711.4215 Air Pollution/567
The Canadian Prime Minister (Bennett) to the Under Secretary of State (Phillips)
[Received November 23.]
Dear Mr. Phillips: Pending the despatch of a formal communication through the usual channels, I should like to bring to your attention, in an informal manner, certain aspects of the present state of the Trail Smelter problem, which was discussed during your recent visit to Ottawa.
At that time there were two phases of this problem which were considered, namely the question of the alleged continuance of injury in the State of Washington and the question of provision for the determination of the controversy.
You will remember the charges made by various authorities in the State of Washington, that no effective steps had been taken to check the flow of sulphur dioxide across the boundary and that widespread and serious damage is still being caused in that State. I have, accordingly, had inquiry made. This matter has been the subject of investigations by scientists under the general direction of the National Research Council of Canada. It is clear that since the completion of the remedial works at Trail, late in the year 1931, there has been a very great improvement in atmospheric conditions in regard to sulphur dioxide, on the southern side of the international boundary-line. The following table shows the number of hours when the concentration of sulphur dioxide gas was more than one-half part per million; and likewise the number of hours when the concentration was more than one part per million, for the last six months of the year 1930; for the years 1931, 1932, 1933; and for the year 1934 to the end of September; indicating the great reduction that occurred after the year 1931, which was the year in which the remedial works were completed.
[Page 959]| Year | Over .5 parts per million | Over 1.0 parts per million | ||
| Hrs. | Min. | Hrs. | Min. | |
| 1930 (July to December) | 104 | 38 | 8 | 0 |
| 1931 | 128 | 20 | 10 | 40 |
| 1932 | 19 | 6 | 1 | 41 |
| 1933 | 26 | 50 | 50 | |
| 1934 (January to October) | 33 | 10 | 0 | 40 |
In addition to the above figures, the records show that during the growing season of 1934, namely the months of April to September inclusive, there was only a total of three hours and forty minutes when the concentrations were more than one-half of a part per million, and at no time during the growing season did the concentration exceed one part per million.
A similar reduction is indicated in the records of concentrations below one-half part per million.
Apart from these data relating to atmospheric conditions, the investigations of the Canadian scientists during the present season, namely 1934, establish that no appreciable damage to vegetation in the Northport area has been caused by sulphur dioxide from the Trail Smelter. There have, it is true, been some instances of markings on vegetation, but they have been too scattered and too infrequent to constitute appreciable injury.
In these circumstances, I am sure you will agree that there is no foundation for the statements to the effect that the Company was continuing to cause sulphur dioxide to drift across the international boundary in unabated quantities and concentrations.
The second aspect of the question is concerned with the establishment of some means for the judicial determination of the questions at issue.
At the time of your visit to Ottawa, the President of the Consolidated Mining and Smelting Company was absent from this Country, and the General Manager and Counsel were too far away to make it possible to have the matter dealt with before your departure for Washington. I did succeed, however, in placing the present position and the views of your Government before certain of the Directors, in order that it might be possible for the matter to be dealt with at the recent meeting of the Board of Directors of the Company. Following this meeting, the President, accompanied by the General Manager and Counsel for the Company, who had been summoned for that purpose from Trail, came to see me and discussed the whole situation.
You are, of course, aware that the Company is operating under the legislative authority of the Province of British Columbia. There are [Page 960] constitutional difficulties that would impede interference by the Government or Parliament of Canada with the operations of a company operating under provincial statutory authority or the imposition of a monetary award. These difficulties are of the same character as those which confront every federation in attempting to deal with the external aspects of the exercise of sovereign powers by the component states. You are, of course, familiar with the difficulties which your own country has encountered in dealing with similar problems.
Accordingly, when the proposal was made by you to my predecessor in office to refer the Trail Smelter question to the International Joint Commission for report, it was considered advisable to obtain the consent of the Company in order to insure that there might be an effective report, as a result of deliberations of the Commission. The Company at that time was persuaded by the Government to forego its legal rights and to attorn to the jurisidiction of the Commission, and it gave the necessary undertakings which placed the Government of Canada in a position to give legal effect to any report that the Commission might choose to make. After the unanimous report of the Commission, notwithstanding that it was regarded both by the Company and by the Government as including an unreasonably high assessment of damages, the Company again indicated its willingness to carry out its provisions and, inter alia, to pay the sum awarded, whenever the United States Government might be willing to accept it. It is also to be noted that even before the final report of the Commission, the Company had commenced and was in the process of carrying out the remedial measures approved by the Commission, which involved an expenditure in excess of ten million dollars.
It is obvious that there are practical difficulties which would make it unjust to re-open the question of damages occurring prior to the first day of January, 1932. In a new adjudication of the issue, the Company would be prejudiced by the existence of the unanimous award of the Commission, and there would be a practical certainty that, irrespective of the evidence, the amount would not be reduced. In dealing with a fresh adjudication of the issue, the Company would be seriously hampered by the staleness of its evidence and by the death or incapacity of some of the most important witnesses. On the other hand, the lapse of time will make it increasingly difficult to check the positive assertions of damage made in the claims and will thus be disadvantageous to the Company’s position.
This situation places the Canadian Government in an extremely difficult position. The question has been raised as to whether the Canadian Government, or even the Parliament of Canada, have any legal powers whereby a settlement can be imposed upon the Company against its will. The Canadian Government, even if it had undoubted powers, would be most reluctant to impose a settlement upon the Company [Page 961] involving the re-opening of the question of damage prior to the date in question, because such a course would, in view of the considerations set forth above, be unjust to the Company and would be entirely unnecessary, in order to do justice to the claimants. Such a course might involve protracted litigation between the Company on the one hand, and the Government on the other, and thus delay the ultimate settlement of this problem. Under these circumstances, ratification of a treaty would not be feasible until the question of legal right had been determined by the Courts, and that would certainly postpone ratification in any case for a number of years.
In these circumstances, it becomes necessary to reconsider the relation of the Canadian Government to this question.
In my note to Mr. Robbins, No. 13, dated the 17th February, 1934, and particularly in paragraphs 5 to 13 inclusive, I discussed the nature of the position of the Canadian Government and the nature of the proceedings that had been undertaken with a view to the provision of a solution of this difficult problem which was designed to be fair to all parties concerned. This is not a dispute between the two Governments, and it does not come within any of the ordinary well-known categories of international arbitration. It is a case in which a Canadian corporation was alleged to be committing a civil wrong against United States citizens in the State of Washington, for which appropriate remedies are and were, or ought to be, available in the domestic tribunals. I have pointed out that it would have been open to the Canadian Government to disclaim international responsibility and to remit the claimants to their ordinary legal remedies, and that such a course could not have been brought into question, because it would have been in accordance with the accepted principles of international law.
On the other hand, recognizing the desirability of utilizing procedure under the existing treaties which was available as between these two countries, the Governments joined in exploring this matter, with a view to obtaining a friendly, neighbourly and fair solution of the problem.
This course having failed through no fault on the part of the Canadian Government, it becomes necessary to consider the courses that are open at the present time.
The Canadian Government is still ready to explore the possibility of a settlement by means of an international adjudication along the general lines indicated in your note of the 30th January, 1934,54a and particularly along the general lines of the third proposal therein contained. The Canadian Government is ready to concur in the constitution of the tribunal and in terms of reference which, with necessary revision, would promise a determination of this problem in a [Page 962] manner that would be just both to the claimants and to the Company. The Canadian Government would be most reluctant to abandon the prospect of settlement of this controversy along such lines and to be forced to consider the possibility of adopting the strict legalistic attitude of remitting the injured parties to their remedies in the Courts.
I fully share your desire to see a speedy settlement of a dispute which holds possibilities of irritation and friction, and appreciate the action of the President in arranging for you to come to Ottawa for a direct discussion. I am, therefore, bringing these matters to your personal attention, rather than sending a formal communication.
In view of your President’s personal interest in this matter, I should be grateful if you would bring this letter to his personal attention in order that he may understand the difficulties confronting the Canadian Government in this matter and in order that he may know that the Government is prepared to go to great lengths in order to expedite a fair and just solution of this troublesome question.
Yours faithfully,