Summary of Environmental Law in Canada

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25 Transboundary and International Issues

 

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25.1 International Treaties and Domestic Law

 

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The Canadian Constitution is silent as to the power of any level of government to make treaties, although it is generally recognized that the federal government alone has the jurisdiction to make commitments for Canada on the international stage. However, the federal government's power to conclude international agreements does not appear to include the authority to implement them internally when the subject of the accord comes under provincial jurisdiction. Unless the courts were to hold otherwise in the future, nothing can force a province to perform, through legislation, the obligations set by a treaty signed by the federal government.

The Canadian provinces, however, have the power to enter into arrangements with foreign countries which are not intended to be binding in international law. Some would argue that the provinces also have the power to make binding international agreements regarding subjects under their jurisdiction. However, the federal government insists on preserving its exclusive jurisdiction regarding foreign affairs. To date, this question has not been definitively settled.

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25.10 Agreements Relating to Other Transboundary and International Issues

 

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MULTILATERAL AGREEMENTS

Canada is a party to the following Agreements concerning military and nuclear matters:

Convention on the Transboundary Effects of Industrial Accidents (Helsinki, 1992). Canada is a party to this Convention.

Convention on Environmental Impact Assessment in a Transboundary Context. Canada is a party to this convention, which resulted from an initiative of the Economic Commission for Europe (ECE) (Espoo, 1991). The Convention came into force in September 1998.

Canada is also a party to the following other agreements:

BILATERAL OR TRILATERAL AGREEMENTS BETWEEN CANADA, MEXICO AND THE UNITED STATES

Canada and the United States have signed the following treaties:

Mexico-Canada initiatives include the following:

Funding agreements for environmental projects. In 1992, the Canadian government granted to the Mexican Ministry of Social Development (SEDESOL) CDN$ 1 million, with the intention that SEDESOL supervise and enforce Mexican environmental laws and regulations.

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25.11 Extraterritorial Regulation

 

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The extraterritorial application of laws and regulations adopted in Canada is rare and is possible only when there is a specific legislative provision to that effect.

The most important example relating to the environment is the Coastal Fisheries Protection Act. In 1994, it was amended to give the federal government the authority to regulate stocks of fish that straddle the high seas and Canada's 200 mile limits, that is, "straddling stocks". Canada enforces a fishery jurisdiction within 200 nautical miles of its shoreline in accordance with the Territorial Sea and Fishing Zone Act.

With these amendments to the Coastal Fisheries Protection Act, Canada can intervene outside the limits of Canadian waters when necessary to protect certain types of fish, such as those found on the Grand Banks off Newfoundland and Labrador.

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25.2 Membership in Global Institutions

 

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Canada is a member of several governmental and international non-governmental organizations. The following are some of the most important governmental institutions to which Canada belongs:

Food and Agriculture Organization (FAO). The Organization, established in 1945, collects, analyzes, interprets, and disseminates information on nutrition, food, and agriculture. The Organization promotes and recommends national and international action on scientific, technological, social, and economic research and the conservation of natural resources.

Global Environment Facility (GEF). The GEF, restructured in 1994, is one of the principle mechanisms for global environment funding. Its objectives are to ensure that its own governance is transparent and democratic, to promote universality in participation, and to provide for full cooperation in its implementation amongst international agencies.

Intergovernmental Panel on Climate Change (IPCC). The Panel, established in 1988, serves as the international clearing house for climate change issues and assesses scientific information related to climate change in order to formulate response strategies.

International Atomic Energy Agency (IAEA). The Agency, created in 1957, seeks to improve and increase the contributions that atomic energy makes to peace, health and prosperity throughout the world. The Agency works on issues such as waste disposal, nuclear accidents, and the review and appraisal of scientific and technical documents on aspects of the nuclear fuel cycle.

International Energy Agency (IEA). The Agency, established in 1974, aims at improving the world's energy supply and demand structure by developing alternative energy sources and increasing the efficiency of energy use. It also seeks to approach energy developments within a global context through cooperative relations with non-member countries and international organizations.

International Maritime Organization (IMO). The Organization, founded in 1958, promotes standards in marine safety, navigational efficiency, and the prevention and control of marine pollution from ships.

Nuclear Energy Agency (NEA). The Agency, founded in 1972, seeks to ensure orderly development of the uses of nuclear energy for peaceful purposes by assessing the future role of nuclear energy. The Agency encourages harmonization of governments' regulatory policies and practices, with particular reference to health and safety, radioactive waste management, and emergency procedures.

Organization of American States (OAS). The Organization, established in 1890, seeks to strengthen the peace and security of the continent and to promote, by cooperative action, economic, social, and cultural development, including consideration of issues relating to the environment.

Organization for Economic Cooperation and Development (OECD). The OECD, established in 1961, brings together the industrialized countries of Western Europe, North America, and the Pacific Region. Its Environment Policy Committee has many sub-committees and working groups. Environmental areas of focus include: chemicals, pollution prevention and control, environmental performance reviews, integration of environment and economy (including trade and the environment), and environmental information.

United Nations Commission on Sustainable Development (CSD). The Commission's mandate includes the review of all outcomes from the 1992 United Nations Conference on Environment and Development (UNCED), including Agenda 21, the forest management principles and recommendations for future "cooperative arrangements."

United Nations Development Programme (UNDP). This program is the United Nations' world development network. It fosters change and links countries with the knowledge, expertise, and resources they need to improve the lives of their citizens.

United Nations Economic Commission for Europe (UNECE). The Commission, established in 1947, seeks to generate and improve economic relationships among its members and countries of the world, and to strengthen intergovernmental cooperation, particularly in trade development, scientific and technological exchanges, the protection of the environment, and programming and projections as a basis for policy-making. The UNECE works on issues such as air pollution (sulphur emissions, volatile organic compounds), water pollution, impact assessment, and transboundary impacts of environmental accidents.

United Nations Educational, Scientific and Cultural Organization (UNESCO). UNESCO, established in 1945, seeks to promote collaboration among the nations through education, science, and culture in order to further universal respect for justice, human rights, and fundamental freedoms. Environment Canada participates in three of UNESCO's environmental programs: the International Hydrological Program (IHP), the World Heritage Convention, and the Man and the Biosphere Program (MAB).

United Nations Environment Program (UNEP). The Program, founded in 1972, is an intergovernmental organization that involves developed and developing nations in addressing global environmental issues. UNEP is the principal UN organization dealing with international cooperation for ecological issues such as climate change, depletion of the ozone layer, management of hazardous wastes, biological diversity, desertification, and deforestation.

World Bank Group. The Group, founded in 1947, seeks to raise standards of living in the poorer developing countries by conveying financial resources from the developed world. Since 1987, more attention has been devoted to resource conservation and the environmental aspects of development projects. Sustainable development is now an integral part of the Group's planning.

World Meterological Organization (WMO). The Organization, established in 1950, coordinates global scientific activities for prompt and accurate weather information and other information.

As for non-governmental organizations, Canada is part of, among others, the International Organization for Standardization (ISO), the International Water Resources Association (IWRA), and the World Conservation Union (IUCN).

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25.3 General Agreements Relating to the Protection of the Environment

 

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MULTILATERAL AGREEMENTS

Declaration of the United Nations Conference on the Human Environment. Canada signed this declaration following the United Nations Conference on the Human Environment held in Stockholm in 1972.

United Nations Declaration on the Environment and Development (the Rio Declaration). Canada signed this declaration, which sets global principles on these two themes, at the 1992 Rio Summit. Canada also signed Agenda 21, which encompasses a wide-range of environmental issues to be addressed in the 21st Century. Following the Convention, some provincial governments have adopted action plans for dealing with biodiversity.

REGIONAL OR HEMISPHERICAL AGREEMENTS

Foundation Charter of the Regional Environmental Center for Central and Eastern Europe (Budapest, 1990). Canada is a party to this Charter. The objectives of the Center are to address the environmental challenges generally common to central and eastern Europe, and the preservation of nature in the region.

BILATERAL OR TRILATERAL AGREEMENTS BETWEEN CANADA, MEXICO AND THE UNITED STATES

Trilateral Agreement for the Conservation of Migratory Birds and their Habitats. This agreement was signed in 1988 by Canada, United States and Mexico.

A Trilateral Memorandum of Understanding (MOU) on Environmental Education. This Memorandum between Environment Canada, the US Environmental Protection Agency (USEPA), and Mexico's Secretariat of Social Development (Secretaría de Desarrollo Social-SEDESOL) was signed in September 1992. Its purpose is to promote, develop, and implement joint environmental education in North America.

Environmental Cooperation Agreement Between the Government of the United States of Mexico and the Government of Canada. Canada and Mexico signed this Agreement in March 1990. At that time, Canada announced that it would spend CDN$1 million from the Green Plan International Partnerships Fund to assist Mexico with environmental monitoring and enforcement.

North American Free Trade Agreement (NAFTA). In September 1993, the government of Canada signed NAFTA and two side agreements, the North American Agreement on Environmental Cooperation (NAAEC), and the North American Agreement on Labor Cooperation. The two side agreements entered into force along with NAFTA on January 1, 1994.

The purpose of NAAEC is to enhance continental environmental cooperation. The supplemental agreement created the Commission for Environmental Cooperation (CEC), with its head office in Montreal. The mandate of the Commission is to facilitate cooperation and public participation to foster conservation, protection and enhancement of the North American environment for the benefit of present and future generations, in context of the increasing economic, trade and social links between Canada, Mexico and the United states.

In order to facilitate the application of the NAACE on their territories, the federal government is trying to negotiate with the provinces an Intergovernmental Agreement on the North American Agreement on Environmental Cooperation (NAACE). Thus far, only Alberta, Manitoba and Quebec have agreed to sign this Agreement.

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25.4 Agreements Relating to International Rivers and Lakes

 

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BILATERAL OR TRILATERAL AGREEMENTS BETWEEN CANADA, MEXICO AND THE UNITED STATES

There are numerous treaties between Canada and the United States dealing with matters such as water level regulation, flood control, river diversions, dredging operations, and water quality.

Treaty Relating to the Boundary Waters and Questions Arising Along the Boundary Between the United States and Canada. This treaty, which dates back to 1909, sets out legal principles applicable to all freshwater rivers and lakes along the border. The Treaty established the International Joint Commission (IJC), made up of six commissioners, three of which are named by the President of the United States upon recommendation by the US Senate, and three by the Governor in Council of Canada, upon notice to the Prime Minister of Canada. The IJC is the only bilateral mechanism existing between the two countries for the management of a natural resource and has facilitated the adoption of numerous agreements for the development, control, and use of waters. The IJC also applies the 1991 Agreement on Air Quality and the Agreement Between the United States of America and Canada on Great Lakes Water Quality (see below).

In 2001, Canada amended the Act implementing the 1909 boundary waters treaty (International Boundary Waters Treaty Act) to prohibit the collection and transfer of boundary waters outside their watershed catchment basins, to make activities in border and transborder waters that change the flow or natural levels of waters on the US side of the border subject to licencing from the Minister of Foreign Affaires, and to provide for sanctions and clear penalties for offenders.

Agreement Between the United States of America and Canada on Great Lakes Water Quality (1972). This Agreement was renewed in 1978 and amended by a protocol in 1987. It seeks to restore and maintain the chemical, physical, and biological integrity of the waters of the Great Lakes Basin ecosystem. The Agreement contains provisions for the development of programs, practices, and the technology necessary to eliminate or reduce to the maximum extent practicable, the discharge of persistent, toxic pollution into the Great Lakes system. Much of the implementing legislation in both countries is done at the provincial or state level. The International Joint Commission (see above) periodically reports on the accomplishments following the application of the Agreement and makes recommendations to concerned governments. Canada and the United States signed, in 1997, the Great Lakes Binational Toxics Strategy, which emphasizes pollution prevention. The strategy includes an action plan to eliminate the release into the lakes of persistent, bioaccumulative toxic substances such as PCBs, dioxins and furans, and mirex, and sets measurable reduction targets and timelines for each substance.

Transboundary rivers are also the subject of a number of specific treaties. The following are examples of such agreements:

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25.5 Agreements Relating to Atmospheric or Air Pollution

 

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MULTILATERAL AGREEMENTS

United Nations Framework Convention on Climate Change and the Kyoto Protocol. Canada signed and ratified these two legal instruments. The aim of the Protocol is to reduce greenhouse gas emissions over the next 15 years. Canada has committed to reduce its emissions by six percent below 1990 levels for the period spanning 2008 to 2012.

The 1985 Vienna Convention for the Protection of the Ozone Layer, the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer (London, 1990, Copenhagen, 1992, and Montreal, 1997, adjustments and amendments), and the Helsinki Declaration of May 1989. Canada has signed all of these instruments. The objective of these agreements is to protect the ozone layer by taking precautionary measures to equitably control total global emissions of substances that deplete it, with the ultimate objective of their elimination on the basis of developments in scientific knowledge. These agreements further set obligations to promote global understanding of ozone issues, to ensure Canadian compliance, and to give opportunities for business and industry to develop and market ozone friendly technologies and expertise.

Geneva Convention on Long-Range Transboundary Air Pollution (LRTAP). Canada is a party to this convention and to the following protocols:

Stockholm Convention on Persistent Organic Pollutants. Canada is a party to this Convention.

BILATERAL OR TRILATERAL AGREEMENTS BETWEEN CANADA, MEXICO AND THE UNITED STATES

Canada-US Air Quality Agreement. This Agreement was signed in 1991, to address the issue of transboundary air pollution leading to acid rain problems. The Agreement sets specific emission control objectives, provides for research and information exchange, and requires both parties to avoid or mitigate activities likely to cause transboundary air pollution.

The Ozone Annex to the 1991 Canada-US Air Quality Agreement. This Annex was signed in 2000 to reduce the transboundary movement of smog-causing pollutants and better protect human health and the environment. The Annex commits Canada and the US to stabilize and reduce emissions of nitrogen oxides (NOx) and volatile organic compounds (VOCs), precursors to ground-level ozone, which is itself a primary ingredient in the smog that plagues large regions of north-eastern North America. The Ozone Annex specifies a region in each country where transborder flows of ozone pollution and its precursors originate and in which the provisions of the Annex apply. In Canada, the defined region covers central and southern Ontario and southern Quebec. In the US, it includes 18 states and the District of Columbia. These regions represent more than 50 percent of the Canadian population and about 40 percent of the US population.

International Great Lakes-St. Lawrence Ice Information Work Group. Canada and the United States created this group in 1972 to provide information to the governments on the current research and development activities concerning ice, weather, fisheries, and other activities needed to deal with water resources and to effectively manage water resources in the watershed.

Agreement for the Exchange of Information on Weather Modification Activities. Canada and the United States signed this Agreement in 1975.

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25.6 Agreements Relating to Marine Pollution and Conservation

 

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MULTILATERAL AGREEMENTS

United Nations Convention on the Law of the Sea (UNCLOS). Canada is a party to this Convention.

Convention on the Continental Shelf (Geneva, 1958). Canada is a party to this Convention.

Convention for the Prevention of Pollution of the Sea by Oil (London, 1954). Canada ratified this Convention in 1956, and its subsequent amendments.

Canada is also a party to the following international treaties relating to marine pollution:

Convention for the International Council for the Exploration of the Sea (Copenhagen, 1964); Convention on Civil Liability for Oil Pollution Damage (Brussels, 1969; Canada acceded with the 1976 Protocol); International Convention for the Establishment of an International Fund for Compensation for Oil Pollution Damage (Brussels, 1971); Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London, 1972); International Convention for the Prevention of Pollution from Ships (MARPOL) (London, 1973, and its 1978 Protocol); Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region (with Annex and the Protocol concerning cooperation in combatting Oil Spills in the Wider Caribbean Region)(1983); International Convention on Oil Pollution Preparedness, Response and Co-operation (1990); and, Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (Rome, 1993; not yet in force).

1931 Geneva Convention and the 1946 International Convention for the Regulation of Whaling (including its 1956 Protocol). In 1982, Canada withdrew from the Convention as a protest against the Commission's refusal to recognize each state's right to an exclusive economic zone. Since then, Canada has had observer status at the Commission.

The Ocean Charter. The 125 member states of the Intergovernmental Oceanographic Commission (IOC) of UNESCO drafted The Ocean Charter to mark the International Year of the Ocean (IYO). The IOC hopes the Charter will be signed by the representatives of 100 countries. Signatories, which include Canada, consider the charter as a starting point for future actions and not as regulatory in nature.

REGIONAL OR HEMISPHERICAL AGREEMENTS

Canada is a party to the following treaties:

Protocol II to the Convention on the Prohibition of Fishing with Long Driftnets on the High Pacific (Noumea, 1990; not yet in force). Canada is a signatory to this Protocol, the objective of which is to ban the use of driftnets in the South Pacific region to conserve the marine resources of the area.

BILATERAL OR TRILATERAL AGREEMENTS BETWEEN CANADA, MEXICO AND THE UNITED STATES

Canada-US Joint Marine Pollution Contingency Plan. Canada and the United States signed this Exchange of Notes in 1974. The document was completed in 1988 by the signing of the Agreement on Arctic Cooperation.

With respect to marine conservation, Canada-US fisheries treaties include the following:

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25.7 Agreements Relating to the Arctic

 

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MULTILATERAL AGREEMENTS

Agreement Between the Government of Canada and the Government of the Russian Federation on Cooperation in the Arctic and the North (Moscow, 1989).

REGIONAL OR HEMISPHERICAL AGREEMENTS

Declaration on the Protection of the Arctic Environment and Arctic Environmental Protection Strategy (Finland, 1991). This Declaration was signed by eight nations, including Canada, to protect the Arctic environment. The Declaration represents their commitment to carry out the Arctic Environmental Protection Strategy, a broad plan outlining cooperative activities to be undertaken over a period of a few years.

BILATERAL OR TRILATERAL AGREEMENTS BETWEEN CANADA, MEXICO AND THE UNITED STATES

U.S.-Canada Agreement on the Arctic Cooperation. This Agreement was signed in 1988 by Canada and the U.S. It includes an affirmation that Arctic navigation and resource development should not adversely affect the unique environment of the region.

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25.8 Agreements Relating to the Protection of Flora and Fauna

 

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MULTILATERAL AGREEMENTS

International Plant Protection Convention (Rome, 1951) and its subsequent amendment of 1979. Canada is a party to these instruments, the objectives of which are to maintain and increase international cooperation in controlling pests and diseases of plants and plant products, and prevent their introduction and transmittal across international boundaries.

Convention on Wetlands of International Importance Especially as Waterfowl Habitat (Ramsar, 1971). Canada is a party to this Convention, which directs the signatory countries to designate wetlands, for inclusion on a List of Wetlands of International Importance. The list includes wetlands that are outstanding examples of a region, that are highly productive communities, that are valuable for educational or scientific purposes, or that are valuable as a critical wildlife habitat.

Convention on the International Trade in Endangered Species of Wild Fauna and Flora (CITES) (Washington, 1973) and amendments (Bonn, 1979 and Gaborone, 1983). Canada is a party to these instruments.

International Tropical Timber Agreement (Geneva, 1983). Canada is a party to this Agreement, which provides a framework for cooperation and consultation between countries producing and consuming tropical timber.

Convention on Biological Diversity. Canada is a party to this Convention and to its Cartagena Protocol on Biosafety.

Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of All Types of Forests. Canada signed this Statement of Principals during the United Nations Conference on Environment and Development, held in Rio in 1992. The main objective of the Statement is to contribute to the achievement of the management, conservation and sustainable development of forests, and to provide for their multiple and complementary function and uses.

REGIONAL OR HEMISPHERICAL AGREEMENTS

Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere (1940) (also known as the Western Hemisphere Convention). Canada's accession to the Convention is under consideration. It seeks to preserve all species of native American fauna and flora from extinction, and to preserve areas of extraordinary beauty, striking geological formation, or aesthetic, historic, or scientific value.

Agreement on the Conservation of Polar Bears (Oslo, 1973). Canada is a party to this Agreement.

BILATERAL OR TRILATERAL AGREEMENTS BETWEEN CANADA, MEXICO AND THE UNITED STATES

North American Agreement for Plant Protection. In 1976, the three North American countries signed this Agreement, which led to the establishment of the North American Organization for Plant Protection.

North American Waterfowl Management Plan (NAWMP). This plan was signed between Canada and the United States in 1986, and was endorsed by Mexico in 1989. NAWMP identifies 34 areas of concern for habitats throughout North America, and also identifies the financial resources and actions that are to be taken by governments, the private sector, and agricultural interests to resolve land use problems. The federal government has participated in the development of the Plan in conjunction with provincial, territorial, and U.S. state and federal governments, as well as non-governmental organizations and the private sectors in both countries. The plan is intended to protect two million hectares of wetlands within Canada to enhance international waterfowl populations and to assist in various soil and water conservation programs. The Canadian Wetland Council was established in 1990, as a funding and coordinating agency for the Plan.

Trilateral Agreement for the Conservation of Migratory Birds and their Habitat. This Agreement was signed by Canada, the United States and Mexico as a complement to the 1916 Convention for the Protection of Migratory Birds in the United States and Canada, (U.S. and U.K.) and the U.S.-Canadian protocol to that convention, which was signed in 1979. The Migratory Birds Convention is particularly important to wetlands preservation in Canada and is used in part to implement Canada's obligations under the Ramsar Convention on Wetlands of International Importance. The purpose of the Migratory Birds Convention is to ensure the preservation of migratory birds that are either useful or harmless, and to establish some uniform system of protection.

Mexico, Canada, U.S. Trinational Committee. This Committee is composed of the Mexican Secretariat of the environment and natural resources (SEMARNAT-Secretaría de Medio Ambiente y Recursos Naturales), the U.S. Fish and Wildlife Service, and the Canadian Wildlife Service. It was created to develop strategies for the conservation, protection, and management of aquatic migratory birds and their habitats.

Major bilateral treaties relating to the protection of flora and fauna between Canada and the United States are the following:

Klondike Gold Rush International Historic Park Advisory Committee. In 1972, Canada and the United States established this Committee to coordinate, administer, and resolve issues such as visitor protection and customs.

Canada-U.S. Joint Advisory Committee on National Parks. This Committee was formed in 1987, by exchange of letters, the was created to promote cooperation in areas of mutual interest in the field of national parks.

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25.9 Agreements Relating to the Management of Wastes

 

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MULTILATERAL AGREEMENTS

Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal. This Convention, negotiated under the auspices of the United Nations Environment Programme (UNEP), was signed in 1989, and ratified by Canada in August 1992. It covers the transboundary movement of hazardous wastes, certain household wastes, infectious wastes, and municipal incinerators. During the same year, Canada adopted regulations to implement the Convention's provisions. Canada also has two key laws that deal with dangerous wastes: the Transportation of Dangerous Goods Act and the Canadian Environmental Protection Act, 1999 (CEPA 1999).

BILATERAL OR TRILATERAL AGREEMENTS BETWEEN CANADA, MEXICO AND THE UNITED STATES

Agreement on the Transboundary Movement of Hazardous Waste (1986). This Agreement between Canada and the United States permits transboundary waste shipments, subject to export notification and consent by the state of import. Each party must comply with the other's domestic law.

U.S. EPA-Canadian Department of the Environment-Alaska-Idaho-Washington-British Colombia Memorandum of Understanding on Continued Regional Coordination on Hazardous Waste Management (1991).

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2003