International Law Application to Transboundary Pollution: Solutions to Mitigate Mining Contamination in the Elk–Kootenai River Watershed

Abstract

The Elk Valley is home to five of the six largest mines in British Columbia, with ongoing plans for further expansion. These headwater coal mines have contributed to selenium pollution in the freshwater ecosystems of the transboundary Elk – Kootenai River watershed, evidenced in part by the $60 million fine imposed on Teck Resources Ltd. under Canada’s Fisheries Act in 2021 for the ‘deposit of deleterious substances’. Indigenous communities, including the Ktunaxa Nation, and various other organizations on both sides of the border, alongside governments in the United States, have been calling for higher standards of mining pollution control originating in Canada and for the International Joint Commission to make recommendations on this issue. Two agreements exist between the countries that may be relevant here, including the Boundary Waters Treaty (1909) and Columbia River Treaty (1964). In this article, these agreements describing the potential role of the International Joint Commission are analyzed, along with the outlining of the current process for this organization to make recommendations to resolve this ongoing, hot-button issue. The examples from case law and other international agreements pertaining to pollution are used to formulate a two-part conclusion in the form of (1) a short-term solution to effectively communicate and facilitate a resolution of transboundary mining pollution in the Elk – Kootenay River watershed; (2) a long-term solution to settle future disagreements regarding transboundary pollution between Canada and the United States