Two years ago at this time I had just returned from a reporting trip in B.C.’s scenic Elk Valley, where I had seen the region’s coal mines — the largest in the province — with my own eyes for the first time. 

Selenium pollution in the Elk Valley watershed, which is linked to fish and bird deformities and the collapse of treasured trout populations, is on the rise. And because the Elk Valley watershed drains into the Koocanusa reservoir, which crosses the B.C.-Montana border, the province’s selenium problem is now raising the ire of our neighbours to the south. 

When the 1909 Boundary Waters Treaty was signed between Canada and the U.S. to protect our shared waters, it would have been hard to imagine the kind of industrial-scale natural resource extraction we now see in the Elk Valley. And yet, more than 100 years on, these two nations are forced to confront the challenge of co-managing ecological tapestries that know no such thing as a border. 

So when things like selenium levels start to get out of hand, who do you call? The members of the International Joint Commission (IJC), for starters. The commission makes decisions on projects that can affect water levels and flow and can investigate, monitor and recommend against pollution in boundary waters shared between Canada and the U.S.

As the world awaits a transition of power after the recent U.S. election, The Narwhal spoke with one Canadian commissioner, Merrell-Ann Phare, and one American commissioner, Rob Sisson, about the role the International Joint Commission can play in reimagining the way North America manages its shared watersheds.

Carol Linnitt: Merrell-Ann, can you talk about what exactly we mean when we say transboundary watersheds? Where should people’s brains be going on the map?

Merrell-Ann Phare: Think of everywhere the Canada-U.S. boundary is. Either a water that flows from one side to the other side or that’s actually situated on the boundary. The Great Lakes are a perfect example of that.

For practical purposes, plain language, if you think about everywhere the boundary is, you’re looking at the land that those rivers and lakes across the boundary, the land that they’re situated in, including the people that are there, the ecosystems that are there, the plants and animals and various aspects of water health, including quality and quantity rate of flow, surface water, groundwater.

You’re really trying to look at the whole package in order to make a good decision in the thing that we have jurisdiction over, which is the boundary.

Rob Sisson: The attention [to] groundwater is increasing. I think there are five or six major aquifers that straddle the boundary between the two countries as well.

Carol Linnitt: It’s interesting to think about since this commission was founded and some treaties were signed, not only has our understanding of ecological impacts and ecological systems really evolved but so too has our sense of who ought to participate and who should have a voice in the way that watersheds are managed and the way that projects and their impacts are measured.

Merrell-Ann Phare: I have worked in these issues my whole life and feel strongly that the solutions to our water issues flow from having the people at the table … that both have rights and have the knowledge and are impacted by the waters.

Indigenous Peoples are key peoples that have been excluded from that decision many times, most of the time in the life of the IJC. We many years ago — long before any of the current commissioners were on the commission — had begun a whole number of projects with Indigenous people.

Some of the most interesting ones that we can talk about are for example, in the Rainy River-Lake of the Woods area, where we partnered to do some fascinating studies, incorporating Traditional Knowledge and Western science together to figure out better ways to manage, for example, in that situation, hydro dams — how to change the flows and which time of year in order to protect sturgeon spawning grounds and which are critical to the treaty rights of Indigenous people there and are part of their sustainable livelihoods.

That’s a good example, and that work has been going on for some time. I think what the commissioners are also interested in … is thinking consistently across all of our cohorts and across our programs: how do we be systematic, consistent, transparent about the role of Indigenous Peoples in the decision-making?

Rob Sisson: If I can add to that, one of my dreams for the IJC, I don’t think it’ll happen during my tenure here, but hopefully, we’ve planted the seed that the governments will eventually give the IJC the ability to create international watershed boards across the entire transboundary so there’s not one inch on the boundary where we don’t have a presence.

I see those boards as a fantastic way to bring Indigenous voices to bear on our work and on the management and protection of water along the entire transboundary. I’m very excited about Traditional Ecological Knowledge.

We’ve been dominated at the IJC and elsewhere by Western science. The more I learn about Traditional Ecological Knowledge, the more I’m just amazed at what I didn’t know, and the wisdom that Indigenous people can bring to the table.

Read more: Meet the scientists embracing traditional Indigenous knowledge

Carol Linnitt: Our readership is really familiar with the ongoing problems with selenium and other pollutants in the Elk Valley watershed. It looks like that contamination is going to be making its way into that watershed and ecosystem for potentially hundreds of years. What is the commission’s role and how does the commission view and understand that problem right now?

Merrell-Ann Phare: I can start with just the role of the commission, and then maybe Rob can talk more specifically about his views on the situation. In that situation, of course, a company like Teck [Resources] would be regulated by the federal and provincial government in Canada. The IJC has no jurisdiction over that. 

What we do though, is we become involved under the treaty if there’s an impact on waters along the transboundary or from one side to the other, and that is the case here.

We have only certain levers in our toolkit at the IJC because we’re not a government. We’re created by governments. Our levers are we can alert governments to problems that we see, we can recommend that we be given a reference that helps.

A reference is a process where we are asked by governments to study the issue and come back with recommendations to try to solve the problem or prevent conflict. That’s usually a multi-year process, very expensive but it really gets at the science and Traditional Knowledge.

Knowledge is behind the issue and it gives us an opportunity to involve basically all of the local people and provide a final report to government that sets out research, findings and recommendations.

We have asked for a reference to deal with mining issues and water quality issues [in the Elk Valley] … and we’re waiting to hear on that.

We would be very interested in doing a study that encompassed this and other mining issues to try to deal with this vexing issue, but have yet to be asked.

Rob Sisson: Yes, the Elk River — coal mining has been there for a long time. As with a lot of industrial processes, we didn’t know what issues might occur or might be there because we just forged ahead … and obviously we know now that selenium could be an issue.

We just released a long-awaited document on the human health impact of selenium, not targeting the Elk River valley or Teck, but just in general what selenium impacts on human health could be. We do know in that watershed, it’s having an impact on fish reproduction and populations and we also know and I want to stress that the two governments are working very closely on this.

I’m an angler. I love fly fishing and the Elk River-Kootenay system is close to where I live and so that’s something I keep an eye on. I think this is one of the watersheds where we could benefit from a watershed board because when you have a situation like this, there’s a lot of distrust: is the other side doing enough? Are they paying attention? Are they sharing with us all the information? Does the company really care or not? 

I think if you had a watershed board in place, if we had one in place historically, there’d be relationships already built, trust lines of communication built where I think this would flow a lot easier and there might be less controversy, less anger and more — my favourite phrase — more rowing the boat in the same direction to try to find a solution and implement it.

Carol Linnitt: I’m curious even myself: what exactly do you see a board doing? If there was a board that was designated to work on these kinds of issues, how would that board intervene in the Elk Valley in particular?

Rob Sisson: In general, a Kootenay-Elk River system board … would have local community leaders and members, NGO representatives, hopefully someone from the mining industry involved, state, local, federal government officials all together and citizens who are concerned. Primarily it would be communication- and relationship- building because that’s how you address problems.

“Because of the tailing piles, this problem could be with us for 1,000 years.”

Specifically, in this case, if the governments someday give the IJC a reference here, they could ask us to consolidate and manage or oversee the water quality testing to give everyone confidence on both sides that the measurements are accurate and true and protocols are being followed.

Because of the tailing piles, this problem could be with us for 1,000 years. They could give the IJC a reference at some point, just sort of a permanent bi-national body that’s keeping an eye and monitoring the situation hopefully for centuries.

A pile of waste rock at a Teck Resources’ mine in B.C.’s Elk Valley. Waste rock piles leach selenium into the watershed, leading to pollution problems that have caused fish deformities and the contamination of drinking water. Photo: Callum Gunn

Merrell-Ann: In terms of Indigenous governments having a role and Indigenous peoples having a role, that’s a huge piece. But remember, part of the reason we’ve suggested a reference on this topic is because there may be governance reform that’s required in order to prevent these kinds of problems in the future, particularly given the role of local governments, the role of Indigenous governments, et cetera.

Thinking about it from the scientific and Indigenous Knowledge side … what is the science actually telling us and what can we do? There’s a technology aspect to it, but there’s also a governance aspect. … A reference could help us frame out the key things that a watershed board would do.

Normally our boards, particularly the old ones … look at water quality and quantity. They don’t really look at anything beyond that. This is a much more complex and diverse problem. That’s where watershed boards come in because they have a mandate to look at all the aspects of the problem and to try to protect transboundary waters.

Carol Linnitt: It’s interesting to bring up the governance element of these problems. I’m thinking of another transboundary watershed shared between B.C. and Alaska up in the northwest. One of B.C.’s probably most infamous mines, the Tulsequah Chief, has for 60 years been leaching pollution into a river that flows directly into Alaska, a salmon-rich river.

“I look at salmon as this century’s version of bison from the 1800s.”

Rob Sisson: Last year we went on a fact-finding trip to Southeast Alaska and British Columbia because [people] in Alaska had contacted us and said, “Hey, you need to come look at this because we think this could be a big problem.”

We went up, we met with the State of Alaska, federal and local officials, NGOs and we went across and met with British Columbia and Canadian federal officials. We’ve met with mining company officials, too, to gather facts.

We don’t have a reference in the area but we used our alerting function to let the governments know that the Tulsequah Chief mine is leaching into the watershed. [The Mount Polley mine], which did not directly affect international waters or shared waters, is the example that I think a lot of people in Alaska are worried about with the bigger mines in British Columbia that would feed into the Taku, Unuk and Stikine rivers.

The ‘Grand Canyon’ of the Stikine River, near major mining projects in B.C. Photo: Garth Lenz / The Narwhal

I think people on both sides are talking about those laws and regulations to better protect the watersheds. I have faith that British Columbia and the Canadian federal government will continue to make progress in that.

For me, I look at salmon as this century’s version of bison from the 1800s. Now in the 1800s in the U.S., the U.S. government made the conscious decision to try to eliminate bison in order to basically control and stamp out Indigenous culture.

We are absolutely not making the conscious decision to try to impact salmon negatively but in my mind, standing by and not being proactive in pulling out all the stops to protect the really rich salmon rivers and waters could end up doing the same thing.

If one river system loses its stability to reproduce salmon we’re going to see entire Indigenous cultures disappear — Tlingit, Haida communities along those rivers and coastal areas. It’s something I’m very keenly aware of and spent a lot of time thinking about.

Hopefully, it will never rise to an IJC reference because the governments through regulation — whether that’s a carrot or stick — will resolve it before it becomes a problem.

Merrell-Ann Phare: If I could take this step out of my IJC hat for one moment and say, IJC certainly does not weigh in on domestic legislation and … whether it’s out of date and needs to be reformed or not.

As Rob said, what we can really do is alert to a problem and, if asked, to have a reference and do a study in that area and provide some recommendations. 

I would say that I know there are some Indigenous nations in that region who work with the mines that are in support of mining. There’s not 100 per cent consensus on what is the best path here and, to me, that’s the sign of the need for governance reform domestically. I think finding out how to build legislation or rely on Indigenous laws to better protect the salmon in accordance with what their worldviews are plus British Columbians — that’s the governance reform moment that is the reconciliation moment.

That’s the conversation I think that needs to be had. I would agree with Rob that from what we know and from our investigations, Canada and B.C. are talking at length about this on an ongoing basis. Like Rob, I really hope they are very successful in that but I think those conversations must also have to involve the Indigenous nations that are directly impacted as well at a governance level, sort of a government to government table, to try to truly resolve this issue.

This conversation has been edited for brevity.

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

Promises of a closer relationship between B.C. and Alaska and more consultation on B.C. mine applications are a good start, but, so far, Southeast Alaska has no more guarantees that those mines will not pollute salmon-bearing rivers than before this week’s visit by B.C.’s Energy and Mines Minister Bill Bennett, say Alaskan fishing and conservation groups.

Bennett, accompanied by senior civil servants from the ministries of Energy and Mines and Environment, took a conciliatory tone as he met with state officials, policy-makers and critics of what is seen as an aggressive push by B.C. to develop mines in the transboundary area, close to vitally important salmon rivers such as the Unuk, Taku and Stikine.

“I understand why people feel so strongly about protecting what they have,” Bennett said in a Juneau news conference with Alaska Lt. Governor Byron Mallott.

“There’s a way of life here that has tremendous value and the people here don’t want to lose it. I get that,” he said.

But promises of a strengthened dialogue and more opportunities to comment on mine applications fall far short of a growing chorus of Alaskan demands that the issue be referred to the International Joint Commission, formed under the Boundary Waters Treaty, which forbids either country from polluting transboundary waters.

[view:in_this_series=block_1]

It was a step forward to have such a high-level meeting, said Chris Zimmer of Rivers Without Borders, but it is an international issue that demands international attention.

“Increased involvement in the B.C permitting process is not a bad thing, but it is not a solution on its own. In other words, we stand firm for the need of an international solution under the Boundary Waters Treaty,” Zimmer said.

Both sides agreed the status quo cannot continue, but the question is how to move forward, Zimmer said.

“How do we move from words to real, concrete action to protect Alaska’s interests?”

Bennett did not rule out the possibility of going to the International Joint Commission, but felt it was premature and the commission should be brought in only if the province and state could not work it out between themselves, said Heather Hardcastle of Salmon Beyond Borders, a coalition of fishing, tribal, tourism and community organizations.

There was also no agreement on the question of how Alaskans would be compensated if there was an upstream spill.

“We are saying we are taking on the lion’s share of the risk and we are not receiving the benefits and there is nothing in place right now, Minister Bennett told us, to deal with liability,” Hardcastle said at a news conference following a meeting with Bennett.

“That’s just unacceptable to us that there’s nothing to compensate us for the lack of our livelihood.”

Financial assurances that Alaskans would be compensated if B.C. mining damages fisheries and water quality are needed prior to projects receiving permits, Hardcastle said.

Dale Kelley, Alaska Trollers Association executive director, said the universal theme was how to ensure no harm befalls Alaska’s fisheries.

“It was quite disturbing to hear the minister say there really is no remedy,” she said.

Both federal governments need to be involved in compensation discussions as a spill would mean a disaster on a scale that could not be handled by the state and provincial governments, Kelley said.

During the visit, Bennett agreed that B.C. should fix leakage from the Tulsequah Chief Mine, that, through a tributary, flows into the Taku River.

Decades of failed promises to fix the leakage have been a thorn in the side of many Alaskans, even though it is not known whether the mine drainage is hurting fish.

After touring the Taku River by helicopter Monday, Bennett told reporters it should be fixed.

“I think B.C is going to have to find a way to rectify it sooner than later and I think it is a most legitimate criticism of us by those folks in Alaska who don’t like it,” he said.

The Tulsequah Chief, now owned by Chieftain Metals Corp, was closed by Cominco in 1957 without acid mine drainage cleanup or site reclamation and despite numerous B.C orders, subsequent owners failed to clean up the mess. The mine was bought by Chieftain in 2010 when the company accepted the environmental liabilities and installed an interim water treatment plant.

“It’s clearly a black eye for Canada,” Zimmer said.

Solutions now, if Chieftain does not reopen the mine and get a grip on the drainage problems, are for B.C. to close down the mine properly — something likely to cost multi-millions of dollars — or to spend $4-million a year to treat the waste in perpetuity, Zimmer said.

“We are looking for very specific action to back these words up.”

Photo: Minister of Energy and Mines Bill Bennett. Credit: Province of British Columbia.

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

Southeast Alaskans, anxious about B.C.'s mining boom along the Alaskan border, are pinning their hopes for stronger mine management on a treaty that dates back more than a century.

The International Joint Commission (IJC), operating under the Boundary Waters Treaty since 1909, is a body with six appointed members —three from Canada and three from the U.S. — used to resolve water or air conflicts between the two countries.

However, although the commission appears to be tailor-made to deal with the concern over B.C. mines in the headwaters of Southeast Alaska’s most important salmon rivers, politicians on both side of the border appear reluctant to hand over responsibility to a commission whose recommendations remain entirely independent of either party.

B.C. is seen as the major stumbling block, but the U.S. State Department is also hesitating, despite appeals to Secretary of State John Kerry from municipalities, First Nations, fishing organizations and tourism groups requesting the IJC's involvement.

In response to questions from DeSmog Canada, a State Department spokeswoman said the Mount Polley mine investigation is being watched closely and the State Department remains concerned about the potential effects of B.C. mines on the people of Alaska, but she encouraged B.C. and Alaska to increase cooperation and communication on transboundary mines rather than count on an IJC ruling.

“We have highlighted our concerns with the governments of Canada and B.C. at senior levels in government-to-government channels and do not anticipate referring this issue to the International Joint Commission at this time,” she said.

Alaska 'A Full Step Away' From Escalating Issue to Joint Commission: Lt. Governor

Alaska Lt. Gov. Byron Mallott, who recently travelled to B.C. to meet with Energy and Mines Minister Bill Bennett, said that discussions are continuing between Alaska and B.C. and he is not yet sure whether there will be a role for the IJC.

“Whether or not it is appropriate or timely that the IJC be invoked will be determined by the course of events,” Mallott said.

“To me, we are at least a full step away from that.”

If B.C. and Alaska forge a positive, transparent relationship, with sufficient oversight and cross-boundary input to safeguard Alaska’s interests, there may not be a need to seek help from the IJC, he said.

[view:in_this_series=block_1]

“It is important that Alaska and B.C. and the interests on both sides of the border be able to take this as far as possible,” he said, adding that, during his visit, he did not see a strong federal presence on mining issues in B.C.

The state’s congressional delegation is keeping in contact with the State Department on a possible role for the IJC, Mallott said.

Last year, Senator Lisa Murkowski, former senator Mark Begich and Congressman Don Young wrote to John Kerry asking him to raise the problem with his Canadian counterparts.

“Water quality is an extremely important issue for Alaskans. Accordingly, we ask you and other officials from the Department of State to raise these concerns with the governments of Canada and B.C.,” the letter says.

Energy and Mines Minister Bill Bennett has not responded to a DeSmog Canada interview request, but, in statements to media after his meeting with Mallott, he acknowledged Alaska’s “legitimate concerns” and said the discussions were a good foundation for a possible memorandum of understanding with the state.

B.C. Permitting Process Doesn’t Address Cumulative Impacts

The MOU could be similar to the arrangement with Montana, covering the Flathead River, where water testing is done at the border, he suggested.

However, the idea of an MOU does not sit well with grassroots groups pushing for a referral to the IJC.

MOUs are largely focused on information sharing and do not provide enforceable protections for downstream resources, said Chris Zimmer of Rivers Without Borders.

“Bennett’s offer for greater involvement in the B.C. permitting process is simply inadequate to address our concerns and is a sign that B.C. is not taking our concerns seriously,” Zimmer said.

“The B.C. permitting process, no matter how well it is carried out, is simply not designed to address long-term impacts from multiple mines, across a broad landscape, over the long term.”

It is always a difficult decision for politicians to ask for outside help, said David LaRoche, who served as executive secretary to the U.S. side of the commission from 1979 to 1996 and has since worked on transboundary watershed issues.

“Each country takes a leap of faith when it relies on something outside the established mechanism to have the issue addressed,” he said.

All Parties Need to Agree to Refer Case to International Joint Commission

Ideally, if the IJC is to be involved, there should be agreement from B.C., Canada, Alaska and the U.S.

“Under the treaty it is possible for one country to ask the commission to undertake a study, but it has never happened and the chances are close to zero as it would have no value because it would immediately be seen as biased by the country that did not ask,” LaRoche said.

Historically, both countries ask for a reference and agree on the specifics they want the IJC to study.

“If a province or state were to object it would be highly unlikely that a letter of reference would be sent. Unless B.C. is agreeable, this one won’t unfold,” LaRoche said.

Those campaigning for the commission’s involvement point to article four of the treaty, which says “waters flowing across the boundary shall not be polluted on either side to the injury of health or property on the other.”

Two B.C. Tailings Dams Expected to Fail Every 10 Years

So far, none of the new mines in northwest B.C. have polluted rivers, but there is a grating awareness of the possibility of a Mount Polley-type accident, something which was underlined by the report from the independent panel looking into the failure of the tailings pond dam, which found, under current regulations, two B.C. dams would be expected to fail every 10 years.

It is a statistic that shocked observers on both sides of the border and led to ramped up calls for a referral to the IJC.

Even though findings by the commission are not binding on either party, the recommendations carry a hefty dose of moral suasion and public clout, especially as conclusions are usually reached by consensus.

In 1984, after complaints by B.C., the IJC gave the thumbs-down to construction of a dam on the Skagit River that would have flooded parts of B.C. and in 1985, after U.S. complaints, the IJC recommended against an open pit coalmine in B.C.’s Flathead Valley until the impact on fisheries could be eliminated.

NDP energy and mines spokesman Norm Macdonald said the core issue, in the wake of the systemic failures pointed out by the Mount Polley report, is the need for the province to enforce environmental rules and standards, putting public safety ahead of economics, rather than cutting essential staff and accepting huge donations from the mining industry.

“Whatever tool you use, it has to be something where there is no tolerance for failure,” Macdonald said.

“We don’t tolerate elevators or bridges falling down and we have to take the same attitude to these facilities.”

Photo: www.sacbee.com

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.