You will recall that last week you approved and signed the attached draft memorandum informing the Cabinet of the termination of the Mid-Western Watershed Reference, but not recommending any action. This memorandum had received the concurrence of both the Minister of Agriculture and the Minister of Northern Affairs and National Resources.

2. It appears, however, that at the Cabinet meeting on January 5, the Minister of Agriculture presented a memorandum? (also attached) in which mention was made that the Mid-Western Watershed Reference had been terminated. This Department was not consulted about the memorandum of the Minister of Agriculture. It is my understanding that Cabinet action was deferred on this memorandum, but since it revealed the present status of this Reference, it might be considered unnecessary to forward to Cabinet the memorandum prepared by this Department.

3. Despite the unfortunate timing in the submission of these two memoranda, I am of the view that since this is only the second time in the history of the International Joint Commission that the two sections of the Commission have found it necessary to submit separate reports to their respective governments, the information contained in our memorandum should be given to the Cabinet. Therefore, if you approve, arrangements will be made to submit our memorandum, as signed by you, to Cabinet as quickly as possible.¹⁷⁵

J. L[ÉGER]

[PIÈCE JOINTE 1/ENCLOSURE 1]

Note du secrétaire d'État aux Affaires extérieures
pour le Cabinet

Memorandum from Secretary of State for External Affairs
to Cabinet

CONFIDENTIAL

MID-WESTERN WATERSHED REFERENCE TO
THE INTERNATIONAL JOINT COMMISSION

Under date of September 17, 1955, the Canadian Section of the International Joint Commission presented its Report (see Annex) to the Government of Canada relating to the Mid-Western Watershed Reference (No. 1), 12 January, 1948. A separate report to the Canadian Government by the Canadian Section of the International Joint Commission was mandatory under Article IX of the Boundary Waters Treaty of 1909, because the Commission was evenly divided on national lines upon the Reference mentioned above. It is a matter of regret that agreement between the Canadian and United States Sections was not possible, since this is only the second time in the long history of the International Joint Commission that the two Sections of the Commission have found it necessary to submit separate reports to their respective governments.

2. After engineering studies and investigations had been made, the Canadian Section concluded that no practicable, beneficial use of the Waterton and Belly waters within the United States could be made, despite United States claims that a dam in Waterton Lake and a diversion tunnel through the adjacent mountains was possible. The Canadian view was that the tremendous cost of such a tunnel precluded any possibility of the scheme being carried out. Accordingly, in the view of the Canadian Commissioners, no recommendation for apportionment of the waters could be made under the terms of the Reference and so far as Canada was concerned, action on the Reference was, therefore, completed.

3. In order to assist the United States, however, by making water available to irrigate some 70,000 acres in Montana, the Canadian Section offered to the United States Section, as a neighbourly act, a proposal outside the terms of the Reference. This proposal, which had the prior approval of the Canadian Ministers concerned and the Alberta Government, was put forward at the semi-annual meeting of the International Joint Commission on April 1, 1952. The Canadian proposal, which was offered in the form of a draft treaty, contained an offer to transport through Canada waters already apportioned to the United States by the International Joint Commission's St. Mary and Milk Rivers Order of 1921, but which the United States had not been able to use for lack of storage and transportation facilities, as well as certain waters of the Waterton and Belly Rivers which Canada could make available without injury to her own interests. Under this proposal, Canada would construct and operate the canals and other works provided the United States would pay for any capital expenditures and operating costs incurred on behalf of that country.

4. A counter proposal was submitted at the semi-annual meeting of the International Joint Commission in October 1952, by the United States Section which provided that a superior right to half the flow of the Waterton and Belly waters entering Canada would be granted to the United States, and conveyance, storage, regulations and delivery, without cost and without loss of water would be provided by Canada. The Canadian Section did not admit the basis for any such right and accordingly this proposal was not acceptable to the Canadian Section.

5. Further studies on this Reference and on these proposals were made in 1953 and 1954. In March, 1955, the State of Montana placed before the Commission a proposal that since the Waterton and Belly rivers rise in the United States, then Montana was entitled to 50% of the flow of these waters, and in consideration of an agreement by the United States to relinquish these waters an equivalent amount should be diverted from the St. Mary River for use in the United States. The Canadian view was that the principle enunciated by the State of Montana was not in accordance with the Reference of 1948, or with international law as expressed in the Boundary Waters Treaty of 1909.

6. At an executive meeting of the International Joint Commission in April 1955, it was apparent that the divergence of opinion between the Canadian and United States Sections on the Reference could not be reconciled. The Canadian Commissioners remained convinced that there was no plan which would be practicable in the public interest to enable the United States to use the Waterton and Belly waters within its boundaries. Furthermore, it appeared from the conduct of the United States Commissioners that the United States claim to the waters of the Waterton and Belly rivers was not made solely because of a belief that these waters could be used in any practicable way in Montana, but perhaps also because it was hoped that the claim to these waters might be used as a lever to re-open the St. Mary and Milk Rivers settlement of 1921.

7. Since this Reference is now terminated, there is no legal obstacle to prevent the Prairie Farm Rehabilitation Administration from carrying out its plans for works in Canada on the Waterton and Belly Rivers, which have been held in abeyance while this matter was before the International Joint Commission.

8. The Secretary of State for External Affairs, with the concurrence of the Minister of Agriculture, and the Minister of Northern Affairs and National Resources, makes this submission for information only. It is not thought necessary or desirable to make any recommendations on this matter at this time.

L.B. PEARSON

[PIÈCE JOINTE 2/ENCLOSURE 2]

Le secrétaire de la Section canadienne
de la Commission mixte internationale
au secrétaire d'État aux Affaires extérieures

Secretary, Canadian Section, International Joint Commission,
to Secretary of State for External Affairs

[Ottawa], September 21, 1955

Dear Sir:

I enclose copy of report to the Government of Canada by the Canadian members of the International Joint Commission, pursuant to the final paragraph of Article IX of the Boundary Waters Treaty of 1909, relating to the Mid-Western Watershed Reference (No. 1), 12 January, 1948, signed at Regina, Saskatchewan, on 17 September 1955. Yours faithfully,

E.M. SUTHERLAND

[PIÈCE JOINTE 3/ENCLOSURE 3]

Rapport des membres canadiens de la Commission mixte internationale
pour le Gouvernement du Canada

Report from Canadian Members of International Joint Commission
to Government of Canada

FINAL PARAGRAPH OF ARTICLE IX OF THE BOUNDARY WATERS TREATY OF
1909 RELATING TO THE MID-WESTERN WATERSHED REFERENCE (NO. 1)
12 JANUARY, 1948

Under date of 12 January, 1948, the Governments of Canada and the United States submitted a Reference to the International Joint Commission in accordance with Article IX of the Boundary Waters Treaty of 11 January, 1909. The International Joint Commission under the terms of the Reference was directed to examine and report on the following matters, namely:

(1) To investigate and report on the water requirements arising out of the existing dams and other works or projects located in the waters which are of common interest along, across, or in the vicinity of the international boundary from the Continental Divide on the west up to and as far as the western limit of the St. Mary River drainage basin on the east.

(2) To report whether in the judgment of the Commission further uses of these waters within their respective boundaries by Canada and the United States would be practicable in the public interest from the points of view of the two Governments.

(3) Having regard to the reports made under paragraphs 1 and 2, to make advisory recommendations concerning the apportionment which should be made between Canada and the United States of such of the waters under reference as cross the international boundary.

(4) To conduct necessary investigations and to prepare a comprehensive plan or plans of mutual advantage to the two countries for the conservation, control, and utilization of the waters under reference in accordance with the recommended apportionment thereof.

The only rivers affected by the terms of reference are the Waterton and Belly Rivers, both of which rise in the State of Montana and flow northward into the Province of Alberta.

According to the report of the International Waterton-Belly Rivers Engineering Board appointed by the Commission to secure necessary data for the Commission, there are no existing consumptive uses in the United States of the waters of the Waterton and Belly Rivers arising out of existing dams and other works or projects located in these waters; but the water requirements arising out of existing dams and other works or projects located in these waters in Canada as of the date of the Reference are 86,920 acre feet annually increasing to a total of 120,670 acre feet annually under full development of such existing dams and other works or projects, and the water requirements on the Waterton River to provide a minimum flow of 30 c.f.s. to satisfy riparian and other uses in Canada was estimated at 21,710 acre feet. The report indicated that the average annual flow of the Waterton and Belly Rivers crossing the International boundary from Montana into Alberta is 363,200 acre feet.

In the judgment of the Canadian Commissioners there is no plan which would be practicable in the public interest to enable the United States to use these waters in the future within the boundaries of the United States and no real possibility of the United States being able at any time in the future to divert and put to beneficial use any part of these waters within the boundaries of the United States. On the other hand, the Prairie Farm Rehabilitation Administration of Canada, in view of its belief that these waters could not be put to beneficial use within the boundaries of the United States, had made plans prior to the date of the reference to utilize all the water surplus in the Waterton and Belly Rivers on projects in Canada. These plans are based upon sound engineering data and in the judgment of the Canadian Commissioners are practicable and in the public interest. Some of the component parts of the plan were initiated prior to the date of the reference and others are now in process of construction.

Having regard to these facts the Canadian Commissioners were not prepared to prevent the use of any part of these waters by Canada by recommending an apportionment to the United States of these waters which could not be diverted and put to beneficial use within the boundaries of the United States. The Commission being evenly divided upon the matter referred to it for report, this report is made by the Canadian Commissioners to the Government of Canada pursuant to Article IX of the Treaty.

The Canadian Commissioners wish to take this opportunity of recording their appreciation of the technical advice and assistance given to them by the International Waterton-Belly Rivers Engineering Board and the Engineering Committee and other officials of Canada and the United States, and express their regret that a joint report of the Commission was not possible.

Dated at Regina, Saskatchewan, this 17th day of September, A.D. 1955.¹⁷⁶

A.G.L. MCNAUGHTON
George Spence
J. Lucien Dansereau