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Canada-United States Law Journal Volume 30 Issue Article 24 January 2004 Environment: Garrison Dam, Columbia River, the IJC, NGOs Proceedings of the Canada-United States Law Institute Conference on Multiple Actors in Canada-U.S. Relations: Environment: Garrison Dam, Columbia River, the IJC, NGOs Nigel Bankes Follow this and additional works at: https://scholarlycommons.law.case.edu/cuslj Part of the Transnational Law Commons Recommended Citation Nigel Bankes, Environment: Garrison Dam, Columbia River, the IJC, NGOs Proceedings of the Canada- United States Law Institute Conference on Multiple Actors in Canada-U.S. Relations: Environment: Garrison Dam, Columbia River, the IJC, NGOs, 30 Can.-U.S. L.J. 117 (2004) Available at: https://scholarlycommons.law.case.edu/cuslj/vol30/iss/24 This Speech is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Canada-United States Law Journal by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. ENVIRONMENT: GARRISON DAM, COLUMBIA RIVER, THE IJC, NGOS t Nigel Bankes Canadian Speaker Thanks for that introduction, Brad, and thanks for the invitation to be here to speak today. I want to commence my remarks by relating a conversation I had with the Immigration Officer yesterday at Calgary International Airport, who seemed to be unusually interested in why I was heading down to the U.S. I told him I was going to speak on the Columbia River Treaty. He ex- pressed tremendous surprise there was, in fact, a Treaty relating to the Co- lumbia River. Then the real kicker question was "what does it allow you (i.e. Canada) to do to us (i.e. the United States)?" I thought that was an interest- ing encapsulation, particularly if you are familiar with some of the terms of the Columbia River Treaty and its co-operative and coordinated approach to the development of the waters of the Basin. I want to start with some preliminary observations that will help set the scene for considering the idea of multiple actors within the Basin I will then talk about the Columbia River Treaty itself.' I will focus on what the issues have been since 1964. My argument is, while we may know the terms of the Treaty, we must analyze what has happened since it entered into force. What have been some of the issues that the parties have had to address? t Nigel Bankes is a Professor of Law at the University of Calgary where he teaches or has taught courses in property law, aboriginal law, natural resources law, energy law, oil and gas law and international environmental law. He is a graduate of the universities of Cambridge and British Columbia. Prior to joining the Faculty of Law in Calgary in 1984, he was a re- search associate at the Canadian Institute of Resources Law. He was Professor in Residence at the Department of Foreign Affairs and International Trade in Ottawa from 1999-2000. He is co-editor of Canadian Oil and Gas and a contributing editor to the Mineral Law Newsletter of the Rocky Mountain Mineral Law Foundation. He has written a number of articles on the Columbia River Treaty and is a member of the Water Initiatives Advisory Committee of the Columbia Basin Trust. 1 See Nigel Bankes, The Columbia Basin and the Columbia River Treaty: Canadian Per- spectives in the 1990s, NORTHWEST WATER LAW AND POLICY PROJECT RESEARCH PUBLICATION P095-4 (1996). CANADA-UNITED STATES LAW JOURNAL [Vol. 30:117 SOME PRELIMINARY OBSERVATIONS First, while the Columbia River Treaty was and is very much a state-to- state agreement governed by rules of public international law, it was also clear when it was negotiated there would have been no Columbia River Treaty without the active support of the government of the Province of Brit- ish Columbia Second, while in the context of the times the public review and ratifica- tion process (involving hearings conducted by the Water Comptroller in Brit- ish Columbia and parliamentary committee hearings in Ottawa) was actually quite extensive there was little opportunity for participation by non-state ac- tors. Indeed the public was seen as "people in the way" as the title of a book2 by Professor Wilson puts it in a text that looks at those who were to be dis- placed as a result of the construction of the dams associated with the Treaty. Third, while the focus of the Treaty in 1964, was very much power and flood control,3 times have changed and different values have assumed in- creased importance within the Basin. These values include fish values and values associated with recreation and aesthetic concerns. While the debate on the original values of power and flood control was dominated by an ex- clusive club that was knowledgeable about these issues including the Bonne- ville Power Administration, British Columbia Hydro as well as private utili- ties, a plurality of different actors has emerged as the scope of the debate has broadened. These new values are championed by a range of actors including fisheries managers in both the United States and Canada, Environmental Non-governmental Organizations (ENGOs), regional authorities, and some newly constituted regional authorities like the Columbia Basin Trust in Can- ada and the longer standing Northwest Power and Conservation Council in the United States, as well as the tribes, and First Nations. These actors have used a variety of strategies and opportunities to articulate their concerns and bring them to the table. Often those strategies have involved the use of do- mestic law, the Fisheries Act in Canada,4 and even more dramatically, the Endangered Species Act in the United States,5 but the strategies also include international institutions such as the CEC, as we heard earlier. I disagree with Professor Schaffer to some extent (insofar as he suggests that petitions are launched by persons within the state against whom the peti- 2 JAMES WOOD WILSON, PEOPLE IN THE WAY: THE HUMAN ASPECTS OF THE COLUMBIA RIVER PROJECT (University of Toronto Press 1973). 3 See Columbia River Basin: Cooperative Development of Water Resources, Sept. 16, 1964, U.S.-Can., 15 U.S.T. 1555 (hereinafter Columbia River Treaty). 4 Fisheries Act, ch. LX, 1868 S.C. (31 Vict.) 177 (Can.) (hereinafter 1868 Act). See also Fisheries Act, R.S. ch. F-14 (1985) (Can.) (hereinafter 1985 Act). 5 Endangered Species Act, 16 U.S.C. §§ 1531 et seq. 2004] Bankes-Environment tion is launched) because one of the factual records that we have seen so far was a factual record about Canada's alleged non-enforcement of Section 35- 1 of the Fisheries Act.6 That petition was presented by both U.S. and Cana- dian NGOs.7 Fourth, while we have seen a range of new actors take the stage, one set of actors has remained dominant in the basin. This set of actors comprises the so-called "entities". These entities are the operating entities designated by the two national governments under the terms of Article XIV(1) of the Columbia River Treaty, B.C. Hydro, the Bonneville Power Administration and the Army Corps of Engineers.8 Fifth, my own assessment, and I think the assessment of most commenta- tors, is that the basic story of the Columbia River Treaty is a success both in terms of its negotiation and its implementation. It is a success story precisely because those who have been engaged in treaty negotiation and implementa- tion have been asking somewhat different questions than those put to me by the United States Immigration Officer yesterday. Their focus has always been to try to identify the cooperative win-win solutions. Here is a map of the basin. Note that while only 15 percent of the basin is within Canada, 30 percent of the flows originate in Canada. The main stem of the Columbia rises in Columbia Lake. As we move downstream, the map identifies the key mainstem dams including Mica, Revelstoke and Keenley- side South of the border is the massive Grand Coulee Dam constructed in the 1940s as well as string of dams below that site. 6 Chris Tollefson, Games Without Frontiers: Investor Claims and Citizen Submissions Under the NAFTA Regime, 27 YALE J. INT'L L. 141, 169 (2002). 7 Id. 8 Columbia River Treaty, Jan. 17, 1961, art. 14(1), United States-Canada, 15 U.S.T. 1555. T.I.A.S. No. 5638. CANADA-UNITED STATES LAW JOURNAL [Vol. 30:117 Figure 1. Columbia River Basin Of AJ Source: U.S. Army Corp of Engineers, Northwest Division, Fish Management Office, avail- able at: http://www.nwd.usace.army.mil/ps/colrvbsn.htm. One of the most notable consequences of Grand Coulee is that that dam cut off the escapement of salmon to the entire upper Columbia Basin.9 Prior to the dam, salmon used this entire basin all the way up to Windermere and Columbia Lakes at the source of the Columbia. As a result, the only salmon in the Canadian portion of the basin are in the Okanagan system where there is a small population of sockeye. The other main tributary with which we are concerned is the Kootenay. The Kootenay rises in the Canadian Rockies, heads south to Libby Dam, before heading north back up to Canada and into Kootenay Lake, before joining the main stem of the Columbia 29 miles north of the boundary. Be- low Kootenay Lake, there are a number of important Canadian dams includ- ing Corra Linn and Brilliant. 9 Michael C. Blumm & Brett M.

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