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NAFTA Complaint Against Canada


In an effort to increase the pressure on the Canadian government to more aggressively enforce environmental laws in the oil sands, several environmental groups and individuals have submitted a complaint against the Government of Canada to the Commission for Environmental Cooperation under the North American Free Trade Agreement (NAFTA).

The complaint alleges that Canada is in breach of its commitment, under the North American Agreement on Environmental Cooperation (the “Agreement”), to enforce environmental laws, specifically, ss. 36(3) of the Canada Fisheries Act (no person shall deposit deleterious substances, such as those from oil sands tailings ponds, into waters that are or may be frequented by fish).

It is alleged that, despite a number of studies and documented cases of contaminated tailings substances migrating to waterways, the Canadian government has neither prosecuted any oil sands operator for surface water contamination nor regulated tailings pond leakage. The federal government relies on the Government of Alberta to alert it to possible violations of the Fisheries Act, and Alberta in turn relies principally on industry self-reporting. This practice, the complainants say, is inadequate.

The complaint goes on to describe the scientific evidence of tailings pond leakage, and sets out how Environment Canada is alleged to have failed in monitoring, investigating and enforcing ss. 36(3) of the Fisheries Act.

If the Commission for Environmental Cooperation accepts the submission, a formal investigation of the complaint will be launched. Ultimately, financial penalties could be levied against the Canadian government for non-compliance with the Agreement.

To view a full version of the submission to the Commission for Environmental Cooperation click here.

For advice on this or any other oil sands law topic please contact Ron Kruhlak in Edmonton, Gavin Fitch in Calgary, or any member of our Energy & Environmental Regulatory Practice Group.

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