Participants:
For Canada
Hon. Howard Green - Secretary of State for External Affairs
Mr. Marcel Cadieux - Legal Adviser, Department of External Affair
s Mr. Harrison Cleveland - Chief, American Division, Department of External Affairs
Mr. D.W. Munro - Chief, United States Section, American Division, Department of External Affairs
Mr. Thomas Patterson - Department of Northern Affairs and Natural Resources
Mr. Courtney Kingstone - Legal Division, Department of External Affairs
Mr. Arthur Broadbridge - First Secretary, Canadian Embassy, Washington.
For the United States
Hon. Richard B. Wigglesworth - Ambassador to Canada
Mr. Woodbury Willoughby - Director, BNA
Col. Loren Olmstead - Office of the Chief of Army Engineers
Mr. Rufus Z. Smith - Counselor for Political Affairs, Embassy Ottawa
Mr. John L. Truscott - L/EUR

After a statement of welcome by Mr. Green, the Ambassador outlined the background of and reasons for this consultation. He referred to the Canadian Government's note of April 9, 1959,¹³⁶ which expressed the view that various treaties and arrangements relating to the Great Lakes and the St. Lawrence Seaway would be broken if unilateral action were taken to divert additional water at Chicago. He also referred to the United States Government's reply of June 12, 1959,¹³⁷ which reserved its position with respect to the Canadian legal contentions and proposed that consultations be held on this matter. This proposal was accepted by Canada.

The Ambassador then set forth another reason for the consultation, namely, the referral by the United States Senate of the diversion bill, H.R. 1, to its Foreign Relations Committee which will be making its first examination of such a bill early in the current session of the Congress. He referred to Senator Fulbright's promise to the Senate to request the Department of State to consult with representatives of Canada in order "to ascertain whether some reasonable procedure might be developed whereby Canadian assent could be obtained to the diversion of a reasonable amount of water from Lake Michigan for uses in the United States." The Ambassador stressed that United States representatives were attending this meeting in a spirit of inquiry in order to determine the following:

(1) whether H.R. 1 could not be amended in some way to make it acceptable to Canada;

(2) whether a compensating diversion into the Great Lakes Basin from some source in Canada is not physically possible and economically feasible;

(3) Canadian estimates of the damage, if any, which would be incurred by reason of the diversion contemplated by H.R. 1. (In this connection, the Ambassador noted that U.S. studies indicated the maximum reduction in water levels would be 4/16" for Lakes Michigan and Huron and 3/16" for Lakes Erie and Ontario and that the maximum power reduction upstream of Beauharnois would be only a small fraction of 1% of the total power generated by the plants in question); and

(4) Canadian views on the desirability of a study of the diversion in question by the International Joint Commission or by a specially created international body. The Ambassador also stated that the Department, in presenting its comments on the legal arguments made by Canada in the April 9 note, would not be contending that the United States is justified in proceeding unilaterally with the proposed diversion over Canadian objections.

Mr. Willoughby then took up the specific matters which had been outlined by the Ambassador. He first presented the United States views on the allegations made by Canada in the April 9 note that certain enumerated agreements and understandings relating to the Great Lakes and the St. Lawrence Seaway would be violated by a unilateral increased diversion at Chicago. Certain of those agreements relate to the opening of the St. Lawrence and the Great Lakes to navigation by deep draft ocean vessels by construction of the Seaway and improvement of the connecting channels. Other arrangements referred to in the Canadian note concern the joint development of power in the Niagara and St. Lawrence Rivers. With respect to the former, Mr. Willoughby stated the United States view that while we agree that the Seaway and connecting channel agreements are based on the understanding that there will be no unilateral action destructive thereof, it is a question of fact whether the one year increased diversion of 1000 cfs authorized by H.R. 1 would cause material injury to navigation in the Great Lakes, the connecting channels, and the Seaway. He set forth the belief of the proponents of the proposed legislation, based on estimates by the United States Army Engineers of a maximum lowering of lake levels of 3/16 to 1/4 inches, that H.R. 1 would not cause such injury to navigation. He also indicated that if the Canadian Government had any information to present in support of the opposite conclusion, the United States would, of course, be willing to examine it.

With respect to injury to hydro-electric power interests, Mr. Willoughby stated that although, in our opinion, the Niagara Treaty of 1950 and the International Joint Commission Orders of 1952 and 1956 do not prohibit the diversion contemplated by H.R. 1, the United States shares the Canadian concern regarding any substantial power losses which might result from such diversion.

Mr. Willoughby then reiterated that the foregoing observations were made on the assumption that the Canadian note was directed solely to the pending diversion legislation. He said that if that assumption was not entirely correct and the note also referred to a further or permanent diversion following completion of the study contemplated by H.R. 1, the United States was in accord with the Canadian view that such further diversion, if it caused material injury to navigation, would be inconsistent with the joint arrangements relating to construction of the Seaway and improvement of the connecting channels. He pointed out that, in addition, such further or permanent diversion would aggravate the problem of injury to power interests in the Niagara and St. Lawrence Rivers.

Mr. Willoughby next asked whether there were any ways in which H.R. 1 could be altered to make it acceptable to Canada. He stated that a provision for compensating injured interests had been proposed by certain Congressmen in the course of debates on H.R. 1, and that the United States would be interested in receiving Canadian views on the acceptability of such a provision. Mr. Green suggested that the Canadian response to the questions raised by the United States be deferred until the completion of Mr. Willoughby's presentation.

Mr. Willoughby went on to inquire about the technical possibility and economic feasibility of a further diversion by Canada into the Great Lakes from the Albany River Basin or some other source to offset any increased diversion from Lake Michigan at Chicago. He then mentioned the proposals which have been made in Congress that the international aspects of the diversion legislation be referred either to the International Joint Commission or to a specially appointed International Great Lakes Commission for study.

Mr. Green then presented the views of the Canadian Government on any increased diversion from the Great Lakes Basin unilaterally by the United States. He stressed the great significance to Canada of the St. Lawrence Seaway and related developments and pointed out that 2/3 of Canada's population and a large percentage of its productive capacity are located in the Great Lakes area. Canada views with the utmost concern, he stated, any action by the United States which would tend to interfere with the fullest development and maximum use of the Seaway. Mr. Green then presented the following points:

(1) The lowering effect on water levels of a removal of water from the Great Lakes is of particular importance to navigation and riparian use. The adverse effects on these uses can be most readily observed in the lakes, rivers, connecting channels and harbours. Most of the connecting channels are artificial and have been controlled to a minimum acceptable depth for navigation on the assumption that there would be no decrease in the natural supplies of water. The governing depth of many harbours in Canada is less than the governing depth of the Seaway, and, therefore, every fraction of an inch change in the water levels requires light loading of vessels precisely to that extent. In view of the construction of vessels for purposes of buoyancy, each inch less of draft may represent as much as 100 tons loss of cargo carrying capacity.

(2) Another effect of removal of water is to decrease the volume available for development of hydro-electric power, thus causing losses to Canadian plants at Niagara, Barnhart (in the International Rapids Section of the St. Lawrence), Beauharnois and Lachine. The United States and Canada have agreed that the regulation of flows in the International Rapids Section should be based upon a continuing withdrawal of 3100 cfs from Lake Michigan at Chicago. Any increase in this figure will affect the basis on which the joint power development at Barnhart has been built and will result in a waste of money to the extent that facilities will have been provided which cannot be used because of a decrease in flows. The estimated loss in energy and capacity to Canadian power plants at Niagara and Barnhart from a diversion of 1000 cfs for one year would amount to $359,200. At Beauharnois and Lachine, the full flow of the St. Lawrence River is being developed or will be developed by Hydro Quebec. According to estimates, which are based on a hypothetical additional reduction in flow of 1000 cfs on a permanent basis, the loss in Quebec to existing power installations would amount to $208,000 per year whereas the loss on projected installations would amount to $130,000 annually.

(3) The effects of an additional withdrawal of water from Lake Michigan on Great Lakes power and navigation interests, on navigation in the Mississippi River Basin, and on the treatment of sewage by the City of Chicago are well known already, through reports based on adequate studies of these subjects. Consequently, a one year temporary diversion would not appear necessary to accomplish the purposes of the three-year study envisaged in the pending legislation. It is Canada's conclusion that the goal of those urging the one-year experimental diversion is to prove that a continuing withdrawal of water at Chicago would be desirable.

(4) The two Governments have for many years regarded the waters of the Great Lakes as a great common resource, and have entered into many agreements concerning the use of these waters for various purposes. It has been the position of both Governments, reflected in such agreements, that unilateral action to change the levels and flows of the Lakes is undesirable.

(5) The Canadian Government has attempted to ascertain if any more water could be added to the Great Lakes system from sources within Canada to compensate for an increased diversion at Chicago. The Province of Ontario, which has control over these waters has concluded that to obtain additional water would be uneconomic; the location of any available source of other water and the intervening topography are such that the cost of pumping and piping an adequate quantity would be out of all proportion to the benefits conferred. Apart from these difficulties there would be the question of compensation due to Ontario for the loss of this natural resource.

(6) Constantly improving methods of waste disposal, such as were referred to in the Canadian Aide-Mémoire of January 6, 1958, and including new processes for the disposition of sludge, should make it possible for Chicago to deal adequately with this problem without seeking further to derogate from the great natural resource of the Great Lakes, which is of constantly increasing value to both countries.

(7) Canada's opposition to unilateral action affecting the levels and flows of the Great Lakes as far east as tidewater is fundamental, and no amendment of H.R. 1 would meet the Canadian Government's consistently repeated objections to such legislation.

(8) Both countries have in recent years in many fields of activity attempted to conserve natural resources to make the best use of them. The withdrawal of water from Lake Michigan and the denial of its use to all downstream parties merely to assist in the treatment of sewage waste does not correspond with such conservation.

After Mr. Green had completed his presentation, Mr. Cleveland stated that since 3100 cfs is already being diverted at Chicago, the effects on levels and flows of a one-year increased diversion would be cumulative. He asked whether there could be any assurance from the United States that the proposed additional 1000 cfs diversion would be a ceiling and that there would be no requests for further diversions of greater magnitude in later years. Regarding the problem of compensation for injured Canadian interests, he said that it is not now possible to list all such interests which might suffer damage nor to estimate in monetary terms the amount of their damage. Power losses can be accurately estimated but other types of injury cannot be so predicted.

The Ambassador pointed out that Mr. Cleveland's comments appeared to apply only to a longer diversion than the one-year diversion contemplated by the proposed legislation. In response, Mr. Cleveland said that his foregoing remarks were directed in part to the effects of a one-year diversion but also to the possibility of greater and longer diversions in the future. In this regard, he referred to Section 2(c) of H.R. 1, which raises the possibility of future increased diversions in amounts greater than 1000 cfs.

The Ambassador stated that the proponents of H.R. 1 have questioned whether the Canadian views in opposition thereto are justified solely on the basis of a one-year diversion, without regard to possible future additional ones.

Mr. Cadieux responded that Canada's consent to H.R. 1 would prejudice its position on future proposals for further increased diversions. The Ambassador assured him that there would be no sacrifice of principle involved in the giving of such consent.

Mr. Willoughby made the point that even with the increased diversion authorized by H.R. 1, Chicago would be withdrawing less water than it did prior to 1930. Mr. Green answered that the physical and economic situation in the Great Lakes Basin has changed considerably in recent years and that, in addition, Canada is unalterably opposed to any unilateral action to change the present régime of the Basin, particularly where the proposed change is for the purpose of sewage treatment, which other Great Lakes cities are solving satisfactorily by means other than diversion.

With regard to the problem of compensation, the Ambassador and Mr. Willoughby asked whether H.R. 1 could be made acceptable to Canada by being amended to contain not a specific amount of money for payment to the Canadian Government or to certain injured parties, but rather a remedy, such as a mixed claims commission or some sort of international tribunal, by which all parties alleging damage could have their claims litigated.

Mr. Cleveland answered that such a tribunal would not be able to make restitution for the innumerable losses of an intangible character which might be caused by a decrease in lake levels and flows. He cited an example of immeasurable damage to the economic life and well being of communities through a reduction in the number of ships using their port facilities or carrying their products. Mr. Green then stated that the idea of a claims tribunal was not acceptable to the Canadian Government.

The question of a compensating diversion from Canada into Lake Superior was raised by the Ambassador, and he referred to the Chicago newspaper article's proposal to the effect that such a diversion was possible and feasible.

Mr. Patterson then presented the technical facts concerning this matter. Referring to a map of the Canadian area north of Lake Superior, he gave the historical background of the existing diversions into Superior through the Long Lac and Ogoki works. He stated that the waters of the Moose River and Winnipeg River Basins are already being developed for navigation and power generation and that some waters of the Albany River are already being diverted to the Winnipeg River Basin. He further stated that while there are no basic data regarding the cost and possibilities of diverting certain additional waters from the Albany Basin into Lake Superior, various potential power sites exist on tributaries of the Albany River which Ontario may be interested in developing in the future.

In response to a question from Col. Olmstead, Mr. Patterson said that the diversion of more water through the existing works at Long Lac and Ogoki was not feasible. He agreed, in answer to another question from Col. Olmstead, that there might be other sites at which water could be diverted into Lake Superior but that although the economic feasibility was unknown to him, the physical features indicated that the cost would be high. He reiterated that the limit of the Long Lac and Ogoki works was 5000 cfs. Mr. Patterson asked Col. Olmstead whether there had been any investigation by the United States of proposals to off-set the Chicago diversion by diverting waters from the upper Mississippi River Basin into Lake Michigan or into Lake Superior. Col. Olmstead replied that he did not know whether this matter had been studied in relation to the Chicago diversion and that he was unable to provide any information regarding the feasibility of such diversions from the United States into the Great Lakes Basin.

The Ambassador next requested Canadian comment on the following suggestions made by certain United States parties:

(1) that the diversion problem be referred to the International Joint Commission for study;

(2) that an International Great Lakes Commission be established to study the effects of the experimental diversion and to exercise authority over diversions into Lake Superior.

Mr. Green responded that Canada would not favour the setting up of a new Commission and that although it would be pleased to study the suggested terms of a reference to the International Joint Commission if the United States should decide to propose such a reference, the Canadian Government would never be able to accept any International Joint Commission recommendations which provided for alteration of the Great Lakes levels and flows to the detriment of Canada. He added that a study by the I.J.C. could not solve any of the basic problems posed for Canada by the pending legislation, and emphasized again the great concern with which his Government views this entire matter, particularly in the light of completion of the St. Lawrence Seaway and the numerous projects related thereto (i.e., deeping of harbours, power development).

¹³⁶Voir/See Volume 26, document 283.

¹³⁷Voir/See Volume 26, document 288.