Home Our Shared Environment An Act to Amend the International Boundary Waters Treaty Act Overview of the Legislation

Overview of the Legislation

The purpose of the amendments to the International Boundary Waters Treaty Act is to implement more effectively the 1909 Canada - U.S. Boundary Waters Treaty.

1) prohibiting the removal of boundary waters out of the water basin in which they are located;

2) requiring a licence from the Minister of Foreign Affairs for any activity in boundary or transboundary waters that would have the effect of altering the natural level or flow of waters on the United States side of the border;

3) providing clear sanctions and penalties for violations.

BACKGROUND

Water is an integral part of Canada's boundaries. More than 300 rivers and lakes form and run along or across this boundary. Over time, Canada and the United States together have developed a structure to manage this common resource. The 1909 Boundary Waters Treaty is a cornerstone of this cooperative relationship. Through the Treaty, Canada and the US are mutually obliged to protect natural levels or flows of waters shared by the two countries.

The Treaty established principles and procedures to prevent and resolve disputes, especially those dealing with the quantity and quality of boundary waters between Canada and the United States. The Act to implement the Treaty, the International Boundary Waters Treaty Act, was passed on May 19, 1911. Its main object was to establish the International Joint Commission, a binational organization. The proposed amendments provide for a clearer Act and a better implementation of the Treaty.

INTERNATIONAL BOUNDARY WATERS TREATY ACT: BASIS OF FEDERAL JURISDICTION

The International Boundary Waters Treaty Act establishes principles and mechanisms for dispute prevention and settlement, particularly with respect to the quantity and quality of boundary waters between Canada and the U.S.

The Boundary Waters Treaty was signed in 1909 by Great Britain, on behalf of Canada. Section 132 of the Constitution Act, 1867 gives the federal Parliament the power to implement treaties of this type. The federal government therefore has jurisdiction over boundary waters and transboundary waters to the extent stipulated in the Treaty.

AMENDMENTS

Licences

The amendments provide that uses, obstructions, diversions and the construction or maintenance of works or other obstructions that affect the natural level or flow of water on the other side of the border are not permitted unless they have been approved by the Minister of Foreign Affairs.

Until now, the Government of Canada has reviewed applications and approved or denied them using a less formal system. The amendments will improve the existing approval system, making it more transparent and structured.

The licencing system will be developed through regulations, in accordance with Canadian administrative law.

Prohibition on removal of boundary waters

The prohibition is an environmental measure designed to preserve the integrity of water basin ecosystems. Removal of water out of a water basin, carried out once or repeatedly, is deemed to have an impact on the natural level or flow of U.S. boundary waters and is therefore prohibited, save for exceptions stipulated in the regulations.

Powers of the Minister of Foreign Affairs

The Minister of Foreign Affairs has the authority to issue, renew or modify a licence required under the Act, in accordance with the conditions, form and terms stipulated in the Act and the regulations.

If there are reasonable grounds to believe that a person has violated the Act or the conditions of the licence, the Minister may suspend or revoke the licence. The Minister must, however, give the person written notice explaining the reasons for suspending or revoking the licence. The alleged violator must also be given the opportunity to provide an explanation.

The Minister has the authority to order the removal of works or obstructions and to stop the work, uses or diversions that constitute a violation. The Minister also has powers of confiscation and may remove or destroy the forfeited objects in cases where a violator fails to comply with a Ministerial Order. A violator may be required to reimburse the government's costs.

Agreements or arrangements with the provinces

Subject to the approval of the Governor in Council, the Minister may enter into agreements or arrangements with the provinces with respect to the licencing system and the prohibition.

Offences and penalties

Any person who violates the prohibition, acts without a licence or violates the terms and conditions of a licence is liable to a fine or imprisonment.

A violator is deemed to have committed a distinct violation every day during which the violation was committed or continued.

If the violator realized a financial benefit as a result of the act or activity that constituted a violation, the violator may be subject to an additional fine equal to the financial benefit.

Injunction

If the Minister of Foreign Affairs files a motion for an injunction and the court finds that a person has done or is about to do or is likely to do any act constituting or directed toward the commission of an offence, the court may grant the motion and order the person to cease any activity which constitutes or is directed toward an offence.

The court will give the person 48 hours to act, unless the public interest and the urgency of the situation requires a shorter notice or none at all.

Regulations

The amendments provide for the power to issue regulations, which the existing Act does not. This power will make it possible to establish a licencing system, stipulate exceptions to the application of the Act, define terms, and so forth.

ACTIVITIES OTHER THAN THE AMENDMENTS

Management of water in Canada is a shared responsibility. Therefore, the Minister of the Environment sought endorsement by provinces and territories of a Canada-wide Accord prohibiting bulk water removals out of all major Canadian watersheds. As a result of this initiative, all provinces have put into place or are developing legislation or regulations which accomplish this goal.

A joint reference to the International Joint Commission (IJC), the independent, binational agency charged with preventing and resolving disputes, or investigating issues, over waters shared with the U.S. The reference asked the IJC to study the effects of water consumption, diversion and removal, including for export, from boundary waters, with an initial emphasis on the Great Lakes. The IJC's final report (Protection of the Waters of the Great Lakes, February 2000) concluded that the Great Lakes require protection, especially in the light of the uncertainties, pressures and cumulative impacts from removals, consumption, population and economic growth, and climate change. Recommendations for action to protect the ecological integrity of the Great Lakes Basin are directed by the IJC to all levels of government in Canada and the U.S. The IBWTA amendments are consistent with and supportive of the IJC's conclusions and recommendations.