no reason to believe that provinces are not as concerned or should be as concerned as the federal government.
I saw this bill as cautiously moving into filling the gaps, if I can call them that. It has been identified as moving water on a trans-river basis. Many of the issues you have talked about would touch right into the federal-provincial relationship; is that correct?
Mr. Saunders: It is true. I should say that this touches the federal-provincial relationship as well. The reason I think there has been virtually no blowback from the provinces on this, even though what is being asserted is either peace, order and good government or international trade and commerce, is that they share a common goal. For example, many provinces have their own legislation, so I think you are right that this is complementary.
It is a little more difficult in situations where you have upstream and downstream provinces that may have very different views of the appropriate use of the river. One could point to the Mackenzie River, for example, and development that is happening in the Mackenzie system. It may well be that the Province of Alberta, which is where I am from, has a somewhat different view than the Northwest Territories, which happens to be downstream of it. In that case, if differences cannot be reconciled, then it does raise the question of what is the federal role.
That is something that was addressed in the 1980s by the Pearse Inquiry on Federal Water Policy; they suggested that was a role that existed for most federal governments and most federal states. That role is imposing some method for assured settlement of disputes. That is just an example.
The Chair: It would not be settling the dispute but having a process.
Mr. Saunders: Exactly — to ensure the dispute gets settled.
[Translation]
Senator Fortin-Duplessis: I would like to begin by welcoming all of you to the committee. I am very impressed by the extensive experience all three of you have. I am so pleased to have you here, and I am delighted to learn that you support this bill.
I already asked my first question yesterday, but I would like to hear your answer. The sponsor of the bill, Mr. Miller, told us yesterday that the water level in some of the Great Lakes was at a record low. What environmental consequences could that have in the short and long terms, and what is causing that drop right now?
[English]
Mr. Pentland: Regarding the Great Lakes, if you think of Lake Michigan and Lake Huron, for example, there are three to five things that cause changes. There is the natural variability of climate so that the water level will change by five feet or so over time. It also changes by about a foot every year because there is an annual cycle. On top of that, there is climate change, which is probably lowering the lakes. Navigation dredging in the St. Clair and Detroit Rivers lowered Lake Michigan and Lake Huron by a foot over the last century. There is consumptive use of water — people taking water out — and then there are diversions of water. There is water diverted out at Chicago, for instance.
There are a number of causes, but the one that someone should worry about the most over the long run is climate change, and we do not know how big that will be. I have seen model results ranging anywhere from no change to a lowering of four or five feet. The impacts could be potentially very big.
People living up on Georgian Bay are suffering a great deal already; their water level has probably been lowered by three feet over the last century. For someone with a cottage on Georgian Bay, they now have to walk a mile out to get to the water. They cannot get their boats in. There are major impacts on commercial navigation and also on hydro power because less water is flowing through the system. There are major aesthetic and economic impacts associated with water levels in the Great Lakes.
There is a lot of controversy about whether one should go in and build works to raise the levels back up to compensate for that lowering. An International Joint Commission report on that topic came out in the last two weeks. It is so controversial that the IJC cannot agree on a solution. Some recommended one thing and the chairman from the U.S. recommended a different thing.
[Translation]
Senator Fortin-Duplessis: Are there laws that prohibit the dumping of industrial waste in the Great Lakes?
A few years ago, I saw a news report on RDI that showed the devastating effects of industrial waste. It featured the mayor of an industrial town in the U.S. who said he would rather see the residents in his town working than worry about water purity.
Do you know whether there are laws prohibiting that practice?
[English]
Mr. Pentland: Yes, there are laws in both countries at the federal, provincial and state levels. There is a question of how effective they are. This is a difficult and delicate topic. The incidence of cancer and problems of child development in areas that are highly polluted are much higher than they are in areas that are not as polluted. It is difficult to separate out other things. There is pollution but there are also lifestyle considerations. For example, people may smoke more and drink more. There are also gender and race considerations. It is difficult to pin it directly on that.
In the 1960s and 1970s, the Great Lakes, in particular Lake Erie, were becoming covered with algae — lots of nutrient pollution. That problem was mostly resolved in the 1970s and 1980s with control over nutrients in detergents and other types of municipal control. In the last 10 years, that problem is beginning to reoccur because we are not keeping up. A great deal of stinking algae is washing into the shores again. It is becoming a big problem again.
In the last few months, a new agreement was signed between Canada and the U.S. on Great Lakes water quality. It introduced some new features in that it deals with climate change, which it did not do before, invasive species and some other things. It is my view that in some ways it is less strong than the old agreement because it has fewer specific objectives and less specific timetables. In some ways it is better and some ways it is worse. It is a problem that is getting worse again, after getting better for a number of years.
Senator Nolin: Important offences are created by the bill. For example, fines can be as high as $1 million to $12 million. My question could be seen as general, but you will see why it is important in considering the bill.
Clause 36 says that a court may consider aggravating factors. The first of those aggravating factors that could influence a judge is whether the offence caused damage or risk of damage to the environment. Could you please describe the potential environmental, economic and social effects of bulk water removal from Canadian lakes and rivers?
Mr. Pentland: I will start.
Senator Nolin: I do not need a long answer. I am just looking for the kind of information that a judge would like to hear to convince him or her that there is such an aggravating factor.
Mr. Pentland: I could respond as an engineer, and Mr. Saunders may want to say something as a lawyer.
The prohibition, as mentioned before, is based on four factors: to sustain the natural supply of water within basins; to prevent the introduction of non-indigenous biota, parasites, diseases and pollution into receiving water basins; to protect biological diversity and productivity within ecosystems; and to ensure the sustainable use of water to meet the future needs of communities within water sheds. A diversion from a basin through transboundary water to the U.S. could impact all four of those things, i.e., the water to meet the needs in the donor basin; the biological diversity in the donor basin; the introduction of biota between basins; and the natural water supply within the donor basins. It would have impacts on all of those areas.
Is there a legal answer to that?
Mr. Saunders: I would point out that the offence provisions are probably not designed specifically for this act. It seems that they have been largely lifted from things like the Canadian Environmental Protection Act. Some things, like the right to search houses, seem a little odd, but they are more or less the kind of boilerplate that one puts in. In some cases, it might even be overkill, but certainly they are adequate to carry out the administration of the act.
Senator Nolin: It cannot be vague and must be focused because we are giving authority to a judge to decide whether there was an aggravating factor. He or she will be influenced by that. My question was quite broad and general, but that is exactly how the bill is written. I am trying to think of a judge who is not an expert in your field and how he or she would be influenced by your testimony? Definitely, a judge would seek someone to convince himself or herself that it is an aggravating factor, considering the scale of the fine between $1 million and $12 million; we are talking big money.
Mr. Saunders: That is a problem judges have generally with environmental law, especially because in Canada we do not have what they have in other countries: specialist environmental courts.
It is interesting that you raise this question because two or three weeks ago we had a symposium for judicial education aimed at judges and practitioners in terms of how to introduce this sort of evidence in court and how to weigh the evidence.
There was clear recognition by one of the judges, from the Court of Appeal of Ontario, as it turns out, that this is a problem. Judges are learning all the time because we do not have these specialist courts.
Senator Nolin: There is a long list of aggravating factors in the bill.
Mr. Saunders: It is not unique to this bill. This is very much boilerplate type of legislation.
Senator Day: It is good that we are all on the same side of this bill. I am trying to grasp the scope of the bill. Did you find it a bit peculiar that this is a private member's bill as opposed to a government bill, or are you content that there seems to be support for it?
Mr. Saunders: We are happy to see anyone do this. As you know, the original government initiative, Bill C-26, is similar to this bill. The significant change is to the International River Improvements Act, which is crucial. The rest of the bill looks similar to its predecessor. There were initiatives from other private members in at least one other party. Mr. Francis Scarpaleggia had a bill before the house. It indicates that regardless of whether this is a formal government initiative, there seems to be fairly broad support for this type of legislation. The exact approach used might vary, but the ultimate goal seems pretty much accepted.
Senator Day: We are all content that it is here, however it came before us.
My second question is in relation to the rivers crossing the border. I would like to focus on a river that starts in Canada, flows to the U.S. and then back into Canada. I am thinking of the Columbia River.
Senator Wallace and I are from New Brunswick, and the lower part of the Saint John River is very important. Other than an international agreement, a bilateral agreement between Canada and the U.S. or something developed by the International Joint Commission, what solution exists? I can think of other countries of the world, not just Canada and the U.S.
Senator Fortin-Duplessis and I have had a chance to look at what is happening in the upper reaches of the Mekong River and how that is affecting all of the countries down below. Are there any international principles that can be applied here, or does it take a bilateral agreement between countries to deal with that kind of situation?
Mr. Saunders: I think there are two answers. Most of the major basins, like the Nile, the Danube and the Rhine, either have agreements or an agreement is being worked toward. What one can say is that, in the absence of agreement, there are often serious problems.
You talked about the Mekong. It is one of the rivers that I have had some involvement with, through the Mekong River Commission. The most striking thing about my experience there was the degree to which there were disparate interests and contexts for each country. Thailand is very different from Laos in terms of development. That said, international principles have been developed over time and are generally recognized now as setting out the customary international law for river basin management. Those principles are found in the UN Convention on Non-Navigational Uses of International Watercourses and in things like the Helsinki Rules, put out by the International Law Association. A number of principles that have been developed over time, and indeed much of modern environmental law has developed from the early work on river basin management.
However, you are almost always better off if you have a more specific agreement precisely because those customary principles are so general. Canada and the United States have in place an arrangement that is the envy of most countries in the world, and that is for historical reasons partly, shared common law backgrounds, more or less shared cultural similarities and so forth.
The International Boundary Waters Treaty Act, if you actually look at it, departs from those customary principles in a few important respects, and that treaty would override those customary international principles because it is a bilateral agreement. Although the treaty itself is somewhat old, the general consensus is that we would never, ever want to get rid of it.
We would also have some problems in renegotiating it because, right now, it is an empire treaty. If you change that treaty significantly, there would be questions as to the federal authority to implement it.
Senator Day: Provincial jurisdiction, yes.
Senator Ataullahjan: Can you briefly explain CWIC's model act and how it differs from this legislation? CWIC's model act seems to focus on basins rather than international boundaries. Why is that?
Mr. Saunders: It is true that our proposed model act focused on inter-basin transfers rather than international boundaries. There were a few reasons for that. One is a question of harmony. The International Boundary Waters Treaty Act, and especially the amendments in 2003, also talked about basin boundaries, so it made sense for us, when we talked about transboundary rivers, to continue using basin boundaries.
A second reason from the perspective of river management is that that is what we should be focusing on. Rivers do not know whether they have gone into another country, and you should be managing the basin rather than managing on the basis of geographical differences.
The final reason was in terms of our international trade obligations. While I think that Bill C-383 is consistent with our NAFTA obligations, one would have to say that an approach based on basin boundaries would be more consistent with, at least, the spirit of NAFTA. Those, generally, were the major reasons for focusing on basin boundaries rather than geographical boundaries.
That said, the net effect in terms of precluding transfers is probably effectively the same.
Senator Ataullahjan: You mentioned that we should not be chasing economic gain. My understanding is that the purpose of this bill is environmental rather than economic in scope. Would you like to comment on that?
Mr. Saunders: I agree, and that is why I said that it is consistent with our proposition that we should not be chasing economic gains. It is not just that they are economic gains but also that they are very doubtful economic gains. If you look at the proposals put forward in the past, especially the mega-projects proposed in the 1960s and even into the 1990s, the economics were very questionable. They were typically based on us sending almost free water abroad.
I have nothing against economic gain. I think most people are in favour of it, but I think that there was very questionable economic gain at the root of most of the proposals that have been mooted.
Senator Oh: Could we export bulk water from the St. Lawrence River since the water flows into the Atlantic Ocean? Is there any study on exporting fresh water from there, and is that affecting the upper level of the lakes?
Mr. Pentland: I will try to answer that question.
A pretty major study was done by the Province of Newfoundland about seven or eight years ago. They concluded that it would not be economically feasible to export water by tanker from Newfoundland. If it is not feasible from Newfoundland, it is definitely not feasible from Quebec because you have another four or five days of travel in between.
The other thing is that Alaska has had a ``for sale'' sign out for about 20 years now, and they still have not sold their first shipload of water. It does not work economically.
Senator Downe: I was not aware that Newfoundland undertook a study because they thought that there was an economic opportunity.
Mr. Pentland: They had a particular proposal for a lake in Newfoundland. There was a specific private sector proposal that brought about that study. They studied the legal aspects a great deal, as well as the economic and environmental ones. It was a major study, and they concluded, at that point in time at least, that it would not pay.
Senator Downe: The Newfoundland government did not reject, out of hand, the principle of selling bulk water?
Mr. Pentland: No, they just said that it would not work at that point in time.
Senator Downe: You could conclude that, if it had been financially viable —
Mr. Pentland: There is another case, a very interesting one. Sun Belt Water, a private company, had a licence at one time to export water to Santa Barbara from British Columbia. In the end, Santa Barbara decided that it was more economically feasible for them to do desalinization, so it fell through on those grounds. Also, B.C. changed its mind and passed a law saying that they would not allow it anyway. That has been in the courts ever since. I do not know if it has ever been solved.
Senator Oh: If there is a possibility of exporting in bulk, that could be done.
Mr. Pentland: This particular bill, Bill C-383, would not prevent that. It may be that in some cases provincial law would prevent it. It definitely would in B.C., but I do not know about Quebec. They have a law based not on river basins but on geographical boundaries. Certainly the federal law would not prevent it. This bill would not prevent tanker export.
[Translation]
Senator Demers: Good morning and thank you for being with us today.
[English]
I am replacing another senator today. I am impressed with Bill C-383 as well as your presentation. It was good education for me, too.
Could you comment on the adequacy of legislation or regulation adopted in various provinces to protect water bodies located entirely within provincial boundaries from removal of water in bulk?
Mr. Pentland: At the current time there is legislation in nine of the ten provinces, all except New Brunswick. I believe they have not done it simply because they have not gotten around to it. It varies. Sometimes it has loopholes and sometimes it does not. Sometimes the cabinet can overrule it and sometimes it can be overruled easier than that. Sometimes it may not stand up to a trade law challenge. The ones that are based on river basins probably would because they are environmental, but the ones based on geographical bounds may not stand up to a trade law challenge. That is one of the reasons it is good to have broader federal legislation to catch a lot of these loopholes that exist in provincial legislation.
Senator Demers: Could you describe the types of possible bulk water removal that Bill C-383 would address and the type that it would not address?
Mr. Pentland: I think Mr. Saunders mentioned it, but it would not address bulk water export by marine tanker, bottled water or anything in small containers; it is defined in trade law. You cannot prevent export of water in small containers.
It may not prevent something by train or truck, for example. It would do all the big ones like the Grand Canal scheme or water diverted from Alaska. It would prevent all the big ones, but there are little ones that would slip through.
The Chair: Ms. Hurley, Mr. Saunders and Mr. Pentland, thank you. You can see the interest and the response you have received from the senators. It has been extremely helpful to put this bill in the context of water issues within Canada. We thank you for appearing here.
Honourable senators, we can go to clause by clause if that is your wish. We could take a break or go right into it. I see a nodding of heads. Is it agreed that the committee proceed to clause-by-clause consideration of Bill C-383, An Act to amend the International Boundary Waters Treaty Act and the International River Improvements Act?
Hon. Senators: Agreed.
The Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 1, which contains the short title, stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 2 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 3 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 4 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 5 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 6 carry?
Hon. Senators: Agreed.
The Chair: Shall clauses 7 to 15 carry?
Hon. Senators: Agreed.
The Chair: Shall the schedule carry?
Hon. Senators: Agreed.
The Chair: Shall clause 1, which contains the short title, carry?
Hon. Senators: Agreed.
The Chair: Shall the title carry?
Hon. Senators: Agreed.
The Chair: Is it agreed that I report this bill to the Senate?
Hon. Senators: Agreed.
The Chair: Thank you for the cooperation and the knowledge about water. I think we have learned something from this.
Before we adjourn today, we are waiting for the report on our Turkish study. I have looked at the first draft and Ms. Mychajlyszyn is at the point of editing it. It was in very rough form, so she wanted the opportunity to get feedback from me. I thought she was on the right track. She is going to condense it because it was rather long, and I think we will have it by Monday morning. Monday morning we will have the body of the report, and the steering committee will receive it at that time.
I will be looking at the opening, conclusion and recommendations and then consulting the steering committee. Hopefully we will have something to discuss next week on the Turkish study, in one form or another, so we can move the process forward as quickly as we can.
(The committee adjourned.)