Foreign Relations of the United States Diplomatic Papers, 1938, The British Commonwealth, Europe, Near East, and Africa, Volume II

711.4216 Kenogami/25

The Secretary of State to the Canadian Minister (Marler)

Washington, March 17, 1938.

Sir: I have the honor hereby to convey to you the views and decision of the United States Government in connection with the request made in your note no. 17 of January 27, 1938.¹⁴

In the note in question you stated that the Canadian Government has under consideration and is prepared to approve an application, pursuant to the Navigable Waters Protection Act, from the Hydro-Electric Power Commission of Ontario, for which the Government of the province of Ontario asks favorable consideration, and which seeks the approval of certain works designed to provide for the diversion of water from the Kenogami River, a tributary of the Albany River, via Long Lake, all in the province of Ontario, into Lake Superior.

You went on to say that the project, if carried out, would entail certain material advantages, which the United States would share in common with Canada, namely, an improvement in the conditions affecting navigation throughout the Great Lakes–Saint Lawrence system, and some reduction in the expenditures on the compensating works which have to be operated at certain points in the system. With regard to the conditions affecting navigation, it is perhaps sufficient at this time to observe that any proposal which might affect the existing levels of boundary waters would appear to fall within the scope of Article 3 of the Boundary Waters Treaty of 1909,¹⁵ which reads in part as follows:

“It is agreed that, in addition to the uses, obstructions, and diversions heretofore permitted or hereafter provided for by special agreement between the Parties hereto, no further or other uses or obstructions or diversions, whether temporary or permanent, of boundary waters on either side of the line, affecting the natural level or flow of boundary waters on the other side of the line, shall be made except by authority of the United States or the Dominion of Canada within their respective jurisdictions and with the approval, as hereinafter provided, of a joint commission, to be known as the International Joint Commission.”

In conclusion you pointed out that the diversion, averaging approximately 1,200 cubic feet per second, would also make available more water along the Great Lakes–Saint Lawrence system for the production of electrical power. You inquired whether the Government of the United States would be disposed to enter into an agreement to the following effect: That, notwithstanding the provisions of Articles 5 and 8 of the Boundary Waters Treaty of 1909, in the event of the proposed diversion being made into Lake Superior from the Kenogami River, via Long Lake, the exclusive rights to the use of waters equivalent in quantity to any waters so diverted shall be vested in Canada, and the quantity of water so diverted shall be at all times available to Canada for use for power below the point of diversion so long as it constitutes a part of boundary waters.

As both governments are fully aware, the existing contractual rights of our two countries in respect to the uses of boundary waters are embodied in the Boundary Waters Treaty of 1909. The proposal now advanced by your Government contemplates a change in that treaty which, in connection with possible additional diversions of water for power purposes on the Canadian side of the Niagara River, would have the effect of upsetting the division of water for power purposes which was specifically provided for in Article 5 of the Boundary Waters Treaty and which was considered equitable at that time. It is noted that although this Government is invited to acquiesce in the proposed change, which would be to the sole benefit of the province of Ontario, there is no suggestion that there be considered at the same time any of the related questions which are of outstanding interest to the United States.

This Government does not contend that the division of water for power purposes agreed upon in 1909 is perfect, or that it should necessarily be perpetuated. Indeed, this Government is convinced that Article 5 of the Boundary Waters Treaty is antiquated and in urgent need of revision, not only to provide for the construction of adequate works to ensure the preservation of the scenic beauties of Niagara Falls, but to eliminate, through much more efficient utilization of existing power resources, the waste which is inevitable with the present power plant facilities. The adoption of progressive steps in the Niagara River looking towards the equalization of diversion between the two countries and the most efficient use of the waters so diverted for power purposes, would in the opinion of this Government result in mutual benefits considerably larger than those now enjoyed by either country.

It is believed that no change should be made in Article 5 of the Boundary Waters Treaty without due consideration being given to the new conditions which have arisen since 1909. Without entering into a detailed discussion of those conditions, I will merely draw your attention to the following factors:

A. The practical obsolescence of the power plants which existed and were taken into consideration at the time the 1909 treaty was made.

B. The construction by Ontario of the Queenston station at the foot of the lower Niagara Rapids, no consideration having been given in 1909 to the possibility of diversion around the Rapids.

C. The Supreme Court decree limiting the diversion in the Great Lakes Basin at Chicago to 1,500 cubic feet per second by December 31, 1938, thereby making 8,500 cubic feet per second available at Niagara which were not considered available in 1909.

D. The present utilization of Niagara waters for peak purposes over and above the daily average diversions, no consideration having been given in 1909 to agreement on the limits of this practice.

E. Finally, as was mentioned before, the urgent necessity for works to preserve the scenic beauties of Niagara Falls.

As indicated in your note, it is true that in the Great Lakes–Saint Lawrence Deep Waterway Treaty, which was signed on July 18, 1932,¹⁶ but which failed to receive the advice and consent of the United States Senate to its ratification, the principle was accepted that waters diverted from a national watershed into the international waterways should be regarded for power uses as exclusively national waters of the country wherein the watershed lay. What is not clear from your note, however, is the fact that this provision, which in reality could only benefit Canada, was a part of a comprehensive agreement which involved a large number of other factors. A request that this Government accede to the adoption of this principle in a separate agreement without relation to those other factors, many of which are of outstanding importance to the United States, does not seem justifiable.

May I say, in conclusion, that this Government realizes the needs of Canada, and particularly the needs of the province of Ontario, with respect to the production of additional hydro-electric power, and sympathizes with the very natural desire of the Canadian Government to provide for the future. This Government has every reason to hope that the Canadian authorities on their part will appreciate and sympathize with the needs of the American people on their side of the border.

It is only because this Government desires to see the mutual needs of both countries fully provided for, and is convinced that this can best be done through a jointly planned development of their extraordinary natural resources in the Niagara and Saint Lawrence Rivers, that it finds it necessary to convey an adverse decision on the specific request set forth in your note.

As the Canadian Government is already aware, this Government is ready and eager to enter into and push to a speedy conclusion negotiations looking towards a mutually satisfactory agreement dealing with the varied and important problems of the Great Lakes–Saint Lawrence River Basin.

Accept [etc.]

Cordell Hull

14. For text of note, see Canada, Correspondence and Documents Relating to Lawrence Deep Waterway Treaty, 1932 … (Ottawa, 1938), or Department of State, Press Releases, March 26, 1938, p. 408.
15. Foreign Relations, 1910, p. 532.
16. Foreign Relations, 1932, vol. ii, p. 69.