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First Review of the Canada-Chile Agreement on Environmental Cooperation (CCAEC)
Published in 2004
- The Context in which the Agreement was negotiated
- The Institutional structure of the Canada-Chile Commission for Environnemental Cooperation (CCCEC)
- Cooperative activities
- Activities undertaken to fulfill obligations une the Agreement
- Submissions filed under the CCAEC
- Public Consultation
- Council Conclusions
The Canada-Chile Agreement on Environmental Cooperation (CCAEC) came into force on July 5th 1997 at the time of the Canada-Chile Free Trade Agreement (CCFTA) and the Canada-Chile Agreement on Labour Cooperation (CCALC). Under the auspices of the CCAEC, Canada and Chile agree to enhance environmental cooperation and to effectively enforce environmental laws, such as those governing water, air, toxic substances, and wildlife. The main goal of the Agreement is to ensure that environmental laws and regulations in both countries provide for high levels of environmental protection.
Under Article 10.1 (b) of the CCAEC, the Council is required to “review its operations and effectiveness in the light of experience”, within three years after the date of entry into force. Council has taken the opportunity to review the implementation of the Agreement at each of its Council Sessions, however this process is the first formal review of the CCAEC. As such, the following provides a review of the activities undertaken by the Canada-Chile Commission for Environmental Cooperation (CCCEC). The purpose of this review is to identify how the implementation of the Agreement can be improved and not to propose amendments to the Agreement. National Secretariats present regular reports to the Council at each Council Session that provide greater detail about the cooperative activities, submissions on enforcement matters, and the actions taken by each Party in connection with its obligations under the Agreement, including reporting on enforcement activities. These reports can be found on the website of the CCCEC.
This review begins with a brief reflection on the context in which the Agreement was negotiated and is followed by an overview of the institutional structure established by the Agreement in Section Three. Section Four of the review provides a description of the cooperative activities that have served to build strong bonds of cooperation between Canada and Chile while strengthening environmental management systems. An overview of activities undertaken to fulfill obligations is given in Section Five, while Section Six provides a summary of the current experience with the citizen submission on enforcement matters feature of the Agreement. Section seven provides a synopsis of feedback provided by the public consultation on how the implementation of the Agreement could be improved. The review ends with conclusions from the Council.
The Canada-Chile Agreement on Environmental Cooperation (CCAEC) was negotiated in the years that followed the entry into force of the North American Free Trade Agreement (NAFTA) in 1994 and its parallel agreements on environment, the North American Agreement on Environmental Cooperation (NAAEC), and labour, the North American Agreement on Labour Cooperation (NAALC).
At the Summit of the Americas in December 1994, Chile was officially invited by NAFTA Parties to begin accession talks. Progress toward accession was steady until September 1995, but talks finally broke down due to the lack of “fast track” authority by the US Administration. In December 1995 Canada and Chile announced the intention to negotiate an interim bilateral free trade agreement as a bridge to the NAFTA accession process. It was agreed that these negotiations would include arrangement on environmental and labour cooperation replicating the key features of the NAFTA side agreements, but, in view of the interim nature of the Agreements, they would be simplified and adapted accordingly.
The US received fast track or trade promotion authority (TPA) from Congress in August 2002 and is currently negotiating a bilateral agreement with Chile. Now Chile has bilateral free trade agreements with Canada, Mexico and the US, but Chile's accession to NAFTA and NAAEC is unlikely.
While the CCAEC does closely resemble the NAAEC, the Party-to-Party dispute settlement procedures vary in one significant way. In the case of the NAAEC, where an arbitral panel determines that a Party is persistently failing to effectively enforce its environmental law and where that Party is not fully implementing an action plan required to remedy the pattern of non-enforcement, the arbitral panel can impose a monetary enforcement assessment collectable through the suspension of trade benefits (i.e. trade sanctions). In the Canada-Chile case, monetary enforcement assessments are not collectable via the suspension of trade benefits but rather in the form of fines assessed by the arbitral panel and paid by the Party concerned. The decision not to include trade sanctions was based on the recognition an enforcement failure is a failure by government and that any financial consequences should be the responsibility of governments, not imposed on exporters through a suspension of trade benefits. Canada and Chile agreed that the primary focus of parallel environmental agreements was promotion of high levels of environmental protection and that this was better achieved through targeted technical assistance and cooperation than through the fear of retaliation.
In addition to the lack of trade sanctions mentioned above, there are two significant administrative differences between the CCCEC and the NACEC. First, instead of being supported by an independent secretariat such as the Secretariat of the North American Commission for Environmental Cooperation (CEC) that is based in Montreal, Canada, two National Secretariats were established in the environment ministries of each country. Second, in recognition of the lower volume of trade between Canada and Chile in comparison to the volume between Canada, the US and Mexico, the budget for the implementation of the CCAEC is significantly smaller than that of the NACEC.
The four main bodies of the Commission are the Council, the National Secretariats, the Joint Public Advisory Committee (JPAC), and the Joint Submissions Committee (JSC). There are two National Secretariats, one housed in Environment Canada and the other housed in Chile's National Environment Commission (CONAMA). The National Secretariats provide support for the Commission. This next section examines these bodies in light of their experiences to date.
The Council, which is established under Article 8, of the CCAEC, is the governing body of the Commission and is comprised of the Minister of the Environment for Canada, and the Executive Director of Chile's National Environment Commission, CONAMA. Since the inception of the CCAEC, the Canadian Council representatives have been the former Environment Minister Christine Stewart (1998-1999) and current Environment Minister David Anderson, (1999 - present). There have been three Executive Directors of CONAMA since the signing of the Agreement: Rodrigo Egaña (1998-2000), Adriana Hoffman (2000-2001) and Gianni López Ramírez (2001-present).
Since its entry into force, the Council has held three Council Sessions. The first meeting convened on November 9, 1998 in Santiago, Chile, was attended by Canada's former Minister for the Environment, Christine Stewart and CONAMA's former Executive Director, Rodrigo Egaña. The main achievements of the First Council Session were the adoption of the Rules of Procedure, the Codes of Conduct and the first work program of cooperative activities. During this session the Council decided to focus activities in two thematic areas: (1) Enforcement and Compliance with Environmental Legislation; and (2) Public Participation in Environmental Management. The Second Council Session occurred in Ottawa in June of 2000 and was attended by Parliamentary Secretary Paddy Tornsey on behalf of Minister Anderson and former Executive Director of CONAMA, Ms. Adriana Hoffman. The Council agreed to move forward with the Work Program, adding a third theme of Trade and Environment to the other two existing thematic areas. The Third Council Session took place in Santiago, Chile, on April 15, 2002, attended by Gianni López Ramírez, Executive Director of CONAMA, and the Honourable Gilbert Parent, Canada's Ambassador for the Environment, on behalf of Minister Anderson. The Council reviewed progress of past activities and agreed to add a fourth new theme of Health and the Environment to the Work Programs thematic areas. Representatives of both governments also took the opportunity to sign a Memorandum of Understanding (MOU) on Climate Change Activity, which seeks to facilitate cooperation between the two countries on climate change initiatives and to pursue joint projects that reduce net greenhouse gas emissions.
Public meetings, held during the course of all regular Council Sessions (as stipulated in Article 9 (4) of the Agreement) give members of the public the opportunity to voice their recommendations on the CCAEC to the Council. At the past three public meetings, participants have raised issues related to citizen submissions on enforcement matters and have made suggestions on areas of cooperation that could be included in the work program.
The Fourth Regular Session of the CCCEC will be held in Canada in 2003.
The National Secretariats are housed in Environment Canada and CONAMA, and provide support to the Commission. Each Secretariat is headed by an Executive Secretary and provides technical, administrative and operational support to the Council and to committees and groups established by the Council. In addition, the Secretariats jointly develop the annual work program and budget of the Commission, which are approved by the Council (see Section Four for an overview of cooperative activities). Since the entry into force of the agreement, the Executive Secretaries for Canada have been Andy Bowcott, Manager, Environmental Agreements (1998- 2000) and Jenna MacKay-Alie, Director, Americas Branch ( 2000 - present); and for Chile Carlos Piña, Chief of International Coordination Unit (1998 - 2000) and Alvaro Sapag, Chief Counsel, and International Relations Secretary (2000 - present).
The JPAC, which is established under Article 16 of the CCAEC, is comprised of six citizens, three from each Party, and serves as the bridge for public input to the work of the Commission. The JPAC provides advice to the Council on any matter within the scope of the Agreement and convenes annually at the time of regular Council Sessions and at such other times as deemed necessary.
During the period from 1997- 2002, the Canadian members who have served the JPAC were: Harvey Mead, David Hunter and Asta Antoft and the Chilean members were Jaime Undurraga, Francisco Sabatini and Gustavo Lagos. The current members are:
On behalf of Canada:
- Asta Antoft, serving her second term, is an environmental advocate and teacher in Cape Breton. She was involved in the opening of the Environmental Activities Centre in Sydney for education and reference on local and global issues and for outreach activities in Cape Breton.
- Robert Fraser is a trade consul for the Canadian Environmental Industry Association and is based in Santiago.
- Eduardo Quiroga is a consultant in international environment and natural resource economics. He was born in Bolivia but is now a Canadian citizen living in Montreal.
On behalf of Chile:
- Jaime Undurraga who has held several prominent positions, including Environment Advisor to the Finance Minister (1992-97) and played an important role as negotiator of the Canada-Chile Agreement on Environmental Cooperation (1997).
- Andrés Varela is a civil engineer at the Universidad Católica de Chile. He is National Councillor of the Chilean Chamber of Construction, and President of the Commission for Environmental Protection of the sector. He is the vice-president of the Commission of the Environment of the Confederation of Production and Commerce and member of the Council for Sustainable Development in Chile.
- Raúl O'Ryan is an electrical civil engineer. He earned a Master of Industrial Engineering from the University of Chile and a PhD in Economics from the University of California, Berkeley. He is associate professor in the Department of Industrial Engineering at the University of Chile, and at present is the Director of the Department.
Since entry into force, the JPAC has convened six meetings and facilitated the public portions of the three Council Sessions. In 1999, they met twice: in March in Montreal and in October in Toronto. In Montreal, they solicited suggestions from private sector and NGO representatives regarding the need for environmental cooperation between the two countries with a view to identifying areas where the JPAC might contribute to achieving the goals of the CCAEC. The JPAC held a Mining Roundtable on October 28, 1999 in Toronto. The Mining Round Table was successfully carried forth from an idea into a successful showcase of the JPAC's role in the CCCEC. The JPAC chose mining as the first economic sector to be analyzed due to its importance for both countries. Canadian and Chilean representatives of the private, public, academic and non-governmental sectors were invited to participate. The aim was to provide accurate and up-to-date information with respect to environmental management and mining activity in Canada and Chile, with a particular focus on public participation, enforcement and prevention. High caliber presentations and discussions by key specialists from the private sector, government, NGOs, as well as academia, allowed a dialogue that was constructive, realistic, and highlighted the most recent challenges and opportunities. The JPAC submitted their Advice to Council on Mining from the Round Table.
The JPAC has worked effectively in catalyzing public participation with the CCCEC. In October of 2000, the JPAC led a workshop on public participation in environmental decision-making that took place in Santiago. Over 60 individuals representing government, civil society, academic and legal communities, attended the event. The workshop explored four key topics: (1) Public Participation in Environmental Decision-Making; (2) Strengthening of Civil Society in Government Decision-Making; (3) Role of Civil Society in Monitoring, Evaluation and Enforcement of Legislation and Environmental Policy; and (4) Environmental Conflicts and Public Participation. A constructive dialogue occurred in each of the four discussion groups.
The Joint Submissions Committee (JSC), established under Article 12 of the CCAEC, is responsible for reviewing submissions filed pursuant to the Citizen Submission Process set out in Articles 14 and 15 of the Agreement. Under this process a citizen of Canada or Chile may submit a written complaint asserting that either country is failing to effectively enforce an environmental law.
The JSC determines whether a submission merits requesting a response from the Party whose laws are the subject of the submission and whether the submission, in light of any response provided by the Party, merits the development of a factual record. Article 15 of the Agreement sets out the process for the consideration and development of a factual record.
The JSC is an independent body composed of two non-governmental representatives. Each Council member appoints one representative to serve for a three-year term. Since the entry into force of the agreement, Chile has had two JSC members chosen by Council, Carlos Peña (1998 - 2000) and Pablo Ruiz-Tagle (2000 - present). David Johnston, a lawyer with Pouliot Mercure in Montreal, has served as Canada's representative since 1998. Both Mr. Johnston and Mr. Ruiz-Tagle are serving a second term on the JSC.
Since June 2000, four submissions have been filed under Article 14 of the CCAEC. Section 6 provides a brief description of each submission and its status.
The National Secretariats are responsible for jointly developing the annual work program and budget of the Commission. Additional direction and advice in project development is provided through consultation with the JPAC. Final approval of the annual work program and budget is the responsibility of the Council. The Work Programs are the main vehicle of action for the Commission. To date, there have been three Work Programs approved by Council. Currently the four themes are:
- Enforcement and Compliance of Environmental Regulations;
- Participation of Civil Society in Environmental Management;
- Trade and Environment; and
- Health and Environment.
During the preparation of each work program, National Secretariats focus on activities that are relevant to the nature of environmental challenges associated with economic integration as well as the current international environmental agenda. Since the entry into force of the Agreement, Canada and Chile have participated in four high-level meetings that have assisted in defining an international agenda of environmental cooperation. The first such meeting was the First Meeting of Ministers of the Environment of the Americas which took place in 2001 in Montreal. This meeting provided direct input on environmental issues to leaders at the Third Summit of the Americas in Quebec City. As a follow up to commitments made at the Summit, environment ministers of the hemisphere returned to Canada in March of 2002 along with their colleagues responsible for health for the Health and Environment Ministers of the Americas Meeting. These three meetings, together with the most recent World Summit on Sustainable Development that took place in Johannesburg, South Africa in August/September of 2002, have identified key areas for international cooperation and national action.
National Secretaries under the Canada-Chile Agreement have shaped the work program around key issues identified in these high-level meetings. For example, given the importance of economic integration in the region and the efforts to negotiate a Free Trade Area of the Americas, Parties chose to include the theme of Trade and Environment in the work program and establish a permanent round table on these issues. This round table is an effective mechanism to foster policy dialogue between the two countries on the linkages between trade and environment. Half the day is devoted to an in-depth discussion on selected topics and includes the participation of invited representatives from business, non-governmental and academic communities of the hosting country; the remaining half day is devoted to a frank and open exchange between government officials of both environment and trade ministries. To date, five round tables have been held. Past topics included precaution, environmental assessments of trade negotiations, certification, the relationship between the World Trade Organization and multilateral environmental agreements, and eco-labelling.
Another example of how the international agenda has helped shaped the Canada-Chile work program is the recent addition of health and environment activities. After the Health and Environment Ministers of the Americas Meeting in Ottawa, March 2002, Council added the theme of health and environment to the work program. With funding from the Canadian International Development Agency's (CIDA) Local Fund for Public Sector Reform in the Southern Cone, cooperation expanded to include two activities on health and environment. The first activity was a workshop to strengthen the implementation of the Basel Convention in Chile. The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal was developed as an answer to the concerns of participating countries about the growing movements of hazardous waste from the industrialized countries to developing countries. The workshop held in San Antonio, Chile brought together Canadian and Chilean officials with industry representatives to discuss the Basel Convention and its implementation in Chile. The discussion that took place during this workshop and informal meetings that followed will be useful to Chile as they pass new regulations on the Basel Convention in 2003. The second activity implemented with funding from CIDA was a Policy Forum on Health and Environment that examined Air quality indicators and the health effects of air pollution on vulnerable populations. A team of Canadian officials from Health Canada and Environment Canada traveled to Santiago to witness the progress that has been made in this area in the Metropolitan Region.
The table that follows presents the entire list of cooperative activities that have been included in the work programs of the Canada-Chile Commission for Environmental Cooperation. More detailed information on each project can be found by visiting the CCECC website.
|Activities||Description||Date and location||Budget (Estimated costs and in-kind contributions in person hours)|
|99.1.1 Overview of Enforcement and Compliance Frameworks in Canada and Chile||A report on current environmental enforcement and compliance policies, and practices in both countries||December 1999 Santiago Chile||Cdn$ 18,000 Ch$ 5.5 million||120 hours|
|99.1.2 Seminar on Effective Enforcement Policies and Approaches||Seminar that allowed information sharing and recommendations for future cooperative work on effective enforcement and compliance||Sept 29th and 30th 1999 Santiago Chile||$Cdn 20,000 $Ch 6.1 million||300 hours|
|00.1.1 Enforcement and Compliance Report (con't of 99.1.1)||Updating of Report, “Environmental Enforcement and Compliance Frameworks in Canada and Chile”||December 2001||Cdn $2,000 $Ch .6 million||100 hours|
|00.1.2 Implementation of Basel Convention||Officials from Chile's National Customs Service and Health Ministry visit Revenue Canada and Environment Canada to familiarize themselves with the Canadian implementation of the Convention.||November 25-30, 2000||Cdn $20,000 $Ch 6.1 million||450 hours|
|00.1.3 National Enforcement Management Information System and Intelligence Systems (NEMISIS)||Assess the possibility of transferring NEMISIS to Chile to enable CONAMA to provide statistical and compliance information that is regularly requested by the police, media and interested groups.||August 22nd 2001 Santiago Chile||Cdn $5,000 $Ch 1.5 million||400 hours|
|02.1.1 National Enforcement Management Information System and Intelligence Systems (NEMISIS) Phase II||Phase II - feasibility study of transferring the system to Chile||In progress||N/A|
|99.2.1 Participation of Civil Society in Environmental Management||A report on the state of public participation processes in Canada and Chile||October 1999||$Cdn 10,000: $Ch 3.1 million||120 hours|
|99.2.2 Workshop on Public Participation in Environmental Decision Making||Workshop coordinated by the Joint Public Advisory Committee on public participation||Rescheduled, see 00.2.2|
|99.2.3 Action at the Community Level||Using the web exchange of information on community action and share best practices for programs and policies.||Web page created by September 1999 and updated regularly||$Cdn 4,000: $Ch 1.2 million||100 hours|
|99.2.4 CCAEC Websites||Internet site development of both National Secretariats to provide public access to information||Web site launched in 1998 and updated on an ongoing basis||$ Cdn 3,000 $Ch .9 million||150 hours|
|99.2.5 Environmental Law and Regulation Database||Provide information on environmental laws and regulations on the website||Project completed in 1999 and continued in 2000; information updated on an ongoing basis||$Cdn 8,000 $Ch 2.4 million||20 hours|
|00.2.1 Public Participation Report||Annual update of Report “Public Participation in Environmental Management in Canada and Chile”||February 2002||Cdn $2,000 $Ch .6 million||100 hours|
|00.2.2 Workshop on Public Participation (con't of 99.2.2)||Seminar organized by the JPAC on “Public Participation in Environmental Decision Making”||October 3rd and 4th 2000 Santiago Chile||Cdn $22,000 $Ch 6.6 million||600 hours|
|00.2.3 Action at the Community Level webpage (con't of 99.2.3)||Extension of the webpage created in Work Program 1||Updated as needed||Cdn $2,000 $Ch .6 million||40 hours|
|00.2.4 CCAEC Website (con't of 99.2.4)||Regular maintenance of the CCAEC websites||Continuing to be maintained on a regular basis||Cdn $4,000 $Ch 1.2 million||150 hours|
|00.2.5 Environmental Law and Regulation Database (Con't 99.2.5)||Completion of the database (99.2.5)||Updates on an ongoing basis by CONAMA and EC||Cdn $4,000 $Ch 1.2 million||20 hours|
|00.2.6 Pollutant Release and Transfer Register||Workshop to discuss feasibility of a PRTR system in Chile||Rescheduled, see 02.2.2||N/A|
|02.2.1 Policy Forum on Public Participation in Environmental Management||Workshop on Best Practices to discuss key issues and state of the art approaches to promoting and enhancing effective public participation in environmental management||April 10-11, 2003||Cdn $20,000 $Ch 6 million||800 hours|
|02.2.2 Pollutant Release and Transfer Register (same as 02.2.6 which was delayed)||Workshop to discuss feasibility of a PRTR system in Chile||May 29th 2002||Cdn $30,000 $Ch 9 million||500 hours|
|02.2.3 Dissemination of Information on Environmental Management||CCAEC websites; action at the community level webpage; Environment law and regulations database, Enforcement and Compliance Report||Ongoing work||Cdn $15,000 $Ch 4.5 million||N/A|
|00.3.1 Round Table on Trade and Environment||A permanent Round Table on Trade and Environment. During the morning a theme is chosen for discussion with invited academic, business and NGO representatives. This is followed in the afternoon by a closed door session among officials from Canadian and Chilean Environment and Foreign Affairs Departments.||October 2000 (Precaution) April 2001 (Env'tal Assessments of Free Trade Agreements)||Cdn $30,000 $Ch 9 million||700 hours|
|00.3.2 Workshop on “The Carbon Market: Business Opportunities between Canada and Chile under the Clean Development Mechanism”.||This workshop was hosted by the Canadian Clean Development and Joint Implementation Office, CONAMA and Urquidi, Riesco, Ramirez and Associates to explore opportunities under the Kyoto Protocol's CDM.||December 3, 2001||Cdn $15,000 $Ch 4.5 million||400 hours|
|02.3.1 Round Table on Trade and Environment||Continuation of 00.3.1||April 2002 (Certification) Sept. 2002 (MEAs and Trade Agrmts) April 2003 (Ecolabelling)||Cdn $20,000 $Ch 6 million||700 hours|
|02.4.1 Policy Forum on Health and Environment||Policy forum to discuss key emerging issues in the area of health and environment||November 24-25, 2002||Cdn $20,000 $Ch 6 million||1000 hours|
|02.4.2 Implementation of Basel Convention||Workshop to be held in Chile to improve the implementation of their commitments under Basel.||October 7th and 8th 2002||Cdn $25,000 $Ch 7.5 million||600 hours|
Articles 2 through 7 outline specific obligations each Party to the Agreement undertakes to fulfill. At every Council Session, the National Secretariats prepare a report for review by the Council that includes a detailed description of the actions taken by each Party in connection with these obligations. Once approved by the Council these reports are released publicly on the Canada-Chile website.
Since its entry into force, Parties to the Canada-Chile Agreement on Environmental Cooperation have undertaken many activities in fulfillment of their obligations. With respect to Article 2 Canada and Chile have reported on their progress related to:
- state of the environment reporting;
- environmental emergency preparedness measures;
- environmental education;
- scientific research and the development of technology in respect of environmental matters;
- environmental impact assessment; and
- the use of economic instruments.
Readers are encouraged to refer to these Reports to Council for details on the specific initiatives to fulfill these obligations under Article 2.
Article 3 of the CCAEC obliges a Party to ensure that its laws and regulations provide for high levels of environmental protection and to strive for their improvement. Chile, for example is in the last stage of a three-stage process to strengthen and reform its environmental legislation. This reform is being executed by Universidad Diego Portales in Santiago and supervised by CONAMA. The purpose is to completely revise its environmental legislation by avoiding duplication and improving coherence. This overhaul of Chilean environmental law will contribute significantly to the strengthening of Chile's environmental management system and is a celebrated result of the Canada-Chile Agreement.
Under Article 4, a Party is required to ensure that its laws, regulations, procedures and administrative rulings are made public. In Canada, the main vehicle for this is the Canada Gazette; in Chile the main vehicle is the Diario Oficial.
A key component of the Canada-Chile Agreement is the obligation to effectively enforce environmental laws. Article 5 of the Agreement refers to appropriate government enforcement action that should be undertaken by each Party. In addition to reporting on enforcement activities in the regular Reports to Council, Canada and Chile have published two documents on Compliance and Enforcement Frameworks in Canada and Chile (June 2000 and December 2001) as part of the work program.
Article 6 of the Agreement sets out Parties' obligations concerning private access to remedies. Article 7 ensures the fairness, openness and equity of proceedings. In Canada such issues are addressed in the Canadian Environmental Protection Act 1999; in Chile the General Environmental Law (LBMA) addresses private access to remedies and the Constitución Política de la República de Chile [Political Constitution of the Republic of Chile] recognizes the application of constitutional guarantees including the right to live in a pollution-free environment (Art. 19 N° 8).
Articles 14 and 15 of the CCAEC spell out the process in which organizations or citizens can request the National Secretariats and the Joint Submission Committee to consider an assertion that a Party is failing to effectively enforce its environmental law. If one of the National Secretariats concludes that the assertion meets the necessary requirements, the submission will be forwarded to the independent Joint Submission Committee to determine whether or not it warrants a response from the Party in question. After considering the response from the Party, the JSC will then make a recommendation to Council concerning whether or not the submission warrants the development of a factual record. The Council will then make a decision to direct the preparation of a factual record based on a review of the JSC's recommendation, the Party's response and the submission itself.
A factual record is exactly what its name portrays: a record of the facts. The intent and purpose of factual records is to bring to light further information regarding specific instances where the public is concerned that a Party was failing to enforce its environmental law. It outlines, in an objective manner, the history of a specific issue, the obligations of the Party under the law in question, the actions of the Party in fulfilling those obligations, and the facts relevant to the assertion made in the submission of a failure to effectively enforce an environmental law. A factual record provides information regarding enforcement practices that may prove useful to government, and to the submitters and other members of the interested public.
Summaries of submissions, Party responses and Council resolutions related to each submission have been posted on the CCCEC website. The following four submissions have been filed to date:
Submitted by: Alianza por los bosques de Chile, Comité Nacional Pro-Defensa de la Fauna y Flora (CODEFF), Sociedades Sustentables, Red National de Acción Ecólogica (RENACE), and Instituto de Ecología Politica (IEP)
Represented by: Fiscalía del Medio Ambiente (FIMA)
Matter addressed: The submitters claimed that Chilean environmental authorities failed to effectively enforce Chile's environmental law by authorizing the Cascada-Chile wood chip and structural panel manufacturing plant proposed by Compañia Industrial Puerto Montt, S.A., without a proper environmental impact study.
Status: The submission process was terminated by the Joint Submission Committee, who determined that a factual record was not warranted.
Submitted by: No. 12 Neighborhood Association of Chepiquilla, Acción Tongoy Ecologica, Centre québécois du droit de l'environnement and Observatorio Latinoamericano de Conflictos Ambientales
Matter addressed: The submitters claimed that Chilean environmental authorities failed to effectively enforce its environmental laws regarding the environmental impact assessment, approval, and on-going operations of the Andacollo Cobre (Andacollo Copper) mining project of the Mining Company El Carmen de Andacollo (EMCA).
Status: The Joint Submission Committee determined that the submission warranted the preparation of a factual record. The Council, however, decided not to direct the preparation of a factual record based on reasons set out in Council Resolution 02-2. This process is now terminated.
Submitted by: Luis Mariano Rendón Escobar, Patricio Herman Pacheco, Larisa de Orbe González, Jorge Cisternas Zañartu, Enrique Siefer Eilcr, Jacobo Schatan Weitzman, and Antonio García Vareta
Matter addressed: The submitters claimed that Chilean environmental authorities had failed to effectively enforce its environmental laws with regard to public consultation prior to the amendment of the Plan for Prevention and Atmospheric Decontamination of the Metropolitan Region.
Status: The National Secretariats determined that this submission did not meet the initial criteria of Article 14 (1) and provided the submitters with 30 days to resubmit, in accordance with the Guidelines for Submissions on Enforcement Matters. The process was terminated when the submitters failed to make a new submission.
Submitted by: Waldemar Monsalve U., Instituto de Ecologia de Chile - Austral, Corporacion Rio Contaco, and Centro Austral de Derecho Ambiental (CEADA)
Matter addressed: The submitters claim that Chilean environmental authorities have failed to effectively enforce Chile's environmental law with regard to the construction of the Southern Coastal Highway Project.
Status: National Secretariats notified the submitters that their submission meets Article 14(1) criteria -- 18/07/02. The submission was forwarded to the Joint Submission Committee in order to decide whether the submission merits requesting a response from the Government of Chile. In April of 2003, the JSC determined that the submission merited a response from the Government of Chile. At the time of writing, Chile is in the process of preparing its response.
To date, all submissions filed under the Articles 14 and15 process have involved Chile. It is important to note that because of the similarity of the two processes, submitters cannot file the same submission against Canada under both the CCAEC and the North American Agreement on Environmental Cooperation (NAAEC). Submitters therefore must chose to file under one Agreement or the other.
Under the NAAEC, 12 submissions have been filed against Canada. One factual record concerning Canada has been completed (SEM-97-001 BC Hydro) and three are being developed (SEM-97-006 - Old Man River II, SEM-98-004 - BC Mining, and SEM-00-004 - BC Logging). As of April 30th, 2003, there is one Canadian submission (SEM-02-003 - Pulp and Paper), to which Canada has responded is currently awaiting a recommendation from the Secretariat and another submission (SEM-02-001 - Ontario Logging) on which Council has agreed to defer its decision.
All status updates, submissions, and responses to submissions under the NAAEC are available online.
A public consultation was held to receive input from the public on the operation and effectiveness of the agreement and/or how the implementation of this Agreement could be improved. Citizens were invited to provide written comments on the first draft of the First Review of the Canada-Chile Agreement on Environment Cooperation and to present their views to Council during the Public portion of the 4th Regular Session of the Canada-Chile Commission for Environmental Cooperation (October 24, 2003.) Efforts were made by National Secretariats to note to the public that the purpose of this review was not to recommend modifications to the text of the Agreement itself, given that it is an international treaty ratified by the Governments of both Parties, but rather to identify how the implementation of the Agreement could be improved in light of experience during these early years. In addition to the general public, the National Secretariats sought the views of individuals who have participated in past activities implemented as part of the work program, those who have served on the Joint Public Advisory Committee and Joint Submissions Committee as well as those who have made submissions under the citizen submission process.
A draft version of the Review was posted on the website, from August to November 2003. In the draft Review, the National Secretariats identified five “areas for improvement”:
- Lack of Awareness of the Canada-Chile Commission for Environmental Cooperation
The CCCEC is clearly not as well known as the North American CEC. Although awareness in Canada and Chile is still growing, there is much room for improvement. National Secretariats strive to keep information on the Canada-Chile website up-to-date but it is difficult to reach out to interested parties. National Secretariats may wish to consider developing a periodic electronic news service to which individuals could subscribe.
- Funding Challenges
The costs of implementing this agreement are shared equally by Canada and Chile. While the current funding for the work program is modest, an argument can be made that it is appropriate given the relative volume of trade between Canada and Chile (especially in comparison to that which exists in the NAFTA context). Clearly the potential environmental impacts caused by trade liberalization between the two countries is also relatively smaller than that which may result from increasing economic integration in North America. In order to obtain the maximum benefit from limited financial resources, the governments of Canada and Chile rely excessively on the in-kind contributions of time, effort and energy of professional expertise found within each government combined with the equal efforts of the Joint Public Advisory Committee and other members of civil society and the private sector. It is also important to note that the citizen submission process requires a significant amount of financial resources from the operating budget of the two governments. Given that there is no limit on the amount of submissions the Commission will receive in one year, it is impossible for the Parties to budget for this activity in advance.
- Involving Civil Society and Private Sector Partners in the work of the Commission
Efforts are currently being made to increase the participation of representatives from civil society, academic and business communities in the activities of the Commission. However there is room for improvement and National Secretariats need to make a better effort to inform these communities of upcoming activities as well as reporting on past initiatives.
- Length of Time to Process Citizen Submissions on Enforcement Matters
Several concerns have been raised with respect to the time taken to process citizen submissions on enforcement matters under Articles 14 and 15. These are valid concerns, however it is important to understand that the matters raised in submissions can be both procedurally and substantively complex and inevitably take time to process. Canada's experience with the citizen submission process under the North American CEC indicates that processing times under the CCAEC and the NAAEC are closely comparable. It is also important to note that the Joint Submission Committee members are legal experts who take on their responsibilities on the JSC in addition to their regular practice and activities. In light of this, National Secretariats agreed at their meeting in April 2003 to review the guidelines for submissions with a view to giving the process more clarity and to improve transparency. It is expected that the results of the review will be presented to Council at their next meeting.
- Regularity at which Council meets
During the first few years of implementation, the Council has been unable to always convene on an annual basis as provided for in the Agreement. For various legitimate reasons, including changes in Council members, Council Sessions have needed to be rescheduled to accommodate Ministerial schedules.
Several comments received from the public appeared to mirror the National Secretariats’ own perceptions.
One of the comments suggested that there was a lack of engagement by citizens in both countries because of the lack of awareness of the work of the National Secretariats. To mitigate this, it was suggested that both countries add more depth to their partnership in order to enhance the value of the CCAEC.
Several of the comments related to involving civil society and private sector partners in implementation. One comment suggested that obstacles in including civil society could be overcome by the systematic implementation of obligatory mechanisms or legally binding measures for public participation in all of the themes of the Agreement. Another suggestion elaborated on the need to involve private sector partners, saying that there is a gap between the [Canada-Chile] Commission and the business community and that the Commission should become more actively engaged in the dialogue between the Canadian environmental industry, sectoral supplier groups, and Chilean industries that wish to improve their exports but are hindered by lack of environmental management experience.
Other views submitted on the implementation of the agreement included the following:
- While public participation is a theme under the Agreement, its results have been scarce in Chile. Other work program activities should not exclude civil society, but rather include them as much as industry and government representatives.
- In Chile, the environmental impact assessment (EIA) process could be improved in many respects, as well as the way in which civil society is engaged by government.
- Technical cooperation between the two countries could be expanded. To improve the efficacy of the agreement for future Work Program activities – particularly given the limited resources available – it is suggested to assess the efficacy and impact of the agreement with three measures, as the agreement evolves: 1) Leadership in Environmental research and Programs; 2) Human Resource Development; 3) Citizen Engagement.
- Both countries could benefit from joint research/policy program on climate change with definable goals. This would be even more beneficial given the fact that Canada is advanced in climate modeling - in particular, climate change forecasting in polar regions - and that Chile is the first country in the developing world to deliver verified carbon emissions credits.
- Enhancing technical cooperation between the two countries was raised by two of the commentators. The first emphasized the need to raise awareness of the CCAEC amongst employees in the respective environment departments, to enhance partnership between the two countries. One method to foster more intellectual and professional links is by encouraging a system of exchanges and sabbaticals, similar to those of leading corporations and universities, using a competitive selection process.
- A second comment on technical cooperation raised the possibility of pursuing interdepartmental technical partnership and cooperation between Environment Canada and Department of Fisheries and Oceans, with CONAMA, within the framework of the CCAEC.
- A results-based management framework could be used to improve the implementation and management of cooperative activities in the Work Program.
This report marks the first comprehensive review of the agreement since its entry into force in 1997. Parties are grateful to those members of the public and others, who have provided the Commission with their views on how the implementation of this agreement could be improved. National Secretariats will work closely with our Joint Public Advisory Committee and other partners to continually strive to improve the implementation of this Agreement.
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