Submission ID: SEM-98-004
Party concerned: Canada
Date filed: June 29, 1998
Submission Status: Closed
Latest Update: August 12, 2003
The final factual record was publicly released.
Summary of the matter addressed in the submission:
“The Submission identifies the systemic failure of the Government of Canada to enforce section 36(3) of the Fisheries Act to protect fish and fish habitat from the destructive environmental impacts of the mining industry in British Columbia. Sections 36(3) and 40(2) of the Fisheries Act make it an offence to deposit a toxic substance in water that is frequented by fish.” […] “Although this Submission will focus on the Tulsequah Chief, Mount Washington and Britannia mines, there are at least twenty other acid-generating mines in B.C. where violations of s. 36(3) of the Fisheries Act either may have occurred or may be occurring without any enforcement action being taken.” […] “A major factor contributing to Canada’s failure to enforce the Fisheries Act against the mining industry in B.C. is dramatic cuts to enforcement staff and resources at Environment Canada.” […] “Canada’s failure to enforce the Fisheries Act against the mining industry in B.C. has contributed to the salmon crisis currently gripping the West Coast.” […] “In addition, Canada’s failure to enforce the Fisheries Act against the mining industry in B.C. may be creating trade or market distortions.”
Summary of the response provided by the Party:
“Canada submits that it is effectively enforcing its environmental laws including subsection 36(3) of the Fisheries Act, 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 and should proceed no further as: · the assertions in the Submission concerning the enforcement of the Fisheries Act are the subject of pending judicial or administrative proceedings within the meaning of Article 14(3)(a) and Article 45(3)(a) of the NAAEC; · Canada is taking all necessary actions to ensure compliance with the pollution prevention provisions of the Fisheries Act; · Canada objects to the further consideration by the Secretariat of the Submission on the basis of Article 14(1)(e) of the NAAEC, in that the submitters did not provide Canada with a reasonable opportunity to respond to the concerns raised; · 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 1st , 1994; · private remedies (Article 14(2)(c) of the NAAEC) appear not to have been pursued; · 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:
Canadian Fisheries Act, s. 36(3) and s. 40(2)
Sierra Club of British Columbia Environmental Mining Council of British Columbia Taku Wilderness Association represented by Sierra Legal Defence Fund
The Secretariat received a submission and began a preliminary analysis of it under the guidelines.
Acknowledgement - Communication to Submitter(s) authored by Secretariat on 08/07/1998
Submission - Submission authored by Submitter(s) on 29/06/1998
The Secretariat began reviewing the submission under Article 14(1)
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 30/11/1998
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 25/06/1999
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 09/09/1999
Party Response - Response from the Party under Article 14 (3) authored by Canada on 08/09/1999
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 11/05/2001
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 16/11/2001
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 14/12/2001
The Secretariat posted a request for information relevant to the factual record on its web site.
Secretariat Information Request - Document related to the preparation of a Factual Record authored by Secretariat on 07/02/2002
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 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 07/08/2003
The final factual record was publicly released.
Final Factual Record - Final Factual Record authored by Secretariat on 27/06/2003