The Great Lakes… 84% of the continent’s fresh water… a different story in every drop.
By Harriet E. Whitney
Canada and the United States have cooperated in commercial development of the Great Lakes in the American heartland for over three score years without friction. This amicable relationship ensued from the Boundary Waters Treaty of 1909 which set up principles insuring equitable water use and a permanent bilateral commission to implement them.1 Both were essential for Canadian partnership in boundary water utilization as its southern neighbour industrialized rapidly in the early twentieth century.
The central figure in the negotiation of the treaty was George Christie Gibbons who, as Chairman of the International Waterways Commission after November of 1905, first recommended a boundary waters treaty, drafted the first treaty memorandum in 1907, and helped with the final revision of the agreement. 2 Although earlier articles have credited Gibbons with participating in treaty talks, they have overlooked the vital role he played in getting a comprehensive contract.3
American Secretary of State Elihu Root wanted a treaty on preservation of Niagara Falls only and British Ambassador James Bryce tried to get Canadian Prime Minister Wilfrid Laurier to approve this limited agreement.4 It was Gibbons who perceived the American dilemma—that the Federal Government had no authority to prohibit further diversion in non-navigable Niagara River by New York State electric companies unless it could negotiate a treaty.5 He advised Laurier to hold out for a treaty with stated principles applicable to all boundary waters, and not sign one on Niagara Falls alone.6
Gibbons viewed the final contract as a step towards nationhood for Canada.7 Legal Adviser Loring Christie in the Department of External Affairs during World War I later acknowledged the importance of the treaty: “Canada has no more vital interest than the insurance of the full integrity of the system created by the Treaty of 1909.”8 A review of the events culminating in its ratification shows the indispensability of Gibbons.
The International Waterways Commission (IWC), composed of Canadian Chairman James Mabee, two other Canadians, American Chairman O. H. Ernst, and two more Americans, first met in May of 1905 and spent the summer investigating navigation problems in St. Marys River between Lakes Superior and Huron.9 In November it recommended that a permanent board regulate water levels in the river.10
In the same month Laurier appointed George C. Gibbons Chairman of the IWC upon elevation of Chairman Mabee to the Ontario Supreme Court.11 No doubt Gibbons was the choice of Minister of Public Works Charles Hyman who had supervision of the IWC and who knew Gibbons well since both were in the “Big Four, ” inner clique of the Liberals in London.12 Gibbons, a prosperous London lawyer, was energetic and impulsive, with a verve for living which sent him riding to the hounds in the London Hunt Club and giving popular campaign speeches about the great Canadian future and better relations with the United States.13
Gibbons quickly reviewed IWC minutes and drafted its First Progress Report. 14 The report recommended that “riparian rights in relation to navigable streams or international waters . . . be adjusted by some treaty arrangement between the two countries.”15 Gibbons tried to get a full commission meeting with the American Section but found that Chairman Ernst was unwilling to meet until the United States Congress acted on the IWC proposal on the St. Marys River.16
President Theodore Roosevelt broke the impasse. Responding to a campaign of the American Civic Association for the preservation of Niagara Falls, he sought the Attorney General’s opinion on how he could stop the New York State Legislature from granting charters to electric companies at Niagara Falls since the Federal Government had no authority in rivers not used for commerce.17 The Attorney General advised that a treaty be negotiated upon the recommendation of an international commission, so Congress passed a resolution requesting a report from the IWC on the preservation of the falls.18
Ernst, heretofore indifferent to Gibbons’ overture, now wanted to hold a meeting immediately.19 First, Gibbons had the Canadian Section publish a Second Interim Report recommending a twenty-five-year treaty establishing principles on paramount rights of navigation over diversion of water for electric power and equal sharing of boundary waters by the two countries under the supervision of a permanent international commission.20 “Diversions * ** should only be permitted . . . for domestic purposes and for the service of locks . . . Temporary diversions, where the water taken is returned again, only on the recommendation of a joint commission. “21 The report also limited the permanent diversion at Chicago to 10,000 cubic feet per second (c.f.s.) and at Niagara Falls to 36,000 c.f.s. on the Canadian shore and to 18,500 c.f.s. on the American side of the boundary, where the falls was less extensive.22
In the joint report of the IWC the American Section had to include these Canadian stipulations in order to get a full commission recommendation for a compact to preserve the falls.23 Six months later the IWC incorporated another draft of Gibbons, except for a legal point, into their report on a proposed permanent diversion in a cross-country river west of Lake Superior. 24 It recommended a treaty to define the use of international waters “without the necessity of adjustment in each instance,” and a permanent commission to decide the rights of all parties when water was permanently diverted from navigable streams crossing the border.25
In January of 1907 Gibbons decided that the time had come for more than recommendations. He obtained authorization in a Minute of the Privy Council to go to Washington to engage in talks on possible joint legislation on boundary waters.26 However, it was May before Secretary of State Root delegated Commissioner George Clinton to carry on discussions with Gibbons and then only in a “very informal way.”27 Both men wanted a treaty. As Gibbons explained, “Legislative action might be reversed at the very next session of Congress while a treaty must run its course. “28
Gibbons sent a treaty memorandum to Clinton who in turn sent a draft to Gibbons. 29 By September the two reached a compromise and titled it “Proposed Treaty Clauses.”30 Clinton recognized that Gibbons had made the major contributions to this: A six-member commission would call upon an arbitrator if they could not reach a majority agreement; the consent of both countries would be necessary for diversion or obstruction of boundary waters or rivers crossing the border; the commission would delineate the boundary line through the Lakes; where irrigation diversion was permitted, the rights of each country and its citizens “must be equitably protected.”31 In September Gibbons added a final article which gave the commission power to render advisory reports on all matters of difference between the two governments.32 Since Clinton objected to “certain fixed principles . . . which will become the rigid law of the two countries,” Gibbons accepted concurrent legislation for the police powers of the commission.33 Diversion at Niagara Falls was to be the same as given in the Second Interim Report of the Canadian Section.34 An article forbade the pollution of waters “in one country to the injury of health or property in the other.”35
Laurier approved a revised draft which omitted the lower St. Lawrence from boundary waters.36 December found Gibbons once again in Washington in the hope that he could convince the American leaders to adopt the treaty .37 Ambassador Bryce, British author of The American Commonwealth turned diplomat, had come to Washington in the spring of 1907 to settle outstanding differences between Canada and the United States which jeopardized British American friendly relations. Incidentally, he could indulge his passion for travel within the American vastness.38 Bryce welcomed Gibbons and talked at great length with him but left him at the Embassy when he had a scheduled conference with Root.39
Gibbons, on his return to Canada, wrote to Laurier and objected to Bryce acting as intermediator: “We could accomplish about ten times as much in the same space of time if I could see Mr. Root with him and thresh matters out. ”40 In a letter to Bryce, Laurier praised the “active and energetic” Gibbons: [He is] “familiar with all aspects of the question . . . His thorough knowledge of all local conditions ought to be of great assistance to you, to meet objections and to clinch matters to a prompt and definite issue. “41 Bryce invited Gibbons to accompany him on his February conference with Root.42
At that time Root argued that principles could only evolve out of the settlement of a number of cases and he presented a treaty providing for a commission of inquiry.43 He did not think that the Senate would approve the Gibbons-Clinton commission with authority to apply principles by concurrent legislation.44 But Gibbons countered with the argument that the only way to remove boundary waters from politics, on both sides of the border, was to establish a permanent commission which could apply a few general principles impartially to any problem that arose.45 As for injury to a country’s private and public interests by diversion before a river crossed a boundary, Gibbons pointed out that it did not matter how this was settled, as long as both countries received equitable treatment.46 He was gratified to find that Robert Bacon, the American Assistant Secretary of State, agreed with him.47
Root still hoped to get a convention on Niagara Falls only and asked Bryce to take a draft memorandum along when he visited Laurier in mid February. 48 This was no doubt the one sent to him by Francis L. Stetson, a lawyer who represented J. P. Morgan’s three electric companies at Niagara Falls, which were authorized by their charters to divert 26,700 c.f.s. on the American side.49 The draft proposed a diversion increase on the American side from 18,500 c.f.s. to 20,000 c.f.s. so that there would be “the least possible injury to investments which have already been made.”50 But Laurier, who had called Gibbons to Ottawa for consultation, was uninterested in any agreement on Niagara Falls alone.51
Sometime within the next three months, Root decided to leave the State Department at the end of President Roosevelt’s administration the following March. 52 If he were to get any treaty on Niagara Falls before he left office, he would have to accept Canadian terms. So he welcomed another visit by Gibbons in June when Bryce suggested it.53 Bryce himself left on a trip through the Great Lakes and then to England, leaving Gibbons on his own.54
On this trip to Washington Gibbons carried a new memorandum he had drafted which had the approval of Laurier.55 Principles were not to apply to rivers crossing the border; instead, each country would divert water from streams in its own territory with due regard to injury of private or public interests in the other country and with that country’s assent.56 At their meeting Root, after castigating the Canadians for their attitude “that the American people had always overreached them heretofore and were lying in wait to do so again,” asked Gibbons to meet with Chandler P. Anderson, his advisor on Canadian matters, to agree on the articles for a boundary waters agreement. 57
Gibbons was triumphant when he returned to Canada. He explained to Laurier that Root’s tirade in the meeting was caused by his having “to recognize the existence of another power on this continent having equal rights” and our “joint control of the Great Lakes system for all time to come. ”58 But July and most of August passed before the expected meeting with Anderson took place.59 And there was another delay before Gibbons received a draft in mid-November, and then without the important article on Niagara Falls.60
This draft, revised after the two men met in New York within a few weeks, extended the Canadian right of navigation to Lake Michigan for the duration of the treaty. Article II reserved to each country exclusive jurisdiction and control over the use and diversion in its own territory of waters which flowed across the boundary or into boundary waters. Any damage done through interference with or diversion from these waters was to be handled as if such injury or damage took place within the same country as the diversion, so private citizens could apply to the courts of the other country for compensation. 61
The permanent commission (later designated as the International Joint Commission) was to have six members, three from each country; for the first time Canada’s right to appoint its own representatives was recognized by the phrase, “appointed by His Majesty on the recommendation of the governor in council of the Dominion of Canada. ” Outside of government works for the improvement of navigation, the commission was to have authority over all boundary waters with diversions by the rule of “equal and similar rights” in the following priority: (1) Uses for necessary domestic and sanitary purposes; (2) Uses for navigation, including the service of canals for navigation; (3) Uses for irrigation and for power purposes. Among the latter uses, temporary diversions were to have precedence over permanent ones.
The draft also included the clauses on pollution and on advisory opinion on other matters which had been in the Gibbons-Clinton draft. Miscellaneous matters, such as the meeting place of the commission, taking of oaths, provision for public hearings, and salaries were included in one article. The treaty was to remain in effect for five years when it could be terminated upon a twelve-month notification. 62 Gibbons saw the draft as a victory for Canada. “They have yielded to our every contention,” he wrote to Laurier. But later he found “a little hitch in the Washington business.”63
On rereading Article II he found it did not protect navigation rights to his satisfaction and he proposed adding the clause: “The foregoing provision shall not be construed as an agreement authorizing diversions on either side which in their effect would be productive of material injury to the navigation interests on the other side.”64 Anderson did not like this nor another attempt by Gibbons. Then Anderson suggested the following, which Gibbons accepted: “It is understood, however, that neither Government intends by the foregoing provision to surrender any right, which it may have, to object to any diversion 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.” 65
The arrival of the Niagara article caused difficulties. Anderson had adopted the diversion of the draft Root had given Bryce the previous February, 20,000 c.f.s. above the falls.66 In addition, the amount which could be diverted below the falls by the Americans had been raised to 26,000 c.f.s., twice the amount allotted to Canada at that point.67 Furthermore, another clause permitted increases after five years, to become permanent if the other government raised no objection within three months. Gibbons was at first indignant but solved the problem by accepting the extra 1,500 c.f.s. diversion above the falls, and omitting any reference to a specific total below the falls, relying upon the commission to apply the principle of equal diversion there.68
Another article inserted into the final treaty draft was the result of negotiations by Canadian Commissioner William King and the American, N. H. Newell. The St. Mary and Milk Rivers flowed from Montana into Alberta, with the Milk River turning east into Saskatchewan, and then recrossing the border. Both countries had irrigation plans for the rivers and the two special commissioners worked out a compromise which gave a minimum annual water supply to each country from the combined waters of the two rivers.69 It was on Gibbons’ earlier advice that Laurier had this article inserted into the treaty. But at this point King started to worry about the agreement and wanted to restudy it.70
Gibbons, upset by this snag and parliamentary criticisms, confided to his friend, Minister of Justice Allen B. Aylesworth, that he thought he had been treated “most abominably,” since he had communicated all along just what he was doing and had gotten a treaty which was to Canada’s advantage.71 The article remained in the document as it was and Ambassador Bryce cabled the treaty to London. Several word changes were cabled back which designated Great Britain as the treaty-making party and not Canada.72
On January 11th, 1909, Bryce and Root initialed the treaty and it went to the U. S. Senate. Here a Michigan Senator, who controlled a majority of votes, insisted that a reservation be added to protect the riparian rights of a Michigan hydroelectric company in the St. Marys River.73 Assured by Root that the Federal Government would take over these rights, Gibbons telegraphed Canadian approval of the treaty to Bryce.74 In the last weeks of negotiation Gibbons lost his usual sanguinity as he struggled to carry on his own legal work, along with conferences in Ottawa, New York City, Washington, and last-minute changes by telegrams. In February he wrote heatedly to Laurier: “Between all the fires I am distraught. When I was asked to undertake the negotiation of this treaty I was told that our then position was helpless; that the Americans simply did as they pleased, and that unless some arrangement was made would continue to do so. ”75
Laurier was suspicious that the contract was not in the Canadian interests, particularly Article II on cross-boundary rivers and in March telegraphed Bryce that Canada would need time to reconsider the treaty before ratification.76 Nearly a year later, when the President of the Canadian Pacific Railroad assured Laurier that the ultimate effect of the St. Mary-Milk Rivers article would not be injurious to Canada, and a project of an American aluminum corporation to dam a channel in the St. Lawrence threatened to lower water levels at Montreal, did Laurier yield to Gibbons’ entreaties and grant final approval for the exchange of ratifications. 77 This took place on May 5th, 1910.
Canada got a good bargain. With a much smaller population than the United States and emerging from colonial status in the British empire, its industrialization was proceeding at a slower rate than the world power across the border. The primary goal of British Ambassador Bryce was to settle differences between Canada and the United States so that the friendly relations between Great Britain and the United States would not be threatened in the future by the developing Canadian nationalism. As is evident in this article, Bryce was unaware of the particular importance of Niagara Falls to American political leaders and at a crucial point in the negotiations supported the American position against the Canadian. Canada would have been weakly served by the British Ambassador alone. Canadian firmness, combined with fortuitous circumstances in the United States, resulted in a treaty which gave Canada equal rights in the Great Lakes and rivers flowing along and across the boundary. For the first time in the world a permanent international commission governed boundary waters. Gibbons had served Canada well, and in 1911 he was awarded knighthood for his efforts in the negotiations of the Boundary Waters Treaty.
- Robert Borden, Treaties and Agreements Affecting Canada in Force Between His Majesty and the United States of America (Ottawa, 1915), pp. 185-195.
- Infra, 4, 5, 9.
- Alan O. Gibbons, “Sir George Gibbons and the Boundary Waters Treaty of 1909,” Canadian Historical Review XXXIV (1953), 124-138. This article incorrectly attributes a letter to Gibbons, along with other inaccuracies. Peter Neary, “Grey, Bryce, and the Settlement of Canadian-American Differences, 1905-1911,” ibid., XLIX (1968), 357-380. This article does not assess the position of the British Ambassador, nor the importance of Niagara Falls in the negotiations.
- Infra, 7.
- Don C. Piper, The International Law of the Great Lakes (Durham, S. C., 1967), pp. 19-20.
- Public Archives of Canada, Gibbons Papers, Minutes of IWC Meetings, Oct. 1905-March 1906, Vol. 10. Also PAC, Wilfrid Laurier Papers, T. Côté to Laurier, March 21, 1906 (108746), and March 24, 1906 (108743).
- Gibbons Papers, Gibbons to Laurier, Aug. 25, 1908, Vol. 8.
- Magrath Papers, Christie to O. D. Skelton, July 12, 1927, Vol. 6.
- The two Canadians were William King, Chief Astronomer of Canada, and Louis Coste, civil engineer. The two Americans were George Clinton, lawyer, and George Wisner, civil engineer.
10.U. S., Secretary of War, Annual Report of the War Dept., I, 59th Cong., 1st Sess., 50-52.
- Canada, Sessional Papers, 1913, XLVII, No. 19a, I, 18.
- The other two were George M. Reid and James C. Duffield. Henry James Morgan, The Canadian Men and Women of the Times (Toronto, 1912), p. 443. Scrapbook of Elizabeth C. Gibbons (Public Library, London).
- Gibbons Papers, Minutes of IWC, Oct. 1905-1906, Vol. 10.
- Report, Canada, Sessional Papers, 1913, XLVII, No. 19a, I, 16.
- Gibbons Papers, Ernst to Gibbons, Dec. 20, 1905, Vol. 5.
- Ibid., William H. Moody to T. Roosevelt, Oct. 14, 1905, Vol. 14. J. Horace McFarland, The Campaign for the Preservation of Niagara Falls (Philadelphia, 1906). 18. U. S., Congress, Senate, Preservation of Niagara Falls, 59th Cong., 1st Sess., 1906, Dec. 242. 19. Gibbons Papers, Ernst to Coste, March 2, 1906, Vol. 12.
- Canada, Sessional Papers, 1913, XLVII, No. 19a, I, 338.
- Ibid., 337. 23. Ibid., 339-340.
- Ibid., 367-368. The legal point raised the possibility that full protection of all interests could lead to the permit to be granted for diversion.
- PAC, Record Group 2, Series I, Vol. 1026, P.C. 33, Jan. 14, 1907. 27. Gibbons Papers, Root to Clinton, May 25, 1907.
- Ibid., Gibbons to Cartwright, May 3, 1907, Vol. 8.
- Ibid., Clinton to Gibbons, May 22,1907, Vol. 5; Gibbons to Clinton, June 17,1907, Vol. 5. 30. Gibbons Papers, Draft Proposed Treaty Clauses, Vol. 14.
- Ibid., Gibbons to Clinton, Sept. 3, 1907, Vol. 8.
- Ibid., Draft, Vol. 14. 34. Supra, 4.
- Ibid. This may have resulted from inquiry by H. W. Ogden, New York Sanitary Engineer, June 27, 1907, R.G. 76, Department of State, 293/9102, National Archives. 36. Gibbons Papers, Laurier to Gibbons, Sept. 26, 1907, Vol. 5; Ibid., Gibbons to Clinton, Nov. 28, 1907, Vol. 8; Ibid., Gibbons to Bryce, Dec. 2, 1907, Vol. 8.
- Ibid, Bryce to Gibbons, Dec. 9, 1907, Vol. 3.
- H. A. L. Fisher, James Bryce (New York, 1927).
- Gibbons Papers, Gibbons to Laurier, Dec. 16, 1907, Vol. 8.
- Ibid., Gibbons to Laurier, Jan. 8, 1908, Vol. 8.
- Ibid., Laurier to Bryce, Dec. 24, 1907, Vol. 3.
- Laurier Papers, Bryce to Earl Grey, Jan. 23, 1908, Vol. 733.
- Gibbons Papers, Gibbons to Laurier, Feb. 11, 1908, Vol. 8.
- Ibid. 45. Ibid. 46. Ibid. 47. Ibid.
- Root to Bryce, Feb. 15, 1908, Chandler P. Anderson Papers, Box 68, Manuscript Division, Library of Congress.
- Stetson to Root, Feb. 2, 1908, Elihu Root Papers, General Correspondence S-Z, Manuscript Division, Library of Congress.
- Memorandum, Feb. 15, 1908, Anderson Papers, Box 68.
- Gibbons Papers, Gibbons to Laurier, Feb. 12, 1908, Vol. 8.
- Root left the State Department because of the effect of the social responsibility on his wife. Philip C. Jessup, Elihu Root (New York, 1938), II, 138.
- Gibbons Papers, Bryce to Gibbons, June 8, 1908, Vol. 3.
- Ibid., Gibbons to Laurier, June 13, 1908, Vol. 8.
- Ibid., Gibbons to Bryce, July 3, 1908; Gibbons to Laurier, July 6, 1908; Gibbons to Laurier, June 22, 1908, Vol. 8.
- Ibid., Gibbons to Laurier, July 9, 1908, Vol. 8.
- Anderson Papers, Anderson to Gibbons, Aug. 7, 1908, Box 65; Gibbons Papers, Anderson to Gibbons, Aug. 12, 1908, Vol. 3.
- Gibbons Papers, Gibbons to Bryce, Nov. 16, 1908, Vol. 8.
- Ibid., Draft, Vol. 14.
- Ibid., Gibbons to Laurier, Dec. 10, 1908, Vol. 8.
- Anderson Papers, Revised Draft, Dec. 2, 1908, Box 68.
- Gibbons Papers, Gibbons to Anderson, Dec. 10, 1908, Vol. 8; Ibid., Anderson to Gibbons, Dec. 14, 1908, Vol. 3.
- Supra, 7.
- Gibbons Papers to Anderson, Dec. 17, 1908, Vol. 8.
- Ibid., Gibbons to King, Dec. 17, 1908, Vol. 8.
- Ibid., Gibbons to Laurier, Dec. 21,1907, Vol. 8.; Ibid., Gibbons to Anderson, Dec. 17, 1908, Vol. 8,
- Ibid., Gibbons to Aylesworth, Jan. 8, 1909, Vol. 8.
- Gibbons Papers, Bryce to Sir Edward Grey, Jan. 7, 1909, Vol. 8; Anderson Papers, Gibbons to Anderson, Jan. 9, 1909, Box 69.
- Ibid., Brief Outline of the Situation, Box 20; Gibbons Papers, Bacon to Gibbons, Feb. 20, 1909. vol. 3.
- Gibbons Papers, Gibbons to Root, March 2, 1909.
- Ibid., Gibbons to Laurier, Feb. 18, 1909.
- Anderson Papers, Laurier to Bryce, March 3, 1909, Box 69.
- Canada, Sessional Papers, 1910, XLIV, No. 10, 83-84; Gibbons Papers, Laurier’s Secretary to Gibbons with enclosure from Montreal Board of Trade, March 10, 1910, Vol. 7; Ibid.,
About the Author: Dr. Harriet E. Whitney has been an Assistant Professor of History at State University of New York—College at Brockport, since 1967. Her special fields of instruction are Canada in the Twentieth Century and Recent American Foreign Policy. Dr. Whitney’s doctoral dissertation, on which the above article is based in part, was on Sir George Gibbons, and completed December 1968 at Michigan State University under Professor Alvin C. Gluek. Postdoctoral research was undertaken at Ottawa, Ontario, and Washington, D. C., through a grant from the State University of New York Research Foundation.