Washington Law Review Volume 41 Number 4 8-1-1966 The Canada-United States Controversy over the Columbia River Ralph W. Johnson University of Washington School of Law Follow this and additional works at: https://digitalcommons.law.uw.edu/wlr Part of the International Law Commons, and the Water Law Commons Recommended Citation Ralph W. Johnson, The Canada-United States Controversy over the Columbia River, 41 Wash. L. Rev. 676 (1966). Available at: https://digitalcommons.law.uw.edu/wlr/vol41/iss4/5 This Article is brought to you for free and open access by the Law Reviews and Journals at UW Law Digital Commons. It has been accepted for inclusion in Washington Law Review by an authorized editor of UW Law Digital Commons. For more information, please contact [email protected]. THE CANADA-UNITED STATES CONTROVERSY OVER THE COLUMBIA RIVERf RALPH W. JOHNSON* In a comprehensive study of the recent dispute between Canada and the United States over the Columbia River, Professor Johnson traces its history through the birth of the Harmon doctrine in 1898, the signing of the Boundary Waters Treaty in 1909, and the first Canadianclaim to downstream benefits in the early 1950's. Against this background, he analyzes the negotiations and events-particu- larly the Canadianproposals to divert the Columbia into the Fraser, and to develop the Peace River instead of the Columbia-that culmi- nated in the Columbia River Treaty in 1961. Before Canadian ratification of the Treaty, however, additional problems presented by the split between the Provincial and National governments had to be resolved. Their resolution brought about the signing of a Protocol with the United States in 1964, as well as ratification of the Treaty. Finally, Professor Johnson comments on the benefits accruing to each nation from the Treaty and its potential impact on future Canadian-UnitedStates relations. TABLE OF CONTENTS Introduction .......... .................... 680 I. The Columbia Basin A. The River ......... .................. 682 B. Climate in the Basin ....... ............... 684 tIt is with pleasure that the author acknowledges the extensive help graciously offered by Dr. W. R. D. Sewell, formerly an economist with the Water Resources Branch of the Canadian Federal Government and now at the University of Chicago, who rendered invaluable counsel in finding and evaluating material and in reviewing drafts; Dr. Gilbert F. White of the Geography Department of the University of Chicago, and Professor Charles B. Bourne of the Law Faculty of the University of British Columbia, both of whom carefully read the text and lent their wide knowledge and experience to helpful critiques; Dr. Marion Marts, Vice Provost of the Univer- sity of Washington, and the late Mr. Douglas Turner, Canadian Consul in Seattle, who offered many helpful suggestions. Lastly, the author was relieved of much of the painstaking detail work by the competent assistance of Mr. Russell A. Austin, Jr. and Mr. Peter Judd, then third year students at the Law School of the University of Washington. * Professor of Law, University of Washington. Member, Washington and Oregon State Bar Associations. B.S., University of Oregon, 1947; LL.B., University of Oregon, 1949; Diploma, Hague Academy of International Law, Center for Studies and Research, 1961. Ford Foundation Grantee, Europe, 10 months, 1961-1962, research on International River law. [ 6761 19661 CONTROVERSY OVER THE COLUMBIA C. Economy and Population of the Region ............ 685 D. Power ....... .................... 686 E. Irrigation . 688 F. Commercial Fishery ..... .............. 689 G. Navigation . 689 H. Flood Control ...... ................ 690 I. Recreation . 690 II. Early History A. Discovery of the Columbia ..... ............. 691 B. The Boundary Dispute, 1812-1846 ... .......... 692 C. The Post Treaty Period, 1846-1944 .. ........... 694 D. The 1909 Boundary Waters Treaty ... .......... 694 1. Introduction ...... ................ 694 2. Prior Treaties . 695 3. The 1895 Dispute with Mexico--The Harmon Doctrine 696 4. Existing Water Disputes with Canada .. ........ 698 5. Birth of the Joint Commission Idea ... ........ 699 6. The International Waterways Commission, 1905-1909 . 700 7. Negotiations Toward the Treaty ... .......... 702 8. Interpretation of Article II .... ............ 706 9. The Boundary Waters Treaty Provisions ......... 708 III. The 1944 Reference A. The Background ..... ................ 711 B. Possible Advantages from Joint Development ......... 712 C. Signs of the Coming Storm-the Libby Dam Proposal 713 D. Kaiser Aluminum-Arrow Lakes Dam Proposal .... 715 E. Puget Sound Utilities Council-Mica Dam Proposal . 715 F. International River Improvements Act, 1955 ......... 716 IV. The Fraser Diversion Scheme A. Impact of Diversion on the United States . 717 B. Legal Arguments .............. @ @ t 6 718 1. The Canadian View .... ........ 718 2. The American View ........ 719 3. Canadian Rebuttal ... .......... 720 4. Additional Arguments-Both Sides . 721 C. Comment on Legal Arguments ........ 724 V. The Peace River Alternative A. Progress Toward Agreement ......... 727 WASHINGTON LAW REVIEW [VOL., 41 : 676 VI. The Engineering Report, April 1959 A. Introduction ..... ............ 729 B. The Board's Findings ........ 729 1. Plan No. 1, Non-Diversion ......... 731 2. Plan No. 2, Copper Creek Diversion . 733 3. Plan No. 3, Dorr Diversion ......... 733 4. Power Generation Possibilities ........ 733 5. Flood Control Possibilities ......... 735 C. Reaction to the Report ... ......... 735 VII. The Principles of Apportionment A. Introduction ..... ............ 736 B. The Principles .... ............ 737 C. Reaction to the Principles .. ........ 737 VIII. The Treaty A. Negotiations ..... ............ 739 B. Summary of the Treaty ... ......... 740 C. The United States Ratifies the Treaty . 742 D. Criticism from the United States Side . 743 E. Reaction in Canada ... .......... 744 F. The British Columbia-Ottawa Impasse . 744 1. Background .......... 744 2. The Issues .... ............ 746 3. Premier Bennett's Strategy ....... 747 4. Agreement is Reached .. ........ 748 IX. The Protocol A. Its Terms ..... .............. 749 B. Action Required in the United States . 751 1. Northwest to California Power Intertie . 751 2. United States Financing of Power Purchase 751 X. The Treaty Goes To Parliament A. McNaughton Opposes ........ • 9 • 4 752 B. Other Objectors .......... • 6 • Q 756 C. The Treaty is Approved ............ 6 Q O 756 XI. Summary and Conclusions A. The Basin Approach to River Development . 761 B. The Role of the International Joint Commission. 762 C. The Future ..... .............. 763 19661 CONTROVERSY OVER THE COLUMBIA 679 NORTHERN PORTION ol COLUMBIA RIVER BASIN ALBERTA WASHINGTON LAW REVIEW [VoL. 41 : 676 INTRODUCTION The Columbia River dispute is settled. The Columbia River Treaty and Protocol of October 1964, which closed the dispute, stand as major achievements in the joint development of a great international river. The culmination of twenty years of studies, investigations, and negotia- tions, these documents embody important new principles, likely to exert a profound influence on the development of international rivers throughout the world. The Treaty ended one of the bitterest debates ever waged between Canada and the United States. The record of these debates runs to many thousands of pages and covers virtually every conceivable aspect of engineering, economic, legal, hydrological, and geographical data that could be unearthed. Few, if any, international river conflicts ever have been examined so thoroughly, debated so vigorously, or written about so fully. It is partly because of the mass of this data that this study has been undertaken. Its principal objective is to present an orderly analysis of he Columbia River conflict, noting the influence of various legal, political, and economic factors in determining the eventual outcome. It starts with a brief resum6 of the historical and geographical back- ground, pointing out especially the influence of the important 1909 Boundary Waters Treaty. It then traces the dispute from the 1944 reference of the joint development issue to the International Joint Coimission, through the settlement embodied in the 1961 Treaty and 1.964 Protocol. The study also examines the implications of the Colum- bia River case for development of international rivers elsewhere. 'At the time of this writing joint development of the River is moving ead rapidly. The broad outlines of the plan can be easily traced. Canada has agreed to build several large storage reservoirs on the tpper Columbia, in Canada, to capture the flooding spring waters and hold them for gradual release throughout the low-flow months of the year. This levelling will make possible the generation of much more power in the United States than was possible previously, when the River fluctuated so radically. The storage will also reduce the risk of floods downstream in the United States. In return, Canada will become entitled to one-half the additional power generated in the United States as a result of this levelling process. Canada has agreed to sell its downstream-power-entitlement to the United States for the first thirty years, and has already received CONTROVERSY OVER THE COLUMBIA the sale price of 254 million dollars. In addition Canada will receive from the United States cash payments over the life of the Treaty for the flood control benefits bestowed on the latter country. Several important generalizations can be made from this controversy