Mr. Speaker, the Conservative government's opposition to Bill C-267 is puzzling because it amounts to a reversal of its previous public commitments on the issue.
In the 2008 election campaign the Conservatives said that they agreed with the principle of a federal ban on bulk water exports through a prohibition on interbasin transfers of water within Canada. This was in response to the then recently published recommendations of the Canadian Water Issues Council working in collaboration with the program on water issues at the Munk Centre for International Studies at the University of Toronto. These recommendations were incorporated in the earlier version of Bill C-267, which I introduced in the House of Commons prior to that election.
In the November 2008 throne speech which immediately followed the election, the government clearly committed to introducing legislation like Bill C-267. The Parliamentary Secretary to the Minister of the Environment said in her speech that water is a resource and as such it is a matter of provincial jurisdiction.
Water is not a resource like any other. Water is not oil or copper or nickel, resources that are locked in the ground and not part and parcel of living ecosystems. Oil may be the lifeblood of the economy, but it is far from the lifeblood of the environment.
What is more, natural resources like oil are static. In their natural state they do not move across provincial and international boundaries, either above ground in rivers or underground in aquifers like water does. If they did, they might likely have been designated a shared federal-provincial responsibility, or even an exclusive federal jurisdiction in the manner of another well-known resource that moves freely through Canada's natural environment without regard for political borders, namely fish.
My colleague also said that there is no constitutional justification or rationale for federal “incursion” into the matter of prohibiting bulk water exports, that for example, the federal role does not accrue in this case under the federal residual power of peace, order and good government. However, it is not necessary to invoke this residual power to justify a federal role in limiting water transfers and exports.
If the federal government has the power to prohibit activities harmful to the environment, such as pollution, it is not because it was granted this power under a Canadian Constitution that predates the word “environmentalism”, nor is it because of the federal residual power of peace, order and good government. Rather, it is because the court has ruled that society has evolved and that environmental protection in the political and economic context of the late 20th century is a matter worthy of Criminal Code protection.
I refer the parliamentary secretary to the 1997 Supreme Court decision in the case of Regina v. Hydro-Québec, where the utility challenged Ottawa's authority to use an interim order under the Canadian Environmental Protection Act to stop the provincial utility from depositing toxic substances into a watercourse in Quebec. Hydro-Québec argued that Ottawa's interim order could not be justified either by virtue of the federal criminal power or as a matter of national concern under the peace, order and good government residual power in section 91 of the Constitution Act, 1867.
The Supreme Court, however, held that the interim order and its enabling legislation, CEPA, were valid because the protection of the environment is a major challenge of our time that constitutes “a wholly legitimate public objective in the exercise of the criminal law power”, and that “the stewardship of the environment is a fundamental value of our society and that Parliament may use its criminal law power to underline that value”. I believe the court would view Bill C-267 in very much the same light.
The Supreme Court decision was close, five to four. The dissenters held that Ottawa was not authorized to act in the matter because CEPA's purpose is to regulate, not prohibit, and that regulation is not a matter of criminal law which is normally aimed at prohibiting a deleterious action.
I would submit that Bill C-267 is not intended to regulate water removal but rather to prohibit it outright. This legislation would pass muster at the Supreme Court. In any event, the intent behind the bill is to have Ottawa engage and work with the provinces to make the current national consensus against bulk water exports watertight into the future.
In conclusion, Canadians want a government of courage and character prepared to assume federal leadership when it counts. They do not want a federal government that shrinks from involvement with the provinces on matters of profound national concern, like Canada's water sovereignty and security.