Could Canada hold the U.S. liable for billions in B.C. flood damage? – The Globe and Mail

The inundation of the Abbotsford, B.C., area came in part from the overflow of the Nooksack, a Washington State river whose propensity to flood has prompted decades of effort by British Columbia to push U.S. officials to dredge that river or build better levees on its shores.DARRYL DYCK/The Canadian Press
Richard Bosma has begun rebuilding after water flooded his dairy operation, where he normally milks 80 cows. It was not until the first Saturday in December that the waters receded enough to begin cleaning up.
The barn structures can still be used. Electronics cannot. Replacing milk pumps and other motors alone will cost $40,000, Mr. Bosma estimates. Other repairs, including the cost of importing feed to replace what was lost, will grow far higher.
“We’re looking at a million-dollar setback here,” he said.
Mr. Bosma has insurance. But he thinks some of the bill should be covered by the country whose waters contributed to the flooding: the United States.
The inundation of the Abbotsford, B.C., area came in part from the overflow of the Nooksack, a Washington State river whose propensity to flood has prompted decades of effort by British Columbia to push U.S. officials to dredge that river or build better levees on its shores. A Canadian engineering study showed a $29-million Nooksack levee could prevent more than $500-million in Abbotsford-area flood damage. But Washington State has not studied the idea and resisted dredging out of concern for frail salmon populations.
U.S. rebuffed B.C.’s pleas to shore up dike for $29-million. Now, flood damage will hit $1-billion
Now, Mr. Bosma and others say the U.S. should be made to pay for the damage the Nooksack waters caused, estimated to exceed $1-billion in the Abbotsford area alone.
“I think they owe us billions,” Mr. Bosma said.
It’s not something the B.C. government will discuss, at least publicly. “Right now the focus is on rebuilding and recovering. Those are discussions that may or may not happen later,” said Derek Gagnon, spokesman for Emergency Management BC.
But the principle is simple, argues Mike de Jong, a former B.C. finance minister who is now an opposition MLA. “If something escapes your property and does damage to your neighbour’s property, you’re responsible.”
Perhaps it’s time, he said, for “quantification and a discussion with the Americans about contributing to the repair of damage that occurred on the Canadian side of the border.”
Water overflowing the Nooksack River played a major role in floods that devastated Abbotsford in mid-November. The U.S. Geological Survey is studying the river, which flows down from the mountains in Washington state, to see if a buildup of sediment or other changes are making flooding more likely.
The Globe and Mail
There is precedent for the assessment of cross-border damages: the early 20th-century dispute over the Trail Smelter, in the B.C. town by that name, that led to arbitration over pollution that wafted into Washington State, and damages paid to farmers living south of the border.
The Boundary Waters Treaty of 1909 places transboundary issues in the hands of the governments of Canada and the U.S., but provides them legal recourse in each other’s courts if there is “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.”
In practice, however, courts in both countries have been reluctant to intervene in international water disputes, deferring to governments for solutions.
In 2004, several North Dakota municipalities sued the province of Manitoba over a road built in the 1940s along the U.S. border that served as a dike, causing flooding on the U.S. side. A Canadian federal court ruled that it had no jurisdiction.
Similarly, a North Dakota district court refused to rule on the legality of a Devil’s Lake water diversion planned by the state but challenged by Manitoba. “This court cannot and will not sit as some kind of super board to determine whether this outlet is a good thing or a bad thing,” a North Dakota judge said then.
Other legal avenues are unlikely to succeed: Neither Canada nor the U.S. has ratified a United Nations Watercourses Convention, and experts say it’s unlikely Canada would bring a case like this before the International Court of Justice.
Individual lawsuits aren’t likely to succeed. “Private action against foreign corporations or states before home or foreign courts is notoriously difficult to pursue,” said Saptarishi Bandopadhyay, a scholar at Osgoode Hall Law School in Toronto.
In general, international law stipulates one country should not “make a situation worse” for another, said Nigel Bankes, emeritus professor of law at the University of Calgary who specializes in resources law. But the most feasible way to navigate questions of liability in the context of recent floods lies in the sort of arbitration established in the Trail Smelter case. It’s a prospect he sees as unlikely, given it would require U.S. consent and a Canadian willingness to advocate a measure likely to be seen by Washington State as an irritant.
“I just don’t see it happening. Period. End of discussion,” Dr. Bankes said.
“What I do think makes way more sense is to say: This is a problem that’s going to reoccur. We need more permanent solutions, and they need to be co-operative solutions.”
B.C. floods displaced nearly 15,000 people, province says
The U.S., after all, also has issues it would like resolved along the Nooksack. Farms in B.C. are a source of pollutants that enter the river, creating problems for Indigenous groups and others who want to harvest shellfish.
Canada, meanwhile, has reasons not to seek compensation. In 1948, Columbia River meltwaters destroyed the Oregon town of Vanport. Canada was not held responsible for what was deemed a natural disaster. By the same token, “if there’s nothing the U.S. has done on the Nooksack River to actually cause this to happen – no engineering they’ve done – if it’s just a natural event, they’re not liable,” said Barbara Cosens, an emerita professor at the University of Idaho who specializes in environmental law.
The Government of Manitoba took a similar posture after the 1997 Red River flood. “It was considered from our part to be an act of God,” said Gary Filmon, who was Manitoba’s premier at the time. He could recall no discussion “at all” about holding the U.S. responsible. “They suffered tremendous damages, too,” he said.
That history, however, could still prove instructive. The Vanport flood catalyzed negotiations on what would become the Columbia River Treaty, in which the U.S. has paid Canada for flood control. The Red River flood led to an International Joint Commission, or IJC, study that recommended construction of flood prevention works, better flood plans and improved flood forecasting. It led to the creation of an International Red River Board.
The Nooksack flooding has made clear the need for more international co-operation, and the IJC could be one way to determine solutions, said Michael Byers, Canada Research Chair in Global Politics and International Law at the University of British Columbia.
“Pressure should be directed to have the Canadian government and the U.S. government step in here and make a reference to the International Joint Commission, so we can actually get some national involvement and transboundary collaboration,” he said.
“Clearly that needs to be done. This can’t go on forever.”
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