Protecting Our Water

• Intent for a Nation: What is Canada for?
• Michael Byers
• Douglas and McIntyre (2007)

[Editor's Note: Michael Byers holds the Canada Research Chair in Global Politics and International Law at the University of British Columbia and is a regular contributor to the Tyee, among other publications. The following is excerpted from his new book, which is available now.]

In 2004, the Canadian actor Paul Gross starred in a made-for-TV drama entitled H2O. Gross plays Tom McLaughlin, the charismatic son of a murdered Canadian prime minister, who takes over Canada at the behest of a group of international financiers eager to sell our fresh water to an increasingly thirsty United States. The film is a must-see for Canadians concerned about the independence of this country, for although the plot stretches the envelope of credibility -- it is, after all, entertainment -- it never leaves the envelope completely.

Climate change, the exhaustion of aquifers and an incessant and growing demand for fresh water in the United States are beginning to create pressure for bulk water (as opposed to bottled water) exports from Canada. In a debate on CBC Radio in December 2005, former U.S. ambassador Paul Cellucci said:

Canada has probably one of the largest resources of fresh water in the world. Water is going to be -- already is -- a very valuable commodity and I've always found it odd where Canada is so willing to sell oil and natural gas and uranium and coal, which are by their very nature finite. But talking about water is off the table, and [yet] water is renewable. It doesn't make any sense to me.

It might not make sense to a NAFTA tribunal, either. Indeed, when the day comes that an arbitration tribunal is asked to decide whether bulk water exports fall within the scope of NAFTA, it might well decide that they do. The negotiating history of the agreement could play an influential role, for although early drafts specified that water was not a "tradable good," this exemption -- which protected the Canadian government's right to prevent or limit bulk water exports -- was left out of the final version. In fact, removing the exemption may well have been one of the concessions that Simon Reisman (Canada's chief trade negotiator at the time) made to obtain a binding dispute-settlement mechanism. Reisman was known to be a strong proponent of bulk water exports, which he believed "would be able to reap enormous economic benefits for this country."

Single act could change status

Even if water does not currently fall within the scope of NAFTA, it could be drawn into the scope of the agreement quite quickly -- if a bulk export of water were to take place. A single act of trading water on a bulk basis would arguably transform the resource into a tradable good that was legally indistinguishable from softwood lumber, potash or oil, rendering subsequent attempts to prevent or limit further exports illegal. Much like in the Northwest Passage, where even one non-consensual transit could fatally undermine Canada's claim, just a single instance of water being shipped in bulk could have a decisive legal impact. For this reason, it is imperative that Canada takes water off the free trade table, quickly and decisively -- now, before it's too late.

Bulk water exports are contrary to Canada's interests for two related reasons. First, there is little surplus water close to the Canada-U.S. border. Climate change is shrinking the glaciers and snowpacks of the western mountains, leading to much lower river flows in British Columbia, Alberta, Saskatchewan and Manitoba, especially in late summer. Salmon runs on the West Coast have been affected, and on the Prairies irrigation farmers and municipalities are starting to feel the pinch. In Central Canada, the level of the Great Lakes is dropping; in 2000, the International Joint Commission, a bi-national body established under the 1909 Boundary Waters Treaty, determined that there was no surplus water in the lakes and warned against any new diversions. As for plans for diversions from farther north, the environmental consequences of moving large amounts of water between drainage basins and across thousands of kilometres are unpredictable and almost certainly extreme. The water shortage in the United States is largely the consequence of poor planning and over consumption. The solution lies in conservation and legislated limits on growth in water-deficient regions, not grand engineering schemes that would disrupt and destroy natural ecosystems on a continental scale.

Peter Lougheed, the illustrious former premier of Alberta, understands the dangers. In a speech to the Calgary branch of the Canadian Club in December 2005, he said: "We should not export our fresh water -- we need it and we should conserve it. And we should communicate to the United States very quickly how firm we are about it." Lougheed called for an all-party declaration in the House of Commons confirming Canada's refusal to allow bulk water transfers to the United States, in order to dissuade the U.S. government from even arguing that water is included in NAFTA.

A similar approach was proposed in 1999, as Tony Clarke of the Polaris Institute explains:

On February 9, 1999, the House of Commons passed a motion (introduced by the NDP) calling on the federal government to ban the export of water. In response, however, the Liberal government of the day chose not to formally issue a ban on the export of water. The prime reason? A water export ban would contravene Canada's international trade obligations.

Ottawa shying from a fight?

If the ambiguous position on the tradability of water wasn't bad enough, recent governments have also failed to stand up to the United States when it violates its obligations under the Boundary Waters Treaty. Most recently, Washington refused to accede to a request from Ottawa that the two national governments jointly submit the Devils Lake issue to the International Joint Commission for a full scientific review. The state government of North Dakota was building a diversion canal from Devils Lake -- a large, stagnant, saline pothole -- into the Red River drainage system, putting the large commercial fishery in Lake Winnipeg at potential risk from exotic fish parasites and toxic chemicals. At this stage, the Canadian government still had the option of making a unilateral request to the International Joint Commission for a review of the project, but it chose not to do so. Politicians and civil servants worried that, since all previous requests had been made jointly by both countries, a unilateral request might put established procedures for co-operation at risk; indeed, then Canadian ambassador to the United States Frank McKenna referred to this approach as the "nuclear option." Instead, Canada accepted that the construction of a gravel filter on the new canal would suffice, even though its efficacy is doubted by most experts.

The established procedures for co-operation are already in serious trouble. On water, as on so many other issues, our conciliatory, don't-rock-the-boat approach to Canada-U.S. relations has failed. Unless we stand up for our own interests, Canadian fresh water could soon be irrigating crops, watering golf courses and filling backyard swimming pools in the south western United States. It's time to dissuade Americans of the notion that we're going to rescue them from the consequences of their short-sighted, profligate ways by allowing them to mess with our environment, too. It's time to make it absolutely clear that bulk water exports are not covered by NAFTA.

Related Tyee stories:

• Pumping Blind
  Experts say we're recklessly draining BC's groundwater, heedless of global warming.
• In a Thirsty World, Canada Comes up Empty
  How long can we pretend global water woes don't affect us?
• Is Water a Commodity or a Right?
  Global experiments in saving and selling the resource.