Secretariat seeks information for Oldman River II factual record

The alleged failure to effectively enforce the Fisheries Act and CEAA was asserted in the Oldman River II submission (SEM-97-006), filed on 4 October 1997, by The Friends of the Oldman River. The Submitters claim that Canada is issuing "letters of advice" instead of requiring project proponents to obtain Fisheries Act authorizations for which they would have to carry out an environmental assessment under CEAA. Section 35(2) of the Fisheries Act makes it an offence to harmfully alter, disrupt or destroy fish habitat without an authorization. The Submitters claim that the use of letters of advice by Canada frustrates the intention of Parliament and usurps the role of CEAA as a planning and decision-making tool and as a mechanism for public participation. They also claim that there are very few prosecutions for violation of section 35(2), and that Canada has abdicated its legal responsibilities to the provinces, which have not done a good job of securing compliance with or enforcing the Fisheries Act. As an example, they refer to a forest access road project carried out by Sunpine Forest Products Ltd. near the town of Rocky Mountain House, Alberta (Sunpine Project).

On 19 July 1999, in light of the submission and Canada's response, the Secretariat recommended the preparation of a factual record regarding Canada’s use of letters of advice in general, Canada’s assertion that enforcement action is taken when the Fisheries Act is contravened, and the use of letters of advice in connection with the Sunpine Project. On 16 November 2001, the Council instructed the Secretariat to prepare a factual record to examine whether Canada failed to effectively enforce the habitat protection provisions of the Fisheries Act and CEAA in connection with the Sunpine Project.

Under Article 14 of the North American Agreement on Environmental Cooperation (NAAEC), the Secretariat may consider a submission from any nongovernmental organization or person 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 takes further steps that can lead to the development of a factual record on the matter. A factual record seeks to provide detailed factual information to allow interested persons to assess whether a Party has effectively enforced its environmental law with respect to the matter raised in the submission.

Under Article 15(4) and 21(1)(a) of the NAAEC, in developing a factual record, the Secretariat shall consider any information furnished by a Party and may ask a Party to provide information. The Secretariat also may consider any relevant technical, scientific or other information that is publicly available, submitted by the Joint Public Advisory Committee (JPAC) or by interested nongovernmental organizations or persons, or developed by the Secretariat or independent experts. In accordance with Article 15(7) of NAAEC, the Council may, by a two-thirds vote, make the final factual record publicly available.

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.