Executive summary
The purpose of this formative evaluation was to assess whether the obligations established by the Canadian Environmental Protection Act, 1999 (CEPA 1999) are being fulfilled and whether Environment Canada has undertaken the required actions to meet the Act's intent. The evaluation covered the four-year period from the Act's entry into force on March 31, 2000, through December 31, 2004.Footnote i
Under Section 343 of CEPA 1999, a committee of one or both of the Houses of Parliament must review the Act every five years. Such a review is anticipated in 2005. The Minister of the Environment (the Minister) and the Minister of Health are expected to table a formal joint submission to the committee in support of the upcoming Parliamentary Review. This evaluation will inform the submission of the Ministers.
The objectives of the evaluation were to:
- examine the degree to which Environment Canada (the Department) is fulfilling its mandatory requirements under CEPA 1999;
- examine the degree to which the Department has initiated identified priority actions to improve the efficiency and effectiveness of the delivery of CEPA 1999;
- identify progress to date in meeting the Department's expected outcomes for CEPA 1999 and its various Parts;
- examine and make recommendations concerning the Department's governance structures, processes and procedures that have been put in place to implement the Act;
- make conclusions and recommendations concerning the above questions; and
- identify any changes that may be required to CEPA 1999 to improve the effectiveness and efficiency of departmental processes.
This independent evaluation is "evidence-based." Its conclusions and recommendations are based on objective, quantitative and documented evidence to the fullest extent possible. The consulting team undertook the evaluation in accordance with the work plan described in the Evaluation Plan provided by the Department's Audit and Evaluation BranchFootnote ii .
The scope of the evaluation included all the programs and activities under CEPA 1999, as well as all the programs previously under the 1988 Canadian Environmental Protection Act (CEPA 1988) that were continued under CEPA 1999. The evaluation focused on the first 11 substantive Parts of the Act.Footnote iii
Other issues affecting the scope of the evaluation were as follows:
- Obligations and activities undertaken by Health Canada were excluded from the evaluation, as that department is conducting its own evaluation.
- The Act's obligations with respect to the role and activities of the Governor in Council (Cabinet) also were excluded.
- CEPA 1999 places a significant number of obligations on Persons (e.g., no unauthorized use or disposal of identified substances or wastes). The evaluation undertook an indirect examination of the extent to which these obligations are being met.
- The Act provides the Minister with authority to enter into equivalency and administrative agreements with the provinces and territories and agreements respecting administration with Aboriginal governments and peoples. The evaluation undertook an indirect approach in this area, focusing on the information-sharing and verification and assurance mechanisms instituted by the Department to ensure that the Act's obligations and objectives are satisfied.
The following broad conclusions arise from the detailed findings presented in this evaluation report.
CEPA 1999 is described as being an "enabling" Act that provides the Minister of Environment with broad, discretionary powers for protecting the environment. The Act imposes, however, a significant number of new obligations on the Minister, while maintaining many obligations that previously existed for CEPA 1988. Limitations with respect to the resources available for implementation of CEPA 1999 have required the Department to establish explicit priorities. The highest priority is placed on meeting all mandated obligations. The Department is well aware of all formal Ministerial obligations under the Act, and it has established the organizational base and relevant processes and procedures and secured the necessary resources to ensure that all of its obligations are met.
Of particular note, the Department:
- is on track and well positioned to satisfy the requirement to categorize all of the more than 23 000 substances on the Domestic Substances List prior to the September 2006 deadline imposed by the Act; preliminary categorization decisions have already been published for about 17 000 substances, and a further 1000 substances have been identified for removal from the Domestic Substances List following investigations that concluded that they were inappropriate for inclusion;
- has met all legislated timeline requirements associated with the proposal and finalizing of risk management measures and tools in response to all substances proposed, by the Ministers of Health and Environment, for addition to the CEPA 1999 Schedule 1 List of Toxic Substances; and
- has strengthened industry and interjurisdictional cooperation on environmental protection matters through non-CEPA initiatives.
Despite the volume and significance of accomplishments documented in this report, the volume of the mandated activity the Department expects to undertake upon the completion of the Domestic Substances List categorization exercise in September 2006 could greatly exceed activity levels experienced over the evaluation period. While resource requirements have been assessed and met, the anticipated volume of work may pose significant planning and coordination challenges within Environment Canada, among federal departments, between levels of government and with industry and other stakeholders.
In addition, there is a need for enhanced government-wide cooperation and clarity of mandate and responsibilities for managing certain types of new substances, specifically animate products of biotechnology, in areas involving aquatic organisms, pharmaceuticals, certain food products and transgenic animals.
Despite the real progress in the areas of Ministerial obligations, outputs and governance, Environment Canada, and more generally the Government of Canada, has yet to realize the full potential of CEPA 1999 to serve as the primary means of protecting environmental and human health in Canada. Several key aspects of the Department's implementation of CEPA 1999 need to be addressed before the Act's full potential can be realized.
Federal house provisions
Key actions with respect to the federal house provisions of Part 9 of CEPA 1999 have not been initiated. The provisions give the government the authority to subject federal operations and operations on federal and Aboriginal lands to the same type of environmental performance standards as entities regulated by the provinces or territories. The government has made very limited use of the CEPA 1999 Part 9 provisions. Among the identified priority actions for strengthening implementation of CEPA 1999 and that remain outstanding are:
- establishment of a focal point for departmental and Government of Canada activities respecting environmental matters and the federal house;
- technical investigation and scientific assessment of the risk from federal house facilities and facilities on federal and Aboriginal lands; and
- subsequent development of a strategic plan for managing federal house issues under the Act.
CEPA National Advisory Committee
Fundamental differences of opinion on the appropriate role for the federal government in environmental protection remain between the federal government and its provincial and territorial counterparts. These differences, however, have not precluded fruitful collaboration on specific environmental issues. These differences of opinion will need to be addressed, however, before broader harmonization of environmental protection standards across Canada will be realized. The CEPA National Advisory Committee is intended to provide the forum and process for addressing such issues; however, all parties to the committee expressed concerns about its current effectiveness, including the following:
- Aboriginal representatives maintain that the committee is an ineffective forum for addressing the concerns of Aboriginal peoples and communities.
- Provincial and territorial representatives on the committee expressed concern with respect to the volume and pace of activity to be considered by the committee and their jurisdictional capacities to respond in a timely manner. They also expressed strong concerns with perceived federal duplication of their own efforts.
- Federal representatives are concerned that committee members do not see the real impacts that their efforts have had on shaping federal policies and risk management measures and tools. They are also concerned about declining attendance rates, due to travel restrictions and other budgetary limitations imposed within some provincial jurisdictions.
Internal and external barriers
Barriers exist that restrict the use of the Act's provisions relating to:
- the use of economic instruments and fees and charges;
- cost recovery with respect to both administrative costs and damages resulting from pollution incidents; and
- public actions to initiate investigations and recover damages to private property.
Environmental outcomes
The Department has not yet determined or communicated the environmental outcomes that it intends to achieve with the broad enabling powers provided by the Act (with the exceptions of the Clean Air Agenda and the broad guidance provided by the National Pollution Prevention Strategy and the Toxic Substances Management Policy). Moreover, the links between risk management measures and environmental objectives are not always clear. The expected outcomes as developed for the purposes of this evaluation do not have formal departmental support. External stakeholders have also identified the lack of clear environmental outcomes as a significant shortcoming. The Department will continue to face difficulties in assessing its progress under the Act unless clear outcomes and objectives are understood and agreed upon by all parties.
Monitoring and reporting
It remains too early to determine or report on demonstrable progress in environmental improvements under CEPA 1999 in many program areas. Measurement and accompanying reporting systems to determine and report on demonstrable progress even at some future date have yet to be fully introduced by Environment Canada. The ultimate success of CEPA 1999 in addressing the challenges of environmental and human health protection may be determined by the ability to monitor and report progress.
There are immediate opportunities to strengthen the implementation of CEPA 1999.
The Government of Canada, led by Environment Canada, should develop a set of clear and realistic environmental outcomes that it intends to achieve under the broad enabling powers provided by CEPA 1999. This should be undertaken in consultation with other jurisdictions and stakeholders. In this way, a common mission can be developed around how the Act's provisions are to be used in support of environmental and human health protection in Canada.
Management response
Environment Canada agrees that environmental outcomes are important and recognizes that the programs developed to implement CEPA 1999 are part of a larger mosaic of federal and provincial programs designed to protect the environment. Furthermore, many of Environment Canada’s programs, other than those directly associated with CEPA 1999, contribute to the same broad outcomes.
Within this broader context, the Assistant Deputy Minister, Environmental Protection Service with the support of the Director General of the Strategic Priorities Directorate will ensure that environmental performance information related to CEPA 1999 is fully integrated and identified as part of the results structure (Governance structure and new Program Activity Architecture (PAA)) for Environment Canada. We expect this structure to be approved in fiscal year 2005-06. The PAA would, therefore, form the basis for reporting on environmental outcomes related to CEPA 1999 in 2006-07.
With other federal and provincial partners, Environment Canada is developing the Competitiveness and Environmental Sustainability Framework which will include broad environmental outcomes. Over time, this framework will provide the direction and context for all of the departmental programs and as such, the environmental outcomes will frame Environment Canada’s results management framework, including results under CEPA 1999.
Environment Canada should develop and introduce, on a priority basis, a comprehensive framework for monitoring and reporting on progress against environmental outcomes. Through this framework, decision-makers at all levels will have appropriate information to facilitate decision-making, and Canadians will be able to determine whether the Act is succeeding in protecting environmental and human health. Specifically, measurement and reporting systems need to be in place to assess progress at the levels of:
- individual risk management measures and tools; and
- departmental programs and priorities relevant to CEPA 1999.
These monitoring and reporting programs should address both:
- changes in the activities and performance of the targeted audiences; and
- changes in environmental quality.
Management response
The department agrees that a comprehensive framework for monitoring and reporting on progress against stated environmental outcomes is important. These activities must, however, as with the broader environmental outcomes, be part of broader monitoring and reporting structure.
As noted above, Environment Canada is also in the process of revising the structure of the Program Activity Architecture (PAA). This is the department’s primary performance measurement system which supports results-based management. The Assistant Deputy Minister of the Environmental Protection Service with the support of the Director General of the Strategic Priorities Directorate will see that monitoring and reporting issues raised in this evaluation are addressed in the development of the Program Activity Architecture in order to measure progress against outcomes. It is expected that this work will take place over fiscal year 2006-07. It should be noted that the CEPA Annual Report already tracks progress publicly on activities related to CEPA 1999, including those related to administrative or equivalency with provinces and territories.
Furthermore, as previously noted, the Competitiveness and Environmental Sustainability Framework will provide a broader framework in time in which potentially other governments and organizations could potentially also monitor and track progress towards the same broad outcomes that CEPA 1999 is intended to contribute.
Additionally, in the fall of 2004, a new group under the Director General of the Risk Assessment Directorate was established to provide analysis and reporting, using existing information systems (notably the National Pollutants Release Inventory) with environmental quality monitoring information and other related information, to demonstrate trends and outcomes of CEPA and other related programs. This will assist us in better reporting on the effectiveness of risk management measures put in place under CEPA 1999. This information will be integrated into the CEPA Annual Report by the Director General of the Strategic Priorities Directorate.
Environment Canada should address, on a priority basis, the lack of action on the federal house provisions under Part 9 of CEPA 1999. Action in this area can address a clear gap in the current implementation of CEPA 1999 and support the Government of Canada's national leadership role in environmental and human health protection.
Management response
The Assistant Deputy Minister of the Environmental Protection Service with the support of the Director General of Pollution Prevention Directorate will establish a focal point to pursue greater implementation of the federal house provisions (Part 9) of CEPA 1999 this fiscal year. Once formed, the federal focal point will develop a plan and process to assess risks and set priorities for managing risks associated with activities on federal and aboriginal lands as well as from other federal activities. The unit will develop a strategic plan with priorities for managing federal house issues under the Act by the end of fiscal year 2005-06.
This unit will help to accelerate action on high risk areas on which the department is already making some progress such as hazardous wastes and storage tanks. Furthermore, it will complement other priority federal house activity on which the department already places a priority, notably contaminated sites where substantial progress has been made over the past few years.
Furthermore, Environment Canada has identified some concerns with the current provisions of CEPA 1999 with respect to the federal house in its public discussion documents in preparation for the parliamentary review of CEPA 1999. Others appear to share these concerns indicating that there is a need for wider discussion around this issue and that it is a potential issue for the CEPA Review.
Environment Canada should undertake actions to strengthen the role of the National Advisory Committee (NAC) as an effective means of promoting interjurisdictional cooperation. The Department should acknowledge that provincial/territorial and Aboriginal representatives do not fully share its view of the committee's mandate and successes. It should work with its partners to forge a forum that better responds to the emerging needs and priorities of all jurisdictions.
Management response
Environment Canada agrees with the need to make NAC more effective and that its place in the governance of federal-provincial environmental protection matters must be clearer relative to the role of the Canadian Council of Ministers of the Environment (CCME) and bilateral activities. To this end, the Assistant Deputy Minister of the Environmental Protection Service, who co-chairs the CEPA NAC with Health Canada, will clarify the role of the NAC in the context of the broader work being led by the Policy Integration Branch on federal/provincial relations including the CCME. This work will be supported by the Director General of the Strategic Priorities Directorate.
Furthermore, the Director General of the Strategic Priorities Directorate will support the co-chairs in undertaking a study to assess the strengths and weaknesses of the Committee from the perspective of its members. This is the second such study and as such is part of a cyclical analysis to improve efficiency and effectiveness of NAC. This assessment will also explore ways that the committee can contribute to ongoing CCME activities and bilateral work with provinces and territories. Recommendations from this study will form the basis for a more detailed action plan that will be developed by the end of fiscal year 2005-06.
With respect to the views of aboriginal representatives, there is a need to recognize that NAC is an advisory body and its role relates to ensuring good cooperation among governments with responsibilities for environmental protection. In its preparations for the CEPA 1999 Parliamentary Review, the department raised concerns that NAC might not be appropriately structured to deal with the needs of aboriginal governments, nor with the broader interests of aboriginal peoples. Others share this concern which indicates that there is a need for wider discussion around this issue and it should be looked at during the CEPA 1999 Review.
Environment Canada should undertake work to document, communicate and, where possible, address any internal and external barriers that relate to:
- the use of economic instruments, fees and charges;
- cost recovery with respect to both administrative costs and damages resulting from pollution incidents; and
- public actions to initiate investigations and recover damages to private property.
Management response
The department agrees in part with this recommendation. The department will continue to ensure that in the selection of risk management instruments consideration is given to the full range of instruments available, including economic instruments. Additionally, the department is aware of some legislative constraints to the use of some economic instruments and cost recovery and did raise these in public consultations during its preparation for the CEPA review. Results from these consultations confirm that others share this concern and that it should be further discussed in the context of the Parliamentary Review of CEPA 1999.
However, since CEPA 1988 was created, the department has looked systematically three times at all of its programs to ensure that there is the right use of cost recovery where programs result in private benefits. There is cost recovery associated with the new substances risk assessments and ocean disposal permits. The evaluation has provided no evidence where there may be additional areas where cost recovery should be pursued. CEPA 1999 does allow for recovery of costs the department incurs for remediation related to environmental emergencies. With the regulations that came into force at the end of 2003, the department has taken the necessary steps to enable the use of this authority.
Environment Canada also agrees in principle with the recommendation that it document, and communicate on any barriers relating to public actions to initiate investigations of alleged offences under the Act. This provision is not new to CEPA 1999 but has not been used widely. During the 2005-06 fiscal year, the Assistant Deputy Minister of the Environmental Protection Service with the support of the Director General, Strategic Priorities Directorate will, oversee analysis with respect to barriers to public participation, and once the study is complete will develop a plan to address barriers as may be appropriate.
Environment Canada, in cooperation with Health Canada, should clearly document the full range of aspects for which CEPA 1999 is currently required to fulfil safety net provisions with respect to the management of new substances, specifically animate products of biotechnology and emerging technologies. The two departments should work with other federal departments to articulate clear timelines for developing regulations that will result in the management of these aspects of new substances and technologies by the most appropriate department and under the most appropriate federal legislation.
Management response
We fully agree with the merit of having clear documentation on where Environment Canada serves as the responsibility centre for notification of new substances under the authority of CEPA 1999. This information is available on the New Substances Program website for chemicals, polymers and products of biotechnology. The Assistant Deputy Minister with the support of the Director General, Risk Assessment Directorate will ensure that this documentation is reviewed to ascertain it is up to date, clear and user friendly by the end of 2005 and develop a plan for regular updating subsequently.
Nanotechnology is an emerging area. Discussions have begun with other departments to determine roles and responsibilities as per current federal Acts and regulations and clarify responsibilities under CEPA 1999. The Assistant Deputy Minister of the Environmental Protection Service with the support of the Director General, Risk Assessment Directorate will ensure that these findings are documented on the New Substances Program web site once interdepartmental discussions have been concluded.
Environment Canada has established Memoranda of Understanding with clear timelines with Fisheries and Oceans and Health Canada to develop regulations or amendments to their Acts. This will allow new chemicals, polymers and products of biotechnology regulated under the Food and Drugs Act and products of biotechnology that are fish to go through appropriate risk assessment prior to commercialization. Progress has been slower than expected. The Assistant Deputy Minister, Environmental Protection Service will continue to work with these Departments with the objective of ensuring completion of the regulatory and legislative changes by the end of 2007.
To date, Environment Canada has not been successful in entering into an agreement with the Canadian Food Inspection Agency (CFIA) with respect to novel animals. The Assistant Deputy Minister, Environmental Protection Services will renew his efforts to reach an agreement with Canadian Food Inspection Agency by the end of 2005.
Should progress on developing and implementing agreements or Memoranda of Understanding with other departments not be sufficient, Environment Canada will make every effort to seek the necessary resources to carry out any future work and continue to fulfil its obligations under CEPA 1999 to carry out risk assessments The areas that are subject to existing or planned Memoranda of Understanding are not where there is significant current notifications but rather where research is active and the government will likely be required to conduct risk assessments in the near future.
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