Off course in managing transboundary rivers.

Alberta's fossil fuel reserves are not the only provincial natural resource getting a lot of national attention these days. The province's surface and ground waters are also attracting attention, albeit of a different, more critical sort. For example, the November 2005 Senate report Water in the West: Under Pressure refers to an "emerging water crisis" in western Canada, particularly Alberta. The report asks, at one point, "How much water can you take out of rivers for irrigation and other consumptive uses and still have a sustainable ecosystem?" The report also observes that "as a society we are largely forging ahead blindly when it comes to our management of water. We are in essence gambling with our most precious, but often under-appreciated natural resource."

Earlier LawNow columns and articles have focused on how these problems stem from flaws in the provincial regime for managing Alberta's waters (see Further Reading). This column focuses on still another problematic management context --the three inter-jurisdictional agreements for managing the transboundary aspects of those waters.

The oldest of these three is the 1909 Canada-US Boundary Waters Treaty which covers waters that straddle or cross the Canada-US border. In Alberta, these are the Waterton, Belly, St. Mary, and Milk River systems, which flow from Montana into Alberta. (Of these three, only the Milk flows back into Montana--draining into the Missouri and ultimately into the Gulf of Mexico.) The Treaty's principal provision essentially confirms each country's sovereign rights to use and divert water within its boundaries as it sees fit. The Treaty limits these rights in several respects, but nowhere to the extent of requiring each country to maintain "instream flow needs" of transboundary waters--i.e., the flows needed to sustain fish and the aquatic ecosystems they inhabit.

One of the Treaty's articles specifically addresses the Milk and St. Mary Rivers by providing for an "equal" apportionment of their flows between the two countries. The article also provides for the International Joint Commission (IJC), created in another article of the Treaty, to oversee implementation of this apportionment formula. The IJC has arguably done a remarkable job of resolving disputes between the US and Canada over the two countries' entitlements under the equal apportionment rule. But, again, this management focus has been on how to peacefully carve up the rivers' bounty for each country's material benefit, rather than on holding the two countries to a mutual obligation to maintain instream flow needs.

A 2006 task force report commissioned by the IJC raises environmental protection concerns in the context of making recommendations on resolving the most recent St. Mary/Milk apportionment dispute between the two countries. However, the IJC is unlikely to be able to take the lead in maintaining the instream flow needs of these Alberta rivers under the Treaty's current focus on apportioning those rivers for each country's use.

To be fair, the IJC has embraced more of an environmental protection focus in other US transboundary water and non-water contexts. The IJC is also currently advocating for a new, watershed-based approach to transboundary water management which, if adopted by Canada and the US, would likely have a considerable focus on environmental issues. However, to date the countries' reactions to this proposal have been lukewarm. And the IJC is currently promoting the approach only on a few test watersheds, which do not include the Alberta-Montana rivers.

The next oldest of the three agreements is the 1969 Master Agreement on Apportionment among the governments of Alberta, Saskatchewan, Manitoba, and Canada. This Agreement established the Prairie Provinces Water Board (PPWB) (in its current form) to manage rivers that flow eastward from Alberta to Hudson Bay. (In Alberta, these are the Beaver, which flows into the Churchill River system, and the North and South Saskatchewan River basins.) As its name implies, the Master Agreement's primary function is to apportion river flows among the three provinces. As with the Boundary Waters Treaty, the Master Agreement does not subject the provinces' apportionments to any overarching, mutual obligation to maintain instream flow needs. (The Agreement does include a flow-based limit on Alberta's apportionment whose function is uncertain but is believed to have been to ensure flows needed by Saskatchewan for navigation and pollution dilution.)

While silent on the environmental implications of water quantity, the Master Agreement does provide a co-operative framework--overseen by the PPWB--for addressing water quality, and it authorizes the PPWB to sponsor research and dialogue on broader environmental management issues, including instream flow needs. To its credit, the PPWB has periodically placed this topic on the parties' joint management agenda. But, as with the IJC, the PPWB is unlikely to be able to play a significant management role in this area given the current Master Agreement's focus on apportioning flows rather than maintaining them for ecological purposes.

The third, and youngest, of the three agreements was made in 1997 among the governments of BC, Alberta, Saskatchewan, the Northwest Territories, Yukon, and Canada, to co-operatively manage the Mackenzie River basin. Unlike the Treaty and Master Agreement on Apportionment, the Mackenzie Basin Agreement commits the parties up front to maintain the integrity of the basin's aquatic ecosystems generally and to ensure that each party's use of the basin's waters does not harm aquatic ecosystem integrity within the other parties' borders. The Mackenzie Agreement also creates the Mackenzie River Basin Board (MRBB) and gives the Board broad powers to conduct environmental research and recommend management "objectives or guidelines". However, the Agreement gives the Board no teeth to actually enforce these management tools and the Board has not proposed any objectives or guidelines for maintaining instream flow needs.

In short, both the PPWB and IJC serve flow management objectives that stem from a historic era in which the only or primary inter-jurisdictional obligation that was recognized was to divvy up transboundary flows without bloodshed. The MRBB is intended to fulfill more contemporary, environmental protection-oriented management objectives, but the Mackenzie Agreement gives this Board extremely limited powers to fulfill these objectives.

With these environmentally weak models for managing Alberta's transboundary rivers, it is no surprise that these shared resources are garnering increasing national attention. Perhaps the time has come for the jurisdictions to recognize, as a starting point for transboundary river management, their mutual obligation to maintain sufficient flows to protect aquatic biodiversity and other ecosystem values for the sake of society at large (if not also for the critters' own sake). This said, there are considerable issues as to how any such mutual obligation should be incorporated or reflected in inter-jurisdictional agreements and intra-jurisdictional management frameworks.

Further Reading

Kwasniak, Arlene J. (2004). "Water Scarcity and Bursting Out of the Box." LawNow 28(6), 11-12.

Wenig, Michael M. (2006). "The 'Sleeping Giant' of Watershed Protection." LawNow 30(5), 40-41.

Wenig, Michael M. (2006). "Who's Minding the Water in Southern Alberta?" LawNow 30(3), 47.

Wenig, Michael M. (2004). "Thinking like a Watershed." LawNow 28(6), 13-15.

Wenig, Michael M. (2003). "Water for Oil--How much of a trade off makes sense?" LawNow 27(6), 39.

Michael M. Wenig is a Research Associate with the Canadian Institute of Resources Law and an Adjunct Professor with the Faculty of Law at the University of Calgary in Calgary, Alberta. Michael S. Quinn is a Professor with the Faculty of Environmental Design at the University of Calgary.