The environmental arm of NAFTA is demanding Canada explain what it is doing to stop oilsands tailings ponds from leaking into Alberta waterways.
The request comes in a decision by the commission which oversees the North American Agreement on Environmental Co−operation, a parallel agreement to NAFTA signed by Canada, the United States and Mexico.
Canada has until Sept. 28 to officially respond to allegations it is failing to enforce the Fisheries Act by allowing contaminants from the ponds to leak into water without forcing the companies involved to fix the problem.
The complaint was made in June by Canada’s Environmental Defence group and the Natural Resources Defense Council based in the United States.
Environmental Defence executive director Tim Gray says studies have suggested as much as 11 million litres of tailings water containing substances like benzene, arsenic and cyanide leaks into the Athabasca River every day.
A spokeswoman for Environment Minister Catherine McKenna said the government will work with the commission to respond to the request and expects this to be resolved soon.
"Our government takes the protection of water very seriously," Marie−Pascale Des Rosiers said in an email.
"We are proud of our world−class, joint oilsands monitoring system we have with the government of Alberta."
NAFTA’s environment annex allows non−governmental organizations and citizens of the three countries to submit complaints alleging their government is failing to enforce its environmental laws and regulations.
The commission has 30 days to decide if a complaint warrants a response from the government involved.
The request for a response from Canada means the commission found the complaint was submitted by legitimate organizations which offered science−based evidence for their complaints and that it was intended to promote enforcement of environmental law rather than simply harass industry.
Gray said the commission’s request for a response is a sign that the complaint appears legitimate, so far.
"They’re saying, based on the evidence presented to them and their legal review, it looks like the Canadian government isn’t enforcing the Fisheries Act and they want to know what the Canadian government thinks about that," he said.
While the deadline for a government response is Sept. 28, it could request an extension until Nov. 10.
After Canada responds, the commission will determine whether to produce a public factual record of the matter. That record does not include recommendations or conclusions.
However, Gray said the record can be used as a court document and if the case gets to that point, Environmental Defence could sue the Canadian government with the intent of forcing it to enforce its own laws.
This is the second time these groups have made such a submission to the commission. The first time it was tossed out because there was a court challenge underway in Canada about the same thing, which disqualifies a complaint under the environment agreement.
That court challenge was ultimately thrown out by a judge in Alberta.
Ben Brunnen, vice president of oilsands, fiscal and economic policy for the Canadian Association of Petroleum Producers said in a statement it was up to Canada to respond directly to the case.
"Numerous measures are in place to ensure the safe operation of tailings ponds," said Brunnen. "Alberta law requires all land disturbed by oil sands operations be reclaimed, including tailings ponds."