Environment Committee on May 13th, 2009

[Arlene Kwasniak]

It's really quite complex, because our water law was developed in the 1800s and we realize we cannot really protect the Athabasca River with that law the way it is. That is why this framework was entered into. It is designed to protect the instream flows where our water law does not, but we need a way to enforce the framework in order for this to be effective in the end.

We have to amend our Water Act to make these contracting-out agreements legal, even though they do not comply with the water rights system that's set out in the Water Act. It's not really a case of not enforcing the law; it's having a way to get around the fact that the law is insufficient for today's situation, and not having a way to enforce this fix.

[The Vice-Chair, Liberal, Francis Scarpaleggia]

Thank you, Mr. Trudeau.

Mr. Ouellet.

[Christian Ouellet, Bloc, Brome—Missisquoi, QC]

I will be giving my time to Madame Duncan, because the subject is much over my capacity. But before that I would like to tell you about jurisdictions in my own riding.

My constituency is along the border with the United States, and if I go fishing close to the border and send my line over, I can steal a fish from the U.S. By the time it comes into Canada's waters it is federal and I'm not stealing it any more. But when I get it out, the water is federal but the top is provincial. So the top of the fish, the head, is provincial, and the tail is federal. That's the jurisdiction in my place.

[The Vice-Chair, Liberal, Francis Scarpaleggia]

Ms. Duncan.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thank you, Mr. Chair.

Thank you, Mr. Ouellet.

Thank you both for your presentations. They were very thoughtful. It's hard to know where to start.

You will be interested and encouraged to know that there were a number of presentations dealing with the need for the federal government to step up to the plate on water management. The most profound intervention to us on that was from the deputy premier of the Northwest Territories. You've probably been following his work. He definitely called for federal intervention.

As Professor Saunders has stated, it took 25 years to get the Peace-Athabasca, Mackenzie basin delta plan negotiated. Some of my former colleagues were part of that back in the early eighties--twelve years later, one bilateral. So he essentially called on us to recommend to the federal government to step forward to get those agreements negotiated, perhaps make it more trilateral, and have everybody there negotiating multilaterally. Plus he recommended strongly that the first nations governments, which have been completely excluded, should also be at the negotiating table.

So it came before us before, and it's noteworthy that you're raising that again.

There's one statute that neither of you has mentioned that keeps occurring to me--the Canada Water Act. It could be of limited use, but maybe could be expanded. I notice that under the Canada Water Act there is a provision where the federal government can designate special management areas. Do either of you want to speak to that?

[J. Owen Saunders]

I can certainly speak to it, because I remember writing about this 20 years ago, and it had never been used then. Part II of the Canada Water Act has never been used.

The Canada Water Act was introduced in 1970, at a time when there was a different tone to what the federal government wanted to accomplish in environmental areas generally. There was a fair bit of literature at that time speculating on the constitutionality of it. That might be one of the reasons it has never been invoked. The other reason is what I've already described as general retrenchment, on the part of the federal government in the last two decades, in being willing to get engaged in some of these issues.

We probably wouldn't go with part II today. It's there and is probably dated. Do we need something like it? That might very well be the case, but now I think a lot of the language and the tone of it, which hasn't been amended, are probably somewhat outdated. Certainly at the time it generated a lot of hope.

On one final point, if you look at subsequent jurisprudence in constitutional law, I think the concerns about the constitutionality of part II have probably been alleviated by a number of other cases, such as Crown Zellerbach.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Last I noticed, the Constitution hasn't been reformed, so it sounds more like an issue of political will.

[J. Owen Saunders]

Much of this is political will, of course.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Okay.

Professor Kwasniak, I found your presentation really interesting. It was certainly the case under the old regimes that licences for water were issued in perpetuity. Certainly for the original Suncor and Syncrude, they would be under that system. It's my understanding now that specific point-in-time water withdrawal licences, for example, for a ten-year period, are allowed. Is that not possible? Is that what's happening in the tar sands operations now?

[Arlene Kwasniak]

Yes. Under the new water act that came into effect in 1999, licences have a term of ten years. However, they are automatically renewable, provided that the licence holder has complied with the conditions. So they can be, in effect, in perpetuity. Even though they are renewable, they do have a term now.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Okay.

How would you explain the interface between the federal fisheries powers and the federal powers over transboundary waters with the provincial power to authorize water withdrawal? Is it not possible that the federal government could have the power to intervene? If, for example, you have, certainly for the prairie water systems, an obligation to send the waters over, is it anticipated in these bilateral agreements that they're going to set the terms for how much water is delivered over and in what quality, and so forth?

[J. Owen Saunders]

There are two points on that. The first goes to the general question as to the interaction of the federal and provincial powers. It seems to me the fisheries power would be treated somewhat differently from the power with respect to transboundary waters, and that is because the fisheries power is a specific power. The power with respect to transboundary waters would arise out of national concern, and I think it's fair to say that jurisprudence suggests that the courts tend to be somewhat more circumspect in terms of giving the federal government power there. I still think they would have plenty of power to do what they need to do, because they've done virtually nothing.

With respect to the bilateral agreements, the ideal, I suppose, would have been to have just what you're talking about: specific allocations as to both quantity and I suppose a condition on some measurable types of quality. That would be analogous to the prairie provinces' water agreements, which is really what the Mackenzie agreement was originally modelled on, although those are really done in terms of water quantity. Water quality was added later, but they were focused on water quantity, for obvious reasons.

That's not going to happen in the Mackenzie agreement and the likely bilaterals, because we know from the memorandum of understanding between the Northwest Territories and Alberta what the general shape of the bilateral will look like if it's ever reached. We know that the undertakings there will be very modern, in the sense that they will say all the right things that, interestingly, the prairie provinces' water agreements, which are much older, dating to the 1960s, don't say, but they'll be largely unenforceable.

For one thing, on just a basic point, if you compare the prairie provinces' agreements, they have recourse to the Federal Court. They are binding. Dispute resolution in the master agreement and in the bilaterals is basically referred to the board, and then ultimately to the ministers. So it becomes a political decision. But there is no binding dispute mechanism, which lessens, of course, considerably the power of a downstream province to demand compliance.

Hopefully, things will work out and the upstream jurisdictions will behave nicely, but—

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Can I just interject there? What about first nations' jurisdiction rights?

[J. Owen Saunders]

They are certainly referred to in the Mackenzie agreement. As I recall, they are not in the prairie provinces' agreements.

But there is recognition of all the right things: first nations rights, the need for prior consultation, notification, public participation, and ecosystemic views. All the right things are said there; it's just that they're at a very general level.

[Arlene Kwasniak]

There should be riparian rights, as you started to say. They presumably would not be modified by provincial legislation, although the province has taken the point of view that there are no water rights with respect to the numbered treaties or reserves, outside of the ones that are given by the government.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

What about the Fisheries Act? Is there a clear power of the government under the fisheries laws to control water?

[Arlene Kwasniak]

I would say there is. In fact, DFO has taken the position that water withdrawal can be a HADD. If you take enough water out of a watercourse that you disturb fish habitat, that is a HADD and a violation of the Fisheries Act, unless it's authorized under the act.

[The Vice-Chair, Liberal, Francis Scarpaleggia]

Do you have more questions?

Mr. Ouellet was kind enough to give you his time.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Okay, that's lots of time.

I would like to hear a little about wetlands. I ended up being in a very interesting seminar that was all government and me about three years ago. There was a big discussion about what we were going to do about the Alberta wetlands policy. There was a very interesting presentation by the U.S. state and federal governments. Apparently there is a very strong federal policy on wetlands that prescribes requirements. They have a tier where first of all you will not damage; you have to show that there are alternatives, and so on.

Is there a big difference constitutionally between Canada and the United States? Is there any reason why we couldn't have a binding federal wetlands policy?

[Arlene Kwasniak]

Yes. In the United States the wetlands are governed by the Army Corps of Engineers. It's their job to protect wetlands.

Generally in the United States there's more federal jurisdiction over water. Even though water quantity is state, water quality is generally federal.

I think it would be very difficult to have a federal policy. It would somehow have to be seated in fisheries or navigation.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

What about SARA?

[Arlene Kwasniak]

Yes, but with SARA it would be very limited to species at risk. Certainly recovery plans under SARA would be one way to protect the wetlands.

[J. Owen Saunders]

One of the additional problems with fisheries and navigable waters power is that they have been read down by the courts. If it doesn't look like fish, even though you put it in the Fisheries Act it doesn't mean the courts will accept it. There were a couple of cases in the early 1980s that addressed that. One dealt with a provision in the Fisheries Act that says you can't throw your trash in the water. I think it was primarily aimed at logging. It was struck down by the courts--I'm sure you're aware of Fowler--precisely because it wasn't linked directly to harm to fish.

So the courts have been relatively jealous about ultimately protecting provincial resource management policies where the federal government seems to be going beyond the strict confines of the heads of power it's been given.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Dr. Schindler presented to us yesterday his findings about the river. He determined that there was a very serious impact on the fingerlings downstream of the tar sands facilities. I presume with that kind of data a fisheries power would be triggered.

[J. Owen Saunders]

Absolutely.