The Council replies: Letters to the editor
Model water act won't float

Steven Shrybman
February 14, 2008

An abridged version of the following letter was published in today’s Globe and Mail.

While it’s refreshing to see the Globe and Mail call for regulation of interbasin freshwater removals, the Munk Centre's Model Water Act touted in Monday's editorial fails to explain how this may be achieved under our existing trade and constitutional arrangements.

Take the problem of NAFTA investment rules. Joseph Cumming and Robert Froelich recently argued in the University of Toronto Faculty of Law Review that if our governments were to restrict water licenses in the tar sands, U.S. oil corporations would be entitled to sue Canada under chapter 11 of NAFTA. The Model Act would not prevent this from happening.

Of course a water basin approach makes perfect ecological sense, but the Munk report ignores the need for agreement with the US on shared water basins. 

And rather than urge the federal government to deal with the issues within its jurisdiction, the Model Act would have Parliament regulate water removals from provincial basins. It’s unlikely the provinces would cede their constitutional prerogatives with respect to provincial waters.

Canada needs both a national policy that calls for coordinated action by federal and provincial governments, and a  treaty with the US that acknowledges our respective sovereign rights to manage water as a public trust and human right, not as a commercial good or investor claim.

Steven Shrybman, Trade Lawyer and Board Member, Council of Canadians