The Government of Canada is refusing to respond to an investigation into its alleged failure to enforce its federal laws addressing tar sands water pollution leaking into surface and groundwater. The Commission on Environmental Cooperation (CEC), an international oversight body responsible for monitoring the North American Free Trade Agreement’s environmental provisions, launched an investigation in December 2013 following a petition submitted by NRDC, Environmental Defence Canada, and several Canadian citizens alleging that Canada was not enforcing its federal Fisheries Act for confirmed leaks of toxic waste into water. The federal Canadian government is now refusing to respond to these allegations thereby avoiding public scrutiny about why they are failing to hold tar sands companies accountable for violating Canadian law. The Canadian public – especially communities living hear these tailings ponds which currently cover an area the size of Washington D.C. – deserve an explanation given these leaking tailings ponds are located near where people live, drink, fish and hunt. The Government of Canada should not get a pass from its international commitment to respond to this investigation especially as it is under the microscope in the U.S. over whether to permit the proposed Keystone XL tar sands pipeline.
In 2010, NRDC working with partners and citizens in Canada requested the CEC (established as part of NAFTA’s National American Agreement on Environmental Cooperation) to investigate Canada’s failure to regulate leaking toxic tar sands tailings ponds. NRDC’s submission argued that Canada had failed to enforce a key provision of its Fisheries Act – considered one of Canada’s top environmental laws to protect water – to hold tar sands companies accountable for leaking of polluted tar sands tailings ponds. Our petition argued that the pollution had penetrated through the holding ponds and had contaminated groundwater and surface water. In December 2013, the CEC found that NRDC’s submission had merit and requested a response from the Government of Canada.
The allegation of leaking tailings ponds and failure to enforce Canada’s environmental laws has been known for several years. According to Environmental Defence Canada and the Pembina Institute, “toxic wastewater seeps out of tailing lakes at an estimated rate of more than 11 million litres per day.” This is established partly because regulatory approvals issued by the provincial government of Alberta report on the toxic releases to groundwater or surface water. For example, tar sands mining company Total reported estimated leakage into the Athabasca River at 12.6 million litres per day in 2013 (and eventually 23.9 million per day by 2044). Even the Royal Society of Canada has acknowledged tailings pond are leaking.
But rather than respond to the CEC explaining why it had failed to enforce its federal environmental law, the Government of Canada argued the investigation be terminated. Specifically, it argued the CEC should terminate its investigation citing a weak procedural argument that there was already an ongoing “judicial or administrative proceeding” in progress. The CEC considered and rejected Canada’s request to terminate the investigation concluding that there was no judicial proceeding underway and that the matter (a citizen complaint) had nothing to do with leaking tailings ponds – the subject of the original NRDC petition.
And just last week, the Government of Canada again demanded the CEC terminate the case. In fact, the Government of Canada went so far as to argue that the Secretariat for the CEC does not have authority to interpret the provisions of the NAAEC.
Canada failed to justify its lack of response to the CEC and should revisit its decision not to respond to the investigation. Canada is a party to the NAFTA environmental side agreements and therefore has agreed to meet provisions designed to investigate allegations that member countries failing to enforce its environmental laws. Since 1994, the official members of the CEC - U.S., Canada, and Mexico - have participated in the process. But participation in the CEC process is what makes the investigation process effective. Failure by any party to engage in the process risks the integrity of the CEC and the NAFTA agreements. And to be clear, Canada is not the only party in the hot seat. The U.S. is routinely under the microscope in the process in CEC proceeding for failing to enforce its federal environmental laws. Keep in mind, the CEC itself is not a dispute resolution process and it cannot compel any party from taking a specific action. But it is a critical tool used for now 20 years that supports public participation and government transparency. Given the international scrutiny of its tar sands industry, Canada would do better to participate and share information rather than hide behind a procedural argument. The Canadian public deserves as much.