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1998 Report of the Commissioner of the Environment and Sustainable Development

Main Points

2.1 The quality of Canada's environment is affected not only by what Canadians do at home but also by activities outside Canada's borders. Air pollution, the deterioration of the ozone layer, climate change, the depletion of offshore fisheries resources and ocean pollution are all examples of environmental issues that cut across national borders.

2.2 Countries have increasingly recognized this environmental interdependency and have responded by developing a wide range of international environmental agreements. Canada has participated actively in negotiating these agreements and needs to continue doing so in order to protect its national interests.

2.3 Canada has often played a key role in shaping the international environmental agenda, and is a party to a significant number of international agreements dealing with environmental and sustainable development issues. Canada devotes considerable time and effort to developing these agreements. For each agreement, there is a timetable of international work and meetings, as well as a separate domestic process that Canada follows to prepare its negotiating position.

2.4 In entering into these agreements, Canada has made commitments to the international community. Canada, in turn, stands to benefit from the environmental commitments made by the international community.

2.5 A fundamental tenet of international law is that countries will act in good faith to carry out their international obligations. In some cases, this means that they must translate these obligations into meaningful action at home. In other cases, the commitments require countries to undertake co-operative efforts at an international level with other parties to international agreements.

2.6 However, Canada does not systematically track the implementation of its international environmental commitments. As a consequence, Canada does not have an overall picture of how good a job it is doing at meeting the obligations it has undertaken: where it has been successful; what gaps remain; what lessons have been learned. This lack of accessible information is a significant barrier to Parliament's oversight of the implementation of Canada's current and future commitments in this area.

2.7 Having and using adequate information is key to effective management of our commitments. Working with departments, this Office is constructing a publicly accessible data base of Canada's international environmental commitments in an effort to improve accountability by the government to Parliament for their implementation. We will also continue in-depth analysis of the extent to which selected individual agreements are put into effect. We expect, however, that Foreign Affairs and International Trade and Environment Canada will work with other departments on a broader assessment of the extent to which Canada is living up to its obligations under these agreements.

Introduction

The Globalization of Environmental Problems

2.8 The quality of Canada's environment is affected not only by what Canadians do at home but also by activities outside our borders. Air and ocean currents carrying pollutants from other countries directly affect the health and well-being of Canadians. We share natural systems with the United States to the south, and with other circumpolar nations to the north. And we contribute to, and suffer the consequences of, changes in the environment at the global level.

2.9 Transboundary air pollution, the deterioration of the ozone layer, climate change, the depletion of offshore fisheries resources and ocean pollution are all examples of environmental issues that cut across national borders. The long-range transport of air pollution provides a clear example of the Canadian Arctic's vulnerability to the actions of our neighbours (see Exhibit 2.1) . Domestic actions alone are often insufficient to protect Canadians and our environment. We need to work with other countries to develop international solutions to international problems.

2.10 Countries have increasingly recognized this environmental interdependency and have responded by developing a wide range of international environmental agreements. Canada has often played a key role in shaping the international environmental agenda, and is a party to a significant number of agreements. In entering them, Canada has made commitments to the international community. Canada, in turn, stands to benefit from the environmental commitments made by the international community.

2.11 A fundamental tenet of international law is that countries will act in good faith to carry out their international obligations. In some cases, this means that Canada must translate these obligations into meaningful action at home. Other international obligations require Canada to co-operate with other parties to international agreements. The increased globalization of environmental problems has made it even more important for nations to act collectively to address them. This has focussed greater attention on countries' efforts to fulfil their commitments. Media coverage of high-profile international agreements such as the Montreal Protocol on Substances That Deplete the Ozone Layer and the United Nations Framework Convention on Climate Change with its new Kyoto Protocol have given the public an indication of the successes achieved and the difficulties encountered by countries, including Canada, in meeting their various international commitments and their domestic policy responses to them.

2.12 Canada's participation in international efforts to develop international solutions to these problems requires a serious commitment of resources. According to the recent Business Plan of Foreign Affairs and International Trade, international programs are a core activity for many departments, with approximately 5,000 public servants devoting more than 50 percent of their time to international issues.

Focus of the Study

2.13 This study is part of an ongoing work program to assess how Canada is doing at meeting its international environmental commitments, and how it can improve its performance. Recent audit work by this Office (see Exhibit 2.2) has focussed on specific agreements, including the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, the Montreal Protocol on Substances That Deplete the Ozone Layer (the "Montreal Protocol"), the United Nations Framework Convention on Climate Change and the Convention on Biological Diversity . While these audits also cover issues other than the implementation of international commitments, certain of the findings raise concerns about Canada's overall performance with regard to both its international obligations and its domestic policy response to them.

2.14 Our comments in this chapter are directed at international agreements with a primarily environmental focus, and not at those that deal with the broader social and economic aspects of sustainable development. Although this study concentrates on legally binding agreements, it also refers to certain non-binding instruments of recognized international importance.

2.15 This study is more descriptive in nature than our previous work. It provides an overview of the international environmental agenda and Canada's role in its development. It reviews the number and nature of international environmental agreements to which Canada is a party, and the process by which the Government of Canada enters into them. The study then identifies the information needed to assess how Canada is doing at meeting its international environmental commitments, as a first step in a process for that assessment. This information can be used to identify implementation gaps, and to draw lessons that can be applied to the negotiation and implementation of future agreements. For additional information about the scope and objectives of this study, please refer to the section entitled About the Study at the end of this chapter.

Study Findings

Canada and the International Environmental Agenda

The international agenda
2.16 Countries have been working together on environmental issues for much of this century. The primary tool used by the international community to focus collective action has been international agreements. Formal agreements have been negotiated to establish collective standards of conduct in the form of legally binding obligations among nations.

2.17 Early international agreements, negotiated in an era when state sovereignty over natural resources was the guiding principle, focussed primarily on the regulation of boundary water and fishing rights, and the protection of commercially valuable animals such as migratory birds and fur seals. Over the years, states have increasingly recognized the importance of conserving natural resources and the shared global commons. The United Nations Conference on the Human Environment held in Stockholm, Sweden in 1972 marked the beginning of a comprehensive, multilateral effort to protect, preserve and enhance the environment. Many important agreements were negotiated in the period surrounding this conference: the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter ; the 1972 Convention for the Protection of World Cultural and Natural Heritage and the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora. By the time of the 1992 Rio Conference on Environment and Development, the number of international agreements with important environmental provisions had risen from a few dozen to several hundred worldwide.

2.18 Paralleling this increase in numbers, the range of issues covered has become more diverse and the scope of agreements has broadened. Exhibit 2.3 provides a brief summary of selected major international environmental agreements. These agreements, covering climate change, air pollution, endangered species, biological diversity and marine pollution, all represent issues that require international co-operation. They also illustrate the significant expansion of scope. Whereas earlier international agreements tended to focus on bilateral control of transboundary pollution and preservation of certain species, the range of issues has since widened to include global pollution control, conservation of ecosystems, and international control of resource use and activities within national borders to protect world heritage sites, wetlands and areas of significant biological diversity.

2.19 The trend toward more international agreements of wider diversity and scope has been accompanied by a third trend: efforts to encourage the broad participation of nations. There has been a growing recognition that global environmental challenges now require an unprecedented degree of collaboration between the industrial and the developing worlds. However, the various parties have discrete and wide-ranging interests, contribute to global environmental problems to varying degrees and have different financial, institutional and technical capacities to address the problems.

2.20 As a consequence, recent international environmental agreements have incorporated mechanisms that not only encourage nations to undertake commitments but also provide them with the means of fulfilling them. This includes differentiating commitments according to the capacities of countries and the extent to which they contribute to environmental problems. The Montreal Protocol , for example, provides a grace period for developing countries to comply. Other techniques involve providing financial assistance to help less developed countries pay for implementation measures they otherwise could not afford, as well as providing for technology transfer and exchange of information.

Legally binding agreements vs. non-binding instruments
2.21 Although international environmental agreements vary widely in form and substance, they all create binding legal obligations on countries that become party to them. They are agreements between states or between states and international organizations, and are governed by international law. They are called by a variety of names such as treaty, convention and protocol.

2.22 However, the international community also resorts to a variety of non-binding instruments to encourage nations to work toward common goals. These include international declarations of principle, codes of conduct, guidelines, and resolutions of international bodies such as the United Nations General Assembly. Prominent examples of non-binding instruments are the 1972 Stockholm Declaration on the Human Environment and the 1992 Rio Declaration on Environment and Development . Both set out general principles of environmental protection and sustainable development to guide the conduct of nations. Neither is legally binding.

2.23 Legally binding agreements are used when there is sufficient consensus within the international community on the concrete steps required to meet prescribed goals and targets. Non-binding instruments tend to be used in situations where nations are unwilling to bind themselves initially to legal obligations but recognize the need to commit to working toward a common solution (see Exhibit 2.4) .

2.24 With the proliferation of international environmental agreements, a common thread or template has developed for the types of provisions generally found in legally binding agreements. Exhibit 2.5 outlines the typical features of such an agreement.

Compliance issues at the international level
2.25 New focus on implementation and compliance. Until very recently, the efforts of the international community had been concentrated on developing new international environmental agreements. However, there has been growing recognition that for these agreements to accomplish their objectives, greater attention must be paid to ensuring that the nations who are party to them actually carry out their obligations. Nonetheless, a lack of both compliance information and compliance mechanisms presents serious constraints to ensuring compliance.

2.26 Limited compliance information. Many international environmental agreements require parties to report on their progress in implementing the agreement. The information supplied varies according to the subject matter of the accord; for example, numbers of permits issued for controlled activities such as dumping or transborder movement of hazardous waste, or data on air emissions.

2.27 Reporting on efforts to implement agreements is the backbone of compliance. However, the effectiveness of reporting mechanisms has been called into question. A 1992 study carried out by the General Accounting Office of the United States concluded that, for the international agreements it examined, information was reported late, incompletely or not at all, making it impossible to gain a comprehensive view of compliance. Although, under many agreements, secretariats have provided parties with standardized formats to facilitate and encourage reporting, poor reporting in developing countries is often related to a lack of financial and technical resources to gather data.

2.28 Recently, there have been some initiatives to study and compare national implementation and compliance under certain international agreements in selected countries. The data base described in paragraph 2.77 is one such attempt to assemble information to build a key public accountability tool for Canada's implementation efforts.

2.29 Limited compliance mechanisms. The Vienna Convention on the Law of Treaties requires that treaty commitments be carried out in good faith. This is one of the foundations of international law. In theory, if a nation fails to abide by its commitments, other parties to an agreement can hold it to account. Many international environmental agreements include dispute settlement provisions that require parties to negotiate in good faith when disputes arise over the interpretation or application of the agreement. Some agreements also contain non-compulsory dispute settlement mechanisms, such as arbitration or hearings before the International Court of Justice.

2.30 In practice, action to enforce international environmental obligations is rarely initiated. Instead, countries are held accountable in large part through the force of peer pressure and domestic and international public opinion. The risks associated with non-compliance, including erosion of a country's reputation both at home and abroad, are perceived as persuasive elements to promote the fulfilment of treaty obligations. The media attention brought to bear on worldwide compliance issues regarding prominent international agreements such as the United Nations Framework Convention on Climate Change, and the issuance of "performance report cards" by international environmental non-government organizations, may well serve as additional prompting to encourage nations to carry out their commitments.

2.31 The new mechanisms to promote and encourage compliance, referred to in paragraph 2.20, include:

  • financial assistance and other financial incentives to help less developed countries pay for implementation measures;
  • technology transfer and information exchange to facilitate access by less developed countries to environmentally friendly technology as well as to training and information;
  • non-confrontational and conciliatory procedures to deal with situations of non-compliance. For example, the non-compliance procedures under the Montreal Protocol are designed to provide maximum opportunities to promote compliance, rather than to inflict punishment. They allow for self-reporting on compliance problems, enable parties to raise concerns about the conduct of other parties and establish an Implementation Committee that makes recommendations to encourage compliance;
  • trade measures to discourage trade with countries not party to an agreement and to encourage those countries to become parties to the agreement;
  • trade sanctions to punish behaviour of parties to an agreement whose actions contravene the provisions of the agreement; and
  • joint or shared implementation whereby, for example, a country can partially meet its emission reduction targets by offsetting its domestic emissions with projects to finance emission reductions in other countries.
Canada's involvement
2.32 The global trend toward more agreements that address increasingly complex issues is reflected in Canada's international environmental activities. Canada's involvement dates to as early as 1909 with the conclusion of the Boundary Waters Treaty between the United States of America and Great Britain (acting on behalf of Canada). The treaty established the International Joint Commission - the first permanent joint organization between Canada and the United States - to apply the rules for boundary water use set out in the treaty. The accord was also one of the first international agreements containing provisions relating to transboundary pollution.

2.33 Since then, Canada has signed an increasing number of agreements. It is now a party to or has endorsed over 230 binding international agreements and non-binding instruments dealing with environmental issues. Exhibit 2.6 is a time line showing when certain key international environmental agreements and instruments were signed or endorsed by Canada. Exhibit 2.7 illustrates the accelerating pace of Canada's involvement in international environmental diplomacy since the turn of the century.

2.34 Until the early 1940s, Canada was entering into one or two agreements a decade, many of them bilateral agreements with the United States that dealt with issues of transboundary water use. The number of agreements and their scope increased gradually over the next 20 years to include multilateral agreements, in areas such as whaling and nuclear testing. As noted earlier, the international environmental agenda picked up pace significantly following the Stockholm Conference in 1972, and reached a peak in the early 1990s. During that time, Canada concluded a mix of bilateral agreements (mainly with the United States) and multilateral agreements (having global or regional implications).

2.35 As caretaker of one of the largest and most ecologically diverse territories in the world, Canada faces a wide range of environmental issues. The international agreements signed by Canada reflect this diversity of concerns. They cover subjects ranging from the protection of fragile Arctic ecosystems to transboundary movement of hazardous waste, from the protection of wild flora and fauna to air and atmospheric issues.

2.36 The subject of the largest number of our international environmental agreements is fisheries and ocean issues (see Exhibit 2.8) . Canada's extensive coastline has given it a long-standing interest in maritime issues. These agreements include a range of bilateral, regional, and multilateral fisheries accords as well as pollution protection agreements to prevent marine degradation from dumping or oil spills.

2.37 Many of Canada's international agreements are bilateral and, not surprisingly, are with the United States. Our 9,000 kilometres of shared border and our close trade and economic ties mean that bilateral environmental issues with the United States continue to figure prominently in Canada's international environmental agenda. Important bilateral accords such as the Canada/US Air Quality Agreement and the Great Lakes Water Quality Agreement have been instrumental in establishing protection regimes over shared air and water resources.

2.38 In addition to being party to a wide range of agreements, over the years Canada has played an active role in the development of a variety of international environmental accords. It has built a reputation for neutrality and fair play and as an honest broker, at times assuming a leading role in global efforts to protect the environment and promote sustainable development. For example, Canada's leadership in establishing the international regime for protection of the ozone layer (the Montreal Protocol ) is widely acknowledged, as is its central role in the development of the 1995 United Nations agreement to protect straddling fish stocks and migratory fish stocks.

2.39 Canada also hosts the secretariats for key global and trilateral agreements . The Commission for Environmental Cooperation under the North American Agreement on Environmental Cooperation is located in Montreal, as is the Secretariat for the Convention on Biological Diversity and the Secretariat for the Multilateral Fund under the Montreal Protocol.

2.40 Canada's alliances to foster environmental protection extend to regional and hemispheric agreements in the context of trade relations. The regional North American Agreement on Environmental Cooperation with Mexico and the United States was concluded in 1994. A similar co-operation agreement was signed with Chile in 1997, and it is anticipated that environmental considerations will form part of the discussions in upcoming negotiations for a proposed free trade agreement covering North, Central and South America.

The current negotiating agenda
2.41 Canada continues to play a part in ongoing international efforts to deal with environmental and sustainable development concerns at both the regional and global levels. Exhibit 2.9 illustrates the types of agreements that Canada is in the process of negotiating. A number of them are new multilateral agreements; others involve new protocols under existing agreements. Pollution and hazardous substances figure prominently in the current negotiating agenda, as does biotechnology.

Developing International Environmental Agreements

2.42 Canada devotes considerable time and effort to developing international environmental agreements. For each agreement, there is a timetable of international work and meetings as well as a separate domestic process that Canada follows to prepare its negotiating position.

The international process
2.43 The international process for developing multilateral international environmental agreements can be lengthy and cumbersome. This is inevitable when trying to reach consensus among many nations, all with varying levels of industrial development, technical capabilities, resources and environmental priorities or concerns. The process can span several years, and proceeds in stages. Exhibit 2.10 is a simplified representation of what is a complex process for multilateral agreements.

2.44 Initial call to action. The process generally begins with the scientific community identifying a hazard, and building sufficient scientific certainty to persuade governments to take collective action. This stage in the process can take a significant amount of time. For example, scientists had identified chlorofluorocarbons (CFCs) as contributors to the thinning of the stratospheric ozone layer as early as 1974. However, it was not until the discovery of a large hole in the ozone layer over the Antarctic in 1985 that countries agreed to the control measures set out in the 1987 Montreal Protocol .

2.45 Negotiation. Once there is an international consensus on the need for joint action on a problem, negotiations are normally launched through an international organization, often a United Nations body. Country representatives meet periodically in working groups to negotiate the text of a draft agreement. Over an 18- to 24-month period, four or five sessions may be required, each lasting one to two weeks. Between sessions, nations develop and refine their own positions in light of their particular domestic interests and capabilities.

2.46 Once the working groups have developed a draft agreement, negotiating delegations from each nation meet in a formal plenary session. They then break out into smaller, more informal sessions to negotiate the text of the agreement. For example, six negotiating sessions of two weeks each over a period of approximately 16 months were required to conclude the United Nations Framework Convention on Climate Change . The negotiating sessions were supplemented by other informal meetings among groups of countries. To promote a particular position, nations often seek alliances with other countries seen to have similar interests.

2.47 Signature. Once the text has been finalized, a diplomatic conference is convened to conclude the agreement and approve it in principle. The agreement is then opened for signature. Signature can take place either immediately or over a period of months after the convention is finalized.

2.48 Ratification. Signature of an agreement does not mean that the signing nation is automatically bound by it. Most multilateral treaties also require the signing states to ratify the treaty. This is often accomplished by the country issuing an instrument of ratification. In Canada, both signature and ratification require federal order-in-council approval. In the interim period between signature and ratification, countries are obliged under international law to refrain from doing anything to frustrate the intent of the treaty.

2.49 As a matter of policy, Canada will not ratify a convention until it is sure that it is in a position to comply with the accord. This can mean enacting laws or regulations to meet new international standards, ensuring that the necessary administrative structures are in place or adopting appropriate policies and strategies. In Canada, these implementing activities may be required at both the federal and provincial levels.

2.50 Entry into force. The date a treaty enters into force is the date from which its provisions can legally be enforced against the nations that have ratified it. In some cases, the treaty provisions will provide that it enters into force after a specified number of nations have ratified it. Often, before a treaty enters into force there is a process by which an interim work program is developed to ensure that no time is lost in implementing the agreement's provisions once it does come into force.

2.51 Meetings to review and amend. Treaties provide for ongoing meetings of the parties at regular intervals. Initially, the parties choose a location for the secretariat office, and establish a budget and schedule for regular meetings. Thereafter, parties meet to develop, approve and review work programs and budgets, review progress, make decisions about the interpretation of the agreement's provisions and, if appropriate, make adjustments or amendments to take into account new scientific or technological advances. In many cases, treaties provide that parties must report to an identified supervisory body about measures they have taken to implement the provisions of the treaty.

The domestic process
2.52 To participate effectively in these international processes, Canada must develop a negotiating position to take to the international bargaining table. Exhibit 2.11 illustrates the domestic process for preparing Canada's negotiating position. Although all the elements shown form part of the process, their sequence and the importance attached to each one may vary from one agreement to another.

2.53 Canada's domestic process is centered on consultation. The cross-cutting nature of environmental issues and the structure of our federal system of government make consultation integral to the development of Canada's negotiating position. At the interdepartmental level, consultation helps ensure that the impact of proposed agreements on policy and sectoral interests are addressed across the federal government. Provincial and territorial consultation occurs when local natural resources or regional business interests are affected, and when provincial and territorial action is required for implementation. Consultations are also carried out with non-governmental organizations representing business, industry, environmental, labour and other interests. The process is an iterative one; consultations on the Canadian position are repeated after each international round of negotiations on a particular agreement.

2.54 The negotiating stance. In some instances, Canada will negotiate an agreement on the basis of programs or laws it already has in place. In these situations, Canada would not be required to initiate any new domestic programs to comply with its international obligations. Such was the case with the 1985 Protocol on sulphur emissions under the Convention on Long-range Transboundary Air Pollution . That Protocol required parties to reduce emissions by 30 percent - a target that Canada had already established and was implementing through its Canadian acid rain abatement program.

2.55 In other cases, however, signing an agreement will require new domestic action. For example, the Basel Convention on the Control of Transboundary Movements of Hazardous Waste and Other Matter led to regulatory changes to bring Canada's standards into line with new international norms.

2.56 Departmental roles and responsibilities. Foreign Affairs and International Trade has the mandate to manage and conduct international negotiations, and to sign the resulting agreements on behalf of Canada. Although this Department is always part of the negotiating delegation, the lead responsibility is often given to or shared with the federal department having the expertise in the area of concern. In the environmental field, Environment Canada plays a key role in this process. Both the Department of Justice and Foreign Affairs and International Trade share the responsibility for advising on the legal implications of entering into treaties. For Foreign Affairs and International Trade, the international trade portion of its mandate poses a challenge in balancing the trade and environmental aspects of certain agreements.

2.57 Interdepartmental consultations. The lead department uses the information developed by international scientific expert groups or organizations to prepare an initial draft Canadian position. This draft is then circulated to other federal government departments for comment. The objective is to obtain a view that is representative of the federal government as a whole.

2.58 A core group of federal departments most directly concerned with the subject matter of the agreement is generally formed, with a steering committee that focusses on ensuring that deadlines for preparing Canada's negotiating position are met. For agreements with an environmental focus, this core group often comprises Agriculture and Agri-Food Canada, Environment Canada, Finance Canada, Fisheries and Oceans, Health Canada, Industry Canada, Natural Resources Canada, and Transport Canada. The membership changes depending on the topic of the agreement under negotiation.

2.59 Provincial and territorial consultation. Negotiation, ratification and implementation of international environmental agreements can pose a particular challenge for Canada because of shared jurisdiction for environmental matters. The federal government has the right to enter into agreements on behalf of Canada. However, implementing them may require action by the provincial and territorial governments if the subject matter of the agreement falls under their jurisdiction. Consultation with provinces and territories, therefore, is a key element not only in building a national consensus on Canada's negotiating position but also in ensuring successful implementation once the agreement is concluded. These consultations are often done through the Canadian Council of Ministers of the Environment, which consists of the environment ministers of the federal, provincial and territorial governments. Sometimes other ministerial councils, such as that of energy ministers, are also involved.

2.60 Each international negotiation session for an agreement requires a series of parallel domestic efforts to brief provinces and territories on new developments and to seek further input as the Canadian negotiating position evolves. The interplay between the domestic and international processes in negotiating international agreements poses a significant challenge, not only to provide adequate resources but also to build sufficient flexibility into the domestic process to allow for a timely and comprehensive response from provinces and territories.

2.61 Other consultations. During the process, and depending on the subject matter of the agreement, the input of representatives from industry, environmental, labour, Aboriginal and other organizations is sought. Canada has been innovative in that it is one of the few nations to include representatives from non-governmental organizations on its negotiating delegations. This policy was instituted at the 1992 Rio Conference on Environment and Development and continues to date for many of the new agreements and protocols currently under negotiation.

2.62 Informal consultations may also be carried out through staff in Canadian diplomatic missions in selected foreign countries. This can give the government an early indication of the nature and range of positions being taken by other countries.

2.63 Refining the negotiating position. After the consultation process is completed, the lead department reformulates the draft position and circulates it for final comment among the federal departments, provincial and territorial governments and non-governmental organizations affected. A Memorandum to Cabinet is prepared by the lead department, setting out a proposed Canadian position and describing possible alternatives. It provides background information on the issues, sets out the consequences of proposed courses of action and provides the parameters within which the negotiation position is developed. It may be required at various points in the negotiating process depending on a number of factors, including the nature of the subject matter of the agreement.

2.64 Before the delegation attends the international negotiations, Foreign Affairs and International Trade issues delegation instructions, based on Cabinet direction when provided, to guide the Canadian delegation at the international negotiating table.

2.65 As already noted, the international process involves several negotiating sessions. This necessitates repeating the domestic consultation process at each stage to shape the Canadian position in light of developments at the international negotiating table.

Implementing International Environmental Agreements

2.66 As the previous sections illustrate, countries such as Canada devote a considerable amount of time and energy to the negotiation of international environmental agreements. The development of these accords has been a major preoccupation of the international community and underlines the importance attached to this tool of international co-operation.

2.67 However, more attention is now being brought to bear on the implementation of treaty commitments. Given the enormous potential of these accords to transform the ways humanity uses the planet, putting environmental treaty commitments into effect requires that sufficient time and effort be directed toward translating them into meaningful action at home and abroad.

2.68 Exhibit 2.12 sets out some of the commitments Canada has made under three key international agreements: the Convention on International Trade in Endangered Species of Wild Fauna and Flora , the Montreal Protocol on Substances That Deplete the Ozone Layer and the Convention on Biological Diversity . These treaties illustrate the range of obligations Canada has assumed, including reporting, technology transfer, institution of control measures, information exchange and financial assistance. The exhibit also shows that implementation may require not only national but also international measures.

2.69 Domestic implementation. On the domestic front, it may mean enacting new laws and regulations to bring domestic legislation into harmony with international requirements. In the Canadian context, action by more than one level of government may be required. It may also entail administrative action such as establishing programs for research, monitoring and enforcement. For example, the Montreal Protocol required Canada to adopt new regulations to bring its control measures for ozone-depleting substances into line with international norms. Similarly, federal legislation and regulations reflect the import/export permit system requirements under the Convention on International Trade in Endangered Species of Wild Fauna and Flora . The federal government adopted a federal Biodiversity Strategy to fulfil a requirement under the international convention. All three agreements require Canada to submit reports to a central international body on various aspects of its implementation performance.

2.70 International implementation. Internationally, agreements may commit Canada to contribute toward enhancing the implementation capacity of other nations through information sharing, technology transfer or financial aid. Encouraging implementation and compliance by developing countries through these various forms of assistance is a major trend of recent international environmental agreements. Both the Montreal Protocol and the Convention on Biological Diversity illustrate this trend . For instance, the Montreal Protocol requires parties to provide financial assistance to qualified countries who are parties to the Protocol, to assist them in implementing their control obligations. In addition, both the Montreal Protocol and the Convention on Biological Diversity oblige Canada to facilitate the transfer of technology to developing countries as well as to promote technical and scientific co-operation.

Improving Our Knowledge Base

2.71 While Canada is party to a large number of international environmental agreements, it does not systematically track its performance in implementing its commitments under them. Because information on implementation and compliance with international environmental agreements is spread throughout the various branches and divisions of departments with implementation responsibility, Canada does not have an overall picture of how good a job it is doing at meeting its international obligations: where it has been successful; what gaps remain; what lessons have been learned. This failure to consolidate information is a significant barrier to Parliament's oversight of the implementation of Canada's international environmental commitments.

2.72 A thorough assessment of Canada's implementation performance would require, at a minimum, information in four areas:

  • What has Canada committed itself to do?
  • What actions are required to meet those commitments?
  • What actions have been taken?
  • How successful have these actions been in fulfilling Canada's commitments?
2.73 What are Canada's commitments? In the course of carrying out this study, we were unable to locate a comprehensive listing of the environmental and sustainable development commitments Canada has made. In other words, there is no ready answer to the first question.

2.74 The Treaty Section of Foreign Affairs and International Trade does publish annually a list of all bilateral and multilateral treaties in which Canada is involved, ranging from culture to peacekeeping, from trade to development aid. A separate listing is kept for non-binding Memoranda of Understanding. The treaty list shows dates of signature, ratification, and entry into force of an agreement and assigns it a Canada Treaty Series number for reference purposes.

2.75 The list provides no information on the specific commitments made under each agreement. This type of information can be obtained by consulting the treaty texts available in print form from the Treaty Section at Foreign Affairs and International Trade. Electronic versions of certain texts are available from international organizations such as the United Nations Environment Program or convention secretariats. Various implementing departments such as Environment Canada and Fisheries and Oceans have lists of agreements that fall under their respective mandates. The texts of certain international environmental agreements are also available from departments.

2.76 Developing an inventory. As a first step toward enhancing the understanding of Canada's performance in implementation, we have compiled an extensive inventory of international environmental and sustainable development agreements and instruments signed or endorsed by Canada. The information for this inventory was gathered from a wide variety of sources, both within the federal government and internationally. We developed a classification scheme based on systems used by Foreign Affairs and International Trade and by the United Nations and other international organizations. To date, this inventory contains more than 230 binding international agreements and non-binding instruments.

2.77 A data base on Canada's commitments. The inventory is the foundation for a data base on Canada's international environmental commitments, currently being constructed by the Commissioner of the Environment and Sustainable Development. The initial work on the data base has focussed on legally binding agreements. This work is being carried out in collaboration with Foreign Affairs and International Trade, Environment Canada and other federal departments. The data base is intended to be a publicly available information tool.

2.78 It will provide a detailed list and classification of all commitments made under each agreement. It will also contain more general information on the purpose of each agreement; its geographic scope; the subject matter covered; dates of signature, ratification or amendment; and the lead or responsible federal department. Further information on the data base is contained in the Appendix entitled "About the Data Base" .

2.79 Next steps. Over the next year, the data base will be accessible through the Internet as a "work in progress", in order to obtain comments and suggestions to improve its usefulness. At the same time, we will add information on the remaining treaties from our inventory. Once the initial input of data on treaties is completed, Foreign Affairs and International Trade has agreed to assume responsibility for the completion and ongoing maintenance of this information tool.

2.80 While the data base will help to identify the commitments Canada has undertaken, it is only the first step in assessing Canada's implementation performance. The remaining steps - cataloguing and assessing implementation measures to answer the remaining three questions set out in paragraph 2.72 - require considerable analysis.

2.81 The data base has been designed to provide details on implementation measures for each commitment. The task of completing the information at this level should fall on the departments that know the complete range of implementing programs and actions in place. We expect that Foreign Affairs and International Trade and Environment Canada will work with other departments on a broader assessment of Canada's implementation performance, to identify gaps and to co-ordinate the effective management of Canada's international obligations for environment and sustainable development issues.

2.82 This study is part of our ongoing work to review how Canada is doing at meeting its international environmental commitments, and how it can improve its performance. We will continue in-depth analysis of selected individual agreements. For example, we will be conducting additional work on Canada's climate change commitments, and a review of Canada's efforts to protect the Arctic environment.

Conclusion

2.83 The growing internationalization of environmental problems has increasingly led countries to look to transboundary and global solutions. Particularly since the 1972 United Nations Conference on the Human Environment held in Stockholm, the international environmental agenda has grown, and with it the number, diversity and scope of international agreements.

2.84 Canada has often played a key role in shaping the international environmental agenda, and is a party to a significant number of agreements. In entering into these agreements, Canada has made commitments to the international community and, under international law, is bound to carry out those commitments in good faith.

2.85 As we have noted previously, information on the implementation of and compliance with international environmental agreements is spread throughout the various branches and divisions of departments with implementation responsibility. As a consequence, Canada does not have an overall picture of the extent to which it is meeting its international obligations. This lack of accessible information is a significant barrier to Parliament's oversight of the implementation of Canada's international environmental commitments.

2.86 Information is key to effective management of our commitments. A publicly accessible data base of Canada's environmental commitments is being constructed by this Office as a first step toward enhancing understanding of Canada's performance in implementation. A complete picture on this issue will be obtained only if a broader assessment of the extent to which Canada is living up to its obligations under these commitments is carried out and reported by all departments with implementing responsibilities.


About the Study

Background

This study is part of an ongoing work program to assess how Canada is doing at meeting its international environmental commitments, and how it can improve its performance. Recent audit work by the Office has focussed on specific agreements, including the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal , the Montreal Protocol on Substances That Deplete the Ozone Layer , the United Nations Framework Convention on Climate Change and the Convention on Biological Diversity . While the scope of these audits generally covers more than the implementation of international obligations, certain findings raise concerns about Canada's overall performance with regard to both its international obligations and its domestic policy response to such obligations.

In his first report, the Commissioner of the Environment and Sustainable Development undertook to create an inventory of Canada's international environmental commitments. This study provides background information on the development of these agreements and is part of the Commissioner's ongoing work plan to review the extent to which Canada is meeting these commitments.

Scope

This study concentrates on international agreements with a primarily environmental focus, and does not address those that deal with the broader social and economic aspects of sustainable development. It focusses on legally binding agreements but also refers to certain non-binding instruments of recognized international importance. Moreover, it looks at only international agreements signed by Canada and not at international commitments entered into by other levels of government.

Objectives

The objectives of the study were:

  • to prepare an inventory of Canada's international environmental and sustainable development agreements and to commence constructing a data base that will serve to identify the range of commitments under these agreements;
  • to give background information on the international context that has fostered the creation of these agreements, on the process for entering into them, and on the nature of implementation measures to be taken;
  • to help build capacity within the federal government to exercise oversight on Canada's priorities and commitments with respect to international environmental agreements; and
  • to provide baseline information to the Commissioner of the Environment and Sustainable Development to assess the extent to which international obligations are reflected in Sustainable Development Strategies.

Approach

The information for this study was drawn from existing legal and social science literature, as well as from departmental publications. We also conducted a series of interviews with selected federal departments, such as Environment Canada and Foreign Affairs and International Trade, provincial government agencies, and environmental and industry non-governmental organizations.

In accordance with the commitment made in the Commissioner's first report, we have created an inventory and an electronic data base of these agreements. The information was drawn from a variety of sources, including the United Nations Treaty documentation, Foreign Affairs and International Trade's Treaty Series, publications of the Organization for Economic Co-operation and Development, and other reputable sources. We have also solicited information from over 24 federal departments and agencies on their respective roles in the implementation of these commitments.

We worked with Environment Canada and Foreign Affairs and International Trade in designing the data base of Canada's international environmental agreements to ensure ease of use and application by federal departments.

Study Team

Principal: Richard Smith
Director: Darlene Pearson

Lori Elliott
Susan Mojgani

Data Base Team

Directors: Peter Morrison and Darlene Pearson

Jeanette Booth
Erin Charron

For information, please contact Richard Smith.