Canada Alleged to Be Hiding Adverse Environmental Reports

TORONTO, Ontario, Canada, January 29, 2007 (ENS) - The findings of two international investigations into Canada's enforcement of its own environmental laws have not been made public because they would be embarassing for the Canadian government, according to Sierra Legal, an environmental law firm based in Toronto. The firm represents environmental groups that submitted complaints triggering the investigations.

The investigations were conducted by the Commission for Environmental Cooperation, CEC, the environmental agency established under the North American Free Trade Agreement between Canada, the United States and Mexico.

They focused on the destruction of tens of thousands of migratory bird nests in Ontario's forests and the discharge of toxic effluent from Canadian pulp and paper mills.

"Whatever happened to Prime Minister [Stephen] Harperís commitment to transparency and accountability?" asked Albert Koehl, a lawyer with Sierra Legal, which represents Canadian and American groups that requested the investigations.

The decision on whether to release CEC investigations is made jointly by the environment ministers of Canada, the United States, and Mexico, but Koehl claims it is the Canadian government that is "hiding" the results of these investigations. In practice, he says, Canada is the lead party in decisions relating to the release of this information.


Sierra Legal attorney Albert Koehl is seeking the results of investigations conducted by NAFTA's environmental watchdog agency. (Photo courtesy Sierra Legal)
"I canít think of any justification for the governmentís conduct in keeping the findings of these investigations from the public," said Koehl, a former Ontario Ministry of Environment prosecutor.

The two investigations were completed in March 2006 and involve alleged failures to enforce the Migratory Birds Convention Act and the Fisheries Act.

The migratory birds case involved evidence of a widespread failure to enforce the law against logging companies thereby allowing the destruction of 45,000 migratory bird nests annually in Ontario alone.

The fisheries case implicated pulp and paper mills in massive discharges of toxic effluent to Canadian lakes and rivers.

Canadaís new environment minister, John Baird, is the lead official on investigations targeting Canada. Baird took office January 4, 2007, replacing the previous minister Rona Ambrose, who was minister in 2006 when the investigations were completed. Baird has been silent on the issue.

CEC investigations are supposed to be released to the public within 60 days. All previous investigations have been released.

"Itís a shame that the government isnít allowing the valuable information from these investigations to be put to use to better protect our nationís lakes and rivers and its treasured wildlife," said Koehl.

Canada could decide never to release the findings of these two investigations, but to do so, permission from the United States and and Mexico would be needed. These governments might approve such a withholding in return for Canada's future approval of withholding reports embarassing to them.

Koehl says "playing politics" like that would weaken the credibility of the CEC and undermine the commission's work on other cases before it.


A pulp mill in Ontario, not one of those at issue in this case. (Photo courtesy Terrace Bay)
In the fisheries case, originally filed with the CEC in 2002, environmental groups Friends of the Earth Canada, Union Saint-Laurent, Grands Lacs, Conservation Council of New Brunswick, Ecology Action Centre, and Environment North documented over 2,400 violations of the 1992 Pulp and Paper Effluent Regulations, PPER, at mills in central and eastern Canada from 1995 to 2000. They claim very few were prosecuted.

They claim that low numbers of prosecutions correlate with continuing high numbers of violations in Quebec and the Atlantic Provinces, and they cite 10 mills of particular concern.

In Ontario, the groups claim that there have been more prosecutions and fewer violations, but they list two mills where they claim Canada has failed to effectively enforce the PPER.

The groups conclude that Canada is failing to meet its stated policy to seek to ensure compliance in the shortest possible time with no re-occurrence of violations, as well as its stated commitment to fair, predictable and consistent enforcement. They assert that for years, certain mills have been "free riders" at the expense of their competitors and the environment.


Effluent produced by the manufacture of pulp for papermaking. Regulations enacted in 1992 control the discharge of "acutely lethal effluent" and other substances and stipulate technical and reporting requirements. (Photo courtesy Environment Canada)
In its response, Canada provided the CEC with detailed information regarding federal and provincial enforcement responses taken from 1995 to 2000 in regard to the four Atlantic Provinces mills, six Quebec mills and two Ontario mills for which the groups state they have particular concern.

In view of these submissions, the CEC Secretariat decided to develop a "factual record," in the case, the results of which, Sierra Legal complains, have not been made public.

In the logging case, originally filed with the CEC in 2002, environmental groups Canadian Nature Federation, Canadian Parks and Wilderness Society, Earthroots, Federation of Ontario Naturalists, Great Lakes United, Sierra Club (United States), Sierra Club of Canada, and the Wildlands League, claim that in the year 2001 clearcutting activity destroyed over 85,000 migratory bird nests in areas of Central and Northern Ontario.

They allege that Environment Canada, through its Canadian Wildlife Service, is primarily responsible for enforcing the Migratory Birds Convention Act, MBCA, but that no action has been taken to enforce section 6(a) of the act against logging companies, logging contractors and independent contractors.

The groups assert that this failure to enforce the law, in addition to the harmful impact on the migratory bird population, has negative consequences for wildlife biodiversity, tourism, respect for the law, fair competition within the logging industry and healthy wood stocks.


Listed as a Species at Risk, the hooded warbler, Wilsonia citrina, is a neotropical migrant that flies from the forests of southern Ontario, where it breeds in summer, to the forests of Central America and the Caribbean, where it spends the winter. (Photo by M.K. Peck courtesy Environment Canada)
In response, Canada told the CEC that, "Environment Canada's Wildlife Enforcement Branch has not made a sweeping policy decision not to enforce subsection 6(a) of the MBR with regard to logging operations."

The response states that priorities for wildlife enforcement are set on an annual basis in response to public complaints, international commitments, and wildlife conservation goals.

The response indicates that "In the forestry context, an enforcement approach that will be helpful to migratory bird conservation over the long term first requires compliance promotion and education among industry, particularly decision-makers."

Canada said compliance promotion activities were underway and that the Canadian Wildlife Service would investigate any complaints that were made directly to the agency.

The government asked that a factual record not be initiated, but the CEC Secretariat decided to develop a factual record anyway. That investigation was completed in June 2006, but Sierra Legal complains that the results have not been made public.

"We can't think of any reason why Mexico or the U.S. would prevent the release of these reports," Koehl said. "The investigations are to the benefit of the U.S. and Mexico since the allegation is that Canada is not enforcing its own environmental laws, thus securing a trade advantage."

"Ultimately," he said, "that's why we have the environmental watchdog, to prevent any of the parties from sacrificing their own environment to get a trade advantage."