Basel Convention Bans Dumping of Hazardous
Waste in Developing Countries

On September 22, 1995 in Geneva, Parties to the United Nation's Basel Convention agreed to ban hazardous waste shipments from developed to developing countries. Canada is one of the 91 Parties to the Convention.

The ban immediately prohibits shipments of hazardous waste destined for final disposal (eg. landfilling). The ban also prohibits, as of January 1, 1998, dumping of hazardous waste for the purpose of recycling. The ban against dumping recyclable hazardous waste is a response to notorious cases where hazardous waste from Europe was dumped in Africa under the guise of recycling.

The ban is a step in the right direction for sustainable development. Environmentalists, however, should not assume that the ban is a panacea. The Convention is unclear as to whether bilateral agreements between Parties can be used to avoid the ban. The debates in Geneva showed that Parties had widely-varying views on if and how bilateral agreements could be used in the face of the ban.

Environmentalists should also closely monitor the Convention's current work in defining the types of "hazardous waste" which will be caught by the ban. This work will likely not conclude until 1997. Many Parties - including Canada - will not ratify the ban until they are convinced that the definition of "hazardous waste" is appropriate. (Ratification by the Parties is necessary to implement the ban into domestic legislation.)

The ban will also be revisited by those developing countries who are establishing their own hazardous waste facilities. These countries, not unreasonably, will seek to realize economies of scale by importing hazardous waste from developed countries (which produce most of the world's hazardous waste). The problem is that the Convention provides little substantive or objectively verifiable guidance as to what constitutes safe facilities. This lack of guidance provides little comfort to those environmentalists who accept the principle that developing countries should be given the opportunity to establish efficient and environmentally safe recycling operations using hazardous waste from developed countries.

Canada's import-export regulation of 1992 already goes a good distance towards preventing transborder movements of hazardous waste, except to the United States (movements which are covered by a bilateral agreement). This regulation should nonetheless be critically examined to assess compliance with the Basel ban.

A final note on the Canadian delegation. The Canadian delegation was led by Ambassador John Fraser, 6 senior federal government officials, and 3 representatives from industry, the environmental community, and the Alberta government. The delegation met daily during the five days of the Convention deliberations to evolve Canada's position. The process led by Ambassador Fraser was very fair and due consideration was given to competing industry and environmental perspectives.

- Waldemar Braul, Vice-President, WCEL

(Waldemar Braul was the environmental non-government representative on the Canadian delegation. Readers with questions about the Basel Convention can reach him at (604) 388 4232.)

CEC Database Goes Online

The Commission for Environmental Cooperation (CEC) has launched its World Wide Web site, featuring a comprehensive summary of North American environmental law. Jointly developed by West Coast Environmental Law, the Center for International Environmental Law (CIEL), the Centro Mexicano de Derecho Ambiental (CEMDA), and the Quebec Environmental Law Centre (QELC), the summary covers environmental law in Mexico, the United States and Canada, in French, English and Spanish.

It uses a common table of contents divided into 25 chapters to guide readers to information about environmental laws for each of the three countries (see illustration). By using the same set of headings, the summary allows a precise comparison of the laws in each of the countries. It can also help readers who may know the law in their own country, and who wish to find out the equivalent laws in another country.

Each country also has a list of legal instruments, such as statutes, regulations, laws and norms. These lists enable viewers to get a sense of the entire body of environmental law of a country. Each list also includes a short description of how to get copies, and where available, links to other relevant information sources on the Internet. For Canada, the list is divided into federal, provincial and territorial sections.

Where a legal instrument is mentioned in a chapter, there is often a link to either the full text of the instrument or to the list of legal instruments for that country.

The CEC was established by Canada, Mexico and the United States in 1994 to address transboundary environmental concerns in North America. While the idea to create such a commission originated during the negotiations of the North American Free Trade Agreement (NAFTA), it derives its formal mandate from the North American Agreement for Environmental Cooperation (NAAEC).

The entire English summary is up and running, and the French and Spanish chapters will be posted over the next few weeks. The CEC home page can be found at http://cec.org. To access the database, select "CEC databases," or use the following address: http://cec.org/english/database/law.

INTERNATIONAL CORNER: Bioprospecting or Biopiracy?

Multinational pharmaceutical corporations call their practice of scouring tropical rain forests for plant samples to use as raw materials in developing new drugs a new form of prospecting - bioprospecting. But some environmentalists in developing countries say that what companies are doing is "biopiracy," since the benefits from the resources that are collected are not being returned to their communities.

Developing countries complain that the multinationals from the industrialized world exploit their biological wealth, patent the results and then sell them back to the developing countries at excessive prices. The Biodiversity Convention attempts to resolve some of the conflicts over the use of biological and genetic resources, but it has had limited success to date. Unresolved issues include:

• How can a country restrict access to its genetic resources?
• If access is granted, how can law and policy be used to ensure that the benefits from any products derived from genetic resources are returned to local communities?
• How can traditional indigenous knowledge about genetic resources be protected?
• Are intellectual property rights such as patents, which were developed to protect industrial inventions, appropriate for use for life forms?

In the past, genetic resources were seen as part of our common global heritage, freely available for future generations. But the Biodiversity Convention of 1992 changed this tradition. The Convention states that genetic resources, like mineral and oil resources, are subject to national legislation and the authority to determine access rests with the national governments. It affirms the right of states to set conditions and limits on access to genetic resources, and provides that access will be subject to prior informed consent.

The countries that signed the Convention also agreed to develop policies "with the aim of sharing in a fair and equitable way the results of research and development and the benefits arising from the commercial and other utilization of genetic resources with the contracting parties providing such resources."

The issues of access to genetic resources and the relationship of intellectual property rights to these resources are complex, and will be subject to intense debate in the coming years. At a recent meeting of NGOs held at the Falls Brook Centre, in New Brunswick in September 1995, the participants engaged in some of this debate. The participants at the meeting were gravely concerned over the commodification of the natural world, and rejected the idea of granting intellectual property rights over different life forms. Part of the statement from the group says:

Patenting life forms is not ethical, nor is it culturally supported. Any process or result of developing biotechnology from biodiversity must remain in the public domain for the common good of humanity.

Inequitable distribution of benefits derived from biological products is another concern with the increased extension of intellectual property rights over life forms. Although the Convention clearly recognizes the importance of indigenous biological knowledge, this knowledge has not been promoted ``with the approval and involvement of the holders of such knowledge'' and there has not been equitable sharing of the benefits arising from the utilization of such knowledge as required by Article 8(j) of the Convention. The action taken to revoke the patent obtained by W.R. Grace Company, for a pesticide derived from the neem tree for a use well-known to local and Indigenous communities in India is one illustration of this problem. The Convention was also intended to benefit developing countries, yet this too has not occurred. To give just one example: of the more than 400 patent applications in the field of plant biotechnology, less than 1% have been filed outside industrialized countries.

A meeting of the Conference of the Parties to the Biodiversity Convention (countries that have signed and ratified the Biodiversity Convention) will take place in November in Jakarta, Indonesia. One of the issues on the agenda is protection of genetic resources. In the quest to conserve the world's biological diversity, a key element will be providing incentives for communities to conserve their natural heritage. Resolving conflicts over access to genetic resources and the intellectual property rights attaching to these resources will help to develop these crucial incentives.

- Linda Nowlan

Announcing Legal Options for Protecting Urban Streams

Our new project will tackle the urgent priority of protecting urban streams in British Columbia. With salmon populations declining, pollution increasing and development running amok, the time is ripe to examine how law can be used to protect these critical streams. The Outdoor Recreation Council identified urban streams, as a class, as one of BC's ten most endangered rivers for 1995.

Many people working on projects in the field have experience using different legal tools to protect streams. We will collaborate with these people to develop recommendations on which of the many possible legal options (conservation covenants, municipal by-laws, provincial regulations, the federal Fisheries Act) should be used. West Coast will prepare a manual on the best legal options for protecting aquatic habitat.

First, WCELRF will circulate a short discussion document based on interviews and research. Second, we plan to hold a workshop to obtain input on the discussion document. Third, we will produce and distribute a short readable manual on legal options and jurisdictional authority for protecting urban streams to landowners, municipalities, conservationists and others. The report will discuss what works and what doesn't, and identify what should be changed.

We'll be working with groups such as the T. Buck Suzuki Foundation, the Georgia Strait Alliance and the BC Wetlands Network, and would like to expand our network. If you are interested in taking part in this project, and would like to contribute your knowledge and experience, please contact Linda Nowlan at 685-3173.

• Harmonization: When the CCME Ministers meet in Whitehorse October 23-24 we'll learn whether the federal and provincial governments will finally publicly release the draft schedules to the Harmonization Agreement and begin the public consultation. The process was stalled at the CCME's May meeting in Haines Junction when federal minister Sheila Copps objected to any weakening of federal environmental assessment legislation.
• Federal EA: The Regulatory Advisory Committee for the Canadian Environmental Assessment Act met for two days in Ottawa last week. Inclusion List, Crown Corporations, Indian Bands, Projects Outside Canada, panel procedures: contact Bill Andrews for all the exciting highlights!
• Bill C-62: The misnamed "Regulatory Efficiency Act" is still stalled, due to opposition from environmental, labour and health groups. But support from industry groups seems to keep it from being dropped entirely.
• CEPA five-year review: The battle preceding the federal Cabinet's formal response to the report of the House Committee on Environment and Sustainable Development on the five-year review of the Canadian Environmental Protection Act is heating up. Bureaucrats from Natural Resources Canada slammed the report in a memo conveniently leaked to the Globe & Mail, which ran a vitriolic editorial to reinforce the point. Look for our outraged-but-dignified letter to the editor in response (or call us for a copy should Canada's National Newspaper decline to print it). Meanwhile, the Toxics Caucus of the Canadian Environmental Network is planning a big Lobby Day in Ottawa on October 24 in support of the report's recommendations.

- Bill Andrews

WCELRF Newsletter (ISSN #0715-4275), copyright 1995, is published by the West Coast Environmental Law Research Foundation (WCELRF) and represents the work of the West Coast Environmental Law Groups. WCELRF does research and education and maintains an environmental law library. West Coast Environmental Law Association (WCELA) provides legal representation and promotes law reform. The West Coast Environmental Dispute Resolution Fund Society (WCEDRFS) provides assistance and funding to citizens to help solve environmental problems in their communities. The mission of the West Coast Environmental Law groups 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. Donations to WCELRF and WCEDRFS are tax creditable. This issue was produced by Bill Andrews, Morgan Ashbridge, Chris Heald, Ann Hillyer, Patricia Houlihan, Catherine Ludgate, Alexandra Melnyk, and Linda Nowlan.