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WATER - Riparian rights

Monday, May 15, 2017 @ 11:56 AM  


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Appeal by the plaintiffs, certain American governmental entities and American private land holders, from an order striking their statement of claim in their action against the defendants, Manitoba and the municipality of Rhineland. The plaintiffs alleged that a Canadian roadway blocked flood waters that would otherwise flow north from the United States into Canada, thereby causing injury to their lands. They commenced litigation in 2004. The matter went to trial in 2016. After completion of the plaintiffs' evidence, the defendants moved to strike the amended statement of claim on the basis the Federal Court lacked jurisdiction. The trial judge struck the plaintiffs' claim, finding that the absence of Federal Court jurisdiction over the subject matter meant that the claim did not disclose a reasonable cause of action. The plaintiffs appealed.

HELD: Appeal dismissed. In dismissing the plaintiff's claim, the trial judge did not err in his interpretation of the International Boundary Waters Treaty Act. Under s. 4 of the Act, parties were not conferred any particular right or remedy other than those which could be exercised had their injury occurred in Canada. The subject matter of the plaintiffs' action did not fall within s. 4, as the provision required the waters at issue to be situated in Canada rather than the interference or diversion to occur within Canada. By operation of s. 5 of the Act, the Federal Court was without jurisdiction. The judge's interpretation accorded with the relevant provisions of the underlying Treaty. The trial judge's conclusions were correct. Nothing prevented the plaintiffs from bringing an action before the Manitoba Court of Queen's Bench in respect of torts alleged to have been committed within Manitoba.

Pembina County Water Resource District v. Manitoba, [2017] F.C.J. No. 454, Federal Court of Appeal, M. Nadon, D.J. Rennie and Y. de Montigny JJ.A., May 3, 2017. Digest No. TLD-May152017001