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Drilling into a cross-border treaty
Drilling into a cross-border treaty
Michael Byers Academic Director
August 23, 2004
A local environmental dispute in the far southeast corner of British Columbia is quickly escalating into an international kerfuffle with implications for all Canadians. The Flathead River valley is one of this country's most pristine wilderness areas. Lynx, wolverines, grizzly bears and timber wolves roam the forests, while the river itself is home to rare populations of bull and cutthroat trout. In Victoria, a 12-hour drive and ferry ride westwards, Premier Gordon Campbell and his cabinet view the valley from a more mercantile perspective. Trillions of cubic feet of natural gas lie trapped in coal seams just a few hundred metres below the surface. This "coal-bed gas" could generate billions of dollars in royalties, which is no small matter for a province carrying a $38-billion debt. The extraction of coal-bed gas is ecologically controversial. It requires a high density of wells and thus considerable surface development, including access roads, power lines and compressor stations. The gas itself is trapped beneath large amounts of saline ground water, which has to be pumped out and then disposed of, a process that has caused terrible soil and watercourse degradation in Wyoming's Powder River Basin. Despite the dubious environmental record of coal-bed gas, the B.C. government has eagerly promoted its development. New wells are labelled as experimental for the first three years in order to exclude them from the usual regulatory framework, while the regulations themselves have been loosened to allow wells to be located closer together. Royalty rates are lower than for conventional oil and gas, and each new well receives a $50,000 credit. According to the Ministry of Energy and Mines, these measures address "the unique economic characteristics of developing coal-bed gas resources." A handful of test wells has already been drilled in the Flathead River valley, creating concern among local residents. The city council of Fernie, a resort town that depends heavily on wilderness tourism, has repeatedly demanded a full environmental-impact assessment before more drilling takes place, so that the repercussions of any coal-bed gas development can accurately be measured. Undeterred, the province is auctioning coal-bed gas exploration rights for the area: The sale closes on Wednesday and the successful companies will be obligated to drill. The story would end there, were it not for the fact that the Flathead River flows south across the 49th parallel and forms the western border of Montana's Glacier National Park, a world heritage site. The state government in Helena is concerned that tainted water from Canada might despoil its principal tourist attraction. In mid-July, Governor Judy Martz appealed to the B.C. government to postpone the auction of exploration rights until a baseline environmental-impact assessment could be conducted. The request was refused, with Richard Neufeld, B.C. Minister of Energy and Mines, insisting that any assessment must wait until licences have been granted and specific development plans received. Mr. Neufeld's position stands in stark contrast to a report prepared by Summit Environmental Consultants for his own department that recommended "three years of baseline water-quality monitoring . . . before CBG [coal-bed gas] development." It also contradicts an environmental co-operation agreement that Ms. Martz and Premier Gordon Campbell signed last September, whereby they undertook "to identify, co-ordinate and promote mutual efforts to ensure the protection, conservation and enhancement of our shared environment." Stonewalled by Victoria, Ms. Martz asked Ottawa to intervene, invoking a 2003 amendment to the Canadian Environmental Assessment Act that allows the federal government to refer projects that may have "significant adverse environmental effects" outside Canada to a mediator or review panel. Mr. Neufeld responded by accusing her of election grandstanding, despite the fact that she is not seeking re-election. He also asserted that since natural resources are at issue, the province has sole jurisdiction. But since the Flathead River is an international watercourse, Ottawa would be fully entitled to intervene, and should -- if not this week, at least before more test wells are sunk. British Columbia is about to violate Canada's obligations under the 1909 Boundary Waters Treaty, Article 4 of which stipulates that boundary waters "shall not be polluted on either side to the injury of health or property on the other." Two decades ago, Ottawa and Washington asked the International Joint Commission, the bi-national body that oversees the treaty, to examine the implications for water quality of a proposed coal-mine development on Cabin Creek, a tributary of the Flathead River just north of the border. The IJC recommended against the mine, citing the potential risk to migratory fish and applying what has become known as the precautionary principle: "When any proposed development project has been shown to create an identified risk of transboundary impact . . . existence of that risk should be sufficient to prevent the development from proceeding." With international law on Montana's side, neither Ms. Martz nor her successor is likely to back down. Montana's sole congressional representative and both its senators are backing the Republican Governor. One of them, Senator Max Baucus, has already drawn the matter to the attention of Secretary of State Colin Powell. The B.C. government, in its rush to garner royalties, is undermining a 95-year-old agreement that usually serves Canada's interests by constraining the United States. For example, the Boundary Waters Treaty is currently helping Alberta retain its rights over the waters of the St. Mary River. Manitoba is relying on Article 4 to stop North Dakota from draining water (and invasive fish species) out of Devil's Lake and into the Red River and Lake Winnipeg. And were it not for the treaty, significant quantities of water would likely be flowing southward out of the Great Lakes, instead of eastward through the St. Lawrence Seaway. It may be that British Columbia is deliberately provoking the United States so as to create a bargaining chip in ongoing negotiations with Ottawa over the lifting of the federal moratorium on West Coast offshore drilling. With another federal election possible next year and a number of swing seats on the Lower Mainland, the federal Liberals will be concerned not to antagonize their provincial counterparts. On this issue, however, Prime Minister Paul Martin should consider how people across Canada -- in Fernie, Winnipeg, Niagara Falls and elsewhere -- could end up paying for the Campbell government's myopic selfishness. Insisting on an environmental-impact assessment before further drilling takes place in the Flathead River valley will demonstrate to the Americans that we take our legal commitments to them just as seriously as their commitments to us. Michael Byers holds the Canada Research Chair in Global Politics and International Law at the University of British Columbia. He also serves as academic director of the Liu Institute for Global Issues.
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