The Boundary Waters Treaty 1909 - a peace treaty?

Author:Walker, Gordon

International Joint Commission

The following is the text of the 7th Annual Canada-United States Law Institute Distinguished Lecture given at Western University Faculty of Law by Commissioner Gordon Walker, Q.C., on Oct. 29, 2013. A native of St. Thomas, Ontario, and a graduate of Western University, from which he received a B.A. and LL.B., Mr. Walker served as Member of Provincial Parliament for London from 1971 to 1985, including as Minister of Correctional Services, Provincial Secretary for Justice. Minister of Consumer and Commercial Relations, and Minister of Industry and Trade. From 1992 until 1995 Mr. Walker served the International Joint Commission (IJC) as a Canadian Commissioner. He was reappointed to the IJC in June 2013 and currently serves as both Commissioner and Canadian Chair.

It is my distinct honour to present the 7th annual Canada-United States Law Institute's distinguished lecture here at Western University.

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

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

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

The title of this lecture is--"The Boundary Waters Treaty 1909--a Peace Treaty? With that title, I pose the question of whether the Boundary Waters Treaty is a treaty about water resources per se--or is it really more accurately viewed as a Peace Treaty?

Before I get to the Treaty I think we need to be clear on what constitutes a peace treaty. The common understanding is that a peace treaty contains provisions to end hostilities between two nations by resolving the issues that led to the conflict in the first place, as well as providing for the resolution of future conflicts, before they escalate reopening hostilities.

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

Water and water rights have been important and enduring issues in the longstanding and generally amicable relationship between Canada and the United States since the American War of Independence. A number of treaties preceded the BWT and are worth mentioning here for context. The Definitive Treaty of Peace, (3) concluded in 1783 between Great Britain and the United States, recognized that each country had jurisdiction over waters on its own side of the border. During the following century, Great Britain and the United States concluded several treaties to resolve disputes, all with provisions relating to the use of water flowing along or across the boundary, particularly for navigation. The more notable ones included the 1794 Jay Treaty, (4) which although mostly known for Article III giving Native Americans the right to crisscross the border, settled leftover disputes from the US Revolutionary War and bought about 10 years of peace; the 1817 Rush-Bagot Agreement, (5) which demilitarized the Great Lakes and Lake Champlain; and the 1871 Treaty of Washington (6) which settled a dispute over the location of the Pacific border in Juan de Fuca Strait, the first border dispute in the world to be settled by arbitration with the arbitrator appointing a three person Commission to determine the facts and recommend a solution.

Of particular note for purposes of this discussion is the International Waterways Commission, (7) which operated officially from 1905 to 1913, of which

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

The words "boundary waters" seem succinct, indeed easy to say--but for Canada and United States the boundary waters are in proportions unparalleled in the world. Boundary waters are those waters which cross the boundary, or which make up the boundary--there being obvious examples like the Great Lakes and the St. Lawrence River, but even 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 but a few feet.

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

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

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

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

The other 300 lakes and rivers across Canada that fall within the definition of "boundary waters" under the BWT, begin in the east from where the St. Croix River touches Passamaquoddy Bay in New Brunswick/Maine, move to the Richelieu River as part of the Lake Champlain basin, and Rainy River--Lake of the Woods basins in Ontario and Minnesota, and the Red River in Manitoba and North Dakota, and the Souris and all the way across to the Columbia in BC and Washington; and even stretching up to the Yukon River in Alaska. I mention those revealing statistics to demonstrate the immensity of the territory covered by the BWT and to highlight the potential for conflict as humans interact along every inch of the way.

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

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

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

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

200 years ago today, the peoples of Canada and United States were locked in a war--over many things, but largely it was the border. On October 5th, 1813, the Battle of the Thames, not 50 miles west of here at a place called Moraviantown which, from here, saw the British routed by General Harrison, who went on to be a President. And dying on the battlefield was that great Aboriginal Chief Tecumseh. And the British General and his regulars and Canadian militias retreating along the Thames to these forks where we are today, and beyond. (A battle that was re-enacted on its bicentennial just a few weeks ago). But the seesaw back and forth, saw the British rout the Americans on October 26th southwest of Montreal at Chateauguay, Quebec, with de Saliberry's great victory where 300 men in battle repulsed an army of 3000, saving Montreal. Stalemate is frequently the description of the outcome of that War. At the end of that War, the two countries each had a lot more respect for the other, and the border, well it remained unchanged.

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

I mention these countries because 100 years later the same players were at it once again, Britain, United States, and the Dominion of Canada--as it was then called, reflecting its semi-independent colonial status.

Admittedly, 100 years...

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