The Harper Government Is Derailing a NAFTA Investigation into Tar Sands Pollution

The feds want to kill an international investigation into water pollution around Alberta's oil patch. Will they succeed? Probably. Does it look bad? Definitely.

In 2010 a NAFTA watchdog called the Commission for Environmental Cooperation (CEC) received a complaint about tailings ponds. The filing alleges Canada failed to enforce its own Fisheries Act by allowing oil companies to leak "deleterious substances" into Alberta's fish-bearing water systems. It estimates four billion litres of toxic liquid seeps out of unlined wastewater ponds into rivers and groundwater every year.

That was five years ago. "The impacts we think are pretty substantial," said Dale Marshall of Environmental Defence, one of two organizations named in the complaint. "These are rivers that people depend upon for fresh water and for fish." Industry says monitoring is in place and that seepage is "very low."

On Monday CBC outlined the tar sands investigation's precarious future. After years of bureaucratic back-and-forth, Environment Canada told CBC's Margo McDiarmid the wastewater inquiry was "terminated" in December 2014. But that comment was wrong—or at least premature.

As of this morning the filing remains open, though Environment Canada spokesperson Danny Kingsberry maintains a ruling is imminent. "The Commission for Environmental Cooperation council is expected to make a decision on the Alberta tailings ponds [investigation] shortly," he wrote in an email on Tuesday.

Some context: CEC is an independent agency born out of NAFTA agreements between the US, Mexico and Canada in 1994. Its mandate is to look into the three countries and see if they're upholding local environment laws. The commission doesn't have the power to punish governments that break their own laws, but the watchdog's "factual records" can potentially serve as evidence in domestic efforts to sue governments or polluters.

To get a green light, two of the three countries need to vote in favour of the investigation. For some smart lawyerly reason there's at least one caveat: these fact-finding missions can't proceed if an active court case is dealing with the same issue and law.

Canada used this rule to close a CEC complaint about British Columbian salmon farms in September 2014, and it's used the same rule to stall the water pollution in Alberta, too. In a letter to the watchdog, Environment Canada cited a then-active hearing: Tony Boschmann v. Suncor.

"I can confirm that the matter at issue in the Boschmann case is the same as the Alberta Tailings Ponds submission and that the Boschmann case will remain active in the Alberta court system until August 24, 2014," wrote assistant deputy minister Dan McDougall in May 2014, requesting the agency "cease this analysis."

Environment Canada has repeated the "pending court case" argument, even after the Boschmann case has been closed and the deadline for appeals passed. Sources close to the case confirmed it's 100 percent over, and definitely not standing in the way of an international probe.

When asked about this, Kingsberry repeated Environment Canada's stance from last summer, but in past tense: "Canada opposed this examination because at the time the request was made, there was an ongoing court case on the matter in Canada," reads his emailed statement. "The Commission does not examine matters that are the subject of a domestic court case under its rules."

It's entirely possible there's a new pending court case involving both tailings ponds and Section 36.3 of the Fisheries Act, but Kingsberry wouldn't say anything about it.

Environment Canada's own scientists have already studied tailings pond leaks, by the way. Research published in the journal Environmental Science and Technology "fingerprinted" chemical compounds found in two wastewater ponds, and cross-referenced them with nearby groundwater samples. The sampling "implies a common source" according to the study's abstract, suggesting "affected groundwater is reaching the river system."

Marshall sees a certain irony in Canada's aggressive attempts to derail this particular investigation. For one, it's sparked chatter about a little-known international watchdog. And two, it makes Canada seem hungry for a hat trick; if Environment Canada convinces the US or Mexico to reject the tailings pond case, we'll have dodged three CEC probes in one year. The commission has only rejected four factual records over its 20-year history.

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