[Update 24 October 2013: The Joint Public Advisory Committee has decided to leave the Call for Comments up-and-running. So keep sending in your comments to the JPAC!]
In 1994, in response to concerns that the North American Free Trade Agreement (NAFTA) would provide an incentive to weaken environmental laws, Canada (along with the U.S. and Mexico) committed to maintaining strong environmental laws and resisting pressure from large international corporations to weaken those laws.
To that end, they entered into the North American Agreement on Environmental Cooperation (NAAEC, or NAFTA Environmental Side Agreement, as it is sometimes known). Key objectives of the NAAEC are to promote sustainable development, encourage pollution prevention and better compliance with environmental laws, and promote transparency and public participation in the development and improvement of environmental laws and policies.
The three countries established the Commission for Environmental Cooperation (CEC) – an international body made up of representatives of all three countries – to coordinate environmental protection laws between them.
Now, at the cusp of the 20-year anniversary of when NAFTA and the NAAEC went into effect, the CEC and its Joint Public Advisory Committee want to know what you think about whether North America’s governments are living up to that goal.
We need to tell them loud and clear that the Canadian government’s recent attacks on environmental laws are a subsidy to the oil and gas and other industries and, as a result, we have failed to live up to our international commitments.
What the NAFTA side-agreement says about strong environmental laws
The NAAEC commits all three governments to maintaining and building strong environmental laws. It seeks to “promote transparency and public participation in the development of environmental laws, regulations and policies…” and to avoid weakened environmental laws that “creat[e] trade distortions or new trade barriers.”
Specific commitments made by Canada include:
- to “further scientific research and technology development in respect of environmental matters”;
- to “assess, as appropriate, environmental impacts”; and
- to “ensure that its laws and regulations provide for high levels of environmental protection and shall strive to continue to improve those laws and regulations.” [Emphasis added]
The CEC explains:
The NAAEC was signed and the Commission for Environmental Cooperation (CEC) created in response to concerns that free trade might harm the environment by encouraging the creation of pollution havens because of lax environmental standards or ineffective environmental law enforcement.
In our view, Canada is at risk of becoming just such a “pollution haven” with the recent gutting of our national environmental laws at the request of industry lobbyists and with the politicization and defunding of government environmental science.
Gutting of Canada’s environmental laws
So how are we becoming a “pollution haven”? Last year’s omnibus “budget” bills, Bills C-38 and C-45, contained sweeping revisions to many of Canada’s environmental laws. Only a few months before Bill C-38 was introduced, the oil and gas industry had asked for many of these same changes. Here are a few of the changes that they got:
- The Canadian Environmental Assessment Act was replaced in Bill C-38 with CEAA, 2012, which eliminates thousands of environmental assessments, reduces public involvement and affects how environmental assessment is done on the ground.
- The Fisheries Act was amended in Bill C-38 to only protect fish that are currently used for commercial, recreational or Aboriginal purposes, and to severely reduce protection for fish habitat even for these fish species.
- The National Energy Board Act was amended in Bill C-38 to allow the federal cabinet to override the National Energy Board’s recommendations with respect to oil pipeline approvals and to exempt the NEB from considering critical habitat of species at risk and many pipeline waterway crossings;
- The Navigable Waters Protection Act was re-written as the Navigation Protection Act in Bill C-45; instead of protecting all navigable rivers, lakes and oceans the new Act only protects a relatively small number of water bodies that actually appear on a list. What used to function as both navigation and environmental protection for tens of thousands of streams and lakes has been eliminated in favour of protecting only navigation on only a handful of water bodies (by way of example, none of the streams or lakes on Vancouver Island are any longer protected under this Act).
- The Kyoto Protocol Implementation Act, which was the only piece of federal Canadian legislation which set specific targets for Greenhouse Gas Reductions and required the government to develop plans to achieve those targets, has been repealed. According to a report by the Global Legislators’ Organization, Canada is the only country among its 33 members to repeal its “flagship” climate change legislation without replacing it with any equivalent law.
It is important to note that the changes to the Navigable Waters Protection Act and the most problematic changes to the Fisheries Act, although passed by Parliament, are waiting for a cabinet order before they become law. So it’s crucial that we highlight that these changes are a violation of Canada’s commitments.
Finally, the gagging of public scientists and the defunding of environmental science in favour of industry focused science is clearly at odds with the commitment to further scientific research on environmental matters.
The Commission needs to hear from you
The mandate of the CEC is, among other things, to coordinate environmental protection laws between all three countries and to “serve as a forum for the discussion of environmental matters within the scope of this Agreement.” In 2014 the NAAEC will have been in force for 20 years, and between now and the end of August, the CEC wants to hear from you about the NAAEC and whether it has been effective in ensuring that the strong environmental protection envisioned by the agreement has been realised. This public input is to be discussed at an international conference in October in Washington, DC, and represents a significant opportunity to highlight Canada’s failure to abide by its NAAEC commitments. Here are some of the questions that CEC is asking (click here for the complete list):
- What are the environmental successes of the NAAEC and NAFTA? Where have the provisions of those agreements fallen short?
- Is the CEC achieving the goals for which it was created? Are those goals adequate in the face of ongoing environmental challenges in North America?
- Have the NAAEC and the environmental provisions of NAFTA adequately addressed environmental concerns related to free trade in North America?
- How could implementation of the NAAEC and the environmental provisions of NAFTA be improved?
Canadians from coast to coast know that NAAEC has not prevented our government from gutting environmental laws in order to pander to industry. In many cases the changes appear to be written specifically to benefit one industry – the oil and gas industry. We, and the CEC, would love to hear your ideas about how the NAAEC could better ensure that environmental laws remain strong and are not sacrificed for trade efficiencies.
West Coast Environmental Law has submitted a letter to the CEC summarizing its concerns over these federal environmental law changes and suggesting ways for the CEC to better ensure Canada lives up to its obligations under the NAAEC. Some ideas that we’re proposing include:
- The NAAEC should be amended to include specific commitments related to its objective of “promoting transparency and public participation in the development of environmental laws, regulations and policies.” Laws cannot be based on meetings with industry lobbyists behind closed doors.
- The CEC needs to have a stronger role in evaluating changes to environmental laws and notifying the public of weakened environmental laws;
- The NAAEC should include specific commitments related to procedural and substantive rights to participate in decision-making (for example through environmental assessments);
- There need to be economic consequences for intentionally weakening environmental laws in order to give industry a competitive advantage; and
- While NAAEC allows the public to complain about a failure to enforce environmental laws, the role of the public, and the CEC, in evaluating changes to the law that weaken environmental protection should be strengthened.
If you want your voice heard, you also need to write to the CEC with your comments. We have an email form embedded in this post, below, which will send your message to the Joint Public Advisory Committee of the CEC and to Prime Minister Stephen Harper. Simply fill in your name and email address, make any modifications to our suggested text that you like, and click send. Or, if you want to make your submissions outside of our website, email your comments to the CEC at firstname.lastname@example.org. The deadline for submissions [was] August 30th, 2013 [but submissions are still being accepted until October 17th].
In 1994 Canadians were worried that NAFTA could see our country become a “pollution haven”, and to address those concerns Canada signed on to the NAAEC. Twenty years later we are facing just such a fate. Please join us in speaking out.
By Andrew Gage, Staff Lawyer
Don’t let Canada become a NAFTA Pollution Haven