The report is based on the 4th transboundary symposium held at in Polson, Montana, in October 2012 and convened by the University Consortium and involving tribal and First Nation leaders along with about 150 other people and organizations including CELP.
The following key points are taken from the report’s Executive Summary:
The role of tribes and First Nations in the negotiation and implementation of international agreements like the CRT is a function of both domestic and international law, as well as a body of indigenous law that helps define how tribes and First Nations participate.
International law in general is largely silent as to the capacity of non-state actors, including tribes and First Nations, to participate in the process of negotiating international treaties. In practice, and in the context of the international Columbia Basin, international law provides sufficient flexibility to both Canada and the U.S. to involve tribes and First Nations in the process of negotiating and implementing agreements for the conservation and management of transboundary water and related resources.
Both Canada and the United States have previously invited tribes and First Nations to participate as members of various international negotiation teams and to play roles in successfully implementing international agreements.
In the United States, the President has exclusive authority to appoint a team to negotiate an international treaty, and nothing prohibits the President from including tribal representatives on an international negotiating team. The U.S. Senate also has the power to appoint “observers” to an international treaty negotiation.
In Canada, the federal government has the discretion to include First Nations in an international negotiating team as well as an affirmative legal duty to consult with and accommodate First Nations interests in various circumstances. Under certain circumstances the federal government or federal Crown may also be compelled to consult with, accommodate, and in some cases seek “consent” from First Nations with respect to positions to be taken in international negotiations.
The international Pacific Salmon Commission between Canada and the United States is a good example of how tribes and First Nations participated in the negotiation of the Pacific Salmon Treaty (PST), and now participate in the implementation of that agreement through the Pacific Salmon Commission. The Nordic Saami Convention, Inuit Circumpolar Council, and Great Lakes Water Resources Compact and Agreement also demonstrate an international trend to include indigenous peoples in both negotiating and implementing governance arrangements for the use of transboundary land, water, and related resources.
There are a number of very compelling policy and pragmatic reasons to include
tribes and First Nations in negotiating and implementing future governance for the international Columbia Basin.
To advance their interests and aspirations with respect to the CRT, the Columbia Basin tribes and First Nations may want to pursue one or more of the following options:
Encourage the existing Entities to adjust the CRT by integrating ecosystem-based function as an objective of the CRT equal to the current purposes of flood risk management and hydropower development, either by amending the existing treaty or creating a separate new agreement;
Promote and support a model of “shared governance” of the international Columbia Basin led by sovereign entities, including tribes and First Nations; and
Encourage the Entities to establish and maintain an “advisory committee” on ecosystem function to provide ongoing input and advice to the Permanent Engineering Board, a bilateral group responsible for operational implementation of the CRT.