Section 3: Broader Challenges

Three broad challenges which relate to the Act's mandate have been identified through consultations.

The Canadian Environmental Protection Act, 1999 (CEPA 1999) could continue to have a role in the future policy responses to these broader challenges.

• The effective governance of each of these issues, however, will continue to require consideration of a wide range of roles, not only within the federal government but also among different jurisdictions and other interests.

• Under Canada's Constitution, federal laws of general application, including CEPA 1999, apply on all lands in Canada, including federal and Aboriginal lands.
• Provincial, territorial and municipal environmental laws generally do not apply to federal operations or to activities on federal and Aboriginal lands. As a result there is a "regulatory gap".
• Under Part 9 of CEPA 1999, nationally applied regulations and other measures can be developed to manage many, but not all, of the environmental protection risks on federal and Aboriginal lands that would otherwise be addressed by provincial and territorial legislation.
  • Activities such as natural resource management, land use management and drinking water quality are some of the activities managed by provincial governments that are not within the mandate of CEPA 1999.
• Instruments developed under Part 9 of CEPA 1999 must have the same level of protection for federal and aboriginal lands across the country.
  • As many environmental protection standards tend to vary province by province, commercial and industrial activity on federal and Aboriginal land operating under a Part 9 regulation may have different standards and processes to follow than their competitors on provincial land.
• Environment Canada's independent Program Evaluation found that more work needs to be done to create a strategic risk-based and cooperative approach to the establishment of environmental protection standards for federal operations and activities on federal and Aboriginal lands.

This regulatory gap on federal and Aboriginal lands extends beyond the scope of CEPA 1999, encompassing a broad range of environmental management issues, such as potable water and resource management.

The issues have been organized into the following categories:

Background

• The Government of Canada engages in a wide variety of activities and operations on and off federal lands throughout the country including:
  • industrial and commercial facilities such as ports and airports,
  • industrial activities such as shipbuilding,
  • aircraft maintenance,
  • laboratory research,
  • agricultural activities, and
  • handling of hazardous materials.
• Some federal lands have commercial activities that are managed by non- government third parties.
• The federal government has a long- standing policy commitment to hold its operations on federal lands to at least the same environmental standards as apply on neighbouring lands.
  • For example, the 1992 Federal Code of Environmental Stewardship and the 1995 Guide to Green Government and Directions on Greening Government Operations.
  • A number of federal departments have developed environmental management systems to manage risks from their activities.
• The Canadian Council of Ministers of the Environment (CCME) has stated that Ministers would like to see at least the same level of environmental protection on federal lands as exists on neighbouring lands.
  • They have expressed an interest in being engaged on this issue, as they are concerned about the risks to provincial lands from unregulated activities on neighbouring federal lands.

Examples of federal actions to manage risks on federal lands

• For federal government operations, Public Works and Government Services Canada promotes a "good neighbour" policy, environmental management systems and green procurement.
• The government has committed $3.5 Billion to address federal contaminated sites.
• There are three regulations under CEPA Part 9, relating to halocarbons, PCBs and petroleum storage tanks on federal lands.

Issues

• The government has made limited use of Part 9 to address federal activities and lands.
• The government's ability to manage risks from third party commercial activity on federal lands is quite limited.
  • The federal policy commitments for federal operations are not binding on third party commercial activity on federal lands.
  • Provincial environmental laws do not generally apply to these activities, because they occur on federal lands.
  • Part 9 instruments cannot be adjusted to match the different standards in provinces.

Background

• The environmental regulatory regime for lands north of the 60° parallel is quite different from the regime for lands south of 60°.
• In the Yukon, the federal government has devolved its authorities over land, water and resources to the Territorial Government.
  • Part 9 of CEPA 1999 was amended so that it no longer applies to public lands in the Yukon that are under the control of the Commissioner of the Yukon.
  • It was decided that the authorities available to the Yukon Government are better-situated to manage the provincial type of environmental management tasks on those lands.
  • The provisions of Part 9 still apply to federal lands in the Yukon, such as federal parks.
• Similar authorities have not been devolved to the Northwest Territories and Nunavut, though the devolution process is underway.
  • Currently, in most parts of the Northwest Territories (NWT) and Nunavut, the Minister of Indian and Northern Affairs continues to have a role as manager of lands, waters and resources.
• The Governments of NWT and Nunavut have province-like law-making authority over land, water and air issues on Commissioner's lands.
  • These are territorial lands whose administration and control of surface lands have been transferred from the federal government to these territorial governments for community settlement purposes.
  • Commissioner's lands represent approximately 3% of the land in the north but a relatively high proportion of land use activity occurs on these lands.
  • The federal Minister of Indian and Northern Affairs' water and land authorities still generally apply to Commissioner's lands,
    • these authorities are often delivered through regional land and water boards.
• The Government of Canada has the direct responsibility for management and use of the remaining 97% of the non-Commissioner lands in the NWT and Nunavut.

Examples of Indian and Northern Affairs Canada authorities North of 60

• Territorial Lands Act regulations over subjects such as land alterations, mining; oil and gas, coal, dredging, and quarrying.
• NWT Waters Act and its water regulation provide authority over water use and disposal and is administered regionally by water boards.
• Mackenzie Valley Resource Management Act and its regulations governs land and water use in Mackenzie Valley. The Mackenzie Valley Environmental Impact Review Board is the main instrument for the environmental assessment and environmental impact review of developments.
• Nunavut Waters and Nunavut Surface Rights Tribunal Act governs water and surface land use in Nunavut.

Issues

• Territorial governments have authority to regulate matters, similar to CEPA Part 9, on Commissioner's lands, creating the potential for regulatory overlap.
• While the potential exists, there is currently very little regulatory overlap.
  • There are currently only three regulations under Part 9. They address issues related to halocarbons, PCB (polychlorinated biphenyls) destruction and petroleum storage tanks.
  • Both the NWT and Nunavut have regulations related to aspects of petroleum storage tanks (spill contingency planning and reporting and fire prevention).
    • Neither has regulations relating to the release of halocarbons or PCB treatment and destruction.
• Under CEPA 1999, regulatory overlap can be avoided through the use of equivalency or administrative agreements.
  • Under an equivalency agreement, only the territorial regulation would be in force in that jurisdiction
  • Under an administrative agreement, both regulations would be administered by the territorial government.

The issues have been organized into the following categories:

Background

• Authorities under the Indian Act, as well as First Nations' interest in self-government, differentiate Indian Act reserves^{Footnote 13}  from other federal lands.
  • First Nation reserves are federal lands that are held solely for use and benefit of First Nations people.
• Residential, institutional, commercial, industrial and municipal-like activities occur on First Nation reserves.
  • These activities include
    • gas stations and repair garages,
    • mining operations and pits and quarries,
    • dry cleaning plants,
    • asphalt plants,
    • electric power plants,
    • agricultural activities,
    • tanneries, and
    • at least one plastics plant.

Some large industrial activities on reserves are managed by two laws which are now in force,

• the First Nations Oil and Gas and Moneys Management Act (FNOGMMA) and
• the First Nations Commercial and Industrial Development Act (FNCIDA).

Issues

• The limited authorities of First Nation governments for environmental protection under the Indian Act and their aspirations towards greater environmental management control and capacities in a manner consistent with the transition to self-government represent a key challenge in reducing the environmental protection regulatory gap on reserve.
• Under the Indian Act, Band Councils and the government of Canada both have land management and limited environmental authorities on reserves.
  • At present, these authorities provide an incomplete environmental protection regulatory regime.
• Part 9 of CEPA 1999 has authorities to develop regulations and other measures to manage many, but not all, of the environmental risks on First Nation reserves that would otherwise be addressed by provincial laws. There are two main limitations with these authorities, however.
  • First, instruments developed under Part 9 must be applied uniformly and have the same environmental protection standards throughout Canada.
    • This means that economic activities on a First Nation reserve operating under a Part 9 regulation may have different standards and processes than off-reserve activities operating under the neighbouring provincial regime.
  • Second, the environmental regulatory gap on many reserves extends to matters beyond the scope of authority of CEPA 1999.
    • The broader regulatory gap comprises the full range of environmental management issues, such as potable water and natural resource management and cannot be addressed by CEPA 1999 alone.
• The reserve land base is expected to double over the next 15 to 20 years through Treaty Land Entitlement and Additions to Reserve processes leading to a likely increase in residential, institutional, commercial, industrial and municipal-like activities.
• The environmental regulatory gap may be limiting, in part, the potential for economic activity on reserves.

Some Current Approaches to Addressing Legal Authorities and Governance Capacity on Aboriginal Land

• The First Nations Land Management Act and some self-government agreements (Nisga'a, Nunatsiavut, Tlicho) provide for self-government over environmental management. These approaches can address some regulatory gap issues for participating First Nations, but do not address the gap with respect to a majority of the activities on most First Nation reserves.

Stakeholder comments

• The Assembly of First Nations and the CCME have expressed strong interest in being engaged in discussions on the environmental management regulatory gap on First Nation reserves.

Issue

• The environmental protection regulatory gap can potentially be filled when First Nation governments have authorities for environmental protection in a comprehensive self-government agreement or in a sectoral self-government agreement, as are authorized in the First Nations Land Management Act for example.
• CEPA 1999 requires the inclusion of Aboriginal governments on the CEPA NAC.
  • An Aboriginal government is defined as a body established by an agreement between the Crown and Aboriginal people that has the authority to enact environmental protection laws.
  • This definition was used to ensure that these Aboriginal governments were included in intergovernmental discussions on environmental and human health protection.
  • To date there are few self-government agreements or environmental management regimes under the First Nations Land Management Act.
• There are currently only two Aboriginal representatives on CEPA NAC.
  • This is the result of the limited number of self-government agreements.
  • Consequently, the use of the CEPA NAC as a government-to- government forum for cooperative approaches between the federal and Aboriginal governments has been very limited to date.

Stakeholder comments

• Aboriginal organizations have raised concerns about the effectiveness of the CEPA NAC along with concerns regarding their involvement in work under CEPA 1999.

• CEPA 1999 was designed to support an approach in which each federal department and agency with expertise related to specific classes of products of biotechnology takes responsibility for assessing and managing new living organisms within its area of expertise.
• Part 6 of CEPA 1999 establishes the federal benchmark for the notification and assessment of environmental and health risks from biotechnology products.
• Any federal law and its regulations that Cabinet determines provides for equivalent notification and assessment procedures and standards equivalent to those in Part 6 of CEPA 1999 can take full responsibility for assessing and managing these risks.
  • As is the case with new chemicals and polymers, any new animate product of biotechnology that is not covered by another equivalent law is covered by the new substances provisions of CEPA 1999.

Schedule 4 lists five statutes and related regulations that meet the CEPA 1999 benchmark for living organisms:

• four Canadian Food Inspection Agency Acts (Fertilizers Act, Seeds Act, Health of Animals Act and Feeds Act) and
• the Pest Management Regulatory Agency's Pest Control Products Act.

Living organisms covered under these Acts are exempt from CEPA 1999's notification and assessment provisions.

In the case of other federal legislation that do not meet the CEPA benchmark, Environment Canada and Health Canada have negotiated arrangements to ensure that those departments provide their expertise to support assessments under CEPA 1999.

• Industry Canada is leading a multi-year interdepartmental initiative to renew the Canadian Biotechnology Strategy.
  • An objective of this initiative is to clarify the federal policy and regulatory framework for biotechnology.
  • Once this federal policy framework has been developed, an action plan to strengthen interdepartmental cooperation, better define regulatory responsibilities and enhance capacity will be developed.
  • Development of the action plan will involve those that have regulatory responsibilities for products of biotechnology, namely the Canadian Food Inspection Agency, Fisheries and Oceans Canada, Health Canada and Environment Canada.
  • An important element of the action plan is the development of mechanisms to facilitate the notification and assessment of new biotechnology products.
  • Federal officials also are considering how existing regulatory regimes may need to be adapted to better address emerging technologies, such as nanotechnology and bio-based molecular production systems (which use plants and animals to produce pharmaceuticals and other products).

Although Environment Canada and Health Canada are required under CEPA 1999 to assess any new living organism that is not adequately covered under another federal law, the challenge, of responding to new living organisms demands expertise that is often found only in other departments.

• Several external expert groups, including the Royal Society of Canada, the External Advisory Committee on Smart Regulations, and the Canadian Biotechnology Advisory Committee, have identified a growing need for a more comprehensive and coherent federal framework for biotechnology.