Canada’s Fight Against NAFTA Investigation of Oilsands Tailings Gets Political, Wins Allies

The U.S. and Mexico appear to have joined Canada in its fight to prevent a North American Free Trade Agreement (NAFTA) investigation of the more than 176 square kilometres of tailings ponds holding waste from the Alberta oilsands near Fort McMurray.

In 2010 a group of citizens and environmental groups petitioned NAFTA’s Commission on Environmental Cooperation to investigate whether Canada is breaking its own federal laws, in particular the Fisheries Act, by failing to adequately manage the massive tailings ponds which hold a toxic mixture of water, silt and chemicals.

“It was important for us to know whether this was happening and whether environmental laws were being broken and whether the government is upholding those laws or ignoring them,” Dale Marshall from Environmental Defence, one of the organizations behind the compliant, said.

A 2012 federal study confirmed the tailings ponds are seeping waste into the local environment and Athabasca River. In 2013 an internal memo prepared for then Natural Resources Minister Joe Oliver confirmed groundwater toxins related to bitumen extraction and processing are migrating from the tailings ponds.

“The studies have, for the first time, detected potentially harmful, mining-related organic acid contaminants in groundwater outside a long-established out-of-pit tailings pond,” the memo reads. “This finding is consistent with publicly available technical reports of seepage (both projected in theory, and detected in practice).”

A separate Environment Canada study released in late 2014 confirmed tailings ponds emit toxins into the atmosphere at rates nearly five times higher than previously reported.

The NAFTA environmental commission was established in 1994 to investigate public concerns and resolve environmental disputes related to international trade in Canada, the U.S. and Mexico.

A decision on whether or not to investigate complaints is made by a council comprised of environmental ministers from the three countries. A vote on whether or not to recommend a ‘factual record’ or in-depth investigation is expected to come down within the next week.

Yet in an email to the CBC Environment Canada spokesman Danny Kingsberry said “through a council resolution in December 2014, Canada, Mexico and the U.S. unanimously voted to terminate the submission.”

The statement raised concerns that Canada has already guaranteed success in its protracted fight against the investigation even though the official vote has yet to take place. U.S. and Canadians officials described the statement as “highly unusual” although Canada’s effort to shut down the investigation has been explicit throughout the process.

Previously Dan McDougall, the assistant deputy minister for Environment Canada’s international affairs branch, instructed the commission to “proceed no further with this submission.” McDougall argued a related pending court case ruled out the need for an investigation. When the commission pushed back, McDougall instructed the body to “cease this analysis.”

According to Hugh Benevides, legal officer for the commission, Canada’s efforts to thwart the investigation are unprecedented.

“To my knowledge we have never received such a firm position as we have from Canada as we have in this case,” he told the CBC. “I think it’s safe to say it’s a new approach.”

Canada has blocked previous NAFTA investigations, however, aided in part by Mexico’s vote. In 2014 Canada prevented two investigations, one into B.C. salmon farms and the other into the protection of polar bears.

According to Benevides the council has successfully stopped four investigations in the last 20 years. If Canada prevents an investigation of the oilsands it would bring the total to five, the majority of which will be led by Canada within the last three years.

Debra Steger, international trade law expert at the University of Ottawa, told the CBC that countries are eager to avoid this kind of oversight.

“[A NAFTA investigation] produces a report that can be critical of what the government is doing and no government wants that scrutiny,” she said

Steger added this is especially the case with such politically contentious issues as the Alberta oilsands.

“This is an issue that the three parties probably just don’t want to go too near at this point,” she said.

For Environmental Defence’s Marshall the blocked investigation has everything to do with the pending Keystone XL pipeline decision south of the border.

“It’s clear that President Obama is looking at Canada’s record when he is thinking about approving or not approving certain pipelines going through the U.S.,” he said. “If this is one more stain on Canada’s record then that plays into his decision potentially.”

A vote on the tailings pond investigation is expected as soon as Friday.

Image Credit: Tailings pond at Suncor mining site by Alex MacLean.