The Role of the IJC and the Boundary Waters Treaty in the Columbia River Basin Prepared for Canadian Columbia River Forum, November 9 & 10, 2005 Nigel Bankes Faculty of Law The University of Calgary

Outline Pre-CRT During the life of the CRT Post-CRT

Pre the CRT IJC references on the cooperative development of the Columbia basin 1944, 1959 The initial Libby application and the downstream power benefits issue Other Article IV levels applications in the basin Grand Coulee, Kootenay, Waneta, Zosel

During the term of the CRT, 1 Don’t be misled by the broad “restoration” language of Article XVII of the CRT; the BWT still has some application. The BWT continues to apply to those structures within the basin that were approved before the CRT and which change the level of transboundary waters at the boundary. Grand Coulee on the mainstem, Kootenay Lake Levels Order (Article XII(6) CRT requires the US to operate Libby consistent with the IJC Order Waneta, Pend d’Oreille Osoyoos Lake (1946, 1982, 1985)

During the term of the CRT, 2 The BWT levels provisions (Article IV and VIII) will also continue to apply to any new (or revised) project within the basin that is not inconsistent with the CRT (see especially CRT Articles IV(5) & XI) The BWT does not apply to projects that are expressly approved by the CRT that would otherwise engage the BWT (i.e. Libby)

During the term of the CRT, 3 It remains possible for the 2 govts to trigger the reference power (BWT Article IX) for any project etc within the basin (e.g. Cabin Creek coal) Article XVI of the CRT appoints the IJC as the arbitral panel of first resort for the settlement of differences under the CRT does not import the entire baggage of the BWT.

Upon termination of the CRT, 1 Upon termination, BWT “re-applies” except to the extent of inconsistency with continuing provisions Example of continuing provision - authorization for Libby\Koocanusa Articles XII(10) and XIX(3)) There are additional complicated provisions in CRT XVII dealing with the situation in which the BWT might already have been terminated can be terminated on 12 months notice, BWT Article XIV.

Upon termination of CRT, 2 Practical significance of the re-application of the BWT? hard to puzzle through, Article IV levels jurisdiction will apply to new projects but then it always has Question: will Article II serve to impose some restrictions on the operation of Canadian storage beyond that contemplated by Article XIX(4) and IV(3) [on-call flood control]? Needs further research. Finally, note that principles of customary law may also be relevant upon termination.

Questions?