Tribes ‘Confounded’ by Canada’s Resistance to IJC Reference on Transboundary Kootenai

Indigenous leaders from both sides of the border are calling for immediate action on the Kootenai River watershed, saying Prime Minister Trudeau is putting a century-old treaty at risk to appease B.C. mining interests

By Tristan Scott
An aerial view of Elkview Operations, one of Teck Resources’ sprawling metallurgic coal mines, in British Columbia on August 30, 2022. Hunter D’Antuono | Flathead Beacon

Indigenous leaders in Montana, Idaho and British Columbia are intensifying pressure on Canadian government officials to honor a long-standing request for an International Joint Commission (IJC) reference to help resolve mining pollution in the transboundary Kootenai River watershed.

Canada’s unwillingness to commit to an IJC investigation under the Boundary Waters Treaty of 1909, known as a joint reference, a reluctance that has frustrated Indigenous leaders, U.S. political leaders and environmental groups for years.

Those frustrations came to bear most recently in a May 11 statement drafted by leaders of the Confederated Salish and Kootenai Tribes (CSKT), the Ktunaxa Nation and the Kootenai Tribe of Idaho, who said they were “confounded” that Canada “continues to stonewall an IJC reference” despite Prime Minister Justin Trudeau’s stated commitment to address the ongoing and legacy pollution on the Kootenai watershed by this summer.

“This resistance to the clear process established under the Boundary Waters Treaty of 1909 to address transboundary water pollution issues exactly like that in the Kootenai/ay remains confounding,” according to the statement, which uses both the U.S. and Canadian spelling of Kootenai.

The statement from Tribes and First Nations follows bilateral talks between Canada and the United States that occurred two weeks ago in Washington, D.C., where Indigenous representatives insisted on an IJC reference.

However, Trudeau said in remarks the day after the talks that “processes … are being followed right now that have a better chance of getting to a resolution” than a reference.

“We are completely baffled by Prime Minister Trudeau’s remarks,” said CSKT Chairman Tom McDonald. “Canada and the U.S. created the IJC over a hundred years ago, under the Boundary Waters Treaty, to address transboundary water issues exactly like this one. There is no legitimate reason to avoid the tried and tested IJC process — it is transparent, inclusive, accountable, and enforceable.”

While McDonald said CSKT welcomed Canada’s efforts to address pollution by any means and in additionto an IJC reference, he expressed skepticism that its insistence on an alternativeis anything but a “delay tactic designed to produce a watered-down IJC process.”

The statements were made public just as pressure mounts on Canada to stand up to the influential B.C. mining industry and regulate pollution stemming from coal-mining operations on the Elk-Kootenai watershed bordering Montana, where for decades coal mines have leached toxic contaminants, including the mining byproduct selenium. In late March, following negotiations between Trudeau and President Joe Biden, Canada jointly committed to “protect fragile ecosystems” in transboundary waters, and stated its intent to “reach an agreement in principle by this summer to reduce and mitigate the impacts of water pollution in the Elk-Kootenai watershed.”

For Indigenous leaders from B.C.’s Ktunaxa Nation, as well as those from the CSKT in Montana and the Kootenai Tribes of Idaho (KTOI), the ongoing contamination imperils aboriginal territory that holds cultural and ecological value. For over a decade, the tribes have called for a transparent and credible process to address legacy, ongoing, and increasing pollution in the watershed through an IJC reference.

“This request is supported by the United States and all of the sitting Commissioners of the IJC,” according to the statement. “In a recent demonstration of solidarity, last month, numerous First Nations and Tribes across what is now known as British Columbia, Montana, Idaho, Washington, and Alaska, also voiced their support for the reference in a letter to Canadian leaders.”

Canada and the United States were expected to commit to the IJC reference a year ago, but at the eleventh hour, Global Affairs Canada walked away. Freedom of Information documents later revealed that Canada’s last-minute reversal followed intense interference by the province of British Columbia and the mining industry to defeat the joint reference. Following this turn, the Biden-Harris Administration reaffirmed its support for a joint reference.

In March, Biden and Trudeau issued a statement pledging to address the contamination crisis, saying the two governments “intend to reach an agreement in principle by this summer to reduce and mitigate the impacts of water pollution in the Elk-Kootenai watershed in partnership with Tribal Nations and Indigenous Peoples, in order to protect the people and species that depend on this vital river system.”

“It remains unclear whether this soft commitment will result in an IJC reference and a substantive plan to address the pollution crisis, or whether it will be just another empty promise,” according to the tribes’ joint statement. 

“Canada must stop allowing British Columbia to stonewall the IJC reference, especially as more and more information comes to light about the close relationship between B.C. and the mining industry,” Vice Chairman Gary Aitken Jr. from the Kootenai Tribe of Idaho said in the statement. “In refusing to engage the IJC, Canada is allowing the B.C. provincial government and mining industry to effectively nullify the 114-year-old treaty. Meanwhile, our rivers are dying.”

The rising pressure for an IJC reference comes as Teck Resources Limited, Canada’s largest diversified mining company, takes steps to expand its footprint in the Elk River Valley. Dubbed the Fording River Extension Project, it would be part of the existing Fording River Mine complex, which for more than five decades has been strip-mining the mountains of B.C.’s Elk River Valley. The extension project would include the removal of an adjacent mountain-top and is projected to produce an estimated 10 million metric tons of coal per year, extending the mine’s lifespan by several decades, company officials say.  

“We’ve been clear that the path forward for the Kootenay must include an IJC reference. The independent, credible, and scientific process the IJC provides will give us certainty on understanding the complex system and its stressors,” according to Ktunaxa Nation Chair Kathryn Teneese. “The transparency and unbiased process should serve to motivate and drive the parallel action that is needed at the international and federal level. The duty of honoring the crown rests with Canada. That duty comes with legal responsibilities that are currently being overlooked. It is time for Canada to meet its obligations under the Canadian Constitution, Boundary Waters Treaty, and United Nations Declaration on the Rights of Indigenous Peoples by recognizing Ktunaxa jurisdiction and working with our governments to ensure that the Kootenay watershed is restored and protected for generations to come.”

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