Cross-border water treaties require ongoing attention

OpinionBy: Norman Brandson
Posted: 11/23/2019 3:00 AM | 

The United States Bureau of Reclamation issued a public notice in September initiating an exercise to define the scope of an environmental impact statement for a project called the Eastern North Dakota Alternate Water Supply Project (ENDAWS).

On Oct. 16, the Garrison Diversion Conservancy District and the Lake Agassiz Water Authority convened a conference in Fargo to fan enthusiasm for the construction of a $1.19-billion pipeline to deliver Missouri River water to Fargo North Dakota. Construction is slated to begin next spring.

ENDAWS and the pipeline are not separate projects, but the two halves of the Red River Valley Water Supply project (RRVWS), a slimmed-down version the defunct Garrison Diversion. In fact, ENDAWS proposes to use already constructed features of Garrison to deliver Missouri River water to the pipeline, discharging into the Sheyenne River, which meets the Red River downstream of Fargo.

Garrison went into hibernation after the International Joint Commission — the bi-national administrative body of the Canada/U.S. Boundary Waters Treaty consisting of six commissioners (three from each country) — recommended in 1976 that the project not proceed because of the risk of transferring harmful invasive organisms from the Missouri to the Hudson Bay drainage.

It is a measure of the prominence of the treaty and the professionalism of the commission in those days that the national governments had sufficient confidence in the commission’s objectivity and wisdom to ask for its advice; that they were able to reach consensus on such a contentious issue; and that both governments accepted their recommendations without reservation.

The commission also recommended that transfer of water from the Missouri to the Hudson Bay basin could take place "if and when the governments of Canada and the United States agree that methods have been proven that will eliminate the risk of biota transfer, or if the question of biota transfer is agreed to be no longer a matter of concern." To date, neither of these conditions has been met.

The RRVWS differs from the original Garrison proposal in scale and declared purpose (an alternative water supply for eastern North Dakota in times of severe drought), but poses many of the same risks. And these risks will be constant — it is inconceivable that a multibillion-dollar project will sit idle for years at a time. Uses will be found for this water when no drought exists. The tap will be permanently open.

In recent years, the treaty has faded into insignificance in the power corridors of Ottawa. The Harper government, perhaps sensing — incorrectly — a faint anti-development aroma, ignored the treaty. They were content to have the commission promote good feelings under the Great Lakes Water Quality Agreement, a Canada/U.S. pact negotiated and operated outside of the treaty.

During its first term, the current government, having expended all of its diplomatic capital on renegotiating the Free Trade Agreement, was content to let British Columbia steer the renegotiation of the Columbia River Treaty. Canada also studiously ignored a proven pollution threat to Montana and Idaho originating in B.C., and dismissed ongoing grumbling from Alaska about mining activities in B.C. Nor did it appear interested in the looming reality of the RRVWS project.

When certain political vectors align in Washington, free trade agreements can go "poof." There are elements in the U.S. state department that would be quite happy to see the treaty disappear, or at least fall into disuse. After all, in bilateral diplomacy with our American neighbours, the treaty is a unique example where we sit at the table as co-operating equals. The treaty binds commissioners to apply their expertise and knowledge, but to not represent "interests." This is quite unlike the power negotiating that takes place on other issues such as free trade.

There are many lakes straddling the international boundary, and about as many rivers flowing south across it as flow north. The treaty has largely disarmed the potential for harmful disputes and cross-border tension. Both countries have benefited enormously from their co-operative management of shared waters.

Perhaps now that free trade is (almost) in the rearview mirror, Canada can turn its attention to re-energizing the Boundary Waters Treaty. Job one is to demonstrate the value of the treaty to our U.S. colleagues. Job two is to ensure that the principles of the treaty are consistently applied; that no actions on shared lakes and rivers with potential to harm the neighbouring country escape the purview of the treaty.

We can start by promoting the involvement of the commission at an early stage when projects have trans-boundary implications. The commission does not make crazy recommendations; if Alaska alleges harm originating in a B.C. mine, it is not up to B.C. to decide whether or not this ought to be reviewed under the treaty.

If such an allegation is unfounded, the commission will quickly determine so. What better stamp of approval than the imprimatur of the commission? Canada needs to get seriously involved in the Columbia River Treaty negotiations. The U.S. state department is. Also, start taking an interest in the RRVWS project, as there are several unanswered questions related to the degree of protection necessary to safeguard Manitoba waters.

The risk potential is significantly higher than was the case of the Northwest Area Water Supply project (NAWS). Manitoba spent 15 years in U.S. courts, not to stop that project, but to successfully affirm that Canadian concerns had to be taken into account. Had NAWS been reviewed under the treaty, an outcome beneficial to both countries would have been reached years earlier and millions of dollars would have been saved.

And what of Manitoba? It is, of course, unthinkable that our government is sitting on its haunches while pipe is about to be laid that will join the Missouri and Red rivers.

We must assume that provincial officials are in contact with our department of foreign affairs, urging immediate and forceful federal involvement, and also in communication with the Bureau of Reclamation to determine how to relate to its review process.

Hopefully, they will reveal their strategy to us soon.

Norman Brandson was deputy minister of the former Manitoba departments of environment, water stewardship and conservation from 1990 to 2006.

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