Memorandum of Understanding

Memorandum of Understanding Between the Minister of the Environment of Canada and the Chief Review Officer

The parties to this Memorandum of Understanding agree to the following:

1. Introduction

   • 1.1 Purpose of Memorandum of Understanding

     The purpose of this Memorandum of Understanding ("MOU") is to clarify the operational, administrative, financial, auditing and reporting relationships of the parties.

     This MOU and the legislation governing Environmental Protection Review Canada ("EPRC") shall be used together to determine how the EPRC should govern itself. This MOU does not affect, modify, limit or interfere with the responsibilities of the parties under law.

   • 1.2 Parties

     The Parties to this MOU are the Minister of the Environment and the Chief Review Officer.

   • 1.3 Definitions

     In this MOU:

     1. "CEPA, 1999" refers to the Canadian Environmental Protection Act, 1999;

     2. "Chief Review Officer" refers to the Chief Review Officer appointed under Section 244 of the Canadian Environmental Protection Act, 1999;

     3. "Assistant Deputy Minister" refers to the Assistant Deputy Minister, Human Resources and Service Innovation of Environment Canada;

     4. "EC" refers to Environment Canada;

     5. "Government" refers to the Government of Canada;

     6. "EPRC" refers to Environmental Protection Review Canada, an organization consisting of the Chief Review Officer, Review Officers and supporting staff; and,

     7. "Minister" refers to the Minister of the Environment.

   • 1.4 EPRC's Legislative Authority and Mandate

     • 1.4.1 The legislative authority of the Chief Review Officer and of the Review Officers is set out in CEPA, 1999.

     • 1.4.2 The Parties recognize that the principal mandate of EPRC is to provide fair, impartial, efficient and timely environmental adjudication, including mediation of disputes between the parties before EPRC.

   • 1.5 Duration of Agreement

     • 1.5.1 This MOU becomes effective on the date of its signature by the parties.

     • 1.5.2 This MOU will be in effect for five years or until the parties agree to a new MOU.

   • 1.6 Processes for Review and Amendment

     • 1.6.1 This MOU will be reviewed:

       1. at the written request of either party;

       2. if the legislative mandate of the Chief Review Officer and/or of the Review Officers is significantly amended; or,

       3. three months prior to the expiry of its term.

     • 1.6.2 The parties may amend this MOU by written mutual consent.

2. Guiding Principles

   The parties agree that they will adhere to the following principles in their relationship:

   1. EC recognizes that the Chief Review Officer and the Review Officers exercise statutory powers and perform statutory duties in accordance with their mandate under CEPA, 1999. Their decisions must be made and be seen to be made independently and impartially.

   2. EC recognizes that the Chief Review Officer and the Review Officers operate at "arm's length" from EC.

   3. The Chief Review Officer acknowledges that she is accountable to the Minister for the exercise of her mandate. Accountability is a fundamental principle to be observed in the management, administration and operations of the EPRC.

   4. As a government entity, the EPRC conducts itself according to the management principles of the Government. These principles include ethical behaviour, accountability, excellence in management, wise use of public funds, high-quality service to the public and fairness in the marketplace.

   5. The EPRC and EC must avoid duplication of services.

3. Consultation and Communications

   • 3.1 The parties recognize that the timely exchange of information and consultation are essential to their success in discharging their respective administrative responsibilities. Such exchange and consultation must respect, and be limited by, the independence of the EPRC in the exercise of its quasi-judicial duties.

   • 3.2 Nothing in this MOU is intended or shall be interpreted to encourage, authorize or require any communication (other than through counsel or agent before the EPRC) between EC (including the Minister and his staff) and the Chief Review Officer (or a Review Officer) with respect to a matter pending or ongoing before the EPRC.

   • 3.3 The parties therefore agree that:

     1. EC will consult with the Chief Review Officer on initiatives proposed to amend the legislation or regulations that govern EPRC's mandate or operations or that otherwise have significant impact on the EPRC. EC will also consult with the Chief Review Officer on any review of EPRC's mandate or assessment of the continuing public need for its services.

     2. The Chief Review Officer will advise the Minister and/or Assistant Deputy Minister on public communication strategies and publications related to the EPRC and the results of stakeholder and other public consultations and discussions.

     3. The Chief Review Officer will keep the Minister and his officials advised of issues or events that concern or can reasonably be expected to concern them in the exercise of ministerial responsibilities and ensuring that matters relating to the EPRC that are of importance to EC are brought to the attention of the Minister or his officials in a timely fashion.

     4. Inquiries received by the Minister's Office regarding a case in progress at EPRC will be redirected without comment to EPRC. Any response made by the Minister's Office to the inquiring party will indicate that the inquiry has been forwarded to EPRC and that the Minister cannot interfere with an adjudicative proceeding.

4. Responsibilities and Accountability

   • 4.1 The Minister of the Environment

     1. The Minister is accountable to Parliament for the EPRC's fulfillment of its mandate and its compliance with government administrative policies; for these purposes, the Minister reports, as appropriate, to Parliament on the EPRC's affairs.

     2. The Minister will make himself available on a reasonable basis for meetings or discussions with the Chief Review Officer concerning the mandate and activities of EPRC.

   • 4.2 The Chief Review Officer

     • 4.2.1 The Chief Review Officer is accountable to the Minister for ensuring that the EPRC carries out the responsibilities assigned under the CEPA, 1999 and any other applicable legislation and for ensuring that the EPRC complies with all applicable legislation, including Treasury Board Directives and this MOU.

     • 4.2.2 Furthermore, having consideration for the impartiality and independence of the EPRC, the Chief Review Officer is responsible for:

       1. directing the affairs of the EPRC and taking any necessary actions to fulfill its mandate, as set out in CEPA 1999;

       2. ensuring that the EPRC provides a high quality of service to the public in carrying out its responsibilities, including providing services in both official languages in accordance with the Official Languages Act;

       3. ensuring the timely preparation and public availability in English and French of policy guidelines, practice directions and procedural rules respecting the conduct of proceedings and activities of the EPRC;

       4. meeting with the Minister as needed, but no less than annually, to discuss issues relating to the delivery of the EPRC's mandate;

       5. ensuring that public funds are used with integrity and honesty and ensuring that the EPRC operates within the approved funding in the fulfillment of its mandate;

       6. ensuring that Review Officers make appropriate use of the service and facilities of other departments, boards and agencies in performing their functions;

       7. ensuring that the Review Officers are aware of the General Principles of Conduct for Members of Federal Administrative Tribunals issued by the Office of the Ethics Counsellor. The Chief Review Officer may also establish more detailed policies and procedures governing conflict of interest and the ethical conduct of appointments, in consultation with the Office of the Ethics Counsellor;

       8. attending and/or making presentations before Cabinet or committees of Cabinet or Parliament or Parliamentary Committees on matters concerning the affairs of the EPRC when requested to do so by the Minister;

       9. notifying the Minister of appointment vacancies and making recommendations to the Minister on appointments and reappointments of Review Officers;

       10. evaluating the performance of Review Officers, as appropriate;

       11. monitoring the performance of the EPRC;

       12. providing the Minister with an Annual Report following the end of the fiscal year setting out the activities, hearings, performance indicators and budget of the EPRC;

       13. cooperating with any periodic review directed or requested by the Minister or Assistant Deputy Minister;

       14. carrying out such responsibilities as may be properly delegated to the EPRC by the Minister;

       15. taking reasonable steps to ensure that the public, the legal community, and other possible stakeholders are aware of the mandate and activities of the EPRC; and,

       16. conveying to the Minister copies of each decision it takes or his officials as the decision is issued.

   • 4.3 The Assistant Deputy Minister

     • 4.3.1 The Assistant Deputy Minister is accountable to the Deputy Minister and the Minister for the performance of the Department in providing appropriate and necessary support for EPRC.

     • 4.3.2 The Assistant Deputy Minister is responsible for:

       1. meeting with the Chief Review Officer on a timely basis as necessary; and,

       2. providing administrative, financial and other necessary support to EPRC.

5. Administrative Support

   • 5.1 EC is committed to providing EPRC with administrative support services, either directly or through a service agreement with another institution, such as the Canadian Artists and Producers Professional Relations Tribunal (CAPPRT). The services provided to EPRC will be at least equivalent to those currently provided to the EPRC by the Canadian Artists and Producers Relations Tribunal.

   • 5.2 EC will make available to the EPRC a list of federal facilities that may be used by the EPRC to conduct their hearings outside of the National Capital Region (NCR).

   • 5.3 EPRC will make every effort to conduct their hearings at these facilities.

6. Financial Support

   • 6.1 EC will provide EPRC with an annual budget.

   • 6.2 After consultations with the Chief Review Officer, the Assistant Deputy Minister will establish the budget for the EPRC.

   • 6.3 EPRC will be funded by EC based on a budget forecast submitted to the Assistant Deputy Minister by the Chief Review Officer in January of each year. The budget forecasts will provide detailed projected expenditures and will take into account anticipated fixed costs for the upcoming fiscal year. The budget forecast will also include a separate incremental costs forecast based on each additional Environmental Protection Compliance Order review. The incremental costs forecast will also include an estimate on the number of hearings expected for the coming year.

   • 6.4 Notwithstanding sub-section 6.3, should additional funds be required by the EPRC due to an unanticipated increase in the number of reviews, the Chief Review Officer will inform the Assistant Deputy Minister of this eventuality and provide the Assistant Deputy Minister with an estimate of the additional requirements. After consultation with the Chief Review Officer, the Assistant Deputy Minister will establish the budget for the EPRC.

   • 6.5 EPRC will submit financial reports to the Assistant Deputy Minister in accordance with EC's internal financial reporting requirements.

   • 6.6 EPRC will return any unexpended monies received from EC under this MOU to EC at the end of the fiscal year.

7. Access to Information and Privacy

   • 7.1 The Minister delegates to the Chief Review Officer responsibility for administration of the Access to Information and Privacy Acts for records under its control.

8. Other Delegations

   Whereas the Department of Justice has delegated to the Deputy Head of the Department of the Environment the authority to contract for the provision of legal services to the Chief Review Officer and Review Officers to enable them to carry out their functions under CEPA, 1999, the Deputy Head has delegated to the Chief Review Officer the authority to contract for services, including legal services, up to a specified amount.

9. Contacts

   • 9.1 For the purpose of the administration of this MOU, the contact for EC will be the Director of the Corporate Secretariat on behalf of the Assistant Deputy Minister.

   • 9.2 For procedural matters relating to the review of Environmental Protection Compliance Orders, such as the delivery of notices of review and other notices to EC, the contact will be the Senior General Counsel to EC.

For Environment Canada

For the Environmental Protection Review Canada