Issues and possible approaches, Canadian Environmental Protection Act: discussion paper, chapter 12


12.1 Lower the precondition for public to initiate Environmental Protection Actions

Issue

Under Part 2 of the Canadian Environmental Protection Act (CEPA), members of the public can initiate a suit, known as Environmental Protection Actions, against someone whom they suspect has committed an offence under the Act. There are strict tests for using Environmental Protection Actions set out in section 22 of the Act, one of which being that the alleged offence must have caused significant harm to the environment. The Senate Committee, during the last review of CEPA, recommended that that the Act be amended by removing the need for a citizen to show that an action has caused significant harm to the environment before being able to proceed with an environmental protection action.

Possible Approach to Address the Issue

CEPA could be amended to lower the threshold for bringing an environmental protection action from an allegation that the offence caused “significant harm” to simply that it caused “harm” to the environment.

12.2 Improve board of review provisions

Issue

Only one Board of Review has been set up under the Act: the Board of Review for Decamethylcyclopentasiloxane (Siloxane D5). In implementing a Board of Review for the first time under CEPA, the Departments identified some possible improvements to the related provisions.

The Act states that when a Board of Review is established, the time period by which a final preventive or control regulation or instrument must be published is paused until the board has submitted its report to the Minister (subsection 92(2)). However, this period continues to run from the time the Minister makes a decision to constitute a Board of Review until the time that the Board is actually established, which ultimately reduces the Ministers’ time to develop and propose a risk management instrument. In addition, there is currently no requirement for the Minister or Ministers to indicate their intention to proceed with a Board of Review following a notice of objection.

Possible Approach to Address the Issue

CEPA could be amended to ensure the Board of Review provisions function efficiently and result in the best possible risk management decisions. Amendments could include such things as:

  • Requiring the Minister or Ministers to publish a notice indicating the intention to establish a Board of Review and
  • Allowing the 18-month period in subsection 92(1) to be suspended by this notice, rather than the establishment of the Board.

12.3 Consider whether certain laws of general application should apply to CEPA

Issue

Some laws of general application, such as the provisions of the User Fees Act, impose onerous requirements that may not be appropriate for some environmental regulations. For instance, the User Fees Act imposes process requirements that largely duplicate requirements relating to notice and consultation that are part of the regulatory impact analysis process (per the Cabinet Directive on Regulatory Management) as well as requirements, under CEPA, for consultation on regulations respecting fees and charges. In addition, federal funding rules can limit the spending of funds in a fiscal year other than the one in which they were collected. This can impact the ability to conduct activities needed to properly administer regimes and ensure environmental protection - such as the monitoring performed related to disposal at sea activities.

Possible Approach to Address the Issue

Consider amendments to CEPA to exempt certain regulations made under it from the application of the User Fees Act. In addition, consideration could be given to a mechanism that would provide flexibility for funding activities such as monitoring, etc.

12.4 Provide for a more appropriate frequency of Parliamentary Reviews

Issue

Subsection 343(1) requires Parliamentary review of the Act every 5 years. However, both the Parliamentary review process and the development and finalization of legislation take a long time. A 5 year review period is not long enough to allow amendments based on a prior review to be enacted and assessed. A 10 year window would reflect more realistic review and legislative timelines.

Possible Approach to Address the Issue

CEPA could be amended to require a Parliamentary review every 10 years, rather than every 5 years.

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