etween the GATT/WTO and NAFTA because under NAFTA, Canada has effectively abandoned these options under Articles 302: Tariff Elimination, 309.2 Import and Export Restrictions and Article 314: Export Taxes. For the purposes of establishing water export controls, it would be difficult to overstate the importance of this difference between these two trade agreements. The second way in which bulk water export control measures might be considered consistent with Article XI would require establishing that water export controls do not apply to a "good" or "product" and therefore are not subject to the Article. This is of course the primary approach being advocated by the federal government. However, the proposition that water in "its natural state" would not be considered a "good" or "product" under Article XI, is not one that is supportable in our view for reasons we detail in responding to Question 2. But for these two scenarios, water export controls are certain to violate Article XI constraints. In this case however, it may yet be possible to justify those controls if they can be brought within the parameters of Article XX: General Exceptions. However for reasons we explain in addressing Question 5, such an approach would be unlikely, in our view, to succeed. While other WTO Agreements such as the General Agreement of Trade in Services (GATs) or the Technical Barriers to Trade Agreement (TBT) might be enlisted in aid of a challenge to water export controls, Article XI poses the most likely point of conflict between such controls and the rules of trade. While GATT represents the ground upon which WTO and NAFTA regimes converge, as noted, several elements of NAFTA impose additional limits on Canadian options in this context. We have already noted one of these, in those NAFTA provisions that prohibit the use of export tariffs that might, under WTO rules, have been implemented to effectively ban water exports. We now turn to a consideration of...
