The West Coast Environmental Law Research Foundation Newsletter

Vol 18:12
April 13, 1995

TRANSBOUNDARY AGREEMENTS
DELAYED BY PROVINCES

Victor Lichtinger, Executive Director of the North American Commission for Environmental Cooperation, told an April 5 seminar in Vancouver that progress toward bilateral agreements among Canada, the United States and Mexico regarding transboundary environmental issues has been stalled by the failure of Canadian provinces to ratify the North American Agreement on Environmental Cooperation (NAAEC). The three-country Council established by the Agreement has less than two years left to fulfill its obligation to develop recommendations regarding environmental impact assessment and mitigation of proposed projects likely to cause transboundary effects. However, Lichtinger stated that it is 'awkward' to make any progress on these agreements when none of the ten Canadian provinces have yet ratified the Agreement.

The environmental obligations and citizens' remedies in the NAAEC do not apply to any province which has not ratified the Agreement. Nor can Canada itself seek a remedy under the Agreement unless the Agreement has been ratified by a certain number of provinces determined by a formula that parallels the formula for approval of amendments to the Canadian Constitution.

The impasse illustrates Canada's problem with implementing international environmental (and other) commitments. The conventional legal view is that while the federal government can enter into an international agreement this does not oblige a province to implement such an agreement. By contrast, other countries with federal systems of government, such as the United States and Australia, give the central government the constitutional authority to enter international agreements that bind state governments. (Interestingly, the House of Commons Standing Committee on the Environment recommended during the constitutional debates that consideration be given to granting the federal government constitutional authority to bind the provinces in international environmental agreements, but this was not accepted by the federal government at the time.)

The impasse also highlights the role of the provinces in Canada's negotiation of international environmental agreements. As part of the harmonization initiative of the Council of Canadian Ministers of Environment (CCME) the federal government will commit itself to involve the provinces in the development of Canada's positions regarding international environmental agreements. The 'environmental advantage' of this is supposed to be that the provinces will thereby 'buy in' to any resulting agreement and will be more inclined to implement it.

If this theory is correct, then the fact that the provinces were involved in the development of the NAAEC should mean that they would be quick to ratify it. What happened? Provincial officials complain that the federal government did not allow sufficient provincial input. In addition, provincial environment officials complain that it was provincial trade officials, not environment officials, who provided the bulk of the provincial input into the federal negotiating position. Thus, the provincial environment officials are now reluctant to push for ratification of the NAAEC because they feel it reflects primarily a 'trade' agenda. In addition, provincial trade officials are apparently reluctant to press for ratification of the NAAEC because they fear the potential trade retaliation remedies in the Agreement while having no 'investment' in the environmental objectives of the Agreement.

Lichtinger pointed out that the governments of Mexico and the United States have inquired about the status of provincial ratification of the NAAEC, which is apparently a low-key form of diplomatic pressure for action.

-- Bill Andrews

[More info on trade and the environment]

Government Information on the Internet:
the pros and cons

Some governmental agencies are balking at making environmental legal information publicly available on the Internet. It's a crucially important issue, so we've set out here some of the pros and cons.

EIGHT good reasons in favour

1. The basic principle of the federal Access to Information Act and various provincial freedom of information statutes is that all government information should be publicly accessible subject only to specific, narrowly-construed exceptions.

2. All modern environmental statutes are designed - explicitly or implicitly - to facilitate public participation in environmental decision making. Public participation is predicated on access to relevant information.

3. Putting most government environmental information on the Internet is technically easy. Virtually all of the information is stored electronically already, and the conversion to the appropriate format for use on the Internet is very straightforward.

4. To the government, the cost of maintaining or renting a "server" computer on the Internet is low and is dropping quickly. The cost of updating the information is minimal.

5. To members of the public with access to the Internet, the cost of getting government information from the Internet is zero. Note that many freenets across Canada now provide free access to the Internet. Also, note that the conventional means of getting government information are not improved by keeping information off the Internet.

6. Internet distribution will reach a large number of people who would not be reached by distribution of hard copies:

   • people who are searching electronically for information without knowing of the particular document in question;

   • people who want to check out a document to see if it is what they need, without buying a copy;

   • people who need information immediately and who can't wait for a hard copy;

   • people who can't afford a hard copy; and,

   • people who need up-to-date information and can't be sure if a hard copy is current.

7. Use of the Internet is more environmentally friendly than hard copy distribution of information. It uses less paper, less landfill space, less fuel for transportation, less chemical ink, less plastic and other packaging material, and less energy for printing and storage.

8. Use of the Internet will facilitate electronic communications - a form of economic activity that is inherently more sustainable than the natural resource industries on which we have been too heavily reliant in the past.

SEVEN bad reasons against

1. It is sometimes said that Internet distribution of government information would reduce government revenue from hard copy sale. This factor is highly over-rated.

   • Most people or organizations, such as government offices, libraries and law firms, who buy a hard copy document will still buy a copy even if the document is available on the Internet. After all, governments put books in libraries and it doesn't replace hard copy sales.

   • Some people will buy the hard copy, having browsed it on the Internet.

   • There are enormous hidden costs in the "cost recovery" from hard copy sales: sales and distribution staff, overhead, storage and transportation, unsold copies, bookkeeping, invoicing, account collection, accounting, and last, but certainly not least, updates.

   • If the price of a hard copy is set substantially higher than the cost of reproduction - one misguided way in which officials sometimes make a profit on hard copy sales - then illegal photocopying will put a natural limit on revenue from hard copy sales.

2. It is sometimes argued that a document cannot be put on the Internet because some other agency -- the Canada Communications Group or the B.C. Queen's Printer, for example -- holds the copyright and won't release it. Cabinet needs to resolve this nagging problem, asap. These agencies should be required to allow public use of documents for free for non-commercial purposes.

3. A related excuse is that documents can't be put on the Internet because a policy regarding one or both of the first two arguments hasn't been yet finalized ('Not no, but not yet'). It's time to make a decision.

4. Another objection is that the agency that produces the document does not have a "server" computer on the Internet. No problem. Plenty of government agencies do have Internet servers and would be delighted to post some other agency's information, at least until more permanent arrangements can be made. Furthermore, any of a number of freenets would happily make the information publicly available on the Internet.

5. It used to be argued that government information could not be made available electronically because a user could distort the information by cutting and pasting it or otherwise chopping it up. But, this hasn't stopped governments from selling information in electronic form, and it hasn't proven to be much of a practical problem.

6. A hacker could vandalize the server. This is true, but unlikely. Moreover, the damage would be minor, as the documents can simply be reinstalled. Hard copy distribution faces a similar, but much more severe problem, which is errata in the text or printing.

7. Another common objection is that, 'No one here knows how to do it.' This can be a short-term problem, but it is certainly solvable. Putting information on the Internet is not harder than doing desktop publishing.

Conclusion

No surprise! Government legal information should be made publicly available on the Internet immediately. Let's get on with it!

-- Bill Andrews

Announcing the 1995 BCEN AGM

The BC Environmental Network will be holding its annual general meeting (AGM) and conference on April 28, 29 and 30, at the Fort Steele Heritage Site, in Cranbrook, BC.

Both voting and non-voting participants are welcome. The conference is open to all, except for the caucus meetings, which are open to BCEN members only. The AGM will feature workshops, "hot spots/success stories", speakers, slide shows, informal networking, a banquet and a dance.

The BCEN business meeting is in two parts: the first part is in the evening of Friday, April 28, and the second part is in the afternoon of Sunday, April 30. For more information, contact the BCEN at (604) 879-2289, or by fax at (604) 879-2272. See you there!

Earth Week - April 17-23

The World Wildlife Fund has initiated a campaign to preserve endangered spaces in Canada. At present, only about 5% of Canada is protected as true wilderness. And every 15 seconds, another acre of Canada's wilderness heritage is lost forever - mined, plowed, cut down, contaminated, developed or dammed.

You can help win the race for Canada's endangered spaces by supporting the efforts of the Endangered Spaces Campaign, sponsored by the WWF, with more than 260 endorsing organizations across Canada. The goal of the Campaign is simple: to represent Canada's natural regions with protected areas by the year 2000. The WWF is asking for you to add your signature to the Canadian Wilderness Charter and ask your friends and family to do the same.

Almost 600,000 individuals have already signed on to the Canadian Wilderness Charter. With more help, World Wildlife Fund would like to create an even bigger coalition of support for the Endangered Spaces Campaign. If every WWF supporter gets just eight signatures, the WWF will have one million signatures to present to governments - an enormous show of support for the protection of Canada's threatened wild places.

Send your messages of support to:

Endangered Spaces Campaign, c/o World Wildlife Fund
90 Eglinton Avenue E., Suite 504,
Toronto, Ontario, M4P 2Z7

Environmental Dispute Resolution Fund Update

The EDRF is an efficient and cost effective tool that has enabled many community organizations and individuals to participate in environmental decision-making and to resolve environmental disputes.

Recent successes of EDRF-funded organizations include:

The Friends of Glencoe Cove received financial assistance in February. The grant enabled them to obtain a legal opinion on proposed covenants to preserve Glencoe Cove. The Friends were especially concerned that covenants for land adjoining the proposed 8 acre foreshore park, which had been drafted by the District of Saanich, provide adequate protection for rare plant species and the cormorant rookery. Saanich Council and the Provincial Capital Commmission will be joint holders of the covenant which will offer protection for the Cove and help to ensure that this sensitive foreshore area is protected and preserved for the community.

The Quatsino Task Force has informed us that it was successful in blocking a proposal to transform the Island Copper Mine, an open pit copper-molybdenum mine, into a landfill site for municipal waste from Victoria and the Greater Vancouver Regional District. The proposed landfill site is located on Quatsino Sound, a sensitive and remote area at the North end of Vancouver Island. The Quatsino Task Force was opposed to plans that would have garbage from Victoria and Greater Vancouver trucked, barged and stored in the abandoned mine. They were also concerned about the possibility of seepage from the mine site into Quatsino Sound. The project was shelved by the landfill proponent, BHP Minerals Canada Ltd. The residents of Quatsino and members of the Task Force are pleased with the outcome.

The following organizations have recently received funding from the EDRF:

The Peace River Agricultural Protection Association received financial assistance to have the air emission permit for the Louisana-Pacific Oriented Strandboard plant in Dawson Creek amended or quashed. The PRAPA wishes to halt the production of harmful levels of pollution and improve ambient air quality for the residents.

The Friends of the Koksilah River received a grant to assist them in their opposition to the waste disposal system for a proposed residential subdivision. The Friends fear that the waste system will threaten the environment by impacting negatively on both the fish-bearing Koksilah River as well as their drinking water. They are appealing to the EAB to resolve their concerns.

-- Morgan Ashbridge

WCELRF Newsletter (ISSN #0715-4275), copyright 1995, is published by the West Coast Environmental Law Research Foundation. This issue was produced by Bill Andrews, Morgan Ashbridge, Chris Heald, Ann Hillyer, Patricia Houlihan, Catherine Ludgate, Alexandra Melnyk and Linda Nowlan. Subscription information is above. West Coast Environmental Law Research Foundation does research and education and maintains an environmental law library. West Coast Environmental Law Association provides legal representation and promotes law reform. The mission of West Coast Environmental Law Research Foundation and West Coast Environmental Law Association is to provide legal services to protect the environment and to foster public participation in environmental decision-making. We are grateful to the Law Foundation of British Columbia for core funding of West Coast Environmental Law Association and West Coast Environmental Law Research Foundation. Donations to West Coast Environmental Law Research Foundation are tax creditable.

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