September 4, 2006

CEC dismisses Devils Lake submission alleging failure to enforce boundary waters treaty

The Commission for Environmental Co-operation (CEC) has dismissed the Devils Lake submission (SEM-06-002), concluding that, even in its revised form, it still does not meet the requirements of Article 14(1) of the North American Agreement on Environmental Co-operation (NAAEC).

The submission, initially filed in March by the Sierra Legal Defence Fund on behalf of Friends of the Earth (in Canada and the U.S.) and other groups and individuals, contended that Canada and the U.S. are failing to effectively enforce anti-pollution provisions in the 1909 International Boundary Waters Treaty with respect to the construction and operation by the state of North Dakota of an outlet to drain water from Devils Lake into the Sheyenne River, the Red River basin, Lake Winnipeg and, ultimately, into the broader Hudson Bay drainage system.

In June, the CEC secretariat handed down a ruling that found the submission deficient; it gave the submitters 30 days to file a revised document. The revision, submitted in early July, specifically alleged that in regard to Devils Outlet, both countries are failing to enforce Article IV of the treaty which stipulates that "boundary waters and waters flowing across the boundary shall not be polluted on either side to the injury of health or property on the other."

The revised submission maintained that the outflow from Devils Lake is an unlawful cause of pollution and stated that Article IV is a mandatory provision creating an absolute prohibition of transboundary pollution. The parties to the treaty, it continued, have a duty to prevent such pollution and have not fulfilled this duty, as reflected by the failure of the two governments to refer the issue to the International Joint Commission.

The CEC secretariat said that in reviewing the revised submission, it was unable to conclude that Article IV of the treaty meets the definition of "environmental law" as set out in Article 45(2)(a) of the NAAEC. This section of the agreement defines environmental law as a jurisdiction's statutes and regulations whose primary purpose is environmental protection or prevention of a danger to human life or health.

Drawing a distinction between international and domestic legal obligations, the secretariat found that it was not sufficiently clear that Article IV has the same force of law as a statute or regulation in either Canada or the U.S. In the U.S., a treaty provision must either be self-executing or must be implemented through legislation, and the U.S. has no legislation that implements any provisions of the Boundary Waters Treaty in that country.

Although Canada has enacted the International Boundary Waters Treaty Act, 1910, which provides legislative confirmation and sanction of the treaty, it is still unclear whether the anti-pollution provision in Article IV of the treaty would be considered part of Canadian domestic law. Because this question is unresolved for both countries, the secretariat could not conclude that this provision meets the "environmental law" definition set out in the NAAEC. Accordingly, it terminated the NAEC Article 14 process with respect to the Devils Lake submission.

More information is available on the Citizen Submissions on Enforcement Matters page of the CEC Web site, www.cec.org.

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