Does the Delta-U.S. border fence violate the treaty that ended War of 1812?

Did the City of Delta violate a two-century-old agreement with the United States when it erected a safety fence along its border with the Washington exclave Point Roberts earlier this month?

The Treaty of Ghent ended the War of 1812 and breaking it comes with some potentially big consequences.

Canada probably would not just let the border be redrawn and give up part of its two largest provinces to the United States, but U.S. immigration lawyer Len Saunders suggests it’s a far-flung possibility.

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“I had no idea what the Treaty of Ghent was until the beginning of COVID,” Saunders told 1130 NewsRadio from his office in Blaine, Wash.

“I was starting to meet a lot of clients at Peace Arch Park, just north of my office in Blaine. It is kind of a neutral area where people were meeting and I was speaking to one of the border patrol officers, and I said why doesn’t the Canadian or American government just put a fence up between the two countries.”

Saunders says the officer told him that was not allowed under the Treaty of Ghent.

“I said ‘The treaty of what?’ and he said the Treaty of Ghent — you can’t put any fences on the 49th Parallel.”

While the actual treaty — which is 211 years old — doesn’t contain any wording about border fences along the current boundary, it did pave the way for more modern-day agreements, laying out the border between the United States and part of what is now Canada.

More importantly, it laid the groundwork for how that boundary would be governed — through bi-lateral agreement.

Saunders says he spent hours delving into the details of the treaty and connects some admittedly tenuous dots regarding more modern regulations.

“You can’t have any kind of structures — fences, walls, any kind of barricade — along the northern border,” he said, suggesting that would be equivalent to breaking the original agreement.

“If either country violated the Treaty of Ghent, the lines between the two countries would revert back to pre-treaty,” he said.

“It’s funny, because if Canada violates the treaty — which technically they have by putting up this fence on the Delta side of Point Roberts — I believe that Canada loses a substantial part of what is now  southern Ontario and Quebec.”

Saunders calls it ironic.

“Can you imagine with President Trump wanting Canada to be the 51st state? He could probably, right now, claim parts of southern Ontario and Quebec!” he laughed.

Despite his tongue-in-cheek comments, the bi-lateral, Canada-U.S. body that governs the border and all the rules around it takes its job very seriously, according to Saunders.

“It’s monitored by what’s called the International Boundary Commission, which is very ruthless in making sure that nobody violates the treaty. When I first came to Blaine over 20 years ago, there was a house on the American side of 0 Avenue, and the land sloped from this person’s backyard to 0 Avenue on the Canadian side. In order to make a flat backyard, this homeowner put up a two- or three-foot retaining wall, just a few feet from the 49th Parallel.”

Saunders says that created a huge controversy and the border commission ordered that the wall be removed.

“It got so heated that President Bush actually intervened and said this small retaining wall was fine and he fired the American head of the border commission. So they are very, very careful on not allowing anything to go up between the two countries.”

Saunders says that is why he was so surprised when he heard about the fence erected in Delta on Jan. 16.

“I honestly thought it was the Americans who put it up. I was shocked when I saw photos of the fence and you could see it was slightly on the Canadian side, definitely within 10 feet of the border. If it had been put back further into Delta, maybe another 10 feet further north, it would have been fine. But it’s literally within feet or inches of the 49th Parallel, which is a huge no-no.”

Saunders says he has been told the International Boundary Commission is now investigating.

“I’d love if Trump gets hold of this and finds out there’s been a violation, but I wouldn’t be surprised if this fence is already down by the end of the week.”

With files from Maria Vinca.