Emerging legal issues in the great lakes such as the public trust doctrine, subterranean rights and municipal regulatory arrangements.

Author:Fogarty, Kendra
Position:PROCEEDINGS OF THE CANADA-UNITED STATES LAW INSTITUTE CONFERENCE on An Example of Cooperation and Common Cause: Enhancing Canada-United States Security and Prosperity Through the Great Lakes and North American Trade: Cleveland, Ohio April 2-4, 2009

Session Chair--Kendra Fogarty

Canadian Speaker--David Brooks

United States Speaker--Chris A. Shafer

United States Speaker--David Ullrich


MS. FOGARTY: Good morning. My name is Kendra Fogarty. I work for the Canadian Department of Foreign Affairs, (1) but I am a United States citizen. I work on Great Lakes issues, and I also work for the consulate in Chicago, Buffalo, Detroit, and Minneapolis. (2) I have a long history of working on issues involving the Great Lakes, and I have known many of you for years.

Yesterday and this morning, we focused largely on the bi-national relationship between Canada and the United States. Specifically, we focused on the federal governments and treaties, including the Great Lakes Water Quality Agreement. However, much of the implementation, decision-making, and resources are expended at the local level. So, we will focus in this panel on some of the issues at the local level. We will start with three excellent speakers. We want to try to wrap up at noon, so please hold your questions until the end and we will try to address them all at once.

Our first speaker is Dr. David Brooks. Dr. Brooks has a background in geology and economics. (3) He recently retired, but only after working fourteen years with the International Development Research Center. (4) Dr. Brooks is now a senior advisor to Friends of the Earth in Canada on fresh water issues. (5) Dr. Brooks published quite a few books, which are listed in the program under his biography. He was also elected to the International Water Academy in Oslo, Norway. (6) He will start by discussing an overview of Canadian water law.

(1) See CANADA-UNITED STATES LAW INSTITUTE, 2009 ANNUAL CONFERENCE PROGRAM 7, available at http://cusli.org/conferences/annual/annual_2009/documentation/CUSLI_2009_ program.pdf.

(2) See id.

(3) See id. at 8.

(4) See id.

(5) See id.

(6) See id. at 9.



Getting the Numbers Right

Most Canadians believe they live in one of the most water-rich nations on earth. Many politicians and much of the media perpetuate this view. They emphasize that Canada has twenty percent of the world's fresh water, (8) a number that is not so much wrong as misleading. Canada does have twenty percent of the world's stock of fresh water, water held in lakes, aquifers and glaciers; but its share of renewable fresh water that is replenished each year is only seven percent, which is roughly equal to Canada's seven percent share of the world's land mass. (9) Professor David Schindler (10) from the University of Alberta and winner of the first Stockholm Water Prize (11) describes the situation best: "While Canada has a large freshwater 'bank account,' the interest rate is very low." (12)

As far as water resources are concerned, Canada is a middle class country. Canada may start with a moderate amount of water on a continental basis, but less than half of the renewable supply is located close to that belt of populated land in the south of the country where eighty-five percent of Canadians live. (13) More than half of Canadian rivers flow and drain northward, emptying into either the Arctic Ocean or Hudson Bay. (14) An estimated twelve percent of Canada is covered by lakes and rivers, but only three percent in southern Canada. (15) The Great Lakes are among the fifteen largest lakes in the world, (16) but the bulk of their volume is a stock left over from the melting of continental glaciers; (17) only about one percent is renewed each year from precipitation on the Lakes or on tributary rivers. (18)

Canada is not water rich, but neither is it water poor. Canada receives nearly three thousand cubic kilometers of renewable fresh water every year, (19) about the same as China or Indonesia, (20) but dwarfed by Russia's five thousand or Brazil's eight thousand. (21) The United States is not far behind Canada with nearly twenty-five hundred. (22) Both countries are ecologically diverse, and each has large areas, southwestern United States and south central Canada, that are chronically short of water. (23) However, certainly both Canada and the United States are better off than much of the rest of the world.

One statistic that does distinguish Canada from the United States is the proportion of "gross annual availability" of water that is withdrawn for human use: 1.5% for Canada versus 19.2% for the United States. (24) Though explained in part by the huge volumes of water in the Canadian north, the difference also reflects somewhat lower rates of per capita water use in Canada compared with the United States: fourteen hundred cubic metres per person-year versus sixteen hundred. (25) However, both nations rank among the highest per capita users of water in the world, (26) and well above other countries in the Organisation for Economic Co-Operation and Development (OECD) other than Australia. (27) Moreover, given the much higher share of water use for agriculture in the United States and Australia when compared with Canada, respectively forty-one percent, seventy-five percent, and twelve percent, (28) it is fair to conclude that, for their own use, Canadians are probably the greatest water users in the world.

Getting Away from the Numbers

To a considerable degree, all of the preceding discussion regarding the question of water endowment is beside the point. The real question is not how much water a country has, but rather how it manages its water and the answer to that question depends on its intellectual rather than its physical resources. (29) Many nations in the world manage to create prosperous and democratic societies with far less water per capita than either Canada or the United States. (30) It is the policies of a nation, and the institutions created to implement the policies, that determine whether water is extracted in an ecologically sustainable way, used in economically efficient ways, and distributed in socially equitable ways. To quote from the United Nations Human Development Report (HDR) for 2006: (31)

There is more than enough water in the world for domestic purposes, for agriculture and for industry ... scarcity is manufactured through political processes and institutions that disadvantage the poor. (32) Let us therefore turn our attention to water policy in Canada, and in particular to federal water policy.

Federal Water Policy in Canada

The Federal Government of Canada does have on record a modern water policy. In 1985, the Inquiry on Federal Water Policy published its report and recommendations, entitled Currents of Change. (33) Two years and many hours of work later, the report of an Interdepartmental Committee with over one hundred specific commitments for action on behalf of the federal government was tabled in Parliament by the Minister of Environment. (34) It is a remarkable document, and one of the first in the world to state that water is needed as much to protect the nation's ecology as to promote its economy. (35)

Unfortunately, after tabling its policy, federal action on water policy stalled. Most of the specific commitments were never implemented, and most of those implemented were never enforced. (36) The main agency for delivering the policy, the Inland Waters Directorate of Environment Canada was disbanded; budgets for water policy were drastically cut back. (37) In retrospect, it appears that acceptance of the myth of water abundance was unhappily combined with the neo-liberal political climate to permit withdrawal of the federal government from the field of water policy. For nearly twenty years, only a few water specialists spoke up to point out developing water problems. Even fewer people asked serious questions about how policies limiting the role of a central government would apply to water, which flows across, along, and under boundaries, and which is used many times between its source and its return to the sea.

Of course, dispersion of power is inherent to a federal state. Though there is plenty of disagreement about federal and provincial roles in water management, (38) the general rule is that provinces have primary power in most of Canada, whereas the federal government has primary power in the three territories that cover northernmost Canada, on First Nations reserves, and for trans-boundary issues. (39) There are also many areas of shared responsibility. For example, the Fisheries Act (40) and the Canadian Environmental Protection Act (41) give the federal government wide powers to protect water quality. (42) However, by the mid-1990's, there was so little evidence of its role that the federal government had to create a "Where's Water?" task force to determine who was doing what. (43) Still today, the Canadian government is more reluctant to intervene in water policy than central governments in other federal states or regional governments around the world. (44)

Clearly, there is ample room for federal action on fresh water in Canada, and, it does seem that the federal government is bestirring itself to, once again, take national water policy seriously. If a date has to be set for evidence of that turn around, it might be publication of a report from Environment Canada's National Water Research Institute (45) that showed, among other things, that a quarter of Canadian communities were already facing water problems, with the percentage rising year by year. (46)

Climate change has also been a stimulus for a return to federal involvement on water policy. (47) Federal initiatives are reviewing, among other things, the changing flow regimes of the large glacier-fed rivers that flow from west to east across the prairie provinces and that provide water for Canada's grain belt. (48) In 2008, the National Round Table on the Environment and the Economy initiated a program to study the long-term effects of climate on water use in Canadian agriculture, forestry, mining, and energy. (49)

Of course, just as nature abhors a vacuum, so...

To continue reading