Government of Canada has failed to effectively enforce subsection 36(3) of the Canadian Fisheries Act

On 29 July 2014, the Secretariat of the Commission for Environmental Cooperation (CEC) issued a notification in regard to submission SEM-10-002 (Alberta Tailings Ponds), recommending to the Council of the CEC that a factual record is warranted. Specifically, the Secretariat recommends development of a factual record with regard to assertions that Canada is failing to effectively enforce subsection 36(3) of the federal Fisheries Act, in relation to alleged leakage of deleterious substances from oil sands tailings ponds into fish-bearing waters in northern Alberta.

The Secretariat is now authorized to make this notification public.

The submission was filed in 2010 by one nongovernmental organization in the United States, one in Canada, and three individuals in Canada.

The Secretariat will develop a factual record if two or more members of the Council—the CEC’s governing body, composed of the highest-ranking environmental officials of Canada, Mexico, and the United States—so decide by 27 October 2014.

Articles 14 and 15 of the North American Agreement on Environmental Cooperation (NAAEC) allow the CEC Secretariat to consider a submission from members of the public and non-governmental organizations concerning the effective enforcement of environmental law by a NAAEC Party (Canada, Mexico, or the US). The CEC has published Guidelines for Submissions on Enforcement Matters explaining the steps in the process.

For further information, please visit the CEC Submissions on Enforcement Matters website atwww.cec.org/submissions, and the registry of submission SEM-10-002 (Alberta Tailings Ponds).

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Press release August 7, 2014 – Government of Canada has failed to effectively enforce subsection 36(3) of the Canadian Fisheries Act with respect to the leaking of deleterious substances from oil sands tailings.

Background and History

North American Agreement On Environmental Cooperation Is a environmental side agreement of the North American Free Trade Agreement (NAFTA) between United States, Canada and Mexico signed in 1994/95.

The Commission for Environmental Cooperation (CEC)

The Council is the CEC’s governing body and is composed of the highest-level environmental authorities (cabinet level or equivalent) from Canada, Mexico, and the United States.

The Council oversees the implementation of the North American Agreement on Environmental Cooperation (NAAEC) and serves as a forum for the discussion of environmental matters within the scope of the Agreement

Articles 14 and 15 of the North American Agreement on Environmental Cooperation (NAAEC) allow the CEC Secretariat to consider a submission from members of the public and non-governmental organizations concerning the effective enforcement of environmental law by a NAAEC Party (Canada, Mexico, or the US).

Submission to the CEC Secretariat Alberta Tar Sands Tailing Ponds

Montreal, 7 August 2014— On 29 July 2014, the Secretariat of the Commission for Environmental Cooperation (CEC) issued a notification in regard to submission SEM-10-002 (Alberta Tailings Ponds), recommending to the Council of the CEC that a factual record is warranted. Specifically, the Secretariat recommends development of a factual record with regard to assertions that Canada is failing to effectively enforce subsection 36(3) of the federal Fisheries Act, in relation to alleged leakage of deleterious substances from oil sands tailings ponds into fish-bearing waters in northern Alberta.

The submission was filed in 2010 by one nongovernmental organization in the United States, one in Canada, and three individuals in Canada.

The Secretariat will develop a factual record if two or more members of the Council—the CEC’s governing body, composed of the highest-ranking environmental officials of Canada, Mexico, and the United States—so decide by 27 October 2014.

For further information, please visit the CEC Submissions on Enforcement Matters website atwww.cec.org/submissions, and the registry of submission SEM-10-002 (Alberta Tailings Ponds).

Summary of the Submission – highly recommended you read the full submission
http://www.cec.org/Storage/94/9169_10-2-RSUB-PUBLIC_en.pdf

SUBMISSION TO THE COMMISSION FOR ENVIRONMENTAL COOPERATION

Pursuant to Article 14, NORTH AMERICAN AGREEMENT ON ENVIRONMENTAL COOPERATION September 28, 2010

THE SUBMITTING ORGANIZATIONS AND INDIVIDUALS

Matt Price, Policy Director, Environmental Defence Canada
Toronto, ON M5V 1P9 Canada mjprice@environmentaldefence.ca

Susan Casey-Lefkowitz, Senior Attorney,Natural Resources Defense Council
Washington, DC 20005, sclefkowitz@nrdc.org

John Rigney [Contact details confidential]

Don Deranger [Contact details confidential]
Daniel T’seleie [Contact details confidential]

I. SUMMARY OF SUBMISSION

This submission requests that the Commission on Environmental Cooperation prepare a factual record regarding the allegation that the Government of Canada has failed to effectively enforce subsection 36(3) of the Canadian Fisheries Act with respect to the leaking of deleterious substances from oil sands tailings ponds into surface waters and the groundwater of Northeast Alberta.

Oil sands tailings ponds result from the extraction of bitumen from mined oil sands
deposits in Northern Alberta. The tailings ponds currently have a surface area of 130
square kilometers (50 square miles), with a volume of 720 billion litres (190 billion
gallons).

Tailings ponds contain a large variety of substances that are deleterious to fish, including naphthenic acids, ammonia, benzene, cyanide, oil and grease, phenols, toluene, polycyclic aromatic hydrocarbons, arsenic, copper and iron.

Tailings ponds are constructed from the earthen materials that oil sands companies mine from the area. They are not lined and therefore leak contaminated substances into the environment. Companies attempt to recapture the leakage, but do not recapture it all.

There are documented cases of contaminated tailings substances reaching or projected to
reach surface waters in Jackpine Creek (from Shell), Beaver Creek (from Syncrude),
McLean Creek (from Suncor) and the Athabasca River (from Suncor).

With regards to the groundwater, one study used industry data to estimate that the tailings ponds already leak four billion litres (1 billion gallons) each year, with projections that this figure could reach over 25 billion litres (6.6 billion gallons) within a decade should proposed projects go ahead. This contamination can migrate to reach surface waters due to a hydrogeological setting that is punctuated by downcutting glacial and post-glacial meltwater channels and modern stream courses.

Subsection 36(3) of the Canadian federal Fisheries Act establishes a general prohibition on the deposition of deleterious substances into waters frequented by fish.

The Canadian federal government is on record several years ago with concerns regarding contaminated tailings leakage in the area, and has been present at environmental assessment hearings when companies have projected surface water contamination and water quality degradation.

The Canadian government has neither prosecuted any company for documented surface water contamination, nor has it pursued regulation governing tailings pond leakage. It relies on the Government of Alberta to alert it to possible violations of the Fisheries Act, and Alberta in turn relies on industry self-reporting. An industry-funded regional water monitoring body that Canada relies on – the Regional Aquatic Monitoring Program – has been discredited as scientifically inadequate and for failing to identify significant water pollution in the region.

II. SUBSECTION 36(3) OF THE FISHERIES ACT

A. Subsection 36(3) of the Fisheries Act

Subsection 36(3) of the Canadian federal Fisheries Act deals with pollution prevention, and establishes a general prohibition on the deposition of “deleterious substances” into waters frequented by fish.

Response to the above submission by the Secretariat of the Commission for Environmental Cooperation

http://www.cec.org/Storage/158/18751_10-2-ADV_en.pdf

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