Proceedings of the Standing Senate Committee on
Foreign Affairs and International Trade
Issue 25 - Evidence - Meeting of May 1, 2013
OTTAWA, Wednesday, May 1, 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 4:17 p.m. to give consideration to the bill.
Senator A. Raynell Andreychuk (Chair) in the chair.
[English]
The Chair: Honourable senators, the Standing Senate Committee on Foreign Affairs and International Trade is beginning its examination of Bill C-383, An Act to amend the International Boundary Waters Treaty Act and the International River Improvements Act.
To begin our study, we have the sponsor of the bill, Larry Miller, Member of Parliament for Bruce—Grey—Owen Sound. Sound. I just said to Mr. Miller that we are a tough bunch. He can make his opening statement, and stay tuned.
Mr. Miller, thank you. The floor is yours. You can explain your bill and why you came to propose it. Welcome to the committee.
Larry Miller, Member of Parliament for Brucee—Greye—Owen Sound, sponsor of the bill: Thank you, Madam Chair, and thank you for having me here, honourable senators. Senator Downe reminded me on his way in that he would not be too hard on me.
I live in what I think is one of the most beautiful parts of Canada, on Georgian Bay, and water is a significant issue for people in my riding, including myself. Throughout, as I brought this bill forward, I always thought that there was maybe not strong enough language to protect us from bulk water exports, including diversions out of the country. This was a bill that, as you might all know, the government tabled back in 2010. I believe it was Bill C-26, and it died on the Order Paper in the 2011 election. This bill has been amended from that, but a lot of it is the same. That amendment came at the request of the Munk School of Global Affairs. They were one of the groups who thought that it could be a little stronger, and we have dealt with that.
Through the process, I have been very fortunate to have unanimous support, at all stages, through the House of Commons, from every party. I have had emails of support on this issue from residents right across the country, literally in every province and territory.
In addition to the Munk School's support, I have had support from the Gordon Foundation. I would say that both of these organizations are quite credible institutions if you look into them.
I did not prepare anything specifically, Madam Chair, other than those opening comments. I certainly hope that the honourable members of the committee will see the good parts of this bill and find, at the end of the day, that you can support it. In the meantime, I am certainly open and look forward to answering any questions that you might have.
The Chair: The bill was prepared for you through the parliamentary process and vetted through the legal department of the House of Commons. Is that correct?
Mr. Miller: Yes. We went through all the normal channels, I guess you could say.
The Chair: It initiated from you as a principle or as a paper?
Mr. Miller: To enlarge on it, I did say that the main part of this bill was a government bill at one time. This was quite an interest to me so in this Parliament I asked if I could take it forth as a private member's bill. As I explained, there are some amendments in there to deal with concerns that some groups and individuals had. We still specifically wanted to stay out of provincial jurisdictions. There may be some questions and I can explain further, but I hope that answers your question.
The Chair: Thank you.
Senator Downe: Welcome to the committee, Mr. Miller.
I am impressed with your bill and I want to start by following up on the question the chair asked. You indicated it was based upon a government bill. Do you know why the government did not reintroduce the bill? Why is it coming to us as a private member's bill?
Mr. Miller: Senator Downe, I take it as a compliment and I think it was done as a favour. This was an interest of mine, and I am 110 per cent sure that the government would have brought this bill forward if I had not. Whether a bill comes forward before either house by an individual member or by the government itself, as long as it gets passed into law, it should not matter how it gets there.
Senator Downe: I agree totally. The only problem is government bills in the Senate have more of a status and a better chance of getting through quickly. Private members' bills sometimes get caught up in procedural issues.
You indicated there are some amendments accepted through the process in the House of Commons. Is there any major change between what you are proposing and the original bill of the government?
Mr. Miller: Yes. One criticism of the original bill was that an individual or a company or whatever could basically divert water from a lake or river that was a non-transboundary waterway and connect it up to a transboundary waterway. The main amendment and change in this bill deals exactly with that, and that would not be allowable.
Senator Downe: Thank you.
[Translation]
Senator Fortin-Duplessis: It is a pleasure to have you with us today, Mr. Miller. Here is what I have to say and ask. The vitality of the tourism industry in many communities across Canada depends on the beauty of our lakes, rivers and other waterways. If I look at the work done on this bill in the House of Commons, I see that your riding is next to two famous and massive international bodies of water.
You talked about the impact that bulk water removal in the Great Lakes neighbouring your riding would have on your region's tourism industry. For the benefit of the senators present and the Canadians watching us, could you tell more about the devastating effects of that water removal?
[English]
Mr. Miller: Thank you for the question, senator.
In my riding, the tip of the Bruce Peninsula is kind of a divider between Lake Huron proper and Georgian Bay. Georgian Bay is still technically the same body of water, and I live on the Georgian Bay side of the peninsula. However, the tourism factor on the peninsula is huge, as it is all over the Great Lakes and Georgian Bay.
At the tip of the Bruce Peninsula, there are two national parks. Some people may not know of their existence. There is the Bruce Peninsula National Park, which is land-based, and the very first underwater national park in Canada is Fathom Five National Marine Park, which is also there. One of the main reasons it was made into a national park is that there are more shipwrecks in that part of the Great Lakes than there are in almost any other section. The water is so clear there that a lot of tourists come for diving. There are glass-bottom tour boats that are busy with thousands of people every day where they go out and can be 20, 30 or 40 feet above a shipwreck but they are looking at it just like looking out a window.
That type of tourism is huge, so the quality of water is huge but also the quantity. Right now, we are going through part of a natural cycle. The Great Lakes, Lake Huron and Georgian Bay are now at their lowest levels since levels have been recorded, and that in itself is a hard thing to deal with from a tourism aspect and for people who draw water from the lake. It is hard to get to the docks or whatever. To add the taking of bulk water or diversion of bulk water would compound that concern. As I said, there are already stresses on our tourism because of the low water levels. We do not need more.
[Translation]
Senator Fortin-Duplessis: So water levels have already dropped in the Great Lakes?
[English]
Mr. Miller: Yes. Right now the water levels are at or just slightly below the all-time recorded low. Just in recent weeks, with the snow melt, it has come back a little bit, but it is still very low and it is a huge concern to us.
Senator Nolin: Welcome, Mr. Miller. In your research, or the research you had access to, I wonder about the adequacy of legislation at the provincial level to take care of such a situation. Can you comment on that? Did you canvass what was happening not only in Ontario but also across the country? I ask this question because this is not the first bill that we in the Senate are looking at, and federalism in Canada needs to be properly taken care of, and water is one of those items where there is federal and provincial jurisdiction. We share resources, and we are concerned about the quality of the relationship the federal government has with the provincial level. That is why I am concerned. Have you looked into any kind of research to evaluate the adequacy of how the provinces are taking care of that situation?
Mr. Miller: Yes, I did, senator. On that note, when I first had thoughts of a bill like this, my initial idea was to include waters everywhere in Canada. However, once I looked into it, in answer to your question about research, I found out that there are provincial laws in place to protect those waters outside of transboundary waters. It became clear to me after a little while that if I did what my original intent was, we would have crossed into provincial jurisdictions. In provinces like your province of Quebec, or Alberta, or Ontario, right off the bat it would have raised some iron concerns about stepping in there. On some good advice and information, I chose not to go there. We need to look after what we have control over and let the provinces look after what they control.
Senator Nolin: Have you been able to consult with them? To what extent have you been able to be in touch with them, or was it only through research that you came to those conclusions?
Mr. Miller: To be honest, I did not contact any of the provinces specifically, but through information it became clear that the same waters that I was thinking I was going to go ahead and protect under this bill in fact were already being looked after at the provincial level, and I thought why go there. You end up in a provincial squabble that none of us needs.
Senator Nolin: Good federalism. Have they tried to get in touch with you? They are probably aware that you are championing the bill.
Mr. Miller: I have not been contacted by any province specifically, and I would think that that is a good sign. I think that is just my read on it. If there was a concern, I would have hear from them instantly. That old saying, ``No news is good news,'' is how I take this.
Senator Nolin: It is good. Thank you.
Senator Ataullahjan: Thank you for being here, Mr. Miller.
My question is threefold. Why was the definition of bulk removal proposed in addition to the removal of boundary waters in bulk, and on what basis was the threshold of 50,000 litres per day set?
Mr. Miller: I think you have to come up with a number somewhere. You cannot make it too onerous. The city of Owen Sound, which is in my riding, or Toronto, Sault Ste. Marie or any town or city that is on water draws water for personal use for the residents there. I do not believe you can or should put something in there that would restrict that. If the city of Owen Sound, for example, in my riding, or the town of Wiarton, which is where I live, has an increase in the number of residents, it can still increase the amount of flow that it takes out, but that is not really bulk water removal. As we know, water taken out for drinking or what have you ends up back in that watershed eventually. To answer specifically why that number, I just think it was probably in the original bill, and, when I looked at it, it did not seem like a bad number to me. I hope that answers your question.
What was the first question?
Senator Ataullahjan: Why was the definition of bulk removal proposed in addition to removal of boundary waters in bulk?
Mr. Miller: If you are talking about bulk water, I think you need a definition. Is there a certain part of the definition that you have a concern with?
Senator Ataullahjan: No, I just wanted to know because they had bulk removal, and you added an addition.
Mr. Miller: I am not a lawyer, but I would think that, should there ever be a challenge, it would probably be a good thing to have an actual definition in there.
Senator Ataullahjan: Thank you.
The Chair: I hesitate because I was going to answer the question. However, I think our next panel might help us with that, so I will not step in to do that.
Senator Ataullahjan, are you finished?
Senator Ataullahjan: Yes.
Senator Wallace: Thank you, Mr. Miller. It is a pleasure to have you here. I think most people around this table are aware of this, but I am thinking that those viewing this on CPAC might not understand what the bill is about or is directed towards.
Perhaps you could explain how it relates to the potential export of water. I am thinking, in particular, of rivers that flow from Canada to the U.S., as opposed to lakes, the Great Lakes, for example, which are bodies of water that are in both countries. How does the bill relate to those waters?
Mr. Miller: In direct relation to the United States?
Senator Wallace: Yes.
Mr. Miller: Bulk water removal can happen in two ways. One of them is to the United States. There is an organization that has eight northern states that border on the Great Lakes in Ontario and Quebec and that meet all the time. Of course, bordering on the Great Lakes, they all basically have the same concern. If somebody comes forward with some kind of proposal to move water out of there, you have a body that can deal with this. A lot of people point at bulk removal of water, and maybe some of the bad side is the diversion that goes out of the bottom end of Lake Michigan, through Chicago. That has been there since the late 1800s or early 1900s, and we cannot change that.
This bill would stop that, say, from being enlarged. There is a process. Anybody can apply. The history seems to be that, for the Great Lakes states and the two provinces here, having the same interest about water levels, as one of the senators mentioned, that has not been an issue.
There is another way that bulk water can go out, one of the main reasons that got me concerned about this. A number of years ago, there was a suggestion by a Saudi Arabian company that they were going to send ships over here and basically sail them into the Great Lakes, load them up with our fresh water and take it back to the Middle East. That did not seem right to me, then, and it still does not. This bill will certainly not allow that to happen.
Senator Wallace: Are there any water transactions that are contemplated that this bill is responding to, or is it more of a general concern that you have had in bringing this forward?
Mr. Miller: There are none right now that I am aware of. However, I first got elected in 2004, and in 2005 or 2006 there was a proposal by a company in British Columbia. There was a high altitude mountain lake with really clear water, and they were going to pipe that out of there, load it onto ships and take it somewhere. I remember that at the time I wrote to all members of Parliament in British Columbia and all provincial members, urging them not to support that. That was an initiative I took upon myself. I think it is the wrong thing to do. This will basically stop any proposals, like the two that I mentioned, from coming forward.
Senator Wallace: With our neighbour to the south, when we think of the export of water, the U.S. market would be the most obvious one. In preparing the bill, did you consider how NAFTA might impact putting a limit on the export of water to the U.S.?
Mr. Miller: Some individuals have tried to say that water is like any other commodity, and while I think that water is a commodity, and a very precious one, I do not think it is a commodity that you can put on the same wavelength, if I could use that term, as gold, oil, gravel or whatever. I do not think that, within NAFTA, it is an issue.
A lot of people will say that the United States — the Midwest — will want our water at some point. Of course they will, but that does not mean that we have to allow it. I am hoping that this bill is a huge step in ensuring that that kind of thing does not happen.
You can never stop somebody from trying to do something, but you can stop them from actually getting their way on it. Hopefully this bill does that.
Senator Wallace: You can do the best you can.
Mr. Miller: Yes.
Senator Wallace: Thank you.
[Translation]
Senator Fortin-Duplessis: Are there any ways to check whether the U.S., which shares those lakes with us, is removing water in bulk?
[English]
Mr. Miller: Your question is whether any states are now extracting bulk water? Other than Chicago, Green Bay, Cleveland or any other American city that draws water for its own use, the same as, say, Toronto or Windsor, and the diversion out of Lake Michigan that I mentioned, there are no other ones that I am aware of.
Senator Nolin: Mr. Miller, in answer to my colleague, Senator Wallace, you just explained how concerned you were by this idea of having the top of a mountain in British Columbia basically stripped of snow, of that snow becoming water and basically being shipped somewhere else in the world. Do we understand correctly that this bill will prevent that?
Mr. Miller: No. I would have to go back and check, Senator Nolin, but I am pretty sure that that lake would have come under provincial jurisdiction because it was not a transboundary waterway. No, it would not change that.
I should stress that at the time that that plan or proposal was put forth, I believe the laws were probably in place.
Senator Nolin: Provincially?
Mr. Miller: Yes. When I and a number of others started ringing the alarm it got everyone thinking. It was slipping under the radar somewhat. There can be provincial or federal laws, but society also has a certain role and responsibility sometimes. It was quite clear that once the public became aware of that proposal, the company that was proposing it just left town overnight. I chuckle about it now because my colleague, who was the member of Parliament at that time, was not very happy with me because of the possibility of jobs coming into the area. I believe she realized at the end of the day that it was not the right thing to do. We are still speaking — I will say that — and she is now retired.
Senator Nolin: Thank you.
Senator Lang: I would like to follow up on Senator Wallace's questions in respect of organizations or companies asking to get into the bulk water removal business. That leads me to this question: With the tabling of this bill, and the time it has been here, have you had any response from the neighbouring American states that would be the recipients of this bulk water removal if there were no laws against it? Have you had any response at all?
Mr. Miller: The only response I have had from south of the border was favourable, and it was some emails that I received basically giving me kudos for bringing the bill forward. One of them was from someone in Michigan. I apologize, I cannot remember the name. However, out of the two or three responses I did receiver, they were in full support of what I had coming forward. That is really all I can tell you.
Senator Lang: Thank you.
The Chair: Mr. Miller, I think we have exhausted the questioners. I trust that this was not as difficult as I claimed it might be. Thank you for coming forward and expressing your point of view.
Senator Downe: As the deputy chair, I would like to thank Mr. Miller as well. It is our intention, subject to some testimony we hear that would change our minds, to be supportive of this bill. We think it is a good beginning. We think there are many more steps that could be taken, and we will be pushing the government and discussing some of those issues with officials over today's meeting and tomorrow. There is much more that can be done to address some of the concerns that have been raised by senators around the table, but I would like to congratulate you on a good beginning, Mr. Miller, and we thank you for bringing it here.
Mr. Miller: Thank you for your indicated support.
The Chair: Thank you, Senator Downe. That was a good closing to the panel.
Honourable senators, we are now at our second panel. The Standing Senate Committee on Foreign Affairs and International Trade is examining Bill C-383, An Act to amend the International Boundary Waters Treaty Act and the International River Improvements Act.
In this panel we have, from Foreign Affairs and International Trade Canada, Mr. Martial Pagé, Director General, North America Policy Bureau; Mr. Stephen Gluck, Senior Policy Analyst, U.S. Transboundary Affairs Division; and Mr. Dean Sherratt, Legal Officer. From Environment Canada we have Ms. Manon Lalonde, Senior Project-Program Engineer, Hydrological and Climatological Services, Meteorological Service of Canada; and Ms. Laura Farquharson, Executive Director, Legislative Governance, Legislative and Regulatory Affairs, Environmental Stewardship Branch.
I welcome all of you to the table. I do not know if there are some opening remarks from Foreign Affairs and then from Environment Canada? If you have, please proceed, otherwise we will turn to questions.
[Translation]
Martial Pagé, Director General, North America Policy Bureau, Foreign Affairs and International Trade Canada: Thank you for your invitation to appear before this committee to speak to Bill C-383, the Transboundary Waters Protection Act.
I will make a joint presentation on behalf of the Department of Foreign Affairs and International Trade, and Environment Canada.
I am joined by my colleagues from DFAIT, including our legal expert, who will be able to answer any specific legal questions. Stephen Gluck has been working on this issue for a number of years. He could even answer relevant historical questions. Also joining us are our colleagues from Environment Canada.
Bill C-383 is a private member's bill that aims to enhance federal protections against bulk water removal from Canada.
It does so by amending the International Boundary Waters Treaty Act and the International River Improvements Act. Currently, the International Boundary Waters Treaty Act prohibits the bulk removal of boundary waters, as Mr. Miller explained earlier.
These are bodies of water that sit on the boundary, such as the Great Lakes. Section 13 of the statute clearly states that no one can use or divert boundary waters by removing them and taking them outside the water basin. Bill C-383 will now prohibit bulk removal from transboundary waters, such as rivers crossing the international boundary.
The amendments proposed in the Transboundary Waters Protection Act would move some exceptions and definitions from the International Boundary Waters Regulations to the act itself. They would also strengthen certain provisions for levying and enforcing penalties. Finally, amendments would be made to the International River Improvements Act to prevent a river flowing from Canada to the United States from being used as a pathway to transfer water in bulk.
[English]
For the most part, Bill C-383 resembles a government bill from the previous Parliament, as was explained to you earlier, Bill C-26. That bill, tabled in the House of Commons in 2010, enhanced protections to prevent the bulk removal of water from Canadian boundary and transboundary waters. Bill C-26 included the addition of transboundary waters to the current protections against bulk water removal from boundary waters found in the International Boundary Waters Treaty Act. It moved exceptions and definitions found in the regulations into the body of the act, and it strengthened enforcement and penalty provisions. Bill C-26, as was explained earlier, died on the Order Paper with the dissolution of the last Parliament.
I think this was also one of the questions you asked earlier. The notable difference between Bill C-26 and Bill C-383 is the proposed amendment to the International River Improvements Act that will prevent the linking of non- transboundary water to an international river if this increases the annual flow of that river at the international boundary. This amendment will prevent international rivers, waters that flow from Canada to outside of Canada, from being used as a conveyance for bulk water removals, and it addresses an activity that some water experts pointed out could have been exploited for that purpose.
Since the introduction of Bill C-383, government officials have had the opportunity to review the bill and to consider the potential implications that these amendments could have on the federal statutes that this legislation seeks to amend. During the House of Commons standing committee's review of the bill, several amendments were introduced and accepted to ensure that the bill does what it aims to do.
This included the addition of a purpose clause to make clear that the reason for the prohibition is to avoid the risk of environmental harm that could come from the permanent loss of water from Canadian ecosystems. Other amendments made during the House of Commons committee review included some changes to the International River Improvements Act to ensure that definitions are consistent and that the protections in the International River Improvements Act are aimed at preventing actions that would increase flows across a boundary, as we said earlier.
Thank you again for the opportunity to discuss Bill C-383 today. We would be happy to answer your questions.
The Chair: Thank you. Is there a submission from Environment Canada or just questions?
Laura Farquharson, Executive Director, Legislative Governance, Legislative and Regulatory Affairs, Environmental Stewardship Branch, Environment Canada: No, that was a joint submission.
The Chair: Thank you.
Senator Downe: Again, I want to emphasize the good work Mr. Miller did on his bill, but it is a mystery to me why the government has not introduced any legislation to take this issue to its logical conclusion. I am sure no Canadian would want to bulk export water. It is my understanding that this current bill excludes 90 per cent of Canada's freshwater resources. Do you know whether that is correct?
Mr. Pagé: I do not know. This bill talks about boundary and transboundary waters.
Senator Downe: Other waters not on the boundary are excluded?
Mr. Pagé: Yes. However, the bill says that you cannot divert non-boundary waters linking to a transboundary water or river to export it, so there is a link there.
Senator Downe: You cannot, for example, build a pipeline.
Stephen Gluck, Senior Policy Analyst, U.S. Transboundary Affairs Division, Foreign Affairs and International Trade Canada: This bill, as has been said, covers boundary and transboundary waters. Boundary waters were obviously covered before, in the amendments in 2002. This brings in the transboundary waters. As Mr. Pagé said, the other interesting component of this is stopping the linkage to an international river. You were talking about the 90 per cent of other waters. I am not sure of the percentage, but this bill would preclude trying to link those into a south-flowing river.
Senator Downe: All right.
Mr. Gluck: As stated in some of the House of Commons testimony about the bill, it is designed to be complementary to the provincial regulations and provincial legislation that is out there. Water is being protected in this country. It is just through a combination of federal and provincial protections.
Senator Downe: I am not sure if I agree with your last statement. This bill, for example, would not allow a pipeline to be built from one region crossing the border with water, but there is no provision preventing a province from changing its position. For example, Newfoundland and Labrador could easily change its position, load up a tanker of water and ship it to Mexico. This bill does not prevent that.
Mr. Gluck: If it is not from boundary water, that is right.
Senator Downe: Again, it is a mystery why the Government of Canada would not work with the provinces to prevent that because I am sure that most Canadians, if not the vast majority, would be opposed to it.
This might be outside your area of expertise, and if it is, I will save it for other witnesses. I am wondering if this bill would leave Canada open to a trade challenge under NAFTA should a province, together with a private investor, challenge the bill's prohibition on water exports.
Dean Sherratt, Legal Officer, Foreign Affairs and International Trade Canada: This bill does not deal with exports. This bill deals with water in its natural state and, as such, is intended to avoid the application of trade rules. I do not agree with the premise of your question to begin with.
Senator Downe: The premise was that the bill does not protect against the export of bulk water if the provinces change their position, and, therefore, we could be open to a NAFTA challenge. That is another area the Government of Canada is not protecting by bringing in a government bill and leaving it up to an MP, who did the best he could. It is a good bill, but where is the government bill?
Mr. Sherratt: All I can say again, sir, is that this prohibits the removal of waters in bulk from boundary waters and transboundary waters and that those two combined would be a very large majority of the freshwater available in Canada.
Senator Downe: I do not think that is correct. The vast majority of water in Canada is on the border and the boundary?
Mr. Sherratt: The Great Lakes are a very large source of water, sir.
Mr. Pagé: Twenty per cent of the world's water.
Senator Downe: What percentage?
Mr. Sherratt: If it is 20 per cent of the world's water and our half is 10 per cent of the world, that would have to be a very large majority of the water in Canada.
Senator Downe: The notes I have in front of me indicate that the vast majority of freshwater in Canada is not protected by this bill. You are indicating that is wrong?
Mr. Sherratt: What I would indicate, sir, is that this bill is intended to cover boundary waters and transboundary waters and that any remaining waters in Canada would be the subject of provincial legislation. The provinces have been very active in enacting legislation in that area.
Senator Downe: However, the bill, again, would allow a province to change its position, as I said earlier, and transport bulk water by tanker. There is no protection against that.
Mr. Sherratt: The bill prohibits the bulk removal of waters from boundary and transboundary waters.
Senator Downe: But other areas are excluded?
Mr. Sherratt: The province of Newfoundland, which has neither, would be able to utilize its jurisdiction.
Mr. Pagé: Perhaps I can add something.
[Translation]
Mr. Pagé: Under NAFTA, water in its natural state is excluded from the obligations. To answer your question on NAFTA, no challenge can be made under that agreement when water in its natural state is not seen as a commodity. The agreement is very clear for the three countries regarding that issue.
[English]
Senator Downe: When was that NAFTA provision put in? I recall Bill C-156 was introduced in 1988, but when Parliament was dissolved the bill was not passed. Was there another bill that did that?
[Translation]
Mr. Pagé: That was accomplished through a joint statement by the three countries. I could find the date for you once I return to my office.
[English]
Senator Downe: Was it legislation?
Mr. Pagé: It was a declaration of leaders.
Senator Downe: Pardon?
[Translation]
Mr. Pagé: It was a statement by heads of government.
[English]
Senator Downe: Again, this goes back to the heart of the issue of the question I am raising. Why is there not more protection? The government in 1988 introduced Bill C-156, which would have banned large-scale water export. The bill died when Parliament was dissolved for the election and there was no further additional legislation. There was a multi- party agreement.
[Translation]
We can talk to you about the bill and its objectives, so we will answer any relevant questions. We cannot discuss hypothetical issues, such as questions on why something else was not done. If you have specific questions about the bill, we would gladly answer them with as much detail as possible.
[English]
Senator Downe: Is it your opinion that the bill meets the needs of Canadians?
[Translation]
Mr. Pagé: We are here to answer your questions about what kind of protection the bill will provide in terms of bulk removal and the environment. Those are the kinds of questions I would like to answer.
[English]
Senator Downe: Thank you, chair.
The Chair: Mr. Pagé, if I am correctly interpreting what you are saying, you think that is a political question that you do not feel you should answer. You have answered it by saying it is not within the ambit of this bill. I appreciate that. The question was whether we need more bills, more areas to cover, and I presume you wish someone to give a political answer to that. Is that correct?
[Translation]
Mr. Pagé: Madam Chair, I will let my colleagues from Environment Canada answer more technical questions.
[English]
Ms. Farquharson: I would say the same thing. This is a private member's bill, and we are here to explain as far as we can any technical questions you have about the private member's bill. I suppose those kinds of questions about the policy is for your colleagues at the political end to answer.
The Chair: It is the narrowness of the bill that you are here to address. That is what I am getting at.
Senator Ataullahjan: You kind of answered my question, but I will ask it anyway. This act covers waters under federal jurisdiction, while waters under provincial jurisdiction are left alone. What are the provinces doing? Are they considering similar legislation, or do they already have something in place?
Mr. Gluck: The provinces have various protections in place, depending on the province. They all have either regulations, protections or policies in place to protect against the bulk removal of water. For example, Quebec does not allow the movement of water outside of the province. I think it is the same thing for British Columbia. Some provinces, like Alberta, have preclusions against moving it from large river basins to larger river basins. For at least 15 years now provinces have put various measures in place to prevent bulk removals of water.
Senator Ataullahjan: Has there been an interest in transferring bulk Canadian water outside the water basin where it is naturally located? Are there any bodies of water that are of particular interest to governments or enterprises?
Mr. Gluck: That is a pretty hard question to answer.
Mr. Sherratt: Naturally, the Great Lakes are a matter of considerable interest by both Ontario and Quebec, as well as the Great Lakes states. I would say the most interesting and useful initiative recently has been the conclusion of the Great Lakes Basin Compact, which severely restricted the removal or diversion of waters from the Great Lakes Basin to outside the Great Lakes Basin.
In Ontario, all of southern Ontario is within the Great Lakes Basin, so that was not materially affected. The United States, in particular Illinois and Wisconsin, as well as Ohio, undertook severe restrictions to prevent the further diversion of water from the Great Lakes outside of their basins. By far, that would be the most significant initiative that has taken place in the last several years.
[Translation]
Senator Nolin: My question is for Ms. Lalonde. Since the 1970s, we have had a federal piece of legislation that authorizes the federal government to keep track of both federal and provincial water protection laws. Are you familiar with that legislation? Under it, the government must produce an annual report to help Parliament understand how water is being protected within the Canadian confederation.
My question follows up on what Senator Ataullahjan asked. I do not know whether this is your responsibility or that of Foreign Affairs and International Trade Canada, but does someone keep track of what is being done in the area of water and environmental protection?
I see that you are in charge of hydrological services, so I am asking you. Who keeps track to ensure that Canada has sufficient protections against situations like the one described by Mr. Miller, so that a province would have or apply a piece of legislation or regulations obligating it to prevent the top of a mountain being stripped and water being removed to be sold? Is that part of your responsibility?
Manon N. Lalonde, Senior Project-Program Engineer, Hydrological and Climatological Services, Meteorological Service of Canada, Environment Canada: My expertise lies in the International River Improvements Act, but I will consult my colleagues to see whether we can give you a better answer.
[English]
Ms. Farquharson: I believe you are asking what is going on at the federal government on the overview of how water is dealt with in Canada.
Senator Nolin: Yes.
Ms. Farquharson: A number of initiatives were highlighted in the last budget about looking after water quality, in particular hot spots.
Senator Downe: I understood that after your question they were here to talk about the narrow scope of the bill, and now we have talked about something outside the narrow scope of the bill about what the government is doing. I have questions concerning that area as well that I would like to pursue if that will be allowed and if the witnesses agree to talk about them.
The Chair: We were here to study that particular bill, not the overall water policy.
Senator Nolin: I think it is in the purview of the bill because the way the bill is written, our Parliament is exercising the legislative authority of the federal government level, and some questions were raised by the previous witness about how we interlink with the provincial responsibility. That is why it is quite in order to understand how it is linked and if anyone is looking after that.
Senator Downe: I agree, as long as my questions can be answered as well. If the witnesses are prepared to go beyond the narrow scope and give an opinion, I would be quite willing to let that happen. I have questions myself.
The Chair: I put it to the witnesses. I asked Mr. Pagé whether he was, and I understand that is a legal part, and they said they did not feel comfortable. I equally asked Environment Canada if they had the same position. They seem ready to answer broader questions.
Senator Nolin: There is a component in that bill, if I am right, that you can take water from a provincially regulated lake or basin and if there is a conduit between that basin, a transboundary river, it becomes federal. That is why there is a link between what is happening at the provincial level and the federal level.
Is someone looking after the big master plan of protecting water in Canada? That is my concern.
Ms. Farquharson: I would clarify what the bill actually does. The bill says that the minister can issue a licence for an improvement on an international river, that is a river that flows south, where it is linking a non-boundary and non- transboundary water.
Senator Nolin: Linking it to that network.
Ms. Farquharson: I think what you are talking about is being in provincial jurisdiction, so that is federal jurisdiction to fully say the minister may not grant a licence for that purpose.
[Translation]
Senator Fortin-Duplessis: I am not sure whether my question is in order, given the comments we have heard, but I will ask it anyway. It is for Ms. Lalonde.
Mr. Miller said earlier that the water levels in some of the Great Lakes have never been so low. What do you think the short and long-term environmental impact could be? What do you think is causing that drop in the water levels?
Ms. Lalonde: This question is related to a study that was just published by the International Joint Commission. Your question has to do with foreign affairs. I will ask my colleagues to answer it.
Mr. Pagé: The International Joint Commission just published a study — last Friday — which follows up on other studies conducted on the water levels in the upper Great Lakes. The water levels in the Great Lakes fluctuate in cycles. It has been determined that, over the course of the century, there were times when the water levels were very high and other times when they were low. The water levels have now been low for a number of years, but that is part of the cycles.
Scientists could give you many reasons for water lever fluctuations. We could be talking about factors such as evaporation or precipitations. The International Joint Commission studies those matters. You could find information on the Internet about studies concerning the Great Lakes. That is a very broad question that is not directly related to the issue.
Senator Fortin-Duplessis: Mr. Pagé, in the second-last paragraph of your brief, you say that purpose clauses were added to make it clear that the reason for the prohibition is to avoid the risk of environmental harm that could come from the permanent loss of water from Canadian ecosystems. That is not very clear to me. Could you elaborate on what purpose clauses are?
[English]
Mr. Gluck: The amendments or the clauses — I think you are referring to the purpose clauses — at the end were put in to be a very clear determination of the risk of environmental damage that would be caused by bulk removal of water from boundary or transboundary waters, and I can turn to Mr. Sherratt for reasons why the amendments were put in.
Mr. Sherratt: As I indicated on a previous occasion, this bill is motivated primarily as a form of environmental protection, and in order to provide an appropriate legislative basis for that, it was agreed to add purpose clauses. In the case of clause 4, proposed section 13(0.1) says, ``The purpose of this section is to prevent the risk of environmental harm resulting from bulk removal''; and that is to say removal of water from its water basin to another basin or outside of the Canadian portion of the basin. The purpose of that may be self-evident, but to say so explicitly is the concern that the mixing of waters in bulk from different systems creates a significant risk of invasive species, which is a very grave matter which concerns both Canada and the United States at the present time.
[Translation]
Senator Fortin-Duplessis: Such as jumping carp.
[English]
Mr. Sherratt: Carp would be another example.
Senator Wallace: As you point out in your presentation, the act currently covers bulk water removals from boundary waters, and the Great Lakes would be an example of that, so that is already covered. There is nothing new, and we talked a lot about the Great Lakes, but nothing in the bill is adding to that. The bill relates to transboundary waters, which, as I understand it, are waters that flow in the natural channels across the international border.
Does the department have a map and an identification of all of these rivers that flow from Canada into the U.S. so that we, along with Canadians, would know what waterways are impacted by this?
[Translation]
Mr. Pagé: That is well explained.
[English]
Boundary water is where the water goes through; it could be in the middle. Transboundary is where the water crosses the border; that is a basic difference. The bill has a list. There is a long list of transboundary rivers in the annex of the bill.
Senator Wallace: In addition to the rivers, I notice the bill relates to something called water basins. What are water basins, and what waterways in Canada would be covered by that definition?
Mr. Sherratt: A water basin is an area within which water will flow internally. In Canada there are five very large water basins, and they define the areas where you cannot take, in this case, transboundary waters outside of the water basin in which it is located and take it outside that basin within Canada or outside the Canadian portion of the basin. The five basins are the Atlantic St. Lawrence, the Hudson Bay, the Arctic, even a small portion is in the Mississippi, and the fifth is the Pacific.
To be clear, Schedule 3 in the bill is intended to be as exhaustive as possible and include every single transboundary river or creek we could possibly find a name for. However, the definition of a transboundary river merely indicates that these are included, but in case there is one that is created out of an act of nature, that would also be covered.
If you need a list outside of Schedule 3, you also have one on the IJC website, and I also brought with me a fine book from the 1950s, Boundary Waters Problems of Canada and the United States: The International Joint Commission 1912-1958, which included every single transboundary water crossing in Canada and indicated whether they were flowing into Canada or out.
Senator Wallace: There is no issue of identifying what waterways we are talking about.
Mr. Sherratt: They have been exhaustive.
Senator Wallace: Are there bulk water sales or exports occurring today that will now be limited as a result of this bill? Is this addressing situations that are happening today, or is it addressing one that you want to ensure does not occur in the future?
Mr. Sherratt: There are a number of very small transboundary collaborative works. There are a couple of these in Quebec. There are a number of them across the prairies where very small communities on either side of, for example, the 49th parallel have a joint water distribution system. On some occasions, you are extracting groundwater from the American side and servicing the Canadian community or vice versa.
Probably the most significant one is Point Roberts and British Columbia. If you have been there, you will know that it is geographically isolated from the United States, and there is an arrangement in place that it is provided with drinking water by the City of Vancouver, which is very much to the advantage of the Canadian residents in Point Roberts because it is largely used as a cottage community from Vancouver during the summer.
Senator Wallace: Would any of these existing arrangements exceed 50,000 litres per day? Will this bill have any impact on existing agreements that exist between Canada and the U.S.?
Mr. Sherratt: These are grandfathered under section 15 of the act.
The only large diversion, which is not really in the nature of a diversion, is simply the water intake pipe for the city of Detroit. The other communities we are talking about are exceedingly small, for example, St. Amant, Highgate Center, Mansonville, North Troy, Stanstead, Derby Line. Now, 50,000 litres of water is intended to be approximately the amount of water that you would have in a truck, and I would not be surprised if a truck of water might very well serve the daily needs of communities on either side of the boundary.
The legislation we have is not intended to deal with groundwater extraction. It is intended to deal with diversions in bulk of transboundary waters in their natural channel as well as boundary waters in their natural basin.
Senator Wallace: Thank you.
The Chair: Just so I am clear on this in my own mind, this is just a portion of the International Boundary Waters Treaty Act that is being changed, and it is being clarified. I heard you say the purpose is being put in here, even though it may be self-evident or inferential. You are stating that you do not want the movement of bulk water and that you moved things from regulation to the act. Of course, you can still amend it, but not as easily and it will not be just by government action. It would have to go through a bill.
Is that what we are doing here, as opposed to entering any new areas, but for Mr. Miller's bill that has this pipe, from what I call a ``provincial jurisdiction'' linking to a federal jurisdiction? That is the additional part, but the rest are clarifications to be absolutely certain that this bulk water will not be transferred.
Mr. Sherratt: Yes. You will recall the original purpose of the International Boundary Waters Treaty Act was to implement the boundary waters treaty.
In 2002, we amended that to create a prohibition against bulk removals for boundary waters. We also created at that time a capacity to issue regulations that would either provide exemptions or definitions of various terms in the act.
Senator Pat Carney and Senator Lowell Murray had a principled position that they did not particularly like bills that were essentially vessels in which you would enact regulation, and given that there was no real necessity from 2002 to the present day to change any regulation or amend them, the Canadian government agreed that what we would do would be to take what had been in regulation and put it in the act so that any significant exemption or definition could only result from a parliamentary enactment. There is a residual capacity to regulate, but it deals with very mundane matters about what you would put into a licence application and things like that. Both Senator Murray and Senator Carney were very pleased with the bill, and it entirely accomplished what they had intended to accomplish in their private member's bills.
The Chair: I was on the committee when that bill came through, and that is why I wanted to be clear that the issue we struggled with was why are they being put in regulations on a commodity as important as water or a resource as important as water. We were assured that there would not be bulk sales but for certain cases, so we are moving it from regulation to the act, now.
Mr. Sherratt: That is correct.
The Chair: It is kind of ``I told you so legislation.''
Mr. Sherratt: That is right.
Senator Downe: That is a very good point you made, chair, but it still leaves a gap. In 2008 and 2009, the federal government promised in the Throne Speeches to bring in legislation to ban all bulk water transfers or exports from Canadian freshwater basins. That is, hopefully, the next step we can look forward to and have a bill from either a private member or the government to achieve that objective.
Has any member of the committee here worked on this bill that is before us?
Mr. Pagé: We are not aware.
Mr. Sherratt: Certainly, when we were drafting Bill C-26, I believe, I had the occasion, along with other officials, to brief Senator Carney and, at a later stage, Senator Murray, but I believe both have now retired.
Senator Downe: I asked the question because in your response to Senator Wallace you indicated that we tried to include in the section all the rivers and so on. Was that from a previous bill or in relation to the bill currently before us?
Mr. Sherratt: The Boundary Waters Treaty provides a clear definition of what a boundary water is, and we adopted that definition in 2002.
We were later faced with how will you define transboundary waters, and we thought the best way of doing so was twofold: one, to provide a definition of what a transboundary water is, and two, to provide an annex listing as many of the waters as we could find.
I was provided with a small note that indicated that the names that are included on the list are streams and rivers with a catchment area slightly larger than one hundred square miles.
Senator Downe: For clarity, no one here on this panel drafted any section of the bill before us today?
Mr. Sherratt: Who is a member of the committee today?
Senator Downe: Did any of the five of you draft any section of the bill before us today?
The Chair: Senator Downe, do you mean the drafting? Usually it goes to drafters. Do you mean were they involved in putting the bill together in some form?
Senator Downe: You know how we draft private members' bills in the Senate. I am wondering what involvement if any the department had in this bill. I am trying to understand in my mind why Mr. Miller had to go through what he had to go through, and I am wondering what assistance, if any, he had from the department.
Ms. Farquharson: There were amendments put forward by the government, but other than that, no.
Senator Downe: No clauses of this bill were drafted by any of you; is that correct?
Mr. Sherratt: I am very sorry to say that I did not.
Ms. Lalonde: That is correct.
Senator Downe: Thank you.
[Translation]
Senator Nolin: I want to come back to Ms. Farquharson because I had some time to search on my iPad. Canada has a piece of legislation that is enforced by your department. It is called the Canada Water Act. I will read an excerpt because I have finally found the answer to my question. The act says the following:
For the purpose of facilitating the formulation of policies and programs with respect to the water resources of Canada and to ensure the optimum use of those resources for the benefit of all Canadians, having regard to the distinctive geography of Canada and the character of water as a natural resources, the Minister may, with the approval of the Governor in Council, enter into an arrangement with one or more provincial governments to establish, on a national, provincial, regional, lake of river-basin basis, intergovernmental committees or other bodies
(a) to maintain continuing consultation on water resource matters and to advise on priorities for research, planning, conservation, development and utilization relating hereto;
(b) to advise on the formulation of water policies and programs; and
(c) to facilitate the coordination and implementation of water policies and programs.
I read you all this because it comes under your department's jurisdiction, and I am somewhat surprised by the dubious look you gave me while I was reading. That is the question I was asking myself, and it is your department's responsibility, under this legislation — which is not recent — to have an overall vision of the water issue in Canada, and to provide the minister with advice and opinions.
I assume that this private member's bill supports that effort to understand and your statutory responsibility to have the most complete possible overview of the water situation in Canada and of how federal, provincial and territorial authorities are handling the water management issue.
[English]
Ms. Farquharson: I believe you are saying that you found the water act and it says that the Minister of the Environment has a global responsibility for monitoring the situation in Canada.
Senator Nolin: That is it.
Ms. Farquharson: You presume that this law fits in with that view; however, it is a private member's bill.
Senator Nolin: I understand, but there is a private member's bill knocking on the door of Parliament waiting to be adopted, and it is in the purview of your minister to look after that. I presume you advised the minister if it was a good or a bad bill.
Ms. Farquharson: Yes.
Senator Nolin: Is the answer yes, it is a good bill?
Ms. Farquharson: Well, the government has taken a position.
Senator Nolin: Okay, good. Thank you.
The Chair: Thank you. I think we have exhausted the questions. We thank you for coming to answer our questions on Bill C-383. We will take what you have said into account.
Honourable senators, we have another panel tomorrow on the same subject. If you have any further questions or issues, I would like to hear them. We do have the witnesses that you have been advised of, and that would terminate our investigation. If there is anything else, please advise me. Otherwise, the committee is adjourned until tomorrow morning.
(The committee adjourned.)