Missoulian: Tester calls for IJC reference on selenium, even if U.S. is alone

by Joshua Murdock

Sen. Jon Tester has called for the U.S. and Canada to address water contamination flowing from British Columbia into Montana in accordance with the 1909 Boundary Waters Treaty. 

But if Canada remains unwilling to engage in such diplomacy, the Montana Democrat wrote in a letter to Secretary of State Antony Blinken, then the U.S. should proceed alone. 

At issue is selenium that leaches into waterways from mountains of waste rock surrounding open-pit coal mines in southern British Columbia operated by Teck Resources. 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. 

The selenium-laden runoff flows into the Elk River, which then flows into the Kootenai River at Lake Koocanusa, a reservoir spanning the U.S.-Canada border and held back by Libby Dam. From the Libby Dam in Montana, the Kootenai River flows through Libby and Troy, and then into Idaho. Selenium levels above what tribal, state and federal regulations allow — and high enough to harm wildlife — have been documented throughout so-called “Lake K” and the Kootenai River (Kootenay in Canada) downstream of where the Elk River flows in.

Tribal leaders — particularly the Ktunaxa Nation in Canada, and the Confederated Salish and Kootenai Tribes and Kootenai Tribe of Idaho in the U.S. —  have for years pushed the U.S. State Department and its Canadian counterpart, Global Affairs Canada, to refer the issue to the International Joint Commission. The commission is a bi-national entity created by the Boundary Waters Treaty, primarily to address disputes over contamination flowing between two countries that share a continental border riddled with lakes, rivers and reservoirs.

A reference would spur the IJC to convene a bi-national “watershed board” of experts and stakeholders who would analyze selenium contamination in Lake Koocanusa and advise on solutions. Such a board would likely include scientists, tribes and governments of all levels from both nations. The State Department has indicated willingness to refer the matter to the IJC.

In May 2022, the IJC urged Biden and Trudeau to issue a joint reference. But Global Affairs Canada has balked at joining the U.S. on a joint reference. 

“The selenium contamination issues only continue to compound in northwest Montana, and we can no longer delay a solution,” Tester wrote. “It is time to refer this case to the IJC. I urge you to work with Canada to pursue a joint reference to the IJC, but to move forward with a unilateral reference if Canada remains unwilling to meaningfully engage on the issue.” 

A unilateral reference would be almost unprecedented in the treaty’s century-plus existence. 

Technically, either nation can send a reference to the IJC by itself. But out of dozens of references, that’s only happened one time, according to Robert Sisson, a U.S. IJC commissioner. That was when Canada submitted a reference for the “Windsor Hum,” a subtle buzzing noise emanating from industrial areas of Detroit and affecting Windsor, Ontario. 

“Under the treaty, either party can provide a reference to us,” he told the Missoulian last year, adding that “the two parties have agreed on when and why to provide a reference to the IJC.”

Stalled diplomacy

Tribal leaders, scientists and U.S. officials have long cited Canada as impeding action on Lake K selenium via the IJC. 

In March, 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.”

That never happened, the tribes said in a statement last month that called for a meeting between tribal nations, the U.S. and Canada. In response to the tribes’ statement, a meeting of those governments was scheduled for Nov. 9, according to The Canadian Press. It’s unclear what agreements, if any, resulted from the meeting.

In July this year, according to the tribes, the British Columbia provincial government — a long-standing opponent of an IJC reference — sent the Canadian government its own proposal for a reference. 

But at an April 28 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 K selenium. In May 2022, the Ktunaxa Tribal First Nation announced that Global Affairs Canada notified the tribe via email the month before that it would not support an IJC reference.

Tester, who has pushed the U.S. government for years to work with Canada on the issue, wrote to Blinken that he requests that the State Department refer the issue to the IJC. 

“Our clean water,” he wrote, “is too important to sit by idly while Canada fails to uphold its end of the agreement.”