fe or health." It is also absolutely critical to note that Chapter 11 is not in any way limited in its application to trade in goods. In other words, both NAFTA rules concerning investment (and Services) would extend to water, whether water is classified as a good, or not. In fact, the federal government has conceded this point: Chapter 11 does not prevent NAFTA Parties from prohibiting the removal of water from its natural state. But foreign investors seeking to establish investment, or with established investments, for the removal of water from its natural state would have to be treated in the accordance with the obligations of the Chapter (such as national treatment, minimum standard of treatment and the four requirements for an expropriation, if there is one). [emphasis added]In other words Chapter 11 disciplines apply to Canadian water resources, including access rights to Canadian water in its natural state. This means that, once governments allow water to be withdrawn from its natural state, as they have done on countless occasions for purposes that range from large scale industrial use to personal consumption, the same rights must now be accorded foreign investors. While the federal government remains silent on the issue of whether water would be subject to the services provisions of NAFTA, for similar reasons, we believe, this result is also inescapable. This arguably means that a water services provider operating in Canada would have the same rights to supply water services to US consumers as to Canadians. In our opinion, two of the most likely bases upon which claims can be made against Canada concerning water export control measures that it may adopt, would be founded on either or both Articles 1102 and 1110. We consider them in turn. NAFTA Article 1102: National Treatment for Investors and Investments: National Treatment Each Party shall accord to investors of another party treatment no less favourable than it accords, in l...
