Factual Record Oldman River II Submission (SEM-97-006) Prepared in Accordance with Article 15 of the North American Agreement on Environmental Cooperation Table of Contents 1. Executive Summary . 7 2. Summary of the Submission . 12 3. Summary of Canada’s Response. 14 4. Scope of the Factual Record . 16 5. Summary of Other Relevant Factual Information and Facts Presented by the Secretariat with Respect to Matters Raised in Council Resolution 01-08 . 18 5.1 Information Gathering Process . 18 5.2 Meaning and Scope of Fisheries Act ss. 35, 37 and 40 . 22 5.2.1 Introduction. 22 5.2.2 The Habitat Protection Provisions of the Fisheries Act . 27 5.3 Federal Policies Regarding Administration and Enforcement of Fisheries Act ss. 35, 37 and 40 . 31 5.3.1 The Habitat Policy . 32 5.3.1.1 Application of the Habitat Policy in Alberta . 33 5.3.2 Fisheries Act Habitat Protection and Pollution Prevention Provisions Compliance and Enforcement Policy. 35 5.4 Meaning and Scope of s. 5(1)(d) of the Canadian Environmental Assessment Act (CEAA) and Schedule 1 Part I Item 6 of the Law List Regulations made pursuant to paragraphs 59(f) and (g) of the CEAA . 35 3 4 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION 5.5 The CEAA and the Protection of Fish Habitat under the Fisheries Act . 45 5.6 Planning of the Sunpine Project and Alberta’s Approval of the Sunpine Project . 52 5.7 Canada’s Actions in Regard to Alleged Violations of the Fisheries Act and the CEAA in Connection with the Sunpine Project. 63 5.8 Facts Regarding Whether Canada is Failing to Effectively Enforce the Fisheries Act and the CEAA in Connection with the Sunpine Project. 72 6. Closing Note . 89 Figures Figure 1 DFO Decision Framework for the Determination and Authorization of Harmful Alteration, Disruption or Destruction of Fish Habitat . 51 Figure 2 Map . 53 Figure 3 Local Watersheds . 57 Appendices Appendix 1 Council Resolution 01-08, dated 16 November 2001 . 91 Appendix 2 Overall Plan to Develop a Factual Record, dated 14 December 2001 . 95 Appendix 3 Comments of Canada and the United States on the Overall Plan to Develop a Factual Record, dated 14 January and 23 January 2002, respectively . 103 Appendix 4 Request for Information, dated January 2002 . 111 Appendix 5 Follow-Up Information Request, dated 10 September 2002 . 119 TABLE OF CONTENTS 5 Appendix 6 List of Information Received by the Secretariat for Development of the Factual Record . 127 Appendix 7 Photos . 157 Appendix 8 Acronyms and Defined Terms . 161 Attachments Attachment 1 Council Resolution 03-13 . 165 Attachment 2 Comments of Canada . 169 Attachment 3 Comments of the United States of America . 197 1. Executive Summary Articles 14 and 15 of the North American Agreement on Environmen- tal Cooperation (“NAAEC”) establish a process allowing residents of Canada, Mexico and the US to file submissions alleging that a Party to the NAAEC (Canada, Mexico or the United States) is failing to effec- tively enforce its environmental law. Under the NAAEC, this process can lead to the publication of a factual record. The Secretariat (“Secretar- iat”) of the North American Commission for Environmental Coopera- tion (“CEC”) administers the NAAEC citizen submissions process. On 4 October 1997, The Friends of the Oldman River filed a sub- mission (SEM-97-006 (Oldman River II), the “submission”) with the Secretariat asserting that Canada is failing to effectively enforce the fish habitat protection provisions of the federal Fisheries Act and related provisions of the Canadian Environmental Assessment Act (“CEAA”). The submission asserts that in regard to projects that may harm fish habitat, the Department of Fisheries and Oceans (“DFO”) is issuing letters of advice to project proponents instead of issuing Fisheries Act authoriza- tions and orders that trigger an environmental assessment requirement under the CEAA. The submission also alleges that Canada has abdicated its responsibilities for enforcement of the Fisheries Act habitat protection provisions to Canada’s inland provinces (Alberta, Saskatchewan, Mani- toba, Ontario, parts of British Columbia and parts of Quebec), which are not effectively enforcing the Fisheries Act. On 13 July 1998, Canada responded, asserting that compliance with the Fisheries Act habitat protection provisions could be achieved on a preventative basis through voluntary, routine communications between DFO and project proponents. Canada states that this approach is consistent with the Fisheries Act, which does not require DFO to review project information or issue Fisheries Act orders and authorizations. Canada asserts that DFO has designated provincial fish and wildlife employees in all provinces for enforcement purposes under the Fisheries Act. Canada asserts that in many cases, actions that violate the Fisheries Act are prosecuted under provincial laws. 7 8 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION On 19 July 1999, the Secretariat recommended preparation of a fac- tual record to gather additional information on the use and success of “letters of advice” in securing compliance with the Fisheries Act, and regarding Canada’s claim that enforcement action is taken when the Fisheries Act is contravened. On 16 November 2001, in Council Resolu- tion 01-08, the Council instructed the Secretariat to prepare a factual record on whether Canada, in the Sunpine Forest Products Access Road case—an example mentioned in the submission—is failing to effectively enforce sections 35, 37 and 40 of the Fisheries Act, Section 5(1)(d) of the CEAA, and Schedule 1 Part 1 Item 6 of the Law List Regulations made pursuant to paragraphs 59(f) and (g) of the CEAA. S. 35(1) of the Fisheries Act provides that no person shall carry on any work or undertaking that results in the harmful alteration, disrup- tion, or destruction (“HADD”) of fish habitat. S. 35(2) states that s. 35(1) is not violated if a person causes a HADD of fish habitat by any means or under any conditions authorized by the Minister of Fisheries and Oceans (“MFO”) or under Fisheries Act regulations (there are no regula- tions at this time). S. 37(1) requires proponents of projects that are likely to result in a HADD to provide information to MFO, in the manner and circumstances prescribed by regulations made under the Fisheries Act (there are no regulations at this time) or on the request of MFO. Under s. 37(2), the MFO may, by order, subject to regulations made under the Fisheries Act, or, if there are no such regulations in force (which is the case at this time) with the approval of the Governor in Council, require changes to plans for a work or undertaking or to an existing work or undertaking, and may restrict its operation. Violation of ss. 35(1), 37(1) or 37(2) is an offense under s. 40 of the Fisheries Act, punishable by fines, or jail time, or both. Before MFO can issue a s. 35(2) authorization or a s. 37(2) order under the Fisheries Act, DFO must ensure that an environ- mental assessment of the project is conducted under the CEAA. A CEAA assessment determines whether a project is likely to result in significant adverse environmental effects, taking into account any mitigation mea- sures considered appropriate, and if so, whether such effects are justifi- able in the circumstances. If they are not, a federal authority such as MFO cannot take any action, such as issuing an authorization under s. 35(2), that would allow the project to be carried out in whole or in part. The CEAA requires federal authorities such as DFO to ensure that assess- ments are conducted as early as is practicable in the planning stages of a project, and before irrevocable decisions are made. In July 1992, Sunpine Forest Products Ltd. (“Sunpine”) signed a forest management agreement (“FMA”) with the Alberta government EXECUTIVE SUMMARY 9 giving Sunpine long-term tenure over an area of over 2,500 square miles of forest land in the Rocky Mountain foothills of West Central Alberta. Sunpine’s operations within the FMA area are governed by timber har- vest planning and operating ground rules it negotiated with the Alberta government, including rules on road planning and fish habitat protec- tion. DFO was not involved in developing these ground rules. Under its ground rules, Sunpine is required to use existing roads for its log hauls whenever possible. In 1993, Sunpine presented the provincial govern- ment with a proposal to build a new, permanent, 40 km, all-weather log haul road up the middle of its new FMA area (the “Sunpine Project” or “Mainline Road”). After provincial fisheries, wildlife, and forestry staff recommended requiring Sunpine to use an existing, public road for its log haul to avoid, among other things, creating new impacts on fish habi- tat, the province’s forest service approved the proposed road corridor under Alberta’s Resource Road Planning Guidelines in August 1995. With provincial approval and without DFO involvement, Sunpine built and operated a temporary road within the Mainline Road corridor in the winter of 1995-96. The provincial forest service approved the alignment for the Mainline Road in September 1996, and the Mainline Road was built in 1997. Certain provincial fisheries staff involved with the Sunpine Project had appointments as fishery guardians under the Fisheries Act. Under these appointments, they had the power to lay charges for viola- tions of s. 35(1), but could not issue authorizations under s. 35(2). MFO is accountable to Parliament for the protection of fish and fish habitat in Canada through the administration and enforcement of the Fisheries Act. DFO has developed the Policy for the Management of Fish Habitat (1986) (the “Habitat Policy”) as a guide to the administration of the Fisheries Act habitat protection provisions.