Great lakes emerging legal issues regarding the international boundary waters treaty and the great lakes water quality agreement.

• Author: Hall, Noah
• Position: PROCEEDINGS OF THE CANADA-UNITED STATES LAW INSTITUTE CONFERENCE on An Example of Cooperation and Common Cause: Enhancing Canada-United States Security and Prosperity Through the Great Lakes and North American Trade: Cleveland, Ohio April 2-4, 2009

Session Chair--Noah Hall

Canadian Speaker--Murray Clamen

United States Speaker--Captain Lorne Thomas

United States Speaker--David Naftzger

United States Speaker--Noah Hall

INTRODUCTION

MR. HALL: Welcome, everyone. Thank you for coming in on a Saturday morning to discuss a range of issues dealing with trans-boundary water management between the United States and Canada. There are actually two panels today. Although my impression is that in both substance and knowledge, the two panels have a tremendous amount of overlap. So I hope we will have a nice integrated flow from the first panel to the second.

My name is Noah Hall, and I am an environmental law professor at Wayne State University Law School in Detroit. (1) I will moderate the first panel, then offer my own comments at the end. I will then turn it over to the second panel at 10:30. We have four speakers; each will give individual presentations, which should leave us with about twenty-six minutes for questions at the end.

Our first speaker is Dr. Murray Clamen, Secretary of the Canadian Section of the International Joint Commission (IJC). (2) Dr. Clamen has his Ph.D. in civil engineering. (3) He has a tremendous amount of experience in water management, both at the domestic level and with trans-boundary water management. He has done quite a bit of work with the IJC and the Great Lakes over the years, and he will provide an overview of the Boundary Waters Treaty, (4) the Great Lakes Water Quality Agreement, (5) and some of the challenges that the IJC is facing today. (6) With that, let us welcome Dr. Clamen.

(1) See Wayne State University Law School, Noah D. Hall, http://www.law.wayne.edu /faculty/bio.php?id=42998 (last visited Sept. 17, 2009).

(2) See McGill University, Agricultural and Environmental Sciences Bioresource Engineering, Faculty and Staff, http://www.mcgill.ca/bioeng/staff/clamen/(last visited Sept. 17, 2009).

(3) See id.

(4) See Treaty Relating to Boundary Waters Betweem the United States and Canada, U.S.-Can., Jan. 11, 2090, 36 Star. 2448 [hereinafter Boundary Waters Treaty], available at http://bwt.ijc.org/index.php?page=boundary-waters&hl=eng (last visited Sept. 19, 2009).

(5) Great Lakes Water Quality Agreement, U.S.-Can., Apr. 15, 1972, 23 U.S.T. 301.

(6) See INTERNATIONAL JOINT COMMISSION ANNUAL REPORT FOR 2008: BOUNDARY WATERS TREATY CENTENNIAL EDITION 5, http://www.ijc.org/php/publications/pdf/ID1629.pdf (last visited Sept. 18, 2009).

CANADIAN SPEAKER

MR. CLAMEN: Thank you. Good morning. I think I know most, if not all of you. I am honored to be able to speak to you about the Boundary Waters Treaty (BWT). I only wish there were more people in the room to hear it, and I am looking forward to a great discussion afterwards. This is the IJC's centennial year, (7) our centennial flag and special logo was designed for this. (8) We have some materials up front, which I would encourage you to take on your way out. The bottom line I am going to reach at the end is that the BWT is a sound document. It is very flexible and adaptable, and although it is a hundred years old and some people may think it is not capable of dealing with modern times, those of us who work with it on a daily basis think otherwise. (9)

This is a blended presentation it is promoting the treaty, and the anniversary of it. This is just a slide that I threw in; a general slide to emphasize the point that most journalists in the public think, which is that water is a source of disagreement and problems between countries. (10)

However, the facts seem to suggest otherwise, because water is actually a source of agreement between countries, which is definitely true in the case of Canada and the United States. (11) Despite some disputes that get a lot of attention, the predominant sense is that Canada and the United States do cooperate over many things, including water. (12) The origins of the BWT stem from two parts of the country, the Niagara region and how to use Niagara Falls and the Western region, where there were disputes between the United States and at the time Great Britain. (13) Fortunately, there were some farseeing people, and they decided that in addition to solving those disputes, they would also put together and frame a treaty that would deal not only with them but future issues, and that is what we are dealing with today. They called it the BWT. (14) The scope is, in fact, more than just boundary and trans-boundary waters. (15)

The IJC has over the years dealt with land issues, some ground water issues, and air issues, so we believe it is more than just about water. (16) It is the trans-boundary environment. The basic principle enshrined in the treaty, which was there then and still there today, is to prevent and resolve disputes. (17) The treaty created a special commission called the IJC. (18) Sometimes I wish they had put the word "water" or "environment" in there because every time I cross the border and use the word "joint" everybody sort of looks at me. What joint are you dealing with?

I have to go into this big explanation of what boundary waters are. The treaty is a remarkable document. I do not want to spend a lot of time because Noah will probably hit me over the head with the bell in addition to ringing it. But I do for those that have not read it recently; it is not a complicated legal document. It is not like a lot of insurance policies. It is very straightforward and clear. However, even though I worked with this organization for thirty years, (19) every time you get a specific case that causes you to interpret the treaty and look at it a little more carefully and the articles that are there, it is amazing how you can look at things in a slightly different light, especially when you have commissioners who come to the job very committed and maybe don't have all that background.

Some commissioners are not lawyers. It is amazing how you can read and reread things and see things differently. I do not know if you have experienced that in some of the documents that you work with. But here are some of the key principles that I have picked out of the treaty and that do not necessarily reflect opinions of the commissioners, but the fact that they are equal in similar and equal rights for both countries is a remarkable thing for both countries, which I do not think you could achieve today between two countries that are so different in terms of size. (20) Maybe culturally they are not that different. (21)

There is a precedence of use, and this is very interesting, too, because in addition to that, the Commission also has to take into account all interests, so although the word "environment" or "ecosystem" does not appear there, in recent years, as you can appreciate, especially in the last twenty or thirty years, that has become a very important issue we take into account. (22)

The agreement also talks about structures and diversions that are built in one country or another and affects water levels, and that is a very important part of our work that leads to permits or orders of approvals as we call them and then the famous non pollution clause that is very simple but very difficult to interpret, the words "not pollute," the word "injuries," the words "health" or "property," which give lawyers a field day, and they have given commissioners fits, and they gave the Commission some interesting projects to work on over the years. (23) So equality, as I say, is one of the key features.

Here is a little graph where I show the differences between Canada and the United States in terms of population and GDP. (24) Here we come together. There are very few, I am not sure, maybe Dave Brooks in the audience has done some similar analysis, but there are very few arrangements between Canada and the United States where we come together as equals, equal partners to solve problems for both countries in that sense.

Bilateral, remember is not equality. Canada comes to the table with a certain number of people. The United States does, too. That is not the same thing as this. We will talk about a bi-national and bilateral relationship differently and discuss that if you like. I suspect that most people in the room know this, but just in case, the Commission is actually six commissioners, three appointed by the prime minister, three appointed by the President and needs the consent of the United States Senate. (25)

People like me are staff, at least we support them, and we form the secretariat, but we say that the Commission is a creature of the treaty. (26) It is not a creature of the governments. (27) It is independent, (28) a very important feature of the treaty at the commission that is not prevalent in too many other commissions that I have seen at international conferences where people come together and they are representatives. They are appointed by their governments. They are heads of agencies and act as such. These commissioners do not. They take an oath actually or declaration to support the treaty, and although people may suspect that they act nationalistically, they do not; they act in their personal professional capacity to support the treaty. (29)

My experience is that the vast majority of Commissioners, if not all of them, have been faithful to that requirement and have done a superb job reflecting interests of their country but not demanding the Commission to follow what it wants to do separately. The real guts of the organization are not even the staff, frankly; it is our boards, task forces and subgroups that do all the work. (30)

One of the hallmarks of the Commission's work is in the area of science, and we need sound science, and that is where we rely on members of the governments, the universities, the outside private sector people from time to time to give us the information that we need, to help the Commissioners who are high-level policy people from those policies and their underlying by very sound science. (31) So we have three distinct...