Provincial opposition to a proposed investigation of Kootenay watershed pollution may have dashed initial federal support for the review, based on a trove of documents recently released through freedom of information disclosure by the Ktunaxa Nation Council.
The documents show correspondence between the provincial and federal governments related to potential participation in the International Joint Commission, which adjudicates transboundary water issues between Canada and the United States and provides resolution recommendations to disputes.
For the last decade, the Ktunaxa Nation Council, along with the Confederated Salish and Kootenai Tribes, and the Kootenai Tribe of Idaho, has been calling for the IJC to examine pollution in the Kootenay watershed, particularly around selenium levels in Lake Koocanusa as a result of mining activity in the Elk Valley.
“I think the important issue at hand is the health of the waterways, that’s what our concern is and we were seeking a mechanism to try and get some independent oversight and some science to speak to some of the concerns that we’re raising and hopefully provide some ideas about how we might address some of these things,” said Kathryn Teneese, chair of the Ktunaxa Nation Council.
Lake Koocanusa is a reservoir straddling the B.C./Montana border that is controlled by the Libby Dam in the United States. It was one of four hydro-electric dams built under the terms of the Columbia River Treaty between Canada and the United States nearly 60 years ago. That treaty is currently under renegotiation.
Environmental and water quality impacts stemming from coal mining in the Elk Valley has been a long-running concern for the Ktunaxa and environmental advocates, as the Elk River flows into the reservoir just north of the Canada-U.S. border.
Uniform environmental regulations and standards for Lake Koocanusa has been a long running issue, as the reservoir crosses an international boundary and is under the jurisdiction of provincial, state and federal levels of government. The inherent constitutional rights of Indigenous Peoples, relating to title, rights, and free, prior and informed consent, are also at issue.
While the Canadian government was initially supportive of an IJC investigation, that position changed earlier this year, according to Teneese. Further, the internal correspondence between the province and the feds shows the two governing bodies were having a separate conversation apart from what the Ktunaxa thought was the way forward, added Teneese.
“It raises the issues of what’s happening on other fronts in terms of conversations that we may be having,” Teneese said. “Even though everyone is saying the good words about consultation, inclusion, reconciliation, all of those things, but then when we see this kind of activity it seems like nothing’s really changed.”
The call for an ICJ study is backed by Wildsight, a local non-profit organization dedicated to environmental conservation, which took the provincial and federal governments to task for failure to consult with the Ktunaxa.
“British Columbia and the federal governments’ actions have shown an outright disrespect for the Ktunaxa principle of reciprocal stewardship and a one-river approach,” said Robyn Duncan, Wildsight’s executive director. “A transboundary, Indigenous-led watershed board for the Elk-Kootenay River System under the IJC is likely the only effective, impartial, long-term and science-based solution to this complex problem.”
According to the freedom of information disclosure, B.C. officials were opposed to the federal government’s potential involvement in an IJC investigation, as correspondence between the Office of the Premier and Global Affairs Canada dating back to 2021 indicated the province’s reluctance to participate in the process.
“It is the view of the Government of British Columbia that pursuing a referral to the IJC would compromise ongoing cross-border environmental management efforts, which are on track to address concerns that have been raised,” reads a letter from Silas Brownsey, a B.C. deputy minister dated Aug. 5, 2021.
B.C.’s position on the IJC reference remained unchanged into 2022 based on further provincial correspondence to Global Affairs Canada, which touted transboundary collaboration between the B.C. and Montana governments and cited Teck’s investment of over $1 billion on water quality treatment initiatives in the Elk Valley.
“The Province maintains there are other, more efficient ways to address concerns around selenium levels and will continue to co-develop approaches with Ktunaxa and in collaboration with governments in both Canada and the U.S., as well as with industry and stakeholders,” reads the letter that was jointly signed by environment minister George Heyman and energy minister Bruce Ralston, dated April 14, 2022.
Province, federal governments respond
In response to a Black Press Media inquiry, a spokesperson for Environment and Climate Change Canada affirmed the federal government’s commitment to protecting freshwater resources, including in the Elk Valley, and spotlighted ongoing efforts to develop the Coal Mining Effluent Regulations, a draft of which is expected by late 2022.
“The CMER’s proposed approach will include the establishment of national baseline effluent quality standards for deleterious substances of concern, including selenium.”
The Canadian government also noted it has not yet ruled out the possibility of an IJC investigation with the United States.
A spokesperson with the B.C. Ministry of Environment said the province has been engaged with all parties to improve water quality in the Elk Valley without the involvement of the IJC.
In response to data accessibility concerns, the ministry says the province is developing a new online tool to improve availability and transparency of information related to water quality and regulatory activities in the Elk Valley.
While the province and the federal government are seemingly ignoring calls for an IJC reference at the present, the U.S. State Department publicly supported the study following a summer meeting with six Ktunaxa governments that included representatives from Yaq̓it ʔa·knuqⱡi’it First Nation (Tobacco Plains), ʔakisq̓nuk̓ First Nation, Yaqan Nuʔkiy (Lower Kootenay) and ʔaq̓am (St. Marys), the Kootenai Tribe of Idaho, and the Confederated Salish and Kootenai Tribes.
“A joint reference would respond to the need for impartial recommendations and transparent communication, build trust, and forge a common understanding of this issue among local, Indigenous, state, provincial, and federal governments as well as stakeholders and the public in both countries,” according to U.S. State Department spokesperson at the time.
Water quality concerns
When it comes to water quality challenges in the Koocanusa reservoir, selenium is cited as one of the more prominent concerns.
Selenium is a naturally occurring element, however it can be harmful to aquatic life at higher concentrations.
Permitted selenium levels in Lake Koocanusa differ between British Columbia and Montana, the latter of which adopted more stringent regulations last year following approval from the U.S. Environmental Protection Agency.
Montana’s Department of Environmental Quality set a standard at 0.8 micrograms per litre, which is at odds with the current 2.0 micrograms per litre permitted by British Columbia.
Prior to the Montana’s adoption of the new standard, the provincial government stated it has not settled on a new water quality objective for selenium, despite participating in the cross-border process.
A Teck spokesperson says that selenium levels in the Lake Koocanusa reservoir has remained stable for over a decade.
In the context of Montana’s new 0.8 micrograms per litre standard, a report from the United States Geological Survey shows that while selenium concentrations in the lower limit of ongoing data sampling has remained near the 0.8 microgram per litre baseline, the upper limit and outliers of that data sampling has been increasing.
Additionally, that same USGS report aslo referenced a recent study on a selenium analysis in fish eggs, which found some samples in species such as peamouth chub, reside shiner and westslope cutthroat collected in 2020, relative to years past, exceeded the 15.1 milligram per kilogram (mg/kg) dry weight standard for fish tissue that was adopted into Montana state law in 2020.
Teck questioned whether IJC reference is ‘truly necessary’
Among the freedom of information disclosure was a letter from a Teck representative dated March 30, 2022, requesting that Global Affairs Canada “revert to the historical position of opposition to an IJC reference for the Koocanusa Reservoir.”
That letter, authored by Marcia Smith, senior vice-president, sustainability and external affairs, suggested that Libby Dam operations is a primary contributor to water quality issues on the Montana side of the Koocanusa reservoir. Further, the letter also alleged that high levels of mercury in the reservoir are unrelated to mining activities and influenced by Libby Dam operations and that U.S. support for an IJC is driven by politics.
Smith also raised concerns that an IJC study could affect employment related to the company’s coal mining operations, impact Canada’s regulatory autonomy, and pose risks to Teck’s implementation of elements of the Elk Valley Water Quality Plan.
“We have been told several times that the U.S. push for this reference is ‘political’ in nature,” Smith wrote. “As such, we believe Global Affairs Canada needs to look closely and skeptically at whether an IJC reference that could effectuate concessions of Canada’s regulatory authority over Canadian business and resources and could easily become an unwieldy diversion from major ongoing regulatory programs and processes, is truly necessary, or whether Canada would be better served by resisting such pressures.”
A Teck spokesperson touted the company’s Elk Valley Water Quality Plan, which was created a decade ago involving governments in Canada and the U.S., along with the Ktunaxa Nation Council and local communities.
The spokesperson also cited transboundary collaboration through the Lake Koocanusa Monitoring and Research Committee and the Koocanusa Reservoir Transboundary Monitoring Task Group.
The company has invested $1.2 billion so far in water quality treatment plans, with an additional $750 million more to come in the next two years. Currently, there are three water treatment facilities that are removing 95 per cent of selenium from water, while a fourth is commissioning now and more are under construction.
Last year, the company was ordered to pay $60 million after pleading guilty to two violations under the federal fisheries act, as charges filed by Crown prosecutors determined the company “unlawfully deposited a deleterious substance, specifically coal mine waste rock leachate, into water frequented by fish” dating back to 2012 in the Upper Fording River in the Elk Valley.
It was the largest administrative penalty ever delivered by the courts for pollution in violation of the act.
Before the charges and guilty plea was announced, the federal government had also issued a direction under the fisheries act containing measures that complement the Elk Valley Water Quality Plan. The measures are aimed at improving water quality and calcite deposits in the Elk Valley waterways that are affected by the Fording River and Greenhills operations.
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