Summary of the matter addressed in the submission:

The Submitters assert that “the Government of Canada is failing 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.”  According to the Submitters, tailings ponds contain substances that are deleterious to fish, including napthethenic acids, ammonia, benzene, cyanide, oil and grease, phenols, toluene, polycyclic aromatic hydrocarbons (PAHs), arsenic, cooper and iron. The Submitters contend that, according to industry data, the tailings are leaking four billion liters each year and that an independent study reported that “oil sands process-affected water is reaching the [Athabasca] river system.” The Submitters maintain that “the Canadian federal government is on record several years ago with concerns regarding contaminated tailings leakage in the area” and that the existing Regional Aquatic Monitoring Program, “has been discredited as scientifically inadequate.”

In 2010 a related submission, SEM-10-002 (Alberta Tailings Ponds), was filed with the Secretariat and, in January 2015, the Council unanimously instructed the Secretariat not to prepare a factual record. In reasons accompanying the Council resolution, Canada and Mexico found that a criminal complaint filed by a private citizen before the Alberta Provincial Court concerning matters related to the submission constituted a pending proceeding under the North American Agreement on Environmental Cooperation (NAAEC), notice of which required the Secretariat to proceed no further with the submission.

Summary of the response provided by the Party:

In its response to the Secretariat, in accordance with NAAEC Article 14(3), the Government of Canada states that it “provides information concerning the Government of Canada’s enforcement of the pollution prevention provisions of the Act in the Alberta oil sands region. Specifically, the response explains the results of Environment and Climate Change Canada’s (ECCC) most recent proactive inspections at oil sands tailings ponds, which were a national enforcement priority between 2009 and 2014. In addition, the legal and scientific justifications for transitioning to a reactive enforcement approach in 2014 are discussed. The roles of the federal and provincial governments are outlined as well.”

Canada further states that “[f]rom 2009 to 2014, ECCC’s Enforcement Branch, in collaboration with its Science and Technology Branch, conducted proactive enforcement activities at various tailings ponds in Alberta. During this period, ECCC conducted onsite inspections at seven tailings ponds, including at the sites highlighted by the submitters in the submission. Following their inspections, enforcement officers, in consultation with ECCC’s scientists, determined that they did not have reasonable grounds to believe that there were violations of the pollution prevention provisions of the Act for any of the inspections conducted. The main reason for this, was that when deleterious substances were found in groundwater samples, enforcement officers could not determine if they came from natural or anthropogenic (i.e. oil sands industrial activity) sources; officers were not able to establish that a person deposited or permitted the deposit of a deleterious substance.”

Canada concludes in its response that “[i]t is the Government of Canada’s position that ECCC’s actions in the oil sands region, including its record of inspection and its continuing scientific research demonstrate Canada’s effective enforcement of the pollution prevention provisions of the Fisheries Act.”

Names and citations of the environmental laws in question:

Canadian Federal Fisheries Act, R.S.C. 1985, c. F-14, ss. 36(3),(4),(5); 40(5)(a).

Submitter(s):

Environmental Defence Canada, Natural Resources Defense Council and Daniel T'seleie.

Represented by: Environmental Defence Canada.

Submission Timeline

June 26, 2017

The Secretariat received a submission and began a preliminary analysis of it under the guidelines.

Submission - Submission authored by Submitter(s) on 26/06/2017

Acknowledgement - Communication to Submitter(s) authored by Secretariat on 26/06/2017

Annex - Other document authored by Canada on 26/06/2017

Annex - Other document authored by Individual or entity named in submission on 26/06/2017

Annex - Other document authored by Submitter(s) on 26/06/2017

Annex - Other document authored by Individual or entity named in submission on 26/06/2017

Annex - Other document authored by Individual or entity named in submission on 26/06/2017

Annex - Other document authored by Individual or entity named in submission on 26/06/2017

Annex - Other document authored by Individual or entity named in submission on 26/06/2017

Annex - Other document authored by Individual or entity named in submission on 26/06/2017

Annex - Other document authored by Canada on 26/06/2017

Annex - Other document authored by Individual or entity named in submission on 26/06/2017

Annex - Other document authored by Individual or entity named in submission on 26/06/2017

Annex - Other document authored by Individual or entity named in submission on 26/06/2017

Annex - Other document authored by Canada on 26/06/2017

Annex - Other document authored by Canada on 26/06/2017

Annex - Other document authored by Individual or entity named in submission on 26/06/2017

Annex - Other document authored by Individual or entity named in submission on 26/06/2017

Annex - Other document authored by Canada on 26/06/2017

Annex - Other document authored by Submitter(s) on 26/06/2017

Annex - Other document authored by Individual or entity named in submission on 26/06/2017

Annex - Other document authored by Individual or entity named in submission on 26/06/2017

Annex - Other document authored by Submitter(s) on 26/06/2017

August 16, 2017

The Secretariat determined that the submission met the criteria of Article 14(1) and requested a response from the concerned government Party in accordance with Article 14(2).

Determination - Secretariat Determination under Article 14 (1) and 14 (2) authored by Secretariat on 16/08/2017

November 10, 2017

The Secretariat received a response from the concerned government Party and began considering whether to recommend a factual record.

Party Response - Response from the Party under Article 14 (3) authored by Canada on 10/11/2017

Annex - Other document authored by Canada on 10/11/2017

Annex - Other document authored by Canada on 10/11/2017

Annex - Other document authored by Canada on 10/11/2017

Annex - Other document authored by Canada on 10/11/2017

Annex - Other document authored by Canada on 10/11/2017

Annex - Other document authored by Canada on 10/11/2017

Acknowledgement - Other document authored by Secretariat on 10/11/2017

April 19, 2018

The Secretariat informed Council that the Secretariat considers that the submission warrants development of a factual record.

Recommendation - Secretariat Notification to Council under Article 15(1) authored by Secretariat on 19/04/2018

August 20, 2018

The Council voted to instruct the Secretariat to develop a Factual Record.

Resolution - Council decision concerning the development of a Factual Record authored by Council on 20/08/2018

Other Documents - Council decision concerning the development of a Factual Record authored by Council on 20/08/2018

August 29, 2018

The Secretariat placed a work plan on its web site or otherwise made it available to the public and stakeholders.

Workplan - Overall workplan for Factual Record authored by Secretariat on 29/08/2018

December 27, 2018

The Secretariat posted a request for information relevant to the factual record on its web site.

Secretariat Information Request - Secretariat request for information for Factual Record authored by Secretariat on 27/12/2018

October 21, 2019

The Secretariat submitted a draft factual record to Council, for a 45-day comment period on the accuracy of the draft.

December 24, 2019

The Council, the Party, or the Secretariat provided a written explanation in accordance with Guideline 19.9.

Other Documents - Communication to Submitter(s) authored by Secretariat on 30/12/2019

January 7, 2020

The Secretariat received comments from the United States.

January 17, 2020

The Secretariat received comments from Mexico.

January 23, 2020

The Secretariat received comments from Canada.

March 13, 2020

The Secretariat submitted a final factual record to Council for Council's vote on whether to make the final factual record publicly available.

May 6, 2020

The Council, the Party, or the Secretariat provided a written explanation in accordance with Guideline 19.9.

Other Documents - Communication to Submitter(s) authored by Secretariat on 06/05/2020