Transboundary Water Agreements
In this section
The Northwest Territories (NWT) is the ultimate downstream jurisdiction in the Mackenzie River Basin. NWT waters can be impacted by management decisions in the upper basin, which includes British Columbia, Alberta, Saskatchewan and the Yukon Territory.
The negotiation and implementation of bilateral water management agreements (bilateral agreements) with upstream jurisdictions is necessary to ensure we can achieve our vision that the waters of the NWT remain clean, abundant and productive for all time. Northern Voices, Northern Waters: NWT Water Stewardship Strategy (the Water Strategy), released in May 2010, was developed with extensive Indigenous and public input and considers diverse environmental, cultural, social and economic interests. The Water Strategy helps to guide future water-related management actions in the NWT, including transboundary water discussions and negotiations and includes the Water Strategy's visions, goals and 'keys to success'.
Discussions on the need negotiating bilateral agreements on transboundary water management began as early as 1970s when a number large oil and gas, forestry/pulp and paper and hydroelectric projects in the Mackenzie River Basin were believed to potentially affect waters of neighbouring jurisdictions.
In 1997, the Governments of Alberta, Saskatchewan, British Columbia, Yukon Territory, the NWT and Canada signed the Mackenzie River Basin Transboundary Waters Master Agreement (the Master Agreement). This agreement commits all six governments to work towards cooperatively managing the water and aquatic ecosystems of the entire Mackenzie River Basin and made provisions for the parties to develop bilateral water management agreements.
The Master Agreement commits the signatory jurisdictions to the following principles:
- Manage the water resources in a manner consistent with the maintenance of the ecological integrity of the aquatic ecosystem.
- Manage the use of the water resources in a sustainable manner for present and future generations.
- Allow each Party to the agreement to use or manage the use of water resources within its jurisdiction, provided such use does not unreasonably harm the ecological integrity in any other jurisdiction.
- Provide for early and effective consultation, notification and sharing of information on developments and activities that might affect the ecological integrity of the aquatic ecosystem in another jurisdiction.
- Resolve issues in a cooperative and harmonious manner.
The Master Agreement established the Mackenzie River Basin Board (MRBB) to encourge the assessment of water issues and promote sustainable water resource use and management. The MRBB assists transboundary jurisdictions deal with concerns in the Basin in a cooperative manner.
A bilateral agreement is an arrangement between two parties.
Guidance on bilateral agreement development was provided to all Mackenzie River Basin jurisdictions by the Mackenzie River Basin Board in 2009. This guidance included recommended content and schedule for negotiations.
All Mackenzie River Basin jurisdictions will negotiate or are in the process of negotiating bilateral water agreements for each shared border. To date, the NWT and Yukon Territory concluded a bilateral water management agreement. It was signed in 2002. The agreement, however, needs to be revised and updated. On March 18, 2015, NWT and Alberta signed a bilateral water management agreement. Implementation has begun. On October 15, 2015, NWT and British Columbia signed a bilateral water management agreement and implementation has begun. NWT plans to negotiate bilateral water management agreements with Saskatchewan and Nunavut.
Cooperation with neighbouring jurisdictions is important for addressing transboundary concerns related to water management and ensuring the sustainability of our environment.
It is beneficial to establish agreements between jurisdictions so that, as a downstream jurisdiction, the NWT can be informed of development activity upstream. Also, a bilateral agreement will help ensure water and aquatic ecosystems within the Mackenzie River Basin are managed cooperatively, in a way that maintains healthy and diverse ecosystems. A common and agreed-to set of conditions regarding water quality, water quantity, fish and other aquatic life and monitoring will demonstrate how jurisdictional interests can be achieved.
Interest-based negotiations are a negotiating strategy where both sides start by sharing their interests, and then work towards an agreement that satisfies common interests and balances opposing interests. Through this process the interests of both parties are identified and the parties work together to agree on options that meet those interests.
NWT defined its negotiation principles and its preliminary interests based on the Mackenzie River Basin Transboundary Waters Master Agreement (1997), the Water Strategy, the treaties, the asserted rights of those without settled land claims and the Gwich’in, Sahtu, and Tlicho Comprehensive Land Claims Agreements whereby “…waters which are on or flow through or are adjacent to [Gwich’in, Sahtu, Tlicho] lands remain substantially unaltered as to quality, quantity and rate of flow”.
NWT and other jurisdictions developed and discussed options for what they want their agreements to do and how decisions will be made under the agreements. NWT preferred options have been developed to meet NWT interests and NWT negotiation principles. Agreed-upon options are, or will, be set out in our final bilateral water management agreements between Alberta-NWT, British Columbia-NWT, Saskatchewan-NWT and Yukon Territory-NWT.
Three bilateral agreements have been signed to date. In 2002, the Government of the Northwest Territories and the Yukon Government concluded the first bilateral agreement.
The Government of the Northwest Territories and the Government of Alberta signed the NWT-Alberta Mackenzie River Basin Bilateral Water Management Agreement on March 18, 2015. One of the most comprehensive agreements of its kind, it marked the conclusion of a second bilateral water agreement. In November 2017, the bilateral committee responsible for implementing the Agreement released Working Together to Manage Our Shared Waters, its inaugural annual report (along with the executive summaries in English and French).
On October 15, 2015, the Government of British Columbia and the Government of the Northwest Territories signed the NWT-British Columbia Mackenzie River Basin Bilateral Water Management Agreement, marking the conclusion of a third comprehensive bilateral water agreement in the Mackenzie River Basin. Implementation of the Agreement has begun.
Engagement on water issues started with the development of the Water Strategy and Action Plan. A key driver for development of the Water Strategy was to establish the mandate for the transboundary water negotiations.
Indigenous and public engagement on bilateral water management agreements began in March 2012 with a letter from the Department of Environment and Natural Resources (ENR) to regional Indigenous leadership inviting comments and input on NWT negotiation principles and interests. A similar letter was sent to a broad public distribution list including all stakeholders in water management.
Public engagement and formal Aboriginal consultation on development of negotiation positions for the NWT-Alberta agreement has been ongoing since August 2012.
Consultation requirements as a result of Section 35 of the Constitution Act and the Gwich’in, Sahtu, and Tlicho land claims agreements create the obligation of the GNWT to consult on the formulation of government positions on the management of water in a shared drainage basin before negotiating an agreement. Building on this process, in March 2014, ENR began consulting on development of negotiation positions for bilateral water management agreements with British Columbia, Saskatchewan, and Yukon Territory.
Indigenous government and public input on NWT negotiation principles, interests, and preferred options will ensure concerns and interests of NWT residents on transboundary water issues are accurately reflected in bilateral water management agreements.
Aboriginal government consultation and public engagement on the NWT-British Columbia Intentions Document and the NWT-Alberta Intentions Document took place between August 2014 and January 2015.
Further public engagement and Aboriginal government consultation will occur once Transboundary Water Agreement Intentions Documents have been drafted for NWT agreements with Saskatchewan and Yukon Territory. These Intentions Documents will highlight the main commitments that would be part of final agreements.
The members of the NWT negotiation team are:
- Erin Kelly, Chief Negotiator
- Robert Jenkins, Lead Negotiator and Technical Advisor
- Shannon Cumming, NWT and Aboriginal Affairs Advisor
- Meghan Beveridge, Negotiations Coordinator
- Andrea Czarnecki, Water Quality Specialist
- Derek Faria, Water Quantity Specialist
- Annie Levasseur, Technical Coordinator
As of April 1, 2014, in accordance with the Northwest Territories Land and Resources Devolution Agreement, Indigenous and Northern Affairs Canada (INAC) is no longer part of the transboundary water negotiations process.
The transboundary water agreements with Alberta and other upstream Mackenzie River Basin Jurisdictions relates to seven action items under the NWT Water Stewardship Action Plan:
- Identify commitments and obligations in legislation and agreements related to transboundary waters.
- Collect and share all background information in support of negotiations and develop a common report for all relevant jurisdictions.
- Determine transboundary negotiating team and support processes, including Aboriginal participation and engagement.
- Develop NWT interests, mandates and options to inform transboundary negotiations in partnership with Aboriginal governments.
- Sign transboundary agreement with Alberta.
- Advance bilateral agreements with all Mackenzie River Basin jurisdictions.
- Provide updates on transboundary discussions, negotiations, obligations and implementation of agreements to NWT partners and the public.