ORlElNp MA PO LI C I EE
CANADIAN SECTION I. INTERNATIONALJO~NT cOMMlB8lON
INTERNATIONAL JOINT COMMISSION
HANDBOOK ON
ORIGIN, MANDATE, FUNCTIONS, STRUCTURE, PROCEDURES,
POLICIES, PRACTICES AND RESPONSIBILITIES
SEPTEMBER 2000
© International Joint Commission, Canadian Section TABLE OF CONTENTS
I. INTRODUCTION ...... 1
II. HISTORICAL BACKGROUND AND ORIGIN ...... 1
III. MISSION STATEMENT AND GUIDING PRINCIPLES ...... 3 MISSION STATEMENT ...... 4 GUIDING PRINCIPLES ...... 4
IV. MANDATE AND FUNCTIONS ...... 5 THE BOUNDARY WATERS TREATY OF 1909 ...... 5 OTHER BILATERAL TREATIES, CONVENTIONS AND AGREEMENTS ...... 15 The Lake of the Woods Convention and Protocol of 1925 ...... 15 The Rainy Lake Convention of 1938 ...... 16 The Treaty on the Diversion of the Niagara River of 1950 ...... 16 The Columbia River Treaty of 1961 ...... 17 The Great Lakes Water Quality Agreement of 1978 ...... 18 The Agreement for Water Supply and Flood Control in the Souris River Basin of 1989 ...... 27 The Canada-United States Air Quality Agreement of 1991 ...... 28 ALERTING FUNCTION ...... 29
V. RULES OF PROCEDURE ...... 30
VI. STRUCTURE ...... 35 COMMISSIONERS ...... 36 COMMISSION OFFICES AND STAFF ...... 38 Permanent or Section Offices ...... 38 Secretaries, Advisers and Other Staff ...... 38 Expenses and Budget ...... 39 The Great Lakes Regional Office ...... 40 Functions, Responsibilities and Organization ...... 40 Director and Staff ...... 42 Expenses and Budget ...... 42 Procurement ...... 43 Cost Sharing ...... 44 Relations Between Commission Offices ...... 44 BOARDS, TASK FORCES AND SIMILAR COMMISSION BODIES ...... 45 COMMITTEES OF THE COMMISSION ...... 48
i ii VII. POLICIES, PRACTICES AND PROCEDURES ...... 49 COMMISSION MEETINGS ...... 49 COMMISSION DECISIONS ...... 50 COMMISSION MINUTES ...... 51 APPLICABILITY OF NATIONAL LAWS ...... 52 RELATIONS AND COMMUNICATION WITH GOVERNMENTS ...... 54 RELATIONS WITH OTHER ORGANIZATIONS ...... 57 LANGUAGES ...... 58 CONFLICT OF INTEREST ...... 59 IMMUNITY ...... 60 APPEARANCES BEFORE LEGISLATIVE BODIES ...... 61 FAMILIARIZATION AND INSPECTION TOURS ...... 61 APPLICATIONS ...... 62 Applicable Rules of Procedure ...... 62 Application Boards ...... 65 Orders of Approval ...... 66 Interests ...... 67 Applicability of Article VIII of the Boundary Waters Treaty ...... 68 Costs ...... 68 REFERENCES ...... 68 Applicable Rules of Procedure ...... 69 Reference Boards ...... 70 Impact of Commission Reference Reports ...... 70 Costs ...... 71 Public Consultation ...... 72 Reports and Recommendations ...... 72 HEARINGS AND PUBLIC CONSULTATION ...... 72 COMMISSION RECORDS ...... 74 PUBLIC INFORMATION POLICY AND PROCEDURES ...... 75 PERSONNEL, FINANCIAL & PHYSICAL RESOURCES MANAGEMENT ...... 77
VIII. CONTINUING RESPONSIBILITIES ...... 77 GREAT LAKES WATER QUALITY ...... 77 Great Lakes Boards, Task Forces and Committees ...... 81 Water Quality Board ...... 81 Science Advisory Board ...... 82 Council of Great Lakes Research Managers ...... 84 International Air Quality Advisory Board ...... 84 Great Lakes Regional Office ...... 84 Annex 2 Advisory Committee ...... 84 Task Forces ...... 85
iii Biennial Cycles and Priorities ...... 86 Biennial Forums on Great Lakes Water Quality ...... 87 Commission’s Biennial Reports to Governments ...... 88 Response of Governments to Commission’s Biennial Reports ...... 89 Reviews of the Agreement ...... 89 Special Reports ...... 90 Governments’ State of the Lakes Ecosystem Conferences (SOLEC) ...... 90 Charters ...... 90 Great Lakes Charter ...... 91 Ecosystem Charter for the Great Lakes-St. Lawrence Basin ...... 91 Involvement of Quebec ...... 92 AIR QUALITY ...... 93 International Air Quality Advisory Board ...... 94 GREAT LAKES WATER LEVELS AND FLOWS ...... 95 International Lake Superior Board of Control ...... 98 International Niagara Board of Control ...... 99 International St. Lawrence River Board of Control ...... 100 ST. CROIX RIVER ...... 101 International St. Croix River Board ...... 101 SAINT JOHN RIVER ...... 101 RICHELIEU RIVER-LAKE CHAMPLAIN ...... 101 RAINY LAKE/RAINY RIVER/LAKE OF THE WOODS ...... 101 International Rainy Lake Board of Control ...... 102 International Rainy River Water Pollution Board ...... 102 Lake of the Woods Control Board ...... 102 SHOAL LAKE ...... 102 SOURIS/RED RIVERS ...... 102 International Souris River Board of Control ...... 102 International Red River Board ...... 104 International Red River Basin Task Force ...... 104 ST. MARY AND MILK RIVERS ...... 104 OKANAGAN BASIN ...... 105 International Osoyoos Lake Board of Control ...... 105 COLUMBIA/KOOTENAY RIVERS ...... 106 International Columbia River Board of Control ...... 106 International Kootenay Lake Board of Control ...... 107 HEALTH PROFESSIONALS TASK FORCE ...... 107 THE IJC AND THE 21ST CENTURY ...... 108
IX. BIBLIOGRAPHY ...... 109
iv I. INTRODUCTION
This handbook is intended to serve as a reference guide, for both the personnel of the International Joint Commission (Commission or IJC) and other interested persons, to the origin, mandate, functions, structure, procedures, policies, practices and principal responsibilities of the Commission. An effort is made throughout to distinguish between procedures, policies and practices which the Commission cannot change (those mandated by legislation and by treaties, conventions and agreements between Canada and the United States) and those that the Commission can alter (its own Rules of Procedure, decisions and evolving practice).
Most of the documents cited or summarized in the handbook are included in full text in a companion volume of appendices.
So that each section of the handbook may stand largely on its own, some information provided in one section may also be provided in another. Cross-references are made between sections.
Parts of the handbook will require periodic revision to remain abreast of change. This will apply in particular to section VIII on the Commission’s “Continuing Responsibilities”.
II. HISTORICAL BACKGROUND AND ORIGIN
Water and water rights have been important issues in the relationship between Canada and the United States since the American War of Independence. The Definitive Treaty of Peace, 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 with provisions relating to the use of water flowing along or across the boundary, particularly for navigation. These included the 1794 Jay Treaty, the 1817 Rush-Bagot Agreement, the 1842 Webster-Ashburton Treaty, the 1846 Northwest Boundary Treaty, the 1854 Reciprocity Agreement, and the 1871 Treaty of Washington.
During the nineteenth century, several other arrangements relating to the use and sharing of waters were concluded in Europe and elsewhere in North America. The multinational Rhine and Danube Commissions were established in Europe in 1815 and 1856 respectively to undertake administrative responsibilities for navigation in those two waterways. As a result of treaties concluded in 1889 and 1895, a Mexico-United States International Boundary Commission was established to examine and report on irrigation and the possibility of constructing storage dams on the Rio Grande.
Against the background of difficulties encountered in apportioning the waters of the St. Mary and Milk Rivers, the Lake of the Woods, the St. Mary’s River at Sault Ste. Marie and the Niagara River, resolutions introduced by the Canadian delegate and adopted unanimously by the United States, Mexican and Canadian delegations at International Irrigation Congresses in Denver, Colorado in 1894 and in Albuquerque, New Mexico in 1895 recommended to the United States “the appointment of an international commission to act in conjunction with the authorities of 2
Mexico and Canada in adjudicating the conflicting rights which have arisen, or may hereafter arise, on streams of an international character.”
In 1896, the Canadian Government requested that the British Ambassador at Washington inform the United States Government that it was prepared to cooperate “by appointment of an international commission or otherwise” in the regulation of international streams for irrigation purposes. The United States did not respond until 1902 when, by the terms of the River and Harbour Act, it made a proposal that went far beyond the cooperation envisaged by the Canadian Government in 1896. By the terms of the Act, the President of the United States was requested
“to invite the government of Great Britain to join in the formation of an international commission to be composed of three members from the United States and three who shall represent the interests of the Dominion of Canada, whose duty it shall be to investigate and report upon the conditions and uses of the waters adjacent to the boundary lines between the United States and Canada, including all of the waters of the lakes and rivers whose natural outlet is by the River Saint Lawrence to the Atlantic Ocean, also upon the maintenance and regulation of suitable levels, and also upon the effect upon the shores of these waters and the structures thereon, and upon the interests of navigation by reason of the diversion of these waters from or change in their natural flow; and, further, to report upon the necessary measures to regulate such diversion, and to make such recommendations for improvements and regulations as shall best subserve the interests of navigation in the said waters ....”.
Acceptance of the United States’ suggestion by the British and Canadian Governments led to the establishment of an International Waterways Commission, which operated officially from 1905 to 1913. At the outset, there was disagreement between the two countries over the investigative scope of the Commission, the United States contending that it was limited to the Great Lakes system and Canada maintaining that its jurisdiction extended to all boundary waters between the two countries. The Canadian authorities sought agreement on wider jurisdiction, but, for practical reasons, instructed the Canadian commissioners to proceed on the limited basis desired by the United States. During its existence the Waterways Commission investigated a number of matters but had limited success in having its recommendations implemented. It did, however, recommend the establishment of principles to govern the use and diversion of boundary waters and the creation of a permanent body with wider powers.
Negotiations toward a new treaty began in Washington in 1907. The chief negotiator on the Canadian side was George C. Gibbons, K.C., a London, Ontario lawyer who was the Canadian Chairman of the International Waterways Commission, who consulted closely with the Canadian Prime Minister, Sir Wilfrid Laurier; Canadian Minister of Public Works Pugsley; Canadian Minister of Justice Aylesworth, and the British Ambassador to the United States, James Bryce. The principal United States negotiator was Chandler P. Anderson, special legal adviser to the Secretary of State, Elihu Root, who took a close interest. After protracted and sometimes difficult discussions and several drafts, negotiations were concluded successfully with the signature in Washington on January 11, 1909 by Secretary of State Root and Ambassador Bryce of the 3
Boundary Waters Treaty which provided, in Article VII, for the establishment of the International Joint Commission.
The United States Senate advised ratification of the treaty on March 3, 1909 with an interpretive “rider”, to be mentioned in the ratification of the treaty, relating to riparian rights on the St. Mary’s River at Sault Ste. Marie and drainage into tributary streams. Great Britain, having accepted the rider, ratified the treaty on March 31, 1910. It was ratified by William Howard Taft, President of the United States, on April 1, 1910. Ratifications were exchanged in Washington on May 5, 1910 by Philander C. Knox, who had succeeded Root as Secretary of State, and by British Ambassador Bryce. The protocol of exchange contained the U.S. Senate rider.
The IJC held its first meeting in Washington on January 10, 1912 and adopted its initial Rules of Procedure on February 2, 1912. The delay of almost two years between ratification of the treaty and the Commission’s first meeting had been due to the time required to adopt necessary legislation, obtain appropriations and appoint the first commissioners. The first three United States commissioners were appointed in early 1911, but the appointment of the Canadian commissioners was delayed. While the Laurier government had in August 1911 named a slate of three commissioners, including Gibbons to be the first chairman of the Canadian section, their commissions of appointment had not been signed by the King when Laurier’s Liberal government lost the 1911 general election. Shortly after the general election, the Borden Conservative government submitted a new slate of nominees whose appointments were duly signed by the King.
As a fully independent country, Canada has succeeded fully to Great Britain’s rights and obligations under the treaty.
It is testimony to the foresight of the negotiators that, with the exception of Article V relating to the Niagara River, the Boundary Waters Treaty has endured without amendment for more than nine decades and continues to serve as a touchstone for the prevention and resolution of disputes between the two countries.
III. MISSION STATEMENT AND GUIDING PRINCIPLES
Adopted June 1998 to express long-standing practice, the Commission’s Mission Statement explains why the Commission exists and the key roles it is meant to fill, and its Guiding Principles set out the Commission’s values or code of ethics. 4
MISSION STATEMENT
The International Joint Commission prevents and resolves disputes between the United States of America and Canada under the 1909 Boundary Waters Treaty and pursues the common good of both countries as an independent and objective adviser to the two governments.
In particular, the Commission rules upon 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 of the transboundary environment, including the implementation of the Great Lakes Water Quality Agreement and the improvement of transboundary air quality; and it alerts the governments to emerging issues along the boundary that may give rise to bilateral disputes.
GUIDING PRINCIPLES
1. The Commission gives full effect to the spirit and purpose of its mandate as expressed in relevant agreements and references.
2. As a binational institution, the Commission maintains strict impartiality in the performance of its duties.
3. Commissioners represent only the Commission and not the government that has appointed them. Advisers and staff members serve only the Commission and not their respective governments. Members of the Commission’s boards or similar bodies serve on such bodies in their personal and professional capacity and not as representatives of the agencies or organizations that employ them.
4. While the Commission comprises two sections and maintains offices in Washington, Ottawa and Windsor, it remains a single integrated body working collegially in a spirit of openness, mutual trust and confidence, and in the common interest of both countries.
5. The Commission seeks to achieve consensus wherever possible, both in its own deliberations and those of its boards and similar bodies.
6. The Commission employs joint fact-finding as a foundation for building consensus and determining appropriate action.
7. The Commission affords all parties interested in any matter before it a convenient opportunity to be heard. It promotes the engagement of state, provincial and municipal governments and other authorities in the resolution of these matters.
8. While directing its advice and assistance to governments, the Commission takes 5
account of the need to foster public awareness of the issue in question and ensure that the public is able to contribute to the consideration and implementation of its assessments by governments.
9. The Commission’s advice must be not only independent and objective but also timely, well-founded, honest, and relevant.
10. In environmental matters, the Commission affirms the concept of sustainable development, the ecosystem approach, and the virtual elimination and zero discharge of persistent toxic substances. While emphasising the importance of a sound scientific basis for its conclusions and recommendations, the Commission also recognizes that it may sometimes be necessary to adopt a precautionary approach and to act even in the absence of a scientific consensus where prudence is essential to protect the public welfare.
11. The Commission’s rules of procedure must be in accordance with justice and equity.
12. The Commission adheres to the highest ethical standards in all its activities.
13. The Commission seeks to ensure the inclusion of appropriate expertise in the membership of its boards, while drawing that expertise from a diversity of sources on a non-discriminatory basis.
Pursuant to the Mission Statement and Guiding Principles, the Commission establishes and periodically revises its objectives and approaches.
IV. MANDATE AND FUNCTIONS
The mandate and functions of the IJC arise from the Boundary Waters Treaty, specifically Articles III, IV and VIII relating to its project approval powers, Article IX relating to references it may receive from the parties to the treaty, and a potential arbitral function set out in Article X. The IJC has also been given responsibilities under other treaties, conventions and agreements between Canada and the United States and is recognized to have an alerting function.
THE BOUNDARY WATERS TREATY OF 1909
The Boundary Waters Treaty (Appendix 1, Part II) is the foundation for the mandate and procedures of the IJC. While not all of its articles refer specifically to the IJC, all of them are essential to an understanding of the scope of the regime the treaty established. 6
As stated in its first preambular paragraph, the broad objectives of the treaty are
“... to prevent disputes regarding the use of boundary waters and to settle all questions which are now pending between the United States and the Dominion of Canada involving the rights, obligations, or interests of either in relation to the other or to the inhabitants of the other, along their common frontier, and to make provision for the adjustment and settlement of all such questions as may hereafter arise ....”.
It seems clear from the preamble that the drafters of the treaty envisaged that the Commission could be called upon to deal with other issues in the bilateral relationship in addition to boundary and transboundary waters questions. This appears to have been the expectation of United States commissioner (later chairman) James A. Tawney from Minnesota, who, in extolling the advantages of the treaty and the establishment of the Commission at its first meeting in January 1912, remarked that: “This Commission constitutes the medium for ... direct communication, and to it, by the express terms of the Treaty, may be referred for consideration and settlement all questions of difference that may arise between the peoples living along our common frontier”. On only three occasions has the Commission been given issues in the bilateral relationship in addition to transboundary air quality and boundary and transboundary water matters: the 1948 and 1956 Passamaquoddy Tidal Power References and the 1971 Point Roberts Reference.
A Preliminary Article defines the term “boundary waters” for the purposes of the treaty as “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.”
As a matter of practice, this definition has been interpreted to apply to waters in which the flow roughly parallels the boundary. Over the years, questions have arisen about this definition, including whether it encompasses groundwater, Lake Michigan, Georgian Bay and Shoal Lake.
Article I provides that the inhabitants and vessels of both countries may navigate all navigable boundary waters for the purposes of commerce, subject however to any laws in either country that are not inconsistent with free navigation and that apply equally and without discrimination to the inhabitants and vessels of both countries. It also provides that this right extends to Lake Michigan and to all canals connecting boundary waters. Either country may adopt rules and tolls for the use of its canals, but they must apply equally to the citizens and vessels of both.
Article II deals with uses and diversions of transboundary waters (waters which flow across the boundary). Each country, subject to pre-existing treaties, reserves to itself or to provincial and state governments, exclusive jurisdiction and control over the use and diversion of all waters on its own side of the border which in their natural channels flow across the boundary 7
or into boundary waters. This, however, is subject to a proviso that, unless there is a special agreement between the parties, any interference with or diversion from their natural channels of such transboundary waters on either side of the boundary that causes injury on the other side of the boundary, shall give rise to the same rights and entitle injured parties to the same legal remedies as if the injury took place in the country where the diversion or interference occurs. The article further provides that neither party surrenders its rights to object to any interference or diversion that would produce material injury to navigation interests on its side of the boundary.
The first part of the article reflects, at the insistence of the United States negotiators, the so- called Harmon Doctrine , named after a former United States Attorney General, whose views were the basis of a United States Department of State reply to an 1895 complaint from the Government of Mexico that the water in the Rio Grande had been so greatly diminished as the result of irrigation ditches on the United States section of the river as to cause great damage and hardship in Mexico. In its response, the Department of State had maintained that “the rules of international law imposed upon the United States no duty to deny to its inhabitants the use of the water of that part of the Rio Grande lying wholly within the United States, although such use resulted in reducing the volume of water in the river below the point where it ceased to be entirely within the United States, the supposition of the existence of such a duty being inconsistent with the sovereign jurisdiction of the United States over the national domain”. Article II was the most controversial during the negotiation of the Boundary Waters Treaty. While the United States considered it essential, Canadian Prime Minister Laurier sought its removal or amendment, wishing the treaty to contain controls over diversions such as the already-existing Lake Michigan Diversion at Chicago. He was persuaded by Canadian negotiators to acquiesce on the grounds that, without the article, the negotiations would fail and because of the addition of the article’s right of action and right of objection provisos. When the treaty came before the Canadian Parliament, Article II was roundly criticized by the Official Opposition. There were also some concerns in the United States Senate about the provisos that had been included to obtain Canadian acceptance. The application of Article II and concepts inherent in it have evolved and deserve attention. Some useful discussion of this matter is to be found on pages 25 to 37 of M.H. Wershof’s “Notes on the Jurisprudence of the International Joint Commission”, prepared in 1975 for the Canadian Section of the Commission.
Articles III and IV provide the basis for the IJC’s project approval functions (or what some observers have called, together with Articles VIII and X, its quasi-judicial functions. Article III applies to boundary waters, whereas article IV, except for its pollution provision, applies to waters flowing from boundary waters and to transboundary rivers. In applying these articles, the Commission must be guided by the rules or principles set out in Article VIII.
Article III provides that, unless there is a special agreement between the two countries, they will not allow any new uses, obstructions or diversions, either temporary or permanent, of boundary waters in either country that affect the natural level or flow of boundary waters in the other without the authority of the country where the use, obstruction or diversion takes place and without the approval of the IJC. The article further stipulates that the foregoing provisions of the article are not intended to limit or interfere with the existing rights of the two countries to undertake and carry on governmental works in boundary waters for the deepening of channels, the 8 construction of breakwaters, the improvement of harbours, and other governmental works for the benefit of commerce and navigation, if such works are wholly within their own country and do not materially affect the level or flow of boundary waters in the other country. It also states that the foregoing provisions of the article are not intended to interfere with the ordinary use of boundary waters for domestic and sanitary purposes. In the application of this article, questions may arise about the interpretation in practice of the terms “natural level or flow” and “materially affect”.
Article IV, provides that neither country will allow the construction or maintenance in their respective countries of any remedial or protective works or any dams or other obstructions in (a) rivers that flow from boundary waters or (b) rivers that flow across the boundary if the works, dams or obstructions will raise the natural level in the upstream country, unless there is a special agreement between the two governments or unless construction or maintenance are approved by the IJC.
The article’s second paragraph stipulates that boundary waters and waters flowing across the boundary shall not be polluted on either side to the injury of health or property on the other side, although the treaty does not explicitly assign a role to the Commission with respect to this provision.
It is perhaps fortuitous that the pollution provision in Article IV, paragraph 2 survived the negotiations and the ratification process. As noted in F. J. E. Jordan’s “Annotated Digest of Materials Relating to the Establishment and Development of the International Joint Commission”, the United States negotiator was at one point prepared to drop it. While the Canadian side wished it to be retained, the Canadian negotiator envisaged its application only in serious cases. There was opposition to the provision when the treaty was before the United States Senate. It was, however, retained and little time passed before the Commission was asked to undertake work on water pollution. Six months after its first meeting, the Commission received the Boundary Waters Pollution Reference, which referred specifically to the pollution provision in Article IV paragraph 2. It was the first of many references to the IJC on water quality, most notably the reference under Article VII of the 1978 Great Lakes Water Quality Agreement. Article IV, paragraph 2 foreshadowed a now generally accepted principle in international law for dealing with transboundary pollution.
Articles V and VI make specific and detailed provision for the resolution of the long- standing and contentious issues of sharing the waters of the Niagara River for hydroelectric power and sharing the waters of the St. Mary and Milk Rivers and their tributaries in Montana, Alberta and Saskatchewan for power and irrigation.
The first two paragraphs of Article V provide that the two countries will limit the diversion of Niagara River waters so as not to affect appreciably the level of Lake Erie or the flow of the river and further stipulate that, so long as the Boundary Waters Treaty remains in force, no diversion of the waters of the river above the falls shall be permitted “except for the purposes and to the extent hereinafter provided”. The remaining three paragraphs of the original article were terminated with the conclusion of the 1950 Niagara River Diversion Treaty (described 9 elsewhere in this handbook). This is the only amendment that has been made to date to the original provisions of the Boundary Waters Treaty.
Article VI provides that the St. Mary and Milk Rivers are, for the purposes of irrigation and power, to be treated as one stream, with the waters to be apportioned equally between the two countries according to specific rules stipulated in the article. It also provides for the United States to use the channel of the Milk River in Canada to convey water diverted from the St. Mary River through Canadian territory, but states that the provisions of Article II of the treaty apply to any injury to property in Canada from such conveyance. The article further provides that the measurement and apportionment of the water to be used by each country shall be made jointly by properly constituted officers of the two countries “under the direction of the International Joint Commission”.
The IJC’s activities with respect to the St. Mary and Milk Rivers and the Niagara River are discussed below in the “Continuing Responsibilities” section of this handbook. Although Article VI contains provisions for apportioning the St. Mary and Milk Rivers, the IJC has experienced considerable difficulty in interpreting them.
In Article VII, the parties agreed “to establish and maintain an International Joint Commission”, already referred to in several preceding articles, “of the United States and Canada composed of six commissioners, three on the part of the United States appointed by the President thereof, and three on the part of the United Kingdom appointed by His Majesty on the recommendation of the Governor in Council of the Dominion of Canada.” With subsequent assumption by Canada of full responsibility for conducting its international affairs, the appointment of Canadian commissioners became the exclusive responsibility of the Governor in Council of Canada without reference to the United Kingdom. In reality, the selection of Canadian commissioners rests with the Prime Minister. In the United States, the appointment of some commissioners has had Senate approval.
Article VIII established rules or principles which are to govern the IJC in deciding on cases involving the use, obstruction or diversion of waters pursuant to its approval responsibilities under Articles III and IV. These rules or principles are listed below.
• The parties “shall have, each on its own side of the boundary, equal and similar rights in the use of the waters hereinbefore defined as boundary waters”. This provision was, as described below, one of the reasons for the interpretive rider demanded by the U.S. Senate and included in the protocol of exchange at the time of ratification.
• The “following order of precedence shall be observed among the various uses enumerated hereinafter for these waters, and no use shall be permitted which tends materially to conflict with or restrain any other use which is given preference over it in the order of precedence:
(1) Uses for domestic and sanitary purposes; 10
(2) Uses for navigation, including the service of canals for the purposes of navigation;
(3) Uses for power and for irrigation purposes”.
• The foregoing provisions are not to apply to or disturb any existing use of boundary waters on either side.
• The IJC may suspend the equal rights requirement in cases of temporary diversions along boundary waters at points where “equal division cannot be made advantageously on account of local conditions, and where such diversion does not diminish elsewhere the amount available for use on the other side”.
• The IJC “in its discretion may make its approval in any case conditional upon the construction of remedial or protective works to compensate so far as possible for the particular use or diversion proposed, and in such cases may require that suitable and adequate provision, approved by the Commission, be made for the protection and indemnity against injury of any interests on either side of the boundary”.
• In cases involving the elevation of the natural level of waters on either side of the boundary as a result of the construction of remedial or protective works or dams or other obstructions in boundary waters or in waters flowing therefrom or in waters below the boundary in rivers flowing across the boundary, the IJC “shall require, as a condition of its approval thereof, that suitable and adequate provision, approved by it, be made for the protection and indemnity of all interests on the other side of the line which may be injured thereby”.
The final paragraph of the article provides that the majority of commissioners “shall have power to render a decision” and that when the IJC is equally divided on any matter presented to it for decision, “separate reports shall be made by the Commissioners on each side to their own Government.” In such cases, the parties are to try to agree upon an adjustment of the question or matter of difference and, if agreement is reached, reduce it to writing in the form of a protocol and communicate it to commissioners, “who shall take such further proceedings as may be necessary to carry out such agreement”. The treaty does not define the term “majority of Commissioners” to cover situations when one or more commissioners are absent. This matter is addressed, however, in the Commission’s Rule of Procedure 8, discussed below. As described below in the “Commission Decisions” section of this handbook, the Commission has divided equally along national lines on two occasions, with the two sections reporting separately to their governments.
Article IX, the treaty’s so-called reference article, enables the two countries to ask the IJC to address a much broader range of issues than are covered by the approval mechanism established in Articles III and IV and serves as the basis for the Commission’s investigatory, monitoring and advisory roles. It has been the foundation for many IJC studies, reports and recommendations to the two governments. The article's provisions are set out below.
• “[A]ny other questions or matters of difference arising between them [the parties] involving the rights, obligations or interests of either in relation to the other or to the inhabitants of 11 the other, along the common frontier ... shall be referred from time to time” to the IJC “for examination and report”, whenever either government “shall request that such questions or matters of difference be so referred”.
To date, all of the more than fifty references to the IJC since its inception have been made jointly by both countries and not by one of them alone. In the Commission’s early days, some observers took the view that one of the two governments could, by virtue of Article IX, make unilateral references to the Commission without the concurrence of the other government. In 1912, in the Lake of the Woods Reference, the United States authorities were apparently prepared at one point to make a unilateral reference to the Commission, but the concurrence of the Canadian Government in the reference avoided the precedent of a unilateral reference. As noted in F. E. Jordan’s “Annotated Digest of Materials Relating to the Establishment and Development of the International Joint Commission”, Augustus O. Stanley, a United States commissioner from 1930 to 1954 and United States Section chairman from 1933 to 1954, took the view as late as 1946 that Article IX did permit unilateral references. More recently, however, a number of experts have taken the view that, if one government requests a reference, the other government must go along.
• The IJC “is authorized in each case so referred to examine into and report upon the facts and circumstances of the particular questions and matters referred, together with such conclusions and recommendations as may be appropriate, subject, however, to any restrictions or exceptions which may be imposed with respect thereto by the terms of the reference”.
• IJC reports made in response to references under Article IX “shall not be regarded as decisions of the questions or matters so submitted either on the facts or the law, and shall in no way have the character of an arbitral award ....”. This clearly distinguishes them from IJC decisions under Articles III, IV, and VIII or under Article X .
Article X, which has never been invoked, foresees a possible arbitration role for the IJC. Its provisions are set out below.
• “Any questions or matters of difference between” the two countries “involving the rights, obligations or interests” of the two countries “either in relation each other or to their respective inhabitants, may be referred for decision” to the IJC “by the consent of the two Parties, it being understood that on the part of the United States any such action will be by and with the advice and consent of the Senate, and on the part of [the Canadian Government] with the consent of the Governor in Council”.
• “In each case so referred,” the IJC “is authorized to examine into and report upon the facts and circumstances of the particular questions and matters referred, together with such conclusions and recommendations as may be appropriate, subject, however, to any restrictions or exceptions which may be imposed with respect thereto by the terms of the reference.”
The article goes on to provide, among other things, that if the IJC is equally divided or is unable to render a decision or finding, the Commissioners “shall make a joint report to both Governments, or separate reports to their respective Governments, showing the different 12 conclusions arrived at with regard to the matters or questions so referred, which questions or matters shall thereupon be referred for decision” by the parties “to an umpire chosen in accordance with the procedure prescribed in the fourth, fifth and sixth paragraphs of Article XLV of the Hague Convention for the pacific settlement of international disputes, dated October 18, 1907.”
Article XI states that a “duplicate original” of all IJC decisions and joint reports “shall be transmitted to and filed with the Secretary of State of the United States and the Governor General of the Dominion of Canada” and that all IJC communications are to be addressed to them.
The reference to the “Governor General of the Dominion of Canada” preceded the attainment of Canada’s independent status in international affairs. For many years in Canada, IJC communications and reports, as well as decisions when appropriate, have been addressed to the Secretary of State for External Affairs and, with the change in name of that position, to the Minister of Foreign Affairs. This matter is further addressed elsewhere in this handbook where it is noted, among other things, that communications with the governments are now often with departmental officials instead of with the Minister of Foreign Affairs and the Secretary of State. Moreover, while the Commission does send to the Secretary of State of the United States and the Canadian Minister of Foreign Affairs copies (not originals, which are kept in IJC records) of all orders of approval issued pursuant to Articles III and IV of the treaty and reports issued in relation to a reference, the Commission does not send to them or to other government officials copies of the many other decisions that are taken by the Commission at its meetings and in the course of its day to day operations.
Article XII, which addresses the procedures, operation, independent status and impartiality of the Commission, provides as follows:
• The IJC will meet and organize promptly in Washington after the members are appointed and may fix the times and places for its subsequent meetings “subject at all times to special call or direction by the two Governments”.
• Each commissioner shall, at the Commission’s first joint meeting after appointment and before proceeding with Commission work, “make and subscribe a solemn declaration in writing that he will faithfully and impartially perform the duties imposed upon him under this treaty, and such declaration shall be entered on the records of the proceedings of the Commission”.
• The two sections of the IJC “may each appoint a secretary, and these shall act as joint secretaries of the Commission at its joint sessions”.
• The IJC may employ “engineers and clerical assistants from time to time as it may deem advisable”. While the IJC’s staff remains relatively small, the expansion and varied nature of the Commission’s mandate has required a larger and more multidisciplinary staff than probably envisaged in 1909. The Commission has also relied heavily on the services of boards of experts in the performance of its approval, control, investigative and monitoring functions. 13
• The “salaries and personal expenses of the Commission and of the secretaries shall be paid by their respective Governments, and all reasonable and necessary joint expenses of the Commission, incurred by it, shall be paid in equal moieties” by the parties. In practice, because of currency value differences, different costs in the two countries for similar services, and the two governments’ separate appropriation procedures and different fiscal years, the expenses of the Commission are not always met equally by the two parties.
• The IJC shall have “power to administer oaths to witnesses, and to take evidence on oath whenever deemed necessary in any proceeding, or inquiry, or matter within its jurisdiction under this treaty”. This power has been invoked very rarely. In the great majority of cases, testimony has been heard without the administration of oaths. It would appear that the most recent occasion on which witnesses were sworn was at a public hearing in Oroville, Washington on December 8, 1981 relating to an application of the State of Washington to construct new works for the regulation of the levels of Osoyoos Lake.
• All parties interested in an IJC proceeding, inquiry, or matter within its jurisdiction “shall be given convenient opportunity to heard”. This far-sighted requirement has been scrupulously observed by the Commission.
• The parties will adopt “such legislation as may be appropriate and necessary” to give the IJC “the powers above mentioned on each side of the boundary, and to provide for the issue of subpoenas and for compelling the attendance of witnesses” in proceedings before it. The legislation adopted in the two countries to give the IJC the powers stipulated in the treaty is discussed below in the “Relations with Governments” section of the handbook. While the IJC has subpoena power, it has never found it necessary to use it.
• The IJC “may adopt such rules of procedure as shall be in accordance with justice and equity, and may make such examination in person and through agents or employees as may be deemed advisable”. The IJC’s Rules of Procedure, first adopted on February 2, 1912, revised substantially in 1964 and slightly revised in some respects subsequently, are described elsewhere in this handbook. The requirement that the rules of procedure be in accordance with justice and equity, as those terms are understood in Canada and the United States, serves as a test of their acceptability.
Article XIII defines the term “special agreement” which appears in Articles II, III and IV. Such agreements are “understood and intended to include not only direct agreements” between the parties “but also any mutual arrangement” between the two countries “expressed by current or reciprocal legislation on the part of Congress and the Parliament of the Dominion.”
Article XIV provides for the ratification of the treaty and states that it “shall remain in force for five years, dating from the day of exchange of its ratifications, and thereafter until terminated by twelve months’ written notice given by either” party. 14
The Protocol of Exchange at the time of ratification arose from concerns expressed in the United States Senate Foreign Relations Committee, which reported the treaty out for advice and consent of the Senate on the condition that its concerns be reflected in the exchange of ratifications. One concern was to ensure that the equal division provision of Article VIII would not negatively affect the riparian rights of power interests in Michigan on the St. Mary’s River at Sault Ste. Marie, where more water flows on the United States side. Another arose from the fear that the provisions of Article II would negatively affect the rights of interests in Minnesota to drain swamps into tributaries of the Rainy River and the Lake of the Woods.
To allay these concerns the protocol states that “nothing in this treaty shall be construed as affecting, or changing, any existing territorial, or riparian rights in the water, or rights of the owners of lands under water, on either side of the international boundary at the rapids of St. Mary’s River at Sault Ste. Marie, in the use of the waters flowing over such lands, subject to the requirements of navigation in boundary waters and of navigation canals, and without prejudice to the existing right of the United States and Canada, each to use the waters of the St. Mary’s River, within its own territory; and further, that nothing in this treaty shall be construed to interfere with the drainage of wet, swamp, and overflowed lands into streams flowing into boundary waters, and also that this declaration shall be deemed to have equal force and effect as the treaty itself and to form an integral part thereto.” 15
OTHER BILATERAL TREATIES, CONVENTIONS AND AGREEMENTS
A number of other treaties, conventions and agreements between Canada and the United States, some of which were based on IJC recommendations, assign specific tasks to the IJC. They are described in part below, with particular focus on articles that establish or foresee functions for the Commission. The Commission’s activities and practices in relation to them are described below in the “Continuing Responsibilities” section of this handbook.
The Lake of the Woods Convention and Protocol of 1925 (Appendix 2), which was concluded following recommendations made in a reference report by the IJC in 1917, provides for the regulation of the level of the Lake of the Woods “with the object of securing to the inhabitants of Canada and the United States the most advantageous use of the waters thereof and of the waters flowing into and from the lake on each side of the boundary between the two countries for domestic and sanitary purposes, for navigation purposes, for fishing purposes, and for power, irrigation and reclamation purposes.”
The convention provides for the establishment of a Canadian Lake of the Woods Control Board, composed of engineers, “to regulate and control the outflow of the waters of the Lake of the Woods.” It further provides for the establishment of an International Lake of the Woods Control Board composed of two engineers, one appointed by each country from its respective public service. It stipulates, inter alia, that the level of the lake will ordinarily be maintained between specified lower and upper sea-level datum limits and, in Article 5, provides for the level to rise above the ordinary upper limit with the approval of the International Lake of the Woods Control Board and that of the IJC. In Article 6, it is stipulated that any disagreement between members of the International Lake of the Woods Control Board “as to the exercise of the functions of the Board” with respect to the prescribed level limits are to “be immediately referred by the Board to the International Joint Commission, whose decision shall be final.” Among the convention’s further prescriptions is a provision, in Article 11, that no diversion shall be made from the Lake of the Woods watershed to any other watershed “except by the authority of the United States or the Dominion of Canada within their respective territories and with the approval of the International Joint Commission”. This article represents a derogation from the principle of exclusive jurisdiction set out in the first part of Article II of the Boundary Waters Treaty.
The Protocol to the convention provides, among other things, that any disagreement between the members of the International Lake of the Woods Control Board concerning the plans of works for the enlargement of the outflow capacity of the outlets of the lake provided for in the convention and of works and dams for controlling and regulating the outflow of water “shall immediately be submitted by the Board to the International Joint Commission whose decision shall be final.”
When the convention and protocol were signed, the parties agreed that, in a joint reference, they would address four specified questions to the IJC relating to Rainy Lake and the upper waters of the Lake of the Woods watershed and appoint from their public services “such engineering and other technical assistance as may be necessary to enable the Commission to make 16
the desired examination and to submit their report”. IJC recommendations arising from the reference became the basis for the Rainy Lake Convention of 1938.
The Rainy Lake Convention of 1938 (Appendix 3), based upon recommendations of the IJC, provides for the emergency regulation of the level of Rainy Lake and of other boundary waters in the Rainy Lake watershed. In Article I of the convention, the IJC is “clothed with power to determine when emergency conditions exist in the Rainy Lake watershed, whether by reason of high or low water”, and the IJC is “empowered to adopt such measures of control as to it may seem proper with respect to existing dams at Kettle Falls and International Falls, as well as with respect to any existing or future dams or works in boundary waters of the Rainy Lake watershed, in the event the Commission shall determine that such emergency conditions exist.”
In April 1941, the IJC established the International Rainy Lake Board of Control to help it fulfil its duties under the convention.
In 1949, the IJC issued an order determining when emergency conditions existed and prescribing methods of regulating water levels to avoid such emergency conditions on Rainy and Namakan Lakes. Since then, the IJC has issued several supplementary orders, most recently in 2000.
The Treaty on the Diversion of the Niagara River of 1950 (Appendix 4) terminated the third, fourth and fifth paragraphs of Article V of the Boundary Waters Treaty. Those paragraphs had placed specific limits on the diversion of water from the Niagara River for power purposes on either side of the boundary above Niagara Falls, while specifying that the prohibitions did not apply to the diversion of water for sanitary or domestic purposes, or for the service of canals for the purposes of navigation.
As stated in its preambular paragraphs, the considerations that led to the conclusion of the treaty included the parties’ “primary obligation to preserve and enhance the scenic beauty” of the falls and the river; the previously-existing limits of the diversion of water for power purposes; recognition that the supply of low-cost power in northeastern United States and southeastern Canada was “now insufficient to meet existing and potential requirements”; recognition that the river’s water resources “may be more fully and efficiently used” than was then permitted; and desire “to avoid a continuing waste of a great natural resource” and to make it possible for the two countries to develop “equal shares of the waters” of the river “for power purposes”. In the preamble, the parties also expressed their realization that any redevelopment of the river for power “is not advisable until the total diversion of the water which may be made available for power purposes is authorized permanently and any restrictions on the use thereof are agreed upon”.
In Article II, the parties agreed to “complete ... the remedial works which are necessary to enhance the beauty of the Falls by distributing the waters so as to produce an unbroken crestline” on them. The article stated that the two countries would request the IJC “to make recommendations as to the nature and design of such remedial works and the allocation of the task of construction as 17
between Canada and the United States of America”. It further provided that, upon approval by the two countries of the IJC’s recommendations, the construction “shall be undertaken pursuant thereto under the supervision” of the IJC “and shall be completed within four years” of the approval of the recommendations, with the total cost of the works to be divided equally between the two countries.
In 1953, the governments accepted a Commission recommendation for the construction, above the falls, of the Chippewa-Grass Island Pool control structure to assist in apportioning water between the falls and power generation. The governments also agreed that the control structure should be operated under the supervision of the IJC-appointed International Niagara River Board of Control. This board should not be confused with the International Niagara River Committee, which was established by governments under the 1950 Niagara River Diversion Treaty and normally is composed of the same members as the IJC’s board.
In 1961 and 1963, the Commission issued so-called orders of approval for the extension of the Chippewa-Grass Island Pool control structure and for the removal of a shoal in the Niagara River. The governments decided in 1999 that these orders should be considered to be recommendations of the Commission, equivalent to the Commission’s 1953 recommendation for the original Chippewa-Grass Island Pool control structure.
In 1945, the Commission responded to a further reference to investigate and report on measures to preserve and enhance the beauty of the falls, and for public safety.
Subsequent articles of the treaty, which assign no further responsibilities to the IJC, relate, among other things, to the terms and conditions on which water will be available for power purposes, taking into account the need for water for scenic, sanitary, domestic and navigation purposes; the specification of minimum rates of flow over Niagara Falls at different times of day and periods of each year; the equal division between the two countries of water made available for power purposes; and the designation by each country of representatives (the International Niagara River Committee) who, acting jointly, will ascertain, determine and record the amounts of water available for the purposes of the treaty. Article X of the treaty provides that it shall continue in force for a period of fifty years and thereafter until one year from the day on which either party shall give notice to the other party of its intention to terminate the treaty.
The Columbia River Treaty of 1961 (Appendix 5) provides for the cooperative development between Canada and the United States of the water resources of the Columbia River basin. A 1944 reference from the two governments requested that the IJC carry out investigations and make recommendations for greater use and development of the Columbia River system. The Commission appointed the International Columbia River Engineering Board to undertake the investigations. The studies were difficult because the area was large, much essential information was lacking, and there was a considerable economic imbalance between the two sides of the boundary. Canada had only a few small power developments on tributaries, whereas United States developments were among the largest in the world. The greater part of the water originated in Canada. The United States sought improved regulation of the water for power and flood protection. 18
While the IJC’s work was still underway, it was asked in 1959, pending its final report, to recommend “principles” for the determination and apportionment of downstream benefits, particularly with respect to power generation and flood control. The Engineering Board reported in March 1959, and the IJC recommended “principles” to the governments in December of the same year.
Making use of the extensive and detailed information provided by the IJC and its board and the “principles” it had recommended, the two countries concluded the Columbia River Treaty in early 1961, although a variety of obstacles, including a federal-provincial controversy in Canada over British Columbia’s decision to sell its power entitlement from the project to the United States, delayed its ratification until September 1964. The Commission transmitted its final report to the governments in 1968.
Only Article XVI explicitly provides for an IJC role, stating that differences arising under the treaty which the two countries cannot resolve “may be referred by either to the International Joint Commission for decision.” If the IJC “does not render a decision within three months of the referral or within such other period as may be agreed upon by Canada or the United States of America, either may submit the difference to arbitration by written notice to the other.” The IJC has not been asked to take action under this article.
Article XII of the treaty, which deals with Libby Dam, contains a provision which has a bearing on the IJC’s Kootenay orders. Paragraph 6 of the article states that the operation of the Libby Dam storage by the United States shall be consistent with any order of approval which may be in force from time to time relating to the levels of Kootenay Lake made by the IJC under the Boundary Waters Treaty of 1909.
Article XIX of the treaty provides, among other things, that either Canada or the United States may, with certain specified exceptions, terminate the treaty at any time after the treaty has been in force for sixty years if one of the parties has delivered at least ten years written notice to the other party of its intention to terminate the treaty.
An interesting footnote to the conclusion of the treaty is that two of those who signed it on behalf of Canada were E. D. Fulton, then Canadian Minister of Justice, and A.D.P. Heeney, then Canadian Ambassador to the United States, who were later (1989 to 1992 and 1962 to 1970 respectively) chairmen of the Canadian Section of the IJC.
The Great Lakes Water Quality Agreement of 1978 (Appendix 6), replaced the 1972 Great Lakes Water Quality Agreement. Much more comprehensive than the 1972 agreement, the 1978 agreement was amended by the addition of a Phosphorous Load Reduction Supplement in 1983 and then by a 1987 Protocol. The agreement, which reaffirms the obligation of the parties under the Boundary Waters Treaty not to pollute boundary waters, has been the basis for a great deal of Commission work and many IJC reports and recommendations since the 1970s. During earlier years, as described in the “Continuing Responsibilities” section below, several 19
Commission reports had dealt with water quality in the Great Lakes and had a substantial impact on the thrust and scope of both the 1972 and the 1978 agreements.
Article I defines terminology used in the wording of the agreement.
As expressed in Article II, the purpose of the agreement is “to restore and maintain the chemical, physical, and biological integrity of the waters of the Great Lakes Basin Ecosystem”. The statement of purpose also specifically provides, among other things, that it is the policy of the parties that the “discharge of toxic substances in toxic amounts be prohibited and the discharge of any or all persistent toxic substances be virtually eliminated”. This policy is further reflected in Annex 12 to the agreement.
In Articles III and IV, the agreement adopts certain general objectives for the Great Lakes system (i.e., waters that drain on the St. Lawrence River upstream from the Canada-United States boundary) and a list of specific objectives (contained in Annex 1 to the agreement) for the boundary waters of the system, subject to stated conditions. One of these is recognition that “there are areas in the boundary waters of the Great Lakes system where, due to human activity, one or more of the General or Specific Objectives of the Agreement are not being met” and that “[p]ending virtual elimination of the persistent toxic substances in the Great Lakes system, the Parties, in cooperation with State and Provincial Governments and the Commission [i.e., IJC] shall identify and work toward the elimination”, pursuant to Annex 2, of Areas of Concern, Critical Pollutants, and Point Source Impact Zones. It is stipulated that “the Specific Objectives for the boundary waters of the Great Lakes system or for particular portions thereof shall be kept under review by the Parties and the International Joint Commission, which shall make appropriate recommendations”.
Article V provides that water quality standards and other regulatory requirements of the parties “shall be consistent with” the general and specific objectives; that the parties “shall use their best efforts to ensure” that water quality standards and other regulatory requirements of the state (i.e., New York, Pennsylvania, Ohio, Indiana, Michigan, Illinois, Wisconsin and Minnesota) and provincial (i.e., Ontario) governments shall similarly be consistent with the achievement of these objectives, and that flow augmentation “shall not be considered as a substitute for adequate treatment to meet water quality standards or other regulatory requirements.”
The article also stipulates that the parties will “use their best efforts to ensure that ... principal research funding agencies in both countries orient the research programs of their organizations in response to research priorities identified by the Science Advisory Board and recommended by the Commission”, that mechanisms will be developed for “appropriate cost- effective international cooperation”, and that research priorities are “undertaken in accordance with Annex 17" of the agreement.
Article VI states that the parties, in cooperation with state and provincial governments, “shall continue to develop and implement programs and other measures to fulfill the purpose” of the agreement and to meet its general and specific objectives. A long list of programs and measures is incorporated. 20
Article VII provides a reference to the IJC under the Boundary Waters Treaty and sets out the main responsibilities of the Commission under the agreement. These responsibilities are amplified in other articles and many of the annexes to the agreement. The responsibilities listed in Article VII include those set out below.
• Collation, analysis and dissemination of data and information supplied by the parties and state and provincial governments relating to the quality of the boundary waters of the Great Lakes system and to pollution that enters the boundary waters from tributary waters and other sources.
• Collection, analysis and dissemination of data and information concerning the agreement’s general and specific objectives and the operation and effectiveness of the programs and other measures established pursuant to the agreement.
• Tendering advice and recommendations to the parties and state and provincial governments on problems of, and matters related to, the quality of the boundary waters of the system including specific recommendations concerning the general and specific objectives, legislation, standards and other regulatory requirements, programs and other measures, and intergovernmental agreements relating to the quality of the waters.
• Tendering advice and recommendations to the parties in connection with matters covered under the annexes to the agreement.
• Provision of assistance in the coordination of the joint activities envisaged by the agreement.
• Provision of assistance in and advice on matters related to research in the Great Lakes basin ecosystem, including identification of objectives for research activities, tendering of advice and recommendations to the parties and state and provincial governments concerning research, and dissemination of information concerning research to interested persons and agencies; and
• Investigations of such subjects related to the ecosystem as the parties “may from time to time refer to it”.
The article provides that, in the discharge of its responsibilities under the reference, “the Commission may exercise all of the powers conferred upon it by the Boundary Waters Treaty and by any legislation passed pursuant thereto including the power to conduct public hearings and to compel the testimony of witnesses and the production of documents”.
The article requires that the IJC report to the parties and state and provincial governments “no less frequently than biennially concerning progress toward the achievement” of the general and specific objectives, including, as appropriate, matters related to the annexes to the agreement. This report is to include an “assessment of the effectiveness of the programs and other measures undertaken” pursuant to the agreement together with “advice and recommendations”. The IJC may submit a “summary report” in alternate years, may at any time make “special reports” to the 21 parties, state and provincial governments and the public “concerning any problem of water quality in the Great Lakes system”, and “may in its discretion publish any report, statement or other document prepared by it in the discharge of its functions” under the reference.
Because of the broad scope and the complexity of the agreement, the IJC does not attempt in each of its biennial reports to provide a comprehensive assessment of progress under all aspects of the agreement. Rather, each biennial report focuses on selected aspects of the agreement, and the Commission seeks to cover the full scope of the agreement and its annexes over the course of several biennial reports.
The IJC is empowered to verify independently the data and other information submitted to it by the parties and state and provincial governments “through such tests or other means as appear appropriate to it, consistent with the Boundary Waters Treaty and with applicable legislation”.
The article also stipulates that the IJC “shall carry out its responsibilities under the Reference utilizing principally the services of the Water Quality Board and the Science Advisory Board” and that the IJC “shall also ensure liaison and coordination between the institutions established under the Agreement and other institutions which may address concerns relevant to the Great Lakes Basin Ecosystem, including both those within its purview, such as those Boards related to the Great Lakes levels and air pollution matters, and other international bodies as appropriate.”
Article VIII provides for the establishment of joint institutions to “assist” the IJC in its work under the agreement and of a Great Lakes Regional Office.
A Great Lakes Water Quality Board is to be “the principal advisor” to the IJC and is to be composed of “an equal number of representatives from Canada and the United States, including representatives from the Parties and each of the State and Provincial Governments”. This does not preclude the Commission from appointing to the Water Quality Board persons who are not representatives of the federal, state and provincial government, and, as a matter of practice, the Commission appoints to the board a member from Quebec, even though the agreement does not extend to that province. In 2000 all members of the board are government officials.
A Great Lakes Science Advisory Board is to “provide advice on research” to the IJC and the Great Lakes Water Quality Board “and shall further provide advice on scientific matters referred to it by the Commission, or by the Water Quality Board in consultation with the Commission”. The Science Advisory Board is to consist of “managers of Great Lakes research programs and recognized experts on Great Lakes water quality problems and related fields”. The members of the two boards are “to be appointed by the Commission after consultation with the appropriate government or governments concerned”. As described in the “Continuing Responsibilities” section of this handbook, while the Science Advisory Board focuses on providing scientific advice to the Commission, in 1984 the Commission established a Council of Great Lakes Research Managers, not provided for in the agreement, to address research issues. 22
Although the agreement stipulates that the members of the Water Quality Board and the Science Advisory Board shall be appointed by the Commission “after consultation with the appropriate government or governments concerned”, such consultation is usually relatively informal and does not necessarily occur with respect to persons appointed to the Science Advisory Board who are not government officials.
A Great Lakes Regional Office is to “provide administrative support and technical assistance to the Boards, and to provide a public information service for the programs, including public hearings, undertaken by the [IJC] and by the Boards”.
The terms of reference, establishment, roles and functions of the boards and the regional office and their relationship to the IJC are described further in the Terms of Reference appended to the agreement and in the “Continuing Responsibilities” section of this handbook, as is a description of the functions of the Council of Great Lakes Research Managers. The same section of the handbook describes the changes that were made in 1991 by the IJC, in consultation with government officials and without amendment of the agreement, to the functions and relative roles of the boards and the Council and, in practice, of the Great Lakes Regional Office.
The IJC is to submit an annual budget of anticipated expenses incurred in carrying out its responsibilities under the agreement to the parties for approval. Each party is to “seek funds to pay one-half of the annual budget so approved, but neither Party shall be under an obligation to pay a larger amount than the other toward this budget.”
In practice, because of the different budgeting and appropriation regimes of the two governments and the differences in their fiscal years, the two sections of the Commission, after consultation between them, submit their individual budgets for their respective half-shares of Great Lakes Water Quality Agreement work to their respective governments at different times of each year. This is done as part of their overall individual annual budget proposals for all Commission work, including anticipated expenses for work not related to Great Lakes water quality and for commissioner and staff salaries and expenses.
Article IX, dealing with the submission and exchange of information, provides as follows:
• The IJC “shall be given at its request any data or other information relating to water quality” in the system “in accordance with procedures established by the Commission”.
In practice, it has sometimes been difficult, and occasionally impossible, for the IJC to secure on a timely basis data and other information from the governments in the form and detail necessary to assess adequately progress being made toward the fulfilment of the agreement’s objectives. This has been due both to uncertainties on the part of the IJC about the nature and form of data and information available from the governments and to technical and other obstacles, including government policies on cost recovery, proprietary confidentiality and incompatibility of data among jurisdictions. Moreover, while there are provisions in the agreement and some of its annexes for reports by the governments to the IJC on various matters, those reports have sometimes been long delayed and, because of their very general character, have frequently been of limited 23 evaluative use to the Commission. The governments’ biennial States of the Lakes Ecosystem Conferences (SOLEC), described below, seek to provide the IJC with information it needs, and the Commission has asked the governments to report at SOLEC on desired outcomes recommended in the Commission’s 2000 “Final Report of the Indicators Implementation Task Force”. The SOLEC process, however, does not furnish all the data and information the IJC requires to perform its responsibilities under the Great Lakes Water Quality Agreement.
• The IJC shall make available to the parties and to state and provincial governments upon request “all data and information furnished to it in accordance with the Article”.
• Each party shall make available to the other at its request any data or other information in its control relating to water quality in the system.
• Notwithstanding any other provision of the agreement, the IJC “shall not release without the consent of the owner any information identified as proprietary information under the law of the place where such information has been acquired”.
Article X provides that, following receipt of each IJC report in accordance with Article VII, the parties “shall consult on recommendations contained in such report and shall consider such action as may be appropriate” including modification of existing objectives and adoption of new ones, modification or improvement of programs and joint measures, and amendment of the agreement and its annexes.
The article further provides, in among other things, that the parties, “in cooperation with State and Provincial governments, shall meet twice a year to coordinate their respective work plans with regard to the implementation” of the agreement and to “evaluate progress made” and that they “shall conduct a comprehensive review of the operation and effectiveness” of the agreement “following every third biennial report of the Commission required under Article VII of this Agreement.”
The parties have established a Binational Executive Committee (BEC) to coordinate their efforts under the agreement which has, among other things and partly in response to IJC recommendations, produced their Binational Toxics Strategy, their Binational Program to Restore and Protect the Lake Superior Basin and their biennial State of the Lakes Ecosystem Conferences. The BEC also coordinates the parties’ individual responses to the Commission’s biennial report recommendations, the parties’ presentations at the Commission’s biennial forums on Great Lakes Water quality and the periodic reviews of the provisions of the agreement. Recently, the committee has broadened its membership to include a number of outside organizations such as the Great Lakes Commission, Great Lakes United, aboriginal peoples and others. Representatives of states and provinces also participate. In 1988, the Commission proposed to the parties that it participate as an observer, but the governments responded in the negative “to help maintain the clear distinction between our respective roles”.The Commission is, however, provided with copies of the agenda and summary records of the committee’s meetings and, at the committee’s invitation, has been represented as an observer by the director of the IJC’s Great Lakes Regional Office in deliberations related to the review of the agreement. 24
Article XI states, among other things, that “[t]he obligations undertaken in the Agreement shall be subject to the appropriation of funds in accordance with the constitutional procedures of the Parties” and that the two governments commit themselves to seek the appropriation of funds required to implement the agreement, including the funds needed to develop and implement the programs and other measures provided for in Article VI “and the funds required by the International Joint Commission to carry out its responsibilities effectively”.
Article XII provides that nothing in the agreement “shall be deemed to diminish the rights and obligations of the Parties as set forth in the Boundary Waters Treaty.”
Article XIII makes provision for the amendment of the agreement, its Terms of Reference and its Annexes, and stipulates that any such amendments “shall be communicated promptly to the International Joint Commission”.
Article XIV provides that the agreement shall enter into force upon signature by the duly authorized representatives of the parties and that it “shall remain in force for a period of five years and thereafter until terminated upon twelve months’ notice given in writing by one of the Parties to the other”.
Article XV provides for the 1978 Great Lakes Water Quality Agreement to supersede the 1972 agreement.
The agreement has seventeen highly detailed and technical Annexes dealing respectively with the agreement’s specific objectives, remedial and lakewide management plans, control of phosphorous, discharges of oil and hazardous polluting substances from vessels, discharges of vessel wastes, review of pollution from shipping sources, dredging, discharges from onshore and offshore facilities, the Canada-United States Joint Marine Contingency Plan (CANUSLAK), hazardous and polluting substances, surveillance and monitoring, specific toxic substances, pollution from non-point sources, contaminated sediment, airborne toxic substances, pollution from contaminated groundwater, and research and development.
Although progress under virtually all of the annexes falls, at one time or another, within the ambit of the IJC’s biennial reports on progress under the agreement, several of them assign specific tasks to the IJC or provide for reports to it from the parties. The requirement for the parties to the agreement to report to the Commission on certain annexes is a hallmark of the 1987 Protocol and has been seen by some as a transfer of responsibility for monitoring and surveillance from the IJC to the parties.
Annex 2 provides for the designation of Areas of Concern (AOCs) by the parties “in cooperation with State and Provincial Governments and the Commission”; and for the IJC, “in its evaluative role” to “review progress in addressing Areas of Concern, and recommend additional Areas of Concern for designation by each Party”. It further provides for the IJC to “review and comment” on Remedial Action Plans (RAPs) for specific AOCs at three stages of their development; to review progress in identifying Critical Pollutants and in addressing them; to 25
“review and comment” on Lakewide Management Plans (LaMPs) at four stages; to receive biennial reports from the parties on Point Source Impact Zones associated with industrial and municipal waste discharges; and to include, in its biennial reports on progress under the agreement, information from the parties’ biennial reports on progress in implementing RAPs and LaMPs.
Despite the terms of the agreement, as of 2000 the parties have moved away from staged reporting on RAPs and LaMPs. As described in the “Continuing Responsibilities” section of this handbook, the Commission has recently adopted a “status assessment” approach rather than a stage-by-stage approach to evaluating progress under RAPs and LaMPs.
Annex 3 on the control of phosphorus, contains, among other things, the Phosphorus Load Reduction Supplement added to the agreement in 1983. Under the supplement, the parties were, eighteen months after its adoption, to table their detailed plans with the IJC and to “provide the Commission with progress reports and annual updates of these plans.”
Annex 6 provides for the IJC to receive “prior to its annual [now biennial] meeting on Great Lakes water quality” a report of the annual consultation between the Canadian and United States Coast Guards on the four annexes (4, 5, 6, and 9) to the agreement that deal with pollution and discharges from vessels and shipping sources and CANUSLAK and to receive certain studies and status reports on shipping pollution.
Annex 7 on dredging provides for the establishment of a Subcommittee on Dredging, under the auspices of the Water Quality Board, to undertake a number of specific responsibilities. In 1991, after consultation between the IJC and the governments, this subcommittee was disbanded and the governments are understood to have assumed responsibility for its work.
Annex 8 on discharges from onshore and offshore facilities requires, among other things, that each party “shall submit a report to the International Joint Commission outlining its programs and measures, existing or proposed, for the implementation of this Annex within six months of the date of entry into force of this Agreement”. The programs and measures to be covered in the report are specified. It is provided that “[u]pon receipt of the reports” the IJC “in consultation with the Parties, shall review the programs and measures outlined for adequacy and compatibility and, if necessary, make recommendations to rectify any such inadequacy or incompatibility it finds.”
Annex 12 sets out general principles to be adopted by the parties to govern regulatory strategies for controlling or preventing the input of persistent toxic subtances to the system. The intent of programs specified in the annex is “to virtually eliminate the input of persistent toxic substances in order to protect human health and to ensure the continued health and productivity of living aquatic resources and human use thereof”. It is specified that the “philosophy adopted for control of inputs of persistent toxic substances shall be zero discharge”; and that the “reduction in the generation of contaminants, particularly persistent toxic substances, either through the reduction of the total volume or quantity of waste or through the reduction of the toxicity of waste, or both, shall, wherever possible, be encouraged.” 26
It is worthwhile to note that the concept of “virtual elimination” and the “philosophy” of “zero discharge”, also declared in Article II, are embedded in the agreement. In the 1990s, successive IJC biennial reports on Great Lakes water quality strongly endorsed these approaches and focused heavily on the threat of persistent toxic substances and on the need for more effective measures to reduce and eliminate the threat. Questions have arisen, however, about whether legislation in both countries on water pollution apply the concept of virtual elimination and the philosophy of zero discharge.
The annex also provides for programs and measures to eliminate discharges of persistent toxic substances, and for monitoring, an early warning system, the establishment of “action levels to protect human health”, intensified research, and biennial reports by the parties on the progress of programs and measures to reduce the generation of contaminants.
Annex 13 provides for biennial reports from the parties to the IJC on progress in developing specific watershed management plans and implementing programs and measures to control non-point sources of pollution.
Annex 14, on contaminated sediment, stipulates that the parties will report biennially to the IJC on their progress in implementing the annex.
Annexes 15 and 16, respectively, commit the parties to report biennially on progress in implementing their provisions on airborne toxic substances and pollution from contaminated groundwater.
Terms of Reference, appended to the agreement as provided for in Article VIII, describe the functions envisaged for the Great Lakes Water Quality Board, the Great Lakes Science Advisory Board and the Great Lakes Regional Office. They are summarized and discussed, as are the full range of IJC activities with respect to the Great Lakes Water Quality Agreement of 1978, in the section of this handbook on the “Continuing Responsibilities” of the Commission.
The Agreement for Water Supply and Flood Control in the Souris River Basin of 1989 (Appendix 7) was concluded with the aim of developing the basin for flood control benefits in the United States and water supply benefits in Canada “in a manner that is consistent with the Boundary Waters Treaty and the Migratory Birds Convention”.
The agreement provided for the design and construction by the Canadian Government of the Rafferty Dam on the Souris River upstream from Estevan, Saskatchewan, and the construction of the Alameda Dam on Moose Mountain Creek in Saskatchewan upstream from its confluence with the Souris River. It also provided for the operation and maintenance by the Canadian government, at no cost to the United States, of the Boundary Reservoir, behind the existing Boundary Dam on Long Creek southwest of Estevan, for the remainder of the reservoir’s useful life and in accordance with an operating plan contained in the agreement. In addition, the Canadian government agreed to operate, also at no cost to the United States, the Boundary Diversion Channel, to be constructed for the conveyance of water from the reservoir behind Boundary Dam 27
to the impoundment behind Rafferty Dam, and any water resources development or flood control projects constructed after the agreement came into force “in a manner which will not adversely affect the stream flow in the Souris River so as to reduce the flood control benefits provided” by the Rafferty and Alameda Dams and the operating plan for the entire project or any subsequently agreed changes thereto.
For its part, the United States agreed to operate and maintain improvements located in its territory for the remainder of their useful life, at no cost to the Canadian government, in accordance with the operating plan or any subsequent agreed upon change to it, and to pay to the Canadian Government, with certain specified billing and reporting arrangements, US$26.7 million for the flood control storage provided at Rafferty Dam and US$14.4 million for the flood control storage provided at Alameda Dam.
Article VI states that “all activities pursued under the terms of this Agreement are consistent with applicable provisions of the Boundary Waters Treaty, particularly Article IV, paragraph two” of that treaty concerning transboundary pollution. Further in Article VI, the parties undertook to establish a Joint Water Quality Monitoring Program in the Souris River basin and a Bilateral Water Quality Monitoring Group, composed of three members from each country and with joint co-chairs, and that, by April 1, 1991, the parties would establish water quality objectives for the Souris River at the Saskatchewan/North Dakota boundary and at the North Dakota/Manitoba boundary. The parties undertook to make reasonable efforts to implement the recommendations of the Monitoring Group and “where reasonably practicable, to improve water quality” in the basin.
Article XII foresees a potential role for the IJC. The parties undertook to seek to resolve any dispute concerning the interpretation or application of the agreement through good faith consultations and agreed that, as part of this consultation process, they “may refer any dispute concerning the interpretation or application of this Agreement to the International Joint Commission for advice and recommendations if mutually agreed”. In making such a referral, the parties would request that the IJC “provide its advice and recommendations within 90 days of the referral.” It was further agreed that, if resolution of a dispute could not be reached by good faith consultations, a dispute would, at the request of either party, be referred “for review and examination and issuance of advice and recommendations” to a “neutral tribunal” composed of two members appointed by each country and a third jointly appointed member to serve as chairman. The parties undertook to “give prompt and sympathetic consideration to the advice and recommendations” of the IJC and the tribunal and to share their expenses equally.
Article XIII provides for entry into force of the agreement upon signature and amendment by mutual agreement, and for the agreement to remain in force for a period of one hundred years or until the parties agree that the useful life of the Rafferty and Alameda dams has ended, whichever is first to occur. It also makes provision for situations in which either party fails to receive appropriations or other revenues in amounts sufficient to meet anticipated obligations under the agreement. 28
The IJC, whose activities with respect to the Souris River basin date from a 1940 reference, has not yet been called upon to help in the resolution of disputes under the 1989 agreement, but in 1992 the governments requested that the Commission’s International Souris River Board of Control begin monitoring compliance with the modified measures adopted in the agreement for the apportionment of the waters of the Souris River at the Saskatchewan-North Dakota boundary, which replaced interim measures established at the IJC’s recommendation in 1959. The agreement left the apportionment of the waters of the river at the North Dakota- Manitoba border unchanged.
The Canada-United States Air Quality Agreement of 1991 (Appendix 8), with the general objective of controlling transboundary air pollution between the two countries, provides a framework for establishing specific objectives for emissions limitations or reductions of air pollutants; programs and measures to implement them; environmental impact assessment; notification and mitigation measures; coordinated or cooperative scientific and technical activities and economic research; related institutional arrangements; the review and assessment of progress; consultation; and means to address issues of concern and to settle disputes.
In Article VI, provision is made for the IJC, if requested, to give advice on the conduct of monitoring activities.
Pursuant to Article IX of the Boundary Waters Treaty, the IJC is given a reference in Article IX of the Air Quality Agreement “to invite comments, including through public hearings as appropriate”, on each progress report prepared by the bilateral Air Quality Committee established by the agreement; to submit to the parties a synthesis of views thereby obtained and a record of such views, if either party so requests; and to release the synthesis to the public after its submission to the parties. In the same article, the parties undertake to “consider other joint references” to the IJC “as may be appropriate for the effective implementation of this Agreement.”
Article XIII provides that, if a dispute is not resolved through negotiation, the parties will consider whether to submit the dispute to the IJC under Article IX or Article X of the Boundary Waters Treaty.
Article XIV provides that the obligations undertaken under the agreement shall be subject to the availability of appropriated funds and that the parties shall seek such funds, the enactment of necessary legislation, and the cooperation of state and provincial governments as necessary, and that the parties shall, as appropriate, consult with state and provincial governments, interested organizations and the public.
Article XV specifies that nothing in the agreement shall be deemed to diminish the rights and obligations of the parties in other international agreements between them, including the Boundary Waters Treaty and the Great Lakes Water Quality Agreement of 1978 as amended.
Article XVI provides for entry into force upon signature of the parties, amendment at any time by agreement of the parties in writing, termination of the agreement by either party upon one 29 year’s written notice to the other party, in which case any annexes will also terminate, and recognition of the annexes as constituting an integral part of the agreement except that, if an annex so provides, either party may terminate such annex in accordance with the terms of that annex.
To date, the tasks assigned to the Commission under the agreement have been limited to soliciting and reporting on public comments, and the Commission has not been invited to provide its own views on progress under the agreement. Moreover, the IJC has not been asked to undertake other possible tasks envisaged for it in the agreement and has expressed to the governments its sense of frustration with the restrictive character of the standing reference it has under Article IX of the agreement.
ALERTING FUNCTION
In a letter to the two governments of February 13, 1976 (Appendix 9), the IJC proposed, among other things, that, beyond the procedures followed pursuant to Articles III, IV and IX of the Boundary Waters Treaty, it “undertake to bring any information available to it to the attention of both Governments for the purposes of encouraging consultations”. The Commission considered that it “has an interest in encouraging the Governments to notify each other and consult with respect to potentially harmful projects so that matters do not come to the Commission when projects are already underway, or when either Governments (sic) or public opinion may have prejudged a situation to the detriment of fair, deliberate and objective solutions.” The Commission cited as an illustration the reports of its International Air Pollution Advisory Board “on air pollution problems that may come to its attention along the common frontier” which “amounts to effective notice of events as they take place and necessarily leads to consultation between the Parties when these are drawn to the attention of Governments by the Commission.”
A letter in response from the Canadian Secretary of State for External Affairs emphasised, among other things, the importance both governments attached to prior notice and consultation in their bilateral relations. While it expressed some hesitation about the establishment of more formal consultation mechanisms than those that existed, it noted “the useful role the International Joint Commission has played in calling to the attention of Governments potential problems along the common boundary which call into question the mutual commitments of governments under the Boundary Waters Treaty”. It went on to state that “the Commission would be remiss in its duties if it were not to draw to the attention of Governments matters of potential interest to Governments which come to the attention of the Commission in the course of its normal activities.” The letter further stated that it “is clearly in the long-term interest of both governments to address potential problems at an early date, and to call upon the Commission for assistance on appropriate occasions.” The letter indicated that a similar reply was being sent to the Commission by the United States Department of State, but there appears to be no reply from the United States Government in the Commission’s records.
In the spirit of this exchange, the IJC has from time to time drawn to the attention of the governments problems or issues that it believes may warrant attention. In this connection it is important to note that, although the IJC establishes boards to oversee the implementation of its orders and references, it has no capacity to enforce its orders or directives within Canada or the 30
United States. The governments alone have the power to enforce IJC orders and decisions. The Commission can only draw any failure to abide by its requirements to the attention of governments so that they may take the necessary action to ensure compliance with treaty obligations and the avoidance and resolution of transboundary problems.
V. RULES OF PROCEDURE
The Commission’s Rules of Procedure (Appendix 1, Part III), adopted by the Commission at its first meeting on February 2, 1912 pursuant to Article XII of the Boundary Waters Treaty, substantially revised in 1964 and subsequently amended in certain respects, establish many of the Commission’s practices under the treaty. The following summarises Rules 1 to 11, with comments in parentheses in some cases. Rules 12 to 30 are dealt with in the “Applications” and “References” sections of this handbook.
In considering the Rules of Procedure, it is important to distinguish between them and other procedures and practices, referred to throughout the handbook, which, while not part of the Rules of Procedure per se, have been established by Commission decisions or evolving Commission practice.
Rule 1 defines terminology used in the Rules.
Rule 2 provides for the commissioners appointed on the part of the United States and the commissioners appointed on the part of Canada each to appoint one of their number as “chairman” of their respective sections of the Commission and to act as chairman at “all meetings” of the IJC held in their countries “and in respect to all matters required to be done” in their respective countries “by the Chairman of the Commission”.
When IJC meetings are held in Windsor, Ontario, which is the location of the IJC’s binational Great Lakes Regional Office, or during events such as the Commission’s biennial forums on Great Lakes Water quality, the chairmanship, in practice, normally alternates between the Canadian and United States chairmen.
Rule 3 provides that the permanent offices of the Commission “shall be” in Washington, D.C., and in Ottawa, Ontario, and that “at the directions of the majority of Commissioners within their respective sections, the secretaries of the United States and Canadian Sections shall have administrative responsibilities concerning said offices, respectively.”
Rule 4 sets out the duties of the secretaries. It stipulates that they “shall act as joint secretaries at all meetings and hearings of the Commission” and that the “secretary of the section of the Commission of the country in which a meeting or hearing is held shall prepare a record thereof and each secretary shall preserve an authentic copy of the same in the permanent offices of the Commission”. It also requires that each secretary shall carry out the following functions. 31
• “[R]eceive and file all applications, references and other papers properly presented to the Commission in any proceeding instituted before it and ... number in numerical order all such applications and references”, and “the number given to an application or reference, shall be the primary file number for all papers relating to such application or reference”.
• “[F]orward to the other for filing in the office of the other copies of all official letters, documents, records or other papers received by him or filed in his office, pertaining to any proceeding before the Commission, to the end that there shall be on file in each office either the original or a copy of all official letters and other papers, relating to the said proceeding”.
• “[A]lso forward to the other for filing in the office of the other copies of any letters, documents or other papers received by him or filed in his office which are deemed by him to be of interest to the Commission”.
Finally, the secretary of each section “is directed to provide all information (including financial information) to all three commissioners of each respective section and conduct her or his duties with the utmost good faith, equally, to all three Commissioners”.
While the provisions of this rule set out some of the most basic responsibilities of the secretaries, they normally have much broader duties within each section, depending on the tasks assigned to them by the commissioners of the section and on their training, experience and academic and professional qualifications and expertise. These additional tasks may, among others, include day-to-day coordination of the operation and management of the section; supervision of support staff; responsibility for ensuring the recording of Commission decisions and for the maintenance of Commission Minutes; signature of official correspondence; oversight of the general administration of the section, including financial, personnel and materiel management; liaison with the secretary and office of the other section, the Great Lakes Regional Office and Commission boards, task forces and similar bodies; policy coordination; the provision of advice and information to commissioners on aspects of the substantive work of the section and of the Commission as a whole and on administrative matters; and liaison, as required, with government officials and others interested or involved in the Commission’s work.
Rule 5 provides that, subject to special call or direction by the governments, Commission meetings will be held when and where in the United States or Canada commissioners may determine, and in any event shall normally be held each year in the United States in April and in Canada in October. If it is decided that a meeting will be open to the public, the IJC will give such advance notice as it considers appropriate.
The subject of Commission meetings, including their nature and frequency and meetings between the Commission and its boards, is addressed in greater detail below in the “Commission Meetings” section of this handbook. The meetings of the Commission, unlike hearings and the Commission’s biennial forum on Great Lakes Water quality, are normally not open to the public. In recent years, pursuant to a decision of the Commission, IJC boards have been required to hold at least one public meeting annually. 32
Rule 6 on the service of documents provides that, when the secretary must give notice to any person, the notice will be delivered or mailed to the person at the address the person has furnished to the Commission. If no address has been furnished, the notice is to be mailed or addressed to the person’s usual home or place of business. Notices to the two governments are to be delivered or mailed to the Minister of Foreign Affairs (formerly Secretary of State for External Affairs) of Canada and the Secretary of State of the United States, as the case may be. Service of a document pursuant to Rule 22 (on attendance of witnesses and production of documents) requires that a copy be delivered to the person named therein, or by leaving a copy at the person’s usual home or business place. The person serving the notice or request must furnish an affidavit to the secretary stating the time and place of service.
Rule 7, which should be read in conjunction with Rule 23, provides that hearings may be conducted, testimony received and arguments heard “by the whole Commission or by one or more Commissioners from each section of the Commission, designated for that purpose by the respective sections or the chairmen thereof.”
Questions have been raised about this rule. On occasions in the past the Commission has been challenged when Commissioners who did not attend a hearing later participated in a decision on the matter that had been addressed at the hearing.
Rule 8 on decisions requires that “the whole Commission shall consider and determine any matter or question which the Treaty [i.e., Boundary Waters Treaty] or any other treaty or international agreement, either in terms or by implication, requires or makes it the duty of the Commission to determine.” It is stipulated that “[f]or the purposes of this rule and Rule 7 [on the conduct of hearings], the whole Commission means all the commissioners appointed pursuant to Article VII of the Treaty whose terms of office have not expired and who are not prevented by serious illness or other circumstances beyond their control from carrying out their functions....”. It is further stipulated that “[i]n no event shall a decision be made without the concurrence of at least four commissioners”.
The last provision of Rule 8, in keeping with Articles VIII, IX and X of the Boundary Waters Treaty, requires that a decision be made by a majority of the commissioners. Unlike the treaty, which does not define the word “majority”, it makes it clear that at least four commissioners must concur in a decision rather than simply a majority of commissioners holding appointments at any given time. In effect, this means that no decision may be made by commissioners of only one section.
Rules 9 and 10 provide for the suspension, repeal or amendment of any of the rules “with the concurrence of at least four commissioners”, that both governments “shall be informed forthwith of any such action”, and that the Commission “may, at any time, adopt any procedure which it deems expedient and necessary to carry out the true intent and meaning of the Treaty.”
Rule 11 on the availability of records specifies those items in the IJC’s official records 33 that “shall be available for public information” at its permanent offices. These include: applications; references; public notices; press releases; statements in response; statements in reply; records of hearings, including exhibits filed; and briefs and formal statements submitted at hearings or at other times. Also to be available to the public are IJC decisions and orders and formal opinions of any commissioners relating thereto after duplicate originals of the decisions or orders “have been transmitted to and filed with the Governments pursuant to Article XI of the Treaty”. In addition, copies of reports submitted to one or both of the governments pursuant to the treaty “shall be available similarly for public information only with the consent of the Government or Governments to whom the reports are addressed.”
The IJC normally makes its reports available to the public, but it is the Commission’s practice not to release to the media or to the public its decisions, orders or reports until at least three full working days after copies have been sent to the governments, thus giving the governments, if they choose, an opportunity to comment to the Commission before public release, to ensure that Ministers and senior officials are briefed and consulted as appropriate, and to prepare for their own responses to media or public enquiries that may be lodged with them once public release has occurred. Commission Minutes indicate that this practice began in 1978 at the suggestion of the governments. Previously, the Commission had apparently been submitting its reports to the governments in manuscript form well before publication and release. Article VII of the 1978 Great Lakes Water Quality Agreement, which gives the Commission a reference and lists the IJC’s main responsibilities under the agreement states, in paragraph 4, that “The Commission may in its discretion publish any report, statement or other document prepared by it in the discharge of its functions under this Reference.”
The rule also provides for certain items in the Commission’s records to be “privileged”. These include reports, letters, memoranda and other communications addressed to the IJC by boards or committees created by or at the request of the Commission. They are to become available for public information “only in accordance with a decision of the Commission to that effect.” The same applies, except as provided in the rule’s preceding paragraphs, to records of deliberations, and to documents, letters, memoranda and communications “of every nature and kind in the official record of the Commission, whether addressed to or by the Commission, commissioners, secretaries, advisers or any of them”.
In accordance with a Commission decision of May 1976, it is the policy of the Commission “that, unless otherwise decided by the Commission in specific cases, all records of deliberations, and documents, letters, memoranda and communications of every nature and kind in the official records of the Commission, shall become available for public information after twenty- five years have elapsed from the date of the record or document in question; the foregoing decision not to preclude the earlier release of any such material for public information in accordance with a decision of the Commission to that effect”.
Finally, the rule states that any items which under the rule are available for public information may be furnished to any person upon payment of any cost involved in its reproduction. 34
This latter provision is normally applied only when the cost of reproduction is likely to be substantial and when the IJC does not already have sufficient copies of an item available to release a copy free of charge. Most IJC reports and its quarterly newsletter, focus, are given wide and free public distribution as a vital part of the Commission’s public information activities. Increasingly, this information is made available on the Commission’s Internet web-site.
Rules 12 to 25 inclusive set out detailed provisions relating to the receipt and handling of Applications for approval pursuant to Articles III, IV and VIII of the Boundary Waters Treaty. Structure of the IJC Family (As of September, 2000)
IJC Commissioners Three U.S. Commissioners Three Canadian Commissioners
U.S. Section Canadian Section Staff Staff
Boards Pollution Control/ Investigative Great Lakes of Control Surveillance Pollution Boards Water Quality Boards Surveillance Institutions Boards
Great Lakes Columbia River Air Quality St. Croix River Health Regional Office Accredited Advisory Red River Professional Staff Officers Board Task Force St. Mary & Milk Rainy River Rivers Water Water Quality Souris River Pollution Board Rainy Lake Science Advisory Lake of the Board Woods Council of Great Lake Superior Lakes Research Niagara River Managers Lake Ontario St. Lawrence River
Rules 26 to 30 treat the process for receiving and undertaking References under Articles IX and X of the Treaty. These rules are not summarized here but are described below in the “Applications” and “References” sections of this handbook.
VI. STRUCTURE
The structure of the IJC family is depicted in the following chart: 35
Note: Other ad hoc boards, task forces, study groups and committees are established from time to time to undertake time-limited tasks.
COMMISSIONERS
In accordance with Article VII of the Boundary Waters Treaty, the Commission is composed of six commissioners, three appointed by the President of the United States and three appointed by the Governor-in-Council of Canada. Pursuant to Article XII of the treaty, commissioners, upon the first joint meeting of the Commission after their appointment, and before proceeding with the work of the Commission, must “make and subscribe a solemn declaration in writing” (sample at Appendix 10) that they will “faithfully and impartially perform the duties” imposed upon them under the treaty, and such declarations are, as required by Article XII, entered on the records of proceedings of the Commission.
Under IJC Rule of Procedure 2, the three commissioners of each section of the Commission appoint (in effect, elect) one of their number to serve as chairman of the section. In practice, the appointing government indicates which of the commissioners it wishes to serve as chairman of a section, but the appointment of the chairman of each section is formally undertaken as prescribed in Rule 2 and is recorded in the Commission’s Minutes. The chairman of each section (with, as described earlier, some variance in practice for such events as meetings held at the IJC’s binational Great Lakes Regional Office in Windsor and IJC biennial forums on Great Lakes Water quality) acts as chairman at all meetings of the Commission held in his or her country “and in respect of all matters required to be done” therein by the chairman. If the chairman of either section cannot act in any matter, the commissioner next senior in order of appointment acts in the chairman’s stead.
Although the chairman of each section presides, as prescribed, at Commission meetings and normally has other major responsibilities of an administrative, coordinating and representational nature, all commissioners have an equal voice (and, if necessary, an equal vote) in deciding any matter before the Commission as a whole. As a matter of practice, all commissioners are entitled, as they may request, to receive any information (including financial information) or document in their section’s possession and, on an equal basis, to consult with and receive information and advice direct from Commission staff.
In accordance with Articles VIII, IX and X of the Boundary Waters Treaty and as clarified in Rule of Procedure 8, Commission decisions require the concurrence of a majority of commissioners. Insofar as possible, however, Commission decisions are made on a consensus basis. The same articles and rule provide that, if the Commission is evenly divided upon any question or matter presented to it for decision, “separate reports shall be made by the Commissioners on each side to their own Government.” This latter provision would normally apply, in practice, to decisions on the nature and content of Commission responses to Applications and References and very rarely to day to day routine decisions on procedural or similar questions relating to the operation of the Commission. On at least two occasions, each section has made separate reports to their respective governments (see section on “Commission Decisions” below). 36
One occasion in which a report approved by a majority of commissioners has been accompanied by a separate opinion was the opinion tendered by Commissioner Bernard Beaupré in relation to certain aspects of the Commission’s August 1977 report on The Transboundary Implications of the Garrison Diversion Unit.
As a practical means of sharing workload, it has become the custom in recent years for pairs of commissioners, one from each section, to serve as “lead commissioners” for particular issues or tasks the Commission may have before it. This is often determined on an informal basis, may be altered from time to time and does not, of itself, confer on a “lead commissioner” any greater authority than have other commissioners with respect to a particular issue, task or decision.
When commissioners speak for the Commission, they are expected to do so only on the basis of agreed Commission positions.
As a matter of practice, commissioners engage in active dialogue with Commission boards in the development of board reports, review with them their findings and conclusions and take them into account in formulating the Commission’s advice to governments. Commissioners pursue interaction with the boards through attendance at board meetings, at the Commission’s semi-annual meetings and through special sessions with them from time to time. One or more commissioners may make a practice of attending various meetings of Commission boards.
The Boundary Waters Treaty is silent on the appropriate qualifications for commissioners, which is a matter for decision by the appointing government. In the Commission’s early decades, it was widely considered, presumably by virtue of Articles III, IV, VIII and X of the Boundary Waters Treaty, that the Commission was primarily a judicial body or a tribunal or, as one early observer called it, a “miniature Hague”. This was reflected in the fact that the majority of commissioners were lawyers, who for some time comprised five of the six commissioners. For certain periods, all commissioners of one section or the other have been lawyers. Nevertheless, Charles A. Magrath, a surveyor-engineer and former Member of the Canadian Parliament, was the longest-serving of all commissioners, and a Canadian soldier-engineer, General A.G.L. McNaughton, served as Canadian section chairman from 1950 to 1962. At one point in the 1950s, all three Canadian commissioners were engineers, perhaps reflecting the Commission’s preoccupation at that time with the St. Lawrence and Columbia Rivers. On the other hand, the second and third longest serving commissioners, Augustus O. Stanley of the United States, who served from 1930 to 1954, and Sir William Hearst of Canada, who served from 1920 to 1940, were both lawyers.
The law remains the most heavily represented profession among commissioners, although engineers and persons from other professions, including the senior public service, diplomacy, agriculture, business, the social sciences and education, have been appointed. Some commissioners have combined two or more of these disciplines. For a period, some United States commissioners held their positions while also serving as federal civil servants. Professions and other pursuits aside, political experience, either in elected office or otherwise, has been the most common thread in the backgrounds of commissioners over the years. Recently, there have been pressures on the governments to appoint more commissioners with 37 environmental sciences backgrounds, and in the 1990s two Canadian commissioners were appointed from environmental disciplines. There have also been representations for the appointment of aboriginal peoples. As of mid-2000, five women (four from the United States and one from Canada, the latter as chair of the Canadian section) have been commissioners. The great majority of commissioners have been from states and provinces along the boundary.
A list of all commissioners who have served since the establishment of the Commission with their dates of service is found in Appendix 11.
The terms of office of commissioners have varied greatly over the years. Some, as noted earlier, have served for more than twenty years and several for more than a decade. More recently, in Canada, terms of office have been for relatively short fixed periods (three years to five years), sometimes extended. In the United States, the terms of commissioners generally correspond with the terms of office of presidential administrations. In both countries, commissioners are frequently replaced shortly after a change of government. It has been suggested from time to time that the terms of commissioners should be staggered to preserve an element of continuity, rather than have all the commissioners of one or both sections depart simultaneously or close together. Although this has not happened recently, delays in appointments to vacant commissioner positions, have occasionally left the Commission without a quorum (at least four commissioners) and therefore unable to take decisions, or the commissioners of one section have outnumbered the commissioners of the other sometimes by as much as three to one.
COMMISSION OFFICES AND STAFF
In accordance with Rule 3 of the IJC’s Rules of Procedure, the Commission has “permanent offices” (often referred to as “section offices”) in Washington, D.C., and in Ottawa, Ontario. In accordance with Article VIII of the 1978 Great Lakes Water Quality Agreement and paragraph 3 of the Terms of Reference appended by the parties to that agreement, the IJC also has a Great Lakes Regional Office “located in Windsor, Ontario”, which was first established pursuant to the Great Lakes Water Quality Agreement of 1972.
Permanent or Section Offices
Secretaries, Advisers and Other Staff. The personnel of each section office includes, in addition to the chairman and the other two commissioners of the section, a secretary of the section, a small group of advisers with expertise in the matters and issues that are dealt with by the Commission, and administrative, secretarial and clerical support staff. The quarters and physical resources of each section office, as well as the remuneration and work-related expenses of the three commissioners, the secretary, advisers and other staff are provided by the government of the country in which the section office is located. The advisers and other staff of each section office are public servants made available to the Commission by the government of the country where they are located, but they do not take directions from or report to their respective governments and serve only the Commission. 38
The secretary and advisers of each section have, as assigned to them by the commissioners of the section, areas and subjects of responsibility which are normally but not necessarily related to their individual fields of professional speciality. The fields of expertise represented among advisers have included the law, engineering, economics, geography, biology, foreign service, research, communication technology, public affairs, and water, air and other environmental sciences. The assignment of such responsibilities may be altered from time to time to even workload, when advisers leave the staff of the Commission or new advisers are engaged, or to give each adviser over time the broadest possible experience in the work of the Commission. The special responsibilities of the two Commission secretaries have been described in the comments provided above in the section on “Rules of Procedure”.
Advisers are responsible, among other things, for providing advice and assistance, impartially and equally as between commissioners, in their fields of expertise and assigned areas of work; keeping commissioners and other advisers informed of relevant activities and issues, both existing and emerging, in their assigned areas; consultation with their colleagues in the other section office and the Great Lakes Regional Office; liaison, as appropriate, with IJC boards, task forces and similar bodies; assisting in the preparation of IJC reports, recommendations and orders of approval; proposing policies and actions for Commission consideration; preparing documentation for and otherwise assisting in substantive and logistical preparations for Commission meetings and for familiarization and inspection tours undertaken by the Commission; making substantive and logistical arrangements for and attending hearings; attending board meetings as assigned; participating in meetings and seminars outside the Commission related to their areas of activity; and keeping fully abreast of developments in their particular fields.
Section advisers normally work in concert with an adviser from the other section. This joint staff work and the provision of joint advice from advisers in both sections contributes to the unitary nature of the Commission by facilitating the sharing of information and the development of consensus among commissioners.
Each section office has clerical and secretarial staff and staff responsible for personnel, financial and physical resources management.
Expenses and Budget. Funding for the payment of commissioner and staff remuneration and benefits and for the physical resources, operations and other expenses of the two section offices is obtained through the annual budget and appropriation processes of the respective governments.
The Great Lakes Regional Office
Functions, Responsibilities and Organization. The IJC’s binational Great Lakes Regional Office in Windsor, Ontario was established in the early 1970s pursuant to the Great Lakes Water Quality Agreement of 1972. The 1978 agreement, which superseded the 1972 agreement, and the Terms of Reference appended by the parties to the agreement (see Appendix 6 39 for full text) describe the functions and organization of the office. The principal specifications of the Terms of Reference, with notations on current practice, are that
• The office shall “ [p]rovide administrative support and technical assistance for the Water Quality Board and the Science Advisory Board and their sub-organizations, to assist the Boards in discharging effectively the responsibilities, duties and functions assigned to them” and to “provide a public information service for the programs, including public hearings, undertaken by the Commission and its Boards”. As noted earlier, the Great Lakes Water quality institutions were increased in 1984 with the establishment by the Commission of a Council of Great Lakes Research Managers to assume some of the research-related functions envisaged in the Great Lakes Water Quality Agreement for the Science Advisory Board. The members of the council are appointed by the Commission, as are the members of the Water Quality and Science Advisory Boards. Initially the council was a subsidiary body of the Science Advisory Board, but since 1991 has reported direct to the Commission. Designated members of the staff of the Regional Office are, from time to time, also required to serve a variety task forces, work groups or committees that may be established by the boards, the council or the Commission to deal with specific Great Lakes water quality matters.
• The office “shall be headed by a Director who shall be appointed by the Commission in consultation with the Parties and with the Co-Chairmen of the Boards”;
• The “position of Director shall alternate between a Canadian citizen and a United States citizen”. The director is appointed in accordance with the public service employment regulations and procedures of the government of the country from which he or she comes, but commissioners of both sections normally participate in his or her selection.
• The term of office for the director would be determined by a complete review, six months after the agreement entered into force, of the staffing of the Office to be conducted by the parties, based upon the recommendations of the Commission after consultation with the co- Chairmen of the boards. It was subsequently decided that the term of the director would normally be four years.
• “Subsequent reviews may be requested by either Party, or recommended by the Commission, in order to ensure that the staffing of the Regional Office is maintained at a level and character commensurate with its assigned functions”. There have been several reviews of the operations and staff of the Regional Office and of the Commission’s Great Lakes Water quality institutions and their relationship with each other and the Commission. The last major review was conducted in 1991 by a “ Roles and Priorities Task Force”, established by the Commission and chaired by the two co-chairmen of the Commission, which, in consultation with the governments, made several changes in roles, functions, operations and relationships described below in the “Continuing Responsibilities” section of the handbook.
• “Consistent with the responsibilities assigned to the Commission, and under the general supervision of the Water Quality Board, the Director shall be responsible for the management of the Regional Office and its staff in carrying out the functions described herein”. 40
In current practice, the director is not, as envisaged in the Terms of Reference, “under the general supervision of the Water Quality Board”, which is normally composed of representatives from governments who serve the Commission in their personal and professional capacities. The directors of the Great Lakes Regional Office are in fact under the supervision of the Commission, as they were under the 1972 Great Lakes Water Quality Agreement. The work to be done by the Regional Office in support of the boards and the Commission is determined by the Commission after consultation with the boards and the Council in a biennial priorities-setting process, described below in the section on the IJC’s continuing Great Lakes water quality activities, and in which the director participates.
• The “Co-Chairmen of the Boards, in consultation with the Director, will determine the activities which they wish the Office to carry out on behalf of, or in support of the Boards, within the current capability of the Office and its staff”. As noted above, the current practice is that the Commission, not the co-chairmen of the boards exclusively, determine the activities to be carried out by the office, although the boards and their co-chairs are fully consulted by the Commission.
• The “Director is responsible to the Co-Chairmen of each Board, for activities carried out on behalf of, or in support of such Board, by the Office or individual staff members”. As earlier noted, final decisions on the activities of the director, the Regional Office and its staff members now rest in practice with the Commission although, within the scope of the priorities established by the Commission in consultation with the boards, the director and the staff of the Regional Office are expected to meet the reasonable requirements of the boards and the council and have some scope for determining how this might best be accomplished.
• The “Commission, in consultation with the Director, will determine the public information activities to be carried out on behalf of the Commission by the Regional Office”.
• The “Director shall be responsible for preparing an annual budget to carry out the functions of the Boards and the Regional Office for submission jointly by the two Boards to the Commission for approval and procurement of resources”. In current practice, the annual budgets of the Regional Office are determined, subject to the availability of funding from the governments, by the Commission in close consultation with the director and the boards and council. Within this framework, the director allocates the budget, tracks expenditures and reports routinely to the Commission on the utilization of funds.
Director and Staff. As provided for in the Terms of Reference, the director of the Regional Office alternates between citizens of the two countries. The term of office of each director is normally four years, unless otherwise determined by the Commission to allow for recruitment and staffing delays.
The director and all other staff members of the office, like the advisers and other staff of the IJC’s permanent offices in Washington and Ottawa, are normally engaged as public servants of the country from which they come. They do not, however, take directions from or represent their countries of origin, serve only the Commission and the joint institutions (Water Quality Board, Science Advisory Board and Council of Great Lakes Research Managers) to which they have been 41 assigned to provide secretariat assistance, and are to be entirely impartial in the performance of their duties. At present, the office has an establishment of twenty-five positions (seventeen Canadian and eight American). In accordance with understandings reached between the two governments and the two sections of the Commission in the 1970s, there is a more or less even balance between Canadian and American professional staff. Support staff are Canadian. The disciplines represented among the professional staff members are similar to those of the IJC’s section staffs. This is so despite the fact that, except for one staff member who serves as secretary to the Commission’s International Air Quality Advisory Board (which, as noted elsewhere in this handbook, has a mandate extending beyond the Great Lakes), the emphasis of the work of the Windsor staff is almost exclusively related to assisting the Commission in the fulfilment of its broad array of functions and responsibilities under the Great Lakes Water Quality Agreement, including work related to the impact of the airborne deposition of pollutants on Great Lakes water quality.
As requested by the two boards and the council and assigned by the director in consultation with the Commission, certain staff members serve as secretaries to the Water Quality Board, the Science Advisory Board and the Council of Great Lakes Research Managers. Secretaries to the two boards and the council and other staff members, as assigned, undertake studies; coordinate arrangements for meetings; record the proceedings of meetings of the boards and the council and of sub-committees, task forces and work groups appointed from time to time; draft reports; keep abreast of developments in their spheres of activity both inside and outside the Commission; arrange and participate in seminars; attend meetings and hearings of the boards, council, Commission and other groups and organizations; contribute to the Commission’s information awareness and public affairs programs; and play a major role in the substantive and logistical organization of the Commission’s biennial forums on Great Lakes water quality.
Expenses and Budget. The furnishings and non-EDP (electronic data processing) equipment of the Regional Office are supplied by (and remain the property of) the Canadian Government without cost-sharing with the United States. Staff salaries and benefits, operational expenses (including rental costs of the office’s quarters), and EDP equipment acquisition expenses of the office are divided equally between the two sections of the Commission on the basis of a budget which is subject to approval, periodic review and adjustment by the Commission. The director of the office is responsible for reporting regularly to commissioners on budgetary commitments and expenditures and on contracting. The budget of the office, which depends on the amount of funding made available to the Commission by the two governments, is subject to the Commission’s approval after consultation with the boards, the council and the Regional Office director.
Procurement. In accordance with understandings reached in the mid-1970s when the Regional Office was first established under the former 1972 Great Lakes Water Quality Agreement, it was agreed that the Canadian government would provide (and retain ownership) of all of the office’s furnishings and equipment, and that all of the other costs of operating the office, including staff salary and benefits costs of both Canadian and American staff and non-capital operating costs would be equally shared between the two governments. 42
This arrangement was slightly changed by a Commission decision of June 8, 1994 (Appendix 12), taken in response to the recommendations of a Procurement Task Force appointed by the Commission. New procurement arrangements were established, including, inter alia, provisions relating to the procurement of EDP hardware, software and other EDP-related equipment, whose acquisition had not been contemplated when procurement and cost-sharing arrangements had first been established in the 1970s. Under the new arrangement, it was agreed that the Regional Office, within the limits of budgetary authority approved by the Commission, and working through section offices to the extent necessary, would be authorized to procure EDP hardware, software and related EDP equipment in either Canada or the United States on the clear understanding that:
(a) as was the case with contracts for professional services, suppliers in both countries would in each instance be considered;
(b) procurement would in each instance be undertaken through the federal government procurement procedures of the country whose suppliers offer the most efficient use of the limited resources available to the Commission having regard for the best combination of economy, quality and ability to deliver within a reasonable time, provided that adequate service is available;
(c) the cost of procurement would in each instance be equally shared between the two governments by the same procedures as those in effect for the equal sharing of the Regional Office’s operational costs, including salaries; and
(d) EDP hardware, software and related EDP equipment procured in accordance with these procedures would, as in the past, be the property of the government that purchased it.
It was further decided that, for each purchase of EDP hardware, software or related EDP equipment, a statement to the effect that (a) and (b) above had been complied with must be retained in the Regional Office files. It was decided that no other changes would be made in Regional Office procurement procedures at that time. The June 1994 decision still stands.
Cost Sharing. Each section of the Commission seeks funds from its government each year to meet its share of the costs of operating the office, although the different timing of the two governments’ fiscal years (six months apart) and their different appropriation procedures prevent the budget proposals from being submitted to and approved by both governments simultaneously.
The arrangement for cost sharing provides that the Canadian government initially meets most of the office’s non-salary operating costs and capital costs ( except for the cost of EDP equipment purchased for the office by the U.S. government) as well as all Canadian staff salary and employee benefit costs, whereas the U.S. government initially meets all U.S. staff salary and employee benefit costs and the cost of EDP equipment purchased in the United States. At the end of each quarter, the U.S. government remits to the Receiver General for Canada one-half of the office’s total costs for the quarter minus capital costs for non-EDP-related furnishings and equipment, amounts that have been paid out by the U.S. government for U.S. staff salaries and 43 employee benefits, any contribution the U.S. section may have made to non-capital operating costs and any expenses that may have been incurred by the U.S. government for the purchase of EDP equipment. The funds remitted by the U.S. government are absorbed by the Canadian government’s Consolidated Revenue Fund and are not restored to the Canadian section budget.
Relations Between Commission Offices
The two section secretaries and the director of the Great Lakes Regional Office consult regularly with a view to ensuring effective communication, teamwork and cooperation between the Ottawa, Washington and Windsor offices. The advisers in the two section offices work closely together on the full range of issues before the Commission. Usually, advisers in the two offices are paired to deal with individual questions.
The authority of the director of the Regional Office in relation to that office is analogous to that of the two section secretaries in relation to the section offices in Ottawa and Washington. As personnel in a binational office, however, the director and staff of the Regional Office take instructions from the Commission. To avoid confusion, commissioners coordinate their individual communications with the Regional Office and issue only such instructions to the office as are based on decisions of the Commission as a whole. The co-chairmen of the Commission have periodic discussions with the director of the Regional Office in person or by conference call.
Advisers and staff of the section offices in Ottawa and Washington do not, as a rule, attend meetings of the Great Lakes Water Quality and Science Advisory Boards or the Council of Great Lakes Research Managers, unless they are secretaries or members of the body in question. Commissioners are kept informed of the activities of the two boards and the Council through reports and minutes and through direct contacts with board secretaries or with the director of the Regional Office. Advisers in the two section offices do, however, provide assistance and advice to commissioners on Great Lakes water quality matters when requested.
BOARDS, TASK FORCES AND SIMILAR COMMISSION BODIES
The Commission, with its own limited resources, would be unable to fulfil its many and varied responsibilities without the assistance of boards, task forces and similar bodies and the expertise and resources the members of such bodies and their agencies make available to it. In recent years, the Commission has had the assistance of up to twenty or more expert boards and several task forces or similar bodies.
The personnel of IJC boards, task forces and similar bodies, including both their members and secretaries, number almost 200, although the actual number of persons involved is somewhat fewer as some persons serve on more than one body. They vary in size. While a few boards of control have only two members (one from Canada and one from the United States), other boards, task forces and similar bodies have much larger membership, particularly the Great Lakes Water Quality and Science Advisory Boards and the Council of Great Lakes Research Managers, which have twenty, eighteen and twenty-four members respectively and a secretary for each. 44
In its early years, the Commission did not itself establish boards or appoint their members, and there were questions about its capacity to do so. Rather, it proposed that boards be established by the governments to oversee compliance with its orders of approval. By the late 1930s, however, the Commission was establishing its own boards, a practice which has not been challenged. As earlier noted, while IJC boards “oversee” compliance with IJC orders, neither they nor the Commission itself have enforcement capacity, and it is up to the governments to ensure compliance.
Historically, IJC boards have fallen into two broad categories: (a) boards of control responsible for advice to the Commission and, as directed by the Commission, for monitoring, supervising and overseeing compliance with the Commission’s orders of approval pursuant to Articles III, IV and VIII of the Boundary Waters Treaty, and (b) boards responsible for undertaking investigations and studies and/or for monitoring and surveillance and making recommendations in support of the Commission’s advisory role under Article IX of the treaty. Most of the IJC’s boards and similar bodies are permanent and have continuing responsibilities. Others are established for limited periods to undertake specific studies or other tasks.
With three exceptions, all of the boards that now report to the Commission were established by or at the behest of the Commission. The three exceptions are the International Lake of the Woods Control Board, established by the Lake of the Woods Convention of 1925, and the Great Lakes Water Quality and Science Advisory Boards, established by the Great Lakes Water Quality Agreement of 1978. The members of all of the IJC’s boards and task forces are appointed by the Commission, including the three boards the IJC did not itself establish. In addition, the Accredited Officers for the St. Mary and Milk Rivers, appointed by the governments pursuant to Article VI, paragraph 3 of the Boundary Waters Treaty to undertake, under IJC direction, the apportionment and measurement of the waters of the two rivers and their tributaries to be used by each country, report regularly to the Commission and act in response to its decisions.
When the Commission selects and appoints board members who are government employees, it normally does so in consultation with, and with the approval of, the appointee’s department or agency, usually at the level of the appointee’s immediate supervisor. In the case of the St. Lawrence order, the Commission asks the provinces of Ontario and Quebec to propose certain of the board members who have the confidence of the provinces. In practice, the Commission does not normally consult governments about the appointment to boards of non- government personnel. Most board members, although not all, are officials of federal, provincial or municipal governments, with their time being made available and their expenses being met by their employing agency or organization free of charge to the Commission.
Financial constraints confronted by governments at the end of the twentieth century have made it more difficult than in the past to obtain the services of government personnel to serve free of charge on IJC boards. Should this problem persist, there could be important implications for the regime the Commission has established to help prevent and resolve transboundary problems.
Several board members or members of the sub-units of boards (committees or work groups), who have been private citizens or have been from non-government organizations, have 45
been reimbursed by the Commission for the travel and living expenses they have incurred in serving the IJC. When such persons serve on one of the IJC’s Great Lakes Water quality institutions or their sub-bodies, the travel and other reasonable expenses they incur in serving the Commission are cost-shared from the budget of the Great Lakes Regional Office. In other cases, travel and living expenses are paid by the section office in the country from which the person in question comes and are not cost-shared between sections.
In October 1983 the Commission decided “to pay honoraria at the rate of $150 per day to Science Advisory Board members who would be substantially financially disadvantaged by their attendance at Board meetings ... depending on the availability of funds”. The October 1983 decision does not, however, specify whether the $150 is to be denoted in Canadian or United States dollars or whether the funds will be paid from the budgets of the Great Lakes Regional Office or the sections. Over the years, honoraria have been paid to several persons, but none are being paid to Science Advisory Board members in 2000.
Some members of certain task forces and study teams (for example, the Task Force established to assist with the 1997 Red River reference and the International Study Team established to assist with the 1999 water uses reference) have been engaged under contract, with the contract fee normally paid by the section of the country from which the contractor comes. In at least one instance, the expense of such contract fees have been split between the two sections.
An important characteristic of Commission boards, task forces and similar bodies is that, in keeping with the Commission’s impartiality, their members serve the Commission in their personal and professional capacities and not as representatives of the agencies or organizations that employ them. Like commissioners and Commission staff, they are, in serving the Commission, to perform faithfully and impartially the duties imposed upon them in the common good of both the United States and Canada. This is made clear to the agencies and organizations that make the services of such individuals available to the IJC and in the letters of appointment the Commission sends to them. Sample appointment letters, which may vary slightly depending on the mandate of the board or similar body, are attached as Appendix 13.
IJC boards and similar bodies usually have an equal number of members from each country. Members are selected and appointed with the aim of having represented on each body the range of expertise required to address an issue fully. All boards have a United States and a Canadian chairperson, and most of them have a United States and a Canadian secretary.
Because it is often essential to the achievement of consensus, joint fact-finding and sound science are cornerstones of the operations of Commission boards and similar bodies, as it is for the Commission itself and its staff. Matters are referred to the Commission when there is disagreement within a board.
While, in practice, the meetings of boards are normally closed to the public, all Commission boards are expected by the Commission to hold a public meeting at least annually. Occasionally some commissioners and Commission staff attend board meetings, particularly their public meetings. 46
All of the Commission’s standing boards provide written reports to the IJC at least annually or, in some cases, semi-annually, except the Great Lakes Water Quality and Science Advisory Boards and the Council of Great Lakes Research Managers which, while they meet with the Commission at semi-annual meetings, issue formal reports biennially. Board reports are provided to the governments by the Commission and may be made available to the public subject to Commission approval, which is usually granted. Many board reports are routinely given public distribution.
With a view to preserving both the reality and the appearance of the identity of boards, task forces and similar bodies as creatures of the Commission, their reports, letters and other documents bear the letterhead of the appropriate board, task force or similar body and not that of the agencies or other organizations that employ their members.
Boards are expected to maintain minutes of their meetings and, pursuant to a Commission decision of January 1979, to submit copies of their minutes on a regular basis to the Commission. Pursuant to a Commission decision of May 1979, boards have been informed that their minutes may become public. The release of board minutes to the public requires Commission approval. When there have been outside requests for the public release of board minutes or internal working documents, the Commission has generally declined, invoking when necessary its immunity and that of board members. The Commission does, however, normally allow the public access to records that are over twenty-five years old.
In the intervals between Commission meetings with the boards, formal communication between the Commission and boards is normally conducted through the secretaries of the Commission and the secretaries of the boards, although, to facilitate the briefing of commissioners, designated Commission staff may confer from time to time with board secretaries and members to keep abreast of issues with which the boards are dealing.
When boards meet with the Commission at IJC semi-annual meetings to present reports and discuss issues with commissioners, the proceedings are recorded verbatim. After any necessary corrections are made to the verbatim transcripts in consultation with board secretaries, the transcripts are placed in the Commission’s records together with the boards’ written reports.
As requested in a reference letter from the two governments in November 1998, the Commission is developing further the concept of creating permanent watershed boards along the boundary as it had proposed in its October 1997 report, The IJC and the 21st Century. As noted below in the “Continuing Responsibilities” section of this handbook, the Commission has in 2000 amalgamated some control boards and pollution boards for certain watersheds.
IJC boards, task forces and similar bodies are expected to observe the provisions relating to them in the Commission’s “Public Information Policy and Procedure”, described in a separate section of this handbook below.
Further information on the procedures for the appointment, direction, and reports of boards is provided in the sections of this handbook on “Applications” and “References”. 47
COMMITTEES OF THE COMMISSION
At any given time, the Commission may have several standing or ad hoc committees, appointed by it, to carry out specific tasks and composed of certain commissioners and staff. There are three standing committees with continuing tasks: the Public Information Committee; the (Great Lakes Water Quality Agreement) Annex 2 Committee, which has been largely inactive in recent years; and the Telecommunications Committee. From time to time the Commission establishes ad hoc committees with time-limited tasks, such as the organization of its biennial forums on Great Lakes water quality. 48
VII. POLICIES, PRACTICES AND PROCEDURES
COMMISSION MEETINGS
Article XII of the Boundary Waters Treaty stipulates, among other things, that “the Commission may fix such times and places for its meetings as may be necessary, subject at all times to special call or direction by the two Governments.” Rule 5 of the Commission’s Rules of Procedure provides that “[s]ubject at all times to special call or direction by the two Governments, meetings of the Commission shall be held at such times and places in the United States and Canada as the Commission or the Chairmen may determine and in any event shall normally be held each year in the United States in April and in Canada in October, beginning ordinarily on the first Tuesday of the said months.”
With the growth in the Commission’s workload over the years, IJC meetings are now more frequent than in its earliest years, and commissioners are active between Commission meetings in attendance at public hearings, participation in site visits and in numerous other ways. The Commission meets formally five to seven times each year in executive session, usually alternating between Washington and Ottawa but sometimes at other sites in the two countries. In recent years, the Commission has sometimes met and made decisions by teleconference between its executive sessions.
The practice, prescribed in Rule 5, of meeting in Washington in April and Ottawa in October has been maintained (although sometimes the autumn meeting in Ottawa has been held in late September or early November), and those meetings, commonly referred to as semi-annual meetings, usually have three parts: a Commission executive meeting; a series of meetings with Commission boards at which the boards present their reports, discuss with the Commission the activities they are undertaking or envisage, make suggestions to the Commission for future work, seek the Commission’s guidance and directions, and draw emerging issues in their areas of responsibility to the attention of the Commission; and a meeting with representatives of the two governments who bring the Commission up to date on relevant policy and program changes, express views on Commission work and are informed of current IJC activities.
On the occasion of the semi-annual meetings, the Commission usually holds an evening reception to thank its board and task force members. The guest lists usually include Commission staff, board members, government officials and others with whom the Commission interacts. Former commissioners and former Commission staff are also often invited. The receptions provide an opportunity for the Commission to recognize the contribution made to it by its boards and their members and enable members of different boards, who may not otherwise often meet, to become better acquainted and to exchange views, information and experiences.
The Commission’s executive and semi-annual meetings are normally attended by all six commissioners, the two Commission secretaries, and most of the advisers of the two section offices, as well as by the director and, as required, some members of the staff of the Great Lakes Regional Office. Most of the Commission’s formal decisions are taken at executive meetings. 49
The agenda for executive and semi-annual meetings are prepared in consultation between the two sections by the secretaries under the direction of the chairmen, who confer as necessary with the other commissioners.
Conference calls are often conducted among commissioners and advisers before executive meetings to deal with the more routine issues and to enable commissioners to focus at executive meetings on those areas that require more detailed face-to-face discussion.
Section advisers and, as appropriate, Great Lakes Regional Office staff members usually prepare briefs on each item inscribed on the agenda of executive meetings. In keeping with the wishes of commissioners, every effort is made to prepare joint briefs which have the concurrence of advisers in both sections, although the Commission has made it clear that, if consensus cannot be reached between the responsible advisers of each section, separate briefs containing different points of view are acceptable. At Commission meetings, advisers and Great Lakes Regional Office staff members are frequently asked by commissioners to provide oral summaries and clarification of issues being discussed and to provide additional comments and advice.
The Commission requires that briefing books, including all background briefs and other relevant papers, be completed and distributed to commissioners no later than two weeks before an executive or semi-annual meeting.
Customarily, on one evening during each executive and semi-annual meeting, all six commissioners, the two Commission secretaries and the director of the Great Lakes Regional Office gather over dinner for informal, private discussion of selected issues.
COMMISSION DECISIONS
In conformity with Articles VIII, IX and X of the Boundary Waters Treaty, a decision of the Commission requires the concurrence of a majority of commissioners. Rule 8 of the Commission’s Rules of Procedure provides that the whole Commission shall consider and determine any matter or question that the Commission must address. The rule states that in no event shall a decision be made without the concurrence of at least four commissioners, thus ensuring that at least one commissioner from each section must concur. Voting by commissioners has been rare as the Commission seeks to achieve consensus wherever possible.
Should commissioners be evenly divided on a matter presented to it (an application or a reference), the commissioners of each section, in accordance with Articles VIII, IX and X of the Boundary Waters Treaty, are to make a report to their respective governments.
The Commission has twice been divided equally on national lines. When, in 1927, the United States sought to have the Commission reopen the formula for the apportionment of the waters of the St. Mary and Milk Rivers and the two sections were divided, separate confidential reports were transmitted to the two governments. In 1955, the two sections of the Commission also divided equally on the question of the apportionment of the waters of the Waterton and Belly Rivers (which flow across the boundary from Montana to Alberta). The Canadian section reported 50 separately to the Canadian government, while the United States section communicated its views informally to the United States Department of State.
All decisions of the Commission are recorded in the Commission’s Minutes as described in the section immediately below. The originals of orders of approval and reports issued by the Commission are signed by concurring commissioners and dated.
COMMISSION MINUTES
Rule of Procedure 4(1) requires that the secretary of the section of the Commission of the country in which a meeting or hearing is held prepare a record of that meeting or hearing and “preserve an authentic copy” in the Commission’s permanent offices. When meetings are held and decisions are taken by telephone conference or by other electronic means across the boundary, the two secretaries decide which of them will be responsible for the preparation of a draft record.
All Commission decisions are recorded in the Commission’s Minutes, whether decisions are taken at an executive meeting or on other occasions. Insofar as is practicable, copies of key documents reflecting a decision or decisions of the Commission are appended to the originals of the Minutes that record them. Such documents include, in particular, the signed and dated orders of approval issued pursuant to applications received under Articles III and IV of the Boundary Waters Treaty and reports and recommendations made in response to references received from the governments under Article IX of the treaty. In accordance with Article XII of the treaty, they also include the originals of the written declarations commissioners must make before assuming their duties. When a document is too bulky to be appended to the Minutes, care is taken to ensure that it is properly filed in the Commission’s records and that a notation indicating its location is appended to the Minutes.
The originals of Commission Minutes and documents appended thereto are maintained in safe-keeping in the Commission’s headquarters offices. Copies of the Minutes, except for those older than twenty-five years, which may be made available to outside persons on request, are, in accordance with Rule of Procedure 11(5), not made available to any person outside the Commission and its staff without a Commission decision in each case to allow such access.
Drafts of Minutes, once prepared, are circulated for comment to commissioners, if deemed necessary, by the secretary responsible for preparing a draft. The two secretaries make every effort to reach consensus on a final draft to be submitted to commissioners for final consideration and approval. When, at draft stage, consensus cannot be reached, alternative versions of the portions of the draft Minutes that are not agreed are square-bracketed.
The final draft Minutes, with or without square-bracketed portions, are submitted to the Commission for consideration at the next most convenient opportunity, usually at the beginning of the Commission’s next executive meeting, so that commissioners may approve them in whichever version they believe accurately and adequately reflects the decision or decisions they took. 51
Once the Commission has approved a Minute or Minutes, the originals are inscribed as having been approved on the applicable date, and an original, with appended documents and notations, is placed in the records of each section of the Commission. The secretaries sign and date the last page of the original versions of the minutes maintained in their section offices, and initial each page of the Minutes.
APPLICABILITY OF NATIONAL LAWS
The International Boundary Waters Act (Appendix 14) confirms and sanctions in Canada the Boundary Waters Treaty and its provisions, including those relating to the IJC. In the words of the Act, the “laws of Canada and of the provinces are hereby amended and altered so as to permit, authorize and sanction the performance of the obligations undertaken by His Majesty in and under the treaty, and so as to sanction, confer and impose the various rights, duties and disabilities intended by the treaty to be conferred or imposed or to exist within Canada.” The Act provides that the “Federal Court has jurisdiction at the suit of any injured party or person who claims under this Act in all cases in which it is sought to enforce or determine as against any person any right or obligation arising or claimed under or by virtue of this Act.”
The Act further provides that “any interference with or diversion from their natural channel of any waters in Canada, which in their natural channels would flow across the boundary between Canada and the United States or into boundary waters, as defined in the treaty, resulting in any injury on the United States side of the boundary, gives the same rights and entitles the injured parties to the same legal remedies as if the injury took place in that part of Canada where the interference or diversion occurs.”
In three provisions relating specifically to the IJC, the Act states as follows:
• “The International Joint Commission, when appointed and constituted pursuant to the treaty, shall have power, when holding joint sessions in Canada, to take evidence on oath and to compel the attendance of witnesses by application to a judge of a superior court of the province in which the session is held, and that judge is hereby authorized and directed to make all orders and issue all processes necessary and appropriate to that end.” 52
• “The members of the Canadian section of the International Joint Commission shall be paid such salaries as are fixed by the Governor in Council.”
• “A Secretary of the Canadian section of the International Joint Commission and such other officers, clerks and employees as are required for the purposes of the Act may be employed under the Public Service Employment Act.”
The IJC’s status as an international organization has been recognized, among other places, in orders issued under the Canadian Foreign Missions and International Organizations Act, which have accorded to the Commission, its commissioners, staff and experts (including members of IJC boards) immunity in Canada from legal process in respect of words spoken or written and all acts performed by them in their official IJC-related capacity. (See section on “Immunity” below.
In 1976, before the issuance of these orders, Associate Chief Justice Thurlow of the Federal Court of Canada had stated in the case of Clifford Burnell v. the International Joint Commission that there was no basis for asserting that the Commission, per se, had the capacity to sue or be sued. He observed that the IJC had authority to employ engineers and clerical assistants but was not authorized to acquire property or to execute work. There may be reason to question some aspects of the Thurlow comments. While it is clear that the physical resources (i.e. furnishings, equipment and supplies) of IJC offices are owned by one or the other of the two governments, it is difficult, for example, to accept that the records and Minutes of the Commission, as the documents of an independent international organization, are not the exclusive property of the Commission.
In accordance with established international practice, the Commission’s commissioners, staff and experts in Canada are expected to abide by Canadian laws and regulations even when those laws and regulations cannot be enforced against them in relation to their IJC duties.
Apart from the question of immunity, and consistent with the fact that the IJC, including the Canadian section, is not a Canadian government institution, Canadian laws governing such matters as access to information, official languages and multiculturalism do not apply to the Commission and the Canadian section. The IJC sometimes finds it necessary to remind Canadian Government officials of this fact, but as a matter of policy, the Canadian section has stated that it will, insofar as possible, try to abide by the spirit of such legislation.
The entire staff of the Canadian section and a large number of the staff of the IJC’s Great Lakes Regional Office are Canadian public servants. The employment relationships between these Canadian public servants and the Canadian Government are, in general and in practice, governed by the same laws and regulations as apply to other Canadian public servants under the Public Service Employment Act and the Public Service Staff Relations Act. The major differences are that they serve the IJC and not their governments, that they report only to the Commission, and that their performance is not appraised by government officials while they are serving the Commission. However, their staffing is undertaken, their position descriptions are drafted, their position 53 classifications are established and their performance appraisals are completed in accordance with the formats and requirements of the Canadian government’s personnel policies and procedures.
The Financial Administration Act and related Canadian government financial and other regulations apply, through the Minister of Foreign Affairs, to the appropriation, expenditure, reporting, accountability and auditing of Canadian government funding for the Commission and to the physical resources the Canadian government provides to the Commission.
Although not included here, it is understood that in the United States similar national laws or provisions apply to the Commission.
RELATIONS AND COMMUNICATION WITH GOVERNMENTS
The IJC does not in its substantive work take direction from either of the two governments except to the extent provided for in the Boundary Waters Treaty, in the other bilateral treaties, conventions and organizations that constitute elements of its mandate or in the “restrictions or exceptions” the governments incorporate in their references to the Commission under Articles IX and X of the Boundary Waters Treaty.
The terms of Canadian commissioners are determined by the Canadian government and are normally stipulated in the order-in-council by which they are appointed. In accordance with Article XII of the Boundary Waters Treaty, the IJC is required to perform its duties impartially, a requirement incorporated as a specific undertaking in the declaration commissioners make in writing on assuming office and which implies independence from government or other control in the performance of their work and in the decisions and recommendations they make.
The IJC has an obligation to assist the two governments in the avoidance and resolution of disputes by deciding on applications for the approval of projects that involve the use, obstruction or diversion of boundary waters and transboundary streams and rivers and by responding to references which usually involve transboundary water or air issues. It is important to note, however, that for both applications and references, the governments decide which issues will come before the Commission even though the Commission may suggest that an application or reference be submitted to it.
Usually, but not always, there is informal consultation between the Commission and the governments before the governments formally transmit applications or references to the Commission.
Rule 12 of the Commission’s Rules of Procedure provides that all applications for IJC approval of works and undertakings pursuant to Articles III and IV of the treaty must be submitted to the Commission initially by the Canadian or United States government. The governments can avoid the requirement for IJC approval in these cases by concluding a special agreement. Nevertheless, once the IJC issues an order of approval pursuant to Articles III or IV of the treaty, it retains jurisdiction to review and amend that order. 54
While approval of the IJC is required for certain works and undertakings in the two countries, the Commission has no legal power to enforce its orders of approval or other requirements of the Boundary Waters Treaty. It is left to each government to ensure compliance with IJC orders.
In 1976, seeking greater freedom of action, the IJC wrote to both governments asserting that, in the absence of a special agreement between the governments, the Commission could decide whether a particular case falls within the terms of Article III of the treaty, therefore requiring IJC approval. Both governments rejected this position.
While Article X of the Boundary Waters Treaty empowers the IJC to arbitrate questions or matters of difference between the parties, this can be done only with the advice and consent of the United States Senate and the consent of the Canadian Governor in Council [in effect the Canadian government] and may be subject to restrictions or exceptions required by the governments. As cited above in the “Mandate and Functions” section of this handbook, some other bilateral treaties, conventions and agreements provide for the IJC to assist in the resolution of disputes.
As also cited in the “Mandate and Functions” section above, the IJC wrote to both governments in 1976 stating its belief that it had responsibility to bring to their attention issues and information with a view to encouraging bilateral consultation with respect to potentially harmful projects or activities. The Canadian government responded positively. While there appears to be no record in Commission files of a reply from the United States government, this alerting or early- warning function, described earlier, has become a well recognized part of the Commission’s responsibilities.
Article XII of the Boundary Waters Treaty allows the IJC to fix the times and places of its meetings, subject to special call or direction by the two governments. The same proviso appears in Rule 5 of the IJC’s Rules of Procedure.
Article XII of the treaty also gives the IJC the power to adopt its own Rules of Procedure, provided that they are “in accordance with justice and equity”. The Commission has usually consulted governments in advance about significant changes to the Rules of Procedure and, in accordance with Rule 9, it informs both governments of the suspension, repeal or amendment of any of the rules.
Under Rule 25, if the IJC considers it desirable to render a decision that would affect navigable waters in a way different from that contemplated in an application, it is to provide the government concerned with a draft of its proposed decision and give “due consideration” to any views the governments may express before the Commission makes its decision final.
According to Article XI of the Boundary Waters Treaty, all communications from the IJC to the governments are to be addressed to the Secretary of State of the United States and to the Governor General of Canada. As the role of the Governor General changed and as Canada assumed full responsibility for the conduct of foreign affairs, it became the practice to address formal communications to the Canadian Government to the Secretary of State for External Affairs 55
(now Minister of Foreign Affairs), a fact reflected in the Commission’s Rule of Procedure 6. While generally official communications with governments continue to be so addressed, in most instances day to day contacts occur with government officials in various departments and agencies well below Cabinet rank.
The governments have, without charge, made personnel available to serve on Commission boards, task forces and similar bodies in their personal and professional capacity and not as government representatives.
As a matter of relatively recent practice, the Commission meets formally at least twice a year with representatives of the two governments, usually at its semi-annual meetings in Washington in April and in Ottawa in the autumn. At these sessions, the government representatives report orally on matters of interest to the IJC, point to issues that concern them, answer commissioners’ questions about government policies and programs, and seek information on current and projected IJC work. From time to time, commissioners and Commission staff may meet more informally with government officials to cover similar ground, provided always that the Commission as a whole is kept fully informed of such meetings. Commissioners and staff from both sections should be involved in such meetings whenever practicable.
Representatives of all levels of government are entitled to make written submissions or provide oral testimony at IJC hearings, as is any other person or organization interested in a matter before the Commission. Specific provision is made by the Commission for government representatives, among other persons and organizations, to make presentations at the Commission’s biennial forums on Great Lakes water quality.
Under Rule of Procedure 11, IJC decisions and orders can be made available for public information only after duplicate originals of the decisions and orders have been transmitted to and filed with the governments pursuant to Article XI of the Boundary Waters Treaty. According to the same rule, copies of reports submitted to one or both governments pursuant to the Boundary Waters Treaty can be made available for public information only with the consent of the government or governments to whom they are addressed, although Article VII, paragraph 3 of the Great Lakes Water Quality Agreement gives the Commission full latitude in the release of reports under that agreement’s reference. Current IJC practice in this respect is, as described in detail in the section above on the “Rules of Procedure”, much more flexible than Rule 11 would suggest. The explicit consent of the governments to the release of IJC reports is normally neither sought nor granted, and there is no recollection among present IJC personnel of governments having attempted to impede the release of a Commission decision or report.
The IJC is dependent upon the two governments for the financial, physical and personnel resources it requires to perform its functions and is normally bound by the legal and regulatory requirements that apply to their acquisition and use. Frequent consultations with the appropriate government officials are necessary in the fulfilment of these requirements.
RELATIONS WITH OTHER ORGANIZATIONS 56
The Commission and its staff have relations of various kinds with a number of other organizations.
On behalf of the IJC, the Director of the Great Lakes Regional Office is an observer at meetings of the Great Lakes Commission, formed by a compact of U.S. Great Lakes states established in 1955 to “promote the orderly, integrated and comprehensive development, use and conservation of the water resources of the Great Lakes Basin”. At present, the Executive Director of the GLC serves as United States co-chair of the IJC’s Great Lakes Science Advisory Board.
The IJC has met from time to time with the Great Lakes Fishery Commission, established by the two countries to coordinate the management of the fishery in the Great Lakes, and keeps abreast of its activities insofar as they may relate to matters of interest to the IJC. The director of the Great Lakes Regional Office is an observer at GLFC meetings. In 1990, the IJC and the GLFC jointly produced a special report to governments on Exotic Species and the Shipping Industry. The Executive Secretary of GLFC is a “binational” member of the IJC’s Council of Great Lakes Research Managers. The GLFC has also contributed to the activities of the Commission’s Health Professionals Task force, and, together with the IJC and the Michigan Department of Environmental Quality-Office of the Great Lakes, co-sponsored a workshop on exotic organisms at the IJC’s biennial forum on Great Lakes Water quality in Milwaukee, Wisconsin in September 1999.
The IJC has discussions with the Commission for Environmental Cooperation, created by Canada, the United States and Mexico in their 1993 North American Agreement on Environmental Cooperation under the North American Free Trade Agreement, with a view to establishing a cooperative relationship between the two organizations that will best serve the interests of Canada and the United States and, in particular, avoiding duplication of effort and ensuring the sharing of information.
The IJC keeps as well informed as it can of activities and developments that may have relevance to its work in other national and international organizations such as United Nations Environmental Program, the United Nations Commission on Sustainable Development, the United Nations Economic Commission for Europe, and the Organization for Economic Cooperation and Development and a variety of water resources associations and scientific bodies and occasionally sends observers to their meetings if matters especially relevant to IJC activities are to be discussed. The IJC was represented as an “other inter-governmental organization” with observer status at the UNCED: EARTH SUMMIT in Rio de Janeiro in June 1992 by a commissioner and a Commission staff member.
The IJC also seeks to maintain working relationships with such bilateral organizations in the Canada-United States boundary regions as the British Columbia/Washington Environmental Cooperation Council, the St. Croix International Waterway Commission, the Gulf of Maine Council, and the Red River Basin Board to share knowledge, avoid duplication and, where appropriate, cooperate in achieving common goals. 57
Also of particular interest to the IJC are the activities of the International Association for Great Lakes Research. The Council of Great Lakes Research Managers has participated in IAGLR activities, and a person from IAGLR serves as a “binational” member of the council.
The Commission attends and participates in the annual meetings of the International Great Lakes St. Lawrence Mayors’ Conference.
Representatives of environmental non-governmental organizations, industrial associations, labour, and representatives of aboriginal peoples have met with the Commission from time to time to express their views and participate actively in the Commission’s biennial forums on Great Lakes water quality.
LANGUAGES
English is the working language of the Commission and the authoritative language of its decisions, Minutes, orders of approval, reports and other documents. Correspondence with the two governments is usually conducted in English in both directions. However, many of the Commission’s reports, other publications and news releases are also produced in French translation and, in some cases, their French texts appear on the Commission’s Internet web site. The Commission’s quarterly information newsletter, focus, is published in a bilingual format in English and French. Many of the reports of Commission boards have been produced in both languages. From time to time, when the Commission has considered that there may be substantial interest among both English and French speaking populations, provision has been made for simultaneous English/French-French/English interpretation at Commission hearings and other public meetings and consultations. The Canadian section of the Commission responds in English or French to incoming letters and other enquiries depending upon which of the two languages has been used in enquiries received. 58
CONFLICT OF INTEREST
Commissioners and the staff of the Commission in all three IJC offices are required to abide by the applicable conflict of interest and ethics requirements or codes of their respective governments.
The Canadian section Chairman, the other two commissioners of the Canadian Section, and Canadian public servants serving the Commission in the Canadian section office and the Commission’s Great Lakes Regional Office are governed by the Criminal Code of Canada and the Canadian Government’s Conflict of Interest and Post-Employment Codes for Public Office Holders or the Public Service, as the case may be.
Each Canadian public servant serving the Commission in the Canadian section office and in the Great Lakes Regional Office is required, in accordance with the Conflict of Interest and Post-Employment Code for the Public Service, to complete an “Employee Certification Document” (Appendix 15) certifying that he or she has read and understood the Code and recognizes that compliance with its terms and requirements is a condition of employment in the Public Service of Canada and whether or not he or she possesses, directly or indirectly, any assets or liabilities or is involved in any outside activities which are subject to a confidential report under the Code. To monitor compliance with the Code, the Canadian section requires annually (Appendix 16) that each Canadian public servant serving the Commission in the Canadian section and the Great Lakes Regional Office indicate whether or not changes are required to his or her Certification Document. Each of them is reminded that it is the personal responsibility of each employee to revise and update his or her Certification Document, without waiting for the annual reviews, as soon as any change occurs in his or her individual circumstances that warrants revision of the Certification Document.
It would appear that the Commission has never adopted, by Commission decision, a specific policy on conflict of interest beyond the requirements of the two governments, but commissioners, Commission staff members and members of Commission boards and similar bodies have been expected by the Commission to declare to it any existing, apparent or potential interest they might have that could call into question either their own integrity, impartiality, or objectivity in the performance of their Commission-related duties or the integrity, impartiality, objectivity or independence of the Commission.
When a commissioner, Commission staff member, or member of an IJC board or similar body declares that any existing, apparent or potential interest might conflict with his or her Commission-related duties, he or she removes himself or herself from participation in Commission activities and decision-taking that might be affected by the declared interest. On occasion, commissioners have declared an interest in a matter before the Commission and have refrained from participating in the Commission’s consideration of that matter and related decisions of the Commission, and the fact of his or her declaration and non-participation has been recorded in the Commission Minutes. 59
IMMUNITY
As noted in the “Applicability of National Laws” section of this handbook, the IJC’s status as an international organization is recognized, among other places, in orders under the Canadian Foreign Missions and International Organizations Act, successor to the former Privileges and Immunities (International Organizations) Act. The orders, P.C. 1976-1579 of June 23, 1976 and P.C. 1987-98 of January 29, 1987 (Appendix 17), accord immunity to the IJC as an organization, to its commissioners, to its staff and to experts performing missions for it (e.g., members of its boards and of its task forces and similar bodies) from every form of legal process in Canada for words spoken or written and all acts performed by them in their official capacity. Specifically, the orders state, in paragraphs 3, 3.1 and 3.2 that
“3. The Organization [i.e., IJC] shall have in Canada, to such extent as may be required for the performance of its functions, immunity from every form of legal process except in so far as in any particular case it has expressly waived its immunity.
“3.1 The Commissioners and members of the staff of the Organization shall have immunity in Canada from every form of legal process in respect of words spoken or written and all acts performed by them in their official capacity, as set out in Article V of the Convention [i.e., Convention on the Privileges and Immunities of the United Nations], except in so far as in any particular case they have expressly waived their immunity.
“3.2 The experts performing missions for the Organization shall, to such extent as may be necessary for the independent exercise of their functions, have immunity in Canada from every form of legal process in respect of words spoken or written and all acts done by them in the course of performing their missions, as set out in Article VI of the Convention, except in so far as in any particular case they have expressly waived their immunity.”
It is understood that similar provisions accord immunity to the Commission, commissioners, and IJC staff, experts and documents in the United States.
When a situation has arisen in Canada in which the Commission has decided to assert its immunity under the orders pursuant to the Foreign Missions and International Organizations Act, the Commission has requested the Department of Foreign Affairs and International Trade to inform the court of the Commission’s or individual’s immunity, and the Canadian Department of Justice has sometimes appeared in court to claim immunity for the Commission. This was the procedure followed successfully in October 1994 when the Regulation Representative for the Canadian Section of the International St. Lawrence River Board of Control received a subpoena to appear as a witness in an action in the Superior Court of Quebec. The letters from the Canadian Section of the Commission to the Department of Foreign Affairs and International Trade and from the Department to the Superior Court in that case are provided in Appendix 18.
Letters appointing IJC board members should inform them, among other things, of their immunity in their performance of IJC-related functions and indicate that they should be immediately in touch with the Commission should they be served with a subpoena to appear in 60 court or be called to testify in relation to any matter concerning their work for the IJC or to produce IJC-related documents.
APPEARANCES BEFORE LEGISLATIVE BODIES
Until 1952, the prevailing attitude in Canada seems to have been that, as an international organization, it would be inappropriate for the Commission or the Canadian section to appear before parliamentary committees, particularly to discuss a matter that the Commission had before it. In 1952, however, and for a number of years thereafter, the Canadian section chairman appeared annually before House of Commons and Senate committees - most frequently before the House External Affairs Committee - to explain in some detail the nature and extent of the Commission’s work and to answer questions. By the 1980s, the practice of regular appearances had ceased, although on a few occasions since then the Canadian section chairman, the Canadian secretary and certain staff members of the section have appeared before the House of Commons Standing Committee on Environment and Sustainable Development, by invitation and not by summons, to discuss specific matters. On at least two of those occasions, the chairman and other commissioners of the United States section were invited by the Canadian section to be present as well, but they declined.
FAMILIARIZATION AND INSPECTION TOURS
From time to time, commissioners, accompanied by appropriate staff, board members and other experts undertake familiarization or inspection tours of waterways or works along the boundary for which the Commission has responsibilities. Such visits are usually conducted with the involvement and substantial on-site assistance of the appropriate IJC boards, task forces or similar Commission-appointed bodies. Although work pressures, climatic conditions and the variety and wide scope of the Commission’s boundary-long responsibilities usually prevent all commissioners from gaining first-hand knowledge during their terms of office of all waterways and works that fall within the Commission’s purview, such tours are an important part of the Commission’s activities. They are typically organized in conjunction with the annual public meetings of boards and when a new reference study is initiated. They make an essential contribution to the Commission’s knowledge of on-site conditions in individual watersheds and foster closer, more informal and more productive working relationships with board and task force members than can be generated purely by the transmittal of directives, the receipt of reports, and exchanges with boards at the Commission’s semi-annual meetings. 61
APPLICATIONS
Since its establishment, the IJC has received and dealt with over sixty applications for approval of projects pursuant to Articles III and IV of the Boundary Waters Treaty, the great majority of them in its earlier decades. A list of the applications that have been received by the Commission is provided, as filed by docket numbers in IJC records, in Appendix 19. Summaries of the work undertaken in response to each application are available in the Vade Mecum, which is maintained by the Canadian section of the Commission.
Examples of a recent application (Peace Bridge Capacity Expansion Project submitted to the Commission in 1998) and the resulting IJC order of approval of April 30, 1999 are provided in Appendix 20).
Applicable Rules of Procedure
The following summarizes the IJC Rules of Procedure that apply to the Commission’s treatment of applications submitted to it under Articles III and IV of the Boundary Waters Treaty for the approval of uses, obstructions or diversions. Their full text is at Appendix 1, Part III.
Under Rule 12, when one of the governments on its own initiative seeks approval for a project under Article III or IV of the treaty, it is to present an application to the Commission. When a person seeks approval of a project pursuant to Articles III or IV, an application for an order is submitted by the applicants through the foreign ministries (U.S. Department of State or Canadian Department of Foreign Affairs and International Trade) within whose jurisdiction the use, obstruction or diversion is proposed. The requirement for IJC approval is in addition to any authorizations that may be required under applicable domestic laws. Transmittal to the Commission of an application from a person is not construed as government authorization of the project.
The requirement that applications be presented or transmitted to the Commission by the government or governments in whose jurisdiction the use, obstruction or diversion is proposed, allows the government authority or authorities to make a preliminary decision about whether the project requires approval under the Boundary Waters Treaty and, if so, whether approval will be sought through the Commission or be provided under a special agreement between the two federal governments. Applications presented to the Commission are, as stipulated in Rule 12, to set forth “as fully as may be necessary for the information of the Commission the facts upon which the application is based and the nature of the order of approval desired”.
As provided in Rule 12, applications may also be submitted to the Commission by “any Government or person” for a further order in respect of a use, obstruction or diversion for which the IJC has already made an order and has retained jurisdiction. Before the IJC complies with such a request, the secretaries are to “notify both Governments and invite their comments”. 62
Rules 13 and 14 deal with the numbers of copies required of an application, supporting documents and related statements and their despatch to the secretaries of the two sections of the Commission, including cases when a use, obstruction or diversion has been authorized by or on behalf of one of the governments, a state, a province or other competent authority. The secretary of the section receiving an application and related documentation must send one duplicate original and twenty-five copies to the secretary of the other section. Where the project for which IJC approval is being sought has been approved by or on behalf of a government, a state, a province or other competent authority, two copies of such authorization and of any related plans approved are to be furnished to the Commission.
Rule 15 provides that, when the IJC receives an application, the secretaries of the Commission must provide a copy to the government that did not first forward it to the Commission as soon as practicable after the application is received. The secretaries must arrange for a notice to be published in the Canada Gazette in Canada and the Federal Register in the United States and once each week for three successive weeks in one newspaper in each country “circulated in or near the localities which, in the opinion of the Commission, are most likely to be affected by the proposed use, obstruction or diversion” stating that the application has been received, the nature and locality of the proposed use, obstruction or diversion, and the time within which an interested person may present a “statement in response” to the IJC. The notice must also indicate that the IJC “will hold a hearing or hearings at which all persons interested are entitled to be heard”.
Recently, questions have arisen within the Commission about the effectiveness of using newspapers for the posting of notices. Use of the Internet and other means have been discussed. Nothing in Rule 15 prevents the IJC from placing notices in newspapers as prescribed in the Rule and also using additional means. Moreover, as earlier noted, Rule 9 allows the Commission to suspend, repeal or amend any of the rules at any time with the concurrence of four commissioners and to so inform both governments, and Rule 10 provides that the IJC “may, at any time, adopt any procedure which it deems expedient and necessary to carry out the true intent and meaning of the Treaty”. In this connection, it should always be remembered that Article XII of the Boundary Waters Treaty requires that the rules adopted by the Commission “be in accordance with justice and equity”.
Rule 16 provides for the presentation to the IJC, within thirty days of the filing of an application, of statements in response by any interested persons other than the applicant. These may be in support of or opposed to the application. The secretaries send copies of such statements “forthwith to the applicant and to each Government except the Government which presented the said statement in response” and, if so directed by the Commission, are to inform those who have presented such statements of the nature of the total response.
Rule 17 permits the applicant and the government that transmitted the application to the IJC to present to the Commission “statements in reply” within thirty days after the time allowed for the presentation of statements in response. Such statements are to “set forth facts and arguments bearing upon the allegations and arguments contained in the statements of response”. The 63 secretaries also send copies of them to each government, except the government which presented the statement in reply, and to everyone who presented statements in response.
Rule 18 stipulates that if an application or statements in response or reply are not sufficiently definite or complete, the IJC may require that they be more definite and complete. “Where substantial justice requires it” and four commissioners concur, the Commission may allow the amendment of any document or exhibit presented to it.
Rule 19 gives the Commission the latitude to “reduce or extend the time for the presentation of any paper or the doing of any act required by these rules” or to “dispense with the presentation of statements in response and statements in reply” in any case “where the Commission considers that such action would be in the public interest and not prejudicial to the right of interested persons to be heard in accordance with Article XII” of the Boundary Waters Treaty.
Rule 20 allows governments and persons interested in an application to be heard in person or by counsel before a Commission hearing.
Rule 21 provides that the IJC may meet or consult with an applicant, the governments and other persons and their counsel at any time about the plan of hearing, the mode of conducting the inquiry, the admitting of proof of certain facts or for any other purpose.
Rule 22 provides for the attendance of witness and the production of documents.
Rule 23, which should be read in conjunction with Rule 7 and which sets out the procedures to be followed for hearings related to an application, provides as follows:
• The time and place of hearings shall be fixed by the two Commission chairmen.
• The secretaries shall give written notice of the time and place of hearings to the applicant, the governments and all persons who have presented statements in response and shall have such notices published in the Canada Gazette and the Federal Register and once a week for three successive weeks in one newspaper in each country circulated in or near localities likely to be affected.
• All hearings shall be open to the public.
• The applicant, the governments and interested persons are entitled to present relevant and material oral and documentary evidence and argument.
• The presiding chairman may require that evidence be under oath.
• Witnesses may be examined and cross-examined by the commissioners and by counsel for the applicant, the governments and the Commission and, if the presiding chairman consents, by counsel for a person other than the applicant. 64
• The Commission may require further evidence and printed briefs to be submitted at or subsequent to a hearing.
• Commissioners are free to determine the probative value of evidence submitted.
• A verbatim transcript of a hearing’s proceedings shall be prepared.
• When once begun, the times and places of hearings shall be determined by the two Commission chairmen “to ensure the greatest practicable continuity and dispatch of proceedings”.
Rule 24 requires that those participating in any application proceeding shall bear their own expenses and that the Commission, after due notice to participants, “may require that any unusual cost or expense to the Commission shall be paid by the person on whose behalf or at whose request such unusual cost or expense has been or will be incurred”. (See “Costs” below.)
Mindful perhaps of Article I of the Boundary Waters Treaty, Rule 25 provides that when the Commission considers it desirable that a decision be rendered “which affects navigable waters in a manner or to an extent different from that contemplated by the application and plans presented to the Commission, the Commission will, before making a final decision, submit to the Government presenting or transmitting the application a draft of the decision, and such Government may transmit to the Commission a brief or memorandum thereon which will receive due consideration by the Commission before its decision is made final”.
Application Boards
Although this is not stated in the Rules of Procedure, which refer to boards only in the context of references, it is the usual practice of the IJC to establish an expert board or, as appropriate, to direct one of its existing boards to investigate and advise it on the issues related to an application. As for other IJC boards, members are appointed by the Commission. Membership is composed of an equal number of experts from each country. They are usually federal, state or provincial officials who have traditionally made their services and those of their agencies available to the Commission free of charge, although in recent years the Commission has, as government agencies have downsized, sometimes been obliged to engage persons from the private sector.
Each board, when constituted, is normally given a directive by the Commission setting out the investigations and other work it is required to perform. Boards may also be given further directives as their work proceeds. Work may be based on a plan of study or scope of work proposal drawn up by the board at the request of the Commission for the approval of the Commission. Plans of study are especially important for complex and lengthy investigations, particularly if the substantial expenditure of resources is anticipated. Although this may be more likely for references than for applications, detailed plans of study with time lines make it easier 65 both to track progress and to estimate costs. They are useful if the Commission wishes to make a convincing case to governments for the provision of additional resources to carry out the necessary work. Such plans of study may be the subject of public hearings designed to ensure that all pertinent issues will be addressed.
When the required studies and investigations have been completed and, sometimes, while their work is proceeding, boards are required to report to the Commission on the facts of an application and its perceived implications and are usually requested by the Commission to make a definitive recommendation or recommendations. On occasion, during the course of their work, boards may be asked to meet with the Commission to acquaint it with the work they are doing and to discuss any problems they may be encountering. Board reports are normally made public and serve as an important resource at the hearing or hearings the Commission convenes before it takes a final decision on an application. The boards themselves may, with the concurrence of the Commission, conduct hearings or, more often, less formal public meetings in the course of their work and before submitting their reports to the Commission.
Orders of Approval
The Commission’s orders of approval are binding on the applicants but, as the Commission has no power of its own to enforce the provisions of an order, it is for the governments to do so.
Orders customarily include, in their preambular paragraphs, a summary description of the nature of the application, refer to any existing legislation or regulations with a bearing on the application, note the domestic and international approvals obtained, refer to statements in response and statements in reply that may have been filed, refer to the requirement of the Boundary Waters Treaty for the protection and indemnity of all interests and, as appropriate, other rules or principles contained in Article VIII of the treaty, and cite information and undertakings that have been provided by the applicant in relation to the project. In their operative paragraphs, the Commission lists the conditions of approval and state that the Commission retains jurisdiction over the subject matter of the application and, after giving notice and an opportunity to be heard to all interested parties to make representations, may make a further order or orders relating to the project as may be necessary in the Commission’s judgement. Orders are dated and are signed by concurring commissioners. Some orders may, depending on the circumstances, make specific provision for indemnification to affected parties and interests by the payment of money by the applicant or by conferring stated benefits. A few orders of approval (such as the 1982 order and 1985 supplementary order for the construction of Zosel dam near the outlet of Osoyoos Lake and the 1999 Peace Bridge order) have imposed time limits. Some (such as the 1999 Peace Bridge order) provide for automatic review after a specified period.
When the Commission issues an order, it claims the right, as indicated above, to retain jurisdiction (continuing supervisory control of design and operation) over works it has approved and to make further orders, although it did not do this with a few of its earliest orders. The Commission may, from time to time as appropriate, review and amend an order and issue supplementary orders. 66
The retention of jurisdiction by the Commission has been challenged, albeit unsuccessfully, on a number of occasions. An informative discussion of this question and of other Commission practices and procedures is provided in M. H. Wershof’s 1975 paper, Notes on the Jurisprudence of the International Joint Commission, and in a study of the IJC prepared in 1974 by C. B. Bourne. Both were prepared at the request of the Canadian section.
When an order is issued, the Commission normally appoints a permanent IJC board of control, or directs an already existing board of control, to oversee and monitor for the Commission the ongoing implementation of the order and to keep the Commission fully informed of developments.
Orders of approval govern the maintenance and operation of structures all along the boundary. Some of these structures and orders date back to the very early days of the Commission, and the terms of some orders may no longer adequately meet the requirements of the Boundary Waters Treaty or take sufficient account of new interests that have emerged in intervening years. For these reasons, the Commission has reviewed its orders in the St. Croix and Rainy watersheds and has recommended to governments that it review its orders with respect to the hydroelectric generating stations in the St. Lawrence River at Cornwall, Ontario and Massena, New York.
Interests
Some IJC orders of approval are issued for uses, obstructions or diversions that can affect a wide range of public and private interests in a large geographic area. For example, the hydroelectric generating stations in the St. Lawrence River, approved by the IJC, may alter the outflow from Lake Ontario through the river and thereby affect such diverse interests as hydroelectric generation, navigation, the environment, recreational boating and riparian interests of various kinds both upstream and downstream. The nature and perception of interests may change over time and lead to demands for the alteration of an IJC order or otherwise prompt the IJC to review its orders periodically. In the first half of the 20th century, little attention was devoted to environmental factors and concerns, although they are now considered to be of major importance both by the Commission itself and by the public. Not only may interests change but, as in Lake Ontario and the St. Lawrence River and in other waterways, they may often conflict, requiring the Commission in its orders to achieve, insofar as possible, a reasonable balancing of interests. Climate change may also lead to new circumstances that require amendments to the Commission’s orders. As noted above, under Rule of Procedure 20 both governments and persons interested in the subject matter of an application are entitled to be heard in any Commission hearing relating to the matter.
Applicability of Article VIII of the Boundary Waters Treaty
In deciding on applications, the Commission must bear in mind that it is required to follow the rules and principles set out in Article VIII of the Boundary Waters Treaty.
Costs 67
While the IJC may, under Rule 24, recover unusual costs or expenses it meets in considering applications from persons on whose behalf or at whose request they have been incurred, it has, in practice, not done so. Normally the cost of considering an application is met within the Commission’s existing resources and from resources made available to it by the agencies from which the Commission has appointed board members. There have been instances, however, when, in the course of considering an application, the Commission has required that applicants undertake certain studies in relation to an application and that they meet the expenses of the studies themselves. If the Commission were to receive an exceptionally costly and complex application, it may be necessary to invoke Rule 24 or otherwise obtain the necessary funding.
REFERENCES
Since its establishment, the IJC has received and addressed over fifty references under Article IX of the Boundary Waters Treaty. No references have been received under Article X of the treaty. Summaries of the work undertaken under each reference are available in the Vade Mecum, maintained by the Canadian section. A list of references that have been before the Commission is provided by docket number in Appendix 19.
References afford the two countries an opportunity to seek the assistance of the Commission in a diverse and wide range of tasks that may go (and have gone) well beyond the limited range of matters covered by applications under Articles III and IV of the Boundary Waters Treaty. Like the Commission’s project approval process, they provide, through joint fact-finding, a mechanism for defusing issues that might otherwise become troublesome irritants in the two governments’ bilateral diplomatic agendas and for seeking to resolve problems of common concern to both.
Broadly, references are of two main kinds: those that request the Commission to undertake a more or less specific and short-term or time-limited task or study (such as the Trail Smelter reference, the Garrison Diversion reference, the Flathead reference, the 1986 Great Lakes-St. Lawrence River Levels reference, the 1997 Red River reference, and the February 1999 water uses and diversions reference) or those that require the Commission to undertake tasks and make periodic reports on a continuing basis and over an indefinite period of time (such as the reference in Article VII of the Great Lakes Water Quality Agreement of 1978; the June and July 1975 reference, extended in September 1988, on the state of air quality in the Detroit-Windsor and Port Huron-Sarnia areas; the 1998 watershed boards reference; and the monitoring by the IJC, with the assistance of the relevant boards, of water quality in the Rainy, Red and St. Croix Rivers).
Applicable Rules of Procedure
The IJC Rules of Procedure that apply to references are in some respects less complex than those for applications, but by and large the Commission adopts a similar approach to their completion, although the end-products are reports and recommendations to governments rather than binding orders of approval. 68
In accordance with Rule 26, when both governments agree to refer a question or matter to the IJC, a reference “in similar or identical terms setting forth as fully as may be necessary ... the question or matter which it is to examine into and report upon and any restrictions or exceptions which may be imposed upon the Commission with respect thereto” is to be presented to the Commission’s two permanent offices.
Under the same Rule, when one of the governments, on its own initiative, decides to refer a question or matter to the Commission, it is to present a reference to the Commission at the Commission’s permanent office in its country. In fact, as noted earlier in this handbook, none of the references presented to the IJC to date have been lodged by only one government without the concurrence of the other.
References are to be accompanied by whatever drawings, survey plans and maps as are necessary to illustrate clearly the question or matter referred.
Under Rule 27, the secretary to whom a reference is presented receives and files it and sends a copy to the other secretary, and, if a reference is presented by one government only (never yet done), the other secretary sends a copy to his or her government.
The rule further provides that, subject to any restrictions or exceptions imposed by the terms of the reference, the secretaries are to arrange for a notice to be published in the Canada Gazette, the Federal Register and one newspaper in each country circulated in or near the localities which the Commission considers are most likely to be interested in the subject matter of the reference. The notices are to describe the reference, invite interested persons to inform the IJC of the nature of their interest, and state that the Commission will provide such persons a convenient opportunity to be heard.
Rule 28, unlike the rules for applications, specifically states that the IJC may appoint a board or boards of qualified persons, with equal membership from each country, to conduct studies and investigations on its behalf. It also expressly provides that the Commission will ordinarily make copies of the main or final report of such boards or a digest thereof available for examination by the governments and interested persons before holding a final hearing or hearings.
Rule 29 provides for the conduct of hearings on a reference in much the same way as for applications but without provision, for example, for statements in response and statements in reply.
Rule 30 relates to arbitration proceedings under Article X of the Boundary Waters Treaty which, as noted earlier, has never been invoked by governments.
Reference Boards
The appointment or designation of boards or similar entities such as task forces or study groups to assist in the completion of a reference and their relationship to the Commission are virtually the same, in broad terms, as for boards appointed to assist with applications as described 69 above. Often, however, boards appointed to assist with a reference require a much broader range of expertise than for an application and consequently have larger membership. Many references, because of their breadth and complexity, also take much longer to complete than do the Commission’s activities in response to most applications.
Although for most references, special study boards are appointed to assist the Commission and their work terminates with the submission of their reports and recommendations to the Commission for consideration, continuing references without any time limit require the assistance of permanent boards, as is the case, for example, for the Water Quality and Science Advisory Boards and the Council of Great Lakes Research Managers under the Great Lakes Water Quality Agreement reference.
Impact of Commission Reference Reports
Unlike orders of approval in response to applications pursuant to Articles III and IV of the Boundary Waters Treaty, which are binding unless varied by agreement between the Canadian and United States governments, the reports of the Commission and the recommendations it makes under references are not decisions on the facts or the law. While the governments are not obliged to adopt Commission recommendations, a number of commission reports in response to references have had a marked impact. Some have led or contributed substantially to new bilateral arrangements such as the Lake of the Woods Convention, the Rainy Lake Convention, the Trail Smelter Convention (even though the United States Government rejected the Commission’s unanimous report) and the development of the principles, objectives, measures and programs provided for in the Great Lakes Water Quality Agreement. The development by the Commission of binationally-agreed scientific and technical information and IJC-recommended principles for water apportionment contributed to the conclusion of the Columbia River Treaty. IJC intervention in the Skagit River dispute over the environmental effects of the proposed heightening of the Ross Dam by the city of Seattle materially assisted in the conclusion of a dispute-ending treaty between the two countries. In separate references, the IJC was asked to advise governments on how to ensure that the prohibition against transboundary pollution in Article IV of the Boundary Waters Treaty could be honoured in the context of the proposed Garrison Diversion Unit project in the United States and the proposed Cabin Creek coal mine near the Flathead River in Canada. The IJC recommended against the construction of both projects in the form proposed. Although portions of the Garrison Diversion Unit have been constructed, it has not been completed as originally envisaged. The Cabin Creek coal mine, which was the subject of the Flathead Reference, did not proceed. Studies and investigations conducted by the IJC under various references have helped governments better understand the extent and nature of transboundary air pollution and the factors that must be taken into account in addressing the problem of fluctuating water levels in the Great Lakes.
Even without explicit government acceptance, IJC recommendations have frequently been reflected in whole or in part in government policies, programs and measures. This has been evident, for example, in the Great Lakes water quality context with the governments’ Binational Toxics Strategy, their Binational Program to Restore and Protect the Lake Superior Basin, their response to the IJC challenge for a zero discharge demonstration program, provision in the 1978 70
Great Lakes Water Quality Agreement for Remedial Action Plans and Lakewide Management Plans, and the governments’ acceptance of the importance of the use of indicators in assessing progress under the Great Lakes Water Quality Agreement.
Costs
The costs of IJC work under references, which may be time-limited or continuing, are normally met from one or a combination of the Commission’s own existing budget, resources transferred to the Commission from government agencies, resources the members of boards and similar bodies are able to bring with them, and temporary increases in the Commission’s annual budgetary levels. In some instances, the governments have not specifically indicated in a reference that the necessary additional funding would be provided when references were transmitted to the Commission, and it has sometimes been difficult for the Commission to meet the additional costs involved from its regular and limited budget or to obtain additional funding quickly. For example, when, during the IJC’s seven years of work on the Great Lakes-St. Lawrence River Levels reference, it became clear that substantial additional resources were necessary to complete the work, the Commission found it necessary, with a well-documented case, to seek, successfully, substantial additional government funding.
Recently, the governments have sometimes been explicit about the source or availability of resources in their reference letters to the Commission. In the June 1997 Red River reference and in the February 1999 reference on water uses and diversions, the governments explicitly promised to seek the resources required to discharge the requirements of the references. In the case of the Red River reference, the United States Government, however, did not provide its full share, and the IJC’s study had to be curtailed accordingly. In the Ontario Hydro-Niagara River reference of December 1998, the Commission was asked to provide cost projections for the work under the reference. However, the April 1997 reference on the environmental challenges of the 21st century was undertaken within the Commission’s existing budget, as are some continuing references. On- going funding is provided for the extensive and costly reference in the Great Lakes Water Quality Agreement. The November 1998 reference on the further development of the concept of watershed boards is being undertaken, at the request of the governments in their reference letters, largely with existing IJC resources, although some additional government funding has been provided. As demonstrated by the Red River reference, even when explicit undertakings are made by the governments to seek the necessary resources, this does not necessarily mean that they will, in the end, be available. Moreover, when funding is available from both governments, it may not be provided simultaneously or as soon as the IJC may wish. In this, the different appropriation procedures of the two countries and the six month separation in their fiscal years are often contributing factors. In all cases, convincing cost estimates, based on well-developed work plans are essential to the acquisition of resources over and above those provided in the Commission’s existing budget. This may not, however, be enough, as political considerations beyond the Commission’s control may intervene.
Public Consultation 71
Public consultation is a watchword of the Commission’s reference work as in its work on applications. In accordance with the provisions of the Boundary Waters Treaty and the Rules of Procedure, as described in the section below on “Hearings and Public Consultation”, the Commission makes every reasonable effort to consult and inform interested parties and the public generally.
Reports and Recommendations
Board and Commission reports in response to references are customarily given wide public distribution both on paper and on the Commission’s Internet web-site following their formal submission to governments.
The Commission has sometimes been concerned about an absence of either affirmative or negative responses or about long-delayed responses by governments to some of its reports and recommendations. On occasion, it has drawn these concerns to the governments’ attention, particularly when it has reason to believe that the problems or circumstances that first prompted a reference may recur or even worsen unless action of the kind it had proposed is taken.
HEARINGS AND PUBLIC CONSULTATION
As indicated above, hearings and public consultation are an integral part of the IJC process of considering applications for uses, obstructions and diversions in transboundary waters and in undertaking references. The basic procedures for them are set out in the Commission’s Rules of Procedure pursuant to the stipulation in Article XII of the Boundary Waters Treaty that all parties interested in any proceeding, inquiry or matter within the Commission’s jurisdiction “shall be given convenient opportunity to be heard”.
In accordance with Rule 7 of the Rules of Procedure, hearings may be conducted, testimony received and arguments heard by the whole Commission or by one or more Commissioners from each section of the Commission designated for that purpose by the respective sections or section chairmen. It is, however, questionable whether justice and equity permit a commissioner who has not attended a hearing on a mater to participate in the Commission’s decision on that matter.
During the course of the Commission’s work on an application or in fulfilment of a reference, public hearings and often other less formal means of public consultation are invariably conducted. Boards and task forces may hold public meetings, in consultation with the Commission, on one or more occasions during their investigations and studies, and the Commission conducts formal hearings before it issues an order of approval or a reference report, usually with the board or task force report and recommendations to the Commission as the principal basis for testimony and discussion. Relevant documents are often made available to interested persons and organizations both before and at hearings or other forms of public consultation. It has also been a practice for the Commission to hold hearings on plans of study drawn up before substantive work is done on an application or reference to ensure that its studies address all relevant issues in an appropriate manner. 72
Notices of hearings and public consultations are issued as required by the Rules of Procedure, and they are usually, but not in every instance, convened on both sides of the boundary in locations where interest in a matter is substantial. Any person or organization, as well as representatives of all levels of government, may attend and participate.
Although no specific policy applies, the chairman of the section for the country in which the hearing or other forms of public consultation are held usually presides or the chairmen of both sections do so. Hearings are usually conducted with a certain degree of flexibility in accordance with Rule 10 of the Rules of Procedure, which provides that the Commission “may, at any time, adopt any procedure which it deems expedient and necessary to carry out the true intent and meaning of [the Boundary Waters Treaty]”. Verbatim records are usually kept of formal hearings or a taped record may be made and subsequently transcribed. Testimony may be given orally or in writing. Persons giving testimony or otherwise wishing to express their views are invited to make written submissions, if they wish, either before, at or within a specified time after the hearing or public consultation. When the Commission considers that the subject matter of the hearing or public consultation is likely to be of substantial interest to both English speaking and French- speaking populations, simultaneous interpretation in the two languages is provided.
The Commission seeks to impress upon participants in hearings the uniquely binational, impartial and independent character of the Commission, and the flags of both countries are normally displayed.
Such occasions are opened with a description by the chairman of the reason for the proceeding and of the subject matter to be addressed. Relevant documentation, usually including copies of the application or reference and board reports, if they have been prepared, are made available to those present. General information on the Commission is also usually made available. Members of boards may be present, at the request of the Commission, to explain and answer questions about their findings. Commissioners may ask those testifying or submitting documents to answer questions about the proposals or arguments they have advanced.
In the early 1990s, the Commission experimented, in public consultations, with various forms of multi-site satellite conferencing, although costs and organizational complexity proved to be substantial.
COMMISSION RECORDS
While the Boundary Waters Treaty makes no reference to the form in which IJC records are to be kept, Rule 4 of the Rules of Procedure requires that each Commission secretary shall:
• Preserve an authentic copy of the records of all Commission meetings and hearings.
• “[R]eceive and file all applications, references and other papers properly presented to the Commission in any proceeding instituted before it and shall number in numerical order all such applications and references; the number given to an application or reference shall be the primary file number for all papers relating to such application or reference”. 73
• “[F]orward to the other for filing in the office of the other copies of all official letters, documents, records or other papers received by him or filed in his office, pertaining to any proceeding before the Commission, to the end that there shall be on file in each office either the original or a copy of all official letters and other papers, relating to the said proceeding”.
• “[F]orward to the other for filing in the office of the other copies of any letters, documents or other papers received by him or filed in his office which are deemed by him to be of interest to the Commission”.
Rule 11, described earlier in this handbook, stipulates what items in the Commission’s records are to be available for public information and what items are “privileged” and are available for public information only in accordance with a decision of the Commission. Apart from those items that are to be automatically available for public information, the policy of the Commission, established in May 1976, is that Commission records older than twenty-five years are so available but that records newer than twenty-five years may be made available to the public only with a specific Commission decision to that effect.
The provisions in the Rules of Procedure for the filing of applications and references and related documents and records are followed, and each application and reference and other documents relating to them are assigned a docket number and are filed by that number. An important matter not assigned a docket number was the governments’ 1997 request to the Commission to advise them on how it might best assist them to meet the environmental challenges of the 21st century within the framework of their treaty responsibilities.
Other documents, primarily those related to the internal operations of each section and such matters as personnel, financial and physical resources management in each section are recorded and filed in accordance with each section’s own records system.
In the Canadian section, a project is underway for the electronic scanning of all key documents, beginning with the Commission decisions, Minutes, applications, orders of approval, references, and related Commission papers and reports. The objective is that eventually all records, especially those of a substantive as distinct from those of a purely administrative nature, will be properly filed and available to commissioners, advisers and other staff on the screens of their desktop computers as a supplement to the retention of paper records.
PUBLIC INFORMATION POLICY AND PROCEDURES
The Commission has an approved and established policy on public information and related procedures, which is periodically reviewed and was last revised and approved by Commission decision in February 1992 (Appendix 21).
The policy provides for the establishment of a Public Information Committee PIC, acting under the direction of the Commission and consisting of two commissioners, one from each 74 section, to serve as co-chairs, and staff from the Commission’s three offices as assigned by the Commission chairs. The Commission secretaries and the director of the Great Lakes Regional Office are ex-officio members. The PIC usually meets before executive meetings of the Commission and reports, with recommendations, to the full Commission on proposed public information activities.
The statement of the Commission’s public information policies and procedures is distributed to Commission staff in all three offices and is sent to members of boards and similar bodies with their appointment letters.
The policy spells out in detail the specific responsibilities, not summarized here, of the PIC, of Commission staff, and of its boards, task forces and similar bodies.
The Commission has an active public information program, and public information officers serve in each of the IJC’s three offices. The information program at the Great Lakes Regional Office was created pursuant to the Great Lakes Water Quality Agreement and still involves primarily, but not solely, information related to the Commission’s activities under that agreement.
The Commission’s public information program includes the publication and distribution of Commission and certain board reports, news releases, a wide variety of pamphlets and brochures and the Commission’s quarterly newsletter, focus, which provides, in English and French, information to the public on current and upcoming IJC activities and has a primarily electronic circulation of about 12,000. Most information materials are made available in both English and French. Other key activities of the PIC and public affairs officers in the three offices include, among other things, logistical and information-related preparations for public hearings and other forms of public consultation and for the Commission’s biennial forums on Great Lakes Water quality, which involve substantial expense and personnel time; the organization of press conferences and the maintenance of media contacts and relations; handling enquiries from the media and the public orally, in writing and on the Internet; the drafting of statements and speeches for commissioners; the preparation of anticipated questions and suggested answers for the use of commissioners and other Commission personnel; and the maintenance of contacts with education professionals, particularly in relation to Great Lakes water quality, and with other interest groups.
A relatively recent but central task of the PIC and the public information officers in the three offices is the maintenance of the Commission’s web-site on which there are, by recent estimate, between 2,000 and 4,000 “hits” each month. The maintenance of the web-site, regularly updated, has become the Commission’s principal continuing public information tool. In February 1997, the Commission approved guidelines for gathering and disseminating public information in electronic format, which are provided at Appendix 22. While a great deal of current and useful information is placed on the web-site in both English and French, care must be taken to ensure that information and documents privileged to the Commission are not thereby released.
Commission boards and similar bodies are encouraged to maintain web-sites on their own activities but to take care in their use of web-sites to avoid confusion between the roles and documents of IJC boards and those of the agencies that employ board members and to ensure that 75
the information they provide through web-sites is accurate and not speculative. Several of the Commission’s boards do maintain their own web-sites and some have published and distributed, with IJC assistance, pamphlets on their roles and activities.
A Communications Committee, composed of Commission staff and members of the International St. Lawrence River Board of Control, was established in 1996 to deal with the unique communication issues that arise with respect to the IJC’s role in the regulation of flows and levels in Lake Ontario and the St. Lawrence River.
PERSONNEL, FINANCIAL & PHYSICAL RESOURCES MANAGEMENT
Matters related to the management of personnel, financial (including contracting) and physical resources made available by the two governments to the Commission are largely governed by the legislation, regulations and procedures of the two governments. They are not described in detail here because they are different for each country and therefore for each section, and are subject to change. Some broad statements can, however, be made. Staff members in all three offices, while subject to the direction of the Commission alone, are public servants of the country from which they come, and their personnel management ( including employment, position classification, remuneration, employee benefits, performance appraisal, release and retirement) is governed by the two governments’ individual personnel policies. The remuneration and other benefits of commissioners and members of the Commission’s staff is a matter for their respective governments. The acquisition, use and auditing of funds provided by the two governments are undertaken in accordance with the appropriation requirements, legislation and regulations of their country of origin. Furnishings and other capital equipment in the Commission’s three offices remain the property of the government of the country in which they were purchased and their management is governed by the procurement, inventory and disposal regimes of their country of origin. The sub-section above on the IJC’s binational Great Lakes Regional Office in Windsor, Ontario describes the policies and practices adopted by the Commission, with the concurrence of the two governments, for staffing, contracting, procurement and cost-sharing in relation to that office.
VIII. CONTINUING RESPONSIBILITIES
This section of the handbook provides a summary description of the Commission’s more or less active continuing responsibilities as of 2000. Detailed accounts of the Commission’s work since its establishment under all dockets can be found in the Vade Mecum maintained by the Canadian section. A map depicting the geographic scope of IJC activities along the boundary is at Appendix 1, map insert).
GREAT LAKES WATER QUALITY
Over the years since the early 1970s, work under the Great Lakes Water Quality Agreement has frequently accounted for a much greater share of the Commission’s time and financial and personnel resources than any other individual activity. Not only does the IJC have the 76
Great Lakes Regional Office and its staff in Windsor, Ontario to assist it in its Great Lakes water quality work, but the Commission’s Great Lakes Water Quality and Science Advisory Boards and the Council of Great Lakes Research Managers are the IJC’s largest boards. Since the conclusion of the 1978 agreement, the Commission’s work on Great Lakes water quality has, most of the time, been the most publicly visible aspect of its activities. This has been due in substantial measure to the size of the lakes, the involvement in Great Lakes water quality matters of highly vocal environmental advocacy organizations (Great Lakes United, Greenpeace and others), the breadth and scope of the agreement and of the tasks assigned to the Commission under it, the fact that much of the Great Lakes region is heavily populated, the publicity the IJC has itself generated through its biennial forums on Great Lakes water quality and through the reports and recommendations it has made to governments, particularly in recent years.
IJC activity in relation to Great Lakes water quality substantially pre-dates the conclusion of the first Great Lakes Water Quality Agreement in 1972. In 1912, with boundary waters being almost indiscriminately used for sanitary and domestic purposes, sewage disposal and the discharge of vessel wastes, the Commission was asked in a reference from the two governments to report on the extent, causes and location of pollution in certain boundary waters, including the Great Lakes, and to recommend possible remedies or means of prevention. Consistent with Article IV, the Commission was instructed that “the inquiry is to be confined to cases of pollution of boundary waters on one side of the boundary which extend to and affect the boundary waters upon the other side.” In its 1918 report, the Commission described the pollution in various boundary waters, including in particular the Great Lakes and their connecting channels, as a threat to the health and welfare of citizens and concluded that this constituted a substantial contravention of the spirit of the Boundary Waters Treaty that could be remedied by the construction of treatment plants. It recommended that the IJC be given jurisdiction to regulate and prohibit the pollution of boundary and transboundary waters. In response to a 1919 request from the governments that the Commission draft either reciprocal legislation or a treaty to give effect to its recommendations, the IJC submitted a draft treaty which, however, was not negotiated to completion.
In the prevailing belief that sufficient clean water was available to dilute all wastes and with the advent of chlorination, no further request was made of the IJC with respect to Great Lakes water quality until 1946 when it received a reference on pollution problems in the St. Clair River, Lake St. Clair and the Detroit River, later extended to include the St. Marys River and the Niagara River. Under IJC auspices, comprehensive surveys were undertaken between 1946 and 1949 and, in a 1950 report, the Commission recommended both remedial measures and water quality objectives and that it be authorized to establish and maintain continuing supervision over boundary waters pollution. Approval by the governments of the Commission’s recommendations led to the establishment by the Commission of two advisory boards to assist it, one for Lake Superior, Lake Huron and Lake Erie with responsibility for St.Mary’s River, St. Clair River, Lake St. Clair and Detroit River and the other for the Niagara River. They reported to the IJC semi-annually. In 1968 and 1969, the IJC convened “international public meetings” to ascertain why objectives were not being met in the connecting channels and to review the related programs and schedules of the local agencies responsible and reported on them to the governments. 77
In 1964, the IJC received a pollution reference on the waters of Lake Erie, Lake Ontario and the international section of the St. Lawrence River. Having established an International Lake Erie Water Pollution Board and an International Lake Ontario-St. Lawrence River Water Pollution Board to undertake studies and advise it, the Commission submitted a first interim report to governments in late 1965 recommending that they take action to ensure sufficient purification of wastes to achieve maximum removal of phosphates, prohibition of the construction of combined sanitary and storm sewers and the initiation of a program to separate existing combined sewers. A second interim report was submitted to governments in 1968 together with the interim reports of the two boards, and the governments released them to the public.
In 1969, the boards provided to the Commission a detailed summary report, followed later by detailed technical data. The International Lake Erie Water Pollution Board submitted to the IJC a report on potential oil pollution incidents from gas and oil activities in Lake Erie and their prevention and control in response to a request from the governments within the framework of the 1964 reference for a special report on the matter.
Public hearings on the pollution of Lake Erie, Lake Ontario and the international section of the St. Lawrence River were held in several centres on both sides of the boundary in 1969 and 1970. In 1970, the IJC presented a third interim report to governments, the boards provided the IJC with reports on mercury pollution in the lower Great Lakes and on polychlorinated biphenyls, and the Commission submitted its final report to governments on the Pollution of Lake Erie, Lake Ontario and the International Section of the St. Lawrence River. The IJC recommended urgent action on eutrophication (an excess of nutrients), noted the need for the two governments to make commitments to each other on water quality objectives and programs, recommended that the Commission be given the authority, responsibility and means to coordinate and ensure surveillance and monitoring of water quality and the effectiveness of programs, and further recommended that the reference be extended to an investigation of pollution in remaining boundary waters in the Great Lakes system and waters flowing into the system. The recommendations of the IJC’s final report led to the negotiation and signature, on April 15, 1972 of the first Great Lakes Water Quality Agreement.
Upon the conclusion of the 1972 Great Lakes Water Quality Agreement, the governments asked the IJC to study water quality in Lakes Huron and Superior to determine whether they too were polluted and the transboundary and downstream effects and locations of such pollution. Later that year, the Commission established an Upper Lakes Reference Group (ULRG) to assist the newly-created Great Lakes Water Quality Board in undertaking the studies required and held hearings on both sides of the boundary late the same year and in early 1973. In its report, the ULRG, while declaring that water quality in both lakes was still excellent, found clear evidence of human impact, with atmospheric input and land runoff being the main sources of pollution. The ULRG found the only transboundary pollution to be in the St. Mary’s River from Algoma Steel and the city of Sault Ste.Marie, Ontario, but also found that the western arm of Lake Superior was seriously degraded by asbestos inputs from a mining company in Minnesota. Other sources of degradation were found to include inputs of heavy metals, nutrients, organics and bacteria and, to a much lesser extent, vessel wastes, erosion, thermal releases, dredging and spills. Hearings on the ULRG’s report were held at six locations on the upper Great Lakes in 1977. In its final report on 78 the reference in 1979, the IJC endorsed the ULRG’s findings and, among other things, called for stronger controls on phosphorous and toxic substances and on growth and development.
At the same time as they requested the IJC to undertake the Upper Great Lakes reference, the governments asked it to conduct a study of boundary waters pollution in the Great Lakes from agriculture, forestry and other land use activities, to recommend remedial measures and to evaluate the adequacy of existing programs and controls. In late 1972, the IJC created the International Reference Group on Pollution from Land Use Activities (PLUARG) under the Great Lakes Water Quality Board to assess and report on the extent and source of pollution from such activities. Seventeen public consultation panels were established to discuss the environmental, social and economic aspects of the study and to review and comment on PLUARG’s 1978 report. Public hearings were held before and after the study. Many study papers were produced. In its final report under the reference in February 1980, the IJC expressed general agreement with PLUARG’s finding that drainage from farms and urban areas was causing more pollution than generally recognized and recommended, among other things, the development of a comprehensive management strategy to control pollution specifically directed at but not restricted to non-point sources, with considerable responsibility to rest at local level and with voluntary remedial action. Phosphorous was confirmed to be a major problem and the report recommended specific minimum goals for phosphorous control programs. Other issues addressed in the report included toxic and hazardous substances, localized non-point pollution problems and waste disposal.
The emphasis of the 1972 Great Lakes Water Quality Agreement was on phosphorous control, but it also provided for a number of general and specific objectives and for programs and other measures to achieve them. Under the agreement, the IJC’s responsibilities included the collection, analysis and dissemination of information on the operation and effectiveness of programs and other measures to achieve the objectives of the agreement and the tendering of advice and the provision of assistance in program coordination. To assist the IJC, the agreement provided for the establishment of a Great Lakes Water Quality Board, a Research Advisory Board and other subordinate bodies, as well as a Great Lakes Regional Office in Windsor, Ontario. In fulfilment of its responsibilities under the agreement, the IJC began in 1972 to report annually to the federal, provincial and state governments on progress toward achievement of the agreement’s goals and objectives.
A comprehensive review in 1977 of the operation and effectiveness of the agreement, including an IJC Special Report on Various Provisions of the Great Lakes Water Quality Agreement in February of that year, led to the conclusion of the more comprehensive Great Lakes Water Quality Agreement of 1978 which, while retaining a concern about eutrophication, was more comprehensive and focused heavily on the assessment and management of toxic and hazardous substances. The 1978 agreement was extended in 1983 to include a Phosphorous Load Reduction Supplement and was amended by protocol in 1987, which further broadened its scope and the role of the IJC. The IJC’s responsibilities under the 1978 agreement have been described in detail above in the “Mandate and Functions” section of this handbook.
In January 1981, the Commission had submitted to governments a supplemental report to its 1980 report on Pollution in the Great Lakes from Land Use Activities. Taking into account the 79 recommendations of a Task Force on Phosphorous Management Strategies, it confirmed that target loads contained in Annex 3 of the 1978 Great Lakes Water Quality Agreement were the best estimates available of maximum phosphorous loads that would achieve the agreement’s goals; presented a strategy to reach the target loads if they were adopted; and suggested the consideration of the projected impact of existing control programs, biological availability, near shore problems and socio-economic considerations.
Great Lakes Boards, Task Forces and Committees
To help it fulfil its responsibilities under the Great Lakes Water Quality Agreement, the Commission has the assistance of its Great Lakes Water Quality Board, Great Lakes Science Advisory Board and Great Lakes Regional Office, which were established pursuant to the agreement, of the Council of Great Lakes Research Managers, which the IJC itself established in 1984, and of several task forces and committees, in addition to the staffs of the section offices. The Commission’s International Air Quality Advisory Board, with a mandate including but extending beyond the Great Lakes region, draws secretariat assistance from the Great Lakes Regional Office.
Water Quality Board. The agreement stipulates that the Water Quality Board “shall be the principal advisor” to the Commission under the agreement. The Board has twenty members, equally divided between Canadian and United States personnel, consisting of officials of the two federal governments, of the eight Great Lakes states, and the provinces of Ontario and Quebec. In practice, several persons serve as alternates for members who do not participate in certain meetings of the board. The board meets with the Commission at the IJC’s semi-annual meetings and submits a written report biennially.
In the Terms of Reference appended to the Great Lakes Water Quality Agreement, it is expressly stated that, under the Commission’s direction, the board shall:
• Make recommendations on the development and implementation of programs to achieve the purpose of the agreement.
• Assemble and evaluate information evolving from such programs.
• Identify deficiencies in the scope and funding of such programs and evaluate the adequacy and compatibility of results.
• Examine the appropriateness of such programs in light of present and future socio- economic perspectives.
• Advise the Commission on the progress and effectiveness of such programs and submit appropriate recommendations.
The Terms of Reference also specify that the board, on the IJC’s behalf, “is to undertake liaison and coordination between the institutions established under the agreement and other institutions and jurisdictions which may address concerns relevant to the Great Lakes Basin 80
Ecosystem so as to ensure a comprehensive and coordinated approach to planning and to the resolution of problems, both current and anticipated” and that it shall report to the IJC periodically or as required by the Commission “on all aspects relating to the operation and effectiveness” of the agreement.
A change in the board’s role occurred as a result of the Commission’s adoption in April 1991 of the report of its “Reconstituted Task Force on the Commission’s Role and Priorities under the Great Lakes Water Quality Agreement”. The Task Force had been established as a consequence of the additional activities assigned to the Commission under the 1987 Protocol and because of growing concern by the Commission about its need to provide clearer direction over the nature of the work being done by its Great Lakes water quality institutions and the use of applicable IJC resources, about an apparent decline in the participation in Commission activities of senior government officials, and about the independence and objectivity of the advice it was receiving from the board. The Task Force report stated that it was “now clear to the Commission and a growing number of agency officials from both countries that government officials should no longer play both the role of implementing Agreement programs and the role of critical analysis and assessment of progress and effectiveness of that implementation.” The report further stated that “the full commitment of government personnel to their implementation role means that they cannot continue to assist the Commission in reviewing, analysing and assessing the progress of the governments in achieving the purpose of the Agreement”.
Against this background, the IJC accepted the Task Force’s recommendations that, among other things, the role of the Water Quality Board should henceforth “be to give advice and make recommendations on broader policy questions, including Commission priorities”, draw the Commission’s attention to any other matters it considered appropriate, meet with the Commission to give such advice, and provide written reports to the Commission. Also adopted were the Task Force’s recommendations that the board’s existing substructure be disbanded, that the board’s membership should continue to be drawn from senior levels of government, that the assessment of progress under the agreement should be carried out through the Science Advisory Board, task forces or other mechanisms and that the Water Quality Board be invited to comment on the findings and recommendations of such groups. It was also decided that members of the board should be available to participate in certain work of the various task forces or other mechanisms that might be created.
Science Advisory Board. In the Terms of Reference appended to the agreement, the Science Advisory Board, which currently has eighteen members, evenly divided between persons from Canada and the United States, is designated as the “principal scientific advisor” to the IJC and the Water Quality Board, “responsible for developing recommendations on all matters related to research and the development of scientific knowledge pertinent to the identification, evaluation and resolution of current and anticipated problems related to Great Lakes water quality”. In fulfilling these responsibilities it is to review scientific information in order to:
• Examine the impact and adequacy of research and the reliability of research results, and ensure the dissemination of such results. 81
• Identify additional research requirements.
• Identify specific research programs for which international cooperation is desirable.
The board is also to advise jurisdictions of relevant research needs, solicit their involvement and promote coordination as well as to seek analyses, assessments and recommendations from other scientific, professional, academic, governmental and intergovernmental groups relevant to Great Lakes Basin Ecosystem research and to report to the Commission and the Water Quality Board “on all matters of a scientific or research nature relating to the operation and effectiveness of this Agreement.”
In practice, the activities of the board have been much less focused on the details of research than envisaged in the agreement, and it has tended to adopt a broader, more long-term, conceptual and policy-oriented approach. In 1984, the Council of Great Lakes Research Managers was established by the Commission to report to the Science Advisory Board and to carry out most of the more research-oriented tasks that had originally been assigned to the board. As noted below, in 1991 the Council ceased, by Commission decision, to report to the Science Advisory Board and began, with the status of a de facto board, to report direct to the Commission.
The Science Advisory Board’s role was also changed and its membership eventually became more multi-disciplinary as a result of the Commission’s adoption, in 1991, of the recommendations of the Roles and Priorities Task Force in the light of the changes made at the same time in the functions of the Water Quality Board. The Science Advisory Board was directed to advise the Commission on technical, scientific and socio-economic questions related to matters referred to it by the Commission in the biennial assignment of priorities. Its composition was broadened to include experts from a variety of fields and perspectives to encompass both so- called “hard sciences” and “soft sciences”. It was also expected to play a more prominent role in the assessment of progress under the Great Lakes Water Quality Agreement.
The SAB has standing work groups on Ecosystem Health, Parties’ Implementation and Emerging Issues.
Like the Water Quality Board, the Science Advisory Board meets with the Commission at the IJC’s semi-annual meetings and reports formally in writing to the Commission biennially.
Although the Commission accepted the recommendation of the Roles and Priorities Task Force that the directives to the Water Quality and Science Advisory Boards be amended to reflect the altered roles established for them, such new directives have not yet been prepared or issued. The Task Force report, as approved by the Commission, was, however, transmitted to the two boards and to the Great Lakes Regional Office.
Council of Great Lakes Research Managers. The Council of Great Lakes Research Managers, whose membership is now twenty-four and includes two “binational” members, one from the Great Lakes Fishery Commission and another from the International Association for Great 82
Lakes Research, was, as earlier indicated, established in 1984 as a sub-unit of the Science Advisory Board but in 1991 was made a de facto board reporting direct to the Commission with new terms of reference, last amended and approved by the Commission in October 1996. Its terms of reference are provided in full in Appendix 23. Its main functions are to promote communication, coordination and collaboration among researchers in addressing the Commission’s Great lakes water quality priorities, to encourage dissemination of research findings, to compile and summarize current and planned research programs, to identify research needs and gaps and to review the impact of research recommendations made by itself, and by the Water Quality and Science Advisory Boards. Its membership comprises senior research managers and scientists from government agencies, the academic world, industry and other organizations. One of the council’s key continuing tasks is the maintenance of a “Great Lakes-St. Lawrence Research Inventory” to enable it and others to identify and track relevant research, to facilitate opportunities for collaboration and to identify research gaps.
International Air Quality Advisory Board. The Commission’s International Air Quality Advisory Board is not formally a Great Lakes water quality institution and has a mandate to advise the Commission on air quality problems and issues along the entire Canada-United States boundary. However, as atmospheric deposition is a major contributor to the pollution of the Great Lakes, it does undertake work relevant to Great Lakes water quality and participates fully in the Commission’s biennial priorities work in relation to the Great Lakes Water Quality Agreement.
Great Lakes Regional Office. The organization and functions of the Commission’s Great Lakes Regional Office have been described above in the sections of this handbook on the Great Lakes Water Quality Agreement and on Commission offices.
Annex 2 Advisory Committee. An Annex 2 Advisory Committee, composed of two commissioners, representatives of the Water Quality Board and the Science Advisory Board and the director of the Regional Office, has, while not active for some time, the task of helping to coordinate IJC activities in relation to Remedial Action Plans (RAPs) for Great Lakes Areas of Concern (AOCs) where specified “beneficial uses” are impaired, Lakewide Management Plans (LaMPs) and other aspects of Annex 2 of the agreement.
The 1987 protocol to the agreement formalized, in the agreement’s Annex 2, a process proposed by the IJC for RAPs for designated AOCs. Initially forty-two AOCs were designated and a forty-third, Erie Harbor, was later added at the recommendation of the Commission. One, Collingwood Harbour, has been removed from the list following completion of stage three, and the Commission, in its Ninth Biennial Report on Great Lakes Water Quality, indicated the possibility of recommending the addition of two new AOCs, Lake St. Clair and the St. Joseph River. The two federal governments are, by the terms of Annex 2, to cooperate with state and provincial governments in the development of RAPs and are to submit them to the IJC for review and comment at three stages. In accordance with its general responsibility to assist in the implementation of the Great Lakes Water Quality Agreement, the IJC has sought to encourage and help in the development of RAPs. Nearly all RAPs have been submitted to the Commission at the first stage (definition of the problem) and many at the second stage (selection of remedial and 83
regulatory measures). For most, however, the submission process, and consequently the IJC’s review and comment process, has stalled at the third stage (when monitoring indicates that beneficial uses have been restored). Reasons for this have included changes in government priorities and government resource cuts and apparent flagging of energy and commitment. The governments are considering a different approach to RAPs.
Having taken various approaches to its Annex 2 responsibilities, the Commission adopted a new approach in April 1996 involving “status assessments” for various AOCs and the pursuit of a less technical and more strategic Commission process, whereby commissioners and Commission staff undertake site visits and seek to identify key problems and encourage their resolution. The Commission has encountered some difficulties - institutional, financial and political, including apparent sensitivity on the part of some federal, state and provincial government officials about the IJC’s role - in seeking to stimulate more substantial progress on RAPs. The Commission has been considering what further measures it might take to help overcome these difficulties.
Under Annex 2, the IJC is also to review and comment at four stages on Lakewide Management Plans for open lake waters designed to reduce critical pollutant loadings and restore beneficial uses. LaMPs for all the Great Lakes have been submitted to the Commission at Stage 1 (when the definition of the problem has been completed) and the IJC has commented on the Lake Superior LaMP at that stage. The Commission’s review of the Lake Ontario LaMP at Stage 1 is underway. The status assessment process recently adopted for RAPs is also to apply to LaMPs.
Task Forces. From time to time, the Commission establishes task forces or other bodies to undertake specific studies related to Great Lakes water quality. Recent examples include the Indicators Implementation Task Force which completed an examination of the applicability to the assessment of progress under the Great Lakes Water Quality Agreement of nine desired outcomes and associated indicators proposed by an earlier Indicators for Evaluation Task Force, whose recommendations were adopted by the Commission and commended to governments. Another example is the Nuclear Task Force established to review, assess and report on the state of radioactivity in the Great Lakes and to carry out such other activities as the Commission might in future so direct. The IJC published and sent to governments its reports on radionuclides in the Great Lakes and bioaccumulation of elements.
Biennial Cycles and Priorities
Because the responsibilities assigned to the Commission under the 1978 agreement and its amending protocol are so wide and varied, it is not possible to discharge all of them simultaneously. The IJC is required by Article VII of the agreement to “report to the Parties and to the State and Provincial Governments no less frequently than biennially concerning progress toward the achievement of the General and Specific Objectives” of the agreement “including, as appropriate, matters related to the Annexes to this Agreement”. The Commission has proposed to cover, insofar as possible, all aspects of the agreement over several biennial cycles and organizes its work accordingly, although this has not yet been accomplished. 84
In accordance with the Commission’s adoption in 1991 of the recommendations of the Roles and Priorities Task Force, the IJC’s biennial cycles under the agreement begin with the establishment of a list of priority items for work over the following two years. The list, which is established in accordance with principles set out in the report of the Roles and Priorities Task Force and which the Commission intends to review, is drawn up by the Commission in close consultation with the Great Lakes Water Quality and Science Advisory Boards, the Council of Great Lakes Research Managers, the International Air Quality Advisory Board, any task forces that may exist to deal with specific Great Lakes water quality issues, and the director of the Regional Office, with contributions from the staffs of the two sections. Specific issues are identified as priority items for the biennial period, and lead and support responsibilities are assigned to the boards, the council and task forces. The products to be completed under each item and the means of producing them are identified. For internal IJC information, resource requirements for each priority item are allocated.
During each biennial cycle, the priorities assigned and the resources allocated to each item are periodically reviewed by the Commission in consultation with the boards, the council, task forces and the Regional Office director and are adjusted as deemed necessary. During the course of their work, the boards, council and task forces each meet on a number of occasions to review the progress of their work and that of any sub-groups they may have established. In undertaking work on the items assigned to them, they may have held hearings; convened conferences, roundtables and workshops of experts on certain questions; conducted site visits; and arranged for various forms of public consultation. They rely to a substantial degree on the secretariat assistance of the Regional Office staff.
Toward the end of each biennial cycle each of the boards, the council and the task forces submit their individual reports and recommendations to the Commission. In recent years, the three reports have been assembled in one publication, along with reports by other IJC bodies working on Great Lakes water quality matters, for Commission consideration and, together with a list of the Commission’s proposed priorities for the succeeding cycle, are among the documents available for consideration and comment to participants in the Commission’s biennial forums held in the autumn of the second year of each biennial cycle.
Biennial Forums on Great Lakes Water Quality
Every second year, the Commission convenes over three or four days a biennial forum (formerly called biennial meeting) on Great Lakes water quality to hear presentations by its Great Lakes water quality institutions on their own biennial reports to the Commission; presentations by government representatives; and the views and suggestions of individual citizens and of such interest groups as industry, labour, agriculture, non-governmental environmental advocacy organizations, aboriginal peoples and others on Great Lakes water quality matters and on the Commission’s proposals for its Great Lakes water quality priorities for the succeeding two years. The forums were originally designed to allow the Commission to receive reports from its boards in public and then to allow interested members of the public to comment on the reports. In recent years, the forums have provided opportunities for the public to hear and question government officials on Great Lakes water quality matters. 85
The sites of the biennial forums alternate between United States and Canadian cities in the Great Lakes basin. Since their inception, biennial forums have been held in Indianapolis, Indiana (1983); Kingston, Ontario (1985); Toledo, Ohio (1987); Hamilton, Ontario (1989); Traverse City, Michigan (1991); Windsor, Ontario (1993); Duluth, Minnesota (1995); Niagara Falls, Ontario (1997) and Milwaukee, Wisconsin (1999). The 2001 forum will be held in Montreal, Quebec.
Although the format of the forums has varied over the years, they normally include plenary sessions, over which the Commission presides, and a number of workshops on specific relevant issues, some organized by the Commission and its boards and others organized by outside groups. All plenary sessions and most workshops are open to the public, but a few workshops are open by invitation only.
The biennial forums are the last major events in each of the Commission’s biennial cycles of work on Great Lakes water quality before, in accordance with Article VII, paragraph 3 of the Great Lakes Water Quality Agreement, it prepares its publicly-released biennial reports to governments on progress being made under the agreement. The forums are invariably lively and informative and are sometimes controversial. Views expressed and information provided at them make a valuable contribution to the preparation of the Commission’s biennial reports.
Preparation for the forums requires detailed substantive and logistical planning and substantial expenditure of Commission funds, time and effort. However, local planning committees, convened by organizations and individuals in the centres in which they are held, contribute significantly to the work involved, the generation of local interest and public participation, and the arrangement of tours and other related events. Attendance in recent years has usually been high, sometimes approaching 2,000 persons.
An important aspect of the forums is the opportunity they provide, both inside and outside the plenary sessions and workshops, to interested organizations and citizens to exchange views and information. Usually, several organizations use the opportunity to organize ancillary events and exhibits. Most of the biennial forums attract relatively strong media attention, particularly in the Great Lakes regions in which they are held.
Commission’s Biennial Reports to Governments
The Commission prepares its biennial reports to governments on Great Lakes water quality following the biennial forums, taking into account the findings, reports and recommendations that have emerged from the work of the boards, council and task forces; views, data and information the Commission may have obtained from other sources; and the expression of views by government representatives, industry, individuals, and a variety of non-governmental associations and organizations at the biennial forums.
The biennial reports are prepared pursuant to the requirement in Article VII, paragraph 3 of the agreement that it “make a full report to the Parties and to the State and Provincial Governments no less frequently than biennially concerning progress toward the achievement of the General and Specific Objectives including, as appropriate, matters related to the Annexes to this 86
Agreement.” The paragraph further stipulates that the report “shall include an assessment of the effectiveness of the programs and other measures undertaken pursuant to this Agreement, and advice and recommendations.”
The biennial reports are usually issued and publicly released in the spring of the year following each biennial forum. Copies of the biennial reports are sent to the two federal governments, to the Governors of the eight Great Lakes states and to the Premiers of Ontario and Quebec.
For most of the 1990s, the biennial reports focused heavily on the threat of persistent toxic substances and the need (pursuant to the purpose and Annex 12 of the Great Lakes Water Quality Agreement) for their virtual elimination and zero discharge and the apparent inability of existing regulatory measures to address them effectively. The Commission made a number of recommendations for the phased “sunsetting” of certain chemicals, particularly chlorinated compounds, whose presence in Great Lakes waters were, in the face of recent research, perceived to have serious implications for ecosystem health, including the health of humans, because of hormonal, developmental and reproductive disruption. Other issues covered in recent biennial reports have included RAPs and LaMPs; research and data needs; Lake Superior and zero discharge; the need for private sector initiatives; human and ecosystem health; contaminated sediment; airborne toxic pollutants; biological integrity; exotic species; radioactive substances; indicators; urbanization; contaminated sport fish; governance; communication and public participation; Coast Guard activities pursuant to certain annexes to the agreement; monitoring and information management; and government programs and responsibilities.
The Tenth Biennial Report, issued in July 2000, was prefaced by an open letter to Great Lakes leaders and the Great Lakes community which, citing specific examples, stated forcefully that, while progress had been made, the power of the vision in the Great Lakes Water Quality Agreement had not been reflected in the two governments’ implementation efforts and that, unless the governments took the actions recommended by the Commission, the purpose of the agreement would not be achieved.
The Commission’s present approach to its priority work under the Great Lakes Water Quality Agreement and for its biennial reports is to return to an earlier practice of assessing specific programs under the agreement, including a review of progress being made pursuant to the agreement’s annexes and of high profile binational programs of the governments. The IJC’s water quality institutions are also expected to inform the Commission of critical emerging issues and to provide advice on other issues they consider important under the agreement. It is also intended to continue the Commission’s efforts to incorporate indicators of progress into its assessments of progress and its biennial reports.
Following the biennial forums and usually before it issues its biennial report, the Commission, taking into account comments and suggestions made at the forums, approves in final form the priorities list and directions to the boards and council for the next biennial cycle, and another two years of work on Great Lakes water quality begins.
Response of Governments to Commission’s Biennial Reports 87
The two federal governments usually respond formally to the Commission’s biennial reports and their recommendations. These responses are prepared in cooperation with the governments of Great Lakes states and provinces and are normally released to the public.
Reviews of the Agreement
In accordance with Article X of the agreement, the parties are to “conduct a comprehensive review of the operation and effectiveness [of the agreement] following every third biennial report of the Commission”. The reviews have been conducted, but no change has been made to the agreement since the addition of the 1987 protocol. Anticipating the review following its Sixth Biennial Report in 1992, the Commission recommended in the report that the parties not revise the agreement at that time but that, “in consultation with the Great Lakes States and Provinces, [they] focus on how to improve programs and methods to achieve the requirements and overall objectives of the Agreement”. In its Ninth Biennial Report in 1998, the Commission stated its belief that the agreement was “sound, effective and flexible”, that “[r]eview and renegotiation are not necessary” and that, rather, “the Parties need to renew and fulfill their commitments and focus on implementation, enforcement and other actions, including review of institutional arrangements, to achieve the Agreement’s purpose”. 88
Special Reports
Article VII, paragraph 3 of the Great Lakes Water Quality Agreement provides that the Commission “may at any time make special reports” to the parties and to state and provincial governments and to the public “concerning any problem of water quality in the Great Lakes system”. Under the 1972 agreement, the Commission had, in February 1977, issued, as a contribution to a major review of that agreement, a Special Report on Various Aspects of the Great Lakes Water Quality Agreement. Several such reports have been issued by the Commission since the conclusion of the 1978 agreement. These have included a special report on Pollution in the Niagara River in 1981; a joint special report with the Great Lakes Fishery Commission in 1990 on Exotic Species and the Shipping Industry: The Great Lakes-St. Lawrence Ecosystem at Risk; a special report on Great Lakes Environmental Education in 1991; and Beacons of Light, a special report on successful strategies toward restoration in Areas of Concern in 1998. It also makes available to the governments copies of the reports of the Great Lakes Water Quality and Science Advisory Boards and the Council of Great Lakes Research Managers, and it has forwarded to governments such documents as the April 1996 report of its Indicators for Evaluation Task Force on Indicators to Evaluate Progress under the Great Lakes Water Quality Agreement, a 1997 report of the Nuclear Task Force on Radionuclides for the Great Lakes, and an accompanying report, issued in 1999, on the Bioaccumulation of Elements.
Governments’ State of the Lakes Ecosystem Conferences (SOLEC)
Biennially since 1994, in the years between the Commission’s biennial forums on Great Lakes water quality, the governments have convened a State of the Lakes Ecosystem Conference to provide experts and decision makers with reports on the state of the Great Lakes system and to hear the views of experts and others attending. In some respects, the SOLECs are similar to the Commission’s biennial forums, but participation is by invitation only and they are not freely open to the general public. Participants have included federal state, provincial, local and native peoples representatives; conservation, wildlife and environmental groups, representatives of industry, agriculture and commercial fishing; academics; researchers; health groups; public advisory groups and some citizens. Government-prepared background papers, including a summary Integration Paper, are issued before the conferences for discussion purposes, and workshops are convened on a variety of Great Lakes water quality issues. Each SOLEC has a central theme. The Commission and certain members of Commission staff attend. Members of the Great Lakes Regional Office have served as observers on the organizing committee. The Commission plays no major role in the conferences other than as an observer, but uses information gleaned at them in its reviews of progress under the agreement. Some months after the SOLECs, governments issue a State of the Great Lakes Report summarizing information presented at the SOLEC and providing update on previous SOLEC reports.
Charters
There are two “charters” relating to the Great Lakes. While the two charters have some similarities, their main focus is different. The IJC has endorsed neither document, but in many respects their provisions are in accord with views expressed by the Commission. 89
Great Lakes Charter. The Great Lakes Charter (Appendix 24), subtitled Principles for the Management of Great Lakes Water Resources, was signed in 1985 by the governors of the eight Great Lakes states and by the premiers of Ontario and Quebec. While not legally binding, it focuses on the use, conservation, protection and effective and cooperative management of the water resources of the Great Lakes basin with particular attention to major diversions and consumptive uses. In its statement of principles, it stresses the integrity of the natural resources and ecosystem of the basin; emphasises the importance of cooperation among local, state and provincial agencies, the two federal governments and the IJC in the study, monitoring, planning, and conservation of the basin’s water resources; expresses serious concern about new or increased diversions and consumptive uses and the need for agreement among the various jurisdictions on legislation and programs to manage and regulate diversions and consumptive uses; states that it is the intent of the signatory states and provinces that diversions “will not be allowed if individually or cumulatively they would have any significant adverse impacts on lake levels, in- basin uses and the Great Lakes Ecosystem” and that “no Great Lakes State or Province will approve or permit any major new or increased diversion or consumptive use ... without notifying and consulting with and seeking the consent and concurrence of all affected Great Lakes States and Provinces”. It commits the signatories to pursue the development and maintenance of a common base of data and information on the use and management of basin water resources and the exchange of data and information. It also commits the signatories to the creation of a Water Resources Management Committee, the development of a Great Lakes Basin Water Resources Management Program, and to concerted and coordinated research efforts.
Ecosystem Charter for the Great Lakes-St. Lawrence Basin. An Ecosystem Charter for the Great Lakes-St. Lawrence Basin was drawn up in 1993 under the coordination of the Great Lakes Commission, an organization established by the eight Great Lakes states with links to Ontario and Quebec, and is open to signature by any organization, agency or governmental jurisdiction that subscribes to its principles. The text of the Ecosystem Charter and a list of its signatories as of January 1997 are at Appendix 25. Containing a vision statement and seventeen principles, it is described as a “living document”, a “good faith agreement” and “tool” for “promoting and periodically assessing public and private sector efforts to implement an ecosystem approach”; for “information and education, offering a vision for the Great Lakes-St. Lawrence Basin Ecosystem and a means to achieve it”; and for “advocating the interests of the Basin Ecosystem and its inhabitants.” Its principles focus on ecosystem integrity and health, water quality, sustainable use, biological diversity, cooperation, partnership, education and public participation. It is not a legally binding document and is not intended to replace or otherwise affect the implementation of existing laws, agreements and policies. It has been endorsed by a large number of organizations and groups including local environment, conservation, soil and water councils and park authorities; academic institutions; government and non-government research organizations; the International Great Lakes St. Lawrence Mayors’ Conference; state delegates to the Great Lakes Commission; native peoples organizations and other groups. It has not been endorsed formally by the two federal governments. 90
Involvement of Quebec
From time to time, most frequently at the Commission’s biennial forums on Great Lakes Water quality, the question of the involvement of Quebec in the Great Lakes Water Quality Agreement has arisen. The Quebec-based non-governmental organization which most frequently raises the matter argues that, although not situated on the Great Lakes, Quebec is clearly affected by the downstream effects of activities in the lakes and that the Great Lakes and the St. Lawrence River are a single basin, despite the fact that the international section of the river ends just east of Cornwall, Ontario.
Unlike Ontario, Quebec has chosen not to enter into an arrangement with the federal government relating directly to the Great Lakes Water Quality Agreement. The Canada-Ontario Agreement (COA), being re-negotiated in 2000, serves as a framework within which the Canadian federal government and the Ontario Government can, among other things, agree on related priorities, programs and funding arrangements related to the implementation of the Great Lakes Water Quality Agreement. Quebec, while not tying itself to the Great Lakes Water Quality Agreement in a similar way, has entered into an undertaking with the federal government under the St. Lawrence Action Plan, involving monitoring, research and management in the St. Lawrence River part of the basin. It is understood that Quebec has, on more than one occasion, considered a more formal arrangement relating to the Great Lakes Water Quality Agreement but prefers not to undertake the attendant commitments with upstream jurisdictions. Quebec is, however, an associate member of the Great Lakes Commission, a compact of the eight U.S. Great Lakes states, whereas Ontario has chosen to have only observer status in that organization. The Great Lakes Commission held one of its semi-annual meetings in Montreal in the spring of 1999. On the understanding that provincial membership in the GLC has raised issues of concern to the Canadian Government, the chairman of the Canadian Section of the IJC wrote to the chair of the GLC in April 1999, suggesting that the GLC consider opening a dialogue with both the Canadian and United States governments with a view to resolving such concerns on either side.
The IJC has never commented directly on the issue of Quebec’s relationship to the Great Lakes Water Quality Agreement on the grounds that it is primarily a matter for governments. Nevertheless, the Commission has provided that at least one person from Quebec serve on its Great Lakes Science Advisory Board, and a Quebec official also serves on the IJC’s Great Lakes Water Quality Board.
The Commission did state in its Seventh Biennial Report on Great Lakes water quality in 1993 that:
“Ecologically, the Great Lakes Ecosystem clearly extends downstream from the Agreement boundary at the end of the international section of the St. Lawrence River, deep into Quebec and possibly to the St, Lawrence estuary ... This is a geographical and ecological reality requiring that, at a minimum, concern and dialogue should extend beyond the current “legal” Agreement boundaries. Whether or not these formal boundaries ... merit reconsideration at an appropriate time, from the Commission’s ecosystem standpoint, the issue will eventually need to be addressed in some manner if a fully ecosystemic approach is to be achieved.” 91
As noted earlier, the Commission will hold its biennial forum on Great Lakes water quality in Montreal in 2001.
AIR QUALITY
The IJC’s first foray into the issue of air quality came with the Trail Smelter reference in 1928 when it was asked by the two governments to investigate and report on the extent of damage in the State of Washington caused by fumes from a smelter at Trail, British Columbia, and to recommend the amount of compensation that should be paid for past damages and possible corrective measures. The Commission held hearings in 1928, 1929 and 1930. In 1931, after completing its studies, it reported to the two governments, recommending that compensation be paid to cover all damages and that remedial measures be taken to reduce smelter emissions. Although the Commission’s report and recommendations assisted substantially in the settlement of the dispute, the report, which had been unanimous, was rejected by the United States Government. In 1935, a convention was concluded between the two governments providing for the establishment of an arbitral tribunal to settle claims for damages subsequent to 1931.This case firmly established the principle of state responsibility for activities in one country that cause environmental damage in the other, and the IJC’s recommendations led to the conclusion of the Trail Smelter Convention.
The Commission did not receive another air pollution reference until 1949, when it was asked to investigate and report on the extent and sources of air pollution in the Detroit-Windsor and Port Huron-Sarnia areas and to recommend the most practical remedial measures to reduce the negative effects of smoke from vessels on the Detroit River. In 1960, the Commission reported that industrial, domestic and transportation activities on land were largely responsible for air pollution in the area and recommended objectives for smoke from vessels on the Detroit River. The governments approved the recommended objectives and asked the IJC to exercise surveillance pending the adoption of effective domestic laws. The Commission continued its surveillance until 1970, when it submitted a final report to governments.
In 1966, the governments asked the Commission to report on whether air pollution in the Detroit-Windsor/ Port Huron-Sarnia regions was detrimental to public health, safety or the general welfare of citizens or property on either side of the boundary. The IJC was asked to identify sources contributing to the problem and to recommend preventive or remedial measures. In the same reference, the IJC was also asked to take note of air pollution problems in all other boundary areas and to draw such problems to the attention of the governments. The Commission established two boards, the International St. Clair-Detroit Pollution Board, to carry out studies in that area, and the International Air Pollution Advisory Board, to inform and advise the Commission on air pollution problems in other boundary areas. After completion of the studies of the International St. Clair-Detroit Air Pollution Board, the Commission reported to governments in 1972, confirming the existence and quantifying the extent of the international air pollution problem in the Detroit and St. Clair River areas; it recommended specific air quality objectives for the region and that the governments expand their related research programs. The board was then disbanded, and the IJC’s International Air Pollution Advisory Board was directed by the Commission to extend its surveillance to include the Detroit and St. Clair River areas. 92
In a 1975 reference, the governments requested that the IJC report on a continuing basis on the state of air quality in the Detroit-Windsor and Port Huron-Sarnia areas and to place emphasis on ambient air quality trends and emissions of sulphur dioxide, suspended particulate matter and odours, as pollutants for which firm commitments had been made by the federal, state and provincial governments to achieve air quality compatible with the objectives proposed by the IJC in its 1972 report. The IJC was also asked to assess the extent and adequacy of air quality surveillance and of steps being taken to prevent, abate and control air pollution. The Commission established the Michigan-Ontario Air Pollution Advisory Board to assist it in carrying out these responsibilities. Until 1983, the IJC reported annually to the governments on air quality in the region. In 1984, it submitted its final report on the reference to the governments, notifying them of its effective completion and alerting them to emerging air pollution problems not clearly covered in the 1975 reference.
International Air Quality Advisory Board. In 1986, the Commission established the International Air Quality Advisory Board to replace the International Air Pollution Advisory Board and directed it to advise the Commission on matters of direct relevance to the transboundary aspects of air quality in the two countries. The board was instructed to keep informed about any air quality or deposition problems, including transport across the boundary, reception by the biosphere and the development of monitoring and research strategies. The board, which has ten members and a secretary from the staff of the Great Lakes Regional Office, reports to the Commission semi-annually. Its activities have included publication of a special report on transboundary air quality issues, tracking and reporting upon a wide range of air quality questions, assessing the progress of governments in developing emission inventories, promoting harmonized standards in the boundary region, and a report on integrated monitoring in the United States- Canada transboundary region in 1991. It has brought a number of issues to the attention of the Commission, which the Commission in turn has relayed to the governments. As noted earlier in this handbook, the board participates actively as well in the Commission’s work under the Great Lakes Water Quality Agreement, in the light of the impact on water quality of airborne pollutants.
The IJC’s attention was drawn once more to air pollution in the Detroit-Windsor and Port Huron-Sarnia region in 1988, when the governments asked it to resume work under the 1975 reference. The reference letters from the governments, expressing concern about potential cumulative effects of emissions of toxic and hazardous substances from incineration facilities in the area on air quality on both sides of the border, requested that, in particular, the Commission examine and report on the actual and potential hazards posed to human health and the environment from airborne emissions in the area. At the suggestion of the governments in their reference letters, the Commission established a new board on air pollution in the region, the International Air Pollution Advisory Board for the Detroit-Windsor/ Port Huron-Sarnia Region. The board reported to the Commission in December 1990 and was subsequently disbanded. Its report focused on human exposure to toxic contaminants by direct inhalation. Having held public hearings in Port Huron and Windsor in March 1991, the Commission submitted its report to governments in March 1992. The report highlighted the need for governments to implement pollution prevention programs to eliminate or phase out emissions of air toxics in the region and recommended that priority attention be focused on fifteen known carcinogens present in the ambient air. It emphasized as well the need to prohibit the emission or release to the atmosphere of toxic substances in toxic amounts and to eliminate the release of persistent toxic substances in keeping with the two governments’ 93
commitments under the Great Lakes Water Quality Agreement based upon the philosophy of zero discharge from anthropogenic sources. It drew the governments’ attention to the sparsity of data and information on the human health effects of toxic contaminants.
In its 1992 report to governments, the Commission undertook in its future work under the reference to continue to track and report on air quality trends in the region, to monitor government regulatory and other initiatives aimed at reducing emissions of airborne toxics, to investigate certain aspects of environmental effects of airborne emissions, and to continue its assessment of health risks posed by airborne chemicals with more intensive analysis of the impact of the chemicals identified in the study as well as others for which data gaps precluded further analysis at that time. The Commission also undertook to submit progress reports periodically to the governments under the reference.
Since the Commission’s 1992 report and despite the undertakings it made for future work, no further Commission reports have, as of 2000, focused exclusively on air pollution in the Detroit-Windsor/Port Huron-Sarnia region. By Commission decision of July 1992, the International Air Quality Advisory Board was requested to assume the lead role in any further studies under the reference.
The existing and potential responsibilities and activities of the Commission under the 1991 Canada-United States Air Quality Agreement are described above in the “Mandate and Functions” section of this handbook.
GREAT LAKES WATER LEVELS AND FLOWS
Great Lakes water levels fluctuate over the long term, seasonally and for shorter periods. Long term fluctuations result from persistent high or low water supplies. Supplies are defined as precipitation, runoff, and inflow from upstream rivers and lakes minus evaporation. Seasonal fluctuations result from the annual climatological cycle. Shorter period fluctuations result from storms. The long term fluctuation range varies from 3.8 feet on Lake Superior to about 6.6 feet on Lakes Michigan, Huron and Ontario. Although more than a century of records has been insufficient to reveal any regular or predictable long-term cycle, climate change may result in significantly reduced supplies in the future. The long term range of levels at various locations in the St. Lawrence River are greater than in the Great Lakes and are, for example, 5.6 feet at Ogdensburg, New York/ Prescott, Ontario; 5.5 feet at Iroquois, Ontario; 8.5 feet upstream from the power dam at Massena, New York/Cornwall, Ontario; 3.4 feet on Lake St. Francis at Summerstown, Ontario; and 7.3 feet on Lake St. Louis at Pointe Claire, Quebec. Over the past twenty-five years, water levels in Montreal Harbour have had a fluctuation range of about 12 feet.
Human activities, in addition to those affecting climate change, may also nominally affect levels and flows in the Great Lakes basin. The Boundary Waters Treaty addresses many of these. Under the treaty, activities affecting the level or flow of boundary waters require either a special agreement between the two governments or IJC approval in accordance with Articles III and VIII of the treaty. 94
There is a wide variety of projects in the Great Lakes-St. Lawrence River Basin, including diversions and other withdrawals, consumptive uses, and dredging in connecting channels, that have been undertaken by governments without IJC approval or oversight. In all, there are some fourteen significant diversions, eight of which are interbasin and six of which are intrabasin. The most significant diversions include the Long Lac and Ogoki Diversions from the Hudson Bay drainage basin into Lake Superior, which were authorized by special agreement between the governments; the Chicago Diversion from Lake Michigan to the Mississippi River system, which pre-dates the Boundary Waters Treaty; and the Welland Canal, which was originally constructed in the 19th century and then enlarged in 1932. A fuller description of diversions in the basin, their historical background and their effects can be found in the Commission’s January 1985 report, Great Lakes Diversions and Consumptive Uses, and , more up to date, its February 2000 report, Protection of the Waters of the Great Lakes.
Other than the projects described elsewhere in this section of the handbook, there is only one diversion in the Great Lakes basin, the Raisin River in eastern Ontario, which has been subject to IJC approval and continuing supervision. In 1968 the Commission issued an order of approval for the diversion of up 0.7 centimetres (25 cfs), to last up to 100 days annually, from Lake St. Lawrence to the St. Lawrence River below Cornwall/Massena to improve summer flow conditions in the Raisin River. Under the order of approval, the applicant, the Raisin River Conservation Authority, is to report the rate and quantities of diverted water monthly to the IJC’s International St. Lawrence River Board of Control, which is to be permitted to inspect the relevant structures at any reasonable time.
The IJC has had both a regulatory role and an advisory role with respect to Great Lakes levels and flows. A key requirement in both roles is to be mindful of both upstream and downstream interests, some of which may conflict, including power generation, navigation, domestic and sanitary uses, irrigation, recreational boating, industry of various kinds, riparian property owners concerns, fisheries and the environment.
In its regulatory role, the Commission has issued orders of approval in response to applications for control and remedial works.
In 1914, the Commission approved diversions of water for power generation at Sault Ste. Marie, Michigan and Ontario, and control works were built to compensate for these diversions. In 1952, it approved construction and operation of the St. Lawrence Power Project in the St. Lawrence River at Massena, New York and Cornwall, Ontario. The channel excavation required for this project also facilitated deep draft navigation from the Atlantic Ocean into the Great Lakes system. Both of these projects have made possible regulation of outflows from Lake Ontario and Lake Superior respectively.
The Commission also approved and monitors the operation of the Chippewa-Grass Island Pool Structure and the operation of the of the Lake Erie-Niagara River ice boom in the Niagara River, which is installed annually to help reduce ice damage in the river by reducing the frequency and duration of winter ice runoffs out of Lake Erie into the river. The control structure permits control of flows over Niagara Falls to meet the requirement of the 1950 Niagara River Diversion Treaty for the diversion of water from the river for power purposes. 95
In its advisory role, the Commission has been asked by the governments to conduct several major studies. Several relatively recent studies are especially noteworthy.
In 1985, in response to a 1977 reference, the Commission submitted a detailed report to governments on Great Lakes Diversions & Consumptive Uses. The report examined the effects of existing diversions, the potential to improve extremes in Great Lakes water levels by changing existing diversion flow rates, and existing and projected consumptive uses in the Great Lakes basin. It also examined a number of publicized diversion proposals and concluded that, although large-scale diversions may be technically possible, there was little public support for them, they could be undertaken only at enormous and unjustified cost, and they would have unknown but likely significant social and environmental effects. The report noted that climate change could reduce precipitation and increase consumptive uses. The report recommended, among other things, much closer monitoring of diversions and consumptive uses, that, under then-existing conditions, governments not consider manipulation of existing diversions, that they adopt better coastal zone management practices to help reduce flood and erosion damage, engage in a process of notice and consultation before approving new or changed diversions, and undertake measures to inform the public of the nature and effect of consumptive uses.
In 1993, the Commission completed a comprehensive study of fluctuating water levels in the Great Lakes-St. Lawrence River Basin pursuant to a 1986 reference from governments. Prompted by record high water levels in 1985 and 1986, the Commission was asked to examine and report upon methods of alleviating the adverse consequences of fluctuating water levels, both high and low. The Commission’s final report recommended, among other things, the continued use of the ecosystem approach in managing levels and flows; that governments use as a model for their own activities the unprecedented public involvement in the study; and that there be long-term monitoring and evaluation of the effects of water level fluctuations on wetlands, surveys of potential damage, monitoring of shoreline erosion, the creation of improved information bases, studies to improve forecasts of extreme weather conditions, consideration of shoreline measures, improved shoreline use and management, establishment by the federal governments of a binational information centre, the adoption of improved analytical bases, binational coordination and planning of a geographic information system, binational assessment of the potential impact of climate change, and comprehensive and coordinated emergency preparedness planning. The Commission recommended against the construction of additional dams and control works in the basin, but it undertook, for its own part, to review the recommendations of its study board on changes to existing regulation, but in keeping with the rules or principles set out in Article VIII of the Boundary Waters Treaty.
In early 1999, against the background of controversial private sector proposals to export water from the Great Lakes, the Commission received a reference on water uses and diversions, including bulk exports, along the boundary. The Commission submitted an interim report, Protection of the Waters of the Great Lakes, to governments in August 1999, attracting substantial media and public attention. The main thrust of the interim report’s many conclusions and interim recommendations was to point to the need for very great care in the use of the waters of the basin. Among other things, the report called upon federal, state and provincial governments not to authorize or permit any new bulk sales or removals of surface or groundwater from the basin and to exercise caution with regard to consumptive uses pending submission of the Commission’s final 96 report under the reference. That final report, submitted in February 2000, incorporated and updated the interim report, extending and, in some cases, modifying the interim report. It recommended, among other things, the application of a number of very stringent conditions to the approval of any proposal for removal of water from the basin or for new and increased consumptive uses; that transboundary disagreements be referred to the IJC under Article IX of the Boundary Waters Treaty; improved water conservation measures, consultation, data and research; implementation of commitments to reduce greenhouse gases; and efforts to allay public concern that international trade obligations could prevent the two countries from protecting waters in the boundary region. The Commission also recommended that it be given a standing reference to review its recommendations in three years and thereafter at ten-year intervals unless conditions dictate a more frequent review and that governments consider adopting an IJC-proposed plan of work for Commission activities on the rest of the border, focusing on priority issues and on specific regional issues.
Three IJC boards of control support the Commission’s regulatory role in the Great Lakes- St. Lawrence River Basin.
International Lake Superior Board of Control. The International Lake Superior Board of Control was established pursuant to a 1914 IJC order of approval issued in response to applications from Algoma Steel Corporation in Canada and Michigan Northern Power Company in the United States (now Great Lakes Power and Sault Edison respectively) for approval to divert water from the St. Marys River for power purposes and to construct a control structure with gates (“compensating works”) across the river. In granting the order of approval, the IJC specified that the levels of Lake Superior were to be maintained “as nearly as may be” between specified levels in such a manner as not to interfere with navigation. The board was established to assist the Commission in overseeing implementation of the order, and to formulate operating rules, subject to IJC approval, for the regulation of the level of Lake Superior. The U.S. Army Corps of Engineers owns, operates and maintains the United States side of the compensating works and has its own power plant, and Sault Edison pays the Corps an annual rental fee in the operation of the works. Great Lakes Power owns, operates and maintains the Canadian side.
Supplementary orders were issued in 1978, 1979 and 1985. These orders approved a request by Great Lakes Power to redevelop its hydro-electric facility at Sault Ste. Marie, introduced the objective of regulating Lake Superior and Lakes Michigan-Huron as one system, and provided for protection of the fishery in the St. Marys rapids.
The International Lake Superior Board of Control consists of one member from the U.S. Army Corps of Engineers and one member from Environment Canada. The board appointments were originally made by governments but are now made by the IJC. Since 1921, the discharge of water from Lake Superior has been governed by various regulation plans formulated by the board and approved by the IJC. The current regulation plan (1977-A) takes into account both upstream and downstream conditions. The board’s regular duties include continuous monitoring of level and flow conditions of Lakes Superior and Michigan-Huron, determining monthly outflows, conducting the annual inspection of the compensating works, and other related activities. Most of the board’s activities are performed by the board’s regulation and on-site representatives, who are appointed 97 by the board. The board meets semi-annually with the Commission and holds a public meeting annually.
International Niagara Board of Control. The International Niagara Board of Control was established in 1953 pursuant to a reference provided for in the 1950 Niagara River Diversion Treaty. The board was established to supervise construction of the remedial works and proper operation of the control structure, which were designed to preserve and enhance the falls and permit the production of additional power. The board was also to ensure that Lake Erie water levels would not be adversely affected by these works.
The responsibilities of the board were later extended to encompass all IJC dockets in the Niagara Region, described earlier in this handbook, as well as the Niagara River Ice Boom and the Peace Bridge Capacity Expansion Project.
The board has two members from Canada (at present from Environment Canada and the Ontario Ministry of Natural Resources) and two members from the United States (usually from such agencies as the U.S. Army Corps of Engineers and the Federal Energy Regulatory Commission). It also has a Canadian and a United States secretary. The Board reports semi- annually to the Commission on such topics as diversions to existing power plants and the possibility of new ones, maintenance of the desired or natural level of Chippewa Grass Island Pool, flow over the falls, gauging stations, Lake Erie levels, and the ice boom.
Most recently, the board assisted the Commission in the completion of a reference from the governments in December 1998 that it examine and report on the potential effects on the remedial works and transboundary effects, including environmental effects, of the plans of Ontario Hydro (now Ontario Power Generation Inc.) to redevelop and expand its generating facilities in the Niagara River. The reference report was submitted to governments on April 30, 1999.
Neither the Commission nor its International Niagara Board of Control has any continuing responsibility for reporting on the functioning of the 1950 Niagara River Diversion Treaty, which is the responsibility of the International Niagara River Committee, established by the two governments. The membership of the board and the committee is, however, identical.
International St. Lawrence River Board of Control. The International St. Lawrence River Board of Control was established in 1953, as provided for in the IJC’s 1952 order granting approval for the construction, maintenance and operation of certain works for the development of power in the international rapids section of the St. Lawrence River. The board’s duties included implementation of the Commission’s instructions relating to water levels and regulation of the discharge of water from Lake Ontario and the flow of water through the international rapids section of the river.
The board is highly active, meeting four to six times a year and holding frequent telephone conferences. Flows are set with the assistance of Regulation Representatives and an Operations Advisory Group, which meet weekly. Decisions on flows and levels must be unanimous. If the Regulation Representatives cannot agree, the disagreement is referred to the board. If there is disagreement among board members, the matter is referred to the Commission for final decision. 98
The board has ten members, four from Canada and four from the United States. Members have included persons from the U.S. Army Corps of Engineers, the New York Power Authority, Ontario Hydro (now Ontario Power Generation Inc.), Fisheries and Oceans Canada, the St. Lawrence Seaway Development Corporation, Environment Canada and the Province of Quebec. Personnel from Ontario Hydro and the New York Power Authority have generally been appointed “with the confidence” of their respective provincial and state governments. Recently, several board members have been appointed with expertise in environmental management.
In 1996, the IJC and the board established a Communications Committee, composed of Commission staff and board members, to develop, coordinate and implement a plan for communicating with the public on matters relating to the Commission’s and the board’s regulation activities in the St. Lawrence River.
The Commission has been under pressure from citizens groups and certain interests to amend its regulation of the flows and levels in Lake Ontario and the St. Lawrence River. In addition, the 1993 report of the Commission’s Levels Reference Study Board recommended that the Commission amend its orders of approval to reflect better the current needs of users in the system, to consider the environment in Lake Ontario and downstream in the river; to consider reducing outflows from Lake Ontario during the annual spring discharge from the Ottawa River into the St. Lawrence River; and, consistent with other requirements, to minimize the occurrence of low water during the recreational boating season. The Commission approved a “Scope of Work” for such a review, submitted by the board of control in 1996, and asked governments for their views on it. In the absence of a reply from the governments, the Commission decided in 1997 to pursue small, separable segments of the work as funding became available. This, however, proved unsatisfactory and, in 1999, the Commission submitted to governments a Plan of Study for Criteria Review in the Orders of Approval and strongly recommended that the governments provide the funds required to implement it. 99
ST. CROIX RIVER
The Commission has both regulatory and advisory roles in relation to the St. Croix River pursuant to several applications and references. The IJC’s regulatory role in the St. Croix River began in early 1915 with applications for approval of a dam across the river at Grand Falls and for the diversion of the waters of the river for electric power generation in the State of Maine. Subsequently, other orders of approval were issued for dams at Forest City, Vanceboro, Grand Falls and Milltown. An International St. Croix River Board of Control, established in 1915 and composed of one Canadian member and one United States member, assisted the Commission in overseeing the orders. In 1999, the Commission completed a review of all of the orders, deciding not to amend them.
In 1955, the Commission was given a reference with respect to the water quality of the St. Croix River with a view to the restoration of runs of anadromous fish. Pursuant to the reference, the Commission was authorized to monitor water quality in the river and, at the request of the two governments, established in 1962 the International Advisory Board on Pollution Control - St. Croix River, composed of three Canadian and three United States members, to assist it. International St. Croix River Board. In 2000, the Commission decided to amalgamate the two boards into a single International St. Croix River Board to perform the combined functions of its predecessors.
SAINT JOHN RIVER
In 1926, the Commission issued an order of approval for the construction of a dam by the Saint John River Power Company for hydroelectric power development at Grand Falls on the Saint John River. Although the order remains in force, the Commission has not established a board to oversee compliance with the conditions it set in the order. As of 2000, there has been no other IJC involvement with the river.
RICHELIEU RIVER-LAKE CHAMPLAIN
Since the 1930s, the Commission has received two references and two applications relating to Richelieu River-Lake Champlain. There has been no significant IJC activity in the basin since the mid-1970s. It is mentioned here solely to indicate that there has, in the past, been Commission involvement in the basin.
RAINY LAKE/RAINY RIVER/LAKE OF THE WOODS
As described above in the “Mandate and Functions” section of this handbook, following investigations carried out by the Commission in response to a 1926 reference and the submission of a report to the two governments in 1934 on regulation for various purposes of the levels of Rainy Lake, Namakan Lake and boundary waters above Namakan Lake, the governments concluded the 1938 Rainy Lake Convention. The convention, which came into force in 1940, gave the IJC the power to determine when emergency conditions, whether low or high water, exist in the Rainy Lake watershed and to adopt such control measures as it deems proper for dams in the watershed in the event it determines that such emergency conditions exist. The existing dams are 100 currently owned by two major forest products companies, Boise Cascade Corporation in the United States and Rainy River Forest Products in Canada.
International Rainy Lake Board of Control. An International Rainy Lake Board of Control was established by the Commission in 1941 to assist the Commission in the fulfilment of its responsibilities under the convention. It has two members, one from Canada and one from the United States, who were are also the two members of the International Lake of the Woods Control Board (see below).
In 1949, after detailed study and recommendations by the board, the Commission issued an order prescribing the method of regulating Rainy and Namakan Lakes. The order was revised in 1957, 1970 and again in 2000.
International Rainy River Water Pollution Board. Pursuant to a 1959 reference on transboundary pollution of Rainy River and Lake of the Woods, the Commission was authorized to establish and maintain continuing supervision over Rainy River pollution and created the International Rainy River Water Pollution Board to monitor water quality in the river. The board has four members, two from Canada and two from the United States.
Lake of the Woods Control Board. A Lake of the Woods Control Board was established by the two governments with the conclusion of the Lake of the Woods Convention and Protocol of 1925 (see “Mandate and Functions” section above) but it is now regarded as a creature of the IJC. The board has two members, one from Canada and one from the United States. It reports to the IJC annually. Its members are also members of the International Rainy Lake Board of Control. It is responsible for regulating the level of the lake as specified in the convention.
As of September 2000, the Commission is considering various options for the amalgamation of the International Rainy Lake Board of Control, the International Rainy River Water Pollution Board and the Lake of the Woods Control Board.
SHOAL LAKE
In 1913, the Greater Winnipeg Water District applied for the use of water from Shoal Lake and Lake of the Woods for domestic and sanitary purposes. The Commission granted an order of approval in January 1914, specifying that the diversion should not exceed 100 million imperial gallons per day (186 cubic feet per second). No board was established to oversee compliance with the order.
SOURIS/RED RIVERS
International Souris River Board of Control. Pursuant to a 1940 reference from the two governments, the Commission was asked to assist in the implementation of interim measures for the apportionment of the waters of the Souris River. The International Souris River Board of Control was established to monitor compliance with these interim measures. Composed of six members, three from Canada and three from the United States, the board reports annually to the Commission in the spring. 101
In February 1992, pursuant to the conclusion in 1989 of the Agreement for Water Supply and Flood Control in the Souris River Basin (see “Mandate and Functions” section above), which enabled the construction of the Rafferty and Alameda Dams in Canada and improvements to a number of structures in the United States, and which provided for revision of the 1959 interim measures for the apportionment of the waters of the Souris River at the Saskatchewan-North Dakota boundary, the governments asked that the board begin monitoring compliance with the new measures. In 1994, the board informed the Commission that it had discovered an ambiguity relating to certain words in paragraph 1 (a) (I) of Annex B of the 1989 agreement relating to the level of Lake Darling and the flow at the Sherwood crossing. Saskatchewan and North Dakota interpreted the paragraph in different ways. The board asked the Commission to address the issue, and the Commission wrote to the governments in October 1994 to seek clarification. It is understood that the meaning of the paragraph has been agreed in meetings between officials of the federal, Saskatchewan and North Dakota governments, but the results of those deliberations, to be the subject of an exchange of notes between the two federal governments, have not yet been communicated to the Commission.
The Commission established an International Souris-Red Rivers Engineering Board in 1948 in response to a reference from governments which requested that the Commission investigate and make recommendations on several matters (including water requirements, further uses and apportionment) and prepare plans of mutual advantage to the two countries for the waters of the river basins bisected by the international boundary from the eastern boundary of the Milk River drainage basin on the west up to and including the drainage basin of the Red River on the east. The Commission never submitted a final comprehensive report in response to the 1948 reference, but the board was, in the years since its establishement, involved in numerous issues in the Souris-Red Rivers basin, including Red River flooding and dyking problems; water supplies and storage possibilities on the Souris and Pembina Rivers; apportionment of the waters of the Souris River basin; Poplar River apportionment; the Garrison Diversion Unit proposal; and the proposed Burlington dam.
Recently, the board’s role has been to monitor and keep the Commission informed of developments in the basin, including the Devil’s Lake Project; the Garrison Diversion Unit; the Souris River Basin Project, including the multiple-purpose Rafferty and Alameda dams and reservoirs in Saskatchewan; developments in the Red-Assiniboine Rivers basin; Pembina River flooding; and other water development projects.
In 2000, the Commission decided that the International Souris River Board of Control would assume the responsibilities of the International Souris-Red Rivers Engineering Board with respect to the Souris River.
An IJC International Red River Pollution Board was established in 1964 in response to a reference from the governments which requested that the Commission inquire into and report on whether the waters of the Red River were being polluted to an extent which was causing or was likely to cause injury to health or property on the other side of the boundary and, if the answer was affirmative, to what extent, by what causes, and where such pollution was taking place, and what remedial measures would be most practicable from the economic, sanitary and other points of 102
view. The board reported to the Commission on the reference in 1967, and, after public hearings, the Commission reported to the governments in 1968, recommending water quality objectives for the river at the boundary. The Commission’s recommendations having been accepted by all jurisdictions concerned, the board was requested to provide continuous surveillance of the water quality of the river at the boundary, taking an ecosystemic approach to transboundary concerns in the Red River basin, including the health of the transboundary ecosystem.
International Red River Board. In 2000, the Commission decided to consolidate the tasks of the International Red River Pollution Board and of the Souris-Red Rivers Engineering Board with respect to the Red River in a single newly-named International Red River Board .
International Red River Basin Task Force . The International Red River Basin Task Force was established in 1997, following record flooding in the Red River basin in the spring of that year, to assist the Commission in responding to a reference from the two governments of June 1997 asking the Commission to examine and report on the causes and effects of damaging floods in the Red River basin, and to make recommendations on means to reduce, mitigate and prevent harm from future flooding in the basin. The Task Force was composed of ten members, five from Canada and five from the United States.
An interim report was submitted to the governments on December 31, 1997, but funding difficulties caused delay and curtailment of the studies required. The Task Force submitted its final report to the Commission in April 2000. The Commission's final report to governments on the reference is to be submitted by December 31, 2000.
ST. MARY AND MILK RIVERS
At present, the IJC’s activities with respect to the St. Mary and Milk Rivers are administrative and regulatory. As noted earlier in the “Mandate and Functions” section of the handbook, the apportionment of the waters of the St. Mary and Milk Rivers was an important issue in the conclusion of the Boundary Waters Treaty of 1909.
Accredited Officers. Article VI of the Boundary Waters Treaty provides for the equal apportionment of the waters of the two rivers to be supervised by Accredited Officers, appointed by the two governments “under the direction of the International Joint Commission”. The Accredited Officers report at least annually to the Commission on measurement and apportionment activities in the basin.
Confronted with difficulties in the interpretation of Article VI of the Boundary Waters Treaty, the IJC, after holding public hearings in 1915 and 1921, issued a clarifying order in 1921. When, in 1927, the United States applied to the Commission to re-open the clarifying order, the request was not supported by Canadian commissioners. Divided equally on national lines, the two sections of the Commission made separate confidential reports to their respective governments. This was the first of the only two occasions on which the IJC has, as of 2000, been so divided.
In 1982, the question of the apportionment of the waters of the southern tributaries of the Milk River was referred by the Accredited Officers to the Commission for decision. In 1986, the 103
Commission agreed, in principle, that the issue of the use of the southern tributaries should be addressed in an informal and pragmatic manner. A task force of officials from state, provincial and federal agencies was instructed to undertake discussions with ranchers and farmers in both countries to reach an early solution. The task force was successful in a number of technical areas, but a pragmatic solution was not found. The Commission, with the assistance of the Accredited Officers, continues to monitor the situation.
Alberta has recently expressed its desire for a formal structure to allow it to make its views known on water management and apportionment issues, and it is understood that Saskatchewan shares this desire. Montana claims that it is developing consultative processes informally. It has not, however, been suggested that the role of the Accredited Officers or of the Commission be changed.
OKANAGAN BASIN
In 1980, the State of Washington sought the IJC’s approval to construct works to replace a deteriorating control structure (Zosel Dam) that regulated the levels of Osoyoos Lake on the Okanagan River. The old structure had been retroactively approved by the Commission in 1947 and operated under the supervision of an IJC board of control. After consideration of the proposal and public hearings, and taking into account a cooperation plan for Osoyoos Lake levels and transboundary flows prepared by the Washington Department of Ecology and the British Columbia Ministry of the Environment which accompanied the proposal, the Commission issued an order of approval in 1982. The order was amended in 1985 and is subject to review twenty-five years thereafter.
International Osoyoos Lake Board of Control . The International Osoyoos Lake Board of Control oversees implementation of the order. The board is composed of six members, three from Canada and three from the United States. It reports annually to the Commission and also provides the Commission with a monthly report on daily lake levels and flows.
One of the board’s responsibilities is to issue drought declarations and to remove them when criteria set out in the order apply. When these declarations are issued, the State of Washington may raise the level of Osoyoos Lake above those that apply during normal conditions. In 1993 and 1994, Washington and British Columbia signed a memorandum of understanding that, under a drought declaration, Washington would limit raising the level of the lake to elevation 912.5, and British Columbia would supply an amount of water equivalent to the unused storage from their upstream reservoirs upon Washington’s demand. While this process has kept complaints to a minimum, the board has indicated to the Commission that the drought criteria specified in the 1982 order may require revision. A drought was declared in the spring of 1998, but the declaration was withdrawn a few weeks later when conditions changed.
In 1992, a riparian property owner in Canada, Mr. Ivo Tyl, filed a claim in the British Columbia Provincial Court for the recovery of damages allegedly caused by flooding from the operation of Zosel Dam. After being informed that the Commission is immune from suit, Mr Tyl tried unsuccessfully to recover damages from the State of Washington. In 1998, the Commission determined that Mr. Tyl was not entitled to recover damages under the Commission’s order. 104
In 1999 and 2000, the Town of Osoyoos passed resolutions which, in effect, request a review of the Commission’s order for Zosel Dam. The Commission is seeking clarification of the town’s views.
COLUMBIA/KOOTENAY RIVERS
At present, the IJC’s role with respect to the Columbia and Kootenay Rivers is entirely regulatory. The Commission has never been called upon to resolve differences between the two countries about the Columbia River Treaty of 1961 as provided for in Article VI of the treaty. (See “Mandate and Functions” section above.) The Commission has two boards of control in the region, one for each of the two rivers.
International Columbia River Board of Control. The International Columbia River Board of Control was established by a 1941 IJC order, which gave retroactive approval to the construction and operation of the Grand Coulee Dam, already being built, and its reservoir, Franklin D. Roosevelt Lake, on the Columbia River in the State of Washington. At certain stages, the reservoir could raise water levels at the boundary by 2.5 feet. The order provides that the board conduct studies of the effect of the dam and the reservoir on the levels of the river at the boundary and above the boundary in Canada, and that it ensure compliance with the order. The order also contained provisions relating to fisheries management in the reservoir that have not been studied by the board.
The board has two members, one from the U.S. Geological Survey and one from Environment Canada. It reports annually to the Commission and usually conducts its business by telephone. Its reports indicate that the increase in water levels has been minimal.
The 1941 order also stated that the owners of the then-proposed Waneta power plant, on the Pend d’Oreille River in British Columbia just north of the boundary, might apply to the Commission for relief if the plant’s output were curtailed by backwater from the Grand Coulee dam. The Commission issued an order of approval for the construction of the Waneta dam in 1952 but retained the right to make further orders on the application of the plant owners or of any parties with injury claims, but no complaints have been received so far. The 1952 order also reserved the right of the United States to develop for power or other purposes the waters of the Pend d’Oreille regulated by storage reservoirs lying entirely in the United States.
The IJC’s International Columbia River Board of Control should not be confused with the Permanent Engineering Board established under the Columbia River Treaty. That board reports direct to the governments and is separate from the IJC.
The Columbia River Treaty also made provision for the construction of Libby Dam and reservoir and requires that the operation of its storage be consistent with any IJC order which may be in force from time to time relating to the levels of Kootenay Lake. A dispute over the operation of Libby Dam has now been resolved by intergovernmental agreement.
International Kootenay Lake Board of Control. The International Kootenay Lake Board of Control was established by a 1938 IJC order of approval, issued in response to an application 105 from the West Kootenay Power and Light Company for approval of both completed and proposed works in connection with the Corra Linn development for the storage of water in Kootenay Lake. The application included a request that the company be permitted to operate the Corra Linn dam at Granite, British Columbia to store six feet of water in the lake and to excavate the outlet of the lake at the Grohman Narrows. The order stipulated that the works be operated subject to a number of conditions and also provided for financial compensation to the farmers along the river in Idaho to a maximum of $3,000 per annum, subject to certain conditions.
The board is also responsible for overseeing orders of approval issued in response to applications from the Creston Reclamation Company, the Duck Lake Dyking District and the Creston Wildlife Management Area to construct and improve dykes adjacent to the channel of the Kootenay River and in the Duck Lake area for the reclamation of flooded lands. Concern has been expressed, and drawn to the attention of the governments, about possible safety risks paused by several eroded dykes, for which the Commission has issued orders of approval, and about the encroachment of development onto the Kootenay Lake flood plain.
The board has four members from the U.S. Army Corps of Engineers, the U.S. Geological Survey, Environment Canada and the British Columbia Ministry of the Environment. It reports to the Commission annually. Generally, the board meets only once a year, usually in conjunction with a public meeting, but has telephone and electronic mail exchanges as needed.
HEALTH PROFESSIONALS TASK FORCE
The Commission established a Health Professionals Task Force in 1995 , with equal numbers of Canadian and United States members. The Task Force’s mandate will expire in 2005 unless renewed. It provides advice to the Commission on the implications of research in the fields of health and the environment for the Commission to consider in its own recommendations to governments and seeks to enhance the awareness among health professionals of the relationship between the environment and human health. Its activities have included production of a quarterly newsletter, Health Effects Review, distributed both on the IJC web site and in hard copy to IJC board members and to a variety of organizations and individual health professionals, and the preparation of curriculum modules for health professionals. Its current terms of reference are at Appendix 26.
THE IJC AND THE 21ST CENTURY
In 1997, in the context of a meeting in Washington between the Prime Minister of Canada and the President of the United States, the two governments affirmed that the Commission, under the Boundary Waters Treaty and the Great Lakes Water Quality Agreement and through its various boards, “has assisted the United States and Canada in establishing the best environmental relationship of any two countries in the world” and reaffirmed “commitment to the IJC and its important role in fostering cooperative action in support of the health and well-being of their citizens and the natural ecosystems along the border.” They directed the Commission “in consultation with government and others that the IJC deems appropriate, to examine its important mission in the light of relevant agreements and references, and to provide to the parties, within the 106 next six months, proposals on how the Commission might best assist the parties to meet the environmental challenges of the 21st century within the framework of their treaty responsibilities”.
The Commission’s report in response of October 21, 1997 set out the following five proposals for the provision by the Commission of greater assistance to the parties in meeting future transboundary environmental challenges in addition to continuing its existing activities under the Boundary Waters Treaty.
• A reference from the parties to authorize the Commission to establish ecosystem-based international watershed boards from coast to coast to prevent and resolve transboundary environmental disputes.
• The initiation of broad studies of transboundary water quantity and quality, air quality, and the data required to keep the foregoing matters under review.
• The review of existing IJC orders governing levels and flows of transboundary water resources to determine whether amendments are required in the light of changed circumstances in the watersheds concerned.
• A reference from the parties asking the Commission to examine and make recommendations with respect to the decommissioning of nuclear reactors, interactions of toxic chemicals and radiation in the ecosystem, and the extent to which using low-sulphur coals in electric power generation could increase the dispersion of nuclear materials.
• Biennial reports on the state of the transboundary environment, based on advice received from Commission institutions, through public consultation, including public meetings along the border, and from other sources, with the report to be submitted in person by commissioners to the appropriate cabinet-level officials of the two countries and also to be presented or otherwise made available to provincial and state governments and to the public in an appropriate form.
In November 1998, in response to its first proposal, the Commission received identical letters from the two governments informing it that at their meeting in Ottawa on March 10, 1998, the Secretary of State of the United States and the Minister of Foreign Affairs of Canada had “welcomed the recommendations of the report, and accepted in principle the proposal to establish international watershed boards that would adopt an integrated, ecosystem approach to transboundary environmental issues” and asking the Commission “in consultation with the two federal governments and with the relevant states and provinces, and with tribes, First Nations, and local interests, as appropriate” to carry out specific tasks pursuant to the proposal. The Commission is actively pursuing the request.
As earlier noted, the Commission has, on its own initiative, undertaken reviews of its St. Croix and Rainy orders and has recommended to governments that they make the necessary resources available to implement a plan of study to review the Commission’s St. Lawrence River- Lake Ontario order of approval. 107
IX. BIBLIOGRAPHY
A bibliography listing the principal books, papers and articles that have been published about the Commission is provided at Appendix 27. A number of other papers, prepared for the Commission and not published but particularly helpful include:
• An Annotated Digest of Materials Relating to the Establishment and Development of the International Joint Commission prepared in 1967 for the Commission by F.J.E. Jordan. It is an excellent source of information about the negotiation of the Boundary Waters Treaty and the establishment of the Commission. It also contains an extensive bibliography. As it cites and quotes from government documents that were classified at the time, it is marked restricted for use to the Canadian Department of External Affairs (now Foreign Affairs and International Trade), the United States Department of State and the International Joint Commission.
• Review of Orders of Approval Issued by the International Joint Commission from 1910 (sic) until the Present, prepared in 1975 for the Canadian Section of the Commission by M.H. Wershof, former Legal Adviser in the Canadian Department of External Affairs.
• Notes on the Jurisprudence of the International Joint Commission also prepared in 1975 for the Canadian Section by M.H. Wershof. Both of the Wershof papers are labelled “Restricted-Official Use Only”.