Canada-Chile Agreement on Environmental Cooperation (CCAEC)

Article Analysis of Agreement

Overview

The Canada-Chile Agreement on Environmental Cooperation (CCAEC) provides a framework for bilateral cooperation on environmental issues. The Agreement commits the Parties to effectively enforce their environmental laws and to work cooperatively to protect and enhance the environment and promote sustainable development.

The Agreement contains remedies that are available to help ensure effective enforcement. Citizens and NGO's can make submissions on enforcement matters asserting that Canada or Chile is failing to effectively enforce its environmental law. These submissions will be considered by an independent Joint Submission Committee and can result in an independent assessment through the preparation of a factual record. A consultation and dispute settlement process is available to the Parties where a persistent pattern of failure to effectively enforce an enviromnental law is alleged. This process can lead to the creation of an arbitral panel which can recommend a remedial action plan and in some cases impose a monetary enforcement assessment.

Environmental cooperation is promoted by a Canada-Chile Environmental Cooperation Commission which develops and implements an annual program of cooperative work. The Commission is overseen by a ministerial Council which is supported by a Joint Public Advisory Committee, a Joint Submission Committee and assisted by National Secretariats.

PREAMBLE

The Preamble sets out the shared foundations on which the Agreement is based. It highlights common beliefs in the importance of conservation and protection of the environment and the promotion of sustainable development. It recognizes the growing economic and social links between Canada and Chile, including the Canada-Chile Free Trade Agreement (CCFTA), and the desirability of building on the progress in environmental cooperation achieved through the existing Canada-Chile Memorandum of Understanding (MOU) on Environmental Cooperation. It expresses the shared desire of the Parties to facilitate the accession of Chile to the North American Agreement on Environmental Cooperation.

PART ONE

OBJECTIVES

Article 1: Objectives sets out the ten objectives of the Agreement. The first three objectives establish the broad environmental goals of the Agreement including the protection and improvement of the environment in the Party's territories, the promotion of sustainable development, and to increase environmental cooperation. The next two focus on trade and commit the parties to support the environmental goals of the CCFTA and to avoid creating trade distortions or new trade barriers. The next three focus on cooperation to improve environmental laws, enhanced compliance with, and enforcement of, environmental laws and transparency and public participation in the development of environmental laws. The last two promote economic efficiency and effectiveness in environmental measures and pollution prevention.

PART TWO

This Part contains the commitments that Parties make with respect to their own jurisdiction. While respectful of national sovereignty, taken as a whole, these obligations direct a Party to establish and maintain a comprehensive, accountable, open and transparent environmental management system.

Article 2: General Commitments states that each party shall periodically report on the state of the environment,;develop environmental emergency preparedness measures; promote environmental education; further environmental science and technology development; assess environmental impacts; and promote economic instruments to achieve environmental goals. It obliges Parties to consider implementing in their law any limits for specific pollutants agreed by the Council of the Canada-Chile Environmental Cooperation Commission and to consider prohibiting the export to the other Party of any pesticides or toxic substances whose use they have prohibited. It also obliges Parties to notify the other Party when such use of a pesticide or toxic substance has been prohibited or severely restricted.

Article 3: Levels of Protection recognizes the right of each Party to establish its own domestic levels of environmental protection, environmental development policies, and environmental laws and regulations. Each Party shall ensure its laws and regulations provide for high levels of environmental protection and shall strive to improve them.

Article 4: Publication contributes to openess and transparency. Parties shall ensure their laws, regulations procedures and administrative rulings are promptly published and, to the extent possible, shall publish proposed measures in advance and provide interested persons an opportunitv to comment.

Article 5: Government Enforcement Actions is a key article in the Agreement. Parties commit to effectively enforce their environmental laws and regulations through appropriate government action. The article provides 12 examples of appropriate government action such as; appointing and training inspectors; monitoring compliance and investigating suspected violations; seeking voluntary compliance agreements; promoting environmental audits; encouraging mediation and arbitration; using licenses, permits and authorizations; initiating judicial, quasijudicial and administrative enforcement proceedings; providing for search and seizure; and issuing administrative orders.

The article specifies that Parties shall ensure that judicial, quasijudicial or administrative proceedings are available to sanction or remedy violations of environmental laws and that sanctions and remedies are appropriate and include compliance agreements, fines, imprisonment, injunctions, closure of facilities and the cost of containing or cleaning up pollution.

Article 6: Private Access to Remedies The Agreement requires that each Party shall ensure that interested persons can request the investigation of alleged violations of environmental laws and that these requests be given due consideration in accordance with law. In addition, each Party shall ensure appropriate access to enforcement-related administrative, quasijudicial and judicial proceedings for persons with a legally recognized interest.

Private remedies shall include; rights to sue for damages; to seek sanctions or remedies; to request a Party take action to enforce environmental laws and regulations; and rights to seek injunctions.

Article 7: Procedural Guarantees addresses fairness, openness and equitability in administrative, quasijudicial or judicial proceedings. Each party shall ensure such proceedings comply with the law, are open to the public, and are not unnecessarily complicated. Each Party shall ensure that final decisions are made available, in writing, without undue delay, and are based on the evidence, and state the reasons for the decision. Each Party shall ensure that the tribunals that conduct such proceedings are impartial and independent and the that parties to such proceedings can seek review and, where warranted, correction of decisions.

PART THREE

CANADA-CHILE COMMISSION FOR ENVIRONMENTAL COOPERATION

Article 8: The Commission provides for the establishment of the Canada-Chile Commission for Environmental Cooperation.

SECTION A: THE COUNCIL

Article 9: Council Structure and Procedures indicates that the Council, established under the Commission, is comprised of Environment ministers or equivalent representatives or their designees. The Council shall establish its own rules and shall meet at least once a year in regular session or, additionally, at the request of either Party. The Council shall hold a public meeting in the course of all regular sessions. It may establish working groups and seek the advice of experts. All decisions and recommendations of the Council shall be taken by mutual agreement except as Council may otherwise decide.

Article 10: Council Functions describes the Council's functions. The Council serves as a forum for discussion between the Parties on environmental matters. The Council is responsible for overseeing the implementation and further elaboration of the Agreement including, within 3 years of entry into force, conducting a review of its operation and effectiveness. The Council oversees the functions assigned to the National Secretariats and approves the annual program of work and budget of the Commission. The article provides a list of 18 potential areas of cooperative work in which the Council may develop recommendations. The article calls on the Council to strengthen cooperation in the development and continuing improvement of environmental laws and regulations through information exchange and development of recommendations on greater compatibility of standards, regulations and conformity assessment procedures. The Council shall develop recommendations regarding public access to information and appropriate limits for specific pollutants. It shall cooperate with the CCFTA Free Trade Commission by providing information, by assisting in consultations, by contributing to the prevention or resolution of environment related trade disputes, and by considering, on an ongoing basis, the environmental effects of the CCFTA.

SECTION B:

NATIONAL SECRETARIATS

Article 11: National Secretariat states that each party shall establish a National Secretariat and designate an Executive Secretary responsible for its administration and management. The National Secretariats shall provide technical, administrative and operational support to the Council. They shall jointly submit the annual work program and budget for approval of the Council. The annual program of work shall identify how its implementation will be financed and implemented. The National Secretariats and the Joint Submissions Committee will safeguard from disclosure information they receive that could identify a person or non-government organization wishing not to be identified. They will also safeguard from public disclosure any information designated confidential or proprietary by the individual or NGO providing it.

Article 12: The Joint Submission Committee This committee is comprised of two members; one from each Party. The members are selected for a three year term, renewable for one term. The Joint Submission Committee is responsible for ensuring the objective, independent administration of Article 14, Submissions on Enforcement Matters.

Article 13: Annual Report of the Commission specifies that the National Secretariats shall jointly prepare an annual report of the Commission. The report will address the activities and expenses of the Commission; the approved program and budget for the subsequent year; actions taken with respect to obligations; recommendations made on any matter within the scope of the Agreement; and shall periodically address the state of the environment in the territories of the Parties.

Article 14: Submissions on Enforcement Matters describes a process by which individuals and NGO's can assert a Party is failing to effectively enforce an environmental law. Submissions may be sent to either National Secretariat and will be circulated to the other National Secretariat. They consider the submission against seven criteria such as; that it is in writing in one of the official languages of the Agreement; that it clearly identified the submitter; that it provides sufficient information to allow the review of the submission; that it is aimed at promoting enforcement; that the matter has been communicated in writing to the relevant authorities; and that it is is filed by a person or organization residing or established in the territory of a Party. If either National Secretariat finds the submission meets these criteria, it is forwarded to the Joint Submission Committee.

The Joint Submission Committee must establish whether the submission merits requesting a response from the Party. They are guided by four considerations; whether the submission alleges harm to the submitter; whether it raises matters whose further study in this process would advance the goals of the Agreement; whether available private remedies have been pursued; and whether the submission is drawn exclusively from mass media reports.

If a response from a Party is requested, the Party shall advise the Joint Submission Committee with 30 or in exceptional circumstances 60 days whether the matter is the subject of a pending judicial or administrative proceeding or whether the matter has previously or is presently being considered by the Secretariat of the Commission for Environmental Cooperation of the North American Agreement on Environmental Cooperation. Under these circumstances, the Joint submission Committee shall proceed no further. The Party may submit any other information, such as whether the matter was previously the subject of a judicial or administrative proceeding or whether private remedies are available and whether they had been pursued.

Article 15: Factual Record provides that the Joint Submission Committee can recommend to the Council preparation of a factual record on a submission where it considers it warranted. A factual record will be prepared if either Party so decides. Where the submission originates with an organization or enterprise organized under the laws of a province not participating in the Agreement, both Parties must agree that a factual record be prepared.

The factual record shall be prepared by an expert selected from a roster of experts in environmental matters established within 6 months of the coming into force of the Agreement. The National Secretariat of the Party not involved in the submission will commission the factual record.

In preparing a factual record the expert in environmental matters shall consider information furnished by a Party and may consider other relevant technical scientific or other information that is publicly available, submitted by persons NGO's or the Joint Public Advisory Committee or developed by independent experts. Following submission of the draft factual record to Council, Parties have 45 days within which to provide comments on its accuracy. These comments will be incorporated as appropriate in the final factual record. The final factual record will be submitted to Council at the request of either party. Council will make the factual record public with 60 days following its submission.

Section C: Advisory Committees

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