Top of Page
Previous page | ToC | Next page
When the North American Free Trade Agreement (NAFTA) came into effect in 1994, it created the largest free trade area in the world at the time. While NAFTA included some environmental provisions in its text, a number of concerns about the environmental effects of increased economic activity were nevertheless raised.3 In order to address these concerns, Canada, Mexico and the United-States (U.S.) negotiated a "side agreement" on the environment, called the North American Agreement on Environmental Cooperation (NAAEC).4
The NAAEC between the Government of Canada, the Government of the United Mexican States and the Government of the United States of America, which came into force on January 1, 1994, was established to facilitate cooperation and public participation to foster conservation, protection and enhancement of the North American environment in the context of increasing economic integration between Canada, Mexico and the U.S. (hereafter the Parties). It was also designed to promote the effective enforcement of each country's environmental laws. The NAAEC created the Commission for Environmental Cooperation (CEC) to facilitate the trilateral cooperation. The CEC is comprised of three principal components or bodies: a Council, a Secretariat and a Joint Public Advisory Committee (JPAC).5
The NAAEC, through the CEC, is one of the very few international agreements seeking to bring together different countries to work cooperatively on a wide range of environmental issues.6 The NAAEC's broad mandate allows the CEC to address almost any environmental issue anywhere in North America.7 In this sense, the CEC was formed to help demonstrate that North America is a collection of linked ecosystems and create a sense of regional environmental consciousness. Moreover, it is worth noting the unprecedented commitment by the three governments to account internationally for the enforcement of their respective environmental laws.
In addition to promoting environmental cooperation, the CEC has traditionally played a role in addressing issues surrounding trade and environment.8 NAAEC's very creation represented a commitment by the governments of North America to integrate trade and environment related issues among other sustainable development considerations in their policy process. In fact, the NAAEC was the first international agreement to link environmental cooperation with trade relations. The CEC's work in this area is intended to promote policies and actions that provide mutual benefits for the environment, trade, and the economy. The CEC has also produced analyses to promote a better understanding of trade and environment relationships (e.g., ongoing environmental assessment of the NAFTA since 1994). At the institutional level, NAAEC's Article 10(6) also refers, among other things, to how the CEC may assist NAFTA's Free Trade Commission (FTC) in environment-related matters (e.g., providing information or technical advice to NAFTA committees, working groups and other NAFTA bodies, prevention and resolution of environment-related trade disputes).
The NAAEC also stands out for its provisions on public participation. These provisions are intended to maximize public involvement to ensure open and effective dialogue and engagement among all sectors of the public. The public participation mechanisms have generally aimed at disseminating information as well as educating and consulting with the North American public on CEC activities.
The NAAEC broadly describes a number of areas of work for the CEC. CEC's cooperative work program aims to develop projects related to a wide range of environmental issues (Article 10). The citizen submissions on enforcement matters (SEM) process is also a key CEC work area intended to enhance enforcement of and compliance with environmental law in North America. In particular, under Articles 14 and 15, the SEM process allows any person or NGO residing in North America to make a submission to the CEC asserting that a partner country is failing to effectively enforce its environmental laws. A submission can trigger an investigation by the CEC Secretariat, with Council's approval, and the publication of a factual record.9 The CEC also produces reports (commonly referred to as Secretariat Reports) on environmental issues of regional importance (Article 13) and periodic assessment of the state of the North American environment (Article 2).10
Each NAAEC Party contributes equally to the CEC budget (each country pays 33.3% of the annual CEC budget), and each are represented equally on the CEC's decision-making structures. Since 1995, the annual contribution of the three countries combined is US$9 million. This amount has never been indexed to the rate of inflation nor adjusted to reflect fluctuations in currencies. About half of the annual budget of the CEC is used to pay for the implementation of the work program. This includes support of CEC working groups and committees which elaborate and implement the CEC work program. A third of the budget also pays for expenses related to the activities of the CEC Secretariat, which are required under the NAAEC (e.g., Article 13, 14, and 15 reports; support to Council and JPAC).
A four-year review was completed in 1998 to mark the first four years of existence of the CEC. The Report of the Independent Review Committee (hereafter the IRC report) conducted a review of the operation and effectiveness of the CEC and provided recommendations to help enhance the latter.11 The IRC was composed of three members (one from each country) that were appointed by Council in November 1997. Furthermore, to mark the tenth anniversary of the CEC in 2004, a ten-year review on the CEC was conducted in 2003/2004. This initiative reviewed the implementation of the NAAEC over its first ten years and recommended actions to assist the Council in charting the path for the CEC over the next decade. This exercise was conducted by a committee commonly referred to as the Ten-year Review and Assessment Committee (TRAC) and comprised of six members (two from each country) appointed by the Council of the CEC in October 2003. The Committee's report (hereafter the TRAC report) titled Ten Years of North American Environmental Cooperation was presented to the Council of the CEC on June 15, 2004.12
The TRAC report is acknowledged in the Puebla Declaration, a declaration signed by Canada, the U.S., and Mexico in June 2004, which presents the Parties' vision for the CEC for the rest of the decade.13 The Declaration emphasized several attributes to be pursued by the CEC, namely that the CEC be:
The Puebla Declaration also identified three priorities upon which its work program would be grounded (through a five-year results-oriented strategic plan), namely: Information for Decision-Making, Capacity Building, and Trade and the Environment.14 The Information for Decision-Making priority intends "to support better decision-making by providing information on the key environmental challenges and opportunities facing North America". The Capacity Building priority intends "to strengthen the capacities of the three countries to manage environmental issues of common concern". This work involves, for example, the sharing of what each country does best in the areas of compliance with wildlife laws, private sector environmental performance, and assessment and management of chemicals of concern. The priority relating to Trade and the Environment intends to "promote policies and actions that provide mutual benefits for the environment, trade, and the economy."
This section provides an overview of the roles and responsibilities of the CEC's three key bodies, namely the Council, the Secretariat and the Joint Public Advisory Committee (JPAC), as well as key CEC committees.15 This overview is then followed by a description of the roles and responsibilities of the key Canadian federal government departments involved in the implementation of the NAAEC as well as the Canadian government committees that have been established.
The CEC is led by a Council composed of the environment ministers of the three countries.16 The Council is the governing body of the CEC. As such, it is responsible, among other things, for setting the CEC's overall direction and approving the CEC's annual program and budget. The ministerial Council traditionally meets once per year. Alternate Representatives, senior officials in the three environmental agencies who represent the Council members and have decision-making authority, meet approximately four times a year and have regular conference calls. The Council generally formalizes its decisions through resolutions.
The CEC Secretariat, based in Montreal (with a second liaison office in Mexico City), has several functions. The Secretariat's support to Council includes technical, administrative and operational tasks. For example, the Secretariat is responsible for preparing the annual work program and budget as well as the CEC's annual report in accordance with Council's instructions. Support is also provided in other areas as directed by Council. Under NAAEC's Article 13, the Secretariat may also prepare reports to the Council on any matter within the scope of the annual work program or, unless the Council objects, on any other environmental matter related to the cooperative functions of the NAAEC. Article 14 gives it individual powers in the handling of public submissions. The CEC Secretariat has typically included over 50 support and professional staff and is headed by an Executive Director. The Executive Director has a three-year term, with the possibility of renewal for an additional three-year term if approved by Council. The position rotates among citizens from each Party.
The Joint Public Advisory Committee (JPAC) is composed of five appointed citizens from each of the three countries who serve as volunteers. Their mandate is to advise the Council and inform the Secretariat on any matter within the scope of the NAAEC. Information provided can include relevant scientific, technical or other types of information and can be used in the development of a factual record. The members of the JPAC are named by their respective government. The full 15 member committee usually meets three to four times a year with the public. As required, issue-specific sub-committees may hold additional meetings. A central role of the JPAC is to ensure inclusiveness, active public participation and transparency in the activities of the CEC.
Much of the day-to-day oversight is the responsibility of the General Standing Committee (GSC). It is composed of representatives from each Party who typically report to their respective Alternate Representative. The GSC was established to ensure regular communication between the Secretariat and the Parties on all aspects of implementation of the NAAEC. As the principal point of contact for the Parties, the GSC communicates regularly, in person or via conference call, with the Secretariat staff and is the point of intake for all Secretariat documents. The GSC also acts to ensure timely follow up on Secretariat requirements for information and/or action and to ensure exchange of information and views on issues of mutual interests.17
The CEC conducts the bulk of its program work through various working groups, composed almost entirely of government officials from the three Parties. Since 1995, the Council has created four working groups in the areas of chemical management, biodiversity, air, and enforcement.18 In addition, the Secretariat and the working groups themselves have established additional sub-committees to guide specific aspects of their work.
The lead federal department supporting the CEC is EC. As the primary point of contact for Canada's dealings with the CEC in general and with the CEC Secretariat in particular, EC works closely with other government departments, particularly with DFAIT, to establish Canadian positions on issues addressed at the CEC. EC also works with other federal departments regarding any relevant issues as required. Specifically, officials from Health Canada, Natural Resources Canada, Parks Canada and Fisheries and Oceans participate in the implementation of the CEC work program.
In addition to the day-to-day management activities, EC's role includes the coordination with Alberta, Manitoba, and Quebec, the three signatory provinces of the Canadian Intergovernmental Agreement (CIA) Regarding the NAAEC, the agreement which sets the terms for the coordination of intergovernmental cooperation in implementing the NAAEC.19 A Governmental Committee, composed of the ministers responsible for the environment, or their designees, of the three signatory provincial governments and the federal Environment Minister was created under the CIA's Article 3. This Committee was created to develop and manage Canada's involvement in the NAAEC. Under the CIA, the Governmental Committee was to meet once a year and in advance of the annual Council meeting. However, it only did so once. Working-level officials from the four jurisdictions hold regular discussions, often by conference calls, for the purposes of shaping Canadian positions and approaches as well as providing input to CEC planning processes and projects.
As part of its participation in the CEC, the Government of Canada established a national advisory committee (NAC) as per Article 10 of the CIA and Article 17 of the NAAEC. The latter Article stipulates that such a committee, comprised of members of a respective Party's public (e.g., representatives of non-governmental organizations, citizens, private sector), may be convened to advise their respective Party on the implementation and further elaboration of the NAAEC. The Canadian NAC members, as per Article 10 of the CIA, are appointed by the aforementioned Governmental Committee to advise the latter on the implementation and further elaboration of the NAAEC. The Canadian NAC may also provide advice on its own initiative or at the request of the Governmental Committee.
The Canadian NAC members meet at least once a year. Former Canadian NAC members have represented various parts of civil society, including the private sector, municipal government, environmental non-governmental organizations, and academia. The term of the former NAC members expired in May 2006.20 The Minister of Environment, in consultation with his provincial counterparts, is in the process of selecting new NAC members.
3 One of these concerns was the fear, generally referred to as the 'race to the bottom', that free trade would lower environmental standards or impede the strengthening of them and that firms would move to other countries to benefit from less stringent environmental standards. The fear that firms would move to countries with less stringent environmental standards is commonly associated with the "pollution haven" hypothesis.
4 Another side agreement which was negotiated by the three countries and implemented in parallel to the NAFTA was the North American Agreement on Labour Cooperation (NAALC).
5 These bodies, established by the NAAEC, are discussed in more detail in Section 2.2. We note here that the NAALC also created a commission, the Commission for Labour Cooperation (CLC), to promote cooperation on labour matters. The CLC consists of a Council and a Secretariat located in Washington, DC.
6 In some respects, the Treaty establishing the European Community (in effect in 1967 and since 1993 referred to as the European Union) is another example of an international agreement which, among other things, seeks environmental cooperation among different countries. The key related articles of the treaty may be found at the following web site: http://europa.eu/.
7 Illustrative examples of environmental issues covered by the CEC include the threats to human health from toxic substances, protecting biodiversity, strengthening environmental enforcement, and children's health and the environment.
8 As is discussed later, the area of trade and environment was recently (in 2004) elevated to a priority area for CEC's cooperative work program.
9 A factual record outlines, among other things, the history of the issue and the facts relevant to the assertions made in the submission of a failure to enforce environmental law effectively.
10 We note here that only one report on the state of the North American environment was produced.
11 The NAAEC requires that the Council which governs the CEC to review its operation and effectiveness four years after its entry into force (January 1, 1994).
12 The TRAC report indicated that it accounted for the IRC's findings and that it built on the IRC's analysis in conducting its own assessment.
13 The Puebla Declaration was signed at the Eleventh Regular Session of the CEC Council, which was held in Puebla, Mexico on June 23, 2004.
14 Details regarding the goals and objectives of these priorities are included in Looking to the Future: Strategic Plan for the Commission for Environmental Cooperation 2005-2010.
15 The details of the roles and responsibilities of the CEC bodies are described in more details in Part Three of the NAAEC (Articles 9-16). Information on the bodies was also obtained from the following documents: NAAEC, TRAC report and Looking to the Future: Strategic Plan for the Commission for Environmental Cooperation 2005-2010.
16 Canada is represented by the Minister of Environment, Mexico by the Secretary of the Environment, and the U.S. by the Administrator of the U.S. Environmental Protection Agency (EPA).
17 Examples of such issues include the development and implementation of the annual program and budget; preparation of the annual report; issues related to the implementation of Articles 14 and 15 of the NAAEC; relevant cooperative activities and others.
18 Alternate Representatives, with the authority of Council, created a Trade and Environment Working Group. However, a Council Resolution was not passed regarding this working group.
19 As the NAAEC did not bind Canadian provinces and territories when it was signed by the Canadian federal government, Canadian provinces and territories willing to take on the obligations of the NAAEC were invited to sign the CIA with the federal government. Article 18 of the NAAEC indicates that each Party may convene a governmental committee, which may include representatives of federal and state or provincial governments, to advise on the implementation and further elaboration of the NAAEC.
20 Canadian NAC members have been typically appointed for three-year terms.