Intervenor: Vol. 25 no. 2 April - June 2000

Court Updates: Harmonization Accord

Paul Muldoon and Theresa McClenaghan argued the appeal CELA's case against the Canada-wide Accord on Environmental Harmonization at the Federal Court of Appeal on June 5th, 2000, before Appeal Court Justices Linden, Rothstein and Malone. The Federal Court of Appeal declined to reverse the trial judgment of Madam Justice Reed, with the result that the Environmental Accord and its Sub-Agreements signed by the federal Minister of the Environment and most provinces were not struck down or altered as CELA had requested.

CELA argued at trial in 1998, and at appeal, that the Accord and Sub-Agreements improperly fettered the jurisdiction of the Minister of the Environment because she committed, when she entered into the Accord, that once certain environmental responsibilities are assigned to the provinces, she "shall not act".

CELA's argument was that the Minister of Environment and other federal ministers have important statutory obligations to carry out their mandate in the public interest and these obligations could not be constrained in advance by this commitment. The Appeal court found that in their view the Accord did not amount to "complete abandonment" of jurisdiction. They also noted that, in their interpretation of the Accord and Sub-Agreements there are provisions that can be used for a government to act in case the other order of government is not adequately carrying out the environmental responsibilities that it assumed.

The Appeal Justices' conclusion was that, "We see no legal difficulties, at this time, in this effort to coordinate and cooperate, which is the main purpose of the accords." The phrase "at this time" arose because during argument the Judges seemed to acknowledge that there were drafting and interpretation issues which could well see this matter back before the Courts when provincial and federal agreements disagree on the powers that they have under the agreement to act on their own, after a role has been assigned.

The Federal Court of Appeal also agreed with the trial judge's reasons in this matter. Judge Reed had commented in her decision upon some of the drafting problems with the Accord and Sub-Agreements. In addition, Judge Reed had acknowledged the serious concerns raised by CELA, but, on the whole, decided that more specific fact situations needed to arise before the Courts should rule on the legality of the Accord and Sub-Agreements.

During the course of this litigation, the CCME has made public statements that the governments' respective jurisdictions are not affected and exercise of their respective jurisdiction not constrained. The Sub-Agreement on Inspections has been withdrawn and replaced by a revised Sub-Agreement. CELA believes that the federal and provincial governments have taken CELA's concerns as articulated in the court challenge seriously, especially in light of Madam Justice Reed's original decision.

Theresa McClenaghan is a lawyer at CELA