Thank you very much for inviting me to appear today and also for accommodating a video conference. I would have preferred to attend in Ottawa. I would have had the benefit of the slides, for example. But it would have meant changing a flight, so I really appreciate this.
The Canadian Environmental Law Association is an environmental law clinic, one of the specialty clinics in the Ontario legal aid clinic system. We're a 41-year-old, federally incorporated, not-for-profit ENGO. In addition to representing financially eligible groups and individuals and families, we also have a mandate that includes environmental law reform and public legal education.
Before I begin, I wish to thank our articling student, Kyra Bell-Pasht, who prepared the backgrounder on which my remarks are based this morning. And I wish to acknowledge the very helpful work of the previous articling students and volunteer lawyers at CELA who conducted earlier analyses.
CELA has had the opportunity to review drafts of the proposed comprehensive economic and trade agreement between Canada and the European Union. Unfortunately, the process has not been as transparent as we would argue for, and our analysis is based on copies of the agreements that have been leaked to civil society. That being said, I hope we can provide some helpful commentary.
The fundamental perspective we bring to our analysis is that we work to ensure that each level of government can act to protect the environment in diverse ways. As we have argued before the courts, and as the Supreme Court has agreed, we have a strong system in Canada of action on environmental matters by municipal, provincial, federal, and of course first nations governments, which is in addition to action at the international level.
In most of the important environmental issues, action at all levels, at all scales, is essential for strong environmental and environmental health protection. Therefore, when we look at the proposed trade agreements and make recommendations, we're primarily concerned with ensuring that those diverse levels of jurisdiction and the ability to act, with the aim of having strong environmental protection, are flexible and well protected.
We have concerns that the current state of negotiations and drafting may not sufficiently protect the environment, so our analysis makes some recommendations in that respect.
First of all, I'll talk about the concept of national treatment, which is proposed to be applicable, in this case, for the first time, at the provincial levels as well as at the national level. CELA notes that there's language in the draft agreement providing for an exception when there are legitimate objectives, such as public security; safety; public order; protection of human, animal, or plant life or health; and protection of the environment. That's good. What we would recommend, however, is that this exception should not be limited, as is currently proposed, by the language of “necessary” measures only ; it should be broadened to measures that are intended to apply to or that relate to environmental and health objectives. Also, we noticed that in the last draft CETA we saw, the EU proposed limiting that exception to exceptional circumstances. We don't agree with that.
The next topic I want to quickly mention is marking and labelling. The draft agreement says that marking and labelling requirements should not be more trade restrictive than necessary. Our point here is that we're working all the time to expand marking and labelling requirements and to provide for more consumer information, such as the ingredients in products, for example. It's important to provide a strong foundation for informed choices. The agreement should allow consumers to be fully informed as to product constituents and ingredients and should allow relevant environmental standards, such as eco-labelling. We wouldn't like to see the language around the words “trade restrictive” hampering that.
The next topic I want to address is the environmental laws chapter and the sustainable development chapter. We have reviewed the proposed draft environmental laws chapter. We prefer the more expansive definition of environmental laws we've seen so far in the EU proposal, which, for example, includes explicit reference to conservation and sustainable use of biological diversity.
We were pleased that it didn't limit the application of the chapter on environmental laws to laws whose primary purpose is environmental protection—it was broadened to include laws that took into account other environmental issues. We also thought they defined the word “environment” very well. Their definition includes terrestrial and marine ecosystems, atmospheric conditions, and climate change issues. It also had a broader definition of “environmental laws”, which we preferred. The EU proposal also dealt with scientific and technical information and the precautionary principle, and we strongly endorse that. In addition, they had similar language in the occupational health and safety section, and we endorse that as well.
Another significant proposal in the environment chapter deals with the creation of domestic environmental or sustainable development advisory groups. They mention independent representatives of organizations of civil society in a balanced representation of environmental groups, business organizations, as well as other relevant stakeholders. We agreed with that EU proposal as well, because much of the practice under the CETA, if and when it's adopted, will depend on state practice and a proactive approach, with advice from well-informed stakeholders. The EU talks more explicitly about the parties implementing in their domestic laws the requirements of multilateral environment agreements to which they are parties. This was a bit more specific than the Canadian language in that part of the agreement.
There was a proposal in the last draft of CETA that we think is quite important, to the effect that challenges to environmental measures would not be subject to monetary compensation. CELA agrees with that provision because otherwise there's the potential—and we've seen it in other cases—to have the agreement operate as a substantial regulatory chill against environmental decision-making by the parties, both nationally and at the subnational levels. The EU also proposed a sustainable development chapter in the CETA, which we support. For example, it included mandated transparency and public participation, and supported fair and ethical trade practices.
I want to mention the topic of expropriation. We would recommend deletion of the proposed expropriation provisions, even though the draft CETA proposes limiting potential claims of indirect expropriation in an environmental regulation context. A better approach, we believe, is the one that we saw in the United States-Australia bilateral free trade agreement, which doesn't contain that kind of a provision, over and above the regular domestic laws of each party. At the time, they did a regulatory impact statement and noted that both of those countries had well-developed court systems and economic systems, with no special provisions needed.
They explained it by saying:
In recognition of the unique circumstances of this Agreement, including for example, the long-standing economic ties between the U.S. and Australia, their shared legal traditions and the confidence of their investors in operating in each other's markets, the two countries agree not to implement procedures in the FTA that would allow investors to arbitrate disputes with governments.
They said that government-to-government dispute mechanisms remain available. Interestingly, this past spring Australia released a trade policy statement reinforcing that perspective. So we would say the same conditions should apply between Europe and Canada. This would be a significant improvement.
We advocate allowing for green procurement, which aids market transformation in the direction of more sustainable practices, products, and services. In other words, governments can specify that they want greener provision of services, products, and practices.
We are concerned about opening public services to private sector involvement, in particular in the context of drinking water and waste water. We have consistently supported public ownership and governance of drinking water and waste water systems because of accountability, safety, and affordability issues.
The last thing to mention on the analysis is the general exceptions provision, which includes an exception for some of the provisions for those matters necessary to protect human, animal, or plant life or health or those that relate to conservation of exhaustible natural resources. We support that, but, as I indicated in the earlier context, we say it should be drafted more broadly.
So in conclusion, we would submit that there are promising environmental protection provisions in the lastest draft of the CETA supported by both parties, as we've seen it. We prefer some of the provisions proposed by Canada and some of the provisions promoted by the EU, and overall we would suggest that as the drafting and the negotiating continue there be stringent evaluation of the entire CETA—all the preambles, the general language, the operative provisions, the interpretive provisions, the side agreements if there are any, the annexes, and so on—to ensure that the direction is to support the ability of all three levels of government in Canada to take strong environmental protection measures.
Thank you very much for the opportunity to make those comments. I'll attempt to answer questions if there are any.
