Council Resolution 15-01

Reasons for Council Instructions Regarding
Submission SEM-10-002 (Alberta Tailings Ponds)
Pursuant to its commitment to transparency and in its capacity as the governing body of the
Commission for Environmental Cooperation (CEC) responsible for overseeing the
implementation of the North American Agreement on Environmental Cooperation (NAAEC or
the “Agreement”), the Council of the CEC (the “Council”), hereby makes public the reasons for
its decision regarding submission SEM-10-002 (Alberta Tailings Ponds).
I.

Reasoning of Canada and Mexico
a. Pending proceedings under the NAAEC and Guidelines for Submissions on
Enforcement Matters under Articles 14 and 15 of the North American Agreement
on Environmental Cooperation (“SEM Guidelines”)

According to Article 14(3) of the NAAEC, the named Party in a submission is responsible for
advising the Secretariat of the Commission for Environmental Cooperation (the “Secretariat”)
whether the matter is the subject of a pending “judicial or administrative proceeding” in a timely
manner. The NAAEC and Guideline 9.6 of the SEM Guidelines are very clear on the steps to be
taken following such a notification from the Party: the Secretariat “shall proceed no further” with
the submission and “will promptly notify the Submitter and the Council, in writing, that the
submission process is terminated without prejudice to the Submitter’s ability to file a new
submission.”
b. Pending proceedings for submission SEM-10-002 (Alberta Tailings Ponds)
In its response dated 31 January 2014, Canada advised the Secretariat that a private citizen
(Anthony Boschmann) had filed a complaint (Swearing an Information) before the Alberta
Provincial Court to request a process hearing on matters related to the submission, constituting a
“judicial proceeding” in the sense of Article 45(3)(a) of the Agreement. The response specified
that the process hearing was to be held on 27 February 2014, and provided court filing
documents. It also requested that the Secretariat proceed no further with the submission, as
required under Article 14(3)(a) of the Agreement, and promptly inform the Submitters and the
Council that the submission was considered closed, in accordance with Guideline 9.6 of the SEM
Guidelines.
In a letter dated 14 May 2014, Canada maintained that, based on court rules, the case referenced
in its response was still pending, and that, accordingly, the submission process should be
terminated pursuant to Guideline 9.6 of the SEM Guidelines and Article 14(3) of the Agreement.
Based on the above, Canada fulfilled its responsibility under NAAEC Article 14(3)(a) to advise
the Secretariat in a timely manner that the matter at issue in the submission was the subject of a
pending judicial proceeding. Accordingly, the Secretariat should have proceeded no further in its
analysis and terminated the submission pursuant to the Agreement and the SEM Guidelines.
II.

Reasoning of the United States of America

In submission SEM-10-002 (Alberta Tailings Ponds), the submitters assert that tailings ponds
from the extraction of bitumen from mined oil sands deposits in northern Alberta contain a large

 Council Resolution 15-01

variety of substances that are deleterious to fish, and that these substances are able to migrate to
ground waters and surface waters. The submitters also assert that Canada is failing to effectively
enforce subsection 36(3) of the Canadian federal Fisheries Act with regard to these substances.
The submitters assert that, “[t]here are documented cases of contaminated tailings substances
reaching or projected to reach surface waters in Jackpine Creek (from Shell), Beaver Creek
(from Syncrude), McLean Creek (from Suncor) and the Athabasca River (from Suncor).” SEM10-002 at page 2.
On January 31, 2014, Canada informed the Secretariat that an information had been sworn (i.e., a
complaint had been filed) on September 12, 2013, by Anthony Neil Boschmann, a private
Canadian citizen, before the Alberta Provincial Court alleging, among other things, that Suncor,
a company operating in the Alberta oil sands region, allowed the deposit of deleterious
substances into the Athabasca River in violation of subsection 36(3) of the Fisheries Act. Canada
took the position that the Secretariat must proceed no further with its examination of SEM-10002 because the filing of this “information” constitutes a pending judicial proceeding within the
meaning of Article 14(3)(a) of the NAAEC.
While it is not clear to the United States from the information provided by Canada that the
“information” filed by Mr. Boschmann involved leakage from tailings ponds, it is clear that it
involved alleged actions taken by Suncor in Alberta that purportedly resulted in the deposit of
deleterious substances into the Athabasca River in violation of subsection 36(3) of the Fisheries
Act. These elements are also present in the assertions made by the submitters in SEM-10-002.
The United States is therefore of the view that enough information was provided by Canada for
the Secretariat to conclude that there could be a pending criminal proceeding on the same subject
matter as that raised in the submission, or on a closely related matter. While the United States is
not satisfied that the “information” filed by Mr. Boschmann would have constituted a pending
judicial proceeding within the meaning of Article 14(3)(a) of the NAAEC, the U.S. believes that
the Secretariat should have exercised caution and refrained from continuing to process SEM-10002.
There are two reasons for this. First, at the time Canada notified the Secretariat that an
“information” had been filed, a pending criminal proceeding may have been initiated that could
potentially have addressed enforcement issues raised in the submission. Second, the production
of a factual record on SEM-10-002 might have interfered with such a proceeding. The United
States is of the view that these same considerations of non-interference and avoiding duplication
of effort form part of the rationale for Article 14(3)(a) of the NAAEC when a pending judicial or
administrative proceeding is being pursued by the Party that is the subject of a submission.
The United States also notes that nothing in the NAAEC would have precluded the submitters
from filing another submission on these issues had the Secretariat ceased to process SEM-10002. For all of these reasons, the United States believes it important to vote against preparation
of a factual record in this instance.