Case information

Courts – Federal court – Jurisdiction – - Judgments and order – Summary judgment – Legislation – Interpretation – Respondents challenging jurisdiction of Federal Court to resolve dispute concerning blockage of flow of water between the United States into Canada – What is the proper interpretation and application of the Boundary Waters Treaty and the International Boundary Waters Treaty Act?

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The applicants, collectively “North Dakota”, are American governmental entities and private land holders. The respondents, collectively “Manitoba” are political entities in Canada. North Dakota brought an action in Canada in the Federal Court, alleging that a Canadian road along the international boundary between Manitoba and North Dakota blocked flood waters that would otherwise flow north from the United States into Canada from doing so, thus causing flooding and injury to lands in North Dakota. In the relevant areas of southern Manitoba, there is a 99 foot wide road allowance running parallel to the international border. In or around 1940, a raised road was constructed within this allowance. The road functions as a dike blocking the flood waters of the Pembina River from crossing into Canada. After three weeks of trial, Manitoba sought to strike their amended statement of claim on the basis that the Federal Court lacked jurisdiction over the subject matter of the proceedings. In making their claim, North Dakota relied on the International Boundary Waters Treaty Act, R.S.C. 1985, c. I-17 which enacted into Canadian domestic law the Treaty relating to Boundary Waters and Questions arising along the Boundary between Canada and the United States, signed at Washington, January 11, 1909 (the “Treaty”). The Treaty, inter alia, gave injured parties rights of recovery in certain circumstances for damage caused by cross-border waters. The Treaty was enacted in Canadian domestic law via the Act. North Dakota commenced an action against Manitoba in the Federal Court in 2004 seeking, inter alia, damages for injury to real property and associated losses and an injunction ordering Manitoba to remove the dike to allow for the natural flow of water across the boundary.