The International Joint Commission, a 115-year-old organization that’s charged with adjudicating issues involving waterways that span the U.S.-Canada border, will be taking a more active role in assessing and mitigating pollution in the Elk-Kootenai watershed.
The commission’s involvement, announced today, comes after years of requests by Indigenous and First Nations governments, which have expressed concern that a British Columbia-based coal-mining operation is polluting shared waterways and threatening aquatic ecosystems.
The agreement between the U.S., Canada and the Ktunaxa Nation Council to refer the issue to the International Joint Commission will allow the commission to serve as an independent third party that can steer those governments toward a framework for reducing pollution.
“It is good to see that the U.S. and Canada — in partnership with the Ktunaxa Nation — have started collaborating effectively on this issue and are working toward meeting their commitment to reduce and mitigate the mining pollution in the Kootenai/y watershed,” Ktunaxa Nation Council Chair Kathryn Teneese said in a release announcing the IJC’s involvement. “We hope this is the beginning of a collaborative, transparent and effective process that will restore the waterways in the heart of the ʔamakʔis [Elk Valley] Ktunaxa that are vital to the Ktunaxa ʔakⱡsmaknik (people).”
Erin Sexton, a senior scientist with the University of Montana’s Flathead Lake Biological Station who has for nearly two decades consulted with the Confederated Salish and Kootenai Tribes on mining-related water quality issues, described the development as “an essential first step” toward mitigating contamination Sexton describes as “globally significant.”
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The selenium battle of Lake Koocanusa
In late March, the state Board of Environmental Review sided with a Canadian mining company in its assertion that the Department of Environmental Quality broke Montana law when it adopted a strict new standard for selenium pollution entering Lake Koocanusa, which straddles the U.S.-Canada border. DEQ is holding firm to its standard — and that could have repercussions for Teck Coal’s plans to expand its British Columbia coal mining operation.
The agreement establishes a framework for the IJC to convene a governance board and a study board. The study board will bring together experts to consider existing research on how pollution is spreading throughout the watershed, examine impacts to species exposed to that pollution, and identify areas where more research is needed. It will also forward recommendations to the governance body, which will include representatives from the various federal, state and tribal governments affected by the pollution. Finally, the IJC reference includes a commitment to provide “transparent reporting on progress” — an accountability measure — and a pledge to make the governance board’s deliberations publicly available.
For the reference to work as intended, “all of the governments have to show up and work together,” Sexton said, adding that “this couldn’t come too soon.”
In November, the U.S. Geological Survey published a study finding that increases in the concentrations of selenium, nitrate and sulfate in the Elk River upstream of Lake Koocanusa are “among the largest” scientists have identified anywhere.
Concentrations of selenium, which can lead to gill and facial deformities in fish and hamper their reproductive success, have increased in the Elk River sixfold since 1979, according to the study. During the same period, the concentrations of nitrate in the Elk River have grown by nearly 800%.
Stakeholders on the U.S. side of the border have been following the issue because they’re concerned that rising levels of selenium are threatening the aquatic ecosystem of Lake Koocanusa, which flows into the Kootenai River (spelled “Kootenay” in Canada) before entering the Columbia River.
State and federal regulators established a selenium standard for Lake Koocanusa at the tail end of 2021, but that standard has not been enough to reverse the pollution trend, Sexton said, adding that mining-related pollutants have been found “hundreds of miles” downstream from their source. Scientists have documented selenium concentrations in fish tissues that exceed thresholds regulators deem safe for species health in westslope cutthroat trout, peamouth chub, redside shiner, northern pikeminnows and mountain whitefish.
Kootenai Tribe of Idaho Vice Chairman Gary Aitken Jr., said he’s encouraged to see a process developing “where there can be collaboration, trust and transparency.”
“Ktunaxa said we would not stop until there was an action plan, and we look forward to seeing that through to ensure the real work of healing the river is achieved,” Aitken Jr., said.
The IJC was established by the Boundary Waters Treaty of 1909, which holds that “waters flowing across the boundary shall not be polluted on either side to the injury of health or property on the other.” Six commissioners, three from the U.S. and three from Canada, sit on the IJC, which takes up issues related to both water quality and water quantity.
“Ktunaxa said we would not stop until there was an action plan, and we look forward to seeing that through to ensure the real work of healing the river is achieved.”
Kootenai Tribe of Idaho Vice Chairman Gary Aitken Jr
Robert Sisson, a Montana resident who has held one of the six commissioner posts on the IJC since 2019, underscored the importance of the Ktunaxa Nation Council both in reaching the agreement and restoring waterways in the 18,000-square-mile watershed, which serves as the second-largest source of water flowing into the Columbia River.
“What is unique about this reference is it is the first one in the 115-year history of the Boundary Waters Treaty where the two Parties worked hand-in-hand with an Indigenous nation (Ktunaxa) to draft the reference,” Sisson wrote in an email to Montana Free Press. “I think it is a strong indication that Tribal and First Nation governments will play a central role in any future references to the IJC.”
The reference also garnered a statement from U.S. Sen. Jon Tester, who first petitioned the U.S. State Department to address transboundary water pollution in a July 2015 letter that cited “adverse downstream impacts on water quality and wildlife.”
“I’m pleased to see Canada finally coming to the table to find solutions,” Tester said in an emailed statement. “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.”
The reference was preceded by a March 2023 statement in which U.S. President Joe Biden and Canadian Prime Minister Justin Trudeau agreed to reach an agreement “to reduce and mitigate the impacts of water pollution in the Elk-Kootenay watershed, in partnership with Tribal Nations and Indigenous Peoples.”
In November, representatives from the governments of the United States, Canada and six bands of Indigenous people spread across present-day British Columbia, Montana and Idaho met to discuss the future of the governments’ shared waterways. After that initial gathering, participants began meeting weekly to maintain momentum for the reference.
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