711.42157 Air Pollution/466
The Secretary of State to the Minister in Canada ( Robbins )
Sir: I acknowledge the receipt of your despatch No. 412 of February 17, 1934, transmitting a copy of a note received from the Secretary of State for External Affairs of Canada in reply to the communication which you were directed by instruction No. 194 of January 27, 1934, to address to the Canadian Government in regard to the Trail Smelter matter.
I desire at the outset to express appreciation of the prompt attention given to the Legation’s note of January 30, 1933 [1934], by the Canadian Government.
I shall refer, in numerical order, to the paragraphs of the note of the Secretary of State for External Affairs.
1–2. It is not deemed necessary to discuss the first and second paragraphs of the note.
3. The only comment which I desire to make in regard to the third paragraph is that I cannot acquiesce in the statement contained therein that when the smelter was first established at Trail the Columbia Valley south of the international boundary was not a distinctively agricultural district but was a smelter area.
4. I offer no comment in regard to the fourth paragraph.
5. I do not acquiesce in the view suggested in paragraph five that the matter was not one to be dealt with by the two Governments, nor do I concur in the statement contained in the fifth paragraph that the injury in the State of Washington was not a continuing injury.
6–8. I do not concur in the view expressed in paragraphs six to eight that a statement on the part of the Canadian Government that United States interests injured by the operation of the smelter could seek redress in the Canadian courts would have constituted a sufficient or an appropriate answer to a complaint by the Government of the [Page 916] United States, nor do I agree that it would have been appropriate for the Canadian Government to disclaim responsibility in the circumstances.
9. I offer no comment in regard to paragraph nine except to observe that the position stated in paragraph eight that the Canadian Government could have disclaimed responsibility in the premises is suggested in paragraph nine.
10–12. I offer no comment on paragraphs ten to twelve.
13. With respect to the statement made in paragraph thirteen that only the strongest grounds could justify the rejection of the report of the International Joint Commission and that the report recommends “a solution fair to all parties concerned”, it may be stated that the report of the Commission is not acceptable to the Government of the United States for reasons stated in instruction No. 194 of January 27, 1934. I feel that the reasons summarized at page thirty-two of that instruction constitute strong grounds. I regret my inability to concur in this view of the Canadian Government that the report recommended “a solution fair to all parties concerned.”
14. I do not find myself in accord with the statement made in paragraph fourteen that detailed objections raised in instruction No. 194 of January 27, 1934, did not relate to the essential character of the recommendation. One of the detailed reasons emphasized in instruction No. 194 was that the Commission in fixing three hundred and fifty thousand dollars as the amount to be paid for past damages acted on the expectation that damage would be greatly reduced or eliminated in 1931. The answer of the Commission to the Third question of the reference clearly indicates that the Commission entertained that expectation. I am convinced that the expected reduction in damage did not occur. This relates to the essential character of the recommendation.
Among the reasons stated in instruction No. 194 why the report of the Commission was not acceptable was that if paragraph g of the answer to question five were adopted, it would undoubtedly be contended that substantial elements of damage were thereby eliminated from future consideration. This relates to the essential character of the recommendations.
The reasons why the Government of the United States is unwilling to adopt the report of the International Joint Commission were summarized at page thirty-two of instruction No. 194. I do not regard the reasons assigned as unrelated to the essential character of the recommendations.
With respect to the statement made in paragraph fourteen that the detailed objections were based on doubts as to the true meaning of the provisions of the report, it may be said that, while some of the provisions [Page 917] of the report are uncertain of meaning, other provisions are clear of meaning and are not acceptable notwithstanding the absence of ambiguity.
With respect to the expression contained in paragraph fourteen of the hope that the Government of the United States would reconsider the matter with a view to accepting the report and embodying the essential provisions with such clarification of meaning and adjustment of method as are desirable in the form of an international agreement, it may be observed that in the note of December 26, 1933,43 the Canadian Government proposed the acceptance of the report in its entirety. It is not clear what the Canadian Government regards as essential provisions distinguished from provisions which may not be regarded as essential nor is it apparent how the two Governments can clarify the meaning of the report. Since it appears that the Canadian Government is under the impression that the reasons assigned on the part of the Government of the United States for being unwilling to accept the report of the Commission are attributable to misunderstanding of the meaning of the report, I shall be glad to consider any concrete proposal which the Canadian Government feels would have the effect of removing the misunderstanding and of counteracting the reasons stated in instruction No. 194.
The first point stated under paragraph fourteen seems to indicate that it is thought that the unwillingness of the Government of the United States to accept the proposal that an investigation be made into the effect of the remedial works installed at the smelter is attributable to the uncertainty of the meaning of that proposal. I do not feel that the proposal of the Canadian Government that the effect of the remedial works be investigated was uncertain in meaning.
The reasons why this proposal is not acceptable were stated fully in instruction No. 194. As stated in that instruction, it is the view of the Government of the United States that acute, chronic, cumulative and permanent injury has been done and is continuing in the State of Washington.
It may be added that, in order to ascertain the effect of the remedial works, it would be necessary to inquire what conditions would have been if the remedial works had not been put into operation. The Government of the United States has no interest in knowing what conditions might have been if remedial works had not been installed, but is concerned with conditions as they actually have been and as they actually are and with bringing about cessation of injury and adequate indemnification.
The questions which the Government of the United States desires to have answered are indicated by the three proposals made on pages [Page 918] thirty-three to thirty-five of the instruction No. 194. The proper purposes of the Government of the United States to deal with conditions as they actually have been and as they actually are and to bring about cessation of injury and adequate indemnification should be accomplished without consuming time and exerting effort to ascertain what conditions in the State of Washington might have been if a regime different than what actually obtained had been maintained.
The Government of the United States does not object to the Canadian Government studying the effect of the remedial works, but is unwilling to postpone an arrangement for indemnification and for termination of injury until its studies are concluded.
In discussing the second point stated under paragraph fourteen of the Canadian note, it is stated that it appears to be assumed that the Canadian Government ought to accept without question the statements contained in instruction No. 194 to the effect that damage has been caused in the State of Washington since January 1, 1932. This statement occasions no little surprise. On page eighteen of instruction No. 194, I stated:
“I do not ask or expect that any questions which arise shall of necessity be decided in accordance with the contentions of United States interests. I assume that Canada would not expect that any questions relevant to the present controversy shall necessarily be decided in accordance with the contentions of Canadian interests. I am willing that any relevant questions shall be submitted to a neutral jurist or tribunal for final determination.”
The first proposal made in instruction No. 194 of January 27, 1934, beginning at page thirty-three of that instruction, left open for final determination by an impartial jurist the entire question of indemnification. The second proposal, beginning on page thirty-four of that instruction, left open the questions whether damages have occurred and are occurring, whether the nuisance shall be abated, what concentration of sulphur dioxide should be permitted and what indemnification should be paid. The third proposal, found on page thirty-five of the instruction, fixed an indemnity for damage which occurred prior to January 1, 1932, and left for determination by an impartial jurist the questions whether the smelter had ceased to cause injury subsequent to January 1, 1932, whether the smelter should be required to refrain from causing injury, what concentration of sulphur dioxide should be permitted and what indemnity should be paid for injury occurring subsequent to January 1, 1932.
Considering the lengths to which I have gone to propose a fair solution of this controversy and the express declaration that I did not expect that any question which would arise should of necessity be determined in accordance with the contentions of United States interests, I exceedingly regret that the Canadian Government should have [Page 919] gained the impression that the Government of the United States assumed that any statement of position made on its behalf with respect to the pending controversy should be accepted by the Canadian Government without question.
I repeat that I am willing that any question relevant to this long standing controversy shall be submitted to a neutral jurist or tribunal for final determination.
Third. In view of the comment made with respect to the first and second points stated under paragraph fourteen of the Canadian note, discussion of the third point seems to be unnecessary.
Fourth. I have no comment to offer on the fourth point stated under paragraph fourteen of the Canadian note.
Fifth. Extended discussion of the fifth point stated under paragraph fourteen of the Canadian note is deemed unnecessary. It is in order, however, to state that the paragraphs of the Legation’s note to which reference is made in the fifth point were used in stating reasons why the proposal of the Canadian Government that the report of the Commission be incorporated in a convention was not acceptable to the Government of the United States. The following statement was made in instruction No. 194 in opening the discussion on Article 1 of the draft convention proposed by the Canadian Government:
“It is proposed by this article that the two Governments shall accept the Report of the International Joint Commission incorporated in a convention and undertake to carry out the obligations under the Report. This proposal of the Canadian Government necessitates a full and frank statement of the attitude of the Government of the United States with respect to the Report of the International Joint Commission on the Trail Smelter reference.”
Attention may be called also to the following statement made on page eight of instruction No. 194.
“The proposal of the Canadian Government, however, necessitates the acceptance of the Report in its entirety by the Government of the United States or the rejection of it. If the Report is not accepted, the Canadian proposal leaves no alternative but to reject it and to state reasons for so doing.”
Sixth. The statement made in the sixth point under paragraph fourteen of the Canadian note that “it was assumed that damage would continue throughout the year 1931 because the works could not be effective until they were completely in operation” arrests attention. Comment on this statement is deemed to be unnecessary beyond setting out in relation to it the answer made in the report on the third question of the reference, which reads as follows:
“Provided that the Company having commenced the installation and operation of works for the reduction of such fumes proceeds with such works and carries out the recommendation of the Commission [Page 920] set forth in answer to question (5), the damage from such fumes should be greatly reduced if not entirely eliminated by the end of the present year.”
It will be recalled that the report of the Commission was rendered on February 28, 1931.
Seventh. The statement made in the seventh point under paragraph fourteen of the Canadian note to the effect that injuries caused prior to January 1, 1932, but which were not apparent on that date, were included in the $350,000 is noted. Inasmuch as no portion of the report of the Commission has been adopted, it is probably useless here to indulge in further discussion as to the meaning of the report. It may be stated, however, that the Government of the United States does not share the view that the Commission appraised and included in the lump sum of $350,000 damage which had not occurred and which was not apparent prior to January 1, 1932.
With respect to the last paragraph of the seventh point stated under paragraph fourteen, it may be said that the statement there made as to damage reveals a concept of the damage problem wholly at variance with the views entertained on the part of the Government of the United States.
The Canadian Government seems to envisage only occasional instances of injury. As stated on page 21 of instruction No. 194 of January 27, 1933 [1934]:
“I am advised by experts and am convinced that for a considerable time before the stacks were elevated at the smelter, chronic, cumulative and permanent injury as well as acute damage caused by sulphur dioxide coming from the smelter at Trail was occurring and is still occurring in the State of Washington.”
It should be added that any project which does not comprehend all aspects of damage would inflict an unconscionable injury on United States interests affected by the operation of the smelter at Trail and would be unacceptable to the Government of the United States.
To avert giving the impression that I assume that the Canadian Government ought to accept any assertion of position without question, I hasten to reiterate that I do not ask or expect that any questions which arise shall of necessity be decided in accordance with the contentions of United States interests.
Eighth. In the eighth point stated under paragraph fourteen of the Canadian note, issue is taken with the position stated in instruction 194 that chronic, permanent and cumulative injury is being done in the State of Washington, and it is stated that the question whether such injury is being done or will be caused is one that must be determined by some competent and impartial body, presumably the agency [Page 921] which will be constituted under the proposed agreement. With this observation I am happy to express full accord.
With respect to the last paragraph of the eighth point, it may be stated that the effective abatement of damage and adequate indemnity for damage caused is the objective of the Government of the United States. It is apparent that there are differences of opinion between the two Governments as to what would constitute effective abatement and what would constitute adequate indemnity. These differences, like the question whether chronic, permanent and cumulative injury is occurring, should be submitted to the impartial body referred to by the Canadian Government.
Ninth and Tenth. It is deemed unnecessary now further to comment on the ninth and tenth points stated under paragraph fourteen of the Canadian note.
Eleventh. With respect to the observation made in the eleventh point stated under paragraph fourteen of the Canadian note that the view that occasional instances of damage would involve chronic, cumulative and permanent damage is a contested issue, it may be said that the report of the Commission made no provision for indemnification for chronic, cumulative and permanent injury. This omission constituted a serious objection to the report. In view of the statement made in the eighth point under paragraph fourteen of the Canadian note that the question whether chronic, permanent and cumulative injury is being done or will be continued is one to be determined by some competent and impartial body, with which I agree, further discussion of the eleventh point is deemed unnecessary.
Twelfth to Fourteenth. No comment is offered on the twelfth, thirteenth and fourteenth points stated under paragraph fourteen of the Canadian note.
Fifteenth. As to the statement made in the fifteenth point stated under paragraph fourteen of the Canadian note that the claims on behalf of Stevens County and on behalf of business men and professional men were not based on any recognized legal principle, it may be said that the Commission did not reveal that reason for rejecting the claims.
Sixteenth and Seventeenth. No comment is deemed necessary on the sixteenth and seventeenth points stated under paragraph fourteen of the Canadian note.
15–17. As to paragraphs 15 to 17 of the Canadian note, it may be reiterated that the objective of the Government of the United States is to bring about cessation of injury and adequate indemnification. I feel that any arrangement short of cessation of injury and adequate indemnification would not constitute “a solution fair to all parties concerned”.
[Page 922]My attitude with respect to the acceptance of the $350,000 for damage which occurred prior to January 1, 1932, was stated at page thirty of instruction No. 194. I am not prepared to acquiesce in the Canadian declaration that the sum of $350,000 would constitute adequate and generous compensation.
My views regarding “occasional damage”, “air pockets” and “unusual atmospheric conditions” are stated on page twenty-one of instruction No. 194. I do not desire to make any commitment which would interfere with the attainment of cessation of injury and adequate indemnification. If any point is definitely determined in the proposed agreement, it should be done consistently with cessation of injury and adequate indemnification. Any submission of a question or questions to an impartial body for decision should admit of determination in accordance with the same objectives.
18. I, of course, have no desire to impair the usefulness of the International Joint Commission. I do not feel that failure to accept the advisory expressions of that body should impair the usefulness of the Commission. While for reasons stated in instruction No. 194, I do not feel that the report of the Commission on the Smelter Reference is acceptable, yet I consider that the reference of the matter to the Commission was far from useless. The Commission conducted a most thorough investigation and brought to view much information which was indispensable to a proper consideration of the problem precipitated by the operation of the smelter at Trail.
It appears from the communication of the Canadian Government that it is felt that most of the reasons given in instruction No. 194 why the proposal of the Canadian Government is not acceptable are attributable to misunderstandings and that the Canadian Government is under the impression that the objections can be removed by interpretation of various provisions of the report of the Commission and of the Canadian proposal. I shall be glad to consider any concrete proposal which the Canadian Government desires to offer with a view to removing the objections which were voiced in instruction No. 194.
I am sure that it is unnecessary further to emphasize the urgency of the matter.
Please communicate the foregoing to the Department for External Affairs of Canada.
The note of February 22, 1934, from the Department of External Affairs of Canada, copy of which accompanied your despatch No. 424 of February 24, 1934, is the subject of conversations at Ottawa. I shall defer answering that note until the outcome of those conversations is known.
Very truly yours,