Academic journal article Canada-United States Law Journal

The Boundary Waters Treaty 1909 - a Peace Treaty?

Academic journal article Canada-United States Law Journal

The Boundary Waters Treaty 1909 - a Peace Treaty?

Article excerpt

International Joint Commission

The following is the text of the 7th Annual Canada-United States Law Institute Distinguished Lecture given at Western University Faculty of Law by Commissioner Gordon Walker, Q.C., on Oct. 29, 2013. A native of St. Thomas, Ontario, and a graduate of Western University, from which he received a B.A. and LL.B., Mr. Walker served as Member of Provincial Parliament for London from 1971 to 1985, including as Minister of Correctional Services, Provincial Secretary for Justice. Minister of Consumer and Commercial Relations, and Minister of Industry and Trade. From 1992 until 1995 Mr. Walker served the International Joint Commission (IJC) as a Canadian Commissioner. He was reappointed to the IJC in June 2013 and currently serves as both Commissioner and Canadian Chair.

It is my distinct honour to present the 7th annual Canada-United States Law Institute's distinguished lecture here at Western University.

Western's School of Law has shaped my law career, over the past five decades--whether it was the practice of law, the making of law, or the administering of law. Not a day goes by when the basic grounding I received here at Western has not played a role. Perhaps I helped shape the University somewhat as the Act that governs this University at one point for a decade carried my name as its sponsor in the Ontario Legislature.

The purpose of the Canada-United States Law Institute is identified as serving as a forum for exploration and debate about legal aspects of Canada-United States relations.

If one were to look for a case study to best examine the relations between the two countries then the Boundary Waters Treaty (BWT) of 1909 (1) is perhaps the best place to look. The Boundary Waters Treaty established the International Joint Commission (IJC) (2) as a permanent Commission. It is all there.

The title of this lecture is--"The Boundary Waters Treaty 1909--a Peace Treaty? With that title, I pose the question of whether the Boundary Waters Treaty is a treaty about water resources per se--or is it really more accurately viewed as a Peace Treaty?

Before I get to the Treaty I think we need to be clear on what constitutes a peace treaty. The common understanding is that a peace treaty contains provisions to end hostilities between two nations by resolving the issues that led to the conflict in the first place, as well as providing for the resolution of future conflicts, before they escalate reopening hostilities.

In short, an effective peace treaty should both: end the conflict and keep the peace. And so with that I will set out my general thesis for this Lecture, namely that the BWT has been, for over 100 years, and continues to be, a model agreement between two nations for the prevention and resolution of disputes. Now some historical context to help play this out.

Water and water rights have been important and enduring issues in the longstanding and generally amicable relationship between Canada and the United States since the American War of Independence. A number of treaties preceded the BWT and are worth mentioning here for context. The Definitive Treaty of Peace, (3) 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 to resolve disputes, all with provisions relating to the use of water flowing along or across the boundary, particularly for navigation. The more notable ones included the 1794 Jay Treaty, (4) which although mostly known for Article III giving Native Americans the right to crisscross the border, settled leftover disputes from the US Revolutionary War and bought about 10 years of peace; the 1817 Rush-Bagot Agreement, (5) which demilitarized the Great Lakes and Lake Champlain; and the 1871 Treaty of Washington (6) which settled a dispute over the location of the Pacific border in Juan de Fuca Strait, the first border dispute in the world to be settled by arbitration with the arbitrator appointing a three person Commission to determine the facts and recommend a solution. …

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