Alberta Tailings Ponds II

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Alberta Tailings Ponds II

Submission ID: SEM-17-001
Party concerned: Canada
Date filed: June 26, 2017
Submission Status: Closed

Latest Update: September 4, 2020

The final factual record was publicly released.

Summary of the matter addressed in the submission:

The Submitters assert that “the Government of Canada is failing to effectively enforce subsection 36(3) of the Canadian Fisheries Act with respect to the leaking of deleterious substances from oil sands tailings ponds into surface waters and the groundwater of Northeast Alberta.” According to the Submitters, tailings ponds contain substances that are deleterious to fish, including napthethenic acids, ammonia, benzene, cyanide, oil and grease, phenols, toluene, polycyclic aromatic hydrocarbons (PAHs), arsenic, cooper and iron. The Submitters contend that, according to industry data, the tailings are leaking four billion liters each year and that an independent study reported that “oil sands process-affected water is reaching the [Athabasca] river system.” The Submitters maintain that “the Canadian federal government is on record several years ago with concerns regarding contaminated tailings leakage in the area” and that the existing Regional Aquatic Monitoring Program, “has been discredited as scientifically inadequate.”

In 2010 a related submission, SEM-10-002 (Alberta Tailings Ponds), was filed with the Secretariat and, in January 2015, the Council unanimously instructed the Secretariat not to prepare a factual record. In reasons accompanying the Council resolution, Canada and Mexico found that a criminal complaint filed by a private citizen before the Alberta Provincial Court concerning matters related to the submission constituted a pending proceeding under the North American Agreement on Environmental Cooperation (NAAEC), notice of which required the Secretariat to proceed no further with the submission.

Summary of the response provided by the Party:

In its response to the Secretariat, in accordance with NAAEC Article 14(3), the Government of Canada states that it “provides information concerning the Government of Canada’s enforcement of the pollution prevention provisions of the Act in the Alberta oil sands region. Specifically, the response explains the results of Environment and Climate Change Canada’s (ECCC) most recent proactive inspections at oil sands tailings ponds, which were a national enforcement priority between 2009 and 2014. In addition, the legal and scientific justifications for transitioning to a reactive enforcement approach in 2014 are discussed. The roles of the federal and provincial governments are outlined as well.”

Canada further states that “[f]rom 2009 to 2014, ECCC’s Enforcement Branch, in collaboration with its Science and Technology Branch, conducted proactive enforcement activities at various tailings ponds in Alberta. During this period, ECCC conducted onsite inspections at seven tailings ponds, including at the sites highlighted by the submitters in the submission. Following their inspections, enforcement officers, in consultation with ECCC’s scientists, determined that they did not have reasonable grounds to believe that there were violations of the pollution prevention provisions of the Act for any of the inspections conducted. The main reason for this, was that when deleterious substances were found in groundwater samples, enforcement officers could not determine if they came from natural or anthropogenic (i.e. oil sands industrial activity) sources; officers were not able to establish that a person deposited or permitted the deposit of a deleterious substance.”

Canada concludes in its response that “[i]t is the Government of Canada’s position that ECCC’s actions in the oil sands region, including its record of inspection and its continuing scientific research demonstrate Canada’s effective enforcement of the pollution prevention provisions of the Fisheries Act.”

Names and citations of the environmental laws in question:

Canadian Federal Fisheries Act, R.S.C. 1985, c. F-14, ss. 36(3),(4),(5); 40(5)(a).

Submitter(s):

Environmental Defence Canada, Natural Resources Defense Council and Daniel T'seleie.

Represented by: Environmental Defence Canada.

Submission Timeline

June 26, 2017

The Secretariat received a submission and began a preliminary analysis of it under the guidelines.

Submission - Submission authored by Submitter(s) on 26/06/2017

Acknowledgement - Communication to Submitter(s) authored by Secretariat on 26/06/2017

Annex - Other document authored by Canada on 26/06/2017