Section 2: Context for the review

The purpose of this Section is to provide readers with the context needed to allow them to critically assess issues relevant to the upcoming Parliamentary review of the Canadian Environmental Protection Act (CEPA 1999) based on an understanding of the possible roles of CEPA 1999 within Canada's overall environmental management framework and the protection of human health. The role of the Minister of Health under CEPA 1999 illustrates the importance of the Act as a tool to protect the people of Canada against environmental risks to health. This Section also highlights the Minister of the Environment's goal for environmental management in Canada to attain "the highest levels of environmental quality as a means to enhance the well-being of Canadians, preserve our natural environment and advance our long-term economic competitiveness."

While economic development is essential to satisfy human needs and to improve the quality of human life, it must also be based on the efficient and environmentally responsible use of all of our scarce resources: natural, human, and economic. Without a healthy population as well as a healthy environment, long-term progress on economic development will be limited.

Health is determined by a number of factors, known as determinants, which include the quality of the physical and social environments. The mandate of the Minister of Health is broad in that it deals with health care as well as health promotion and the prevention of illness; therefore it is important to have a good balance among all determinants. With the increasing recognition of the interaction between human lifestyles and consumption patterns with the state of the environment, we know that good management of the environment can make a strong contribution to maintaining and increasing health and well-being.

Environmental protection is increasingly being recognized as an important determinant of the competitiveness of our economy. The emphasis on sustainable production and consumption that is helping shape the emerging global economy creates new opportunities for Canada. Companies and economies that learn how best to respond to these opportunities will have a significant competitive edge. By integrating incentives for continuous environmental improvement into the underlying drivers of the economy, Canada would achieve far more environmental and health benefits than are possible through traditional environmental regulations alone. It will be important to continue to deploy the full range of environmental policy measures in the "smartest" manner possible. With respect to risk management measures, "smart regulations" are considered to be those measures which generate social and environmental benefits while enhancing the conditions for an innovative economy.

The Minister of the Environment, the Honourable Stéphane Dion, has recently proposed the goal of a competitive economy anchored by a sustainable environment. The objective is to "attain the highest levels of environmental quality as a means to enhance the well-being of Canadians, preserve our natural environment and advance our long-term economic competitiveness." Delivering this goal would require a collaborative approach in which environmental policies would:

• encourage and enable decision makers at all levels to integrate environmental objectives and considerations into their short- and long-term decision making;
• take a comprehensive approach to environmental issues, recognizing the interconnectedness among issues from ecological, health and competitiveness perspectives;
• be aligned among jurisdictions, and implemented efficiently;
• be mindful of basic economic and business principles;
• focus on clearly articulated long term environmental targets set through a transparent process, with appropriate incentives and penalties to drive measurable progress towards those targets; and
• recognize and reward leaders.

Achieving this goal would require determined, ongoing collaboration among all interested parties. To provide a basis for collaboration around Canada's industrial activity, Environment Canada is considering a mechanism such as permanent, multistakeholder sector sustainability tables. These tables, with appropriate representatives from governments, Aboriginal organizations, the private sector and civil society, could provide advice on how best to achieve long term environmental and health outcomes that are set by government. Through sector sustainability tables, the right mix of policy instruments, performance measures, reporting requirements and other elements could be identified to achieve long term outcomes. Governments would still need to remain accountable for setting the long-term outcomes in a transparent manner and for implementing risk management measures within their jurisdictions, including any regulatory backstops that may be required to ensure long-term outcomes are met.

The next part provides a short overview of CEPA 1999 and its relationship to other legislation as a context for understanding how it relates to the Ministers' goals.

CEPA 1999 is an integral component of a complex regime of inter-related laws, policies and institutions that ensure the effective and comprehensive management of risks to human health and the environment. This regime involves the federal, provincial, territorial, Aboriginal and local governments, the judiciary, industry, civil society (used in this paper to include environmental, labour, consumer and other public advocacy organizations, and the Canadian public), and other national jurisdictions and international organizations. This regime also reflects ongoing scientific research and risk assessment activities, government-imposed and voluntary performance standards, monitoring and inspection and enforcement activities, public education and compliance promotion initiatives.

Environmental protection is a shared responsibility between the federal and provincial governments. Most of the federal government's environmental authority focuses on issues of national concern, such as toxic substances, cross-border pollution, and protection of fisheries and marine areas. As Figure 1 illustrates, within the federal government, there are a number of laws administered by several departments and agencies which are focused on one or more of three major objectives: managing products; reducing and preventing pollution from emissions and effluents; and habitat protection, land use and natural resource management. They address, among other things, protecting the environment and human health, developing scientific information, preventing or reducing pollution and monitoring the environment and human health. There are also several federal laws that do not directly focus on environmental and health objectives, but also have significant influence on the environment and human health. In addition, the provinces, territories and municipalities play equally important roles in managing local impacts, licensing facilities, waste management, managing land use and natural resources and protecting occupational health and safety. In short, the protection of the environment and human health is the responsibility of all Canadians.

Figure 1: Major laws within the federal environmental management regime

Cohesive national environmental protection therefore necessitates federal-provincial- territorial cooperation as well as an amalgamation of views across the federal government. Increasingly, as Canada operates in a global economy and addresses more global environmental problems, coherence with other countries will also become more important. This is particularly the case with the United States as Canada increasingly operates in a North American context.

Recent advice to the Prime Minister made through the External Advisory Committee on Smart Regulations has observed that a key aspect of effective regulation is minimizing the need for industry to deal with different and sometimes competing regulations, and that federal-provincial-territorial cooperation is a particularly important aspect of this challenge. The committee recommended the development of overarching policy frameworks, the use of multi-stakeholder partnerships and wherever possible, the development of a "single window" for stakeholders and the public.

In the context of environmental protection, these objectives are both relevant and challenging, given the mosaic of federal, provincial, territorial and municipal laws, regulations, bylaws, policies and programs.

CEPA 1999 represents a significant evolution from the original CEPA. The 1988 CEPA was primarily a consolidation of the Environmental Contaminants Act and several, medium-specific federal statutes developed in the 1970s, including the Clean Air Act, the Ocean Dumping Control Act and Part III of the Canada Water Act. Several fundamental themes that promote environmental and human health protection are included in CEPA 1999 that were either not present or not accorded prominence in the 1988 CEPA. Principally, CEPA 1999:

• makes pollution prevention the foundation of national efforts to protect the environment;
• increases opportunities for citizen participation;
• allows for more effective cooperation and partnership with other governments, Aboriginal governments and peoples, and internationally;
• prescribes and enables multiple processes to assess the risks to the environment and human health posed by existing and new substances in commerce (includes a more comprehensive approach to dealing with the legacy of unassessed substances: Canada is presently the only country in the world to have a legislative requirement to "categorize" existing substances);
• imposes timeframes for managing toxic substances;
• provides a wide range of tools to manage toxic substances, other pollution and wastes;
• allows for the most harmful substances to be phased out, or not released into the environment in any measurable quantity;
• includes new provisions to regulate vehicle, engine and equipment emissions;
• enables the implementation of various international environmental and health agreements; and
• strengthens enforcement of the Act and its regulations, including the range of available enforcement tools.

CEPA 1999 also introduces various important principles and concepts, such as the precautionary principle and the ecosystem approach. In addition to directly influencing decisions made under CEPA 1999, the inclusion of these principles in the Act also plays an important symbolic role by signaling their importance to all Canadians. In this regard CEPA 1999 has had an important influence on other pieces of environmental legislation in Canada.

In order to strengthen environmental management and achieve the goal of a competitive economy anchored by a sustainable environment as recently articulated by the Minister of Environment, environmental protection policies and legislation - including, CEPA 1999 - should reflect the following key attributes:

• effective decision-making processes, including a clear national agenda supported by federal-provincial-territorial cooperation and well functioning partnerships;
• timely access to information about the state of the environment and human health, and effective mechanisms to transfer that knowledge to all interested parties;
• sound science and technology research and development provided from all sectors of society in order to support informed decision making and stimulate innovation;
• performance promotion through effective rules, incentives, compliance promotion and enforcement, all premised on a "smart regulation" approach; and,
• ongoing education and engagement of all Canadians.

Sections 3 to 7 of this paper assess various aspects of CEPA 1999 to determine the type and extent of the role that the Act should play with respect to supporting these key attributes. Because of this thematic structure, this paper does not provide a comprehensive overview of CEPA 1999. In addition, some cross-cutting issues (such as risk assessment, for example) may be addressed under more than one theme. Readers who are not familiar with CEPA 1999 should consider reading the "plain language" Guide to CEPA 1999.

Each of the sections below provide some background on"What CEPA 1999 Does", followed by a brief discussion on "Should CEPA 1999 be used differently? Should the Act be Changed?". Where appropriate, these discussions are followed by a text box with a question(s) for the reader to take into consideration when providing their feedback.