The Boundary Waters Treaty 1909 - a peace treaty? (2024)

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International Joint Commission

The following is the text of the 7th Annual Canada-United StatesLaw Institute Distinguished Lecture given at Western University Facultyof Law by Commissioner Gordon Walker, Q.C., on Oct. 29, 2013. A nativeof St. Thomas, Ontario, and a graduate of Western University, from whichhe received a B.A. and LL.B., Mr. Walker served as Member of ProvincialParliament for London from 1971 to 1985, including as Minister ofCorrectional Services, Provincial Secretary for Justice. Minister ofConsumer and Commercial Relations, and Minister of Industry and Trade.From 1992 until 1995 Mr. Walker served the International JointCommission (IJC) as a Canadian Commissioner. He was reappointed to theIJC in June 2013 and currently serves as both Commissioner and CanadianChair.

It is my distinct honour to present the 7th annual Canada-UnitedStates Law Institute's distinguished lecture here at WesternUniversity.

Western's School of Law has shaped my law career, over thepast five decades--whether it was the practice of law, the making oflaw, or the administering of law. Not a day goes by when the basicgrounding I received here at Western has not played a role. Perhaps Ihelped shape the University somewhat as the Act that governs thisUniversity at one point for a decade carried my name as its sponsor inthe Ontario Legislature.

The purpose of the Canada-United States Law Institute is identifiedas serving as a forum for exploration and debate about legal aspects ofCanada-United States relations.

If one were to look for a case study to best examine the relationsbetween the two countries then the Boundary Waters Treaty (BWT) of 1909(1) is perhaps the best place to look. The Boundary Waters Treatyestablished the International Joint Commission (IJC) (2) as a permanentCommission. It is all there.

The title of this lecture is--"The Boundary Waters Treaty1909--a Peace Treaty? With that title, I pose the question of whetherthe Boundary Waters Treaty is a treaty about water resources per se--oris it really more accurately viewed as a Peace Treaty?

Before I get to the Treaty I think we need to be clear on whatconstitutes a peace treaty. The common understanding is that a peacetreaty contains provisions to end hostilities between two nations byresolving the issues that led to the conflict in the first place, aswell as providing for the resolution of future conflicts, before theyescalate reopening hostilities.

In short, an effective peace treaty should both: end the conflictand keep the peace. And so with that I will set out my general thesisfor this Lecture, namely that the BWT has been, for over 100 years, andcontinues to be, a model agreement between two nations for theprevention and resolution of disputes. Now some historical context tohelp play this out.

Water and water rights have been important and enduring issues inthe longstanding and generally amicable relationship between Canada andthe United States since the American War of Independence. A number oftreaties preceded the BWT and are worth mentioning here for context. TheDefinitive Treaty of Peace, (3) concluded in 1783 between Great Britainand the United States, recognized that each country had jurisdictionover waters on its own side of the border. During the following century,Great Britain and the United States concluded several treaties toresolve disputes, all with provisions relating to the use of waterflowing along or across the boundary, particularly for navigation. Themore notable ones included the 1794 Jay Treaty, (4) which althoughmostly known for Article III giving Native Americans the right tocrisscross the border, settled leftover disputes from the USRevolutionary War and bought about 10 years of peace; the 1817Rush-Bagot Agreement, (5) which demilitarized the Great Lakes and LakeChamplain; and the 1871 Treaty of Washington (6) which settled a disputeover the location of the Pacific border in Juan de Fuca Strait, thefirst border dispute in the world to be settled by arbitration with thearbitrator appointing a three person Commission to determine the factsand recommend a solution.

Of particular note for purposes of this discussion is theInternational Waterways Commission, (7) which operated officially from1905 to 1913, of which

I will speak in more detail later but first, let us look at what isencompassed in the Boundary Waters Treaty.

The words "boundary waters" seem succinct, indeed easy tosay--but for Canada and United States the boundary waters are inproportions unparalleled in the world. Boundary waters are those waterswhich cross the boundary, or which make up the boundary--there beingobvious examples like the Great Lakes and the St. Lawrence River, buteven these proportions are huge!

* 1500 miles--some 2400 kilometres from one end to the other

* 40% of the boundary either bisecting, or transecting shared,lakes, rivers and streams

* 20% of the world's freshwater

* In places more than a thousand feet deep and in other places buta few feet.

But those lakes are not our only boundary waters. The boundarywaters encompass over 300 lakes and rivers across, along and over ourcommon border, from the Bay of Fundy to the Straits of Juan de Fuca, tothe Beaufort Sea in the north.

With 10,000 miles of coastline in the Great Lakes and with a borderthe full length, the possibility of issues abound.

When we think of the Great Lakes, we must also keep in mind thatthe basin, or the watershed, is part of this same territory--and thisbasin is so big that it is larger than several European countries.Economically, taken on its own, it would comprise the 8th largesteconomy in the world. The "Laurentian Great Lakes", as theyare sometimes referred to, are truly an ecological and economicpowerhouse in the heart of North America.

In fact we here today are situated beside the Thames River, one ofthe great tributaries coursing within a few hundred feet, traveling allthe way to Lake St. Clair, some 200 from miles headwater to delta. Weall drink Great Lakes water. In fact 40 million people drink that waterevery day, even if they take it from a plastic bottle. Lake Fluron wateris piped directly to the fountain in the hallway here at this Faculty ofLaw. We stand in the watershed of Lake St. Clair; and 10 miles south isthe Lake Erie watershed, and 10 miles north, the Lake Huron watershed.If we measured all the groundwater in the basin it would surpass that ofLake Michigan, and that is one deep lake. The Great Lakes basinencompasses parts of eight States of the Union and two Provinces ofCanada. Now that is just part of the IJC's coast to coast to coastdomain, though a big part.

The other 300 lakes and rivers across Canada that fall within thedefinition of "boundary waters" under the BWT, begin in theeast from where the St. Croix River touches Passamaquoddy Bay in NewBrunswick/Maine, move to the Richelieu River as part of the LakeChamplain basin, and Rainy River--Lake of the Woods basins in Ontarioand Minnesota, and the Red River in Manitoba and North Dakota, and theSouris and all the way across to the Columbia in BC and Washington; andeven stretching up to the Yukon River in Alaska. I mention thoserevealing statistics to demonstrate the immensity of the territorycovered by the BWT and to highlight the potential for conflict as humansinteract along every inch of the way.

Across it all runs a line--a boundary line--that is only visible ona map--or by the occasional signpost, or perhaps a border crossing atthe end of some roadway in one country or another.

That boundary line is easy to draw, but for over half the width ofour country it is invisible as it courses through the centre ofwaterways--and across that terrestrial part of the border, a mere swathof land 6 meters wide, 3 on each side kept trim to denote the line ofdemarcation--even in pristine protected wilderness areas such as theWaterton-Glacier International Peace Park. And on the waterways, shipscross it regularly, only knowing where they are with the help of aGlobal Positioning Satellite or GPS, but not caring which side of theborder they are on, for neither do the waves, the fish, nor thecurrents, nor the pollution.

It is wonderful that we have an 8,891 Km (5,525 mile) border thatis undefended. We have good relations between Canada and the US so wecan have that kind of border.

But it has not always been that way. There was a time when therewas open conflict between our nations.

200 years ago today, the peoples of Canada and United States werelocked in a war--over many things, but largely it was the border. OnOctober 5th, 1813, the Battle of the Thames, not 50 miles west of hereat a place called Moraviantown which, from here, saw the British routedby General Harrison, who went on to be a President. And dying on thebattlefield was that great Aboriginal Chief Tec*mseh. And the BritishGeneral and his regulars and Canadian militias retreating along theThames to these forks where we are today, and beyond. (A battle that wasre-enacted on its bicentennial just a few weeks ago). But the seesawback and forth, saw the British rout the Americans on October 26thsouthwest of Montreal at Chateauguay, Quebec, with de Saliberry'sgreat victory where 300 men in battle repulsed an army of 3000, savingMontreal. Stalemate is frequently the description of the outcome of thatWar. At the end of that War, the two countries each had a lot morerespect for the other, and the border, well it remained unchanged.

In fact there were three countries involved in this War--GreatBritain, and of course it played a huge role, as Canada was but acolony, and of course, the United States.

I mention these countries because 100 years later the same playerswere at it once again, Britain, United States, and the Dominion ofCanada--as it was then called, reflecting its semi-independent colonialstatus.

Admittedly, 100 years ago today, relations had become better; butonly marginally. In the decade before, the relations amongst those threecountries were on tenterhooks. The United States and Britain weregetting along pretty nicely, in fact Britain had been making nice toU.S. for many years as it attempted to counter the growing strength ofGermany in a military arms race. Yet by the turn of the century Canadastill had its problems with United States, and Britain was stillCanada's protector, indeed its only voice on the world stage--therebeing no Canadian capacity for foreign affairs and no department offoreign affairs. Canada was barely 30 years old, a country that hadknitted together a string of British colonies stretched across 5000miles connected by nothing more than a line on a map, and a railway linecalled the Canadian Pacific Railway, and very few people living inbetween. Canada had come together as a nation largely to thwart northernexpansion of the United States, it being noted that on the day Canadabecame a country, July 1st 1867, that very day United States acquiredAlaska from the Russians. American Secretary of State Seward who alwaysintended on enlarging the US frontiers, had now bookended Canada withthe States to the south and the new territory to the north.

So towards the turn of the 20th century there were issues that werecausing friction--indeed which might have led to war.

For one, there was the Alaska Panhandle dispute, a border questionbetween Canada and U.S., over the position of the line between Alaskaand B.C. It had not been resolved since the days of Russian ownership ofAlaska, and suddenly with the 1898 Klondike Gold Rush this narrow stripof no man's land took on big proportions. It was a question ofwhether the line of demarcation would be along one set of mountain topsor another just a few miles distant; really not much of an issue onewould think. However, it led President Teddy Roosevelt to threaten tosend in the marines if U.S. did not get its way and having been late ofthe Spanish American War where he made his name winning that battle withmarines, he was certainly not to be ignored. He even threw out the line,"Walk softly and carry a big stick"--a phrase that certaincaught the attention of Canada, now led by Prime Minister Sir WilfridLaurier.

And there was the question of the Milk and St. Mary River inAlberta, Saskatchewan and Montana. The Americans dammed up one river,and built canals for irrigation; the Canadians retaliated by starting todig their own canal. It escalated to the point where many thought itwould lead to violence. Disputes over other waters were developing too.On the Niagara River diversions for electricity were threatening thescenic beauty of Niagara Falls. On the Rainy River-Lake of the Woodsthere was conflict over what should be the proper water level fornavigation, hydro production and farming. Of course when it comes towater, one level "size" does not fit all and so the conflictscontinued. For Canada, the diversion of Lake Michigan water at Chicagowas another concern. The Canadian Government was troubled at theprospect that unilateral actions on the part of the U.S. to divert morewater out of Lake Michigan would lower Lake Huron and would haveeconomic impacts in terms of lost revenues generating hydropower at theNiagara Falls and necessitate lighter loads for shipping. Somehow itdidn't seem fair nor equitable: even though Lake Michigan is theonly Great Lake that's located wholly within one country,presumably Canada should have some say in the diversion; for if LakeMichigan had lower levels of water, that would affect Lake Huron as theyare one and the same lake hydrologically. These are but a few examplesof conflict. In fact there were conflicts developing all along theboundary waters between interests in Canada and the United States.

So the question was, what to do to resolve the conflicts andmaintain peace between us along the border?

By 1906, the Americans and the British were quite impressed withthe formula used to solve the Alaska Panhandle dispute; thoughconversely Canada was quite annoyed. Nevertheless the formula of solvingthe dispute with three High Commissioners from each country seemed towork--except for the British judge, Lord Alverstone, siding with theAmericans and tipping the balance of power, to the annoyance--indeedanger--of Canada. But the formula was good, so it would seem. In theevent, the Canadians were far angrier with the British than they werewith the Americans for Canada expected Britain to take their side. ButBritain was now putting its foreign policy vis-a-vis the U.S. before theinterests of Canada.

In the end, the three countries saw value in a treaty to addressthe boundary waters disputes that existed, but also the ones thatinevitably would arise. Although at the time Britain was still handlingall foreign affairs for Canada, it was holding back and letting Canadado its own negotiations, which it did; largely with the intervention andwork of a local person from here in London, Ontario, Canada, Mr. GeorgeGibbons, a lawyer, who had the ear of Prime Minister Laurier. That wasCanada's negotiation team, its foreign affairs department--run froma law office not far from here in London; at King and Richmond Streets.His U.S. counterpart was none other than the renowned Secretary ofState, Hon. Elihu Root, who had been a U.S. presence since the days ofPresident Ulysses Grant. And Root, of course, had the ear of PresidentRoosevelt.

George Gibbons was well known at this University--he was a memberof the Board of Governors all the time that he was negotiating the BWT.

Gibbons was also the chair of the predecessor organization to theInternational Joint Commission, the International WaterwaysCommission--which failed in the decade of its existence to resolve asingle dispute. In fact it operated on instructions from governments andits members had no authority to negotiate. It was that experience thatconvinced Gibbons that only an independent body made up of as the Treatynegotiations themselves were described in the Treaty's preamble theword "plenipotentiaries" i.e. "invested with full powerto transact business"--could resolve these thorny issues.

And in fact, under the Treaty, upon appointment: Each Commissioner... shall, ... make and subscribe a solemn declaration in writing thathe will faithfully and impartially perform the duties imposed upon himunder this treaty."

These men, Gibbons and Root, cobbled together the Boundary WatersTreaty, what would become one of the last Empire Treaties--Great Britainnot prepared to give too much latitude to Canada, it would be signed byBritain.

The fact it is a treaty--and in Canada, an Empire Treaty--issignificant. In the U.S. by virtue of being a treaty, and being approvedby the U.S. Senate, it is binding on the states. In Canada, by virtue ofbeing an Empire treaty it is binding on provinces. Under Sec. 132 of theConstitution Act, 1867 (8) the federal government has the authority toimplement treaties entered into by Britain on Canada's behalf.However in the Canadian Constitution there is no federal power toimplement treaties--so the provinces or the federal government isresponsible for the implementation of treaties depending on whichconstitutional power the subject matter of the treaty falls under.

The Treaty itself it very elegantly written:

 The United States of America and His Majesty, the King of the United Kingdom of Great Britain and Ireland and the British Dominions beyond the Seas, Emperor of India, being equally desirous to prevent disputes regarding the use of boundary waters and to settle all questions which are now pending between the United States and the Dominion of Canada involving the rights, obligations, or interests of either in relation to the other or to the inhabitants of the other, along their common frontier, and to make provision for the adjustment and settlement of all such questions as hereafter arise, have resolved to conclude a treaty in furtherance of these ends, ...

Consider now on a closer read, how the preamble supports the thesisthat the BWT is really more a peace treaty than a water treaty:

 The parties are "resolved to conclude a treaty ... being equally desirous to prevent disputes regarding the use of boundary waters ... and to settle all questions which are now pending ..., and to make provision for the adjustment and settlement of all such questions as hereafter arise ...

So in short, the purpose of the Treaty is really to establish andkeep the peace over the two nations' shared boundary waters.

The BWT contains a number of articles to keep the peace. It wasdesigned as a mechanism to protect each side from the other, to resolvedisputes, and to solve problems, mostly relating to boundarywaters--particularly matters relating to water quantity and waterquality, using the word pollution for one of the first times, afar-sighted move.

So how does the BWT keep the peace?

First of all in the "Preliminary Article" it defines"boundary waters"--so as to limit disputes as to what watersare and are not subject to the Treaty:

 [B]oundary waters are defined as the waters from main shore to main shore of the lakes and rivers and connecting waterways, or the portions thereof, along which the international boundary between the United States and the Dominion of Canada passes, including all bays, arms, and inlets thereof, but not including tributary waters which in their natural channels would flow into such lakes, rivers, and waterways, or waters flowing from such lakes, rivers, and waterways, or the waters of rivers flowing across the boundary.

Article 1 notes that the Treaty does not affect free navigation onboundary waters and Lake Michigan. It singles out Lake Michigan sincethe definition of "boundary waters" would not include LakeMichigan. Similarly if you look at the Fraser River in British Columbia,although it has major tributaries that cross the boundary, the main stemof the Fraser lies entirely within Canada, and so the river itself isnot considered a boundary water under the Treaty--nor is the OttawaRiver. So it carefully defines what is a boundary water.

Taking a closer look at the Treaty, Article 2, extends the rightsand access to legal remedies for an action taken in one country onboundary water to citizens of the other country.

Article 3 agrees that "no further obstructions or diversions,of boundary waters" ...--this basically enshrines the status quo atthe time--which is why the Chicago Diversion is not subject to theTreaty--"affecting the natural level or flow of boundary waters onthe other side of the line"--The treaty is about protecting therights of the other country. "shall be made except by Authority ofthe United States or the Dominion of Canada within their respectivejurisdictions and with the approval of ... The International JointCommission".

The BWT does not provide someone additional rights in the countryhe or she reside in, if it is that country which is taking an action.For instance if the United States proposes a structure for theproduction of electricity between its shore and that of an island, sothat it only blocks half of river, then the protections in the Treatyare for Canadian interests--they are not for U.S. interests, which havedomestic remedies available, although under the BWT Canadians would haveaccess to the same remedies as Americans in America.

Furthermore, the Treaty does not give an American the right toundertake a project in Canada without the authorization of the Canadiangovernment, and vice versa.

These are concepts that the public often struggles to understand,as they read the Treaty, and think the rights extend to both countries,which is only the case, when a structure or diversion affects bothcountries more or less equally--which is more often the case. This isespecially true in light of Articles 4 and 7.

Article 4 of the Treaty allows the two nations to enter into"special agreements" if they wish to act outside of theTreaty, but otherwise agree that the construction of any dam orstructure that may "raise the natural level of waters on the otherside of the boundary" shall be approved by the IJC. Again, if thestructure was to raise the natural level on the same side of theboundary as where it is constructed, the BWT does not apply, assuming itdoes not create a diversion.

Article 4 also includes a clause which causes it to be cited as thefirst international pollution treaty in history, namely that "thewaters herein defined as boundary waters and waters flowing across theboundary shall not be polluted on either side to the injury of health orproperty on the other."

These are unusual words for a treaty signed in 1909, in a periodwhen industrial and urban development were generally first inpeoples' and their governments' minds and not the pollutioncaused by development. However, it is important to note that it is not ageneral prohibition against polluting, but rather about protecting therights of the other country. Basically under the Treaty you can pollutethe waters on your own side, but only up to the point that you startpolluting the other side. So in some ways, the pollution clause is aboutkeeping the peace, about preventing a dispute from occurring, andproviding recourse when that dispute does occur.

Articles 5 and 6 directly outline solutions to resolve the disputesover the Niagara River, and the St. Mary Milk Rivers and to provide theremedy for keeping the peace in the future. Article 5 has since beenreplaced by the Niagara Treaty of 1950. (9) And the Article 6 is stillin force and is the basis of the 1928 IJC Order of Approval(10)--although the order itself remains controversial to this day, andthe Commission has historically twice split when trying to amend theorder.

When we think of a peace treaty--we normally think about it beingprimarily to resolve the matters of conflict between two nations. Butthe BWT also has provisions to resolve conflict--to keep thepeace--between interests. And in fact most disputes are more likelybased on competing interests, rather than based strictly on nationality.

Article 8 of the Treaty outlines the priority of use of boundarywaters:

 The following order of precedence shall be observed among the various uses enumerated hereinafter for these waters, and no use shall be permitted which tends materially to conflict with or restrain any other use which is given preference over it in this order of precedence: Uses for domestic and sanitary purposes; Uses for navigation, including the service of canals for the purposes of navigation; Uses for power and for irrigation purposes.

However, the Treaty is not limited to those three interests as itgoes on to note that "The foregoing provisions shall not apply toor disturb any existing uses of boundary waters on either side of theboundary.

In the modern day context, IJC Commissioners have regarded thingslike the environment, and recreational boating, for example to be"interests" that need to be considered when balancinginterests. Recreational boating was hardly a consideration in 1909, buttoday it is huge. We have to adapt.

Article 8 also states the Commission when considering the effectsof structures on boundary waters "shall require as a condition ofits approval thereof, that suitable and adequate provision ... be madefor the protection and indemnity of all interests on the other side ofthe line which may be injured thereby."

Again the Treaty is concerned about making sure that the action inone country does not harm interests in the other country, withoutrecourse. The purpose is not to ensure that there is no harm, but thatthe harm is not in the other country, without compensation--that couldresult in creating a dispute between the two countries. Again, the keyconcern here is to keep the peace.

As well, the IJC undertakes investigations and studies forgovernments, invariably on thorny issues such as studying the waterlevels in the Great Lakes, or the diversion of waters for electricitypurposes through Article 9 references. Like a Statement of Claim whichwe know initiates an action in the courts, references are something thesame, as they are formal requests from the two national governments tolook into and analyze specific matters or problems and make findings andnon-binding recommendations for action by the two governments to resolvea specific issue. Although the BWT allows for either government to givethe IJC a reference, by custom the governments have jointly given theIJC its references, with the exact same wording.

It should be noted that reports under Article 9 do not have thestatus of arbitral awards. Nevertheless, IJC reports are also releasedto the public at the same time as they are submitted to the twogovernments. The force of public opinion supports the IJC'srecommendations. Therefore there is an implied obligation on bothgovernments to deal with the report in a responsive way. As an aside, itis interesting to note that the Treaty is not limited to freshwater--and the governments have sent the Commission references on othermatters--one on the social economic consequences of Point Roberts'sWashington separation from the rest of the state as it only has a landborder with the British Columbia mainland, and another on producinghydroelectric power from the Passamaquoddy tides.

The Commission also receives permanent references from the twogovernments under Article 9.

They are set out in specific language in the Great Lakes WaterQuality Agreement, (11) in particular, as well as the Canada-U.S. AirQuality Agreement. (12)

The Treaty does provide, in Article 10, for references for whichthe IJC reports would be binding arbitral awards. However, to make sucha reference under the Treaty, the U.S. federal government would have togain the concurrence of the U.S. Senate. Understandably no suchreference under Article 10 has ever been given. As it is now, the U.S.Senate takes six months or more just to approve the appointment of IJCCommissioners.

It is important to understand that the Treaty is notself-activating. What this means is that in all these cases, it is thegovernments which decide if the Treaty is invoked--not the IJC or thepublic. The governments decide if a proposed project may affect levelsand flows and if it should be sent to the Commission. The governmentsdecide if the Commission should investigate an issue on the boundary.

In the dispute mechanism there was to be established under Article12 a permanent boundary waters Commission, to be styled the IJC--theword 'Joint' being an invention of Secretary Root, as he feltit best described what he and Gibbons envisaged. The Commission would bemade up of six Commissioners, three to be named by the President andthree to be named by the Prime Minister of Canada. They would sweartheir allegiance to the Commission and specifically not be seen as arepresentative of their respective countries. It had been Gibbons whopersuaded Secretary Root that a permanent commission was the only way toensure peaceful resolution of those many disputes then extant, and theinevitable ones to come.

It was not a treaty full of words only. It included the concept ofa permanent watchdog that would give the Treaty teeth.

The Commission has two chairs, one American and one Canadian,serving simultaneously and working together.

Uniquely, the U.S. Commissioners do not have more votes nor dotheir votes carry more weight than those of the Canadian Commissioners,in spite of the great differences in population and economic activity. Isay uniquely, because under the model of the United Nations 1992Convention on the Protection and Use of Transboundary Watercourses andInternational Lakes these and other factors are taken into account,resulting in some countries' votes being weighted more than others.The inconsistency between the BWT and the UN Convention, the absence ofequality, is one reason Canada and the United States have not signed,and are unlikely to sign, this particular UN Convention.

In fact the Commissioners, in principle and by long standingcustom, set out to reach decisions by consensus--not by formal vote.Although it's important to understand that consensus is not thesame as unanimity. Every meeting, every decision requires a quorum offour. This way at least one Commissioner from the other country has tobe in the quorum and thus Commission votes cannot be only those of onecountry.

As well, under Article 12 the Commission can establish rules ofprocedure but they must be in accordance with the principles of justiceand equity. The Commission must also ensure "all parties interestedtherein shall be given convenient opportunity to be heard". TheCommission does this by requiring that it holds public hearings for bothreferences and applications. This has become one of the fundamentalprinciples of how the Commission operates. It could be argued that theholding extensive hearings on the matters before it, allowing theeffected public, industries, and other levels of government, to havetheir say, helps as well to keep the peace on contentious issues.

As described earlier in Article 3, the Commission also makesdecisions on applications presented to it by the two governments onwhether to allow the building of structures on, over, or under aboundary water that affect its natural levels or flows in the othercountry.

The Commission's decision could be to allow the application,to deny it, or allow it with conditions--the latter is usually what hashappened. If an order of approval with conditions is made, the IJC setsup a control body to oversee it.

The IJC has 15 such control bodies usually referred to as ControlBoards along the entire US-Canada boundary. When it comes to the GreatLakes there are control bodies involving the structures on theinternational section of the St. Lawrence River--between Cornwall andMassena and at the Sault on the St. Mary's River. The IJC alsooversees flows in the Niagara River pursuant to a reference, rather thanan order, but it has a control board for that purpose.

So as you can see, in those first few years the IJC dealt with abacklog of thorny issues.

And some of these issues never really go away. For example, after arequest from Montana to reopen the 1928 Order, the Commission heldpublic meetings in 2006 on the request, and appointed an administrativetask force to find efficiencies in the implementation of the Order tobenefit both Montana and Alberta. As well, this last year the Commissionhad interactions with the City of Winnipeg over the 1913 Shoal Lakediversion from Lake of the Woods providing Winnipeg its water.

This is not to say that things at the Commission do not change orthat we are not asked to look into and examine new issues.

At the turn of the Millennium the Commission received a charge fromgovernments to consider its own future, which led the IJC to developwhat is known as the International Watersheds Initiative (IWI), (13)which has become a new way for the IJC to conduct its business and onethat has received strong support from both national governments.

Under the IWI, the IJC is taking an ecosystem approach toaddressing local concerns with direct local participation.Conventionally, IJC boards have focused only on regulating water levelsand flows or on monitoring water quality: one or the other. Under theIWI, boards work with the local community to recognize the complexinterrelationships of water quantity and water quality issues within awatershed. Through the IWI, the IJC also makes funding available to allits boards in developing tools those local organizations can use tosolve issues within their watersheds.

Established in April 2007, the International St. Croix WatershedBoard (14) was the first official IJC watershed board. It monitors theecological health of the St Croix River watershed and ensures that fourdams on the river comply with the Commission's Orders of Approval.The International Rainy Lake of the Woods Watershed Board (15) becamethe second watershed board in January 2013 with a mandate to assist incoordinating binational water quality efforts for the entire watershedand to coordinate the management of the water levels and flows on theRainy River and Rainy Lake. All of the IJC's boards' membersare appointed by Commissioners and all the boards are composed of anequal number of members from both countries. Appointments are fromdiverse groups including federal, provincial/state and localgovernments, non-governmental organizations, industries, aboriginalcommunities, academic institutions as well as the public.

Finally, 1 would like to note an area where the BWT is silent andthat is in the context of our two nation's dealings with FirstNations and Tribes.

It is clear in the early years of the Commission that little if anyconsideration was given to First Nations and Tribal rights as specificinterests under the Treaty. That has created a lot of mistrust betweenFirst Nations and Tribes and the Commission.

It is important to note that Canada's implementing legislationfor the BWT is by the International Boundary Waters Treaty Act (16)which now acknowledges that nothing in BWT negates First Nation treatyrights.

The IJC has traditionally engaged with First Nations by invitingthem to public meetings and hearings and providing briefings. In recentyears governments have provided clearer guidance to the Commission onhow it should engage First Nations. For example on the Lake Ontario--St.Lawrence River Plan 2007, (17) governments told the IJC it could briefFirst Nations on the content of the plan but they i.e. governments wouldconsult directly with First Nations. For the recent Lake of the Woodsgovernance reference however, the IJC was instructed to engage withFirst Nations/Tribes directly and to advise the two governments how weplanned to do so.

The U.S. Government's response to Third InternationalWatershed Initiative Report (18) specifically requested that IJC engageTribes/ First Nations in its work.

With the creation of its newest watershed board earlier thisspring, the International Rainy-Lake of the Woods Watershed Board, theCommission has now included membership positions for Metis, FirstNations and U.S. Tribes. This is also the first IJC board to have anequal number of non-government members as government members and amajority of members based in the watershed. As a result, the Commissionis looking at its other current watershed and non-watershed boards toincrease public, local and First Nations and Tribal participation.

But it is not a quick or easy process. It took over a year ofdiscussions before Aboriginal peoples covered by Treaty 3 were in aposition to nominate an individual to serve in the Canadian publicposition on the former International Rainy Lake Control Board.

One of the big issues for First Nations in Canada is that they havetheir own treaty with the Crown, and usually start from a position ofwanting to participate as a third nation to the Treaty.

Over the last 100 plus years the IJC has been addressing theproblems of the day, the disputes, or the applications, all with greatwisdom, one would have to conclude, as the two countries have not cometo blows.

Some of the notable successes of the Commission include:

1944: Reference on the Columbia River (19)--A major study by theIJC set the stage for the coordinated development of water resources inthe Columbia River basin. Principles recommended by the IJC for sharingflood control and electric power benefits also helped the two federalgovernments negotiate the 1961 Columbia River Treaty. (20) Developingand operating the dams in a coordinated manner produced greater benefitsfor both countries.

1952: Regulation Plan for Lake Ontario and St. Lawrence River(21)--A major hydroelectric power project in the St. Lawrence Riverapproved by the IJC controls the outflow from Lake Ontario. The IJC setthe flows to reduce flooding to shoreline communities, improvecommercial shipping and generate electricity. Fifty years later, the IJCis reviewing whether the flow regime should be updated to reduceenvironmental impacts and achieve other objectives.

1972: Great Lakes Water Quality Agreement (22)--The IJC conducted ascientific study that helped officials in both countries agree onactions they would take to clean up the Great Lakes and meet theirTreaty commitment regarding pollution. Substantial improvements resultedfrom building sewage treatment plants and reducing industrialdischarges.

Scientists working together on both sides of the border found otherproblems that led to a new agreement in 1978 and subsequent amendments,the most recent being in 2012.

1975: Garrison Diversion Project (23)--Canadians objected to anirrigation project in North Dakota because they were concerned that thetransfer of water from the Missouri River basin could introduce newfish, parasites and diseases to the detriment of fishing in the HudsonBay basin. The IJC recommended against building the portions of theproject that could affect water flowing into Canada until the risk oftransferring organisms could be eliminated or the two countries agreedthat it was no longer a concern.

1984: Ross Dam on the Skagit River (24)--Many citizens objected toa proposal by the Seattle City Light Company to increase the height ofRoss Dam because it would flood more than 2,000 hectares of a primerecreational area in British Columbia. The IJC brought Seattle andBritish Columbia officials together to negotiate an agreement. Oftenreferred to as a "paper dam", the agreement gave Seattleaccess to power from British Columbia at costs similar to the financingfor the High Ross Dam. It also included environmental enhancements inthe Skagit River valley.

1985: Flathead River Reference (25)--U.S. citizens objected to aproposed mountaintop-removal coal mine in British Columbia because theywere concerned it could pollute the Flathead River and decimate thetrout fishery. After studies and public consultation, the IJCrecommended that the mine not be approved until potential impacts on thefishery were eliminated and both sides found the other risks to beacceptable.

1999: Great Lakes Water Uses (26)--A proposal to ship Lake Superiorwater to Asia by tanker ignited a political firestorm throughout theGreat Lakes basin. The IJC recommended policies to protect the lakesfrom increased consumption of water inside the basin as well as removalsfrom the basin. These recommendations encouraged action by the GreatLakes states and provinces and helped them develop effective policies.

The IJC under the IWI has also been resolving some disputes,without a direct reference from governments, using it boards'expertise and resources working with local people.

For example people on Rainy Lake, between Ontario and Minnesota,could not understand why the gates of the dam at the outlet of the lakewere not all open during the spring runoff to avoid upstream flooding.Using IWI funds, the local IJC board developed a simulation that allowedpeople to adjust the gate setting and see its effects at different lakelevels. People could see for themselves that the level of Rainy Lakeneeded to reach a certain height so that opening the gates wouldincrease the outflow of the lake. The public could see that only at highlake levels was the dam able to discharge a larger volume of water morequickly. This helped reduce tension between the utility company and thepublic when the public realized the utility's procedures werehelping reduce upstream flooding.

In 1981, a new fishway was put into the St. Croix River betweenMaine and New Brunswick that allowed for a resurgence of spawningalewives, an important food source for many freshwater and marinespecies. Unfortunately, this coincided with a drastic decline ofsmallmouth bass upstream in Spednic Lake. In response to concerns thatthe growing alewife population was harmful to smallmouth bass, the Stateof Maine ordered the closure of fishways on the Maine side of the river.

With IWI funding, the International St. Croix Watershed Boardsponsored a report to analyze lake-level management and meteorologicalconditions during the time period when the bass population crashed. Thefindings provided a scientifically supported explanation that naturalconditions, not a resurgence of alewives, were to blame for the declineof the bass population in Spednic Lake. A plan was proposed to reopenthe fishway to the alewives while monitoring the basin's smallmouthbass population. Although the plan was not implemented, it initiatedextensive discussions on the issue and in 2013, Maine legislated thereopening of the fishway to alewives, thereby allowing them access tothe basin.

Because of its success in resolving these and other disputes, IWIhas given practice to resolving disputes the likes of which have foundtheir way into other Treaties between these two countries, and no doubtother countries as well. The framers of NAFTA studied the BWT and theIJC's form of dispute resolution. Over the years there weredisputes that arose. Indeed, there were some pretty thorny issues, onebeing the Columbia River in the early 60s, that kept the media occupiedfor years as the two countries tried to figure out how to apportionwater on the rivers that crossed the border.

In a forward to the 1958 book, Boundary Water Problems of Canadaand United States (27), authors Bloomfield and Fitzgerald state:

 The current controversy between Canada and the US on the development of the Columbia River Basin has somewhat obscured the fact that for almost half a century these two neighbours have successfully used the IJC as an instrument for the prevention and settlement of disputes in regard to boundary and transboundary waters.

By the time of that 1958 book, the IJC had dealt with some 72dockets in its quasi-judicial role of handling matters whereobstructions or diversions could occur. The power to deal judiciallywith matters is an important role and in that the IJC has the capacityto compel witnesses, take evidence under oath, make orders (which it hasnever done), and order costs and even compensation. I might add itcannot be sued and its orders are not appealable, nor subject tojudicial review.

Today the docket numbers over 130, so the IJC has a credible trackrecord of resolving the peace, solving the disputes, and maintainingorder along this vast border, so much of being water. Would there havebeen peace for all these years without the BWT and the IJC? Perhaps--butit must be remembered that more wars have been fought over borders thananything else, and sometimes, even the most insignificant of issuesbecomes an irritant that can escalate to large proportions. It is notthe friendly relations which led to the resolution of all these issuesthat have come and gone in the past century, but rather it is theresolution of all these issues that has led to friendly relations. TheBWT was the instrument of peace; the IJC the vehicle by which it couldbe ensured.

As for that country lawyer from London, George Gibbons would behonoured for his accomplishments, knighted by King George V two yearslater. It would be Sir George Gibbons whose name adorned Gibbons Park inLondon, and whose daughter's family home would become GibbonsLodge, now the home of Western's President.

In conclusion, again from Bloomfield and Fitzgerald:

 The spirit of international cooperation displayed by Canada and the US in the functioning of the Commission should serve to show other countries that the settlement of the boundary and trans boundary water problems can be peacefully worked out between good neighbours.

On June 7, 2009, the Commission and the Governments of Canada andthe United States held a ceremony on the Rainbow Bridge over NiagaraFalls to recognize and celebrate the 100th anniversary of the BoundaryWaters and the enduring peace between our two nations. On that occasionLawrence Cannon, then Canada's Minister of Foreign Affairs, stated:

 Canada and the United States have shared--and jointly managed--the boundary that exists between our two countries without a major incident for a hundred years. This is no small accomplishment; I don't think you could say this about too many neighbours, so it's indeed remarkable and significant.

U.S. Secretary of State Hilary Clinton echoed:

 The friendship between the people of the United States and Canada is the strongest in the world. There is no border that is longer and more peaceful; there is no greater trade between two nations. There are so many values that we share in common, and today we celebrate a treaty that helped to make this friendship possible 100 years ago.

There are half a dozen bridges at Niagara, each a bridge offriendship. They could see them all--and through the mist over the fallsthey could see the Peace Bridge.

(1) Treaty Between the United States and Great Britain Relating toBoundary Waters between the United States and Canada, UnitedKingdom-U.S., Jan. 11, 1909, 36 Stat 2448 T.S. 548.

(2) See About the IJC, International Joint Commission (IJC),http://www.ijc.org/en_/.

(3) The Definitive Treaty of Peace 1783, United Kingdom--U.S.,Sept. 3, 1783, Treaties and Other International Acts of the UnitedStates of America Vol. 2 (Hunter Miller ed.) (1931).

(4) Treaty of Amity Commerce and Navigation (The Jay Treaty),United Kingdom - U.S., Nov. 19, 1794, Treaties and Other InternationalActs of the United States of America Vol. 2 (Hunter Miller ed.) (1931).

(5) Exchange of Notes Relative to Naval Forces on the AmericanLakes (The Rush Bagot Agreement), United Kingdom - U.Sn., Apr. 28-29,1817, Treaties and Other International Acts of the United States ofAmerica Vol. 2 (Hunter Miller ed.) (1931).

(6) The Treaty of Washington, United Kingdom - U.S., 8 May 1871,reprinted in Caleb Cushing, The Treaty of Washington: its negotiation,execution, and the discussions relating thereto (1873).

(7) About the St. Croix Corridor, ST. CROIX INT'L WATERWAYCOMMISSION, http://www.stcroix.org/about-the-st-croix-river.

(8) Constitution Act, 1867, 30 & 31 Viet., c. 3 (U.K.),reprinted in R.S.C. 1985, app. II, no. 5 (Can.).

(9) Treaty between Canada and the United States of AmericaConcerning the Diversion of the Niagara River, Can.-U.S., Feb. 27, 1950,T.I.A.S. 2130, 1 U.S.T. 694.

(10) The Activities of the International Joint Commission1909-1956, INT'L JOINT COMMISSION (IJC),http://ijc.org/files/publications/A63.pdf.

(11) Protocol Amending the Agreement Between Canada and the UnitedStates of America on Great Lakes Water Quality, 1978, as amended onOctober 16, 1983 and on November 18, 1987 (Great Lakes Water QualityProtocol of 2012), Can.-U.S., 7 Sept. 2012,http://www.ec.gc.ca/grandslacs-greatlakes.

(12) Canada-United States Agreement on Air Quality, Can.-U.S., 30I.L.M. 676 (1991).

(13) International Watersheds Initiative, INT'L JOINTCOMMISSION (IJC), available at http://www.ijc.org/en_/IWI.

(14) International St. Croix River Watershed Board, INT'LJOINT COMMISSION (IJC),http://ijc.org/en_/iscrwb/International_St._Croix_River_Watershed_Board.

(15) International Rainy-Lake of the Woods Watershed Board,INT'L JOINT COMMISSION (IJC),http://ijc.org/en_/RLWWB/International_Rainy-Lake_of_the_Woods_Watershed_Board.

(16) International Boundary Waters Treaty Act, R.S.C., 1985, c.I-17.

(17) Lake Ontario-St. Lawrence River Plan 2014, INT'L JOINTCOMMISSION (IJC), www.ijc.org/files/tinymce/uploaded/LOSLR/IJC_LOSR_EN_Web.pdf.

(18) Third Report to Governments on the International WatershedsInitiative, INT'L JOINT COMMISSION (IJC), Jan. 2009,www.ijc.org/files/publications/ID1627.pdf.

(19) Docket 51 Columbia River - U.S. Reference, INT'L JOINTCOMMISSION (IJC) (1944), http://www.ijc.org/en_/Dockets?docket=51.

(20) Lake Ontario-St. Lawrence River Plan 2014, INT'L JOINTCOMMISSION (IJC) (2014),www.ijc.org/files/tinymce/uploaded/LOSLR/IJC_LOSR_EN_Web.pdf.

(21) Id.

(22) The Great Lakes Water Quality Agreement between the UnitedStates of America and Canada concerning Great Lakes Water Quality,Can-U.S., 15 April 1972, 11 I.L.M. 694.

(23) Garrison Diversion Project Proposals, GOV'T OF MANITOBAWATER STEWARDSHIP DIVISION,https://www.gov.mb.ca/waterstewardship/water_info/transboundary/potential.html.

(24) Ross Dam, INT'L JOINT COMMISSION (IJC),http://www.ijc.org/en_/Dockets? docket=46. (25) Docket 110Flathead--Reference, INT'L JOINT COMMISSION (IJC), April 15, 1985,

http://www.ijc.org/files/dockets/Docket%20110/Docket%20110%20Flathead%20Can.%20Ref erence%201985-02-15.pdf.

(26) Protection of the Waters of the Great Lakes: Final Report tothe Governments of Canada and the United States, INT'L JOINTCOMMISSION (IJC), Feb. 22, 2000, http://www.ijc.org/files/publications/C129.pdf.

(27) Louis M. Bloomfield & Gerald F. Fitzgerald, Boundary WaterProblems of Canada and the United States (1958).

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The Boundary Waters Treaty 1909 - a peace treaty? (2024)

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