711.4216Sa22/105
The Secretary of State to the Minister in Canada (Phillips)
Sir: By an Order of October 4, 1921, a copy of which is enclosed,65 the International Joint Commission, provided for the measurement and apportionment of the waters of the St. Mary and Milk Rivers and their tributaries in the United States and Canada. Under paragraph I (b) of the Order Canada is accorded a prior appropriation of 500 cubic feet per second of the water of the St. Mary River. Paragraph I (b) reads as follows:
“(b) During the irrigation season when the natural flow of the St. Mary River at the point where it crosses the international boundary is more than six hundred and sixty-six (666) cubic feet per second Canada shall be entitled to a prior appropriation of five hundred (500) cubic feet per second, and the excess over six hundred and sixtysix (666) cubic feet per second shall be divided equally between the two countries.”
Paragraph II (b) applies the same rule of apportionment to the Milk River the prior appropriation of 500 cubic feet in this instance being accorded to the United States.
The Order of October 4, 1921 is based upon Article VI of the [Page 98] Boundary Waters Treaty signed by the United States and Great Britain on January 11, 1909.66 That Article reads:
“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.”
In the view of the Government of the United States, Article VI of the Boundary Waters Treaty primarily contemplates an equal division of the waters of the St. Mary and Milk Rivers between the two countries. Under the Order of October 4, 1921, when the total flow of the St. Mary River at the International Boundary is 800 cubic feet per second Canada receives 567 cubic feet and the United States 233 cubic feet; when the total flow is 1,000 cubic feet per second Canada receives 667 cubic feet and the United States 333 cubic feet; and when the total flow is 2,000 cubic feet Canada receives 1167 cubic feet and the United States 833 cubic feet. It is apparent, therefore, that an equal division of the water is not effected by the Order of October 4, 1921. I have, therefore, brought these views to the attention of the Chairman of the American Section of the International Joint Commission and have requested that the matter be reopened and a new order issued which will secure the equal apportionment contemplated by the Treaty.
I have suggested that the intent of the Treaty would be carried out if the Order of October 4, 1921, should be modified by the substitution [Page 99] of a paragraph somewhat as follows, for paragraph I (b) of that Order and of a corresponding paragraph for paragraph II (b):
“During the irrigation season when the natural flow of the St. Mary River at the point where it crosses the international boundary is more than six hundred and sixty-six and two-thirds (666–2/3) cubic feet per second, Canada shall be entitled to and shall be apportioned five hundred (500) cubic feet per second, and all excess over and above such amount shall be allotted to the United States until it shall have received five hundred (500) cubic feet per second; and when both countries shall have received such equal amount, the flow in excess of one thousand (1000) cubic feet per second shall be divided equally between the two countries.”
As the Order of October 4, 1921 is an administrative Order of the Commission, the matter having been taken up by the Commission on its own initiative, the Department considered that the proposal for a revision of the order might appropriately be taken up by it in a letter to the Chairman of the American Section of the Commission as it is now doing and that a joint reference to the Commission was not necessary.
You are instructed to inform the Government of the Dominion of Canada of the foregoing and to express the hope that if the Canadian Government concurs in the views herein above expressed in regard to the interpretation of Article VI of the Treaty, it will so inform the Canadian Section of the Commission.
I am [etc.]
- See International Joint Commission, United States and Canada, In the Matter of the Measurement and Apportionment of the Waters of the St. Mary and Milk Rivers and Their Tributaries in the United States and Canada, Under Article VI of the Treaty of January 11, 1909, Between the United States and Great Britain. Order, Ottawa, October 4, 1921; Recommendations, Ottawa, October 6, 1921 (Washington, Government Printing Office, 1923).↩
- Foreign Relations, 1910, pp. 532, 535.↩