The Border Road issue in Rhineland Municipality could end up being settled by the Supreme Court of Canada.
The road is located north of the Manitoba and North Dakota border in Rhineland and was constructed in the 1940s and has been built up over the past number of decades.
A group of North Dakota farmers and local municipalities contend that the road is actually a dike that impedes the natural flow northward of floodwater from the Pembina River into Manitoba and has caused extensive damage to crops, fields and local infrastructure on the American side for several decades.
The plaintiffs brought their case before a federal judge in Winnipeg in 2016, seeking financial compensation for the damage and removal of the road. The judge, in that case,decided he could not provide a ruling on the dispute because the issue was outside the federal court's jurisdiction, based on the terms of the International Boundary Waters Treaty Act.
The matter was taken to the Canadian Federal Court of Appeal, which sided with the federal judge and ruled that the issue was outside the court's jurisdiction.
"We are currently looking at our options and I believe an appeal to Canadian Supreme Court is imminent," said Robert Fleming, the lawyer representing the North Dakota group. "We have to request leave from the court to appeal and I think the deadline for that is August 1st, or somewhere in that neighbourhood."
Fleming feels they have a strong case based on the articles contained within the Boundary Waters Treaty. That document, which goes back over 100 years, lays out the rights and responsibilities of both the United States and Canada for resolving any dispute over any waters bordering the two countries. This particular case centres on waters that spill over from the Pembina River during a flood and are blocked from their natural flow north into Manitoba by the road.
"This spring was a good example. We had a tremendous flood in Pembina County that was contained to the northernmost three miles of the county because that water could not get back to Canada. They can call it a road, but it's really a dike, and it sits there and pushes that water onto farmland heading east and that's not going to change until that dike comes down," according to Fleming.
Fleming is upset with the Manitoba government and Rhineland Municipality for allowing this issue to drag out over the last 12 years without any effort to resolve it.
"This is simply a local issue that has now escalated to nationwide issue and I'm not sure why the Province of Manitoba and Municipality of Rhineland have dug in their heels and not tried to do something to alleviate this issue and enter into good faith negotiations with us on getting it taken care of. I'd like to see us sit down with the powers that be and get this hammered out, because there needs to be a resolution."
Fleming is afraid that if they don't receive relief on the Border Road issue through the courts it's very possible someone will take matters into their own hands during a future flood event.
"Because the only other option is a backhoe with a big bucket during the springtime, and that's not going to work in the favour of either country," said Fleming.