Current Developments in Federal Legislation

Transcription

1 Current Developments in Federal Legislation Phillip Saunders Associate Professor Dalhousie Law School Presentation To CLE Environmental Law Conference Jan. 28, 2000 Not to be quoted or cited without the author's permission.

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3 Introduction The structure of federal environmental legislation is in the midst of a process of reorganization and updating, with significant implications for the nature of federal involvement in this area Partly as the result of new initiatives, but also because of specific requirements for review and updating of existing acts, a new generation of federal legislation is emerging. Given the time available, it is not possible to cover all new and revised federal initiatives. I will focus on three examples: the new Canadian Environmental Protection Act of 1999 I(CEPA 1999); the proposal for "Species at Risk" (SPAR) legislation; and the upcoming review of the Canadian Environmental Assessment Act (CEEA). Of these three, CEPA 1999 has been enacted (though only a few "housekeeping" sections are currently in force), SPAR is in the early stages of discussion, and the CEEA review is pending. Accordingly, the bulk of this paper will focus on CEPA 1999, as the most concrete example with the most immediate implications for practitioners. Canadian Environmental Protection Ad 1999 The new legislation arose out of the 1994/9S review of the existing CEPA, which had been proclaimed in The House of Commons Standing Committee on the Environment recommended sweeping changes to the Act, including: a focus on pollution prevention (as opposed to pollution management); the introduction of sustainable development as a fundamental goal of the legislation, as well as introduction of the precautionary approach; greater reliance on ecosystem approaches to environmental management; and a much more aggressive approach to the problem of toxic substances control and elimination. The federal govemment did not accept all of the Committee's recommendations, especially with respect to toxic chemicals. It did endorse many of the "principles" suggested, though the eventual legislative drafting arguably resulted largely in their consignment to non-binding, preambular language. The federal proposal, Bill C-74, was I s.c. 1999, c. 33,.. 6, ss in force 15/11/99; ss in force 24/11199.

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5 2 introduced in Dec. 1996, but died on the order paper with the federal election. Its replacement, Bill COn, was introduced in March After an unusually acrimonious process of Committee hearings, and accusations of "watering down" due to lobbying activity, the Act was given Royal Assent in Sept (although only those sections dealing with a National Advisory Committee and Review Officers have been proclaimed in force to date). CEPA 1999 contains 343 operative sections (more than twice as many as the current Act), along with six schedules, divided as follows: Declaration, Preamble and Interpretation Part I - Administration Part 2 - Public Participation Part 3 - Information Gathering, Objectives, Guidelines, Codes of Practice Part 4 - Pollution Prevention Part 5 - Toxic Substances Part 6 - Animate Products of Biotechnology Part 7 - Controlling Pollution and Managing Wastes Part 8 - Environmental Emergencies Part 9 - Govt. Operation on Federal and Aboriginal Land Part 10 - Enforcement Part 11 - Miscellaneous (eg. economic instruments, Review Boards) Part 12 - Transitional; Consequential Amendments Rather than attempt an in-depth review of all Parts of CEP A 1999, I would like to concentrate on a few areas of particular interest, and where the legislation brings about significant change. Preamble and Declaration The Act begins with a Declaration stating the purpose of the Act, followed by a number of statements of principle or commitments of the Government. The Declaration reads as follows: examples: It is hereby declared that the protection of the environment is essential to the wellbeing of Canadians and that the primary purpose of this Act is to contribute to sustainable development through pollution prevention. The 15 goals or commitments take a similar tone, as indicated by the following

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7 3 Whereas the Government of Canada seeks to achieve sustainable development that is based on an ecologically efficient use of natural, social and economic resources and acknowledges the need to integrate environmental, economic and social factors in the making of all decisions by government and private entities;.... Whereas the Government of Canada acknowledges the need to virtually eliminate the most persistent and bioaccumulative toxic substances and the need to control and manage pollutants and wastes if their release into the environment cannot be prevented; Whereas the Government of Canada recognizes the importance of an ecosystem approach;... Whereas the Government of Canada is committed to implementing the precautionary principle that, where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation; This sort of declaratory language has become increasingly popular in environmental legislation, both federally and provincially. The obvious question is whether it has any useful effect, or is simply inserted as a cynical way of paying lip service to certain principles while avoiding their concrete application. While they can be used as tools for interpretation, or perhaps for understanding a Minister's broad duties under an Act, the actual wording tends to weaken their impact, even for interpretive purposes. Much (though not all) of this language is in a passive voice - statements of "facts" which are really arguable opinions. Is the Government "committed to implementing the precautionary principle"? They may be, but even if we accept that they are, the statement does not actually say that this Act commits them to doing so. The language of the Declaration (which does at least state a purpose of the Act) may be more useful in guiding courts' interpreations of the Act, but ifseems a stretch to use this sort of language to overcome, or add to, fairly specific provisions within the body of the Act. A similar, but more fruitful line of argument might be found in s. 2, which restates some of the same principles as items for consideration by the Government in carrying out

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9 4 their duties under the Act. l This language allows more direct application to the review of administrative actions of the Minister, and given the wide discretionary powers typically assigned to the Minister, there may be a fair number of opportunities for such interpretive exercises. Part 1 - Administration This Part allows for the creation of a National Advisory Committee (s. 6) to advise the Minister on proposed regulations, intergovernmental coordination and other matters (in addition, specific committees can be established on issue areas). As noted above, this is one of the few sections of the Act to be proclaimed in force. The membership is entirely controlled by federal, provincial and aboriginal governments, with no private sector or interest group representation. The Act continues the authority of the Minister to negotiate administrative agreements respecting administration of the Act (s. 9), and extends it from provincial and territorial governments to aboriginal governments. Likewise, s. 10 maintains the ability of the Minister to suspend the application of some federal regulations in provinces where equivalent provisions are deemed to exist, and extends it aboriginal governments. This attempt at avoidance of duplication is consistent with the general tone of much of the Act, stressing the need for intergovernmental coordination and harmonization. Part 2 - Public Participation The need for improved opportunities for public participation and access to information was a major theme in the review of CEPA 1988, and in the debates leading up to passage of the new Act. In the end result, much of this Part replicates provisions form CEP A 1988, but there are some new features as well. Sections continue the right of the public to request an investigation of alleged violations of the Act, with some enhancement of the Minister's duty to report back (20 days for an initial report, with further progress reports to completion of the matter), and with the removal of the requirement for two complainants. Section 39 2 s. 2 includes for consideration such matters as: protection of health; the precautionary principle; protection of biodiversity; and the use of aboriginal knowledge of the environment

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11 5 essentially repeats the civil remedies provisions of the old Act, giving fairly broad scope for individuals to seek injunctions in light of actual or anticipated damage caused by conduct in contravention of the Act: 39. Any person who suffers, or is about to suffer, loss or damage as a result of conduct that contravenes any provision of this Act or the regulations may seek an injunction from a court of competent jurisdiction ordering the person engaging in the conduct (a) to refrain from doing anything that it appears to the court causes or will cause the loss or damage; or (b) to do anything that it appears to the court prevents or will prevent the loss or damage. This is a potentially a significant tool in the hands of a claimant, in that conviction is not required and the injunctions may be mandatory in nature (with respect to work that it "appears" to the court will prevent loss or damage). In some circumstances this could result in an injunction that is both quia timet and mandatory, something that courts will normally grant only when presented with quite compelling evidence. It is not clear that this provision would require as high a degree of proof of imminence as for the equitable remedy. Furthermore, it is unclear what options exist for a defendant who is subject to such an order, engages in expensive work to comply, and is subsequently found not to have been the party who caused the damage or committed the contravention of the Act. The injunction could be validly issued based on evidence that might later prove to be insufficient to obtain a conviction, or which is actually contradicted on further technical investigation. Section 40, consistent with CEP A 1988, provides a right of civil recovery for persons who suffer loss or damage as a result of conduct in contravention of the Act (again, a conviction is not required): 40. Any person who has suffered loss or damage as a result of conduct that contravenes any provision of this Act or the regulations may, in any court of competent jurisdiction, bring an action to recover from the person who engaged in the conduct (a) an amount equal to the loss or damage proved to have been suffered by the person; and

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13 6 (b) an amount to compensate for the costs that the person incurs in connection with the matter and proceedings under this section. This section provides a useful option for persons who have suffered damage under the required circumstances, if only through its removal of any requirement for proof of negligence on the part of the defendant. Furthermore, proof of the conduct in contravention of the Act might be eased where there has already been a conviction, in that s. 41 allows use of a certificate of conviction as "evidence" of the contravention. 3 A new feature of CEP A 1999 is the provision for "Environmental Protection Actions" in ss Where a person has applied for an investigation (see above) and the Minister has not responded or that response was "unreasonable" (s. 22), then they may initiate an environmental protection action "against a person who committed an offence under this Act" (s. 22(2) - emphasis added), where the conduct caused "significant harm to the environment" (s. 22(2). This action can result in the following relief: 22 (3) In the action, the individual may claim any or all of the following: (a) a declaratory order; (b) an order, including an interlocutory order, requiring the defendant to refrain from doing anything that, in the opinion of the court, may constitute an offence under this Act; (c) an order, including an interlocutory order, requiring the defendant to do anything that, in the opinion of the court, may prevent the continuation of an offence under this Act; (d) an order to the parties to negotiate a plan to correct or mitigate the harm to the environment or to human, animal or plant life or health, and to report to the court on the negotiations within a time set by the court; and (e) any other appropriate relief, including the costs of the action, but not including damages. This action is not the equivalent of a private prosecution of the alleged offence, yet it requires the commission of the offence and can result insignificant detriment to the defendant. The hybrid nature of this new action is recognized in the mixture of evidentiary provisions and protections that are set out in this Part. For example, proof of the commission of the offence and of "significant harm" are on a balance of probabilities only (s. 29); but there is a two year time limit on the action (23(1», a defence of due 3 It is not clear what the effect of this section will be. It explicitly refers to "evidence" of the contravention, rather than "proof'.

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15 7 diligence is available (s. 30), and the Attorney General may participate in the action (s. 27(2». In sum, these provisions offer an interesting, though restricted, alternative to private prosecution in cases of government inaction, but the novel hybrid nature of the action is likely to require some clarification in the course of litigation. Part 5 - Controlling Toxic Substances The toxic substance provisions of CEPA 1988 were among the most controversial portions of that Act, and were variously condemned as too cumbersome, too lax or too strict (depending upon one's perspective), and unrealistic in terms of government's capability to carry out the required assessments. The debate over toxics was one of the more contentious in the lead-up to the new Act, and it is likely that neither side will feel completely satisfied with the result. I will limit my comments to: the definition of "toxic" employed in the Part; the basic structure of the regulatory scheme; and the question of "virtual elimination". Section 64 defines "toxic substance" as follows: 64. For the purposes of this Part and Part 6, except where the expression inherently toxic" appears, a substance is toxic if it is entering or may enter the environment in a quantity or concentration or under conditions that (a) have or may have an immediate or long-term harmful effect on the environment or its biological diversity; (b) constitute or may constitute a danger to the environment on which life depends; or ( c) constitute or may constitute a danger in Canada to human life or health. Apart from the addition of "biological diversity", this definition is essentially the same as in CEP A (The use of the term "inherently toxic" refers to specific aspects of the classification exercise under this Part).. Structure of the Regulatory Regime As with CEPA 1988, the new Act deals with toxics through a combination of listings and, potentially, regulation. Dispensing with the more technical details of the process, the central features are as follow: Domestic Substances List (DSL) - As was the case with CEP A 1988, the Min. is to maintain a list of substances manufactured or used in Canada between Jan and Dec Substances on this list are to be categorized within 7 years

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17 8 to identify those that "may present... the greatest potential for exposure" or "are persistent or bioaccurnulative... and inherently toxic..." (s. 73). The government is to conduct a "screening assessment" of identified substances (s. 74) in order to determine whether a substance is toxic or capable of becoming toxic. Priority Substances List (PSL) - Under s. 76, the Ministers of Environment and Health are required to establish this list specifying substances which should be given priority for full assessment as to whether they are toxic or capable of becoming toxic. Section 76.1 (added by the House of Commons) requires the Ministers to use a "weight of evidence" approach and the "precautionary principle" in conducting or interpreting the results of a screening or full assessment. List of Toxic Substances - By s. 77, after a review of a decision from another jurisdiction or a full assessment of a substance on the PSL, the Ministers may decide to: take no further action; add the substance to the PSL ifit is not already included; recommend addition of the substance to the Schedule I List of Toxic Substances. 4 If the specific requirements of s. 77(4) are met, the Ministers shall propose "virtual elimination" under s. 65(3) (this issue is dealt with below). Substances and Activities New To Canada - Sections deal with substances not specified on the DSL, and with "significant new activities" involving specified substances on the DSL. By s. 81, no one shall manufacture or import the substance without satisfying requirements respecting provision of prescribed information on the substance. By s. 83, the Minister is required to assess the information within a prescribed period. At this point, if the substance was suspected of being toxic or capable of becoming toxic, the Minister can: permit its introduction with conditions; prohibit its introduction; or request additional, By s. 77(3), a substance can be recommended for inclusion on the Toxic Substances List based on a scre.ning ar... m.nl if the Ministers are "satisfied" that it "may have a long-term harmful effect on the environment" and is both "persistent and bioacumulative" and "inherently toxic to human beings or nonhuman organisms."

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19 9 infonnation (s. 84). If a substance is admitted, and is listed on the OSL, it could still presumably find its way on to Schedule I. Regulation Mere inclusion on the Schedule I list does not make regulation automatic. Sections 90 to 94 set out the regulatory process which is initiated by inclusion. Section 90 pennits (but does not require) the Governor in Council to act on the recommendation of the Minsiters in adding a substance to the List of Toxic Substances. By s. 93, the Governor in Council then acquires a virtually complete range of powers to regulate all aspects of a substances production, sale, manageillent and use, but the extent to which this is done is within the discretion of the government. Section 90.1 (again added by the House) requires the Ministers (who must recommend the regulations) to "give priority to pollution prevention actions". In addition, ss provide for time limits on when proposals should come forward and be completed. Neither of these, however, really impose significant limits on the government's ability to choose to regulate at a less intensive level. Virtual Elimination The question of ''virtual elimination" of certain toxic substances was one of the most hotly debated aspects of this Part. In the end result, the likelihood of "virtual elimination" being a major factor has been (to go for the obvious phrase) virtually eliminated. The essence of the virtual elimination provisions that survived the legislative process can be summarized as follows: Where the Ministers propose an addition to the Toxic Substances List (s. 77(2», and they are satisfied (s. 77(4» that:... a) the substance is persistent and bioaccumulative in accordance with the regulations. b) the presence of the substance in the environment results primarily from human activity, and c) the substance is not... [naturally occurring], the Ministers shall propose the virtual elimination under subsection 65(3) of the substance.

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21 10 S. 65(1) defines "virtual elimination" only in tenns of release into the environment, and not presence or use, and it is "ultimate reduction", not immediate or short tenn.. A "level of quantification" is to be specified for each substance on the Virtual Elimination List, but this applies to the concentration of the substance in a release. The term "level of quantification" is defined by s to be "the lowest concentration that can be accurately measured using sensitive but routine sampling methods". Once a level of quantification is specified, the Ministers are still to prescribe the "quantity or concentration of the substance that may be released into the environment either alone or in combination with any other substance... [and] shall take into account any factor or information... including, but not limited to, environmental or health risks and any other relevant social, economic or technical matters" (s. 65(3». Designation of a substance for virtual elimination, as defined here, triggers specific requirements for preparation of implementation plans under ss. 77 and 79, and for regulation under s. 91. On their face, these provisions appear somewhat contradictory. Even accepting the limitation to concentrations in releases, it seems clear that s. 65(1) defines "virtual elimination" as reduction below the "level of quantification". It is equally clear that s defines "level of quantification" as the lowest measurable level. However, s. 65 then. goes on to state that the Ministers shall, for substances on the "virtual elimination" list, prescribe the quantity or concentrations allowed, and makes no mention of "virtual elimination" or of the "level of quantification". In fact, it makes it clear that the Ministers can take account of a range of factors, specifically including economic matters, which do not relate to the s. 65(1) definition or the "level of quantification". The explanation for this confusion is twofold. First, the s. 65(1) definition is concerned with "ultimate" reduction to a given level, so prescribing something more now may not be inconsistent. This is not a complete answer, however, as the reference to "virtual elimination" in the key regulatory section, s. 91(2), is to "virtual elimination under subsection 65(3)." Thus, the less rigid approach is the one that appears in the regulatory power, and there is no particular requirement as to when the "ultimate" complete reduction as set out in s. 65(1) will be achieved. This leads to the second part of the answer: there are two separate definitions in place here. "Virtual elimination" in the "absolutist" version appears in s. 65(1) coupled with s.

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23 , but no power to regulate on that basis is provided. Section 65(3) specifies how substances on the "Virtual Elimination List" will be regulated - and the section does not actually apply the definition of "virtual elimination. We are left with the following rather peculiar situation: substances on something called the "Virtual Elimination List" are not actually subj ect to "virtual elimination" as defined in the Act, but are regulated to the flexible, discretionary standard ofs. 65(3). Section 65(1) is left as an empty shell: it states what "virtual elimination" means in this Part, but this meaning is not used for the regulatory power. The remaining problem is found in s. 77(4), which provides that the Ministers, in the correct circumstances, "shall propose the implementation of virtual elimination under subsection 65(3)...". This presents a conundrum for the Ministers, for, as argued above, "virtual elimination" as defined in this Part is not mentioned and is not applied in s. 65(3). They can apply "virtual elimination" as defined, or they can apply the standard set out in s. 65(3) - they cannot really do both. This difficulty probably resulted from the late addition of s which introduces the strict definition of "level of quantification" that gives s. 65(1) its teeth. It is likely that s. 77(4) was simply not re-drafted to make a choice between the newly divergent standards ofs. 65(1) and 65(3).5 Part 6 - Animate Products of Biotechnology This new Part was added to bring aspects of the growing biotechnology sector under the toxic substance regime, but with somewhat different conditions. The Part provides for the inclusion of organisms manufactured in or imported into Canada between on the DSL (5. 105). For substances not on the DSL, entry or manufacture is prohibited unless the required information is provided for assessment, or if specified exceptions apply (5. 106). In a process similar to that in Part 5, the Ministers are to assess the organism on the "toxic or capable of becoming toxic" standard (5. 108). Should they suspect that it is toxic or capable of becoming toxic, the Minister has the power under s. 109 to permit manufacture or importation with conditions, to prohibit manufacture or importation, or to request further information. S Also included in Part 5, and not addressed here, are provisions for control of releases of toxic substances (ss ); export of substances (ss ); and powers related to interim orders (s. 94).

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25 12 Once onto the DSL or subject to the screening and assessment process, biotechnology products could be included on the Toxic Substances List and be subject to the full range of regulatory powers provided in Part 5. In addition, general regulatory powers over such products, not dependent upon listing as toxic, are set out in s. 114, while s. 115 provides for the regulatory implementation of international agreements in this sector. Part 10 - Enforcement This Part contains a wide range of provisions related to powers of enforcement officers, inspections and searches, sentencing criteria and related matters. Much of this is relatively unchanged from CEPA, but there are some points of interest. Section 280(2} introduces a provision relating to corporate officers and directors similar to that which has appeared in some provincial legislation: 280 (2) Every director and officer of a corporation shall take all reasonable care to ensure that the corporation complies with (a) this Act and the regulations; and (b) orders and directions of, and prohibitions and requirements imposed by, the Minister and enforcement officers and review officers. This provision, by establishing the duty to "take all reasonable care" to ensure corporate compliance, creates an offence where the director or officer fails to do so (the more traditional provision that finds them liable where they have participated in or directed the action constituting the offence is found in 280(1». This provision is more extensive in its effect than the provincial examples, in that it includes not just corporate violations of the Act and Regulations, but also non-compliance with orders of the Minister or even of enforcement officers. The Act provides for forfeiture of property related to an offence upon conviction, should the court so order (ss ). CEPA 1999 has explicitly extended this power to ships and offshore structures. An important amendment has been included with respect to third party interests in forfeited property. By s. 233, persons claiming an interest in the forfeited thing (as owner, mortagee, lien holder or any other claim) can apply to the Federal Court for a declaration that their interests are unaffected by the forfeiture (there

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27 \3 are requirements that they be innocent of complicity in the offence and that they exercised reasonable care to prevent the usage of the thing in the offence). Another new feature is the introduction oflegislated (as opposed to policy-based) sentencing criteria in s These criteria, set out below, should provide assistance to those engaged in activities which might run afoul of CEP A, in that they can better structure their initial repsonses to problems to fit with the relevant criteria A court that imposes a sentence shall take into account, in addition to any other principles that it is required to consider, the following factors: (a) the harm or risk of harm caused by the commission of the offence; (b) an estimate of the total costs to remedy or reduce any damages caused by the commission of the offence; (c) whether any remedial or preventive action has been taken or proposed by or on behalf of the offender, including having in place an environmental management system that meets a recognized Canadian or international standard or a pollution prevention plan; (d) whether any reporting requirements under this Act or the regulations were complied with by the offender; (e) whether the offender was found to have committed the offence intentionally, recklessly or inadvertently; (t) whether the offender was found by the court to have been negligent or incompetent or to have shown a lack of concern with respect to the commission of the offence; (g) any property, benefit or advantage received or receivable by the offender to which, but for the commission of the offence, the offender would not have been entitled; (h) any evidence from which the court may reasonably conclude that the offender has a history of non-compliance with legislation designed to prevent or minimize harm to the environment; and (i)all available sanctions that are reasonable in the circumstances, with particular attention to the circumstances of aboriginal offenders. Finally, ss establishes a scheme for "environmental protection alternative measures" (EPAMs), under which agreements could be entered into to avoid prosecution and conviction, and to substitute one or a number of agreed actions by the offender, largely similar to those contained in the order powers under s EP AMs would be restricted to "appropriate" parties (based on history of compliance, non-denial etc.), and would not be available for some more serious offences.

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29 14 Species At Risk Legislation The federal government is currently in the process of defining and refining its proposed legislation on endangered species. This is an area of some difficulty for the federal government, as the cross-over into provincial jurisdiction with respect to matters such as habitat protection is obviously a significant. limitation. Added to this is the political risk associated with measures that may involve limitations on the use of private land in the interests of habitat protection. In order to defuse some of the difficulties, the basic structure of the federal approach will follow the Accord for the Protection of Species At Risk, agreed earlier with provincial and territorial governments. While we can expect a prolonged period of debate and possibly new shifts in direction before legislation is finalized, it is possible to outline the basics of the proposed federal approach. The draft legislation is structured around the following elements: Listing of Species: The listing process would begin with an independent, scientific committee (Committee on the Status of Endangered Wildlife in Canada COSEWIC), which would submit lists of species assessments to the Canadian Endangered Species Conservation Council, made up offederal, provincial and territorial ministers, which lists would be jointly issued. Federal listing would, however, be decided by Cabinet (a political involvement which has bee the subject of some criticism). Prohibitions: Listing would lead (with some limitations) to prohibitions on species destruction or destruction of "residences" (as opposed to the broader "habitat"). These prohibitions would require action by both federal and provincial governments within their areas of jurisdiction. The federal level is to maintain a "safety net" to protect species not adequately dealt with provincially, but only after consultations. Recovery: The legislation will provide for a range of species recovery activities, concentrated on scientific and planning activities, and will include habitat protection actions (more policy than legislative). Critical Habitat Safety Net: Where recovery planning identifies critical habitat areas at risk, governments would commit to further action to protect it, though this is a bit

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31 IS vague. Ultimately if private and public efforts are insufficient, the federal "safety net" is to be employed as a last resort. Compensation: It is proposed that the legislation will include compensation for burdens imposed on individual landowners through protection measures. Stewardship: An emphasis on supporting private stewardship of relevant land is a major theme of the federal approach. It is proposed to develop a package of subsidies and incentives to encourage landowners to protect and preserve important habitat Much like the conservation easement concept, this may provide a useful route for private owners who would otherwise find it difficult to maintain land in such a way as to protect habitat. Review of Canadian Environmental Assessment Act (CEEA) The federal government has initiated the process for the mandatory five year review of the Canadian Environmental Assessment Act (CEEA). Since the introduction of CEEA, 25,000 environmental assessments have been conducted under its provisions. Of these, over 99 % have been at the less intensive "screening" level of assessment, only 46 have been SUbjected to a "comprehensive study" and 9 have undergone or been sent for full panel review. The Act has been the subject of criticism (and litigation) regarding the scope of its application, and the wide degree of ministerial discretion which still applies to the outcomes of assessments. It is obviously too early to state where this review will end up, but based on documents distributed by the government it is possible to identify some of the likely key issues which will be dealt with: Improving the timeliness of the process, and simplifying its application Clarifying the appropriate scope of application Improving the opportunities for public participation Increasing the coordination and harmonization with other departmental process and with provinces, territories and aboriginal governments. Further development of the concept of "strategic environmental assessment", which can provide assessments outside of a project-specific, reactive focus, and can better assess government policies as opposed to simple infrastructure.

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33 16 Conclusions The revision and updating of federal legislation in this area is partly a response to the need for modernization in light of better knowledge, but also to the need for streamline procedures in the face of a budgetary pressures. It is too early to say what the federal jurisdictional package will look like at the end of this process, but it is likely that less, rather than more, involvement in environmental protection and planning will be the result. Furthermore, the trend seems to be in favour of devolution (or downloading?) of responsibilities to the provincial level, sometimes explicitly and sometimes under the rubric of "coordination and harmonization". One additional characteristic of the CEPA and SPAR processes that is worth, noting is the increased involvement of business and environmental lobby groups in the legislative process. The experience of both sides over the past 20 years has convinced them that they have a significant stake in the outcome of the legislative process, and they realize that there are many public and private opportunities to influence the shape of legislation. Accordingly, we are likely to see a continuation of a trend towards making legislation in press conferences and back rooms, rather than in the formal institutions of Parliament.

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