711.4215 Air Pollution/75
The Minister in Canada (Phillips) to the Secretary of State
Ottawa, July 12,
1928.
[Received July 16.]
No. 516Sir: With reference to my telegrams No. 151 of
July 11, 7 p.m. and No. 153 of July 12, 1 p.m., in regard to the
complaints of property owners in the State of Washington as to damages
by fumes from the Trail plant of the Consolidated Smelting and Mining
Company of Canada, I have the honor to enclose herewith a copy of the
Canadian Government’s note of July 11th.
I have had many conferences with the Under-Secretary of State for
External Affairs and with the Prime Minister himself, and have lost no
opportunity to urge the immediate submission of the complaint to the
Joint High [sic] Commission. Confidentially, I
may point out that there has been a decided reluctance on the part of
the authorities here to agree to anything which might appear to endanger
the existence of the Consolidated Smelting and Mining Company plant at
Trail. As the Department is no doubt aware, the majority of the stock of
this important company is owned by the Canadian Pacific Railway, which
is the most powerful commercial activity in the Dominion. The
Government’s reluctance, therefore, to accept completely the
Department’s point of view in the submission of the matter to the
Commission may be accepted, I think, as an indication of the attitude of
the Canadian Pacific Railway itself.
The Canadian reply of yesterday’s date concludes with the statement that
the Canadian Government considers that the situation will be fully met
by a joint reference to the International Joint Commission, under
Article IX of the Boundary Waters Treaty, providing for inquiry and
report upon the facts as to the present effect of the fumes upon
property in the State of Washington and the probable
[Page 91]
effect in the future under such plant
extensions or modifications in process as are contemplated, and as to
the extent of damages so caused and methods of providing adequate
compensation.
I have [etc.]
[Enclosure]
The Canadian Secretary of State for External
Affairs (Mackenzie
King) to the American
Minister (Phillips)
Sir: I have the honour to acknowledge your
note of July 5th and previous communications, with reference to
complaints of property owners in the State of Washington as to
damages by fumes from the Trail plant of the Consolidated Smelting
and Mining Company of Canada.
I note that the Government of the United States is inclined to the
view that any inquiry into the situation should include provision
for measures involving restrictions on the operation of the smelter,
to check the emission of the fumes of which some part at times
drifts across the boundary into the State of Washington. Under
present conditions such action, we are advised, would involve
disaster for a Canadian industry of predominant importance, and
obviously the adoption of such a drastic course could be warranted
only if its necessity were established beyond question.
The proposal of this remedy by the Government of the United States
appears to rest upon the view that the fumes in question are causing
or threatening to cause vast and irreparable damage to plant, animal
and even human life in the State of Washington, and to involve the
removal of entire communities, and also upon the understanding that
the property owners have endeavoured in vain to obtain from the
Company indemnity for damages suffered. The Government of Canada is
not aware of the evidence upon which these views are based, aside
from the affidavits by property owners made in May and June of 1927,
of which copies were furnished. Information in its possession,
including a detailed report of a responsible officer of the Province
of British Columbia, and reports by United States scientists of
standing, copies of which were duly forwarded or referred to in my
note of the 24th February, 1928, indicate first, that it is held
that any damage inflicted in the State of Washington has been
slight, second, that the Company has made repeated offers of
indemnity and has in fact effected compensation in a number of
instances, and third, that a chief difficulty in the way of
effecting such indemnity lies in the laws of the State of
Washington, which are said to make it impossible for an alien
corporation to acquire lands
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or easements. In view of this conflict of information, the Canadian
Government agrees with the view of the Government of the United
States as to the necessity of establishing the actual facts of the
situation by thorough enquiry by an impartial authority; it is not
able to see that the findings of such an authority should be
prejudged by acceptance of a course of policy based upon one
interpretation of the facts which are in dispute.
It may be observed that the Province of British Columbia itself has
not found it necessary to adopt such a course for the protection of
the interests of property owners in the neighbourhood of the
smelter. Provision has been made for compensation when damage is
established, by direct agreement between the parties, or if this is
not possible, by reference to a County Court under the Arbitration
Act. While desirous of furthering in the fullest measure within its
power the observance of neighbourly policies, the Canadian
Government is not aware of any grounds of international comity which
would require granting to the inhabitants of a neighbouring country
a remedy not accorded to the inhabitants of Canada itself.
The proposal in question is also based upon information conveyed to
the Government of the United States to the effect that the Company
is planning to enlarge its smelter, from which the inference is
apparently drawn that the fumes will be intensified in the future.
Inquiry has accordingly been made of the Company. The Canadian
Government is informed that the exact contrary is the case. The
extension contemplated is stated to be for treatment of residues
which are practically sulphurized now, and will not increase the
emission of sulphur. The construction now under way consists of an
experimental plant to be built at a cost of five hundred thousand
dollars for the express purpose of ascertaining whether it is
technically and economically feasible to dispose of the deleterious
gases in question. It is recognized that the most desirable solution
would be a reduction of the emission of any fumes harmful to
vegetation if this could be effected with due regard to all the
interests involved. The experiments now being carried on, as to
which full information would presumably be available in any inquiry,
appear to furnish an effective and fully adequate method of seeking
such a solution.
In view of these considerations, the Canadian Government considers
that the situation would be fully met by a joint reference to the
International Joint Commission, under Article IX of the Boundary
Waters Treaty, providing for inquiry and report upon the facts as to
the present effect of the fumes upon property in the State of
Washington and the probable effect in the future under such plant
extensions or modifications in process as are contemplated, and as
to the extent of damages so caused and methods of providing adequate
compensation.
[Page 93]
The Canadian Government would be prepared to facilitate in every way
an early reference to the Commission, and is not aware of any reason
why such an investigation could not be initiated during the summer
season. Whether a reference should be framed in detail by scientists
nominated by the two Governments, or drawn in more general terms
leaving it to the Commission to provide for the scientific and other
expert inquiries called for, is a matter which might be considered.
The Canadian Government is inclined to believe that the latter
course would be more expeditious.
Accept [etc.]
