From supranational to intertribal - Governing Transboundary Waters: Canada, the United States, and Indigenous Communities - page 50

a reference, they are not considered legitimate requests by the letter of the law.
In fact, such a case just occurred in relation to the Pebble Mine, where a consortium
of forty ENGOs (environmental non-government organizations) and tribal
governments requested the IJC to “examine and report on the water-related impacts
from sulfide mining and exploration and development of the Rainy River and
Lake Superior Basins”. In the official response back, the IJC responded:
You are correct in noting in your letter “The Boundary Waters Treaty of
1909 provides the principles and mechanisms to resolve and prevent disputes”,
but it is the government's Treaty. Consequently, the IJC cannot unilaterally
undertake a study such as the one you request without approval from the
Governments of Canada, and the United States would have to give the
Commission a Reference and the associated funding for the Commission to
undertake such a study.
Using the words “the government's Treaty” in their response reinforces this
idea of the narrow interpretation of nationalism. Although the group was not
granted a Reference for study, they were told that a study was underway to develop
a Water Quality Plan of Study for the Rainy-Lake of the Woods Basin (which
includes looking at sulfides). Operating and problem-solving through International
Watersheds Boards (as discussed in the next chapter) may help widen the
participation in the process.
Acting without a reference?
The possibility of “acting without a reference” is an important point to consider.
At least some commentators have suggested that Canada should have sent a
unilateral reference to the IJC on controversial issues such as the Devils Lake
between North Dakota and Manitoba, but this did not occur (Brandson and Hearne,
2013). The need for IJC intervention may be obvious and needed, but unless both
Canada and the U.S. agree and formally submit a request, the IJC does not
intervene. While a solo reference is theoretically possible, it has never occurred -
largely because a solo reference would mean that only one party would potentially
bear the costs. In addition, the party not agreeing to a reference (either Canada or
the U.S.) would likely not make data and information available, which would, in
essence, destroy the principle of sound science and joint fact-finding, which is
essential to an impartial proces s. 5
The receipt of a reference leads to the IJC to establish a panel of experts, typically
with an equal number of members from each country to study the issue and make
non-biased recommendations. To ensure neutrality, the technical experts operate
in their personal and professional capacity as experts in the field, rather than as
representatives of a specific agency, or in the interests of their country of origin.
The Lake of the Woods and Rainy River Task Force, established in 2010, is
an example of a Reference designed to review and make recommendations
regarding the binational management of the Lake of the Woods and Rainy River