DRAFT Memorandum of Understanding and Cooperation between the State of Alaska and the Province of British Columbia

Editor’s note: This document is a draft presented to the Transboundary Citizen’s Advisory Workgroup during its first meeting, Nov. 16.  Group members will suggest changes before it is formally submitted to the Canadian province.

APPENDIX I to Memorandum of Understanding and Cooperation between the State of Alaska and the Province of British Columbia (date) by the Governor of Alaska and the Premier of British Columbia.

Statement of Cooperation on

PROTECTION OF TRANSBOUNDARY WATERS

Between

The State of Alaska Departments of Environmental Conservation, Fish and Game and Natural Resources

And

The Province of British Columbia Ministries of Environment, and Energy and Mines

Recitals:

  1. The State of Alaska and Province of British Columbia have entered into a Memorandum of Understanding and Cooperation (MOU) that among other provisions calls for the collaboration of the agencies identified above in the protection of Transboundary Waters and the ecosystems they support.
  2. The undersigned agencies are entering into this Statement of Cooperation (SOC) to implement the terms of the MOU, with the primary focus of this SOC being the long-term protection of Transboundary Waters (principally the Alsek, Stikine, Taku and Unuk watersheds) from the risk of substantial adverse impacts from the development of mines and other significant commercial development activity, including increased marine traffic.
  3. In implementing the SOC, the undersigned agencies intend to:
    • Build on existing collaborative initiatives and the good working relationship they have enjoyed for many years;
    • Continue to recognize and be guided by the existing treaties and other binding arrangements between their federal governments;
    • Enhance their engagement with First Nations, Tribes, communities, organizations and residents in the region to better assure the protection of Transboundary Waters and the ecosystems they support;
    • Recognize and utilize the local knowledge and respect the traditional values of the indigenous inhabitants of the region;
    • Operate with transparency in sharing information, science and best practices; and
    • Scale the level of activity under this SOC with due regard to the level of environmental risks, existing measures and public processes designed to protect Transboundary Waters and inform the public; and the resources that may be available to the implementing agencies to enhance or augment existing efforts.
  4. The undersigned agencies recognize the need to implement this SOC efficiently, targeting identifiable and specific concerns, avoiding unnecessary duplication, sharing resources and, as appropriate, seeking alternate public and private sector funding and other needed resources that are in addition to those normally covered by existing state or provincial operating budgets.

Statement of Cooperation:

The undersigned State Agencies and Provincial Ministries Enter into this Statement of Cooperation as Follows:

  1. Bilateral Working Group: A Bilateral Working Group (BWG) is established consisting of the commissioners of the Alaska Departments of Environmental Conservation, Fish and Game and Natural Resources and the deputy ministers of the BC Ministries of Energy and Mines and Environment to:
    1. Establish and oversee a Technical Workgroup on Monitoring as described in Section 2 below.
    2. Establish and maintain reciprocal procedures that facilitate the invitation and ongoing involvement of interested state and provincial agencies and ministries, federal agencies, First Nations, Tribes, organizations and other interested parties in Environmental Assessments and Permitting Processes, triggered under provincial or state law as described in Sections 3 a., b. and c. below, or under federal law as described in 3 a. iii. below.
    3. Establish and maintain procedures to regularly report to each other on the environment performance of operating and closed mines that have ongoing wastewater discharges or impoundments that could pose a significant risk to Transboundary Waters and the ecosystems they support, as described in Section 4 below.
    4. Facilitate opportunities for information sharing and constructive dialog among members of the BWG, and with First Nations, Tribes, local governments, organizations and other interested parties, on broader concerns as described in Section 5 below.
    5. Enhance communication and dialog with Tribes, First Nations, local governments, organizations and other interested parties, as described in Section 6 below, transparency and trust being two key objectives in the implementation of the SOC.
    6. Carry out the terms of the SOC, recognizing the limits of current agency budgets and competing demands for agency resources, and without expecting new public funding to cover the costs of this work.
    7. Continue to look for collaborative means to further the objectives of this SOC.
  2. Technical Working Group on Monitoring: The parties recognize the importance of having a reliable and adequate process for the collection, summary and distribution of baseline, regional and project-specific water quality and related data that describes the quality and quantity of Transboundary Waters before, during and after mining and other industrial development, and to monitor the condition and health of fish and other aquatic life that might be impacted by pollutants in Transboundary Waters. There are opportunities to collaborate among different agencies, Tribes, First Nations, local governments, industry, organizations, and others to collect these data, observations and related information.
    1. A Technical Workgroup on Monitoring (TWG-M) comprised of experts from agencies and ministries of the parties shall develop recommendations for the BWG regarding the scope, elements and funding of a defined coordinated monitoring effort. This effort will coordinate among and build upon existing monitoring efforts and is intended to continue through different government administrations.  The members of the TWG-M will actively engage with federal agencies, Tribes, First Nations, local governments, industry members, organizations and others in developing their recommendations to the BWG. This may include one or more public workshops in Alaska and BC.
    2. The TWG-M shall also make recommendations to the BWG on ways to assure the trustworthiness of data, import or link to trustworthy data sets collected or stored by others, and how best to package and present data and related information to First Nations, Tribes and the public.
    3. Given the cost of data collection, the constrained budgets of agencies and the geographical extent of the Transboundary Region, the TWG-M shall look for areas of collaboration and means to avoid duplication of effort. As part of this undertaking, they will look for ways to use common protocols, analytical methods and reporting formats.
    4. The TWG-M shall also make recommendations to the BWG regarding whether it would be beneficial to continue the TWG-M for some period of time or indefinitely in furtherance of the objectives of the SOC.
    5. If the TWG-M should include as part of their recommendations to the BWG a proposed “Action Plan” covering a period of time not exceeding three years.
    6. Working with their staffs, and with interested First Nations, Tribes, communities, organizations and others, develop a written description of a coordinated monitoring program (to be included as “Attachment 1” to this SOC once the attachment is approved by all of the members of the BWG.)
    7. The BWG intends to work collaboratively to help implement and maintain the coordinated monitoring program described in Attachment 1 to this SOC.
  3. Participation in the Environmental Assessment and Permitting Processes Relating to Particular Mines and Other Developments: The parties will look for opportunities to build on and enhance the existing collaboration between technical staff from the state’s Departments of Natural Resources, Fish and Game and Environmental Conservation and technical staff from the Ministries of Energy and Mines and the Environment in the permitting and environmental assessments of proposed projects.
    1. While continuing the existing collaboration, the BWG will work with their staffs to develop a written description of reciprocal procedures the parties will use to facilitate the invitation and on-going involvement of the government representatives and their designated scientists in the processes described in subsections i- iii below. This may include a more detailed list or descriptions of projects that one party would like to receive notice of and identify the person(s) who should receive that notice.  Once this description is approved by all of the members of the BWG, it will be attached as “Attachment 2” to this SOC and become a part of it.
      1. Environmental Assessments triggered under provincial or state law,
      2. Permitting Processes triggered under provincial or state law, and,
  • Where appropriate and in furtherance of the objectives of the SOC, analogous processes triggered under federal law where BC or Alaska is engaged in that federal process.
  1. As the BWG and their staffs look at the best ways to enhance their existing collaboration they will consider, among other options:
    1. Participation of a representative of an agency from one jurisdiction as a member, observer or commenting stakeholder in meetings of an inter-agency workgroup convened by the other jurisdiction, and
    2. Procedures for assuring that comments submitted by an agency from one jurisdiction are duly considered and responded to by the reviewing or authorizing agency from the other jurisdiction.
  2. The parties shall also work to enhance and develop opportunities for interested Tribes, First Nations, local governments, organizations, and general public to easily access useful information about mining and other significant development projects in Transboundary Waters and to provide their input into authorization processes before they are complete. Among other potential means to accomplish this, it is envisioned there will be public open houses in Alaska during the Environmental Assessment process on particular proposed projects. It is also envisioned that the state agencies who are parties to this SOC will actively engage Tribes in Alaska, and the ministries who are parties to this SOC will actively engage First Nations in BC, as they develop their respective comments or other input on proposed mines and other developments.
  1. Reporting on Ongoing Discharges, Operational Oversight, and Closure: Much of the past collaboration between the parties relating to mines near Transboundary Waters has occurred as part of the BC Environmental Assessment and Permitting Processes.  The parties recognize that events can and do occur during the operation, closure and reclamation phases of a mine’s life that can impact the quality of waters downstream. The BWG will work with their respective staff to:
    1. Identify and timely share reports with each other, without violating any legal requirements, that provide reliable information on the on-going compliance of a mine with the terms of its permits and other government authorizations that are intended to protect Transboundary Waters;
    2. Timely notify the other party:
      1. Discovery of a deficiency in the design, placement, construction or maintenance of a tailing dam, or other structure designed to store mine tailings and waste water, that could pose a significant risk to Transboundary Waters;
      2. A material change in the fiscal condition of a company, including the failure to post a required financial assurance for performance, which creates a substantial risk it will be unable to meets its obligations under permits and other government obligations intended to protect Transboundary Waters; or
  • The imminent threat or actual release of pollutants from a mine or former mine that could have a significant adverse impact on Transboundary Waters.
  1. The parties may include more specific provisions in Attachment 2 to this SOC regarding the content, timing and other aspects of the notices to be provided under this Section 4.
  1. Engagement on Broader Concerns: There are existing concerns and concerns that could arise in the future that relate to more than one mine or other commercial development in the Transboundary Region.  An existing concern is the long-term integrity of earthen tailing dams in the Transboundary Region. Potential future concerns include the cumulative impact on Transboundary Waters from current and future commercial development, including from potential increases in marine traffic. To facilitate the identification, information sharing and dialog on these broader concerns:
    1. Any member of the BWG may, in a written request to all of the members of the BWG, ask that they agree to attempt to address a specific concern not otherwise being addressed under another section of this SOC. The written request should identify the concern with specificity and identify any means the requesting BWG member believes should be used to address the concern under the SOC.  This could include, by way of example, convening a special work group, jointly sponsoring a special study or demonstration project or convening a technology conference.
    2. The BWG, or working group established by it for this purpose, shall review the request and develop a recommended response to the request.
    3. Before implementing any recommendation, the BWG shall seek and consider the input from interested First Nations, Tribes, local governments, organizations and other interested parties.
  2. Communications: Again, a key goal is transparency and dialog with the Tribes, First Nations, local governments, organizations and other interested parties. Specifically, the parties will consider ways to:
  3. Better inform Tribes, First Nations and the public regarding the steps in the Environmental Assessment process and opportunities for Tribal, First Nation and public to engage through public workshops (including in Alaska) and otherwise;
  4. Better inform Tribes, First Nations and the public regarding the steps in the Permitting Processes and opportunities for Tribal, First Nation and public to engage.
  5. Provide easier access by the Tribes, First Nations and the public to useful information relating to proposed mines and other significant commercial development, including to comments and recommendations submitted by Alaska agencies as part of their participation in these processes;
  6. Timely provide, early on, information on potential future mine and other significant developments that might be considered under the SOC;
  7. Timely provide relevant information on the ongoing compliance of a mine, during the operation, shutdown, closure and reclamation phases of its life, with the terms of its permits, authorizing documents, approved plans and other legal requirements; and immediate notice of any catastrophic or other unanticipated event relating to a transboundary mine that could have significant environmental impacts downstream of the site of the event.
  8. Citizens Advisory Groups: Citizens Advisory Groups exist in both Alaska and BC that are comprised of individuals who do not represent a federal, state or provincial agency regarding matters within the purview of the Citizens Advisory Group’s mandate but who may be consulted and provide independent advice to an agency or company regarding one or more on-going commercial operations and the resources they might impact in a particular geographical area. These groups may be chartered by law or private agreement and have different funding sources. Their scope of work also varies, including Citizens Advisory Groups that focus on a particular mine or other project, and those that might look at a broader set of environmental concerns or operations, such as the Prince William Sound Regional Citizens Advisory Committee in Alaska.  In many areas of Alaska and BC potential impacts to subsistence resources can be extremely important and the advice of local subsistence users particularly valuable. The parties recognize the important role Citizens Advisory Groups can have in identifying environmental and other local concerns relating to a commercial operation and bringing these to the attention of the operator and government agencies.  They can also be very helpful in understanding the resources in the local area and how best to protect them against potential risks. There are also examples of citizens of Alaska and BC participating together in advisory groups. With this in mind, the BWG will look for opportunities:
    1. For citizens from Alaska to participate on Citizens Advisory Groups in BC that have a scope of work that includes concerns of significant interest to Alaskans in the Transboundary Region;
    2. For citizens from BC to participate on Citizen Advisory Groups in Alaska that have a scope of work that includes concerns of significant interest to citizens of BC in the Transboundary Region;
    3. For representatives from agencies, First Nations, Tribes and organizations in one jurisdiction to attend meetings of Citizen Advisory Groups in the other jurisdiction to present helpful information and discuss concerns relating to Transboundary Waters;
    4. To provide useful guidance and other non-financial support in the formation of new Citizens Advisory Groups, whose members represent a cross section of the communities on both sides of the Alaska-BC boundary, and who are chartered to address longer-term concerns shared by both Alaska and BC relating to Transboundary Waters.
  9. Funding: The parties again recognize the constraints contracting budgets put on them and the need to prioritize work under the SOC, build on existing collaborations, leverage existing partnerships and resources, and avoid unnecessary duplication. It is anticipated there will not be new funds appropriated to the agencies’ by their respective legislative bodies to help implement the SOC.
  10. First Nations and Tribes in the Transboundary Region: The BWG will, in its implementation of the SOC, recognize the importance of the knowledge, observations, experience and values of indigenous peoples who have lived sustainably in the Transboundary Region for thousands of years and whose livelihood is tied to the health of Transboundary Waters. Alaska and British Columbia look forward to the BWG working collaboratively with the following First Nations and Tribes in the Transboundary Region: the Nisga’a First Nations, Taku River Tlingit First Nations, Gitnayow First Nations, and Tahltan Central Council, the Yakutat Tlingit Tribe, Hoonah Indian Association, Chilkoot Indian Association, Chilkat Indian Village, Skagway Traditional Council, Douglas Indian Association, Central Council Tlingit and Haida Indian Tribes of Alaska, Angoon Community Association, Sitka Tribe of Alaska, Organized Village of Kake, Petersburg Indian Community, Wrangell Cooperative Association, Craig Tribal Association, Klawock Cooperative Association, Hydaburg Cooperative Association, Organized Village of Kasaan, Ketchikan Indian Community, Metlakatla Indian Community, and Organized Village of Saxman in pursing the goals set out in this SOC.
  11. Meetings of the BWG: The BWG shall meet in person or by phone at the will of the group. It is envisioned the BWG will meet at least quarterly during the first year of this SOC and at least once a year in succeeding years. If a member of the BWG is unavailable to attend a meeting, she or he may designate to their deputy commissioner or assistant deputy minister authority to participate in that meeting on their behalf. Nothing in this SOC is meant to discourage members of the BWG from collaborating with each other on any matter without engaging other members of the BWG who might be less involved in that matter.
  12. Definition of Terms: The following terms are defined as follows for purpose of this SOC.
    1. “Transboundary Water(s)” includes: any river, stream or other surface water that flows across the international borderline between Alaska and BC, including all tributaries to these waters, and on which mining or other commercial development is being planned, is occurring or has occurred, that involves the risk of significant adverse impacts to those waters or the ecosystems they support; and, also includes all marine waters along the coast of BC and the Southeast panhandle of Alaska south of sixty (60) degrees latitude Agree with scope point – do we want to whittle more now?
    2. “Transboundary Region” includes the areas in BC that are drained by Transboundary Waters or that are part of the Southeast panhandle of Alaska south of sixty (60) degrees latitude.
    3. “Environmental Assessment” means any environmental review or assessment that:
      1. Is required under federal, provincial or state law in advance of the consideration of a permit application or as part of the consideration of whether to issue of a permit or other governmental authorization;
      2. Involves significant participation by one or more of the members of the BWG; and
  • Pertains to a proposed mining or other commercial development that could, in its construction, operation, closure or reclamation, result in substantial adverse impacts to a Transboundary Water or the ecosystems it supports.
  1. “Permitting Processes” means any governmental process conducted by a member of the BWG that is required by law and involves the exercise of its regulatory authority to issue or approve a permit or authorization in response to a proposed mine or other commercial development that could in its construction, operation, closure or reclamation, result in substantial adverse impacts to a Transboundary Water or the ecosystems it supports.
  1. Interpretation: This SOC is to be interpreted consistent with the terms of the MOU.
  2. Limitations: This SOC shall have no legal effect; impose no legally binding obligation enforceable in any court of law or other tribunal of any sort, nor create any funding expectation; nor shall either Alaska or BC be responsible for the actions of third parties or associates. This SOC does limit or change in anyway the legal rights either party, or any third party, may have under a treaty, contract or other agreement or law.
  3. Notices: Except as may be otherwise provided in Attachment 2 to this SOC, notices that are to be provided by one party to the other may be made in writing or by email to:

[Insert names and contact information for the parties]

  1. Term and Amendment: This Statement of Cooperation is effective when signed by both all of the members of the BWG and shall remain in effect for a period of five years. It may be renewed for a further period upon written consent of the Governor and Premier. Other than extending its term or substantially changing its scope, it may be amended at any time by unanimous agreement among the BWG members. Either party may terminate this SOC by delivery of written notice signed by the Governor or Premier to the other party.