WHAT IS THE BOUNDARY WATERS TREATY?
Signed in 1909, it provides the principles and mechanisms to help resolve
disputes and to prevent future ones, primarily those concerning water quantity
and water quality along the boundary between Canada and the United States.
HOW IS THE PUBLIC INVOLVED WITH
INTERNATIONAL JOINT COMMISSION ACTIVITIES?
The Boundary Waters Treaty requires that the Commission give all interested
parties a "convenient opportunity to be heard" on matters under
consideration.
The Commission invites public participation and advice when it
undertakes studies under References, when it deals with Orders of Approval and
when it prepares reports to Governments.
In many instances, citizens, both specialists and non-specialists, also serve
on Commission boards and task forces.
The Commission is specifically authorized to develop a public information
program under the Great Lakes Water Quality Agreement.
Informing the public of boundary water issues before the Commission is an
important aspect of the work and ways to enhance the Commission's role in this
area are continually explored.
Information materials are produced on various topics; these materials and
Commission reports are available from and IJC office.
TREATY BETWEEN THE UNITED STATES AND GREAT BRITAIN RELATING TO
BOUNDARY WATERS,
AND QUESTIONS ARISING BETWEEN THE UNITED
STATES AND CANADA
The United States of America and His Majesty the King of the United Kingdom of
Great Britain and Ireland and of the British Dominions beyond the Seas, Emperor
of India, being equally desirous 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, have resolved to
conclude a treaty in furtherance of these ends, and for that purpose have
appointed as their respective plenipotentiaries:
The President of the United States of America, Elihu Root, Secretary of State
of the United States; and
His Britannic Majesty, the Right Honourable James
Bryce, O.M., his Ambassador Extraordinary and Plenipotentiary at Washington;
Who, after having communicated to one another their full powers, found in good
and due form, have agreed upon the following articles:
PRELIMINARY ARTICLE
For the purpose of this treaty boundary waters are defined as the 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.
ARTICLE I
The High Contracting Parties agree that the navigation of all navigable
boundary waters shall forever continue free and open for the purposes of
commerce to the inhabitants and to the ships, vessels, and boats of both
countries equally, subject, however, to any laws and regulations of either
country, within its own territory, not inconsistent with such privilege of free
navigation and applying equally and without discrimination to the inhabitants,
ships, vessels, and boats of both countries.
It is further agreed that so long as this treaty shall remain in force, this
same right of navigation shall extend to the waters of Lake Michigan and to all
canals connecting boundary waters, and now existing or which may hereafter be
constructed on either side of the line. Either of the High Contracting Parties
may adopt rules and regulations governing the use of such canals within its own
territory and may charge tolls for the use thereof, but all such rules and
regulations and all tolls charged shall apply alike to the subjects or citizens
of the High Contracting Parties and the ships, vessels, and boats of both of
the High Contracting Parties, and they shall be placed on terms of equality in
the use thereof.
ARTICLE II
Each of the High Contracting Parties reserves to itself or to the several State
Governments on the one side and the Dominion or Provincial Governments on the
other as the case may be, subject to any treaty provisions now existing with
respect thereto, the exclusive jurisdiction and control over the use and
diversion, whether temporary or permanent, of all waters on its own side of the
line which in their natural channels would flow across the boundary or into
boundary waters; but it is agreed that any interference with or diversion from
their natural channel of such waters on either side of the boundary, resulting
in any injury on the other side of the boundary, shall give rise to the same
rights and entitle the injured parties to the same legal remedies as if such
injury took place in the country where such diversion or interference occurs;
but this provision shall not apply to cases already existing or to cases
expressly covered by special agreement between the parties hereto.
It is
understood however, that neither of the High Contracting Parties intends by the
foregoing provision to surrender any right, which it may have, to object to any
interference with or diversions of waters on the other side of the boundary the
effect of which would be productive of material injury to the navigation
interests on its own side of the boundary.
ARTICLE III
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 mae 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.
The foregoing provisions are not intended to limit or interfere with the
existing rights of the Government of the United States on the one side and the
Government of the Dominion of Canada on the other, to undertake and carry on
governmental works in boundary waters for the deepening of channels, the
construction of breakwaters, the improvement of harbours, and other
governmental works for the benefit of commerce and navigation, provided that
such works are wholly on its own side of the line and do not materially affect
the level or flow of the boundary waters on the other, nor are such provisions
intended to interfere with the ordinary use of such waters for domestic and
sanitary purposes.
ARTICLE IV
The High Contracting Parties agree that, except in cases provided for by
special agreement between them, they will not permit the construction or
maintenance on their respective sides of the boundary of any remedial or
protective works or any dams or other obstructions in waters flowing from
boundary waters or in waters at a lower level than the boundary in rivers
flowing across the boundary, the effect of which is to raise the natural level
of waters on the other side of the boundary unless the construction or
maintenance thereof is approved by the aforesaid International Joint Commission.
It is further agreed that the waters herein defined as 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.
ARTICLE V
The High Contracting Parties agree that it is expedient to limit the diversion
of waters from the Niagara River so that the level of Lake Erie and the flow of
the stream shall not be appreciably affected. It is the desire of both Parties
to accomplish this object with the least possible injury to investments which
have already been made in the construction of power plants on the United States
side of the river under grants of authority from State of New York, and on the
Canadian side of the river under licences authorized by the Dominion of Canada
and the Province of Ontario.
So long as this treaty shall remain in force, no diversion of the waters of the
Niagara River above the Falls from the natural course and stream thereof shall
be permitted except for the purposes and to the extent hereinafter provided.
The United States may authorize and permit the diversion within the State of
New York of the waters of said river above the Falls of Niagara, for power
purposes, not exceeding in the aggregate a daily diversion at the rate of
twenty thousand cubic feet of water per second.
The United Kingdom, by the Dominion of Canada, or the Province of Ontario, may
authorize and permit the diversion within the Province of Ontario of the waters
of said rive above the Falls of Niagara, for the power purposes, not exceeding
in the aggregate a daily diversion at the rate of thirty-six thousand cubic
feet of water per second.
The prohibitions of this article shall not apply to the diversion of water for
sanitary or domestic purposes, or for the service of canals for the purposes of
navigation.
Note: The third, fourth and fifth paragraphs of Article V were terminated by
the Canada-United States Treaty of February 27, 1950 concerning the diversion
of the Niagara River.
ARTICLE VI
The High Contracting Parties agree that the St. Mary and Milk Rivers and their
tributaries (in the State of Montana and the Provinces of Alberta and
Saskatchewan) are to be treated as one stream for the purposes of irrigation
and power, and the waters thereof shall be apportioned equally between the two
countries, but in making such 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 a more beneficial use to each. It is further agreed that in the
division of such waters during the irrigation season, between the 1st of April
and 31st of October, inclusive, annually, the United States is entitled to a
prior appropriation of 500 cubic feet per second of the waters of the Milk
River, or so much of such amount as constitutes three-fourths of its natural
flow, and that Canada is entitled to a prior appropriation of 500 cubic feet
per second of the flow of St. Mary River, or so much of such amount as
constitutes three-fourths of its natural flow.
The channel of the Milk River in Canada may be used at the convenience of the
United States for the conveyance, while passing through Canadian territory, of
waters diverted from the St. Mary River. The provisions of Article II of this
treaty shall apply to any injury resulting to property in Canada from the
conveyance of such waters through the Milk River.
The measurement and apportionment of the water to be used by each country shall
from time to time be made jointly by the properly constituted reclamation
officers of the United States and the properly constituted irrigation officers
of His Majesty under the direction of the International Joint Commission.
ARTICLE VII
The High Contracting Parties agree to establish and maintain an International
Joint Commission of the Untied 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.
ARTICLE VIII
This International Joint Commission shall have jurisdiction over and shall pass
upon all cases involving the use or obstruction or diversion of the waters with
respect to which under Article III or IV of this Treaty the approval shall be
governed by the following rules of principles which are adopted by the High
Contracting Parties for this purpose:
The High Contracting 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.
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 this order of precedence:
-
Uses for domestic and sanitary purposes;
-
Uses for navigation, including the service of canals for the
purposes of
navigation;
-
Uses for power and for irrigation purposes.
The foregoing provisions shall not apply to or disturb any existing uses of
boundary waters on either side of the boundary.
The requirement for an equal
division may in the discretion of the Commission be suspended in cases of
temporary diversions along boundary waters at points where such equal division
can not 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 Commission 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 all interests on the
other side of the line which may be injured thereby.
In cases involving the elevation of the natural level of waters on either side
of the line as a result of the construction or maintenance on the other side of
remedial or protective works or dams or other obstructions in boundary waters
flowing there from or in waters below the boundary in rivers flowing across the
boundary, the Commission 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 majority of the Commissioners shall have power to render a decision. In
case 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. The High Contracting Parties shall thereupon
endeavour to agree upon an adjustment of the question or matter of difference,
and if an agreement is reached between them, it shall be reduced to writing in
the form of a protocol, and shall be communicated to the Commissioners, who
shall take such further proceedings as may be necessary to carry out such
agreement.
ARTICLE IX
The High Contracting Parties further agree that any other questions or matters
of difference arising between them involving the rights, obligations, or
interests of either in relation to the other or to the inhabitants of the
other, along the common frontier between the United States and the Dominion of
Canada, shall be referred from time to time to the International Joint
Commission for examination and report, whenever either the Government of the
United States or the Government of the Dominion of Canada shall request that
such questions or matters of difference be so referred.
The International Joint Commission 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.
Such reports of the Commission 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.
The Commission shall make a joint report to both Governments in all cases in
which all or a majority of the Commissioners agree, and in case of disagreement
the minority may make a joint report to both Governments, or separate reports
to their respective Governments.
In case the Commission is evenly divided upon any question or matter referred
to it for report, separate reports shall be made by the Commissioners on each
side to their own Government.
ARTICLE X
Any questions or matters of difference arising between the High Contracting
Parties involving the rights, obligations, or interests of the United States or
of the Dominion of Canada either in relation to each other or to their
respective inhabitants, may be referred for decision to the International Joint
Commission 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 His Majesty's Government with the
consent of the Governor General in Council. In each case so referred, the said
Commission is authorized to examine into and report upon the facts and
circumstances of the particular questions any 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.
A majority of the said Commission shall have power to render a decision or
finding upon any of the questions or matters so referred.
If the said Commission is equally divided or otherwise unable to render a
decision or finding as to any questions or matters so referred, it shall be the
duty of the Commissioners to make a joint report to both Governments, or
separate reports to their respective Governments, showing the different
conclusions arrived at with regard to the matters or questions referred, which
questions or matters shall thereupon be referred for decision by the High
Contracting 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. Such umpire shall have power to render a final decision with
respect to those matters and questions so referred on which the Commission fail
to agree.
ARTICLE XI
A duplicate original of all decisions rendered and joint reports made by the
Commission 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 to them
shall be addressed all communications of the Commission.
ARTICLE XII
The International Joint Commission shall meet and organize at Washington
promptly after the members thereof are appointed, and when organized 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. Each
Commissioner upon the first joint meeting of the Commission after his
appointment, shall, before proceeding with the work of the Commission, 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 United States and Canadian sections of the Commission may each appoint a
secretary, and these shall act as joint secretaries of the Commission at its
joint sessions, and the Commission may employ engineers and clerical assistants
from time to time as it may deem advisable. 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 High Contracting
Parties.
The Commission 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, and all parties interested
therein shall be given convenient opportunity to be heard, and the High
Contracting Parties agree to adopt such legislation as may be appropriate and
necessary to give the Commission 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 the Commission before the
Commission. The Commission 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.
ARTICLE XIII
In all cases where special agreements between the High Contracting Parties
hereto are referred to in the foregoing articles, such agreements are
understood and intended to include not only direct agreements between the High
Contracting Parties, but also any mutual arrangement between the United States
and the Dominion of Canada expressed by concurrent or reciprocal legislation on
the part of Congress and the Parliament of the Dominion.
ARTICLE XIV
The present treaty shall be ratified by the President of the United States of
America, by and with the advice and consent of the Senate, thereof, and by His
Britannic Majesty. The ratifications shall be exchanged at Washington as soon
as possible and the treaty shall take effect on the date of the exchange of its
ratifications. It shall remain in force for five years, dating from the day of
exchange of ratifications, and thereafter until terminated by twelve months'
written notice given by either High Contracting Party to the other.
In faith whereof the respective plenipotentiaries have signed this treaty in
duplicate and have hereunto affixed their seals.
Done at Washington the 11th day of January,
in the year of our Lord one
thousand and nine hundred and nine.
(Signed) ELIHU ROOT [SEAL]
(Signed) JAMES BRYCE [SEAL]
And WHEREAS the Senate of the United States by their resolution of March 3,
1909, (two-thirds of the Senators present concurring therein) did advise and
consent to the ratification of the said Treaty with the following understanding
to wit:
Resolved further, (as a part of this ratification), that the United States
approves this treaty with the understanding 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, on either side of
the international boundary at the rapids of the St. Mary's river at Sault Ste.
Marie, in the use of water flowing over such lands, subject to the requirements
of navigation in boundary water 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 rive, within its own territory, and further, that nothing in
the treaty shall be construed to interfere with the drainage of wet swamp and
overflowed lands into streams flowing into boundary waters, and that this
interpretation will be mentioned in the ratification of this treaty as
conveying the true meaning of the treaty, and will in effect, form part of the
treaty;
AND WHEREAS the said understanding has been accepted by the Government of Great
Britain, and the ratifications of the two Governments of the said Treaty were
exchanged in the City of Washington, on the 5th day of May, one thousand nine
hundred and ten;
NOW THEREFORE, be it known that I, William Howard Taft, President of the United
States of America, have caused the said Treaty and the said understanding, as
forming a part thereof, to be made public, to the end that the same and every
article and clause thereof may be observed and fulfilled with good faith by the
United States and the citizens thereof.
In testimony whereof, I have hereunto
set my hand and caused the seal of the United States to be affixed.
Done at the City of Washington this thirteenth day of May
in the year of our
Lord one thousand nine hundred and ten,
[SEAL] and of the Independence of the
United States of America
the hundred and thirty-fourth.
Wm. H. Taft
By the President:
P C Knox
Secretary of State
Protocol of Exchange
On proceeding to the exchange of the ratifications of the treaty signed at
Washington on January 11, 1909, between the United States and Great Britain,
relating to boundary waters and questions arising along the boundary between
the United States and the Dominion of Canada, the undersigned
plenipotentiaries, duly authorized thereto by their respective Governments,
hereby declare 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 alters 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.
The exchange of ratifications then took place in the usual form.
IN WITNESS WHEREOF, they have signed the present Protocol of Exchange and have
affixed their seals thereto.
DONE at Washington this 5th day of May, one thousand nine hundred and ten.
PHILANDER C KNOX [SEAL]
JAMES BRYCE [SEAL]
III RULES OF PROCEDURE
of the International Joint Commission
The International Joint Commission, by virtue of the provisions of Article XII
of the Treaty between the United States of America and His Majesty the King,
dated the 11th day of January, 1909, hereby revokes the Rules of Procedure
which it adopted on the 2nd day of February, 1912, as subsequently amended,
and, in their place and stead, adopts the following Rules of Procedure:
Part I - General
Definitions
1. (1) In the construction of these rules, unless the context otherwise
requires, words importing the singular number shall include the plural and
words importing the plural number shall include the singular, and:
(2) "applicant" means the Government or person on whose behalf an application
is presented to the Commission in accordance with Rule 12;
(3) "Government" means the Government of Canada or the Government of the United
States of America;
(4) "person" includes Province, State, department or agency of a Province or
State, municipality, individual, partnership, corporation and association, but
does not include the Government of Canada or the Government of the United
States of America;
(5) "oath" includes affirmation;
(6) "reference" means the document by which a question or matter of difference
is referred to the Commission pursuant to Article IX of the Treaty;
(7) "the Treaty" means the Treaty between the United States of America and His
Majesty the King, dated the 11th day of January, 1909;
(8) "Canadian section" consists of the commissioners appointed by Her Majesty
on the recommendation of the Governor in Council of Canada;
(9) "United States section" consists of the commissioners appointed by the
President of the United States.
CHAIRMEN
2. (1) The commissioners of the United States section of the Commission shall
appoint one of their number as chairman, to be known as the Chairman of the
United States Section of the International Joint Commission, and he shall act
as chairman at all meetings of the Commission held in the United States and in
respect to all matters required to be done in the United States by the chairman
of the Commission.
(2) The commissioners of the Canadian section of the Commission shall appoint
one of their number as chairman, to be known as the Chairman of the Canadian
Section of the International Joint Commission, and he shall act as chairman at
all meetings of the Commission held in Canada and in respect to all matters
required to be done in Canada by the chairman of the Commission.
(3) In case it shall be impracticable for the chairman of either section to act
in any matter, the commissioner of such section who is senior in order of
appointment shall act in his stead.
PERMANENT OFFICES
3. The permanent offices of the Commission shall be at Washington, in the
District of Columbia, and at Ottawa, in the Province of Ontario, and, subject
to the directions of the respective chairmen acting for their respective
sections, the secretaries of the United States and Canadian sections of the
Commission shall have full charge and control of said offices, respectively.
DUTIES OF SECRETARIES
4. (1) The secretaries shall act as joint secretaries at all meetings and
hearings of the Commission. 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.
(2) Each secretary shall receive 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.
(3) Each secretary shall forward 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.
(4) Each secretary shall also 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.
MEETINGS
5. (1) Subject 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.
(2) If the Commission determines that a meeting shall be open to the public, it
shall give such advance notices to this effect as it considers appropriate in
the circumstances.
SERVICE OF DOCUMENTS
6. (1) Where the secretary is required by these rules to give notice to any
person, this shall be done by delivering or mailing such notice to the person
at the address for service that the said person has furnished to the
Commission, or if no such address has been furnished, at the dwelling house or
usual place of abode or usual place of business of such person.
(2) Where the secretary is required by these rules to give notice to a
Government, this shall be done by delivering or mailing such notice to the
Secretary of State for External Affairs of Canada or to the Secretary of State
of the United States of America, as the case may be.
(3) Service of any document pursuant to Rule 22 shall be by delivering a copy
thereof to the person names therein, or by leaving the same at the dwelling
house or usual place of abode or usual place of business of such person. The
person serving the notice or request shall furnish an affidavit to the
secretary stating the time and place of such service.
CONDUCT OF HEARINGS
7. Hearings may be conducted, testimony received and arguments thereon 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.
DECISION BY THE WHOLE COMMISSION
8. The whole Commission shall consider and determine any matter or question
which the Treaty or international agreement, either in terms or by implication,
requires or makes it the duty of the Commission to determine. For the purposes
of this rule and Rule 7, "the whole Commission" means all of 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 as commissioners. In no
event shall a decision be made without the concurrence of at least four
commissioners.
SUSPENSION OR AMENDMENT OF RULES
9. The Commission may suspend, repeal, or amend all or any of the rules of
Procedure at any time, with the concurrence of at least four commissioners.
Both Governments shall be informed forthwith of any such action.
GENERAL RULE
10. 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.
AVAILABILITY OF RECORDS
11. (1) The following items in the official records of the Commission shall be
available for public information at the permanent offices of the Commission:
Applications
References
Public Notices
Press Releases
Statements in Response
Statements in Reply
Records of hearings, including exhibits filed
Briefs and formal Statements submitted at hearings or at other times
(2) Decision rendered and orders issued by the Commission and formal opinions
of any of the Commissioners with relation thereto, shall be available similarly
for public information after duplicate originals of the decisions or orders
have been transmitted to and filed with the Governments pursuant to Article XI
of the Treaty.
(3) 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.
(4) Reports, letters, memoranda and other communications addressed to the
Commission, by boards or committees created by or at the request of the
Commission, are privileged and shall become available for public information
only in accordance with a decision of the Commission in that effect.
(5) Except as provided in the preceding paragraphs of this rule, records of
deliberations, and 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, are
privileged and shall become available to public information only in accordance
with a decision of the Commission to that effect.
(6) A copy of any document, report, record or other paper which under this rule
is available for public information may be furnished to any person upon payment
of any cost involved in its reproduction.
PART II - APPLICATIONS
Presentation to Commission
12. (1) Where one or the other of the Governments on its own initiative seeks
the approval of the Commission for the use, obstruction or diversion of waters
with respect to which under Articles III or IV of the Treaty the approval of
the Commission is required, it shall present to the Commission an application
setting 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.
(2) Where a person seeks the approval of the Commission for the use,
obstruction or diversion of waters with respect to which under Articles III or
IV of the Treaty the approval of the Commission is required, he shall prepare
an application to the Commission and forward it to the Government within whose
jurisdiction such use, obstruction or diversion is to be made, with the request
that the said application be transmitted to the Commission. If such Government
transmits the application to the Commission with a request that it take
appropriate action thereon, the same shall be filed by the Commission in the
same manner as an application presented in accordance with paragraph (1) of
this rule. Transmittal of the application to the Commission shall not be
construed as authorization by the government of the use, obstruction or
diversion proposed by the applicant. All applications by persons shall
conform, as to their contents, to the requirements of paragraph (1) of this
rule.
(3) Where the Commission has issued an Order approving a particular use,
obstruction or diversion, in which it has specifically retained jurisdiction
over the subject matter of an application and has reserved the right to make
further orders relating thereto, any Government or person entitled to request
the issuance of such further order may present to the Commission a request,
setting forth the facts upon which it is based and the nature of the further
order desired. On receipt of the request the Commission shall proceed in
accordance with the terms of the Order in which the Commission specifically
retained jurisdiction. In each case the secretaries shall notify both
Governments and invite their comments before the request is complied with.
COPIES REQUIRED
13. (1) Subject to paragraph (3) of this rule, two duplicate originals and
fifty copies of the application and of any supplemental applications, statement
in response, supplemental statement in response, statement in reply and
supplemental statements in reply shall be delivered to the other secretary.
On receipt of such documents, the secretary shall forthwith send one duplicate
original and twenty-five copies to the other secretary.
(2) Subject to paragraph (3) of this rule, two copies of such drawings,
profiles, plans of survey, maps and specifications as may be necessary to
illustrate clearly the matter of the application shall be delivered to either
secretary and he shall send one copy forthwith to the other secretary.
(3) Notwithstanding paragraphs (1) and (2) of this rule, such additional copies
of the documents mentioned therein as may be requested by the Commission shall
be provided forthwith.
AUTHORIZATION BY GOVERNMENT
14. (1) Where the use, obstruction or diversion of waters for which the
Commission's approval is sought has been authorized by or on behalf of a
Government or by or on behalf of a State or Province or other competent
authority, two copies of such authorization and of any plans approved
incidental thereto shall accompany the application when it is presented to the
Commission in accordance with Rule 12.
(2) Where such a use, obstruction or diversion of waters is authorized by or on
behalf of a Government or by or on behalf of a State or Province or other
competent authority after an application has been presented to the Commission
in accordance with Rule 12, the application shall deliver forthwith to the
Commission two copies of such authorization and of any plans approved
incidental thereto.
NOTICE OF PUBLICATION
15. (1) As soon as practicable after an application is presented or transmitted
in accordance with Rule 12, the secretary of the section of the Commission
appointed by the other Government shall send a copy of the application to such
Government.
(2) Except as otherwise provided pursuant to Rule 19, the secretaries, as soon
as practicable after the application is received, shall cause a notice to be
published in the Canada Gazette and the Federal Register and once each week for
three successive weeks in two newspapers published one in each country and
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.
Subject to paragraph (3) of this rule, the notice shall state that the
application has been received, the nature and locality of the proposed use,
obstruction or diversion, the time within which any person interested may
present a statement in response to the Commission and that the Commission will
hold a hearing or hearings at which all persons interested are entitled to be
heard with respect thereto.
(3) If the Commission so directs, the notice referred to in paragraph (2) of
this rule, appropriately modified, may be combined with the notice of hearing
referred to in Rule 24 and published accordingly.
16. (1) Except as otherwise provided pursuant to Rule 19, a Government and any
interested person, other than the applicant, may present a statement in
response to the Commission within thirty days after the filing of an
application. A statement in response shall set forth facts and arguments
bearing on the subject matter of the application and tending to oppose or
support the application, in whole or in part. If it is desired that
conditional approval be granted, the statement in response should be set forth
the particular condition or conditions desired. An address for service of
documents should be included in the statement in response.
(2) When a statement in response has been filed, the secretaries shall send a
copy forthwith to the applicant and to each Government except the Government
which presented the said statement in response. If so directed by the
Commission, the secretaries shall inform those who have presented statements in
response, of the nature of the total response.
STATEMENT IN REPLY
17. (1) Except as otherwise provided pursuant to Rule 19, the applicant and, if
he is a person, the Government which transmitted the application on his behalf,
one or both may present a statement or statements in reply to the Commission
within thirty days after the time provided for presenting statements in
response. A statement in reply shall set forth facts and arguments bearing
upon the allegations and arguments contained in the statements in response.
(2) When a statement in reply has been filed, the secretary shall send a copy
forthwith to each Government except the Government which presented the said
statement in response, statement in reply and to all persons who presented
statements in response.
SUPPLEMENTAL OR AMENDED APPLICATIONS AND STATEMENTS
18. (1) If it appears to the Commission that either an application, a statement
in response or a statement in reply is not sufficiently definite and complete,
the Commission may require a more definite and complete application, statement
in response or statement in response or statement in reply as the case may be,
to be presented.
(2) Where substantial justice requires it, the Commission with the concurrence
of at least four Commissioners may allow the amendment of any application,
statement in response, statement in reply and any document or exhibit which has
been presented to the Commission.
REDUCING OR EXTENDING TIME AND DISPENSING WITH STATEMENTS
19. 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 Treaty, the Commission may reduce
or extend the time for the presentation of any paper or the doing of any act
required by these rules or may dispense with the presentation of statements in
response and statements in reply.
INTERESTED PERSONS AND COUNSEL
20. Governments and persons interested in the subject matter of an application,
whether in favour of or opposed to it, are entitled to be heard in person or by
counsel at any hearing thereof held by the Commission.
CONSULTATION
21. The Commission may meet or consult with the applicant, the Governments and
other persons or their counsel at any time regarding the plan of hearing, the
mode of conducting the inquiry, the admitting or proof of certain facts or for
any other purpose.
ATTENDANCE OF WITNESSES AND PRODUCTION OF DOCUMENTS
22. (1) Requests for the attendance and examination of witnesses and for the
production and inspection of books, papers and documents may be issued over the
signature of the secretary of the section of the Commission of the country in
which the witness reside or the books, papers or documents may be when so
authorized by the Chairman of that section.
(2) All applications for subpoena or other process to compel the attendance of
witnesses or the production of books, papers and documents before the
Commission shall be made to the proper courts of either country, as the case
may be, upon the order of the Commission.
HEARINGS
23. (1) The time and place of the hearing or hearings of an application shall
be fixed by the Chairmen of the two sections.
(2) The secretaries shall forthwith give written notice of the time and place
of the hearing or hearings to the applicant, the Governments and all persons
who have presented statements in response to the Commission. Except as
otherwise provided by the Commission, the secretaries shall also cause such
notice to be published in the Canada Gazette and the Federal Register and once
each week for three successive weeks in two newspapers, published one in each
country and 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 of water.
(3) All hearings shall be open to the public.
(4) The applicant, the Governments and persons interested are entitled to
present oral and documentary evidence and argument that is relevant and
material to any issue that is before the Commission in connection with the
application.
(5) The presiding chairman may require that evidence be under oath.
(6) Witnesses may be examined and cross-examined by the Commissioners and by
counsel for the applicant, the Governments and the Commission. With the
consent of the presiding chairman, counsel for a person other than the
applicant may also examine or cross-examine witnesses.
(7) The Commission may require further evidence to be given and may require
printed briefs to be submitted at or subsequent to the hearing.
(8) The Commissioners shall be free to determine the probative value of the
evidence submitted to it.
(9) A verbatim transcript of the proceedings at the hearing shall be prepared.
(10) The hearing of the application, when once begun shall proceed at the times
and places determined by the Chairmen of the two sections to ensure the
greatest practicable continuity and dispatch of proceedings.
EXPENSES OF PROCEEDINGS
24. (1) The expenses of those participating in any proceeding under Part II of
these rules shall be borne by the participants.
(2) The Commission, after due notice to the participant or participants
concerned, 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.
GOVERNMENT BRIEF RE NAVIGABLE WATERS
25. When in the opinion of the Commission it is desirable that a decision
should 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.
PART III - REFERENCES
Presentation to Commission
26. (1) Where a question or matter of difference arising between the two
Governments involving the rights, obligations, or interests of either in
relation to the other or to the inhabitants of the other along the common
frontier between the United States of America and Canada is to be referred to
the Commission under Article IX of the Treaty, the method of bringing such
question or matter to the attention of the Commission and invoking its action
ordinarily will be as set forth in this rule.
(2) Where both Governments have agreed to refer such a question or matter to
the Commission, each Government will present to the Commission, at the
permanent office in its country, a reference in similar or identical terms
setting forth as fully as may be necessary for the information of the
Commission 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.
(3) Where one of the Governments, on its own initiative, has decided to refer
such a question or matter to the Commission, it will present a reference to the
Commission at the permanent office in its country. All such references should
conform, as to their contents, to the requirements of paragraph (2) of this
rule.
(4) Such drawings, plans of survey and maps as may be necessary to illustrate
clearly the question or matter referred should accompany the reference when it
is presented to the Commission.
NOTICE AND PUBLICATION
27. (1) The secretary to whom a reference is presented shall receive and file
the same and shall send a copy forthwith to the other secretary for filing in
the office of the latter. If the reference is presented by one Government
only, the other secretary shall send a copy forthwith to his Government.
(2) Subject to any restrictions or exceptions which may be imposed upon the
Commission by the terms of the reference, and unless otherwise provided by the
Commission, the secretaries, as soon as practicable after the reference, and
unless otherwise provided by the Commission, the secretaries, as soon as
practicable after the reference is received, shall cause a notice to be
published in the Canada Gazette, the Federal Register and in two newspapers,
published one in each country and circulated in or near the localities which,
in the opinion of the Commission, are most likely to be interested in the
subject matter of the reference. The notice shall describe the subject matter
of the reference in general terms, invite interested persons to inform the
Commission of the nature of their interest and state that the Commission will
provide convenient opportunity for interested persons to be heard with respect
thereto.
ADVISORY BOARDS
28. (1) The Commission may appoint a board or boards, composed of qualified
persons to conduct on its behalf investigations and studies that may be
necessary or desirable and to report to the Commission regarding any questions
or matters involved in the subject matter of the reference.
(2) Such board ordinarily will have an equal number of members from each
country.
(3) The Commission ordinarily will make copies of the main or final report of
such board or a digest thereof available for examination by the Governments and
interested persons prior to holding the final hearing or hearings referred to
in Rule 29.
HEARINGS
29. (1) A hearing or hearings may be held whenever in the opinion of the
Commission such action would be helpful to the Commission in complying with the
terms of a reference. Subject to any restrictions or exceptions which may be
imposed by the terms of the reference, a final hearing or hearings shall be
held before the Commission reports to Governments in accordance with the terms
of reference.
(2) The time, place and purpose of the hearing or hearings on a reference shall
be fixed by the Chairmen of the two sections.
(3) The secretaries shall forthwith give written notice of the time, place and
purpose of the hearing or hearings to each Government and to persons who have
advised the Commission of their interest. Unless otherwise directed by the
Commission, the secretaries shall also cause such notice to be published in the
Canada Gazette, the Federal Register and once each week for three successive
weeks in two newspapers, published one in each country and circulated in or
near the localities which, in the opinion of the Commission, are most likely to
be interested in the subject matter of the reference.
(4) All hearings shall be open to the public, unless otherwise determined by
the Commission.
(5) At a hearing, the Governments and persons interested are entitled to
present, in person or by counsel, oral and documentary evidence and argument
that relevant and material to any matter that is within the published purpose
of the hearing.
(6) The presiding chairman may require that evidence be under oath.
(7) Witnesses may be examined and cross-examined by the Commissioners and by
counsel for the Governments and the Commission. With the consent of the
presiding chairman, counsel for any interested personal may also examine or
cross-examine witnesses.
(8) The Commission may require further evidence to be given and may require
printed briefs to be submitted at or subsequent to the hearing.
(9) A verbatim transcript of the proceedings at the hearing shall be prepared.
PROCEEDINGS UNDER ARTICLE X
30. When a question or matter of difference arising between the two Governments
involving the rights, obligations or interests of either in relation to the
other or to their respective inhabitants has been or is to be referred to the
Commission for decision under Article X or the Treaty, the Commission, after
consultation with the said Governments, will adopt such rules of procedures as
may be appropriate to the question or matter referred or to be referred.
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