https://www.desmog.ca/2017/11/17/canada-tells-nafta-leaky-oilsands-tailings-ponds-challenge-prove-despite-existing-federal-study
[links in on-line article]
Canada Tells NAFTA Leaky Oilsands Tailings Ponds a ‘Challenge’ to Prove,
Despite Existing Federal Study
By James Wilt • Friday, November 17, 2017 - 14:55
There’s no telling if the 220 square-kilometres of unlined tailings
ponds in the Alberta oilsands are leaking contaminated waste into nearby
water sources, according to the government of Canada.
That claim was made in an official response to NAFTA’s Commission for
Environmental Cooperation despite strong scientific evidence suggesting
a clear linkage between the oilsands’ 1.3 trillion litres of fluid
tailings and the contamination of local waterways.
The response comes after a June 2017 submission by two environmental
organizations and a Dene man alleging the federal government was failing
to enforce a section of the Fisheries Act that prohibits the release of
a “deleterious substance” into fish-frequented waters.
The NAFTA commission has 120 working days to determine whether the case
has merit in light of Canada’s latest claims.
While Ottawa acknowledged in its response that nearby waters had a
higher-than-average rate of contamination, it maintained that proving
its source is “scientifically and technically challenging as methods for
their analysis have not been available.”
Creating a sense doubt about the facts is a “flimsy” defence, Dale
Marshall, national program manager with Environmental Defence, one of
the environmental organizations bringing the case, told DeSmog Canada.
“The evidence is pretty strong that these are coming from tailings.”
Multiple Studies Conducted by Federal Scientists Detect Tailings Leakage
Many studies have indeed been done to assess the impacts of tailings
waste on nearby waters.
An internal memo delivered to then-natural resources minister Joe Oliver
and obtained in 2013 by investigative reporter Mike De Souza shows that
federal scientists had discovered a clear presence of tailings toxins in
local water sources.
The memo described that “the studies have, for the first time, detected
potentially harmful, mining-related organic acid contaminants in the
groundwater outside a long-established out-of-pit tailings pond.”
These findings weren’t the first.
A 2008 study commissioned by Environmental Defence pegged the number of
tailings leakage at 11 million litres a day, potentially reaching 72
million litres per day by 2012.
Then, in 2010, a journal article co-authored by limnologist David
Schindler pointed to “tailings pond leakage or discharge as sources” of
toxic pollutants in the Athabasca River. That was confirmed in 2014,
again by federal scientists, with an entry in the journal Environmental
Science and Technology that identified a “chemical fingerprint” distinct
from natural rates.
“They found also not only are those tailings ponds leaking, but it looks
like it is flowing pretty much from those tailings ponds, through the
ground and into the Athabasca River,” oilsands advisory committee member
and environmental scientist Bill Donahue told the CBC in an interview.
Marshall added oilsands companies documents have also indicated that
tailings ponds leak and estimate the leakage expected to occur over time.
This has resulted in growing concerns in nearby Indigenous communities,
including Fort Chipewyan where anomalous cancer rates have plagued the
small community. But a lack of meaningful research has meant the
community has been left without answers or recourse.
“The fact of the matter is that there are increasing levels of
contaminants,” Melody Lepine, member of Mikisew Cree First Nation and
co-chair of the Oil Sands Advisory Group, told DeSmog Canada. “They’re
very dangerous.
“My community downstream has significant concerns about their health,
the health of the ecosystem, impacts to birds and wildlife,” she added.
“It’s troubling to know after 50 years there’s still not enough data and
research and management of tailings ponds.”
‘Precautionary Principle’ Means Government Must Act in Absence of
Definite Proof
Environment and Climate Change Canada is committed to applying the
“precautionary principle.”
As described by the federal department, that means that “where there are
threats of serious or irreversible damage, lack of full scientific
certainty shall not be used as a reason for postponing cost-effective
measures to prevent environmental degradation.”
Those concerned about tailings leakage say the issue appears to be a
perfect example of when that principle ought to be applied.
“Let’s just say the evidence is not as strong as it is,” Marshall said.
“Even then — and I would call the contamination of Alberta’s rivers and
increased cancer rates in downstream Indigenous communities serious
environmental issues — the government’s stated principle is it’s not
going to let uncertainty prevent them for acting to address those
serious concerns.”
But the federal government has not taken that approach.
In 2013, Environment and Climate Change Canada decided there wasn’t
enough evidence to prove violations of the “pollution prevention
provisions” of the Fisheries Act and eliminated the on-site inspections
of seven tailings ponds.
While inspectors still respond to specific complaints, they no longer
proactively monitor the area for violations of the law.
In its recent response to NAFTA the government explained that “officers
were not able to establish that a person deposited or permitted the
deposit of a deleterious substance” due to an unavailability of
scientific tools.
Federal Government Ultimately Responsible for Violation of Federal Laws
Canada told the NAFTA environment committee the government is managing
the tailings ponds in “a manner consistent with its domestic laws” and
that it was justified in reallocating investigators to other issues
deemed to have “a greater impact on the environment.
The federal submission claimed, “Canada’s enforcement actions are
effective.”
The federal Liberal government pledged in its 2015 election platform to
“treat our freshwater as a precious resource that deserves protection
and careful stewardship.”
Lepine, who was raised in Fort Chipewyan, one of the communities most
affected by oilsands developments, said she is disappointed the position
of government on the tailings issue hasn’t changed — despite a change in
leadership at both the provincial and federal levels.
“I was optimistic we had these changes in government,” Lepine said. “But
really, nothing has changed since both of them have taken office. I’m
not convinced they take this issue very seriously.”
Behind the scenes, a jurisdictional tug-of-war is at play, Lepine said.
“They’re pointing fingers at each other.”
Yet enforcement of the Fisheries Act is ultimately the responsibility of
the federal government.
If the province isn’t regulating in a way that prevents violations of
federal laws, then it’s the responsibility of Ottawa to intervene,
Marshall said.
“Yes, there are agreements made between the federal government and
provinces. But that doesn’t mean the federal government can just wash
its hand of it,” he said.
“[The federal government] is still the last stop between environmental
degradation and the violation of federal laws.”
Environmental Tribunal Has 120 Days to Decide Next Steps
NAFTA’s Commission for Environmental Cooperation has 120 working days to
review Canada’s submission and the merits of the original case.
Following that, the commission has 60 working days to schedule a vote
between the environment ministers of Canada, the U.S. and Mexico.
If two-thirds of the countries vote to advance the case, a “factual
record” of the issue will be prepared. A factual record has no binding
legal consequences and would simply serve as a “name and shame” document
on the public record.
Lepine said in the past Canada has taken action in response to
international scrutiny.
On Wednesday, the International Union for Conservation of Nature
declared the Wood Buffalo National Park — located just north of the
oilsands — as one of the most threatened World Heritage Sites in North
America.
“We wouldn’t have to do all these things if we thought Canada and
Alberta were taking our concerns seriously,” Lepine said. “I’m hopefully
that through this international forum they get that extra push. But
we’ll see.”
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https://www.desmog.ca/2017/08/22/what-you-need-know-about-nafta-s-investigation-oilsands-tailings-leaks
What You Need to Know About NAFTA’s Investigation into Oilsands Tailings
Leaks
By James Wilt • Tuesday, August 22, 2017 - 17:03
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.”
