Winnipeg Free Press - PRINT EDITION

Water issue bungled to dire effect

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The city and province both were negligent in failing to recognize the risks facing a Winnipeg plan to provide water to neighbouring municipalities and businesses.

That goal is on hold indefinitely because the International Joint Commission (IJC), which regulates water issues between Canada and the United States, has ruled the original 1914 agreement allowing the city to divert 100 million gallons of water a day -- twice its current use -- from Shoal Lake via an aqueduct does not permit the distribution of water beyond city limits.

The city has signed a water-sharing agreement with West St. Paul and had hoped to conclude similar deals with other municipalities, which corresponded with the province's policy of encouraging the development of shared services in the capital region.

The province and city were also counting on a water deal for CentrePort, a new inland port and transportation hub, but that water project is also on full stop because the land is located in the Rural Municipality of Rosser.

It is remarkable both governments were unaware of the terms of the IJC agreement, particularly since residents in the Kenora region have been raising concerns about the existing agreement for several years. They are concerned today, as they were in 1914, that the diversion of water from Shoal Lake, which is connected to Lake of the Woods, could affect development in the region, as well as navigation and tourism. The Town of Kenora has also asked for public hearings before Winnipeg is granted any change in water usage.

It could be years before the IJC resolves the impasse.

The city and province also displayed incredibly bad judgment by snubbing two First Nations at Shoal Lake, the source of the city's drinking water since 1919.

The city is primarily responsible, but Premier Greg Selinger -- whose support the bands also sought to no avail -- should also have known better than to ignore two critical elements of the aboriginal claims, including the right to be consulted on issues affecting their territory and the fact aboriginals have increasingly been successful in the courts in asserting their rights to resources.

The courts have not ruled First Nations may own water, but some legal opinions say aboriginals can claim the right to control and use water connected to their land.

At this point, it doesn't matter if the First Nations have a valid claim, or if the IJC is being excessively bureaucratic. The fact is any plans to move water outside the city's boundaries have been sunk for the foreseeable future.

The history of the city's right to divert water from Shoal Lake is long and complicated, but the current dispute began in 2011 after city council announced plans to extend water services to CentrePort and to West St. Paul.

That led to a complaint from one of the two Shoal Lake bands, No. 39 (later joined by No. 40), which said the city had no right to distribute water outside municipal boundaries under the original IJC order. The bands also believe the city needs to negotiate with them on the use of what they consider their resource.

Even if the IJC problem is resolved in the city's favour, the aboriginal claims will not evaporate. The two First Nations have asked for a judicial review of the city's plans, but what they really want is negotiation.

They are seeking compensation, because they say their way of life was severely impaired when the city was allowed to turn the lake into an exclusive reservoir. (Band No. 40 did receive $6 million in 1989 in return for a ban on development around the lake, but it has since decided the deal was unfair.)

The city has said it might annex the municipalities it wants to serve, but it's not clear that would solve its problems with the IJC, and it certainly wouldn't end the aboriginal claims. There's also the fact the affected municipalities aren't interested in joining Winnipeg. The NDP has opposed such suggestions in the past.

So, where does all this leave the city, CentrePort, and the municipalities that were counting on Winnipeg's treated water? High and dry, obviously. But what to do next?

A good first step would be to talk to the First Nations. If the federal government had done that when the Kapyong Barracks first became available, that land might be under development now, instead of an ugly patch of weeds and empty buildings, the source of interminable legal squabbling. A resolution of their complaints followed by a favourable ruling from the IJC, perhaps with a little nudging from the federal government, could at least open the door to development in the future.

That, of course, doesn't help CentrePort, which is desperate now for a reliable water source. Engineers looking at alternatives should pursue them with even greater haste, since a quick resolution of the Shoal Lake dispute seems unlikely.

The city was warned by the two aboriginal bands it had not done its homework on this file, but civic officials said they were supremely confident in their position. The province was silent during the whole affair, apparently also confident in the city's external legal advice.

The issues, however, are too important to be put on the back burner while everyone waits for something to happen.

The very ability of the city and its neighbours to grow is at stake. The possibility the capital region could be denied the water it needs to thrive when an ample supply of treated water is available is not acceptable.

The province itself has said the current system of private wells, aquifers and septic fields outside Winnipeg is not sustainable.

That's why the three levels of government must work together immediately to end the uncertainty and establish new, sensible guidelines that will serve the long-term interests of the region.

Editorials are the consensus view of the Winnipeg Free Press’ editorial board, comprising Catherine Mitchell, David O’Brien, Shannon Sampert, and Paul Samyn.

Republished from the Winnipeg Free Press print edition May 4, 2013 A14

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