Mr. Speaker, I am indeed pleased to continue with debate on Bill C-6 for 17 minutes.
I would of course be tempted to provide a brief summary of my first 23 minutes. I had thought of asking you to provide one, but the person in the chair has changed, so I cannot do that.
What I said, in substance, as my introduction, was that water, like air, is a vital and essential element that we should in no way compromise.
Water is such an essential element that having too little is as bad as having too much. When there is none, things dry up, and when there is too much, things drown. A balance must therefore be maintained, both in quantity and in quality.
I referred to several past experiences which related to water or which had taught me more about it. I said that I was quite quickly introduced to the concept of a water basin involving a good many people.
I spoke of the rights and obligation, again in terms of quantity and quality, each person has toward his neighbours, both upstream and downstream. I also referred to the rights and obligations the municipalities and regions have toward each other, not to mention countries, such as Quebec and Canada.
I also said that we tend to think that the water level in lakes and rivers stays the same. This is, however, completely wrong.
We need only consult my illustrious and eminent colleague from Terrebonne--Blainville on this. A great fisherwoman, she has told me of catching fish whose bellies showed the effects of having to swim on the bottom to keep themselves submerged.
I also touched briefly on the entire problem concerning water and the International Boundary Waters Treaty Act.
On average, barely 1% of the waters of the Great Lakes is renewed annually by precipitation, surface water runoff, and inflow from groundwater sources. Under the circumstances, we must recognize that, while the Great Lakes and St. Lawrence River system represents one fifth of the earth's fresh water, this resource is not unlimited.
Because of climatic risks, increased desertification worldwide, limited supplies of drinking water around the world and energy development based on this resource, the idea of exporting large quantities of water on tanker ships or of diverting rivers has emerged as a serious option in the past ten years or so in Quebec and Canada.
To the list of environmental threats to water supplies is added the new and significant threat of bulk water exports and large scale diversion of our lakes and rivers.
After a quick overview of Bill C-6, I of course came to the issues involved in this bill. I mentioned that, while most people agreed that water resources need protection, it is far from clear that Bill C-6 ensures their increased protection.
Is the Liberal government not using the current panic over the issue of water protection to grab powers that are beyond its jurisdiction? That is a legitimate question.
We identified three major problems that could be raised in connection with the bill we are looking at today. The first relates to the definition of a water basin. The second concerns the many powers given the federal minister in connection with exceptions and with licensed activities. The third relates to the usefulness of the bill we are looking at.
Because of these three elements, Bill C-6 goes beyond federal jurisdictions and infringes on provincial ones.
The fact that the notion of watershed is not defined in the bill is of course a source of concern, but the fact that it is up to the governor in council to define it by regulations, on the recommendation of the Minister of Foreign Affairs, is hardly acceptable. This is undoubtedly very dangerous from a jurisdictional point of view and regard to the ownership of natural resources, which essentially belong to the provinces.
In fact, in a document dated February 10, 1999, the Department of Foreign Affairs and International Trade clearly indicated what a watershed is, and I quote:
A land area draining into a common watercourse. Often called a catchment area, drainage basin or river basin. Examples of watersheds in Canada include Atlantic (including the Great Lakes and St. Lawrence River), Hudson Bay, Pacific and Arctic. A single watershed can cover a relatively large section of the Canadian landscape. For example, the waters of the Great Lakes include not only the lakes themselves but also the many rivers, and their tributaries, that ultimately flow into the lakes.
Why not make this clear in the act? Chances are the definition that will be proposed through regulations will be the one found in the February 1999 document and will therefore directly infringe, by law, on relevant provincial jurisdictions.
The second point concerns the powers given to the Minister of Foreign Affairs. These powers are considerable. From issuing licences to selecting the types of projects that may be eligible, not to mention the practices that may be exempted from the application of the act, the minister's responsibilities under the constitution are being greatly expanded.
It is true that, under the 1909 treaty, projects directly affecting boundary waters already require a review and the approval by the parties concerned. In case of a dispute, it is up to the IJC to settle the issue. Under the treaty, Canada cannot take any unilateral action that would change the level and flow of waters on the American side of the border.
In that sense, the bill only formalizes the already common practice of requiring a licence to build a dam, for example, or to install works that obstruct waters.
However, article VIII of the 1909 treaty sets out the three possible uses of water in order of precedence and, as long as there is no conflict among these uses, the contracting parties have equal and similar rights in the use of the waters.
The various uses of water provided for are as follows: uses for domestic and sanitary purposes; uses for navigation; uses for power; and for irrigation purposes.
In Bill C-6, only the ordinary use of waters for domestic purposes, the concept can be stretched, for uses are not necessarily that clearly defined, and for sanitary purposes is expressly excluded. There is no reference to the use of water by the provinces for power purposes.
The provinces' energy choices could be ignored, especially since, with a broad definition of water basin, the extent of waterways affected by Bill C-6 could be greater.
Amendments to the International Boundary Waters Treaty Act could allow the Minister of Foreign Affairs to interfere in the management of Quebec's natural resources. Yet these provisions clearly violate established law and the division of powers between the provinces and the federal government.
Section 109 gives indisputable property rights to the provinces. It is this section, taken together with sections 92.5, 92.13 and 92A, which prompted Senator Gérald Beaudoin to say, in his book on the Constitution of Canada, that the provinces have:
--broad powers with respect to the use, acquisition and management of lands, and the development and marketing of natural resources.
What comes to mind here is the development of the extensive hydroelectric resources in Quebec. Jurisprudence has also established that the expression “lands” in section 92.5 also extends to waters and mines.
What we have here therefore are flagrant, I would even say reprehensible, encroachments on provincial jurisdictions.
Finally, we must also question the relevance of the bill.
To protect water resources from the perils of unlimited trade, Canada, Mexico and the United States declared in 1993 that “NAFTA creates no rights to the natural water resources of any Party to the Agreement”. The federal government is thus saying that, given the existence of this joint statement, as long as water is not considered a good or a product, and is in its natural state, it does not come under the provisions of trade agreements, including NAFTA and WTO. However nothing could be less certain.
Such a statement, common or not, would have no value whatsoever before an arbitrator because, as the Vienna convention on the law of treaties stipulates, the contexts, the elements external to a treaty or international convention, cannot be taken into consideration in its interpretation if the text itself remains obscure and if the parties agree on the pertinence of these external elements.
Since the United States has clearly stated, the very day of the joint statement, that nothing in it changes the NAFTA treaty in any way, it is therefore legitimate to state that water is subject to consideration as a good within the meaning of the various international trade agreements.
In fact, from the moment that Canada exports this resource, it becomes a good under NAFTA and GATT. Even if not legally considered a product, it could be the object of proceedings under NAFTA chapter 11 on investments and services, and under national treatment. In addition, it is clear that, if the federal government issues export permits, water will henceforth be considered a commercial good within the meaning of these trade agreements.
However, should a province decide to issue a licence, this appears to be applicable only within its own jurisdiction, within one territory, according to the department, and I quote:
--the fact that certain projects have been approved does not in any way indicate that future bulk water removal projects must also be approved. Canada's federal and provincial governments retain full sovereignty over Canada's water.
Officials have indicated that:
Any precedent due to the approval of a water export project would be limited to the province concerned and linked to the legislation that allowed the water to be exported, not to trade agreements.
Despite these statements by the government, a reading of the trade agreements, NAFTA in particular, does not leave one convinced of this. We cannot know what the outcome might be of court proceedings entered into by private investors against Canada or a province if an export permit were issued to a foreign company. In addition, the IJC states that certain observers make reference to Canada's tariff listing to conclude that all waters must be considered a good and that this stance is incorrect.
It goes on to say that this list “merely indicates that, when water is classified as a good, it enters into a specific tariff category”. According to a number of observers, we do not know with any certainty whether water could be considered a good, and the BAPE itself could not settle this.
It would be safer to be sure of the situation before passing such a bill. For now, it appears completely inadequate and clearly threatens the jurisdiction of the provinces over their natural resources, in this case, water.
The federal government is clearly using opposition to water exports to justify, in the eyes of the public, its interference in the form of Bill C-6. However, this legislation appears inadequate, and the effect it would have on international trade is uncertain.
Furthermore, the important issue of groundwater, despite the fact that it was clearly raised in the IJC's preliminary and final reports, is not even mentioned. Yet this issue is directly linked to flow maintenance and to both the level and quality of the Great Lakes waters. The federal government is silent on this issue.
The Speaker has indicated that my time is running out as swiftly as the spring runoff. I will therefore wrap up quickly.
The government, through Bill C-6, contrary to what it says, is overstepping its constitutional jurisdiction with respect to boundary waters, is interfering in Quebec's jurisdiction with regards to potable water, and is, in reality, offering no satisfactory guarantees as to the impact of this bill on international trade agreements.
There is a fairly quick solution to the problem, since we know quite well that a sovereign country has complete control in negotiating its own treaties. If procedure will allow me, I would like to make a proposal. In order to sign its own treaties, Quebec must become sovereign if it wants to continue to have water that is good in terms of both quality and quantity.