711.4215 Air Pollution/532
Memorandum by Mr. Jacob A. Metzger of the Office of the Legal Adviser Concerning Discussions at Ottawa, May 29 to June 3, 1934
Mr. Boal and I called at the Department of External Affairs about 3:30 p.m. on May 29, and after a brief conversation with Dr. Skelton we had a more extended conversation with Mr. Read, Legal Adviser to that Department.
The conversation with Mr. Read took us more or less over the past history of the Trail Smelter controversy and over matters which had previously been discussed at some length.
In discussing the changes which the Department had proposed to the draft agreement which had been tentatively adopted, it developed [Page 939] that on the Canadian side they were unwilling to omit Article I of the proposed agreement, which provided for the payment and acceptance of $350,000 as indemnity up to January 1, 1932, and, further, that they were reluctant to agree that the tribunal should be authorized to fix concentrations in the State of Washington, as provided in point two of Article III of the tentative draft.
Mr. Read said that to reject the $350,000 item would be a complete repudiation of the action of the International Joint Commission, which the Canadian Government was not willing to do. He further emphasized that the Department had, up until recently, been willing to accept the $350,000 feature and he felt that we ought not now to change our attitude.
In answering Mr. Read on this point, it was stated first that it had been hoped that it would not be necessary to urge the acceptance of the proposal to omit the provision in regard to the $350,000 because it had been understood that the Canadian Government and the Consolidated felt that the $350,000 was exorbitant, and it had been hoped on our part that the Canadians would welcome an opportunity to have that amount reduced in the proceedings under the proposed new adjudication.
It was stated that it is our feeling that a wrong has been done and an injury sustained; that there is a disagreement as to the magnitude of the wrong and as to the extent of the injury. It was pointed out that a case of this kind, wholly in either country, would be opened from the beginning without limitation or restriction and that the principles by which such a case could be decided are fundamental.
It was stated that we are not asking that elements be injected in the case which are not inherently part of it, and that we seek no advantage, but we desire to get the whole case before a tribunal presided over by a neutral judge. It was observed that it certainly can not be said that it would be unfair to open the question of damages to the beginning; that it would be the fairest treatment that could be accorded to the complainants in the State of Washington; that it would not be unfair to the Canadian interests to open up the whole question of damages and that it would be unfair and unjust to exclude any part of the controversy from adjudication in any agreement concluded by the two Governments.
As to the second point, namely, their unwillingness to have the tribunal fix concentrations which would be the maximum that could be permitted in the State of Washington without causing injury, Mr. Read expressed considerable concern as to the application elsewhere along the border of findings which the tribunal might make. He referred again to the situation at Detroit, although he stated that the Canadians would not insist upon any arrangement for investigation [Page 940] of the Detroit situation being connected with the Trail Smelter matter. This second point was discussed later with results which will be indicated hereinafter.
We separated on the understanding that we were to meet again on the morning of the 30th.
At about 10 o’clock a.m., May 30, Mr. Boal and I called again on Mr. Read. On this occasion we discussed the tentative agreement, article by article. As to Article I, which provides for the payment and acceptance of $350,000 Mr. Read stated that it would be necessary for his Department to obtain instructions from the Prime Minister.
The results of the discussion as to other articles of the tentative draft are indicated by the attached memorandum prepared by Mr. Read, marked Annex A.
As to the Department’s suggestion that part one of Article III be restated to read,
“Is the Trail Smelter required by law to refrain from causing injury in the State of Washington in the future?”,
Mr. Read expressed the view that that formula would be too restrictive on the tribunal and that the use of the proposed revised formula would render it more difficult for his government to accept point 2 of Article III, which would authorize the tribunal to fix the maximum concentration which could be permitted in the State of Washington without causing injury. He stated that if point 1 were allowed to remain as originally stated in Article III, he thought that his government would be willing to accept point 2.
On taking leave of Mr. Read in the forenoon of May 30, it was understood that he would notify Mr. Boal when he was prepared to make any further comment on the position which the Canadian government would adopt with respect to Article I.
After luncheon, at Mr. Boal’s residence, attended by Dr. Skelton, Mr. Read, Mr. Boal, Mr. Bonbright and myself, Dr. Skelton and Mr. Read indicated that they felt sure that the Canadian government would not be willing to agree to the omission of Article I. Upon inquiry whether we were to understand that the retention of Article I was sine qua non to the concluding of an agreement, and whether we would be warranted in putting the matter up to the Department in that way, Dr. Skelton and Mr. Read hesitated and again stated that it would be necessary for them to get instructions from the Prime Minister. It was then understood that we would not communicate with the Department until we heard further from Dr. Skelton and Mr. Read as to the position of the Prime Minister in the matter.
About 3 o’clock p.m., on May 30, Mr. Boal and I again called on Mr. Read. Mr. Read informed us that he was preparing drafts of an agreement, one draft omitting Article I and the other draft retaining [Page 941] Article I, the other provisions being such as he understood from our discussions would be acceptable to both sides. In this connection it was explained to Mr. Read that the Department was very anxious to obtain an agreement which would be satisfactory to the complainants in Washington to the extent that their demands were deemed to be reasonable, and that they were very positive in their expressions of dissatisfaction at accepting the $350,000 and thereby closing the question of damages prior to January 1, 1932. Mr. Read was informed that the Department felt that it was reasonable to open up the question of damages to the beginning, and inasmuch as the complainants insisted upon keeping the question of damages open and the Department felt that it was reasonable to do so and not unfair to the Canadian interests, we were very anxious to have Article I omitted. Mr. Read stated that he felt that the Prime Minister would object very strongly to the omission of Article I, mainly because of the reflection which the failure to accept the $350,000 would entail against the International Joint Commission. We again left Mr. Read with the understanding that we were to await word from him as to the views of the Prime Minister.
Copies of the drafts of agreement referred to above are attached hereto, marked Annex B and Annex C.47
On Thursday, May 31, Mr. Boal and I had lunch with Dr. Skelton and Mr. Read. After lunch, Dr. Skelton and Mr. Read came to the Legation and the matter was again discussed at some length, particularly Article I, which provides for the payment and acceptance of $350,000 for damage to January 1, 1932. Dr. Skelton and Mr. Read emphasized the importance of accepting the $350,000 in order to save the standing of the International Joint Commission. At this point, it was pointed out that if, as then seemed probable, we might be unable to reach an agreement to bring about a settlement of this difficult case, or if the United States was obliged to accept an unsatisfactory arrangement, merely to protect the standing of the Commission, it was not at all probable that that purpose would be served because it would then appear that it had not been possible to obtain a satisfactory arrangement because the Commission had functioned on the matter. The position then would be that the Commission would have been instrumental in preventing a satisfactory solution rather than helpful in attaining one. It was pointed out further that if, as is expected on the part of United States scientists, a large part of the region affected by sulphur dioxide will, in the course of a few years, be devastated, there will then be no question as to whether the United States would have been justified in accepting the report of the Commission or any part of it. If expected developments occur, it will be clearly demonstrated that the Commission did not adequately deal with the subject in its report. [Page 942] Should such a situation be allowed to develop, obviously it would not be complimentary to the Commission.
Dr. Skelton remarked at this conference that he had sought instructions from the Prime Minister and the Prime Minister was unwilling to conclude an agreement from which Article I would be omitted. Dr. Skelton was then informed that we would report their position to Washington and ask instructions as to whether we could accept Article I. Accordingly, I then telephoned a message to the Department, copy of which is attached hereto, marked Annex D.48
While waiting for instructions from the Department as to whether we could agree to accept Article I, Mr. Read called by telephone and asked whether we could see him if he came to the Legation. That was about 12 o’clock, Saturday, June 2. When Mr. Read came, he apologized for their having given us the impression that they were prepared finally to discuss an agreement, and that, because of their action in so doing, I had gone to Ottawa only to find that they were not ready to discuss final terms, and that they had found it necessary to confer further with the management of the Smelter Company. He explained that he had sent to the Smelter Company’s attorney at Toronto copies of the drafts of agreement herein above referred to and that the attorney was unwilling to take the responsibility of advising the Company either to accept or to reject the agreement. He was particularly concerned about the provisions in the proposed agreement which would authorize the tribunal to fix concentrations which could be permitted in the State of Washington without causing injury there. They feared that a tribunal might impose restrictions which would necessitate shutting down the smelter. Mr. Read stated that they had called in the General Manager and the attorney for the smelter from Trail, British Columbia, and that they would not arrive at Ottawa until Thursday, June 7, and that, therefore, they could not discuss the matter further until after that date. He wondered whether I could stay over to resume discussions after they had conferred with the representatives of the Company.
I stated that I would telephone the last developments to the Department and would then decide what course I would take. I then telephoned to Mr. Hackworth and was informed that a telegram49 was on the way to me in which I had been directed to refuse to accept Article I unless it could be provided in the agreement that the nuisance was immediately to abate. The telegram to which Mr. Hackworth referred was not received in the Legation until about 10 o’clock Sunday morning. It was decoded immediately. We learned that Mr. Read was at church and Mr. Boal and I went to the church to see Mr. Read. [Page 943] We had a brief conversation in which I informed him of the instructions which had arrived from Washington and remarked that there seemed no longer to be any uncertainty on our part as to whether Article I would be accepted.
Mr. Read remarked that there had been a division of opinion on their side, some of the interested parties feeling that it was necessary to accept Article I, others feeling that it was undesirable to do so, and he indicated that our unwillingness to accept Article I would not obstruct the bringing about of an agreement. He said that they were much more seriously concerned about the limitation on concentrations than they were about Article I.
Mr. Read stated that, when they had finished their conversations with the representatives of the Smelter Company, they would communicate with Mr. Boal and resume discussions with us in that way. I then took the first train for Washington, arriving here at 1:15 p.m., Monday, June 4.
The indications are favorable to the early concluding of an agreement. I am sure that the Canadians are convinced of the fairness of our position. The Canadian authorities, of course, do not desire to force any arrangement on the smelter people and they are consulting them at every move. Much, of course, depends on the outcome of the forthcoming conferences between the Canadian officials and the representatives of the Smelter Company.