The Trudeau government has until September 28 to respond to the NAFTA Commission for Environmental Co-operation on its failure to enforce the Fisheries Act in relation to water pollution emanating from the tar sands.
The Canadian Press reports, "The environmental arm of NAFTA is demanding Canada explain what it is doing to stop oilsands tailings ponds from leaking into Alberta waterways. The request comes in a decision by the Commission for Environmental Co-operation, which oversees the environmental pact Canada, the United States and Mexico signed as a parallel agreement to NAFTA. Canada has until Sept. 28 to officially respond to allegations it is failing to enforce the Fisheries Act by allowing contaminants from the ponds to leak into water without forcing the companies involved to fix the problem."
The article adds, "The complaint was made in June by Canada's Environmental Defence group and the Natural Resources Defense Council based in the United States."
It must be noted that there are significant limits to this challenge. Several years ago the Canadian Press highlighted, "[An] investigation only proceeds if a majority of member nations approve it. The commission has little or no enforcement power even if it does conclude a nation isn't living up to its environmental laws."
The article this week notes, "The government's response will be studied by a commission panel made up of members from the three countries. If they decide Canada is violating the law, [Environmental Defence executive director Tim] Gray says the next step would be to go to court to force Canada to act."
The Commission on Environmental Co-operation was established in 1994 so that NAFTA proponents could say that trade liberalization would be accompanied by environmental protection. It was meant to mitigate public concern about the trade deal by creating a mechanism that could look into public complaints about violations of national laws intended to protect the land, water and air. But if anything, its track record has proven the exact opposite. Between the 1994 and 2012, 80 complaints have been filed with the commission. Eighty-five per cent of those submissions have been dismissed or terminated.
Now, perhaps just as the Mulroney and Chretien governments attempted to deflect public concern with this commission, the Trudeau government is promising more on the environmental front within NAFTA.
Without providing specifics, Foreign Affairs minister Chrystia Freeland stated earlier this month: "In particular, we can make NAFTA more progressive first by bringing strong labour safeguards into the core of the agreement; second by integrating enhanced environmental provisions to ensure no NAFTA country weakens environmental protection to attract investment, for example, and that fully supports efforts to address climate change; third by adding a new chapter on gender rights, in keeping with our commitment to gender equality; fourth, in line with our commitment to improving our relationship with Indigenous peoples, by adding an Indigenous chapter; and finally by reforming the Investor-State Dispute Settlement process, to ensure that governments have an unassailable right to regulate in the public interest."
And yet the Trudeau government has not squared these promises with their evident lack of concern about Article 605 in NAFTA (the energy proportionality provision that locks in about 1.37 billion barrels of oil exports to the United States every year), their refusal to adopt the United Nations Declaration on the Rights of Indigenous Peoples into Canadian law (notably, its guarantee of the right to free, prior and informed consent on major resource extraction projects), nor this study that says its proposed ISDS reform would still allow for the most egregious NAFTA Chapter 11 challenges to proceed (including TransCanada's aborted challenge of the Obama administration's rejection of the Keystone XL pipeline).
Meanwhile, these toxic tailings ponds continue to leak. An Environment Canada study released in February 2014 estimated that one tailings pond dam was leaking 6.5 million litres of polluted a day into the groundwater. Modelling suggests that a total of 11 to 12.6 million litres of tailings leak from the tailings ponds each day.