Attempts by NAFTA’s environmental watchdog to look into the Harper government’s record on salmon farming and the oilsands are at an impasse after deadlines passed for member countries to vote on the investigations.
It’s the latest blow to an organization formed to preserve environmental enforcement, but which has now been almost neutered by the governments that created it, said a former director of the Commission on Environmental Cooperation.
“This institution doesn’t have the tools it needs to do anything effective,” said Geoff Garver, who headed the organization’s enforcement branch from 2000 to 2007 and served on its public advisory board until recently. “It’s dying a slow death.”
The commission was created in 1995 to win environmental support for the North American Free Trade Agreement by ensuring the deal wouldn’t boost commerce at the expense of clean air, water or land. Commission staff investigate public complaints that Canada, the United States or Mexico aren’t living up to their laws and recommend a “factual record” if they find enough grounds.
“That was a novel creation and a very hopeful provision,” said Albert Koehl of Ecojustice, an environmental law firm that made seven submissions to the commission. “It was greeted with a very positive reaction at the time.”
Two such submissions are behind the commission’s current conflicts with Canada.
Environmental groups and individuals say Canada is breaking the Fisheries Act by allowing an unknown amount of tailings from the oilsands to seep into groundwater. Canada has also been accused of harming wild salmon stocks by allowing viruses from fish farms to spread.
The commission’s legal staff found supporting evidence in both cases and recommended investigations. But Canada has refused to recognize those findings and has told the commission that it won’t co-operate.
“The (investigators) have acted contrary to their authority,” says a letter from Environment Canada to the commission in reference to the tailings pond concerns. “The current submission should be terminated.”
About the salmon complaint, the government wrote: “We do not intend to engage in or recognize as valid … any further consideration of this submission.”
Canada says the commission is not allowed to investigate any issue that’s before domestic courts and points to a legal action filed by a private citizen that levelled similar criticisms about the oilsands.
That action, however, was heard in February and the appeal period is over.
Any investigation must first be approved by a majority vote of environment ministers from the three NAFTA countries. Under the commission’s timelines, the salmon vote was to occur by Aug. 12 and the deadline for the tailings ponds vote was Oct. 27.
Neither vote has been held.
“Canada is working with its counterparts towards preparing council resolutions to address the issues raised by the submissions on Alberta tailings ponds and B.C. salmon farms,” said Environment Canada spokesman Danny Kingsberry. “We expect the council resolutions to be concluded in the coming weeks.”
Kingsberry, in a series of emails, refused to say if a vote would be held at all.
“Canada is working with its partners from the U.S. and Mexico to conclude these matters as soon as possible, and is working with our partners to provide greater clarity on the process for future occasions such as these.”
Garver, who called Environment Canada’s responses to the commission “dismissive and condescending,” said all three NAFTA countries share the blame for turning the watchdog into a lap cat.
“They just don’t want this commission to do anything that pushes the envelope,” he said. “They just didn’t want anything of any interest coming out of that place.”
Koehl said once submissions reached the political level, they were either delayed or watered down. In 2011, Ecojustice asked the commission to stop an investigation because it had been so politically compromised the group felt it would do more harm than good.
Ecojustice has written the commission off, said Koehl.
“Given how this has all played out over the last decade, we don’t have any confidence in their petition process.
“Citizens often feel, in the face of these international agencies, that they have no power. This was supposed to right the ship and say, ‘You actually have a serious and formal process to hold governments to account.’
“Unfortunately, because of the political interference by the ministers, citizens can’t have that confidence.”