Canada Rejects Proposal for Federal Intervention on Polluted Transboundary Watershed

After pressing the Canadian and U.S. governments to refer the impaired Kootenai River watershed to the International Joint Commission for a decade, Ktunaxa Nation calls decision 'a slap in the face'

By Tristan Scott
Trucks kick up clouds of dust at Teck’s Elkview open pit metallurgical coal mine on Sept. 25, 2019 near Sparwood, British Columbia. Hunter D’Antuono | Flathead Beacon

For the past decade, a coalition of tribal governments has pressed the U.S. and Canadian governments for federal intervention on the river-braided boundary between British Columbia and Montana, where rising levels of the mining byproduct selenium has contaminated the water quality, fish species and other aquatic life in the Kootenai River Basin and Lake Koocanusa.

In a deluge of letters since 2012, tribal stakeholders on both sides of the border, including the Ktunaxa Nation Council (KNC), the Confederated Salish and Kootenai Tribes (CSKT) and the Kootenai Tribes of Idaho (KTOI), have articulated their concerns to top government officials with Global Affairs Canada (GAC) and the U.S. Department of State, requesting the expertise and institutional independence of the International Joint Commission (IJC) to help broker solutions for reducing pollution throughout the international watershed. When the IJC receives a government request, called a reference, it appoints a board with equal numbers of experts from each country.

Given the years-long binational engagement process, as well as indications that a reference was forthcoming, First Nation leaders said they were “stunned” to learn late last month via email that GAC “had unilaterally decided to reject the reference proposal.”

“We write … to express our outrage at the recent decision by Global Affairs Canada to reject the proposed reference to the International Joint Commission regarding pollution of the transboundary Kootenay/Kootenai River,” according to a May 6 letter from the Ktunaxa Nation to the Ministers of Foreign Affairs and Environment and Climate Change Canada, which the Beacon obtained. “This decision, taken without any meaningful discussion with Ktunaxa or consideration of our Indigenous title, rights, and decision-making authority, is an insult to our Nation and a black mark on Canada’s record of reconciliation with Indigenous peoples.”

The letter, which was also distributed to tribal leaders with CSKT and KTOI, as well as numerous other top government agencies in Canada and the U.S., outlines a good-faith process that apparently remained on track through January 2022, when GAC advised that it “intended to engage with our Nation regarding the proposed IJC reference,” the letter states.

The IJC was established by the Boundary Waters Treaty for the express purpose of addressing international issues related to transboundary pollution. In this case, a reference would appoint an independent body to provide mediation to the State Department and GAC to resolve the stalemate over mining pollutants spilling across the border.

The renewed urgency for an IJC reference comes as Canada’s largest diversified mining company, Teck Resources Limited, lays plans to expand its footprint by building new mines along the border without a proven strategy in place to treat the chemical-laden flows, despite having incurred in March 2021 a $60 million fine meted out by federal prosecutors with Environment and Climate Change Canada (ECCC) for depositing deleterious substances into the Elk River, which feeds the transboundary Kootenai River that flows through Montana and Idaho. Rising levels of selenium were first identified in the Elk River in the early 1990s and in 1998 the Elk Valley Selenium Task Force was formed to investigate selenium pollution. More than two decades later, selenium levels continue to rise and have increased more than 500% in the past 30 years.

KNC as well as its sister tribes in Montana and Idaho have consistently advocated for IJC intervention since initially petitioning the governments in October 2012, describing it as the best course of action to resolve the dispute.

However, negotiations between KNC and GAC began to stall in April, according to the letter, despite assurances from GAC that a draft proposal was being developed.

“We reminded your staff of Canada’s obligations to Indigenous peoples, including Canada’s obligation to act consistent with the UN Declaration [of Human Rights] and our desire to develop a joint reference,” the letter from KNC states. “As the meetings progressed, we were informed that GAC was developing a ‘concept paper’ to support a joint reference. We confirmed our commitment to working with GAC in a collaborative, consent-based manner, consistent with the UN Declaration, to develop that paper, and repeatedly asked GAC to provide us with drafts so that we could provide our input.”

The leaders of the First Nation governments describe how their “early optimism swiftly faded” when they learned that GAC was not prepared to share the concept paper with the tribes, but had in fact shared it with the British Columbia provincial government, which has oversight over the mining activity responsible for the polluted waterways. “We were assured by GAC’s representative that the draft concept paper to initiate an IJC reference was being reviewed by the highest levels of Canadian government and would be shared in the coming weeks. GAC staff emphasized that the concept paper would be the basis for meaningful engagement with the Ktunaxa,” the letter states.

“It therefore came as a slap in the face to our Nation and leadership to receive an email … informing us that GAC had unilaterally decided to reject the reference proposal,” it continues. “We are stunned that Canada can, in this day of reconciliation and public vows by the Prime Minister to fully implement the UN Declaration, commit such a disrespectful act. This behaviour displays blatant disregard for Canada’s legal duties to our Nation, as well as disrespect for our Nation’s decision-making and governance authority. GAC refused to share critically important information with us, while allowing B.C. direct access to Federal decision-makers to influence this decision in a manner directly prejudicial to our title and rights. This is a clear breach of the Federal government’s duty to consult. It is also an unfortunate example of high-handed, unilateral Federal conduct taken without any regard for Indigenous peoples. The manner of communicating this decision via an email from staff is also deeply disrespectful.”

GAC officials on May 12 said they would provide a comment to the Beacon regarding the decision to reject the IJC reference by the end of the business day on Friday, May 13. A GAC spokesperson requested the Beacon extend its deadline for this story, to which the Beacon agreed. However, the officials still had not provided the response as of Friday evening, writing in an email that, “Unfortunately, it won’t be possible to provide you with an answer tonight, but we hope to get back to you as soon as possible.”

Erin Sexton, a University of Montana biologist that represents the CSKT and its partners in the bilateral negotiations, said news of GAC’s rejection of an IJC reference is disappointing and the manner in which it was communicated “offensive;” however, it does not mean that IJC involvement isn’t the appropriate next step.

“An IJC reference merely provides a roundtable where all of the impacted governments can review the impairments to the watershed and review the existing science while an objective entity oversees the process,” Sexton said. “The IJC should have been engaged in this a long time ago. Helping solve the ongoing degradation of the transboundary Kootenai River Basin is precisely why the IJC exists. We have numerous governments sharing this watershed and the way the IJC is structured, with six commissioners appointed by both countries, is a perfect model for this.”

KNC leaders said they would provide more information on the response from GAC on May 16, but did not intend to back off their push for an IJC reference.

“Ministers, we do not accept this outcome. This decision has trampled on our rights and disrespected our Nation,” the letter concludes. “We call on you to direct your staff to reverse this decision, and recommit to consent-based engagement on a joint IJC reference, consistent with the UN Declaration. No other option will restore the integrity of this process and fulfill the honour of the Crown. If you refuse to do so, we will continue to pursue this issue, with or without Canada’s involvement, including looking at all available options. We look forward to your timely response.”

For its part, Montana recently took steps to address the selenium problem by adopting its own site-specific water quality standard for selenium at the border, a protective value crafted through years of scientific work to safeguard fish species in Lake Koocanusa and the Kootenai River. Despite selenium levels exceeding the standard, B.C. continues to consider proposals for new mines and mine expansions, while Teck Resources has filed a petition with the Montana Board of Environmental Review to weaken the standard, arguing it is inconsistent with the federal guidelines.

Last year, Montana’s U.S. Sen. Jon Tester began ramping up pressure on the U.S. State Department, describing his environmental concerns in grave terms and requesting an immediate referral to the independent commission charged with resolving cross-border environmental conflicts. In a strongly worded letter to Secretary of State Anthony Blinken, as well as during a hearing with U.S. Environmental Protection Agency (EPA) Administrator Michael Regan, Tester pressed the top officials for a reference to the International Joint Commission (IJC) and for the State Department to engage with the Canadian government and the IJC “to resolve this critical transboundary water quality issue.”

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