Follow-up report to the Standing Committee on the Canadian Environmental Protection Act: chapter 8

8 Modernization and streamlining

8.1 Intergovernmental cooperation

As the protection of the environment is a shared responsibility between the various levels of government, close cooperation among federal, provincial and territorial governments, as well as Aboriginal people and governments is important to Canada’s environmental well-being. Intergovernmental cooperation is one of The Canadian Environmental Protection Act, 1999’s (CEPA) guiding principles, and the act provides a number of tools to support this.

8.1.1 Administrative agreements

Administrative agreements are working arrangements between the federal government and provincial or territorial governments or an Aboriginal people regarding responsibility for administering CEPA regulations. The agreements usually cover activities such as inspections, enforcement, monitoring and reporting, and do not affect any jurisdiction’s legal authorities.

Section 9 of CEPA explicitly authorizes the Minister to enter into an administrative agreement with a government or an Aboriginal people. Section 9 also requires the Minister to publish an administrative agreement before it is entered into, provides that any person may file comments or objections within 60 days, and requires the Minister to publish a report on how any comments or objections were dealt with. The Minister is also required to report on administrative agreements in her annual report to parliament on the administration of the act.

The committee recommended “[…] that Section 9 be amended to strengthen criteria for the establishment of administrative agreements and enhance monitoring and reporting of the performance of entities that enter into such agreements with the Minister” (recommendation 7). The government supports the intent of this recommendation. The government will address this recommendation through additional policy and program actions that build on the existing CEPA provisions related to transparency and accountability for administrative agreements, including an annual reporting requirement.

8.1.2 Equivalency agreements

The equivalency regime, set out in section 10 of the act, gives the Governor in Council the authority to “stand down” a CEPA regulation – i.e., to declare that the regulation does not apply – in a province, a territory, or an area under the jurisdiction of an Aboriginal government, and the conditions for doing so.  The intent of equivalency agreements is to minimize the duplication of environmental regulations where another jurisdiction has a legal rule in place that will achieve the same environmental or health outcome as a CEPA regulation.

Section 10 requires that the jurisdiction in question have enforceable provisions, equivalent to a federal regulation made under subsections 93(1), 200(1) or 209(1) or (2), and provisions similar to sections 17-20 which provide for the investigation of an alleged offence, at the request of a resident of Canada. Section 10 of CEPA requires that an agreement be published for public comment before it is entered into, and requires the Minister to publish a report on how any comments or objections were dealt with. CEPA requires the Minister of ECC to report annually to Parliament on equivalency agreements.

The committee recommended that section 10 be amended to strengthen the criteria for the establishment of equivalency agreements and to strengthen monitoring and reporting of performance under such agreements (recommendation 8). The government supports the intent of this recommendation. Currently, equivalency agreements between the government and a province, territory, or Aboriginal government set out the criteria that must be met to make a determination of equivalency under section 10 of CEPA. The government will address this intent through additional policy and program actions that build on the existing CEPA provisions respecting the establishment of equivalency agreements.

The government agrees with the committee’s recommendation that an additional precondition be added, explicitly requiring that another jurisdiction have a similar enforcement and compliance policy (recommendation 9) (see discussion paper 11.1) and this recommendation will inform its work to reform CEPA.

8.1.3 Cooperation with Indigenous governments

Intergovernmental cooperation under CEPA includes Indigenous governments, which CEPA recognizes using the term “Aboriginal government”. The definition of “Aboriginal government” entails two criteria: i) the existence of a governing body that is established under an agreement with the government of Canada; and, ii) environmental law-making authority, which is not further defined.

Indigenous governments must meet the criteria above for only two purposes under CEPA: to be eligible for membership on the CEPA National Advisory Council (CEPA-NAC), and in order to enter into equivalency agreements with the Minister under section 10 of the act.

The CEPA NAC is an important intergovernmental forum to ensure that all levels of government are informed about proposed actions under CEPA, and for avoiding duplication in regulatory activity among governments in Canada. The NAC includes representatives of Aboriginal governments. In addition to consultations under NAC, ECCC and Finance Canada consult with Indigenous peoples when taking actions under CEPA, including when proposing regulations and when formulating objectives, guidelines and codes of practice. However, CEPA-NAC is not a forum for Indigenous engagement broadly and is not used for this purpose.

The committee recommended that the government consult with Indigenous peoples to “[…] revisit and potentially amend the definition of “aboriginal government” in CEPA to better reflect current Indigenous governance structures” (recommendation 6) and that CEPA be amended to “[…] ensure that provisions that set out a requirement for consultation with the provinces and territories also require consultation with Indigenous peoples” (recommendation 28).

The government is committed to advancing relationships with Indigenous Peoples, including through the development of the Recognition and Implementation of Indigenous Rights Framework with Indigenous Peoples. This multi-year process requires a whole-of-government process and will inform the government’s response to recommendations 6 and 28.

In the meantime, the current definition of “Aboriginal government” can encompass evolving Indigenous governance structures, wherever authorities for environmental protection are recognized. It is also noted that the current requirements under CEPA to consult with CEPA-NAC encompass Aboriginal governments along with provinces and territories, and are limited to issues that require regulatory coordination.

The committee also recommended that the preamble of CEPA be amended “[…] to recognize the principles put forward in the United Nations Declaration on the Rights of Indigenous Peoples” (recommendation 3, sub-bullet 3). The government agrees with the committee and this recommendation will inform its work to reform CEPA.

The committee also made other recommendations pertaining to part 9 of CEPA that apply to Indigenous Peoples. These recommendations are addressed in the chapter 6 of this report.

8.2 Administration

The committee made several recommendations pertaining to the administration of the act that are supported by the discussion paper. First, the government agrees with the committee’s recommendation “[…] that subsection 343(1) of CEPA be amended to require a parliamentary review every 10 years rather than every five years” (recommendation 1) (see discussion paper 12.4). The government also agrees with the committee’s recommendation that CEPA be amended to “[…] expressly allow the Minister to issue an interim order […] to be used for any regulation under CEPA, to the extent necessary to maintain alignment with a foreign regulation and subject to notice provisions” (recommendation 83) (see discussion paper 8.1), recognizing that, if this authority is included in future amendments to CEPA, it may not be appropriate to use when a foreign jurisdiction takes action that could weaken environmental protection. Finally, the government agrees with the committee’s recommendation that CEPA be amended to “[…] expand the government’s authority to incorporate by reference, subject to public notice and consultation […]” materials such as guidelines and codes of practice, internally generated technical documents, and documents produced jointly by the Minister of ECC and/or the Minister of Health (recommendation 85) (see discussion paper 8.2). These recommendations will inform the government’s work to reform CEPA.

8.3 Miscellaneous

The committee made three recommendations outside of the scope of topics addressed elsewhere in this chapter. First, the committee recommended that CEPA be amended to  “[…] require the federal government to develop legally binding and enforceable national standards for drinking water in consultation with the provinces, territories, Indigenous peoples, stakeholders and the public” (recommendation 37).

The government is supportive of strong drinking water standards nationally, and recognizes the need for continuous improvement. Actions are being undertaken to strengthen the existing approach for the development of guidelines for Canadian drinking water quality (GCDWQ), including through improved transparency of the program and a more robust priority setting process. The GCDWQ are the basis for drinking water requirements in all Canadian provinces and territories as well as in areas of federal jurisdiction. However, provinces and territories are best placed to develop and implement regulations for drinking water that address their own specific needs and priorities, and to do so using federally developed science.

Health Canada plays a strong leadership role by developing the health risks assessments that form the basis for the GCDWQ for contaminants identified as priorities to safeguard the health of Canadians. The GCDWQ are finalized and endorsed through federal/provincial/territorial government processes, which include representatives from all provincial and territorial departments responsible for the regulation of drinking water, as well as Health Canada.

The committee recommended “[…] that the government increase funding to ensure effective monitoring and enforcement of CEPA” (recommendation 86). The government recognizes the importance of monitoring and enforcement under CEPA to ensure the protection of the environment and human health and will continue to provide adequate resources to ensure the effectiveness of these measures.

The committee also recommended “[…] that discrepancies between the English and French versions of CEPA be reconciled” (recommendation 87). The government agrees with the committee and this recommendation will inform its work to reform CEPA.