By Daniel MacFarlane
Daniel Macfarlane is an Associate Professor in the School of the Environment, Geography, and Sustainability at Western Michigan University. He is also a senior fellow at the Bill Graham Center for Contemporary International
History, University of Toronto, and President of the International Water History Association. His research and teaching focus on the Great Lakes-St. Lawrence basin. He is the author or co-editor of six books, including Natural Allies: Environment, Energy, and US-Canada Relations (forthcoming August 2023) and The Lowest Great Lake: An Environmental History of Lake Ontario (forthcoming 2024).
Environmental and energy issues have always been central to US-Canada relations and diplomacy – that is the key point of my new book Natural Allies: Environment, Energy, and the History of US-Canada Relations. Going back to the nineteenth century, no two nations have exchanged natural resources, produced transborder environmental agreements, or cooperatively altered ecosystems on the same scale as the United States and Canada. In this post, the first in a series that draws from Natural Allies to highlight transborder issues that concern the Great Lakes, I will address the creation of the Boundary Waters Treaty and International Joint Commission.
At the end of the nineteenth century, there was a flurry of hydropower and canal developments in the Great Lakes-St. Lawrence basin. The many border water issues helped launch discussions for the International Waterways Commission, which eventually led to the U.S.-Canada 1909 Boundary Waters Treaty (BWT).
The Boundary Waters Treaty
The BWT notably granted equal navigation access to shared waters and adopted regulations concerning alterations to border water levels. Any changes in the level of a boundary water henceforth needed agreement through the International Joint Commission (IJC), created by the 1909 treaty (or a special agreement between the federal governments outside of the IJC, though the subsequent construction or maintenance of any infrastructure that affected water levels at the border needed IJC approval). The International Joint Commission is a six-member body with an equal number of Canadian and US appointees who are technically independent from the government that appointed them. Canada wanted a powerful commission. The US wanted a weaker one – the result was a compromise.
The BWT gave the IJC four categories of function that the new commission was expected to discharge: administrative (article VI); quasi-judicial (articles III, IV, and VIII); arbitral (article X); and investigative (article IX). The majority of the IJC’s activities have proven to be in the judicial and investigative realms. Additionally, the geographical area in which the IJC has been most active is the Great Lakes-St. Lawrence basin.
Article VIII of the BWT set forth the order of precedence for approving different types of uses of boundary waters: (1) domestic and sanitary purposes, (2) navigation, and (3) power. Notably, this made no reference to industrial or recreational uses. Nevertheless, those uses were adopted into the IJC’s considerations over the following decades, as were ecological considerations in the second half of the century. The IJC provided mechanisms, such as public hearing sessions in the concerned watershed, so locals could have their voices heard.
Challenges on the Border
In addition to setting out general rules, the Boundary Waters Treaty specifically addressed some of the festering border water disputes. Article V of the treaty dealt only with Niagara Falls, for example. Canada could divert no more than 36,000 cubic feet per second (cfs) from the river (which had an average flow of about 200,000 cfs) above Niagara Falls, and the United States 20,000 cfs. Significantly, the Boundary Waters Treaty addressed “pollution,” using that specific word for what appears to be the first time in the history of transborder environmental governance.
The treaty only applied to boundary waters that formed the border, not tributaries. This represented a partial incorporation of the Harmon Doctrine – which gives the upstream riparian the sole authority to do what it desired with water – also on American insistence. However, over time the US did back away from the Harmon Doctrine since there were many cases where its strict application would benefit Canada more. On American insistence, the BWT did not include Lake Michigan, as it is wholly in the United States. Granted, in some respects the BWT and IJC was applied to Lake Michigan (e.g., water quality).
An Important Agreement
The Boundary Waters Treaty proved to be one of the most important agreements the two countries ever signed. The treaty and commission have been characterized as a pioneering form of international environmental governance. According to a former commissioner, the philosophy of dispute-settlement and conflict avoidance built into the BWT and IJC was far more sophisticated than any comparable piece of bilateral machinery then existing in Western society.
But the IJC is not perfect. Though it was explicitly set up so that commissioners are technically independent of the government that appointed them since it is made up of appointees the IJC can become politicized and partisan. Consequently, it has sometimes made poor recommendations or rulings. The IJC’s influence can also be limited since the two federal governments must refer an issue to the commission, and the two federal governments have made many important water agreements outside of the IJC. And even when they have sent an issue to the IJC, the two national governments do not need to, and often do not, heed the recommendations of the commission.
A Foundation for Future Cross-Border Ecopolitics
Furthermore, though this 1909 treaty contained the seeds of environmental protection and cross-border cooperation, it was also motivated by a bilateral desire to exploit border waters for economic gain. In some respects, the IJC has been an elite form of water apportionment that favored industrial and government interests at the expense of environments, recreational activities, local interests, and Indigenous communities. Moreover, the claim that this commission is a global model for transborder environmental governance is overblown.
The history of the IJC is characterized by an initial half-century of mixed results, followed by a mid-century period of partisan politics resulting in ecologically destructive megaprojects, followed by a period of more noticeable success up to about the 1990s. In the last few decades, it has occupied a somewhat marginalized position.
Nevertheless, the BWT and IJC have succeeded in providing a framework and ground rules that have, for the most part, prevented, contained, or resolved bilateral disputes over boundary waters. In the limited areas in which it has power, it tends to do a good job. In doing so, the BWT and IJC have together proven to be a foundation stone for modern Canada-US ecopolitics in the Great Lakes basin.