Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue 12 - Evidence - February 13, 2007
OTTAWA, Tuesday, February 13, 2007
The Standing Senate Committee on Energy, the Environment and Natural Resources, to which was referred Bill S- 205, to amend the Food and Drugs Act (clean drinking water), met this day at 5:38 p.m. to give consideration to the bill.
Senator Tommy Banks (Chairman) in the chair.
[English]
The Chairman: Honourable senators, we are here to consider Bill S-205, with which many of us are familiar because it is nearly a duplicate of a bill that we have previously passed. This bill has to do with drinking water and with the simple expedient of making sure there are, if I can put it this way, incentives by way of penalty to those people who sell water out of the end of a pipe, whether publicly or privately, to ensure that the water is safe and that it does not make us ill, in the same sense that we regulate bubblegum, popcorn and chocolate bars. To do otherwise seems silly, on the face of it, and that is the reason we have previously passed this bill.
I invite Senator Grafstein to speak to us about it. After we hear from Senator Grafstein and after we have had the opportunity to ask him questions, I hope you are agreeable to move to clause-by-clause consideration of the bill. Please consider that as we proceed.
Hon. Jerahmiel S. Grafstein, sponsor of the bill: Honourable senators, thank you once again for your patience and indulgence with the rather long and episodic history of this bill. This month marks the sixth anniversary of this bill. I introduced this bill back in February 2001 in first reading.
To give you the history, first reading of Bill S-18 was in February 2001. The second reading was approved and referred to this committee on April 24, 2001, and the committee reported the bill without amendment on May 10, 2001, some six years ago.
At third reading, the bill was referred to the Standing Senate Committee on Legal and Constitutional Affairs for constitutional questions and then it died on the Order Paper. I reintroduced it again as Bill S-42, and now it reappears once again as Bill S-205. It has essentially been before the Senate, even though the committee has dealt with it once before, for six years. Frankly, as the chairman pointed out, the bill is simple. It is a remedial measure in scope, clinical and simple to understand. It is to amend the Food and Drugs Act by adding clean drinking water as an objective so that the federal agency that is mandated to regulate drinking water would do so for communities of a certain size.
The federal government already regulates drinking water in bottles and ice cubes. The federal government, under its other powers, regulates drinking water in parks, on airplanes and on ships. The power for the federal government to regulate drinking water is not new. The problem is that we are the only developed country in the modern world that does not have mandatory federal standards of drinking water for the country at large.
There were two objections to the bill, and I want to review them. One objection is the constitutional objection. We have now heard, finally, from the government witnesses that there is no constitutional objection to this bill. That evidence was put before us by the officials that came before the committee from Health Canada. They looked at the question and said there was no constitutional objection. We do not need to belabour that point any longer. We do not have to hide behind the Constitution to avoid confronting this national problem.
The second objection was the argument put forward that the voluntary standards are working with the provinces. Therefore, there is no need for this bill because the voluntary standards are working. The good news is that since this bill was introduced and since the wake-up calls in Walkerton in Ontario, North Battleford in Saskatchewan, Charlottetown in Prince Edward Island and, most recently, in Vancouver in December, the concentration of the provincial authorities on this question has improved and money has been thrown at the issue. However, the situation is not much improved across the country since we started discussing this bill some years ago. The obvious area of serious concern remains the Aboriginal communities.
Since this bill was introduced, three governments have promised to renovate the problem in the Aboriginal communities. Mr. Chrétien made the promise, Mr. Martin made the promise, and now Mr. Prentice has made the promise as well. Money has been thrown at the problem when it applies to the Aboriginal communities, but still there is no regulatory oversight to ensure the job is done.
Recent studies demonstrate that not only is Canada doing badly, it is at the bottom of the barrel. We are twenty- sixth out of 28 countries in the developed world in terms of our stewardship of our water resources.
In the most recent study by Simon Fraser University under the aegis of the David Suzuki Foundation, The Maple Leaf in the OECD, Comparing Progress Toward Sustainability, the study points out something I have been arguing and is clear beyond a peradventure of doubt, and that is, there is not even at this late stage a comprehensive assessment of water quality. According to this report on page 24, the reason a comprehensive assessment of Canadian water quality is not possible is due to the lack of national water-quality monitoring data.
When officials come forward — and I do not criticize them because they are doing their job, and they are doing the best they can — they cannot tell us that information because there has not been a scientific and comprehensive analysis of the relationship between poor drinking water and poor health.
I am not a scientist, but I have gathered anecdotal evidence. There is no question — it is uncontroverted — that poor drinking water across the country incurs substantial health costs. To come up with an analysis, I talked to an expert by the name of Dr. David Schindler from Alberta, and together we tried to create a logarithm based on the information we had at the time, six years ago. He and I concluded that the minimum out-of-pocket cost to the health system, and this figure does not cover the cost of people being sick because they cannot go to work or school, was somewhere between $1 billion and $2 billion on a conservative measure. Therefore, this measure will be not only an effective one but a cost-effective one.
Canada is the only modern country in the developed world without legally enforceable standards for regulation of drinking water. The federal guidelines lag behind other countries, according to the Auditor General. This evidence is clear.
There is another serious problem. Many contaminants are not included in the voluntary guidelines. For instance, in British Columbia where they had a recent problem of a boil-water advisory in December for two weeks, where a good portion of the population had to boil their water, the problem in Vancouver was that they use chlorine as a cleanser and it was not good enough. A number of systems in the country use the chlorine model, and that chlorine model, because of the new contaminants coming into the water system in many parts of country, is not good enough.
Of course, you have heard that the vast majority, or a significant number, of Aboriginal communities do not really achieve federal standards or come close to federal guidelines. My argument is simply that if we have federal mandatory guidelines, anyone, either within the Aboriginal communities or within the federal government, that is responsible for the Aboriginal communities will not be allowed to duck the question of water quality.
Again, according to the research conducted by Simon Fraser University, we are ranked twenty-sixth out of 28 in terms of water quality, and the Auditor General now confirms it. Frankly, the evidence is beyond a doubt. It is no longer a question mark.
The only remaining argument that I wish to address is whether the existing system is working. You will recall, honourable senators, that I requested that we receive a follow-up from Health Canada on the drinking water status of boil advisories. The number we received was astounding, because they started to gather these numbers and it was high. In the most recent statement in a report received by your committee dated January 18, 2007, there is an outline of boil advisories. On page 2 of the report, it says that incorporating data from all provinces, territories and First Nations lands, Health Canada has determined that the approximate number of boil-water advisories in effect across the country in early December 2006 was 1,179.
This figure is not the boil advisories for the entire year; this figure is for a moment in time, early in December in 2006. You have this evidence before you. I received this copy in response to a follow-up question that the committee asked of the officials from the department at the time. The number of boil-water advisories is broken down by province.
I am confident that if we had a number for boil-water advisories for every month of the year, the total number would be more than 12 times that December number from Health Canada. Based on that moment in time in December, 193,000 people were directly affected. Therefore, it is clear to me, as it is to Sierra Legal and other observers outside the government, that this reform is long overdue.
In a recent article, Sierra Legal ranked provincial performance. B.C., which was so proud of its performance, was given a C-plus due to the high rate of boil-water advisories, not only in December but throughout the year. Many communities rely on only the chlorine test to produce clean water, and that is not good enough. We have too many contaminants now in the water to make that acceptable.
Again, we have no accurate estimate of the true cost to the health system and to every Canadian across the country. This clinical, cost-effective bill will correct the deficit in drinking water. Without this legislation, Canadians will be deprived of their entitlement. Under the Charter, we believe in equality. If water is the most important element in our daily diet, surely every Canadian is entitled to have clean drinking water every day of their lives.
I urge you to approve this bill, as you did five or six years ago, and refer it back to the Senate for debate. I am delighted that the major constitutional barrier has been overcome. Now there is no constitutional impediment to the government exercising its powers to act on behalf of the health of every Canadian across the country, particularly in our Aboriginal communities.
The Chairman: In respect of what Senator Grafstein has said, I commend the attention of senators to the recent testimony of Health Canada officials before this committee in which that question was directly asked and answered.
Senator Milne: Officials of the Department of Health told us that there were no constitutional questions about the ability of the federal government to regulate drinking water. However, what other assurances have you received? Normally, when we talk about legal and constitutional affairs we hear from officials from the Department of Justice, who are expert in constitutional affairs.
Senator Grafstein: In the last 20 years, from my personal observation, the Canadian government has been reluctant to exercise its federal powers. The provinces obviously want the federal government to keep its nose out of provincial business, and we have particular problems with certain provinces. That is a fair argument, but not in situations in which they have not fulfilled their constitutional mandate. Going back to the Fathers of Confederation, the reason there was federal override of provincial powers was precisely for situations in which provinces failed to maintain or sustain a reasonable standard of care for their citizens in areas of joint jurisdiction.
I do not know how much more one can argue that the provinces have not done their job. They have not. The Auditor General now tells us that even the federal government has lagged behind in getting the provinces to agree to a voluntary standard. I cannot argue on behalf of the provinces, but if the provinces object to this bill, they must be able to say, ``We have handled our problem; stay out of our business.''
My own province cannot make that argument. I have spoken to senior officials in Ontario. They tell me they are doing a good job, and then suddenly out come the boil-water advisories. It is not getting better; it is getting worse.
It is cost effective to regulate drinking water. I do not believe in the heavy hand of federal regulation. However, we are already in the business of regulating drinking water; we do it in every province. We already regulate bottled water, ice, soft drinks and water in all the parks. We do it, but we do not do a good job of that either.
I do not suggest that the federal government is perfect, but I believe in checks and balances. By the way, the federal power exercised through the Food and Drug Act has never been challenged by any province. I cannot recall any time when any province has objected to the federal use of its power, even in those areas where there might be joint jurisdiction.
This bill exercises the federal power and does something that the United States did in 1973. The U.S. had the same problem in terms of states' rights. They decided to exercise the federal power and proceed, and they have improved the system there. One major improvement is as simple as knowing the situation.
Under the federal system in the United States, they can dial their area code to learn the latest information on the water in their area. That is a huge reform. We can do things mechanically that would instigate the provinces to do the job they are supposed to do.
We cannot wait for the provinces to agree because they will never agree. The only possibility that they will agree is if they are confronted with a bill in the other House. They will then have to step up and say that they are doing a great job, and to date they have not been able to demonstrate that. Ontario has not been able to do that, and certainly not British Columbia this summer or this winter.
Senator Milne: I was in favour of this bill when it came before us previously and I am still in favour of it. There is no question whatsoever that the federal government has a fiduciary responsibility when it comes to water on native reserves. That is a legal certainty, and some of those areas are ones of greatest concern.
The Chairman: I did not know there was such a thing as a ``legal certainty.''
Senator Nolin: Was it lawyers or Health Canada who gave you an answer on the constitutionality of the bill?
The Chairman: It was a lawyer.
Senator Nolin: Have you asked the Department of Justice to appear?
The Chairman: No.
Senator Nolin: When you talk about shared responsibility, which one are you talking about?
Senator Grafstein: I am talking about the federal power to regulate food.
You will remember that there were two arguments. The first was that it was unconstitutional and the second was that water was not food. It took me some time to demonstrate to the Senate that water is a food. By definition, food is something that contains a nutrient, and water contains a nutrient. There is no question about this bill constitutionally or from a health standpoint.
Senator Nolin: I understand, but I would feel more comfortable if I heard that from more than one lawyer. I am ready to accept your argument.
Senator Grafstein: It is not my argument. It took me five years to obtain an admission before the committee, from a government official who is responsible for this area, that there is no constitutional objection to this bill. That was my argument six years ago.
After this bill was approved unanimously by this committee, it was stalled in the Senate. It was referred to the Standing Senate Committee on Legal and Constitutional Affairs. We heard comments about it and then it died on the Order Paper. I reintroduced the bill and the argument was made again. It took me six years to obtain an admission finally from the government. Once an official responsible for the area satisfies a committee that a bill is constitutionally appropriate, I do not think we need to double-check and go to another department. I have been through this process before, as have you. The government does not have to disclose to us its opinions other than to opine whether or not a bill is constitutional. I am satisfied as a constitutional lawyer that it is constitutional and I have received much of support for that position. Now we have heard an opinion on the record that this bill is constitutional. It took six years to obtain that admission.
Senator Nolin: I hear you.
Senator Spivak: My question is not directly related to the bill, so I hope it will be allowed.
Given that your bill has taken six years and there have been prorogations and elections — and I have had the same experience — do you think that the House of Commons Standing Committee on Procedure and House Affairs, which has been looking at the question of instituting the same rules in the Senate as in the House of Commons, should look at the situation and decide that something must be done?
The Chairman: Fast-track it.
Senator Spivak: You understand that if the House of Commons is considering a member's bill, or whatever, if there is an election, the bill stops where it is. However, a Senate bill in the House of Commons — and mine reached the House of Commons — dies.
The same thing happened here. You could have avoided much wasted time. Have you checked into that?
Senator Grafstein: No, we are all busy senators. To be fair to the Senate, the attitude about water has changed dramatically in the last four or five years. Climate change was a narrow concern of a small group of people across the country. We have learned within the past six months that there has been a tipping point in climate change and now it is the most important issue on the public agenda.
People are more conscious about water than ever before. I find it unbelievably obscene that we have a $5 billion to $10 billion bottled-water business in this country. Some people cannot afford bottled water. Yesterday, I bought a bottle of water that came from France that cost me $1.70. It strikes me that fast-tracking or slow-tracking will not change this situation. There must be public awareness that this bill has legitimacy. I think there is a tipping point. That is why I sense, in article after article, we are lagging behind in two things. One is drinking water. The other is the subject of my sister bill, which you have not had yet, dealing with watershed management. I do not want to confuse the two because I want to deal with this issue and then address the other bill, which is on the Order Paper.
Senator Spivak: Are you aware of the studies that have indicated that the quality of some bottled water is not as good as what we have in our municipalities, particularly in Toronto? Toronto has good municipal water. Also, if water is bottled in plastic, things I cannot pronounce leech into it that are bad for you.
Of course, I support your bill, but I am frustrated, as you must be, by this process of years, which is a waste of time for the Senate.
Senator Angus: Welcome back, Mr. Grafstein.
Senator Grafstein: You can call me sir.
Senator Angus: I always do, and I do it with great respect and deference to your experience and sense of public service.
I want to refer back to our exchange on November 28 when you appeared before the committee. As you know, I agree fully with you that every Canadian has a right to the safest supply, whether it be in a native situation or otherwise, in terms of drinking water.
During our exchange in November, there was a discussion about what further evidence we would hear, and that you would read the transcripts and get into a position to reassure me and the committee that you had determined yourself what was going on in the government. One problem I have, as do other senators, is that I have been informed that the government, in particular the Minister of Health, opposes the bill for a number of reasons that I believe were outlined at the committee since you were here.
My particular concern is that the bill would add another layer of bureaucracy to the management of water in Canada. It would duplicate the work already accomplished through cooperation of all levels of government.
I think you agreed that it would represent duplication. As you said, another layer of oversight is a good thing and many of these people are already set up to do inspections and they already have a role, and are carrying it out under the trust to native Canadians.
However, I understand that the Chairman was informed — although I was not present that evening — that concrete plans are underway in the present government, particularly in the Department of Health, to address problems. I have come away with the feeling that what the federal government and all the provincial governments are doing is great, but this bill would add suspenders to the belt and another layer of failsafe. It bothers me. We sit here with the government, and you know where I am in that regard. It gives me some difficulty. Although I agree with the spirit of the bill, and you and I have discussed it formally and informally, I still have a problem with it. I hope you can go back to what you agreed to do in November. Tell us what you have done in the meantime. I may have missed it because I was a few minutes late. Try to ease my concerns.
Senator Grafstein: Let us look at external data. The Organisation for Economic Co-operation and Development, OECD, has done a study on Canada's water management and we are ranked 26 out of 28 in the developed world. That is a bad record. We have stewardship of the largest amount of fresh water in the world.
We have a more serious problem, based on the Suzuki logarithm, which is that we are consuming more water than we are replacing. Not only are we consuming more water, much of which is bad, on top of that, we are not handling the situation properly.
Now we have heard from the Auditor General. Now we have heard from the Suzuki-Simon Fraser study, which is a recent study. Now we have heard from the OECD.
The Suzuki study makes this telling point, and I would agree with you but for this point, and that is that we do not know. Despite the regulation and despite the fact that the provinces are doing a so-called job, they do not know.
Here is a simple statement from page 24 of the report: ``A comprehensive assessment of Canadian water quality is not possible due to a lack of national water quality monitoring data.''
Exactly the same promises you received from your government, I received from my government.
Senator Spivak: It is our government.
Senator Angus: It is Canada's new government.
Senator Grafstein: Yes, Canada's new government is giving the same assurances that I received from Canada's older new government. Mr. Chrétien made those promises not only to us in discussions in our caucus but, in addition, he put it in Throne Speeches — not one but two. Nothing happened. Then Mr. Martin came along, and that was a new government, and he did the same thing. He said to me, ``Be patient. Hold off. We will do something. We will address the problem in the Aboriginal community.'' He made specific reference to the Aboriginal community.
Senator Angus: You said, ``We are not getting it done.''
Senator Grafstein: Yes: Then we heard from Minister Prentice, who took up the challenge and said, ``We will get this done.'' Had he done the job, I would not be here. I am not being critical of Mr. Chrétien, Mr. Martin, Mr. Harper or Mr. Prentice, but there is a bureaucratic inertia to get this done. Why: There is not enough public pressure because the public pressure is fragmented across the country and we do not keep score.
Finally, the department, for the first time, as a result of the evidence, came forward with boiled-water advisories. In December alone, there were 1,179 advisories across the country. That record is not good. Somehow, we must go back to the basic principle of the federal system, which is that when provinces do not do the job they are geared, the federal government, in the public interest and in the national interest, must exercise its powers.
Do I believe this bill will carry in the other place? I doubt it, but there will be a much healthier debate in the other place if the bill carries in the Senate than there would be otherwise. At best, we can instigate the federal government bureaucracy to do the job they are currently mandated to do. We might make some progress. The people in the Aboriginal communities might have a better health system to look forward to.
Senator Angus, last week the food and drug agency initiated a new advisory about the healthy diet, in which they recommended that every Canadian have six to eight glasses of drinking water every day. Still, the government cannot even guarantee that Canadians will have good drinking water in the areas where there is no question of overlap, none whatsoever.
The food and drug agency historically has had a terrific reputation. Until recently, it has been one of the best in the world. I was immersed in this 20 or 30 years ago. I think the food and drug agency could take on this responsibility with minimal federal funding. This regulation does not take a lot of money because already there is an existing agency. The agency already looks after the guidelines. They do not need to replace anything. They change the guidelines from voluntary to mandatory. That is all. That will instigate the provinces to do their business, and it will instigate the federal Department of Indian and Northern Affairs, which has never done its job in this area, to get on with the job. We do not have anything to lose but everything to gain. We have relied on good assurances for over a decade, and it is time to face the fact that this approach is not working.
This is not duplication. This is true oversight. The federal government in the United States came to the same conclusion in 1973 with their clean drinking water. They heard the same argument for a half century, and it was not working. Finally, they exercised their federal power, and it is working. It is not working perfectly, but it is working better in the United States than it was before.
If we can improve the health of 100,000 Canadians by this measure, we will have done a fabulous job. According to this most recent statistic, 193,000 people in December were affected by boil-water advisories. If we could remove that number once a year, we would save hundreds of thousands of dollars.
This measure is cost-effective. You know me well enough to recognize that I am a frugal man. I have respect for the taxpayers' money. I learned that from Senator Milne's father, who ran successfully for mayor of Toronto as an NDP. His slogan was, ``You have to respect the taxpayers' dollar.'' I respect the taxpayers' dollar, and we will do so if we pass this measure for the federal government to save money by improving the health system in the country.
Senator Angus: I hear you, and from you, that was a concise answer. I appreciate it.
Senator Grafstein: Thank you for that modest compliment.
Senator Angus: I will go to the transcript to find the place where you confirmed your offer to buy me dinner.
Senator Grafstein: I will repeat the offer after clause-by-clause. Is that unethical?
Senator Angus: If it is, we will not do it, of course. I am on the ethics committee.
In this committee, we have great empathy, not only for the initiative you have taken but also your persistence. We have been studying water generally, and we have issued a report. What you are doing is near and dear to our hearts. It is a question of whether we have reached a stage in Canada that we need to do this. I tend to be persuaded by your evidence and, at the same time, concerned that Canada's new government is not in favour of this particular bill, saying they have other things in the works.
Let me provide you with an example. As I said last time, I live in an area where we have been subjected to a water boiling advisory. At Lake Memphremagog, they have a blue-green algae problem. This lake is an international lake, 33.5 miles long, that flows between Vermont and Quebec, and it has a huge population around it. It has become a local issue.
In the municipality on the Canadian side, residents live contiguous to a river that flows into the lake and the residents do not have proper sewage fields, septic tanks and drainage fields. Whether it is in the normal course or in the dead of night, substantial amounts of human waste go into that tributary and lake. This is a case obviously where the municipal authorities, with their delegated authority from the provincial governments, are supposed to ensure that does not happen. This is an area where the federal people could come in and point out how residents are polluting the lake and say, ``You are the municipal people, and you are not doing your job.'' Is that how it would work in practice?
Senator Grafstein: You have raised a complicated question, but it invites a simple answer.
There are two problems with drinking water in this country. First, we do not manage the drinking water that comes out of the spout that people are entitled to, which they accept. Part of that is tied to the fact that we have limitless water and therefore it should not cost anything, and people resist increases of their water bill at the local level. We have a problem of plenty, and we have not been able to convince enough people that they need to spend a little more.
For example, some of the infrastructure in Toronto is deteriorating. Some of the pipes have been there for 80 or 90 years, and the life expectancy was 50 years, but some of the older pipes are working better than the newer pipes. The matter is complex. Essentially, this bill would force the City of Toronto to start rebuilding its infrastructure. It would force them to start the job they are hesitating to do now.
Senator Angus: Would it do that?
The Chairman: How would it do that?
Senator Grafstein: If the federal government can say, ``A criminal offence is tied to this issue,'' all of a sudden it would go to city council and members would debate it. They would say, ``Look, the feds are here and this is a criminal offence. We had better get on with the job we are supposed to do,'' which was to move forward and modernize the infrastructure and put it on the fast track as opposed to the slow track. The legislation would force action.
Your problem is somewhat different than that.
Senator Angus: You understood, when I asked the question, that Lake Memphremagog is the source of water for the whole city of Sherbrooke, many of the municipalities around and many individual homes? For example, at my place, we have a pipe right into the lake and we always use it in the winter to take water.
Senator Grafstein: Your problem is more complex. I will return to Toronto. Toronto has some of the best drinking water in Canada. It is better than most bottled water. If you are asked in Toronto if you want water from Fiji that costs $4 to $12 a bottle, do yourself a favour and say, ``I want Toronto water.'' It is better than rain water from the Fiji Islands.
The problem that you raise, Senator Angus, is more complex, and that is why there must be a sister bill to this bill. This bill deals with the downstream problem. It will force the provincial governments and the municipalities to act. These guidelines will come not only from the federal government. The government will use the cooperative system to ensure the provinces agree with them, but once they agree they will turn it into law, as opposed to a voluntary guideline that provinces and municipalities can accept or reject.
Senator Angus: This bill alone would not enable the federal government to do whatever is necessary in Memphremagog?
Senator Grafstein: No, because there is another problem. The problem with the water system is the watershed. The problem is not in Lake Memphremagog itself; it is in the watersheds that feed the lake that are being polluted through a whole series of situations — pesticides from the farms, chemicals that seep in from industry and so on.
The sister bill to this bill, which I was convinced I should introduce, is the watershed protection bill. It would map out all the sources of fresh water that lead into the fresh water system in Canada. I have undertaken a fair bit study on this matter and some of the provinces are moving ahead to map it out, but we are the only developed country in the Western world that does not know where our watersheds are. We have not even mapped them out. Ontario, Alberta, and British Columbia are moving on it, but they are all in various stages of undress.
To solve your problem completely, you would need this bill as well as some type of federal oversight with respect to watershed enforcement, and we are coming to go that.
Senator Angus: What would this bill do for that problem?
Senator Grafstein: This bill would tell the municipalities and the provinces that they had better be sure that they have a system in place where, if water from the lake is not clean, they had better have a subsystem in place to ensure that the water is cleansed.
The Chairman: For clarification, Senator Angus has a pipe from a lake to his house. There is no system. No one is selling Senator Angus that water, so the present bill would have no application whatsoever to his situation.
Senator Angus: We simply stopped piping water from the lake and we have a well now. Not that long ago, though, the lake was pristine. There is a water supply system for the whole city of Sherbrooke.
The Chairman: It would be subject to the provisions of this act.
Senator Angus: That was my question.
Senator Grafstein: In the bill, there is a definition of ``community water system.'' It is a ``water system that distributes water to 25 or more persons for not less than 30 days in a year.'' This definition is not meant to cover a one- off situation where someone has a pipeline in the lake or an individual well. It needs to be a community system, and I cut it off at serving 25 persons. If the number is below that, that is your individual problem because you are in a sparse community. If the number is above that, you should be protected by federal law.
The Chairman: In the city of Sherbrooke, for example, where someone charges you money for water that comes out of a tap, regardless of whether that system is privately or municipally owned, the means by which this bill would ensure that water is safe is by putting into place penalties for failure to do so.
Senator Grafstein: Penalties are for failure to meet a federally mandated guideline, which would be precisely defined.
The Chairman: It is for exactly the same reason and in exactly the same way that Kellogg's is obliged to meet specified national standards. Whether the company manufactures corn flakes in Prince Edward Island or British Columbia, they are obliged to ensure that those corn flakes are safe. The same is true with chocolate bars, chewing gum, ice cubes and bottled water. The purveyor of the goods is subject to penalties, and it is hoped that they will thereby be obliged to be more careful than they currently are. Is that fair?
Senator Grafstein: Yes.
Senator Spivak: If water is a food, then is it a tradable commodity under the North American Free Trade Agreement, NAFTA? You have answered this question, but I forget the answer.
Senator Grafstein: Since that issue is not within the four corners of this bill, I would rather not enter this discussion. I discussed this issue with our former colleague, Senator Plamondon, who did not agree with my approach because she thought it was a human right. I told her that if I went into the question of human rights, none of us here would still be in the Senate when water became a human right.
On NAFTA, the federal government has a bill that says there cannot be bulk withdrawals from the Canadian water system. That is the answer. The federal government can exercise its power to say no if someone tries to take more than is allowed out of our fresh water system. We have that problem in the Great Lakes, and Senator Angus and I will work on that later this year.
That is the federal power, and that is the answer.
Senator Spivak: I am sure you are aware of the latest proposals and initiatives to make water in Canada available to the United States: the suggestion that water is so abundant in Canada that we could make a fortune selling it and why are we not doing it.
The situation with NAFTA is unclear. For some reason, in the end water was not excluded from the NAFTA agreement, so it is a grey area.
Although I understand what you are saying, some governments may think it is a great idea to make water a tradable commodity because we could make so much money from it, just as we are making money from oil.
This bill is wonderful, but does it need to fall under the Food and Drugs Act?
Senator Grafstein: I put it under the Food and Drugs Act to answer Senator Angus's concern about not increasing costs. This measure is the most cost-effective one because the system, the officials and the cooperation are already in place. It kicks it up a notch without dealing with it.
I did not want to question your premise, but let me question your analysis.
Senator Spivak: Please do. I do not have a premise. I have a question.
Senator Grafstein: You are concerned about the Americans taking our water. The Americans have an equal right to the same water to which we have a right. The Great Lakes is an example of that. We are on both sides.
It is a difficult situation. It has taken 10 or 15 years to negotiate an agreement, which is not a treaty but a contract between the provinces and the states.
Senator Spivak: Chicago already takes water.
Senator Grafstein: The issue for Chicago is upstream.
Senator Spivak: It is a grandfather clause.
Senator Grafstein: No, there is a watershed issue. There is agreement in the Great Lakes basin that we, on both sides of the border, will deal with the Great Lakes water in a certain way. The problem was a town in Illinois outside the watershed that was trying to take water out of the Great Lakes to supply the town, and that would be a leakage in the Great Lakes. The problem in the Great Lakes is more complex than that. First, it is polluted; it must be cleaned up. Second, the real issue on both sides of the border is that we use more water per capita than the Americans. We are horrible; they are bad. We must replace the water we use. We have not done a good job of replacing the water we take from the Great Lakes or the water system. We have not cleaned it. It is a complex problem. Bulk water is not the issue. The real issue is how to preserve the Great Lakes levels.
Senator Spivak: You are not denying that if water is a food it is subject to NAFTA. That is a fact. You are simply saying another piece of legislation or something else will prevent water from being taken out of the country. Is that right?
Senator Grafstein: That is my position.
The Chairman: The key thing to remember is that the reason that bulk water is subject to an agreement among the Great Lakes states and provinces is ecological and not trade- or commodity-based. Bottled water is demonstrably a tradable good, but bulk water removal, to put any more than already is there, into a drainage system such as the one that goes south, is not permissible except with the agreement, as pointed out by Senator Grafstein, of all the Great Lakes states and provinces. That new contract has recently been entered into and everyone agrees to it. It supersedes NAFTA.
Senator Grafstein: It is parallel.
The Chairman: Notwithstanding NAFTA, the provinces and states around the Great Lakes have said they will not remove more water than this.
Senator Spivak: You are talking about bulk water. Of course, the question could also be: What is the quantity for bulk water? It may not be in a bottle. It may be in a truck. Maybe that water would not be bulk water but a tradable good.
Senator Grafstein: It is interesting.
Senator Spivak: You are the lawyer.
Senator Grafstein: There is a prevention of bulk water extraction, but let me tell you about one bottled water called Dasani. It is bottled by Coca-Cola. It does not taste good. The company uses the same Great Lakes water source we use, in their bottling plants, I assume, in Canada. To make sure scientifically that, like Coca-Cola, the water appeals to people's taste, they run it through a chemical system. They bleach out certain minerals and nutrients and put other stuff in it. I can tell you that it does not taste good.
Senator Spivak: This bill has a commendable objective and I am in favour of it. I worry only that an unintended consequence of the bill may not be so good. I wonder whether there is a way to prevent that unintended consequence.
Senator Grafstein: There is a federal override and it is simple.
Senator Spivak: Do you trust every federal government? I do not.
Senator Grafstein: The federal government has the power in a bill to stop the bulk removal of water. Frankly, I trust government.
Senator Spivak: I am not even sure that is accurate. If a single province decided to sell water, as has come up several times, that would open the floodgates to NAFTA. I think that is accurate.
The Chairman: With all respect, that issue has nothing to do with this bill.
Senator Spivak: It does, though.
Senator Mitchell: There is evidence that more than 100 First Nations communities were under boil-water advisories last year and maybe still are. Would the Kelowna accord have had some impact on improving the situation, which will not be achieved now because it has been cancelled?
Senator Grafstein: I want to make a political argument that it will improve the situation. I do not think it would matter what the agreement was. This bill is a separate sideboard thing.
I have had trouble with the Aboriginal number. Again, anecdotally, from my Aboriginal colleagues here in the Senate, when I talk to them they say the majority of the Aboriginal communities have a serious drinking-water problem. In some communities, it is disastrous because it involves chemical and things like that. Then we had the evidence of Senator Johnson, who proposed a bill that indicated there were 500 Aboriginal communities with a serious problem. That evidence was in support of another bill, which I made as part of my original evidence.
I have not conducted a scientific analysis, nor has the Department of Indian and Northern Affairs or the Department of Health, of the number of Aboriginal communities that fall below minimal standards. I can tell you from anecdotal evidence from coast to coast to coast that the number is significant. The numbers jump around anywhere from 150 to 500.
The December statement, which we received from the department, indicated that there were boil advisories — not too many — from the Aboriginal communities. I do not have the number here, but it was significant. That was one point in time in December. If we had the figures for the whole summer or the whole year, they would be much higher.
Boil water advisories are a problem in northern Quebec. To my mind, there are two horrible stories. One involves the Aboriginal communities. Whenever I hear about this incident, it makes my skin boil. Then I hear about Newfoundland. Remember, again, I keep saying this, that a number of communities in Newfoundland have never had clean drinking water. In those communities, every day a woman with a big family must boil her water to ensure that her bathing and drinking water is clean. That is a national scandal. We are in the 21st century and we are a developed country. There are stories such as that across the country, but those two really upset me.
Senator Mitchell: I am concerned as well. If standards are set under this bill and a municipality does not live up to them, who imposes a penalty? Is it the federal government directly? Who pays to fix the situation?
Senator Grafstein: It would be the municipality or the province.
Senator Mitchell: You mentioned climate change. It clearly looms as a problem with respect to many things, including water. Are you aware of evidence that there are more frequent instances in Canada of poor water quality, and can you relate that evidence to climate change?
Senator Grafstein: That is what the David Suzuki Foundation said in its study. Sierra Legal has been doing this, not on a scientific basis but on an anecdotal basis, and they say we are falling behind as well. They rate all the provinces. None of the provinces receives an A-plus.
Senator Mitchell: Finally, can you comment on the impact of feedlots on water quality? That problem is an emerging one.
Senator Grafstein: Again, I refer you to this study. By the way, you put your finger on a serious question. This problem is one reason why there is slow agreement on the voluntary guidelines. There is a great debate in every province on the nature of the contaminants in the water. The material that goes into feedlots is one part of the problem and the provinces defer it until they can sort out what to do about it. In many agricultural communities, they have not sorted out the problem yet. Bill S-205 would accelerate the process. The federal government would have to come up with mandatory guidelines that would be laid out in the regulations, and the provinces would have a period of time to respond and if they do not respond, the federal government could implement them. It would be a tremendous boon to ensure the provinces do what they should be doing. They know what they have to do but they have been laggards. To be fair to the provincial departments of agriculture, the question is one of funding. The provinces are fighting for money all the time. This bill would serve as the impetus to move this issue forward.
Senator Mitchell: It is timely.
The Chairman: Honourable senators, if there are no further questions, I will ask the formal question. Is it agreed that the committee now move to clause-by-clause consideration of Bill S-205?
Hon. Senators: Agreed.
The Chairman: Unless the committee decides otherwise, the usual procedure is to postpone the consideration of the title? Is it agreed?
Hon. Senators: Agreed.
The Chairman: Shall clause 1 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 2 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 3 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 4 carry?
Hon. Senators: Agreed.
The Chairman: Shall the title carry?
Hon. Senators: Agreed.
The Chairman: Is it agreed that this bill be adopted?
Hon. Senators: Agreed.
The Chairman: Is the bill adopted without amendment?
Hon. Senators: Agreed.
The Chairman: Are there comments or observations to append to the bill?
Senator Mitchell: I want to thank Senator Grafstein for a tremendous job.
The Chairman: We do not do that. Is it agreed that I report the bill to the Senate?
Hon. Senators: Agreed.
The Chairman: Are there any demurrals to any of the votes? I take them to be unanimous.
Senator Milne: They are unanimous.
The committee adjourned.