TO PREVENT DISPUTES
BOU N DA R Y W ATERS TREATY COALITION
BO X C BIRCHDALE, M INNESOTA 55529
THO M AS W O RTH , PRESIDENT
W RITTEN TESTIM ONY
OCTO BER 28TH HEARING
W RITTEN TESTIM O N Y
I. Definition o f the problem/(s)
The Federal G overnm ent of the United States and the Federal Government o f Canada have
international treaties that specifically state the rights of citizens o f both countries on waters
through which the boundary passes. The Federal Governments of both countries must work
together cooperatively to ensure these rights are enforced.
H. Existing Treaties
A. W ebster Ashburton
W ebster Ashburton 1842 T reaty A rticle 2: " It being understood that all the water com m unications
and all the usual portages along the line, fr o m Lake Superior to the Lake o f the Woods and also
Grand Portage, fr o m the shore o f Lake Superior to the Pigeon River, as now actually used, shall be
fr e e and open to the use o f the citizens and subjects o f both countries ."
B. 1909 Boundary W aters Treaty (Roote Bryce Treaty)
The 1909 Boundary W aters T reaty (Roote B ryce Treaty): the purpose as stated in the
proclamation is "to prevent disputes regarding the use o f boundary waters, and to settle all questions
which are now pending between the United States and the Dominion o f Canada involving the rights,
obligations, or interests in relation to the other or to the inhabitants o f the other along their com mon
frontier, and to m ake provision fo r the adjustment and settlem ent o f all such questions as may
hereafter arise..."
C. D efinition o f Boundary W aters (from 1909 Treaty)
It goes on to define the boundary waters through which the boundary passes as "the waters fr o m
m ain shore to m ain shore o f the lakes and rivers and connecting waterways, or the portions thereof,
along which the international boundary between the United States and the Dominion o f Canada
passes, including all bays, arms, and inlets thereof, but not including tributary waters which in their
natural channels would flo w into such lakes, rivers and waterways, or the waters flo w in g fr o m such
lakes, rivers, and waterways, or the waters o f rivers flo w in g across the boundary."
D. D efinition o f the Use o f Boundary W aters
The Treaty goes on to say..” the navigation o f all navigable boundary waters shall fo rever continue
fr e e and open fo r the purposes o f com merce to the inhabitants and to the ships, vessels, and boats o f
both countries equally, subject however, to any laws and regulations o f either country, within its own
territory, not inconsistent with such privilege o f free navigation , and applying equally and without
discrimination to the inhabitants, ships, vessels and boats o f both countries."
F. Bodies o f W ater along M innesota and Ontario from Lake of the W oods to Lake Superior
United States and Canada Boundary Waters Shared by Minnesota and Ontario *
(From West to East)
Lake of the Woods
Rainy River
Rainy Lake
Namakan Lake
Sand Point Lake
Little Vermillion Lake
Loon River
Lac La Croix
Bottle River
Iron Lake
Crooked Lake
Basswood River
Basswood Lake
Sucker Lake
Birch Lake
Carp Lake
Nelon Lake
Seed Lake
Knife Lake
Cypress Lake
Swamp Lake
Saganaga Lake
Marabeouf Lake
Round Lake
Granite River
Granite Lake
Pine Lake
Pine River
Magnetic Lake
Gunflint Lake
Little Gunflint Lake
Little North Lake
North Lake
South Lake
Rat Lake
Rose Lake
W atap Lake
Mountain Lake
Fan Lake
Vaseux Lake
Moose Lake
North Fowl Lake
South Fow l Lake
Pigeon River
E. Others
O ther treaties such as NAFTA and GATT cam e after and are based on the above treaties.
III. Constitutional Basis for International Treaties
The United States Constitution talks about international treaties in A rticle VI, section 2. It states,
"A ll treaties made, or which shall be made, under the authority o f the United States, shall be the
suprem e law o f the land...."
IV. Who Should O bserve and Follow the Treaties?
It seems evident then that federal, state/provincial, and local governments located along the
international border must operate within the guide lines set forth in the above treaties; and that
federal, state/provincial and local governm ental agencies that operate along the international
border must also operate w ithin the guide lines o f the above treaties. C ertainly, the United States
Forest Service and the National Park Service would not be exempt.
V. W hich A gencies have jurisdiction over Border W aters?
There are many agencies that have some form o f jurisdiction over border w aters. H ere is at least
a list o f agencies that are involved: There may be more.
International Joint Commission
U.S. Immigration
Rainy Lake Control Board
Environm ent Canada
Lake o f the W oods Control Board
Canadian Customs
National Park Service
Canadian Coast Guard
U.S. Forest Service
Canadian Immigration
U.S. Environm ental Protection Agency
Ontario M inistry of Nat. Res.
U.S. Departm ent o f Energy
Ontario M inistry of Environm ent
U.S. A rm y o f Engineers
M N Departm ent of Nat. Res.
U.S. Coast Guard
U.S. Customs
Ontario Provincial Police
Koochiching County Sheriff
Roval Canadian M ounted Police
St Louis Countv Sheriff
U.S Federal Energy Regulatory Commission
IV. History of past problems for United States Citizens
A. Problems betw een citizens and United States Agencies
1. The United States Forest Service has restricted use and navigation on the bodies o f w ater
that form the boundary between the United States and Canada. They are not given authority to do
this under any existing agreem ent or treaty. To do so they must make their own laws. These
w aters are clearly coastal w aters and within the jurisdiction of the Boundary W aters Treaty!
2. The National Park Service has enforced rules on boundary w aters that are clearly in
violation of the treaties. They restrict travel on these waters for all uses including commerce.
The waters on Rainy and Namakan are clearly International W aters. It is interesting to note that
in 1971 in the Enabling Legislation for V oyageurs National Park in section 304 it states: "N othing
in this A ct shall be construed to affect the provisions o f any treaty now or hereafter in fo rc e between
the United States and Great Britain relating to Canada or between the United States and Canada , or
o f any order or agreement made or entered into pursuant to any such treaty, which by its terms would
be applicable to the lands and waters which may be acquired by the Secretary hereunder, including,
without limitation on the generality o f the foregoing, the Convention between th e United States and
Canada on Emergency Regulation o f Level o f Rainy Lake and o f Other Boundary Waters in the
Rainy Lake Watershed, signed Septem ber 15,1938, and any order issued pursuant thereto."
In other words the Park is directed to follow the Boundary W aters Treaty in all its regulations.
B.
Problems between M innesota and Ontario
The Province o f O ntario and the State o f M innesota have enforced rules on the above border
waters that are clearly in violation o f the treaties. M any o f these rules have lead to bitter disputes
among the users. At the present time there is a general feeling of unrest on both sides o f the
border.
V. Legal Opinions
A. 1980 Federal D istrict R uling (M iles Lord opinion) M iles Lord ruled that the restrictions
placed on boundary w aters w ere legal because Canada had done so on their side o f the border
when creating the Q uetico Park.
B. 1983 Canadian External Affairs Opinion
I.C. Bacon, D irector G eneral o f the Bureau of Legal Affairs, Federal Canada, states in his opinion
that it was not Canada, but Ontario that created the Quetico Park and therefore the Lord Opinion
was in error. He goes on to say, "T h e banning o f motorboats in boundary waters on either side o f
the Canada-United States border is inconsistent with the Webster-Ashburton Treaty and the
Boundary Waters Treaty."
C. An opinion by M innesota Attorney General Hubert H. Hum phrey HI, dated N ovem ber 4,
1994, states that the 1909 Boundary W aters Treaty is in force and that The United States and
Canada in cooperation with each other have jurisdiction over the regulation o f w ater levels on
border lakes.
D. An opinion by Charlein Enefer M ansfield, Solicitor, Legal Services Branch, O ntario
M inistry o f Natural Resources dated Novem ber 10, 1994, re-enforces the H ubert H. H um phrey HI
opinion in C above.
VI. Recent Efforts to Resolve Disputes
A. Federal Actions: In March 1985, Secretary on Interior W illiam Clark, in a letter to
Secretary o f State George Schulz wrote; " For m any years relations in the Boundary Waters area
adjacent to the Province o f Ontario have been governed by treaty. In recent years, tourism,
charterboat and sport fish in g activities, as well as commercial fish in g pressures in that area have
increased substantially. A s a consequence, competitive pressures have created a situation where the
language o f the treaties, while still generally appropriate, is somewhat antiquated in term s o f fish in g
quotas, use perm its and fees, and recreation generally. He goes on to state; " The inability o f
Minnesota and Ontario to resolve som e o f their legitimate differences o f opinion would appear to
require that we consider this as a m atter o f international significance appropriate fo r discussion.
Finally he states; "Certainly, everyone who is aware o f the situation recognizes the need fo r an
overall m anagem ent strategy in the Boundary Waters area, and I am satisfied that with a little hard
work and appropriate guidance fr o m our policy level, we can m ove to substantially im prove the
situation. Your assistance is appreciated and goes a long way toward solving a problem that is indeed
amenable to solution."
B. State/Provincial Actions: In 1994 , a State and Provincial negotiating team was established
to resolve som e o f the more contentious issues. This effort was unsuccessful. In early 1995, United
States and Canadian M ediators w ere hired to help resolve border issues. T his effort was also
unsuccessful.
The 1995 M innesota State L egislature passed a number o f m easures dealing specifically w ith
border problems. An appropriation o f funds for promotion and improved resource management;
an appropriation of funds for legal research and mediation efforts; tem porary repeal o f retaliatory
legislation; and a House Resolution asking for Federal assistance in resolving these international
disputes.
VTl. Solutions Needed to Solve Current and Future Disputes
A. The United States Governm ent needs to begin to honor the term s of the Boundary W aters
Treaty in all areas that involve the use boundary waters including those in the BW C A, V oyageurs
National Park, and the State of M innesota. The Federal Canadian G overnm ent is obligated to do
the same thing. Federal Canada w ill have to deal with Ontario.
B The United States Governm ent needs to have agreem ent with the Canadian G overnm ent on
all disputes that w e try to resolve that involve the use of boundary w aters such as the BW CA and
the National Park.
C. The United States Governm ent needs to involve the Canadian G overnm ent in resolving the
current disputes that exist in m anagem ent practices that deal with the use o f boundary w aters by
citizens of both The United States and Canada.
4