International Boundary Waters Treaty Act

An Act respecting the International Joint Commission established under the treaty of January 11, 1909 relating to boundary waters Short title This Act may be cited as the International Boundary Waters Treaty Act. Treaty in schedule confirmed The treaty relating to the boundary waters and to questions arising along the boundary between Canada and the United States made between His Majesty, King Edward VII, and the United States, signed at Washington on January 11, 1909, and the protocol of May 5, 1910, in Schedule 1, are hereby confirmed and sanctioned. Laws of Canada and of provinces The laws of Canada and of the provinces are hereby amended and altered so as to permit, authorize and sanction the performance of the obligations undertaken by His Majesty in and under the treaty, and so as to sanction, confer and impose the various rights, duties and disabilities intended by the treaty to be conferred or imposed or to exist within Canada. Interference with international waters Any interference with or diversion from their natural channel of any waters in Canada, which in their natural channels would flow across the boundary between Canada and the United States or into boundary waters, as defined in the treaty, resulting in any injury on the United States side of the boundary, gives the same rights and entitles the injured parties to the same legal remedies as if the injury took place in that part of Canada where the interference or diversion occurs. Exception Subsection (1) does not apply to cases existing on January 11, 1909 or to cases expressly covered by special agreement between Her Majesty and the Government of the United States. Federal Court jurisdiction The Federal Court has jurisdiction at the suit of any injured party or person who claims under this Act in all cases in which it is sought to enforce or determine as against any person any right or obligation arising or claimed under or by virtue of this Act. Commission may compel attendance of witnesses The International Joint Commission, when appointed and constituted pursuant to the treaty, shall have power, when holding joint sessions in Canada, to take evidence on oath and to compel the attendance of witnesses by application to a judge of a superior court of the province in which the session is held, and that judge is hereby authorized and directed to make all orders and issue all processes necessary and appropriate to that end. Salaries of Canadian Commissioners The members of the Canadian section of the International Joint Commission shall be paid such salaries as are fixed by the Governor in Council. Secretary and other employees A Secretary of the Canadian section of the International Joint Commission and such other officers, clerks and employees as are required for the purposes of this Act may be employed under the Public Service Employment Act. Administration This Act shall be administered by the Minister of Foreign Affairs. Definitions The definitions in this section apply in sections 11 to 42. analyst means a person who is designated under section 20.1 to assist an inspector to verify compliance with this Act. (analyste) boundary waters means boundary waters as defined in the treaty. (eaux limitrophes) bulk removal means the removal of water from boundary or transboundary waters and the taking of that water, whether it has been treated or not, outside the Canadian portion of the water basin — set out in Schedule 2 — in which the waters are located by any means of diversion, including by pipeline, canal, tunnel, aqueduct or channel; or by any other means by which more than 50 000 L of water are taken outside the water basin per day. Bulk removal does not include the taking of a manufactured product that contains water, including water and other beverages in bottles or other containers, outside a water basin. (captage massif) inspector means a person who is designated under section 20.1 to verify compliance with this Act. (inspecteur) licence means a licence issued under section 16. (licence) Minister means the Minister of Foreign Affairs. (ministre) non-commercial project means a project involving bulk removal in which no one is required to pay for the water that is removed. (projet non commercial) transboundary waters means those waters that, in their natural channels, flow across the international boundary between Canada and the United States, including those set out in Schedule 3. (eaux transfrontalières) Boundary waters Except in accordance with a licence, no person shall use, obstruct or divert boundary waters, either temporarily or permanently, in a manner that affects, or is likely to affect, in any way the natural level or flow of the boundary waters on the other side of the international boundary. Exceptions Subsection (1) does not apply in respect of the ordinary use of waters for domestic or sanitary purposes, or the exceptions specified in the regulations. Other waters Except in accordance with a licence, no person shall construct or maintain, either temporarily or permanently, any remedial or protective work or any dam or other obstruction in waters flowing from boundary waters, or in downstream waters of rivers flowing across the international boundary, the effect of which is or is likely to raise in any way the natural level of waters on the other side of the international boundary. Subsection (1) does not apply in respect of the exceptions specified in the regulations. Purpose The purpose of this section is to prevent the risk of environmental harm resulting from bulk removal. Prohibition — removal of boundary waters Despite section 11, the bulk removal of boundary waters is prohibited. Prohibition — removal of transboundary waters Despite section 12, the bulk removal of transboundary waters is prohibited. Deeming For the purposes of subsections (1) and (2) and the application of the treaty, bulk removal is deemed, given its cumulative effects on boundary waters and on transboundary waters that flow to the United States, to affect the natural level or flow of those waters on the other side of the international boundary. Subsections (1) and (2) do not apply in respect of boundary waters or transboundary waters that are used in a vehicle, including a vessel, aircraft or train, as ballast, for the operation of the vehicle, or for people, animals or goods on or in the vehicle; or in a non-commercial project on a short-term basis for firefighting or humanitarian purposes. Binding on Her Majesty Sections 11 to 13 are binding on Her Majesty in right of Canada or a province. Application Sections 11, 12 and 13 do not apply in respect of uses, obstructions or diversions in existence immediately before the respective coming into force of those sections, but those sections do apply in respect of such uses, obstructions or diversions if significant changes occur to them after their respective coming into force. Licence Subject to the regulations, the Minister may, on application, issue, renew or amend a licence to do any activity referred to in subsection 11(1) or 12(1), subject to any terms or conditions the Minister considers appropriate. Transfer A licence is not transferable except with the consent of the Minister. Suspension and revocation of licence The Minister may suspend or revoke a licence whenever the Minister believes on reasonable grounds that the licensee has contravened this Act or a condition of the licence, but the licensee must first be given notice in writing by the Minister of the reasons for the suspension or revocation and a reasonable opportunity to make representations to the Minister. Consent of licensee The Minister may also suspend or revoke a licence with the consent of, or on application by, the licensee. Ministerial orders If a person contravenes subsection 11(1), 12(1) or 13(1) or (2), the Minister may order the person to remove or alter any obstruction or work to which the contravention relates; or order the person to refrain from proceeding with any construction or other work, or to cease the use or diversion, to which the contravention relates. Powers of Minister If the person fails to comply with an order made under paragraph (1)(a) or (b), the Minister may remove or alter anything referred to in paragraph (1)(a) or used in relation to any activity referred to in paragraph (1)(b) or order it to be forfeited to Her Majesty in right of Canada. Disposition Anything forfeited under subsection (2) may be removed, destroyed or otherwise disposed of as the Minister directs. Costs recoverable The Minister’s cost of removing or altering anything under subsection (2) and the costs of and incidental to the removal, destruction or disposition under subsection (3) of anything forfeited, less any sum that may be realized from its disposition, are recoverable by Her Majesty in right of Canada from the person who contravened the order made under subsection (1) as a debt due to Her Majesty in any court of competent jurisdiction. Agreements with provinces The Minister may, with the approval of the Governor in Council, enter into an agreement or arrangement with the government of one or more provinces respecting the activities referred to in sections 11 to 13. Power to designate For the purposes of the administration and enforcement of this Act, the Minister may designate persons or classes of persons to exercise powers in relation to any matter referred to in the designation, including, with the approval of a provincial government, persons or classes of persons who are authorized by that government to exercise powers and carry out functions with respect to bodies of water in the province. Authority to enter An inspector may, for the purpose of verifying compliance with this Act, enter a place, including a vehicle, in which they have reasonable grounds to believe an object to which this Act applies is located or an activity regulated by this Act is taking place. Powers on entry The inspector may, for that purpose, examine anything in the place; use any means of communication in the place or cause it to be used; use any computer system in the place, or cause it to be used, to examine data contained in or available to it; prepare a document, or cause one to be prepared, based on the data; use any copying equipment in the place, or cause it to be used; remove anything from the place for examination or copying; direct any person to put any machinery, vehicle or equipment in the place into operation or to cease operating it; prohibit or limit access to all or part of the place; take samples of anything in the place; and conduct tests on, or take measurements of, anything in the place. Dwelling-house If the place is a dwelling-house, the inspector may enter it without the occupant’s consent only under the authority of a warrant issued under subsection (4). Authority to issue warrant — dwelling-house On ex parte application, a justice of the peace may issue a warrant authorizing an inspector who is named in it to enter a dwelling-house, subject to any conditions specified in the warrant, if the justice is satisfied by information on oath that the dwelling-house is a place referred to in subsection (1); entry to the dwelling-house is necessary to verify compliance with this Act; and entry was refused by the occupant or there are reasonable grounds to believe that entry will be refused or that consent to entry cannot be obtained from the occupant. Use of force In executing a warrant to enter a dwelling-house, an inspector may use force only if the use of force has been specifically authorized in the warrant and the inspector is accompanied by a peace officer. Authority to issue warrant — non-dwelling-houses On ex parte application, a justice of the peace may issue a warrant authorizing an inspector who is named in it to enter a place other than a dwelling-house, subject to any conditions specified in the warrant, if the justice is satisfied by information on oath that the place is a place referred to in subsection (1); entry to the place is necessary to verify compliance with this Act; entry was refused by the occupant or there are reasonable grounds to believe that entry will be refused, that consent to entry cannot be obtained from the occupant, that entry cannot be effected without the use of force or that the place is abandoned; and all reasonable attempts were made to notify the owner, operator or person in charge of the place. Waiving notice The justice may waive the requirement to give notice under paragraph (6)(d) if he or she is satisfied that attempts to give the notice would be unsuccessful because the owner, operator or person in charge is absent from the justice’s jurisdiction or that it is not in the public interest to give the notice. Stopping and detaining vehicles For the purpose of verifying compliance with this Act, an inspector may, at any reasonable time, direct that any vehicle be stopped — or be moved, by the route and in the manner that they specify, to a specified place — and they may, for a reasonable time, detain that vehicle. Authority of analyst An analyst may, at an inspector’s request, accompany them into a place for the purpose of assisting them to verify compliance with this Act. The analyst may, for that purpose, Disposition of sample An inspector or analyst may dispose of a sample taken in the place in any manner that they consider appropriate. Entry on private property For the purpose of gaining entry to a place referred to in subsection 20.2(1), an inspector and any analyst accompanying them may enter private property and pass through it, and are not liable for doing so. For greater certainty, no person has a right to object to that use of the property and no warrant is required for the entry, unless the property is a dwelling-house. Accompanying person A person may, at the inspector’s request, accompany the inspector to assist them to gain entry to the place referred to in subsection 20.2(1) and is not liable for doing so. Assistance The owner or person in charge of the place and every person in the place shall give all assistance that is reasonably required to enable the inspector to verify compliance with this Act and shall provide any documents, data or information that is reasonably required for that purpose. Certificate The Minister shall provide every inspector and analyst with a certificate of designation and, on entering a place, they shall produce the certificate to the person in charge of the place on request. Immunity An inspector and an analyst are not personally liable for anything they do or omit to do in good faith in carrying out their functions. Production of documents and samples The Minister may, for the purpose of verifying compliance with this Act, by registered letter or by a demand served personally, require any person, within any reasonable time and in any reasonable manner that may be stipulated in the letter or demand, to produce at a place specified by the Minister any sample taken or any document; or to conduct any tests or take any measurements or samples there. Compliance Any person who is required to do anything under subsection (1) shall, despite any law to the contrary, comply with the requirement. Regulations The Governor in Council may, on the recommendation of the Minister, make regulations specifying what constitutes a use, obstruction, diversion or work for the purposes of this Act; defining, for the purposes of this Act, any word or expression used in sections 11 to 42 that is not defined in this Act; [Repealed, 2013, c. 12, s. 8] specifying exceptions to the application of subsections 11(1) and 12(1); prescribing classes of licences and determining the persons who are eligible to hold licences of any particular class; respecting applications for licences, including the form of the applications, the information to be provided in respect of the applications and the manner in which the applications are to be filed, processed and disposed of; respecting the form of licences and the information they must include and requiring licensees to publish or otherwise make them available for public inspection; prescribing fees, or the manner of calculating fees, in respect of licences and prescribing the manner in which the fees are to be paid; prescribing the duration of licences; respecting the renewal and amendment of licences; prescribing uses, obstructions, diversions and works for which a licence may not be issued; and generally for carrying out the purposes and provisions of this Act. Ordinary meaning applies For greater certainty, regulations made under paragraph (1)(a) do not restrict the ordinary meaning of the words “use”, “obstruction”, “diversion” or “work”. Order — Schedule 3 The Governor in Council may, by order, on the Minister’s recommendation, amend Schedule 3 by adding, deleting or amending the name of any transboundary waters. Consultation Before recommending that Schedule 3 be amended, the Minister is to consult with the appropriate Minister of the province where the transboundary waters are located. [Repealed, 2024, c. 30, s. 3] Obstruction Obstructing a person designated under section 20.1 or hindering them in carrying out their functions under this Act is prohibited. Knowingly providing false or misleading information, etc. It is prohibited to, with respect to any matter related to this Act, knowingly provide any person with false or misleading information, results or samples; or file a document that contains false or misleading information. Negligently providing false or misleading information, etc. It is prohibited to, with respect to any matter related to this Act, negligently Offence Every person commits an offence who contravenes subsection 11(1), 12(1) or 13(1) or (2) or section 22; an order made by the Minister under section 19; subsection 23(1); or an order made by a court under this Act. Penalty — individuals Every individual who commits an offence under subsection (1) is liable on conviction on indictment for a first offence, to a fine of not less than $15,000 and not more than $1,000,000 or to imprisonment for a term of not more than five years, or to both, and for a second or subsequent offence, to a fine of not less than $30,000 and not more than $2,000,000 or to imprisonment for a term of not more than five years, or to both; or on summary conviction for a first offence, to a fine of not less than $5,000 and not more than $300,000 or to imprisonment for a term of not more than six months, or to both, and for a second or subsequent offence, to a fine of not less than $10,000 and not more than $600,000 or to imprisonment for a term of not more than six months, or to both. Penalty — other persons Every person, other than an individual or a corporation referred to in subsection (4), who commits an offence under subsection (1) is liable for a first offence, to a fine of not less than $500,000 and not more than $6,000,000, and for a second or subsequent offence, to a fine of not less than $1,000,000 and not more than $12,000,000; or for a first offence, to a fine of not less than $100,000 and not more than $4,000,000, and for a second or subsequent offence, to a fine of not less than $200,000 and not more than $8,000,000. Penalty — small revenue corporations Every corporation that commits an offence under subsection (1) and that the court determines under section 29 to be a small revenue corporation is liable for a first offence, to a fine of not less than $75,000 and not more than $4,000,000, and for a second or subsequent offence, to a fine of not less than $150,000 and not more than $8,000,000; or for a first offence, to a fine of not less than $25,000 and not more than $2,000,000, and for a second or subsequent offence, to a fine of not less than $50,000 and not more than $4,000,000. Every person commits an offence who contravenes any provision of the Act or the regulations, other than a provision the contravention of which is an offence under subsection 24(1). for a first offence, to a fine of not more than $100,000, and for a second or subsequent offence, to a fine of not more than $200,000; or for a first offence, to a fine of not more than $25,000, and for a second or subsequent offence, to a fine of not more than $50,000. Every person, other than an individual or a corporation referred to in subsection (4), that commits an offence under subsection (1) is liable for a first offence, to a fine of not more than $500,000, and for a second or subsequent offence, to a fine of not more than $1,000,000; or for a first offence, to a fine of not more than $250,000, and for a second or subsequent offence, to a fine of not more than $500,000. for a second or subsequent offence, to a fine of not more than $500,000; or for a first offence, to a fine of not more than $50,000, and for a second or subsequent offence, to a fine of not more than $100,000. Due diligence A person is not to be convicted of an offence under paragraph 24(1)(a), (b) or (d) or subsection 25(1) if they establish that they exercised due diligence to prevent the commission of the offence. Continuing offence If an offence under this Act is committed or continued on more than one day, it constitutes a separate offence for each day on which it is committed or continued. Deeming — second and subsequent offence For the purposes of sections 24 and 25, a conviction for a particular offence under this Act is deemed to be a conviction for a second or subsequent offence if the court is satisfied that the offender has been previously convicted — under any Act of Parliament, or any Act of the legislature of a province, that relates to water resource management — of a substantially similar offence. Subsection (1) applies only to previous convictions on indictment, to previous convictions on summary conviction, and to previous convictions under any similar procedure under any Act of the legislature of a province. Determination of small revenue corporation status For the purposes of sections 24 and 25, a court may determine a corporation to be a small revenue corporation if the court is satisfied that the corporation’s gross revenues for the 12 months immediately before the day on which the subject matter of the proceedings arose — or, if it arose on more than one day, for the 12 months immediately before the first day on which the subject matter of the proceedings arose — were not more than $5,000,000. Relief from minimum fine The court may impose a fine that is less than the minimum amount provided for in any of subsections 24(2) to (4) if it is satisfied, on the basis of evidence submitted to the court, that the minimum fine would cause undue financial hardship. The court shall provide reasons if it imposes a fine that is less than the minimum amount provided for in the subsection. Additional fine If a person is convicted of an offence under this Act and the court is satisfied that, as a result of the commission of the offence, the person acquired any property, benefit or advantage, the court shall order the person to pay an additional fine in an amount equal to the court’s estimation of the value of that property, benefit or advantage. The additional fine may exceed the maximum amount of any fine that may otherwise be imposed under this Act. Notice to shareholders If a corporation that has shareholders has been convicted of an offence under this Act, the court shall make an order directing the corporation to notify its shareholders, in the manner and within the time directed by the court, of the facts relating to the commission of the offence and of the details of the punishment imposed. Liability of directors, officers, etc., of corporation If a corporation commits an offence under this Act, any director, officer, agent or mandatary of the corporation who directed, authorized, assented to, acquiesced or participated in the commission of the offence is a party to and guilty of the offence and is liable on conviction to the penalty provided for by this Act for an individual in respect of the offence committed by the corporation, whether or not the corporation has been prosecuted or convicted. Offences by employees, agents or mandataries In any prosecution for an offence under this Act, it is sufficient proof of the offence to establish that it was committed by the accused’s employee acting within the scope of their employment or the accused’s agent or mandatary acting within the scope of their authority, whether or not the employee, agent or mandatary is identified or has been prosecuted for the offence, unless the accused establishes that the accused exercised due diligence to prevent the commission of the offence. Fundamental purpose of sentencing The fundamental purpose of sentencing for offences under this Act is to contribute to respect for this Act through the imposition of just sanctions that have as their objectives to deter the offender and other persons from committing offences under this Act; to denounce unlawful conduct that causes damage or risk of damage to water resources; and to restore the environment harmed by the offence. Sentencing principles In addition to the principles and factors that the court is otherwise required to consider, including those set out in sections 718.1 to 718.21 of the Criminal Code, the court shall consider the following principles when sentencing a person who is convicted of an offence under this Act: the amount of the fine should be increased to account for every aggravating factor associated with the offence, including the aggravating factors set out in subsection (2); and the amount of the fine should reflect the gravity of each aggravating factor associated with the offence. Aggravating factors The aggravating factors are the following: the offence caused damage or risk of damage to the environment; the offence caused damage or risk of damage to any unique, particularly important or vulnerable environment; the damage caused by the offence is extensive, persistent or irreparable; other than in the case of a contravention of subsection 23(1), the offender committed the offence intentionally or recklessly; the offender failed to take reasonable steps to prevent the commission of the offence despite having the financial means to do so; by committing the offence or failing to take action to prevent its commission, the offender increased revenue or decreased costs or intended to increase revenue or decrease costs; the offender committed the offence despite having been warned in writing by an inspector of the circumstances that subsequently became the subject of the offence; the offender has a history of non-compliance with federal or provincial legislation that relates to water resource management; and after the commission of the offence, the offender attempted to conceal its commission, failed to take prompt action to prevent, mitigate or remediate its effects, or failed to take prompt action to reduce the risk of committing similar offences in the future. Absence of aggravating factor The absence of an aggravating factor set out in subsection (2) is not a mitigating factor. Meaning of damage For the purposes of paragraphs (2)(a) to (c), damage includes loss of use value and non-use value. Reasons If the court is satisfied of the existence of one or more of the aggravating factors set out in subsection (2) but decides not to increase the amount of the fine because of the factor, the court shall give reasons for that decision. Orders of court If a person is convicted of an offence under this Act, in addition to any punishment imposed, the court may, having regard to the nature of the offence and the circumstances surrounding its commission, make an order containing one or more of the following prohibitions, directions or requirements: prohibiting the person from doing any act or engaging in any activity that may, in the opinion of the court, result in the continuation or repetition of the offence; directing the person to take any action that the court considers appropriate to remedy or avoid any damage to the environment that resulted or may result from the commission of the offence; directing the person to post a bond, provide surety or pay into court an amount of money that the court considers appropriate for the purpose of ensuring compliance with any prohibition, direction or requirement mentioned in this subsection; directing the person to carry out environmental effects monitoring in the manner established by the Minister or directing the person to pay, in the manner specified by the court, an amount for the purposes of environmental effects monitoring; directing the person to implement an environmental management system that meets a recognized Canadian or international standard specified by the court; directing the person to pay to Her Majesty in right of Canada an amount of money that the court considers appropriate for the purpose of promoting sustainable water resource management; directing the person to publish, in the manner specified by the court, the facts relating to the commission of the offence and the details of the punishment imposed, including any orders made under this subsection; directing the person to notify, at the person’s own cost and in the manner specified by the court, any person aggrieved or affected by the person’s conduct of the facts relating to the commission of the offence and of the details of the punishment imposed, including any orders made under this subsection; directing the person to submit to the Minister, when requested to do so by the Minister at any time within three years after the date of conviction, any information with respect to the person’s activities that the court considers appropriate in the circumstances; directing the person to compensate any person, monetarily or otherwise, in whole or in part, for the cost of any remedial or preventive action taken, caused to be taken or to be taken as a result of the act or omission that constituted the offence, including costs of assessing appropriate remedial or preventive action; directing the person to perform community service, subject to any reasonable conditions that may be imposed in the order; requiring the person to surrender to the Minister any licence issued under this Act to the person; prohibiting the person from applying for any new licence under this Act during any period that the court considers appropriate; and requiring the person to comply with any other conditions that the court considers appropriate for securing the person’s good conduct and for deterring the person and any other person from committing offences under this Act. Publication If a person fails to comply with an order made under paragraph (1)(g), the Minister may, in the manner that the court directed the person to do so, publish the facts relating to the commission of the offence and the details of the punishment imposed and recover the costs of publication from the person. Debt due to Her Majesty If the court makes an order under paragraph (1)(f) or (j) directing a person to pay an amount to Her Majesty in right of Canada, or if the Minister incurs publication costs under subsection (2), the amount or the costs, as the case may be, constitute a debt due to Her Majesty in right of Canada and may be recovered in any court of competent jurisdiction. Enforcement If the court makes an order under paragraph (1)(j) directing a person to compensate another person, other than Her Majesty in right of Canada, that other person may, by filing the order, enter as a judgment, in the superior court of the province in which the trial was held, the amount ordered to be paid, and that judgment is enforceable against the person who was directed to pay the amount in the same manner as if it were a judgment rendered against them in that court in civil proceedings. Cancellation or suspension of licences If the court makes an order under paragraph (1)(l), any licence to which the order relates is cancelled unless the court makes an order suspending it for any period that the court considers appropriate. Coming into force and duration of order An order made under subsection (1) comes into force on the day on which it is made or on any other day that the court may determine and does not continue in force for more than three years after that day unless the court provides otherwise in the order. Compensation for loss of property If a person has been convicted of an offence under this Act, the court may, at the time sentence is imposed and on the application of the person aggrieved, order the offender to pay to the aggrieved person an amount by way of satisfaction or compensation for loss of or damage to property suffered by that person as a result of the commission of the offence. If the amount ordered to be paid is not paid without delay, the aggrieved person may, by filing the order, enter as a judgment, in the superior court of the province in which the trial was held, the amount ordered to be paid, and that judgment is enforceable against the offender in the same manner as if it were a judgment rendered against the offender in that court in civil proceedings. Limitation period No proceedings by way of summary conviction in respect of an offence under this Act may be instituted more than five years after the day on which the subject matter of the proceedings arose, unless the prosecutor and the defendant agree that they may be instituted after the five years. Publication of information about contraventions For the purpose of encouraging compliance with this Act and the regulations, the Minister shall maintain, in a registry accessible to the public, information about all convictions of corporations for offences under this Act. Retention Information in the registry is to be maintained for a minimum of five years. Injunctions If, on the application of the Minister, it appears to a court of competent jurisdiction that a person has done or is about to do or is likely to do any act or thing constituting or directed toward the commission of an offence under this Act, the court may issue an injunction ordering any person named in the application to refrain from doing any act or thing that it appears to the court may constitute or be directed toward the commission of the offence; or to do any act or thing that it appears to the court may prevent the commission of the offence. Notice The party or parties named in the application are to be given 48 hours’ notice before the injunction is issued, unless the urgency of the situation is such that service of notice would not be in the public interest. Review — sections 24 to 41 The Minister shall, 10 years after the day on which this section comes into force and every 10 years after that, undertake a review of sections 24 to 41. Report to Parliament The Minister shall, no later than one year after the day on which the review is undertaken, cause a report on the review to be tabled in each House of Parliament. Treaty relating to Boundary Waters and Questions arising along the Boundary between Canada and the United States, signed at Washington, January 11, 1909 His Majesty the King of the United Kingdom of Great Britain and Ireland and of the British Dominions beyond the Seas, Emperor of India, and the United States of America, being equally desirous to prevent disputes regarding the use of boundary waters and to settle all questions which are now pending between the United States and the Dominion of Canada involving the rights, obligations, or interests of either in relation to the other or to the inhabitants of the other, along their common frontier, and to make provision for the adjustment and settlement of all such questions as may hereafter arise, have resolved to conclude a treaty in furtherance of these ends, and for that purpose have appointed as their respective plenipotentiaries: His Britannic Majesty, the Right Honourable James Bryce, O.M., his Ambassador Extraordinary and Plenipotentiary at Washington; and The President of the United States of America, Elihu Root, Secretary of State of the United States; Who, after having communicated to one another their full powers, found in good and due form, have agreed upon the following articles: For the purposes of this treaty boundary waters are defined as the waters from main shore to main shore of the lakes and rivers and connecting waterways, or the portions thereof, along which the international boundary between the United States and the Dominion of Canada passes, including all bays, arms, and inlets thereof, but not including tributary waters which in their natural channels would flow into such lakes, rivers, and waterways, or waters flowing from such lakes, rivers, and waterways, or the waters of rivers flowing across the boundary. The High Contracting Parties agree that the navigation of all navigable boundary waters shall forever continue free and open for the purposes of commerce to the inhabitants and to the ships, vessels, and boats of both countries equally, subject, however, to any laws and regulations of either country, within its own territory, not inconsistent with such privilege of free navigation and applying equally and without discrimination to the inhabitants, ships, vessels, and boats of both countries. It is further agreed that so long as this treaty shall remain in force, this same right of navigation shall extend to the waters of Lake Michigan and to all canals connecting boundary waters, and now existing or which may hereafter be constructed on either side of the line. Either of the High Contracting Parties may adopt rules and regulations governing the use of such canals within its own territory and may charge tolls for the use thereof, but all such rules and regulations and all tolls charged shall apply alike to the subjects or citizens of the High Contracting Parties and the ships, vessels, and boats of both of the High Contracting Parties, and they shall be placed on terms of equality in the use thereof. Each of the High Contracting Parties reserves to itself or to the several State Governments on the one side and the Dominion or Provincial Governments on the other as the case may be, subject to any treaty provisions now existing with respect thereto, the exclusive jurisdiction and control over the use and diversion, whether temporary or permanent, of all waters on its own side of the line which in their natural channels would flow across the boundary or into boundary waters; but it is agreed that any interference with or diversion from their natural channel of such waters on either side of the boundary, resulting in any injury on the other side of the boundary, shall give rise to the same rights and entitle the injured parties to the same legal remedies as if such injury took place in the country where such diversion or interference occurs; but this provision shall not apply to cases already existing or to cases expressly covered by special agreement between the parties hereto. It is understood, however, that neither of the High Contracting Parties intends by the foregoing provision to surrender any right, which it may have, to object to any interference with or diversions of waters on the other side of the boundary the effect of which would be productive of material injury to the navigation interests on its own side of the boundary. It is agreed that, in addition to the uses, obstructions, and diversions heretofore permitted or hereafter provided for by special agreement between the Parties hereto, no further or other uses or obstructions or diversions, whether temporary or permanent, of boundary waters on either side of the line, affecting the natural level or flow of boundary waters on the other side of the line, shall be made except by authority of the United States or the Dominion of Canada within their respective jurisdictions and with the approval, as hereinafter provided, of a joint commission, to be known as the International Joint Commission. The foregoing provisions are not intended to limit or interfere with the existing rights of the Government of the United States on the one side and the Government of the Dominion of Canada on the other, to undertake and carry on governmental works in boundary waters for the deepening of channels, the construction of breakwaters, the improvement of harbors, and other governmental works for the benefit of commerce and navigation, provided that such works are wholly on its own side of the line and do not materially affect the level or flow of the boundary waters on the other, nor are such provisions intended to interfere with the ordinary use of such waters for domestic and sanitary purposes. The High Contracting Parties agree that, except in cases provided for by special agreement between them, they will not permit the construction or maintenance on their respective sides of the boundary of any remedial or protective works or any dams or other obstructions in waters flowing from boundary waters or in waters at a lower level than the boundary in rivers flowing across the boundary, the effect of which is to raise the natural level of waters on the other side of the boundary unless the construction or maintenance thereof is approved by the aforesaid International Joint Commission. It is further agreed that the waters herein defined as boundary waters and waters flowing across the boundary shall not be polluted on either side to the injury of health or property on the other. The High Contracting Parties agree that it is expedient to limit the diversion of waters from the Niagara River so that the level of Lake Erie and the flow of the stream shall not be appreciably affected. It is the desire of both Parties to accomplish this object with the least possible injury to investments which have already been made in the construction of power plants on the United States side of the river under grants of authority from the State of New York, and on the Canadian side of the river under licenses authorized by the Dominion of Canada and the Province of Ontario. So long as this treaty shall remain in force, no diversion of the waters of the Niagara River above the Falls from the natural course and stream thereof shall be permitted except for the purposes and to the extent hereinafter provided. *The United States may authorize and permit the diversion within the State of New York of the waters of the said river above the Falls of Niagara, for power purposes, not exceeding in the aggregate a daily diversion at the rate of twenty thousand cubic feet of water per second. *The United Kingdom, by the Dominion of Canada, or the Province of Ontario, may authorize and permit the diversion within the Province of Ontario of the waters of said river above the Falls of Niagara, for power purposes, not exceeding in the aggregate a daily diversion at the rate of thirty-six thousand cubic feet of water per second. *The prohibitions of this article shall not apply to the diversion of water for sanitary or domestic purposes, or for the service of canals for the purposes of navigation. [NOTE: Article I of the treaty between Canada and the United States concerning the diversion of the Niagara River, which came into force on October 10, 1950, provides as follows: “This Treaty shall terminate the third, fourth, and fifth paragraphs of Article V of the treaty between Great Britain and the United States of America relating to boundary waters and questions arising between Canada and the United States of America dated January 11, 1909, and the provisions embodied in the notes exchanged between the Government of Canada and the Government of the United States of America at Washington on May 20, 1941, October 27, 1941, November 27, 1941, and December 23, 1948 regarding temporary diversions of water of the Niagara River for power purposes.”] The High Contracting Parties agree that the St. Mary and Milk Rivers and their tributaries (in the State of Montana and the Provinces of Alberta and Saskatchewan) are to be treated as one stream for the purposes of irrigation and power, and the waters thereof shall be apportioned equally between the two countries, but in making such equal apportionment more than half may be taken from one river and less than half from the other by either country so as to afford a more beneficial use to each. It is further agreed that in the division of such waters during the irrigation season, between the 1st of April and 31st of October, inclusive, annually, the United States is entitled to a prior appropriation of 500 cubic feet per second of the waters of the Milk River, or so much of such amount as constitutes three-fourths of its natural flow, and that Canada is entitled to a prior appropriation of 500 cubic feet per second of the flow of St. Mary River, or so much of such amount as constitutes three-fourths of its natural flow. The channel of the Milk River in Canada may be used at the convenience of the United States for the conveyance, while passing through Canadian territory, of waters diverted from the St. Mary River. The provisions of Article II of this treaty shall apply to any injury resulting to property in Canada from the conveyance of such waters through the Milk River. The measurement and apportionment of the water to be used by each country shall from time to time be made jointly by the properly constituted reclamation officers of the United States and the properly constituted irrigation officers of His Majesty under the direction of the International Joint Commission. The High Contracting Parties agree to establish and maintain an International Joint Commission of the United States and Canada composed of six commissioners, three on the part of the United States appointed by the President thereof, and three on the part of the United Kingdom appointed by His Majesty on the recommendation of the Governor in Council of the Dominion of Canada. This International Joint Commission shall have jurisdiction over and shall pass upon all cases involving the use or obstruction or diversion of the waters with respect to which under Articles III and IV of this treaty the approval of this Commission is required, and in passing upon such cases the Commission shall be governed by the following rules or principles which are adopted by the High Contracting Parties for this purpose: The High Contracting Parties shall have, each on its own side of the boundary, equal and similar rights in the use of the waters hereinbefore defined as boundary waters. The following order of precedence shall be observed among the various uses enumerated hereinafter for these waters, and no use shall be permitted which tends materially to conflict with or restrain any other use which is given preference over it in this order of precedence: Uses for domestic and sanitary purposes; Uses for navigation, including the service of canals for the purposes of navigation; Uses for power and for irrigation purposes. The foregoing provisions shall not apply to or disturb any existing uses of boundary waters on either side of the boundary. The requirement for an equal division may in the discretion of the Commission be suspended in cases of temporary diversions along boundary waters at points where such equal division can not be made advantageously on account of local conditions, and where such diversion does not diminish elsewhere the amount available for use on the other side. The Commission in its discretion may make its approval in any case conditional upon the construction of remedial or protective works to compensate so far as possible for the particular use or diversion proposed, and in such cases may require that suitable and adequate provision, approved by the Commission, be made for the protection and indemnity against injury of any interests on either side of the boundary.

In cases involving the elevation of the natural level of waters on either side of the line as a result of the construction or maintenance on the other side of remedial or protective works or dams or other obstructions in boundary waters or in waters flowing therefrom or in waters below the boundary in rivers flowing across the boundary, the Commission shall require, as a condition of its approval thereof, that suitable and adequate provision, approved by it, be made for the protection and indemnity of all interests on the other side of the line which may be injured thereby. The majority of the Commissioners shall have power to render a decision. In case the Commission is evenly divided upon any question or matter presented to it for decision, separate reports shall be made by the Commissioners on each side to their own Government. The High Contracting Parties shall thereupon endeavor to agree upon an adjustment of the question or matter of difference, and if an agreement is reached between them, it shall be reduced to writing in the form of a protocol and shall be communicated to the Commissioners, who shall take such further proceedings as may be necessary to carry out such agreement. The High Contracting Parties further agree that any other questions or matters of difference arising between them involving the rights, obligations, or interests of either in relation to the other or to the inhabitants of the other, along the common frontier between the United States and the Dominion of Canada, shall be referred from time to time to the International Joint Commission for examination and report, whenever either the Government of the United States or the Government of the Dominion of Canada shall request that such questions or matters of difference be so referred. The International Joint Commission is authorized in each case so referred to examine into and report upon the facts and circumstances of the particular questions and matters referred, together with such conclusions and recommendations as may be appropriate, subject, however, to any restrictions or exceptions which may be imposed with respect thereto by the terms of the reference. Such reports of the Commission shall not be regarded as decisions of the questions or matters so submitted either on the facts or the law, and shall in no way have the character of an arbitral award. The Commission shall make a joint report to both Governments in all cases in which all or a majority of the Commissioners agree, and in case of disagreement the minority may make a joint report to both Governments, or separate reports to their respective Governments. In case the Commission is evenly divided upon any question or matter referred to it for report, separate reports shall be made by the Commissioners on each side to their own Government. Any questions or matters of difference arising between the High Contracting Parties involving the rights, obligations, or interests of the United States or of the Dominion of Canada either in relation to each other or to their respective inhabitants, may be referred for decision to the International Joint Commission by the consent of the two Parties, it being understood that on the part of the United States any such action will be by and with the advice and consent of the Senate, and on the part of His Majesty’s Government with the consent of the Governor General in Council. In each case so referred, the said Commission is authorized to examine into and report upon the facts and circumstances of the particular questions and matters referred, together with such conclusions and recommendations as may be appropriate, subject, however, to any restrictions or exceptions which may be imposed with respect thereto by the terms of the reference. A majority of the said Commission shall have power to render a decision or finding upon any of the questions or matters so referred. If the said Commission is equally divided or otherwise unable to render a decision or finding as to any questions or matters so referred, it shall be the duty of the Commissioners to make a joint report to both Governments, or separate reports to their respective Governments, showing the different conclusions arrived at with regard to the matters or questions so referred, which questions or matters shall thereupon be referred for decision by the High Contracting Parties to an umpire chosen in accordance with the procedure prescribed in the fourth, fifth, and sixth paragraphs of Article XLV of The Hague Convention for the pacific settlement of international disputes, dated October 18, 1907. Such umpire shall have power to render a final decision with respect to those matters and questions so referred on which the Commission failed to agree. A duplicate original of all decisions rendered and joint reports made by the Commission shall be transmitted to and filed with the Secretary of State of the United States and the Governor General of the Dominion of Canada, and to them shall be addressed all communications of the Commission. The International Joint Commission shall meet and organize at Washington promptly after the members thereof are appointed, and when organized the Commission may fix such times and places for its meetings as may be necessary, subject at all times to special call or direction by the two Governments. Each Commissioner, upon the first joint meeting of the Commission after his appointment, shall, before proceeding with the work of the Commission, make and subscribe a solemn declaration in writing that he will faithfully and impartially perform the duties imposed upon him under this treaty, and such declaration shall be entered on the records of the proceedings of the Commission. The United States and Canadian sections of the Commission may each appoint a secretary, and these shall act as joint secretaries of the Commission at its joint sessions, and the Commission may employ engineers and clerical assistants from time to time as it may deem advisable. The salaries and personal expenses of the Commission and of the secretaries shall be paid by their respective Governments, and all reasonable and necessary joint expenses of the Commission, incurred by it, shall be paid in equal moieties by the High Contracting Parties. The Commission shall have power to administer oaths to witnesses, and to take evidence on oath whenever deemed necessary in any proceeding, or inquiry, or matter within its jurisdiction under this treaty, and all parties interested therein shall be given convenient opportunity to be heard, and the High Contracting Parties agree to adopt such legislation as may be appropriate and necessary to give the Commission the powers above mentioned on each side of the boundary, and to provide for the issue of subpoenas and for compelling the attendance of witnesses in proceedings before the Commission. The Commission may adopt such rules of procedure as shall be in accordance with justice and equity, and may make such examination in person and through agents or employees as may be deemed advisable. In all cases where special agreements between the High Contracting Parties hereto are referred to in the foregoing articles, such agreements are understood and intended to include not only direct agreements between the High Contracting Parties, but also any mutual arrangement between the United States and the Dominion of Canada expressed by concurrent or reciprocal legislation on the part of Congress and the Parliament of the Dominion. The present treaty shall be ratified by His Britannic Majesty and by the President of the United States of America, by and with the advice and consent of the Senate thereof. The ratifications shall be exchanged at Washington as soon as possible and the treaty shall take effect on the date of the exchange of its ratifications. It shall remain in force for five years, dating from the day of exchange of ratifications, and thereafter until terminated by twelve months’ written notice given by either High Contracting Party to the other. In faith whereof the respective plenipotentiaries have signed this treaty in duplicate and have hereunto affixed their seals. Done at Washington, the 11th day of January, in the year of our Lord one thousand nine hundred and nine. [Here follow the signatures of James Bryce and Elihu Root.] The above treaty was approved by the United States’ Senate on the 3rd March 1909, with the following Resolutions: Resolved, — That the Senate advise and consent to the ratification of the treaty between the United States and Great Britain, providing for the settlement of international differences between the United States and Canada, signed on the 11th day of January 1909. Resolved further (as a part of this ratification), — That the United States approves this treaty with the understanding that nothing in this treaty shall be construed as affecting, or changing, any existing territorial, or riparian rights in the water, or rights of the owners of lands under water, on either side of the international boundary at the rapids of the St. Mary’s River at Sault Ste. Marie, in the use of the waters flowing over such lands, subject to the requirements of navigation in boundary waters and of navigation canals, and without prejudice to the existing right of the United States and Canada, each to use the waters of the St. Mary’s River, within its own territory; and further, that nothing in this treaty shall be construed to interfere with the drainage of wet, swamp, and overflowed lands into streams flowing into boundary waters, and that this interpretation will be mentioned in the ratification of this treaty as conveying the true meaning of the treaty, and will in effect, form part of the treaty. On proceeding to the exchange of the ratifications of the treaty signed at Washington on January 11, 1909, between Great Britain and the United States, relating to boundary waters and questions arising along the boundary between the United States and the Dominion of Canada, the undersigned plenipotentiaries, duly authorized thereto by their respective Governments, hereby declare that nothing in this treaty shall be construed as affecting, or changing, any existing territorial, or riparian rights in the water, or rights of the owners of lands under water, on either side of the international boundary at the rapids of St. Mary’s River at Sault Ste. Marie, in the use of the waters flowing over such lands, subject to the requirements of navigation in boundary waters and of navigation canals, and without prejudice to the existing right of the United States and Canada, each to use the waters of the St. Mary’s River, within its own territory; and further, that nothing in this treaty shall be construed to interfere with the drainage of wet, swamp, and overflowed lands into streams flowing into boundary waters, and also that this declaration shall be deemed to have equal force and effect as the treaty itself and to form an integral part thereto. The exchange of ratifications then took place in the usual form. IN WITNESS WHEREOF, they have signed the present Protocol of Exchange and have affixed their seals thereto. DONE at Washington this 5th day of May, one thousand nine hundred and ten. [Here follow the signatures of James Bryce and Philander C. Knox.]