The Last Great Water Fight

The battle for the northern headwaters of the Mackenzie River

Photograph by Garth Lenz

Diesel engines rumbled to life aboard the MV Atha. A deckhand cast off the lines, and Guy Thacker backed his forty-year-old red and white pusher tugboat away from its wharf in the tiny harbour at Fort Chipewyan, Alberta. A gentle turn set the vessel out onto Lake Athabasca, three battered barges lashed to the bow. The bright yellow backhoe on the leading edge of the middle one was an incongruous sight. It wasn’t part of Thacker’s paid cargo, which on most of his fortnightly trips each summer includes a few containers, some heavy equipment, and the occasional pickup truck. Rather, it was there to make sure the tug completed its twenty-five-hour run up the Athabasca River to Fort McKay, near several oil sands developments. “Once the Athabasca turns south,” Thacker explained, “it’s only three feet deep, some places two and a half.” The Atha needs three to float, so Thacker used the backhoe to dig his way through the shallows. “It never used to be like that,” he said.

“I find a lot of junk in the river, too, the last few years,” added Thacker, four years older than his vessel and a resident of “Fort Chip” since birth. “Pipes, timbers. Last weekend, I was at the dock [at Fort McKay], watching an oil slick go by like someone was sitting up-current with a pail of oil, just dumping it slowly. An hour we watched it. With all these new oil plants along the river, obviously it’s coming from their places.” But even these are not the most distressing changes he has witnessed the past few years.

Right on Fort Chip’s doorstep is a vast, verdant, and once hugely productive delta where the Athabasca merges with the Peace River before continuing northward as the Slave River. About 800 kilometres away, the W.A.C. Bennett Dam stands astride the headwaters of the Peace. Each spring, British Columbia’s Crown-owned electric utility collects snowmelt and rainwater from the northern Rocky Mountains behind the dam, forming one of the world’s largest man-made lakes. Come the early evenings and colder nights of autumn, when British Columbians demand more power to light and heat their homes, the company opens its gates to drive ten giant turbines, releasing a surge of water downstream. For the wildlife of the Peace-Athabasca Delta, the flood arrives at the worst possible time.

“The whole Slave rises six, seven feet, backs up in all these little creeks,” explained Thacker, who until recently ran traplines once the tugboat season ended. “The beaver have settled in for the winter, building their houses and putting in their feed. They aren’t expecting it, so they drown. In the spring, I go up a little creek by my cabin, probably four, five big [beaver] lodges there, they’re all dead, a lot of dead beaver floating around. And moose, too, all over, drowned.”

Fort Chipewyan’s 1,000 mainly Cree, Dene, and Metis people have protested the injuries to their once-vital delta from upstream development for decades. But their struggle to preserve the unique biome where the oil-stained Athabasca and the pinched-off Peace meet is only a microcosm of a bigger battle being waged largely out of sight of most Canadians. It pits a constitutionally weak territory against rich southern neighbours, powerful resource companies, and the federal government. At stake is the future of the continent’s last expanse of undamaged life-supporting ecosystem. If the conflict between predatory industrial technocracy and a living web of spirit and biology imagined in James Cameron’s megahit Avatar is being played out anywhere on planet earth, it is here.

Sixteen hundred kilometres downstream from Fort Chip, the Mackenzie River empties a watershed nearly the size of Western Europe into the Arctic Ocean. Draining half of Alberta and most of the Northwest Territories, as well as parts of British Columbia, Saskatchewan, and the Yukon, the Mackenzie is one of the world’s great water arteries. Sound management of this vast area “is important to the entire hemisphere,” according to the California-based Rosenberg International Forum on Water Policy. Any impairment of its functions, the forum noted in a report last year, “will have costs to upstream neighbours, most Canadians, and people worldwide.”

Of the Mackenzie’s three most important tributaries—the Peace, Athabasca, and Great Bear rivers—only the last still flows pure and untamed into what the Dene who live along its banks call Deh Cho: the “Big River.” But now, spurred by growing demand for water and energy, the governments of Alberta and BC are looking at new developments between the Mackenzie’s headwaters and its northern estuary, and, along with these, at how the watershed will be stewarded. Officials from Alberta, Ottawa, the Northwest Territories, and BC have been working since early this year to convert decade-old promises about how the Mackenzie River will be cared for into binding agreements. Done properly, those agreements “could be a global landmark in eco-hydrological management,” as the Rosenberg panel put it. Done poorly, they may condemn an area one-fifth the size of Canada to the same fate as the parched and contaminated Peace-Athabasca Delta.

Additional layers of friction and risk ripple beneath that surface tension: a Conservative government intent on undoing a decade of northern land settlements to expedite resource extraction; a territorial legislature struggling for traction in a constitutional vacuum; the Northwest Territories’ fitful embrace of a new relationship with its indigenous Dene (Sahtu, Tlicho, Gwich’in, Akaitcho, and Dehcho), Inuvialuit, and Metis people; those same First Nations’ increasingly muscular assertion of rights granted under treaties both historic and modern; and doubts about the ability of science to measure, let alone limit, industry’s imprint on the wild.

At their deepest level, the negotiations feature two starkly different views of humanity’s prerogatives. One has framed four centuries of North American development under Euro-colonial management. It puts man first, fashioning nature primarily as a resource for the fulfillment of human desires. The other sees our species as one—but only one—of nature’s creations, as dependent on a healthy habitat as any moose or beaver.

Days after my visit with Guy Thacker, I met Michael Miltenberger, deputy premier of the Northwest Territories, over Chinese food in a Yellowknife restaurant. A journeyman carpenter who also serves as minister of finance and of environment and natural resources, Miltenberger is responsible for the territory’s side in the Mackenzie negotiations. Briskly energetic, with a warm smile that only rarely broke through his intense concentration, he considered the competing views the talks have exposed. In one, he saw “that highly arrogant human way we divide up everything, because we are the supreme beings on the planet.” In the other, a recognition that “if we don’t protect the land, the water, and the animals, they won’t look after us. We’re going to pay a price, and it will be incredibly brutal and painful.”

Amazon North

The Mackenzie basin is a geography of superlatives. At 1,802 kilometres—including tributaries, that figure stretches to 4,240—the river itself is in a league with the Mississippi and the Yangtze. The abused junction of the Peace and the Athabasca is one of the planet’s two great interior deltas (the other is Africa’s Okavango), yet it is dwarfed by the fan of marshes, looping side channels, and braided islands where the Mackenzie empties into the Beaufort Sea—the irreplaceable summer home of millions of migratory waterfowl. The continent’s largest wild herds of caribou and bison and its healthiest populations of grizzly bears share the watershed, too. Great Bear Lake, the source of the Great Bear River, the Mackenzie’s third major inflow, is the largest freshwater body entirely within Canada, and the cleanest great lake left on the planet.

But the region’s importance goes beyond bragging rights or even the untamed beauty that few Canadians ever see first-hand. Its economic history reflects the price the wealthy have been willing to pay for luxury: first furs, later gold, and more recently diamonds. The wealth extracted from the Northwest Territories gives it a gross domestic product that in 2008 reached an average of about $91,300 for each of its 43,700 residents—the highest of any Canadian province or territory. The figure is deceptive, of course: little of that is controlled by the territory’s citizens. Outside Yellowknife, most communities are unreachable by road except in winter, when ice bridges can be built. Many resemble the developing world more than they do statistically poorer places in Canada’s south.

If luxuries underwrote the basin’s past, its present is being shaped by something more basic: energy. To understand why, it helps to grasp a seldom-noted fact. Water powers the twenty-first century as fundamentally as it did the nineteenth, when practically every river east of Lake Huron turned a water wheel. And water from the Mackenzie system is a prerequisite for Prime Minister Stephen Harper’s vision of Canada as an energy superpower.

More than half of Canada’s petroleum comes from the Mackenzie watershed. But for every barrel of crude extracted from the oil sands in its southeastern reaches, three more of water are pumped from rivers that flow into the Mackenzie. Projects under construction, licensed, or pending approval would more than triple Alberta’s oil production; they would need corresponding additional volumes of water to wash away the clay and sand in which the oil is mixed. Still more water is required to force natural gas out from wells across Alberta and northern British Columbia—so much that if every well currently envisioned for BC were sunk, the needed water would fill a parade of tanker trucks girdling the globe fourteen abreast. And a long-studied pipeline to gas deposits in the Mackenzie Delta was postponed yet again earlier this year but remains on the drawing board.

Nor would the region’s importance as an energy source diminish in any post-oil world. British Columbia has announced a “green” plan to install yet another dam (its so-called Site C project) on the Peace, while Alberta is exploring a hydro development on the Peace and another on the Slave. Hydroelectricity may only “borrow” water, rather than bury it underground or render it toxic, but as Fort Chipewyan has discovered, its effects can be no less devastating.

The Mackenzie, moreover, anchors a mega-ecology on the scale of the Amazon or the Congo. Beyond harm to wildlife, its alteration could topple climate dominoes across the continent and perhaps beyond. The river’s health influences the boreal forest that follows it all the way to the Arctic Ocean: nowhere else in North America do trees grow so far north, a measure of the heat its waters transport. And scientists are just beginning to get a sense of its influence on the sea itself. “We don’t know what we’re doing to the Arctic Ocean [when we alter the headwaters of the Mackenzie],” admits John Pomeroy, an Arctic climatologist and a Canada Research Chair at the University of Saskatchewan, “but we’re definitely twiddling the knobs.”

That’s one danger we’re courting on the Big River. The second relates to the fact that the Mackenzie is upwind from the rest of Canada. Water transpired by its forests crosses the country to rain on Manitoba, Ontario, and Quebec. “If we lose tree cover and evaporation, we’ve lost water available to the rest of the continent,” Pomeroy warns. And that is happening. As much as a third of the black spruce forest has been lost in some areas to swamp, as rising temperatures melt permafrost plateaus that once rooted trees. “It’s a wholesale change, affecting everything around it,” he says.

As big a contribution to climate stability comes from the atmospheric carbon sequestered in the watershed’s forests, bogs, and tundra. A 2009 effort by the Ottawa-based Canadian Boreal Initiative to put a value on “non-market” services provided by the Mackenzie ecosystem tallied the total at $570.6 billion a year—ten times the market price of all the gold, diamonds, and oil clawed from its soil annually. More than half was represented by carbon: $339 billion, at current world market prices for trading carbon credits. “People will cite huge values associated with the tar sands, and argue those values cannot be matched by eco-services,” says Henry Vaux Jr., the University of California resource economist who chaired the Rosenberg water panel. “Frankly, there’s no evidence for that. Those environmental values may be a whole hell of a lot higher.”

And they can only rise as climate change evaporates lakes and streams closer to the equator, rendering much of the rest of the globe inhospitable to agriculture. James Lovelock, author of the dystopian The Revenge of Gaia, forecasts that at worst, the century ahead will witness such extreme ecological collapse in lower latitudes that circumpolar regions will become the last refuge of humanity. In that case, a well-conserved Mackenzie watershed would become the most sought-after real estate on the planet.

Do No Unreasonable Harm

Serious negotiations over this vast watershed have been a long time coming. The groundwork was laid in 1997, when the governments of Canada, Alberta, BC, Saskatchewan, the Yukon, and the Northwest Territories signed off on a document with the lumbering title “Mackenzie River Basin Transboundary Waters Master Agreement.” Adorned with the upper-case pretensions of diplomacy, the accord established that “the Mackenzie River Basin should be managed to preserve the Ecological Integrity of the Aquatic Ecosystem.” But it also conceded the right of each party to “manage the use of the Water Resources within its jurisdiction provided such use does not unreasonably harm [a downstream neighbour].” It left it to bilateral agreements between up- and downriver jurisdictions to determine what harm was “reasonable.”

After a decade of false starts, it took the lure of imminent energy projects to bring negotiators to the table at last. BC Hydro’s Site C dam on the Peace will affect the river’s flow into Alberta. The latter’s thirst for stepped-up oil production along the Athabasca and its designs on the Slave, meanwhile, would further impact water flowing to the Northwest Territories. The design and management of those projects in a way that keeps downstream damage to “reasonable” limits “is what the negotiation is all about,” says Beverly Yee, the assistant deputy minister for environmental stewardship, who is in charge of Alberta’s side in the talks.

Water management pacts between neighbouring jurisdictions have become increasingly common, but they have a checkered history. An early dispute between Montana and the proto-province of Alberta was resolved with the establishment in 1909 of the International Joint Commission for boundary waters, widely venerated as an example of creative diplomacy that has helped defuse potential conflicts for over a century. But a 1922 compact divvying up the Colorado River among seven US states failed to prevent several of them from all but going to war with each other in the decades that followed, and sanctioned the removal of so much water that the river ran dry before it reached the ocean, reducing its delta—once one of the world’s greenest—to desert scrub. A more modern pact, among Canada’s three Prairie provinces, lets Alberta drain the South Saskatchewan River to a summer trickle without penalty.

The parties to the master agreement on the Mackenzie insist they mean to do better this time. Alberta’s Yee and British Columbia’s director of water use planning, Pieter Bekker, say their provinces are ready to negotiate mutual assurances well beyond how much water rivers deliver annually across their borders. Variables on the table include the invisible but critical currents of underground water, seasonal flows (such as the unexpected autumn floods near Guy Thacker’s cabin), and the level of water contaminants.

But the North is asking for more. In May, the government of the Northwest Territories released Northern Voices, Northern Waters, a water stewardship strategy that seeks to move the goalposts decisively. It demands that water flowing into the territory remain “substantially unaltered in quality, quantity, and rates of flow”—a significant advance on merely restraining the damage done by pollution or altered river flows to “reasonable” limits. Even more ambitious is the goal of preserving water’s full “spiritual, cultural, public health, recreational, economic and ecological values” in the North. The document notes near the beginning: [Aboriginal people] draw their spiritual and cultural integrity and strength from the land and water (i.e., ecosystem).” Any harm to the natural living systems on which indigenous cultures rely will therefore be unreasonable to the First Nations who make up half the territory’s population and a majority in its legislative assembly.

As Miltenberger explained over dry ribs and chow mein, “We finally understand what aboriginal people have been telling us. When we talk about resource values, cultural and spiritual values are also involved.” Protecting those values in a trans-boundary water agreement is a central objective for Miltenberger, but he admits it will be challenging: “Alberta’s still in the mindset of [guaranteeing only] a certain volume of basic quality. We’re interested in the whole hydrological cycle.”

Doubtless, policy-makers and engineers versed in the technicalia of contaminant thresholds and flow minima find ideas like “spiritual value” and “cultural integrity” inadmissibly vague and unquantifiable. To find out how they could be translated into terms capable of guiding development down a path that preserves nature rather than merely limits its injuries, I flew farther north, to the shores of Great Bear Lake.

The Water Heart

Even in winter, the powerful flush of water from Great Bear Lake into the Great Bear River keeps a patch of blue open in the ice covering the lake’s surface. Across a broad bay is a low rise of land where a rough cross stands amid spindly trees, its white arms wrapped in a string of Christmas lights. The cross marks the spot where, in 1825, the ill-fated explorer Sir John Franklin erected a small fort and overwintered, his men playing Canada’s first recorded game of hockey under the bemused gaze of the local Sahtu Dene, for whom fishing at the river mouth was a more significant attraction. Later, trading posts, a Catholic mission, and eventually a residential school turned a seasonal campsite along the natives’ nomadic routes into a dot on the Dominion of Canada map called Fort Franklin. In 1993, repudiating the outpost’s association with an expedition bitterly remembered for the kidnappings and rapes of local women, the Sahtu restored its original name, Déline—“where the water goes out,” in the south Slavey language.

That same year, the Sahtu (which translates as “Great Bear Lake”) voted to accept a land claim settlement with the governments of Canada and the Northwest Territories. It was one of several such agreements reached that decade with Dene and Inuvialuit groups. Among other promises, it guaranteed the roughly 600 people of Déline a degree of self-government and a voice in any development in their settlement area. Twelve months later, federal legislation established institutions to deliver those commitments, including new Sahtu-dominated panels to oversee land development and protect renewable resources.

Sixteen years on, Déline is still trying to bring those institutions genuinely to life. Among those responsible for the shift is Walter Bezha, the community’s director in charge of pursuing self-government. We met at the Déline Land Corporation’s tidy office, in a one-storey building half a kilometre down the unpaved road from the site of Franklin’s fort. By turns professorial and passionate, the BC-trained former wildlife officer confessed, “It has taken me thirty years to understand my own people.” The word “Dene,” he explained, means “person,” not only in the general sense of a member of our species, but also the deeper one of fully realized humanity. On a whiteboard, he drew a triangle, labelling the lower left corner “Self,” the lower right “Earth/The Environment,” and the apex “Creator.” To be fully Dene—truly a complete human being—he explained, is to have meaningful relationships with all three. To dwell in the centre of the triangle. But for that, he added, “Everything has to be alive. You can’t build relationships with dead things.” It is our readiness in the industrial world to sacrifice all else to the narrow interest of self, he suggested, that engenders alienation from nature, God, and one another—and allows us to “crucify” the environment.

Soon after signing its settlement agreement, Déline set about writing a plan to realize the potential wealth of its ruggedly beautiful landscape on Sahtu terms. Completed in 2005, it is called “The Water Heart.” Its significance is explained in a story from legend:

In times past, their spiritual teachers were often “mystically tied” to different parts of the environment Kayé Daoyé was one such person. He lived all around gbl [and] was mystically tied to the loche [a food fish]. One day, after setting four hooks, he found one missing. This disturbed him—in those days hooks were rare and very valuable—and that night he traveled in his dreams with the loche in search of the fish that had taken his hook. As he traveled through the centre of gbl, he became aware of a great power in the lake—the heart of the lake or the “water heart.” Contemplating this heart, he became aware that it is connected to all beings—the land, the sky, plants, other creatures, people—and that it helps sustain the entire watershed.

This “interconnectedness of all things,” the plan states, “includes all people—Dene and non-Dene alike.” And from that relationship “flows the responsibility of people to care for the world in which we live.” It forms the foundation of the plan’s pragmatic elements, which require that before any proposal for industry receives a permit to operate, it must first establish “a research and monitoring program appropriate to the nature and scale of its proposed activit(ies) and adequate to demonstrate that all aspects of its activit(ies) are consistent with the maintenance of the ecological integrity of [Great Bear Lake watershed] ecosystems.” Only once the Sahtu land use board is satisfied that an industry’s plan is adequate to preserve or fully restore the impacted ecosystem to its pre-development state will activity be permitted to proceed.

The Sahtu say they welcome industry, so long as it protects their relationship with the earth’s living ecosystems. “If they die, we die,” is how the community’s lead negotiator, a burly part-time builder named Danny Gaudet, put it. For that reason, the Sahtu insist that any development must preserve the environment—and particularly Great Bear Lake’s pristine water—substantially as it was before the first soil was turned for the project, and not merely limit its damage to a southern idea of what is reasonable. “Here’s your baseline: how it looks today,” Gaudet explained. “You’ve got to maintain that. So come up with a plan for how you’re going to do that.” In other words, develop, but leave the water heart beating.

He saw this as an area in which aboriginals could lead other Canadians. “If we don’t smarten up,” he said, “we’re going to destroy everything. We’re doing it already. The farmer in Saskatchewan, the farmer in New Brunswick, he thinks this way, and he’s not aboriginal. What aboriginals want will be good for everybody. It’s going to be good for my kids, even if they live in Toronto.”

Leaving Gaudet’s office, I bumped into Walter Bezha again. He asked who else I had interviewed, nodding as I mentioned several names. I asked if there were others I should speak to. “The lake,” he said. “Interview the lake.”

The next morning, my last in Déline, I rose early and walked to the shore. Five metres of open water lay between it and the ice that still covered most of Great Bear late in May. A dozen snowmobiles squatted unoccupied on the rotting white sheet. Only a pair of ravens were about, disapproving noisily of my presence. Silently, I drank in the cool, impossibly fresh breeze and listened for the voice of the lake in the small chuckle of clear water on time-washed pebbles. For a moment, I shared the breath of a land that was fully alive long before our species strode upon it, and not yet indelibly scarred by humanity’s heavy footfall.

I found myself wondering: how sure can we be that any harm we do to the land is “reasonable”?

“The Canary Has to Die”

Four lanes of umbilical pavement connect Fort McMurray, Alberta, to the pits along the Athabasca River where sand saturated in tarry bitumen is mined and sent to be steam-cleaned of its valuable oil. I shared the road with tank trailers of chemicals, eighteen-wheelers cradling lengths of brown pipe, and flatbeds bearing disarticulated parts of giant machines. Near the mines, blue signs pointed the way to individual projects. Following one marked Suncor Oil Sands, I turned onto a gravel service road. Tank farms and equipment yards along the way bore other industrial names, Enbridge and Komatsu. Here and there, I pulled over to snap a picture, staying back from fences posted with private property notices. At a point where a manned gate blocked the road ahead, I turned around. That’s when an oncoming light truck edged into my lane, red roof lights flashing. A man in a security uniform leaned out and instructed me to wait while he turned in behind me. I did as he asked.

A moment later, the man, an employee of Garda security services, appeared at my window and demanded to know if I had been taking photographs. I admitted as much; the camera lay on the seat beside me. He said I was being detained, and would not be allowed to leave, “until you delete those pictures in front of me.” When I refused, he replied, “Then we can call the police and handle it that way.”

“And what will the police do? ” I asked him.

“Whatever Suncor tells them to do,” he said.

I eventually managed to convince him that my photographs posed no serious threat to Suncor’s operations, and he let me depart with them intact.

It may be inaccurate to call Alberta a “petro-state,” as some critics have, but there’s no question the oil industry draws a lot of water in the province, figuratively as well as literally. Nor is it a stretch to suggest that resource companies and the province of Alberta carry weight with the federal cabinet, led as it is by Stephen Harper, MP for Calgary Southwest. Their influence does not encourage the betting that any agreement over the Mackenzie watershed will keep northern ecosystems intact.

According to a provincial fact sheet from 2009, nearly 147,000 people work in Alberta’s five open-pit oil sand mines and eighty-six in situ projects (where steam is injected into wells to melt the sticky bitumen and force it out of the ground). The Canadian Energy Research Institute (ceri)—whose board includes members from such oil giants as Imperial Oil (Exxon), BP Canada, and Nexen—estimates the industry is investing about $20 billion a year to expand its output in the province.

Tasked with figuring out how to keep that activity within limits nature can tolerate is the Cumulative Environmental Management Association (cema). It has a staff of eight and a yearly research budget of under $9 million. I found it on my second pass, on the upper floor of a two-storey strip mall. Its cramped offices adjoin a dental clinic, a laser aesthetics spa, the Fort McMurray Teamsters Union, and an outfit that administers drug tests to oil sands workers. The association’s executive director, Glen Semenchuk, explained that the actual monitoring of air and water emissions from oil sands production was currently conducted by the industry-funded Wood Buffalo Environmental Association and Regional Aquatic Monitoring Program, and the Alberta Ministry of Environment. His agency’s job is to advise government and industry on such questions as how best to restore the moonscapes left behind by mining, or what the maximum limits on air pollutants should be. By his count, Alberta and its oil companies have adopted more than 80 percent of cema’s recommendations.

Its efforts, however, have not exactly translated into an effective rein on development. Take the problem of what to do with the kilometres-wide mine pits after they’ve been exhausted. “Filling these things isn’t as easy as you’d think,” Semenchuk said with a sigh. One unresolved problem is the poorly understood interaction between collecting rainwater in a retired pit and aquifers that may surface elsewhere, laced with contaminants. Other uncertainties blur what Semenchuk called “critical loads” of pollutants in air or water, meaning “the point where one more particle is too much.” In theory, he said, threshold levels—maximum permitted concentrations—should be set below critical loads, with a margin of safety.

Is that always the case? I asked.

“We assume and hope so,” he replied.

That made me wonder. So I asked another question. Does cema know at what point the cumulative impact of oil sands development will breach a critical threshold and do irretrievable damage to life-supporting ecosystems? That is, does it know when to say “when”?

Semenchuk did not hesitate to answer: “No.”

Scientists I spoke with expressed respect for cema’s research. But embedded in its mandate is a certain faith—first in the ability of science to predict the limits of “safe” industrial behaviour, and second in the will and ability of policy-makers and companies to draw the line there. Even some scientists who do similar work say that faith is unwarranted. “We’ll go until it becomes apparent that we’ve gone too far, and then we’ll stop,” says John Thompson, a biologist who has worked on ecosystem assessments in the Northwest Territories. “The canary has to die.”

This ecological over-the-brinksmanship is what Miltenberger and Gaudet are trying to avoid. Sadly for them, neither wields much authority in the negotiations. Real power over the North resides in Ottawa. The Northwest Territories is a ward of the federal Crown; its native-majority legislature has no constitutional power. Its development is therefore decided in rooms with a view of the Gatineau hills, not of Great Slave Lake. And seventeen years after promising Déline the means to protect its environment, Ottawa has yet to sign off, as settlement legislation requires it to do, on the community’s “Water Heart” plan for exercising that role.

Instead, the federal government intends to revoke the Sahtu’s authority before it can be tested. Far down in the Speech from the Throne late last spring was a line stating that it plans to “reform the northern regulatory regime so that we can take full advantage of [the] region’s resource potential in a way that not only makes business sense, but also protects the Northern environment.”

Neil McCrank, the engineer and lawyer who single-handedly drafted Ottawa’s blueprint for these reforms, is a former chairman of the Alberta Energy and Utilities Board (which both licensed and regulated oil sands developments until its duties were reassigned to separate agencies after his departure) and a current board member of ceri, the industry-funded think-tank. McCrank’s report urged Ottawa to “enable” northern development by eliminating boards like those created to implement plans such as Déline’s—institutions he criticized as prone to “bias against development”—and to concentrate their duties with the Mackenzie Valley Review Board, a federally appointed, basin-wide panel instead. Ottawa’s intentions in this regard came as no surprise. Early in March, prior to the Speech from the Throne, Indian and Northern Affairs Canada had circulated a proposal to remove the same local boards’ right to approve or deny oil company requests for water use permits, and to hand over that job to the National Energy Board.

Even development-friendly northerners have concerns about such moves. Chris Buiest, the gravel-voiced head of the chamber of commerce in Norman Wells, a community of 800 halfway down the Big River, is an unapologetic oil guy from a traditional oil town. (Imperial Oil has produced crude here since at least 1937.) He has owned or worked for oil service companies in the Northwest Territories for over two decades. Sitting in his rumbling white Humvee, he agreed that the land use institutions proposed by the Sahtu have never been given a chance. He called giving Ottawa oversight of how oil companies use water in the territory “scary,” and asked, “How many inspectors are they going to have out here when it’s forty-five below and we’re doing all the rig work? ”

David Livingstone, like Buiest a transplanted northerner, spent a quarter-century working for Indian and Northern Affairs before retiring a year ago. He told me Ottawa treats the Northwest Territories as “a colony, pure and simple, operated for the benefit of the federal government and using the mining industry as a way of increasing revenue.

“Industry,” he said, “would like to see every square inch of the North mapped and every ounce of commercial potential set aside for development. It’s ‘We want it all, and we want it now.’”

Livingstone didn’t see the federal bureaucracy as ill intentioned: “Colonizers always think they’re doing things in the best interests of the colony.” But he found efforts to recast decision-making in the Northwest Territories on Alberta’s terms repugnant. “[Southern] Canadians don’t understand,” he said. “This is a territory run by aboriginal governments. They do it differently by design, not accident. We don’t want the model that’s used elsewhere.”

The Coming Battle

Pioneering is always risky, though. The government of the Northwest Territories and its First Nations may, as Miltenberger maintains, have “political and moral authority,” but Ottawa has the law on its side. Its fiat in the territory is almost unlimited: it has constitutional power, control of the purse, and control of the tone and pace of the negotiations. It also has leverage from other issues. The Northwest Territories would like to see additional powers devolved to its legislature, including the right provinces enjoy to collect royalties from the extraction of resources—about $70 million a year now banked by Ottawa. Three of its First Nations also have yet to settle land claims with Ottawa; others, like the Sahtu, have seen signed agreements falter thanks to waning federal commitment. “We’re in a terrible predicament,” Miltenberger admits.

But not an impossible one. The signature of Chuck Strahl, the former federal minister of Indian and northern affairs, appears alongside Miltenberger’s on the territorial government’s Northern Voices water stewardship strategy—an endorsement the deputy premier calls “significant.” And while Ottawa’s Conservative government has the power to veto any Mackenzie River agreement the Northwest Territories secures from Alberta, Miltenberger notes that “they [also] have a responsibility to represent our interests.”

Strahl’s office declined to comment on its position in the negotiations. Indeed, neither the federal government nor the provinces of Alberta or British Columbia appear to welcome attention to their policies on the Mackenzie. Interview requests submitted for this story to ministers of the Crown in Ottawa, Edmonton, and Victoria over five months were met with silence or polite dismissal.

Should moral force fail, the Northwest Territories has one last “arrow in our quiver,” Miltenberger says. It’s a bolt stained with more than a little irony, but potentially powerful nonetheless: the courts’ ear to arguments rooted in aboriginal rights. While no one I met admitted to having voiced the idea formally, the possibility that the territorial government might join with First Nations to take Ottawa to court over its policies in the Mackenzie was plainly on many minds. “We haven’t engaged in talks with the Northwest Territories government,” said Allan Adam, interim grand chief of the Treaty 8 First Nations—a group that includes the territory’s Akaitcho Dene as well as the Athabasca Chipewyan of Alberta—“but we’ve talked about it among ourselves.”

Such a suit would have plenty to work with. Settlements already signed with the Sahtu and other groups contain protection against a future federal government having second thoughts about, for example, clauses establishing that the agreements’ terms “shall prevail” over any subsequent acts of Parliament. McCrank’s report conceded that the changes he sought would “amend the comprehensive land claim agreements.” It’s all but inconceivable that could be done without throwing the entire hard-won structure of northern settlements open to renegotiation.

More likely, it would trigger a ferocious legal challenge from First Nations emboldened by a string of previous court victories. Water, notes Merrell-Ann Phare, a Winnipeg lawyer and author of a book on indigenous water rights, is an anomaly in Canadian law. The Constitution is silent on who owns it and vague on which branch of the Crown has responsibility for it. But Phare has identified multiple legal grounds to support the case that treaties, precedent, and the Constitution guarantee First Nations enough of it, of sufficient quality, to maintain traditional lifestyles. By that standard, any management plan that failed to preserve northern water resources “substantially unaltered”—the test contained in the Northern Voices strategy—or to maintain the ecological integrity upon which Déline’s traditional culture depends, could be judged a violation of First Nations rights.

And Ottawa’s Mackenzie policy is vulnerable on still other fronts. This April, the Commission for Environmental Cooperation, created in a nafta side deal, agreed to investigate a complaint by two environmental groups and several individuals alleging that Canada is “in breach of its commitment” under the trade deal to enforce its own laws against toxic leakage from oil sands tailing ponds—yet another potential precedent.

Among the names on the complaint was Daniel T’seleie. A resident of Yellowknife, he is twenty-eight, Dene, and a full-time environmentalist with a decidedly twenty-first-century perspective on his heritage. We met on my last day in the territorial capital. His thin beard and long, oval face reminded me of a young Pierre Trudeau. The ball cap keeping his wavy hair in check bore the name of a gun shop. Ottawa, he said, has found it easy until now to “play divide and conquer” with the Northwest Territories’ government and its First Nations. But that was changing with his generation, T’seleie sensed. “There’s more and more a tendency for people to see themselves as ‘Northerners,’ not just ‘native’ and ‘non-native.’” The Mackenzie, he said, “is worth fighting for. But you’ve got to be a team.”

The Big River may not be able to wait for generational change, though. Alberta’s oil expansion counts on water from the Athabasca. BC is pushing hard for its new dam on the Peace. Mining companies are eager to unleash activity in the Northwest Territories. And a pipeline to the Beaufort is still in the works. In James Cameron’s sci-fi epic, it’s the voracious overreach of industrial empire that finally unites the indigenous inhabitants of fictional Pandora against their colonizers. Perhaps something similar will occur in the northern Mackenzie. If so, it had better happen soon. “We may be on the edge of a cliff here and not even know it,” T’seleie said. “I think we’re cutting it close.”

This appeared in the October 2010 issue.

Chris Wood
Chris Wood wrote Dry Spring: The Coming Water Crisis of North America (2008), which was nominated for the Shaughnessy Cohen Prize for Political Writing.
Garth Lenz