Origins of the Boundary Waters Treaty

Water and water rights have been important issues in the relationship between Canada and the United States since the American War of Independence. The Definitive Treaty of Peace, 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 with provisions relating to the use of water flowing along or across the boundary, particularly for navigation. These included the 1794 Jay Treaty, the 1817 Rush-Bagot Agreement, the 1842 Webster-Ashburton Treaty, the 1846 Northwest Boundary Treaty, the 1854 Reciprocity Agreement, and the 1871 Treaty of Washington.

During the nineteenth century, several other arrangements relating to the use and sharing of waters were concluded in Europe and elsewhere in North America. The multinational Rhine and Danube Commissions were established in Europe in 1815 and 1856 respectively to undertake administrative responsibilities for navigation in those two waterways. As a result of treaties concluded in 1889 and 1895, a Mexico-United States International Boundary Commission was established to examine and report on irrigation and the possibility of constructing storage dams on the Rio Grande.

Against the background of difficulties encountered in apportioning the waters of the St. Mary and Milk Rivers in the west, the Rainy River, the Chicago Diversion of Lake Michigan, (which at the time lowered lake levels by 6 inches) the St. Mary's River at Sault Ste. Marie and the Niagara River, resolutions introduced by the Canadian delegate and adopted unanimously by the United States, Mexican and Canadian delegations at International Irrigation Congresses in Denver, Colorado in 1894 and in Albuquerque, New Mexico in 1895 recommended to the United States "the appointment of an international commission to act in conjunction with the authorities of Mexico and Canada in adjudicating the conflicting rights which have arisen, or may hereafter arise, on streams of an international character."

 In 1896, the Canadian Government requested that the British Ambassador at Washington inform the United States Government that it was prepared to cooperate "by appointment of an international commission or otherwise" in the regulation of international streams for irrigation purposes. The United States did not respond until 1902 when, by the terms of the River and Harbour Act, it made a proposal that went far beyond the cooperation envisaged by the Canadian Government in 1896. By the terms of the Act, the President of the United States was requested:

to invite the government of Great Britain to join in the formation of an international commission to be composed of three members from the United States and three who shall represent the interests of the Dominion of Canada, whose duty it shall be to investigate and report upon the conditions and uses of the waters adjacent to the boundary lines between the United States and Canada, including all of the waters of the lakes and rivers whose natural outlet is by the River Saint Lawrence to the Atlantic Ocean, also upon the maintenance and regulation of suitable levels, and also upon the effect upon the shores of these waters and the structures thereon, and upon the interests of navigation by reason of the diversion of these waters from or change in their natural flow; and, further, to report upon the necessary measures to regulate such diversion, and to make such recommendations for improvements and regulations as shall best subserve the interests of navigation in the said waters ... .

Acceptance of the United States' suggestion by the British and Canadian Governments led to the establishment of an International Waterways Commission, which operated officially from 1905 to 1913. At the outset, there was disagreement between the two countries over the investigative scope of the Commission, the United States contending that it was limited to the Great Lakes system and Canada maintaining that its jurisdiction extended to all boundary waters between the two countries. The Canadian authorities sought agreement on wider jurisdiction, but, for practical reasons, instructed the Canadian commissioners to proceed on the limited basis desired by the United States. During its existence the Waterways Commission investigated a number of matters but had limited success in having its recommendations implemented. It did, however, recommend the establishment of principles to govern the use and diversion of boundary waters and the creation of a permanent body with wider powers.

Negotiations toward a new treaty began in Washington in 1907. The chief negotiator on the Canadian side was George C. Gibbons, K.C., a London, Ontario lawyer who was the Canadian Chairman of the International Waterways Commission, who consulted closely with the Canadian Prime Minister, Sir Wilfrid Laurier; Canadian Minister of Public Works Pugsley; Canadian Minister of Justice Aylesworth, and the British Ambassador to the United States, James Bryce. The principal United States negotiator was Chandler P. Anderson, special legal adviser to the Secretary of State, Elihu Root, who took a close interest. After protracted and sometimes difficult discussions and several drafts, negotiations were concluded successfully with the signature in Washington on January 11, 1909 by Secretary of State Root and Ambassador Bryce of the Boundary Waters Treaty which provided, in Article VII, for the establishment of the International Joint Commission.

At the conclusion of negotiations the Treaty included specific provisions to deal with only two of the major disputes at the time - the Niagara River and the St. Mary and Milk Rivers.

The United States Senate advised ratification of the treaty on March 3, 1909 with an interpretive "rider", to be mentioned in the ratification of the treaty, relating to riparian rights on the St. Mary's River at Sault Ste. Marie and drainage into tributary streams. Great Britain, having accepted the rider, ratified the treaty on March 31, 1910. It was ratified by William Howard Taft, President of the United States, on April 1, 1910. Ratifications were exchanged in Washington on May 5, 1910 by Philander C. Knox, who had succeeded Root as Secretary of State, and by British Ambassador Bryce. The protocol of exchange contained the U.S. Senate rider.

The IJC held its first meeting in Washington on January 10, 1912 and adopted its initial Rules of Procedure on February 2, 1912. The delay of almost two years between ratification of the treaty and the Commission's first meeting had been due to the time required to adopt necessary legislation, obtain appropriations and appoint the first commissioners. The first three United States commissioners were appointed in early 1911, but the appointment of the Canadian commissioners was delayed. While the Laurier government had in August 1911 named a slate of three commissioners, including Gibbons to be the first chairman of the Canadian section, their commissions of appointment had not been signed by the King when Laurier's Liberal government lost the 1911 general election. Shortly after the general election, the Borden Conservative government submitted a new slate of nominees whose appointments were duly signed by the King.

As a fully independent country, Canada has succeeded fully to Great Britain's rights and obligations under the treaty.

It is testimony to the foresight of the negotiators that, with the exception of Article V relating to the Niagara River, the Boundary Waters Treaty has endured without amendment for more than ten decades and continues to serve as a touchstone for the prevention and resolution of disputes between the two countries.

Under the United States Constitution, the treaty has been incorporated into U.S. law, and Canada confirmed the treaty in the International Boundary Waters Treaty Act, passed in 1911. (On February 5, 2001, Bill C-6, An Act to Amend the International Boundary Waters Treaty Act, received first reading in Parliament. This bill provides, among other things, for a prohibition on the removal of water from boundary water basins.)