711.4215 Air Pollution/407b

The Secretary of State to the Chargé in Canada (Boal)

No. 841

Sir: For a number of years a serious situation in the State of Washington has obtained because of damage caused by fumes from the smelter of the Consolidated Mining and Smelting Company at Trail, British Columbia, a few miles from the international boundary between the United States and Canada. Fumes from this smelter carried by the wind across the international boundary did some damage in the State of Washington as early as 1918. Increased activities on the part of the smelter resulted in greater damage, and by 1923 the effect of these fumes in the State of Washington reached serious proportions. The fumes have injured vegetable growth as far as thirty or forty miles from the international boundary.

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This situation is not only serious but anomalous. There are, of course, many smelters in the United States and Canada, but in no other instance, so far as I am aware, has the area adjacent to a smelter been compelled to submit without indemnification or any other remedy to continued exposure to fumes. It has been possible in ordinary cases for the injured parties by resorting to the remedies afforded by the courts to obtain that protection which the United States and Canada guarantee to their respective nationals. It is my understanding that even in the case of the smelter at Trail, British Columbia, the Canadian property owners in British Columbia have been able to obtain indemnification through the medium of the Canadian courts. No such remedy is, however, available to the American community in the State of Washington.

On August 7, 1928, after a somewhat protracted correspondence, the Governments of the United States and Canada referred this question to the International Joint Commission, United States and Canada, for investigation and report. After a series of hearings the International Joint Commission rendered a report on February 28, 1931,14 on the question. The Department has given careful consideration to this report of the International Joint Commission. I recognize that this report is not an arbitral decision which must be accepted by both Governments, but it is in the nature of a group of recommendations for the consideration of the two Governments to facilitate the reaching of a settlement. The report of the International Joint Commission of February 28, 1931, upon its publication, caused dissatisfaction and protest in the interested part of the State of Washington. The injured property holders insisted that the recommended award of $350,000 for damages up to and including January 1, 1932, was inadequate, and that the report in general accorded too little recognition to the complaints of the people in that section of Washington. The Government of the United States shares with the Government of Canada a certain pride in the helpful work of the International Joint Commission since its establishment, and this feeling has impelled me to regard the report of February 28, 1931, as a recommendation which, while not satisfactory to the injured parties in the United States, is entitled to the most serious consideration of this Government.

The report of the International Joint Commission expressed the view that damages in the State of Washington from fumes from the smelter at Trail would practically cease by the end of 1931. Unfortunately, that has not been the case and extensive damage has continued. It is the view of the Government of the United States that a means must be found to bring about adequate relief for this section of the State of [Page 54] Washington. It seems just that our people concerned should be given no less protection than that which citizens of both countries are customarily able to obtain in the proper courts, and which the people of the State of Washington could indeed obtain were it not for the fact that the smelter which causes the damage is situated in a foreign jurisdiction.

In these circumstances I propose that a treaty be concluded between the United States and Canada to give effect to the principal features of that report and to provide substantially:

That the sum of $350,000 be paid as indemnity to cover damages which occurred prior to January 1, 1932. This sum of $350,000 shall be paid to the Government of the United States to be distributed as the Government determines.
That damages occurring subsequent to January 1, 1932, shall be assessed by a board or commission to be established for that purpose. Damages so assessed shall be paid to the Government of the United States and distributed by it.
That, in accordance with a schedule agreed upon in the treaty by the two Governments, the amount of sulphur dioxide discharged by the smelter and the rate of discharge shall be progressively reduced by means of extraction works or any other device which the smelter chooses to employ until no further damage is done in United States territory.
That the two Governments shall establish an agency to continue investigations, to report progress on the schedule agreed upon for the progressive reduction of the amount of sulphur dioxide and to assess damages. The members of the agency established by the two Governments shall have access to the smelter and to property affected in the United States and shall be furnished with information pertaining to the operations of the smelter.

An agreement such as is proposed above would be in substantial conformity with the report of the International Joint Commission with minor variations pertaining chiefly to the modal features of the report. The Department feels that an adjustment of the international problem presented by the operation of the smelter could best be effectuated by concluding a treaty between the two Governments. An outline of the substance of a treaty is set forth above. That description of the proposed treaty would, of course, be subject to such amendment and elaboration as might be deemed necessary as discussion progressed.

Please obtain an interview with the Prime Minister,15 communicate the above-mentioned views to him, and inquire whether the Government of Canada will agree to designate a representative to confer with a representative of the United States with a view to formulating an agreement along these lines. You may leave with the Prime Minister a note in the sense of this instruction. It is essential that you impress upon [Page 55] the Prime Minister that this is a serious situation for which a solution must be found. Please keep in touch with the proper authorities after your interview with the Prime Minister in an endeavor to expedite their reply as much as possible.

Very truly yours,

Henry L. Stimson
  1. Trail Smelter Question, Documents, Series A, Appendix A 3: Report of the International Joint Commission, signed at Toronto, 28th February, 1931 (Ottawa. J. O. Patenaude, I.S.0., 1936).
  2. Richard Bedford Bennett.