A toxic blend of water, clay and chemicals symbolizes the environmental footprint of oil sands production near the Athabasca River in Alberta. Tailings ponds cover 176 square kilometres and contain toxic, contaminated substances that are left once the oil is removed.
In 2010, Environmental Defence Canada filed a request for an investigation with the Commissions for Environmental Cooperation, the environmental arm of the North American Free Trade Agreement. The goal was to investigate if Canada was breaking its owns laws set out in the federal Fisheries Act by failing to prevent tailings from leaking into the Athabasca River and other nearby rivers.
“This is what the commission is mandated to do... to look and see if one of the NAFTA countries is potentially breaking its own environmental laws,” said Dale Marshall, the national energy program manager of Environmental Defence Canada.
A study released by the Athabasca Chipewyan First Nation, the Mikisew Cree First Nation and the University of Manitoba in July 2014 found consumption of traditional wild foods, such as locally caught fish in the Fort Chipewyan area, was associated with cancer.
“Our community is 252 kilometres downstream and the tailings ponds are leaking into that river,” said Susana Deranger, a member of the Athabasca Chipewyan First Nation. “Our community is riddled with cancer. We are told we can’t eat the fish and animals have tumours. It’s just insanity.”
“If I had my wish, I’d like to see no more tar sands but it’s not going to happen so at least don’t expand it,” she said.
No matter the results of the NAFTA challenge, the findings of the CEC investigation will not hold judicial power. “This is one of the initial problems with the commission,” said Marshall. “It can’t even rule on the fact that the law is being broken.”
The CEC presents the evidence with a factual record for and against the allegations on whether environmental laws are being upheld by the government. To proceed with a factual record investigation, two of the three NAFTA member countries must vote to pursue the study. Whether or not to publicly release the factual record is also subject to a vote.
“We found that even when they do undertake to investigate it can take them many, many years just to complete the investigation,” said Elaine MacDonald, a senior scientist at Ecojustice. She said the CEC is “not a very helpful tool when you want to get government to act on something.”
