From supranational to intertribal - Governing Transboundary Waters: Canada, the United States, and Indigenous Communities - page 47

simply could not be negotiated in today's political climate” (personal communi-
cation, 2008). These comments suggest that recent U.S. administrations and elected
officials (i.e. senators) would not likely concede authority for the sake of equitable
representation.
Like many international mechanisms, issues of state sovereignty are central to
the negotiation of treaties. Finding approaches that are mutually beneficial to the
signatory parties - but do not restrict sovereign rights to resources - is a delicate
balance in international negotiations (Susskind, 1994; Rieu-Clarke, 2005; Schmeier,
2013). For the BWT, negotiating a treaty on a continental scale required Britain
(on Canada's behalf) and the United States to agree on the relative authority and
scope of its mechanism s. 2 I t is important to note that, under this binational framing,
the Boundary Waters Treaty did not consider Aboriginal or Treaty rights. Although
the International Watersheds Initiative (discussed more in Chapter 4) attempts to
widen its purview to include citizens of the basins (including Indigenous
communities), they are still considered “stakeholders” rather than equal partners.
The framing as “stakeholders” rather than “sovereign nations” with Treaty rights
to specific land and water resources remains a significant issue in environmental
governance (see von der Porten and de Loë, 2013a, 2013b). Thus, when I explore
the guiding questions of this topic related to changing governance mechanisms,
social and environmental equity, and “good neighborliness”, it is imperative to
understand that the central mechanism for governing transboundary waters in
Canada and the U.S. starts out with a narrow interpretation of the “legitimate
actors”. The “legitimate actors” problem can be challenged by the consultation
process established through Section 35 of the Canadian Constitution Act of 1982,
which aims to protect Aboriginal Treaty rights, as well as through key sections
in land claim agreements that require First Nations to be consulted/involved in
negotiations related to lands and waters. Similarly, Treaty tribes in the U.S. are
asserting their inherent and negotiated rights to water through established Treaty
rights. To reach the potential of these, however, often becomes an issue of limited
capacity - in the both timely and expensive consultation and legal process. Thus,
although the purview is widening slightly (through watershed boards as discussed
in Chapter 4) , the original framework remains very much focused on a federally
controlled, top-down approach, and the issue of capacity for Indigenous com-
munities to actively participate in the process requires additional attention.
Strength of the Boundary Waters Treaty
Another critical point in the negotiation of the Boundary Waters Treaty between
Britain and the United States (which continues to be important today) was
determining the strength of the proposed commission. The settlement of the Treaty
was delayed as the governments debated whether to assign the commission “real
arbitral power or merely to assign a more limited mandate to recommend courses
of action, which the governments could accept or reject as they saw fit” (Carroll,
1981, p. 44). Canada preferred the “stronger” version (the Gibbons-Clinton draft),
which allowed for a commission with authority over the final decision and the