LONDON CHAPTER COUNCIL OF CANADIANS
SUBMISSION TO THE COUNCIL OF GREAT LAKES GOVERNORS
On the GREAT LAKES ANNEX 2001 IMPLEMENTING AGREEMENTS

In three parts:

1. General London Chapter pronouncement on the Implementing Agreements, Oct. 14th, 2004 – Ceridwen Harris
2. Presentation to Public Meeting on Annex Implementing Agreements, Sept. 22nd, 2004 – Ceridwen Harris
3. Response to Council of Great Lakes Governors on the draft Annex 2001 Implementation Agreement, Sept. 20th, 2004 – Anne Dyer-Witheford

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PART 1: LONDON CHAPTER PROUNCEMENT ON IMPLEMENTING AGREEMENTS

Water Campaign, London Chapter - Council of Canadians

14th October 2004

Comments on Annex 2001 Implementing Agreements

As responsible citizens, the members of the London Chapter, Council of Canadians, deplore the Annex 2001 Implementing Agreements as undermining the protection of the Great Lakes provided by The Boundary Waters Treaty of 1909. This treaty commits each of the two nation states ( US and Canada) to maintaining the flow and levels of the Lakes – which cannot be done by removing water from the Great Lakes basin, already under threat by heavy usage and by climate change. We believe that the protection of the Great Lakes should be paramount.

We have been told by the International Joint Commission (2000) that there is no water to spare from the Great Lakes and yet this document sets out a system and a bureaucracy to remove limitless quantities of water from the basin. We therefore see this document as ignoring the recommendations of the IJC, and disrespectful of the authority of the Federal governments as represented by the IJC.

As citizens of Canada we are enraged by the insult to the dignity and to the sovereignty of Canada represented by the Compact. We demand that both the Provincial and Federal Canadian governments insist on a policy of No Diversions, which is already applied in Canada. We demand that our Provincial and Federal governments do not approve of a lesser standard in our international relationship with the US states, which would allow waters which we are protecting from bulk withdrawals to be diverted into the US beyond the border of the basin.

As citizens of Ontario we are heavily dependent on the health of the waters of the Great Lakes. We ask our governments to protect those waters from out-of-basin diversion, and to protect the interests of Canadian citizens. We do not believe our interests can well be served when we have only two Canadian voices among ten with regard to the Agreement, and of course no voice at all regarding the Compact. We want to see the Federal government protecting the Canadian waters of the Great Lakes.

On behalf of the members of the London Chapter, Council of Canadians

I am

Ceridwen M. Harris

Water Campaigner
London Chapter
Council of Canadians

PART 2: Presentation to Public Meeting on the Annex 2001 Implementing Agreements, Wednesday 22nd September 2004

From: Ceridwen Harris, Chair of the Water Campaign, London Chapter, Council of Canadians

• Thank you for the opportunity to speak at this meeting.
• My name is Ceridwen Harris and I chair the "Water Campaign" for the London Chapter of the Council of Canadians. These comments are general and I will send a more specific written response later.
• The London Chapter Water Campaign, while recognizing that a great deal of hard work has gone into the compilation of the Annex 2001 Implementing Agreements, has been totally dismayed by the results the Working Committee has achieved. We fear that good intentions are leading us all along the usual route.
• The history of the US in caring for their water - as for example the Ogallala aquifer, the Colorado River and the increasing shortages in the US South West, is not impressive from an environmental perspective. Canada is already diverting water into the Great Lakes system equivalent to what is taken out in Chicago.
• Official rhetoric in the States claims the Great Lakes to be a US ' national treasure' without reference to Canada at all, despite the preamble to Annex. Now the eight governors seek to unite in a Compact to divert water out of their national treasure - but you can't drink out of one side of a cup without diminishing water the other side. What was the reaction of our leaders? Where was our Provincial government? - at the table apparently condoning all this, helping as the draft was created and agreeing to share costs. We sit as observers on the Compact Agreement as US governors plan ways to divert water, and then we are only two voices against eight in the Great Lakes Commission. But water does not know national boundaries, and water that flows out of the American side of the Lakes also flows out of Canadian waters. These Annex Implementing Agreements weaken rather than strengthen the protection of the Lakes.
• We are advised by our most prominent scientists that the Great Lakes cannot withstand the loss of any more water, and the IJC report of Feb 2000 into the Great Lakes concluded that ‘there is never a surplus of water – every drop of water has several uses’ and yet this entire document is devised to set up a system for just that, for diverting water away from the basin. How can you consider allowing water to be taken by an out of basin community when there is in fact no water to give away?
• We would like to know what the impact of diversions would be to Pelee Island and the already disturbed Lake Erie ecosystem, in terms of flows and levels. For example, if a major bottling plant wanted to draw over 5 million litres per day in Erie Pennsylvania and the Compact agreed it met the Standard, what powers would the Regional Review Body have to prevent this if the Canadian side objected?
• Of the five possible recommendations that Mr Ralph Pentland, former co-chair of the IJC, saw as coming from this study, we agree with him that this is the least acceptable. A policy of No Diversions from the Great Lakes Basin is the policy which should be enshrined in this document. We expect our Provincial Government to uphold the international policies of our Federal government and oppose bulk withdrawals of water from the basin, and to maintain the level and flow of water as agreed in the 1909 Boundary Waters Treaty. Thank you.

Ceridwen M. Harris

PART 3: Response to Council of Great Lakes Governors on the draft Annex 2001 Implementation Agreement:
By Anne Dyer-Witheford, London Chapter Water Committee Member, Council of Canadians
September 20, 2004

This Annex 2001 Implementation Agreement, being touted around Ontario and Quebec this and last weekend contradicts its stated purpose, which was to be strengthening the protection of the Great Lakes/ St Lawrence waters. And here we are, a surprised public—fully two thirds of the way through the ‘public consultation process’ being asked to give ‘informed consent’ to a complicated, radical, and seemingly dangerous plan. This is a proposal that makes water removal from the basin not a begrudging exception, as in the past, but a routine practice, for the first time in the history of Great Lakes’ management.

Aside from questions of sovereignty, one simple change from precedent spells deteriorated protection of the lakes. Under current practices, based on 1986 US federal law, unanimity by all eight state governors is required for diversion of water south out of the Greats Lakes basin. This stringent requirement has all-but prevented diversion since that time—as have all prior regimes of oversight. This draft agreement reduces the required assent to six out of eight governors, which will facilitate, in an unprecedented way, diversion of Great Lakes water. This is water that is lost to the system forever, and constitutes the number one threat to the health of the lakes.

Many criticisms seem to be apt here, especially the lack of knowledge of the viability of even current Great Lakes water use. Additionally, the allowance of an unlimited number of small water removals, with only retroactive evaluation of whether ‘too much’ has been taken is not good. However, for this paper, I will focus on only two issues, the facilitation of water diversions under the guise of their prevention, and the potential casting of water as a commodity though this plan.

False claims of ‘bigger threats’ justifies draining lakes slowly

This plan to systematize water diversions from the basin has been justified by its proponents on the grounds that it anticipates and prevents activation of two Great Lakes’ assaults.
These are:

1. from the US Supreme Court, which might rule that restricting Lakes water usage to basin users, with ‘random’ and rare exceptions, is unfair to other potential US users, and
2. from challenges under North American Free Trade Agreement (NAFTA) that all potential users of lake water should have equal access to it regardless of their geography inside or outside the Great Lakes Basin.

In both cases, the supposed concern is that potential users far away from the basin will gain equal claim to water to those within the basin. The logic of the Implementing Agreement, as redress for such potential, is that systemizing the application and approval process of non-basin diversions, while creating a slow drain on Great Lakes water for the first time, still prevents worse outcomes stemming from US and NAFTA legal interventions. And the agreement’s combined requirements for permission to divert would systematically discriminate against potential users at a distance from the Lakes.

How then, could the Great Lakes Governors, many of whose communities are in fact outside the basin, be faulted for making their next-to-basin constituents happy, while limiting damage to the Lakes’ integrity?

However, establishing these application and approval procedures virtually guarantees that permissions will be granted—which is a flat contradiction of the International Joint Commission (IJC)’s continued stipulation, repeated in 2004, that “No Diversions” from the basin is the only way to ensure the Great Lakes’ integrity.

Why would the members of the Great Lakes Charter (the eight Great Lakes states, and Ontario and Quebec) ignore this number one requirement while supposedly responding to the IJC’s request in 2000 to strengthen protection of the lakes—their request being the origin of this document? Do they know something to which others are not privy? Is the justification being offered: “the best that can be done under the circumstances,” valid? Is this now-familiar refrain being offered by supporters, from ‘environmentalists’ such as Canadian Environmental Law Association’s Executive Director Sarah Miller, or Reg Gilbert, once Acting Director of Great Lakes United, both parties in the formulation of the plan) true? Apparently not!

That US law or NAFTA will be used to loosen up control of Great Lakes water currently exercised by the Charter members has been flatly contradicted by a variety of authorities—including, repeatedly, the IJC itself, and the governments of Canada and the United States. Other commentators and dozens of environmental lawyers agree. One such commentator and former IJC member, Ralph Pentland summarizes their positions in a paper presented at the Munk Centre for International Studies this last September 14th: “A policy of equal access by anyone anywhere in the world is entirely inconsistent with water management and environmental principles and practices as they are applied all around the globe.”

The current regime is not as vulnerable as the justifiers of this plan would imply. However, using the classic Oedipal strategy, under the guise of attempting to minimize imagined future harm, the Annex will apparently bring about what it was to guard against—therefore fulfilling its own negative prophesy.

Buying and Selling of Water is Implied

The Canadian and US governments have made it clear that the NAFTA could only come to apply to water if and when it has been removed from its free-flowing state. Prior to this condition, the control being exercised is the sovereign right to preserve the integrity of ecosystems within water basins. Canada has the right to prohibit the bulk removal of water as this is a “non-discriminatory environmental measure of general application.” (The Annex 2001 comment from Foreign Affairs, Mon, 20 Sep 2004)

Water removed from the basin, especially once a value has been applied to it, can become a ‘good’ and therefore subject to NAFTA rules. At this point ‘discrimination’ is not allowed, neither against Canadian, American or Mexican (commercial) interests, from the high north or deep south. The disposal of water that has ‘commodity’ status under NAFTA cannot be determined by considerations of sovereignty or public concern. The Canadian government is currently working on a law to prohibit bulk removals of water from Canada’s lakes and rivers precisely because the implications of triggering NAFTA for Canada’s water would be diabolical.

However, on this point too, far from preventing the triggering of NAFTA, this Agreement seems set to invite the situation. This is because it allows communities and businesses who wish to use Great Lakes water without returning it, to compensate for their destructive practice through making ‘resource improvements.’ Many commentators say this is a nascent form of buying and selling of water—the essential condition of loosening public control of our water systems.

Why would members of the Charter set up a situation that might make Great Lakes water a commodity, when it is completely contrary to the spirit of their direction and substantially contrary to their practices during their past period of stewardship of the Lakes?

A favourable gloss on this apparent error has been provided by environmental lawyer James Olson. He stated in a paper that the thinking described above is due to applying the wrong concepts to protection of the lakes. These are the concepts of cost-benefit analysis. For some environmental issues they are appropriate, he noted. For example, air pollution can be compensated by with air-cleaning practices and technologies.

But, there is nothing relative about maintaining the ‘level and flow of the waters of the Great Lakes/St. Lawrence basin,’ (the standard of stewardship established between the United States and Britain by the 1909 Boundary Waters Act—still valid law). Volume is not a relative concept, and there is no ‘benefit’ that will compensate for the ‘cost’ of absolute removal of water from the basin. Without maintenance of lake levels and flows, no matter what cosmetic or ancillary ‘benefits’ you may bequeath to the lakes—such as water level monitoring or seeding them with ducks—the Lakes fail to remain lakes—they die.

This is a horrible prospect, the simple denial of whose possibility cannot be justified. The Aral Sea, formerly the size of Lake Huron, is now a third of its size and regarded as a tragic monstrosity to any who view it.

We should gird our loins and stand up to any interests who may be willing to risk this prospect. Any Canadian politician or civil servant who countenances this prospect in any way is not working in the interests of the people or Canada (or the world) in my opinion.