WCELA made written comments last week on the position Canada will take on liability and compensation issues under the Basel Convention on the international transportation and disposal of hazardous waste.
Canada's position will be presented by a team led by Environment Canada's Charles Cormier at a meeting in Geneva later this month of the Ad Hoc Working Group of Legal and Technical Experts for the Protocol on Liability and Compensation.
Mr. Cormier distributed an analysis of the Working Group's most recent draft report, and asked a series of questions to focus input. The following are the main questions, and a summary of WCELA's answers:
Question 1. At what point should liability under the Protocol terminate?
As the Protocol covers activities up to and including disposal, liability should terminate upon completion of disposal. In our view, disposal is not complete until completion of aftercare of the (disposal) facility or, in the case of residues of recycling operations, to the disposal of these residues.
We do not agree that liability should end upon receipt of the waste at the importing facility. We believe that such an approach would not be consistent with the purpose of the Protocol to cover not only the transport of hazardous wastes but their disposal as well.
Neither do we agree that liability should end upon closure of the waste management facility in question, without regard to aftercare. A badly-run facility may well not cause harm to the environment until after the facility is closed. This is precisely the harm the Protocol seeks to prevent.
In our view, the availability of insurance should not be determinative of liability requirements. First, the availability of insurance changes over time. There is no guarantee that insurance currently available will continue to be available. Nor can it be assumed that where insurance is not currently available it will not be available in the future. If liability is created (or confirmed) under the Protocol, the insurance industry will consider offering insurance products in relation to that new market. Second, although insurance is one method of securing funds to pay for cleanup and compensation, there are other methods, notably the creation of a fund for this purpose.
Question 2. Should the protocol cover the management of residues from a recycling operation if they are managed on site? Off site?
Recycling is in principle a better approach than disposal. However, as a practical matter, it is very difficult to draw a clear line between the two approaches. Thus, in our view, the liability rules should not be significantly different between the two approaches.
Question 3. Which option do you support to ensure adequate and prompt compensation?
We favour the option which would define as a liable person the generator and the exporter, whether or not they are in operational control of the waste at the time of an incident giving rise to liability, as well as any other person having control of the wastes at the time of the incident.
The option of placing liability only on the person who had control over the waste at the time of the incident, would tend to motivate generators and exporters to 'get rid of' the waste as soon as possible, without regard to the reliability of the operator receiving the waste.
Question 4. Do you support the principle that a liable person may seek compensation from another person who may be at fault for the incident?
Yes. This is a corollary of the polluter pays principle.
Question 5. What are your views on compensation for damage to the environment per se, in addition to loss or damage to people and property?
We support implementation of a mechanism for obtaining compensation for damage to the environment in its own right. This may be an area that insurers are reluctant to enter, and so may be most suitable for a fund-type mechanism for ensuring financial security. For compensation for damage to the environment in its own right, there is a critically important need to define who receives the damage awards and under what criteria they are spent.
Question 6. In you opinion, should requirements for insurance and financial guarantees have a set limit?
We are not in a position to make recommendations regarding the precise amounts of insurance that should be required. We would recommend, however, that insurance minimums be coordinated with fund thresholds, so that financial security is provided regardless of the amount of the damage.
Question 7. What are your views on an international compensation fund? Under which circumstances would you support such a fund?
An international compensation fund is highly desirable. It should be funded according to the polluter pays principle, not by taxpayers.
Question 8. Should Canada support state liability for transboundary movements of hazardous waste? Why (not)?
Yes, Canada should support state liability for damages caused by transboundary movements and disposal of hazardous waste not covered by the primary tiers of financial security. Why? Because a country that generates hazardous waste has a responsibility to recycle it or dispose of it properly. If the country chooses to allow domestically generated hazardous waste to be transported to another country for recycling or disposal, then the exporting country should remain responsible for proper recycling or disposal and should retain the ultimate liability (as a backup to the primary tiers of financial security) for providing financial compensation in the event of a breach of this responsibility.
For more information, please contact Bill Andrews
(bandrews@wcel.org or 6046012510)
WCELA joined more than 140 environmental, aboriginal, public health, labour and community organizations, representing every province and territory, in a joint statement released June 17 calling for a continued strong federal role in the protection of Canada's environment.
With redefinition of federal-provincial roles and responsibilities on the agenda of the June First Ministers Conference, the groups urged the federal and provincial governments to preserve essential federal roles and capacities in environmental protection.
"It's one thing for the province of BC to talk about taking over fisheries allocation decisions," said WCELA's Bill Andrews. "But, a healthy West Coast fishery also requires better protection of salmon habitat and aggressive reductions in global warming, which will be impossible without a strong federal role."
"Canadians take great pride in our world leadership in negotiating international agreements on climate change, biodiversity, ozone depletion, and toxic wastes. But, our bubble will burst if the feds lose any more of the little power they already have to ensure that our environmental commitments are honoured," he said.
The groups emphasized that Canadians want a minimum level of environmental protection, no matter what province or territory they live in. "Canadians are united in feeling a great pride in our environment," say the groups. "Conserving federal capacity to ensure a healthy environment is essential to efforts to strengthen the national identity of present and future Canadians."
We, the undersigned individuals and organizations, are committed to a healthy environment in Canada.
The great watersheds, migratory routes, and bountiful resources of the nation's natural environment helped define the geographic boundaries of today's Canada, and continue to bind our nation together. They have shaped our economy, our culture, and our sense of identity. We are united in feeling a great pride in this environment. Conserving federal capacity to ensure a healthy environment is essential to efforts to strengthen the national identity of present and future Canadians.
We urge that as the federal and provincial governments seek to redefine their responsibilities, the essential federal roles and capacities in environmental protection be upheld and preserved. These include leadership on international environmental issues, environmental protection in areas of national issues, environmental protection in areas of national concern and provincial incapacity, a minimum level of environmental protection for all people regardless of where they live in Canada, and leadership in environmental sciences. The federal government must maintain the capacity for independent application and enforcement of federal environmental laws, and independence in policy making.
We also urge that as the federal government withdraws from its functions in forestry and mining, the federal environmental requirements pertaining to these sectors under the Fisheries Act, Canadian Environmental Assessment Act, and Canadian Environmental Protection Act, and other federal legislation be maintained. In addition, we urge the federal government to work in partnership and cooperation with Canada's aboriginal peoples to ensure environmental protection within aboriginal communities.
Many of us are witnessing on a daily basis how regulatory reform, de-regulation, and down-sizing of many provincial environment departments is leading to an acute decline in provincial environmental protection capacity. We worry that the drive to reduce the fiscal deficit is causing a mounting environmental deficit, a terrible legacy to leave to future generations.
Given this backdrop, it is crucial that the federal government retain an active, independent role in environmental protection. This will ensure environmental security for all our citizens, present and future.
ACADIA ENVIRONMENTAL SOCIETY (NS); ACTION ENVIRONMENT (NF); ALBERTA FEDERATION OF LABOUR - ENVIRONMENT COMMITTEE (AB); ALBERTA LEAGUE FOR ENVIRONMENTALLY RESPONSIBLE TOURISM (AB); ALBERTANS FOR THE ETHICAL TREATMENT OF ANIMALS (AB); ALGOMA MANTOULIN NUCLEAR AWARENESS (ON); ALLIANCE FOR PUBLIC WILDLIFE (AB); ASIAN - CANADIAN WRITERS' WORKSHOP (BC); ATLANTIC EARTH FOUNDATION (NS); BC SPACES FOR NATURE (BC); BLUE GREEN SOCIETY (NB); BOW VALLEY NATURALISTS (AB); BRUCE PENINSULA ENVIRONMENT GROUP (ON); CANADIAN ARCTIC RESOURCES COMMITTEE (ON); CANADIAN AUTO WORKERS LOWER MAINLAND ENVIRONMENTAL COMMITTEE (BC); CANADIAN EARTHCARE SOCIETY (BC); CANADIAN ENVIRONMENTAL DEFENCE FUND (ON); CANADIAN ENVIRONMENTAL LAW ASSOCIATION (ON); CANADIAN INSTITUTE FOR ENVIRONMENTAL LAW AND POLICY (ON); CANADIAN LABOUR CONGRESS (ON); CANADIAN NATURE FEDERATION (ON); CANADIAN ORGANIC GROWERS - OTTAWA REGION (ON); CANADIAN PARKS AND WILDERNESS SOCIETY - CALGARY/BANFF CHAPTER (AB); CANADIAN PARKS AND WILDERNESS SOCIETY - EDMONTON CHAPTER (AB); CANADIAN PARKS AND WILDERNESS SOCIETY (ON); CANADIANS FOR THE ETHICAL TREATMENT OF FOOD ANIMALS (BC); CASTLE CROWN WILDERNESS COALITION (AB); CENTRE FOR INTERNATIONAL STUDIES (NS); CITIZENS ENVIRONMENT ALLIANCE - SOUTHWESTERN ONTARIO (ON); CITIZENS AGAINST NEUROTOXINS (MB); CITIZENS FOR RENEWABLE ENERGY (ON); CLEAN NORTH (ON); THE CLEARINGHOUSE GROUP (NB); CONCERNED CITIZENS OF MANITOBA (MB); CONSERVATION COUNCIL OF NEW BRUNSWICK (NB); CONSUMERS' ASSOCIATION OF CANADA - BC BRANCH (BC); COOPER INSTITUTE (PE); COUNCIL OF CANADIANS (ON); CULTURAL SURVIVAL CANADA (ON); "EARTHSEEN", VANEAST COMMUNITY TV (BC); EAST COAST ENVIRONMENTAL LAW ASSOCIATION (NS); EAST KOOTENAY ENVIRONMENTAL SOCIETY (BC); E.C.O. ACTION INC (NB); ECO-ACTION NOVA SCOTIA PUBLIC INTEREST RESEARCH GROUP (NS); ECOLOGY ACTION CENTRE (NS); ECOLOGY CIRCLE (BC); EDMONTON AND DISTRICT LABOUR COUNCIL (AB); ENVIRO-CLARE (NS); ENVIRONMENTAL FORUM (ON); ENVIRONMENTAL RESOURCE CENTRE (AB); ENVIRONMENTAL MINING COUNCIL OF BRITISH COLUMBIA (BC); ENVIROMUN (NF); EXTENSION COMMUNITY DEVELOPMENT (NF); FALLS BROOK CENTRE (NB); FARM FOLK/CITY FOLK (BC); FEDERATION NATIONALE DES ASSOCIATIONS DE CONSOMMATEURS DE QUEBEC (QC); FORD ALWARD NATURALIST ASSOCIATION (NB); FOREST PROTECTION ALLIES (BC); FRIENDS OF DOUGLAS ISLAND (BC); FRIENDS OF NATURE (NS); FRIENDS OF THE ATHABASCA ENVIRONMENTAL ASSOCIATION (BC); FRIENDS OF THE CHRISTMAS MOUNTAINS (NB); FRIENDS OF THE GATINEAU RIVER (QC); FRIENDS OF THE OLDMAN RIVER SOCIETY (AB); FRIENDS OF THE WEST COUNTRY (AB); FULL FIGURE THEATRE COMPANY (BC); GALIANO CONSERVANCY ASSOCIATION (BC); GANDER REGION ENVIRONMENT GROUP (NF); GEORGIAN BAY ASSOCIATION (ON); GRAND LAKE MEADOWS ACTION COMMITTEE (NB); GRASSROOT NORTHWEST ENVIRONMENTAL AWARENESS ASSOCIATION (AB); GREAT LAKES UNITED (QC); GREEN ALTERNATIVES INSTITUTE OF ALBERTA (AB); GREENEST CITY PROGRAM (ON); GREENPEACE CANADA (ON); GUIDEPOSTS FOR A SUSTAINABLE FUTURE (ON); HUMANE SOCIETY INTERNATIONAL (ON); HUMANE SOCIETY OF CANADA (ON); HUMBER ARM ENVIRONMENTAL ASSOCIATION (NF); HUMBER ENVIRONMENTAL ACTION GROUP (NF); INNU NATION (NF); INTER-CHURCH URANIUM COMMITTEE (SK); INUIT TAPIRISAT OF CANADA (ON); LABRADOR METIS ASSOCIATION (LAB); MANITOBA ECO-NETWORK (MB); MANITOBA FUTURE FOREST ALLIANCE (MB); MANITOBA NATURALISTS SOCIETY (MB); NATIONAL UNION OF PUBLIC AND GENERAL EMPLOYEES (ON); NECHAKO ENVIRONMENTAL COALITION (BC); NEW BRUNSWICK LUNG ASSOCIATION (NB); NEWFOUNDLAND AGENCIES FOR SCHOOL HEALTH (NF); NEWFOUNDLAND AND LABRADOR ASSOCIATION FOR ADULT EDUCATION (NF); NEWFOUNDLAND AND LABRADOR ENVIRONMENTAL ASSOCIATION, INC (NF); NORTHERN ALBERTA WILDERNESS ASSOCIATION (AB); NORTHWATCH (ON); NOVA SCOTIA ENVIRONMENT AND DEVELOPMENT COALITION (NS); NOVA SCOTIA ORGANIC GROWERS ASSOCIATION (NS); NUCLEAR AWARENESS PROJECT (ON); NUNAVUT TUNNGAVIT INCORPORATED (NT); OCEAN VOICE INTERNATIONAL (ON); OKANAGAN SIMILKAMEEN PARKS SOCIETY (BC); ONTARIO HEALTH ADVOCACY ASSOCIATION (ON); PEMBINA INSTITUTE FOR APPROPRIATE DEVELOPMENT (AB); PICTOU LANDING FIRST NATION (NS); POLLUTION PROBE (ON); PRAIRIE ACID RAIN COALITION (AB); PRECIPICE THEATRE SOCIETY (AB); PRESERVATION OF AGRICULTURAL LANDS SOCIETY (ON); PROJECT BALAM (ON); PROTECTED AREAS ASSOCIATION OF NEWFOUNDLAND AND LABRADOR (NF); QUEBEC ENVIRONMENTAL LAW CENTRE (QC); RAINFOREST ACTION GROUP OF EDMONTON (AB); RAM'S HORN (BC); REACH FOR UNBLEACHED! (BC); RED DEER RIVER NATURALISTS (AB); REGROUPEMENT ECOLOGISTE DE VAL D'OR ET ENVIRONS (QC); ROGERS ENVIRONMENTAL AND EDUCATIONAL FOUNDATION (BC); RURAL ADVANCEMENT FUND INTERNATIONAL (ON); RURAL DIGNITY OF CANADA (QC); SAFE (SK); SAGKEENG FIRST NATION (MB); SASKATCHEWAN ENVIRONMENTAL SOCIETY (SK); SIERRA CLUB OF BRITISH COLUMBIA (BC); SIERRA CLUB OF CANADA (ON); SIERRA LEGAL DEFENCE FUND (BC); SUSTAINABLE AGRICULTURE FOR THE VALLEY ECOSYSTEM (NB); SUSTAINABLE AGRICULTURE IN A GLOBAL ENVIRONMENT (AB); THOMPSON INSTITUTE OF ENVIRONMENTAL STUDIES (BC); THOMPSON WATERSHED COALITION (BC); TORONTO FOOD POLICY COUNCIL (ON); TOXICS WATCH SOCIETY OF ALBERTA (AB); TREES INTERNATIONAL INC (NB); TURTLE EARTH STEWARDS (BC); TUSKET RIVER ENVIRONMENTAL PROTECTION (NS); UNIVERSITY OF CALGARY DEEP ECOLOGY CLUB (AB); VEGETARIANS OF ALBERTA (AB); VOICE OF THE EARTH SOCIETY (NS); WASHADEMOAK ENVIRONMENTALISTS (NB); WATERLOO PUBLIC INTEREST RESEARCH GROUP (ON); WEST COAST ENVIRONMENTAL LAW ASSOCIATION (BC); WINDSOR AND AREA COALITION FOR SOCIAL JUSTICE (ON); WINDSOR AND DISTRICT LABOUR COUNCIL - ENVIRONMENT COMMITTEE (ON); WINDSOR AND DISTRICT LABOUR/ENVIRONMENT PROJECT (ON); YUKON CONSERVATION SOCIETY (YT).
From April 1, to June 30, 1996, the Management Committee of the EDRF approved the following grant applications:
Friends of the Stikine:
The Friends of the Stikine have long been concerned over the adverse impact of hovercraft operations, used for ore transport, on fish, fish spawning grounds and wildlife along the Iskut River. Funding was recently provided for legal and expert assistance to bring a private prosecution under the Fisheries Act to try to halt the hovercraft use.
Brackendale Citizens Opposed to Airport Development:
A group of residents of Brackendale are attempting to halt airport development that could harm the large local population of Bald Eagles. Funding allowed the group to retain an expert on "bird strikes" and obtain a legal opinion on the options available to protect the eagles.
Friends of Boundary Bay/Fraser for Life Society:
The Societies are concerned that a proposed residential development in Boundary Bay, Tsatsu Shores, will have negative impacts on the ecologically sensitive saltmarsh that shelters a wide range of wildlife. Funding is providing legal assistance aimed at options such as determining whether an injunction should be obtained to halt construction of a sewage lagoon, to halt draining on the saltmarsh, and to require that the proposed development undergo a full public hearing and full review under CEAA. EDRF financial assistance will also provide a review of a proponent-commissioned study by technical experts to determine whether information is adequate to assess potential adverse environmental impacts.
Nechako Environmental Coalition:
NEC has been attempting to have the air emissions permit for a medium density strandboard plant either quashed, or amended, so that potentially harmful levels of pollution - including fine particulate - are eliminated. The EDRF grant will enable NEC to retain legal and expert assistance directed at protecting community health standards.
Residents for a Better Port Moody:
Some months ago the Supreme Court of BC decided in favour of the Port Moody Residents. The Court found that a bylaw which could have allowed development on a small, sensitive wetland area was invalid as a result of the City's failure to disclose all relevant information to the public. The court noted that "[p]ublic hearings that involve a reflection on environmental issues involve special procedural considerations..." and that council must attempt to disclose as much information as possible in these cases. The Municipality has appealed the court's decision to quash the bylaw. EDRF funding permits the Residents to defend the appeal and attempt to preserve the wetland.
Burns Bog Conservation Society:
International experts have recognized the importance of protecting Burns Bog. EDRF funding will allow the Society to retain a lawyer to prepare a legal opinion outlining legal options available to preserve the bog.
Sunshine Coast Forest Watch:
The group is attempting to protect fish habitat, vulnerable or "at risk" species, a rare mushroom and a watershed in an environmentally sensitive area surrounding Mt. Elphinstone. Funds will enable the group to obtain legal advice regarding options and to participate in the Local Resource Use Plan development and the Sunshine Coast Conservation Strategy.
Citizens for Myrtle Rocks Park:
Residents of this community near Powell River are concerned that a sewage permit will adversely impact the aquatic and shorelife of Myrtle Rocks Park. EDRF assistance will provide legal assistance to participate in an Environmental Appeal Board hearing on the sewage permit.
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