The Droplet: Interview: Dream Team behind the Mackenzie River Basin Agreements
The Droplet Interview with Northwest Territories Minister J. Michael Miltenberger and chief legal negotiator, Merrell-Ann Phare
On October 15, 2015, British Columbia Minister Mary Polak and Northwest Territories Minister J. Michael Miltenberger signed an agreement committing both governments to co-operatively manage water in the Mackenzie River Basin. Water Canada spoke to Minister Miltenberger and Ms. Phare about the multi-faceted legal process and what we can learn from it.
Water Canada (WC): Juggling multiple bi-lateral negotiations—each with different stakeholders and issues at play—sounds very complicated. How did you navigate this process?
Merrell-Ann Phare (MP): Do you know that game that you play at the fair where the horses that come out on one end and you shoot at them with a water gun, and you don’t know which one will reach the finish line first?
WC: Horse race?
MP: Yes. So the B.C. agreement was initiated part way through the negotiations with Alberta, because B.C. is an upstream jurisdiction to Alberta and we were having trouble moving the Alberta negotiations forward. The two jurisdictions needed to know that each were relatively onside with each other in terms of what we wanted. So we were simultaneously negotiating in three directions.
Our view was always that we wanted a basin-level agreement. We wanted consistency. As a downstream jurisdiction [because 60 per cent of Canada's freshwater drains to the north], we need all the jurisdictions approaching it the same way.
Minister Miltenberger (MM): The reason this has worked, is that this is a strong priority of the government. We have a very clear idea of what we want done. I have the file as the lead Minister. Our team, led by Merrell-Ann, has been pointing the spear. We have been communicating night and day—constantly adjusting the strategy—to try to keep all the pieces in place.
WC: How did you organize your legal team and the necessary tasks?
MM: We all have our roles. At the political level, Premier MacLeod has been a great asset, for example. He has visited the various premiers as often as we have asked him to push the politics and get everyone to the table. The team is the best water team in the business. We never take out eye off that goal.
MP: When you think of all the moving parts, probably the biggest influence was the Minister reminding us about how many days we had left in a mandate in the election period. It is really unique to politicians to think that way. We knew we had 1,432 days, then 648 days, and 235 days, and that we had to deliver otherwise new governments could come in and completely change direction.
It was a question of, ‘how do we keep this moving as fast as possible and who are the people we need to bring in to make that happen?’ No other negotiating team as far as I know had as direct linkage to the political mechanisms that we did. If things started to slow down, the Minister and Premier knew about it, and would take it up to the political level at the next available opportunity.
It becomes very iterative. You’ll have a multilateral [meeting], and then people will break up for a series of bi-laterals for six months; the facilitator keeps talking between everybody; then you come back to another multi-lateral; changes get debated, and then things eventually settle out into core concepts that everyone can agree to.
MM: We were the only jurisdiction that wanted a basin-wide approach. When Alberta first came to the table, their offer was 50 per cent of the water, and we ended up with 95 per cent of the water set aside and protected for ecosystems and the environment. Most of the other five percent will flow into the Northwest Territories, because Alberta won’t use it.
Those same tenants are in the Agreement with B.C. The agreements are about 95 per cent consistent. We have agreed about all the principle elements, and indicators and criteria we need across the Basin. We have some very important pieces built in, in terms of aquatic ecosystems, the amount of water left in the system, indicators, how we are going to deal with monitoring. At the same time, we built in a community-based monitoring system that we have been rolling out across the Northwest Territories that will allow communities to work with us to sample water. It provides a level of comfort.
WC: How have the citizens in N.W.T. responded to the the agreements?
MM: There has been considerable and consistent support since the Water Strategy eight years ago. There is a sense of comfort that we have the best agreement that we can get and it gives us a level of protection that we never had before. My political sense is that we have very strong citizen report and Aboriginal government support.
WC: What has this process demonstrated in terms of how Aboriginal governments can be included in provincial and territory government process?
MP: The Aboriginal Steering Committee is involved at the technical level. There is also the Aboriginal Council, which has water on its agenda. And there also a political mechanism to discuss water priorities government to government.
MM: 18 months ago we signed the devolution agreement with the federal government, which led [the Territory] to the set up the Intergovernmental Council. We meet a couple of times a year to discuss matters of the government. But this approach is not unique to us. Ten years ago we determined a process for working government-to-government when we were developing the Species at Risk Act, Water Strategy, and other policies. The Aboriginal Steering Committee continues to be part of the process.
The thought always has been that the world would end if the government allowed Aboriginal government to sit at the table—that the public government would be overrun with requests. We chose to disregard the legal advice that we received and to set up a working group process that has allowed us to do a whole host of things.
For example, we’re the only jurisdiction in the country that has a territory-wide resource revenue sharing arrangement where the Aboriginal governments get 25 per cent off the top of the resource revenues divided up among the governments as part of the approach.
MP: I think this process and the processes that the Minister has described demonstrate that inviting Aboriginal governments to the table is a matter of choice. It doesn’t matter how big or small the decision is. It is a matter of choice.
Ms. Phare and the Minister recently spoke on the negotiation process and key lessons from the NWT-Alberta agreement in a POLIS, Water Sustainability Project webinar: