Issues and possible approaches, Canadian Environmental Protection Act: discussion paper, chapter 11


11. Facilitating intergovernmental cooperation

In Canada, protection of the environment is a shared responsibility among governments. This makes close cooperation among the federal, provincial, territorial and Indigenous governments important to Canada’s environmental well-being. Intergovernmental cooperation is one of the Canadian Environmental Protection Act (CEPA)’s guiding principles, and the Act includes provisions to help ensure that federal actions are complementary to, and avoid duplication with, other governments.

11.1 Facilitate the use of equivalency agreements

Issue

The equivalency regime, set out in section 10 of the Act, gives the Governor in Council the authority to “stand down” a CEPA regulation - i.e., to declare that the regulation does not apply - in a province, a territory or an area under the jurisdiction of an Indigenous government that has provisions in force that are equivalent to those of the CEPA regulation. This tool reduces federal-provincial overlap, and recognizes that other governments may be better placed to manage particular environmental issues in their jurisdictions.

It could be helpful to clarify that the test of “equivalent provisions” can be met by provisions that have similar environmental effect. Recent experience with equivalency agreements has also raised questions about the utility of requiring an agreement before the issuance of an order.

Possible Approach to Address the Issue

CEPA could be amended to:

  • Mirror the language in the Fisheries Act by replacing the term “equivalent provisions” with “equivalent in effect”.
  • Remove the precondition of a written agreement between the federal government and the other jurisdiction, before the Governor in Council can stand down the federal regulation.

11.2 Expand list of parties that can formally enter into administrative agreements

Issue

Administrative agreements are work-sharing arrangements that can cover any matter related to the administration of the Act. Such matters can include inspections, investigations, information gathering, monitoring and reporting of collected data. These agreements do not release the federal government from any of its responsibilities under the law, nor do they delegate legislative power from one government to another.

Section 9 of CEPA explicitly authorizes the Minister to enter into an administrative agreement with a government or an aboriginal people. It does not list other entities. For example, offshore oil and gas is regulated by the National Energy Board and by two federal-provincial offshore petroleum boards in Newfoundland and Labrador and Nova Scotia through the Accord Acts. The boards are the primary regulators of these activities and, in certain circumstances, might be in the best position to administer a federal regulation that relates to them.

Possible Approach to Address the Issue

CEPA could be amended to expand the list of parties with whom the Minister may formally enter into administrative agreements under section 9. Parties added to the list could include bodies or entities responsible for the administration of another Act of Parliament or an Act of the Legislature of a province.

11.3 Expressly allow the expiry date of administrative agreements to be negotiated

Issue

CEPA requires that administrative agreements expire after five years. In some cases, this may impose an unnecessary obligation to negotiate a new agreement when a current arrangement is satisfactory.

Possible Approach to Address the Issue

CEPA could be amended to replace the automatic five-year termination date for administrative agreements with an authority that allows the parties to negotiate a longer agreement. The current ability for either party to terminate an agreement with reasonable notice could be retained to ensure that ineffective agreements can be dissolved.

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