Weaving Ties with Canada
Lessons from Northwest Territories’ new Transboundary Water Agreements and our Critical Relationships with Indigenous
Governments
Merrell-Ann S. Phare J. Michael Miltenberger
The University of Tsukuba, Japan
January 12, 2016
Our Presentation
Four Parts:
Part 1: Who and where are we?
What have we done?
Part 2: Transboundary Water Agreements
Part 3: Indigenous Government
Relationships
Part 4: Lessons learned
Fort Smith NWT
Winnipeg, Manitoba
MACKENZIE RIVER BASIN
Water flows north…
Large deep lakes…
Great Bear Lake
Great Slave Lake
Compare the Numbers
Size (million km2)
0 2 4 6 8 10 12
Canada
Bangladesh
Ghana
Kyrgyz Republic
Myanmar
Mongolia
Sri Lanka
Vietnam
0 2 4 6 8 10 12
Canada
Bangladesh
Ghana
Kyrgyz Republic
Myanmar
Mongolia
Sri Lanka
Vietnam
Northwest Territories
Mackenzie River Basin
0 10 20 30 40 50 60 70 80 90 100 110 120 130 140 150 160 170
Canada
Bangladesh
Ghana
Kyrgyz Republic
Myanmar
Mongolia
Sri Lanka
Vietnam
Northwest Territories
Mackenzie River Basin
Area (million km2)
Population (millions)
Compare the Numbers
Governance in Canada
Federalism Federal
Provincial
Territorial
Indigenous
Federal Provincial shared
Territorial
Indigenous
Devolution April 1, 2014
Indigenous Rights
There are two treaties (#8 and #11) that cover parts of NWT
Many Aboriginal Governments
Metis, Akaitcho, Sahtu, Inuvialuit, Gwichin, Dehcho, Tlicho
The Sahtu, Inuvialuit, Gwichin, Tlicho have land claims agreements
The Sahtu has a self-government agreement with more to follow
Dehcho, Metis, Akaitcho are negotiating land claims
Aboriginal governments in other provinces assert rights in the NWT
North of the 60th Parallel: a very
different culture
Political system differences
Independence of jurisdictions
Approach to scale and pace of development
Challenges NWT faces
Downstream of major energy developments
Small tax base to build government
Vast distances between cities and towns
Few roads (fly in or winter road access)
Resource based economy (diamond mining, oil and gas)
Complex governance
Not fully devolved
Accelerated climate impacts
Climate Change Impacts in NWT
• Thawing permafrost: • Damage to
infrastructure such as roads, buildings, runways, water, and sewer systems
• Slumping along river valleys, increased sediments in rivers and decreased fish habitat
• Water resources, forests and wildlife habitat
• Black line is moving north very fast
Climate Change Impacts in NWT
• Warmer weather, changing amounts, and timing, of rain and snow: • Changes in storm frequency, permafrost melt and storm surge increased
coastal erosion
• Failure in buildings not designed for new climatic conditions
• Impacting infrastructure operations and maintenance
• Changes in lightning occurrences creates more numerous fire events and
more severe individual fires
• Changing water levels are impacting barging and ferry operations
• Freeze-up delay in the fall and early break-up in the spring: • Decreased ability to hunt, trap and fish
• Impacts on traditional knowledge
• Shorter winter road season
• Invasive species of plants and animals moving north into the NWT
• Catastrophic loss of caribou, polar bears and other wildlife
Part 2: The Water Agreements
NWT – Alberta
March 2015
NWT – British Columbia
October 2015
Backstory: The Timeline 1992-2007
2000: NT-YT Transboundary Agreement signed
1997: Mackenzie River Basin Transboundary Waters Master Agreement signed
17
1992: Rio Summit
NWT-Alberta Border
Watersheds
NWT-BC Border
Watersheds
NWT-SK Border
Watersheds
NWT-Yukon Border
Watersheds
NWT-Nunavut Border
Watersheds
Water Agreements Required by
MRB Master Agreement
Backstory: The Timeline 1992-2007
2000: NT-YT Transboundary Agreement signed
1997: Mackenzie River Basin Transboundary Waters Master Agreement signed
Feb 2007: NT-AB MOU signed
2006-2008: Numerous Aboriginal water gatherings in NWT
19
1992: Rio Summit
March 2007: Members of the 15th Legislative Assembly pass a motion for the basic human right to water.
2008- 2010: NWT Water Strategy
2011: Action Plan released
Aquatic Ecosystem Protection
20
Aquatic Ecosystem Elements
Surface and Groundwater Quality
Maintain natural variability
Baseline is current
Set objectives (standards) if move outside variability
There are triggers before that point
Eliminating ‘nasties’ to below level of detection
Surface Water
Quantity
Ecosystem needs first
90% for ecosystem
Equally share remaining 10%
Specific provisions for key rivers
Interbasin transfer restrictions
Groundwater Protection
Equitable sharing after
assessment of a number
of factors from
international law
Factors include
population equity,
aquifer sustainability
and surface and
groundwater
interactions
Risk Informed Management (RIM) approach
Information-sharing
Prior notification
Consultation
Conflict Resolution
Traditional Knowledge
Interjurisdictional Cooperation: Bilateral
Management Committee (BMC)
25
BMC and Decision-Making
BMC is COOPERATIVE
Decisions
Some are joint:
‘bilateral’
Some are unilateral:
‘jurisdictional’
Agreement is binding but
not a contract
BMC is NESTED
BMC is:
one of a number of
institutions in river
basin that must
communicate with
each other
Decisions happen within
each level
26
BMC has Indigenous Government Representation
Constitution Act 1982, Section 35
Part 3: Indigenous Peoples and the GNWT
Indigenous Peoples
Indian
Also referred to as First Nations
Over 630 governments across Canada
Numerous treaties, land claims, and self-government agreements
Inuit Very northern peoples
Have completed land claim in NWT and comprise main government in Nunavut
Métis
Descendants of settlers and First Nations all across Canada
Unresolved land claims
Land Claims in the North
Duty to Consult
S.35 and common law duty of Crown to consult with
Indigenous peoples before making decisions that
might impact their rights
It’s positive, but there are problems:
When, “How early?”
What, “On everything?
How, “Long and expensive process!”
Outcome, “What if we disagree?”
It’s a power issue…
United Nations Declaration on
the Rights of Indigenous Peoples
UNDRIP recognizes the duty of countries to secure Free Prior Informed Consent from indigenous peoples:
Before “adopting and implementing legislative or administrative measures;” and
“prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.”
A Modern Approach
Collaborative Consent
Acknowledges Indigenous governments
Early as possible and constant ongoing collaboration
All matters of common interest
Focused on reconciliation and achieving each other’s consent
Exclude Until Necessary
Colonial approach: s.35 is the only option, and only for some groups, and only at some tables
Rights based (exclude until rights are proven)
‘Indigenous’ matters only
Focused on maintaining power and minimizing liability
VS.
Examples of Collaborative Consent
Practical Application:
Legal Agreements (land claims, SGAs)
Intergovernmental Agreements (MOUs)
Policy development: WSS
Legislative Development: WA
Negotiations: BWMA and TDN
Sector specific: FMAs
Revenue Sharing: Territory wide resource revenue sharing
Part 4: Key Lessons Learned
The clock never stops….
POLICY BUREAUCRATIC
TIME
and each clock moves at a very different speed….
POLITICAL
Achieve Political Priorities
36
Must embrace the politics and use them as a source of support for environmental sustainability and protection
Direct connections to political structure (Cabinet)
Intense focus by politicians (Ministers)
Time-bound reporting on progress to Cabinet
Cabinet direction on key issues
Flexible initial mandate, continuing refinement through check-ins
Move out of day to day operations of bureaucracy
Indigenous politics and recognition of their rights and roles in governance is critical to ensuring strong environmental outcomes
Choose Collaborative Consent Approach
Building support
Finding agreement
Achieving consent
Choose Interests-based Negotiations
Table the first documents
Drive every agenda
Be (more) prepared
Be (more) nimble
Use all levers
Budgetary priority
Principles:
why we care
about things
Interests:
what we care
about
Options:
how we protect
what we care
about
Agreement:
what both
parties commit
to do to
protect what
we care about
Build the Best Team
Build External
Support
Expert Advisors
NGOs
Funders
Build internal strength Politicians are part of the
‘team’
Use an external negotiator
Science and TK
Legal
Indigenous
Use an independent facilitator
Embrace Complexity
Simultaneous process
Multilateral process
Federal involvement
Indigenous s. 35 consultation
Science is not Enough
Knowledge systems must collaborate
Traditional Knowledge
o Improved ecological decision-making
o Key monitoring function
o Cultural partnerships
Must be communicated effectively to political arena
Build a River Basin Approach
Mackenzie River Basin
GNWT
Intergovernmental
Council
Aboriginal Steering
Committee
Devolution
Agreement
Water Strategy
MRB Master Agreement
Mackenzie River Basin Board
MRB NWT-BC BWMA
Bilateral Mgmt Committee
Mackenzie River Basin
1 AG per Prov/Terr
1 AG per Prov/Terr
43
Unexpected Outcome
Through water agreement, we have created clarity
on scope of energy/resource development
Addressing NWT interests aided Indigenous
governments in other jurisdictions
Advantageous role of downstream government
44
The Most Important Thing…
It starts with politicians agreeing on what they are wanting to build as a relationship and maintaining that commitment throughout
Collaborative consent is a very long term commitment
An agreement is not an event, it’s a process
It is incremental and iterative
And it is a step leading to reconciliation
45
Reconciliation
Equity • Ecosystem and humans
• Small and large jurisdictions
• Upstream downstream
• Aboriginal and non-Aboriginal
• Present and future
Social contract • Business, government,
Aboriginal
• This process builds social contract, one agreement at a time
