HomeCanada LawThe Milk and St. Mary Apportionment: A Subsequent Step?

The Milk and St. Mary Apportionment: A Subsequent Step?


By: Nigel Bankes

Matter commented on: Worldwide St Mary-Milk Rivers Research Board, Work Plan for the Worldwide St Mary-Milk Rivers Research, June 2022, launched  July 28, 2022

PDF Model: The Milk and St. Mary Apportionment: A Subsequent Step?

This put up examines the latest growth in efforts to enhance the power of each Canada and america to entry its water entitlement to every of the Milk and St. Mary Rivers beneath the phrases of an apportionment order made by the Worldwide Joint Fee (IJC) beneath the Boundary Waters Treaty greater than a century in the past.

The apportionment of the Milk and St. Mary Rivers has a protracted and contested historical past. The Milk River is a part of the Mississippi Basin. It rises in Montana, flows north and east into Alberta, after which crosses the border once more heading south and east into Montana the place it receives extra flows from the so-called jap tributaries, principally arising in Saskatchewan and flowing south.

Supply: web site of the Worldwide Joint Fee: https://www.ijc.org/en/aosmmr

The Milk and its tributaries are typical “flashy” prairie streams, and beneath pure move circumstances there could be little or no water within the mainstem of the Milk River by this time of yr (August).

The St. Mary River additionally arises in Montana and flows north into Alberta together with the opposite two southern tributaries of the Oldman River – the Stomach and Waterton Rivers. The St. Mary’s move is supported by snowpack and is extra constant than the Milk’s move. In contrast to the Milk, the St. Mary is a part of the Hudson Bay drainage system.

Inside disputes as to water rights on the Milk River between settlers and the tribes in america led to the precedent setting Indian water rights resolution of the US Supreme Courtroom in 1908 (Winters v US, 207 US 564) holding that Congress couldn’t have supposed to put aside a reserve with out affording the reserve senior water rights satisfactory to assist agricultural settlement.

As between the 2 nations, the dispute in regards to the division of the waters of the Milk and St. Mary was ripe sufficient by the start of the 20 th century that it was one in all solely two disputes (the opposite being the Niagara River) to be particularly addressed within the 1909 Boundary Waters Treaty (BWT) between the UK (for Canada) and the US.

Article VI of the BWT did 4 issues.

First, it stipulated that the 2 rivers had been “to be handled as one stream for the needs of irrigation and energy”.

Second, it supplied that the waters of the 2 rivers had been to be “apportioned equally between the 2 nations, however in making such equal apportionment greater than half could also be taken from one river and fewer than half from the opposite by both nation in order to afford a extra useful use to every.” In furtherance of that qualification, the treaty contemplated that the US would have prior appropriation rights on the Milk, whereas Canada would have prior appropriation rights on the St. Mary.

Third, Article VI allowed the US to make use of the Canadian part of the Milk to convey its share of St. Mary waters to downstream irrigators within the US. The treaty thus accepted what have to be a really early worldwide inter-basin switch.

Fourth, Article VI acknowledged that detailed measurement and apportionment must be the duty of technical officers in each nations; such officers have lengthy been known as the Accredited Officers (AOs).

Whereas Article VI laid out the fundamental concepts for apportionment, it was hardly self-implementing and thus, following in depth hearings (for which there’s a printed verbatim report), the Worldwide Joint Fee (the IJC established by the BWT) in 1921 supplied the detailed guidelines to offer impact to Article VI (the 1921 Order). Along with the 1921 Order, the Accredited Officers have adopted a set of “Administrative Procedures”. The present model of the Administrative Procedures (2018) (a doc of some 330 pages) is on the market right here. Amongst different issues, these Procedures embody “letters of intent” that present operational flexibility and facilitate the borrowing and return of every nation’s entitlement in order to permit every nation extra alternatives to obtain its share of the apportionment.

Underlying this rule system is one fundamental actuality. Neither the 1921 Order nor the Administrative Procedures can assure the precise bodily apportionment of those waters. Precise bodily apportionment requires {that a} get together have the bodily infrastructure (storage and conveyance amenities) to comprehend its apportionment. Because of this every state must have the bodily infrastructure in place to make the most of its apportionment as and when it’s out there.  For instance, absent storage within the upstream state, gravity will merely take over and “ship” all volumes of the upstream state’s “entitlement” that it has not been capable of make useful use of.  This was exemplified most dramatically in 2020 when, after years of beneath funding, the US St. Mary diversion canal failed, with the end result that the US was not capable of divert its share of St. Mary waters to the Milk for a lot of the irrigation season.

Photograph credit score: US Bureau of Reclamation/Lethbridge Herald

The canal failed on Could 17 and it was not again in operation till October 8, see Report of Accredited Officers for 2020.

Even earlier than the whole failure, the canal was compelled to function effectively under its design capability. By the identical token, the absence of constructed storage in Canada on the Milk system makes it tough for Canada to take its share of the Milk apportionment when it’s out there early within the irrigation season.

This isn’t the place to discover the main points of the 1921 Order or the Administrative Procedures, however Montana has lengthy felt aggrieved by each the phrases of the Order and its implementation. An early try by Montana (in 1927) to overturn the Order failed, and the IJC additionally resisted one other utility for reconsideration from Montana in 2003. In response to the final request the IJC did nonetheless set up an Administrative Measures Job Power with a mandate to look at and report on the present administrative procedures “to make sure extra useful use and optimum receipt by every nation of its apportioned waters.” The Job Power Report (2006) is on the market right here and for commentary see Nigel Bankes and Elizabeth Bourget, “Apportionment of the St. Mary and Milk Rivers” in Emma S. Norman, Alice Cohen, and Karen Bakker, eds, Water with out Borders?,  (Toronto: College of Toronto Press, 2013) 159 (view on-line right here, behind a pay wall). The Job Power Report in flip led Alberta and Montana to ascertain a Water Administration Initiative (WMI) in 2009 (phrases of reference right here) to additional these discussions. This led to some concrete proposals for enhancements (see dialogue in Bankes and Bourget, and joint standing studies right here) however the Initiative appears to have fizzled out with a last (11th) joint standing report in January 2010.

The present Work Plan describes the hole between the WMI or Joint Initiative (JI) and the present examine proposal as follows:

The Joint Initiative produced some glorious background studies and modelled the impact of many adjustments in procedures and infrastructure on water apportionment. Like the sooner Administrative Measures Job Power, Montana and Alberta had been unable to mutually agree on choices that considerably improved every nation’s capacity to make use of its water entitlement. The Joint Initiative was formally led to June of 2022 …. (Work Plan at 5).

With the efficient collapse of the Joint Initiative the management for any additional enhancements returned to Accredited Officers (who had been not included within the JI course of).  To cite once more from the Work Plan:

… the AOs started [2017] a assessment of their administrative procedures to establish potential adjustments which may enhance every nation’s capacity to entry its water entitlements. As a part of this assessment, the AOs reviewed the modelling of the Joint Initiative which included each administrative, procedural, and water infrastructure adjustments. This work was summarized by the AOs in a white paper discussing the doable procedural and infrastructure adjustments and the potential advantages and disadvantages for every. The white paper was supplied to Alberta, Montana, Saskatchewan, and america Bureau of Reclamation for remark. The ultimate white paper was supplied to the IJC in June 2019 together with a letter noting that the very best alternative to enhance water entry in these basins was probably a but unidentified mixture of adjustments in infrastructure and administrative procedures. The AOs famous the necessity for additional investigation, the necessity for significant engagement with the general public, rights holders and basin stakeholders (all with basin water pursuits), and their very own lack of sources, and subsequently requested the IJC present funds to undertake a complete examine to perform the duties mentioned within the white paper. The IJC endorsed this request and requested the AOs to supply a examine plan and value estimate. The IJC additionally requested that the examine plan embody an evaluation of the socio-economic results of any proposed adjustments and requested that in depth Indigenous engagement be undertaken as a part of the examine. The AOs supplied a preliminary examine plan and value estimate to the IJC in November 2019 and this plan was endorsed by the IJC and each governments. On November 10, 2021 the IJC issued a Directive to the Worldwide St. Mary -Milk Rivers Research Board to conduct the examine described by the AOs. (Work Plan at 5)

The IJC accepted the formation and membership of the Worldwide St. Mary and Milk Rivers Research in November 2021 “to discover choices to enhance entry to apportioned waters by every nation, in recognition of local weather change and challenges to apportionment because the unique 1921 Order was issued.” The press launch saying the examine indicated that the examine “was primarily based  on a want to attain long-term resiliency in accessing the shared waters of the St. Mary and Milk Rivers.” The press launch indicated that:

The examine will contemplate completely different choices, together with non-structural options (comparable to modified balancing intervals and deficit buying and selling) in addition to structural choices comparable to new (or enhancements to current) buildings. The examine is predicted to final roughly 4 years. Suggestions from the Research Board will be offered to the IJC for consideration. The IJC will then report the examine findings and its suggestions to governments.

A central characteristic of the Work Plan is an analysis of a sequence of structural and non-structural (or administrative) choices which may enhance every nation’s capacity to entry its water entitlement. The 4 structural choices are: (1) enhancements to the US St. Mary Canal, (2) enhancements to the US Decrease St. Mary Lake Storage, (3) storage in Canada for Milk River flows, and (4) a mechanism for conveying St. Mary flows to the Milk to extend Milk flows for Canadian pursuits (however maybe additionally a “[p]otential alternate route to maneuver US St. Mary water to the Milk” (at 16)). The 4 administrative choices are to: (1) revisit the 1921 Order in mild of Article VI of the BWT, (2) contemplate the impact of modifications to the balancing intervals, (3) look at deficit buying and selling, and (4) contemplate adoption of a capped credit score system.

I can’t try to summarize the stability of this 26-page work plan and as an alternative supply three observations.

First, at varied locations the Work Plan commits to transparency and guaranteeing that each one materials generated can be posted on the www for all to entry. This is a vital dedication, and it was due to this fact stunning to see references within the Work Plan to background paperwork that aren’t available (particularly the 2 variations of the AO’s white paper famous above). Nevertheless, I perceive from Canada’s accredited officer that this materials will quickly be posted to the online. I believe that this can be a welcome growth, as it’s going to present extra context for events and can facilitate touch upon the Work Plan.

Second, whereas a lot of the administrative choices fall inside the vary of points which have traditionally been thought-about to fall inside the remit of the Accredited Officers, that is clearly not the case for the choice recognized as “1921 Order Revisited” at 17. For my part, the inclusion of this feature inside the phrases of reference for the Research Board is probably going illegal, and, even when lawful, unwise because it dangers derailing the whole course of. My causes are as follows.

The 1921 Order is an order of the IJC itself. Solely the IJC by itself movement, or on an utility from both federal authorities, can rethink that Order. Montana tried to have the unique Order reconsidered in 1927 and once more in 2003. There may be nothing within the BWT that authorizes the IJC to delegate to anyone the authority to revisit its personal historic Orders. However apart from the legality of together with this merchandise inside the work plan, I think that the spectre of doable adjustments to the 1921 Order will make it very tough, if not inconceivable, to make progress on any of the three different administrative/non-structural choices, exactly due to the uncertainty that this engenders. In different phrases, this situation must be resolved (or dismissed) earlier than consideration of the opposite administrative choices. The 1921 Order supplies a rule construction round which the Accredited Officers (knowledgeable by state and provincial pursuits) can “discount” on the margin for incremental, mutually useful enhancements (win/win options) comparable to these encompassed by the letters of intent included within the Administrative Procedures of the AOs. I predict that if there isn’t any certainty across the fundamental sharing guidelines (presently represented by the 1921 Order) it is going to be tough, if not inconceivable, to make progress on these different choices.

Third, I discover it stunning that the entire focus of the Work Plan is on the St. Mary and Milk rivers with solely passing point out of the jap tributaries. The one rationale supplied for this focus that I can see is that it’s in line with “previous efforts” (at 6). I believe that that is unlucky. One of many objectives of the Work Plan is to undertake “an historic evaluation of water availability, apportionment and irrigation inside the watershed” (at 7). In my opinion, this inquiry may usefully be prolonged to the jap tributaries in order that we are able to garner the complete vary of expertise in coping with transboundary flows and the function of infrastructure and cooperative preparations in facilitating the sharing of accessible flows.

Conclusion

Equitable apportionment of a global watercourse (or a number of watercourses) requires not solely an equitable apportionment rule but in addition the infrastructure to make the most of that rule.

Article VI of the BWT establishes the equitable apportionment rule (“apportioned equally”) for current functions. The 1921 Order supplies an authoritative interpretation of that rule regardless that some events query the legitimacy of that interpretation.

Neither Canada nor america has satisfactory infrastructure amenities to make finest use of their entitlement: the US on the St. Mary, Canada on the Milk.

The doable options to permit every half the chance to make simplest use of its apportionment embody bodily infrastructure options and administrative or rule-based options. Every could have environmental implications (though that is maybe most clearly the case for the bodily infrastructure options). Each must take account of local weather change.

The present IJC initiative is the third within the final 20 years to sort out these points. It isn’t clear to me that it’s arrange for achievement. In my opinion the method wants to acknowledge and grapple with the lexical precedence of the Article VI of the Treaty and the 1921Order. The Research Board will solely be capable of make progress when the IJC itself confirms (or varies) the 1921 Order because the premise for additional evaluation and dialogue.

The Research Board is inviting remark till August 29 on its work plan.


This put up could also be cited as: Nigel Bankes, “The Milk and St. Mary Apportionment: A Subsequent Step?” (August 24, 2022), on-line: ABlawg, http://ablawg.ca/wp-content/uploads/2022/08/Blog_NB_Milk_St_Mary_Apportionment.pdf

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