711.4215 Air Pollution/540½
Memorandum by Mr. Jacob A. Metzger of the Office of the Legal Adviser to the Legal Adviser
Mr. Hackworth: On June 22, 1934, Mr. Read, Legal Adviser to the Department of External Affairs at Ottawa sent me a draft50 of a proposed agreement to settle the Trail smelter controversy. This draft was formulated after the General Manager and attorney for the smelter company visited Ottawa the first week in June. The draft represented a substantial departure from the drafts which had previously been tentatively formulated in the course of my discussions with Mr. Read.
There are two important features of the new draft which render it unsatisfactory from the standpoint of the complainants in the State of Washington and from the standpoint of obtaining a fair adjudication. The first feature which might be mentioned as being unsatisfactory is the Canadian insistence on the payment by the Canadians and the [Page 945] acceptance on our part of $350,000 in payment of damage which occurred prior to January 1, 1932. This provision has been very much opposed by the complainants. The provision if adopted would create a problem of proof which it would be almost impossible to meet, that is, it would be difficult, if not impossible, to prove that particular damage occurred prior to or subsequent to January 1, 1932. This provision for the payment of $350,000 would exclude from consideration by the tribunal of any question of damage which occurred prior to January 1, 1932 and would therefore limit the jurisdiction of the tribunal.
Another feature which is not satisfactory is the proposed provision to permit the tribunal to consider only property damage. Complainants allege other forms of damage and feel that they are entitled to a hearing on their entire complaint. The effect of this provision would undoubtedly be to exclude from the consideration of the tribunal essential elements of the case.
Upon the receipt of Mr. Read’s proposal, I discussed the matter with you and Mr. Moore and was directed to communicate with Mr. Read asking him to arrange to resume discussions orally at an early date. Accordingly I wrote Mr. Read informing him that I had been so directed. He replied to the effect that it would not be convenient for him to give during the summer months the attention to the case which it ought to have and he suggested that we resume discussions early in October. I answered Mr. Read stating that in the circumstances I did not desire to insist that he meet me before October particularly as our objective was to obtain an agreement before Congress convenes in January. There ought to be ample time between October and December to reach an agreement. I told Mr. Read that I wanted to be free to bring up, about September first, the matter of making definite arrangements for our getting together. He has indicated a willingness to meet me at my convenience after the first of October. As the correspondence now stands, I will take up with Mr. Read early in September the making of definite arrangements to resume discussions in October.
I believe that if the Canadian Minister were informed that it was felt on the part of the United States that we were entitled to an impartial adjudication of this whole question and that no essential element of the case should be excluded from the tribunal, it would have a beneficial effect on our future negotiations. There is no doubt that if the last Canadian proposal were adopted the prospect of obtaining adequate indemnity would be very much impaired to the prejudice of the complainants. A fair adjudication of this matter requires that every relevant factor be put before the tribunal on the part of the United States and that the Canadians be allowed to set up every proper defense. We have been willing that the Canadians be permitted to [Page 946] use every available defense but the Canadians have not been willing to permit some important and relevant factors to be considered by the tribunal. If the Canadians could be given to understand that we wanted a fair adjudication and that we strongly felt that any arrangement which would exclude any relevant factor would not be fair, the negotiations ought to be advanced thereby.
- Not found in department files. Articles I, III, and X are quoted in the memorandum by Mr. Metzger of September 25, infra. ↩