GLIN==> News and critique: Canada passes diversion protections

[Reg Gilbert <reg@glu.org>]

GREAT LAKES SUSTAINABLE WATERS WATCH # 8
Great Lakes United, Week of December 24, 2001


CANADA FINALLY PASSES BULK WATER EXPORT AND DIVERSION PROTECTIONS

Acting on a promise made more than two years ago, the government of
Canada has finally passed Bill C-6, an attempt to prevent bulk removal of
water from the Great Lakes and other “boundary” waters between the United
States and Canada.

The bill bans the removal of water from designated water basins (for
example, the Great Lakes water basin) and gives the minister of foreign
affairs the power to licence uses of water within the basin that would
affect levels and flows on the U.S. side of the boundary. Unfortunately,
both of these powers contain exemptions, which are as of yet
unspecified.

The bill is in the form of amendments to the Boundary Waters Treaty Act,
which fulfills Canada’s obligations under a 1909 treaty between the
United States and Canada. That treaty commits the two countries to
prevent actions that would alter the levels and flows of boundary waters
on the other side of the border.

The new amendments are an improvement over the previous version of the
Boundary Waters Treaty Act, which did not address bulk water removal, but
they have a number of very serious flaws.

First, in theory the amendments effectively ban removals of water that
would affect levels or flows of boundary waters. But the text repeatedly
provides for unspecified exceptions to this ban. It is not clear why
exceptions were built into the bill.

Second, the act leaves to be written into future regulation the
definition of the basin from which harmful removals are forbidden. 
The previous Liberal government suggested that it would define basins on
a continental scale, such as the Atlantic, Pacific, and Arctic basins. A
continental-scale definition could leave federal restrictions on export
or diversion based on Bill C-6 open to potential challenge as a
restriction on trade. One way to defend against such a challenge may be
to prevent water removals based on their environmental harm, which is one
of the few exceptions to free trade rules allowed in the major trade
agreements. But a continental-scale definition of “basin,” which in
theory would allow movement of water more than a thousand miles in some
cases, could not credibly be defended as primarily an environmental
protection measure. The Great Lakes basin, which may itself be too large
for the purpose, may not even be defined as a basin under the new law,
but merely included as part of the Atlantic Ocean basin.

Finally, the power to grant a licence is invested in the minister of
foreign affairs, rather than the minister for the environment, further
underlining the fact that the intent of the bill may not be primarily to
protect the environment.

Nonetheless, the bill does offer the potential for limited protection for
the region from harmful projects such as the 1998 proposal by an Ontario
company to export water by tanker to Asia.

The core of the bill is in sections 11 and 13.

Section 11 says in part: “(1) Except in accordance with a licence, no
person shall use, obstruct or divert boundary waters, either temporarily
or permanently, in a manner that affects, or is likely to affect, in any
way the natural level or flow of the boundary waters on the other side of
the international boundary.”

Section 13 says in part: “(1) Despite section 11, no 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. (2)  . . . removing water from boundary waters and taking
it outside the water basin in which the boundary waters are located is
deemed, given the cumulative effect of removals of boundary waters
outside their water basins, to affect the natural level or flow of the
boundary waters on the other side of the international boundary.”

Both sections also go on to allow “exceptions specified in the
regulations,” which will be written by the government later. The
exceptions could substantially undermine the effectiveness of the bill.
The bill does not give guidelines for making exceptions.

The bill grandfathers all existing uses and diversions that might
otherwise have been affected.

For the text of Bill C-6 as passed by Parliament, see:
http://www.parl.gc.ca/37/1/parlbus/chambus/house/bills/government/C-6/C-6_3/90082bE.html

For official comment on the bill as passed by Parliament, see:
http://www.parl.gc.ca/37/1/parlbus/chambus/house/bills/summaries/c6-e.htm

If these links take up more than one line in your email program, cut
and paste them into your browser. Remove any hyphens inserted by your
email program except those already in the link (at “C-6”, “C-6_3”, or
“C6-e”)


ANNEX 2001: THE WAITING GAME

As 2001 comes to an end, the Great Lakes basin community awaits an
expected January announcement by the governors and premiers of their
workplan for implementing the water use reform promised in the
state-provincial Annex 2001 document signed last summer.

The hope by all concerned is that such reform will solve the knotty trade
agreement and other problems that may threaten to make it difficult to
prevent future water export and diversion proposals.

In the workplan to be announced by the governors and premiers will be a
proposal for involving the public both in the debates among the states
and provinces about what to do and, more broadly, for comment on draft
proposals decided on by the negotiators.

It has been six months since Annex 2001 was signed last June, more than
enough to decide merely how to start work. Should the states and
provinces delay their promised first step past January, it could signal a
lack of willingness to do what is needed to protect the basin from the
very serious threat of bulk water removals.

For an Acrobat .PDF version of Annex 2001 see:
http://www.cglg.org/projects/water/Annex2001.pdf

For what basin environmental organizations would like to see the
implementation of Annex 2001 achieve, see:
www.glu.org/swtf/ecosystem%20agenda.htm


A GREAT LAKES ACTION PLAN

While the governors and premiers work on an action plan centered on water
quantity and flows, Great Lakes United is hoping to facilitate an
achievable action plan for the basin ecosystem as a whole. But we would
like your help to do it. Please read this letter sent out to our
organizational members two weeks ago and consider filling out the
following 3-question survey. Thank you!
Dear Great Lakes activist:

With this letter Great Lakes United is inviting your participation in an
exciting effort to develop a common agenda among Canadian, U.S. and
tribal environmental groups to protect and restore the Great LakesSt.
Lawrence River ecosystem.  

We have reviewed current government plans for Great Lakes restoration,
including the draft Canada-Ontario Agreement and the U.S. Policy
Committee’s “Plan for the New Millennium,” and have found them to be
vague and noncommittal.
 
The time has come for us to take the initiative and spell out our
collective goals, with specific timelines and strategies, for the
improvements we want to see.
 
It is time to pull together the most developed activist initiatives from
across the region, incorporate these efforts into one collective agenda,
and use that agenda to pursue a solid campaign for healthy communities
and a healthy Great Lakes-St. Lawrence River ecosystem.  As part of
this effort we must push for the needed funding from the Canadian and
United States federal, state and provincial governments.  There is
already some support for a Great Lakes funding package in
Washington.  A well-organized campaign may leverage that interest in
Ottawa, Toronto and the state capitals as well.  But first we, as
Great Lakes environmentalists, must know what we want and convey this
agenda with one united voice.

What are the major issues? We know that cleaning up contaminated sites,
addressing concerns about the sale and diversion of the region’s waters,
preventing new introductions of aquatic nuisance species, controlling
sprawl, and promoting the sustainable production and distribution of
material goods and energy are all top issues for our region.  Great
Lakes environmental groups from around the basin have been working on
strategies aimed at addressing these and other issues for many
years.  

What strategies are most advanced? By consolidating some of our most
advanced strategies into a coordinated draft action agenda, we address
most powerfully the steps that can be taken now.  We seek not so
much to be comprehensive as opportunistic  to coordinate those
initiatives on which we are ready to move now, bearing in mind there will
be gaps to be addressed in the future.
 
We would like to celebrate and refine the development of a draft action
agenda at our 20th Annual Meeting in June
2002 and there begin the campaign for funding and implementation.

But first we are asking you to help us take the next step. Your input is
critical. Please take a moment to answer the questionnaire and e-mail
your response to us at glu@glu.org or, on January 2 or after, fax to
716-886-0303.

Thank you for your time and consideration.  We look forward to
hearing from you and working with you on this exciting project!
  
Sincerely,

Great Lakes United Board of Directors 


QUESTIONNAIRE

Please take a few moments out of your busy schedule to answer the
following three questions and email (or fax on January 2 or after) back
to Great Lakes United by Friday, January 11:

What are the priority issues that need to be addressed in a Great
Lakes  St. Lawrence River action agenda?

1.

2.

3.

4.

5.

What are the most developed grassroots initiatives addressing these
issues? **(see below) 

1.

2.

3.

4.

5.

Which groups do you know to be deeply involved in each of the above
initiatives?

1.

2.

3.

4.

5.

__________________________________________________

** Initial criteria for defining a short list of initiatives
include:
·  Will benefit the Great Lakes region as
a whole. 
·  Opportunities exist for federal, state
or provincial funding.
·  One or more basin groups is already
well enough advanced in work on the issue to credibly coordinate an
action plan for the region.
·  Points of political impact are
available. (Groups are already working with government agencies on the
issue).

______________________________

Reg Gilbert

Senior Coordinator

(716) 886-0142, fax: -0303

Great Lakes United

Buffalo State College, Cassety Hall

1300 Elmwood Ave.

Buffalo, NY, 14222

reg@glu.org

www.glu.org

______________________________