Terms of Reference (Governance Body)

Elk-Kootenai/y Watershed Governance Body Terms of Reference 

1) Preamble 

On March 8, 2024, the International Joint Commission (IJC) received a Reference under Article IX of the Boundary Waters Treaty from the Governments of the United States and Canada, in partnership with the Ktunaxa Nation,[1] , asking the IJC to carry out certain actions to address the impacts of transboundary water pollution in the Elk-Kootenai/y Watershed (referred to herein and geographically known as the Kootenai/y watershed). The IJC Reference incorporates a Proposal that was developed by Canada and the United States in partnership with the Ktunaxa Nation (the Reference and Proposal are collectively referred to in this document as the “IJC Reference”). See Appendix 1 for additional historical context. 

The IJC Reference reflects the concurrence of the United States, Canada, and the Ktunaxa Nation regarding the need for: 

  • collaborative governance to ensure more timely action to reduce and mitigate the impacts of water pollution in the Kootenai/y watershed to protect the people and species that depend on this vital river system; 
  • transparent and coordinated transboundary data and knowledge sharing, science, monitoring, and analysis to support a common understanding of pollution within the Kootenai/y watershed; and 
  • transparent reporting on progress. 

The IJC Reference requested the IJC to: 

  • assist in the establishment of a Governance Body comprised of the Governments of the United States, Canada, the Ktunaxa Nation, British Columbia, Idaho, and Montana (the “named governments”) (see Appendix 2 for additional information); and 
  • convene experts and knowledge holders in a Study Board to report and make recommendations to the Governance Body to reduce and mitigate the impacts of water pollution in the Kootenai/y watershed. 

This Terms of Reference establishes the Governance Body contemplated by the IJC Reference. 

[1] For the purposes of this document, the Ktunaxa Nation is defined to include six Tribal and First Nation governments:   ʔa·kisq̓nuk,  ʔaq̓am, yaqan nuʔkiy,  Yaq̓it ʔa·knuqⱡiʾit (Tobacco Plains Indian Band), Confederated Salish and Kootenai Tribes (Ksanka Band), and  ʔaq̓anqmi (Kootenai Tribe of Idaho). 

2)  Mandate of the Governance Body 

a) Objective 

The objective of the Governance Body is, through collaborative governance relationships and approaches that build trust amongst the members, to co-develop options to enable more timely actions that reduce and mitigate the impacts of water pollution in order to  protect the people and species in the Kootenai/y watershed. 

The objective of the Governance Body will be attained by fulfillment of the functions set forth in this Mandate. 

b) Operating Principles 

The Governance Body will be guided by principles of transparency, open communication, good faith, accountability, timeliness and respect, and will work inclusively, collaboratively, and with a positive spirit of cooperation and respect for the jurisdiction of each government.  

c) Functions 

The Governance Body will: 

  • review reports and recommendations from the Study Board; 
  • identify and recommend actions and resources needed to fill priority data, monitoring, research, and reporting needs; 
  • identify complementary and non-duplicative opportunities, based on a shared understanding of existing work, supported by science and Indigenous knowledge, to reduce and mitigate the impacts of water pollution and protect the people and species in the Kootenai/y watershed; 
  • develop an action plan to reduce and mitigate the impacts of water pollution in the Kootenai/y watershed in order to protect the people and species that depend on this vital river system; 
  • report on progress towards achieving the objective and functions described in this Terms of Reference; 
  • work collaboratively with the IJC, including by considering the IJC’s recommendation regarding its possible ongoing role with respect to the Governance Body, and by making a decision with regard to the IJC’s future role by March 2026;    
  • at its discretion, take any other action necessary to achieve the objective; and 
  • avoid taking actions or adopting decisions that would conflict with relevant, existing transboundary water management rights and obligations between the United States and Canada, such as those under existing orders from the IJC, the Boundary Waters Treaty of 1909, and the Columbia River Treaty. 

d) Membership 

The Governance Body should be as small as possible to maximize efficiency, but it must also be sufficiently large to ensure inclusivity. 

To accomplish those goals, the Governance Body will be comprised of eighteen (18) members, six each from the United States, Canada and the Ktunaxa Nation. The Canadian delegation will have three (3) seats for the Canadian federal government and three (3) for the government of the Province of British Columbia. The United States delegation will have at least one (1) seat each for the U.S. federal government and the governments of the States of Montana and Idaho. Each government may select the individuals who occupy its respective seats and all members must be employees of their respective governments. Subject to those requirements, the distribution of seats within delegations is not subject to Governance Body approval.

Selection: Each member will be selected to serve, with the understanding that a member or the member’s government may curtail the member’s service, in which case the curtailing member’s government will select a new member to replace the departing member. New or replacement members should be selected without delay. 

Each member of the Governance Body will be an individual vested with sufficient decision-making authority by their respective government to be effective in this role, which includes being able to make and advance the commitments necessary to achieve the Mandate. 

Alternates: If a member has an unavoidable scheduling conflict with a meeting of the Governance Body, that member may identify an alternate on an ad hoc basis to participate on their behalf and who is vested with the member’s own decision-making authority.  If a member is absent and not represented by an alternate, that member’s absence will not negatively impact the achievement of quorum. An alternate will be considered a member at the meeting they attend for all procedural purposes including quorum and consensus. 

3) Governance Body Roles  

a) Members 

Governance Body members will: 

  • share their government’s interests and perspectives in the context of and for the purpose of achieving the Mandate of the Governance Body; 
  • commit to the principle of transparency and constructive collaboration as they share views, information, and data science and Indigenous knowledge; 
  • commit to learning about the jurisdictions, laws, policies, and processes of the other Governance Body members; 
  • respect each other’s jurisdictions, inherent authorities and constraints while working to find effective mechanisms for collaboration to achieve the Mandate; 
  • be accountable for implementing and reporting back to the Governance Body regarding commitments they make or that are made by their governments at the Governance Body; 
  • endeavour to work efficiently, avoiding work that the Governance Body views as duplicative. 
  • ensure on an ongoing basis that their own government remains fully informed and up to date regarding the work and timelines of the Governance Body; 
  • prioritize the work of the Governance Body to ensure that it will function effectively and efficiently; 
  • make best efforts to attend all meetings and, in the event of unavoidable conflict, appoint an alternate to participate; and 
  • be familiar with the contents of these Terms of Reference and the IJC Reference, review relevant information and be fully prepared to participate in meetings. 

b) Co-Chairs 

There will be three co-chairs of the Governance Body, one each from the United States, Canada, and the Ktunaxa Nation. One member of each delegation will serve as co-chair for a renewable term of one year. Co-chairs from Canada and the United States can be from either federal or subnational governments. 

Each co-chair will serve as a single point of contact between the delegation and the Secretariat regarding matters including but not limited to: 

  • coordinating among the members of their delegation to ensure timely and efficient communication between them; 
  • conveying to the Secretariat notice of their delegation’s approval of agendas; 
  • confirming the names of participants in advance of each meeting; 
  • identify alternate participants if a delegation member has an unavoidable scheduling conflict and has not identified an alternate; 
  • conveying to the Secretariat notice of their delegation’s approval of minutes; 
  • responding in a timely way to any request from members of the delegation and any requests from the Secretariat; and 
  • ensuring their delegation’s timely and full reporting on progress on work plans, activities, and accomplishments. 

c) Committees 

The Governance Body may establish committees as needed to carry out its work under these Terms of Reference. For new committees, the composition and mandates of such bodies will be agreed to by the Governance Body and the Governance Body will select co-chairs. 

All committee(s) may meet (in person or virtually) as necessary to prepare for Governance Body meetings, undertake implementation work, and make recommendations. Each delegation is encouraged to have representation on any committee formed to support the work of the Governance Body. 

4) Governance Body Decision-making 

a) Scope of Decision-making 

The Governance Body will make decisions by consensus regarding non-administrative matters, including any matter or question listed as a Function of the Governance Body in s. 2(c) of these Terms of Reference. 

Administrative decisions may be made by the Secretariat based on input from co-chairs and are not subject to consensus decision-making. Administrative decisions include matters relating to scheduling meetings, developing agendas, establishing timelines, and other matters reserved for the Secretariat under s.5 of these Terms of Reference. 

b) Quorum 

All members must have a reasonable opportunity to participate in the consensus process, and quorum is achieved when all members (or alternates) are in attendance. If a member is absent and is not represented by an alternate, that absence does not negatively impact achievement of quorum. If a seat is vacant pending selection or replacement of a member, the vacancy does not negatively impact the achievement of quorum. 

c) Consensus Decision-Making 

Decisions of the Governance Body require a quorum, its decisions are made exclusively at meetings of the Governance Body (unless an exception is approved by all Governance Body members), and all decisions will be made by consensus. 

Consensus is defined as general agreement on a decision or a course of action that considers and reconciles the views of all Governance Body members and to which no member formally notes an express objection. 

Two distinct forms of opposition to a proposed decision are contemplated. First, a member may indicate a “reservation” regarding a proposed decision. A reservation indicates that the member is willing to allow a proposed decision to pass despite concerns, objections, or disagreements. Reservations are formally recorded in meeting minutes. Second, a member may indicate an “express objection” regarding a proposed decision. An express objection indicates that the member is not willing to allow the proposed decision to pass because of concerns, objections, or disagreements. 

Consensus may be achieved even where one or more members indicate reservation.  If a member has made an express objection, the matter should proceed in accordance with the process outlined below. 

The process of achieving consensus includes:  

  • articulating interests (why something is desired) rather than resorting to positions (one specific mechanism to achieve that interest); 
  • seeking to discover new information that might create deeper understanding; 
  • working diligently to create alternate options or means to achieve interests, and giving deep consideration to the options presented by others; 
  • maintaining curiosity when discussing interests and developing options to achieve those interests; 
  • taking the time necessary to discuss the matter fully; 
  • being willing to accept decisions that are not optimal (reservations, but not express objection); 
  • continuing discussion unless it is agreed that consensus will not be reached; 
  • clearly articulating the point of agreement, reservation or express objection in the minutes; and, 
  • resolving points of non-consensus. 

The achievement of consensus is confirmed by the Secretariat in its role as neutral facilitator. The status of consensus is marked by verbal indication of a member’s agreement, reservation, or express objection and is noted in the minutes. 

If achieving consensus on a matter appears to be nearing an impasse, the Secretariat will assign the matter to a committee charged with resolving points of non-consensus, which the Governance Body will create as soon as practicable after June 30, 2024. The committee will attempt to identify (through information gathering, discussion, and formulation of recommendations) ways for the Governance Body to achieve consensus and will report its findings to the Governance Body. The IJC will facilitate and provide advice and assistance to the committee throughout this process, including in the development of recommendations to the Governance Body. If, after thorough consideration of the committee’s report, the Governance Body is still unable to reach consensus, the Governance Body’s point of non-consensus will be recorded in the minutes. 

The IJC will be available to serve the role described in this paragraph until March 2026. After that date, the IJC may continue in that role, subject to consensus of the members and issuance of any necessary authority to the IJC, consistent with Article IX of the Boundary Waters Treaty.   

d) Effect of Decisions of Governance Body 

Decisions of the Governance Body represent a commitment of each member and their government to take all reasonable steps to implement the decision using that government’s jurisdictional authority. All decisions will recognize and respect the legal authorities and obligations of each of the governments. 

If immediate implementation of a decision of the Governance Body is not possible given jurisdictional, legislative or policy barriers of their government, the relevant Governance Body member will immediately inform the Governance Body of the barrier along with a strategy or plan for addressing the barrier to implementation of the decision. 

e) Information for Decision-Making 

All Governance Body members will bring the best available science and Indigenous knowledge (where deemed appropriate by Ktunaxa members) to the Governance Body to support its effective and defensible decision-making. The Governance Body may consider the use of confidentiality instruments and other tools or mechanisms to ensure its access to the best available science and Indigenous knowledge. The Governance Body will ensure administrative provisions are in place for the protection of information regarding Indigenous knowledge and cultural resources. 

f) Accountability 

To ensure that the Governance Body is accountable for its decisions, it will: 

  • record in the minutes each decision it makes; 
  • identify who is responsible for implementation of each decision; 
  • identify a timeline for implementation of the decision; 
  • require members to report back to the Governance Body on status of implementation of decisions; 
  • develop an action plan no more than six months after receipt of the final report and recommendation of the Study Board. 
  • ensure public availability of its agendas, meeting minutes and reports, subject to the caveat that matters involving cultural resources or Indigenous knowledge may be kept confidential at the request of the Ktunaxa Nation governments and protected from disclosure to the extent allowable by law.   

5) Secretariat 

The Secretariat for the Governance Body will attend all its meetings, providing independent and impartial assistance, advice, and meeting facilitation to the Governance Body as it works to fulfill its Mandate.   

The Secretariat will carry out duties assigned to it by the co-chairs of the Governance Body, including: 

  • organizing, planning, and convening meetings, including circulating meeting agendas for prior approval, maintaining records of meeting attendance, providing for minutes to be taken, circulating minutes for approval, and arranging for public posting of approved agendas and minutes, 
  • serving as neutral guiding facilitator for all Governance Body meetings, with functions including but not limited to leading discussion based on approved agenda items, assisting with defining common interests and options, and assisting with the consensus process. 
  • liaising with the co-chairs; 
  • assisting the Governance Body in achieving accountability; 
  • liaising with the Study Board and ensuring that Study Board updates will be placed on the Governance Body’s meeting agenda as needed; and 
  • supporting work planning activities of the Governance Body (annual identification and approval of its planned work and inclusion in meeting minutes). 

The IJC will serve as the Governance Body Secretariat until March 2026.  After that date, the IJC may continue in that role, subject to consensus of the members and issuance of any necessary authority to the IJC, consistent with Article IX of the Boundary Waters Treaty.

6) Administration   

a) Meetings 

Agenda: The Secretariat will circulate the meeting agenda at least sixty (60) calendar days before. Governance Body members may propose additional agenda items and sequencing in writing to the Secretariat within thirty (30) calendar days of the meeting.  No later than fifteen (15) days before the meeting, the Secretariat will circulate the revised draft agenda to Governance Body members along with any explanatory or other documents. A final agenda will be adopted by a decision of the Governance Body members at the opening of each meeting. 

Attendance: At least seven (7) days prior to a Governance Body meeting, Governance Body members will confirm in writing to the Secretariat the names of participants. Governance Body members will make efforts to attend meetings (or to send a designated alternate if necessary).  If a Governance Body member is unable to attend a scheduled Governance Body meeting, they should designate an alternate at a sufficient level of seniority to ensure their government is fully represented. 

Expenses: The government hosting the meeting will ordinarily cover any requirements and costs of the meeting including securing an appropriate space with video conferencing capabilities. 

Frequency: the Governance Body will meet at least 3 (three) times per year, once in person, and the others virtually. Committees will meet on a schedule determined by the Governance Body, as necessary to fulfill their responsibilities. 

Location: In-person meetings will alternate among locations proposed and approved by the Governance Body. 

Minutes: The Secretariat will circulate minutes to all Governance Body members within ten (10) working days of the conclusion of the meeting. Governance Body members will approve the minutes within twenty (20) working days of receipt. 

Guests:  Guests include people who are not employees of the named governments, but who have Indigenous, or policy knowledge that is relevant to the agenda of a Governance Body meeting, and who are invited by a member to attend a specific meeting or meetings in light of the agenda topics. Their participation is subject to approval by the consensus of Governance Body members.  Guests may be invited to give presentations, answer questions, or participate in discussions but have no decision-making role and may not observe or participate in consensus decision-making discussions.   

Technical / Support Staff: Technical and Support staff and observers include people who are employees of the member governments, and who have technical, Indigenous, policy or logistical knowledge that is relevant to the agenda of a Governance Body meeting. Meeting attendance of technical and support staff is at the discretion of the respective delegations.  Technical / support staff have no decision-making role and may observe but may not participate in consensus decision-making discussions. 

Communications: Governance Body external communications will be subject to protocols developed by the Governance Body as soon as practicable. 

Proceedings: At meetings, unless decided otherwise, discussions or decisions will not occur on any matter which has not been included as an item in an agenda adopted in accordance with these Terms of Reference. 

Posting: The Secretariat will publicly post all agendas, meeting minutes, and reports of the Governance Body, once approved by the Governance Body. 

b) Participation Requests 

The Governance Body will give due consideration, on a case-by-case basis, to requests for participation on the Governance Body by other governments. 

7) Terms of Reference Review 

The Secretariat will facilitate a Terms of Reference Review prior to March 2026.  Any amendments to these Terms of Reference require approval by consensus of the Governance Body. 

8) Definitions 

Elk-Kootenai/y Watershed 

The IJC Reference defines the Elk-Kootenai/y Watershed, referred to herein and geographically known as the Kootenai/y watershed, to include “the Kootenai/y River flowing through Canada and the United States to its confluence with the Columbia River downstream in Canada, the Elk Subbasin, Koocanusa Reservoir, and Kootenay Lake.” 

According to the Ktunaxa Creation Story, the Kootenai/y River is central to and woven into the heart of ʔamakʔis Ktunaxa (Ktunaxa Territory). The headwaters of the Kootenay River flow from the Ktunaxa land district of kyawa¢ ʔamakʔis (known as Kootenay National Park in southeastern British Columbia) and the ʔakisq̓ nuk First Nation, before flowing south through ʔaknuqǂuǂam̓ ʔamakʔis and the First Nation of ʔaq̓ am. From there it receives flows from the Elk River (from qukin ʔamakʔis) and flows downstream through Ȼam̓ na ʔamakis and the First Nation of Yaq̓ it ʔa·knuqⱡiʾit. The river continues its journey through ʔamakʔis Ktunaxa (Ktunaxa homelands) before crossing the (colonially imposed) international boundary, into what is known as present day Montana. The Kootenai River then flows through the Ktunaxa territories of k ̓upawi¢q̓ nuk (Ksanka Band, Confederated Salish and Kootenai Tribes of the Flathead Indian Reservation) and ʔaq̓ anqmi (Kootenai Tribe of Idaho near Bonners Ferry, Idaho) before turning north and once again crossing the international boundary flowing through the First Nation of yaqan nuʔkiy and into Kootenay Lake. 

Indigenous knowledge 

Indigenous Knowledge is the collective knowledge that Indigenous Nations and Peoples have developed over millennia living on the land. It is interdisciplinary, including scientific, medicinal, agricultural, technical and ecological knowledge. It covers both what can be observed and what can be thought and is transmitted from generation to generation. The Ktunaxa Nation will bring forward Indigenous Knowledge to the Governance Body in a manner appropriate to the issue and with respect to the sensitive nature of certain Indigenous Knowledge. 

Impacts of Water Pollution include but are not limited to: 

  • Influences on, sources of, status of, and trends in pollution in water and associated effects on ecosystem health, including but not limited to fish and aquatic life, wildlife, human health, and cultural uses in the Kootenai/y watershed and 
  • Water quality issues including contaminants of concern, areas, and water and ecological resources affected. 

9) Legal Effect and Approvals 

These Terms of Reference do not give rise to or otherwise affect any rights or obligations under international or domestic law. 

These Terms of Reference are effective when all Governments are authorized to enter into them. Governments will advise the Secretariat in writing upon receipt of the necessary final approvals. Work may proceed under these Terms of Reference on an interim basis pending those final approvals. 
 

Appendix 1: History and Chronology 

In October 2012, the transboundary Ktunaxa Nation first requested a reference to the International Joint Commission on the matter of impaired water quality in the Kootenai/y River, pursuant to Article IX of the Boundary Waters Treaty of 1909. In February 2021, the State of Montana set, and the U.S. Environmental Protection Agency approved, a site-specific water quality criteria for Koocanusa Reservoir under the Clean Water Act. This resulted in increased Ktunaxa and U.S. pursuance of an IJC reference in 2021, 2022, and 2023. 

On March 24, 2023 President Biden and Prime Minister Trudeau issued a Joint Statement expressing the shared intention to reach an agreement in principle “to reduce and mitigate the impacts of water pollution in the Elk-Kootenai watershed, in partnership with Tribal Nations and Indigenous Peoples, and in order to protect the people and species that depend on this vital river system.” 

On March 8, 2024, the International Joint Commission (IJC) received a Reference under Article IX of the Boundary Waters Treaty from the Governments of the United States and Canada, in partnership with the Ktunaxa Nation, asking the IJC to carry out certain actions to address the impacts of transboundary water pollution in the Kootenai/y Watershed. The Proposal was based on discussions between representatives of Canada, the United States, and Ktunaxa, and a review and respect for the 2023 proposals from Canada, the United States, Ktunaxa and the Province of British Columbia. The Province of British Columbia indicated its commitment to fully engage in this process. The IJC Reference was accompanied by a Joint Statement from the six Ktunaxa governments indicating that the Ktunaxa governments were involved in the development of the IJC Reference and were in support of the Proposal. 

The Proposal reflected the concurrence of the United States, Canada, and the Ktunaxa Nation, regarding the need for:  

  1. collaborative governance to ensure more timely action to reduce and mitigate the impacts of water pollution in the Kootenai/y watershed to protect the people and species that depend on this vital river system;  
  2. transparent and coordinated transboundary data and knowledge sharing, science, monitoring, and analysis to support a collective understanding of pollution within the Kootenai/y watershed; and  
  3. transparent reporting on progress. 

The IJC Reference requested the IJC to (1) assist in the establishment of a Governance Body, and (2) convene experts and knowledge holders in a Study Board to report and make recommendations to the Governance Body to reduce and mitigate the impacts of water pollution in the Kootenai/y watershed, consistent with the Joint Statement of President Biden and Prime Minister Trudeau of March 24, 2023. 

On March 11, 2024 the Ambassador of the United States to Canada, David L. Cohen, and the Ambassador of Canada to the United States, Kirsten Hillman, issued a Joint Statement announcing that the IJC Reference reflects the two countries’ “understanding on next steps to further bilateral cooperation to reduce and mitigate the impacts of water pollution in the Elk Kootenai/y watershed.”  The Statement noted that both countries “are committed to a collaborative, science, and Indigenous knowledge based, action-oriented path forward,” and that both countries welcome the opportunity to work together with the IJC and their partners in the region “to further our collaboration on this important work.”  On March 11, the Province of British Columbia also released a joint statement from Ministers welcoming the statement by the Canadian and American ambassadors.   

Appendix 2: IJC Role in the Establishment of the Governance Body 

The IJC Reference documents contemplates that the governments will develop a Terms of Reference to establish a Governance Body by June 30, 2024. To that end, the IJC Reference provides detailed guidance to the IJC regarding its role in the development of Governance Body, asking the IJC to do the following: 

  • invite representatives of the federal and Ktunaxa Governments, the Province of British Columbia and the States of Idaho and Montana (hereafter referred to as “the named governments”), to a series of targeted engagements, as soon as possible, convened and facilitated by the IJC, serving as secretariat, to assist the named governments as the governments develop the Terms of Reference for a Governance Body; 
  • to convene the governments and facilitate conversations; 
  • to assist in the development of a draft Terms of Reference; 
  • to provide the Commission’s insights and expertise on the Terms of Reference, the structure of a Governance Body, and the possible role of the IJC regarding the Governance Body; and 
  • to provide continued assistance and advice for two years following the IJC Reference date of March 8, 2024.