Missoulian: Canada joins tribes, US on selenium contamination, ending years of resistance

by Joshua Murdock

After more than a decade of pressure from tribal nations in the United States and Canada, and more recent pressure from U.S. Sen. Jon Tester and the federal government, Canada has agreed to join the U.S. and transboundary Ktunaxa Nation to address selenium contamination in Lake Koocanusa and the Kootenai River under the 1909 Boundary Waters Treaty. 

The Ktunaxa Tribal First Nation in British Columbia, Confederated Salish and Kootenai Tribes in Montana and the Kootenai Tribe of Idaho announced in a joint statement Monday that Canada had joined the U.S. and tribal nations in issuing a reference on the transnational contamination to the International Joint Commission. The contamination flows from Canadian coal mines into Montana and Idaho. The Ktunaxa Tribal First Nation, Kootenai Tribe of Idaho and Confederated Salish and Kootenai Tribes in Montana are part of the broader Ktunaxa Nation that was split by European settlers’ boundaries.

The IJC is a body created by the Boundary Waters Treaty specifically to address trans-boundary water management or quality disputes. The joint reference will spur the IJC to convene a binational board of experts and stakeholders to analyze and advise on solutions for selenium contamination in Lake Koocanusa, a transnational reservoir created by the Libby Dam on the Kootenai River. Such a board would likely include scientists, tribes and governments of all levels from both nations.

The joint reference, long resisted by the Canadian government, British Columbia provincial government and mine owner Teck Resources, is a hard-fought victory for the tribal nations and, more recently, a U.S. State Department that sided with the nations in seeking a diplomatic solution with Canadian buy-in. In a May 2022 letter, the IJC itself urged the two countries to issue a joint reference on the issue so the body could address it. Technically, either nation can send a unilateral reference to the IJC by itself. But out of dozens of references over the decades, that’s only happened one time, according to Robert Sisson, a U.S. IJC commissioner.

In Monday’s announcement, the tribes described the joint reference as “the first of many steps to begin to restore the watershed and to honor (the countries’) commitments and obligations to the Ktunaxa Nation.” 

“For too long, the U.S. and Canada have stood by while our waters suffered,” CSKT Chairman Michael Dolson stated in the announcement. “We are encouraged by the federal governments’ change in direction and the progress that was achieved when we all worked together these past months. We will continue to work tirelessly to restore our rivers and the fish and wildlife that depend upon them. We’re at the beginning of what will likely be a long process, one that will require sustained effort from all governments involved.”

The contamination comes from five massive open-pit coal mines along the Elk River drainage near Fernie and Sparwood, British Columbia. Four of the five mines are operating, but all feature enormous amounts of waste rock that loom alongside mountains in the Canadian Rockies. Selenium from the waste rock leaches into rainwater and snowmelt that percolates through the piles, eventually entering the Elk River, which flows into the Kootenai at Lake Koocanusa and the U.S. 

In the most trace amounts selenium is essential to animal health. But beyond that it’s toxic in even small doses. It accumulates in fish and bird ovaries, which leads to fewer eggs hatching, animals hatching with birth defects, and young that die before they can reproduce. Selenium levels above what tribal, state and federal regulations allow — and high enough to harm wildlife — have been documented throughout the Kootenai River (Kootenay in Canada) downstream of where the Elk River flows in.

“Through the reference, we now have a commitment to transparent science and information about the impacts of the mine pollution on water quality, fish and communities,” Erin Sexton, the senior scientist at the Flathead Lake Biological Station and longtime advisor to the CSKT on selenium, wrote in an email to the Missoulian. “We can ensure that all impacted governments and jurisdictions have a seat at the table and access to up-to-date information on the impacts of the Elk Valley mines. We also now have a commitment that all of the entities will work together to reduce the mining pollution in this watershed.”

The mines are owned by Teck Resources, which has long opposed a joint reference to the IJC, citing its water treatment facilities and a plan developed under the BC provincial government to regulate selenium levels in the Elk River. 

Teck maintains it is addressing selenium contamination coming from the mines and says it’s spent more than $1 billion on water treatment in recent years. More treatment facilities are slated to come online. But documents obtained by The Narwhal show that selenium levels of more than 250-times Canada’s standard for aquatic life safety persist in waters around the mines.

Teck touts the capacity and efficacy of its water-treatment facilities, but the company has repeatedly refused to declare what percentage of overall runoff it actually treats. The British Columbia provincial government’s website for Elk Valley water quality shows only a tiny fraction of overall contaminants — about 5% to 10% — are removed before the toxic water flows into waterways and then downstream to the U.S. 

In the U.S., water quality is more strictly regulated under the federal Clean Water Act than water is in Canada. Montana developed a site-specific standard of 0.8 parts-per-billion (ppb) for Lake Koocanusa, citing state, tribal and university studies that found current levels of selenium are harming fish there. 

When it encouraged a joint reference, the IJC highlighted selenium levels of 9.46 ppb in the Elk River, 4.99 ppb in Lake Koocanusa and 1.4 ppb in the Kootenai River. Levels as high as 150 ppb have been detected around Teck’s mines. 

As Teck shifts away from coal production in favor of copper mining and battery recycling, Swiss commodities giant Glencore is set to purchase Teck’s five Elk River Valley mines. A spokesperson for Teck had not replied to a request for comment by press time Monday. 

“For over a decade, Teck Coal and the Province of BC have moved forward with expanded mining activities, while the pollution has gotten worse, and the mitigation technologies have failed to address the increasing trend in mine contaminants coming into Montana and Idaho,” Sexton wrote. “Here in Montana, we adopted a very protective water quality standard from one of the mines’ worst contaminants, selenium, and BC and Canada have been violating that water quality standard since it was adopted into law in February 2021. That is why it is such an important step forward for the U.S. and Canada to refer this issue to the IJC, under the Boundary Waters Treaty.”

The Ktunaxa Nation has been pushing for a joint reference since at least 2012, but until recently their effort struggled to gain traction at the federal levels, particularly in Canada. 

A year ago, in March 2023, U.S. President Joe Biden and Canadian Prime Minister Justin Trudeau released a joint statement that mentioned selenium contamination in Lake Koocanusa: “The United States and Canada also intend to reach an agreement in principle by this summer to reduce and mitigate the impacts of water pollution in the Elk-Kootenai watershed, in partnership with Tribal Nations and Indigenous Peoples, and in order to protect the people and species that depend on this vital river system.”

But at an April 28, 2023, press conference in New York City, Trudeau stated, “We believe that there are processes that are being followed right now that have a better chance of getting to a resolution” than an IJC reference. The remark came one year after Global Affairs Canada turned away from a joint reference on Lake Koocanusa selenium. In May 2022, the Ktunaxa Tribal First Nation announced that Global Affairs Canada, roughly the equivalent of the U.S. State Department, notified the tribe via email the month before that it would not support an IJC reference.

Last July, the British Columbia provincial government — a long-standing opponent of an IJC reference — sent the Canadian government its own proposal for a reference.

But the countries failed to reach an agreement by the end of the summer and well into fall, at which point the Ktunaxa National called on the U.S. and Canada to meet with tribal leaders in November to finally hash out an agreement.

Also in November, Tester, a Democrat and Montana’s senior senator, wrote a letter to U.S. Secretary of State Anthony Blinken calling on the State Department to issue a unilateral reference to the IJC if Canada continued to resist a joint reference. Since 2015, Tester had increasingly pushed the U.S. and Canada to issue a joint reference prior to his call for a possible unilateral reference from the U.S. 

“Montanans, Tribes, small businesses, and families rely on clean water for everything from agriculture to community development, and after years of working with stakeholders in the Treasure State to tackle this issue, I’m pleased to see Canada finally coming to the table to find solutions,” Tester said in a statement Monday. “We’ve known for years that mining in British Columbia has been polluting the Kootenai watershed, which is why I’ve been pushing for substantive action for nearly a decade. This is a big first step towards addressing the problem, but I’ll continue to put pressure on the State Department to hold the Canadian government accountable in order to protect one of our state’s most important watersheds.”

According to Monday’s announcement, the November meeting between tribes and the U.S. and Canadian governments was fruitful, albeit months behind schedule.

“At that meeting, the governments collectively committed to find a solution — through a reference to the IJC — by the end of the year,” the tribes stated. “After nearly three months of intense negotiations, the governments reached agreement, and almost exactly a year after the Prime Minister and President’s statement, the reference has finally been issued to the IJC.”