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2003 October Report of the Commissioner of the Environment and Sustainable Development

Message from the Commissioner

When I took up the post of Commissioner of the Environment and Sustainable Development three years ago, I considered the environmental petitions process under the Auditor General Act one of the most valuable parts of my mandate. I was surprised that so many Canadians were unaware of a direct tool available to them to seek answers from the government about "an environmental matter in the context of sustainable development." I saw an opportunity to improve public awareness of the process and to promote its use as the effective accountability tool Parliament designed it to be.

I see the petitions process as a tool for individual Canadians to personally require accountability from their government. People from across the country often write and ask me to investigate or audit an environmental incident or issue that has come to their attention. Everyone has an important story to tell. Nevertheless, I do not have the resources to tackle every issue. That is why I encourage Canadians to pursue their concerns, large or small, on their own behalf by exercising their right to submit petitions. They can be confident that through the petitions process, they will receive authoritative and timely responses to their concerns directly from federal ministers and departments.

My first two Reports to Parliament, in 2001 and 2002, promoted the petitions process by providing information and demonstrating that the process was effective at getting answers for Canadians. I am pleased that the use of the process is increasing. And departments are giving petition responses their attention and efforts.

In their responses over the years, federal ministers have made commitments to act on the environmental concerns raised by petitioners. But who is taking the next step—following up to determine whether these promises have generated real action by departments?

As the guardian of the environmental petitions process on behalf of the Auditor General, I am convinced that it is vitally important to take this task on. We will know if this process really generates positive benefits for the environment only if we check to see whether departments have followed through on their commitments. In this chapter we report on our first audits of commitments made in petition responses.

Besides reporting whether departments lived up to commitments, these audits can raise broader questions for parliamentarians to consider.

Although trichloroethylene (TCE) was declared toxic and probably carcinogenic to humans a decade ago, Environment Canada has only recently finalized control measures for this substance. I highlighted this long delay in my 2002 Report (Chapter 1, Toxic Substances Revisited, Exhibit 1.5). The Department began to develop regulations in 1997. In its February 2001 response to Petition No. 25, Environment Canada committed to completing the draft regulations and set a target of mid-2001. While it did succeed in introducing draft regulations, it was in December 2002, after a further 16-month delay. The final regulations came into force on 24 July 2003.

The Canadian Drinking Water Quality guideline for TCE was established in 1987. It was flagged for review in 1993. However, it was not until May 2000 that Health Canada recommended that the reassessment for TCE begin as soon as possible. This review did begin in earnest in the spring of 2002 and it is now complete (as promised by Health Canada in its petition response, Petition No. 25). The result is that Health Canada is recommending that the TCE guideline be made more stringent. The Department must now work with the provinces and territories to make any final changes to the guideline. I encourage Health Canada to work as quickly as possible to see that this is realized.

While I appreciate the complexity of putting in place new regulations and guidelines, I am troubled that actions to protect human health and the environment take so long.

The Canadian International Development Agency (CIDA), in response to Petition No. 41B, decided to enhance public access to environmental assessments it funds by, for example, ensuring that these assessments are made available on the Internet. The commitment was limited to environmental studies for hydro dam projects—only one of various types of infrastructure projects in which CIDA is involved. What is the rationale for applying this commitment to only one type of project? Does CIDA intend to enhance public access to environmental studies for other types of projects? CIDA was unable to respond to such questions to my satisfaction.

I remain committed to the environmental petitions process and to seeing it develop further as an important accountability tool for Canadians.

Main Points

4.1 Our audits of actions taken by departments on commitments made in four responses to petitions found inconsistent results. On the one hand, we found that some challenging commitments were fulfilled by departments. On the other hand, what might be seen as relatively simple policy and procedural changes were poorly implemented.

4.2 Specifically, in the four audits we found the following:

• Environment Canada met its commitment to develop a regulation for the toxic substance trichloroethylene, albeit later than its target date, and 10 years after the substance was declared toxic. Health Canada has met its commitment to review the Canadian Drinking Water Quality Guideline for trichloroethylene and is recommending a tightening of the guideline.
• Environment Canada has substantially met its commitment to assure itself that a pulp mill in Manitoba is in compliance with regulatory discharge limits and environmental effects monitoring requirements.
• Fisheries and Oceans Canada has not met its commitment: it has failed to take the first steps crucial to implementing a new policy to notify project proponents about public access requirements under the Canadian Environmental Assessment Act.
• The Canadian International Development Agency has not met its commitment: it has not fully implemented a new requirement designed to enhance public access to and public participation in environmental studies it funds for proposed hydro dam projects outside of Canada.

Fisheries and Oceans Canada and the Canadian International Development Agency have responded. Both departments have accepted our recommendations to implement their petition commitments. Their responses, which follow the recommendations in the chapter, indicate the actions they intend to take and when these will be complete.

4.3 We have seen a number of positive developments in environmental petitions in the past year:

• The number of petitions continues to grow (up from 28 last year to 38 this year).
• The variety and range of issues being addressed by Canadians using the petitions process has expanded to include topics such as endangered species, wind energy projects, contaminated harbours, strategic environmental assessment, nuclear liability, and military training areas.
• New types of petitioners are using the process: members of provincial legislatures and elementary and university students.
• Petitioners are using the process again to follow up on the responses they have received.
• Late responses by Fisheries and Oceans Canada and Environment Canada are no longer an issue.
• Parliamentary interest in the petitions process has increased.

4.4 This year, all but a few petition replies clearly responded to petitioners' concerns and requests.

4.5 Ministers and departments are taking advantage of the opportunities presented by the petitions process. They have used their petition responses as a platform to clarify federal policies and positions and to explain their role and involvement in an issue. In some cases, they have pledged to take action in response to petitions and have announced new policies or requirements. They have also initiated a research study and launched investigations.

Background and other observations

4.6 The environmental petitions process was established under the Auditor General Act in 1995. The Commissioner co-ordinates the petitions process on behalf of the Auditor General. Through the environmental petitions process, Parliament has provided Canadians with a tool to ask questions about and to receive authoritative answers to environmental concerns that involve the federal government.

4.7 The full text of petitions and responses can be found in the petitions catalogue on our Web site.

Introduction

4.8 Under the Auditor General Act, any Canadian resident, whether an interested individual, organization, a business, a municipality, or other body, has the right to submit an environmental petition to the Auditor General of Canada. Petitions need only concern an environmental issue; they can be put into the broader context of sustainable development. The issue must be the responsibility of at least one of the 25 federal departments and agencies listed in the Act (Exhibit 4.1). The Commissioner of the Environment and Sustainable Development co-ordinates the petitions process on the Auditor General's behalf. The Commissioner forwards petitions to the appropriate departments and agencies. Petitioners are entitled to a substantive reply to their petitions within 120 days from the appropriate federal ministers. The basics of the petitions process are described in Exhibit 4.2.

4.9 This year we audited selected commitments made in past petition responses. Such audits will be presented regularly in the petitions chapter of our annual reports to Parliament.

4.10 We examined all 60 petitions from previous years, and selected four of them for audit (one petition, No. 25, involved two departments). Among the criteria we used in our selection were the significance of the commitment, the risk to the environment, and the timeframe given for action on the commitment.

4.11 Details of the four audits follow, and then our general conclusions about the audited commitments.

4.12 Following the audits is our annual report to Parliament on the petitions process. It reports on the petitions received between July 2002 and July 2003 and the responses produced by departments during that period; and it highlights important issues raised in petition responses.

Audits of Petition Response Commitments

Strengthening Protection Against a Toxic Substance

Petition requested federal actions

4.13 Residents of Beckwith Township, a small rural community near Ottawa, discovered in March 2000 that many of their wells were contaminated with trichloroethylene (TCE). A decade ago, this substance was declared under the Canadian Environmental Protection Act (CEPA) to be toxic to the environment and to human health and is considered probably carcinogenic to humans.

4.14 This toxic substance was detected in the water supply of over 240 homes in the Beckwith area. TCE can enter groundwater supplies in different ways, including the mishandling of waste (including spills), inappropriate disposal by consumers, and seepage from landfill sites and contaminated soils. In the case of Beckwith, the source was an abandoned landfill site in the area. (See photograph)

4.15 In October 2000, our Office received an environmental petition (Petition No. 25) from the Sierra Legal Defence Fund, on behalf of the Beckwith Water Contamination Committee. The federal concerns and requests raised in the petition were addressed to the ministers of the Environment and of Health. The petitioners were concerned that seven years after TCE was declared as toxic under the Canadian Environmental Protection Act, no regulatory steps had been taken to control its release into the environment. They were also concerned that the Canadian Drinking Water Quality Guideline for TCE is set at 0.05 mg per litre of water, whereas the United States Environmental Protection Agency set its standard at 0.005 mg per litre of water. While the petitioners noted that several actions had already been taken, they requested that the Minister of the Environment take action to regulate trichloroethylene under the Act. They also requested that the Minister of Health ensure that the Canadian TCE guideline is as strict as, or stricter, than the U.S. standard.

Environment Canada and Health Canada play a role in the management of toxic substances

4.16 Environment Canada has the lead responsibility for managing and regulating toxic substances under the Canadian Environmental Protection Act. Health Canada is a member of the Federal-Provincial-Territorial Committee on Drinking Water, which develops the Canadian Drinking Water Quality Guidelines that include the guideline for TCE. Health Canada serves as the technical secretariat for this committee. As the federal partner, Health Canada performs research, conducts reviews, and provides technical advice to the Committee. The information it provides forms the basis for co-operative work with the provinces and territories to establish the Canadian Drinking Water Quality Guidelines or to reassess them.

4.17 The ministers of Environment and Health responded jointly to the petition in February 2001.

4.18 Response from Environment Canada. In its response to the petition, Environment Canada made a significant commitment with an expected timeline for implementing the actions. The response stated:

Environment Canada will move as expeditiously as possible to bring into force a regulation for TCE under [the Canadian Environmental Protection Act]... a proposed regulation is expected to be ready for publication in Part I of the Canada Gazette by mid-2001.

4.19 Response from Health Canada. Health Canada stated that it was reviewing the TCE guideline and that it had given higher priority to reassessing the TCE guideline. The Minister provided the following assurance to the petitioners:

Health Canada will expedite its review of the adequacy of the current Canadian Drinking Water Quality Guideline for TCE and work through the existing [federal-provincial-territorial] mechanism to encourage the earliest possible implementation of any forthcoming recommendations relating to the revision of the TCE guideline.

Focus of the audit

4.20 In examining whether Environment Canada and Health Canada have fulfilled the ministers' commitments to the petitioners, we asked the following questions:

• Did Environment Canada meet its mid-2001 target for publishing the proposed regulations in Part 1 of the Canada Gazette?
• Did Environment Canada fulfil its commitments to the petitioner to establish regulations for controlling the release of TCE into the environment?
• Did Health Canada review the TCE guideline in the Canadian Drinking Water Quality Guidelines and recommend revisions?
• If so, did Health Canada work through the Federal-Provincial-Territorial Committee on Drinking Water so that the recommendations would be implemented as early as possible?

Observations

Environment Canada has published TCE regulations

4.21 Environment Canada published its proposed Solvent Degreasing Regulations (which include the toxic substances trichloroethylene and tetrachloroethylene) on 7 December 2002 in Part 1 of the Canada Gazette. This was about 16 months later than its commitment had specified. The purpose of the proposed regulations was to reduce the release of trichloroethylene into the environment from facilities and industries that use solvent degreasing. The final regulations came into force on 24 July 2003.

4.22 Environment Canada's failure to publish the proposed regulations within the timeframe specified in the petition response is particularly significant. Given that TCE was declared toxic in 1993, and that the Department began to develop the regulations in 1997, these delays are difficult to justify (Exhibit 4.3).

Regulation was a challenge from the start

4.23 Environment Canada began to develop the regulations in 1997 following a consultative process with stakeholders. The stakeholders recommended that Environment Canada bring in a market-based "cap-and-trade" system that would put a three-year freeze on the amount of TCE used. After that, users would reduce the amount of the chemical used by 65 percent (Exhibit 4.4). The Minister accepted the stakeholders' recommendations and announced that Environment Canada would proceed.

4.24 The concept of a market-based cap-and-trade mechanism for trichloroethylene created significant challenges for the Department. One challenge involved translating the concept into a regulatory instrument that would work and that could be enforced. Another challenge was the need for an extremely accurate profile of TCE users if Environment Canada was to be able to apply and enforce this regulation. According to the Department, it was a major undertaking to establish which facilities were using TCE, what they were using it for, and how much they were using.

Environment Canada faced delays in the final stages

4.25 The Minister of the Environment made a commitment to the petitioners in February 2001 to have the proposed regulations published in Part 1 of the Canada Gazette by mid-2001, an interval of about five months. According to Environment Canada, this was a "best-case scenario" that assumed the Department understood how large the task would be and nevertheless thought it could meet the target date.

4.26 Following the commitment made by Environment Canada in February 2001, the Department met challenges that resulted in significant delays. Publication of the proposed regulations was delayed from mid-2001 to December 2002. The main cause of the delay was the Department's discovery, after the response to the petition, that the information it had about the industries that used TCE was incomplete and unreliable. At the time of the response, Environment Canada was nearing the completion of a technical draft of the proposed regulations. However, while it had compiled a list of over 2,400 industries that use TCE, it had not determined how many were using it for degreasing operations, and how much they were using. In August 2001, Environment Canada decided to issue a request in Part 1 of the Canada Gazette for industry information about the use of TCE.

4.27 We found that Environment Canada was overly optimistic in expecting to publish the proposed regulations within five months. Given the amount of work needed to complete the Department's information and prepare the regulations for publication, a target date of five months was unrealistic.

4.28 A full ten years after trichloroethylene was declared toxic under the Canadian Environmental Protection Act, the final regulations were put in place on 24 July 2003. The Department noted that the use of TCE in degreasing had declined in Canada between 1995 and 2000. It attributes this reduction in part to its work with stakeholders and the resulting awareness in the marketplace that regulations were being developed.

Health Canada recommended strengthening TCE guideline

4.29 Health Canada is a federal representative on the Federal-Provincial-Territorial Committee on Drinking Water and has the role of technical secretariat. The Canadian Drinking Water Quality Guidelines are used by the provinces and territories to establish their own enforceable regulations, as well as objectives, or guidelines. Health Canada's role on the Committee is to carry out scientific risk assessments to support the development of new guidelines and to provide the information needed to evaluate current guidelines.

4.30 The 1987 guideline for TCE was based only on the risk from consuming trichloroethylene (Exhibit 4.3). It did not take into account the risks from inhaling it. When the chemical was declared a toxic substance under the Canadian Environmental Protection Act in 1993, its rating as a cancer-causing substance was raised from "possibly carcinogenic to humans" to "probably carcinogenic to humans". There was also more evidence of the potential risks from inhaling TCE while bathing or showering. The reclassification of TCE under the Act put it on the list of guidelines that the Federal-Provincial-Territorial Committee on Drinking Water had to review. With the release of the sixth edition of the Guidelines for Canadian Drinking Water Quality (1996), Health Canada stated that the TCE guideline was being considered for revision because of new evidence. However, it was not until May 2000 that the Federal-Provincial-Territorial Committee on Drinking Water gave a higher priority to reassessing the TCE guideline.

4.31 In February 2001, the Minister of Health made a commitment to the petitioners to expedite the review of the Canadian Drinking Water Quality Guideline for TCE. While the Department did some preliminary work, it knew that the U.S. Environmental Protection Agency-Science Advisory Board was reviewing the health risk assessment of TCE. It decided to wait for the results before re-examining Canada's TCE guideline. In spring 2002, eight months after the Department received the U.S. document, Health Canada initiated its full reassessment of TCE. The reassessment was completed in April 2003.

Actions taken following some delays

4.32 Although 26 months had passed from the date of the commitment to review the TCE guideline until the review was completed, we found that Health Canada met the commitment to the petitioners. Health Canada cites three reasons for the delay that occurred between the commitment and its completion of the review.

• Health Canada received the United States Environmental Protection Agency data eight months later than expected. There was a further delay of eight months before an evaluator was available to do the review. It was completed by April 2003.
• Over the same period, Health Canada dealt with other issues that took priority, including the aftermath of the tragedy in Walkerton, Ontario. The Department stated that the review of the TCE guideline was occasionally delayed when the staff members assigned to the job were reassigned to other urgent issues.
• Health Canada used a new approach to review the TCE guideline. It said that the complexity of the approach added more time to the review process. Health Canada has stated that once this approach is established, the Department will apply it to review other substances similar to TCE. By mid-July 2003, the science on which the new approach was based had undergone the required external peer review. Health Canada will now need the approval of the Federal-Provincial-Territorial Committee on Drinking Water to proceed with a four-month national consultation process. The results of the consultations will be taken into account before the TCE guideline is formally amended. Final approval rests with the parent committee of the Federal-Provincial-Territorial Committee on Drinking Water, which is the Federal-Provincial-Territorial Committee on Environmental and Occupational Health.

4.33 As a result of its own review, completed in April 2003, Health Canada concluded that a TCE guideline stricter than the current level of 0.05 mg per litre was required. It recommended a new standard based on the collected evidence and available technologies. The recommended level—0.005 mg per litre—would be equivalent to the current U.S. standard, although the basis for the Canadian determination differed significantly from that of the U.S. Environmental Protection Agency.

4.34 At the April 2003 semi-annual meeting of the Federal-Provincial-Territorial Committee on Drinking Water, Health Canada was not ready to present its recommendation for revising the Canadian Drinking Water Quality Guideline for TCE. The Department told us that since the external peer review was completed only in mid-July 2003, Health Canada will seek the Committee's approval to proceed with national public consultations by the next semi-annual meeting in October 2003. The Department told us, however, that a document would likely not be ready for these consultations until either January or February 2004. This means that the earliest possible amendment of the TCE guideline would be in the fall 2004.

Conclusion

4.35 Both Environment Canada and Health Canada met their petition commitments. Environment Canada published its proposed Solvent Degreasing Regulations (for trichloroethylene and tetrachloroethylene) in December 2002, although this did not meet the target dates stated in the petition response. The final regulations were brought into force on 24 July 2003, fulfilling the commitment to the petitioners.

4.36 After some delays, Health Canada had reviewed the Canadian Drinking Water Quality Guidelines for TCE by April 2003 and was currently preparing to work with the Federal-Provincial-Territorial Committee on Drinking Water on a process to amend the TCE guideline. As the quality of drinking water is primarily a provincial responsibility, we found that Health Canada has substantially fulfilled the commitment made in the petition response. However, it will take at least until fall 2004 to complete the amendments to the TCE guideline. The Department still has a role during this period in ensuring that the updated TCE guideline is approved by the Federal-Provincial-Territorial Committee on Drinking Water and published for use by all provinces and territories.

Ensuring Compliance at a Manitoba Pulp and Paper Mill

Petition raises concerns about enforcement of federal regulations

4.37 The Pine Falls mill (now known as the Pine Falls Operations and owned by the Tembec Paper Group since 1998), has operated for over 70 years beside the Winnipeg River north east of Winnipeg, Manitoba. The mill produces newsprint for domestic and international markets. It became subject to federal environmental regulations in 1992, when an updated version of the Pulp and Paper Effluent Regulations under the Fisheries Act came into effect. The previous set of regulations, dating back to 1971, had not applied to older mills like the one in Pine Falls. (See photograph)

4.38 The 1992 Regulations established tighter pollution controls on effluents being discharged into Canadian waters from pulp and paper mills: they obliged mills to monitor their discharges frequently and report the results to federal authorities. The Environmental Effects Monitoring Program is an innovative feature of the regulations. Mills are required to submit a plan for monitoring how their discharges are affecting fish and the aquatic environment around the mill, and they must report the results of their monitoring within a set timeframe.

4.39 Effluent from the Pine Falls mill discharges into the Winnipeg River. The river is the source of drinking water for the Sagkeeng First Nation; it also supports a recreational fishery.

4.40 Petition No. 19 was submitted in November 1998 by a Manitoba resident, Alice Chambers, who alleged that:

• Environment Canada had ignored numerous spills and discharges that were above the regulated limits, and thus it had not ensured that the mill's effluent was not polluting the Winnipeg River.
• It had not charged the mill for failing to comply with the requirements of the Environmental Effects Monitoring Program.

4.41 Environment Canada is responsible for administering and enforcing the Fisheries Act provisions for preventing pollution. Its officials in the Winnipeg Regional Office are responsible for enforcing compliance with the regulations; a co-ordinator in the Edmonton regional office manages the Environmental Effects Monitoring Program.

4.42 Fisheries and Oceans Canada and Environment Canada jointly developed a Compliance and Enforcement Policy (finalized in 2001) to guide departmental officials in administering and enforcing the Pulp and Paper Effluent Regulations. Enforcement activities include inspections to monitor or verify compliance, investigations of alleged violations, warnings, directions by inspectors to alleged violators, ministerial orders, and ultimately, injunctions and prosecutions.

Minister committed to ensuring compliance with regulations

4.43 In April 1999, the Minister of the Environment responded to the petitioner's concerns about the Pine Falls mill. She affirmed that Environment Canada's overarching goal is to ensure compliance with all of its regulations, including the limits on effluent discharges and the monitoring of environmental effects under the Pulp and Paper Effluent Regulations.

Focus of the audit

4.44 The overall objective of our audit was to determine whether, since responding in April 1999 to the petition, Environment Canada had taken action to ensure that the mill was in compliance with the regulations. We asked whether the Department had

• conducted regular inspections and taken other action to determine whether the mill had complied with the discharge limits;
• determined whether the documents for the Environment Effects Monitoring Program submitted by the mill were adequate; and
• taken active steps to enforce the discharge limits if the mill had not complied with the regulations.

4.45 We interviewed Environment Canada staff responsible for compliance and enforcement for the mill in Pine Falls. We reviewed compliance and enforcement records on the mill and reviewed monitoring data and other related documents that the mill had submitted to the Department.

4.46 A full examination of the Environment Canada's compliance and enforcement program was beyond the scope of this audit.

Observations

Strict effluent limits set out in the 1992 regulations

4.47 Under the 1992 regulations, Canadian pulp and paper mills are prohibited from discharging effluent that is acutely lethal to fish. Mills are, however, permitted to discharge certain other "deleterious substances" within allowable levels (total suspended solids (TSS) and biological oxygen demand (BOD)). If discharging effluent, a mill must adhere to a number of conditions. Among other things, a mill operator must:

• install, maintain, and calibrate monitoring equipment and keep records;
• monitor treated effluent and submit test results to federal officials monthly; and
• report test results that exceed the discharge limits.

Prior to the 1998 petition, the mill was authorized to exceed the discharge limits

4.48 As an older mill, the Pine Falls paper mill was able to apply for and obtain temporary authorizations from Environment Canada to exceed the stipulated discharge limits by a specific amount until 31 December 1995. Nevertheless, it did violate these higher limits on some occasions. In most of those cases, Environment Canada chose to work with the mill co-operatively rather than taking punitive enforcement action. By the end of December 1995, the mill had installed a new system for secondary treatment of effluent. Environment Canada records indicated that in 1996 the new treatment system was performing effectively with reported discharges regularly within the limits allowed.

The mill's monitoring data showed that subsequently, limits were occasionally exceeded

4.49 The mill regularly submitted monthly reports about its daily, weekly, and monthly results of effluent monitoring to Environment Canada whose enforcement staff reviewed them.

4.50 Since the response to the petition in April 1999, the mill's monitoring program revealed only a few violations. The first was in July 2001. In this case, the mill's effluent failed to meet the test for acute lethality—that is, more than 50 percent of rainbow trout subjected to the effluent were killed. The regulations require the mill to re-test, and it did. Environment Canada inspectors monitored the situation and, following remedial action by the mill, concluded that there had been no further violations. We note that the mill's effluent also failed the acute lethality test in May 2003 and failed a re-test in June 2003. Environment Canada was still investigating the matter at the end of our audit.

4.51 In 2001, the mill switched from a chemical pulping process that used acid and sulphur to turn wood chips into pulp. Its new process involves thermo-mechanical pulping that uses steam and mechanical energy. The mill operators believe that this change has resulted in significant improvements in the quality of effluent discharged by the mill.

Annual inspections not consistent

4.52 As a general rule, Environment Canada inspects the mill once a year and takes its own effluent samples. It has the samples analyzed at its laboratory in Edmonton to verify the mill's monitoring results and ensure that the mill is meeting the regulatory requirements.

4.53 We identified areas for improvement in Environment Canada's inspections of this mill. We observed that the mill was not inspected in 1999, the year the Minister responded to the petition. Documentation to confirm that the mill was inspected in 2000 was limited to a single effluent sample. There were documented inspections in 2001, 2002, and 2003. Therefore, there was a three-year gap between full and documented inspections in 1998 and 2001.

4.54 Because it inspects the mill only once a year, it is important for the Department to ensure that each inspection reviews all compliance requirements. We found that inspections of this mill could have been more thorough, consistent, and comprehensive had they used a checklist of the requirements to ensure that all were reviewed. In fact, we found that Environment Canada's inspectors had not checked all of the compliance requirements outlined in the regulations.

Environmental Effects Monitoring Program in place after a slow start

4.55 The Environmental Effects Monitoring Program helps determine whether the pollution limits set in the regulations adequately protect fish, fish habitat, and the use of the fisheries resources that live in the waters in the vicinity of a mill. Mills must submit monitoring plans, studies, and reports every few years for review by a technical panel and by the Department. The first cycle of studies under this program was due on 1 April 1996, and the second cycle in 2000.

4.56 Before the petition was submitted in 1998, the mill had missed several deadlines to submit its studies. Further in 1996 and 1997, Environment Canada had informed the mill that the cycle one studies it had submitted had problems with the quality of information and the data. The Department warned that enforcement action was a possibility.

4.57 After more than a year of dialogue, Environment Canada officials and mill representatives met and agreed that the major deficiencies identified in the first cycle would be addressed in the second cycle of studies. Environment Canada received the cycle two studies from the mill by April 2000, and was satisfied that it had met the monitoring requirements.

4.58 Under the monitoring program, the mill is also required to submit toxicological data to Environment Canada, which is incorporated into a national effluent database. Although the mill did the necessary sampling and arranged for testing, it did not always submit the test results to Environment Canada on time. The Department issued a warning in 2003 after the mill failed to submit its 2002 summer data within the allowed time.

Conclusion

4.59 We have concluded that the Minister's commitment to ensure that the regulations have been complied with has been substantially met in the case of the Pine Falls mill.

4.60 Environment Canada has continued to monitor the mill's compliance. The Department's compliance and enforcement activities and documentation, supported by data from the mill, shows that the mill is generally complying with the pollution limits set out in the Pulp and Paper Effluent Regulations under the Fisheries Act.

4.61 Environment Canada and the mill at Pine Falls have addressed the mill's early non-compliance with the requirements of the Environmental Effects Monitoring Program. Nevertheless, since the petition and response, the mill has been late submitting toxicological data required under the monitoring program.

4.62 The Department needs to ensure that it has a consistent and comprehensive approach in place, for example, by using checklists to guide inspections to facilitate a thorough review of the compliance requirements under the regulations. We note that Environment Canada has now started to use a checklist during its mill inspections.

Ensuring Public Access Under the Canadian Environmental Assessment Act

Petition challenged restrictions on access to an important environmental assessment report

4.63 One of the guiding principles in the Canadian Environmental Assessment Act is giving the public an opportunity to participate in the environmental assessment process. To realize this goal, the Act provides for public access to information on projects undergoing an assessment.

4.64 These principles were put to the test in 2001 after Bounty Bay Shellfish Inc. announced plans to expand its mussel farm in St. Ann's Harbour, Cape Breton. If completed as planned the mussel farm would reportedly be one of the largest aquaculture operations in North America.

4.65 This proposal was subject to an environmental assessment by federal fisheries officials. The proposal also sparked some debate when copyright and other restrictions were placed on an important environmental impact report that the company submitted to Fisheries and Oceans Canada to support the assessment.

4.66 In May, 2001, Dr. William Fitzgerald submitted an environmental petition to our Office (Petition No. 28) after he and other residents in the area could not obtain a copy of the report.

4.67 The mussel farm proposal needed approval under section 5 of the Navigable Waters Protection Act. This requirement, in turn, triggered the application of the Canadian Environmental Assessment Act. As the responsible authority, Fisheries and Oceans Canada had to assess the environmental effects associated with the project before deciding whether to issue the necessary federal approval to Bounty Bay.

4.68 Habitat assessors across the six regions of the Habitat Management Program of Fisheries and Oceans Canada co-ordinate and conduct these assessments, sometimes with the help of other federal departments.

4.69 The Canadian Environmental Assessment Act requires that the responsible federal authorities place on a public registry such documents as reports from project proponents and all other records related to an environmental assessment. The Act requires that the authorities make these documents available to the public upon request.

The Minister committed to ensuring public access to environmental assessment records

4.70 The Minister of Fisheries and Oceans responded to the petition at the end of October 2001. He directly addressed the petitioner's concerns about restricted access to the Bounty Bay report and indicated that the Department had taken steps to prevent similar problems from recurring in the future:

[The Department] has re-evaluated its procedure for dealing with such documents by notifying proponents that documents needed to conduct an environmental assessment will not be accepted by the Department if they cannot be shared with interested parties.

4.71 The Department confirmed that this new notification policy applies in all cases where it acts as a responsible authority, anywhere in Canada.

4.72 The commitment was reaffirmed in April 2002 when the Minister indicated in a letter to two Cape Breton residents that "actions have been taken within [the Department] to ensure that the copyright issue does not occur in the future."

Focus of the audit

4.73 We wanted to determine whether Fisheries and Oceans Canada had put its new notification policy into effect. This notification to proponents would help to ensure that documents collected under the federal environmental assessment process would be available to all interested parties, including members of the public.

4.74 In examining whether the Department has fulfilled its commitment, we asked the following questions.

• Did Fisheries and Oceans Canada ensure that adequate steps were taken to implement the policy to notify proponents about the requirements of the Act for public access and the public registry?
• Did the Department track results to assess whether it had fulfilled its commitment?

4.75 We expected that proponents would be formally notified when the Department determined that an environmental assessment was required for a project.

4.76 The Minister's October 2001 response to the petition suggests that the Department was already making changes to respond to the issues that came to light in the Bounty Bay project. Given that one and a half years had elapsed between the Minister's response and this audit, we expected that the new policy would have been fully implemented and the results tracked.

Observations

Fisheries and Oceans Canada developed a notification package

4.77 When we started our audit, officials with Fisheries and Oceans Canada immediately directed our attention to a special notification package that the Department had developed in the summer of 2001. We were told that this package could be used when the Canadian Environmental Assessment Act is triggered. It would serve as the notification to proponents that the Minister had promised when responding to the petition.

4.78 This notification package, referred to as the proactive package or public registry package, includes a letter to project proponents. It also includes information about the requirement that the federal government provide for public participation in the federal environmental assessment process, specifically, that it establish a public registry of records related to an environmental assessment, ensure convenient public access to the public registry, and release documents on the environmental assessment to the public.

To date, use of the notification package is discretionary

4.79 One and a half years since the launch of the proactive package, its status is unclear. Fish habitat assessors across the country have been asked to try out the package, but they are not required to use it. Regional directors have not yet approved the package; it is not required as a matter of official department policy.

4.80 Furthermore, our review of internal documents suggested that departmental headquarters was promoting the package primarily for high profile projects—those that "could garner much public interest and will likely lead to public registry requests"—not for all projects undergoing an environmental assessment.

The Department did not ensure that proponents were notified

4.81 Since the proactive package has not received official approval, we decided to determine whether the Department notifies project proponents about the requirements to provide for a public registry and public access. If the Department was notifying project proponents, we wanted to review the process they used.

4.82 We requested samples of recent notification letters sent to proponents from each of the six regions of the Department's Habitat Management Program. These are letters sent to proponents announcing that their proposed project is subject to an environmental assessment under the Canadian Environmental Assessment Act. Where necessary, we also interviewed regional staff.

4.83 Based on our review, we found the following:

• The Maritimes Region was using the proactive notification package fairly consistently. It was the only region to do so.
• Two other regions were also providing sufficient notification about public access and the public registry, and they were doing it on a consistent basis. These regions—Gulf and Quebec—were notifying proponents through various means, including notification letters.
• In the Central and Arctic Region, notification via a letter was done in some cases and not in others; when it was done, the message being communicated was not sufficiently clear.
• In the two remaining regions—Pacific and Newfoundland—formal notification about public access and the registry was not done at all.

The Department did not complete essential steps to implement its commitment

4.84 We found little evidence that the commitment to notify proponents has been integrated into departmental policies and procedures:

• A departmental procedures guide—originally an internal document and now available to the public and proponents via the Department's Web site—does not include any information on the new notification policy promised by the Minister. A sample notification letter, which we were advised is outdated, is provided with the guide. It contains only a brief reference to the requirement that all documents from the proponents that support the environmental assessment must be made available to the public, as part of the federal environmental assessment process.
• Another template notification letter available to assessors through the departmental internal habitat tracking system also contains only a brief reference to the public access requirements under the Canadian Environmental Assessment Act.

Key departmental staff were not aware of the commitment until our audit

4.85 Key staff based in headquarters and three of the six regions told us that they first became aware of the commitment when they were notified through various means in February 2003 that we intended to conduct an audit.

4.86 We found no evidence that the commitment or any implementation plan was systematically communicated to departmental staff.

4.87 As a result, the Department was not taking the next steps; it was not actively monitoring whether proponents were being notified in the various regions. Nor was it tracking the results of any such notification.

Regions institute new notification protocols as a result of our audit

4.88 During the course of our audit, the Pacific Region and the Central and Arctic Region sent out new directives to ensure consistent notification of proponents in the future. Departmental officials told us that our audit was one of the factors behind the decision to take that action.

Conclusion

4.89 We have concluded that Fisheries and Oceans Canada has not fully, or substantially, implemented its new notification policy as promised in the petition response. The Department has failed to take several of the important first steps crucial to fulfilling the Minister's commitment.

• The notification changes stated in the response to the petition have not been formally integrated into the Department's policies and procedures.
• The commitment, as stated in the petition response, and the Department's plan to implement it were not systematically communicated to departmental staff.
• Only three of six regions were consistently notifying proponents about the requirements for public access to all environmental assessment records and their listing on the public registry. In two regions, no notification was sent at all.
• New notification procedures were put in place in certain regions, partly as a result of our audit.

4.90 Recommendation. Fisheries and Oceans Canada should begin to implement the commitment made in its response to Petition No. 28 to ensure public access to environmental assessment records. It should develop an action plan for implementation that includes obtaining formal approval of the notification policy and communicating the policy to staff. It should track results to ensure that the commitment is implemented consistently across the country.

Fisheries and Oceans Canada's response. Recommendation accepted. Project proponents will be advised that information in documents they submit should be able to be made available through the public registry established pursuant to the Canadian Environmental Assessment Act (CEAA). Information related to the provisions of the Access to Information Act and the Privacy Act will be included in the notification.

A policy directive will be issued requiring all staff to use a CEAA notification letter to all proponents when the Department is the lead responsible authority. This notification will include information about the CEAA requirements for public access to environmental assessment documents that proponents submit to the Department. A protocol will also be implemented requiring staff to record this action in the Department's Habitat Referral Tracking System. These actions are to be completed by November 2003.

Enhancing Access to Environmental Studies Funded by the Canadian International Development Agency

Petition requested details about CIDA's funding of a study on proposed dam in Belize

4.91 In June 2002 Probe International, a Toronto-based organization, requested information (Petition No. 41B) about CIDA's financial contribution to environmental studies of a proposed hydro dam project in Belize, Central America. The organization also requested that the Minister clarify the Agency's requirements for environmental assessments of projects outside Canada, particularly hydro dams. Probe International asked that environmental assessment documents be made available to the public. (See photograph)

4.92 When the Agency funded environmental studies related to hydro dam projects that were outside Canada and that were not subject to the Canadian Environmental Assessment Act, it provided access to these studies through the Access to Information Act. This was the situation when Petition No. 41B was submitted.

4.93 The Agency is the lead federal government organization responsible for Canadian international co-operation; it plans and implements most of Canada's international development co-operation program. Part of the Agency's mandate is to support sustainable development in developing countries in order to reduce poverty and contribute to a more secure, equitable, and prosperous world. The Agency helps fund environmental assessments of infrastructure projects outside Canada to support the generation of social, economic, and environmental information. The Agency says that by providing this information, the host country is in a better position to make informed decisions on proposed projects.

The Minister committed to making CIDA-funded environmental studies available on the Internet

4.94 In October 2002, the Agency made the following commitment in its reply to Petition No. 41B when asked what its policy was on funding studies related to hydro dams:

For new proposals submitted to the Agency for the funding of studies related to hydro dams, the Agency requires that... the [funded] company makes initial and full environmental assessments, and social impact studies, available on the Internet prior to public consultations.

Officials maintain that this commitment currently applies only to hydro dam projects and the related environmental studies. (For other information on CIDA's response, see paragraph 4.136.)

Focus of the audit

4.95 We set out to determine whether CIDA requires that companies submitting new proposals for the funding of studies related to hydro dams make their initial and full environmental assessments and social impact studies available on the Internet before public consultations.

4.96 In examining whether the Agency has implemented its commitment, we asked the following questions:

• Has CIDA put measures in place requiring that before public consultations on new proposals for hydro dams, companies who receive funding from CIDA post their initial and full environmental assessments and social impact studies on the Internet?
• Has CIDA made changes to its practices that are necessary to implementing the commitment, including making its scope and application clear and explicit to its staff?

Observations

The Agency's commitment followed an internal review of its contributions to proposed hydro dam projects

4.97 When Petition No. 41B was submitted in June 2002, an internal group was already reviewing the Agency's contributions to the funding of dam projects and related environmental studies.

4.98 In early summer 2002, the internal group completed a two-page report. Among the key findings were that the Agency needed to

• reduce perceived bias in environmental studies by requiring funded companies to make their environmental assessments public, and
• require funded companies to hold public consultations earlier in the study process to develop a comprehensive list of environmental and social impacts.

The report stated that "earlier and regular public availability of environmental assessments would contribute to the Agency's transparency and avoid the appearance of secrecy or reactivity."

4.99 The report recommended that the Agency

• require funded companies to conduct a preliminary assessment of potential positive and negative developmental impacts and to hold public consultations on the preliminary assessment;
• produce a document for use by companies that would specify the information and procedures required of dam projects;
• require funded companies to make initial and full environmental assessments and social impact studies available on the Internet before the start of public consultations; and
• post abstracts of and links to these studies on CIDA's own Web site.

4.100 The internal group's report concentrated on hydro dams but stated that "its findings are relevant for all large infrastructure projects." Nevertheless, the Agency decided to apply its new set of requirements to environmental studies related only to hydro dams.

4.101 The requirements became effective as of July 2002, after the Agency's President had reviewed and approved the report.

The Agency's commitment is not entirely clear

4.102 Under the commitment outlined in the response to Petition No. 41B, a company receiving funding from CIDA for environmental studies related to hydro dam projects must post its reports on the Internet. Where this information is to be posted on the Internet is not spelled out as CIDA did not specify any particular Web site. This leaves people wondering where to access this information: Would it be posted on the Agency's Web site, on the company's Web site, or elsewhere? (See photograph)

4.103 In addition, companies are also required to make these studies available before public consultations. However, CIDA officials say that public consultations in host countries are not always certain. Nevertheless, the Agency indicated that it will require companies to post their reports on the Internet whether or not public consultations are held. This is not set out clearly in CIDA's commitment.

The Agency's new requirements are not fully known or implemented

4.104 No official documents were circulated in the Agency to announce the new requirements emerging from the internal review and to explain how they would affect operations. Officials told us that they had communicated the requirements to program managers orally and by e-mail. Although program managers are responsible for reviewing project proposals and preparing contribution agreements for approved projects, the Agency did not provide them with comprehensive documentation informing them when the new requirements became effective, when, and how companies needed to be informed and by whom.

4.105 The e-mail sent to program managers on 8 July 2002 that communicated the new requirements mentioned the need for a number of actions, including the following:

• a redrafting of the report as a guideline for staff; and
• a formal version of the guidelines for the Agency's Web site and other uses.

As of June 2003, the Agency had taken no action to prepare these items.

4.106 We tested the level of knowledge of several program managers about the new requirements. We included both those managers who have and do not have recent involvement in hydro dam project proposals. Although the program managers were aware that the new requirements existed, only one was aware of the specific details.

4.107 To date, no document that provides information about the Agency's commitment and the procedural requirements for hydro dam projects has been developed for use by companies, as recommended by the internal review group. The Agency intends to proceed without such a document until it has processed several new proposals related to hydro dam projects. The Agency indicated that at a later date, it would decide whether or not such a document is necessary.

Inconsistent approach to the notification of companies

4.108 There is no consistent approach to notifying companies about CIDA's new requirements. In one case, CIDA included the new requirements in the contribution agreement with a company that had submitted a proposal related to studies for a hydro dam project in the Dominican Republic. The company was notified of the new set of requirements by e-mail in July 2002, when the Agency began to implement them. The company agreed to the requirements, and the contribution agreement was adjusted to reflect them.

4.109 In contrast, a new proposal for an environmental study of a hydro dam project in India was submitted to the Agency on 15 November 2002. As of June 2003, the company that submitted the proposal had not been officially notified in writing of the Agency's new requirements. However, company officials indicated that the Agency had made them aware of the new requirements through discussions.

Conclusion

4.110 In its response to Petition No. 41B, submitted by Probe International, the Minister for International Co-operation made a commitment to enhance access to environmental assessments funded by CIDA for infrastructure projects that involved hydro dams. We found that the Agency's commitment is not fully implemented yet.

4.111 Recommendation. The Canadian International Development Agency should develop and circulate an official document clearly explaining its new set of requirements for enhancing public access to the environmental studies it funds. The document should be provided to both the Agency's program managers and companies that submit environmental study proposals related to hydro dam projects. Further, the Agency should promote and ensure compliance with the requirements.

CIDA's response. The Agency is pleased that the audit found that the sole Agreement subject to its new requirement that companies make dam-related environmental assessments available on the Internet, prior to public consultations, reflected this requirement. The Agency will formalize its current process of informing staff and partners on its requirements to make dam-related environmental assessments available on the Internet prior to public consultations. It will also institute a monitoring process to ensure compliance with the requirements. These actions will be completed by the second quarter of 2004-2005.

Conclusion

4.112 Our four audits found mixed results. In the four cases, departments have addressed all the commitments to some degree and have substantially implemented some challenging commitments. At the same time, however, relatively simple policy and procedural changes have been implemented poorly, with delays in some cases and inadequate communication of new requirements or procedures to departmental staff and project proponents.

4.113 Specifically, in the four audits we found the following:

• Environment Canada met its commitment to develop a regulation for the toxic substance trichloroethylene, albeit later than its target, and ten years after it was declared a toxic substance. The Department of Health has met its commitment to review the Canadian Drinking Water Quality Guideline for trichloroethylene and is recommending tightening of the guideline.
• Environment Canada has substantially met its commitment to assure itself that a pulp mill in Manitoba is in compliance with regulatory discharge limits and environmental effects monitoring requirements.
• Fisheries and Oceans Canada has not met its commitment: it has failed to take the first steps crucial to implementing a new policy to notify project proponents about public access requirements under the Canadian Environmental Assessment Act.
• The Canadian International Development Agency has not met its commitment: it has not fully implemented a new requirement designed to enhance public access and public participation in environmental studies it funds for proposed hydro dam projects outside of Canada.

4.114 Implementing a petition commitment requires a number of steps. A department needs to

• clearly identify the commitment and what it means for the department,
• plan its implementation,
• carry out the planned implementation,
• communicate any changes as required, and
• determine that the commitment has been met.

In two cases that involved increasing public access to environmental information and studies, these steps were not evident, as the lack of results show.

About the Audits

Objective

The overall objective of the four audits was to review commitments made by ministers in their formal responses to selected petitions and determine whether and how well the commitments had been implemented.

Criteria

We expected that departments would have fully acted on commitments made to petitioners.

From this criterion, we developed specific questions to be examined in each audit as described in each section under "Focus of the audit."

Scope and approach

In determining which petition responses we would audit, we reviewed all petitions and responses received by 15 July 2002 (the last date for inclusion of a petition in last year's Report). We selected the four petitions for audit using the following criteria:

• materiality/significance of the issue,
• risk that Canadians were not getting value for money and risk to the environment,
• sensitivity of the issue,
• federal mandate,
• availability of evidence/objectivity of information about the issue and the commitment made,
• auditability,
• timeliness, and
• relationship to local and community concerns.

We conducted interviews and field work to determine whether and how well the commitments were being met. We collected data and evidence of the implementation of the commitment, along with appropriate documentation. Some quantitative information in this chapter is based on data that the respective departments provided directly to us or under legislation requiring self-reporting. We have considered and evaluated these data carefully but, unless otherwise indicated, they should be treated as unaudited.

Audit team

Principal: Neil Maxwell
Director: James McCuaig

Christine Allen
Suzanne Beaudry
Raymond Kunce
Jennifer Morton
Marie-Josée Roy
Adrienne Scott
Graeme Williamson
Leah Wilson

For information, please contact Communications at (613) 995-3708 or 1-888-761-5953 (toll-free).

Annual Report on Petitions (From 16 July 2002 to 18 July 2003)

Development of the petitions process

4.115 Use of the petitions process continues to grow. Since our last Report to Parliament in October 2002, 38 new petitions have been received (compared to 28 last year and 6 the year before). This increase suggests that the petitions process continues to gain momentum (Exhibit 4.5). We are also seeing new types of petitioners this year. These include a member of a provincial legislature and elementary and university students.

4.116 Petitions cover a wide range of local, regional, national, and international concerns. Petitions are received from all over the country (Exhibit 4.6). Many continue to come from individuals and local groups concerned about local environmental issues that affect them and their communities.

4.117 New issues have emerged in this year's petitions. The list of environmental issues covered by petitions expanded this year to include endangered species, contaminated federal land and harbours (including former military training sites), environment and trade, the effects of genetically-engineered crops on soil, radioactive waste, invasive species, nuclear liability, and the transboundary movement of hazardous waste. One petition (No. 64) deals with an issue that goes to the heart of "greening" the federal government. It asks how several federal departments are applying a Cabinet directive requiring that environmental factors be taken into account in decisions on new federal policies, plans, and programs.

4.118 The ecological integrity of the Great Lakes is beginning to figure more prominently in recent petitions, as are wetland protection, wildlife, and energy and energy technologies.

4.119 More departments are receiving petitions. As the range of topics addressed in petitions widens, departments that received few petitions in the past are now receiving more. One department was petitioned this year for the first time (Public Works and Government Services Canada).

4.120 We are seeing more repeat petitioners. Some petitioners have submitted several petitions that address different issues. Others who have received responses from federal departments have submitted follow-up petitions to probe the same issues further—essentially establishing an ongoing dialogue with federal ministers and departments. For example, Algonquin Eco Watch has joined with three other organizations to submit four successive petitions (Nos. 27A to 27D).

4.121 Parliamentary awareness of the petitions process is increasing. Parliamentary committees have referred to and inquired about petitions and petition responses. We received two petitions from members of Parliament this year. Petition No. 78, from New Brunswick M.P. Yvon Godin, raised questions about the clean-up of a former military training range in Tracadie, New Brunswick. Petition No. 79 from Joe Comartin, M.P., asks Health Canada and Environment Canada to investigate air quality problems in Windsor, Ontario, and possible links between pollution and cancer rates in that area. A Quebec M.P., Hélène Scherrer, featured an article on the petitions process in her newsletter to constituents.

4.122 Petitions and responses are available on the Web. The Appendix to this chapter presents an overview of petitions received during our reporting period (16 July 2002 to 18 July 2003) and the petitions to which a response was pending when we released our Report last year. Subject to the petitioners' consent, petitions and responses are published in our petitions catalogue on our Web site. A paper version of the petitions catalogue, containing petitions and responses received during our reporting period, is published to accompany copies of this Report tabled in Parliament. Given that the petitions and responses are on the Web site, paper copies will be available only upon request.

Departmental responses to petitions

4.123 Our monitoring of petition responses. As part of the Commissioner's responsibility to monitor petition responses from departments and agencies, we consider the following questions:

• Are they responding to petitions on time (within 120 days of receipt)?
• Are they providing a substantive response that clearly addresses the questions in the petitions?

4.124 More responses have met the 120-day deadline. Departments have responded positively to our previous concerns that petition responses were sometimes delayed beyond the 120-day deadline stipulated in the Auditor General Act. Exhibit 4.7 shows the performance of departments and agencies during the past year. We note the dramatic improvement in Fisheries and Oceans Canada's compliance with the statutory deadlines. This department and Environment Canada have established systems to monitor and track their responses internally.

4.125 All but a few petition replies clearly responded to petitioners' questions. As we noted earlier, we monitor petition replies to assess whether or not they clearly respond to petitioners' concerns and requests. If required, we discuss petition responses with departments. We may ask them to provide a supplementary response if necessary. This year, such follow-up was required in only a small number of cases.

4.126 Ministers and departments are taking advantage of the opportunities presented by the petitions process. Ministers and departments have used petition responses for a number of purposes—for example, as a platform to clarify federal policies and positions and to explain their role and involvement in an issue. Petitions have prompted departments to initiate a research study, to launch an investigation, and become more engaged in a project. Departments have been prompted to hold interdepartmental meetings on a petitioned subject. Some have pledged to take action in response to petitions and have announced new policies or requirements. This is a result of the petitions process that can be valuable to all Canadians.

4.127 Departments and agencies have worked together on petitions that address complex policy issues. Often responsibility for an environmental issue raised in a petition is shared among several departments or agencies. In those cases, we ask more than one department or agency to respond to a petition, and the petitioner may therefore receive several responses. However, departments have sometimes chosen to work together to produce a single, joint response to a petition. This year, departments provided joint responses to petitions dealing with renewable energy (No. 58), fuel cell technologies (No. 65), and air pollution (No. 55, highlighted in the next section). All three petitioners were seeking clarification of federal policies or positions. We think joint responses can be a source of useful information for petitioners and all Canadians. They often present a co-ordinated and comprehensive statement of the federal position on complex issues.

Highlights of selected petitions and responses

Historic marine dumpsites of chemical and biological agents

4.128 Our 2002 Report mentioned a petition from Myles Kehoe, a resident of Cape Breton, concerning the dumping of mustard gas and other chemical warfare agents in the Atlantic Ocean by the Canadian military following World War II. The petitioner was worried about the impacts of these sites on the marine ecosystem, the safety of fishermen, and human health, especially in light of a growing interest in oil and gas exploration offshore. We asked National Defence and five other departments to respond to the petition (No. 50).

4.129 National Defence is the department with the lead responsibility for these sites. In his reply on behalf of the Department, the Minister of National Defence confirmed the existence and location of at least one historical mustard gas site and several old munitions disposal sites in Canadian waters.

4.130 The Minister also stated that National Defence had initiated a project that includes the following activities:

• All historical ocean disposal sites of chemical and biological warfare agents and munitions will be identified, surveyed, and assessed for risk to human health and the environment.
• Scientific research on the disposal of these warfare agents and munitions in the marine environment will be reviewed and compiled.
• Sites will then be prioritized, based on the risk assessments, for the development and implementation of site-specific action plans. Remediation or cleanup, as well as other mitigation measures, will be considered as options in the action plans.

An Interdepartmental Working Group has been established to provide technical and scientific support to the project.

4.131 Since responding to the petition, National Defence has confirmed that it has committed $10.5 million to the project over the next five years. This petition (including responses), along with the others highlighted in this section, can be found in full on our petitions catalogue on our Web site.

Siting of a wind energy complex in Prince Edward Island

4.132 Wind power and other renewable energy sources are becoming more and more important in Canada, especially in light of the Kyoto Protocol. Jack Wilderom, who lives in Prince Edward Island, supports the concept of wind energy, but was concerned about a project that would locate a large wind power complex on the province's Malpeque Peninsula because of the site's importance to native, breeding, and migratory birds and its proximity to significant wetlands. In Petition No. 69, he challenged the project proponent's conclusion that the power complex would have only minimal impacts on bird populations. He requested a federal environmental assessment of the potential effects on birds and critical wetlands. We asked Environment Canada and Natural Resources Canada to respond to this petition.

4.133 In his response on behalf of Environment Canada, the Minister of the Environment said that in general he supports renewable energy technologies such as wind power, but he recognizes the importance of environmental assessment in avoiding or minimizing any adverse environmental effects that may be associated with a particular project.

4.134 The response indicated that Environment Canada is working with the Province of Prince Edward Island, which is conducting its own environmental assessment of the project. The Province has directed the proponent to study the effects of the proposed wind turbines on bird populations, especially migratory birds.

Enhanced public access to Canada-funded environmental assessments for hydro dam projects outside of Canada

4.135 In June 2002, Probe International asked the Canadian International Development Agency to specify its policy on funding environmental studies for proposed hydroelectric dam projects (Petition No. 41B). In an earlier petition (Petition No. 41A), the organization had expressed concern about limited public access to studies funded by CIDA for a proposed hydro dam in Belize. In responding to that petition, the Agency had stated that the information could be obtained only through a request under the Access to Information Act.

4.136 CIDA's response to the second petition indicates a change in direction. For new proposals submitted for funding of environmental studies related to hydro dams, CIDA now requires that a company performing the studies

• make initial and full environmental assessments and social impact studies available on the Internet prior to public consultations;
• identify in detail, at the project proposal stage, substantial developmental benefits of each dam;
• conduct, as the first deliverable, preliminary assessment of the potential positive and negative developmental impacts and hold public consultations on its preliminary assessment. This should include information on affected parks and protected areas; endangered species affected; resettlement; and results of public consultation.

These requirements also represent criteria that CIDA would use to reject funding proposals.

4.137 We conducted an audit of CIDA's implementation of one of these new requirements—the requirement to make initial and full environmental assessments and social impact studies available on the Internet prior to public consultations. The results of our audit are presented starting at paragraph 4.91.

Alleged sea lice infestation of wild salmon off the Pacific coast

4.138 In the Broughton Archipelago off the coast of British Columbia in 2001, a suspected outbreak of sea lice (a marine parasite) in wild pink salmon prompted the Living Oceans Society to submit a petition (No. 54) on behalf of the Musgamagw Tsawataineuk Tribal Council. The petition suggested that the sea lice originated in the Archipelago's numerous salmon farms. It questioned how Fisheries and Oceans Canada had dealt with the problem in the spring of 2001.

4.139 In his reply to the petition on behalf of Fisheries and Oceans Canada, the Minister stated that the Department assessed the presence of sea lice as part of its annual survey to assess the abundance of juvenile salmon in the coastal waters of British Columbia:

The Departmental assessment found that the juvenile salmon sampled were in generally good health with low levels of sea lice infestation. There was no evidence of an epidemic nor was there evidence of a mass mortality of juvenile salmon.

4.140 The role of Fisheries and Oceans Canada and impacts of the aquaculture industry on wild salmon stocks are the subject of an audit that will be reported in the Auditor General's 2004 Report to Parliament.

Poor air quality and infringement of human rights

4.141 Air quality was the subject of a petition (No. 55) submitted by the Sierra Legal Defence Fund on behalf of Greenpeace Canada and the Toronto Environment Alliance. The petitioners argued that Canada has a legal obligation under international human rights law to do its utmost to provide for clean air to protect the lives and health of Canadians. They criticized the efforts of the federal government to address this problem, suggesting that it was violating these core human rights through its failure to adequately regulate air pollution and provide for legally binding air quality standards in Canada. The petitioners called for a review of Canada's policies, laws, and regulations on air pollution and air quality. They also made several suggestions to improve air quality. Six departments (Environment, Health, Transport, Finance, Industry, and Natural Resources) responded jointly to the petition. These departments did not directly address the issue of human rights protection. They emphasized the federal government's commitment to addressing air pollution. The response set out an extensive explanation of the federal agenda for clean air.

Contamination of Canadian harbours

4.142 Petitioners have asked whether the federal government is responsible for historical environmental problems that surface in harbours and what kind of oversight the government exercises in cases where problems of environmental contamination emerge. This is the case with two petitions, one involving Hamilton Harbour and the other, the Port Oshawa Marina (Petition No. 57 and No. 59 respectively). One is under the control of a federal port authority, the Hamilton Port Authority, the other under the one remaining federal harbour commission, namely the Oshawa Harbour Commission. Transport Canada's reply to Petition No. 59 on the marina at Oshawa suggests that the Department exercises very little oversight or control over harbour commissions, when environmental problems emerge. According to the Department, the harbour commission operates in accordance with the Harbour Commissions Act and is responsible for ensuring that it complies with all applicable environmental laws. The Transport Canada response also confirms that the lands and harbour "for which the Harbour Commission (Oshawa) has responsibility are not part of the Federal Contaminated Sites and Solid Waste Landfills Inventory." (See photograph)

Pesticides in national parks

4.143 The Parks Canada Agency has a mandate to protect the ecological integrity of Canada's national parks. The Saskatchewan Environmental Society asked in Petition No. 68 whether the Agency was contravening the Canada National Parks Act and its guiding principles and policies for national parks when it proposed to conduct an aerial pesticide spray program for spruce budworm in Prince Albert National Park.

4.144 In its response, Parks Canada stated that the proposal to spray went through a thorough third-party environmental assessment and was approved only after that assessment found no significant, unmitigable, adverse impacts on human health or the environment. The Minister indicated that Parks Canada was adhering to the Canada National Parks Act and its guiding principles; the site proposed for pesticide spraying is a townsite (zoned as Park Services Zone 5), where it is not uncommon for natural processes to be altered.

Draining of a lake for hydro generation

4.145 When the man-made Rocky Island Lake near Sault Ste. Marie, Ontario, was effectively drained for hydro generation in the summer of 2002, Ontario M.P.P. Tony Martin requested that Fisheries and Oceans Canada investigate a possible contravention of the federal Fisheries Act (Petition No. 70). The Department's response confirmed that it had launched an investigation of the matter. Mr. Martin also forwarded two applications to the Environmental Commissioner of Ontario under the Environmental Bill of Rights seeking answers from Ontario ministries. (See photographs)

4.146 Protection of fish and fish habitat continue to figure in many of the environmental petitions received by this Office.

Assessing the environmental impacts of new federal policies, plans, and programs

4.147 Since 1990, the Strategic Environmental Assessment (SEA) process (revised in 1999) has been in place through a federal Cabinet directive to include environmental considerations in developing federal programs and policies. A doctoral student, Rachel McCormick, petitioned 10 federal departments for details about how the process had been implemented (Petition No. 64). She also asked departments to describe how strategic environmental assessment had made a difference in the long run to federal policies and programs. This petition and the responses demonstrate that petitions provide a window into the federal government that otherwise might not be available.

4.148 One question in the petition was directed to the Department of Finance. It concerned the federal Budget and the rationale used to exclude the Budget from the SEA process, despite the fact that in the petitioner's view it met the criteria.

4.149 The Minister of Finance provided the following response to the question:

"The federal Budget is a compendium of funding decisions on policies and programs...In all instances, as part of the policy approval process, SEAs should be conducted by sponsoring departments on their own initiatives...For these reasons, an SEA on the federal Budget would be duplicative."

4.150 How federal departments have put the strategic environmental assessment process into practice is the subject of an audit by the Commissioner, to be presented in the 2004 Report.

International obligations to increase Aboriginal involvement in resource management

4.151 International environmental conventions and agreements from the time of the 1992 Rio Declaration on the Environment and Sustainable Development to the action plans from the Johannesburg Summit of 2002 have committed Canada to advancing Aboriginal participation in resource management and capitalizing on traditional ecological knowledge. A petitioner from British Columbia asked the Government of Canada to outline how it will meet its specific commitments in these areas (Petition No. 67). We asked 10 departments and agencies to respond to this petition.

4.152 In their individual responses, the departments and agencies responding seized the opportunity to outline programs, policies, and legislation within their organizations. They highlighted those that specifically related to the participation of Aboriginal Canadians in the management of the environment and the incorporation of traditional ecological knowledge into decision making. One of the petitioner's questions referred to Principle 23 of the Rio Declaration, which relates to the protection of the environment for people under oppression, domination, and occupation. The ministers answered unanimously that this principle did not apply in the Canadian context.

Environment Canada study of the environmental effects of smelter slag

4.153 Environment Canada is currently wrapping up a research study on the environmental effects of smelter slag. This research project came about largely as a result of petitions submitted to us by Algonquin Eco Watch, the Wildlands League, and the Federation of Ontario Naturalists (later joined by the Sierra Club, Eastern Canada chapter).

4.154 These petitions, which started in 2001 with Petition No. 27A, concerned the decommissioning of the Canadian National rail line running through Algonquin Provincial Park in Ontario. Among other issues, the petitioners suggested that migratory birds and other wildlife were at risk because of heavy metals in the smelter slag that had been used on the abandoned rail bed. In its response to the petition, Environment Canada said that it had studied smelter slag but thought the slag in Algonquin Provincial Park would probably have a negligible effect on migratory birds, mainly because it was considered inaccessible to them. Environment Canada officials visited the site of the slag in November 2001 to verify that conclusion. (See photograph)

4.155 In 2002 when the petitioners pursued the matter in a further petition (No. 27C), the Minister of the Environment replied:

The site visit by Environment Canada has led to a re-evaluation of the risks posed to grit-consuming birds. There is scientific uncertainty about the impact of slag particles on migratory birds in this setting.

That re-evaluation led to a research study funded by Environment Canada in the autumn of 2002, which is still under way.

Conclusion

4.156 This year we have seen positive developments in the use of the petitions process, the breadth of environmental issues raised by petitioners, and the level of effort departments are devoting to developing timely, comprehensive responses. Looking ahead, petitions continue to arrive almost weekly. A number of interesting responses are due fairly soon to petitions received near the end of the reporting period. Interested readers can monitor our Web site to see these responses as they are posted.

4.157 We expect that the petitions process will continue to serve Canadians and that departments will continue to respond to petitions effectively.

Definitions:

Probably carcinogenic to humans—a substance is deemed to be "probably carcinogenic to humans" when sufficient evidence that it causes cancer is obtained from studies using animals but not from studies with humans. A carcinogen is a chemical or other agent that causes cancer. (Back)

Trichloroethylene (TCE) is a toxic substance under CEPA, 1999 used as a degreasing solvent, in dry cleaning, and as an ingredient in adhesives. It can be found in household products such as paint removers, typewriter correction fluids, adhesives, spot removers, and rug cleaning fluids. TCE has been classified as "probably carcinogenic to humans" and may constitute a danger to human life or health in Canada. (Back)