On January 11, 1909 Canada and
the United States signed the International Boundary Waters Treaty to address conflicts
arising between the two countries over the use of waters that crossed the
borders of the two countries. The
Treaty created the International Joint Commission (IJC) and created guidelines
and principles governing the management of boundary and transboundary
waters.
The International Boundary
Waters Treaty Act was created to implement the Treaty (see International Law for information on the difference between
signing and implementing a treaty). The
federal Minister of Foreign Affairs has the
responsibility of administering the Act.
Boundary Waters
Boundary waters are bodies of
fresh water that the U.S.-Canada border flows through. It does not include trans-boundary rivers
(rivers flowing across the border), although the treaty does contain some
provisions related to such rivers.
In B.C. there are few waters
that would obviously be classified as boundary waters. The possible exceptions are ocean bodies
that the border travels through (such as the Straights of Georgia and Juan De
Fuca) and underground waters (aquifers that straddle the border). However, the Canadian government has not
generally acted as if the Treaty applies waters of these types.
The International Boundary
Waters Treaty and the Act makes certain guarantees for trans-boundary rivers
(and for boundary waters) the border:
·
The waters shall not be polluted on one side of the
border to an extent that causes harm to health or property on the other;
(Treaty, Article IV)
·
Dams or other structures shall not be built on one side
of the border which results in an increase in water levels on the other without
approval by the International Joint Commission (Treaty, Article IV). Under recent amendments to the Act such
activities now require a licence from the Minister of Foreign Affairs (Act, s.
12(1));
·
Where actions on the Canadian side of the border
negatively impact on American citizens down-river on a boundary river, the
American citizens will have the same rights they would have done if the damage
occurred in Canada. (Act, s. 4).
Additional restrictions exist
on boundary waters, which will generally not apply in British Columbia. Note that the requirement of a licence under
section 12(1) of the Act involves a federal decision that could result in an
environmental assessment under the Canadian
Environmental Assessment Act.
There are other restrictions
that apply to dams and other structures built on trans-boundary rivers under
the International River Improvements Act.
These powers may limit the
Canadian development of a river that crosses into or from the United
States. It may allow American citizens
to complain about Canadian actions that impact on their waters. The equivalent U.S. obligations could help
protect rivers from development on the American side of the border.
The International Joint Commission
The International Joint
Commission was created to hear disputes arising from under the International
Boundary Waters Treaty. Since that
treaty was signed in 1909 the IJC has been given powers to hear disputes under
an air pollution treaty and a treaty in respect of the great lakes as
well.
The IJC has six members, three
appointed by each country. It is the
dispute resolution mechanism of the treaty, and either Canada or the U.S. can
refer any dispute between the two countries related to boundary waters to the
IJC. Also, as noted above, certain
types of use of boundary waters require the approval of the IJC (although these
questions would also need to be referred to the IJC by one of the governments.)
The IJC has the powers to hold
hearings on either side of the border.
Under the treaty it is required to give all interested parties a
"convenient opportunity to be heard" on matters that the Commission
is considering.
The IJC’s mandate was created
in 1909 and consequently makes no mention of sustainable development or other
modern environmental concepts.
Nonetheless, it can be a useful tool where environmental impacts on one
side of the border will have a serious impact on the other.
Related Guide Pages:
·
International Law
·
Global Context
·
Canada-U.S. Treaties
For more information about the International
Boundary Waters Treaty Act:
·
Electronic version of the International Boundary Waters Treaty Act. This
document needs to be read in conjunction with An
Act to Amend the International Boundary Water Treaty Act.
·
Website of the International
Joint Commission, especially “What
is the Boundary Waters Treaty”
·
Federal Department of Foreign
Affairs and International Trade.
