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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
Transcript

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


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