feguard against trade agreement based challenges or claims against Canadian ban on water exports? In an options paper prepared for the Canadian Council of Environment Ministers the federal government indicates that trade considerations lead it to shift its approach from a federal ban on water exports, to a focus on a federal-provincial accord to prohibit bulk removal of water from Canada’s drainage basins. Attached to their options paper is a summary of that trade analysis (attached). We believe that it is faulty for several reasons.To begin with, the assessment begins with the bold assertion that the "watershed approach" it advocates is "consistent with our trade obligations". Unfortunately no analysis or argument is offered to support this assertion other than the statement made by the three NAFTA Parties in 1993 (the 1993 Statement) providing: Unless water, in any form, has entered into commerce and becomes a good or product, it is not covered by the provisions of any trade agreement, including the NAFTA. And nothing in the NAFTA would oblige any NAFTA Party to either exploit its water for commercial use, or to begin exporting water in any form. Water in its natural state in lakes, rivers, reservoirs, aquifers, water basins and the like is not a good or product, is not traded, and therefore is not and never has been subject to the terms of any trade agreement. However, in setting out this position the federal government is only restating a contention that it has consistently advanced in response to questions concerning Canada’s exposure to trade agreement based demands on its water resources. This begs of course the question of how this historic position might account for its change of heart on the subject of a water export ban. However because of the reliance the federal government continues to place on the 1993 Statement, it is worth considering in some detail. 2.1 Water as a "good" revisited. As we have seen, under Art...
