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Ktunaxa slam federal decision on Kootenay River pollution referral

Ktunaxa governments call for transboundary water issue dispute resolution through International Joint Commission

Ktunaxa governments and the Ktunaxa Nation Council are expressing “disappointment and outrage” at a federal government decision rejecting a request to bring transboundary pollution issues in the Kootenay River watershed to an international commission for dispute resolution.

According to Ktunaxa governments, Global Affairs Canada has rejected a request to bring pollution issues in the Kootenay River, on both sides of the Canadian and United States borders, to the International Joint Commission (IJC).

In a letter sent to two federal cabinet ministers earlier this month, the Ktunaxa governments of Yaq̓ it ʔa·knuqⱡiʾit (Tobbaco Plains), ʔakisq̓ nuk (Columbia Valley), Yaqan Nuʔkiy (Lower Kootenay) and ʔaq̓ am (St. Marys) argue that Global Affairs Canada has failed to meaningfully engage and implement principles identified in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

“Ktunaxa ʔaqⱡsmaknik (Ktunaxa people) have a duty to care for the land and those who reside within it, including those downstream on the Kootenay River across the 49th parallel,” reads a statement issued by the Ktunaxa Nation Council on Monday, May 16.

“The decision made by Global Affairs does not reflect meaningful consultation or discussion with Ktunaxa and flies in the face of Canada’s commitment to reconciliation and its commitment to fully implement UNDRIP. The governments of the Ktunaxa Nation call upon Canada to reverse this decision immediately and to recommit to consent-based engagement with the Ktunaxa Nation on a joint IJC reference.”

The request for dispute resolution through the IJC is driven by transboundary pollution concerns in the Kootenay River watershed caused by decades of mining in the region.

A Global Affairs Canada spokesperson says the federal government has not rejected the possiblity of a reference to the IJC at this time.

“Discussions between Canada and the U.S. on transboundary mining issues in the Kootenay/Kootenai River remain ongoing, including related to calls for IJC involvement,” said James Wanki, in an emailed statement.

The IJC is a non-binding regulatory body that approves projects affecting water levels across the international border and also investigates transboundary water issues and recommends solutions. It is guided by the Boundary Waters Treaty, an agreement signed between Canada and the United States in 1909 that provides general principles rather than detailed prescriptions for preventing and resolving transboundary water disputes.

Wildsight, a conservation organization that advocates for environmental issues in the Kootenay region, also raised concerns about Global Affairs Canada ‘walking away’ from discussions to engage the IJC.

“The Ktunaxa Nation has been calling for a reference to the IJC since 2012,” reads a statement from Wildsight. “Since then, we have seen the situation on the ground worsen — selenium levels are increasing, fish are dying, Teck received the largest fine ever issued under Canada’s Fisheries Act and B.C. is failing to regulate its mines.

“This is an opportunity to find a long-term, science-based solution to this complex problem — Canada and B.C. must uphold the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and support the Ktunaxa Nation’s call for a reference to the IJC and explore a transboundary, Indigenous-led watershed board for the Kootenay.”

Last year, Teck Coal was fined $60 million for environmental violations under the Fisheries Act dating back to 2012.

The traditional territory of the Ktunaxa Nation includes the Kootenay region and western parts of southern Alberta, while also extending south into the United States, particularly Montana, Idaho and Washington.

READ: EPA approves new Montana standards for selenium in Lake Koocanusa

Water quality and aquatic ecosystem impacts from selenium levels in the Kootenay River watershed, including Lake Koocanusa, has been a long running concern. While Teck, the coal mining giant operating four mines in the Elk Valley region, last year maintained that selenium levels have been stable since 2014, a mining spokesperson with Wildsight disagreed, noting that selenium levels at the mouth of the Elk River has been an increasing trend going back decades.

Last year, the United States’ Environmental Protection Agency approved a selenium limit of 0.8 micro-gram per litre for Lake Koocanusa, a more stringent threshold than what’s required by British Columbia’s environmental regulators.

British Columbia has yet to follow suit with the EPA’s new selenium regulation, instead opting for a “science-based process” and consultation and consensus with the Ktunaxa Nation Council, according to an update issued in September 2020.

With files from Scott Tibballs/Fernie Free Press

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Trevor Crawley

About the Author: Trevor Crawley

Trevor Crawley has been a reporter with the Cranbrook Townsman and Black Press in various roles since 2011.
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