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The accidental environmental treaty

As Canada and the United States celebrate the 100th anniversary of the Boundary Waters Treaty, we frequently hear it touted as the world’s first environmental treaty. What is often lost in the buzz is that environmental protection was not the objective of those who drew up the treaty at the beginning of the last century. Their aim was to avoid or solve conflicts – and potentially war – over water use along the 5,000-mile long Canadian-U.S. border.

Water Quality – A Treaty After-Thought

Where the Boundary Waters Treaty has been seen as leading on environmental matters is in what appears as an add-on sentence at the end of Article IV: “It is further agreed that the waters …. shall not be polluted on either side to the injury of health or property on the other side.”

This sentence has been used as the foundation for some of the most significant and forward thinking developments in pollution prevention and control in the world. It is the basis under which the governments have referred boundary pollution matters to the IJC for study and recommendations, and is the source for the Great Lakes Water Quality Agreement.

The other significant aspect of this sentence is its absolutist nature: it implies that no injury is allowed. This strong language has led to phrases such as “virtual elimination” and “zero discharge” in the Great Lakes Water Quality Agreement.

While this statement has been used to make dramatic advances in environmental protection, the phrasing is consistent with the rest of the treaty in that it is only concerned with human health and property interests – not the ecosystem.

Agreeing on Water Use

While great gains have been made on protecting the water quality as a result of the treaty, it’s original intention was to quell potential conflict and discern who can do what with the water. The greatest areas of contention in this regard were over navigation rights and water rights for hydroelectric energy production.

When the treaty was drafted in 1909, there was already conflict over access to the great navigational potential that the Great Lakes provided. While road, rail and air travel have since come to dominate the transportation network of today, ships were a more significant component of the early 20th century transportation network.

Drawing a line through such large bodies of water like the Great Lakes may work on a map, but is pretty impractical on the water. To overcome the disputes the treaty guaranteed access for both Canadian and U.S. ships to all the waters of the Great Lakes and St. Lawrence River, including Canadian access to Lake Michigan – a lake fully within the U.S. boundary.

As industrial output in the region continued to grow into the 20th century, the tremendous hydro-power potential of Niagara Falls and the St. Marys River was in the eyes of developers on both sides of the border. The potential of the St. Lawrence River would later be addressed under the treaty.

The BWT set up a mechanism to resolve conflicts over access to the waters of the Great Lakes to generate electricity. One of its provisions is that Canada and the U.S. will have “equal and similar rights in the use of the waters.”

To play the role of referee, the International Joint Commission (IJC) was established. Among other responsibilities, the IJC would make decisions around the flow of water in order to protect navigational power generation interests.

The BWT specified an “order of precedence” that must be used when making decisions about water flows and use. Nowhere in this list, nor anywhere else in the treaty, is protection of the environment and ecological function for non-human purposes mentioned. Instead, the list ranks priorities starting with domestic and sanitary purposes, followed by navigation, then power generation and irrigation.

Eco-what? Environmental-who?

The absence of environmental considerations has left us where we are today, where decisions to protect navigational and power generation interests have resulted in major destruction of the environment. This is especially evident upstream of the Moses-Saunders power plant in the St. Lawrence River.

While Article VIII does include a provision for the “protection and indemnity against injury of all interests on the other side of the line which may be injured thereby”, this has traditionally been defined as direct human interests, such as shoreline owners – not the environment.

The non-environmental nature of the BWT is a major cause of the conflicts that the IJC now finds itself in as it conducts major reviews of flows and levels in the lower Great Lakes (Lake Ontario and the St. Lawrence River) and in the upper Great Lakes (Lakes Erie through Lake Superior).

For all the criticisms leveled at the IJC, they are bound by the language of the Boundary Waters Treaty. It will take all the creativity the IJC can muster to protect the environment within the strictures of the BWT.

If the treaty is to truly live up to its mythology, the Canadian and U.S. federal governments must revise the BWT and turn it into an environmental treaty. However, the prospect of getting a revised treaty through the U.S. Senate and the Canadian Parliament is an overwhelming thought.

Equal Rights and Binationalism

For as long as Canada existed, a fear of U.S. domination has been strong in the national psyche.

Built into the BWT are critical safeguards that ensure equal rights and treatment under the treaty. This includes the provision that each country will have equal rights to the use of the waters, a guarantee of access to all waters of the Great Lakes system for navigation purposes, and an equal number of Canadian and U.S. appointees on the IJC and on all its boards.

With equal representation on the IJC, no decision can be made without support from commissioners on both sides of the border, though traditionally the IJC has made decisions by consensus.

The binational approach that favours a cooperative search for shared solutions to problems in the Great Lakes and St. Lawrence River basin is an invaluable outcome of how the BWT has developed over the past century. If, as scientists predict, the abundance of the waters of the Great Lakes basin can no longer be taken for granted in the coming century, this situation may change.

Conflicts over water use will escalate and the Canadian and U.S. governments may find it harder to come to shared solutions around the use and flows of water in the basin. And the damage to the ecosystem will also increase.

While 100 years of the Boundary Waters Treaty has, on the whole, led to the successful navigation of the waters of international relations, there is no guarantee that it will continue to do so. Without any overt environmental considerations, it is unclear whether the regime it establishes will be up to the challenges of the next century.

© 2009 Great Lakes News.