August 6, 2007

CEC rejects submissions on seal hunt, St Clair River spills

The Commission for Environmental Co-operation (CEC) has concluded that a submission by two Mexican environmental organizations concerning Canada's annual harp seal hunt does not qualify for further investigation pursuant to provisions of the North American Agreement on Environmental Cooperation (NAAEC).

In June, the Centro Mexicano de Derecho Ambiental AC and ConservaciÛn de MamÌferos Marinos de MÈxico filed a submission claiming that the Canadian government is failing to effectively enforce its environmental laws with respect to the yearly harp seal hunt carried out in the Gulf of St Lawrence and along the Newfoundland and Labrador coast each spring.

Submission SEM-07-003 (Seal Hunting) said the Department of Fisheries and Oceans (DFO) is failing to effectively enforce section 2(1) of the Canadian Environmental Protection Act and the preamble to the Oceans Act by not applying the precautionary principle when it sets the annual harp seal hunting quota and when it allowed the quota to be exceeded in four of the past five years.

The Mexican groups further alleged that most hunters do not strictly comply with regulations under the federal Fisheries Act prescribing instruments and methods for killing seals. This, they said, shows that the authorities have failed to effectively enforce both these rules and the section of the Criminal Code outlawing cruelty to animals.

After reviewing the submission to determine whether it meets the requirements of Article 14 of the NAAEC, the CEC secretariat concluded that it does not specifically name provisions of environmental law as required by the agreement, and granted the organizations a 30-day period to file a revised submission with additional information.

Meanwhile, the CEC has dismissed a submission alleging that Canada is failing to enforce its environmental law effectively by not preventing chemical and sewage spills to the St Clair River in Sarnia, Ontario, and by failing to notify downstream areas in the St Clair-Detroit River corridor about spill incidents.

In SEM-07-004 (St Clair River) St Clair Channelkeeper, the Environmental Law Society of Wayne State University Law School and individuals Brendan Frey, Noah Hall, Doug Martz, Andrea Montbriand and Oday Salim claimed Canada is not effectively enforcing Section 3 of the International Boundary Waters Treaty Act and Article IV of the 1909 Boundary Waters Treaty by failing to contain water pollution from Sarnia, Ontario. They said that the health and property of the United States and its citizens is suffering injury as a result.

Citing examples of spills that occurred at refineries and sewage treatment plants between 2003 and 2007, St Clair Channelkeeper et al alleged that there has been little response from Canada to a 2006 International Joint Commission report recommending spill prevention measures for the St Clair-Detroit River corridor. And despite repeated requests from the Macomb County (Michigan) Water Quality Board, the submission said Canada has offered little response about matching U.S. efforts to install state-of-the-art, real-time water quality monitoring equipment aimed at improving the quality of drinking water coming from the St Clair River basin.

In dismissing the submission, the CEC secretariat said it was unable to conclude that Article IV of the Boundary Waters Treaty, taken together with Section 3 of the International Boundary Waters Treaty Act, meets the definition of "environmental law" set out in the NAAEC. Drawing a distinction between international and domestic legal obligations, the secretariat found that it is not sufficiently clear that Article IV of the treaty has the same force of law as a statute or regulation in Canada or that Section 3 of the Act incorporates Article IV into the domestic law of Canada.

The secretariat has allowed the submitters 30 days to revise their submission to meet Article 14 criteria as well as guideline 6.2 of the CEC's Guidelines for Submissions on Enforcement Matters.

NAAEC Article 14 allows any citizen or nongovernmental organization to file a submission with the CEC secretariat when it believes that a NAFTA partner is failing to effectively enforce its environmental law. After reviewing the submission, the CEC may investigate the matter and publish a factual record of its findings. More information is available on the CEC Web site, www.cec.org.

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