International Joint Commission
Canada and United States
Commission mixte internationale
Canada et États-Unis
November 3, 2014
Mr. Christopher Wilkie
U.S. Transboundary Affairs Division
Foreign Affairs and International Trade Canada
U.S. Relations
125 Sussex Drive
Ottawa, ON K1A 0G2
Ms. Sue Saarnio
Acting Deputy Assistant Secretary
Western Hemisphere Affairs
U.S. State Department
2201 C Street, N.W.
Washington, D.C. 20520
Re: Shoal Lake Diversion
Dear Mr. Wilkie and Ms. Saarnio,
The International Joint Commission (IJC) has received numerous complaints from the First
Nations adjoining Shoal Lake regarding uncompensated harm done to the First Nations’
members and lands due to the water diversion from Shoal Lake by the City of Winnipeg, which
was authorized in the IJC’s Order of 1914 (the Order). Most recently, on the margins of a
meeting of the Rainy Lake of the Woods International Watershed Board, four Commissioners
had the opportunity to meet with Shoal Lake First Nation No. 40 and Iskatewizaagegan
Independent First Nation No. 39. At that time, the issue of the 1914 Order approving the
diversion of water from Shoal Lake and the Lake of the Woods for the Greater Winnipeg Water
District (GWWD) was raised again. In order to familiarize themselves with the area,
Commissioners visited a number of local sites including a tour of the City of Winnipeg’s intake
structure, where an operational briefing, conducted by city staff on the impressive grounds of the
city-owned lodge was most informative. During this visit, we were reminded of the numerous
concerns voiced by the First Nations.
We bring these concerns to the attention of the U.S. and Canadian governments as they may
implicate the IJC’s 1914 Order and the conditions it cites. In 1914 the IJC found that the
request to divert waters from Shoal Lake – not a boundary water - for the purposes of
providing Winnipeg with potable water, was in fact also a diversion of waters from Lake of
the Woods – a boundary water. Therefore, the Commission considered and approved the
diversion, with certain conditions as noted in the 1914 Order, specifically reciting in its
entirety an Ontario Order in Council, which stipulated that full compensation would be made
to all private parties whose lands or properties were taken, injuriously affected, or in any way
interfered with by the Shoal Lake diversion.
At prior separate meetings with the Chiefs of First Nation No. 40 and First Nation No. 39 in
March of 2014, and during the tour in August, Commissioners heard many concerns which we
feel we must convey to you. One of these concerns, voiced by First Nation No. 40, involves
the isolation of their settlement from the rest of their territory for close to 100 years, due to the
construction of a canal bisecting the peninsula on which it is located, effectively creating an
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-2 artificial island. We were told that the City of Winnipeg’s removal of a secure land connection
to First Nation No. 40 has directly led to the deaths of nine First Nation members who fell
through the ice during winter months when crossing the canal by boat is not possible. We also
were concerned to hear that, in spite of being in close proximity to the City of Winnipeg’s
diversion structure and its chlorination capabilities, the First Nation itself has been under a boilwater advisory for the last 18 years. In the course of our discussions, Commissioners heard
numerous claims of other damages incurred by the indigenous residents, and First Nations were
asked to detail the full range of their concerns as they relate to the Order and the Boundary
Waters Treaty. Attached are a letter of May 30, 2014 from Iskatewizaagegan Independent First
Nation No. 39 (Attachment 1); and letters of June 3, 2014 (Attachment 2) and August 20, 2014
(Attachment 3) from legal counsel representing Shoal Lake No. 40 First Nation.
Specific concerns expressed by First Nations No. 40 and No. 39 are outlined below:
a) The Order stipulates that the water diverted from Shoal Lake be used for domestic
and sanitary purposes by the inhabitants of the Greater Winnipeg Water District (which
the Commission understands to now be the City of Winnipeg). First Nations allege that
it is being used for non-domestic and sanitary purposes, and is being used outside of the
City boundaries.
First Nation No. 40: “We further understand that Winnipeg is using Shoal Lake water to
generate profit for the city in contravention of the terms of the Order of Approval which
authorized the GWWD to take Shoal Lake water solely for “domestic and sanitary
purposes.”
First Nation No. 39: “The City of Winnipeg, in permitting various companies to utilize
the waters of Shoal Lake and resell it to consumers in fact turns the water into a
commodity that is well beyond the scope of the IJC’s order for domestic and sanitary
purposes.”
b) The Ontario Order in Council of 1913 that is quoted entirely within the IJC Order
says that “full compensation be made to the Province of Ontario and also to all private
parties whose lands or properties may be taken, injuriously affected or in any way
interfered with” as a result of this diversion. The 1914 Order states that it is, “subject to
certain specified conditions contained in the statutes and orders in council hereinabove
recited,” adding that “the present approval and permission shall in no way interfere with
or prejudice the rights, if any, of any person, corporation, or municipality to damages or
compensation for any injuries due in whole or in part to the diversion permitted and
approved.” First Nation No. 40 alleges the diversion has continuously injured them and
they have never been compensated beyond token compensation made at the time of the
diversion was constructed. First Nation No. 39 makes a similar allegation: “the Nations
and rights have been “injuriously affect[ed],” “interfered with” and “prejudiced” as a
result of the GWWD taking of waters from Shoal Lake, and that the Nation has not been
compensated as per the requirements of the IJC Order.
-3 The Com
mmission would appreciaate the Governments’ dettermination regarding thhe City of
Winnipeg
g’s complian
nce with the provisions of
o the 1914 O
Order, speciifically regarrding the usee of
water and
d compensattion for dam
mages, under definitions ccontained inn Canadian laaw and for
Governm
ments to prov
vide guidancce to the Com
mmission as to any otherr action theyy would direcct
the IJC to
o pursue perrtaining to th
he Shoal Lak
ke diversion.
First Nattion No. 40 has
h requested
d that the IJC
C create an iindependent monitoring body for thee
Shoal Laake diversion
n. No provission was mad
de in the Ordder for such a body. Hoowever, the
Commisssion plans to
o write the City
C of Winniipeg requestting that it annnually provvide to
Commisssion secretarries an accou
unting of thee quantity off its annual w
water withdraawals from
Shoal Laake, and any related wateer quality datta that it colllects.
a the 1913 Ontario
O
Ordeer in Councill is recited inn its entirety in the 1914 O
Order, we haave
Further, as
copied th
he Province of
o Ontario fo
or their inform
mation.
Best,
Gordon W.
W Walker, Q.C.
Q
A/Canad
dian Chair
Lana Pollaack
U.S. Chairr
cc: Hon.. Madeleine Meilleur Attorney Generaal
Miniistry of the Attorney
A
Gen
neral
McM
Murtry-Scottt Building
720 Bay Street, 11th Floor
onto, ON, M7A
M 2S9
Toro
mmer
Hon. David Zim
Miniister of Aborriginal Affaiirs
Miniistry of Aborriginal Affaiirs
4th floor
f
160 Bloor Streett East
onto, ON, M7A
M 2E6
Toro
Chieef Wapioke
Iskattewizaagegaan No. 39 Ind
dependent First Nation
PO Box
B 1
Kejick, ON, P0X
X 1E0
Chieef Redsky
Shoaal Lake FN #40
#
Kejick Post Office
Shoaal Lake, ON,, P0X 1E0
-4 Mayor of Winnipeg
Winnipeg Mayor's Office
510 Main Street
Winnipeg, MB, R3B 1B9
Attachments (3):
1. Letter from Iskatewizaagegan No. 39 Independent First Nation dated May 30, 2014
2. Letter from legal counsel representing Shoal Lake No. 40 First Nation dated June 3,
2014
3. Letter from legal counsel representing Shoal Lake No. 40 First Nation dated August 20,
2014