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

Submitter(s):

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