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The Environmental Registry, Implementation Issues and Lessons By: David McRobert, In-House Counsel Environmental Commissioner of Ontario Paper for presentation to “Working with Bill C-32: the
New CEPA”
Table of Contents 1.0 INTRODUCTION 2.0 LEGISLATIVE HISTORY 2.1 CEPA History 2.2 EBR History 3.0 THE ENVIRONMENTAL REGISTRY 3.1 The Registry Concept 3.2 The CEPA Registry 3.3. The EBR Registry 3.4 Documents and Information Available on the CEPA Registry 3.5 The Role of Environment Canada 3.6 The CEPA Registry as a Tool for Public Consultation 3.7 Other Issues Related to the CEPA Registry 3.8 Summary and Conclusions 4.0 THE RIGHT TO AN INVESTIGATION 4.1 The Right to an Investigation under CEPA, 1999 4.2 The Right to an Investigation under CEPA, 1998 4.3 The Right to an Investigation under the EBR 4.4 Issues Related to the Right to an Investigation 4.5 Summary and Conclusions 5.0 ENVIRONMENTAL PROTECTION ACTIONS (EPAs) UNDER CEPA, 1999 5.1 Background 5.2 EPA Requirements under CEPA, 1999 5.3 Remedies 5.4 Other Civil Matters 5.5 Summary & Conclusions 6.0 CONCLUSIONS APPENDIX A: EBR Implementation Schedule APPENDIX B: CEPA Registry Homepage APPENDIX C: Description of Information Available on the CEPA Registry APPENDIX D: Types of Information Available under Notices APPENDIX E: Summaries of Selected Investigation Applications APPENDIX F: Summaries of Public Resource Lawsuits under the EBR
1.0 INTRODUCTION Public participation in government decision-making is a common operating principle in democracies such as Canada. Over time, and as a result of an increasing public awareness and interest in important societal decisions, the nature of that participation has evolved. As we enter the 21st century, the notion of a government making a decision without consulting the public and affected stakeholders has become the exception rather than the rule. The Canadian public has, over the years, expressed an increasing interest in environmental issues and the desire to be involved in making decisions related to the environment. Public participation rights conferred under legislation and the public's understanding of those rights will enable more effective and active participation by members of the public. Enhancing public participation allows all societal groups, Aboriginal Peoples and their communities, non‑governmental organizations, local authorities, workers and trade unions, business and industry, the scientific and technological community and farmers, better opportunities to participate more fully in decision‑making on environmental matters. The expansion of public participation rights is not a new phenomenon and in fact, was catalysed in the 1960s and 1970s. This is true in all areas of public policy and most importantly, in environmental policy. Some key principles of public rights in this area include: · the right to a healthy environment; · improved access to the courts to prosecute and to sue where one's right to a healthy environment has been infringed; · increased public participation in government decision‑making; · improved monitoring and reporting to the public on the state of the environment; · increased government responsibility and accountability for the environment; and · greater protection for those who "blow the whistle" on polluting employers. The Michigan Environmental Protection Act is often cited as the single most important law that opened the door to increasing public rights to protect the environment by embodying them in legislation. In Canada, the federal government and many of the provinces and territories have embraced the expansion of public rights in their environmental laws. In 1988, Parliament included public participation rights in the Canadian Environmental Protection Act (“CEPA, 1988”). These rights were further enhanced in 1999 when CEPA, 1988 was replaced with a new Canadian Environmental Protection Act (“CEPA, 1999”). In 1994, the province of Ontario which has arguably gone the furthest in legislating public participation rights, enacted the Ontario Environmental Bill of Rights (“EBR”). At the international level, Canada has signed several international agreements which contain provisions that require signatories to support public participation. Most important among these agreements are those that were signed at the United Nations Conference on Environment and Development, which took place in Rio de Janeiro in 1992.[1] This paper discusses three examples of the public participation tools contained in CEPA, 1999: the Environmental Registry; the Right to an Investigation; and the Environmental Protection Action. These topics represent evolving concepts in the field of environmental law and public policy that were developed to enhance the public’s role in environmental decision-making. [could give example of each tool and how it accomplishes the goal of public participation - mention availability to all Canadians] Throughout the paper, comparisons are made between CEPA, 1999 and the EBR where relevant. First however, the legislative history of CEPA, 1999 and the EBR are discussed. 2.0 LEGISLATIVE HISTORY This chapter provides a brief description of the legislative histories which preceded the enactment of the EBR in 1994 and CEPA, 1999 in 1999. 2.1 CEPA History The New CEPA The Canadian Environmental Protection Act, 1999 ( “CEPA 1999” ), was introduced in the House of Commons as Bill C-32 on March 12, 1998. It received second reading on April 28, 1998 and was studied for approximately one year by the House of Commons Standing Committee on Environment and Sustainable Development (“Standing Committee”). After 250 amendments were made to Bill C-32 in committee and at the report stage, it received third reading in the House of Commons on June 1, 1999. After receiving third reading in the House of Commons the bill was referred to the Senate, which gave it second reading on June 8, 1999. It was then referred for study to the Standing Senate Committee on Energy, the Environment and Natural Resources. Bill C-32 was passed by the Senate in September 1999 and received Royal Assent on September 14, 1999. Although all of the provisions contained in CEPA, 1999 are not yet in force, the majority of Bill C-32, including the provisions related to the CEPA Registry, were brought into force by the federal government on March 31, 2000. CEPA, 1999 is a complex piece of legislation. It provides a framework for the management and control of toxic substances at each stage of their life cycle, from development and manufacturer/importation through to transportation, distribution, use, storage and ultimate disposal as waste. CEPA also provides the federal government with authority to enter into intergovernmental environmental agreements; establish environmental quality objectives, guidelines and codes of practice; regulate the content of fuels; regulate the nutrient concentration in cleaning agents and water conditioners; control ocean dumping through a permit system; regulate waste handling and disposal practices; improve, by means of guidelines and regulations, its own environmental performance and standards in relation to its operations and lands, including Indian reserves; and take action in cases of international air pollution. CEPA, 1999 is administered by Environment Canada ( “EC” ). However, both EC and Health Canada are involved in the assessment of substances to determine whether they are toxic, and in the development of regulations, objectives, guidelines and codes of practice. The Original CEPA Bill C‑32 replaces the former Canadian Environmental Protection Act ( “CEPA, 1988" ). CEPA, 1988 was, and in its newly amended form remains, Canada’s principal piece of federal environmental protection legislation. It was developed in the mid‑1980s in response to growing public concern about the presence of toxic substances in the environment. Incidents during this time such as the chemical contamination surrounding the Love Canal disposal site near Niagara Falls, New York and the "toxic blob" found in the St. Clair River near Windsor, Ontario raised public awareness and concern to new levels. When CEPA, 1988 was enacted it consolidated selected provisions and laws administered by EC. It replaced the Environmental Contaminants Act, and subsumed the Clean Air Act, the Ocean Dumping Act, the nutrient provisions of the Canada Water Act and certain provisions of the Department of the Environment Act. The process to enact CEPA, 1988 began in 1985 with the establishment of two task forces to review the Environmental Contaminants Act, and to develop a better approach for dealing with toxic substances. Acting on the task forces’ recommendations, the federal government issued preliminary draft environmental legislation in 1986. Following a round of public consultation, the government tabled Bill C‑74, the Canadian Environmental Protection Act, in June 1987. After extensive amendments were made to Bill C-74 in committee, it was passed the following year, and proclaimed in force on June 30, 1988. CEPA, 1988 5-Year Review When CEPA, 1988 came into force in 1988, the then-Minister of the Environment, Tom McMillan, stated that CEPA, 1988 contained extensive environmental rights. He suggested that CEPA, 1988 should be considered at the fore of environmental legislation in Canada because of enhanced environmental rights included in it, such as: · requirements that lists of toxic substances, drafts of regulations and other types of documents be published so that the public may comment on them; · opportunities for individuals to file objections to regulations, guidelines, ocean disposal permits, lists of toxic substances, failure to assess substances on the Priority Substances List within the required five‑year period, and so forth; · opportunities to request that a board of review be established, and in certain cases, to compel that one be created; · public access to information through published notices and documents; · the right for a member of the public to obtain an injunction to prevent or stop a violation of CEPA, 1988; · the right to sue another person, who commits a CEPA, 1988 offence, for compensation; · the right of two individuals resident in Canada and over the age of 18 to request an investigation of a suspected violation of CEPA, 1988; · protection of the identity of "whistle-blowers" who report the unauthorized releases of substances regulated by CEPA, 1988; and · the right to initiate a private prosecution of a suspected CEPA, 1988 violator, as a common law right, available under CEPA, 1988 and any other federal regulatory statute. Six years later in 1994, the Standing Committee was given the task of conducting the five‑year review of CEPA, 1988 as required under section 139 of CEPA, 1988. After extensive hearings, the Standing Committee released its report entitled, It’s About Our Health! Towards Pollution Prevention in June 1995. In its report, the Standing Committee recognized the following limitations of CEPA, 1988: · vagueness regarding the type of information that can be released publicly and procedures and access points for acquiring information; · limited opportunities for effectively participating in decision‑making on proposed initiatives undertaken pursuant to CEPA, 1988; · the limited nature of information that is made available to the public through the recently‑established inventory on sources of pollutants, the National Pollutant Release Inventory; · the limited instances in which decisions can be reviewed; · the narrow terms under which "whistle-blower" protection is provided; · the limited public awareness about the right that citizens have under CEPA, 1988 to request an investigation of an alleged offence; · restrictions governing the rights of citizens to sue for loss or damage suffered in relation to CEPA, 1988; · the lack of a specific provisions allowing citizens to prosecute offenders of CEPA, 1988 although this is already a common law right under CEPA and any other federal act; · no mention of how funds that are collected from such things as penalties, fines, fees and levies imposed under CEPA, 1988 are to be used; · the lack of a requirement, enshrined in CEPA, 1988 to provide funds to the public for the purpose of participating in decision‑making; and · the fact that Canada does not have comprehensive federal legislation regarding environmental rights of Canadians and Canadian workers. The Standing Committee also recommended a new approach for CEPA, 1988 which would have sustainable development as its overarching policy goal and which would be supported by the following key principles: 1. pollution prevention, 2. the ecosystem approach, 3. biodiversity, 4. the precautionary principle, and 5. user / producer responsibility. Stressing that the emphasis in CEPA, 1988 had to shift from managing pollution after it has been created to preventing its creation in the first place, the Standing Committee made 141 recommendations for change, including introduction of a ban on all new substances that are persistent, bioaccumulative and inherently toxic, unless the proponent can demonstrate extraordinary reasons to authorize its use for specified purposes. The Standing Committee also recommended the adoption of a three‑track approach for assessing and managing toxic substances(2) and proposed new authority for CEPA in areas such as vehicle emissions and international water pollution. It recommended the creation in CEPA of a federal safety net for environmental emergencies, and the development of a national coastal management zone policy. The Standing Committee also advocated a more active role for Aboriginal peoples in environmental management and protection, notably under self‑government and land claim settlement agreements. The Standing Committee further recommended increased authority under CEPA, 1988 in order to make the federal government a model environmental citizen, and adoption of a number of new enforcement tools and measures to enhance public participation. The federal government responded to the Standing Committee’s report on December 14, 1995 in a document entitled Environmental Protection Legislation Designed for the Future ‑ A Renewed CEPA. Although it indicated support for a number of the Standing Committee’s recommendations, the government did not endorse some of its key proposals regarding the assessment and management of toxic substances. Instead, the federal government stated that it would implement a different three‑track system that would categorize and screen existing substances to identify priorities for assessment or for preventive or control action. The proposed new CEPA, 1999 set out in Bill C‑32, was developed from the federal government’s response to the Standing Committee’s report. Bill C‑32 was the second bill introduced to modify CEPA, 1988. The first bill, Bill C‑74, was tabled in Parliament on December 10, 1996, but died on the order paper when the general federal election was called in October 1997. In a news release issued on the day that Bill C‑32 was tabled, the Minister of the Environment indicated that CEPA, 1999 would:
The Minister of the Environment noted that CEPA, 1999 would be consistent with the Canada‑Wide Accord on Environmental Harmonization signed by the federal, provincial (except Quebec) and territorial governments on January 29, 1998 and that it would be an important legislative tool for the federal government in implementing the harmonization framework in cooperation with the provinces and territories. As well, she stated that CEPA, 1999 would be a key tool in delivering the highest level of environmental quality for all Canadians. The major differences between Bill C‑74 and Bill C‑32, the Minister indicated, were increased recognition of voluntary efforts by industry, the need for co‑operative action, and the importance of improved consultation with the provinces and territories, as well as strengthened provisions on information gathering and publication. 2.2 EBR History In February 1994, the Ontario government proclaimed into law the Environmental Bill of Rights, 1993 ( “EBR” ). The proclamation of the EBR was intended to indicate a new era in environmental decision making, with better public participation and greater accountability of government decision-makers. The purpose of the EBR is to make government law-, instrument- and policy-making more transparent and accessible to the public. It does this through a number of means, including: · establishing an Environmental Registry, and allowing members of the public to comment on environmentally significant new laws, regulations, instruments and policies; · allowing third party appeals of decisions about prescribed instruments (instruments include things such as permits, approvals, licences, authorizations, directions or orders, that are prescribed by regulations made under the EBR); · allowing the public to make Applications for Review of environmentally significant laws, policies and instruments; · allowing the public to make Applications for Investigation of contraventions of prescribed Acts, regulations and instruments; · establishing a new right to sue if someone is breaking a prescribed law, or is not following the terms of a prescribed instrument and is thus causing significant harm to a public resource; and · creating whistle blowing protection for employees who use the processes of the EBR. Thirteen Ontario government ministries are currently subject to the provisions of the EBR. In addition, the Ministry of Tourism is in the process of becoming prescribed for the purposes of the EBR. The EBR was phased into effect over five years between 1994 and 1999, such that each ministry became subject to the EBR at different times and in different respects. A flowchart outlining the EBR Implementation Schedule is provided in Appendix A. Ontario’s EBR was a long time in the making. The need for an environmental bill of rights was first expressed in Ontario in the 1970s when environmental issues became a greater part of the public consciousness.[2] Between 1979 and the late 1980s, nine private members’ bills were introduced in the Ontario Legislature based on the Michigan Environmental Protection Act,[3] enacted in 1970. The prospects of seeing such a bill become law increased when Ruth Grier was appointed Minister of the Environment after the election of the New Democratic Party in 1990. Rather than proceed with tabling a new law in the Legislature based on the Michigan model, Ms. Grier announced the establishment of an Advisory Committee on an Environmental Bill of Rights which was multi-sectoral, and included representation from business interests, environmental groups, labour and other stakeholders.[4] Because the advisory committee was unable to achieve any degree of agreement, Grier appointed an EBR Task Force to develop an innovative statute on a consensus basis. The Task Force had representatives from the Ontario Chamber of Commerce, the Business Council on National Issues and the Canadian Manufacturers’ Association, two environmental groups and the Ontario government. The Task Force worked for more than one year and released a report in July 1992 which contained a draft EBR.[5] After public consultation on the Task Force Report and draft bill, the EBR was introduced for first reading May 31, 1993, and was proclaimed as a law on February 15, 1994. The main difference between the Ontario law and the environmental rights laws in US juridictions is that it is more difficult to go to court in Ontario. However, the Ontario law has increased rights to participate in government decisions as a quid pro quo. As a result, Ontario’s environmental regulation system now has some
features characteristic of US federal laws and participation processes
which allow for public notice and comment and increased access to courts
and tribunals.[6]
Although Ontario is not the only Canadian jurisdiction to enact environmental
rights legislation, it has gone farther than other Canadian jurisdictions.[7] For example, prior to the enactment
of the EBR, Ontario residents usually were not provided with
an opportunity to comment on proposals for new factories or additions
to facilities that would result in discharges to the environment.
In comparison, environmental participation and litigation rights in
most European jurisdictions generally are viewed as meagre.[8] Thus, Ontario’s new
legislation, which combines increased access to the courts and improved
public participation rights, is viewed by some European lawyers as a
model which might be worth adapting in other jurisdictions. For example,
the proceedings of a 1994 conference on environmental rights held in
Germany contain two papers which discuss Ontario’s EBR.[9] In addition, international organizations
interested in promoting environmental protection through law reform,
such as the European-based Environmental Law Network International,
are following developments in Ontario with great interest.[10]
2.3 Summary and Conclusion
3.0 THE ENVIRONMENTAL REGISTRY
Both CEPA, 1999 and the EBR
establish environmental registries. The registries are publicly accessible
via the internet and function as a bulletin board, providing information
to the public and allowing the public to submit responses. In this chapter,
we discuss the types of information available on the CEPA Registry and
the extent to which the CEPA Registry may serve as a tool for public
input regarding environmental decision-making. Additionally, a number
of other issues related to the implementation and maintenance of the
CEPA Registry are discussed. Comparisons with the EBR Registry are made
when relevant.
3.1 The Registry Concept
The Registry concept was first developed as part of the federal Emergency
Planning and Community Right-to-Know Act of 1986 in the United States.[11]
This legislation requires certain chemical manufacturing facilities
to record and report releases of approximately 357 toxic chemicals to
the US Environmental Protection Agency. Government agencies enter this
information into the Toxics Release Inventory (“TRI”), a national on-line
database that is accessible to the public by computer. Reporting requirement
were later expanded by the Pollution Prevention Act[12] in 1990.[13]
Many individuals and groups use the data and information from the TRI
to help them map out patterns of environmental emissions from US factories.
The Environmental Defense Fund (“EDF”) Chemical Scorecard, developed
by the EDF is one of the most interesting applications of this technology.[14] It can be viewed on the Internet
at www.scorecard.org
Since the early 1990's, a number of jurisdictions have implemented
environmental registries or examined proposals for them. For example,
the British Columbia Government has implemented registries under the
Waste Management Act and the Environmental Assessment Act.
The Canadian Environmental Assessment Act also establishes
a Registry, which has been operational since 1995.
3.2 The CEPA Registry
Part II of CEPA,1999 establishes the
Environmental Registry. In particular, section 12 provides:
12. The Minister shall establish a registry,
to be called the Environmental Registry, for the purpose of facilitating
access to documents relating to matters under this Act.
The CEPA Registry is publicly accessible via the internet through Environment
Canada's Geeen Lane Web site at www.ec.gc.ca/ceparegistry
The site became operational in March 2000. There is currently no charge
for viewing or downloading material on the CEPA Registry.
3.3 The EBR Registry
Section 5 of the EBR creates the EBR Registry. The EBR Registry
is also publicly accessible via the internet at www.eco.on.ca
The Registry became operational in May 1994. There is currently no charge
for viewing or downloading material on the EBR Registry.
3.4 Documents and Information Available
on the CEPA Registry
Like the EBR Registry, the CEPA Registry is part of the growing trend
toward public and community right to know laws and initiatives that
started in the United States in the 1970s. A key goal of the CEPA Registry
is to promote access to information about decision-making. While access
to information was also a goal of the EBR Registry, transparency and
improved public participation also were key goals in the establishment
of the EBR Registry.
Section 13 (2) of CEPA, 1999 states that the Minister may determine
the form of the Environmental Registry, how it is to be kept and how
access to it shall be provided. Similarly, section 13 of Ontario
Regulation 73 / 94 provides that the Minister of the Environment
shall operate the EBR Registry. Moreover, under the regulation-making
powers contained in section 121 of the EBR, the Minister, under
the authority of the Lieutenant Governor in Council, may determine how
the Registry is to be operated and used.
Section 13 (1) of CEPA, 1999 describes
what types information will be available on the Registry:
13. (1) The Environmental Registry shall contain notices and
other documents published or made publicly available by the Minister,
and shall also include, subject to the Access to Information Act
and the Privacy Act,
(34)
notices of objection
and of any approval granted under this Act;
(35)
a copy of every
policy and of every proposed regulation or order made under this Act;
and
(36)
copies of documents
submitted to a court by the Minister relating to any environmental protection
action.
In short, the CEPA Registry shall contain,
subject to privacy laws contained in s. 313 of CEPA:
1.EC Documents: EC notices and other EC documents published or normally
made available to the public or the media;
2.Objections: Notices of objection filed under CEPA, 1999;
3.Approvals: Notices of any approvals granted under CEPA, 1999;
4.Policies: Copies of every policy made under CEPA, 1999;
5.Regulations: Copies of every proposed regulation made under CEPA,
1999;
6.Orders: Copies of every proposed order made
under CEPA, 1999; and
7.Court Documents: Copies of documents submitted by the Minister to a
court in relation to an environmental protection action.
The actual categories of information available
on the CEPA Registry is very similar to the above list and is reproduced
in Appendix C. As well, a description of each type of notice or document
to contained in the CEPA Registry is provided in Appendix D.
A significant portion of the information that will be published on
the CEPA Registry is already available at EC’s Green Lane web-site and
at other web sites. The advantage of the CEPA Registry is that it will
provide “one place to look” for information about CEPA, 1999 implementation.
The CEPA Registry also has extensive hypertext links to Internet documents
that are related to CEPA, 1999 but not published on the CEPA
Registry. However, links to outside sites and commercial organizations
will not be permitted.[15]
EC staff have expressed that the CEPA Registry is not intended to be
a promotional tool. Accordingly, EC staff are urged to ensure that the
information presented on the CEPA Registry is factual and objective.[16] Therefore, descriptions
of success stories and promotional materials related to activities by
EC, Health Canada and other federal departments will not be included
on the CEPA Registry. Early experience with the EBR Registry was that
ministry staff sometimes tended to “spin” information in registry postings
to support the policies and programs of specific ministers (e.g. postings
on Bill 76, the EAA reforms). Implementing this policy may pose significant
challenges for EC staff.
The CEPA Registry web site will be maintained
and operated by a CEPA Registry Office.
Other Documents Posted on the CEPA Registry
Various sections of CEPA, 1999 require
the Minister to publish in the Gazette and / or in any other
manner, or to give notice of, certain information related to CEPA,
1999. It appears that the CEPA Registry will maintain at least some
of this information under “Notices” in its main menu. The CEPA Registry
lists a number of types of information which will be produced under
“Notices”. This list is reproduced in Appendix 3.
In addition to the items listed in the CEPA
Registry under “Notices,” it is submitted that the language of section
13 (1) is broad enough to permit the inclusion of the following information
and documents on the CEPA Registry:
·
forms for Applications
for Investigations
·
orders respecting
tradeable emissions credits (s. 327)
·
amendments
to Pollution Prevention Plans (The plans themselves will not be posted
on the CEPA Registry but maintained on site by the proponent.)
·
proposals for
Virtual Elimination Lists under Part 5
·
research on
endocrine disruptors (ss. 44(4))
·
guidelines
and codes related to environmental emergencies under part 8
·
information
about government operations and the environmental effects of activities
on federal and aboriginal lands
Publication of the above items on the CEPA
Registry will serve to discharge some of the federal government’s duties
enumerated in section 2 of CEPA, 1999, such as:
·
encouraging the participation of Canadians in making decisions
that effect the environment;
·
facilitating
the protection of the environment by Canadians; and
·
providing information
to Canadians on the state of the environment.
3.5 The Role of Environment Canada Staff
in Determining the Content of the Registry
The language of section 13 (1) is very broad. It is being interpreted
by EC staff to include every official document issued by EC relating
to matters under CEPA, 1999.[17]
In fact, EC staff are being asked to avoid seeking ways to exclude from
the CEPA Registry any public or published documents. Moreover, staff
are being asked to consider posting research documents on the CEPA Registry
even if they do not include specific mention of CEPA, 1999 but
the text of the document deals with matters covered by CEPA, 1999.
3.6 The CEPA Registry as a Tool for Public
Consultation
Unlike the EBR Registry, the CEPA Registry is not intended as a public
consultation tool. In other words, EC staff will continue to conduct
public consultations in the manner they have for the past five years.
However, there are some minor exceptions to this general rule.
The CEPA Registry may function as a medium
for public consultation in relation to agreements between jurisdictions
under sections 9 and 10. Under CEPA, 1999 the Minister must explain
how public comments were taken into account when it finalizes such agreements.
In addition, various regulations and orders issued under certain parts
of CEPA, 1999 are open to public comment or objection under section
332. Again, the Minister must explain how public comments were taken
into account when it finalizes the regulations and orders. The Minister’s
explanations may be reproduced on the CEPA Registry in accordance with
sections 9, 10, and 332.
The intent to limit the use of the CEPA Registry as a public consultation
tool may reflect the criticism of stakeholders that the EBR Registry
system has become the sole means of public consultation for most regulations
and policies.
3.7 Other Issues Related to the CEPA Registry
Outlined below are other issues concerning
the CEPA Registry. Comparisons are made with the EBR Registry where
appropriate.
I. CEPA Registry to Complement Canada Gazette
Many of the CEPA, 1999 documents that are required to be published
in Parts 1 and 2 of the Canada Gazette are also reproduced in
the CEPA Registry. For example, section 13 of CEPA, 1999 requires
production of proposed regulations and orders on the CEPA Registry.[18] At present, both current and proposed
versions of regulations and orders made under CEPA, 1999 are
found on the CEPA Registry.[19]
In addition, public notice of various forms of information are available
on the CEPA registry as required by section 13 of CEPA, 1999.
Part 1 of the Gazette contains proposed orders and regulations
as required by section 332 of CEPA, 1999. These proposals are
generally subject to a 60-day comment period. The documents published
in Part 2 of the Gazette are the final form of regulations and
other documents.
Section 332(3) of CEPA, 1999 states that no order, regulation
or instrument needs to be published more than once in the Canada
Gazette, whether or not it is altered after publication. This provision
reflects a long-standing debate between the Department of Justice and
EC. Some Department of Justice lawyers have argued that regulatory proposals
that are changed significantly must be republished in Part 1 of the
Gazette. However, it is possible that EC may republish a proposal
on the CEPA Registry for an additional comment period because the language
on notice and comment in many sections is permissive.
II. Confidentiality
A further general consideration with respect to the CEPA Registry is
the confidentiality of information submitted to the Minister or a Board
of Review. In contrast to the EBR Registry, information is not automatically
treated as confidential and could therefore potentially be posted on
the CEPA Registry. Under the EBR, the names, addresses and any
other personal information pertaining to an applicant for review or
investigation are confidential and cannot be disclosed pursuant to sections
72 and 81. [what about appeals]
However, a person who provides information
to the Minister under CEPA, 1999, or to a Board of Review
in respect of a notice of objection filed under CEPA, 1999,
may request that the information be treated as confidential pursuant
to section 313 (1). The Minister is not permitted to disclose any information
in respect of which a request for confidentiality has been made under
section 313, except in accordance with sections 315, 316 or 317. These
sections incorporate provisions of the Access to Information Act, RSC 1985 c. A-1 and the Privacy Act,
RSC 1985 c. P-21 and
provide for a type of public interest override of a confidentiality
request.
As well, the CEPA Registry contains a general
disclaimer regarding confidentiality which states:
The User understands that any information or feedback submitted by
e-mail or otherwise to Environment Canada for this Environmental Registry
will not be considered as confidential information and it is further
understood by the User that Environment Canada may use this information
as it deems appropriate on an unrestricted basis.
This is a very strong statement that any submitted material may be
disclosed to the public, including the names and addresses of the persons
who submitted the material.[20]
In contrast, the EBR Registry provides only a brief summary of the
nature of a proposed decision. Those residents that wish to make detailed
comments may request more detailed information in order to understand
the nature of the proposal and its impacts upon the environment. Residents
may obtain further information from the contact person listed in the
registry notice.
However, in some cases, residents may be denied access to key supporting
documentation where the proponent requests that the information be kept
confidential under the Freedom of Information and Protection of Privacy
Act (FIPPA) because the information was supplied in confidence
and its release would harm the proponent’s commercial interests.
Nevertheless, these factors must be balanced against the public’s interest
in obtaining the information necessary to understand the environmental
implications of the proposal. The Information and Privacy Commissioner/Ontario
was asked to rule on a case where the proponent had asked that supporting
documentation be kept confidential. An adjudicator ruled that the public
interest in disclosure for the purposes of enhancing environmental protection
and public health and safety clearly outweighed the proponent’s interests
in that case. [sounds like CEPA]
The process of filing an application under FIPPA to obtain supporting
documentation generally takes longer than the EBR 30-day comment
period, forming an obstacle to residents exercising their EBR
rights. The IPC adjudicator noted this potential problem and advised
that ministries “should not as a matter of general policy direct members
of the public seeking information for the purpose of an EBR consultation
to FIPPA, but should address the issue using its own expertise
and statutory powers.” The ECO agrees with this position. The ministries
must only demand that residents file an application under FIPPA
to obtain information where there a clear basis for doing so. Otherwise,
the effectiveness of the Registry is diminished because residents cannot
access the necessary information to make meaningful comments on proposed
decisions.
One implementation issue that is certain to arise relates to unposted
documents and decisions. Under the EBR, there are occurrences
where certain notices required to be published on the EBR Registry are
in fact not posted. In 1998, for example, there were 30 unposted decisions.
The same situation is likely to occur in relation tho the CEPA Registry.
The reasons will probably include the following: the staff’s failure
to remember to post the document; the staff’s belief that the document
was not required to be posted; or the staff’s belief that the document
was not included under section 13 of CEPA, 1999. Similar reasons
are offered for failures to post notices on the EBR Registry.
In order to address this problem under the EBR, the Environmental
Commissioner’s Office (“ECO”) monitors unposted documents. When it comes
to the ECO’s attention that environmentally significant ministry proposals
and decisions have not been posted on the Environmental Registry, the
ECO reviews them to determine whether the public’s participation rights
under the EBR have been respected. In its Annual Report the
ECO reports to the Legislature when unposted decisions have been improperly
excepted from Registry posting. The nature of these decisions, the rationale
provided by each ministry for not posting them on the Registry, and
a brief ECO commentary is provided in the annual reports.
To identify unposted decisions the ECO monitors the Ontario Gazette,
the media and other sources. In addition, sometimes stakeholders contact
the ECO and provide information related to unposted decisions. Although
the ECO identifies approximately 60 to 70% of the unposted policy decisions
that should have been posted on the Registry it remains a very difficult
task because there is no way of knowing precisely what unposted instruments
are being issued by the ministry.
Monitoring unposted decisions is likely to
be problem for the CEPA Registry users since there does not appear to
be a comparable monitoring agency in place under CEPA, 1999.
IV. Threshold on Environmental Significance not Contained in
CEPA
The key threshold for government officials in determining whether a
proposal is subject to the EBR and therefore must be placed on
the EBR Registry for public comment is whether it is environmentally
significant.[21] Section 14 of the
EBR sets out three factors that a minister must consider, but
also allows a minister to consider any other matter that the minister
considers relevant. The ministries have developed guidelines for analysing
whether a policy, act or regulation is environmentally significant.
The ECO reviews how this discretion is exercised.
There is no similar threshold in CEPA,
1999.
Under the EBR, a significant portion of instruments, but not
all, are posted for notice and comment. It is estimated that only about
6-10% of the instruments issued by the Ministry of the Environment (“MOE”)
are posted. (i.e. 2,000 out of 20-30,000 instruments per year). The
percentages are probably smaller for some other ministries.
V. Exceptions
Another interesting difference between the EBR Registry and the CEPA
Registry is that there are exceptions in the EBR but there do not appear
to be any in CEPA, 1999.[22]
For example, there are exceptions to the EBR’s public participation
requirements in cases of emergency or where there has already been an
equivalent public participation process, such as an environmental assessment
process. In these cases the ministry claiming the exception is required
to post an exception notice on the Registry. The ECO monitors the use
of these exceptions by the ministries and reports to the Legislature
on whether they have been improperly exercised.
Between November 1994 and December 1997, only 21 emergency exception
notices and 10 equivalent public participation exception notices were
placed on the Registry by MOE. The vast majority of the emergency exceptions
related to landfill sites seeking interim expansions or “emergency”
certificates of approval. In the ECO’s first annual report, the Commissioner
noted that, while a lack of landfill space is certainly an urgent consideration
for municipalities and MOE staff, it seems questionable that this number
of exceptions is justified. As one commenter pointed out, “a lack of
landfill capacity rarely occurs overnight.”
In its 1997 Annual Report, the Commissioner
reviewed several exceptions, and concluded that ministerial discretion
could often have allowed the use of the EBR public participation
processes in order to provide greater transparency and to alert members
of the public to the nature of ministers’ decisions.
VI. How long will information be on the
CEPA Registry?
CEPA, 1999 does not specify how
long information is to remain on the registry. At present, EC is developing
policies related to the CEPA Registry and is considering whether some
of the posted information should be archived and placed in paper files
after 12-24 months. For example, ocean dumping permits are valid for
less than one year, and EC may decide to remove them from the CEPA Registry
every two years to make room for other information.
The EBR Registry is currently a database
of all postings. The first few thousand MOE instrument proposals are
no longer of the EBR Registry (these were not reloaded when the MOE
moved from the BBS to the Internet) but all of the proposals for acts,
regulations and policies are on the EBR Registry, as well as information
and exception postings.
VII. Cost Recovery
In its official government response to the Standing Committee, the
federal government proposed to include authority to adopt cost recovery
measures to maintain the CEPA Registry. The government contended that
such a provision would provide authority, if needed, and would likely
require that the fee structure for users of the CEPA Registry be set
out in regulations. The regulations would then go through the federal
regulatory process, which includes required public consultation, in
addition to a public comment period once the draft regulations are published
in Part I of the Gazette. Section 328 of CEPA, 1999 appears
to allow the government to impose a charge for use of the CEPA Registry.[23] However, there are no such charges at present and
it seems unlikely that EC will impose charges in the near future.
The idea of cost recovery was also proposed
for the EBR Registry by the EBR Task Force. Section 121 (1) (g) of the
EBR grants the Lieutenant Governor in Council the power to make
regulations “prescribing the fees that may be charged in relation to
use of the registry.” To date, no proposals for cost recovery have been
made in relation to the EBR Registry.
VIII. No Environmental Commissioner Created
by CEPA
A further important difference between the EBR Registry and the CEPA
Registry is the existence of a monitoring agency under the EBR.
The Environmental Commissioner of Ontario is mandated to review the
ministries’ compliance with the EBR and how they use the EBR
Registry. In contrast, no specific agency is established by CEPA,
1999 to monitor the operation of the CEPA Registry.
However, EC maintains a CEPA office, whose staff prepares an annual
report to the House of Commons, although they tend to be technical and
rarely critical of the government in power. The Standing Committee
will probably follow the implementation of the CEPA Registry very closely
and undoubtedly will ask EC staff to appear before them. It also seems
likely that the Federal Commissioner on the Environment and Sustainable
Development will review work on implementation of the CEPA Registry.
IX. Delays in Posting Information
Another interesting implementation issue will be the inevitable delay
between issuing approvals or making decisions and their publication
on the CEPA Registry. The ECO monitors delays very carefully. Furthermore,
section 36 (2) of the EBR requires that ministry staff post decisions
as soon as reasonably possible after the decision is implemented. There
is no similar requirement in CEPA, 1999.
Experience under the EBR is that ministry staff can take anywhere
between a week and 6-8 months to post a decision notice on the EBR Registry.
To be fair, ministry staff are dealing with dozens of issues and posting
decision notices often seems like a hassle. Based on the EBR experience,
I would predict that there will be delays between the issuance of documents
and the publication of them on the CEPA Registry. It depends on whether
the directors and staff in headquarters and the regions can convince
EC staff to make registry publication a priority.
3.8 Summary and Conclusions
CEPA Registry modelled after the EBR Registry
4.0 THE RIGHT TO AN INVESTIGATION
Both the EBR and CEPA, 1999 confer upon the public the
right to request an investigation of an alleged environmental offence.
This is a significant and unique right.
It is a unique right because not all jurisdictions in Canada provide
their residents with the right to request an investigation.[24] Moreover, the right
has only existed in Canada for approximately 12 years, since the enactment
of CEPA, 1988.
It is a significant right because it offers citizens the potential
for a less-expensive alternative to litigation in order to protect the
environment. Moreover, a well-researched application can lead to positive,
and even unexpected results. For example, in 1997 an investigation application
under the EBR alleged that the applicants’ neighbours straightened
a river bank by adding outside fill to their property, causing increased
silting, erosion and flooding on the applicants’ property and the destruction
of fish habitat. The Ministry of Natural Resources (“MNR”) concluded
that the alteration was in violation of the federal Fisheries Act
and initiated a prosecution under that legislation. The MNR withdrew
the charges after the accused agreed to rehabilitate the stream back
to its original condition.
In this Chapter the right to an investigation
under the EBR, CEPA, 1998, and CEPA, 1999 are examined.
Issues related to the right to an investigation are discussed in order
to highlight the potential weaknesses in the CEPA, 1999 process.
Some of the issues canvassed include: standing to request an investigation,
the use of form applications, the frequency of investigation applications,
possible grounds for not proceeding with an investigation, potential
bias of decision-makers, confidentiality and the lack of a monitoring
agency such as the ECO.
4.1 The Right to an Investigation under
CEPA, 1999
Sections 17 - 21 of CEPA, 1999 provide persons resident in Canada with the
right to request an investigation into an alleged commission of an offence
under CEPA, 1999. Specifically, section 17 states:
17. (1) An individual who is resident in Canada and at least
18 years of age may apply to the Minister for an investigation of any
offence under this Act that the individual alleges has occurred.
Upon receiving an application the Minister is obligated to investigate
all matters that he or she considers necessary to determine the facts
relating to the alleged offence.[25]
The investigation may be discontinued by the Minister if he or she is
of the opinion that the alleged offence does not require further investigation
or the investigation does not substantiate the alleged offence.[26]
Otherwise, the Minister must report to the applicant every 90 days regarding
the progress of the investigation.[27]
4.2 The Right to an Investigation under
CEPA, 1988
The right to an investigation provided in
section 17 of CEPA, 1999 is very similar to the former right
to an investigation provided in section 108 of CEPA, 1988.
However, the former process required two persons to initiate and
maintain the application whereas the current process requires only one
applicant. A further difference is that CEPA, 1999 provides an
additional ground upon which the Minister may choose to discontinue
an investigation. Under CEPA, 1999 the investigation may be discontinued
by the Minister if he or she is of the opinion that the alleged offence
does not require further investigation or the investigation does not
substantiate the alleged offence. Only the former ground was available
to the Minister under CEPA, 1988.
The investigation request process under CEPA, 1988 was not used
extensively. Nadine Levin in the CEPA Office advises that there were
approximately 11 applications submitted under CEPA, 1988, five
of which were unrelated to CEPA, 1988.[28] It remains to be seen whether the
number of applications for investigation submitted will increase under
the newly enacted CEPA, 1999.
4.3 The Right to an Investigation under the EBR
Since the enactment of the EBR in
1994, Ontario residents have been able to request investigations into
alleged contraventions of certain environmental laws, regulations and
instruments (such as certificates of approval or permits). At present,
members of the public can submit applications for investigation regarding
some of the Acts administered by the following five ministries:
8.
Ministry of
the Environment;
9.
Ministry of
Natural Resources;
10.
Ministry of
Northern Development and Mines;
11.
Ministry of
Consumer and Commercial Relations; and
12. Ministry of Energy, Science and Technology.
Completed applications for investigation must first be submitted to
the ECO. ECO staff review the applications for completeness, and then
forward them to the appropriate ministry or ministries. Ministries then
must decide whether or not they will conduct the requested investigation.
The ECO reviews and reports on how the ministries receive and handle
applications.
The investigation request process under the EBR has been used
with greater frequency than the CEPA, 1988 process. During 1998,
25 applications were submitted on a wide range of topics.[29] Several applications related to
waste disposal sites were submitted. Applicants raised concerns about
inadequate certificates of approval for landfills in Thunder Bay and
Sarnia, and about a recycling facility near Aylmer, Ontario. As well,
several forestry-related applications were submitted. Applicants raised
concerns about forestry operations taking place in areas where harvesting
had not been approved. Other applications considered discharges from
a mine on Graphite Lake near Algonquin Provincial Park, the destruction
of common tern nests on Toronto’s Leslie Street Spit, and a conservation
authority’s decision to sell some waterfront land in Pickering.
4.4 Issues Related to the Right to an Investigation
I. Who Can Submit an Application for Investigation
According to section 17 of CEPA, 1999, any “individual” resident
in Canada and at least 18 years of age may request an investigation.
Section 74 of the EBR, requires two “persons” who
are both resident in Ontario for a proper investigation request. Unlike
CEPA, 1999 there is no age requirement under the EBR,[30] although under both Acts the
applicant or applicants must believe that the alleged offence has been
committed.
Parliament’s decision to restrict investigation applications under
CEPA, 1999 to “individuals” appears to deny corporations the
right to request an investigation.[31] In contrast, the EBR refers to “persons” which
includes corporations as the term is defined in section 29 of the Interpretation
Act, R.S.O. 1990, c. I.11.[32]
Denying corporations the right to request an investigation may act
as an impediment to public participation. As some commentators have
correctly stated, many non-government organisations which are active
in environmental issues are corporations[33] and therefore may be unable to submit an investigation
application.
II. Application Forms
Both application processes contemplate an
application form. However, only the EBR process currently has
a publicly available form.
Section 17 (3) of CEPA, 1999 permits the minister to develop
a form in which investigation applications must be made. EC is currently
considering developing a form application, but no such form had been
made publicly available nor in one required in order to submit an investigation
application. Nonetheless, this is an improvement compared to the former
situation under CEPA, 1988 where an application form was never
contemplated nor developed.
Pursuant to section 74 (2) of the EBR,
an application for investigation must be in the form provided by
the ECO. The form developed by the ECO can be viewed on the ECO’s web-site
at
www.eco.on.ca A sample completed application form is reproduced in the EBR user’s
guide entitled “Ontario’s Bill of Rights and You.”
There are many merits in providing forms applications to the public.
The availability of a form is likely to facilitate and encourage public
use of the right to request an investigation by simplifying what can
otherwise be a daunting, confusing and for some, and intimidating process.
By presenting a form that describes all the necessary information and
procedures, members of the public do not have to consult legislation
that may be difficult to access, read and understand. The removal of
such obstacles to public participation and the exercise of the right
to request an investigation is necessary if the federal government is
to fulfill its statutory duties to encourage the participation of the
people of Canada in environmental decision-making and facilitate the
protection of the environment by the people of Canada.[34]
A disadvantage of requiring that applications be submitted in a prescribed
form is that it may disqualify applications which are not in the proper
form but which are otherwise in substantive compliance with CEPA,
1999. Therefore, from the public’s perspective a non-mandatory form
may be ideal. On the other hand, from the government’s perspective and
in the interest of administrative efficiency, it may be preferable if
all applications are submitted in a standardized form.
III. How many applications will be submitted
under the CEPA, 1999?
The number of investigation applications submitted under CEPA, 1999
will be one indicator of the Act's success, or at least a
measure of public participation. It is very difficult to predict how
many investigation applications the CEPA Office will receive, but some
of the relevant factors are worthy of discussion.
There are a number of prohibitive factors
that will influence a person’s choice of whether to request an investigation
under either the EBR or CEPA, 1999. Some of these factors
are as follows:
1.
Cost: No fee is required to submit an investigation
application under the EBR or CEPA, 1999. However, an applicant
will undoubtedly incur expenses in preparing their application. These
expenses could be significant if legal, scientific or other professional
expertise is required.
2.
Public Concern:
Obviously, one’s level of concern regarding environmental offences generally,
and the specific alleged offence they may be aware of, will affect their
decision on whether to request an investigation. A related factor is
whether the alleged offence has a direct affect on a person. Offences
committed against the environment often have no direct human victim
and therefore may not result in an investigation application. Ocean
dumping permits may be one example. On the other hand, the activities
of a landfill in close proximity to a community may garner significant
concern in the community and make an investigation application more
likely.
3.
Awareness
of Rights: Even
those persons with sufficient financial resources and concern may not
request an investigation if they are unaware of their right to do so.
Public education and awareness is inextricably linked to the number
of applications that will be submitted. For this reason the ECO devotes
significant program funds and human resources (e.g. 2-3 person years)
to educating the Ontario public about its rights under the EBR.
The federal government
proposed to publish a pamphlet outlining the purpose of CEPA, 1999
and the rights and remedies that members of the public have under the
Act. It is doubtful whether this level of commitment will be
sufficient to ensure that the investigation application rights are fully
utilized.
4.
Awareness
of Offence: Some
environmental groups and industry associations argue that the nature
of CEPA, 1999 regulations hinders exercise of the right to an
investigation. For example, the Vinyl Chloride Release Regulations
prohibit releases of vinyl chloride to the atmosphere in excess
of regulated limits. However, individuals other than those who work
in vinyl chloride or polyvinyl chloride plants are not likely to know
if instruments in the plants demonstrate unlawful releases. This is
also a problem under the EBR.
Under the EBR, more than 100 investigation applications have
been forwarded to the ministries by the ECO. The investigation applications
cover a range of issues such as alleged contraventions of landfill and
air pollution permits. On an annual basis, 20-25 applications per year
are received by the ECO.
During 1998, in a departure from previous years, MNR accepted more
applications than it denied, undertaking six of the eight investigations
forwarded to the ministry, and took action as a result of some of these
investigations. MOE undertook three investigations. Several EBR investigations
were denied because MOE was already investigating the issues raised
in the applications, or because another ministry — usually MNR — was
investigating similar allegations. The following table summarizes the
number of investigation applications received in 1998 and the ministries’
responses.
1998
MOE INVESTIGATIONS
MNR INVESTIGATIONS
Undertaken and completed
6
Undertaken but not yet completed
2
0
Denied
0
2
Total forwarded to ministry
13
8
Investigation applications under CEPA, 1988 were far less frequent.
In its June 1995 report, the Standing Committee indicated that only
six official requests had been made under section 108 between 1988 and
1994. Five of these requests were not directly related to CEPA, 1988.
Nadine Levin in the CEPA Office advises that there have been approximately
11 applications to date, five of which were unrelated to CEPA, 1988.
The ECO receives more investigation application in a year. It remains
to be seen whether the number of investigation applications will increase
with the enactment of CEPA, 1999.
It should be remembered that even if the application
is submitted, the Minster may decide that the investigation should not
proceed.
IV. Grounds for Not Investigating
Neither CEPA, 1999 nor the EBR
require that every matter requested for investigation must be investigated.
Indeed, both acts provide the grounds upon which the Minister may choose
not to start an investigation or to discontinue an investigation.
Under section 21 of CEPA, 1999, the Minister may discontinue
an investigation if the Minister determines that the alleged offence
does not require further investigation, or that the investigation does
not substantiate the alleged offence. It is unclear what sorts
of reasons the Minister might provide under this ground, but it appears
to grant the Minster a wide ambit of discretion.
Section 77 of the EBR provides five circumstances in which the
Minister may choose not to investigate. First, the Minister need not
investigate if he or she does not consider it necessary.[35] Second, the Minister need not investigate
a frivolous or vexatious application.[36]
Third, the Minister need not investigate alleged contraventions that
are not serious enough to warrant an investigation.[37]
Fourth, the Minister is not required to investigate if the alleged contravention
is not likely to cause harm to the environment.[38]
Finally, the Minister need not investigate a matter already being investigated.[39]
These grounds offer the Minster a broad and subjective scope of reasons
to not start or to discontinue an investigation.
It should be noted that conducting a proper investigation is expensive.
For example, in April 1998 several large Ontario environmental groups
submitted an extensive set of applications related to contraventions
of the Public Lands Act and the Crown Forest Sustainability
Act. It was reported in the media that the MNR spent more than
$60,000 and dozens of person days on the investigation related to this
application. However, the expense of an investigation is not a recognized
ground to not investigate.
Both CEPA, 1999 and the EBR provide that the Minster
shall provide the applicant with his or her reasons for not investigating.[40] Under the EBR
the Minister has 60 days to provide the applicant with this information.[41] There is no time limit within which
the Minister must provide reasons for discontinuing an investigation
under CEPA, 1999.
Disclosure of the Minster’s reasons for not
investigating is important because it will form the record on which
the Minister’s decision may be subjected to judicial review. Disclosure
is also an important element in achieving transparent decision-making.
V. Bias of Decision-Makers
In order for the right to an investigation to be meaningful, applicants
must be assured that their applications are not reviewed by person (s)
who may have a potential for bias in deciding whether to proceed with
the investigation.
Applicants under the EBR have raised
concerns in correspondence to the ECO regarding the appearance of bias
where the ministry has an interest in not fully investigating a matter
due to a fear that it might expose neglect of ministry duty or failure
to follow ministry policy.
Furthermore, the ECO reported another example
of the potential for bias in reviewing investigation applications at
page 43 of its 1996 Annual Report:
Sometimes Ontarians applied for an Investigation
of an issue they had raised with a ministry in the past, but the issue
was never resolved to their satisfaction. In at least two cases the
Ministry of the Environment and Energy assigned these kinds of Investigations
to the same local offices that dealt with the previous complaints.
In the case of the EBR, the ECO acknowledged
the value of local experience in having the same individual (s) review
investigation applications for previous complaints, but emphasized the
need for a fresh perspective.
In order to ensure that a fresh perspective is brought to reviewing
investigation applications, some ministries have adopted, as a matter
of policy, a two step decision-making process designed to avoid potential
and actual bias. For example, in the case of the MOE initial decisions
on whether to proceed with investigations are made by the local District
Mangers, after consulting with their Abatement / Technical Support staff
and the Advisory Committee of the Operations Division of the MOE.[42]
This approach was not adopted in CEPA, 1999. The procedure contemplated
by the express provisions of CEPA, 1999 does not necessarily
require an initial investigation of an offence, nor an initial screening
by a committee or independent decision -maker. However, we understand
that EC staff have adopted a similar approach as a matter of policy.
VI. Equivalency Agreements
Section 10 of CEPA, 1999 allows the
federal government to enter into equivalency agreements with provincial,
territorial or aboriginal governments. An equivalency agreement recognizes
the regulatory provisions in another jurisdiction as having the equivalent
effect of provisions in CEPA, 1999. The effect of an equivalency
agreement is that the specified provisions in or under CEPA,
1999 will not apply in the host jurisdiction.
Thus far, the federal government has entered
into only one equivalency agreement. “An Agreement on the Equivalency
of Federal and Alberta Regulations for the Control of Toxic Substances
in Alberta” came into effect in 1994. The agreement renders inoperative
in Alberta four CEPA, 1999 regulations concerning toxic substances.
A pre-requisite to equivalency agreements
is the existence of a mechanism allowing individuals in the host jurisdiction
to request an investigation of alleged offences under environmental
legislation in the host jurisdiction. Specifically, section 10 (3) (b)
of CEPA, 1999 requires the host jurisdiction to have statutory
provisions that are similar to sections 17 - 21 of CEPA, 1999.
Ontario has its own investigation provisions in the EBR as
discussed above. Thus, it seems possible that Ontario will be one of
the few jurisdictions in Canada that could enter into an equivalency
agreement with the federal government. The Yukon, the Northwest Territories,
Nova Scotia and Alberta may also be candidates for equivalency agreements.[43]
VII. Confidentiality
The EBR requires the ministries not to disclose the names of
applicants in notices under section 78. [see s. 81]. This was
likely intended to protect applicants from harassment by alleged contravenors,
their employees and other interested parties. These provisions have
served to reassure some applicants that they could apply without fear
of reprisal. For example, in some cases employees have submitted applications
for investigation under the EBR about misconduct by their employers.
It is arguable that these employees would not have come forward if they
thought their names would be automatically disclosed to their employers.
The ECO maintains the confidentiality of all applicants’ names as a
matter of policy. ECO staff cannot discuss applications for investigation
until the Commissioner reports on them. However, in some cases, the
applicants self identify at press conferences held when they submit
the applications to the ECO or when they are trying to press the ministries
for action. In these cases, the ECO will merely confirm to the media
or the public that an application was received.
Confidentiality under CEPA, 1999 is
addressed in sections 313 - 321. [does this apply to appeals or also
investigations] The essential difference with the EBR process
is that under CEPA, 1999 an applicant must make a request to
have information kept confidential. This request must include explanation of the grounds for making the request.
The Minister is not permitted to disclose
any information in respect of which a request for confidentiality has
been made under section 313, except in accordance with sections 315,
316 or 317. These sections incorporate provisions
of the Access to Information Act, RSC 1985 c. A-1 and the Privacy
Act, RSC 1985 c. P-21 and provide for a type of public interest
override of a confidentiality request.
[See CELA]
VIII. Lack of ECO
There is no requirement for a monitoring agency, such as the ECO,
to review the handling of investigations applications under CEPA,
1999. Experience with the EBR process is that assessment
of the adequacy of investigations by government officials is complex.
It is possible that environmental non-governmental organizations may
step into the breach and prepare an annual report on how applications
are being handled by Environment Canada.
4.5 Summary and Conclusions
Issue: will CEPA be used for Private
Prosecutions???? Recent cases in Ontario and BC
Kingston landfill?
5.0 ENVIRONMENTAL PROTECTION
ACTIONS
The CEPA Registry and the right
to request an investigation under CEPA, 1999, were discussed
in previous chapters. Both the CEPA Registry and the right to an investigation
were designed to promote greater political accountability on the part
of decision-makers. However, it is arguable that political accountability
alone may be insufficient to ensure better environmental decision-making.
CEPA, 1999 reflects the need to go beyond mere accountability
by increasing public access to the courts.
CEPA, 1999 creates
a public right to sue, called an environmental protection action (“EPA”).[44] An EPA is a statutory civil action.
It is a right to sue conferred on members of the public through legislation.
Under CEPA, 1999 a member of the public may commence an action
with respect to an offence committed under the Act and which
caused significant harm to the environment. The right to commence an
EPA is markedly different than the right to request an investigation
in that an EPA is not subject to ministerial discretion and therefore
cannot be shutdown by the government. However, there are significant
prerequisites and challenges to commencing and maintaining an EPA.
Insert brief description of EBR
provisions - comment on how often the right to sue has been used and
refer to case briefs in Appendix F?
This chapter discusses the requirements
for commencing an EPA and the remedies which the court may grant to
a successful EPA plaintiff. In addition, ...First, a historical perspective
of statutory civil actions is provided.
5.1 Background
The EPA provisions in CEPA, 1999 were modeled after very similar
provisions in the EBR.[45]
The CEPA, 1999 provisions also represent significant amendments
to the right to sue provisions in the original CEPA, 1988. Under
CEPA, 1988 the public right to sue was limited to situations
where the plaintiff suffered loss or damage as a result of a violation
of CEPA, 1988. Under CEPA, 1999 this requirement is removed,
making it less onerous for a plaintiff to commence an EPA.
In its 1995 report, the Standing Committee recommended that the CEPA,
1988 right to sue be expanded to allow members of the public to
sue in situations where they have suffered loss or damage as a result
of an activity that has been permitted under the Act, such as
ocean disposal.[46] However, the federal
government rejected such a broad approach and did not agree to amend
CEPA, 1988 to provide a means of redress for damages arising
from activities that are authorized under the Act. In its response
to the Standing Committee, the federal government stated that a means
of redress to seek such compensation already exists as persons currently
have a common law right to bring suits to seek damages.
5.2 EPA Requirements under CEPA, 1999
Sections 22 - 29 of CEPA,
1999 set out a number of requirements that must be satisfied before
an EPA may be initiated. Many of the requirements are the same as those
contained in the EBR. Some of the key requirements are outlined
below.
I. Prior Request for Investigation
& Inadequate Ministerial Response
Before commencing an EPA, the plaintiff must have already applied for
an investigation into the alleged contravention of CEPA, 1999 and
received an unreasonably delayed response or an unreasonable response
from the Minister.[47]
It is unclear how reasonableness will be determined in either of these
contexts.
II. Significant Harm
In order for an EPA to be successful, the plaintiff must establish
that the impugned activity constitutes an offence under CEPA, 1999
and caused “significant harm to the environment.”[48] There is no definition of “harm”
or “significant harm” in CEPA, 1999.
The public right to sue under
the EBR also refers to “significant harm” to a public resource.
However, the EBR defines “harm” in section 1 (1).
Reference to a phrase such as “significant harm” in CEPA, 1999
will undoubtedly lead to confusion and debate as to its legal meaning.
Arguably the public, the environment and the regulators would be better
served with a clearer definition of what type of activity may form the
basis of an EPA. There appears no sound reason for not providing a more
precise definition in CEPA, 1999. In contrast, as some commentators
have pointed out, the reference to “significant harm” in the EBR
was necessary because the right to sue under the EBR potentially
applies to all contraventions of environmental laws, regulations and
approvals in Ontario.[49] This is distinctly
different than the situation under CEPA, 1999. The EPA provisions
contained in CEPA, 1999 apply only to offences committed under
CEPA, 1999 and thus, presumably are causing significant harm.
III. Notice of the Action to the Attorney General
The plaintiff must serve the Attorney General of Canada with a copy
of the document originating the EPA within 20 days of serving the document
on the defendant.[50]
The Attorney General is entitled to participate in the action, either
as a party or in some other capacity.[51] Similar provisions are included
in the EBR.[52]
IV. Notice of the Action on the CEPA Registry
The plaintiff to must give notice of the action to the Minister no
later than 10 days after serving the originating document on the defendant.[53]
The Minister then must give notice of the action on the CEPA Registry
as soon as possible after receipt of the plaintiff's notice.[54]
CEPA, 1999 also appears
to contemplate that additional notice will be provided on the Registry
after the action has commenced and proceeded to trial. Section 26 (2)
states that, in an EPA, the court may order any party to the action
to give notice to the Minister of any matter relating to the action,
within the time specified by the court and the Minister shall give notice
of that matter in the CEPA Registry as soon as possible after receipt
of the party's notice.
Notice of the Attorney General of Canada’s decision to participate
in an EPA shall be given to the plaintiff and be included on the CEPA
Registry within 45 days after the copy of the originating document is
served on the Attorney General.[55]
V. Limitation Period of Two
Years
Section 23 (1) of CEPA, 1999 provides that “an environmental
protection action may be brought only within a limitation period of
two years beginning when the plaintiff becomes aware of the conduct
on which the action is based, or should have become aware of it.” However,
section 23 (2) goes on to state that the limitation period does not
include any time following the plaintiff's application for an investigation,
but before the plaintiff receives a report under section 21 (2).
VI. Exceptions
CEPA, 1999
provides significant exceptions regarding when an EPA may be commenced.
AN EPA may not be brought if any of the following apply:
·
the alleged conduct was undertaken to correct or mitigate
harm or the risk of harm to the environment and “was reasonable and
consistent with public safety”[56]
·
the alleged conduct was undertaken to protect national
security, support humanitarian relief efforts, participate in multilateral
military or peace‑keeping activities under the auspices of international
organizations or defend a member state of the North Atlantic Treaty
Organization and it “was reasonable and consistent with public safety”[57]
·
the alleged offender was convicted of an offence under
CEPA, 1999 with respect to the alleged conduct on which the action
is based[58]
·
environmental protection alternative measures within the
meaning of Part 10 of CEPA, 1999 were used to deal with the alleged
offender, in respect of the alleged conduct on which the action is based[59]
VII. Onus and Burden of Proof
Section 29 of CEPA, 1999
states that the offence alleged in an EPA and the resulting significant
harm are to be proved on a balance of probabilities by the plaintiff.
VIII. Other Parties
Section 28 (1) of CEPA, 1999 states that the court may allow
any person to participate in an EPA in order to provide fair and adequate
representation of the private and public interests involved. Moreover,
section 28 (2) allows the court to determine the manner and terms of
the person's participation, including the payment of costs.
[CELA comments]
5.3 Remedies
If a court finds the plaintiff
entitled to judgment in an EPA, the court may grant any of the
following forms of relief, pursuant to section 22 (3) of CEPA ,1999:
·
order the defendant to do anything that may prevent the continuation of an offence
under CEPA, 1999
·
order the defendant to refrain from doing anything that may constitute an offence
under CEPA, 1999;
·
order the parties to negotiate a restoration plan in respect of harm to the
public resource and report to the court on the negotiations within a
fixed time;
·
make a declaration; and
·
make any other order, including an order as to court costs, that the court thinks
is appropriate.
The court cannot make an award of damages in an EPA.
5.4 Other Civil Matters
Many courses of action contemplated
by CEPA not discussed here such as ...
I. Civil Actions to Prevent
Losses
Under section 39 of CEPA,
1999 a court may issue an injunction ordering a person to refrain
from doing anything that contravenes CEPA, 1999 or its regulations
and which causes loss or damage. Only the person who has suffered or
is about to suffer the loss or damage has standing to request the injunction.
I. Civil Actions to Compensate
Losses
Under section 40 of CEPA,
1999 any person who has suffered loss or damages as a result of
conduct that contravenes CEPA, 1999 or its regulations may apply to
court to recover their losses.
III. Civil Actions under other
Statutes
Fisheries Act, Endangered Species
Act
IV. Private Prosecutions
The harm to a public resource action shares some characteristics with
a private prosecution. Similar to the EBR, private prosecutions
provide citizens with an opportunity to take action when they perceive
that government action is inadequate. However, there are important
differences between the two.[60]
The harm to a public resource action requires the plaintiff to prove
the merits of the case on the lower standard of proof for civil action
(balance of probabilities) as compared to the higher standard in a criminal
proceeding (reasonable doubt). The public resource action also provides
an opportunity for the plaintiff to recover costs of the action.
The main reasons for the increase
in private prosecutions are following:
1. There are no cost provisions in a criminal proceeding.
2. It generally takes less time and costs for a private prosecution
to proceed to trial.
In contrast, the real key to a
public resource action under the EBR or an EP action under CEPA is the
potential for a restoration plan to be ordered but in most cases it
will take years for the parties and the courts to develop an appropriate
plan.
3. If you use the Fisheries Act, you can get up to half of the fine
imposed.
Several prominent private prosecutions involving environmental offences
have been commenced in Ontario since the EBR was promulgated.[61] One of these prosecutions
was initiated against the City of Kingston for contravention of the
Fisheries Act and the EPA. These are both prescribed Acts under
the EBR.
The Kingston private prosecution resulted in a conviction and a significant
fine being imposed upon the defendant. The private prosecutor was entitled
to half of the fine under the General regulations under the Fisheries
Act. In this case, the prosecution was launched by the
Environmental Bureau for Investigation
and the Sierra Legal Defence Fund.
Last week, the Environmental Bureau for Investigation and the Sierra
Legal Defence Fund launched another action that is remarkably similar
to the Kingston case. In this new case, the environmental groups are
seeking to prosecute the city of Hamilton for allowing an old city dump
to leak PCBs into the Red Hill Creek.
The third private prosecution, which was an attempt to prosecute CoCa-Cola
for contravention of the refillable regulations under the EPA, was stayed
by the Attorney General. Before the private prosecution was undertaken,
the environmental group had launched an application for investigation
under the EBR. They were dissatisfied with the decision of the ministry
not to investigate and prosecute and then decided to launch their private
prosecution.
The fact that these three actions
proceeded by way of a private prosecution as opposed to a harm to public
resource action and by-passed the investigation procedure? may indicate
that a private prosecution is a more attractive option to a potential
plaintiff/prosecutor.
5.5 Summary / Conclusion
Despite the criticism that provisions
in Part VI of the EBR are poorly designed, it is arguable that
the mere existence of the provisions has served to ensure that ministry
officials undertake more thorough investigations and provide reasonable
responses to applications.
The similarities between the two Acts on EP actions and s. 84 actions
in the EBR are extensive. Modelled after. But there are key differences
- the barriers and conditions precedent in the new CEPA are far more
restrictive than those contained in CEPA. I think the CEPA provisions
are more restrictive in some respects. I want to highlight some differences
between the provisions.
I) Investigation Not required for Emergencies and Imminent Harm
One of major differences is that
ss. 84(1) of the EBR allows residents to go immediately to court in
an emergency situation if a person is about to imminently contravene
a prescribed Act, regulation or instrument and this will result in harm
to a public resources.
In support of this exception, ss. 84(6) of the EBR states that
the requirement to first request an investigation does not apply where
the delay involved would result in harm or serious risk of harm to a
public resource. This exception does not apply to CEPA actions.
To date, this emergency exception
has been used in one of the two cases that have been launched under
the EBR.
2) Pre-approval for Suits Against
Farmers
There also are special requirements where the lawsuit would involve
farmers who may be protected against nuisance and civil lawsuits relating
to odour, noise and dust under the Farming and Food Production Protection
Act.[62]
In these circumstances, an approval is usually required from the Normal
Farm Practices Protection Board before a lawsuit can be brought. In
addition, parties who undertake actions using the right to sue provisions
of the EBR are required to give the ECO notice so that we can
post notices about the actions on the Registry.
3) No Actions under CEPA if Mitigation by Defendant
S. 24 states that an EP action is not permitted where a defendant has
taken action to mitigate the damage and harm that was caused. This
is not provided in the EBR.
Experience Under the EBR
To date, only two plaintiffs have actually used the new right to sue
provisions in Part VI of the EBR. However, fewer than xx Investigation
Applications have been screened or reviewed by the ministries (in response
to Applications for Investigation under Part V of the EBR), and
these ministry screenings are usually prerequisites for s. 84 actions.[63]
Appendix A: EBR Implementation
Schedule
Appendix B: CEPA Registry
Homepage with Menu of Categories of Information Available
Appendix C: Descriptions of Types
of Information on the CEPA Registry
Following is a description of
the types of information available under the various categories provides
on the CEPA Registry:
6.
The Act
The full text of CEPA will be available on the Registry site. The
EBR Registry has provided access to the full text of the EBR since 1994.
7.
General Information
This part of the Registry will contains documents and other materials
that relate to the overall administration of the Act such as the CEPA
annual reports. Bill C‑32 also allows for the publication of
a state of the environment report for Canada and it seems likely that
this will be published on the Registry.
8.
Public Participation
1. Notices of environmental protection
actions
Under sub-section 26(1), the plaintiff in
an environmental protection action shall give notice of the action to
the Minister no later than 10 days after the document originating the
action is first served on a defendant, and the Minister shall give notice
of the action in the Environmental Registry as soon as possible after
receipt of the plaintiff's notice.
This contrasts with the notice requirements of the EBR. Under the
EBR, the plaintiff must draft a proposed notice at the close of pleadings
and then make a motion in the Ontario Court of Justice for approval
of the notice. The ECO is required to post the notice approved by the
court.
It is noteworthy that provisions in paragraph c of ss. 13(1) require
the posting of documents submitted to the courts related to EP actions.
2. Objections
As indicated before, section 13 requires that Notices of Objections
be published on the Registry. These objections are similar to appeals
under Ontario laws such as the EPA and the OWRA. However, the appeals
are made to the Board of Review rather than an appeal board. In some
cases, like objections related to regulation affecting international
air and water pollution, it is mandatory for the Minister to establish
a board of review. Mandatory reviews also are required for regulations
under Part 9 or section 118.
It is unclear to me what types of notices will be published on the
CEPA Registry. My expectation is that Environment Canada will develop
a template and require that certain information fields be completed.
Nadine Levin of the CEPA Office talked about this issue in November
1999. She says that, at present there is no plan to develop a template
for objections. Companies and members of the public can continue to
send letters and documents. Moreover, Environment Canada will probably
try to reproduce the full text of the objections rather than try to
summarize them.
Levin says that all of the objection notices related to a particular
regulation, order or instrument will appear on the Registry. In the
past few years, up to 11 objection notices have been filed in relation
to a single approval. Moreover, some notices are filed by ENGOs or
law clinics on behalf of many applicants and these ones can be very
long and complex.
The ECO is required to post “notices” of appeals and leave to appeal
applications related to prescribed instruments on the EBR Registry.
However, we have sinplified procedures so that we do not post all of
the notices.
To date we have published approximately 70 notices regarding appeals
launched by instrument holders. All of the appeals have been for MOE
instruments. We have published only about 25 notices of leave to appeal
applications by residents and ENGOs. The Environmental Appeal Board
has rejected the large majority of applications. In seven cases, leave
has been granted. Most of successful applicants have used the threat
of a full hearings as leverage to settle their disputes with the proponent
and the ministries.
In sum, there are some interesting implementation
issues posed by these notices.
3. Objections to Regulations, Orders and Instruments
Section 332 requires that the Minister shall publish in the Canada
Gazette a copy of every order or regulation proposed to be made by the
Minister or the Governor in Council under this Act, except a list or
an amendment to a list referred to in section 66, 87, 105 or 112. These
are related to LTSs, etc.
Sub-section 332(2) allows any person to file a notice of objection
within 60 days after the publication of a proposed order or regulation
in the Canada Gazette under subsection (1) or a proposed instrument
respecting preventive or control actions in relation to a substance
that is required by section 91 to be published in the Canada Gazette.
The notice can request that a Board of Review be established.
4. Objections to Ocean Dumping Permits
Under s. 134 any person who has concerns
about an ocean dumping permit or who was denied a permit may file with
the Minister a notice of objection requesting that a board of review
be established under section 333 and stating the reasons for the objection.
While the time for a.proponent to file an appeal under the EPA is only
15 days after receiving notice from the MOE, the time for filing notice
of objection related to an ocan dumping permit is thirty days after
the proposed permit is published in the Canada Gazette or thirty days
after the date the person received a notice from the Minister that the
permit has been refused, suspended or revoked, or that its conditions
have been varied. Minister retains discretion to decide whether to
establish the Board of Review.
D. Regulations
As indicated before, the CEPA Registry will
be used for consultation on certain regulations under CEPA.
Section 332 requires that the Minister shall publish in the Canada
Gazette a copy of every order or regulation proposed to be made by the
Minister or the Governor in Council under this Act, except a list or
an amendment to a list referred to in section 66, 87, 105 or 112.
The minister is required to provide a 60
day comment period.
There are special provisions on pre-consultation notice for regulations
related to international air wand water pollution. Under s. 168 (1)
the Minister shall advise the government of any country that would be
affected by or benefit from the regulation before it is published under
subsection 332(1). Again, a 60 day comment period applies. Before
the end of the comment period, any person, including a representative
of the government of any country that would be affected by or benefit
from it, may file with the Minister written comments on the proposed
regulation.
At the end of the period of 60 day comment period, the minister shall
advise each government of any notice of objection filed under subsection
332(2) and shall publish in the Canada Gazette, and may publish in any
other manner that the Minister considers appropriate, a report or a
notice of the availability of a report that summarizes how any written
comments filed under subsection (2) or a notice of objection filed under
subsection 332(2) were dealt with. In the result, these provisions approximate
the notice and comment provisions in the EBR.
The language in section 13 suggests that the CEPA Registry will contain
every proposed regulation in its original language, whether or not it
is promulgated. I would expect that the CEPA Registry will contain
the final regulations as well.
The prototype for the CEPA, Environment Canada already had begun the
process of loading CEPA regulations on the site. When the CEPA Registry
is launched in the spring of 2000, It is expected that there will be
a few dozen regulation proposals and final regulations on the site.
E. Notices
See Appendix D for a description of the types of information available
under Notices.
6.
Orders
Bill C-32 allows Environment Canada staff to impose environmental protection
compliance orders. These have been described as powerful new tools
that will work like injunctions. In some ways, they are similar to
the cease and desist orders that could be imposed under the old CEPA.
These orders apply immediately.
Inspectors will be able to issue orders on the spot to stop illegal
activity and, if necessary, require an action to correct a violation
so that the environment and public safety are protected. These type
of orders sound like Field Orders that have been issued by MOE for several
years. These MOE field orders are exempted from the notice and comment
requirements of the EBR and appeals related to them also are not posted
on the Registry.
Section 332 requires that the Minister shall publish in the Canada
Gazette a copy of every order proposed by the Minister or the Governor
in Council under this Act. The minister is required to provide a 60
day comment period on these proposed orders. It is unclear to me why
these orders should be published in the Part 1 of the Gazette because
they are in force immediately.
It is possible that Environment Canada may
decide to severely limit access to information about these types of
orders and not publish them in the Gazete or on the registry.
Bill C‑32 allows the government to completely prohibit the importation
and manufacture of these substances.
Bill C‑32 also creates a new category of enforcement officer
called CEPA investigators. These officers will be investigation specialists
with expertise in the gathering of evidence and court procedures. They
will have all the powers of inspectors as well as certain peace officer
powers such as the authority to serve court documents.
CEPA also allows the minister to impose certain
prohibitions.
7.
Guidelines /
Codes of Practice
Bill C‑32 also allows for the publication
of a state of the environment report for Canada and the development
of ecosystem objectives, guidelines, and codes of practice on a wide
range of issues, including protection of marine environments. The federal
government has stated that efforts will be focused on maintaining the
integrity of ecosystems and not just individual components.
These guidelines and codes will be published
on the Registry.
8.
Permits and
other approvals
The following types of permits will be posted
on the Registry:
1. Permits Issued During Extensions of
Organism Assessments
Where the Ministers have assessed any information
under section 108 and they suspect that a living organism is toxic or
capable of becoming toxic, the Minister may, before the expiry of the
assessment period permit any person to manufacture or import the living
organism, subject to any conditions that the Ministers may specify.
2. Waste Transport Permits
Section 190 allows the Minister to issue a
permit authorizing, subject to conditions fixed by the Minister, any
waste transit, export and import activity as long as it is to be conducted
in a manner that provides a level of environmental safety at least equivalent
to that provided by compliance with the requirements of the Act.
If companies feel that disclosure of the detail about the wastes they
produce reveals trade secrets or confidential commercial information,
then it will be essential for them to make this argument when they apply
for the permits. Otherwise the information could end up on the registry.
Sub-section 127(1) allows the Minister to issue permits authorizing
the loading for disposal and disposal of waste at sea. The applications
for permits must be accompanies by evidence that notice of the application
was published in a newspaper circulating in the vicinity of the loading
or disposal described in the application or in any other publication
specified by the Minister. It is possible that the Minister may eventually
direct applicants that the CEPA Registry would be one form of publication
for the notices.
I. Plans
The CEPA Registry will contain copies of a
numb er of plans such as:
·
pollution prevention
(P2) plans;
·
environmental
emergency (E2) plans;
·
virtual elimination
(VE) plans;
·
plans for reducing
or phasing out the export of hazardous waste for
·
final disposal;
and
·
plans for reducing or phasing out the export of prescribed non‑hazardous
waste for final disposal.
J. Agreements
The CEPA Registry will be used to complement other consultations on
certain administrative and equivalency agreements under CEPA. For example,
Section 9 of CEPA states that the Minister may negotiate an agreement
with a government or with an aboriginal people with respect to the administration
of this Act. Sub-section 9(2) requires trhat the Minister shall publish
any agreement negotiated under subsection (1) before it is entered into,
or give notice of its availability, in the Canada Gazette and in any
other manner that the Minister considers appropriate.
Under sub-section 9(3), any person may file with the Minister comments
or a notice of objection during a sixty day comment period on the proposed
agreement.
After the end of the 60 day comment period,
the Minister shall publish in the Canada Gazette and in any other manner
that the Minister considers appropriate a report or a notice of the
availability of a report that summarizes how any comments or notices
of objection were dealt with.
Section 13 of CEPA suggests that notices
of objection will be published on the CEPA Registry but it is unclear
if notices of objections filed under section 9 will be posted on the
Registry.
In the result, these provisions approximate
the notice and comment provisions in the EBR.
11.
Policies
Section 13 indicates that Environment Canada will post policies on
the Registry. However, there is no definition of the word “policy”
in CEPA and Environment Canada staff are uncertain as to the scope of
the policy documents that must be posted on the Registry. In contrast,
the EBR defines policy as
a program, plan or objective and includes guidelines or criteria to
be used in making decisions about the issuance, amendment or revocation
of instruments but does not include an Act, a regulation or an instrument
It seems possible that this type of definition
could be adapted by Environment Canada.
The ECO and the ministries of the Ontario
government have interpreted the definition of policy contained in the
EBR to include a wide range of programs and policies.
One implementation issue that arose under the EBR is whether key initiatives
such as agreements and action plans developed through partnerships between
government, industry associations and other stakeholders are subject
to the EBR. Some ministries took the position that the ministry’s partners
are not subject to the EBR and should not be required to follow the
EBR requirements. Thus, the agreements should not be posted for public
comment on the Registry.
This argument has been made by several ministries, particularly in
relation to the development of alternative service delivery strategies
(ASD). The ECO has taken the position that this argument is not valid
and does not relieve the ministries of their obligations to undertake
consultation on the Registry or consider and apply their SEVs. Consequently
Management Board Secretariat modified its policies and procedures on
implementation of ASD to require ministries consider the EBR implications
of their ASD proposals and, when possible, post them for public comment.
In the past two years, MNR and the MOE have
posted many proposals for agreements and ASD programs on the Registry
that have been developed with non-government partners.
Officials of CEPA also mentioned issue relating on November 22, 1999.
They mentioned that documents like the pollution prevention agreement
between MOE, DOFASCO and Environment Canada would be published on the
CEPA Registry for public comment. They said they thought it would be
posted.
Thus, it appears likely that Environment
Canada will take a broad approach to policy and post MOUs and agreements.
12.
Substance Lists
Under the revised CEPA, the Ministers of Environment
and Health have the authority to declare substances "toxic"
following a scientific assessment. A substance is declared to be "toxic"
if it threatens human health, the environment, or the environment that
supports human life.
Substances must be added to CEPA’s List of
Toxic Substances (LTS) before the federal government can regulate them.
Under both the existing CEPA and Bill C‑32, the federal Cabinet
is responsible for adding substances to the LTS. (Not all regulations
are approved by Cabinet. Sometimes Ministers have authority.)
Once a substance has been declared toxic under
CEPA, Bill C‑32 requires that the Ministers of Environment and
Health make an immediate recommendation to Cabinet to add the substance
to the LTS. There is no deadline for adding "CEPA toxic" substances
to the List of Toxic substances under the current CEPA.
13.
Enforcement
Environment Canada are interpreting the provisions in section 13 of
CEPA as requiring staff to post some information about enforcement activities
on the CEPA Registry. The current plan is that information about charges
laid under CEPA will be posted when they are laid. In addition, the
final disposition of enforcement activities will be posted on the Registry.
No warning letters issued under CEPA will be published on the Registry.
To do otherwise would violate the principles of natural justice because
there would be no opportunity for a rebuttal by the companies and persons
who receive the letters.
The impression is that some Environment Canada staff believe that the
CEPA Registry must include the documents on prosecution filed in the
courts. Given all the exemptions set out for non-disclosure of Crown
prosecutions documents under s. 16 of the Access to Information Act,
it will be surprised if any of this material is published on the Registry.
Some concerns was expressed that confidential information may be disclosed
if certain enforcement documents are made available on the Registry.
Justice lawyers should develop policies and procedures to ensure that
this does not happen. Like “Environmental protection alternative measures.”
Environmental protection alternative measures, EPAMs, are another enforcement
tool in the new CEPA.[64]
These alternative measures are essentially negotiated settlements to
criminal charges. They allow the government to move back into compliance
and make them pay fines or restore the environment without proceeding
into costly and lengthy court cases. Environment Canada staff say that
charges will be withdrawn only once the conditions of the environmental
protection alternative measures are met. In some ways, these new orders
may function like program approvals under Ontario’s EPA. Under s. 301,
all of the measures must be posted on the Registry. However, they will
not be subject to public comment or notices of objection.
14.
Monitoring and
Research
Environment Canada intends to post information about monitoring, research
and technology development on the Registry.
Appendix D: Types
of Information Available on CEPA Registry under Notices
Appendix E: Summaries of Selected Applications
for Investigation under the EBR in 1998
Appendix F: Summaries of the First Two Public
Resource Lawsuits under the EBR
First Harm to Public Resource Lawsuit Under
the EBR
In February 1998, Karl and Vicki Braeker, owners of a farm in Grey
County, commenced legal proceedings against Max Karge, the owner of
a property adjacent to their farm and the Ontario government in relation
to an illegal tire dump on Karge’s land.[65]
They allege that the illegal tire dump on Karge’s property has contaminated
the subsoil, groundwater, and surface water in the surrounding vicinity,
including their well water. They also allege that the other two defendants
(the Crown and a numbered company) bear some of the responsibility for
the situation. In their Notice of Claim under the Proceedings Against
the Crown Act filed on February 5, 1998, the Braekers allege that
the Ontario government has been negligent in its monitoring, inspection
and enforcement activities related to the dump.
The February 1998 Notice of Claim seeks damages to compensate the Braekers
for loss, injury and harm caused by the government’s regulatory negligence.[66]
Moreover, the lawyer for the plaintiffs, Rick Lindgren of the Canadian
Environmental Law Association, invoked Part VI of the EBR in
support of his client’s action against the Crown. In this case, an
Application for Investigation had not been submitted under the EBR.
However, CELA relied on ss. 84 (6) of the EBR which states that
the requirement to first request an investigation does not apply where
the delay involved would result in harm or serious risk of harm to a
public resource.
The Notice of Claim states that more than 33,000 scrap tires were buried
at the illegal dump in January 1991 by the former owner of the property.
The burial of the tires was supervised by MOE staff. Over the past
seven years the tires have been deteriorating and leaching contaminants
into the local groundwater, which feeds the Braekers’ well at their
farm. The Notice of Claim states that MOE testing in 1994 revealed
that the contaminants from the tires are toxic to fish and other aquatic
life. Moreover, in 1994 a groundwater specialist at the MOE recommended
that the tires be removed. Three years later, the MOE still was unwilling
to act on the problem. Meanwhile, further testing done in 1997 found
water at the site is contaminated with chemicals in concentrations which
greatly exceed levels permitted under the Provincial Water Quality Objectives
(PWQOs).
In March 1998, the Minister of the Environment agreed to start removing
the tires.[67]
Work began in the summer of 1998. The tires will be recycled at a cost
of $40,000 for use in an asphalt mix to be applied to roads in Grey
County. However, the Braekers did not drop their action against the
province.
In addition to section 84 of the EBR,
the plaintiffs are relying upon a number of other causes of action [including
the common law causes such as trespass, nuisance, strict liability and
negligence as well as spill liability (under Part X of the Environmental
Protection Act), and contravention of a municipal by-law]. They
are seeking the following relief:
1. A declaration that the defendants are unlawfully caused, permitted,
or failed to stop the actual or imminent contamination of the plaintiffs’
properties by contaminants emanating from the illegal waste dump.
2. An interim and permanent injunction preventing the use of the property
for any use other than rural uses.
3. A declaration or injunction requiring an environmental restoration
plan to prevent, diminish or eliminate harm to a public resource caused
or likely to be caused by contaminants emanating from the waste dump
and to restore the site to its prior condition.
4. Damages in excess of $1 million.
The ECO is monitoring this case and we intend to provide updates in
future annual reports and future issues of EBRights, our newsletter.
Second Harm to Public Resource Lawsuit Under
the EBR
The first real s. 84 law suit was launched
in the summer of 1999.
Usually ECO staff cannot discuss applications for investigation and
review because we have to treat the specific details of the case as
confidential until the Commissioner reports on them. Moreover we never
release the names of applicants.
In some cases, the applicants self identify at press conferences held
when they launch the applications. In this case some of the information
I am about to discuss was released to the media by the applicants,[68]
so after a request by the conference chair, Doug Thomson I have agreed
to discuss it in general terms.
In June 1999, Dr. John Brennan initiated a harm to a public resource
action against the Simcoe County District Health Unit (SCDHU). In the
early spring of 1999, Brennan had filed a number of applications for
investigation under the EBR. The ECO has not yet received formal notice
of the lawsuit because the Commissioner is not required to post a notice
of the action until it has been approved by the court.[69]
However, we expect to receive the information in the next couple of
weeks.
Brennan and his co-applicant are concerned about sewage systems being
used by Snow Valley Ski Resort. In one application, they allege that
the Simcoe County District Health Unit permitted sewage systems at the
Snow Valley Ski Resort which created an attenuation area containing
cold water fish habitat. The applicants also allege that a consulting
firm performed inaccurate calculations regarding nitrate attenuation
zones which resulted in approval of a sub‑standard septic system.
The MOE refused to undertake this application.
This is the first time that an applicant for an EBR investigation has
decided to launch a public resource action under s. 84 of the EBR.
It seems likely that Dr. Brennan is alleging the EBR investigation by
the ministries (MOE and MNR) was inadequate. Dr. Brennan also is relying
on the public nuisance provisions (s. 103 of the EBR) as another cause
of action.
1 Agenda 21 outlined numerous
principles, goals and activities that governments would strive to
adopt and put into practice in adopting sustainable development as
a common objective. In endorsing Agenda 21, the federal government
agreed to implement certain principles that would result in broad‑based
public participation in decision‑making. In order to meet its
commitment under Agenda 21, the federal government decided to strengthen
legislation like CEPA, 1988.
2 D. Estrin and J. Swaigen
(eds.), Environment on Trial: A Guide to Ontario Environmental
Law and Policy, 3rd Ed. (Toronto: Emond Montgomery, 1993) at 796-97.
The first edition of this book released in 1974 contained one of the
first comprehensive statements on the need for an EBR in Ontario.
3
Mich. Comp. Laws Ann. 691, 1201-1207. For discussions of the
MEPA, see: J.L. Sax and R.L. Conner, “Michigan’s Environmental Protection
Act of 1970: A progress Report” (1972), 70 Michigan Law Review
1003-91; J. Sax, MEPA --Ten Years Later” (November-December 1980),
Michigan Environs 6; and D.K. Slone, “The Michigan Environmental
Protection Act: Bringing Citizen-Initiated Environmental Suits Into
the 1980s” (1984-85), vol. 12, No. 27 Ecology Law Quaterly
291.
4 P. Muldoon & R. Lindgren,
The Environmental Bill of Rights: A Practical Guide (Toronto:
Emond Montgomery Publications Limited, 1995) at 9-10.
5 Government of Ontario,
Report of the Task Force on the Ontario Environmental Bill of Rights.
(Toronto: Queen's Printer, 1992).
6 W.M. Glenn, “Ontario’s Environmental
Registry: Plugging Into Your Rights,” Occupational Health and Safety
Canada, November/December 1995. Glenn describes the recent evolution
of environmental decision making in the following terms:
Since the early 1970s, the dawn of the modern environmental era,
Ontario’s bureaucrats have quietly plotted their strategies in the
proverbial smoke-filled back rooms of the Ministry of Environment.
Almost every regulation, approval, order and prosecution was drafted
in private and then sprung fully-formed on a (largely) unsuspecting
public.
On occasion, a few “concerned stakeholders” — the usual faces from
the big industry associations and prominent environment groups — were
invited to voice their opinions and serve as a surrogate for wider
public consultation. And of course a proponent could always talk
to somebody in the approvals branch, or a polluter to an enforcement
officer. In recent years, the more momentous initiatives, such as
the 3Rs regulations or the industrial discharge standards, have received
a greater public airing.
But it wasn’t until February, 1994, with the enactment
of the province’s Environmental Bill of Rights, that every
member of the Ontario public was formally invited into those (now
smokeless) back rooms.
Glenn may be overstating the case. However, the general point is
well put.
7 Other Canadian environmental rights legislation
includes Quebec’s Environmental Quality Act, the Yukon’s Environment
Act and the Northwest Territories’ Environmental Rights Act.
The Quebec provisions, enacted in 1978, provide a limited right to
go to court and do not really provide a wide range of environmental
rights. The NWT and Yukon laws are comprehensive, and some concepts
from the Yukon’s law were integrated into Ontario’s EBR. In
1992, Alberta created its Environmental Protection and Enhancement
Act (EPEA) and this law provides expanded rights to go to court
to obtain injunctive relief and to seek damages: see ss. 210 and 211
of the EPEA. In addition, Manitoba has adopted new procedures
guaranteeing public input into new regulations and a systematic review
of existing regulations. In late 1994 British Columbia proposed an
Environmental Protection Act (which would have included an
electronic registry) and in 1993 Saskatchewan proposed a Charter
of Environmental Rights and Responsibilities. Neither the BC
proposal nor the Saskatchewan bill was implemented. In addition,
the federal government amended the Auditor General Act in late
1995 to create the position of a federal Commissioner for the Environment
and Sustainable Development under the auspices of the Auditor General.
In the summer of 1999, the federal government also revamped the
Canadian Environmental Protection Act 1) to establish new rights
similar to those contained in the EBR, and 2) create a federal
Environmental Registry for certain activities.
8 For a selection of papers discussing
environmental rights in Europe, see: Martin Fuhr and Gerhard Roller
(eds.), Participation and Litigation Rights of Environmental Associations
in Europe: Current Legal Situation and Practical Experience, Vol.
1. (New York: Verlag, 1991).
9
Sandy Walker, “Ontario’s Environmental Bill
of Rights”, at 20-32; and Paul Stein, “Citizen Rights and Litigation
in Environmental Law: An Antipodean Perspective on Environmental Rights”,
at 271-280; In: Sven Deimann and Bernard Dyssli (eds.), Environmental
Rights: Law, Litigation and Access to Justice (London: Cameron
May, 1995).
10
Personal Communication, Sven Deimann, member
of the Environmental Law International Network, May 13, 1996.
13 N. Zimmermann
et al., “Community Right to Know: Improving Public Information About
Toxic Chemicals” (1995), 5 Journal of Environmental Law and Practice
95 at 97-8.
14 Using information available
from a range of sources including the US EPA’s TRI, this free service
allows individuals to get information on pollution loads and health
hazards for 17,000 polluting facilities in the US and covers more
than 2,000 counties and every US state. With a few clicks of a mouse,
a user can find out which companies are the top polluters and the
types of chemicals they release. The system uses a health-based
ranking system so that toxic chemicals are weighted and ranked in
terms of severity of health hazards. (The TRI and the National Pollutant
Release Inventory in Canada have been criticized by industry for failing
to do this kind of weighting.) For more information, see Environmental
Defence Fund, “Giant Step For Public’s Right-to-Know About Chemical
Hazards,” Press Release, April 15, 1998. Available on the Internet
at www.edf.org.
15 On November 22, 1999 the Globe and Mail reported that
a web site for EC’s Atmospheric Environment (weather) Service in the
Pacific and Yukon Region had an advertisement for a free car and a
link to a site called cars.com. Our understanding is that these types
of links will not be included on the CEPA Registry.
16
Harvey Lerer, Director General, CEPA Office,
speaking on October 27, 1999 at the CEPA Registry Workshop, Environment
Canada, October 27-28, 1999, Hull, Quebec.
18 There are 57
different public notice requirements in various sections of CEPA,
1999 related to a range of EC activities. Most of these requirements
specify that the official notices under CEPA, 1999 are to be
provided in the Canada Gazette, Part 1.
19 All CEPA, 1999 regulations
will be downloaded from the web site for the Canada Gazette by
the CEPA Registry office on the Monday after they are published and
then posted on the CEPA Registry. This will be a great service because
hunting through the large Canada Gazette PDF files (in Adobe
Acrobat) for CEPA, 1999 regulations and notices is time consuming
and sometimes frustrating.
20 EC staff have expressed
that the EC will probably develop a standard text that appears with
every notice in the Gazette and will indicate that people filing
objections should consider the implications of the Registry when they
send their objections to the Minister.
21 One reason this threshold
was established is that the EBR Registry applies to decision made
by 13 different ministries and relates to the administration of more
that 20 different environmental laws. The CEPA Registry
applies only to matters that are specific to CEPA, 1999.
23 Section 328 (1) of CEPA, 1999
provides that the Minister may make regulations
(a) prescribing the fees or a scale of fees or the
manner of determining the fees to be paid for a service, the use of
a facility or any right, privilege, process or approval;
(b) prescribing the persons or classes of persons
by whom or on whose behalf the fees are to be paid and requiring the
fees to be paid by those persons or classes of persons;
(c) exempting any person or class of persons from
the requirement to pay any of those fees; and
(d) generally, in respect of any condition or any
other matter in relation to the payment of fees for a service, facility,
right, privilege, process or approval referred to in paragraph (a).
24 Other jurisdictions
that have enacted similar legislation containing the right to request
an investigation: Alberta Environmental Protection Act and Enhancement
Act, section 186 (1); Nova Scotia Environment Act, section
115; Northwest Territories Environmental Rights Act, section
4 (2); and Yukon Environment Act, section 14 (1).
30
Although there is no express age requirement in order to submit an
application for investigation under the EBR, applicants must
include an affidavit with their application pursuant to section 74
(4). Young children who understand the nature of an oath can give
sworn or affirmed evidence: section 18 (1) Evidence Act, RSO
1990, c.E.23. Thus, there is an implicit but undefined age requirement
in the EBR.
31
The term “individual” is not defined in CEPA, 1999 or the Canada
Interpretation Act, RSC 1985, c. I-21. Furthermore, in Rudolph
Wolff & Co. v. Canada, [1990] 1 SCR 695, the Supreme
Court of Canada referred to an “individual” as being a “single human
being”, thereby excluding corporations.
32 The corporation must
be a resident of Ontario pursuant to section 74 of the EBR.
As a matter of policy, the ECO accepts up-to-date annual returns under
either the Corporations Information Act, RSO 1990, c. C.39,
or the Ontario Business Corporations Act, RSO 1990, c. B.16,
as proof that a corporate applicant is a valid and existing corporation
resident in Ontario. Extra-provincial corporations must provide additional
proof that they are actually resident in Ontario. In order for a corporation
to be considered resident in Ontario it must carry on its business
in Ontario and have its head office or chief place of business within
Ontario: Ashland Co. v. Armstrong , [1906] 11 OLR 414 at 415
(HC); Canada Life Assurance Co. v. Canadian Imperial Bank of Commerce
(1979), 98 DLR (3d) 670 at 677.
33 Muldoon, P. and M. Winfield,
“Submission on Bill C-32 the Canadian Environmental Protection
Act.” October 1998, p. 40.
36 Section
77 (2)(a) EBR. It is noteworthy that, to date, ministries have not relied on the
frivolous and vexatious provisions as a justification for not investigating
in section 77 (2) (a). In most cases, they rely on sections 77 (2)
(b) or (c). Similarly, CEPA office staff say
that they have never had a frivolous or vexatious application. However,
there are some cases where applications related to Fisheries Act
contraventions are made under CEPA and these are forwarded
to appropriate staff in DFO.
42
Module 7, Applications for Investigation,
p. 27, Ontario’s Environmental Bill of Rights - General Information
Registry, and Procedures Manual for Ministry Staff. May - June
1994.
43
See Alberta Environmental Protection Act
and Enhancement Act, section 186 (1); Nova Scotia Environment
Act, section 115; Northwest Territories Environmental Rights
Act, section 4 (2); and Yukon Environment Act, section
14 (1).
46
Government of Canada, Standing Committee on
Environment and Sustainable Development, It’s About Our Health!
Towards Pollution Prevention – CEPA Revisited, Report of
the Committee (Ottawa: House of Commons, June 1995), p. 226.
49 Muldoon, P. and M. Winfield,
“Submission on Bill C-32 the Canadian Environmental Protection
Act.” October 1998, p. 44.
62
In June 1997, the Minister of Agriculture, Food and Rural Affairs
tabled Bill 146, the Farming and Food Production Protection Act.
Bill 146 will replace the Farm Practices Protection Act, passed
in 1988. The Farm Practices Protection Act protects farmers
from nuisance lawsuits for odour, noise or dust resulting
from normal farm practices. Bill 146 is similar
to the Farm Practices Protection Act, but it extends the nuisance
categories to include flies, light, smoke and vibration, and contains
other expanded protections of farmers’ rights. In addition, no municipal
by-law can restrict a normal farm practice.
63 Sub-section 84(2) of the
EBR states that an action may not be launched unless an Application
for Investigation has been submitted and the plaintiff did not receive
a response within a reasonable time or has received a response that
is not reasonable. An exception to this rule is provided by sub-section
84(6) which states that ss. 84(2) does not apply where the delay in
complying (by preparing an Application) would result in significant
harm to a public resource.
64
In CEPA, 1999, “environmental protection
alternative measures”' means measures, other than judicial proceedings,
that are used to deal with a person who is alleged to have committed
an offence under that Act.
65
This case is directly related to a series of Environmental
Appeal Board decisions on the Karge case: see Re: Karge (1996),
21 CELR (N.S.) 5 (Ont. Env. Appeal Board). In these two decisions,
the Ontario's Environmental Appeal Board ruled on the liability of
an innocent lender. Karge, a farmer living on a property adjacent
to Braeker, sold his farm to a young couple and took back a second
mortgage. The purchasers did not pay the mortgage, but they did devastate
the farm. They damaged the house, cut down the woodlot, sold off buildings,
and illegally brought in mounds of tires. A neighbour alerted the
MOE when there were 15,000 tires. The purchasers brought in another
15-20,000 tires during the time that the MOE visited the site and
wrote letters. The MOE then allowed the purchaser to bury the tires
on the farm, without notice to the mortgagee and over the neighbours'
objections. This appears to have raised the cost of removing the tires
from $30,000 to more than $140,000, more than the total value of the
farm. Shortly thereafter, the purchaser disappeared. To protect what
was left of the farm, the farmer incorporated a company to buy certain
rights from the first mortgage. Neither he nor the company formally
took possession of the farm, but he did (to keep the house insured)
put tenants on the property, at a net loss.
The MOE prosecuted the purchaser; a large fine was imposed, but not
collected. The MOE then ordered the farmer to dig up and dispose of
the tires. Karge appealed. In its decision, the Board agreed that
the farmer had "charge and control" of the farm, because
he had selected tenants, paid expenses and collected rent. However,
he was innocent, especially in contrast to the MOE. The EAB therefore
made a tentative ruling that the farmer should not be further victimised.
He does have to pay for removal of the tires from the site, but only
out of any net profits he may make from the land, after recovering his mortgage. He would not have to
pay to dig the tires up and clean them.
The MOE tried to persuade the EAB to change this ruling. The Appeal
Board agreed to consider changing its ruling if the MOE would clarify
its policies regarding the open-ended liability imposed on mortgagees
for the payment of clean-up costs. Supplementary reasons were issued
in May 1997: see Re: Karge (1997), 23 CELR (N.S.) 299 (Ont.
Env. Appeal Board) In its supplementary reasons, the EAB found that
the MOE must act fairly when making these types of orders. The mortgagee,
Mr. Karge, is now appealing the EAB decision to the Divisional Court
in an attempt to have it overturned.
66
Rick Lindgren, CELA, Letter to the Dianne
Dougall, Director, Crown Law Office - Civil, Ministry of Attorney
General, January 30, 1998.
67
Roberta Avery, “Sterling Agrees to have buried
tires removed,” Toronto Star, March 17, 1998, p. A8.
See R. Ferguson,
“Pop Probe tests Environmental Bill of Rights” CP Wire (14
March 1995); D. Draper, “Refillable Pop Probe Begins” St. Catherines
Standard (15 March 1995) 15; and A. Tobin, “Ontarians Flex Environmental
Muscle” in The [Halifax] Chronicle Herald (2 March, 1995).
68 Section 87 of the EBR
requires the plaintiff in a harm to a public resource court action
to bring a motion to the court for directions relating to how notice
of the action should be given. Sub-section 87(2) states that the
ECO shall promptly
place the notice on the Registry after it is forwarded to the ECO
by the plaintiffs and sub-section 87(1) indicates that the court may
provide other forms of notice.
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