The International Joint Commission and the Great Lakes Water Quality Agreement
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WORKING PAPER SERIES 023 NORTH AMERICAN LINKAGES The International Joint Commission and the Great Lakes Water Quality Agreement Lessons for Canada-United States Regulatory Co-operation Rick Findlay and Peter Telford Pollution Probe April 2006 Policy Research Initiative Working Paper Series The Working Paper Series presents ongoing analytical work developed in relation to the PRI’s horizontal projects. The papers are presented in the language of preparation only, with a summary in both official languages. They do not necessarily represent the views of the Policy Research Initiative or the Government of Canada. Série de documents de travail du Projet de recherche sur les politiques La série de documents de travail présente les travaux d’analyses en cours réalisés dans le cadre des projets horizontaux du PRP. Les articles sont présentés uniquement dans la langue dans laquelle ils ont été rédigés, avec un résumé dans les deux langues officielles. Ils ne reflètent pas l’opinion définitive du Projet de recherche sur les politiques ni du gouvernement du Canada. Table of Contents 1. Introduction............................................................................................................... 1 2. Institutional History ................................................................................................. 2 Boundary Waters Treaty...................................................................................... 2 International Joint Commission ......................................................................... 2 Great Lakes Water Quality Agreement - Summary........................................... 3 Evolution of the Great Lakes Water Quality Agreement ................................. 4 Review of the Great Lakes Water Quality Agreement ..................................... 6 3. Administration of the Great Lakes Water Quality Agreement............................ 6 Roles and Responsibilities of the Parties (Canada and the United States)... 6 Management Structures of the Parties............................................................... 7 Role of the International Joint Commission ..................................................... 8 IJC Management Mechanisms............................................................................. 8 4. Analysis of the GLWQA.......................................................................................... 10 New Challenges .................................................................................................. 10 New Concepts ..................................................................................................... 12 Improved Co-ordination Mechanisms.............................................................. 13 5. Interjurisdictional Challenges............................................................................... 15 Canadian and US Federal Legislative Processes............................................ 15 Federal-Provincial and Federal-State Relationships...................................... 17 Involvement of Municipal Governments ......................................................... 19 6. Conclusions............................................................................................................. 20 Notes ............................................................................................................................ 22 References................................................................................................................... 23 1. Introduction Canada and the United States share one of the world’s most valuable natural features – the Great Lakes. With 18 percent of the world’s surface freshwater supplies and a combined surface area of over 325,000 km2, the Great Lakes are one of the most important freshwater resources in the world. The Great Lakes basin supports a population of over 35 million, including about a third of the total Canadian population and a tenth of that of the United States. This population is growing rapidly, with more than a 30 percent increase over the last quarter century. More than 85 percent of this population is urban, located in the basin’s many towns and major cities. Twenty-four million people rely directly on the Great Lakes as a source of drinking water. Management of environmental issues is particularly challenging when two or more jurisdictions share responsibility for a given water body. Jurisdiction for the Great Lakes is shared by two federal governments (Canada and the United States), two Canadian provinces (Ontario and Quebec), eight US states (New York, Pennsylvania, Michigan, Ohio, Illinois, Indiana, Wisconsin, and Minnesota), and hundreds of municipal governments. In the Great Lakes, the difficulties are exacerbated by the need to also share responsibility across many different agencies within each country. A profusion of agencies, institutions, treaties, and agreements provide various means and measures for management of environmental issues in the Great Lakes basin. A full and detailed description and history of these organizations and their products or achievements has been assembled by a number of authors (e.g., Dempsey, 2004). This paper does not attempt such comprehensive coverage but, instead, examines selected elements of institutional action that have led to successes and failures in managing the transboundary issues of the Great Lakes region. Many of these issues are unique to the region; others are common to many areas in the world with shared water systems. All provide valuable lessons for future joint Canada-US efforts in the Great Lakes region and, indeed, in other bilateral regulatory and administrative exercises. Interjurisdictional agreements on transboundary environmental issues should be based on the application of: mutual respect shared responsibilities co-operation communication In consideration of these principles, this paper examines the major governance and institutional mechanisms that have been employed to deal with environmental issues in the Great Lakes basin. The focus is on the questions of water quality and water resource management as addressed by the Canada-United 1 States Great Lakes Water Quality Agreement (GLWQA), and on the role of the International Joint Commission (IJC) in providing oversight for this important international instrument. 2. Institutional History Boundary Waters Treaty As described by Caponera (1985), management of water resources across international boundaries is founded on two fundamental positions. Common water resources are to be shared equitably between the jurisdictions entitled to use them. Jurisdictions are responsible for substantial transboundary injury originating in their respective territories. Practical achievement of these positions can be a difficult and convoluted process depending on the co-operation and mutual goodwill of the parties involved. In the 19th century, as population and industry expanded in the Great Lakes region, and along other waterways adjacent to the international border, Canada and the United States began to encounter serious issues with respect to sharing the transboundary waters and the pollution of these waters. In 1909, the two countries signed the Boundary Waters Treaty to provide principles and mechanisms to help resolve disputes and prevent future ones, primarily those concerning water quantity and water quality along the international boundary. Boundary waters were defined as “the waters from main shore to main shore of the lakes and rivers and connecting waterways, or the portions thereof, along which the international boundary between the United States and the Dominion of Canada passes, including all bays, arms, and inlets thereof, but not including tributary waters which in their natural channels would flow into such lakes, rivers, and waterways, or waters flowing from such lakes, rivers, and waterways, or the waters of rivers flowing across the boundary.” Exclusion of tributary waters was a weakness of the Treaty, especially with regard to the Great Lakes basin, and has often led to these waters receiving less attention in subsequent Great Lakes agreements and bilateral programs. Article IV of the Boundary Waters Treaty established the powerful precedent. “It is agreed that the boundary waters shall not be polluted on either side to the injury to health or property to the other side.” The two nations displayed remarkable foresight by including this essentially “environmental” provision many years ahead of the broad environmental movements of the late 20th century and the compliance regimes that were set up in response to these public pressures. International Joint Commission The Boundary Waters Treaty also called for the establishment of the International Joint Commission (IJC). Article VII stipulates that the parties “agree to establish and maintain an International Joint Commission of the United States and Canada 2 composed of six commissioners.” Three commissioners are appointed by the president of the United States and three are appointed by the Government of Canada. The basic role of the IJC is to prevent and resolve disputes between the United States of America and Canada under the auspices of the Boundary Waters Treaty and pursue the common good of both countries as an independent and objective adviser to the two governments. The IJC rules on applications for approval of projects affecting boundary or transboundary waters and may regulate the operation of these projects. It assists the two countries in the protection