STANDING COMMITTEE ON FOREIGN AFFAIRS AND INTERNATIONAL TRADE

COMITÉ PERMANENT DES AFFAIRES ÉTRANGÈRES ET DU COMMERCE INTERNATIONAL

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, May 29, 2001

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[English]

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 Bankes.

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.

Thanks, Professor.

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.

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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 13.

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 clause.

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.

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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 be otherwise.

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 effects.

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 government power.

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 period.

Next I will go to Mr. Kierans.

Mr. Tom Kierans (Individual Presentation): Thank you.

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.

• 0925

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 time.

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 briefly.

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 news release:

We are taking a decisive step to ensure that this critical freshwater resource is protected for future generations.

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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 recycling.

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 normally occur.

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 drastically reduced.

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 might add.

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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 rude, but—

Mr. Tom Kierans: I apologize.

The Chair: I get nervous when you go off into these—

Mr. Tom Kierans: All right. I'll try. I have one more paragraph.

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 desert.

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.

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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 these issues.

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 there.

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 pass it.

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.

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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 the basin.

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 to thrive.

• 0950

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 allowed.

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 accurate facts.

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.

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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 review.

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 Perth.

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 broad.

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 near Perth.

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 customer requirements.

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 around that”. 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.

• 1000

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 addressed.

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 10:30.

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.

• 1005

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 Charter.

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 government.

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 13(4).

Mr. Rick Casson: Okay, and the regulations we haven't seen.

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 sale?

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.

• 1010

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 explain it.

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 distributed.

Mr. Rick Casson: Thanks, Mr. Chairman.

The Chair: Thank you, Mr. Casson.

Madame Lalonde.

[Translation]

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 like that.

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).

[English]

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 policy objective.

[Translation]

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.

• 1015

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?

[English]

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 hydrological lake.

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 countries.

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.

• 1020

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 problem.

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 integrity?

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 around, then.

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, thank you.

Mr. Denison, I have a series of questions, factual ones.

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?

• 1025

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 mean anything.

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 in Canada.

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 jurisdiction.

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 we'll see.

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.

• 1030

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 your question.

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 like 40%.

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?

[Translation]

Mr. Denis Paradis (Brome—Missisquoi, Lib.): That is fine. I can speak now.

[English]

The Chair: I'm sorry, one of the witnesses wants to comment on the last answer.

• 1035

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 them.

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 into it.

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. Paradis.

[Translation]

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?

[English]

Prof. Nigel Bankes: Thank you for the question.

• 1040

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 developed.

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.

[Translation]

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 that.

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.

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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 recognized everywhere.

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.

[English]

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.

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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.

I just 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 there.

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, please?

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 future consideration.

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 rapidly.

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.

Madame Lalonde.

[Translation]

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.

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Ms. Francine Lalonde: We can do it quickly, Mr. Chairman.

[English]

The Chair: Okay.

Thank you 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.