Off course in managing transboundary rivers.

• Author: Wenig, Michael M.
• Position: Environmental Law

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...