It’s been a busy summer of news for the Elk Valley’s coal mines. Swiss company Glencore finalized its acquisition of the mines in early July, shortly before a new report sounded the alarm over Glencore’s environmental and human rights track record; the US Geological Survey published its findings that selenium pollution is travelling over 500 kilometres downstream to the Columbia River; and Environment and Climate Change Canada laid five new charges against Teck for polluting fish-bearing waterways.
Amongst all this, the International Joint Commission (IJC) investigation into water pollution in the Elk-Kootenay watershed is a shining light of hope for the communities and nations affected. Soon, the reference will reach its first major milestone with the establishment of its Study Board, and it’s now seeking public input on how that board reports to the public — as well as relevant data and information it should consider.
So, what is the IJC, how will this reference play out, and why are so many people excited about it?
What is an IJC reference?
The IJC is a neutral third party that investigates, prevents and resolves disputes over shared waters between the United States and Canada. It was set up over 100 years ago when the two countries signed the 1909 Boundary Waters Treaty which states: “Waters flowing across the boundary shall not be polluted on either side to the injury of health or property on the other.”
It’s important to note that the IJC can only commence investigations into an issue after both Canada and the U.S. have asked it to do so; this request is called a ‘reference’. The transboundary Ktunaxa Nation had been calling for an IJC reference on water pollution in the Elk-Kootenay watershed for over a decade, with support from its many allies. But British Columbia opposed the idea, stating it was, “on track to address concerns,” despite little evidence of that being the case. Finally, after years of delay, the province changed its tune last year, and this March, the governments of Canada and the U.S., in partnership with the Ktunaxa Nation, called a joint reference.
Why do we need an IJC reference on water pollution in the Elk-Kootenay watershed?
The water pollution in question stems from Glencore’s (formerly Teck’s) massive metallurgical coal mines in British Columbia’s Elk Valley, in the upper reaches of the Elk River. Piles of waste rock from these mines expose selenium and other pollutants to the elements, allowing rain and snow melt to wash them into the watershed. These waters flow through B.C. communities such as Sparwood and Fernie, into Lake Koocanusa on the U.S.-Canadian border, through Montana and Idaho, then back into British Columbia, past Creston and into Kootenay Lake, making this somewhat of a poster child for a cross-border water pollution issue.
As the size of the Elk Valley’s mining operations has grown in recent decades, so too have selenium concentrations and loading. In some areas downstream of the mines, selenium levels have far exceeded what’s considered safe for fish and other aquatic life. In 2021, Teck was fined $60 million for damaging waterways in the Elk Valley — the largest ever fine issued for Fisheries Act offences. In 2023, it was fined again, this time for more than $16 million. And now, it is facing five more charges.
Teck invested over $1.4 billion in water quality monitoring, management, research and construction of water treatment facilities, yet selenium levels have continued to rise. A landmark 2023 study authored by U.S. Geological Survey scientists found selenium concentrations in the Elk River jumped 551%, nitrates climbed 784% and the concentration of sulphates spiked 120% from 1979 to 2022. Clearly, B.C. was not ‘on track’ to address this issue.
Given the involvement of so many different governments and vested interests, we needed a neutral, third-party facilitator to step in and set things straight. Enter: the IJC.
How will the reference unfold and will two years be enough time for it to achieve anything?
The reference was called in March 2024. Since then, the IJC has been seeking public engagement and helping the Governance Body (made up of representatives from Canada, the U.S., the Ktunaxa Nation, B.C., Montana and Idaho) to develop its draft Terms of Reference. The Governance Body is currently in the process of finalizing those terms.
Now, the IJC has until September 6, 2024 to convene a Study Board, which will be tasked with the job of reviewing available knowledge on water pollution in the Elk-Kootenay watershed and researching its impacts on ecosystems and people. The Study Board will be composed of experts and knowledge holders with a wide variety of experience and perspectives, and ‘Technical Working Groups’ will be created around different focus themes to inform the board’s research. The four themes currently proposed are: ecosystems, cultural/socio-economic, human health and water quality.
In Fall 2025, the Study Board will deliver an interim report, and before September 6, 2026 it will deliver its final recommendations to the six governments of the Governance Board.
Due to the short timeframe it’s been given, the IJC forewarned the public during a webinar in May that much of the study board’s work will involve synthesizing and analyzing existing data, rather than conducting new research. In its final report, it could also conceivably point out areas where further research might be necessary.
How will the IJC reference help to reduce water pollution in the Elk-Kootenay watershed?
Based on the Study Board’s final recommendations, the Governance Board will develop and implement an action plan to reduce and mitigate the impacts of water pollution on people and species. (While the Study Board will only exist for two years, the Governance Board has no expiration date.) The governments represented on the Governance Board could also decide to implement interim measures if they deem it necessary.
Another significant element of the IJC Study Board’s work will be creating a ‘common understanding’ of water pollution in the watershed through transparent knowledge sharing and regular public reporting. Teck kept a lot of its monitoring data and research confidential, much to the frustration of researchers and residents. This IJC investigation will hopefully bring a lot of that data into the public domain.
It’s possible that in developing a ‘common understanding’ of selenium pollution in the watershed, and its effects on ecosystems and people, the IJC investigation may also help in creating an across-the-board standard for acceptable selenium concentrations in B.C., Montana and Idaho. Currently, the three jurisdictions have different guidelines for selenium concentrations.
What makes this reference unique?
This IJC reference is historic because it’s the first time in the IJC’s 115-year history that a trilateral reference has been called involving an Indigenous nation. The transboundary Ktunaxa Nation encompasses the Confederated Salish and Kootenai Tribes, Kootenai Tribe of Idaho, and the Ktunaxa First Nations of ʔakisq̓nuk, ʔaq̓am, Yaqan Nuʔkiy, and Yaq̓it ʔa·knuqⱡi’it.
But calling the IJC reference was just the first step in what will inevitably be a long journey to remediation. As Kathryn Teneese, Chair of the Ktunaxa Nation Council, pointed out in a press release, it’s going to be vital that the Ktunaxa Nation is included in every step along the way: “Just as this agreement could not have been reached without the deep involvement of the Ktunaxa Nation, future progress will require meaningful inclusion of Ktunaxa knowledge and stewardship. We are setting the foundation for an IJC, and we welcome the IJC Commissioners’ involvement in this issue.
“We hope this is the beginning of a collaborative, transparent, and effective process that will restore the waterways in the heart of ʔamakʔis Ktunaxa that are vital to the Ktunaxa ʔakⱡsmaknik (people).”
