Foreign Relations of the United States Diplomatic Papers, 1933, The British Commonwealth, Europe, Near East and Africa, Volume II
711.4215 Air Pollution/458
The Minister in Canada (Robbins) to the Acting Secretary of State
[Received December 29.]
Sir: I have the honor to refer to my despatch No. 313 of December 21, 1933,23 regarding the Trail Smelter question and to enclose herewith a note on this subject dated December 26, 1933, which has just been received from the Prime Minister.
Respectfully yours,
The Canadian Secretary of State for External Affairs (Bennett) to the American Minister (Robbins)
Sir: I have the honour to refer to Mr. Boal’s note No. 625, dated the 17th February, 1933, in which certain proposals were made with regard to the Trail Smelter question, and also to Mr. Boal’s note, dated the 7th June, 1933, concerning fumigations at Northport from March 9th to [Page 63] 12th and on the 5th April, which were thereby brought to the attention of the Canadian Government.
In Mr. Boal’s note of the 17th February, it was proposed that an agreement should be concluded between the United States and Canada to give effect to the principal features of the report of the International Joint Commission, dated the 28th February, 1931, and to provide, substantially, for certain matters more particularly set forth in the note. It was also proposed that the two Governments should designate representatives to confer with a view to formulating such an agreement.
In my note No. 13, dated the 1st March, 1933, it was pointed out that it was the view of the Canadian Government that the report of the International Joint Commission, dated the 28th February, 1931, and the recommendations contained therein, should form the basis of any settlement of the question. The Canadian Government intimated its willingness to enter into any negotiations which could properly be based upon that report, and expressed its willingness to designate a representative to confer with the representative of the United States with a view to formulating an agreement along the general lines proposed by Mr. Boal.
It was subsequently thought to be desirable to have a preliminary, informal conference between officials of the Department of External Affairs and your Department of State, in order to explore the type and character of an agreement that might be concluded, and as a result of this preliminary conference, it was thought that more progress could be made by a submission, on behalf of the Canadian Government, of the grounds upon which an agreement might be based, than by proceeding further with the idea of appointing representatives to negotiate an agreement.
With regard to the questions raised by the note of the 7th June, 1933, the result of inquiries made have impressed the Canadian Government with the urgent necessity of holding an immediate joint inquiry into the effect of the remedial works constructed by the Consolidated Mining and Smelting Company in eliminating damage, as defined in the report of the International Joint Commission, in the State of Washington.
In the report of the International Joint Commission, paragraph (b) of the findings, under the Fifth Question, the Commission recommends “that the Governments of the United States and Canada appoint scientists from the two countries to study and report upon the effect of the works erected and contemplated by the company, as aforesaid, on the fumes drifting from said smelter into the United States, and also to report, from time to time, to their respective Governments in regard to such further or other works or actions, if any, as such scientists may deem necessary on the part of the Company, to reduce the amount and concentration of such fumes to the extent hereinbefore provided for.”
[Page 64]If the report had been promptly accepted by the two Governments, the scientists thus appointed, who may conveniently be referred to as “the Scientists,” would have been engaged in studying and making a report upon the effect of the works erected during the past year or more. It seems to be desirable to avoid the further loss of time that would be involved in postponing this inquiry until a convention or agreement has been concluded and ratified and the Scientists appointed to carry out the duties involved in the report. Accordingly, it is the view of the Canadian Government that the first step that should be taken by the two Governments in this matter is the provisional appointment of the Scientists to make the inquiry referred to above, namely, an investigation into the effect of the remedial works constructed by the Company, and particularly into the question whether damage, as defined in the Report, is now being caused to interests in the State of Washington. The provisional appointment might be so made that when an agreement is concluded and ratified, the Scientists thus provisionally appointed can be confirmed in office for the purpose of carrying out the report of the International Joint Commission, and any other duties that may be given to it under the terms of such agreement.
With regard to the permanent arrangements for implementing the report of the International Joint Commission, the Canadian Government has given serious consideration to the whole question of the proposed convention or agreement, and to the various suggestions made as to its terms. The Canadian Government has come to the conclusion that no convention or agreement dealing with this matter would be satisfactory, if it did not accept, incorporate and implement the unanimous report of the International Joint Commission. Any attempt to vary the recommendations included in this report would, it is thought, fail to meet with the approval of the two Countries. The report followed a long, exhaustive and painstaking investigation and it embodies the unanimous and considered judgment of the members of the Commission. It would be difficult to justify any course other than a complete acceptance of its terms.
The Canadian Government, throughout, was under the impression that the procedure that should be followed would be the acceptance of the report by an exchange of notes, including provisions for carrying out its terms. It is understood, however, that constitutional difficulties in the United States make it desirable or necessary that such action should be expressed in a convention or agreement. Accordingly, the Canadian Government is prepared to conclude a convention or agreement, and for that purpose, submits the following draft clauses. It is intended, of course, that the text of the report of the International Joint Commission, [Page 65] dated the 28th day of February, 1931, should be annexed as Appendix A, to the Convention or Agreement:—
Recitals
Taking note of the reference of certain questions relating to damage in the State of Washington, caused by the sulphur dioxide from the smelter of the Consolidated Mining and Smelting Company, at Trail, British Columbia, hereinafter referred to as “the Trail Smelter”, by the Governments of Canada and of the United States of America, hereinafter referred to as “the Governments”, to the International Joint Commission; and
Taking note of the Joint Report, Conclusions and Recommendations of the International Joint Commission to the Governments, dated the 28th day of February, 1931, hereinafter referred to as “the Joint Report”; and
Recognizing the desirability of effecting a permanent settlement of the questions so referred, pursuant to the said Joint Report, Conclusions and Recommendations; and
Taking note of the construction by the Consolidated Mining and Smelting Company of certain works, hereinafter referred to as “the works”, designed to lessen the concentrations of sulphur dioxide in the United States and to eliminate damage; and
Taking note of a complaint made by the Government of the United States, to the Government of Canada, with regard to sulphur dioxide fumigations in the Northport neighborhood on March 9th to 12th, 1933, and on April 5th, 1933, and recognizing the desirability of making an immediate investigation into the effect of the Works and into the question as to whether damage, as defined in the Joint Report, has been eliminated, and particularly as to whether damage, as therein defined, has been caused by the said fumigations;
Have decided to conclude, etc.
Article I
The Governments accept the Joint Report which is annexed hereto as Appendix A, and is incorporated as a part of this Convention, and undertake to carry out their respective obligations thereunder.
Article II
The Government of Canada will cause to be paid into [to?] the Secretary of State of the United States at Washington within three months after ratifications of the present Convention have been exchanged, the sum of three hundred and fifty thousand dollars, United States currency, in payment of damages which occurred in the United States prior to the 1st day of January, 1932, as a result of the operation of the Trail Smelter.
Article III
The Governments mutually agree to appoint two Scientists, hereinafter referred to as “the Scientists”, one designated by the Government of Canada and one designated by the Government of the United States, [Page 66] from their respective public services. The Scientists shall make the studies and reports provided for in paragraph (b) of that part of the Joint Report which includes the findings of the International Joint Commission, in respect to the fifth question.
The Scientists shall also make such inquiries and investigations as are necessary in order to assist in carrying out the provisions of the parts of the Joint Report relating to complaints in respect to damage caused by the operations of the Trail Smelter after the 1st day of January, 1932, and the assessment of indemnity therefor, and particularly the provisions of the findings of the International Joint Commission in respect to the fourth question, and the provisions of paragraph (f) and the proviso to paragraph (g) of the findings, in answer to the fifth question. For this purpose complaints shall be submitted to the Consolidated Mining and Smelting Company and to the Scientists, and in the event that such claims are not adjusted by the Company within a reasonable time, they shall make a report thereon to the Governments.
The Scientists shall have assigned to them from the services of the two Governments such staff as may be necessary to carry out the duties provided for by this Convention and by the Joint Report.
Article IV
The Scientists shall make investigations and reports to the Governments with regard to such matters, relating to the general question arising out of the drifting of sulphur dioxide from the Trail Smelter into the United States, as may from time to time be referred to the Board by the Governments.
Article V
The Scientists shall make their reports to the Governments with regard to the questions referred to them. They shall make their report in respect to the matters referred to in the first paragraph of Article III hereof, as soon as is possible, and without waiting for the completion of such other investigations as are or may be referred to it, and shall make their reports in respect to the matters referred to in the second paragraph of Article III hereof from time to time, and with due despatch, in order that the damages determined, if any, may be paid to the claimants promptly.
The Government of Canada will cause the damages, if any, assessed in accordance with the provisions of the Joint Report and of the second paragraph of Article III hereof, to be paid to the claimants within three months after the date of each assessment.
The Government of Canada will cause such other action as may be necessary, in order fully to carry out the provisions of the Joint Report, to be undertaken and carried out with due despatch.
The Scientists shall have access to the Trail Smelter and to the remedial works already constructed or to be constructed and shall be furnished with such information as they may require for the purposes of their investigations, inquiries and determination hereunder. They shall have access to lands and other property of the claimants for the purpose of investigating claims under the provisions of the second paragraph of Article III hereof and for the purpose of their investigations generally, they shall be afforded access to and the right to inspect property [Page 67] within the affected area. They shall also be permitted to acquire such limited interests in land as may be necessary to enable them to conduct their investigations.
The Government of the United States will cause notification to be made promptly, by telegram, of all complaints with regard to damage from sulphur dioxide fumigations and with regard to excessive concentrations of sulphur dioxide caused in the United States by the Trail Smelter. These notifications will be made to the Consolidated Mining and Smelting Company, Limited at Trail, and to the Scientists, in order that an immediate investigation may be made.
Appendix A—Report of the International Joint Commission in the Trail Smelter Reference, February 28, 1981
It is hoped that the Government of the United States will be prepared to follow a course along these lines and thus to effect a permanent settlement of the problem. In any event, it is hoped that your Government, pending the conclusion of a convention or agreement, will be prepared to take the necessary steps for the appointment of the Scientists to make an immediate inquiry into existing complaints, and into such complaints as may be notified from time to time, pending the conclusion of a permanent arrangement.
Accept [etc.]
- Not printed.↩