ON FOREIGN AFFAIRS AND
DES AFFAIRES ÉTRANGÈRES ET
DU COMMERCE INTERNATIONAL
[Recorded by Electronic Apparatus]
Tuesday, May 29, 2001
The Chair (Mr. Bill Graham (Toronto
Centre—Rosedale, Lib.)): I would like to thank all of
you for coming.
I will ask Professor Bankes to lead
off. If everybody will take, at the most, ten
minutes to set out their positions, we can then ask
questions and get the best action.
I'd like to welcome Dennis Mills to the committee. In
case you didn't know, the Don River runs through Mr.
Mills' riding, and he's concerned that it's all running
away into Lake Ontario and it may wash away—
Mr. Dennis Mills (Toronto—Danforth, Lib.):
I'm concerned about scotch and water, Mr. Chairman.
The Chair: Yes, well I thought maybe you
were concerned that your Olympic dreams would be washed
away by the Don River unless we did something about it.
Professor Nigel Bankes (Faculty of Law,
University of Calgary): Thank you very much, Mr.
Chairman. Thank you for the invitation to address
the committee this morning.
I have prepared two pieces of paper for the committee.
Unfortunately, they're in only one official language,
and I would ask that permission be given to circulate
at least the summary. There's an extended paper and
then a two-page summary, and I think it would be
helpful if people had at least the two-page summary in
front of them.
The Chair: Maybe you could distribute the résumé
and we'll leave the other paper at the corner, so
people can pick one up if they want.
Prof. Nigel Bankes: I will give you just some brief
background comments on my own background and position,
before I speak to that summary.
I am a professor of law at the University of Calgary,
where I teach primarily in the natural resources law
area. I have a long-standing interest in the work of
the International Joint Commission, going back to days
as a graduate student at the University of British
Columbia, when I worked on an issue involving the
Skagit River for an organization called the Ross
committee, which stood for “run out Skagit
spoilers”, which was a wonderful title. I have also
worked more recently on issues related to the Columbia
River basin. So that's a bit about my background.
My own stance on this bill, as a water removal bill,
is that there is a legitimate concern with the issue of
out-of-basin removals. For me, that concern is an
ecological concern rather than a nationalistic one.
The third background comment I'd make is that for me,
as well, water constitutionally is primarily a subject
for provincial regulation and not federal regulation.
Therefore the federal government should be
appropriately cautious, in legislating in this area, to
protect values that truly are national and transcend
the interests of any one province.
If that's my own position, it follows that I therefore
agree with the intent behind what is proposed here and
the emphasis, in the public literature, on
environmental concerns rather than dealing with this as
a trade ban. Having said that, though, it is a bit
curious that this is a bill relating primarily to
environmental issues, but you don't find the words
“environment” or “ecology” anywhere in this bill.
My concern is really to see if the draft, as proposed,
is the most effective way of achieving their objective.
By effective, I really mean whether it will stand up to
scrutiny on both international trade law and basic
constitutional law grounds. I guess I think of these
two concerns as being the rock of constitutional law
and the hard place of international trade law, and the
issue is to navigate a way through.
I'm not going to say much about trade law.
I'm not a trade lawyer. But I will say it seems to
make sense to focus on a bill that deals with basin
removals, rather than export bans. I say that because
of GATT article XI and NAFTA 309. I tend to agree with
those who say that trade law deals with goods and not
water in its natural state. I also agree with those
who say that just because you commodify some water, it
doesn't follow that all water thereby becomes a
commodity subject to trade disciplines.
To turn to the summary paper I have prepared, I think
we all know that this bill really has two distinct
parts to it. One is the creation of a licensing system
under proposed sections 11 and 12, and the other part
is the creation of the prohibition in proposed section
I think we can dispose of the licensing issues in the
bill very quickly. It seems to me this is a sound
proposal. I almost describe it as a housekeeping
measure. It's designed for better implementation of
the International Boundary Waters Treaty Act; it's
designed to deal with enforcement issues and offence
issues, perhaps better than in the current statute. So
if I can use a colloquial expression, proposed sections
11 and 12 are no-brainers. It's a good way to proceed.
On proposed section 13, the prohibition on
out-of-basin transfers, let me just try to encapsulate
what it covers and what it doesn't cover. Then I want
to raise what I think may be a constitutional concern
with proposed section 13.
First of all, if you look at item 3 of my summary,
you'll see a list of what is not covered by proposed
section 13. It doesn't cover transfers of
transboundary waters or transfers from waters flowing
into boundary waters. It doesn't cover transfers from
waters that are neither boundary waters nor
transboundary waters—the Gisborne Lake situation.
It doesn't cover transfers of groundwaters because
groundwaters are not subject to the Boundary Waters
Treaty. It doesn't cover transfers out of basins
that are not listed water basins.
So the general thrust is that this is a very limited
bill, and maybe appropriately so, given my starting
proposition about who should be doing what, as between
the provinces and the federal government.
What does it cover? It covers transfers out of listed
boundary water basins, and in one respect this is quite
broad. It covers transfers out of listed boundary
waters, even if those transfers will not have any
measurable effect on boundary water levels or boundary
water flows. It does that because of proposed
subsection 13(2) of this bill, which is a deeming
I want to turn to the constitutionality of proposed
section 13. We all know that this bill is being put
forward on the basis that the federal Parliament may
make this law on the basis of section 132 of the
Constitution, the empire treaty clause, which gives
Parliament the authority to make laws to fulfil
obligations undertaken in boundary waters and under the
International Boundary Waters Treaty Act.
There's clearly no issue about the licensing
provisions of proposed sections 11 and 12.
They are implementing obligations under articles III and
IV of the International Boundary Waters Treaty.
I question, though, whether article III, in particular, and
section 132 of the Constitution Act afford adequate
support for proposed section 13, for two main reasons.
First are the deeming effects of proposed
subsection 13(2). I would say that whenever you see a
deeming clause in a bill that is jurisdictionally
suspect, the alarm bells should go off. They should go
off because a deeming provision is intended to say that
notwithstanding the facts, we are going to deem them to
What triggers federal jurisdiction under proposed
subsection 13(2) and article III of the International
Boundary Waters Treaty is an interference with flow, or
an interference with levels. This deeming provision is
saying that even if there's no interference with levels
or flow, we are still going to prohibit it. The
rationale is a sound one, in terms of cumulative
I have all the sympathy in the world for the motive
behind this legislation—the desire to get at all
removals. The simple question is, can this be done
under proposed section 13(2)? So I say there's a
problem with the deeming clause.
I also say there's a problem with the blanket
prohibition represented by proposed section 13 because
I say—and this may be contentious—that article III
together with article VIII of the International Boundary
Waters Treaty create a regulatory scheme, effectively
a licensing scheme, and not a prohibitory scheme. Yet
what is being put in place here for one category of
removals is a prohibitory scheme.
What might be done to bolster this provision? I guess
I wouldn't want to leave the committee after saying
there are problems with proposed section 13, without at
least offering something by way of a solution that
doesn't dramatically expand proposed section 13.
It would be my view that legislation of this sort
might be supportable under another head of power, if the
drafting were amended. The drafting of proposed
section 13 puts all the eggs in one constitutional
basket. It puts them all in the basket of proposed
subsection 13(2). So if there's a problem with that
approach, there's a problem with proposed section 13.
It may be possible to expand the constitutional
coverage, if you like, of proposed section 13 by
referring explicitly to the objectives that are
supposed to animate this bill, namely an ecological
concern about water basins and the effect of water
removals from water basins.
You'll see at the bottom of page 2, item 8, I've
recommended some redrafting of proposed section 13 to
refer explicitly to the ecological concerns that
underlie the bill and proposed section 13, and
therefore perhaps make it easier to rely upon the
national concern branch of the peace, order, and good
I suspect I'm over my time, so I will end right there, Mr.
Chairman. Thank you.
The Chair: Thank you very much. That was very
helpful. I noticed that our legal adviser was listening
attentively to what you had to say, so we'll have a
chance to ask him and you about this at the end of the
Next I will go to Mr. Kierans.
Mr. Tom Kierans (Individual Presentation): Thank
I would also like to thank the committee and the
chairman, and particularly the clerk, Ms. Vachon, who's been very
helpful to me, for this invitation. I'm
very happy to be here.
I should say that this is not the first time I've been
here. I have in my hand a Hansard dated April
11, 1960. I attended at the invitation of Rodger
Mitchell, who at that time was the
MP for Sudbury, and I was living in Sudbury at that
In 1965 I again attended a committee meeting of the
mines, forests, and waters group—and I have the
Hansard in my hand—at the invitation of John
Turner, who at that time was a fledgling MP. I spent a
day testifying before that committee. I think it was
from 9 a.m. until 7 p.m.
My interest in water goes back to 1933, when I was a
student at McGill. I was 20 years old, there were no
jobs, and I decided to go out with another chum and
prospect for gold in the British Columbia rivers. On
my way out by train, we stopped briefly in Saskatoon.
As you may remember, this was a time when it was very
dry on the prairies. I will never forget—it's
indelibly placed in my mind—that standing on the
platform at the station in Saskatoon, I could only see
for half a block, because of the dense dust that
permeated the air. I made up my mind at that time that
I would devote much of my career to trying to find a
way to end that kind of situation.
Later I came back, and because there were still no
jobs, I had to postpone my career at McGill and go to
work in the mines in northern Quebec. There I saw the
rivers flowing to James Bay and was impressed with the
huge volumes of water that were flowing into Hudson
Bay, at the Harricanaw River, in particular. I
found that there was a potential source.
A video on this was prepared by the Discovery
Channel, which very accurately describes... My
interest was to find areas in the world where similar
problems existed, and there might be some means of
taking a message from them.
In the Netherlands, there are probably the most
advanced thinkers in the world, in terms of water.
Normally, when we think of a dense population we think
of poverty. I believe Holland has the most dense
population in the world, yet it has one of the highest
standards of living. The reason for that is they use
their heads and their intelligence with respect to
water. What they did there has tremendous application
in this country, particularly for Canada.
We have the capability to do what they did in the old
Zuider Zee, when they changed it from a salty arm
of the North Sea to a freshwater lake, IJsselmeer.
They created new freshwater that did not exist
before, and new land.
As a matter of fact, when you land at Schiphol
Airport, you land 25 feet below sea level. The reason
it's called Schiphol, which means ship's hell, is
because 400 years ago there was a bloody naval battle
fought in the water above that airport.
The Dutch are continuing to do this work around the
world. For example, they're working on the Brahmaputra
River in Bangladesh, where many lives are lost
every year because lack of water management.
So that's the background of my presentation. I just
thought it might be valuable to go through that
If you don't mind, I'll try to paraphrase my
presentation, as much as I can. I hate reading things.
I tested it, and I think it's around five minutes.
On introducing Bill C-6 to prohibit bulk water removal
from Canadian boundary waters, including the Great
Lakes, Canada's foreign affairs minister said in a
We are taking a decisive step to ensure that this
critical freshwater resource is protected for future
With all respect for the minister's statement and
those who agree with it, Bill C-6 will cause long-term
social, ecological, and economic harm to vital areas in
Canada and the U.S., including
the Great Lakes and the St. Lawrence River, with
its continuing declining and unstable
levels and flows; areas
throughout Canada and the U.S., with increasing
pollution concentrations in water supplies such as the
Great Lakes; Canada's prairies and critical U.S. areas,
with worsening freshwater deficits and drought; Hudson
Bay, with the continued lack of commercial fisheries
and very short shipping periods; and the Canadian and
U.S. midwest, by neglecting flood control
opportunities. There would also be the loss of the
potential to significantly—probably in the order of 5%
to 10%—increase Canada's freshwater supplies with the
implementation of the proposal we're making. This is
an increase—not decrease.
So we're really not talking about water export in the
sense that you would send something away that would be
lost. In fact, what you would do is increase what you
already have, even when you send water elsewhere. This
may sound odd, but this is exactly what you can do with
the proposal established by the Dutch, which I tried to
follow in my proposal with regard to James Bay.
Residents of both nations already suffer adverse
social and economic impacts from declining and unstable
Great Lakes and St. Lawrence River levels and flows, as
well as drought, flood, and poor water quality in other
river basins. We've seen this in Walkerton; we've seen
it in North Battleford; and we'll probably see a
lot more of it. I heard in the news just today that
the same applies in my home province of Newfoundland.
Past records of population growth indicate that if
current curves are followed, we need to make plans for
a billion or more North Americans before this century
ends. There are 1.3 billion people in China, and there are
another billion in India, so this is not unreasonable
to think, in terms of that need.
Neither country, however, can make such vital plans
alone because global weather, El Niño and La Niña, pays
no regard to international boundaries. And Canadians
properly oppose southward diversion—and I use the
word “diversion” as being a particular type of
transfer—of boundary water headwaters because of
downstream flow losses in that type of transfer. Not
many people understand that there are several types of
transfers you can have, and diverting is just one of
them. Recycling is another. I'm talking about
However, too few Canadians clearly understand Hudson
Bay water problems; its social, economic, and
environmental opportunities; or the steps that are
needed to unlock that bay's rich resources.
Renowned oceanographers such as McGill's late Max
Dunbar—and I think attached to my submission
there's a copy of his essay—have demonstrated that the
huge freshwater runoff to Hudson Bay equal to the flow
of five Niagara Rivers from its immense drainage basin,
combined with... That big drainage basin covers over
half of Canada, by the way. Huge freshwater runoff
causes low-salinity water
to stratify in the bay's top 60 metres. This
stratified layer hinders bottom-nutrient transfers to
upper euphotic zones where biological productivity can
The result is that Hudson Bay, the world's
second-largest inland sea after the Mediterranean—a
Canadian inland sea, by the way—is a marine biological
desert that cannot support a single commercial fishery.
The low-salinity surface water also freezes early and
melts late. This causes vast floating ice fields to
stop shipping for nine months of the year. Max Dunbar's
1993 essay suggests that runoff to Hudson Bay should be
Since 1928 the Netherlands have proved the rich
technical, social, environmental, and economic benefits
of constructing a dike enclosure within the outer
limits of the former Zuider Zee. Outflow-only control
gates in that dike, operated in conformity with ocean
tides, have changed that once salty arm of the North
Sea to a large, very valuable, sea-level source of new
freshwater and farmland—as well as industrial land, I
Canada's shallow James Bay has similar natural
features in which the Netherlands' proven
technology—proven for over 80 years—can be used to
collect runoff at sea level from the many rivers
radiating from that bay. This could create a similar
but much larger source of new fresh water to relieve
worsening freshwater deficits and drought that already
impact the Great Lakes and other vital areas of Canada
and the U.S.
If Canada used the Netherlands' proven technology in
James Bay, some of the resulting immense, fully
controllable—in other words, you don't have to take
it, if you don't want it you just let it go to the sea,
but you can take it if you want it—new fresh water in
that bay could then be recycled as needed to stabilize
levels and flows, as well as lower pollution in the
Great Lakes and the St. Lawrence River. It could also
relieve drought on Canada's prairies and in U.S. areas,
while providing a large freshwater source for regions
now using groundwater of questionable purity. This
source's sea-level location avoids downstream flow-loss
problems, as associated with diversions.
Recycling runoff to Hudson Bay to other areas of
Canada and the U.S. will raise the Bay's surface
salinity, thus improving its biological productivity,
fisheries, and shipping. Flooding large land areas for
water storage, as with diversions, is not needed.
Especially significant is the substantial increase in
Canadian fresh water—as I say, somewhere between 5% and
10%—with this concept's implementation and operation.
Detailed studies of this concept are endorsed by
distinguished Canadian and U.S. engineering firms. The
late Robert Bourassa, past Quebec premier, suggests
such studies in his 1985 book Power from the
North. I might add that I had an
opportunity back in those days to spend practically a
half day with Mr. René Lévesque, the founder of
the Bloc Québécois. We were forced to stay together,
you might say, for about half a day—I think it was in
Edmonton—after a meeting. He understood what I was
talking about and he became very sympathetic. I can't
say what he said, because it's not in writing, but
Robert Bourassa wrote it in his book.
As this proposal involves transboundary water
transfers, design and operation should be supervised
by a new, 21st century International Joint Commission
with a mandate that includes relevant studies of all
river basins and coastal areas in both nations. Since
the 1909 Boundary Waters Treaty, the IJC has won a
remarkable reputation of fully protecting the
sovereignty, territory, and resources of both nations.
Expanding the scope of a new, 21st century IJC to allow
studies of this concept would be expected to continue
and carry on that protection.
The North American Aerospace Defence Command, NORAD,
is a similar joint Canada-U.S. agency that allows the
two countries to achieve, in cooperation, vital goals
that neither can possibly attain alone. The end of the
Cold War is largely attributed to the work of NORAD,
which continues today. This is an example that should
be kept in mind by your committee when considering the
opportunity to work together with the... continue to
expand. The IJC have proposed the expansion of their—
The Chair: You started by saying you would be five
minutes. You are now almost fifteen. You are going to
have to stick to your text or stop digressing, or we're
going to be in serious trouble. I don't mean to be
Mr. Tom Kierans: I apologize.
The Chair: I get nervous when you go off into
Mr. Tom Kierans: All right. I'll try. I have one
The Chair: That's what I'm hoping, that you'll
stick to that paragraph.
Mr. Tom Kierans: Like the Netherlands, there are
rich benefits for Canadians, especially the Hudson Bay
native people, in recycling as needed some of the huge
runoff to James Bay to aid Canadian and U.S. dry areas.
This is far more logical than enacting Bill C-6. The
latter can condemn Canadians to watch the Great Lakes
and downstream St. Lawrence River levels and flows
needlessly decline and become more polluted with no
ability to relieve freshwater deficits in either
nation, while Hudson Bay continues to be a marine
Enacting Bill C-6, as written, without objective study
of recycled runoff from James Bay, would be one of the
most costly and illogical errors in Canadian history.
The Chair: Thank you for a very interesting
presentation. We will have some interesting questions,
I'm sure, for you and the experts arising out of it.
We'll go to Mr. Jackson, and then Mr. Denison.
Mr. John Jackson (Past President and Chair,
Sustainable Water Task Force, Great Lakes United):
Good morning, and thank you for inviting me.
I'm a past president and board member of Great Lakes
United, which is a coalition of citizen groups
throughout the Great Lakes Basin, on both the Canadian
and U.S. sides, also with membership from the first
nations and tribes. I'm also here today representing
the Canadian Environmental Law Association, which I'm a
board member of. These two organizations have worked
together for the past 20 years on water diversion
issues in the Great Lakes, on concerns about water
exports. For example, we were interveners in the
hearings when the Province of Ontario originally gave
and then withdrew the permit to Nova to export water
from Lake Superior to Asia. We've written major
research on the Great Lakes in respect of water level
issues in a report called The Fate of the Great
Lakes, and we continue to be heavily involved in
In the Great Lakes this issue is of major concern,
exports, diversions of waters out of the Great Lakes.
There are diversions already. The Chicago diversion
into the Mississippi River is always a major concern
and always threatening to expand. Several years ago,
when there was a drought along the Mississippi, which
was later followed by major flooding and was just the
reality of nature, there were proposals to dramatically
increase the diversion of water at Chicago out of the
Great Lakes system. So there's always the threat
The major diversion threat we're currently confronted
by, however, in the Great Lakes is the expansion of
cities on the U.S. side out of the basin, coming to the
Great Lakes and saying they need water for their
expansion and development. There are many proposals
for diversions out of the Great Lakes to address this
sort of problem.
As we all know, with the impacts of climate change
that we're seeing, we're clearly seeing them in the
Great Lakes. Despite all the rainfall we've had
recently and the snow we had this winter, the
predictions are that Lake Huron in particular will be
at its lowest levels this year since they've been
taking measurements, beginning in the early 1900s. The
people who run marinas have seen those effects very
clearly. The power plants are seeing those effects and
are worried. The shippers now cannot fill their boats
to full level, because they will scrape the bottom if
they fill all the way. Montreal Harbour is seeing the
effects. So this is a serious and real concern.
That's why we're really pleased that you've been taking
the initiative to have this bill, and we trust you will
I want to first speak to the prohibition of removal
issue. This is absolutely critical and very important
to us who live in the Great Lakes basin. The reality
is, however, that it will be meaningless unless we get
the United States to do the same thing. What this
does—quite rightly, and it's good that we set that
example—is put prohibitions on exporting and diversion
out of the Canadian side of the Great Lakes basin. It
does not address the United States side.
Currently, there are discussions among the governors
of the Great Lakes states to have something they call
“Annex 2001”. In many ways that would open up the
door to more diversions of water out of the Great Lakes
basin, if it were to pass. The Government of Canada
has objected to this. The Province of Ontario and the
Province of Quebec have also objected. However, that
doesn't mean it will necessarily stop.
So my message is that we need to set a very strong
example through our actions here in Canada, so we are
able to improve our strength in pushing the United
States to do the same, to improve our credibility as we
push them. So passing this bill, even though on its
own it won't solve the problem, is an important step in
allowing us to be more powerful as we push the United
States to take proper actions to protect the Great
Lakes and the other parts of Canada.
I have one major concern with the prohibition section,
however, and that is the last part of it, where it talks
about exceptions to the prohibition, which are to be
defined in the regulations.
We have no idea what doors that potentially opens up.
It leaves it in the hands of the minister and the
cabinet to, basically on their own, decide what
exceptions they want to give and the power to change
that. They may pass a regulation now that's very
restrictive, but perhaps five years from now or ten
years from now another regulation can be passed that
opens up more options. So I think you have to find
some way in the bill to make that provision clearly
very restrictive, because otherwise, it can just
overturn the whole intent of the section, depending on
what kinds of regulations are passed in the future.
In the United States, again using the U.S. example,
they have been talking about strict water regimes, but
then they talk about this de minimis exemption,
which says that any water withdrawal out of the basin
of less than one million gallons per day really doesn't
have to go through a process at all. Those sorts of
exceptions, when you look at them cumulatively, can be
very dramatic. So I urge you to look at the wording.
I'm not a lawyer, I don't know the best ways to try to
limit the scope of what that exception power gives, but
I urge you to find some way to do it.
On the licensing provision, again I think it is a very
valuable and useful section, but there's one lack of
clarity in it, when it refers to uses. Yet when I look
at the written material the government has put out with
it, it says “uses will not include municipal,
industrial and agricultural uses”. So I'm not sure
what uses they're referring to here. I think it is
important to be able to look at agricultural,
municipal, and industrial uses from a federal
perspective with regard to the impact they have on the
Great Lakes as a whole, because those impacts,
individually and cumulatively again, can be very
significant. What's really important for us is to
always keep in mind is that looking at one withdrawal
on its own may not seem significant, but when that sets
the precedent for other withdrawals, it can
cumulatively become very significant.
On the trade issue, I'm not a lawyer, and I'm
particularly not a trade lawyer, and I'm sure you've
heard different versions on this, so I'm not going to
address it. It's very highly debated, and I'm not
going to get immersed in that debate. One thing I
really liked about the Canadian approach is that what
has been stressed is that we're talking about
ecological integrity here, we're not talking about
trade bans, putting it into the environmental
perspective of what we're trying to do to protect the
waters in Canada. I totally believe that's a very
appealing and appropriate way to go.
But I think in doing that, and particularly if there
is a trade challenge at some point, to strengthen our
hand in proving that indeed we are operating that way,
we must have in place strong conservation measures. We
must pass regulations and requirements in Canada that
require Canadian users of water to be very careful in
how we use it. Now we are among the most wasteful in
the world. That must stop, and the federal government
has a major role to play in that. We must make sure we
have the programs in place to show that our use of the
water is responsible if we are going to say to others
that it's not appropriate for them to take water out of
One of the other issues that constantly arises is
water going to waste. The International Joint
Commission, in the report they did because the Canadian
federal government asked them to do a report on
diversions, said very clearly that water does not go to
waste when it flows out of a system into the ocean.
Scientists, as they begin to explore the very
complicated ecology of the mix between fresh water and
salt water as the outflow comes from the St. Lawrence
River, for example, are making us come to realize there
are species that require that mixing, species that
require that outflow in order to survive and in order
Therefore, we must not
look at this simply from the perspective of human uses
and what we as human beings want to have. This is a
natural system we live in, which we are part of,
but only part of. There are others who also require
this system in order to thrive, and therefore to think
that somehow engineering solutions will take care of
the needs of all is not an appropriate way to proceed.
We are part of the natural ecosystem.
I want to make a few recommendations on
this particular piece of legislation to summarize what
I've said to you thus far.
I urge you to find a way to define exceptions in the
prohibition clause so that the regulations can't be
wide open in terms of the types of exceptions that are
I think it's really important that the licensing
provision be defined in terms of judging the uses and
withdrawals of water within the basin in terms of
ecological integrity. Again I think that needs to be
put into the legislation because of our intent, as
stated by the ministers, that ecological integrity is
really what we're trying to protect here, but also
because of the whole issue of trade. We've clearly
said we're here to protect the ecology, and that's why
we don't think it's a trade issue.
In relation to making the environmental aspect clearer
and stronger, we also think it's critical to include
the Minister of the Environment in decisions on this
bill. In determining the appropriateness of giving a
licence, it should be not just the Minister of Foreign
Affairs, but it should be jointly with the Minister of
the Environment. We have other pieces of legislation
that have that sort of joint responsibility. The
Canadian Environmental Protection Act, for
example, has joint responsibilities between the
Minister of Health and the Minister of the Environment.
So we think a role for the Minister of the Environment
should be put into this bill.
Finally, in assessing the requests for licences and
also any exceptions under the prohibition act,
we think the use of the federal
Environmental Assessment Act should be put into
the bill as well to make sure there's a full assessment
of the environmental impacts of any withdrawal out of
the Great Lakes system and other systems across Canada,
and uses within the basin as well.
Thank you for hearing my comments this morning.
Again, thank you for the invitation.
The Chair: Thank you very much for
your helpful comments.
Mr. Denison, I believe you came because of the
reference to, in the last hearing, the company
you're counsel to. You're going to be fairly brief
about that, as I understand.
Mr. Terry Denison (Counsel, OMYA (Canada)): Yes,
I'm here because you had other witnesses, the Council
of Canadians and the Sierra Club, who
referred to a water-taking permit by my client, OMYA
(Canada) Inc. There were certain facts that were given
as facts to the committee, which I feel are not
accurate. I'd like the committee to have the
First of all, I recognize we have some limited time
here. I prepared some comments that I'm going to try
to follow. Unfortunately, I was only able to prepare
them in English. I've distributed some of those to
individual members. I apologize that I do not have a
French translation here.
The head of OMYA in Canada, Olivier Chatillon,
would have been here to make the presentation in French
himself, but he's presently down in Burlington meeting
with fisheries department officials about this very
matter, so it fell to me.
I'm going to go through this quickly. It includes
a little bit of background on OMYA and what it does,
why it went for a water-taking permit to the Province
of Ontario, what the Province of Ontario does with
relation to a water-taking permit, and it also points
to the involvement of the federal government through
the Department of Fisheries and Oceans and through the
federal environmental approval process
that is triggered because of the DFO involvement.
You're considering Bill C-6, which amends the
International Boundary Waters Treaty Act, and
you've had some witnesses, including the Council of
Canadians, who have suggested that OMYA's water-taking
permit somehow has some bearing and relevance to
this, and it may indeed do that.
I think what is critical here, and what I've heard
other witnesses today talk about, is the fact that the
overriding concern about these matters really should be
the ecological and environmental concerns. I think you
might have been left with the impression in the case of
OMYA that there was a complete neglect by the Province
of Ontario to environmental and ecological concerns in
dealing with OMYA's permit. We take the view that this
is not the case at all, that there was a careful
OMYA (Canada) is in the process of dealing with
calcite. Calcite is calcium carbonate, or marble.
It's a very white mineral, with very few impurities in
the particular quarry that it's drawn from, to produce
calcite products at OMYA's plant at Glen Tay near
Calcite is a very environmentally friendly
product. It's not a volatile chemical, It's simply rock
in the ground. But through very sophisticated
technology at the Glen Tay plant, it's ground into very
fine particles, either in a dry process or a wet
process. The ground calcium carbonate is used in a
wide variety of products, including construction
materials, papermaking materials, plastics,
toothpaste, pharmaceuticals—the list is quite
OMYA has two process there. One is the dry process.
The other process, which is gaining increasing use, is
a wet process. In the wet process, the calcite is
crushed and combined with water to make a slurry
product, which is used primarily in fine papermaking.
The use of that particular calcite slurry in fine
papermaking has a benefit to the environment in that it
reduces significantly the amount of wood pulp that's
used in that papermaking, chlorines, and other chemical
additives, and it changes the process so that less
electrical energy is required to produce the paper.
Because of those factors, the use of calcite slurry in
fine papermaking is increasing, and this has meant more
success for the company. That's why they decided to
switch from their groundwater sources to plan for the
future, to be able to draw water from the Tay River
The permit was dealt with after study and
analysis by the provincial Ministry of the
Environment. The process was started in February
2000, and they issued a permit, after much review and
public comment, in August 2000. That issued permit
is the subject of an appeal by the Council of
Canadians, and others, to the Environmental Review
Tribunal of the province.
I'm going to refer to Christine Elwell,
of the Sierra Club, who came before your committee
on May 17. She said:
Or water used in slurries—as, for example, the situation in
Kingston with the taking of the Tay River—while
it's combined with maybe 5%
of this chalky substance for paper, 95% of
it is water, and it's going out
in huge tankerfuls.
The fact of the matter is, first of all, the plant is
at Glen Tay, near Perth, not near Kingston, and I don't
think that fact will be lost on some of the Ontario
members. While the exact portion of the water in the
calcite slurry varies according the required
specifications of the end user, the proportional amount
of water and calcite slurry is nowhere near 95%. It's
in the range of about 23% to 25%, depending on the
Also in her presentation, Ms. Elwell refers to a
“lack of capacity with the Ontario government to
actually be able to manage the environmental impacts
The fact is, there is a process under the Ontario
Water Resources Act for water-taking permits,
where the Ontario Minister of the Environment evaluates
the applications carefully. Qualified scientific and
engineering professionals are required to carry out
studies on behalf of the proponent, which are reviewed
by Ministry of the Environment staff and other related
agencies. There is an opportunity for public
participation in the review process. It's posted on the
Internet through an EBR commenting system. In the
case of OMYA's application, there was extensive review
and comment before the application was finally
determined by the ministry.
It's clear that Ontario has appropriate legislation
now, and it has procedures to make environmentally
sound decisions. The ministry decisions in this are
also subject to public review during the process of
making the decisions and may be appealed to the
Environmental Review Tribunal, as has been done in
OMYA's case for a permit to take water
from the Tay River.
Another witness before your committee was Jamie Dunn
of the Council of Canadians, who made a
presentation on May 15. Mr. Dunn's presentation made
several references to OMYA's application for a permit
to take water from the Tay River. He stated:
Right now the Council of Canadians is an appellant
at an Ontario Environmental Tribunal hearing on a
water-taking permit issued for the Tay River, near Perth,
Ontario, to take 1.6 billion litres of water a year.
The reality of NAFTA's importance there is in the fact
that the way the permit was issued, with no significant
environmental information on the Tay River and with a
wait-and-see approach, will set a standard for
water access in Ontario. If that permit goes ahead,
any American or Mexican company, and once the FTA comes
into play, any of the countries in the western
hemisphere, can say, that's the standard by which we
get water in Ontario, without significant environmental
information, on a wait-and-see basis, and since the
appeal process in Ontario is at the front end, once
the permit is issued, in a way that frustrates public
participation in how its environment is protected.
We disagree with that statement made to you by Mr.
Dunn. The fact is, numbers are often used to impress
or confuse you. The use of numbers like 1.6 billion
litres of water a year is totally meaningless unless
it's put into a context of the amount of water that is
available and the impact of that water-taking on the
water that's available. The amount of water permitted
to be taken under OMYA's permit out of the Tay River is
less than 1% of the normal flows of the Tay River, and
the conditions on the permit are such that if the flow
of the river drops before a specified amount, OMYA must
cease to take water from the river until the flow
increases to normal levels.
The suggestion that there's no significant
environmental information on the Tay River is also very
false and misleading. The fact is that there are many
sources of data on the flows of the river and about the
habitat, and these have been gathered together in
reports prepared for both the Rideau Valley
Conservation Authority and a Tay River watershed study.
In addition to these data, OMYA's consultants carried
out their own studies and analysis to support the
application. This included records from Parks Canada
and the Rideau Valley Conservation Authority going back
almost a century.
And then there was a suggestion that somehow NAFTA
will dictate Ontario's regulatory process, based on the
Ministry of the Environment's review of the OMYA
application, and that has no basis in law. Ontario has
the authority to legislate or regulate a water-taking
permit now. It will continue to have it after Bill C-6
amendments and during NAFTA. Ontario will consider the
nature of the impact, if any, water-takings may have on
the environment and the principle of conservation of a
non-renewal resource. NAFTA does not impede the
authority of the Government of Ontario over the
issuance, the refusal, or the cancellation of a water
permit. In most permits the terms and conditions allow
the Ministry of the Environment to require the
reduction of a water-taking on interference grounds or
environmental grounds, and in addition, the director
may even cancel a permit. The overriding concern is an
environmental and ecological one, and that is being
Also, contrary to what other witnesses may have told
the committee, OMYA is not exporting bulk water.
The Chair: Mr. Denison, again, you're running over
ten minutes. This committee is supposed to stop at
Mr. Terry Denison: Okay.
The Chair: I'm glad you're rectifying the record,
but I hope you've almost made your point, because we're
only going to have half an hour left to ask questions.
Mr. Terry Denison: Okay. Would you like me to
finish now, or does the committee want to take a break?
The Chair: Yes, I think you should finish as
quickly as you can. We've understood your point.
Mr. Terry Denison: Yes.
The Chair: There are two clear points. We've said
there was no regulatory process in place, and you've
told us clearly there is a regulatory process in place,
and you disagree with—
Mr. Terry Denison: Not only is there a provincial
regulatory process, but there's also a federal
regulatory process in place. There is a screening
involved under the Canadian Environmental Assessment
Act as well that's part of this process, and that's
being dealt with as well.
The Chair: Great.
Mr. Terry Denison: And the technical reports and
study are very extensive on this.
I think I've made the points, and I'll certainly leave
copies of the presentation. I'd be glad to entertain
any questions the committee may have. I thank you very
much for your attention.
The Chair: Thank you very much. That's very
helpful. I agree, the impression was given that a very
low standard had been set, and as a result the
floodgates would open for exports through NAFTA. I think
you've clearly indicated that there is a regulatory
process, it's being followed, it's both federal and
provincial and it's strenuous.
Mr. Terry Denison: To underline that fact, in
addition to all the study and so on that went on up to
the issuing of the permit by the province, we're now in
this environmental tribunal hearing process, where
evidence is being brought forward to support what was
done by the province and by OMYA. I might tell you
that we have not been made aware of any scientific or
engineering experts or reports proposed by the critics
of the thing to be brought to the hearing.
The Chair: Mr. Jackson, I want to quickly ask you
a question for clarification. You mentioned that the
Great Lakes governors had some policy that you said
would open the door to exports, and you had a name for
that. What was the policy called?
Mr. John Jackson: The proposal is Annex 2001. It
is a proposed annex to the Great Lakes Charter, which
was signed by the Great Lakes governors and the
premiers of Ontario and Quebec originally in 1987.
It's a proposal.
The Chair: So it's an annex to the Great Lakes
Mr. John Jackson: Right. And it's a proposal, it
has not been passed.
The Chair: Thank you very much.
Mr. Casson. Could you keep it to five minutes?
Mr. Rick Casson (Lethbridge, Canadian Alliance):
Thanks, Mr. Chairman.
I'd like to pose a question to Mr. Bankes. Mr.
Chairman, at your request, the department has
prepared an explanatory note on the bill. One of the
statements they make concerns proposed section 13:
This prohibition removes from the licencing regime bulk
removals out of the water basins and imposes an absolute
prohibition on such projects, binding on the
Would you agree that this bill does that?
Prof. Nigel Bankes: Yes, I would, apart from the
exceptions Mr. Jackson referred to that may come into
force through regulations under proposed subsection
Mr. Rick Casson: Okay, and the regulations we
Prof. Nigel Bankes: I understand we all have a
copy of the draft regulations.
Mr. Rick Casson: Yes, we have.
What, in your opinion, is the role the provinces have
to play in this? Water is a natural resource and under
the control of the provinces. Bill C-6 is just part of
a three-part strategy the government's using, along
with the IJC and the provincial agreements, to give us
control over our water. Do you feel these things can
work in conjunction with each other and that indeed we
will be able as a country to protect our water from
Prof. Nigel Bankes: I think we have to see the
total package together, but I will say that we've got
the IJC report, and interestingly, the IJC doesn't say,
let's prohibit removals, it says, let's take a
precautionary approach to removals. I think it is also
the case that just about every province has passed an
enactment that will restrict removals from water basins
or from the province. I think those provincial
enactments, certainly insofar as they relate to water
basins, are constitutionally justified.
This is an area that I think has a double aspect.
In other words, the province can make laws and rely on
its powers under section 92, and the federal
government can make laws under section 132 and
perhaps some heads of section 91. If there's a true
conflict, the federal law would prevail. So if this
prohibition is valid, and a province were to try to
authorize the removal of boundary waters from a listed
basin, it would trump the provincial laws.
We have to see the entire package, I don't think we've
got all the provincial laws in place yet, but I think
this has the potential to work. My one concern is the
validity of proposed subsection 13, based as it is
exclusively on section 132. I think that was the way I
concluded my remarks earlier.
Mr. Rick Casson: Mr. Kierans, you made one comment
in your presentation that this project on James Bay
could help relieve drought on Canada's prairies. We're
in the middle of a drought in Canada's prairies right
now, on parts of it. I don't understand how doing the
project you're talking about on James Bay would help
get water back onto the prairies. Maybe you can
Mr. Tom Kierans: I made a presentation in Orlando
just last week to the American Society of Civil
Engineers, and I understood that was distributed. It
was a ten-page presentation and it outlines exactly and
it describes how that would be done.
Basically the water would be transferred from the new
source in James Bay to the Great Lakes, and from the
Great Lakes via what we call a prairie transfer canal
to Lake Diefenbaker. Lake Diefenbaker is a central
area where you could distribute water to virtually any
part of the western areas of both Canada and the United
States. That's a part of the literature we
Mr. Rick Casson: Thanks, Mr. Chairman.
The Chair: Thank you, Mr. Casson.
Ms. Francine Lalonde (Mercier, BQ): I am going to come back
to Mr. Bankes to discuss the paragraph in the department's
explanatory note. This is a recent note, in which it says:
This prohibition is aimed solely at boundary waters, according
to the definition in the treaty [...] and only to the extent
stipulated in the treaty, that is, their effect on the level and
flow of waters from the American side of the border.
When I read this, I am concerned, because in reality, the
second subsection of section 13 says that it is not to the exact
extent to which there is an effect on the level of waters, but
that this level is deemed to be affected by the removal. So
perhaps this gives you grounds for your constitutional fear,
because the explanatory text is not consistent with the bill. I
am sure this escaped them, because with their proverbial
professional honesty, they are certainly going to correct this
note and perhaps explain to us why they feel obliged to word it
I would like to have your opinion on this, because it looks
to me as though they are providing perfect grounds for the fears
you had concerning the drafting of subsection 13(2).
Prof. Nigel Bankes: Thank you for that.
Let me just say that my concern is a twofold concern.
It's a concern about the use of a deeming provision,
the 13(2) provision, and also a concern about the
enactment of a prohibition. I don't have a policy
concern with either, and I hope I made that clear.
That is, I think it is important to address the issue
of cumulative impacts. My concern is simply a question
of whether section 132 authorizes this legislation. As
I've said, I think all the constitutional eggs have
been put in the section 132 basket.
So I think my suggestion was to try to find some
additional support for what I regard as a laudable
Ms. Francine Lalonde: I would like to address Mr. Kierans
because he causes us to consider the problems of water in a far
more global way than does bill C-6. He is trying to find
solutions to the problem that Mr. Jackson stated, that is, that
the level of the water, because of climate changes and a rapid
increase in use caused by urban expansion, is going to be
affected in any case. So, even if we try to prohibit, we are
nevertheless going to find ourselves confronted with problems.
The St. Lawrence River is at its lowest level ever. Since my
riding is along the St. Lawrence, I know that this is significant.
Unfortunately, this problem is completely extraneous to what
we are doing now, but I think that it is the main problem. This is
why I have tended to find this bill unnecessary. Considering that
the International Joint Commission, the treaty itself and the first
act implementing the treaty already prohibit the use of water—
this could be translated by "abstraction"—which would have the
effect of reducing the level or flow, it is already there. So I
asked repeatedly why bill C-6 was being tabled. I was told, in the
end, that it was for legal and political reasons.
If you read the blues, you will see that these are the reasons
I was given, because in environmental terms, the provinces are the
ones that have the power to impose demands. Do you not find that
the main problem with this bill is that it implies that the water
is being taken care of in environmental terms, when in fact, this
is not what the bill is proposing?
Mr. Tom Kierans: I could not agree with you more.
To me, the proper destination for this bill is the
waste basket. It does not solve, as you've said, the
real problem facing Montreal.
The International Joint Commission conducted a
study—I think it was issued in 1993—in which they
showed that sometime early in this century we would see
conditions that would in fact end Montreal as a
seaport. Montreal could not survive as a seaport under
the conditions that could apply if the projections of
the IJC in 1993 exist sometime in the early part of
this century we just started. They recognized that,
and they were asked in 1997, by the governments of both
nations, to make proposals as to how such problems
could be rectified.
I have a copy here, and maybe some of you have seen
it. It's called The IJC and the 21st Century.
It's an excellent production. It outlines an expansion
of the scope of the IJC from boundary waters only,
carefully defined boundary waters, meaning only the
waters that actually were on the boundary. For example,
Lake Michigan was not considered to be a boundary
water, in spite of the fact that most hydrologists
combine Lake Michigan with Lake Huron as being a single
So the 1909 treaty, which was an excellent treaty at
its time, foreseeing the problems they could foresee at
that time, certainly did the job. We saw excellent
work by the International Joint Commission. They've
established an enviable reputation for protecting the
sovereignty and the resources and the integrity of both
They recommended the expansion of their scope or the
expansion of their mandate to include not just the
boundary waters, but the basins, the entire watersheds
of those. This is essentially what they're proposing.
As far as I know, this has not been approved by either
nation yet. It's a laudable expansion, because there's
no possible way you could protect Montreal and
downstream St. Lawrence River communities. There's no
possible way you could protect them, even against
natural conditions, apart from withdrawals or exports.
So they asked for that expansion. My problem is that
it is not enough, and it will not do the job. To my
mind, if you're going to make an expansion of the
mandate or the scope of the IJC,
you might as well do it in a way that can be effective.
For example, when I talked to people in the IJC they
told me that Hudson Bay was not within their
jurisdiction. Well, if Hudson Bay is going to be the
only practical eventual source and it's not in their
jurisdiction, there's no possible way we can solve the
So I hope in your wisdom you will recommend that the
International Joint Commission's scope be expanded much
the same as the scope of NORAD. We were faced in those
Cold War years with the problem of protecting Canada
against ballistic missiles from the Soviet Union.
There was no way we could do that without working in
conjunction with the United States, and for that
matter, the United States could not protect themselves
against such a danger without working together in
cooperation with Canada. It was impossible logically
to do that, so they put together NORAD.
The Chair: We're going to soon be into NMD,
and then we're going to be really in trouble. I'd just
draw the committee members' attention to the fact that
we have about eight minutes left and I have three
people who want to ask questions on the order paper.
Mr. Tom Kierans: Sorry.
The Chair: I have to stop you there. I think
Madame Lalonde got the answer she wanted from you,
which was that the bill doesn't go far enough to deal
with all the issues. So I'll move to my next
questioner, Mr. Mills, and then to Mr. Comartin and Mr.
Paradis, and we'll wind it up.
Mr. Dennis Mills: I have a short question.
Mr. Jackson, in your remarks you talked quite
extensively about ecological integrity, and I share
your view on this point.
My quandary or my question is that as we watch the
levels of the Great Lakes decline, and some of the best
environmental scientists in the world are projecting
this, at what point in time do we look at other
possibilities for maintaining that ecological
Mr. John Jackson: I think it's really important to
recognize that those changes naturally happen, and
there are always the cycles and the ups and downs.
Climate change is certainly a longer term trend than
we've had in the past and has dramatic implications.
However, we are currently doing substantial things
that interfere with the natural flows that would help
situations, like the Montreal harbour. One of the
reasons the Montreal harbour is at low level now
is because of the controls we have at
Cornwall-Massena, because the main emphasis as these
changes are happening has been on protecting the levels
of water in Lake Ontario, not on the St. Lawrence River
and the needs of the St. Lawrence River. That's
where the main control is.
I don't know if that tells us anything about the power
structures within Canada or not, but I can make my own
speculations on that.
If we think somehow we're going to solve the problems
of things like climate change by bringing water in from
the Arctic or from somewhere else, a distant place,
that is not a measure that solves our problems even in
the short term, let alone the long term. What we have
to do is adjust and adapt.
The first thing we have to do is learn to live using
less water, major incredible
conservation programs that we can use, major recycling
of our waste waters that we can do.
In terms of falling water levels, that means then that
our land use planning has to change. We have to make
adjustments to that. It's not to think that somehow
we'll find an engineering solution that will let us
keep the levels where they are now or where they were
five years ago. That won't solve it.
Mr. Dennis Mills: Thank you, Mr. Chairman. Thank
you, Mr. Jackson.
The Chair: Thank you very much.
Colleagues, I'm sorry, I kind of misrepresented to
you. We actually go to 11 o'clock, not 10:30. I
apologize for that. I was getting prematurely nervous
about where we were going. We'll have more time to go
Mr. Comartin, and then Mr. Paradis.
Mr. Joe Comartin (Windsor—St. Clair, NDP): Mr.
Chair, does that mean I get not just the next five
minutes but the next 35 minutes? No. All right,
Mr. Denison, I have a series of questions,
The information we got from both the Sierra
Club and the Council of Canadians was that your
proposal would take out 1.6 million litres. Is that Correct?
Mr. Terry Denison: I'd have to check to see if
that is the correct number.
You can measure these numbers in different ways. The
permit taking is for about 1,300 cubic metres per day
in the first stage and 4,500 cubic metres in the
ultimate stage if that's justified by the further
study. The number that was bandied about was one
million gallons a day. That was in the newspaper
headline, and that is an accurate ultimate number. But
what I'm saying is that you have to compare that with
the total flow of the river and measure that taking
against the impact. The number in isolation doesn't
Mr. Joe Comartin: But if we do that comparison,
the 7,000 people in Perth take up that amount of
water. Is that correct?
Mr. Terry Denison: There is a permit to take
double that, but the actual taking has been reduced
somewhat by some conservation measures and by changes
in industry in Perth. For example, if this particular
water was being used by an industry in a municipal
system, it wouldn't be separate water taking. It would
be just part of the municipal taking.
Different water users in Perth have come and gone,
so that has changed the situation. But because this
particular industry proposes to take it directly from
the river, it's something that stands out.
Mr. Joe Comartin: Is all the slurry going to
be slated for export?
Mr. Terry Denison: About 50% of the product is
exported. The market is generally eastern North
America. It changes depending on markets from day to
day, but it's approximately 50% exported and 50% used
Mr. Joe Comartin: I didn't follow this as closely
as I would have liked but as I understand it there was
an application before the tribunal for NAFTA to be
considered in the appeal process. I believe it was
decided in February of this year. Is that correct?
Mr. Terry Denison: Among their grounds for appeal
the Council of Canadians has included consideration of
NAFTA by the Environmental Review Tribunal.
Our position is that the Environmental Review Tribunal
should review environmental matters and see that
environmental matters have been properly addressed. The
tribunal has chosen to hear arguments about the
application of NAFTA in this particular matter. We
think it's going beyond what the tribunal needs to
address, but they're going to do it anyway.
Mr. Joe Comartin: You haven't
gone to court to challenge their
Mr. Terry Denison: There's always the potential, I
suppose, to challenge it under a judicial review, but
no steps have yet been taken in that regard.
Mr. Joe Comartin: When do you expect the hearing
to be completed in all its aspects?
Mr. Terry Denison: It's scheduled to resume at the
end of June for a week and then the first week of
July. We don't know whether all of the evidence and
argument can be completed in that time, but
Mr. Joe Comartin: Those are all my questions, Mr.
Chair. Thank you.
The Chair: Thanks, Mr. Comartin.
Mr. Paradis, maybe I could ask a few questions before I
go to you.
I want to ask about the Council of Canadians'
evidence. Let me try something on you as a lawyer. I
would think there are good grounds for suggesting that
the NAFTA issue should be considered by the
Environmental Review Tribunal because of the
cumulative effect argument. They basically seem to be
telling us, you can't regulate this in terms of the
environment unless you understand that if you set a
standard, the rest of the water is going to be drained
away. There won't be any water left. That's an
international legal framework issue that affects your
ability to regulate the environment. So isn't that
relevant? You've given us an answer to that, but it
seemed to me it was a relevant issue when they
brought it up to us.
Mr. Terry Denison: It's a relevant issue if you
accept their position that somehow this
sets the precedent for water takings and so on
for all time.
The position we take is that each and every water
taking is evaluated in Ontario according to standards
that are in place, which are more than adequate
standards. If there are environmental reasons for not
allowing a permit, they won't allow it. Or if a
permit is issued and it's found that the circumstances
have changed and they have to either cut back on the permit
or cancel it, they have the power to do that, and they will
continue to do that.
Under NAFTA there's nothing to stop the province from doing
that as long as it treats all water users the same. It
couldn't have some foreign company come in and be
treated differently than a Canadian company.
By the way OMYA is a Canadian company with Canadian
executives at the head and Canadian employees, so I
don't think that's an issue in the case of OMYA.
The Chair: I agree with you. That's the advice our
government lawyers have given us too, that the
province doesn't lose its jurisdiction to regulate
because of that. I wanted to clarify that point, because
it does seem to me that it's the cumulative-effect
problem we're looking at. You say you're taking 1%.
That's fine, but if they give seven other licences to
take 1%, then you're up to 7%. When you get up to 50%,
you're in trouble. Does the fact that you get the
first licence mean that nobody else will ever get one?
These are concerns.
Mr. Terry Denison: Absolutely, and I think that's
certainly fair game for the tribunal, and the tribunal
is looking at that.
The Chair: They were telling us that one of the
reasons this bill is so important is because we can't
take 1% out of the Great Lakes. So there's nothing
left, because there's only 1% coming in and
1% going out. That's what they're telling us.
Anyway, we're trying to understand that.
Let me go back to Mr. Kierans. Let me understand your
position. I think your Dutch analogy is very
interesting, that one might do with James Bay what
they've done with the Zuider Zee and create a
freshwater lake, which would be of use. But then you
said it would only recycle within its own body. Or you
were going to remove some of that water down into the
Great Lakes system. I didn't understand why
prohibiting taking water out of the boundary waters
would have any effect on your scheme. If I understand
it correctly, the problem is that your canal that would
take the water over to the prairies would be removing
water from the boundary waters basin and therefore
would be prohibited by this law. Is that your problem?
Do I understand it correctly?
Mr. Tom Kierans: It's one of the problems. There's
a myriad of problems associated with
The important item to remember is that we
propose, first of all, the impoundment or the creation
of a new source of fresh water in James Bay and then the
controlled use of that water as needed in any part of
North America. The more we take—and an enormous
amount can be taken—the more we keep. It's better to
give than to receive. This is an example of the fact
that this is—
The Chair: Just so I understand it, the working of
the scheme would require that water be taken out of
boundary waters. You just couldn't run a canal from
James Bay down to the prairies and say that's not
taking it out of boundary waters.
Mr. Tom Kierans: That's right.
The Chair: It would have to flow from the James
Bay watershed system into the Great Lakes system and
then be taken out of the boundary waters and moved
through some other way.
Mr. Tom Kierans: In the process you would
stabilize the Great Lakes. Using the figure from
around 10 to 15 years ago, we could reduce the
fluctuations and levels in the Great Lakes by something
The Chair: Is this issue considered in the book
you referred us to, the IJC study?
Mr. Tom Kierans: No, it's not. In general it
refers to the concept that you cannot solve the
problems of the Great Lakes that are enunciated in the
studies by the IJC without some additional inflows.
They're talking about inflows from rivers that are part
of boundary water basins. But that in itself would not
do it, so we're suggesting that you have to include
the problems of Hudson Bay, and you have to include
within the mandate of IJC the problems of the United
States, all of the problems. So you might as well do
for IJC what is done with NORAD.
The Chair: That's a slippery slope argument.
Mr. Paradis, do you want to be the wrap-up person?
Shall I leave you till the end? I know that Madame
Lalonde and Mr. Comartin would like to ask another
couple of questions. Would you like to be the final
person or do you want to go now?
Mr. Denis Paradis (Brome—Missisquoi, Lib.): That is fine. I
can speak now.
The Chair: I'm sorry, one of the witnesses wants
to comment on the last answer.
Mr. John Jackson: I wanted to comment on the last
answer around what was in this report, The IJC
in the 21st Century, in terms of saying
that we can't solve the problems of the boundary waters
without looking upstream and to what's flowing into
The reason for that was not the hope that somehow that
would get enough water to keep the boundary waters
stabilized where they are, but it's because of
pollution issues. We cannot solve the pollution
issues of the boundary waters without going upstream to
sources of pollution that are up there, and we
need to do basin-wide planning. That means the basin
goes beyond the border; it includes everything flowing
Mr. Tom Kierans: Can I make an additional comment?
The Chair: We're going to get into a surrebuttal
and a surrebuttal. Very quickly.
Mr. Tom Kierans: You made the remark just
a few minutes ago that the slippery
slope was starting with this.
The slippery slope is not investigating; it's failing
to investigate the potential to bring new fresh water
in. That's the slippery slope.
The Chair: Thank you.
Mr. Denis Paradis: Thank you, Mr. Chairman.
I would like to pick up from what Ms. Lalonde was mentioning
earlier. She said that the bill was unnecessary—I am trying to use
her words—that it was only political and legal. I have to tell
you that the bill serves political and legal purposes in that in
political terms, it is a government commitment to preserve Canadian
water. In legal terms, well, a legal framework is required. This is
what we do as MPs in this House: we put policies forward and we
provide them with a legal framework with the bills we pass.
I pick up from what you were saying earlier so that, first of
all, I can thank all the members of the panel who have appeared
before us this morning for the light they have shed on the issue.
I am going to turn my attention chiefly to the remarks made by
Mr. Bankes and his suggested amendment. I am far from being in
agreement on the proposed amendment for the following reason. I
think that the proposed amendment might weaken the bill and open a
door. A licensing system has been proposed, but it is a licensing
system that allows export. This is not a licensing system that
allows removal. The very notion of the bill is to prevent, forbid,
prohibit the bulk removal of water. The stance we have taken as a
government is to prevent such bulk removals. However, the way you
are proposing an amendment could have the effect of opening a sort
of door. That could have the effect, in my humble opinion, of
weakening our stance.
I think that the wording of the treaty, overall, may allow
such a prohibition of a class of projects. The treaty itself,
moreover, is prohibitive. At some point, it says that all waters,
their level and their flow, are involved, and these are the two
main points concerned by the treaty: levels and flows. There is a
general prohibition that says that barring an understanding by the
parties, there is a whole mechanism involving two governments and
the International Joint Commission. But the very nature of the
treaty is prohibitive. This is the stance: if the government can
prevent individual projects with such a purpose, can it not do so
for a class of projects?
I come to a more specific question. It has always been said
that there was also an environmental approach. Several parties have
mentioned this environmental approach in this bill. If we were to
come up with an approach that was still prohibitive, but in which
we might include more things concerning the environment, would you
have something to suggest?
Prof. Nigel Bankes: Thank you for the question.
Yes, I think I understand that the proposal I was
putting forward does go away from the blanket
prohibition approach that the proponents of the bill
are suggesting. I also suggested that I'm not
philosophically opposed to a prohibition, but my
concern is that we do it in a way that's
constitutionally bulletproof, if we can do that.
I guess the other thing I would say is that the
International Joint Commission itself, for whatever
reason, did not propose a prohibition to the two
governments. It suggested a precautionary
approach. And the draft that I have developed actually
tracks fairly well the IJC's own proposal.
Your question, I think, is, first of all, am I right
in saying that article III would preclude a blanket
prohibition if article III would allow the federal
government, on a case-by-case basis, to reject the
project? I accept that the federal government, under
article III, does have the authority, on a case-by-case
basis, to reject any particular proposal as part of its
consideration of whether or not to grant a licence or
its current informal approval. My question, though,
is simply whether or not it's constitutionally valid to
enact a blanket prohibition. If the proponents of
this bill are correct, then it would follow that the
federal government had the jurisdictional competence to
prohibit any development of any project in a province
that would affect boundary water flows or levels.
I guess I don't believe that to be the case on the basis
of section 132, which after all is
concerned with the federal government implementing its
international obligations. I don't think the federal
government has an obligation to prevent any
interference with boundary flows or levels. It has an
obligation to ensure that if the IJC doesn't approve a
project, that project doesn't go ahead, but I
think that is being achieved through proposed sections
11 and 12
and indeed the draft I've
I'm sorry to be so
long-winded in responding, but I think your question
really gets to the point of my argument here. The
final question is, would I
have a problem with including in some way a reference
to ecological concerns as part of the justification of
the prohibition? My answer to that is no. I
think it would strengthen the bill because it would
allow this fallback position, which is that we may be
able to justify this on the basis of a national
concern, even if we can't justify it on section 132.
So if I could have drafted something that way, I think
I would have. It escaped me when I was working on
this. But I guess the combination of a prohibition
plus some reference not simply to cumulative effects
on levels, which is a treaty concern, but cumulative
effects on the ecological integrity of the basin... then
I think you've strengthened proposed section 13.
The Chair: Ms. Lalonde.
Ms. Francine Lalonde: The problem in this regard is that it is
the provinces that handle environmental legislation. If the federal
government intervenes in this area, it is going to create an
additional problem, especially since under this treaty, it is
ultimately the International Joint Commission that must decide on
projects. Otherwise, the government is now going further than the
original act of 1909. It has not announced its intention to do
This is why I feel uncomfortable about this bill. I asked
whether we were going to say yes or no to a licence before the
International Joint Commission gives its decision. I was told that
we were going to wait until the International Joint Commission gave
its decision. So, the decision will be made by the International
Joint Commission. So in the end, it is in 11 and 12. That is what
the treaty provides for.
So you are thinking, or dreaming, about an environmental
approach, but right now, the draft that is there leaves
environmental concerns up to the provinces to take care of. I think
that we would like each of the provinces to take better care of
these things. There is serious work being done, and I think it is
The federal government, from what I understand, is trying to
ensure that the treaty is implemented, but I think there are some
difficulties in providing only for practice. We have been told that
now the act should provide for what has been taking place since
1909 only in consultation. That is what we have been told. We were
not told that the government has an environmental project because
then its work would encroach on that of the provinces. It is
therefore hard to see the usefulness of that. One does not make a
law for the sake of making a law. When a law is made, it is because
one has a specific objective. I cannot put my finger on a specific
objective in this bill.
The Chair: Professor Bankes.
Prof. Nigel Bankes: Just to respond very briefly
to that, first of all, I think it is clear from the public
material tabled in support of this bill that the
foundation of this bill is ultimately ecological
concerns in terms of the policy nexus for this bill.
The federal government has chosen to implement the bill
using section 132 in the Boundary Waters Treaty and
as a result has referred to levels and uses
and not to ecology.
I think your question is whether or not the federal
government has a legitimate concern with ecology or
whether that's sort of exclusively a provincial matter
in relation to these waters. I guess I would take the
view that certainly the federal government does have a
legitimate concern with the ecological integrity of
what I would refer to as shared water basins,
whether those water basins be shared internationally
or whether they be shared interprovincially.
That's why I think this bill could potentially be
supported under something other than section 132 of
the Boundary Waters Treaty—if it's drafted appropriately.
Just by way of conclusion, there is another
federal statute that I think you've
probably been referred to. It's the International
River Improvements Act, which was passed
in the 1950s. That act, I don't think anyone suggests,
is based upon the Boundary Waters Treaty. It's based
upon the national concern doctrine.
So I think if
we're dealing with these internationally shared water
resources, we don't have to confine ourselves to
section 132. But as a matter of drafting, we have to
get it right if we're relying on section 132. I think
that's my only point here.
The Chair: Just to follow your reasoning, though,
because Madame Lalonde's point is obviously legitimate,
everybody is telling us the provinces have the primary
right to legislate in respect of the environmental
control over the waters and the ownership of the waters
in their jurisdiction, but now you're telling us
that here, at least as a matter of
constitutional law, because these are boundary waters and
therefore international, there's a limit to provincial
jurisdiction and the federal government has to come in,
because without the federal government intervention
the province would be outside of its jurisdiction,
presumably, once it enters into boundary waters,
because those are now international rather than purely
within the territory of the province. Or am I going too
far on that?
Prof. Nigel Bankes: I think you may be going too
far, Mr. Chairman. I guess the way I would put
it is if a province passed a law that was directed
specifically at boundary waters, I think there would be a
problem with it. If however the law is drafted more
generally and it simply happens to protect boundary
waters as well as other waters within the province,
then I think it's entirely non-problematic. It seems
to me that's the basis for Alberta's legislation,
Ontario's legislation, and everybody else's legislation
in this area.
The Chair: It becomes incidental effect
rather than purpose.
Prof. Nigel Bankes: It's probably in civil rights.
The Chair: Okay.
Mr. Denison, and then we'll go to Mr. Comartin.
Mr. Terry Denison: If I could just supplement
what's been said... I guess it's like my old
constitutional law classes at law school. The
question always was is it a federal or a provincial
matter. The truth usually is that it's both.
go back again to the case of OMYA, where
we're dealing with a provincial permit, but as a
condition of that permit OMYA had to satisfy the
federal department of fisheries, under the Fisheries
Act, that there wasn't going to be a fish habitat impact
from the taking. So there is an environmental impact
The Fisheries Act, incidentally, when it comes to
water takings, is quite a broad and powerful instrument
for the federal government to exercise environmental
control and intervention. It's like a lot of laws.
We have existing laws that we sometimes forget about.
The Chair: Mr. Comartin.
Mr. Joe Comartin: This is a statement and not a
question, Mr. Chair. With regard to the proposal of
Mr. Kierans, I just want to be on record that our party
would say how utterly opposed we are to that proposal,
and I want to take a bit of an issue with the statement
about its impact. You've heard from Mr. Jackson that
recycling and conservation make a lot more sense in
providing extra water into the Great Lakes basin and
the St. Lawrence than that type of a proposal.
Finally, I sit on the environment committee as well,
and in the last month or
so we've had a delegation from a first nation's
community, actually a series of communities, on
Hudson Bay, who in fact are having their entire
livelihood destroyed by the fact that the beluga whale
is no longer available to them. They had been in a
situation where they depended on that fishery
for their livelihood, and in fact for their whole
lifestyle. The only belugas that are left, that are
available to them, are over on the western shore of
Hudson Bay, which would certainly be impacted to some
degree by taking this amount of water that's been
proposed out of James Bay. That's just one example
of the type of impact that type of a scheme has.
Thank you, Mr. Chair.
The Chair: Thank you, Mr. Comartin.
Mr. Tom Kierans: May I make a comment on that,
The Chair: Very briefly.
Mr. Tom Kierans: If the gentleman who just
spoke about the concern for the beluga whale... I
think you can infer from the article by the renowned
oceanographer, Mr. Dunbar... it indicates
that the beluga whale would increase substantially and have
much more food than it now has.
The Chair: This is no doubt something for
Colleagues, I just want to remind you that at 3:30
we will come back for clause-by-clause of this
bill. There are only two clauses to be seriously
considered, so I hope we can deal with this fairly
Mr. Obhrai is going to present us with a draft
resolution on Afghanistan, which he's presently working
out with other members, and hopefully that will have
general consensus as well. If we have time—and we
have set aside time to go to 6:30 because of
clause-by-clause. There will be votes in there, so
we'll have to keep an eye on votes as well, but if we
have time I'd like to begin the consideration of our
Quebec summit report. You'll recall that we have the
Quebec summit report to do, we have the caucuses report
to do, we have a report from the trade committee—all
of which will have to be deposited in the House.
There are rumours upon rumours as to when the House is
going to rise, but there is every possibility it might
rise as early as June 8, and if that's the case we
have to get these reports in the House before then. So
that gives us a tight timetable.
Ms. Francine Lalonde: Mr. Chairman, we did not receive prior
notice for the report on the Quebec Summit. I would prefer to sit
later on Thursday morning or something like that. Frankly, I do not
think it is right for us to be just given noon hour to read this,
on top of the rest.
The Chair: I will not do that if the members of the committee
are opposed. I thought that everyone had received the report some
time ago and had had time to digest it. If that had been the case,
we could have at least begun. The report is fairly short, but then
again, I imagine there will be some disagreement between you and
the representatives of the New Democratic Party. Perhaps we could
deal with that by means of a minority report or something like
that. I hope we can complete discussion of the report quite
quickly. This matter is therefore postponed to Thursday.
Ms. Francine Lalonde: We can do it quickly, Mr. Chairman.
The Chair: Okay.
very much to our witnesses. It was a very interesting
morning. We appreciate you taking the time to come and
share your experience with us.
Thank you very much, colleagues. We'll move to
clause-by-clause this afternoon.
This meeting is adjourned.