Submission ID: SEM-97-001
Party concerned: Canada
Date filed: April 2, 1997
Submission Status: Closed
Latest Update: June 12, 2000
The final factual record was publicly released.
Summary of the matter addressed in the submission:
The Submitters allege that the Canadian Government is failing to “enforce s. 35(1) of the Fisheries Act, and to utilize its powers pursuant to s. 119.06 of the National Energy Board Act, to ensure the protection of fish and fish habitat in British Columbia’s rivers from ongoing and repeated environmental damage caused by hydro-electric dams.” According to the Submitters, “the Department of Fisheries and Oceans (“DFO”) has only laid two isolated charges pursuant to sections 35(1) and 40(1) against Hydro since 1990, despite clear and well documented evidence that Hydro’s operations have damaged fish habitat on numerous occasions.” According to the Submitters, Hydro’s operations “are being exempted from the application of Canadian environmental laws by the Federal Government’s failure to enforce the Fisheries Act” and such “exemption gives Hydro an unfair competitive advantage over U.S. hydropower producers.” The Submitters further allege that the National Energy Board “recently refused to examine the environmental impacts of the production of electricity for exportation, despite receiving evidence of those impacts from the B.C. Wildlife Federation” and thereby “invalidly refused to exercise its mandatory statutory jurisdiction to examine the environmental impacts of the production of power for export.”
Summary of the response provided by the Party:
Canada supports the NAAEC process for submissions on enforcement matters, and considers Articles 14 and 15 to be among the most important provisions of the treaty. Canada submits that it is enforcing its environmental laws, and is in full compliance with its obligations under the NAAEC. Therefore, Canada submits that, in this instance, the development of a factual record is unwarranted as: ·the assertions concerning the enforcement of the Fisheries Act are the subject of pending judicial or administrative proceedings within the meaning of Article 14(3)(a); ·Canada is fully enforcing the environmental provisions of the Fisheries Act, and the National Energy Board (NEB) has properly exercised its power under the National Energy Board Act; ·the provisions of the NAAEC cannot be applied retroactively to assertions of a failure to effectively enforce environmental laws prior to the coming into force of the NAAEC on January 1, 1994. Furthermore, the Fisheries Act cannot be applied retroactively; and the development of a factual record would not further the objectives of the NAAEC given the detailed information provided in this response.
Names and citations of the environmental laws in question:
1. Fisheries Act, R.S.C. 1985, c. F-14, s. 35(1)
2. National Energy Board Act, R.S.C. 1985, c. N-7 s. 119.06
B.C. Aboriginal Fisheries Commission, British Columbia Wildlife Federation, Trail Wildlife Association, Steelhead Society, Trout Unlimited (Spokane Chapter), Sierra Club (US), Pacific Coast Federation of Fishermen's Association, Institute for Fisheries Resources
The Secretariat received a submission and began a preliminary analysis of it under the guidelines.
Acknowledgement - Other document authored by Secretariat on 02/04/1997
Submission - Submission authored by Submitter(s) on 02/04/1997
The Secretariat determined that the submission met the Article 14(1) criteria and the Secretariat began considering whether to request a response from the concerned government Party.
Determination - Secretariat Determination under Article 14 (1) authored by Secretariat on 01/05/1997
The Secretariat determined that the submission met the Article 14(2) criteria and requested a response from the concerned government Party.
Determination - Secretariat Determination under Article 14(2) authored by Secretariat on 15/05/1997
The Secretariat received a response from the concerned government Party and began considering whether to recommend a factual record.
Acknowledgement - Other document authored by Secretariat on 22/07/1997
Party Response - Response from the Party under Article 14 (3) authored by Canada on 21/07/1997
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 27/04/1998
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 24/06/1998
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 18/12/1998
The Secretariat submitted a draft factual record to Council, for a 45-day comment period on the accuracy of the draft.
The Secretariat received comments from the United States.
The Secretariat received comments from Mexico.
The Secretariat received comments from Canada.
The Secretariat submitted a final factual record to Council for Council's vote on whether to make the final factual record publicly available.
Council voted to instruct the Secretariat to make the final factual record publicly available.
Resolution - Council decision on whether the factual record will be made publicly available authored by Council on 11/06/2000
The final factual record was publicly released.
Final Factual Record - Final Factual Record authored by Secretariat on 11/06/2000