Among its publicly announced objectives for a renewed North American Free Trade Agreement (NAFTA), the Canadian government says it hopes to “ensure no NAFTA country weakens environmental protection to attract investment.”

This is a worthwhile objective. Indeed, the three parties to the current NAFTA committed in 1994 to strengthen and enforce their environmental laws and regulations. While the neighbours seem loath to complain when one of them backslides (neither the United States nor Mexico protested publicly or formally when the previous Conservative government of Stephen Harper weakened Canada’s environmental laws, for example), the current NAFTA regime provides measures allowing the public to complain about enforcement of laws. Unfortunately, few voices are being raised to protect those measures in a renewed NAFTA.

The existing procedures are described in the North American Agreement on Environmental Cooperation (NAAEC) and allow a person in any of the three countries to file a complaint (called a submission) with the secretariat of the Commission for Environmental Cooperation (CEC) that one of the three countries “is failing to effectively enforce its environmental law.”

The potential benefits of a successful complaint are, it must be admitted, modest: they do not include any enforceable sanctions. Instead, a submission may result in the production of a “factual record,” a report that lays out the facts of the situation described in the submission. The process sometimes brings enforcement or other results — not because a court orders it, but because of the public exposure generated by the submission.

The process requires a public willing to prepare and file a complaint, and it requires experts capable of acting, independently and without fear or favour of any government, to respond to the complaint with skill and competence. Key to the process is that, following a response from the government whose laws are in question, those experts apply past reasoning and analysis to the facts alleged in the complaint to determine whether the government’s response leaves any of the submitter’s questions unanswered. If questions do remain, the secretariat recommends that a factual record be produced. The CEC Council (Cabinet-level environmental representatives from each country) votes on a majority basis on whether to accept the secretariat’s recommendation. Between 1995 and 2013, just two such recommendations were rejected by council vote. Meanwhile, 23 factual records have been published to date by the CEC, with another currently in preparation.

In contrast to this pattern, the Harper government managed to squelch in quick succession three complaints about failures to enforce Canadian law, convincing at least one other council member to vote against the secretariat’s recommendation to proceed: in 2014, in cases involving polar bear protection and about salmon farming on the coast of British Columbia, and in 2015, in a case concerning tailings ponds in Alberta’s tar sands region. Two other secretariat recommendations to proceed with Mexican submissions have since been rejected by the council, one in 2015 and one in 2017, suggesting a growing tendency toward negative council decisions.

The Alberta rejection was based on the notion that a domestic court case was pending on the same subject matter as the complaint, something that can be grounds for terminating the submission. The secretariat had already determined that no such case was pending. The council and the secretariat had differing views on who should determine whether such a case was pending. In correspondence to the secretariat, Canada objected to the secretariat assessing the legitimacy of a “pending proceeding” claim. The issue of how to determine the legitimacy of such a claim is not addressed in the treaty or guidelines to citizen submissions, but the secretariat has made similar determinations without objection from any of the parties for two decades.

A submission filed this year, Alberta Tailings Ponds II, is nearly identical to the earlier version. Canada filed its response to the submission in November 2017. The next step involves consideration by the secretariat of whether to recommend the production of a factual record. The secretariat has 120 working days, or until mid-May 2018, to make its recommendation, based on whether the government response answers the central questions raised in the submission. No obvious legal rationale is available for the council to reject a secretariat recommendation that a report be drafted, although the council does retain the right to vote on this.

Such a report might provide the North American public with valuable information about why, as the submission alleges, millions of litres of process-affected tailings ponds water are leaking into ground and surface water in the Athabasca River basin — an environmental problem with transnational relevance that receives less attention than greenhouse gas emissions related to oil sands extraction. The submission claims the discharge is a violation of Canada’s Fisheries Act and that the situation represents an ongoing failure to enforce the law.

The United States’ objectives for a new NAFTA include that environmental provisions be brought “into the core of the Agreement rather than in a side agreement.” If that happens, which provisions should be included to ensure the public can shine light on enforcement failures?

A new process should provide for complaints, not only about enforcement but about backsliding as well, to be filed with a body that is at arm’s length from governments and staffed by competent experts.

A new process should provide for complaints, not only about enforcement but about backsliding as well, to be filed with a body that is at arm’s length from governments and staffed by competent experts. Other recommended improvements include allowing a factual record to proceed when just one party to the agreement, rather than a majority, recommends it (this is a feature of the US-Central America and US-Dominican Republic trade agreements, for example), and allowing the expert body to draw conclusions and make recommendations, rather than limiting its reports to facts.

Despite its shortcomings, the NAAEC process sets a certain standard. Subsequent agreements that Canada and the United States have entered into with other nations include significantly weaker provisions. For example, the environmental side agreement to the 2001 Canada-Costa Rica Free Trade Agreement allows a person to submit a written question directly to a government about its enforcement practices. The government “will acknowledge such questions, in writing, and respond . . . in a timely manner,” with no intermediary to ensure the quality or content of the response. For NAFTA, the United States similarly proposes “a process for the public to raise concerns directly with [their] government if they believe it is not meeting its environmental commitments.” Taking concerns directly to governments and eliminating a third-party arbiter such as the NAAEC secretariat would severely compromise the integrity of the process.

Alberta Tailings Ponds II is the first submission involving Canadian law filed in five years. US submissions are even more rare. North Americans are in danger of losing what they’re not using. The Mexicans are the exception: roughly half of all submissions involve Mexican law. Four have been filed since 2015 alone. The submissions process is a safeguard for those most affected by the negative impacts of economic activity.

Comprehensive environmental provisions are even more important in a trilateral agreement among continental partners than in bilateral agreements between geographically distant countries. The CEC has been the locus of cooperative work on pollutants, climate change mitigation options and transboundary ecosystem conservation. Eliminating it could mean much of that work falling behind at a time when progress is needed.

Any agreement to terminate the NAAEC and embed environmental provisions within NAFTA should be considered with great care.

A version of this article was published by the Centre for International Governance Innovation.

Photo: Foreign Affairs Minister Chrystia Freeland and Mexico’s Secretary of Economy Ildefonso Guajardo Villarrea prepare to deliver their statements to the media duirng the sixth round of negotiations for a new North American Free Trade Agreement in Montreal on January 29, 2018. THE CANADIAN PRESS IMAGES/Graham Hughes.

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Hugh Benevides
Hugh Benevides was the legal officer responsible for submissions on enforcement matters involving Canada at the Commission for Environmental Cooperation (CEC) Secretariat between 2011 and 2015 and is former counsel, Canadian Environmental Law Association and East Coast Environmental Law.

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