U.S.-Canada water disputes appear likely to keep flowing

Recent disputes over U.S.-Canadian trans-boundary water resources point towards increased unilateralism after decades of adherence to a cooperative framework. The trend towards state-provincial agreements at the expense of coordination between Ottawa and Washington has implications for industry, development, conflict resolution and sustainable water management.

An extensive cooperative framework has evolved to deal with waters shared between Canada and the United States. This includes the International Joint Commission (IJC), the bi-national panel created to mediate conflicts under the Boundary Waters Treaty (BWT) — the international agreement governing cooperation over shared watercourses between Canada and the United States. However, the adequacy of the IJC and the commitment of both nations to the treaty are increasingly questioned, particularly given two recent controversies, namely:

•polluted exports from North Dakota’s Devil’s Lake to Canada; and

•the management of the Great Lakes under the so-called Annex to the Charter of Great Lakes Governors.
These disputes, and the impact they have on water management, could affect economic growth and environmental protection on both sides of the border.

Devil’s Lake tussle.

The dumping of heavily polluted waters by the state of North Dakota from Devil’s Lake into Manitoba’s Red River system, via a pipeline constructed in the summer of 2005, has created a growing bilateral flap. The move violated Article IV of the Boundary Waters Treaty (BWT), which mandates “waters flowing across the boundary shall not be polluted on either side to the injury of health or property on the other side.” After pressure from Manitoba’s provincial government, the Canadian government asked Washington to join it in referring the Devil’s Lake case to the IJC — by convention, only joint referrals to the IJC are accepted for adjudication by the Commission.

However, Washington has not yet acted to help resolve the dispute. An earlier request to the Canadian government by North Dakota to refer the issue to the IJC was turned down. In allowing North Dakota to proceed with its dumping, the case of Devil’s Lake may set a precedent for unilateral action on trans-boundary waters. Without federal guidance, states and provinces may simply act in their own narrow economic interests — without regard to the wider effects of their actions on large watersheds that spill over the international boundary.

Great Lakes water negotiations.

Triggered in part by concern over proposals to export water from the Great Lakes Basin, the Council of Great Lakes Governors (which includes representatives from Wisconsin, Illinois, Indiana, Michigan, Minnesota, Pennsylvania, New York, Ohio, Quebec and Ontario) initiated negotiations regarding principles for reviewing water withdrawals, concluding in the Great Lakes-St. Lawrence River Basin Sustainable Water Resources Agreement (the 2001 Annex to the Great Lakes Charter).

The provinces of Ontario and Quebec are signatories, and led Canadian interventions in the negotiations, despite federal responsibility for boundary waters under the BWT. The provinces have been forced to take the lead, in the absence of federal leadership, which has inhibited a more comprehensive approach to trans-border water disputes.

State and provincial leadership.

Yet state and provincial authorities have not been up to the task of managing border water issues effectively:

•Canadian dilemmas. On the Canadian side of the border, federal reticence to take up the full extent of its responsibilities and powers on trans-boundary waters is due to the ongoing turf war between federal and provincial politicians over water resources:

For example, in the case of the debate over “bulk water exports” (exporting water to the neighboring country for profit) in the late 1990s, the then-federal environment minister argued that it was beyond Ottawa’s jurisdiction to make decisions about provincial resources — although provinces had repeatedly referred questions over bulk water exports to the federal government’s jurisdiction over international trade.

Federal reticence was also was evident during the recent debate over “Annex 2001” proposals for a new governance regime allowing bulk water exports by U.S. states bordering the Great Lakes. Both Canadian and U.S. interventions were led largely by provincial and state rather than federal governments.

•U.S. federal inaction. On the U.S. side of the border, factors include the relative decline in the U.S.-Canadian relationship (although this has reversed slightly under Prime Minister Stephen Harper), the commitment of the administration of President George Bush to states’ rights and increasing U.S. unilateralism on a number of issues (such as softwood lumber). This may have repercussions for specific water supply projects.

For example, Congress in 2000 amended the Garrison Reformulation Act to allow the proposed North Dakota Garrison Diversion (also known as the Red River Supply Project), removing the previous requirement for consultations with Canada. This move, and a lack of remedial action by the Bush administration, helped create the current dispute over Red River pollution.

Alternative leadership?

State and provincial authorities have over the past decade taken the lead on trans-boundary environmental issues, including water disputes, and this trend is likely to continue:

•The Environmental Cooperation Council (ECC) established by the governments of British Columbia and Washington state (under which international task forces are set up to deal with specific environmental issues) is one such example.

•ECC-mandated governance bodies have taken the lead on many trans-boundary water issues, such as the Abbotsford-Sumas Aquifer.

Similarly, provinces, states, and local non-governmental organizations (particularly the Columbia Basin Trust) have taken the lead on the preparatory process leading up to the reopening of the Columbia River Treaty for renegotiation. The treaty facilitates power generation, flood control and energy-sharing in the U.S. Pacific Northwest and parts of western Canada. Through the provision of cheap hydroelectric energy, it has greatly assisted the development of industry and agriculture in this vast region.

Oxford Analytica is an international consulting firm providing strategic analysis on world events for business and government leaders. See www.oxan.com.