Papers relating to the foreign relations of the United States, 1929, Volume II
711.4216Sa22/131
The Minister in Canada (Phillips) to the Secretary of State
[Received September 3.]
Sir: Referring to the Legation’s telegram No. 166 of August 28, 2 p.m.,71 on the matter of the St. Mary and Milk Rivers and their tributaries, I have the honor to transmit herewith enclosed a copy of the Canadian note on this subject.
It will be observed from the note that after reviewing the history of the negotiations on the St. Mary and Milk Rivers the Canadian Government feels that it is impracticable to reopen the question and to alter the basis of the apportionment of the waters after extensive capital commitments have been made and land settlement proceeded with.
The Canadian Government further feels that there would be no hope of finality or of certainty should such a settlement as has been reached be subject to be reopened at any time, and therefore regrets that it cannot see its way clear to join in a request that the International Joint Commission should reconsider its decision.
The note, however, suggests the appointment of a representative or representatives to a joint board whose investigations should be [Page 106] confined to the study of reservoir facilities, and feels that such work could be most advantageously carried out by a small two-man board appointed from the respective reclamation services of the two countries.
I have [etc.]
Secretary of Legation
The Canadian Secretary of State for External Affairs (Mackenzie King) to the American Minister (Phillips)
Sir: I have the honour to refer to your communications of June 29th, 1928,72 and August 14th, 1929,73 concerning the St. Mary and Milk rivers and their tributaries. I note that your Government is prepared to designate representatives to serve on a joint United States Canadian Board to make a thorough study of the problem involved in the construction of storage reservoirs in the United States and Canada designed to increase the volume and regularity of the flow of the waters of the St. Mary and Milk rivers, particularly during the irrigation season; but that your Government does not concur in the view that the apportionment of the waters of the two river systems should continue to be on the basis established by the International Joint Commission in its Order of the 4th of October, 1921.
I further note that your Government is still of the opinion that it would be desirable to have the whole matter of the apportionment of the waters of the St. Mary and Milk rivers and their tributaries re-opened by the International Joint Commission.
I have carefully followed the points raised in your communication, noting especially your comment as to the integrity and usefulness of the International Joint Commission and fear that I have failed in my note of March 23rd, 1928, to make sufficiently clear the views of the Canadian Government. I there expressed deep concern for the maintenance of the integrity of the entire system arising out of the Treaty of 1909, that is to say, the system which provides for the settlement of certain questions affecting the United States and Canada by means of hearings held before the International Joint Commission, for recommendations or awards by such Commission and for the acceptance of such awards by the two Governments concerned. [Page 107] It is this system, which has been so successful, that the Canadian Government desires to maintain in its integrity.
I note your further opinion that the Order of the International Joint Commission of October 4, 1921, operates unequally to the disadvantage of the United States, and that it is this inequality that your Government seeks to have corrected. I would, however, point out that the supposed inequality in the apportionment of the waters of the St. Mary and Milk river systems under the Commission’s Order, is dependent entirely upon the interpretation to be applied to Article 6 of the treaty of 1909.
In order that the viewpoint of the Canadian Government may be clearly understood, it is necessary briefly to review the history of the St. Mary and Milk river situation.
Following the passage of the Irrigation Act in Canada in 1894, surveys made by the Canadian Government demonstrated the feasibility of irrigating large tracts of land in Alberta from the St. Mary river. Extensive irrigation projects were shortly afterwards authorized and constructed in Canada designed to utilize the St. Mary river flow. Similarly, on the United States side of the boundary, diversion works were authorized which were designed to utilize the waters of the Milk river, supplemented by waters of the St. Mary river, in this case by diverting the water across country to the Milk river and by carrying it in the Milk river channel for a distance of some 200 miles through Canadian territory and delivering it to the lower reaches of the Milk river in the United States. The Canadian Government protested against this diversion without result. The Canadian Government subsequently authorized the withdrawal of water from the Milk river in Canada for the irrigation of Canadian lands. This led to protests by the United States.
As a result of these developments there was uncertainty on both sides of the international boundary as to what waters would be dependably available in each country for irrigation development and a consequent hesitancy about making capital commitments in irrigation projects.
Finally, after exchanges of views in the matter, representatives were appointed by the two Governments in 1908 to consider the basis of an agreement for the division of the water supply in the two river systems. This agreement was finally effected by the inclusion of Article 6 in the Treaty between His Britannic Majesty and the United States relating to boundary waters, signed at Washington on the 11th of January, 1909, as follows:
“Article 6—St. Mary and Milk River [s].
“The High Contracting Parties agree that the St. Mary and Milk rivers and their tributaries (in the State of Montana and the Provinces [Page 108] 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 threefourths 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.”
As the treaty provided that the measurement and apportionment of the water to be used by each country should 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, the Commission proceeded to apportion the combined flow of the two rivers and their tributaries in accordance with the provisions of the treaty.
In order to obtain the viewpoints of the water users and of all interests affected by the flow of the two rivers and their tributaries on both sides of the border, hearings were held at St. Paul in 1915, at Detroit in 1917, at Ottawa in 1920, and in Chinook and Lethbridge in 1921. While the physical problem before the Commission was somewhat complicated, it soon developed that the cardinal difficulty lay in the different interpretations which the United States and Canadian governments placed upon Article 6 of the Treaty.
It was then contended by the Canadian Government that the words “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 purpose of irrigation and power” were clear and explicit and provided that all the tributaries of both rivers down to the respective mouths of these rivers were intended to be included, that “The waters thereof shall be apportioned equally between the two countries”, and that there was no expressed or implied reservation of certain of the tributaries. It [Page 109] was also contended that the 500 c.f.s. prior appropriation allocated to Canada under the treaty from the St. Mary river constituted a prior lien and that the equal division of the total flow was to be applied after the 500 c.f.s. had been allocated, and that the same principle was intended to be applied to the priority of 500 c.f.s. from the Milk river allocated to the United States.
It was contended by the United States that the only waters which were to be apportioned under the treaty were the waters which crossed the boundary, that is to say, the waters of the St. Mary and Milk rivers at the points where they cross the international boundary and the waters of those eastern tributaries of the Milk river which cross the boundary from Canada to the United States. With respect to the 500 c.f.s. prior appropriation on the St. Mary and Milk rivers provided for in the treaty, the United States contended that Canada and the United States were entitled to first call on the first 500 c.f.s. from the St. Mary and Milk rivers respectively, and that the amount received by each country should be chargéd against that country in making the final division.
Because of this difference of viewpoint between the two Governments the International Joint Commission found difficulty in reaching a decision and the hearings extended over a period of seven years before the Commission’s Order of the 4th of October, 1921, was issued, twelve years after the signing of the Treaty.
As intimated in my note of the 23rd March, 1928, the Commission’s award was not in accord with the views of either Government. Nevertheless, while the Commission’s Order did not concede the Canadian contention, the Canadian Government has accepted the Order as a final settlement of what had been a vexed and contentious international question since 1894, and has authorized the use of the full share of the water and the necessary investment in connection therewith. Irrigation development which had been hampered and held up for more than twenty years because of uncertainty as to water supply has, since the Commission’s Order, been proceeded with to the limit of the Canadian allotment.
The impracticability of re-opening the question and of altering the basis of the apportionment of the waters after extensive capital commitments have been made and land settlement proceeded with, is, therefore, evident.
Reverting to the view of the Government of the United States that the measurements of flow on the two rivers and their tributaries show that the Order of the Commission of October 4, 1921, operates unequally to the disadvantage of the United States, I would, in this connection, point out that such a conclusion can be reached only by the application to the flow records of the interpretation of the treaty advanced by the United States before the award of the International [Page 110] Joint Commission was made. The application of the original Canadian interpretation of the treaty to the flow measurements as apportioned under the Order of the Commission would indicate an inequality of apportionment to the disadvantage of Canada. The Canadian Government has had no reason to alter the views which it has already expressed at the hearings before the International Joint Commission, as to what waters are intended to be included and apportioned in Article 6, and has no reason to believe that the Government of the United States has altered its viewpoint as presented to the Commission. It is apparent, therefore, that if the St. Mary and Milk river matter were to be re-opened it would simply raise again the question of treaty interpretation.
The Commission’s Order effected an apportionment not fully meeting the claims of either Government but providing a definite basis upon which development work on either side of the boundary could proceed. Accordingly, the Canadian Government accepted the Commission’s Order as a final solution and settlement of a complicated, contentious and long-drawn-out international problem, and, as intimated in my note of March 23rd, 1928, feels that if such a settlement can be regarded as subject to being re-opened at any time at the simple request of either party, there would be no hope of finality or of certainty, and the integrity and usefulness of the whole system provided for by the treaty of 1909, for the settlement of international problems, would be gravely endangered.
In view of the considerations set out in the foregoing, that is to say: the long-drawn-out and controversial nature of the problem prior to the negotiation of the treaty of 1909; the settlement of this controversy which was provided for in Article 6 of the said treaty; the twelve-year interval which elapsed between the signing of the treaty and the issuance of the Order of the Commission of October 4, 1921, after exhaustive hearings extending over a period of seven years during which all interests both private and Governmental had the opportunity of presenting, and did present, their view; the basically different interpretations of Article 6 presented at these hearings by the two Governments; the character of the Commission’s award which did not accept the claim of either Government; the acceptance of this award and fully utilizing the water apportioned to Canada;—in view of all these considerations—the Canadian Government feels that the re-opening of this matter in the manner proposed would be unfortunate and, as intimated in my note of the 23rd March, 1928, regrets that it cannot see its way clear to join in a request that the International Joint Commission should reconsider its decision.
It appears, however, that the object sought by reopening the award, namely, the provision of a larger amount of water on the United [Page 111] States side of the boundary, as well as on the Canadian side, can be secured very effectively by other means. The Canadian Government is prepared to join in the designation of the proposed joint United States-Canadian Board to study the problem involved in the construction of storage reservoirs in the United States and Canada, designed to increase the volume and regularity of the flow of the waters of the St. Mary and Milk rivers, particularly during the irrigation season. It is felt that under present conditions there is a large waste of water and that a study of the reservoir possibilities on both sides of the international boundary would indicate facilities for the conservation of the winter flow and flood waters of the two streams, and, therefore, ensure the greatest beneficial use to both countries.
The Canadian Government, however, considers it essential that such a board should base its investigations into waters to be conserved and distributed, upon the apportionment established by the International Joint Commission in its Order of the 4th of October, 1921, and that the board’s investigations should be confined to the study of reservoir facilities designed to utilize the waters of the two river systems, thus apportioned, to the maximum advantage in either country. Without a fixed basis such as that provided by the Commission’s Order, the board would be immediately faced with the differing interpretations of the two Governments as to the meaning of Article 6, and would have no common ground upon which to commence its investigations.
The Canadian Government will be glad to proceed with the appointment of a representative or representatives to a joint board. I would venture the suggestion that the purely engineering analysis which is proposed of the flow records in relation to the reservoir possibilities, could most advantageously be carried out by a small two-man board appointed from the respective reclamation services of the two countries.
Accept [etc.]