Dalhousie Law Journal


aboriginal, water, rights, Canada, Alberta, Northwest Territories, Makenzie River Basin, negotiation


Due to constitutional protection of Aboriginal water rights, the Canadian government has a duty to consult Aboriginal peoples in water-related decision making. In 2015, Alberta and the Northwest Territories signed an agreement for managing their shared waters in the Mackenzie River Basin. In light of Canada's record, observers have praised the preceding negotiation process as pathbreaking due to its high level of Aboriginal involvement. To evaluate such claims, this paper analyzes Aboriginal consultations in the 2011-2015 NWT-Alberta transboundary water negotiation. The comparative case study reaches the following conclusions. In their bilateral water negotiation, the two jurisdictions differed markedly in terns of consultative approaches. While Alberta was oriented towards legal minimum requirements under Canadian constitutional law. the NWT implemented extensive consultations characterized by early involvement, multifaceted engagement mechanisms, emphasis on dialogue and collaboration, capacity building, and recognition ofAboriginal groups as governments. Although shortcomings remained in terms of directAboriginal access and accommodation, the NWT achieved a high standard of consultation, which aligns with emerging thinking on the international principle of free, prior; and informed consent (FPIC). Overall, the NWT experience holds important implications for moving FPIC from an international norm to a domestic template for action in Canada.