Canada and US governments disagree on polar bear review

In November 2011 a US based ngo, the Center for Biological Diversity, filed a petition with the North American Commission on Environmental Cooperation (CEC) claiming that Canada is not doing enough to protect its polar bear populations from global warming. Articles 14 and 15 of the North American Agreement on Environmental Cooperation (NAAEC), the NAFTA environmental “side deal”, provide that the CEC Secretariat may consider a submission from members of the public and nongovernmental organizations concerning the effective enforcement of environmental law.

The Secretariat of the CEC recommended that the petition should move to the first stage of the review process – the preparation by Secretariat staff of a factual record. By a two thirds majority the Board of the CEC rejected this advice and rejected the CBD petition. The CEC Board is made up entire of representatives of the three member governments. The US government supported the CBD petition, stating that ‘its decision to vote in support of the preparation of a factual record in this instance is based on a long-standing U.S. policy that favors the preparation of factual records by the CEC Secretariat as an important means of promoting public participation, transparency and openness on issues related to enforcement of environmental law in the United States, Canada and Mexico’. The US government also stated that ‘The United States wishes to stress that its vote in this instance does not reflect any judgment on the part of the United States as to whether Canada is failing to effectively enforce its environmental law, nor does it constitute or reflect a decision on the part of the United States concerning whether, or under what circumstances, potential climate change impacts on species or habitat in the United States must be assessed under U.S. law’.

Despite the US caveat, the difference of opinion between Canada, Mexico and the US is another significant policy difference between Canada and the US that further threatens Canada’s past reputation as a global environmental leader. Given that Canada is still negotiating a comprehensive trade agreement with the European Union that apparently includes langauge and a dispute resolution mechanism similar to that contained in NAAEC, it might have been expected that the Canadian government would want to show that these processes can be successful. When the Canada-EU agreement comes before EU legislators it seems increasingly likely that Canada’s environmental performance not only on oil sands but also on polar bears will be one of the topics of debate.

The CBD submission may be viewed at http://www.cec.org/Storage/145/17115_11-3-SUB_en.pdf. The views of the Canadian and Mexican governments are contained in the document at http://www.cec.org/Storage/158/18630_11-3-Council_Vote_Explanation_en.pdf. The views of the US government are at http://www.cec.org/Storage/158/18633_11-3-US_Explanation_for_FR_vote_en.pdf

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