The weakening of Canada’s environmental protection laws – an obsolete NAFTA to blame?

On 27 January 2015, the Council for the Commission of Environmental Cooperation (CEC), NAFTA’s environmental arm, unanimously elected to prevent an investigation meant to assess Canada’s poor environmental management record as it pertains to the continuous leaking of tailings ponds into the Athabasca River1. Two non-governmental organizations and three private citizens filed the complaint with the CEC in September 2010, alluding to the federal government’s failure at enforcing the Federal Fisheries Act1.

Dale Marshall, National Energy Program Manager with Environmental Defence, explains2:

http://globalnews.ca/video/embed/1801750/

“The blow is to the people who are being affected by toxic pollution and whose government just turned their back on” Dale Marshall, Environmental Defence2

The CEC’s recent decision to thwart public scrutiny of an ecologically devastating issue of long date is the third occurrence of its kind within the last year3. The irresponsibility, lack of transparency, and political biases introduced by the inability of NAFTA’s signatories to see this investigation through hints not only at the federal government’s conflict of interests with the tar sands industry, but also at NAFTA’s growing ineptitude and obsolescence with respect to the enforcement of existing environmental laws in Canada.

Established in the wake of NAFTA’s inception in 1994, the CEC is a tripartite inter-jurisdictional review body mandated to support the protection, conservation, and enhancement of environmental concerns4,5. It does so through the production of citizen- and NGO-driven inquiries, called factual records, into Canadian, Mexican or American governmental behaviours deemed neglectful of their environmental policies5. The CEC was created as a safeguard to ensure the free trade agreement did not result in the creation of pollution havens, a race-to-the-bottom for environmental standards, and an increase in environmental impacts6.

As multiple examples suggest, however, NAFTA is riddled with inherent weaknesses which, taken together, have strongly contributed to the regressive environmental platform that now typifies the federal Canadian context.

Alberta’s booming oil and gas industry is the poster child of post-NAFTA economic growth in Canada, with industry pressures routinely exerting their stronghold over Canadian federal policy direction. The budget cuts of 2009, 2010, and 2012, introduced under alluring aliases like Jobs and Growth, have repeatedly gutted key environmental acts, introducing changes that proposed the elimination of the “legal protection of navigation on 99 per cent of Canada’s lakes and rivers”7, that exempt “certain pipeline projects from the requirement to respect reasonable measures to protect critical habitat of species protected under SARA [Species At Risk Act]”6, that have weakened the CEAA, and that eased tolerable levels of harm incurred to fish or fish habitat as per the Federal Fisheries Act6. Canada formally abandoned its Kyoto obligations to reduce greenhouse gas emissions (GHG) in 20116, and repealed the Kyoto Protocol Implementation Act in 20127. Environment Canada’s overall funds were cut by nearly 30 per cent by the 2014 budget8.

The CEC’s decision thus comes with much frustration but as no surprise. In its twenty years of generating factual records, the CEC has put forth 29 votes on petitions9. Only five of those votes resulted in the outright rejection of an investigation – three of which have befallen Canadian practices in the last 12 months10. In 2014, motions registered with the CEC to report on the lack of protection of polar bears under the Species at Risk Act and on the violation of the Federal Fisheries Act through harmful fish farming practices off the coast of British Columbia were successfully vetoed with the same nonchalance seen with the Alberta tailings case10. Perhaps the time has come to recognize the obsolescence of our trade agreements, their affiliate organizations, and the policy space they occupy.

 Source11

References:

1 Commission for Environmental Cooperation. Alberta Tailings Ponds. Registry of Submissions. Update 27 January 2015. Available from http://www.cec.org/Page.asp?PageID=2001&ContentID=2864 Accessed 8 February 2015

2 Global News. NAFTA Watchdog Won’t Investigate Oilsands. Released on 29 January 2015. Available from http://globalnews.ca/video/1801750/nafta-watchdog-wont-investigate-oilsands/ Accessed on 8 February 2015.

3 Schindler, D.W. (2014). Unravelling the complexity of pollution by the oil sands industry. Proceedings of the Natural Academy of Science, 111(9), 3209-3210.

4 Garver, G. & Podhora, A. (2008). Transboundary Environmental Impact Assessment as Part of the North American Agreement on Environmental Cooperation. Impact Assessment and Project Appraisal, 26(4), 253-263.

5 Commission for Environmental Cooperation. (2014). About the CEC. Available from http://www.cec.org/Page.asp?PageID=1226&SiteNodeID=310&BL_ExpandID=878 Accessed on 8 February 2015.

6 Garver, G. (n.d.). Forgotten Promises: Neglected Environmental Provisions of the NAFTA and the North American Agreement on Environmental Cooperation. Available from www.cec.org/Storage/150/17599_NAFTA_book_chapter.docx Accessed 8 February 2015.

7 Johnston, A. Canada Gutting its International Reputation Along with its Environmental Laws. West Coast Environmental Law. Posted on 14 November 2013. Available from http://wcel.org/resources/environmental-law-alert/canada-gutting-its-international-reputation-along-its-environmenta Accessed 8 February 2015.

8 Nikiforuk, N. Facing Millions in Cuts, Environment Canada Prepares to Get Lean. The Tyee. Posted on 15 March 2014. Available from http://thetyee.ca/News/2014/03/15/Environment-Canada-Cuts/ Accessed on 8 February 2015.

9 Skene, J. (2015). Failure to Investigate Tailings Ponds Sends the Wrong Signals on NAFTA Environmental Oversight. Tar Sands Solution Network. Available from http://tarsandssolutions.org/member-blogs/failure-to-investigate-tailings-ponds-sends-the-wrong-signals-on-nafta-envi Accessed 8 February 2015.

10 McDiarmid, M. NAFTA scrutiny of oilsands tailings ponds opposed by Canada. CBC News, Politics. Posted on 12 January 2015. Available from http://www.cbc.ca/news/politics/nafta-scrutiny-of-oilsands-tailings-ponds-opposed-by-canada-1.2896100 Accessed on 8 February 2015.

11 Libby, H. & Linnitt, C. (2013). Fort McMurray, Home to 176 Square km of Tar Sands Tailings Ponds, Overwhelmed by Floods. Desmog Canada. Available here http://www.desmog.ca/2013/06/11/fort-mcmurray-home-176-square-km-tar-sands-tailings-ponds-overwhelmed-floods Accessed 9 February 2015.

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