Home Our Shared Environment An Act to Amend the International Boundary Waters Treaty Act Regulatory Impact Analysis Statement

Regulatory Impact Analysis Statement

(This statement is not part of the Regulations.)

Description

Amendments to the International Boundary Waters Treaty Act provide for the first time the making of regulations.

The regulations are necessary for the implementation of the amended Act, which: (a) establishes a licencing system for projects affecting waters running along the Canada- United States boundary and rivers flowing into Canada, and (b) prohibits out-of-basin removals from those boundary waters.

The regulations outline the information that is to be included in a licence application and oblige the Minister of Foreign Affairs to include applicable conditions in a licence. The regulations also elaborate on the prohibition contained in the Act by:

• limiting the prohibition to removals of waters in bulk;
• defining bulk water removals as any removals that exceed 50,000 litres per day or removals by diversion;
• defining the water basins to which the removal prohibition applies.

The regulations ensure that minor removals that may technically fit within the prohibition are excluded from its application for health, safety and humanitarian reasons. These include ballast water, water used for people or goods aboard a conveyance or for the operation of the conveyance, and water used, on a short-term basis, for firefighting or humanitarian purposes. The regulation makes clear that the prohibition applies to both treated and untreated water but does not apply to water contained in manufactured products leaving the basin, including beverages in bottles or packages.

Alternatives

The regulations limit the boundary water removal prohibition to bulk water removals. To set the definition of bulk removal below 50,000 litres per day, about the capacity of a tanker truck and trailer, would involve the federal government in the control of small water projects that are better left to the provinces. Provinces have legislation or regulations or are in the process of passing legislation or regulations that prohibit lower-level water removals. To set the definition higher might permit bulk removal from boundary waters, contrary to a key purpose of the amended Act.

The descriptions of the water basins (Great Lakes-St Lawrence, Hudson Bay and Saint John-St. Croix) are necessary to implement the prohibition against water removals, since an offence is committed in respect of removals beyond the limits of the water basins where the boundary waters are located. Large basin areas are used so as not to interfere unnecessarily with provincial control and regulation of water within a province. There are no water basins described west of the Lake of the Woods because there are no significant boundary waters in that area of Canada, at least not significant enough for a bulk water removal project.

The obvious exceptions to water removals are covered. Should others arise, it is expected that the regulations would be amended. In clarifying the meaning of bulk water removals, water contained in products manufactured in the basin is excluded as these products have traditionally not been addressed by the Boundary Waters Treaty.

Benefits and Costs

Benefits for proponents of projects include the information requirements to apply for a licence and the advance knowledge that bulk removals of boundary waters out of designated water basins will not receive licences.

An aim of the regulations is to maintain the traditional approach to the review of projects in boundary and transboundary waters, in the sense that projects such as dams, bridges, diversions and tanker traffic are reviewed by the government and the International Joint Commission. In this context, there should not be any new major costs associated with the implementation of the Boundary Waters Treaty.

Consultations

Provinces and territories, especially those containing boundary and transboundary waters have been consulted on two occasions. Suggested improvements were incorporated and explanations and reassurances provided about the scope and implications of the regulations. Provinces with large boundary waters were pleased that control of minor water removals was left to the provinces while the federal government provided a backstop for bulk removals, i.e. removals of more than 50,000 litres per day and diversions.

Questions were raised as to whether removals or projects obtaining provincial environmental approvals could be exempt from the application of the Act. It was explained that the Boundary Waters Treaty contained obligations between Canada and the United States and that provincial approval could not override or bypass these federal obligations. However, it was pointed out that federal/provincial arrangements might be developed under the Act (s.20) to reduce red tape, such as duplicate environmental assessments.

The International Joint Commission (IJC) and the U.S. State Department have been consulted on the development of the amended legislation and regulations. While the Canadian Section of the IJC indicated a preference for the federal government to submit a project to the IJC without prejudice to its possible approval, the IJC acknowledged that the Boundary Waters Treaty provisions require independent approvals by both the IJC and the Canadian government before a project subject to the Treaty can proceed in our territory. It should be noted that the amended legislation and the regulations are consistent with the Final Report to the Governments of Canada and the United States on the Protection of the Waters of the Great Lakes by the IJC (February 2000). That Report was developed after substantial public and expert consultation throughout the Great Lakes region.

A draft of the regulations was submitted to Parliament as background information before review of Bill C-6 by the relevant House and Senate Committees.

These regulations were pre-published in the June 29, 2002 issue of the Canada Gazette, Part I, Vol. 136, No. 26, page 1997. All representations received during the 75-day comment period support the purpose of the legislation and regulations - greater protection of boundary waters in Canada. The prohibition on the removal of boundary waters from their water basins is separate from the licencing system which applies only to projects occurring within a Canadian basin, that affect the natural level or flow of waters on the U.S. side of the border.

As described in the Alternatives section, to set the definition of bulk water removal for a project below 50,000 litres per day would involve the federal government in small water projects that are better left to the provinces. A definition of water basin based on one of the individual lakes or connecting channels would similarly interfere with provincial water management. Manufactured products have traditionally not been addressed by Boundary Waters Treaty implementation. Large water containers would not be considered bottles or packages, but instead means of transporting water in bulk.

Project proponents will initially be required to prepare and submit a concise environmental analysis. If a licence is required, then an environmental assessment under the Canadian Environmental Assessment Act will be required prior to the issuance of the licence, as well as approval by the International Joint Commission. These will provide opportunity for public input. The Minister of the Environment will be consulted on the evaluation of the impact of a proposed project. Projects will be reviewed for compliance on an ongoing basis.

Compliance and Enforcement

Persons will not be considered for licences, licence renewal or amendment until they fulfill the information requirements contained in the regulations. If persons proceed with projects covered by the Act in a way that is not in accordance with a required licence, or if the project is prohibited by the Act, they are subject to the penalties contained in s.22. These include fines of up to $1,000,000 and/or up to three years in prison for each day a contravention continues. This level of punishment is consistent with serious environmental or fisheries offences.

Additional fines can be imposed to confiscate any monetary benefits received over and above the level of fines imposed (s.23). Injunctions can be ordered by courts to prevent actions directed towards the commission of an offence (s.26) and Ministerial orders can require removal of works or the stopping of prohibited uses of boundary waters (s.19).

Inspection of projects that may fall under the jurisdiction of this Act are expected to be carried out by existing mechanisms in place, to identify violations of environmental, fisheries and navigation enactments.

Contact
Peter Fawcett
Deputy Director, US Transboundary Division
Department of Foreign Affairs and International Trade
125 Sussex Drive
Ottawa, Ontario, K1A 0G2
(613) 944-6911
FAX: (613) 943-2423
Internet: peter.fawcett@international.gc.ca