NAFTA to Canada: Face the Facts on Tar Sands Tailings Ponds

NAFTA’s Commission for Environmental Cooperation (CEC) has now determined that Canada is missing key facts to support its weak response to our petition, which urged investigation into the lack of enforcement of the country’s Fisheries Act. For years, Canada has failed to protect the health and safety of Indigenous communities and their environments from the impacts of toxins leaking from tar sands tailings ponds, which store more than 1 trillion liters of toxic waste. This inability to act has resulted in rare forms of cancer for local residents in what is now Northeast Alberta, including Indigenous Peoples, such as the Athabasca Chipewyan First Nation (AFCN) and the Mikisew Cree First Nation (MCFN). Not to mention the rising burden on taxpayers to clean up the mess. The time has long passed for Canada and the province of Alberta to take action to address this mounting environmental catastrophe.

To hold Canada accountable, the Natural Resources Defense Council (NRDC), Environmental Defence Canada (EDC) and Daniel T’seleie of the K’ahsho Got’ine Dene First Nation filed a petition in June 2017 to the CEC, NAFTA’s environmental tribunal. Environment and Climate Change Canada (ECCC) responded in November, using a flimsy cover to cast doubt upon the case. Canada asserted that contamination may have been the result of “natural” causes, rather than the lethal byproduct of extracting oil from tar sands. Nonetheless, recent studies confirm that tar sands bitumen has a unique environmental fingerprint, found in nearby waters polluted by petrochemical waste products.

Canada contends that tailings ponds are designed and engineered to seep. The idea is ostensibly that solid material “settles to the bottom” so that trenches intercept it before reaching surface waters. However, EDC’s analysis of industry data demonstrated that a single pond can leak up to 6.5 million liters per day (seepage amounting to a whopping 11 million liters per day in aggregate). In fact, Canada’s own so-called “proactive” inspections—at six out of seven tar sands tailings ponds from 2009-2013—registered at least 15 samples with excessive levels of deleterious substances, including naphthenic acids, ammonia, arsenic, zinc, chloride and oil sands processed water (OSPW).

As the CEC Secretariat points out, Canada’s response offered more questions than answers.

“The Secretariat has concluded that Canada’s response leaves open central questions that the Submission raises regarding enforcement of section 36(3) in connection with discharges of deleterious substances to fish-bearing waters from oil sands tailings ponds.”

Now, the Secretariat recommends that Canada must offer further evidence to support their dubious claims in order to develop a “factual record.” Specifically, Canada needs to explain why the preponderance of toxic substances discovered in their own inspections did not provide reasonable grounds for further enforcement activities. Canada has had several such tools of inspection and investigation available under the Fisheries Act, in addition to prosecution. Therefore, the Secretariat has recommended that Canada should present the following information regarding effective enforcement (Article 15(1), 17):

1. information collection tools, such as inspector directions and orders, Ministerial orders, and search warrants;
2. the consideration of refocused inspection strategies to obtain additional or new information;
3. how legal standards needed to be met to implement enforcement actions relate to evidentiary standards needed to prove a conviction;
4. specific information about tailings ponds enforcement included in the Fisheries Act annual reports ECCC Canada sends to Parliament; and
5. the state of the research on identifying differences between naturally-occurring and man-made OSPW.

Instead of holding industry accountable through effective enforcement mechanisms, Canada reassigned inspectors to other regions. Canada passed the buck to the province of Alberta, which has not had the regulatory teeth required to tackle the problem. In its response, Canada referred to a series of opaque annual reports from Alberta, which have listed many “incidents” in violation of the Fisheries Act.

However, as the Secretariat shows, these reports fail to either identify tailings ponds as the source of environmental harm or draw connections to enforcement. This is because Alberta’s Tailings Management Framework (TMF) for tailings reductions favored industry. Directive 085, issued by the Alberta Energy Regulator in July 2016 required companies to submit Tailings Management Plans, but according to a Pembina Institute study, the industry plans allowed for the volume of tailings to perpetually accumulate. And that is why we refiled our petition in June 2017, to investigate enforcement and begin to mitigate the significant damage already done to the fragile boreal forest ecosystem and its residents.

Based on the Secretariat’s scathing recommendation, the three NAFTA parties will vote by July 20, 2018 on whether to prepare the factual record. The CEC only needs a simple majority to continue in the process. Meanwhile, as Canada manufactures doubt to plug the holes in its Swiss cheese argument, toxic substances continue to seep from the tar sands tailings ponds into the waters of the Athabasca.