What You Need to Know About NAFTA’s Investigation into Oilsands Tailings Leaks

Oilsands tailings pond

For years environmental organizations have called on the federal government to do something about the leakage of  billions of litres of toxic chemicals from Alberta’s oilsands tailings ponds into the Athabasca River every year.

And for years they’ve been ignored — until now.

NAFTA’s Commission for Environmental Cooperation (CEC) is reviewing a submission by Environmental Defence, the Natural Resources Defense Council and Daniel T’seleie. Now, Canada must provide a response to the arguments made in the submission.

Here’s a primer on why this process matters.

So what’s going on with leaky tailings ponds?

Tailings ponds now cover more than 220 square kilometres of previously boreal forest around Fort McMurray, Alberta.

It’s been suspected for ages that these ponds have been seeping chemicals into nearby water systems — chemicals such as benzene, ammonia, cyanide and arsenic.

In 2013, investigative reporter Mike De Souza revealed via an access to information request that then-natural resource minister Joe Oliver had received a memo citing studies that “detected potentially harmful, mining-related organic acid contaminants in the groundwater outside a long-established out-of-pit tailings pond.”

Only a year later, another federal study confirmed that toxic chemicals were reaching the Athabasca River.

In their submission to the Commission for Environmental Cooperation the three parties cite documented cases of contaminated tailings waste reaching (or projected to reach) waters in Jackpine Creek (from Shell), Beaver Creek (from Syncrude), McLean Creek (from Suncor) and the Athabasca River (from Suncor).

Such toxins can have calamitous effects on fish populations, which many local Indigenous peoples rely on for sustenance.

What’s the specific claim being made by the submission?

That Canada has failed to enforce subsection 36(3) of the federal Fisheries Act.

Specifically, that subsection reads (take a deep breath) that: “no person shall deposit or permit the deposit of a deleterious substance of any type in water frequented by fish or in any place under any conditions where the deleterious substance or any other deleterious substance that results from the deposit of the deleterious substance may enter any such water.”

The case that’s being made is that ignoring leaking tailings waste is violating that subsection.

Interestingly, the submission notes that case law has emphasized that the water itself does not need to be made “deleterious” to fish, with the question being whether or not the substance itself is a “deleterious substance.” It might sound like a silly debate, but it could make or break a case.

It’s pretty clear there’s been a lack of enforcement action both by Alberta and the Canadian government, which is outlined in our complaint to the CEC,” Tim Gray, executive director of Environmental Defence, told DeSmog Canada.

We felt this was a way of compelling the Canadian government to respond to someone, and this would shine the light of day on this issue with how the Canadian response comes back.”

Alright, so how does NAFTA have anything to do with this? Isn’t it a trade deal?

Indeed, it is: introduced in 1994, NAFTA was a groundbreaking regional trade agreement between Canada, the U.S. and Mexico.

It was also very controversial.

Aaron Cosbey, senior associate at the International Institute for Sustainable Development and expert on environmental issues pertaining to international trade, said in an interview with DeSmog Canada that there was a great deal of opposition to the deal at the time of signing, especially from the environmental community.

Much of the concern related to the expectation that a lot of low-wage work would be relocated to Mexico, with laxer environmental laws and regulations.

Canadian NGOs were making the same argument: you can’t put in place this free trade agreement, which pits us against a country where the environmental law is not enforced,” Cosbey said.

It’s not free trade if you do that.”

In response, the North American Agreement on Environmental Cooperation was created as a separate treaty, signed at the same time as NAFTA. One of its key roles has been to serve as a tribunal of sorts for submitted infractions of environmental laws, with the worst “punishment” being the issuing of a non-binding “factual report” which serves as a “name and shame” document.

It has no legal force beyond bringing a little welcome sunshine to the dark corners of non-enforcement,” Cosbey said.

In short, it was designed as a way for the three countries to have a common mechanism in place to file complaints about environmental practices. The submission about tailings leakage was the very first step in this process. The determination that the submission met the criteria for review on August 16 was the next. Now, Canada has to respond to the allegations.

So does this mean that Canada will be reprimanded?

Nope.

All that’s happened at this point is that the secretariat acknowledged the submission is valid. Canada has until Sept. 28 to officially respond, although it could request a 30-day extension for “exceptional circumstances.” The secretariat then figures out whether or not to proceed with the “factual record.” It can either decide that it’s satisfied with the response and won’t proceed further, or recommend the preparation of the “factual record.”

But here’s the thing.

In order for the factual record to actually be prepared, the environment ministers of the three countries have to agree by a two-thirds majority to it. In other words, two of the three NAFTA environment ministers have to say “yes,” otherwise it won’t proceed further.

That’s a very real possibility. Cosbey said there have been at least five instances in the past decade in which the secretariat recommended the preparation of the factual record, and the council of environment ministers shot it down. In total, there have been 30 submissions made in the last 10 years, with only three resulting in the creation of a factual record.

In fact, almost this exact same submission was shot down at the council level, despite a recommendation from staff at the Commission for Environmental Cooperation.

Canada’s initial argument against it was that there was an ongoing court case (which would mean that a factual report couldn’t have been completed). As it turned out, the court case wasn’t proceeding at the time. At the time, CBC reported that assistant deputy minister for Environment Canada, Dan McDougall, then declared that the commission had no jurisdiction to investigate domestic law, which appears to contradict the entire point of the commission.

McDougall still works as assistant deputy minister for Environment and Climate Change Canada.

What are the chances that Canada will fight this?

It’s impossible to say.

The country does have a long track record of opposing the process, with Canada blocking two other investigations in 2014 with Mexico’s support.

But we’re now living under what Cosbey described as a “supposedly now-environmentally friendly Liberal government.”

As noted by Gray, the federal government is embarking on a series of modernization processes, including of the Canadian Environmental Assessment Act, Fisheries Act, Navigable Waters Act and National Energy Board.

This is a clear example of where the tarsands industry has been violating the existing legislation, even in its poor form,” Gray said. “I would expect that once it becomes clear that the facts around this case are not really able to be argued with that they would take some action.”

It will be a big deal whether the submission gets quashed or allowed. After all, the council has never refused to make the factual record public, meaning that we would be given a fascinating window into the argument made by Canada for or against acting on tailings leakage.

Gray said the factual record would help embarrass the government for inaction and encourage them to actually comply with their own legislation. Furthermore, it could be used in a legal case against the government if it refuses to act.

The Trudeau government has already indicated on multiple files it’s willing to break its promises. So we’ll have to wait and see. Plus, the re-negotiation of NAFTA itself will provide an additional window into their thought process.

What about the re-negotiation of NAFTA?

Well, the three countries don’t exactly like what they created with the Commission for Environmental Cooperation. It’s effectively embarrassing and inconvenient to them.

That’s why Cosbey would “bet a lot of money” that the ongoing re-negotiation of NAFTA will involve shutting down the Commission for Environmental Cooperation, terminating the North American Agreement on Environmental Cooperation and putting all provisions within NAFTA itself.

I can guarantee you we’re not going to see anything as strong as this,” he said. “Guaranteed. We’re taking steps backwards here.”

And as you might have gathered, the current system isn’t even particularly strong. Compare it to, say, the framework in the European Union, which results in binding directives from the European Court of Justice to fall in line with the rules.

Recent regional trade agreements like CETA and TPP have involved “token nods” to the system that NAFTA currently uses, but are much weaker provisions in practice.

So this may be one of the last opportunities that a concerned individual or organization has the chance to challenge the country in this manner.

It’s possible,” Gray concluded. “I don’t know if anyone knows the timelines of the NAFTA renegotiations. But I’m hopeful the Canadian government would be looking to improve environmental protections, not erode them.”

Image: Tailings pond. Photo: Jennifer Grant, Pembina Institute.

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