The Rt. Hon. Herb Gray, P.C., C.C., Q.C.
Canadian Chair, International Joint Commission
Canada-United States Law Institute 2005
Case Western Reserve University
School of Law
"Canada and U.S. approaches to the Great Lakes - Environmental and Economic Aspects"
April 16, 2005
I am pleased to be invited to this conference on "Understanding Each Other Across the Longest Undefended Border in History".
The topic of this session is "Canada and U.S. approaches to the Great Lakes - Environmental and Economic Aspects"
There are a number of ways to approach this topic but I will do so by discussing how and to what extent these approaches differ or are the same.
I want to advance the argument that when it comes to Canadian and U.S. approaches to the environmental and economic aspects of these lakes - these approaches are largely the same for both countries.
And I say this because of the existence of three remarkable international agreements that help provide a common framework for these approaches.
I'm talking especially about the Boundary Waters Treaty of 1909 between the U.S. and Canada and the Great Lakes Water Quality Agreement, as well as the International Air Quality Agreement.
(On the economic side I could also mention NAFTA (the North American Free Trade Agreement). There are those Canadians who say the agreement has its gaps when they look issues like the softwood lumber and mad cow, but I'll leave that discussion for another speech at some other time.) Also NAFTA has its environmental side agreement - creating the three government Canada-US-Mexico Commission for Environmental Cooperation on trade related environmental matters.
The Boundary Waters Treaty was signed in 1909, between the U.S. and Great Britain acting for Canada. At that time Canada did not have treaty making status as an independent country. It gained it following the Treaty of Versailles signed in 1919 - the treaty that followed the first world war.
In fact much of the treaty negotiation on the Canadian side was carried out, not by the then UK ambassador James (later Lord) Bryce, but by a (Canadian) lawyer based in London Ontario - George Gibbons.
(It's good to remind ourselves that) the basic purpose of the treaty is to avoid or resolve disputes between Canada and the U.S. on matters involving the boundary waters.
The preamble in the Treaty reads:
"The United States of America and His Majesty the King … 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 may hereafter arise, have resolved to conclude a treaty in furtherance of these ends".
The treaty creates a unique international institution to help the two national governments to carry out its purposes - the International Joint Commission of Canada and United States.
The treaty is worded and applied and the Commission it created operates in a way that some might consider unusual- that is on the basis of equality between the two countries.
I say this because of the disparity in their size of population and economies - (the U.S. being 10 times the size of Canada in both population and economy).
The Commission has six members - three U.S. and three Canadian - one is the U.S. Chair and one is the Canadian Chair, serving simultaneously and working together. The U.S. commissioners are appointed at the highest level in the U.S. Federal government, that is by the President with the concurrence of the Senate. Their Canadian counterparts are appointed by the Governor in Council (the Cabinet), the highest level in the Canadian federal government.
The U.S. Commissioners do not have more votes nor do their votes carry more weight than those of the Canadian Commissioners.
In fact the Commissioners, by long standing custom, reach decisions by consensus not by formal vote. Formal votes have happened only twice since the Commission began operations in 1911.
It has dealt with almost 100 matters since that time. Every meeting, every decision requires a quorum of four - that is at least one commissioner from the other country has to be in the quorum.
Unlike other international organizations Commissioners do not formally represent their countries. Instead on appointment each Commissioner signs a declaration, based on article XII of the treaty which states:
"Each Commissioner … shall, … make and subscribe a solemn declaration in writing that he will faithfully and impartially perform the duties imposed upon him under this treaty".
Article III of the treaty states:
It is agreed that, in addition to the uses, obstructions, and diversions heretofore permitted or hereafter provided for by special agreement between the Parties hereto, no further or other uses or obstructions or diversions, whether temporary or permanent, of boundary waters on either side of the line, affecting the natural level or flow of boundary waters on the other side of the line shall be made except by authority of the United States or the Dominion of Canada within their respective jurisdictions and with the approval, as hereinafter provided, of a joint commission, to be known as the International Joint Commission.
The concluding paragraph of Article IV deals with what we would today call "environmental aspects" as it states:
It is further agreed that the waters herein defined as boundary waters and waters flowing across the boundary shall not be polluted on either side to the injury of health or property on the other.
These are unusual words in a treaty signed in 1909, in a period when industrial and urban development were generally first in most peoples' and their governments' minds and not the pollution caused by development.
Article VIII outlines the priority of use of these waters.
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.
All of these uses obviously have economic implications.
So what is the Commission specifically required to do. First it responds to "references" - formal requests from the two national governments to look into specific matters or problems and make findings and recommendations for action by the two governments to resolve the problem.
These reports under article IX do not have the status of formal arbitral awards. However these reports are also released to the public at the same time as they are submitted to the two governments. Therefore the force of public opinion can support the IJC's recommendations. Also the request for the reference, by custom, always comes from both governments in the same terms and at the same time. Therefore there is an implied obligation on both of them to deal with the report in a responsive way. I'm told that the percentage of IJC recommendations acted upon by the two governments since 1911 has been very high.
Secondly, the Commission also receives permanent references from the two governments. These include requests to assist, and oversee, the way the governments carry out other certain international agreements between them.
They are set out in specific language in the Great Lakes Water Quality Agreement, in particular, as well as the International Air Quality Agreement. So the duties for the IJC regarding these agreements are written into them and are called permanent references.
And I'll discuss them in a few minutes.
The treaty does provide, in Article X, for references for which the IJC reports would be binding arbitral awards. However, under the treaty to make such a reference the U.S. federal government would have to have the concurrence of the U.S. Senate. Understandably no such reference under article X has ever been given.
As described earlier in Article III, the Commission also makes decisions on applications presented to it by the two governments on whether to allow the building of structures on, over or under a boundary water that affect its natural levels or flows in the other country.
The Commission's decision could be to allow the application, to deny it, or allow it with conditions - the later is usually what has happened. If an order of approval with conditions is made, the IJC sets up a control body to oversee their implementation.
The IJC has 15 such control bodies along the entire US-Canada boundary. When it comes to the Great Lakes there are control bodies involving the structures on the international section of the St. Lawrence River - between Cornwall and Massena and at the Sault on the St. Marys River. The IJC also oversees flows in the Niagara river pursuant to a reference, rather than an order, but it has has a control board for that purpose.
The apportionment of water under these IJC control orders has obvious economic effects for the Great Lakes region.
There have been almost no such orders for major projects, since the completion of the Seaway in the early 1960s, except the Great Lakes Power re-development at the Sault in 1979. This could change if and when the governments decide to proceed with new bridges and/or tunnels at major Canada/U.S. Great Lakes highway gateways, separated by water particularly across the Detroit River between Windsor, (Ontario) and Detroit, (Michigan) as well as across the Niagara River at Fort Erie, (Ontario) and Buffalo (NY).
These IJC control orders, once made by the IJC, are not subject to appeal - The IJC however, can consider a request to reopen and modify such orders. This has rarely happened in the past (and whether or not it does so is its sole discretion).
(Although the governments could, I'm told supersede an IJC order through a special agreement. However I am not aware of this ever happening.)
The IJC has a special board that is now in the concluding year of a major five year study to see whether the control order for Lake Ontario and the St. Lawrence should be modified to take into account factors that were not considered or have changed since the order came into effect in 1958 (but within the confines of the requirements of the treaty).
I refer in particular to matters like recreational boating, sports fishing, marinas and the building of many more cottages or permanent homes close to the shores of Lake Ontario and the St. Lawrence River. Another factor involves environmental matters generally, including preserving wetlands and native plants fish and animal species. This study involves 100 people and costs 30 million dollars, one half of which is provided by each government.
A proposal by the IJC for the funding of a similar comprehensive study of the control order, at the Sault, for the Upper Lakes, is being considered by the two governments.
We know, all to well, that the waters of the Great Lakes are essential for the health and well-being of the Great Lakes ecosystem and for the nearly 40 million people on both sides of the border who rely on the them for drinking water, food, work, and recreation.
In spite of the treaty bearing the name "Boundary Waters", under its Article IX and its preamble, the governments are not limited to giving the IJC references about matters dealing with waters.
From the early years of the treaty, the two governments have given the Commission references on matters of cross boundary air pollution - (for example the Trail Smelter reference in 1928) ,recognizing that deposition from the air is a major form of pollution of the water. And years later this was specifically recognized in Annex 15 of the Great Lakes Water Quality Agreement.
The Treaty's Article IX says in part:
"The [High Contracting] Parties further agree that any other questions or matters of difference arising between them involving the rights, obligations, or interests of either in relation to the other or to the inhabitants of the other, along the common frontier between the United States and the Dominion of Canada, shall be referred from time to time to the International Joint Commission for examination and report, whenever either the Government of the United States or the Government of the Dominion of Canada shall request that such questions or matters of difference be so referred."
Article IX of the treaty is not limited to water and air matters under references. They can be about any cross-border issue. The treaty has been used to look into other matters at least twice in the past.
There was a reference to which a report was made in 1961 into whether the salt water tides of Passamaquoddy Bay off the Bay of Fundy could be harnessed commercially to produce hydro electric power.
There was also a reference in 1971 to examine the social and economic impact on Point Roberts of having its only land connection to British Columbia. Its on the tip of a peninsula in the U.S. Waters of the Strait of Georgia, and part of Washington State.
So the treaty can be used by the two countries not just for matters involving transboundary waters and air above them. This could be of interest in light of calls recently by some private sector organizations for new institutional models to facilitate Canada - U.S. relations. One such group, the Canadian Association of Chief Executives, has made specific recommendations about using the IJC, or at least its model, as an instrument to better facilitate and manage these relations.
In 1972 the Great Lakes Water Quality Agreement was signed by Canada and the U.S. in response to the growing concerns of the millions of people living around the lakes about the lakes' deterioration, and more specifically, in response to IJC reports about their bad condition.
This agreement was replaced six years later by the current 1978 Great Lakes Water Quality Agreement in which the two governments equally committed themselves to: "to restore and maintain the chemical, physical, and biological integrity of the waters of the Great Lakes Basin Ecosystem".
The 1978 agreement has been updated and added to, particularly in 1983 and 1987. In 1987 the agreement introduced the idea of identifying Areas of Concern, (AOCs) the worst environmental geographic locations in the Lakes. It also provided for the creation of RAPs - "Remedial Action Plans" to restore their beneficial uses. Forty-Two such Areas of Concern were identified, based on a list recommended by the IJC.
The two countries (both) have the same obligations to clean up their respective portion of the lakes under the agreement. A lot has been accomplished in both countries since the first Great Lakes Water Quality Agreement was signed in 1972. Hundreds of millions of dollars in both countries have been spent to upgrade existing or to build new sewage and water treatment plants and to ban the discharge of certain chemicals into the lakes - particularly phosphorus.
Also the agreement banned the manufacture of PCBs, and banned the use of DDT and certain other pesticides. In addition it virtually eliminated the formation of Dioxins from the pulp and paper sector.
However a lot still remains to be done in the Areas of Concern which I've mentioned and generally to complete the clean-up of the lakes. Also new threats to the lakes have emerged. Concern now exists over fire retardant chemicals (used on furniture) for example, and pharmaceuticals used by humans that are now turning up in the lakes.
In addition there has been some worrisome changes - backsliding- in Lake Erie. For example there appears to be a build up of phosphorus in that lake.
Since 1987 only two AOCs have been rehabilitated to the point where they have been completely delisted - both in Canada. Two more in the U.S. are close. While there has been progress in cleaning up the other AOCs, they are not close to being delisted.
Canada and the U.S. coordinate their efforts under the Great Lakes Water Quality Agreement through the BEC - the Binational Executive Committee. The BEC is a discussion forum composed of senior-level representatives - officials - of Canadian and U.S. federal, state, and provincial departments and agencies which are accountable for delivering the programs and activities that carry out the terms of the Great Lakes Water Quality Agreement. They meet twice a year and make decisions based on consensus.
The BEC also serves as a forum to discuss problems and differences which may arise in the implementation of binational activities under the Agreement. Under it BEC would identify possible solutions or mediating measures to be taken by the two governments. The BEC meetings include an IJC representative as an observer.
(As I've said) in the Great Lakes Water Quality Agreement the IJC is required to assess the progress of the two governments in carrying out their commitments. In particular the IJC is required to make a major report at least every two years to the governments and the public on how the governments are carrying out these commitments. However, the IJC can report on any aspect of the agreement whenever it likes (as it did in a special report on the status of all the AOCs two years ago).
The most recent Biennial Report by the IJC "the 12th" came out last September.
The Agreement provides that after every third such report, roughly every six years, the two national governments have to carry out a review of the agreement. Our 12th report has triggered the obligation to carry out such a review.
A binational governmental scoping committee published for comment a draft plan for carrying out this review, seeking public input by last March 5, 2005.
Therefore the review itself has not yet begun. However it is understood that the IJC will likely be asked to carry out public consultation regarding the review. We, as a Commission, will also likely make our own comments, as an interested body, on what questions the governments should be asking as the agreement is reviewed, and what should be changed, or not changed.
After every Biennial Report the IJC holds a major public conference to get the views of the public as part of the planning for the next report and to discuss the work of the IJC's scientific boards - Science Advisory Board, the Water Quality Board, the Council Great Lakes Research Managers, the International Air Quality Board and the Health Professionals Task Force.
The next such meeting will take place on the campus of Queens University in Kingston Ontario on June 9-11. You are all invited to attend. It will focus on the two national government's coming review of the Great Lakes Water Quality Agreement. For further information about this meeting and its programme check our web-site - www.ijc.org.
Also in the International Air Quality Agreement, the two governments are required to issue a report every two years on their progress in achieving its objectives. The IJC is required to invite public comments on it and synthesize these comments into a special report to the two governments and the public. The IJC is in the process of preparing the latest such report at the present time.
I want to discuss a reference on a specific topic. It called on the IJC to report on whether the waters of the Great Lakes could sustain diversions of water in bulk outside of their basin, particularly to the U.S.. This dealt with a matter involving both the environmental and economic aspects of the Great Lakes was given to the IJC in 1998.
It followed an application to Ontario by the Nova Corporation in 1998 to export water by tanker from the Ontario side of Lake Superior. Although the Ontario license for this was later rescinded, the Nova application caused a great deal of public concern about other possible bulk water removals from the Lakes.
The IJC report was issued in 2000 and was entitled "The Protection of the Waters of the Great Lakes". It found that the Great Lakes are not a renewable resource and do not offer a vast reservoir for an increasingly thirsty world. The report noted that although the Great Lakes contain about 20% of the fresh water on the earth's surface, only 1% of this water is renewed each year from snowmelt and rain.
In effect it found and recommended, as a result, that the bulk removal of water from the lakes was not a good idea.
So what did Canada do? In December 2002, the Canadian government proclaimed in force Bill C-6 which was passed by Parliament in 2001. It amended the (Canadian) International Boundary Waters Treaty Act and made new related International Boundary Waters Regulations. This Act and its regulations prohibit new bulk removals from the Canadian boundary waters, including the Great Lakes-St Lawrence Basin.
In 1999 Ontario enacted a water taking and transfer regulation, which generally prohibits transfers out of Ontario's part of the Great Lakes and the St. Lawrence basin.
As well since 1999 Quebec has also generally prohibited transferring water outside of Quebec that has been taken in Quebec.
What did the U.S. do?
The U.S. congress had earlier passed the WRDA Water Resources Development Act of 1986. It said no diversion in bulk is allowed from the lakes if a governor of any Great Lakes state objects, even if the project does not involve their state.
There are those who argue that the act could be the subject of a successful court challenge as it does not contain any provision for a hearing or due process before a governor makes such a ruling. However many others disagree and no challenge has been made to the act since it was passed in 1986.
In any event the U.S. Congress called for the Great Lakes states to work with Ontario and Quebec to develop measures to deal with any proposals for bulk water removal on the U.S. side of the Great Lakes basin.
On June 18, 2001, the Great Lakes states and Ontario and Quebec concluded a draft annex to the 1985 Great Lakes Charter.
They are now working on a way to implement this Annex 2001 to the Great Lakes Charter.
This "Annex 2001" is a good faith arrangement between the Great Lakes states and Ontario that establishes principles for the management of Great Lakes water resources. Annex 2001 commits the Great Lakes states and Ontario and Quebec.
"...The standard will also address proposed increases to existing water withdrawals and existing water withdrawal capacity from the Waters of the Great Lakes Basin."
Therefore in July of last year, the Council of Great Lakes Governors representing the eight Great Lakes states, together with Ontario and Quebec, released draft proposals for implementing Annex 2001, for public comment during the following 90 days.
These two proposals were for a compact that would only be between the 8 Great Lakes states and approved by the US Congress as well as a "good faith" agreement between the 8 Great Lakes states and Ontario and Quebec. (Constitutionally, in Canada provinces cannot enter into public international agreements that are binding under international law.)
To come into force, the compact would have to be approved by the U.S. Congress and the Legislatures of all eight Great Lakes - a process I am told, could take many years to be completed.
The Canadian government and the Attorney General of the state of Michigan criticised the proposals. The province of Ontario said they would not sign it in its current form.
On January 7, 2005 the Canadian Federal government made a formal submission to the Council of Great Lakes Governors. In it praised some aspects, (about monitoring and research). However it said that the proposed agreements to implement Annex 2001 "do not afford a sufficient level of protection to the waters of the Basin and need to be strengthened in a number of respects".
Also, the Canadian government "encouraged the Council of Great Lakes Governors to afford the same level of protection and certainty as is afforded by the Canadian federal, provincial and territorial governments, which together have banned removals of waters from the basin."
The Canadian government said, as well, in its submission that the Annex proposals had to "recognize the ongoing role of the IJC and the comprehensive advice to governments contained in the Commission's February 2000 report, Protection of the Waters of the Great Lakes, and its August 2004 review of that report."
The U.S. Federal Government had earlier made a submission to the Council stating that the final version of the proposals to implement the Annex had to clearly recognize and take into account the role of the IJC and the Boundary Waters Treaty.
It should be noted that the Natural Resources Minister of Ontario, David Ramsey announced on November 15, 2004 that the new McGuinty government in Ontario would not sign the current drafts of the Great Lakes Charter Annex agreements in their current form unless changes to enhance the level of protection for the waters of the Great Lakes basin are made.
And last October 19, 2004 Michigan Attorney General Mike Cox stated "his dissatisfaction with the Annex 2001 draft implementing agreements" saying "it is possible that the State of Michigan's power to protect the great lakes from harmful water diversion may be reduced."
The Great Lakes Governors have a working group that is considering all the comments from the federal governments and others about this. (Including a group it left out the first time around, the First Nations and Tribes). The working group met a few weeks ago and is developing a new version of the proposals based on these comments. These discussions are continuing and I understand that the Great Lakes Governors' working group hopes to release a second draft for public comment in the middle of May.
The two federal governments gave the IJC a reference to update its 2000 report after three years. The IJC issued such an update in 2004. It confirmed its earlier recommendations in the 2000 report and stated:
"The Commission recommends that the outcome of the Annex 2001 process should include a standard and management regime consistent with the recommendations in our 2000 Report."
Also last year the "U.S. Great Lakes Regional Collaboration" was established. It was created in that country by a presidential executive order bringing all the U.S. Great Lakes federal programs under central coordination. The order also called for co-operation with Canada.
In response, the government of Canada noted that, it was "pleased with (the) announcement from our U.S. partners in cleaning up the Great Lakes and we look forward to collaboration in every way with this newly created task force to expand and intensify our efforts to restore, protect and preserve the global treasure called the Great Lakes."
In support of Canada's commitments, under the Great Lakes Water Quality Agreement, with Ontario's cooperation, the Government of Canada launched the first Great Lakes Program in 1989. The current Great Lakes Program is a coordinated effort among eight federal departments and agencies and the province of Ontario, with the objective of ensuring that Canada's commitments under the Great Lakes Water Quality Agreement are met.
The Federal Great Lakes Program directive states that it "provides the framework for working towards our vision of a "healthy, prosperous, and sustainable Great Lakes Basin ecosystem".
The Governments of Canada and Ontario coordinate their activities in the Great Lakes through the Canada-Ontario Agreement Respecting the Great Lakes Basin Ecosystem (COA), first signed in 1972, renewed several times the last time in 2002. This is a cooperative effort between eight federal departments and agencies and three Ontario provincial departments.
The Canadian Federal government in its recent budget proposed renewing its Great Lakes program for an additional five years and allocated a further 40 million for this purpose. It has also allocated $85 million in that budget to fight Alien Invasive Species of all kinds, plants, insects and animals, not just aquatic ones, all across Canada.
It's not clear how much will be allocated for alien aquatic species - a particular Great Lakes problem. However, it is known that $10 million of that will go to the Sea lamprey control programme operated in the Great Lakes by the Great Lakes Fishery Commission established in 1955 by a convention.
Aquatic Alien Species cause substantial environmental damages and creates billions of dollars in costs. Last fall Canada released for discussion a plan to fight all kinds of Alien Invasive species all across the country. It was developed cooperatively by relevant federal departments and all the provinces. An implementation plan for this will be discussed by them this fall.
In the U.S. in 2003 the National Aquatic Invasive Species Act (NAISA) was introduced into the U.S. House and Senate to manage all major AIS vectors, (including ballast water, canals, and organisms in trade. The legislation also authorized measures for rapid response and research). Unfortunately since its introduction, despite widespread support, the legislation has not yet passed the House or the Senate.
So far no binational body co-ordinating this work exists on both sides of the border exists. Yet the problem is clearly binational. The IJC has called for a reference from the two governments to give it authority to provide this kind of international co-ordination. I would argue that the precedent is the reference to the IJC written into the Great Lakes Water Quality Agreement and what the IJC boards did in the early years of this agreement.
The U.S. and Canada have different models of government - the one congressional and the other parliamentary. However their approaches to economic and environmental aspects pertaining to the Great Lakes are not all that different, at least in part, because they are governed by the key binational agreements I've mentioned, in particular the Boundary Waters Treaty and the Great Lakes Water Quality Agreement as well as the International Air Quality Agreement. Their application, while primarily environmental, also has economic aspects. There is in addition the impact of NAFTA.
They create basically the same obligations for both countries. There may be differences because of matters like different funding processes for programmes and the timing of these processes as well these programmes' administration.
I've mentioned the funding in Canada for the Great Lakes restoration that have been proposed in the recent federal budget.
On the U.S. side of the border, President Bush's budget for 2006 calls for spending of $50 million next year to further clean up U.S. Areas of Concern through the Great Lakes Legacy Act, (double the amount to be spent this year). In addition, both Republican and Democratic congresspeople and Senators have introduced legislation into the U.S. Congress to coordinate federal programs and authorizing major new expenditures on Great Lakes restoration in a bi-partisan effort.
In addition the U.S. Great Lakes Regional Collaboration expects to release a draft Great Lakes Strategy this summer.
By the way: The Commission also concluded in its 2000 report that existing international trade law obligations do not prevent Canada and the United States from taking measures to protect their water resources and preserve the integrity of the Great Lakes Basin ecosystem.
The governments of Canada and the United States have issued statements supporting this view.
To sum up, I believe that Canadian and American approaches to the environmental and economic aspects of the great lakes have much in common. Also I should note there are many levels of cooperation between Canada and the U.S. which involve a host of federal, state and provincial departments and agencies.
However vigilance by citizens and their governments on both sides of the boundary is required to ensure that the approaches and goals do not ever diverge too greatly and that there is always movement forward on both sides of the border to complete the work that remains to be done.
The objective on both sides of the border must be that economic and environmental progress for the Great Lakes and the 40 million people living around their shores continue at an accelerated rate for them and more importantly for their - and our children and grand children.
An early U.S. President, Andrew Jackson said that "eternal vigilance by the people is the price of liberty." In my view this concept is relevant when it comes to the economic and environmental health of the Great Lakes and the land around them in their basin.
We must maintain eternal vigilance as the price of making progress and avoiding backsliding in matters of the quantity and quality of the Great Lakes waters - and, better still, as the price of moving forward in restoring the biological, chemical and physical integrity of the Great Lakes.
There is an ancient Native American (First Nations) saying that "we do not inherit the land from our ancestors we borrow it from our children."
Surely this applies to the Great Lakes waters as well.
The French explorer Samuel de Champlain when he first saw these waters 400 years ago called them "sweet water seas". Yes we must strive together to make them once again our "sweet water seas".