The lawyer representing the province of Manitoba and the Municipality of Rhineland is not convinced the Border Road issue will ever get the Supreme Court of Canada.
The road is at the centre of a lawsuit launched by a group of North Dakota farmers and municipalities who allege the Border Road is responsible for decades of damage to crops, fields and municipal infrastructure during spring flood events. The American group contends that the road is actually a dike that impedes the natural flow northward of floodwater from the Pembina River into Manitoba.
The matter was brought before a federal court in Winnipeg last year where the judge determined the court had no jurisdiction in the matter based on the wording of the International Boundary Waters Treaty Act, and as a result, could not rule on the matter. That ruling was upheld by the Federal Court of Appeal last month.
The legal team representing the American side says it is weighing all of its options, but believes an appeal to the Supreme Court of Canada is imminent. They have until early August to file their appeal.
Lawyer Dean Giles, who represents Rhineland and the province in this case, says he's not so sure the case would ever reach Canada's highest court.
"I not sure that they would (grant the appeal)," said Giles. "The Supreme Court of Canada only hears matters that it deems to be of national or public significance or importance. That phrase has a particular meaning for the Supreme Court. What we have here, at the end of the day, is a question of statutory interpretation. I'm not sure that's something the Supreme Court of Canada will want to pronounce upon."
If the high court were to grant the appeal, the argument that would be presented would centre on whether the federal court and the appeal court erred in their judgement on the issue of jurisdiction. It would not focus on the original issue of compensation for the North Dakota litigants.
Giles is confident that enough work is being done on both sides of the border to address the flood issue and that there is an opportunity to find an out of court solution.
"The problem of flooding on both sides of the border has been the subject of numerous committees and task forces over the years and that work is still ongoing. There is a body by the name of the Lower Pembina River Flooding Task Team that has studied the modeling conducted to date and has issued reports and is continuing to work toward a solution that addresses concerns on both sides of the boundary."