A River Runs Across It: Solving Trans-border Disputes Over Water

People get very passionate about both water and borders. So how do we avoid or resolve disputes involving rivers and lakes that cross the border between Canada and the United States?

At almost nine thousand kilometers, our border with our closest neighbour is the longest unprotected political border between two sovereign nations on Earth. The southern section of the border roughly follows the forty-ninth parallel while the northern section, between Alaska and the Yukon, mostly follows the one hundred forty-first meridian west. In places, like the St. Lawrence River and the Great Lakes, water forms the border. In hundreds of other places water flows across the border, sometimes from Canada to the United States, sometimes the reverse. Occasionally, as is the case for the Milk and St. Mary’s rivers in southern Alberta, streams cross the border in one direction then turn and cross again in the other direction.

With such a long border and with water being so important to human health, to wildlife and to the economies of both countries, disputes are inevitable. Harm could be potentially be caused by direct pollution, inadequate water treatment, poor industrial practices, poor forestry practices, side effects of building infrastructure, such as increased sedimentation from building roads for forestry, mining and oil exploration, stream diversion for irrigation, raising or lowering the natural water levels of streams or damage to upstream fish habitat, especially in spawning areas.

How do we avoid or settle disputes? The answer, as always in environmental law, is complicated. Several international agreements play a role and there is a movement toward more local methods.

In the modern world, there is a movement toward more citizen consultation and participation and to many decisions being made at a more local or watershed level. Some of this shift comes about as a result of the higher levels of government downloading responsibilities to more local levels. The first international document is the draft “UN Convention on the Law of the Non-Navigable Uses of International Watercourses” (here) which calls for ‘equitable and reasonable utilization’ of transboundary waters. This Convention could play a role in defining the obligations of Canada or the United States if it were held to have become part of customary international law, even though neither country has signed on to it. International environmental law works differently than domestic law. It is a world of norms, customs and “moral suasion”. So if most of the world is following something they accept as a rule, there will be pressure put on other countries to follow the same rule, whether or not they have formally signed an agreement.

The second international agreement which might be used to solve cross-border disputes is the North American Free Trade Agreement (“NAFTA”), a tri-lateral trade agreement between Canada, the United States and Mexico which came into force in 1994 (here). The Preamble to the NAFTA states that the three signatory governments will carry out the agreement “in a manner consistent with environmental protection and conservation” and to “promote sustainable development”. The NAFTA contains extensive and elaborate dispute settlement provisions, providing for panels of experts to rule on certain trade disputes. A panel may ask for input from a scientific review board in in environmental cases. However, since the NAFTA is a trade agreement, environmental issues would only be considered in the context of a trade dispute. It is not an agreement that could be used on its own to protect the environment or to deal with transboundary environmental issues if there were no connection to trade.

The third possible international mechanism to deal with transboundary water disputes comes through the adversarial processes made possible under a side-treaty to the NAFTA called the North American Agreement on Environmental Cooperation (“NAAEC”). The Commission for Environmental Cooperation is established by the NAAEC. (see the Commission’s website at www.cec.org). One of the most powerful features of the NAAEC is its mechanism which allows citizens to make submissions against their home government for failing to effectively enforce its own environmental laws. The proceedings which have been brought against Canada are listed on the Commission’s website above under “Submissions on Enforcement Matters”. The NAAEC could be a powerful tool to force compliance with either country’s environmental laws. Many of the proceedings deal with enforcement of legislation that could apply to interjurisdictional waters, including the Fisheries Act, the Canadian Environmental Protection Act, the Canadian Environmental Assessment Act and the regulation ratifying the Convention on Biological Diversity signed at the Rio Earth Summit on June 11, 1992. Two of the matters out of approximately thirty listed on the Commission’s website alleged improper enforcement of the anti-pollution provisions of the Boundary Waters Treaty and the International Boundary Waters Treaty Act, discussed below. Neither proceeding went to completion. Unfortunately, groups wanting to run a proceeding before the Commission are faced with the same costs and complications as they would in a court.

International environmental law works differently than domestic law. It is a world of norms, customs and “moral suasion”.  The fourth possible mechanism for avoiding or resolving disputes comes through the work of the International Joint Commission established under the Boundary Waters Treaty (here), which was signed into force by the United States and Canada in 1909. The enabling legislation for the Boundary Waters Treaty in Canada is the International Boundary Treaties Act. (here). There are few, if any, examples of international organizations created by treaty with the longevity of the International Joint Commission or treaties with the successful lifespan of the Boundary Waters Treaty. Direct applications to the Commission are always made by one of the federal governments but can be prompted by a request from a project proponent and preceded by negotiations. In many cases the Commission establishes an expert group which examines the science around the matter in question and agrees upon common facts. The Commission solicits the views of the public on the findings of the expert group and then provides non-binding recommendations in reports submitted to the two governments and to the public. These reports are included among the almost seven-hundred publications listed on the Commission’s website. The Commission has broad powers to establish boards, workgroups and taskforces responsible for a wide variety of practical, on the ground matters such as measurement of water flows, developing adaptive management plans, monitoring and management of matters under various agreements, and supervision of dams.

At almost nine thousand kilometers, our border with our closest neighbour is the longest unprotected political border between two sovereign nations on Earth. The mechanisms mentioned above all operate at the national level. The Boundary Waters Treaty was entered in an era where the norm was that negotiations and planning were done nation to nation and only at the federal level. In the modern world, there is a movement toward more citizen consultation and participation and to many decisions being made at a more local or watershed level. Some of this shift comes about as a result of the higher levels of government downloading responsibilities to more local levels. The approach is one where water resource management is integrated with management of the landscape as a whole, including management of source water, drinking water, flood control, wildlife management and recreational area management. In addition to political boundaries, it operates across social, cultural, linguistic and hydrologic boundaries. (The observations in this paragraph are not mine, they come from “Rise of the Local? Delegation and Devolution in Transboundary Water Governance” by Emma Norman and Karen Bakker, in Water Without Borders? : Canada, The United States, and Shared Waters edited by Emma Norman, Alice Cohen and Karen Bakker, available here).

Drs. Norman and Bakker ask us to think about what conditions are necessary to make local level decision making work. If those conditions are not present, local decision making may not automatically be more effective decision making. Local participant groups may face very real practical and political barriers to achieving full participation in decision making processes – barriers such as a lack of funding, difficulty travelling to hearings and different processes on either side of the border.

We don’t need the same process in every case. Resolving cross border issues concerning the Great Lakes is fundamentally different than resolving an issue involving a small mountain stream in southern British Columbia. Our goal should be to have the negotiation done at the level that results in the best decision after a fair, transparent, inclusive process with the decision maker or negotiators being provided with the accurate information they need, when they need it. Local interests and knowledge should almost always be considered in all cases, regardless of the level of decision making. When aboriginal rights and title of Canada’s native people are involved, this is a constitutional requirement.

Things are going to get harder. Climate change will bring water shortages, perhaps catastrophic water shortages, to large areas of the United States. It will bring reduced glacial runoff in the mountains of Canada into the rivers that cross the border. It will bring changed weather patterns that could alter river flows in both directions. It will bring increased appetite for Canadian water in the United States, just as there may be less of it to go around. Change and uncertainty will bring increased opportunity for conflict. Nobody said the future was going to be easy.

Authors:

Jeff Surtees
Jeff Surtees

Jeff Surtees B.Comm., JD is the Executive Director of the Centre for Public Legal Education Alberta and is a Graduate Student in the University of Calgary’s Natural Resources, Environmental and Energy Law program.

 


A Publication of CPLEA