Foreign Affairs Committee on Oct. 25th, 2012

[J. Owen Saunders]

The only conceivable one would be the St. Croix River. I grew up at the mouth of the St. Croix, and there's no way you could get a tanker up to the point where the waters are non-saline. That's why they're not covered.

The waters you're talking about are not boundary waters and therefore do not fit within the purview of the bill.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

If they're not boundary waters, then it's not a federal issue. It's certainly not an issue that would come before the foreign affairs committee. It's not an international issue. Would that not be covered by provincial legislation?

[J. Owen Saunders]

It may well be covered by provincial legislation. Whether or not it's a federal matter depends on the federal government's own choice. It would certainly involve international trade, which is certainly within the federal purview. Now, the federal government may choose to defer that jurisdiction and say that no, they trust the provinces on this. They have done that in other areas.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

As you point out, the purpose of the bill we're studying today is exclusively limited to transboundary waters. There may be another bill at another time that deals with non-transboundary waters, but that's what we're dealing with.

[J. Owen Saunders]

Boundary and non-transboundary waters are what you're dealing with, yes.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

We're here to study this bill, and it only deals with transboundary waters. There's no loophole in this bill that would allow bulk transfers by tanker or any other means. Is that correct?

[J. Owen Saunders]

This bill certainly would allow tanker exports. It doesn't say anything about it.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Would it allow exports of transboundary waters?

[J. Owen Saunders]

Oh, sorry, if it's transboundary waters, no, it wouldn't.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

The point I'm trying to make is that the bill we're here to study today only pertains to transboundary waters, and it totally prohibits the bulk transfer of transboundary waters by tanker or any other means. Is that correct?

[J. Owen Saunders]

I can't conceive of any transboundary waters where tankers would be involved, so it's sort of a moot point.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

It does prohibit them, in your view.

[J. Owen Saunders]

It probably prohibits them, because it says “by any other means,” but there are—

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

What we're dealing with here today are transboundary waters.

Okay. Thank you.

I'll defer to Mr. Van Kesteren.

[Dave Van Kesteren, Conservative, Chatham-Kent—Essex, ON]

I have three questions, but I don't know if they're quick. They're not just in regard to this bill; I'm interested in looking down the road.

Mr. Saunders, you talked about laws which, if we put them in place, can cause us some grief because of international rules or something. Can't we infuse laws into our international grievance that would reverse those decisions? That's my first question.

Second, water is one of our natural resources. Is there any discussion about that having to be shared? You talk about the hydrological cycle. It is a natural resource, but we're just lucky that it drops on our land. Is there any challenge in international courts in that regard?

Third, we have a real issue with low water levels. The way I understand it, there are three reasons: evaporation, land rise after the glacial effects, and dredging of major rivers. We can't do anything about the first two, but is there any talk about addressing the one cause we can control?

I live in southwestern Ontario. Of course, the Detroit River used to have rapids. It was like a plugged drain, and now it's like this open sewer which everything is just flowing through. The same thing could be said of the St. Clair River and the St. Lawrence River.

[J. Owen Saunders]

I didn't quite get your first question. Could you perhaps clarify that?

[Dave Van Kesteren, Conservative, Chatham-Kent—Essex, ON]

You said that if we put laws in place, we may run into trouble with international agreements. When we make international agreements, can't we put a provision in our agreement that says that the laws can be....

[J. Owen Saunders]

Sure, absolutely. As you may remember, one of the issues surrounding NAFTA was whether or not there should be an explicit provision excepting bulk water removal. What was done with NAFTA was interesting. There was a fix, if you will. They didn't change NAFTA, but they—meaning the three governments—issued a statement contemporaneous with NAFTA, essentially saying they didn't think that bulk water, or water in its natural state, fell within the purview of NAFTA, at least the trade obligations of NAFTA. It would still fit within the investment obligations of NAFTA, which is something you'd have to keep an eye on.

Yes, of course it's possible to do that. I think as a practical matter, it would be difficult to revisit NAFTA now, but you could do it. You could have an amendment to NAFTA.

With respect to the sharing of water, there are international norms with respect to obligations of upper and lower riparians. Interestingly, Canada and the United States are in a unique position in that regard because of the International Boundary Waters Treaty. We, in the International Boundary Waters Treaty, have certain rules, both with respect to boundary and transboundary waters. There are different rules depending upon whether they're boundary or transboundary waters. Those rules probably diverge from customary international law. Certainly our treatment of transboundary waters is different from international law, and indeed so is our treatment of boundary waters.

There's nothing that stops Canada and the United States from doing that. It is perfectly open to two states to depart from customary international law and adopt their own rules, and that's what's happened with the International Boundary Waters Treaty. So yes, there are customary rules of international law, but those rules are largely irrelevant, as between Canada and the United States, because of the existence of the International Boundary Waters Treaty.

On the point of lake levels, I'm not a hydrologist, but I do know what is the major forum in which that has been discussed. It has been discussed for decades because, as you know, sometimes you have high lake levels, and sometimes you have low ones. The International Joint Commission has had a number of references dealing with lake levels. That seems to be the venue that both nations are comfortable with in terms of addressing this in a cooperative manner.

[The Chair, Conservative, Dean Allison]

Thank you very much.

We're going to move over to the final questioner of the first round, from the Liberal Party, Mr. Scarpaleggia, please, for seven minutes.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Thank you, Chair.

Welcome, Mr. Saunders and Ms. Hurley. It's nice to see you here.

First off, it's been suggested—and I won't name names because I don't want to personalize it—that your model act, which is the basis of Bill C-267, which was my bill, is a clear invasion of provincial jurisdiction. It was said at this committee this morning. This is not particularly relevant to that statement, but it was said that it shows distrust for the provinces by the federal government. The way I understood the bill is that it was backstop legislation. It wasn't trying to meddle with the provinces, but it was saying that this is of national concern, and we need to have certain safeguards in place or federal legislation will take effect.

I'd just like your comment. It's a loaded question, I agree, but I'm just trying to get it on the record. Do you believe that the model act in Bill C-267 was an inappropriate invasion of provincial jurisdiction?

[J. Owen Saunders]

I'm from Alberta.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Okay. I'll withdraw that question.

[J. Owen Saunders]

Maybe that's not as loaded as you might think. If you look at the model act and the legislation before us today, the amendment to the International River Improvements Act rests on national concern. It rests on the same constitutional basis that the model act does, so there's no difference there. Both assert that the bulk export of water, using transboundary rivers, is a matter of national concern and fits within peace, order and good government. That was the basis of the original International River Improvements Act, and I think it's conceded to be the basis of it. It's different for boundary waters, of course, as an empire treaty.

The constitutional bases of both acts are the same. I can tell you that with respect to the model act we were very cognizant of provincial jurisdiction. I don't want to get into it in great detail, but our approach was basically to defer to provincial jurisdiction and to have federal action only where the provinces would not act. As I said, the constitutional bases of both acts are exactly the same.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

They are solid. Yes, okay.

On the question of pipelines, the thing I have trouble with in this bill, which I and my party support, of course, is the idea that a pipeline is an international river. To me it seems as if a pipeline is water that has been captured. It's not a product like beer or bottled water, which is a product, but it's certainly not water flowing in its natural state. We use pipelines to export oil. I understand the fact, when we're dealing with international rivers, that it wouldn't be a trade bill, to some extent, but the minute you say this applies to the building of pipelines, it seems to me it's a trade bill to some extent, and it's a trade bill that is seeking to ban the export of a resource.

I'm just wondering why this couldn't conceivably in the future trigger a trade challenge.

[J. Owen Saunders]

It's a good point. One can make the same argument with respect to canals. A canal is also an international river. Of course an international river is any movement of water across a boundary, the way it's defined in the International River Improvements Act. The International Boundary Waters Treaty Act takes a different view. It talks about rivers in their natural channel. The two acts treat water differently in that respect.

I would say that when you're talking about pipelines or canals, it is a grey area of international law. I assume the government is aware of that and is prepared to defend it under NAFTA. But certainly the argument can be made that the water has been captured when you put it into a pipeline. I take that point.