Alaskans and Canada’s Transboundary Mining Pollution: Kick-starting the US-Canada Bilateral Pollution Regime

by Kenta Tsuda

[Kenta Tsuda is an attorney at the non-profit law organization Earthjustice in Juneau, Alaska. Earthjustice was involved in the Pelly Amendment process described below in the post.]

For millennia the peoples of southeast Alaska have prized the salmon harvests of the Taku, Stikine, and Unuk rivers, three transboundary waterways flowing from headwaters in British Columbia’s Coastal Range through Southeast Alaska to the sea.  Customary harvests continue today, along with tens of millions of dollars’ worth of commercial fishing.  In recent years, however, Alaskan  communities have faced a threat of potentially devastating transboundary pollution from mines in British Columbia.  Hard-rock mines exploiting gold-copper deposits in the headwaters of the three rivers would produce billions of tons of waste rock and tailings.  Each would require indefinite treatment of uncertain efficacy to prevent the poisoning of surrounding watersheds by a toxic cocktail of acidity and dissolved heavy metals.  This contamination could have population-level harms on salmon, both in Canadian reaches of these waters and on the U.S. side of the border.  Downstream communities in Southeast Alaska fear for their economic futures and ways of life, while Canadian authorities are allowing the projects to advance.  Alaskan groups now seek resolution of the dispute at the international level.  To that end, under a domestic statute they have invoked the U.S. Government’s duties to confront these environmental threats, aiming to prompt the Government’s assertion of rights held under international law.

The transboundary nature of the threat limits private legal action on the American side of the border.  The situation requires what Professor Thomas Merrill has described as a transboundary collective action regime.  As Merrill has explained, such regimes are difficult to create, however, “if some mechanism can be devised for inducing mutual cooperation, the situation is potentially a positive-sum game for all.”  In the case of the United States and Canada, a mechanism for addressing transboundary pollution already exists: under Article IV of the 1909 Boundary Waters Treaty the United States has a right against transboundary pollution from Canada.  This same instrument creates an institution to address potential violations of treaty rights, the International Joint Commission (IJC).  Under Article IX, the parties agree that “any . . . questions or matters of difference arising between them involving the rights, obligations, or interests of either in relation to the other or to the inhabitants of the other, along the common frontier” could be referred to the IJC “for examination and report.”  A referral would entail the governments of both the United States and Canada formally requesting that the commission exercise its investigative powers with respect to specific questions of rights or interests along the frontier.  Such Article IX referrals have been made many times.  Although IJC findings in response to a referral are not automatically binding, historically the parties have abided by them.  For these reasons, groups in Alaska and Canada—indigenous communities, commercial fishing interests, conservationists—as well as Alaska’s congressional delegation, and Washington’s Senators Murray and Cantwell, have requested that the State Department consider referring to the IJC questions regarding the potentiality of and means to prevent transboundary pollution from hard-rock mines in the three watersheds.  So far, both American and Canadian federal governments have demurred, suggesting that an information-sharing agreement between the state of Alaska and Province of British Columbia—which cannot be binding, and therefore includes no liability rule—might eventually yield a solution.

To encourage further consideration and engagement among federal agencies, and ultimately the Federal Government’s referral of the issue to the IJC, Alaska Native and conservation groups recently invoked a domestic legal lever to prompt an invesigation by the Department of the Interior.  The groups, including the environmental law organization Earthjustice, submitted a petition invoking Secretary of the Interior Sally Jewell’s duties under the 1971 Pelly Amendment to the Fishermen’s Protective Act.  Under this statute, the Secretary must investigate and certify to the president if foreign nationals act to diminish the effectiveness of a U.S. conservation treaty.  The petitioners describe six mine projects in the transboundary watersheds, detailing how they threaten Pacific salmon and steelhead trout—protected under the 1991 Anadromous Stocks Conservation Convention—as well as the grizzly bear and woodland caribou—protected by the Western Hemisphere Convention.  The petition requests the Department of the Interior to bring its expertise to bear upon the issue via an investigation of the mines and their environmental effects, and for Secretary Jewell to engage her colleagues in the federal executive to seek a referral of the issue to the IJC.

This developing situation demonstrates that parties to an established transboundary collective action regime must actively exercise their relevant rights and privileges to protect the interests of their citizens against transboundary threats.  It also illustrates the potential role that domestic statutory remedies can play in private actors’ efforts to address transboundary threats, even where the domestic law does not afford ample opportunity directly to address sources of transboundary pollution.

http://opiniojuris.org/2016/07/25/alaskans-and-canadas-transboundary-mining-pollution-kick-starting-the-us-canada-bilateral-pollution-regime/

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