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Don't Water Down Canada's Deal
Don't Water Down Canada's Deal
Michael Byers Academic Director
July 26, 2004
The 49th parallel cuts arbitrarily across the geography of western North America, bisecting important waterways. The mighty Columbia River drains much of southern British Columbia but flows into the Pacific Ocean near Astoria, Ore. The Red River has its source in North Dakota and Minnesota but flows into Manitoba's Lake Winnipeg. Nowhere is the relationship between Canada's linear border and nature's non-linear distribution of water more important than in the most southern, semi-arid portion of Alberta. From Lethbridge to Medicine Hat, irrigation canals rather than oil wells fuel the economy, and two key rivers originate in the United States. The St. Mary River is fed by the snow and ice fields of Montana's Glacier National Park but soon flows into Alberta, its water destined for the Oldman and South Saskatchewan rivers, and eventually Hudson Bay. The Milk River originates in the foothills of western Montana, flows into Alberta, and then back into Montana 180 kilometres to the east -- its water destined for the Missouri and Mississippi rivers, and eventually the Gulf of Mexico. Today, most of the water from these rivers never reaches the sea, ending up instead on lush fields of alfalfa, potatoes, sugar beets and beans. More of the water is consumed in Canada than in the United States -- 190,000 hectares of Alberta farmland are irrigated from the St. Mary River alone, as compared to 49,000 hectares of Montana farmland from the Milk River. The situation is regulated by a 95-year-old international agreement, the Boundary Waters Treaty of 1909. It specifies that the St. Mary and Milk rivers and their tributaries -- some of which, in the case of the Milk River, lie partly in Saskatchewan -- are to be treated as a single stream with the waters divided equally between the two countries. But it also assigns each country a "prior allocation": 500 cubic feet per second from the St. Mary River to Canada, or "so much of such amount as constitutes three-fourths of its natural flow"; and 500 cubic feet per second from the Milk River to the United States, or, again, "so much of such amount as constitutes three-fourths of its natural flow." The Boundary Waters Treaty assigns the actual measurement and apportionment of the waters to two "accredited officers." These officials -- one from Environment Canada, the other from the U.S. Geological Survey -- work under the direction of the International Joint Commission, a body created by the 1909 treaty to manage all waters shared between Canada and the United States. Made up of three representatives from each side, appointed by the prime minister and president, the IJC is one of the world's most successful and least noticed international institutions. In 1921, the IJC issued an order directing how the apportionment would be conducted. During the April-to-October irrigation season, Canada's prior apportionment of 500 cubic feet per second becomes available whenever the natural flow of the St. Mary River exceeds 666 cubic feet per second, with any additional amount being divided equally between the two countries. A similar apportionment system was set up for the Milk River, this time favouring the United States. Both countries accepted the 1921 order, and a series of dams, canals and other structures were soon built, including two siphons in Montana -- each more than one kilometre in length and two meters in diameter -- to transfer water between the two rivers. More recently, problems have arisen out of the differing characters of the two rivers. Being of high alpine origin, the St. Mary has typically had a reliable and relatively constant flow throughout the summer and fall. In contrast, the Milk basin contains little high-alpine drainage and no glaciers, meaning that it is largely dependent on spring runoff for its natural flow. As a result, it would sometimes run dry during the late summer and fall were it not for transfers of water from the St. Mary system. In the past couple of decades, climate change has exaggerated the differences. The natural flow of the Milk River has decreased as shorter winters, longer summers and higher overall average temperatures have reduced the snow pack and increased evaporation. At the same time, the high alpine origins of the St. Mary River have kept its flow more stable, and perhaps even increased it as the glaciers have melted at increased rates and for longer periods each year. As a result, the short-term impact of climate change on these rivers works to Canada's advantage , or at least to the disadvantage of the United States. In April of 2003, Montana Governor Judy Martz asked the IJC to review the 1921 order. She argues that the order misinterprets the treaty, Canadian withdrawals from the Milk River exceed the anticipated levels, and native U.S. tribes have pre-existing water rights that were not recognized in 1921. This is the second time that Montana has made such a request. The first time, in 1931, the IJC split 3-3 along nationality lines, and the apportionment issue was not reopened. Today, Alberta and Saskatchewan are opposing any reconsideration of the 1921 order, while Ottawa is unhelpfully -- if diplomatically -- supporting "the commission's decision to explore whether a review is necessary." This week, the IJC will hold four public consultation sessions; today and tomorrow in Havre and Malta, Mont., and on Wednesday and Thursday in Eastend, Sask., and Lethbridge. There has been considerable local reporting about the issue on both sides of the border and the sessions will probably be well attended, mostly by concerned farmers and food processors. Although the impact on the Milk River is much more apparent, climate change is affecting both rivers. There is a real possibility that the glaciers of northern Montana will soon disappear. This would have a significant impact on the St. Mary River. It could soon become much like the Milk River -- dependent on spring runoff and lacking a reliable late summer and fall flow. Climate change may have handed Canada a short-term advantage with respect to these trans-boundary rivers, but the long-term consequences for irrigation farming in southern Alberta could still be catastrophic. Before the IJC decides to reconsider the 1921 order, it should seek scientific advice on the possible longer-term effects of climate change. An alteration of the existing allocation regime in favour of the United States might rapidly become more inequitable than any inequities it seeks to resolve. Michael Byers holds the Canada research chair in global politics and international law at the University of British Columbia. He is also academic director of the Liu Institute for Global Issues.
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