Thank you, Mr. Chair and committee members, for the opportunity to present to you today.
My name is Barry Robinson. I am the staff lawyer at Ecojustice Canada, formerly the Sierra Legal Defence Fund.
Karin Buss was scheduled to present to you today, but unfortunately she fell ill this morning. She sends her apologies.
The focus of our written presentation and my comments today is the role that the federal government should and must play in the management of our water resources in the Athabasca oil sands region. It is our submission that the federal government has been somewhat missing in action in an area where it has clear responsibilities.
In our written brief, we have provided evidence that the federal government has not been fulfilling its responsibilities to protect water resources in the oil sands regions. Today I would like to focus your attention on the fact that the federal government actually has significant powers and responsibilities that it could and should use, and I urge the committee to recommend that those powers be used.
In the Constitution Act, 1867, the federal government has clear responsibility and defined powers in certain areas, such as fisheries. In other areas, the federal heads of power overlap with the provincial powers, and thus some coordination is required with Alberta. This does not mean, however, in legal terms, abandonment of these federal powers or acquiescence to the province's regulatory regime. Practically, what it requires is leadership, advocacy, and diligent work on the part of the federal authorities.
We must keep in mind that where there is a clear conflict between federal and provincial powers, the federal powers are paramount. Therefore, it is our recommendation that the federal government should begin exercising those powers that are clearly within its jurisdiction. I'd like to run quickly over some of those areas.
First, under the natural resources transfer agreement of 1930, under which Canada transferred ownership of natural resources to Alberta, the federal government reserved to itself the right to determine and secure sufficient flows within the rivers and streams that feed into Wood Buffalo National Park, to protect its “scenic beauties”, to quote the agreement.
In modern terms, I would submit that protection of the ecosystem would fall within that broad category of protecting scenic beauties. This gives the federal government an overriding and preeminent power to determine what flows must flow into Wood Buffalo National Park.
As Tony has mentioned, the Department of Fisheries and Oceans determined in 2006 what the inflow stream needs are in the Athabasca River, so what remains to be done is for the federal government to give Alberta formal notice of what flows it would require into Wood Buffalo National Park.
Second, Canada clearly has primary responsibilities to protect fish habitat under the Fisheries Act, and low flow levels, as has been pointed out by my colleagues, can destroy fish habitat.
To date, DFO has issued HADD permits—that is, harmful alteration, disruption or destruction of fish habitat permits—only for, as far as I'm aware, the actual process of digging out streams and water courses in order to mine underneath them, to reroute streams. I am not aware of DFO issuing any permits that deal with the impacts of lower flows in the Athabasca that result from diversions of water for these industrial schemes.
In fact, I'm only aware of one permit, which is the Albian Sands permit, for their Muskeg project, that did set a restriction. This was the permit for the actual physical structures to withdraw water from the Athabasca. That did set a minimum water flow below which no water was to be withdrawn.
I would suggest that the federal government, and DFO, in its power, should be doing that on all the HADD permits they issue and on other permits they issue with respect to oil sands.
Third, Environment Canada has administrative responsibility for those provisions in the Fisheries Act that deal with depositing deleterious substances into waters frequented by fish. The courts have been clear that this includes prohibiting the seepage of deleterious materials into water that does not contain fish but which eventually discharge into water containing fish. So the discharge does not have to be directly into fish-bearing streams to be prohibited.
I am fascinated by the discussions that I heard this morning and things I've read that tailings ponds are not seeping. We did have evidence this morning that Suncor's pond 1 did leak, for a number of years, and I understand it continues to leak into the Athabasca.
The Syncrude groundwater report for 2007 indicates water seeping from their Muskeg River tailings pond into Beaver Creek. This is not theoretical, but is measured in their groundwater report, which shows that the water is seeping into Beaver Creek. It's beyond their containment system. So it's not something theoretical in an environmental impact assessment, but is actual seepage happening beyond the containment systems.
I also understand that you may have heard from Dr. Schindler yesterday that there are deleterious substances entering surface waters through air emissions. Therefore, we would ask that Environment Canada step up and enforce the deleterious materials provisions of the Fisheries Act.
Fourth, the Canadian Environmental Assessment Act requires the federal assessment of proposed oil sands projects, which I'm sure you've heard of a number of times. This not only gives the federal government the power to assess these projects before they begin, but there are also monitoring provisions in there, on which they could require follow-up after these projects are approved.
This is the area where we see some weakness, in that commitments are made during the joint review panel hearings, and then, at times, the commitments made there are not followed through on by the companies. So the basis on which the approval is granted, that certain mitigation steps will be effective, turns out to be.... Either the steps are not implemented or they're not effective, yet no one is following up on these steps.
There are other pieces of legislation and powers that are set out in our written submission, such as the peace, order, and good government provisions, which give the federal government residual jurisdiction over environmental matters of national concern, including transboundary waters.
Finally, we wish to highlight that Canada does have a water policy. It was made in 1987, and has laudable goals and strategies to protect Canada's water resources and to promote efficient water management and use. The strategies that are set out in that water policy include Canada's fiscal and regulatory powers to penalize polluters and to encourage water efficiency. The 1987 water policy also identified water pricing as a key to conservation. This policy has not been implemented, but it is a tool that could be used.
In conclusion, we would recommend that the federal government use its available powers, including spending and other fiscal powers, to improve environmental performance in the oil sands. We are asking the federal government to step up and address the water issues in the oil sands area.
I thank you for your attention.