Language selection

Government of Canada Government of Canada

Search

Report to Parliament pursuant to section 42 of the International Boundary Waters Treaty Act on the Offences and Punishment and Injunctions Provisions of that Act

Table of contents

Message from the Minister

In 2013, the Transboundary Waters Protection Act (Private Member’s Bill C-383) amended the International Boundary Waters Treaty Act (the Act) to strengthen federal protections against bulk removal of water from Canada, building on amendments made in 2001. The resulting Act includes a detailed enforcement regime with offences and penalties for contravention of the bulk water removal prohibition(s). The amendments were unanimously supported by the House of Commons and the Senate.

The Transboundary Waters Protection Act came into force on July 1, 2014. Section 42 of the Act requires the Minister of Foreign Affairs to report to Parliament every ten years on the offences and punishment and injunctions provisions introduced in 2014 (sections 24-41 of the Act). It is with great pleasure that I present the first report indicating that there has been no activity under the offence and punishment sections of the Act from July 1, 2014, through June 30, 2024. Given this lack of activity, a registry has not been created as per s. 40 of the Act of convictions of corporations for offences under this Act.

Canada has twenty percent of the planet’s total fresh water.  For Canadians, water is more than a natural resource; it is one of the symbols that defines this country. Whether water is found in our glaciers or the Great Lakes, our large and small rivers, or the countless lakes and ponds across this country, freshwater is an important part of the Canadian identity. The protection of our water is of paramount importance to Canadians in all parts of the country.

Canadians want to know that Canada’s freshwater will remain in Canada, supporting healthy ecosystems and communities. In uncertain times when droughts and floods are more frequent in North America, the Government of Canada will continue to ensure that our water remains protected today and in the future.

Sincerely,

Minister of Foreign Affairs

June 2025

Summary

Canadians have long expressed concerns about the environmental and other impacts of bulk removals of water from Canadian water basins. Over the past several months, media coverage of water resources in North America have reinforced the public’s concerns.

The amendments to the International Boundary Waters Treaty Act (IBWTA or Act) in 2001 and 2014 addressed the lack of any provisions in federal law concerning bulk water removal. These amendments expressly prohibited the bulk removal of water from waters under federal jurisdiction (boundary and transboundary waters) and established offences and penalties to deter such projects.  No such projects have arisen since 2014; thus, there has been no activity under the offences and punishment and injunctions provisions of the Act from July 1, 2014 through June 30, 2024. This indicates that the protection afforded by the amendments against bulk water removal are functioning as intended. The Government of Canada continues to monitor closely any development in this regard.

Separate from the prohibition on bulk water removal, the amendments established a licencing regime for certain projects such as dams or obstructions in boundary and transboundary waters covered under provisions of the Boundary Waters Treaty of 1909. Previously, this federal approval was done through an informal process. By formalizing in law the government of Canada’s approval process, it clarified the federal role and authority. The Act created offences and punishments if these activities are undertaken without a licence or for contravening the terms of a licence as well as for contravening a court order made under the Act. While projects have been brought forward for assessment by the relevant Departments under the Act, in the reporting period no licences have been determined to be required. There has been no activity in the reporting period under the offences and punishment and injunctions sections of the Act with respect to offences not related to bulk water removals.

Given the lack of activity under the offences and punishments portions of the Act, the Minister has not created the registry required by s. 40 of the Act of convictions of corporations for offences under the Act.

The International Boundary Waters Treaty Act

Water comprises 40% of the Canada-United States with 300 rivers and lakes along the boundary. The Boundary Waters Treaty of 1909 was entered into by Canada and the United States to prevent and resolve disputes over the use of the waters shared by the two countries.

The Treaty was signed on January 11,1909 and entered into force on May 5, 1910. It established the International Joint Commission (IJC) to help the two Governments carry out the Treaty’s provisions. The Boundary Waters Treaty is the cornerstone of Canada-U.S. cooperation on water. Its provisions include an obligation on Canada and the United States of America to not affect the natural level and flow of waters on the other side of the boundary unless done by special agreement between the countries or approved by the International Joint Commission.

Parliament enacted the International Boundary Waters Treaty Act (the Act) in May 1911 to implement the Boundary Waters Treaty of 1909.  The Act, as originally enacted, contained no reference to bulk removal of water and no enforcement provisions. It also lacked any formal licencing provisions for projects such as dams or other structures in boundary or transboundary waters.

Amendments to the Act

The current iteration of the Act results from a series of studies, strategies, and amendments. On February 10, 1999, the federal government announced a strategy to prohibit bulk water removals. This commitment also appeared in the November 2008 Speech from the Throne. Amendments to the Act entered into force in 2001 following the adoption by Parliament of Bill C-15, an Act to amend the International Boundary Waters Treaty Act and in 2014 following the adoption – unanimously in the House of Commons and the Senate -- of Private Member’s Bill C-383, known as the Transboundary Waters Protection Act.

As a result, bulk removals are now defined in the International Boundary Waters Treaty Act as the removal of boundary or transboundary waters and the taking of that water outside the Canadian portion of a water basin. Bulk removal includes any means of diversion, for example by pipeline, canal, aqueduct or channel, or by any other means where more than 50,000 liters of water are removed per day.

The Act imposes a total prohibition on removals of boundary and transboundary waters out of their water basin because it is deemed that the cumulative effect of such removal would alter the natural level or flow of waters and lead to potential environmental degradation and exploitation of the water supply.

Boundary waters are defined as they are in the Treaty, i.e. “the waters from main shore to main shore of the lakes and rivers and connecting waterways, or the portions thereof, along which the international boundary between the United States and the Dominion of Canada passes”. Transboundary waters are waters that, in their natural channels, flow across the international boundary between Canada and the United States. The Act contains a schedule listing transboundary rivers.

Section 13 of the International Boundary Waters Treaty Act provides clarity for a more effective implementation of the Boundary Waters Treaty by prohibiting the bulk removal of boundary and transboundary waters from the water basins in which they are located.

The amendments to the International Boundary Waters Treaty Act also recognized the  process under which the federal government has, under the terms of the Boundary Waters Treaty, informally examined and approved or rejected certain projects in boundary or transboundary waters that would have the effect of altering the natural level or flow of waters on the United States’ side of the boundary. These projects have always required federal approval. The Act also recognizes the process of the International Joint Commission that applies to such projects under the Treaty.

The amendments introduced section 42 of the Act, which requires the Minister of Foreign Affairs to review sections 24 to 41 of the Act that address offences and punishments and injunctions for contraventions of the provisions of the Act, an Order made by the Minister pursuant to section 19 of the Act (related to rectifying violations of the Act), or a court order made pursuant to the Act. The Minister must undertake this review ten years after section 42 comes into force, and every ten years thereafter. The Minister must then report the findings to both houses of Parliament within one year of the review. This requirement ensures that the offences and punishment provisions continue to serve the intentions of the Act.

Role of the Minister of Foreign Affairs

While bulk water removals are prohibited, the International Boundary Waters Treaty Act contains a licencing system that provides the Minister of Foreign Affairs the authority to approve or reject other projects that could have an impact on the natural level or flow of boundary waters, water flowing from transboundary waters, or transboundary waters on the other side of the boundary. The Minister may issue, renew or modify a licence for a project under the Act, subject to any terms or conditions the Minister considers appropriate.

The Minister of Foreign Affairs may suspend or revoke a licence if there are reasonable grounds to believe that the licence holder has violated the Act or the conditions of the licence. The Minister also has the authority to order the removal of the works or obstructions and to stop the work, uses or diversions that constitute a violation. Under the enforcement provisions of the Act that provide powers for inspections to verify compliance with the Act, the Minister of Foreign Affairs has the authority to seek injunctions against a person violating the Act.

Ordinary uses of water for domestic or sanitary purposes are excluded from the licencing regime in accordance with Article III of the Boundary Waters Treaty. Such activities have traditionally been covered by provincial regulations. Other traditional uses, such as agricultural and industrial withdrawals that remain in the basin are also not covered by the licencing scheme.

Role of the International Joint Commission

As per Article III of the Boundary Waters Treaty approval from the International Joint Commission is required for proposals to construct a dam or a diversion that would affect water levels and flows across the international boundary unless that project is the subject of a special agreement between the countries. If a project is approved, the International Joint Commission may impose conditions on its design or operation to protect the interests of both countries.

Any person or corporation who wishes to use, divert, or obstruct boundary or transboundary waters must first apply to the Government within whose territorial jurisdiction the use, diversion, or obstruction is contemplated. The two federal governments will then jointly determine whether an application should be transmitted to the International Joint Commission for review and approval. A decision by the IJC does not preclude the need to apply for any other domestic permit requirements.

Offences and Punishment and Injunctions - sections 24 to 41

Sections 24 to 41 of the International Boundary Waters Treaty Act create offences as well as a strong enforcement scheme and provide the Minister of Foreign Affairs with the necessary authority and powers to enforce the prohibition on the removals of boundary and transboundary waters out of a water basin as well as to enforce the requirement for licences for other activities. The provisions of the Act are robust and intended as a deterrent to any project for bulk water removal from boundary and transboundary waters as well as to other unlawful activity. The provisions assist Canada in fulfilling its obligations under the Treaty.

Punishments for contraventions of the Act, of an order made by the Minister under the Act, or a court order under the Act include fines and/or imprisonment imposed by a court. For an individual punishment ranges from a fine of $5,000 to $300,000 and/or imprisonment of not more than six months for a first summary conviction to a fine of $30,000 to $2,000,000 and/or imprisonment for not more than five years on a second or subsequent offence on conviction by indictment. The Act also establishes other penalties; for example, for corporations may be fined between $100,000 and $4 million for a first offence on summary conviction and between $1 million and $12 million for a second or subsequent offence on conviction by indictment.

Required reporting – section 42

There has been no activity under sections 24 to 41 of the Act during the first reporting period (July 1, 2014 to June 30, 2024). Given this, the Minister has not created the registry required by s. 40 of the Act of convictions of corporations under the Act.

Government of Canada Review of Projects

Whether a project requires a licence from the Minister of Foreign Affairs or approval from the International Joint Commission is determined by an in-depth analysis of the potential for the project to impact levels and flows. Global Affairs Canada makes this determination with the support of Environment and Climate Change Canada, who provides technical support by reviewing and confirming hydraulic analyses completed by the proponents for each project.

Once the review is concluded, Global Affairs Canada confers with the United States Department of State, which undertakes its own assessment of the project. Together, Canada and the United States determine whether there will be an impact to the level or flow of water on the other side of the border.

According to the review process of the International Boundary Waters Treaty Act, the Government of Canada does not request the IJC's involvement unless an impact is determined.

Within the reporting period, which began on July 1, 2014, the Government of Canada, in close consultation and coordination with the Government of the United States, has reviewed, or continues the process of reviewing, several projects to determine if they would materially impact water levels/flows, and as such require a license under the International Boundary Waters Treaty Act:

IJC Review of Projects

Since its inception more than a century ago, the International Joint Commission has approved hydroelectric power projects in the Great Lakes, St. Lawrence River, St. Croix River and Columbia River basins.

The IJC is presently in the process of terminating its 1934 Order of Approval for the Milltown dam on the St. Croix River, after to the decommissioning of the Milltown Generating Station and removal of the dam.

Conclusion

It has been more than a decade since the amendments to the International Boundary Waters Treaty Act came into force, and the Government of Canada is more committed than ever to protect Canada’s water for the benefit of all Canadians. Through the International Boundary Waters Treaty Act and other complementary legislation, the Government of Canada will continue to protect its precious freshwater resources, consistent with Canada's international obligations.

Annex A – Definitions (s. 10 of the Act)

Boundary waters
means boundary waters as defined in the treaty.
Bulk removal
means the removal of water from boundary or transboundary waters and the taking of that water, whether it has been treated or not, outside the Canadian portion of the water basin — set out in Schedule 2 — in which the waters are located:
  1. by any means of diversion, including by pipeline, canal, tunnel, aqueduct or channel; or
  2. by any other means by which more than 50 000 L of water are taken outside the water basin per day.
Bulk removal does not include the taking of a manufactured product that contains water, including water and other beverages in bottles or other containers, outside a water basin.
Transboundary waters
means those waters that, in their natural channels, flow across the international boundary between Canada and the United States, including those set out in Schedule 3.

Annex B – S. 24-41 of the International Boundary Waters Treaty Act

See section 24-41 of the International Boundary Waters Treaty Act.

Date modified: