Sunday, May 23, 2010

Federal Bill C-26: new restrictions on transboundary water tranfers?


A new bill, Bill C-26, was introduced by the federal minister for Foreign Affairs to the Canadian House of Commons on 13 May 2010 in order to prohibit bulk removal of transboundary waters.

According to Reuters, the Bill fulfills a 2008 promise by the Conservative government and complements existing provincial legislation that covers several bodies of water, including the Great Lakes. Through the Bill, the minister for Foreign Affairs declared that Canada is strengthening its resolve to make sure that there are no exports of bulk water that take place.

The Bill would principally amend the International Boundary Waters Treaty Act (IBWTA), which confirmed and sanctioned the 1909 Boundary Waters Treaty (Treaty) between Canada and the U.S.A.

Apart from adding inspection powers and increasing penalities under the IBWTA, the Bill alters the prohibition on water removals contained in section 13 IBWTA. Section 13 currently reads as follows:

« person shall use or divert boundary waters by removing water from the boundary waters and taking it outside the water basin in which the boundary waters are located...»

Boudary waters are defined as follows (preliminaty article of the Treaty):

«...the waters from main shore to main shore of the lakes and rivers and connecting waterways, or the portions thereof, along which the international boundary between the United States and the Dominion of Canada passes, including all bays, arms, and inlets thereof, but not including tributary waters which in their natural channels would flow into such lakes, rivers, and waterways, or waters flowing from such lakes, rivers, and waterways, or the waters of rivers flowing across the boundary

The prohibition contained in section 13 IBWTA is charaterised by the International Boundary Waters Regulations (IBWR). Sections 5, 6 and 2 IBWR are particularly relevant:

5. Subsection 13(1) of the IBWTA applies only in respect of the Canadian portion of the following water basins: (a) Great Lakes; (b) Hudson Bay Basin; and (c) Saint John — St. Croix Basin.

6. Subsection 13(1) of the Act does not apply to the removal of boundary waters other than the removal of boundary waters in bulk.

2. (1) "removal of boundary waters in bulk" means the removal of water from boundary waters and taking the water, whether it has been treated or not, outside the water basin in which the boundary waters are located

(a) by any means of diversion, including by pipeline, canal, tunnel, aqueduct or channel; or

(b) by any other means by which more than 50,000 L of boundary waters are taken outside the water basin per day.

(2) The removal of boundary waters in bulk does not include taking a manufactured product that contains water, including water and other beverages in bottles or packages, outside a water basin.

The new section 13 contained in the Bill would read as follows:

«(1) ... the bulk removal of boundary waters is prohibited.

(2) ... the bulk removal of transboundary waters is prohibited.

Whereas the definitions of boundary waters and bulk transfers remain essentially the same, the definition of transboundary waters expands the prohibition of section 13 to waters that flow accross the international boundary in the water basins of the Atlantic Ocean, Arctic Ocean, Gulf of Mexico, Hudson Bay and Pacific Ocean (see section 3(2) and Schedule 2 of the Bill).

As a result, the Bill slightly expands the protection against transboundary bulk water transfers.

A guest post by Professor Marcia Valiante on the Great Lakes Law Blog, concludes that the Bill fills a gap in the legislation but is not ambitious either constitutionally or environmentally, and is perhaps an easy way for the government to improve its rather dismal environmental image.

The Council of Canadians is of the opinion that the Bill is not a ban on water exports and actually weakens the current regime due to the fact that the Bill narrows the definition of bulk removals to exclude water in manufactured products such as beverages. This opinion appears unfounded given that the current wording of section 2(2) IBWR is virtually identical to the wording of the exclusion from the definition of «bulk removal» under the Bill.

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