Annex 1: summary of stakeholder views

Interviews with key stakeholders external to the Environmental Protection Service were conducted to gain an understanding of their overall assessment of the degree to which the Canadian Environmental Protection Act (CEPA 1999) is meeting its intent, as well as the Department's role. The results of these interviews complement the evidence-based approach taken for the evaluation and assist in determining external perceptions, opinions and views on the implementation of CEPA 1999.

Forty-one individuals were invited to participate in this part of the evaluation; 33 were interviewed. Telephone and in-person interviews were conducted in late November and December 2004. The individuals interviewed included:

• 10 representatives from federal government departments, including two Environment Canada officials;
• seven representatives from provincial and territorial governments, all of whom were members of the CEPA National Advisory Committee (NAC);
• eight representatives from industry;
• six individuals from environmental non-governmental organizations; and
• two individuals from Aboriginal organizations.

All interviews were based on the same set of questions. However, there were additional questions for NAC members. The interview guide and the list of interviewees are provided in Appendix VII and Appendix VIII, respectively. Evidence to support their views was requested and provided where possible.

Stakeholders' familiarity with CEPA 1999 was varied. Most had very specific views only on those issues or questions that directly affected them. Most stakeholders focused on the provisions of the Act addressing toxic substances (including the Priority Substances List, the Domestic Substances List, the National Pollutant Release Inventory, and the risk categorization/assessment process). Few had an overview of the Act as a whole. As a group, non-governmental organizations generally had the broadest understanding of the Act's numerous provisions.

The interviews with federal officials showed that familiarity with the Act among federal departments other than Environment Canada and Health Canada varied significantly from department to department. However, all interviewees recognized the complexity of implementing CEPA 1999. Most departments noted that coordination within the federal family was taking place.

A number of departments were fully satisfied with their relationship with Environment Canada on CEPA matters. A few departments, however, wanted their relationship with the Department enhanced. These departments believe that while better coordination between Environment Canada and other departments is needed, the Department is trying to do too much on its own and not making sufficient use of others' expertise. The revitalization of the Directors General Committee on Toxics is seen as a venue for networking, exchanging information and identifying concerns.

Health Canada's relationship with Environment Canada on CEPA matters is important and complex, as the two Ministers jointly administer the Act. Health Canada officials are generally satisfied with their relationship with their Environment Canada counterparts, although some Health Canada managers expressed concern about the interdepartmental relationship on CEPA. These managers believe that Environment Canada has treated their department as a junior rather than an equal partner on CEPA 1999 and has not been prepared to listen fully to their concerns. They recognize, however, that Environment Canada's senior management is aware of the problem and is addressing it.

Internationally, Environment Canada is seen as successful in promoting cooperation, building on the work of others and taking a leadership role in some files (e.g., persistent organic pollutants). However, some see that there are gaps in implementation and, occasionally, leadership on Environment Canada's part. One interviewee noted that there is no obvious link between the federal-provincial diplomacy at the National Advisory Committee and Environment Canada's international diplomacy on toxic substances (e.g., through North American Regional Action Plans and the Stockholm Convention on Persistent Organic Pollutants). In the view of that individual, the advisory committee members are not made sufficiently aware of the international obligations that the federal government is assuming, and Environment Canada does a poor job of communicating the relevance of international commitments to domestic policy. In addition, it was noted that both government and industry appear to have withdrawn somewhat from international cooperation recently as a result of budget constraints.

Stakeholder views on provincial and territorial alignment of objectives, standards, approaches and instruments were mixed. While they agreed on some examples of federal- provincial harmonization (including the National Pollutant Release Inventory and Ontario Regulation 127 to provide a single window for the reporting of certain industrial emissions), they also disagreed about how other examples should be interpreted. For example, some interviewees saw Canada-wide Standards as indicating a greater harmonization of federal, provincial and territorial approaches. Others noted that the name itself was misleading: the standards are not Canada-wide (because Quebec does not participate), and many of them are more like guidelines. Some stakeholders also noted that there do not appear to be consequences when provinces fail to implement these standards.

All but one of the provincial and territorial officials interviewed as part of this evaluation expressed the view that CEPA implementation was becoming a growing issue in federal- provincial-territorial environmental relations. They perceived that Environment Canada was intruding into areas that provincial and territorial governments had traditionally managed. As a result, they noted that the federal government is increasingly overlapping with and duplicating provincial control measures. This conclusion was strongly disputed by Environment Canada representatives, who have found no areas of duplication or overlap and stated that they have ensured efforts to work with the provinces and territories in all areas.

It is important to note that Environment Canada and the provinces define overlap and duplication differently: the Department defines duplication as two jurisdictions imposing the same regulatory requirements on the same substance to the same standard. The provinces and territories, meanwhile, tend to define duplication as two jurisdictions regulating in the same area, even if the regulatory requirements are different. As a result, federal and provincial/territorial officials interpreted the same events very differently. Proposals cited as examples of Environment Canada flexibility (e.g., its acceptance of provincial control measures on road salt and crankcase oil) were viewed as examples of jurisdictional battles by provincial and territorial representatives.

The industry representatives interviewed recognized Environment Canada's efforts to work collaboratively with the provinces. Non-governmental organization representatives also believed that provincial claims about duplication were exaggerated. Another interviewee suggested that some provinces complained about federal intrusion even when they could not document their own environmental protection efforts in the area in question.

Finally, there was considerable support among provincial and territorial interviewees for the proposed sector sustainability table process recently established in Environment Canada.

All but one of the provincial and territorial interviewees expressed disappointment with the National Advisory Committee. Views ranged from the committee not being viable to it being a "waste of time." Several noted that attendance at advisory committee meetings had been declining and that small jurisdictions were having difficulty with the volume of information distributed. Environment Canada officials, on the other hand, thought that the committee was generally fulfilling its intended role and influencing departmental thinking and actions. These departmental officials provided several pieces of evidence illustrating where the committee's advice had influenced decision-making.

These differences reveal a lack of consensus about the purpose and role of the National Advisory Committee. Some committee members interviewed would like the group to function more as a partnership to pursue common priorities, and not focus strictly on CEPA priorities. Some provinces would like the committee to play more of a decision-making function in choosing risk management measures and tools. They also have suggested that a provincial or territorial representative co-chair the committee and that it be made a subcommittee of the Canadian Council of Ministers of the Environment to create a more equal relationship on these matters between the federal government and the provinces and territories.

Environment Canada has a different interpretation of the purpose and role of the advisory committee. The Department considers the committee to be strictly an advisory group to its Minister. Environment Canada representatives have worked to ensure that the committee functions effectively. They have surveyed members to assess satisfaction and have recently taken steps to strengthen the committee's functioning, designating a more senior official to serve as chair, making formal offers to consult with the provinces and territories and developing longer-term planning agendas.

Representatives of Aboriginal organizations^xxxviii stated in interviews that the National Advisory Committee does not address the environmental protection issues of greatest concern to them. Nor does it represent the most appropriate forum for obtaining Aboriginal input, in their view. They raised the following issues around Aboriginal representation on the committee:

• CEPA 1999 defines Aboriginal government too narrowly, thereby excluding potential Aboriginal participants.
• Environment Canada should consider consolidating the various consultative channels it has established to seek Aboriginal input (i.e., have a single committee of Aboriginal advisors under both CEPA 1999 and the Species at Risk Act).
• The Assembly of First Nations welcomed the recognition that Aboriginal peoples should be at the table; however, the relatively small number of Aboriginal seats makes it difficult to represent the full range of Aboriginal interests.

Most interviewees acknowledged that Environment Canada's implementation of CEPA 1999 as a piece of enabling legislation is part of the foundation for their own environmental protection efforts. The Department is seen as having made good efforts to support the work of others through its consultations and by providing public information. Several provincial interviewees noted that Environment Canada's scientific work contributes significantly to their own environmental protection programs. As well, some non-governmental organizations noted the value of the National Pollutant Release Inventory as a tool to improve corporate environmental performance. Other interviewees noted that CEPA 1999 sets a high standard for transparency on a range of environmental issues.

Recognizing these efforts, most non-governmental organizations also thought that Environment Canada could do more to support the environmental efforts of others. They suggested that the public should be consulted earlier in the decision-making process and that environmental groups should have access to more financial support to participate meaningfully in Environment Canada's various consultation processes. Finally, it was noted that Environment Canada could better integrate its environmental information to give the public a more complete profile of a facility or an issue and that the CEPA Environmental Registry should be more interactive and used more effectively as a vehicle for information and public input on decisions.

Many stakeholders prefaced their comments by indicating that it was too early to assess progress made on CEPA 1999, given the complexity and scope of the Act and the relatively short period since enactment. They also noted the lack of identified environmental outcomes in the Act against which to measure progress and the fact that Environment Canada had only recently received additional resources for CEPA 1999 implementation. Both factors made it difficult to adequately assess progress, in their view.

The implementation of CEPA 1999 is seen to be a major accomplishment by interviewees. The Act is recognized as posing a significant coordination challenge to the Department. The Department was commended for the substantial intellectual investment it has made in understanding and implementing the new Act. Interviewees highlighted the following strengths of CEPA 1999 over the first five years of implementation:

• the Clean Air Agenda, resulting in the reduction of sulphur in fuels, cleaner engines and controls for ozone precursors;
• the innovative categorization process, with Canada being a world leader;
• the mandating of the previously voluntary reporting of selected pollutant releases (however, many industry representatives also criticized the National Pollutant Release Inventory for the reporting costs it imposes on them);
• an implementation of a framework for action on toxics based on the time-bound requirements included under Part 5 of the Act;
• the emergency planning and emergency preparedness regulations, with effective and well-managed consultations;
• more focused information requests to industry;
• a general increase in awareness about environmental issues in industry and a priority on technology development to address CEPA-related issues; and
• transparency provisions (e.g., the Environmental Registry, annual reports, public consultations) to increase information about CEPA 1999 and pollution prevention.

Stakeholders also noted several areas where, in their view, there has been insufficient progress to date:

• Promoting pollution prevention: According to several representatives of non- government organizations, government and industry, Environment Canada has not institutionalized a pollution prevention culture in the Department yet, and they are disappointed by what they viewed as the small number of pollution prevention plans that have been formally published so far.
• Using the full suite of risk management instruments available and relying on regulations as the automatic default approach: Stakeholders believe that Environment Canada needs to assess the strengths and weaknesses of the various policy tools at its disposal and have a more rigorous framework to guide the selection of instruments.
• Slow progress: Many non-governmental organization representatives complain that Environment Canada is moving too slowly, given the importance of the issues at stake. They are particularly concerned with what they see as low levels of enforcement activities and actions.
• Inflexibility: Many of the provincial representatives noted the inflexibility in the risk management process and the time-bound requirements specified in Part 5 of the Act. They would like to see an option that would allow Environment Canada to delay action on an issue while it negotiated a common approach with the provinces and territories. By contrast, non-governmental organization representatives and Environment Canada officials believe that time-bound provisions of Part 5 of the Act are a very important provision of CEPA 1999 and that their advantages far outweigh any disadvantages.
• Insufficient research: Several interviewees (mostly non-governmental organization and Aboriginal representatives) were concerned that Environment Canada is conducting insufficient research on key emerging issues, including endocrine disrupting substances.
• Lack of progress on filling the regulatory gap that exists concerning reserve lands: Some interviewees in government and Aboriginal organizations noted that addressing this gap is an obligation under the Act and that little tangible progress has been made. More generally, these interviewees believed that Environment Canada has not made effective use of the Part 9 federal house provisions.
• Insufficient resources: Stakeholders feel that a lack of staffing and funding has led to low levels of activity in several areas of Ministerial discretion (including enforcement, some research and control of consumer products that contain toxic chemicals). In the view of most non-governmental organizations, insufficient resources also have resulted in an undue reliance on self-reporting by industry in determining the effectiveness of CEPA 1999 regulations.
• Insufficient progress in improving the National Pollutant Release Inventory.
• Lack of consistency in the interpretation of the Act: Some interviewees believed that inconsistency in interpretation of the Act has resulted in a piecemeal approach to implementation. Others noted a discontinuity between risk assessment and risk management activities, which they believe has hurt the implementation of the Act.
• Lack of progress on access to information and transparency in reporting on environmental matters: Interviewees were pleased with the Department's success in ensuring that information respecting the sulphur content of fuels is now made available to the public, but expressed concern that this has not provided a precedent to ensure that other compliance-related information can be made publicly available.
• Addressing matters of greatest concern to Aboriginal organizations.
• Collection of sufficient information to measure the effectiveness of its risk management instruments.

Industry representatives interviewed indicated satisfaction with the implementation of CEPA 1999, with few exceptions (such as risk assessment) and did not express major concerns. Even the industry representatives who were concerned with Environment Canada's risk assessment approach tended to be satisfied with its risk management approach. However, several industry representatives did express concern about the "all or nothing" definition of toxicity, which can lead to such widely different substances as dioxin and road salt both being categorized under the Act as "toxic." They believe that finding that a substance is "toxic" creates a public stigma for products or production processes, with adverse financial implications for industry. Accordingly, some industry and provincial representatives would like to see a middle ground, where a substance would be identified as "of concern" and therefore requiring management, but not be labelled as toxic.