Evaluating Canada's Accord for the Prohibition of Bulk-Water Removal from Drainage Basins: will it hold water?

Abstract

A major challenge in environmental policymaking in Canada is managing conflicts between the federal and provincial governments arising from overlapping jurisdiction under the Constitution Act. This paper evaluates the effectiveness of an approach termed "guided federalism" for developing national policy in a decentralized federal state. Guided federalism is based on the federal government providing a recommended policy framework that provinces are encouraged to adopt. The evaluation is based on a case study of bulk water export policy. The bulk-water export policy is evaluated against eight criteria measuring effectiveness. The results of this analysis indicate that the "guided federalism" approach to bulk water export policy adopted by the federal government has not been effective.

Resume

L'un des principaux defis en matiere d'elaboration des politiques au Canada est la gestion des differends entre les gouvernements provinciaux et federal, differends qu'entraine le chevauchement des competences aux termes de la Loi constitutionnelle de 1867. Les auteurs de cet article evaluent l'efficacite d'une approche nommee <> pour l'elaboration d'une politique nationale dans un Etat federal decentralise. Le federalisme oriente est fonde sur le principe que le gouvernement fournisse un cadre de politique recommande, que l'on encourage les provinces a adopter. L'evaluation est fondee sur une etude de cas sur la politique d'exportation d'eau en vrac. On y evalue cette politique en fonction de huit criteres en mesurant l'efficacite. Les resultats de cette analyse indiquent que l'approche de <> en ce qui a trait a la politique d'exportation d'eau en vrac adoptee par le gouvernement federal ne s'est pas revelee efficace.

Key Words

Water export policy, federal-provincial relations, resource policy evaluation

Introduction

A major challenge in environmental policymaking in Canada is managing conflicts between the federal and provincial governments arising from overlapping jurisdiction under the Constitution Act. Competing jurisdictional claims combined with a history of acrimonious federal/provincial disputes make it increasingly difficult for either level of government to act unilaterally. The inability or reluctance of the federal government to implement a national policy can result in poor management outcomes for complex issues with interprovincial implications.

The purpose of this paper is to evaluate the effectiveness of one approach to the dilemma of developing national policy in a decentralized federal state. The approach, which can be termed "guided federalism", is based on development of a model national policy framework that can be voluntarily adopted by provinces to produce a consistent national strategy without unilateral imposition. This guided federalism approach was recently used by the federal government to develop Canadian policy on bulk-water exports.

Bulk withdrawals of water can have significant environmental and social impacts (Moulton and Cuthbert 2000, Day 1985, Barlow 2001) and proposals to export large quantities of water have been strongly opposed in the past in Canada. After several controversial private proposals in the 1990s, the federal government adopted a strategy designed "to prohibit the bulk removal of water--including water for export--from Canadian watersheds" (Foreign Affairs and International Trade Canada 1999). A major element of this strategy is the Accord for the Prohibition of Bulk Water Removal from Drainage Basins (the Accord) (CICS 2006)--a voluntary agreement among participating Canadian provinces and territories in which they agree to prohibit the bulk export of water (Canadian Council of Ministers of the Environment 1999). The stated objective of the Accord is "to establish a Canada-wide approach for the protection of Canadian waters" (CICS 2006).

Although five provinces refused to sign the Accord, nine provinces do have specific bulk-water transfer policies in place (the information in this paper is current to October 1, 2006). There are also policies in place for each of the three territories stating that water licenses for bulk-water transfers will not be approved (Johansen 2004). Environment Canada (2004) claims that this combination of policies "provides solid assurance that bulk removals and exports will not proceed any time in the near future." Heinmiller (2003: 508) suggests that the provinces and territories have achieved policy harmonization by emulating each other's policies, and that the net result is a "nationwide regulatory regime for water exports in Canada." In contrast, Boyd (2003) notes that there is considerable variation in the policies adopted by different jurisdictions in Canada, and argues that this is problematic, not only because of inconsistencies among the policies, but also because at any time any province or territory could opt to change its approach and allow bulk-water exports, with important implications for the other provinces and territories, and for the regime as a whole (see also Shrybman 1999a).

This paper evaluates the effectiveness of the Accord empirically. To do so it examines and compares the specific provisions of the policies on bulk-water export of each of the provinces and territories to determine whether there is, in fact, "Canada-wide" protection against bulk-water export, and to assess whether the protection that exists can reasonably be attributed to the Accord.

Background

Proposals to export Canadian water

Water is an increasingly scarce resource subject to growing international demand. Therefore it is not surprising that large-scale schemes to extract or divert water from Canada have been debated from time-to-time since at least the 1950s. Of particular note are two major plans. The first was the Great Recycling and Northern Development (GRAND) canal, a proposal developed in 1959 to dam James Bay and turn it into a freshwater reservoir with an annual diversion to the Great Lakes basin of 347 million [dam.sup.3]/year (1 [dam.sup.3] is equal to 1000 cubic meters or 1 million liters) (Day and Quinn 1992). The second was the North American Water and Power Alliance (NAWAPA) proposal to flood the Rocky Mountain Trench and divert 310 million [dam.sup.3]/year of water southward to the United States (Pearse et al. 1985). Neither scheme went ahead, but they were followed by many other proposals.

The 1990s saw three major water export proposals in Canada. The first was an application in 1991 by Sun Belt Water Inc., an American company, and Snowcap Waters Ltd., a British Columbia company, to export bulk water from BC by tanker to the Goleta water district of California (Campbell and Nizami 2001). The government of BC circumvented this application by imposing a moratorium on bulk-water exports in 1991, followed by a legislated prohibition in 1995 (Water Protection Act, R.S.B.C. 1996, c. 484). Sun Belt subsequently filed a notice of intention to submit a claim for arbitration under the North American Free Trade Agreement (NAFTA), arguing that BC had violated Sun Belt's rights as a NAFTA investor. The second major export proposal in the 1990s was by the Nova Group in 1998 to export up to 600 [dam.sup.3]/year from Lake Superior in Ontario, and the third was by the McCurdy Group to export 50,000-100,000 [dam.sup.3]/year from Gisborne Lake in Newfoundland (Boyd 2003). Like Sun Belt, these applications were declined. The government of Ontario initially issued a permit to the Nova Group, but rescinded it in response to public and opposition pressure (Boyd 2003, Campbell and Nizami 2001). The government of Newfoundland considered lifting its legislated ban on bulk-water exports in order to allow the McCurdy project to proceed, but, like Ontario, faced public opposition and eventually decided to maintain the prohibition (Newfoundland and Labrador 2001).

Bulk-water export and sustainability