Chapter Fifteen - Environmental Protection

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Agreement on Internal Trade
September 1994

Page Index

1. Article 1500: Application of General Rules
2. Article 1501: Relationship to Other Chapters
3. Article 1502: Scope and Coverage
4. Article 1503: Extent of Obligations
5. Article 1504: Relationship to Other Agreements
6. Article 1505: Basic Rights and Obligations
7. Article 1506: Transparency
8. Article 1507: Non-Conforming Measures
9. Article 1508: Harmonization
10. Article 1509: Canadian Council of Ministers of the Environment
11. Article 1510: Consultations and Assistance of Council
12. Article 1511: Definitions
13. Annex 1503: Other Governmental and Non-Governmental Bodies Covered by Chapter Fifteen
14. Annex 1507.2: Non-Conforming Environmental Measures
15. Annex 1510.1: Consultations and Assistance of Council

Article 1500: Application of General Rules

For greater certainty, Chapter Four (General Rules) applies to this Chapter, except as otherwise provided in this Chapter.

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Article 1501: Relationship to Other Chapters

Subject to Article 1508(3), in the event of an inconsistency between this Chapter and any other chapter, the Parties shall endeavour to reconcile the inconsistency.

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Article 1502: Scope and Coverage

This Chapter applies to environmental measures adopted or maintained by a Party that may affect the interprovincial mobility of people or interprovincial trade in goods, services or investments.

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Article 1503: Extent of Obligations

Further to Article 102(1)(c) (Extent of Obligations), each Party is responsible for compliance with this Chapter by its bodies listed in Annex 1503.

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Article 1504: Relationship to Other Agreements

Nothing in this Agreement shall be construed to affect the rights and obligations of the Parties under environmental agreements, including conservation agreements, in effect on the date of entry into force of this Agreement.

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Article 1505: Basic Rights and Obligations

1. The Parties shall, in dealing with trade matters, take into account the need to restore, maintain and enhance the environment.
2. For greater certainty, each Party has the right to establish its own environmental priorities and levels of environmental protection in its territory in accordance with this Agreement and to adopt or modify its environmental measures accordingly.
3. Each Party has the right to adopt or maintain differing environmental standards based on the need to protect and enhance the environment.
4. Each Party shall ensure that its measures provide for high levels of environmental protection and shall continue to endeavour to improve those levels of protection.
5. No Party shall waive or otherwise derogate from, or offer to waive or otherwise derogate from, its environmental measures as an encouragement for the establishment, acquisition, expansion, ongoing business activities or retention in its territory of an enterprise.
6. Where appropriate, the Parties shall take environmental considerations into account in the dispute resolution procedures and harmonization processes set out in this Agreement.
7. Further to Article 404(c) (Legitimate Objectives) and Annexes 405.1(5) and 405.2(5), an environmental measure shall not be considered to be more trade restrictive than necessary to achieve a legitimate objective if the Party adopting or maintaining the measure takes into account the need to minimize negative trade effects when choosing among equally effective and reasonably available means of achieving that legitimate objective.
8. For greater certainty, an environmental measure shall not be considered to be inconsistent with this Agreement by reason solely of the lack of full scientific certainty regarding the need for the measure.

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Article 1506: Transparency

A Party required to notify any other Party of a proposed environmental measure under Article 406(2) (Transparency) shall instead notify the Council and the Council shall notify the other Parties.

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Article 1507: Non-Conforming Measures

1. This Agreement does not apply to:
   1. any existing non-conforming environmental measure, for two years after the date of entry into force of this Agreement, and thereafter as set out in Annex 1507.2 in accordance with paragraph 2;
   2. the continuation or prompt renewal of a measure referred to in paragraph (a); or
   3. an amendment to a measure referred to in paragraph (a) to the extent that the amendment does not decrease the conformity of the measure, as it existed immediately before the amendment, with this Chapter.
2. Each Party may, within two years after the date of entry into force of this Agreement, set out in Annex 1507.2 any existing non-conforming environmental measure maintained by it.
3. On identification of non-conforming environmental measures, each Party shall endeavour to develop a work plan to eliminate those measures by January 1, 2000.

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Article 1508: Harmonization

1. The Parties shall endeavour to harmonize environmental measures that may directly affect interprovincial mobility and trade, following principles such as those set out in the "Statement of Interjurisdictional Cooperation on Environmental Matters" (Winnipeg: CCME, 1991) and "Rationalizing the Management Regime for the Environment: Purpose, Objectives and Principles" (Winnipeg: CCME, 1994) any other applicable principles established by the Council, and this Agreement.
2. In harmonizing environmental measures, the Parties shall maintain and endeavour to strengthen existing levels of environmental protection. The Parties shall not, through such harmonization, lower the levels of environmental protection.
3. In the event of an inconsistency between Article 405 (Reconciliation) and this Article, this Article prevails to the extent of the inconsistency.

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Article 1509: Canadian Council of Ministers of the Environment

1. The Council shall:
   1. facilitate a process for the harmonization of environmental measures in accordance with Article 1508;
   2. provide a forum for Parties to consult on issues relating to environmental measures, including the provision of technical advice and the development of recommendations;
   3. administer the dispute resolution procedures provided in this Chapter;
   4. notify Parties of proposed environmental measures in accordance with Article 1506; and
   5. monitor matters addressed in this Chapter.
2. The Council shall prepare an annual report on its activities related to this Agreement and shall share the report and any other relevant information with the Committee.

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Article 1510: Consultations and Assistance of Council

1. Where an environmental measure is alleged to be inconsistent with this Chapter, dispute resolution procedures shall be initiated in accordance with Annex 1510.1.
2. In order to facilitate the resolution of all disputes involving any significant environmental aspects, the Parties:
   1. should make use of environmental experts in all conciliation and mediation proceedings as well as during panel hearings; and
   2. may take appropriate steps to ensure that a sufficient number of environmental experts are nominated to the roster established under Article 1705 (Establishment of Panel) so as to be available for environmental disputes and other disputes involving environmental aspects.

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Article 1511: Definitions

In this Chapter:

Council

means the Canadian Council of Ministers of the Environment;

harmonization

means to adjust environmental measures to minimize unnecessary differences between the Parties without compromising the achievement of the legitimate objectives of each Party.

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Annex 1503
Other Governmental and Non-Governmental Bodies Covered by Chapter Fifteen

Newfoundland

• None

Nova Scotia

• None

Prince Edward Island

• None

New Brunswick

• None

Quebec

• RECYC-Quebec

Ontario

• Environmental Appeal Board
• Environmental Assessment Board
• Niagara Escarpment Commission

Manitoba

• Clean Environment Commission
• Tire Stewardship Board
• Multi-Material Stewardship Board
• Manitoba Ozone Protection Industry Association Inc.

Saskatchewan

• None

Alberta

• Environmental Appeal Board
• Natural Resources Conservation Board
• Special Waste Management Corporation
• Tire Recycling Management Board

British Columbia

• Environmental Appeal Board

Northwest Territories

• None

Yukon Territory

• Yukon Fish and Wildlife Management Board
• Salmon Subcommittee of the Fish and Wildlife Management Board

Canada

• Resource management boards established by aboriginal land claims agreements

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Annex 1507.2
Non-Conforming Environmental Measures

(To be completed within two years after the date of entry into force of this Agreement.)

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Annex 1510.1
Consultations and Assistance of Council

General

1. Consultations or alternative dispute resolution assistance are available under this Annex. The participants in a dispute may use the consultation process and the alternative dispute resolution procedures provided in this Annex and may waive either or both of them with the agreement of all participants in the dispute.
2. The participants shall exchange all information necessary to enable a full examination of the matter in dispute. In so doing, they shall treat any confidential information exchanged on the same basis that it is treated by the Party or person providing the information.
3. Where requested by a body listed in Article 1703(5) (Assistance of Committee), the Council may provide any assistance that it considers appropriate in the circumstances for the resolution of disputes under dispute resolution procedures provided in other chapters of this Agreement.

Consultations

4. A Party or person may make a written request for consultations with another Party regarding any actual or proposed measure that it considers is or would be inconsistent with this Agreement.
5. The request shall be delivered to the Party complained against, the Council and the Secretariat, and shall specify:
   1. the measure that is considered to be inconsistent; and
   2. the relevant provisions of this Agreement.
6. Any other Party may participate in the consultations where it has a substantial interest in the matter, within the meaning of Article 1704(10) (Request for Panel).
7. Consultations shall begin within 10 days after the date of delivery of the request.
8. If the participants agree, the Council may facilitate the consultations.
9. Consultations shall be confidential and without prejudice to the rights of the consulting participants.

Requests for Assistance

10. Where the matter is not resolved to the mutual satisfaction of the consulting participants within:
    1. 40 days after the date of delivery of the request for consultations; or
    2. such other period of time as the consulting participants may agree;
    3. any consulting participant may make a written request to the Council for assistance in resolving the matter. The requesting participant shall deliver notice of its request to the other consulting participants and the Secretariat.
11. Where the consulting participants agree, the Council may assist them in resolving the dispute by:
    1. providing technical expertise;
    2. establishing working groups or fact-finding bodies;
    3. facilitating the use of other dispute resolution mechanisms such as conciliation and mediation; and
    4. making recommendations.
12. The consulting participants shall make every effort to resolve the dispute at this stage of the proceedings.
13. Where the matter is not resolved to the mutual satisfaction of the consulting participants within:
    1. 50 days after the date of delivery of the request for assistance; or
    2. such other period of time as the consulting participants may agree;
    any consulting participant may have recourse to Chapter Seventeen (Dispute Resolution Procedures).
14. Unless the consulting Parties otherwise agree, the costs incurred by the Council in facilitating consultations shall be shared equally between the consulting Parties. Each consulting Party shall be responsible for its own costs incurred during the consultations.
15. Access to markets gained through the dispute resolution process shall apply reciprocally to the Parties involved.

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