Submission

Summary of the matter addressed in the submission:

The Submitters assert that Canada is failing to effectively enforce the pollution prevention provision of the federal Fisheries Act (the Act) to address contaminants being discharged from the Iona Island (British Columbia) Wastewater Treatment Plant, which have a deleterious affect on fish and fish habitat.

The Submitters allege that on a daily basis “the Iona WWTP [Wastewater Treatment Plant] facility discharges over 30 tonnes of oxygen demanding substances into the Strait of Georgia.” The Submitters allege that such substances may be deleterious to fish and fish habitat, and that Iona WWTP discharges that are acutely toxic to fish violate section 36(3) of the Act. The Submitters assert that despite the Canadian government’s knowledge that discharges from the Iona WWTP are regularly acutely toxic to fish in contravention of the Act, “The Canadian government has failed to prevent the ongoing and continuous discharges of a deleterious substance into our waterways. In addition, the beneficial uses of our natural resources used by submitting parties have been and continue to be degraded.” Moreover, the Submitters allege that a citizen attempted prosecution of the government and its authorities for Iona WWTP discharges that violated the Act, but “the Canadian government intervened to the exclusion of the informant, took over the prosecution, and stayed the charges. This demonstrates a failure of the government to enforce, or allow to be enforced, its environmental laws.”

Summary of the response provided by the Party:

In its Response, Canada first places the Iona WWTP in the Canada-wide context of the time and expense needed to maintain and upgrade a large number of aging facilities, including the Iona WWTP. Canada explains its annual priority-setting enforcement exercise in the context of its compliance and enforcement policies and plans. Canada also notes that all orders of government share jurisdiction over wastewater management, and explains the enforcement relationships among section 36 of the Act, the provincial Operational Plan and Metro Vancouver’s Liquid Waste Management Plan.

Canada explains that it considers “day-to-day discharges” of treated effluent into water frequented by fish, addressed by subsection 36(3) of the Act, as distinct from “deposits out of the normal course of events (‘DONCE’), such as extreme weather events, spills and power outages,” which are addressed by subsection 38(4) of the Act. In this context, Canada explains its enforcement actions during the period covered by the assertions in the Submission. Draft Wastewater Systems Effluent Regulations are being prepared, during which time Canada says enforcement resources have shifted in regard to subsections 36(3) and 38(4) of the Act, stating “[O]nce the process to explore and develop the proposed wastewater regulations was launched, the Department’s Enforcement Officers began to shift from a proactive to a reactive approach, focusing their efforts on responding to DONCE occurrences.”

Canada notes that the new regulations, published in draft form in the Canada Gazette Part I in March 2010, are expected to be published in final form in 2012. The regulations, Canada says, will have the effect of “regulating the discharge of existing effluent into the environment” from a particular treatment plant, until it has made the upgrades necessary to achieve secondary treatment. Canada maintains that its enforcement decisions with respect to the Iona WWTP are “effective and appropriate” in all of the circumstances.

Names and citations of the environmental laws in question:

The federal Fisheries Act

Submitter(s):

Fraser Riverkeeper Society, Lake Ontario Waterkeeper, Ottawa Riverkeeper, Fundy Baykeeper, Grand Riverkeeper, Georgian Baykeeper, Petitcodiac Riverkeeper, David Suzuki Foundation, T Buck Suzuki Environmental Foundation, Georgia Strait Alliance, and Waterkeeper Alliance