It will be observed that this note dated the 23rd was only received by
the Legation yesterday. In this connection I may call the Department’s
attention to the fact that the note appears to be substantially in
accord with the view expressed to me by the Under Secretary of State for
External Affairs as reported in the despatch under reference.
[Enclosure]
The Canadian Secretary of State for External
Affairs (Mackenzie
King) to the American
Minister (Phillips)
Sir: I have the honour to refer to your
letter of July 29th, 1927,68 of which
acknowledgment was made on August 2nd, inviting the attention of the
Canadian Government to certain phases of the measurement and
apportionment of the waters of the St. Mary and Milk Rivers and
their tributaries. I note that it is the view of the United States
Government that Article VI of the Boundary Waters Treaty primarily
contemplated an equal division of the water of the St. Mary and Milk
Rivers between the two countries, and that such equal division is
not effected by the Order of the International Joint Commission of
October 4th, 1921. It is further noted that the United States
Government has brought this matter to the attention of the Chairman
of the United States Section of the International Joint Commission,
with a request that the matter should be re-opened and that the
Canadian Government is requested, if it concurs in the views
expressed in regard to the interpretation of Article VI of the
Treaty, to cause the Canadian Section of the Commission to be so
informed.
The Canadian Government is deeply concerned that the integrity of the
system created by the Treaty of 1909 should be maintained at full
strength, and it is confident that the United States Government
shares this anxiety. At that time, after careful study of conditions
along the boundary conducted by the International Waterways
Commission and after extensive interchanges of views, the two
Governments finally negotiated this important agreement. They
established a set of general principles, and an international
tribunal entrusted with the high task of applying these principles
to specific questions arising from time to time between the two
countries, with a fair assurance that they would be determined with
something of that finality and certainty which the domestic courts
of each country achieve in their sphere. This great act of state on
the part of the two countries in reality broke new ground; it
represented at the time a notable advance in the conduct of
international relations. The worth of the system has been abundantly
proven, not only out of its own experience of now nearly twenty
years, but by the adoption of analogous methods in other regions of
the world. It has naturally resulted in a growing body of practice
and habit of a character appropriate to the exercise of these
weighty arbitral functions, and it can scarcely be doubted that it
remains a major interest of the peoples of this continent that
[Page 101]
this system and this
character of its practice should be perpetuated in every way.
It seems clear to the Canadian Government that if the settlement of
any given issue reached under this system could be regarded as
subject to being re-opened at any time at the simple request of
either party, there could be no hope of finality or of certainty,
and the integrity and usefulness of the whole system would be
gravely endangered. If the re-opening of such an award is ever
justifiable at all, it would seem that such a course could be
justified by nothing less than a new situation arising from new
conditions, which were not in existence at the time of the award,
which could not reasonably have been contemplated at the time, and
which are of a character to render the award a substantial denial of
justice. In the present case, no such conditions have arisen; there
is simply the proposal that the Commission should reconsider a point
of interpretation upon which the two Governments held different
views at the original hearings and which was fully debated and in
the end was finally settled as part of the award of the Commission,
though not completely in the sense urged by either Government. This
decision of the Commission has been acted upon by both Governments
over a long period, and in reliance upon it, important capital
investments have been made.
While the Commission’s Order did not concede all that Canada had
contended for, Canada has nevertheless accepted the Order as a final
settlement of what had been a vexed and contentious international
question, and has proceeded to utilize to the full her share of the
apportioned water, and to authorize the necessary investment in
connection therewith. Irrigation development which had been hampered
and held up because of uncertainty as to water supply, has since
been proceeded with to the limit of the Canadian allotment.
In view of these considerations, the Canadian Government feels the
re-opening of this matter in the manner proposed would be
unfortunate, and regrets therefore that it cannot see its way to
join in a request that the International Joint Commission should
reconsider its decision.
These conclusions are based upon general considerations as to the
character and procedure of the awards of the International Joint
Commission, which appear to make it unnecessary to examine in detail
the reasons advanced in favour of re-opening this specific question.
Reference, however, may be made to the view expressed in the
Secretary of State’s letter of July 26th, 1927, that the Boundary
Waters Treaty primarily contemplated an equal division of the waters
of the St. Mary and Milk Rivers between the two countries, and that
in view of the unequal apportionment of the flow of the St. Mary
River set forth in the Order of October 4th, 1921, it is apparent
[Page 102]
that an equal division
of the waters is not effected. Article 6 of the Boundary Waters
Treaty provides that the St. Mary and Milk Rivers are to be treated
as one stream for the purposes of irrigation and power, and the
waters divided equally between the two countries. It is, however,
further provided in this Article that in making such an equal
apportionment, more than half may be taken from one river and less
than half from the other by either country so as to afford more
beneficial use to each, and that in the division of the waters
during the irrigation season certain priority shall be accorded to
the United States as regards the Milk River and to Canada as regards
the St. Mary River. It is therefore not apparent how a reference to
the one clause alone in the Commission’s Order of 1921, providing
for an unequal division of the waters of the St. Mary River, with
the major portion allotted to Canada, without taking account of the
provision for an exactly corresponding unequal division of the
waters of the Milk River, with the major portion allotted to the
United States, or account of the other provisions of the Order in
question, could in any way be held to establish the view that the
Order of the Commission was not consistent with the Treaty.
The Canadian Government appreciates the desirability of ensuring as
large a volume of water from the rivers in question as is
economically feasible for users on both sides of the boundary. In
this connection it wishes to refer to the fact that under present
conditions there is considered to be a large waste of water. The
International Joint Commission on October 6th, 1921, recommended to
the two Governments consideration of the construction of certain
reservoirs which would make it possible to conserve practically the
entire winter flow and flood waters of the two streams, and ensure
the greatest beneficial use to both countries. On April 10th, 1922,
the Secretary of State of the United States, in a communication to
the British Ambassador at Washington,69 suggested that as the first step towards
the determination of any action which should be taken upon these
recommendations, a joint board of engineers should be appointed to
make a thorough study of the problems involved in the construction
of the proposed reservoirs and the storage and distribution of the
waters of the St. Mary and Milk Rivers. Some difficulty was felt in
Canada on the ground that the recommendation involved the
expenditure of Canadian funds on works to be constructed in the
United States, and no definite conclusion was reached. While the
Canadian Government still adheres to the reservations expressed in
the course of this correspondence, it believes, as a result of
subsequent preliminary enquiry, that it might be possible to reach a
solution. It would therefore be prepared to consider with the
Government of the
[Page 103]
United
States the formation of such a joint board to make a thorough study
of the problem involved in the construction of storage reservoirs in
both countries designed to increase the volume and regularity of the
flow, particularly during the irrigation season, of the waters of
the St. Mary and Milk Rivers, the apportionment to continue to be on
the basis established by the International Joint Commission in its
Order of the 4th October, 1921.
The Canadian Government is bringing to the attention of the
International Joint Commission its views as set forth in this
despatch.
Accept [etc.]
