The US and Canada are parties to the 1909 Boundary Waters Treaty (Boundary Waters Treaty), which established the International Joint Commission (IJC, with three Canadian and three US commissioners) to manage the shared US.-Canadian waterways, including the Great Lakes, often constituting our common international border. In the 1980s, the IJC was charged jointly by the US and Canadian governments pursuant to Boundary Waters Treaty Article IX to

“examine into and report upon the water quality and quantity of the Flathead River, relating to the transboundary water quality and quantity implications of the proposed coal mine development on Cabin Creek in British Columbia near its confluence with the Flathead River, and to make recommendations which should assist Governments in ensuring that the provisions of Article IV of the said treaty are honoured.”

The Flathead River basin straddles Southern British Columbia and Northern Montana. Boundary Waters Treaty Article IV provides in its entirety

“[Canada and the US] agree that, except in cases provided for by special agreement between them, they will not permit the construction or maintenance on their respective sides of the boundary of any remedial or protective works or any dams or other obstructions in waters flowing from boundary waters or in waters at a lower level than the boundary in rivers flowing across the boundary, the effect of which is to raise the natural level of waters on the other side of the boundary unless the construction or maintenance thereof is approved by the aforesaid International Joint Commission.

It is further agreed that the waters herein defined as boundary waters and waters flowing across the boundary shall not be polluted on either side to the injury of health or property on the other.”

The IJC appointed several technical committees under the Flathead River International Study Board. In December 1988 the IJC issued its report entitled Impacts of a Proposed Coal Mine in the Flathead River Basin (1988 Report). The 1988 Report stated that

“The IJC recommends that, in order that Governments can ensure that the provisions of Article IV of the Boundary Waters Treaty are honoured in the matter of the proposed coal mine at cabin Creek in British Columbia:

(1) the mine proposal as presently defined and understood not be approved;

(2) the mine proposal not receive regulatory approval in the future unless and until it can be demonstrated that:

(a) the potential transboundary impacts identified in the report of the Flathead River International Study Board [Ed, see Mine Development Committee Technical Report] have been determined with reasonable certainty and would not occur or could be fully mitigated in an effective and assured manner; and,

(b) the potential impacts on the sport fish populations and habitat in the Flathead River system would not occur or could be fully mitigated in an effective and assured manner; and

(3) the Governments consider, with the appropriate jurisdictions, opportunities for defining and implementing compatible, equitable and sustainable development activities and management strategies in the upper Flathead River basin.”

Subsequently, 1980s plans to open the Cabin Creek coal mine were abandoned largely due to a retreat in energy prices (see Jim Mann, “Baucus Opposes Canadian Mine,” Daily Inter Lake Online Edition, May 4, 2004), but a new Canadian owner (Cline Mining Company) recently determined to open a mine at substantially the same location and allegedly the British Columbia government is determined “at all costs” to exploit its natural resources affecting the Flathead River basin (see Michael Jamison, “Canadian coal mIne proposal causes stir,” Missoulian.com news online, April 25, 2004). The news stories note that Montana’s Senator immediately approached the US Department of State arguing that the 1988 Report’s recommendations were still in place and others articulate an apparent view that the Boundary Waters Treaty should preclude opening the coal mine as a matter of law. It would appear that plans to open the Cabin Creek coal mine will rise and fall with the price of fossil fuel energy generally, so this may present a repetitive issue over time

The group preparing this should be split so that 1/4 of you will be appointed lawyers in the Office of the Legal Adviser at the US Department of State, 1/4 of you will be appointed lawyers in the Canadian Federal Ministry of Foreign Affairs, 1/4 of you will represent the IJC and 1/4 of you will represent Cline Mining Company seeking to open the coal mine. Assume that the Province of British Columbia, which seeks revenue, is both ideologically inclined and under considerable pressure to find additional revenue sources to meet this year’s strained budget and thus strongly supports the Cline Mining Company in its efforts to open the mine. The point is to be able to argue different positions as a technical matter of international law. The question for you to answer under public international law for your respective clients is what is the precise character of the 1988 Report’s recommendations and more generally what is the correct legal interpretation of Boundary Waters Treaty Article IV. Do they preclude, as a matter of public international law, British Columbia from issuing a mining permit to the Cline Mining Company, or instead are they merely declarative of the customary law principles that articulate a duty of consultation linked with state responsibility after the fact for cross border pollution (prior restraint being different from liability after the fact, as a matter of international law).

What exactly are the restraints under the Boundary Waters Treaty on opening the mine? What is going on here, and how do you deal with the treaty interpretation versus customary law problems? Argue from what you have learned about the law, as opposed to trying to construct a jury argument, because we are technically still looking at customary law and treaty interpretation. It is relatively common in domestic environmental disputes to bring litigation at the same time as remedies are pursued via a state legislature or politically-based commission by “trying the case in the media,” but you do not face the same options in the international law setting. Why is that?

Copyright 2020–21 © David Linnan.