1st Session, 41st Parliament,
Volume 148, Issue 161
Wednesday, May 8, 2013

Hon. Percy E. Downe: Honourable senators, first I wish to join with Senator Finley in congratulating Larry Miller on his bill and the work he has done on the measure. However, I am curious, when this bill is so important, why it is a private member's bill and not a government bill.

The previous legislation that was lost in Parliament was a government bill. The bill was reintroduced by Mr. Miller with one change. He listened to some criticism of the original bill and that criticism was that an individual or a company could basically divert water from a lake or river that was a non-transboundary waterway and connected to a transboundary waterway. He amended the original bill and the changes in this bill deal directly with that, which would not be allowable under this bill. For that he is to be thanked as well.

There are a number of questions about the bill, however. Does it open a NAFTA challenge if a province or private firm challenges it? The bill does not deal with exports. This bill deals with water in its natural state and as such is intended to void the application of trade rules, but is that the case? It may leave Canada open to a trade challenge under NAFTA should a province, together with an American entrepreneur, decide at some point in the future to challenge the bill prohibition on waters exported by pipeline. In other words, rather than resolving the current uncertainty surrounding the status of fresh water under NAFTA, Bill C-383 may amplify this uncertainty.

As well, the bill is incomplete because it fails to cover the vast majority of Canada's fresh water. It leaves out of its scope more than 90 per cent of Canada's water resources. It fails to create an overarching national prohibition against moving water from anywhere in Canada to the United States or elsewhere that would fill the void should a province ever lift the ban on water exports.

The Standing Senate Committee on Foreign Affairs and International Trade heard testimony that a number of years ago there was a proposal before the Government of Newfoundland for the consideration of the export of fresh water in tankers. The Government of Newfoundland decided not to proceed because it did not make financial sense. The question is: Had it made financial sense, would they have proceeded? This bill does not address that, nor was it Mr. Miller's intention. His concern was transborder, but it leads to the question of national responsibility.

Where is the Government of Canada? Where are the bills preventing mass export of fresh water? These were promises made in the 2008 Speech from the Throne and the 2009 Speech from the Throne, and indeed it goes back to the free trade discussions in the 1980s when the then government introduced Bill C-156, which would have banned large-scale water exports. That bill died when Parliament was dissolved for the 1988 election and was never resurrected. This bill addresses a problem. Again, we congratulate Mr. Miller for bringing it forward. We question why the government did not re-introduce its previous government bill, and we look forward to the federal government providing leadership on the outstanding gaps that exist in the possible export of fresh water in Canada.