CEC Secretariat submits overall plans to develop five factual records

Consistent with Council Resolutions 01-08, 01-09, 01-10, 01-11 and 01-12, execution of the overall plans will begin no sooner than 14 January 2002. Under Article 15(4) of the NAAEC, in developing a factual record, "the Secretariat shall consider any information furnished by a Party and may consider any relevant technical, scientific or other information: (a) that is publicly available; (b) submitted by interested non-governmental organizations or persons; (c) submitted by the Joint Public Advisory Committee; or (d) developed by the Secretariat or by independent experts."

The Oldman River II submission was filed on 4 October 1997 by Friends of the Oldman River. The Submitters contend that Canada is failing to effectively enforce the Canadian Environmental Assessment Act and sections 35, 37 and 40 of the Fisheries Act. The Submitters contend that, as a matter of Canada-wide policy, Canada improperly avoids subjecting projects to environmental assessments by issuing Letters of Advice to project proponents outlining measures that will avoid the need to obtain authorizations to harm fish habitat under section 35(2) of the Fisheries Act. Such authorizations ordinarily require an environmental assessment. The Submitters also contend that, throughout the country, Canada routinely fails to ensure compliance with or prosecute violations of the habitat protection provisions of the Fisheries Act. The Submitters described the Sunpine Forest Products Forest Access Road case as an example of Canada's failure to effectively enforce the two laws.

On19 July 1999, in light of the submission and Canada's response, the Secretariat recommended that a factual record be prepared regarding the full scope of the submission. In May 2000, the Council deferred voting on the recommendation in light of a pending judicial proceeding involving the Sunpine case. On 16 November 2001, declining to follow the Secretariat's recommendation to prepare a broad factual record, the Council voted unanimously to instruct the Secretariat to prepare a factual record only with respect to the Sunpine case.

The Aquanova submission was filed on 20 October 1998, by Grupo Ecológico Manglar. The Submitters contend that Mexico is failing to enforce several environmental laws with regard to the establishment and operation of a shrimp farm, Granjas Aquanova, in Nayarit, Mexico. The laws at issues include provisions regarding protection of jungles and tropical rainforests and species that live there, environmental impact assessment, water pollution and use, fisheries and the introduction of alien species. The Submitters also contend that Mexico is failing to prosecute the company for alleged environmental offenses, and improperly negotiated with the company on the enforcement and compliance of environmental laws. Finally, the Submitters claim that Mexico is failing to comply with three international conventions on the protection of migratory species and wetlands.

On 4 August 2000, in light of the submission and Mexico's response, the Secretariat recommended that a factual record be prepared for some of the allegations in the submission, but not those relating to Mexico's enforcement of three international agreements on migratory species and wetlands protection. On 16 November 2001, the Council instructed the Secretariat to prepare a factual record as recommended by the Secretariat.

The Migratory Birds submission was filed on 19 November 1999 by nine American, Mexican and Canadian environmental groups: the Alliance for the Wild Rockies, Center for International Environmental Law, Centro de Derecho Ambiental del Noreste de Mexico, Centro Mexicano de Derecho Ambiental, Friends of the Earth, Instituto de Derecho Ambiental, Pacific Environment and Resources Center, Sierra Club of Canada, and West Coast Environmental Law Association. The Submitters contend that the United States is failing to effectively enforce section 703 of the Migratory Bird Treaty Act, which prohibits the killing of birds and destruction of their nests without a permit, against logging operations throughout the United States. In its response, the United States admitted that it has never enforced section 703 against a logging operation, and claimed that nonenforcement of the Act against logging operations is a reasonable exercise of enforcement discretion and results from a bona fide allocation of enforcement resources to higher enforcement priorities.

On 15 December 2000, in light of the submission and the United States' response, the Secretariat recommended that a factual record be prepared for the submission. On 16 November 2001, the Council instructed the Secretariat to prepare a factual record with regard to two specific cases identified in the submission, but declined the recommendation to prepare a factual record regarding the allegation in the submission of a widespread failure to enforce section 703 against logging operations throughout the United States.

The BC Mining submission was filed on 29 June 1998, by the Sierra Club of British Columbia and other environmental groups. The Submitters allege that Canada systemically fails to enforce section 36(3) of the Fisheries Act to protect fish and fish habitat from destructive environmental impacts of the mining industry in British Columbia. The submitters described the Britannia, Tulsequah Chief and Mt. Washington Mines as examples of Canada's failure to effectively enforce this section of the Fisheries Act.

On 11 May 2001, in light of the submission and Canada's response, the Secretariat recommended that a factual record be prepared regarding the full scope of the submission. On 16 November 2001, declining to follow the Secretariat's recommendation to prepare a broad factual record, the Council voted unanimously to instruct the Secretariat to prepare a factual record only with respect to the Britannia case.

The BC Logging submission was filed on 15 March 2000, by the David Suzuki Foundation, Greenpeace Canada, Sierra Club of British Columbia, Northwest Ecosystem Alliance, and the National Resources Defense Council. The Submitters contend that Canada is systematically failing to effectively enforce sections 35 and 36 of the Fisheries Act in connection with logging operations on both public and private lands throughout British Columbia. The Submitters claim that the federal government relies too heavily on British Columbia's forestry regulations which, according to the Submitters, allow logging practices that harm fish and fish habitat and deposit harmful sediment in fish-bearing waters. The submission alleges that these practice result in many Fisheries Act violations that Canada is failing to address effectively. The submission also cites Canada's actions in connection with TimberWest's logging operations in the Sooke watershed as a specific example of ineffective enforcement.

On 27 July 2001, in light of the submission and Canada's response, the Secretariat recommended that a factual record be prepared for the allegations regarding the province-wide failure to enforce the Fisheries Act effectively, as well as specific allegations relating to TimberWest's logging operations. On 16 November 2001, the Council instructed the Secretariat to prepare a factual record with regard to two specific cases involving TimberWest, declining the Secretariat's recommendation to prepare a factual record regarding the alleged province-wide failure to enforce the Fisheries Act effectively.

Under Article 14 of NAAEC, the Secretariat may consider a submission from any person or nongovernmental organization asserting that a Party to NAAEC is failing to effectively enforce its environmental law. Where the Secretariat determines that the NAAEC Article 14(1) criteria are met, it may then proceed with a process that can lead to the development of a factual record on the matter. In accordance with Article 15(2) of NAAEC, the Secretariat shall prepare a factual record if the Council, by a two-thirds vote, instructs it to do so.

The CEC was established under NAAEC to address environmental issues in North America from a continental perspective, with a particular focus on those arising in the context of liberalized trade. The CEC Council, the organization's governing body, is composed of the environment ministers (or equivalent) of Canada, Mexico and the United States.