Federal Court Decisions

Decision Information

Canadian Environmental Law Assn. v. Canada (Minister of The Environment)

Court (s) Database	Federal Court Decisions
Date	1999-04-27
File numbers	T-337-98
Notes	Reported Decision

Decision Content

Federal Court Reports
Canadian Environmental Law Assn. v. Canada ( Minister of the Environment ) [1999] 3 F.C. 564

Date: 19990427

Docket: T-337-98

BETWEEN:

THE CANADIAN ENVIRONMENTAL LAW ASSOCIATION

Applicant

- and -

THE MINISTER OF THE ENVIRONMENT

Respondent

REASONS FOR ORDER

REED, J.:

[1] The Canadian Environmental Law Association applies for a declaration under sections 18 and 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended, that the federal Minister of the Environment exceeded her jurisdiction when she signed four federal-provincial agreements on January 29, 1998. The four agreements are the Canada-Wide Accord on Environmental Harmonization and three sub-agreements entitled the Canada-Wide Environmental Inspections Sub-Agreement, the Canada-Wide Environmental Standards Sub-Agreement, and the Sub-Agreement on Environmental Assessment. (The full text of the agreements is set out in an appendix to these reasons.)

[2] The applicant Association is concerned that these federal-provincial agreements establish a structure under which the respective governments will rearrange among themselves their roles and responsibilities, and this will obligate the federal government to refuse to exercise some of its jurisdiction in environmental matters, and thus lead to a diminution in environmental protection for Canadians. For example, all the agreements contain a provision that obligates one level of government not to act under certain circumstances.¹ The applicant is also concerned that the agreements constitute a de facto transfer of authority to an intergovernmental body and this will diminish the accountability of the Minister and her officials through Parliament to Canadians. The agreements provide for the establishment of environmental protection priorities by the Canadian Council of Ministers of the Environment Inc., a corporation the members of which are the various federal and provincial ministers of the environment.

[3] The Association argues that the Minister lacked authority to sign the four agreements, and exceeded her jurisdiction in doing so, and that the agreements should therefore be declared to have no force and effect. The Association seeks, as an alternative to a declaration that the Minister exceeded her authority in signing the agreements, declarations that certain sections of the Accord and Sub-Agreements are of no force and effect because the Minister has fettered her discretion by agreeing therein not to act with respect to matters within her statutory authority.

[4] In response, the respondent asserts that the agreements are not justiciable because they are not "decisions" of a federal board, commission or other tribunal and, in any event, they do not have any legal effect. Counsel also argues that the Court should not grant the remedies sought because the application is premature. I will first consider the respondent's argument on justiciability, and then proceed with the applicant's arguments regarding the Minister's authority to sign the agreements and whether she fettered her discretion in so doing.

Justiciability

i) Decision of a Federal Board, Commission or Other Tribunal

[5] The Court has authority pursuant to section 18(1)(a) of the Federal Court Act to grant declaratory relief "against any federal board, commission or other tribunal." A federal board, commission or other tribunal is defined by section 2 of the Act as including "any person ... purporting to exercise jurisdiction or powers conferred by ... an Act of Parliament ..." In setting out the time limitations for the commencement of judicial review applications, section 18.1(2) refers to applications for "judicial review in respect of a decision or order of a federal board, commission or other tribunal." (Emphasis added.) The respondent relies on the language of sections 18(1) and 18.1(2) to suggest that this Court does not have jurisdiction to hear the within application for judicial review because the Accord and Sub-Agreements do not constitute a decision or order of a federal board, commission or other tribunal.

[6] I note that section 18.1(1) allows an application for judicial review to be made by anyone directly affected by the matter in respect of which relief is sought, and subsection 18.1(3) includes among the powers of the Trial Division the option "to declare invalid or unlawful . . . a decision, order, act or proceeding of a federal board, commission or other tribunal." (Emphasis added.) Although I accept that the federal-provincial agreements themselves may not be decisions or orders of the respondent Minister, I find that the Minister's decision to sign the federal-provincial agreements and her acts of signing, are reviewable under sections 18 and 18.1. I recognize, however, that there are a number of parties to the agreements under consideration in this case and that, even if the Minister lacks authority to sign, the agreements may remain valid insofar as the other signatories are concerned. Thus, any declaration or other section 18.1 remedy that might be given, should be directed to the decision or act of the Minister in signing the agreements, not to the validity of those agreements, except insofar as the Minister's involvement is concerned.

ii) Sufficient Legal Component

[7] In Reference Re: Canada Assistance Plan, [1991] 2 S.C.R. 525, the Supreme Court dealt with questions concerning the Canada Assistance Plan Act, R.S.C. 1985, c. C-1 and federal-provincial agreements thereunder. The issues were brought before the Court by way of a reference, therefore, the scope of justiciable questions was arguably greater than that existing outside a reference procedure. Nevertheless, the principles set out therein provide guidance relevant to the present case. The Court stated that the question to be asked when dealing with federal-provincial agreements is whether there is a sufficient legal component in the issues that are placed before the Court to justify the Court's consideration of the matter.

[8] In the present case, counsel for the Minister argues that the agreements are statements of political intention by governments, that they constitute statements of policy goals, and that they do not affect legal rights or have legal consequences. It is argued that the parties cannot be compelled to comply with the agreements and that they cannot be prevented from acting within their respective jurisdictions, notwithstanding that such actions may contravene the agreements. Thus, there is no legal content to the issues that have been placed before the Court.

[9] Counsel for the Association, on the other hand, argues that if the agreements are without legal force and effect, then, they are a charade because a great deal of time, effort and money has been spent, and is being spent, on their development and articulation. It is argued that they are misrepresentations if they do not have legal effect.

[10] I characterize the agreements as agreements in principle, under which further decisions must be taken before the specific matters to which they apply can be known. The agreements contain statements of political intention, objectives that the respective governments hope to implement. The umbrella agreement, the Canada-Wide Accord on Environmental Harmonization, contemplates the signing of sub-agreements to accomplish its objectives; the sub-agreements contemplate the signing of implementation agreements to accomplish their objectives. While the lack of specificity in the agreements makes it impossible to assess some of the issues raised by the applicant, the interpretation of federal statutes is at the heart of others. The issues that are raised are legal in nature, although the political implications of those arguments were a significant factor in the applicant's decision to commence the litigation.

Constitutional Context

[11] It is necessary, first, to describe the constitutional context within which the agreements must be read. The federal and provincial governments share jurisdiction over the environment. The Supreme Court of Canada commented on this shared jurisdiction in Friends of the Oldman River Society v. Canada (Minister of Transport):²

. . . the Constitution Act, 1867 has not assigned the matter of "environment" sui generis to either the provinces or Parliament. The environment, as understood in its generic sense, encompasses the physical, economic and social environment touching several of the heads of power assigned to the respective levels of government.

The Court went on to state at page 65 that "in exercising their respective legislative powers, both levels of government may affect the environment, either by acting or not acting".

[12] It has long been clear that where one order of government wishes to use the same inspectors or agents as another order of government to fulfil a role for which it is responsible, this may be accomplished by both orders of government designating the same persons or agencies to fulfil their respective roles and responsibilities.³ Also, where one order of government wishes to adopt standards to regulate an activity that are the same as those used by another order of government, this may be accomplished by incorporation by reference, so that the standards adopted by one are incorporated by reference into the legislation of the other.⁴ A description of the constitutionally permissible methods of inter-delegation can be found in P.W. Hogg, Constitutional Law of Canada, 4th ed., (Scarborough, Ont.: 1996) at paras. 14.3(b) - 14.6. A more detailed but critical description, specifically in relation to environmental matters, is found in F.S. Gertler, "Lost in (Intergovernmental) Space: Cooperative Federalism in Environmental Protection" in S.A. Kennett, ed., Law and Process in Environmental Management (Calgary: Canadian Institute of Resources Law, 1993).

Nature of the Agreements

[13] Before proceeding further, it is necessary to consider in greater detail the terms of the agreements. The Accord states that its purpose is "to provide a framework and mechanisms to achieve the vision and to guide the development of sub-agreements ..." One of its objectives is described as being to "delineate the respective roles and responsibilities" of the federal, provincial and territorial governments, by "ensuring that specific roles and responsibilities will generally be undertaken by one order of government only."⁵

[14] The governments agree that the Accord's objectives are to be achieved by following a set of principles. These read in part:

Governments agree that their environmental management activities will reflect the following:

8. decisions pursuant to the Accord will be consensus-based and driven by the commitment to achieve the highest level of environmental quality within the context of sustainable development;

9. nothing in this Accord alters the legislative or other authority of the governments or the rights of any of them with respect to the exercise of their legislative or other authorities under the Constitution of Canada;

10. legislation, regulations, policies and existing agreements should accommodate the implementation of this Accord;

11. the environmental measures established and implemented in accordance with this Accord will not prevent a government from introducing more stringent environmental measures to reflect specific circumstances or to protect environments or environmental values located within its jurisdiction; [Emphasis added.]

[15] As noted, the Accord contemplates the signing of sub-agreements. The relevant provisions read:

1. The governments will enter into multi-lateral sub-agreements to implement the commitments set out in this Accord. These sub-agreements will be related to specific components of environmental management or environmental issues to be addressed on a Canada-wide partnership basis.

2. These sub-agreements or their implementation agreements will delineate specific roles and responsibilities to provide a one-window approach to the implementation of environmental measures; in the case of environmental assessment that means a single assessment and a single review process which may involve more than one jurisdiction.

3. Roles and responsibilities will be undertaken by the order of government best situated to effectively discharge them. In assessing which government is best situated, governments will give consideration to applicable criteria, such as:

. . .

6. When a government has accepted obligations and is discharging a role, the other order of government shall not act in that role for the period of time as determined by the relevant sub-agreement.

7. In instances where a government is unable to fulfil its obligations under this Accord, the concerned governments shall develop an alternative plan to ensure that no gaps are created within the environmental management regime. As a general guideline, these plans will be completed within six months.

8. In areas where governments have been unable to reach consensus on a Canada-wide approach, each government is free to act within its existing authority and will advise the other governments accordingly.

9. When a sub-agreement or implementation agreement assigns specific roles or responsibilities to one order of government, the other order of government will review and seek to amend as necessary their legislation, regulations, policies and existing agreements to provide for the implementation of that sub-agreement.

10. Nothing in this Accord will prevent a government from taking action within its authority to respond to environmental emergencies consistent with existing emergency response agreements.

[16] The use of the word "will" signifies an intention to do something in the future. When "shall" is used, as for example in provision 6 above, it pertains to a situation that may or may not exist in the future, that is, "when a government has accepted an obligation ... the other order of government shall not act ... for the period of time determined by the relevant sub-agreement." The agreement is future looking. It contemplates cooperation by the various ministers to develop common agreed-upon measures that will then be implemented by changes to legislation, regulations, or policies as required, through the legally required processes for such change. The Accord does not specify the subject matter of these future agreements.

[17] The Inspections Sub-Agreement is described as having as its focus inspection activities pursuant to environmental protection laws in areas where federal and provincial governments have the ability to take action "in the same situations." One of its objectives is "to provide one window delivery of inspection activities related to environmental protection laws". The future oriented nature of the Inspections Sub-Agreement can be seen in provisions such as those set out below:

4.1 Governments may co-ordinate and harmonize the delivery of inspection activities under this Sub-Agreement through implementation agreements.

4.2 As a general rule, governments will maintain an inspection capacity but may divide the delivery of inspection activities between or among the governments, depending upon which is best situated to do the tasks.

4.4 In assessing which government is best situated, governments will give consideration to applicable criteria such as:

- scale, scope and nature of environmental issue

- equipment and infrastructure to support activities

- physical proximity

- efficiency and effectiveness

. . .

5.1 In undertaking a role under this sub-agreement, a government will assume obligations for the discharge of that role, and commit to report publicly to demonstrate that their obligations have been met.

5.2 When a government has accepted obligations and is discharging a role, the other order of government shall not act in that role for the period of time as determined by the relevant implementation agreement. Legislative authorities are not altered through this sub-agreement.

6.1 Governments will identify inspection activities that would benefit from harmonization and specify the applicable legislation/regulations in the implementation agreements.

6.2 Governments will seek to establish timely and effective information sharing and reporting, coordinate quality assurance and control programs, and seek mutual support utilizing the strengths and capabilities of each jurisdiction throughout implementation of this Sub-Agreement.

. . .

6.5 All implementation agreements will establish public reporting mechanisms, and a process consistent with 5.3, as part of the accountability framework.

6.6 Implementation agreements under this Sub-Agreement should address the following additional implementation aspects to the extent possible:

- coordination of training inspectors;

- development of consistent methods, procedures and practices; [Emphasis added.]

. . .

[18] Some provisions of the agreements are inconsistent with each other. For example, while the Inspections Sub-Agreement, as noted above, does not identify any specific inspection activity that is to be coordinated, it does describe in general terms the areas in which the federal government, on the one hand, and the provincial and territorial governments, on the other, will normally operate:

4.2.1 In the context of this Sub-Agreement, the normal inspection functions of the federal government will include international borders and obligations, transboundary domestic issues, federal lands and facilities, products/substances in Canada-wide trade and commerce, and other matters specific to the federal government.

4.2.2 In the context of this Sub-Agreement, the normal inspection functions of provincial and territorial governments will include industrial and municipal facilities and discharges, application of laws on provincial and territorial land, waste disposal and destruction, and other matters specific to provincial and territorial governments.

4.2.3 This Sub-Agreement does not preclude the sharing of inspection activities as agreed by governments through implementation agreements.

[19] At the same time, it contains a clause that provides:

2.2 This Sub-Agreement does not apply to enforcement activities or any other matter governments agree to exclude as specified through implementation agreements. [Emphasis added.]

[20] The Standards Sub-Agreement describes its objectives as being "the continual development, improvement and attainment of priority Canada-wide Environmental Standards". The inchoate nature of the Standards Sub-Agreement can be seen in provisions such as those set out below:

For the purposes of this Sub-Agreement, governments agree:

4.1 to participate in the prioritization, development and recommendation of Canada-wide priority standards to Ministers;

4.2 to ensure that standards are met through the application of their respective environmental management programs. In choosing how to ensure that agreed standards are met, governments have the flexibility to adapt their management regimes to the priorities and unique situations within their borders;

4.4 that when a government has accepted obligations and is discharging a role under this Sub-Agreement, the other order of government shall not act in that role for the period of time as determined in the relevant agreement. Legislative authorities are not altered through this Sub-Agreement;

. . .

5.1.1 Ministers of the Environment, through the CCME, will establish priorities for the development of Canada-wide Environmental Standards and the timeframe for their development and implementation.

5.1.2 In support of consideration by Ministers, governments will identify existing and emerging issues of Canada-wide significance with potential impacts on the environment and human health.

5.1.3 As the first step for any proposed Canada-wide Environmental Standard, governments agree to consult each other and to cooperatively determine an appropriate course of action. As a general guideline, the appropriate course of action will be agreed to within six (6) months.

5.2.1 The most effective and efficient process for the development of standards may vary by agreed-upon priority. Ministers will agree on the process for the development of standards on a case by case basis.

5.2.2 The appropriate process for the development of any standard could include a process internal to the Canadian Council of Ministers of the Environment, or could include other agreed-upon fora.

5.3.1 Canada-wide Environmental Standards developed under this Sub-Agreement will be submitted to Ministers for their consideration and endorsement. [Emphasis added.]

[21] The Environmental Assessment Sub-Agreement is a bit more concrete than the other three, in that it prescribes procedures to be followed once projects that are to be governed thereby have been identified. At the same time, the projects to which it will apply remain to be identified:

5.9.0 The Parties agree to negotiate bilateral agreements to implement this Sub-agreement. Bilateral agreements will be shared with the other Parties and applicable provisions in these agreements will be available for inclusion in bilateral agreements with the other Parties.

5.10.0 The Parties involved in an assessment agree to base their decisions and approvals on the overall environmental acceptability of the proposed project on the information generated by the assessment. Each Party retains the ability to make decisions respecting the proposed project and to issue or refuse permits, licenses, funding, or other authorizations with regard to a proposed project for matters within its legislative authority.

5.11.0 The Parties agree that measures will be developed to ensure the timely fulfillment of assessment and review responsibilities for a proposed project under this Sub-agreement. Measures may include:

(a) legislated timelines;

(b) bilateral agreements for co-operation;

(d) voluntary agreement between the Parties and the proponent.

5.12.0 The Parties agree to seek to amend their legislation and/or assessment processes as necessary to comply with their obligations under the terms of this Sub-agreement.

[22] The lack of specificity with respect to the subject matters that will be brought under the Accord and Sub-Agreements and covered by their terms leads to great difficulty, indeed makes it impossible, to render a decision on many of the Association's arguments. These include the assertion that the Minister lacks authority to sign the agreements (1) because of conflict with the Canadian Environmental Protection Act; (2) because the Agreements intrude on the authority of other Ministers; and (3) because the Minister is fettering her own statutory authority. Before dealing with these issues, I will first address the Association's arguments that the provisions of Department of the Environment Act and the Canadian Environmental Assessment Act were insufficient to grant the Minister authority to enter into the Accord and Sub-Agreements in the first place.

Minister's Authority to Sign

a) The Department of the Environment Act

[23] The Accord and two of the Sub-Agreements, the Sub-Agreement on Inspections and the Sub-Agreement on Standards, were entered into by the Minister pursuant to authority conferred on her by section 7 of the Department of the Environment Act, R.S.C. 1985, c. E-10:

7. The Minister may, with the approval of the Governor in Council, enter into agreements with the government of any province or any agency thereof respecting the carrying out of programs for which the Minister is responsible . [Underlining added.]

7. Le ministre peut, avec l'approbation du gouverneur en conseil, conclure avec les gouvernements des provinces ou leurs organismes des accords relatifs à la réalisation de programmes relevant de sa compétence. [C'est moi qui souligne.]

[24] The relevant statutory instrument (P.C. 1998-70, January 28, 1998) granting approval for the signing of the Accord reads:

His Excellency the Governor General in Council, on the recommendation of the Minister of the Environment, pursuant to section 7 of the Department of the Environment Act, hereby approves the entry by the Minister of the Environment, on behalf of the Government of Canada, with the governments of the provinces of Alberta, British Columbia, Manitoba, New Brunswick, Newfoundland, Nova Scotia, Ontario, Prince Edward Island, Quebec and Saskatchewan and the governments of the Northwest Territories and the Yukon Territory, into the Canada-wide Accord on Environmental Harmonization, substantially in accordance with the annexed draft accord. [Underlining added.]

The statutory instruments (P.C. 1998-71 and P.C. 1998-72) granting approval for the signing of the Inspections Sub-Agreement and the Standards Sub-Agreement are similar.

[25] The Association argues that the federal-provincial agreements in question are not ones that fall within the scope of authority conferred upon the Minister by section 7, because they do not relate to "the carrying out of programs for which the Minister is responsible" ["relatifs à la réalisation de programmes relevant de sa compétence"]. The Association argues that the programs for which the Minister is responsible are limited to the environmental quality and pollution control programs identified in sections 4 and 5 of the Act. Sections 4 and 5 of the Act provide:

4. (1) The powers, duties and functions of the Minister extend to and include all matters over which Parliament has jurisdiction, not by law assigned to any other department, board or agency of the Government of Canada, relating to

4. (1) Les pouvoirs et fonctions du ministre s'étendent d'une façon générale à tous les domaines de compétence du Parlement non attribués de droit à d'autres ministères ou organismes fédéraux et liés :

(a) the preservation and enhancement of the quality of the natural environment, including water, air and soil quality;

a) à la conservation et l'amélioration de la qualité de l'environnement naturel, notamment celle de l'eau, de l'air et du sol;

. . .

(f) the coordination of the policies and programs of the Government of Canada respecting the preservation and enhancement of the quality of the natural environment;

. . .

f) à la coordination des plans et programmes du gouvernement fédéral en matière de conservation et d'amélioration de la qualité de l'environnement naturel;

(2) The powers, duties and functions of the Minister also extend to and include such other matters, relating to the environment and over which Parliament has jurisdiction, as are by law assigned to the Minister.

(2) Les pouvoirs et fonctions du ministre s'étendent en outre aux autres domaines de compétence du Parlement liés à l'environnement et qui lui sont attribués de droit.

5. The Minister, in exercising his powers and carrying out his duties and functions under section 4, shall

5. Dans le cadre des pouvoirs et fonctions que lui confère l'article 4, le ministre:

(a) initiate, recommend and undertake programs, and coordinate programs of the Government of Canada that are designed

a) lance, recommande ou entreprend à son initiative et coordonne à l'échelle fédérale des programmes visant à :

(i) to promote the establishment or adoption of objectives or standards relating to environmental quality, or to control pollution,

(i) favoriser la fixation ou d'adoption d'objectifs ou de normes relatifs à la qualité de l'environnement ou à la lutte contre la pollution,

(ii) to ensure that new federal projects, programs and activities are assessed early in the planning process for potential adverse effects on the quality of the natural environment and that a further review is carried out of those projects, programs, and activities that are found to have probable significant adverse effects, and the results thereof taken into account, and

(ii) faire en sorte que les nouveaux projets, programmes et activités fédéraux soient, dès les premières étapes de planification, évalués en fonction de leurs risques pour la qualité de l'environnement naturel, et que ceux d'entre eux dont on aura estimé qu'ils présentent probablement des risques graves fassent l'objet d'une réexamen dont les résultats devront être pris en considération,

(iii) to provide to Canadians environmental information in the public interest;

(iii) fournir, dans l'intérêt public, de l'information sur l'environnement à la population;

(b) promote and encourage the institution of practices and conduct leading to the better preservation and enhancement of environmental quality, and cooperate with provincial governments or agencies thereof, or any bodies, organizations or persons, in any programs having similar objects; and

b) favorise et encourage des comportements tendant à protéger et améliorer la qualité de l'environnement, et coopère avec les gouvernements provinciaux ou leurs organismes, ou avec tous autres organismes, groupes ou particuliers, à des programmes dont les objets sont analogues;

(c) advise the heads of departments, boards and agencies of the Government of Canada on all matters pertaining to the preservation and enhancement of the quality of the natural environment. [Underlining added.]

c) conseille les chefs des divers ministères ou organismes fédéraux en matière de conservation et d'amélioration de la qualité de l'environnement naturel. [C'est moi qui souligne.]

[26] The Association suggests that the Accord and two Sub-Agreements contemplate much more than an environmental quality or pollution control program, although they do have such elements. The Association believes that the Accord and Sub-Agreements constitute an articulation of government policy that attempts to realign federal and provincial roles and responsibilities over environmental management. As such, they go beyond the Minister's authority under section 7 of the Department of the Environment Act.

[27] In support of his argument, counsel for the Association relies on the decision in Canada (Attorney General) v. Saskatchewan Water Corp., [1992] 4 W.W.R. 712 (Sask. C.A.), one of the only cases to interpret section 7 of the Act. In that case, the Saskatchewan Court of Appeal was considering whether Governor in Council approval pursuant to section 7 of the Department of the Environment Act was necessary for a federal-provincial agreement concerning the Rafferty Alameda dam project. The issue was whether this project constituted a "program" under section 7 of the Act. If it did, then the already signed federal-provincial agreement respecting the project would not be valid, since such approval had not been obtained. The Court stated at pages 734-736 that a contextual approach to the interpretation of section 7 should be adopted and that "section 5 of the Act hint[ed] strongly that a 3program3, as the term is used in section 7, means an environmental quality control program or a pollution control program ." (Emphasis added.) The Court decided that while the Minister needed Governor in Council approval for any agreement respecting "the carrying out of an environmental quality program or a pollution control program for which the minister as initiator, recommender, undertaker or coordinator is responsible" (emphasis added), the Rafferty Alameda dam was not such a project.

[28] The applicant also relies on the decision in Brown v. British Columbia (Minister of Transportation and Highways), [1994] 1 S.C.R. 420. That case dealt with government tort liability and distinguished between operational decisions and policy decisions made by a government. The government was held to be responsible in tort for the former but not for the latter. Counsel argues that there is a distinction between the Minister's authority to initiate, recommend or undertake programs and her authority to articulate or adopt policies, and that only the former is encompassed by section 7.

[29] I cannot conclude that the authority conferred by section 7 is so narrowly confined. The Saskatchewan Water Corp. case only decided that the Rafferty Alameda dam project did not require approval pursuant to section 7. It cannot be interpreted as standing for any broader proposition respecting the interpretation of section 7. The references to section 5 in the reasons are very tentative; section 5 is described as "hinting" at the conclusions suggested. It is clear that the Saskatchewan Court of Appeal made no firm findings in this regard. The Brown case deals with an entirely different area of the law: governmental tort liability. It is not relevant to an interpretation of section 7 of the Department of the Environment Act.

[30] Furthermore, the text of the Act itself suggests a broader ambit counsel for the Association proposes. For example, in subsection 5(a), the Minister is authorized to "undertake programs ... that are designed ... to promote ... the adoption of objectives or standards relating to environmental quality". The Minister is authorized in subsection 5(b) to "... encourage the institution of practices and conduct leading to ... the enhancement of environmental quality, and co-operate with provincial governments ... in any programs having similar objects". Her authority under section 4 includes "the coordination of the policies and programs of the Government of Canada respecting the preservation and enhancement of the quality of the natural environment". In this context, I cannot interpret the phrase "agreements ... respecting the carrying out of programs for which the Minister is responsible" in section 7 to include only what the Association characterizes as operational programs. It must also include programs that deal with preliminary activities or initiatives and agreements in principle of the kind found in the Accord and the two above mentioned Sub-Agreements.

b) The Canadian Environmental Assessment Act

[31] The Minister's authority to sign the Sub-Agreement on Environmental Assessment does not come from section 7 of the Department of the Environment Act but from paragraphs 58(1)(c) and (d) of the Canadian Environmental Assessment Act, S.C. 1992, c. 37:

58. (1) For the purposes of this Act, the Minister may

. . .

(c) enter into agreements or arrangements with any jurisdiction within the meaning of paragraph 40(1)(a), (b), (c) or (d) respecting assessments of environmental effects;

(d) enter into agreements or arrangements with any jurisdiction, within the meaning of subsection 40(1), for the purposes of coordination, consultation, exchange of information and the determination of factors to be considered in relation to the assessment of the environmental effects of projects of common interest;

58. (1) Pour l'application de la présente loi, le ministre peut :

. . .

c) conclure des accords avec toute instance au sens des alinéas 40(1)a), b), c) ou d) en matière d'évaluation des effets environnementaux;

d) conclure des accords avec toute instance, au sens du paragraphe 40(1), en matière de coordination, de consultation, d'échange d'information et de détermination des facteurs à considérer relativement à l'évaluation des effets environnementaux de projets d'intérêt commun;

[32] Section 40(1) defines the parties with which the Minister may enter into agreements, for example, a federal authority, the government of a province, an agency established pursuant to an Act of Parliament or the legislature of a province that has functions in relation to the assessment of the environmental effects of a project. The approval of the Governor-in-Council is not needed for agreements entered into pursuant to these provisions. These provisions provide the Minister with sufficient authority to sign the Sub-Agreement on Environmental Assessment.

c) Conflict with Canadian Environmental Protection Act and Canadian Environmental Assessment Act ?

[33] As well as her authority under section 7 of the Department of the Environment Act, the Minister has authority to enter into federal-provincial agreements under the Canadian Environmental Protection Act, R.S.C. 1985, c. 16 (4th Supp.), sections 6, 98 and 99:

6. (1) For the purpose of establishing a framework for national action and taking cooperative action in matters affecting the environment and for the purpose of avoiding conflict between, and duplication in, federal and provincial regulatory activity, the Minister shall, in cooperation with the governments of the provinces, establish a federal-provincial advisory committee to advise the Minister on

(a) regulations proposed to be made under paragraph 34(1)(a), (b), (c), (d), (o) or (q); and

6. (1) En vue d'établir un cadre d'action nationale et de prendre des mesures coordonnées dans les domaines touchant l'environnement, ainsi que pour éviter les conflits entre les règlements fédéraux et provinciaux ou leur dédoublement, le ministre peut, en collaboration avec les governements provinciaux, constituer un comité consultatif fédéro-provincial chargé de le conseiller sur les projets de règlements prévus aux alinéas 34(1)a), b), c), d), o) et q) et les autres questions d'intérêt commun liées à l'environnement.

(b) other environmental matters that are of mutual interest to the federal and provincial governments and to which this Act relates.

(2) The Minister shall include in the annual report required by section 138 a report of the activities of the federal-provincial advisory committee.

(2) Le ministre inclut dans le rapport annuel exigé par l'article 138 un rapport sur les activités du comité consultatif fédéro-provincial.

. . .

98. (1) The Minister may

(a) with the approval of the Governor in Council, enter into an agreement with one or more provincial governments with respect to the administration of this Act; and

(b) subject to such terms and conditions as the Governor in Council may specify in the approval, agree to amendments of the agreement.

98. (1) Le ministre peut, avec l'agrément du gouverneur en conseil, conclure avec un ou plusieurs gouvernements provinciaux des accords relatifs à l'éxécution de la présente loi et, sous réserve des conditions stipulées dans l'agrément, consentir à des modifications des accords.

(2) The Minister shall make public any agreement made under subsection (1).

(2) Le ministre rend publics les accords conclus en vertu du paragraphe (1).

(3) The Minister shall include in the annual report required by section 138, a report on the administration of this Act under agreements made under subsection (1).

(3) Le ministre inclut dans le rapport visé à l'article 138 un rapport sur l'exécution de la présente loi en vertu des accords prévus au paragraphe (1).

99. (1) The Minister may designate as an inspector or analyst for the purposes of this Act, or any portion thereof,

(a) any person who, in the Minister's opinion, is qualified to be so designated; and

(b) with the approval of the government of a province, any person or class of persons employed by the province in the administration of a law respecting the protection of the environment.

99.(1) Le ministre peut désigner, à titre d'inspecteur ou d'analyste pour l'application de tout ou partie de la présente loi :

a) toute personne qu'il estime compétente pour occuper cette fonction;

b) avec l'approbation du gouvernement d'une province, toute personne affectée " ou appartenant à une catégorie affectée " par la province à l'exécution d'une loi concernant la protection de l'environnement.

(2) An inspector shall be furnished with a certificate of designation as an inspector and on entering any place under subsection 76(1) or 100(1) shall, if so requested, produce the certificate to the person in charge thereof.

(2) L'inspecteur doit recevoir un certificat attestant sa qualité, qu'il présente, sur demande, au responsable du lieu visé aux paragraphes 76(1) ou 100(1).

[34] Counsel for the Association argues that section 98 creates a mandatory and exclusive regime for federal-provincial relations and agreements for those matters encompassed by the Canadian Environmental Protection Act. Counsel argues that any federal-provincial agreement on topics administered by this Act must be concluded according to its statutory terms: subsection 98(1) compels the Minister to seek authorization from the Governor in Council for entering into federal-provincial agreements, subsection 98(2) requires any such agreements to be made public, and subsection 98(3) mandates the submission of an annual report. In the Association's view, these requirements have not been properly followed for the Accord and Inspections and Standards Sub-Agreements. Similarly, counsel argues that section 99 provides the only mechanism for coordination of federal and provincial environmental inspection activities, and that this mechanism has also been side-stepped by the agreements. Counsel submits that by concluding the agreements pursuant to section 7 of the Department of the Environment Act, instead of under the more specific provisions of the Canadian Environmental Protection Act, the Minister has acted in a manner inconsistent with her powers, and thus in excess of her jurisdiction.

[35] I accept the correctness of counsel for the Association's argument that the Minister's authority pursuant to sections 6, 98 and 99 of the Canadian Environmental Protection Act is more specific than that described in the Department of the Environment Act, and that the ordinary rules of statutory interpretation require the specific to prevail over the general. The Accord and the Sub-Agreements on Inspections and Standards were entered into pursuant to the Minister's authority derived from section 7 of the Department of the Environment Act, however, without details as to the exact subject matter of future agreements, it is not possible to assess the extent to which the more specific provisions of the Canadian Environmental Protection Act should have been relied upon. To the extent that any given future agreement, such as an implementation agreement, deals with subject matters falling within the Minister's authority under the Canadian Environmental Protection Act, and not solely that arising under the Department of the Environment Act, there is a credible argument that unless validated in accordance with the terms set out in the Canadian Environmental Protection Act, the agreement would be invalid. In the meantime, I have to agree with counsel for the respondent that the argument on this ground is premature.

[36] Counsel for the Association submits that the Sub-Agreement on Environmental Assessment is inconsistent with the Canadian Environmental Assessment Act on the ground that clause 4.1.0 of the Sub-Agreement lists factors that "shall be considered for inclusion" in an environmental assessment that are different from the factors outlined as mandatory considerations in section 16 of the Act. I accept counsel for the respondent's submission that clause 4.1.0 does not limit what may be considered. In fact, it states that "the Parties involved in an assessment shall consider for inclusion, but not be limited to, the following information elements." Each party will be free to negotiate the terms of reference of an assessment to meet the legal requirements of their respective legislation.

d) Circumscribing Other Minister's Authority

[37] Under the Canadian Environmental Assessment Act, ministers other than the Minister of the Environment have responsibilities. In relation to any given project it is the "responsible authority" that may delegate any part of the screening or comprehensive study of a project, or the preparation of the screening report or comprehensive study report. Counsel for the Association questions how this authority will be affected by clause 5.4 of the Sub-Agreement on Environmental Assessment, which states that the federal and provincial governments will agree on a lead party for an assessment and that lead party will then undertake the assessment.

[38] Similarly, section 34 of the Canadian Environmental Protection Act provides that once there is a finding that a given substance is toxic, both the Minister of the Environment and the Minister of Health may make a recommendation to cabinet that the substance be regulated. Counsel for the Association suggests that as a result of the Accord and Sub-Agreements the Minister of the Environment along with the CCME will decide what substances should be regulated, pre-empting an exercise of discretion by the Minister of Health. Under sections 36 and 37 of the Fisheries Act, the pollution of fish habitat is prohibited and the Minister of Fisheries has authority to demand samples, tests, studies, etc. with respect to pollution in such waters.

[39] Counsel for the Association argues that the Accord and the three Sub-Agreements purport to fetter the discretion of these other Ministers and the respondent Minister does not have authority to sign agreements that have that effect. Whether or not such attempted fettering will occur depends on the content of the future agreements. The consequence that is postulated is speculative. I have to conclude that the argument is premature.

Minister Fettering Her Own Authority

[40] Counsel for the applicant also argues that by signing agreements in which the Minister has agreed not to act, she has fettered her discretion to exercise her statutory responsibilities. In the Accord, for example, one of its objectives is to "delineat[e] the respective roles and responsibilities [of governments] ... by ensuring that specific roles and responsibilities will generally be undertaken by one order of government only". The Accord states that "when a government has accepted obligations and is discharging a role, the other order of government shall not act in that role for a period of time as determined by the relevant sub-agreement."

[41] The Inspections Sub-Agreement similarly provides that:

5.2 When a government has accepted obligations and is discharging a role, the other order of government shall not act in that role for the period of time as determined by the relevant implementation agreement. Legislative authorities are not altered through this sub-agreement.

[42] The Standards Sub-Agreement provides:

4.4 that when a government has accepted obligations and is discharging a role under this Sub-Agreement, the other order of government shall not act in that role for the period of time as determined in the relevant agreement. Legislative authorities are not altered through this Sub-Agreement;

4.5 that in instances where a government is unable to fulfil its obligations under this Sub-Agreement, the concerned governments shall develop an alternative plan to ensure that no gaps are created within the environmental management regime. [Emphasis added.]

[43] The Environmental Assessment Sub-Agreement states that:

5.1.0 There will be one assessment for a proposed project, which will meet the information requirements of all Parties making decisions on the basis of the assessment.

5.4.0 There will be a lead Party responsible for the administration of the assessment process for each proposed project; each Party involved in the assessment will identify a one-window contact for that assessment.

5.10.0 The Parties involved in an assessment agree to base their decisions and approvals on the overall environmental acceptability of the proposed project on the information generated by the assessment. Each Party retains the ability to make decisions respecting the proposed project and to issue or refuse permits, licenses, funding, or other authorizations with regard to a proposed project for matters within its legislative authority. [Emphasis added.]

[44] Again, no specific factual situation to which these provisions apply has been put forward. There is simply an insufficient factual basis on which a determination can be made that the Minister has fettered any decision-making discretion she has under one or more statutory provisions.

[45] I recognize the validity of the Association's argument that it would be preferable if answers could be given to some of the questions it has raised now. Indeed, it would be preferable to have one application rather than many being litigated. Nevertheless, whatever future action is taken may not result in a derogation of federal-ministerial authority or offend statutory provisions. In my view, the answers must await more factual content.

Conclusion

[46] For the reasons given, the application for the orders sought will be dismissed.

"B. Reed"

Judge

WINNIPEG, MANITOBA

April 27, 1999

A P P E N D I X

A CANADA-WIDE ACCORD ON ENVIRONMENTAL HARMONIZATION

VISION

Governments working in partnership to achieve the highest level of environmental quality for all Canadians.

PURPOSE OF THE ACCORD

To provide a framework and mechanisms to achieve the vision and to guide the development of sub-agreements pursuant to the Accord.

THE OBJECTIVES OF HARMONIZATION

The objectives of harmonization are to:

* enhance environmental protection;

* promote sustainable development; and

* achieve greater effectiveness, efficiency, accountability, predictability and clarity of environmental management for issues of Canada-wide interest, by:

1. using a cooperative approach, to develop and implement consistent environmental measures in all jurisdictions, including policies, standards, objectives, legislation and regulations;

2. delineating the respective roles and responsibilities of the Federal, Provincial and Territorial governments within an environmental management partnership by ensuring that specific roles and responsibilities will generally be undertaken by one order of government only;

3. reviewing and adjusting Canada's environmental management regimes to accommodate environmental needs, innovation, expertise and capacities, and addressing gaps and weaknesses in environmental management; and

4. preventing overlapping activities and inter-jurisdictional disputes.

PRINCIPLES

Governments agree that their environmental management activities will reflect the following:

1. those who generate pollution and waste should bear the cost of prevention, containment, cleanup or abatement (polluter pays principle);

2. where there are threats of serious or irreversible environmental damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation (precautionary principle);

3. pollution prevention is the preferred approach to environmental protection;

4. environmental measures should be performance-based, results-oriented and science-based;

5. openness, transparency, accountability and the effective participation of stakeholders and the public in environmental decision-making is necessary for an effective environmental management regime;

6. working cooperatively with Aboriginal people and their structures of governance is necessary for an effective environmental management regime;

7. Canada-wide approaches on how to meet the objectives of this Accord will allow for flexible implementation required to reflect variations in ecosystems and local, regional, provincial and territorial conditions;

8. decisions pursuant to the Accord will be consensus-based and driven by the commitment to achieve the highest level of environmental quality within the context of sustainable development;

9. nothing in this Accord alters the legislative or other authority of the governments or the rights of any of them with respect to the exercise of their legislative or other authorities under the Constitution of Canada;

10. legislation, regulations, policies and existing agreements should accommodate the implementation of this Accord;

11. the environmental measures established and implemented in accordance with this Accord will not prevent a government from introducing more stringent environmental measures to reflect specific circumstances or to protect environmentals or environmental values located within its jurisdiction;

12. this Accord and sub-agreements do not affect aboriginal or treaty rights;

13. all Canadians should be confident that their environment is respected by neighbouring Canadian jurisdictions.

SUB-AGREEMENTS

1. The governments will enter into multi-lateral sub-agreements to implement the commitments set out in this Accord. These sub-agreements will be related to specific components of environmental management or environmental issues to be addressed on a Canada-wide partnership basis.

2. These sub-agreements or their implementation agreements will delineate specific roles and responsibilities to provide a one-window approach to the implementation of environmental measures; in the case of environmental assessment that means a single assessment and a single review process which may involve more than one jurisdiction.

3. Roles and responsibilities will be undertaken by the order of government best situated to effectively discharge them. In assessing which government is best situated, governments will give consideration to applicable criteria, such as:

" scale, scope and nature of environmental issue

" equipment and infrastructure to support obligations

" physical proximity

" efficiency and effectiveness

" human and financial resources to deliver obligations

" scientific and technical expertise

" ability to address client or local needs

" interprovincial/interterritorial/international considerations

4. Pursuant to this Accord, governments may also enter into regional or bilateral implementation agreements on regional or local issues, for specific ecosystems, for the purposes of providing for necessary variations in the implementation of environmental measures, or for facilitating cooperation in matters not specifically covered under this general multi-lateral Accord.

5. In undertaking a role under a sub-agreement, a government will assume results-oriented and measurable obligations for the discharge of that role, and commit to regular public reporting to demonstrate that its obligations have been met.

6. When a government has accepted obligations and is discharging a role, the other order of government shall not act in that role for the period of time as determined by the relevant sub-agreement.

8. In areas where governments have been unable to reach consensus on a Canada-wide approach, each government is free to act within its existing authority and will advise the other governments accordingly.

9. When a sub-agreement or implementation agreement assigns specific roles or responsibilities to one order of government, the other order of government will review and seek to amend as necessary their legislation, regulations, policies and existing agreements to provide for the implementation of that sub-agreement.

10. Nothing in this Accord will prevent a government from taking action within its authority to respond to environmental emergencies consistent with existing emergency response agreements.

ADMINISTRATION

1. It is the intention of Ministers to conclude sub-agreements on all areas of environmental management that would benefit from Canada-wide coordinated action.

2. Through the Canadian Council of Ministers of the Environment (CCME), ministers will set priorities and establish workplans for addressing issues of Canadian-wide significance pursuant to this Accord. Any government may bring forward issues for consideration by the Council of Ministers.

3. Ministers will review progress under the Accord and will provide regular public reports on meeting obligations under the Accord.

4. The resource implications of any adjustments to government programming resulting from this Accord and its sub-agreements will be examined and addressed.

5. This Accord and its sub-agreements may be amended from time to time with the consent of the governments.

6. This Accords comes into force as of January 29, 1998. A government may withdraw from this Accord six months after giving notice.

7. The Council of Ministers in consultation with the public will review this Accord 2 years after the date of its coming into force to evaluate its effectiveness and determine its future.

8. Each government will make the accord and Canada-wide sub-agreements available to the public.

CANADA-WIDE ENVIRONMENTAL INSPECTIONS SUB-AGREEMENT

1. OBJECTIVES

1.1. Consistent with the Canada-wide Accord on Environmental Harmonization, and to enhance the regimes for compliance verification under environmental protection laws, the objectives of this Sub-Agreement are:

1.1.1 To provide an efficient and cost effective approach to inspections in Canada.

1.1.2 To provide one window delivery of inspection activities related to environmental protection laws.

2. SCOPE

2.1 This Sub-Agreement applies to inspection activities undertaken for the purpose of compliance verification with environmental protection laws.

2.1.1 "Inspection activities" means any function that allows for compliance verification with environmental requirements such as site visits, examining substances, products or wastes, taking samples for analysis, examining records or other information, responding to complaints, and review of self-reported information.

2.1.2 "compliance verification" means actions taken by governments to verify that the operations and activities of regulatees are in conformity with the law.

2.2 This Sub-Agreement does not apply to enforcement activities or any other matter governments agree to exclude as specified through implementation agreements.

2.3 The focus of this Sub-Agreement is on areas where federal, provincial and territorial governments have the ability to take action in the same situations. Based on assessment of which government is best-situated, implementation agreements could encompass inspection activities relative to other environmental legislation on a case-by-case basis as agreed to by the respective governments.

3. PRINCIPLES

3.1 In addition to principles identified in the Canada-wide Accord on Environmental Harmonization, inspection activities pursuant to implementation agreements under this Sub-Agreement will reflect the following:

3.1.1 Transparency: Inspection information will be shared between and among governments and reports on inspection activities will be publicly available.

3.1.2 Equity: Governments are committed to achieving a consistent level of environmental quality across Canada.

3.1.3 Risk Based Approach: Governments will set priorities for inspection activities in consideration of environmental and health risks.

4. APPROACH

4.1 Governments may co-ordinate and harmonize the delivery of inspection activities under this Sub-Agreement through implementation agreements.

4.2 As a general rule, governments will maintain an inspection capacity but may divide the delivery of inspection activities between or among the governments, depending upon which is best situated to do the tasks.

4.2.3 This Sub-Agreement does not preclude the sharing of inspection activities as agreed by governments through implementation agreements.

4.3 For the purpose of this Sub-Agreement, the normal functions set out in 4.2. may be varied based on a best-situated assessment as per criteria outlined in 4.4, and as agreed to by governments through development of specific implementation agreements.

4.4 In assessing which government is best situated, governments will give consideration to applicable criteria such as:

- scale, scope and nature of environmental issue

- equipment and infrastructure to support activities

- physical proximity

- efficiency and effectiveness

- human and financial resources to deliver obligations

- scientific and technical expertise

- ability to address client or local needs

- interprovincial, interterritorial/international considerations

- government already performing inspections

5. ACCOUNTABILITY

5.1 In undertaking a role under this sub-agreement, a government will assume obligations for the discharge of that role, and commit to report publicly to demonstrate that their obligations have been met.

5.2 When a government has accepted obligations and is discharging a role, the other order of government shall not act in that role for the period of time as determined by the relevant implementation agreement. Legislative authorities are not altered through this sub-agreement.

5.3 In instances where a government is unable to fulfil its obligations under this sub-agreement, the concerned governments shall develop an alternative plan to ensure that no gaps are created within the environmental management regime. In developing an alternative plan, the concerned governments will jointly identify issues to be addressed, collaborative mechanisms, and a plan of action, including timeframes for implementation of the plan. As a general guideline, these plans will be completed within six (6) months.

6. IMPLEMENTATION

6.1 Governments will identify inspection activities that would benefit from harmonization and specify the applicable legislation/regulations in the implementation agreements.

6.2 Governments will seek to establish timely and effective information sharing and reporting, coordinate quality assurance and control programs, and seek mutual support utilizing the strengths and capabilities of each jurisdiction throughout implementation of this Sub-Agreement.

6.3 Where an inspection activity, conducted by a government that is acting on behalf of another, reveals a suspected violation of a specified law, the administering government will contact the other government as soon as practical to advise of the situation consistent with procedures outlined in implementation agreements.

6.4 The gathering and sharing of information will respect all relevant access to information and privacy laws and requirements for public disclosure or confidentiality within environmental protection laws. Consultation between or among governments will be undertaken as appropriate.

6.5 All implementation agreements will establish public reporting mechanisms, and a process consistent with 5.3, as part of the accountability framework.

6.6 Implementation agreements under this Sub-Agreement should address the following additional implementation aspects to the extent possible:

- coordination of training of inspectors;

- development of consistent methods, procedures and practices;

- a compatible database of inspection results;

- resource implications of the obligations that a jurisdiction might have to assume through the implementation of this Sub-Agreement;

- the mechanism for, and linkage between, inspection activities and investigations in non-compliance situations;

- any other matter necessary to implement the Sub-Agreement as agreed by governments.

7. MANAGEMENT AND ADMINISTRATION

7.1 Ministers, through CCME, will review progress, address issues and effectively administer the requirements of this Sub-Agreement.

7.2 This Sub-Agreement may be amended from time to time with the consent of the governments.

7.3 This Sub-Agreement shall enter into force on the date of execution indicated herein. A government may withdraw from this Sub-Agreement six (6) months after giving notice.

7.3.1 Implementation agreements under this Sub-Agreement shall enter into force on the last date of execution indicated therein. A government may withdraw from an implementation agreement six (6) months after giving notice.

7.4 The Council of Ministers, in consultation with the public, will review this Sub-Agreement two (2) years after the date of its coming into force to evaluate its effectiveness and determine its future.

8. OTHER

8.1 The harmonization of applicable inspection functions in Yukon and Northwest Territories will be implemented after further resource management and related environmental protection responsibilities are devolved to the Territorial Governments or though intergovernmental agreements, which include appropriate roles for resource management institutions established pursuant to aboriginal claims agreements.

CANADA-WIDE ENVIRONMENTAL STANDARDS SUB-AGREEMENT

1. OBJECTIVES

1.1 Consistent with the Canada-wide Accord on Environmental Harmonization, the objectives of this Sub-Agreement are:

1.1.1 To provide for the continual development, improvement, and attainment of priority Canada-wide Environmental Standards for environmental quality and human health across Canada, consistent with the vision and principles of the Accord.

1.1.2 To provide for a cooperative, co-ordinated federal, provincial and territorial approach for:

- identifying Canada-wide environmental priorities;

- developing Canada-wide Environmental Standards for the identified priorities;

- agreeing on the actions required and obligations of governments for attaining the agreed-upon Canada-wide Environmental Standards;

- effective, efficient and harmonized implementation; and

- accountability to Canadians for meeting obligations and attaining agreed-upon Canada-wide Environmental Standards.

2. SCOPE

2.1 For the purposes of this Sub-Agreement, Canada-wide Environmental Standards encompass qualitative or quantitative standards, guidelines, objectives and criteria for protecting the environment and human health.

2.2 The primary focus of this Sub-Agreement is on Canada-wide priority ambient environmental standards for the quality of air, water, soil, biota, other media, and for other components of ecosystems as well as ecosystems themselves.

2.3 Where governments agree, Canada-wide Environmental Standards may also, where appropriate, and/or in support of the objectives of this Sub-Agreement include:

- discharge specifications on the quantity and\or quality of a release of a specific type/source of pollution;

- product and/or waste specifications on the limits of a substance and/or the environmental performance for a commercial product.

2.4 This Sub-Agreement covers Canada-wide Environmental Standards for priorities as agreed to by governments. It permits governments to develop and implement standards which are not Canada-wide priorities under this Sub-Agreement.

3. PRINCIPLES

3.1 In addition to principles identified in the Canada-wide Accord on Environmental Harmonization, the following underpin the development and attainment of Canada-wide Environmental Standards:

3.1.1 Pollution Prevention: Pollution prevention is the preferred approach to environmental protection. Governments will place emphasis on a pollution prevention approach when implementing standards under this Sub-Agreement.

3.1.2 Science-based: Canada-wide Environmental Standards developed under this Sub-Agreement will be based on sound science.

3.1.3 Precautionary Principle: Where there are threats of serious or irreversible environmental damage, lack of full scientific certainty shall not be used as a reason for postponing the development and implementation of standards.

3.1.4 Equity: Governments are committed to achieving a consistent level of environmental quality across Canada.

3.1.5 Results-oriented: The Canada-wide Environmental Standards will be expressed in terms of the desired environmental result/outcome. Timelines will be established for their attainment. Other performance measures and indicators will be established where applicable to provide additional benchmarks for monitoring and reporting on the attainment of agreed-upon Canada-wide Environmental Standards.

3.1.6 Flexibility: While recognizing the principle of equity and the merits of Canada-wide consistency of environmental standards, this Sub-Agreement recognizes the need for local, regional, provincial and territorial flexibility in the measures taken to attain the standards. Decisions on the most appropriate and effective measures to attain the standards will be at the discretion of the responsible governments.

3.1.7 Sustainable Development Context: Measures to attain agreed-upon Canada-wide Environmental Standards will be determined in a sustainable development context, recognizing environmental and socio-economic considerations.

3.1.8 Public and Stakeholder Participation: The public and stakeholders will have a meaningful opportunity to provide input on priorities and the development and implementation of Canada-wide Environmental Standards as described in this Sub-Agreement.

4. ACCOUNTABILITY

For the purposes of this Sub-Agreement, governments agree:

4.1 to participate in the prioritization, development and recommendation of Canada-wide priority standards to Ministers;

4.2 to ensure that standards are met through the application of their respective environmental management programs. In choosing how to ensure that agreed standards are met, governments have the flexibility to adapt their management regimes to the priorities and unique situations within their borders;

4.3 to report to the public on plans for the attainment of the Canada-wide Environmental Standards based on the established timelines and other performance criteria, and on progress in attaining them;

4.4 that when a government has accepted obligations and is discharging a role under this Sub-Agreement, the other order of government shall not act in that role for the period of time as determined in the relevant agreement. Legislative authorities are not altered through this Sub-Agreement;

4.6 In developing an alternative plan, the concerned governments will jointly identify issues to be addressed, collaborative mechanisms, and a plan of action, including timeframe for implementation of he [sic] plan. As a general guideline, these alternative plans will be completed within six (6) months.

5. DEVELOPMENT OF STANDARDS

5.1 Identification of Priorities

5.1.1 Ministers of the Environment, through the CCME, will establish priorities for the development of Canada-wide Environmental Standards and the timeframe for their development and implementation.

5.1.2 In support of consideration by Ministers, governments will identify existing and emerging issues of Canada-wide significance with potential impacts on the environment and human health.

5.1.3 As the first step for any proposed Canada-wide Environmental Standard, governments agree to consult each other and to cooperatively determine an appropriate course of action. As a general guideline, the appropriate course of action will be agreed to within six (6) months.

5.2 Process for development of standards

5.2.1 The most effective and efficient process for the development of standards may vary by agreed-upon priority. Ministers will agree on the process for the development of standards on a case by case basis.

5.2.2 The appropriate process for the development of any standard could include a process internal to the Canadian Council of Ministers of the Environment, or could include other agreed-upon fora.

5.2.3 Decisions taken in the technical development of Canada-wide Environmental Standards will be based on sound science and the principles of the Accord.

5.3 Endorsement

5.3.1 Canada-wide Environmental Standards developed under this Sub-Agreement will be submitted to Ministers for their consideration and endorsement.

6. IMPLEMENTATION

6.1 Where standards are applied to environmental issues which are principally limited to intraprovincial/intraterritorial effects, the specific measures undertaken by each government to meet its obligations will be at the discretion of the responsible government.

6.2 Where standards apply to environmental issues which have transboundary or interprovincial/interterritorial effects or where an integrated Canada-wide approach is required, governments will seek agreement on the timeframe and how to attain the standard endorsed by Ministers.

6.3 In implementing this Sub-Agreement, governments will maximize opportunities that will allow them to:

- share expertise and capacities;

- avoid overlap and duplication;

- use the most effective and efficient measures;

- promote consistency across the country.

6.4 In implementing article 6.2, governments will develop and share workplans that will include:

- a clear articulation of the desired environmental outcome;

- the indicators, milestone and time frames for attaining the agreed-upon standard;

- the actions that need to be taken to meet the agreed upon standard;

- an outline of results-oriented obligations of each government for implementing theses actions.

6.5 Measures undertaken by designated governments for implementing agreed-upon standards could include, but are not limited to, regulatory standards, codes of practice, guidelines, memoranda of understanding, voluntary initiatives, economic instruments, and pollution prevention planning.

6.6. When governments accept and act on obligations for discharging a role, they will do so consistently with accountability provisions set out in section 4 of this Sub-Agreement.

6.7 Specific responsibilities of the federal, provincial, and territorial governments, including the development of standards, will vary by standard as agreed to case by case.

6.8 In dealing with Canada-wide Environmental Standards under this Sub-Agreement, in general the main functions of the federal government include:

- providing scientific and technical support to the process outlined in this Sub-Agreement;

- implementing measures at international borders;

- implementing measures on federal lands;

- representing Canada internationally, advocating the adoption of Canada-wide standards at the international level and promoting actions necessary at the international level to achieve Canada-wide Environmental Standards domestically; and

- implementing Canada-wide Environmental Standards that require a product/substance approach.

6.9 In dealing with Canada-wide Environmental Standards under this Sub-Agreement, in general the main functions of the provincial and territorial governments include:

- providing scientific and technical support to the process outlined in this Sub-Agreement; and

- implementing measures requiring action from industrial, municipal, and other sectors to attain an agreed-upon Canada-wide Environmental Standard.

7. MANAGEMENT AND ADMINISTRATION

7.1 Ministers, through CCME, will review progress, address issues and effectively administer the requirements of this Sub-Agreement.

7.2 This Sub-Agreement may be amended from time to time with the consent of the governments.

7.3 This Sub-Agreement shall enter into force on the date of execution indicated herein. A government may withdraw from this Sub-Agreement six (6) months after giving notice.

8. OTHER

8.1 The harmonization of the standards function in the Yukon and the Northwest Territories will be implemented after resource management and related environmental protection responsibilities are devolved to the Territorial governments or through intergovernmental agreements, which include appropriate roles for resource management institutions established pursuant to Aboriginal claims agreements.

SUB-AGREEMENT ON ENVIRONMENTAL ASSESSMENT

PREAMBLE

Environmental assessment provides a means to integrate environmental factors into project planning and decision-making. It involves the preparation of an environmental assessment report by a proponent and the review and critical evaluation of that report and other input. It is a public process to provide information about the environmental effects of a proposed project to assist decision-making by proponents and by governments. The parties to this Sub-agreement (the "Parties") are seeking to provide the public, proponents, and governments with greater consistency, predictability, and timely and efficient use of resources where two or more Parties are required by law to assess the same proposed project. This Sub-agreement on Environmental Assessment ("Sub-agreement") operates within a framework of legislation and government policies to contribute to the vision of the highest level of environmental quality in Canada, and to a future based on the principles of sustainable development.

1. OBJECTIVES

1.1.0 Consistent with the Canada-Wide Accord on Environmental Harmonization, and to address the issues of co-operation, uncertainty and duplication with respect to the environmental assessment of proposed projects, the objectives of this Sub-Agreement are:

1.1.1 To ensure that the environmental effects of proposed projects are carefully considered before decisions are taken by governments.

1.1.2 To achieve greater efficiency and the most effective use of public and private resources, where assessment processes involving more than one jurisdiction are required by law, through a single environmental assessment and review process for each proposed project.

1.1.3 To establish accountability and predictability by delineating the roles and responsibilities of the federal, provincial and territorial governments.

2. SCOPE

2.1.0 This Sub-agreement applies when more than one Party must make a decision or issue an approval which must by law be preceded by an environmental assessment.

2.2.0 This Sub-agreement does not apply in areas where an environmental assessment process exists pursuant to a land claim or self-government agreement. The Parties will share the principles of this Sub-agreement with Aboriginal people when negotiating environmental assessment regimes pursuant to land claim and self-government agreements.

3. PRINCIPLES

3.1.0 In addition to reflecting the principles identified in the Canada-wide Accord on Environmental Harmonization, this Sub-Agreement is based on the following:

3.1.1 Effectiveness: A harmonized approach to environmental assessment will provide the information needed for sound project planning and decision-making by proponents and governments that contribute to environmental protection and sustainable development.

3.1.2 Transparency and Public Accountability: The integrity and credibility of a sound environmental assessment process will be built on a foundation of openness, transparency, accountability, and, effective participation of interested parties and the general public.

3.1.3 Efficiency and Certainty: Environmental assessment will be conducted in a timely way that protects the environment, promotes certainty of process, and makes the best use of public and private resources.

4. CONTENT OF THE ENVIRONMENTAL ASSESSMENT

Assessment Information Elements

4.1.0 An environmental assessment report shall be prepared by the proponent in accordance with Terms of Reference issued by the lead Party for an assessment. In developing the Terms of Reference, the Parties involved in an assessment shall consider for inclusion, but not be limited to, the following information elements:

1. Description of the proposed project;

2. Description of the purpose of the proposed project;

3. Summary of applicable laws, regulations, policies, management plans, approvals, national international environmental agreements;

4. Description of the existing environment, related to the proposed project and the significance of potential environmental effects of the proposed project;

5. Identification and evaluation of the direct, indirect, cumulative and transboundary environmental effects of the proposed project, including risk of accidents and malfunctions;

6. Identification and evaluation of alternative means of carrying out the proposed project;

7. Public sector project - identification and evaluation of alternatives to the proposed project including not proceeding with the proposed project;

8. Description of public consultations, the results of those consultations, and the effect of that public input on project planning and on the assessment report;

9. Other information identified by processes used to solicit concerns from governments or the public about the environmental effects of the proposed project;

10. Identification and evaluation of measures for mitigation and monitoring of impacts, and those impacts which cannot be mitigated.

11. Capacity of renewable resources that are likely to be affected by the proposed project to meet the needs of the present and those of the future.

The degree to which elements are emphasized or the detail required in an assessment will vary among classes of projects and for individual assessments.

4.1.1 Where two or more Parties participating in an assessment have differing definitions of "environment" or "environmental effects", a definition will be adopted that incorporates the legal requirements of each Party involved in the assessment.

Assessment Stages

4.2.0 An assessment shall include provisions for public participation, and contain the following assessment stages:

4.2.1 Determination of Parties participating in an assessment, and a schedule or timelines for the assessment.

4.2.2 Finalization of the Terms of Reference for the environmental assessment report.

4.2.3 Determination of completeness of environmental assessment information provided by the proponent.

4.2.4 Determination of the need for an independent public hearing, and the composition of the hearing body.

4.2.5 Critical evaluation and determination of environmental effects of the proposed project and finalization of recommendations to project decision-makers.

4.3.0 The Parties involved in an assessment will facilitate public participation where consistent with their policies and legislation, which may include access to information, technical expertise, and participation at public meetings. Participant funding will also be made available by any Party which requires participant funding by law or policy.

4.3.1 The provisions for public participation in environmental assessments under 4.2.0 shall include the following notifications and opportunities:

a) timely public disclosure of the project proposal and, where provided for in legislation or agreed to by the Parties involved in an assessment, an opportunity for members of the public to comment on a proposed Terms of Reference for the assessment;

b) an opportunity for members of the public to participate in public consultations required by a Terms of Reference, as part of the preparation of an environmental assessment report;

c) public notification of the availability of the environmental assessment report and an opportunity for members of the public to comment on the completeness of environmental information;

d) where discretion is available to the Parties involved in an assessment under their laws on the need for a public hearing, the public will be notified and given the opportunity to comment on the need for a public hearing; and

e) if a public hearing is held, an opportunity for members of the public to participate in the hearing.

4.4.0 The Parties agree that the ordering of the stages outlined in 4.2.0 can be altered, provided no regulatory approvals are issued prior to the assessment being completed.

5. IMPLEMENTATION

5.1.0 There will be one assessment for a proposed project, which will meet the information requirements of all Parties making decisions on the basis of the assessment.

5.2.0 In the implementation of this sub-agreement, the Parties will establish a specific time period in which a potential Party to an assessment for a proposed project will determine if an assessment is required, and clarify its environmental responsibilities for the proposed project.

5.3.0 During the time period determined in negotiations under 5.2.0, a Party will participate in the assessment as if it had an environmental assessment responsibility for the proposed project, until and unless it determines it does not have an environmental assessment responsibility.

5.4.0 There will be a lead Party responsible for the administration of the assessment process for each proposed project; each Party involved in the assessment will identify a one-window contact for that assessment.

5.5.0 The lead Party for an assessment will establish a schedule of timelines for the assessment with the other involved Party(ies) and the proponent. Where a schedule must be altered, the lead Party will consult with the other involved Party(ies) and the proponent. Where an amended schedule would affect the opportunity for public involvement, the public would be advised of the revised schedule, along with an explanation for the changes.

5.6.0 The lead Party for the purposes of the application of the assessment process will generally be determined as follows:

5.6.1 The federal government will be the lead Party for proposed projects on federal lands where federal approval(s) apply to a proposed project, subject to the limitation in 2.2.0.

5.6.2 The provincial government will be the lead Party for proposed projects on lands within its provincial boundary not covered under 5.6.1 where provincial approval(s) apply to a proposed project, subject to the limitation in 2.2.0.

5.6.3 The territorial government will be the lead Party for Commissioner's lands where territorial approvals apply to a proposed project, subject to the limitation in 2.2.0.

5.6.4 For the purposes of this Sub-agreement, the arrangements in section 5.6.1, 5.6.2 and 5.6.3 may be varied based on a "best-situated" assessment as per the following criteria and as agreed to by governments through development of specific implementation agreements:

(i) scale, scope and nature of the environmental assessment;

(ii) capacity to take on the lead including resources;

(iii) physical proximity of government's infrastructure;

(iv) effectiveness and efficiency;

(v) scientific and technical expertise;

(vi) ability to address client or local needs;

(vii) interprovincial, interterritorial or international considerations; and

(viii) existing regulatory regime.

5.7.0 Implementation of this Sub-agreement is based on a co-operative approach to environmental assessment. The approach is designed to provide an assessment that meets the decision-making needs of the Parties involved in an assessment. Within this framework, the assessment process of the lead Party will be used. The lead Party, with the participation of the other Party(ies) will ensure its process:

(i) generates the type and quality of information required to meet the legal environmental assessment requirements of each Party; and

(ii) provides conclusions on the environmental effects of the proposed project required for decision-making by the Parties involved in an assessment.

5.8.0 The Parties agree that for projects requiring a public hearing under this sub-agreement, there will be only one public hearing process.

(a) legislated timelines;

(b) bilateral agreements for co-operation;

(d) voluntary agreement between the Parties and the proponent.

5.12.0 The Parties agree to seek to amend their legislation and/or assessment processes as necessary to comply with their obligations under the terms of this Sub-agreement.

6. ACCOUNTABILITY, MANAGEMENT, AND ADMINISTRATION

6.1.0 The Parties involved in an assessment shall make public in a timely fashion all information related to the assessment, subject to any existing confidentiality requirements.

6.2.0 The Parties shall make public in a timely fashion the Sub-agreement, any amendments to it, or any bilateral or multi-lateral agreements resulting from the Sub-agreement.

6.3.0 Ministers, through CCME, will review progress, address issues and effectively administer the requirements of this Sub-agreement.

6.4.0 The Parties agree to the need and the importance of reviewing their environmental assessment practices and results to ensure that the practices are efficient and the results are effective, and that Canadians in all parts of Canada are assured of high quality environmental assessment. Accordingly:

6.4.1 This Sub-agreement may be amended from time to time with the consent of the governments.

6.4.2 The Council of Ministers will review this Sub-agreement in consultation with the public within two (2) years after the date of its coming into force, and thereafter as required.

6.5.0 This Sub-agreement shall enter into force on the date of execution indicated herein.

FEDERAL COURT OF CANADA

TRIAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT NO.: T-337-98

STYLE OF CAUSE: THE CANADIAN ENVIRONMENTAL LAW ASSOCIATION v. THE MINISTER OF THE ENVIRONMENT

PLACE OF HEARING: Toronto, Ontario

DATE OF HEARING: January 12, 13, 1999

REASONS FOR ORDER

OF THE COURT: The Honourable Madame Justice Reed

DATED: April 27, 1999

APPEARANCES

Mr. Paul Muldoon for the Applicant

Mr. Christopher A. Amerasinghe, Q.C.

Deptartment of Justice

Toronto Regional Office

2 First Canadian Place

Suite 3400, Exchange Tower, Box 36

130 King Street West

Toronto, Ontario

M5X 1K6 for the Respondent

SOLICITORS OF RECORD

Canadian Environment Law Association

Suite 401 - 517 College Street

Toronto, Ontario

M6G 4A2 for the Applicant

Morris Rosenberg

Deputy Attorney General of Canada for the Respondent

__________________

¹ Infra, Inspections Sub-Agreement, clause 5.2; Environmental Standards Sub-Agreement clause 4.4; and, Sub-Agreement on Environmental Assessments, clause 5.4.0.

² [1992] 1 S.C.R. 3 at 63.

³ Prince Edward Island (Potato Marketing Board) v. H.B. Willis, [1952] 2 S.C.R. 392.

⁴ Coughlin v. Ontario (Highway Transport Board), [1968] S.C.R. 569; R. v. Furtney, [1991] 3 S.C.R. 89.

⁵ Infra, Canada-Wide Accord on Environmental Harmonization.

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