Manitoba's Collusion with Canada in Water Project Set Bad Precedent

By Brandson, Norman | Winnipeg Free Press, September 7, 2017 | Go to article overview

Manitoba's Collusion with Canada in Water Project Set Bad Precedent


Brandson, Norman, Winnipeg Free Press


A recent United States District Court decision marks another chapter in the saga of Manitoba’s long battle over the Northwest Area Water Supply Project (NAWS), a proposal to divert water from the Missouri River drainage basin to the Hudson Bay basin, supplying water to communities in northwestern North Dakota.

The genesis of Manitoba’s opposition to NAWS is contained in the 1977 report of the International Joint Commission (IJC) on the implications to Canada of the proposed Garrison diversion project, an earlier attempt to divert Missouri water northward.

The commission, based on the risk of harmful biota transfer into Canadian waters — the Missouri and Hudson Bay watersheds having been separated for many thousands of years — recommended that no such diversion occur unless “the Governments of Canada and the United States agree that methods have been proven that will eliminate the risk of biota transfer, or if the question of biota transfer is agreed to be no longer a matter of concern…” and that should the two countries so agree, any subsequent project still would have to meet a number of conditions aimed at minimizing the risk of biota transfer. Both governments accepted the commission’s recommendations without reservation.

From that point forward, Manitoba’s view has been that any future proposal to divert Missouri River water into waters flowing into Canada would have to meet the Garrison Diversion test formulated by the IJC and accepted by Canada and the U.S.; and therefore, any future proposals ought to be referred to the IJC for an objective evaluation of whether technology was available to eliminate the risk of harmful biota transfer for the particular proposal, or if for any other reason the issue was no longer of concern.

Many smaller communities in northwestern North Dakota — in the Hudson Bay watershed — rely on groundwater sources not of the best quality.

In the late 1990s, a concept was being developed by the State Water Commission to replace these substandard sources with Missouri River water. In an ironic twist of fate, before even preliminary details of the concept — such as means of conveyance, routing, possible treatment options and so forth — were developed, the U.S. State Department wrote to the government of Canada offering to refer this conceptual proposal to the IJC.

Canada properly, but naively, responded that although a reference indeed was appropriate as the project clearly fell under the aegis of the Canada/U.S. Boundary Waters Treaty, it was premature because the details necessary for the IJC to make a reasonable assessment were lacking. From that time forward, as the detailed design for NAWS was developed, our wily neighbours responded to all requests from Canada to refer what was now an actual proposed project to the IJC by saying that we had rejected that option and therefore, it was no longer on the table. That nations have no friends, only interests, was demonstrated once again.

Although the Boundary Waters Treaty does allow for one country to refer a matter to the IJC, only joint references are, in fact, seen to be acceptable under diplomatic protocol; if there was to be any meaningful examination of possible risk the project posed for Manitoba, some other vehicle had to be found. It turned out one was at hand.

NAWS met several criteria that triggered U.S. federal legislation; under the National Environmental Policy Act (NEPA) an Environmental Impact Statement is required for the project. …

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