Canada is trying to stop NAFTA's environmental watchdog from taking a closer look at the environmental effects of the huge tailings ponds produced by Alberta's oilsands, and it appears Mexico and the U.S. will go along with efforts to stop a formal investigation.
If that happens, it would be the third time in a year Canada has stopped North American Free Trade Agreement scrutiny of its environmental record.
The tailings ponds are a touchy political issue for both the Alberta and Canadian governments. They've become a symbol of the environmental footprint of oilsands production. The ponds cover more than 176 square kilometres and contain a toxic mixture of water, clay and chemicals, what's left over when the oil is removed.
Evidence suggest the ponds are seeping into the nearby ground and water.
Two environmental groups and three private citizens from Alberta, Saskatchewan and the N.W.T. want the Commission on Environmental Co-operation to find out whether Canada is breaking its own Federal Fisheries Act by failing to prevent tailings from leaking into the Athabasca River and nearby creeks in northern Alberta.
"It was important for us know whether this was happening and whether environmental laws were being broken and whether the government is upholding those laws or ignoring them," said Dale Marshall of Environmental Defence, one of the groups that launched the complaint in 2010.
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In September, the Dalai Lama was one of nine Nobel Peace Prize laureates who sent a letter to U.S. President Barack Obama urging him "to say 'no' to the plan proposed by the Canadian-based company TransCanada to build the Keystone XL, and to turn [his] attention back to supporting renewable sources of energy and clean transportation solutions."
Archbishop Desmond Tutu was among a group of Nobel Peace Prize laureates who signed letters to both U.S. President Barack Obama and Canadian Prime Minister Stephen Harper, urging the men to stop the Keystone pipeline.
Gore has said it is essential to stop the Keystone pipeline because the tar sands oil it would carry is "the dirtiest source of fuel on the planet."
Actor and environmentalist Robert Redford recently added his name to the list of prominent individuals who are calling on President Obama to reject the Keystone XL pipeline. In a video for The New York Times, produced with the Natural Resources Defense Council, Redford described the negative aspects of the proposed tar sands pipeline and said, "By deepening our reliance on oil, the pipeline would be a job killer." Redford has previously been vocal about calling for alternatives to oil. Writing last month for HuffPost, he said, "Let's build the next generation of energy efficient cars, homes and workplaces. Let's develop wind, solar and other cleaner, safer, more sustainable sources of power and fuel. Let's invest in high-speed rail and smart communities that give us better transportation options."
Actor Mark Ruffalo, famous for films like "The Kids Are All Right" and "Zodiac," is also an outspoken activist and opponent of the Keystone XL pipeline. Ruffalo said in a video for the Tar Sands Action group, "I've seen the kind of damage that out-of-control energy development can do to water and to communities near my own home, where fracking for natural gas is causing widespread pollution ... All these problems are connected -- we need to get off fossil fuels." In the past, Ruffalo has also expressed his ire for hydraulic fracturing natural gas extraction, or fracking. He told The Huffington Post, "The world is already leaving us behind. We're being left behind. America. Because the gas and oil industry has a strangle hold on us. And our politicians."
Environmentalist and author Bill McKibben has expressed strong disapproval for the planned Keystone XL pipeline. In fact, he was one of the first of over 1,200 who were arrested at the Tar Sands Action sit-in at the White House in August. Referring to his opposition to the Keystone Pipeline, McKibben told HuffPost, "The people who've carried this fight for three years are indigenous people on both sides of the border who have a huge stake in it because it's on their land, and farmers and ranchers from places like Nebraska," he said. He added, "It wasn't until I sat down and read Jim Hansen's analysis of how much carbon was in those things that I understood that this was not just a national issue, it's a global issue of the first order."
Julia Louis-Dreyfus, known for her role as Elaine on the popular sitcom "Seinfeld," has released a video urging President Obama to reject the permit for the Keystone XL pipeline. Dreyfus recalls when Obama said "Let us be the generation that ends the tyranny of oil." But she says, "Big Oil is still pretty much running the show." She claims that by rejecting the pipeline, Obama has a chance to "make good on [his] word." Louis-Dreyfus asks Obama, "Denying the permit for a brutally stupid, money-grab like the Keystone XL pipeline is a no-brainer, right Mr President?"
Actress Daryl Hannah has also lent her voice to the movement against the Keystone XL pipeline. In August, Hannah was one of the over 1,200 people to be arrested as an act of civil disobedience in front of the White House. Shouting "no to the Keystone pipeline" as she was handcuffed, Hannah made it clear she opposed the proposed Canada to Texas pipeline.
Maude Barlow, a Canadian author and activist and chairperson of The Council of Canadians, was arrested in September at a Keystone pipeline and oil sands protest on Parliament Hill in Ottawa. She was one of over 100 protesters of the demonstration's estimated 400 to be arrested. Writing for HuffPost Canada about her first experience being arrested, Barlow blogged, "I did it because I fear we are killing the planet and I can no longer be content to only write and speak about it. Today my feet spoke for me as I crossed that barricade and took away one more fear in my life." She also said, "By investing trillions of dollars into these pipelines, governments and the energy industry are ensuring the continued rapid acceleration of tar sands development, instead of supporting a process to move to an alternative and sustainable energy system."
Kyra Sedgwick, star of the television crime drama "The Closer," has voiced her opposition to the pipeline. In a video for the Natural Resources Defense Council, Sedgwick said "Just like the BP oil spill, one glitch in the tar sands pipeline could destroy our clean water sources, possibly forever."
Joining several other prominent actors, David Strathairn appeared in a video urging President Obama to reject the Keystone Pipeline. He calls on his fellow Americans to join the November 6 Tar Sands Action in Washington, D.C. Strathairn, who is known for his portrayal of journalist Edward R. Murrow in "Good Night, and Good Luck," said, "Obama ran for office speaking of the dangers of our fossil fuel addiction, promising to fight climate change and fully embrace a clean energy future. The Keystone XL tar sands pipeline is a dangerous step away from that commitment."
Commission set up under NAFTA
The Commission on Environmental Co-operation was in set up in 1994 as part of the North American Free Trade Agreement to resolve environmental disputes and to provide the public an outlet for environmental concerns.
Commission staff investigate public complaints in Canada, Mexico and the U.S. and can recommend an in-depth investigation, called a factual record, if they find there are grounds. But it has no power to compel the countries to do anything.
The final decision to conduct an investigation is made by a council of the environment ministers from the three countries, which is about to decide whether to allow a factual record into the tailings ponds. But negotiations are already going on — and it looks as if Canada may be getting its way.
"Through a council resolution in December 2014, Canada, Mexico and the U.S. unanimously voted to terminate the submission," said Environment Canada spokesman Danny Kingsberry in an email to CBC News.
That statement raised some eyebrows, because the final vote hasn't actually happened. U.S. and Canadian officials who are familiar with the file and who spoke on background say it's "highly unusual" Canada would reveal what's going on behind the scenes.
"Typically they don't say anything," said one U.S. official.
When asked to clarify, in a followup email Kingsberry only said "a final decision by the council is expected to be taken shortly on this matter."
But it's clear that Environment Canada, the department involved, is trying to stop further investigation into the tailings ponds.
'A new approach'
Last January, Dan McDougall, the assistant deputy minister for the department's international affairs branch, wrote a letter to the commission telling it to "proceed no further with this submission," claiming the issue was the subject of a court case. The rules say that if there's a pending court case no factual report can be done.
But commission staff discovered the court case wasn't proceeding and recommended the investigation go ahead.
McDougall wrote again, arguing the commission had no jurisdiction to check into domestic law and telling it to "cease this analysis."
Canada is the only country taking this approach, according to Hugh Benevides, who is legal officer for the commission.
"To my knowledge we have never received such a firm position as we have from Canada as we have in this case," he said in an interview.
"I think it's safe to say it's a new approach."
In 2014, Canada, with Mexico's support, blocked investigations into protection of polar bears and B.C. salmon farms.
"The council have voted against the preparation of a factual record only four times in 20 years and two of those votes have happened in 2014," said Benevides.
The tailings ponds decision would make it five.
But while Canada is kicking up the biggest fuss, none of the countries like the NAFTA environmental agreement, according to Debra Steger. She's an expert in international trade law at the University of Ottawa.
"It produces a report that can be critical of what the government is doing and no government wants that scrutiny," said Steger in an interview.
Steger said the three countries may be willing to quash the tailings pond investigation because it could affect trade and because it's so political.
"This is an issue that the three parties probably just don't want to go to near at this point," she said.
Marshall, of Environmental Defence, thinks it's all about the getting the controversial Keystone XL pipeline approved in the U.S.
"It's clear that [U.S. Barack] President Obama is looking at Canada's record when he is thinking about approving or not approving certain pipelines going through the U.S.," said Marshall. "If this is one more stain on Canada's record then that plays into his decision potentially."
The three countries are expected to have a final vote on the tailings ponds issue as early as this week.
They can also vote keep the reasons for their decision secret.