WSP12629 - Laserfiche WebLink

Home Browse Search

u U U 'I:C?S 356 owned in their natural state, ownership of the lake bed and adjacent land, combined with provm61 legislative power over public lands in Section 92(5) of the Constitution Act, 1867, gives the Provit1cer, broad right to control the use and exploitation of Great Lakes water. .. ' Canadian Federal Law ,'.',," The British North America Act assigns to the federal government the authority for navigable watetS'<ltt' international waters, including canals, public harbors, rivers,' and lake improvements. The f~dMit' Fisheries Act grants the federal government regulatory powers to protect waters frequented by fisbana;' fish habitat. The Navigable Waters Protection Act and the River Improvements Act regulate navigatt~6.~ and shipping; Although provinces have primary responsibility for water quality issues, the' 198&' Canadian Environmental Protection Act provides a uniform federal framework for controllingdif discharge of toxic substances. The Canadian Constitution also grants the federal government residlli\I. . power to rule regarding the "peace, order and good government" of Canada. International Law , ' . , ~ Because the Great Lakes are national waters divided by an international boundary, the Great Lakesa(~: not considered international waters. As a result, laws applicable to international water courses do n6R. apply to the Great Lakes. Nevertheless, customary international law on the regulation of shared wa~t11 may provide some principles. Under traditional customary international law, a nation has the absolil.~:) and exclusive right to use and exploit its own natural resources without concern for, neighboring nationS:;~' International law embodied in the 1972 Report of the' United Nations Conference on the Hwnap Environment modified the traditional notion of absolute sovereignty to obligate neighboring states t6: prevent the pollution of common borders. See also Restatement (Third) of Foreign Relations ~ 601 (Pari VI, The Law of the Environment). One source of customary International law pertaining to shared watet; courses is the Convention on the Law of the Non-Navigational Uses of International Water Courses;: drafted by the International Law Commission and adopted by the United Nations. However, neither the' United States nor Canada has signed the Convention. Another source of international law is the Helsinki;", Rules on the Uses of Waters of International Rivers of 1966, which limits states to a "reasonable and '" equitable share" of the waters of an international drainage basin. The Boundary Waters Treaty of 1909 (the "Treaty") deals with,boundary waters between the United States and Canada. Boundary waters are those along which the international boundary between the United States and Canada passes, including the Great Lakes "from shore to shore," "including all bays, arms, and inlets thereof," but not including tributary waters. Lake Michigan is also not iricluded as a boundary water. However, the Treaty grants Canada the right to free navigation on Lake Michigan; The Treaty establishes the International Joint Commission (the "IJC") to oversee implementation of the Treaty. The IJC has three responsibilities. First, the IJC has the authority to approve diversions or uses of water that would affect natural water levels and flows. The Treaty excludes from its reach diversions that predated the treaty, e.g., the Lake Michigan Diversion at Chicago. Domestic and sanitary uses of water are specifically exempted from the reach of the Treaty, and each country reserves exclusive control over the "use and diversion, whether temporary or permanent," of waters on its side of the boundary line, even if those waters would flow across boundary lines or into boundary waters "in their natural channels." Any other subsequent use, obstruction or diversion on one side of the boundary that affects level or flow on the other side is subject to approval of the HC. Second, the IJC conducts studies of specific problems under references or requests from the two governments. Third, the IJC can arbitrate specific disputes that may arise between the two governments concerning those matters, which are' the subject of its jurisdiction. If injury results on the other side of the boundary from any diversion, an injured party is entitled to' the same legal remedies as if such injury took place in the country where the diversion or interference occurred. Moreover, each country reserves the right to object to "material injury" to the "navigation interests" on its side. Neither side may raise water levels by construction of protective works.