September 26, 2016
Monday PM

Dear Governor Walker and Lieutenant Governor Mallott,

Thank you for the opportunity to comment on the revised draft Statement of Cooperation (SOC) between the State of Alaska and Province of British Columbia that was distributed by email on September 14. Our comments are included below and attached.

The SOC is clearly not a comprehensive solution to transboundary mining concerns, nor was it intended to be. It must go hand in hand with federal engagement that can bring in the authority of the Boundary Waters Treaty, funds and expertise. The SOC is narrowly focused on notification and information sharing, is non-binding and unfunded, and therefore insufficient to address the issue comprehensively.

We do recognize and appreciate that the language about federal engagement in Section 16 has been improved since comments were taken in December 2015. However, instead of simply listing federal engagement as an option, the SOC should be revised to explicitly state that the State of Alaska believes there is a necessary, critical role for the federal government to play in this international matter and that the SOC cannot and is not intended to address all aspects of this issue, including especially, although not exclusively, the need for enforceable protections for Alaskans. Together with Alaska’s congressional delegation, unambiguous and firm-handed advocacy by your administration on Alaskans’ behalf will convey to officials in Washington D.C. that it is now the U.S. federal government’s turn to carry its burden in protecting Alaskan citizens and their interests.

Unfortunately, we are very disappointed to see that the current revised draft SOC does not respond to or address the large majority of comments and none of the questions we submitted in December 2015. We are particularly concerned that our comments pertaining to the areas of federal engagement, financial assurances, defining terms (particularly the definition of harm), transparency and public participation have not been adequately addressed in the current draft. We are attaching those comments and questions here again as they are still directly relevant.

Despite the fact the SOC is limited in scope, is not legally binding and is lacking the commitment of any financial resources for implementation from Alaska, British Columbia or the mining companies, the SOC is a key document on which the U.S. and Canadian federal governments will continue to focus much attention. Therefore, we ask that the following edits be added to the SOC before it is finalized:

• Revise Section 16 to expressly state that the State of Alaska not only can, but in fact will seek timely and critically needed U.S. federal government action in pursuit of a binding and an enforceable set of international commitments, including financial assurances and an assessment of potential cumulative impacts of development in transboundary watersheds, to protect the water quality, fisheries, and ways of life in the transboundary region.
• The language regarding “significant degradation” and “significant adverse impacts” should be eliminated and where those terms occur replace them with “degradation” and “adverse impacts” respectively. We see no reason why the State of Alaska should agree to any level of pollution from B.C. nor limit its priorities with respect to the SOC’s functions and its notification provisions to situations of significant or substantial effects.
• While we realize that the SOC on its own cannot establish financial assurances for Alaska, the SOC does not make provision for establishing, or even commit to jointly developing financial assurances to protect Alaskan interests through another vehicle. The Auditor General of B.C. has stated that mining companies have not provided the required security deposits to ensure mine reclamation costs are covered in the event a mining company cannot pay, and that the reclamation fund is short over $1 billion. Since the B.C. government and the mining companies are apparently not providing for funding for protections for their own citizens, is there any reason to think they will treat Alaskans any better?
• While we are pleased the SOC recognizes the need for monitoring, the draft SOC creates no obligation or funding to underwrite a monitoring system that would allow Alaska to even know if its waters are being polluted. We recommend the Draft SOC be amended to stipulate that the transboundary monitoring system be created by a panel of independent experts, be designed to last in perpetuity, and be financed by B.C. or, should B.C. choose, by the mine proponents. We further recommend that the International Joint Commission (IJC) be given the long-term responsibility for the management of the transboundary monitoring network.
• Substantially strengthen opportunities for public participation, including provision for a public member on the Bilateral Working Group (BWG). The roles and participation opportunities for the public and tribes should be improved and specified, not listed as options. Public hearings should be held instead of the proposed “open houses.”
• A dispute resolution process should be added to the SOC.
• The Nisga’a and their treaty with B.C. are mentioned numerous times. Has the State of Alaska analyzed the implications of this treaty and the repeated mention of the Nisga’a? Does this give the Nisga’a any special rights that are not available to Alaskan tribes or other B.C. First Nations? Does this in any way constrain the rights of the State of Alaska and its citizens?

We also must emphasize that we do not understand the rush to finalize this document by October 1. It does not seem that the State of Alaska could, in the time between September 23 and October 1, adequately consider and address comments, discuss them with B.C. and revise the draft SOC accordingly. The review time was very short and at a time when many Alaskans were still fishing. Based on the language in the recent June 14 letter from the U.S. Department of State to Senator Sullivan, it is obvious that the existence and continuing progress on bilateral approval of the SOC, in the absence of a parallel federal-level effort, is acting as an impediment in efforts to secure federal and international engagement in an obviously international issue. An effort that you have said you support. We believe it would be best for the SOC and federal engagement to go forward together.

In conclusion we find the current revised draft continues to have significant flaws and is in need of improvement and the current public review process is too short and inadequate. While we do not object to the concept of an SOC, we cannot support this draft. We would like to see our comments and questions answered, review another draft, and see a commitment from the U.S. federal government before the SOC is finalized.

Sincerely,

Chris Zimmer
Alaska Campaign Director
Alaska Transboundary Watersheds
Rivers Witout Borders
www.riverswithoutborders.org
www.wildborderwatersheds.org

Received September 24, 2016 - Published September 26, 2016

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