Intervenor: Vol 23. No 1 January - March 1998

CELA Takes Feds to Court Over Accord

On January 29, 1998, the federal government downloaded its responsibilities for our environment into the laps of the provinces. On that date, the federal Environment Minister, Christine Stewart signed the "Canada-Wide Environmental Harmonization Accord" with the provinces. Québec would not sign the Accord until it was satisfied that the new Canadian Environmental Protection Act would reflect the Accord. Only Québec did not conclude the Accord. The Accord includes three sub-agreements pertaining to inspections, standard-setting and environmental assessment. It is expected that up to seven more sub-agreements will be concluded under the Accord within the next three years.

The Canadian Environmental Law Association is so concerned about the Accord and its ramifications for environmental protection, that we launched a judicial review in the Federal Court of Canada on March 2, 1998. The legal action alleges that the federal Environment Minister exceeded her jurisdiction in concluding the Accord for a number of reasons, including the fact that the Accord may be inconsistent with federal legislation. The action also alleges that the Minister has inappropriately fettered her discretion in concluding the Accord since, if an area is devolved to the provinces, the federal government agreed that it shall not act within a given time period. CELA is seeking to have all or parts of the Accord declared invalid.

Under the terms of the Accord, the order to government "best situated" to deal with an issue will be responsible for that issue. It is apparent from the definition of the term "best situated" that the provinces will have carriage for many of the responsibilities formerly the domain of the federal government, such as inspections and the setting of standards.

Since 1994, the provinces and the federal government had been negotiating the agreement to "harmonize" federal-provincial activities with respect to the protection of the environment. Environmental groups from across Canada opposed the furtherance of the agreement on the grounds that the initiative was not really about avoiding overlap and duplication but about downloading federal environmental roles and responsibilities to the provinces.

This downloading comes at a time when the provinces themselves are undergoing serious downsizing. Most provinces have, or are in the process of downsizing their environmental ministries by 30% and often much more (such as Ontario and Newfoundland). In Ontario, the environment ministry's staff has been cut by over 36% and Ministry of Natural Resources' staff by over 40% - a "saving" to the Province of over half a billion dollars (see Intervenor v.22, no.5&6 for details of the cuts in Ontario). Alberta's environment ministry has suffered reductions of over 30%, and Newfoundland has reduced its Environmental Ministry by 60%.

Such cuts do not instill confidence in an already doubting public, that our environment will be protected. In a 1996 Insight Canada poll, respondents gave the provinces a 4.7 out of 10 for their environmental performance. (They gave the federal government a 4.8 out of 10 for its performance, but with the Harmonization Accord now signed and sealed, if not quite delivered, even that score may be too high.)

Ironically, only last September the Supreme Court of Canada indicated that Canada has a strong role to play in protecting the environment. In R v Hydro-Québec (1987), the Court upheld the federal government's right to regulate toxic substances. CELA intervened in that case on behalf of Canada and its authority to apply the Canadian Environmental Protection Act to matters that might be considered within the jurisdictions of provinces.

Now, it seems, the federal government has given away what it has won. Pleadings will be exchanged over the next few months, with a court date to be scheduled at that time.

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Paul Muldoon is a lawyer at CELA