Intervenor: Vol 23. No 4 October - December 1998

CELA Takes Federal Environment Minister To Court

On January 12 and 13, 1999, CELA was in Federal Court pursuing its challenge to the Canada-Wide Accord on Environmental Harmonization and its three sub-agreements. At the conclusion of the hearing, the Court reserved judgment on the matter.

CELA's challenge to the Accord (brought against the federal Minister of the Environment) commenced soon after the agreement was concluded by nine provinces (Québec did not sign), the two territories and the federal government in January, 1998. The Accord and its 3 sub-agreements on environmental assessment, environmental standards and inspections, have been controversial from the start. While the governments justified the Accord as trying to avoid overlap and duplication between federal and provincial governments, public interest groups continue to interpret it as a mechanism to devolve federal roles and responsibilities to the provinces.

The essence of the Accord is to set general principles that are to govern environmental federal-provincial relations. From the Accord, each sub-agreement provides a more detailed guide to the operation of the regime. For example, under the inspection sub-agreement, federal, provincial and territorial officials are to determine which level of government is "best situated" to deliver inspection services. If one level agrees to deliver these services, the other level of government "shall not act" with respect to the delivery of those services.

Similarly, with the standards sub-agreement, the governments are to agree on priorities for action (which now include low level ozone, mercury, dioxins and furans, benzene, and a number of other bad actor substances). Once these priorities have been set, all of the governments, under the auspices of the Canadian Council of Ministers of the Environment, are to set, by consensus "Canada-Wide Standards". The standards are to be implemented or furthered by the level of government that is "best situated" (to be determined by a list of enumerated criteria).

In Federal Court, CELA put forth two basic arguments: first, that the Minister of the Environment did not have the authority to conclude the agreement; and second, she has inappropriately "fettered her discretion" by signing the agreement.

According to CELA, the Minister did not have the authority to conclude the agreement since the Department of the Environment Act states that she only has the power to conclude agreements with the provinces for the purposes of "carrying out programs". It was argued that the Accord, in this context, was not a "program" but, in fact, a policy directed to dividing up federal/provincial responsibilities over the environment. While a program should be implementing something, the Accord was a much more profound statement concerning federal-provincial environmental relations.

CELA also argued that the minister could not fetter her discretion, or put in another way, agree not to exercise her statutory authority in advance. Under the Accord and the sub-agreements, if the provinces are deemed to be "best situated" to undertake inspection services or implement a standard, the federal government would not be able to take on those inspections or develop its own standard, if the provinces were unwilling or unable to do so. In the words of the agreement, the order of government that is not assigned that role "shall not act" for some predetermined time. It was simply argued that the federal government cannot discharge its statutory authorities to protect the environment under such statutes as the Canadian Environmental Protection Act and the Canadian Environmental Assessment Act by not acting.

The Department of Justice, acting for the Minister, made a number of arguments. It was argued that the agreements could not be challenged under the provisions of the Federal Court Act since the Accord and its sub-agreements were only statements of political objectives and not legally binding agreements. Since they were only statements of political objectives, the federal lawyers argued, it would be necessary to assess whether any implementation agreements emanating from the Accord would in fact be binding. Further, it was argued that, in any event, the lawsuit is premature in that CELA should have waited until the Minister decided actually not to act in terms of inspections or implementing a standard.

In addition, the Minister's lawyers also argued that the Minister did have the legal authority to conclude the Accord and that there was no fettering of discretion since the Accord, again, is not legally binding.

At this writing, it is not known when the Court will release its judgment in the case.

Cela Staff