getting tough on environmental crime? holding the government of canada to account on environmental enforcement Copyright © 2011 Ecojustice This work is licensed under the Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada License Getting Tough on Environmental Crime? Holding the Government of Canada to Account on Environmental Enforcement December 2011 William Amos, John Lammey, Meredith Cairns and Ceyda Turan co-authored this report. The authors thank the students of the Ecojustice Clinic at the University of Ottawa, in particular Pierre Cloutier de Repentigny, Julian Daller, Sarah Kromkamp, and Kristina Mahon, for their research efforts, and for reviewing the available federal enforcement information from various federal laws and regulations. The authors thank John Swaigen, Elaine MacDonald, Fraser Thomson, Olga Puigdemont Sola, Sarah Jackson and David Boyd for reviewing earlier drafts and providing corrections and feedback. Pierre Hamilton provided invaluable assistance in reviewing drafts and providing corrections. Report layout & design by Tunaheart Creative with assistance from Tom Fortington & Pierre Hamilton This report was made possible through the ongoing support of Ecojustice donors. Vancouver: 214 – 131 Water street, Vancouver, B.C. V6B 4M3 Toronto: Centre for Green Cities, 401–550 Bayview Avenue, Toronto, ON, M4W 3X8 Ottawa: University of Ottawa, LeBlanc residence, 107–35 Copernicus Street, Ottawa, ON, K1N 6N5 Calgary: 900 – 1000 5th Avenue SW, Calgary, AB, T2P 4V 1.800.926.7744   info@ecojustice.ca table of contents EXECUTIVE SUMMARY  8 CONTEXT: The Enactment of the Environmental Enforcement Act  13 PART ONE: Information Disclosure and Environmental Enforcement 1. Enforcement and The Community Right To Know Principle: Beyond Access to Information Requests­  17 2. Proactive Disclosure and the Government of Canada’s Slow Transition to Open Government  20 3. Piecemeal Enforcement Information Made Public: An Incomplete Picture of Enforcement  22 4. National Enforcement Management Information System and Intelligence System (nemisis ): For Government Eyes Only  25 5. Drawing Lessons from the United States: Enforcement and Compliance History Online (echo )  27 6. Recommendations on Environmental Enforcement Information Disclosure  28 PART TWO Enforcement of Key Federal Environmental Laws 1. Introduction  30 2. Enforcement of Canadian Environmental Protection Act from 2000-10  32 i. cepa Enforcement Information  33 ii. cepa Enforcement Priorities: The Paradox of Less Enforcement Activity  34 iii. cepa Enforcement Officers on the Rise  35 iv. cepa Inspection Numbers Increase Only Slightly, Despite New Enforcement Officers  35 v. cepa Investigation Numbers are on the Decline, While Prosecution and Conviction Numbers are Low In Absolute Terms  36 vi. Liberal vs. Conservative Governments on cepa Enforcement  36 vii. cepa Penalties and Fines Remain Low  37 viii. Summary of Key cepa Enforcement Trends  38 3. Enforcement of the Fisheries Act from 2000-10  40 i. Fisheries Act Enforcement Information  41 ii. Decrease in Fisheries Act Warnings, Charges and Convictions by dfo   42 iii. Fisheries Act Inspections by Environment Canada Decrease More Than 50% since 2002-03  42 iv. Fisheries Act Warnings, Prosecutions and Convictions by Environment Canada are Low in Absolute Terms  42 v. Liberal vs. Conservative Governments on Fisheries Act Enforcement  42 vi. Fisheries Act Penalties and Fines Remain Low  44 vii. Summary of Key Fisheries Act Enforcement Trends  46 4. Enforcement of the Species at Risk Act from 2005-09  47 i. sara Enforcement Information  47 ii. Significant Increase in sara Enforcement Officers  49 iii. Rise and Fall of sara Inspections  49 iv. Penalties and Fines under sara : Only Two Convictions so Far  50 5. Enforcement of the Canada Wildlife Act from 2005-09  51 i. CWA Enforcement Information  51 ii. Enforcement Declining Under CWA  52 6. Enforcement of the Wild Animal and Plant Protection Regulation of International and Interprovincial Trade Act from 2005-09  54 i. wappriita Enforcement Information  54 ii. wappriita Enforcement: Superior Reporting of Inspections and Investigations  55 iii. wappriita Penalties and Fines  57 7. Enforcement of the Canada Shipping Act  58 i. Non-Disclosure of csa Enforcement Information  59 8. Enforcement of the Migratory Birds Convention Act  60 i. mbca Enforcement Information  60 ii. mbca Penalties and Fines  61 9. An Overall Perspective on Federal Enforcement Data  62 PART THREE Conclusion: Key Findings & Recommendations  64 I. Conclusions and Recommendations Regarding Structure and Format of Publicly Available Environmental Enforcement Information  66 II. Conclusions and Recommendations Regarding Content of Publicly Available Environmental Enforcement Information  67 III. Findings Regarding the Enforcement of Federal Environmental Laws from 2000-10  69 APPENDIX ONE Enforcement Notification Information, re. Fines and Penalties I. Canadian Environmental Protection Act  71 II. Fisheries Act  72 III. Migratory Birds Convention Act  72 IV. Species At Risk Act  72 IV. Wild Animal And Plant Protection And Regulation of International And Interprovincial Trade Act  73 APPENDIX TWO Excerpts of Environment Canada’s Response to Information Request on Enforcement of the Canada Wildlife Act  73 APPENDIX THREE Enforcement Tables from Annual Reports I. Canadian Environmental Protection Act  74 II. Fisheries Act  76 executive summary The Government of Canada is responsible for enforcing the environmental protection measures contained in many federal statutes. Effective enforcement is essential if environmental legislation is to be complied with. As Environment Canada has acknowledged, “It is not enough to adopt laws; legislation must be effectively enforced.” 1 Enforcement ensures that violations do not go unpunished, thereby levelling the playing field for compliant actors and deterring potential offenders from polluting the environment. Effective enforcement requires an engaged citizenry and access to information to empower public participation. Environment Canada has stated that “publicizing the laying of charges and the results of prosecutions [acts as] an effective means of deterring potential offenders.” 2 Quebec’s Environment Commissioner, Jean Cinq-Mars, a former senior official with Environment Canada, recently issued a report that arrived at a similar conclusion: the availability of enforcement data allows concerned citizens to report or request action on unacceptable situations, thus allowing them to play an active role in the protection of the environment. 3 2 Environment Canada (2011). Compliance and Enforcement Policy for the Canadian Environmental Protection Act, 1999, Measures to Promote Compliance, online: http://www. ec.gc.ca/alef-ewe/default.asp?lang=En&n=AF0C50631&offset=5&toc=show. 3 Auditor General of Québec, Rapport du Vérificateur general du Québec à l’Assemblée nationale pour l’année 2010- 8 1 Environment Canada (1999), Compliance and Enforcement 2011, Rapport du Commissaire au développement durable Policy for the Canadian Environmental Protection Act: (Montréal: March 2011) at para 1-34, p 1-8, online:  http:// Introduction, online: http://www.ec.gc.ca/alef-ewe/default. www.vgq.gouv.qc.ca/fr/fr_publications/fr_rapport-annuel/ asp?lang=En&n=AF0C5063-1. fr_2010-2011-CDD/fr_Rapport2010-2011-CDD.pdf. executive summary Despite the federal Conservative government’s tough talk on environmental crime and the 2009 passing of the Environmental Enforcement Act —aimed at strengthening enforcement and penalty provisions under various statues— evidence of the government’s enforcement record reveals an approach that is soft on polluters. Members of the media, academia and civil society have all criticized the government for its inability or unwillingness to adequately “crack down” on environmental offenders. 4 Many of these observers have questioned the government’s commitment to enforcing its statutory obligations. A cynic might suggest that the government is enacting progressive legislation to hide its poor enforcement practices from the public. A more optimistic perspective would be that government resources are constrained and that the ee a’s full potential has yet to be realized. Only time will tell. But whether one prefers the cynic’s or optimist’s perspective, it is beneficial to analyze — on the basis of publicly accessible documents and data— how the federal government is fulfilling the deterrence and punishment objectives of its environmental legislation. This, in turn, raises questions that go to the core of environmental accountability and good governance: »»What information must be made available to ensure that the federal government is held accountable for its enforcement responsibilities? »»What measures can be implemented to ensure the federal government is held accountable for its enforcement responsibilities? »»Does the federal government proactively disclose enforcement information in a manner that empowers civil society and enhances accountability? »»What roles do concerned citizens, academics and civilsociety organizations play in promoting environmental compliance by regulated entities? 4 Andy Blatchford (2011), “Ottawa Unable to Nail Many for Green Crimes,” The Canadian Press (6 February 2011), online: MSN http://lifestyle.ca.msn.com/health-fitness/news/ canadianpress-article.aspx?cp-documentid=27565406; David Boyd (2003) Unnatural Law: rethinking Canadian environmental law and policy (Vancouver: UBC Press) at 23741; April Girard et al, “Tracking Environmental Crime through CEPA: Canada’s Environment Cops or Industry’s Best Friend?” (2010) 35:2 Canadian Journal of Sociology 219. »»What does the limited, publicly available information regarding inspections, investigations, prosecutions and convictions under federal environmental laws tell us about the government’s commitment to environmental enforcement? environmental enforcement reporting in canada   2011   9 With the above questions in mind, we highlight the deficiencies in enforcement information and the federal government’s approach to disclosure. We hope this report will spur enhanced citizen participation through improved access to reporting information and additional civil society oversight of enforcement activities. In this report, we find among other things: »»There has been a consistent decline in environmental enforcement activities (including warnings, orders, etc.) since 2005-06 despite an increase in the number of enforcement officers, particularly under the Canadian Environmental Protection Act (cepa). »»There are relatively few successful prosecutions under federal environmental legislation. The number of annual convictions, approximately 20 per year under cepa, is extremely small in relation to the number of inspections, warnings and investigations. »»Average fines have been so low over the past three years, $10,524 per conviction under cepa, that their use as an effetive deterrent is compromised. »»Information regarding the identity of environmental offenders, the exact location of the incident or violation and the exact nature of the violation are often limited, even in cases where there has been a successful conviction. »»Enforcement data under different federal environmental laws is often gathered using inconsistent methods and methodologies. Not only does that jeopardize public accountability, but it also complicates the comparison and analysis of enforcement data. »»Legal obligations to release annual reports detailing environmental enforcement are not being met in a timely manner. 10 executive summary What do our findings mean? The federal government has a lot of work to do to prove to Canadians that it is aggressively enforcing environmental laws. Public disclosure of enforcement information is poor across various statutes and under various responsible departments. Although steps toward more open government are being taken, these have not yet taken root in the environmental enforcement realm. The deficiencies in available enforcement information and the lack of proactive data disclosure undermine citizen participation in environmental enforcement. Canadians deserve a comprehensive, online environmental enforcement and compliance database so that they might find out what is, and is not, happening in their communities. The average Canadian is right not to accept a “just trust us” approach to federal enforcement of environmental laws and regulations. The available evidence suggests a chronic under-enforcement of federal environmental laws. These findings should concern Canadians, and only serve to underscore the need for more disclosure. Unfortunately, this is not a new story. The Commissioner of the Environment and Sustainable Development has previously audited the environmental enforcement activities of different departments, and concluded that they often don’t even know themselves what enforcement is and is not occurring. Ecojustice urges the commissioner to continue to hold the federal government to account, so that the promise of a crackdown on environmental violations might be realized. environmental enforcement reporting in canada   2011   11 context the enactment of the environmental enforcement act 12 the enactment of the environmental enforcement act The Government of Canada took steps to improve the enforcement of environmental legislation when it passed the Environmental Enforcement Act (eea) in June 2009. On the day this law was adopted, former Environment Minister Jim Prentice said: “...in the election campaign, [the] government committed to bolster the protection of our water, air, and land through tougher environmental enforcement that [would hold] polluters accountable. … This Act … [will] provide a comprehensive, modern, and effective enforcement regime for Canada.”  1 1 Environment Canada (2009), “New Environmental Enforcement Act Cracks Down on Environmental Offenders”, press release (18 June 2009), online: http://www.ec.gc.ca/default.asp?lang=En&n=714D9AAE-1&news=FFFAC43A-58E4-438C-A446-5A3FC290A0B9 getting tough on environmental crime? 13 The eea amends the enforcement provisions of nine federal environmental statutes  1 by introducing minimum fines and raising maximum fines for serious environmental offences for both individuals and corporations. These fines range from $100,000 to $6-million for large, first-time corporate offenders, with double penalty amounts for repeat offenders. The type of conduct that can lead to corporate officers’ and directors’ liability under these laws is also broadened. Furthermore, the eea requires courts to consider a series of aggravating factors during sentencing, such as prior convictions, the occurrence of environmental damage, intentionally or recklessly committing an offence, benefiting 1 Canadian Environmental Protection Act, 1999; Canada Wildlife Act; Migratory Birds Convention Act; Wild Animal financially from the offence and attempting to conceal the offence. Additionally, the eea increases government powers to investigate and prosecute such violations and creates the Environmental Violations Administrative Monetary Penalties Act (evampa) to create a scheme of administrative penalties for less serious violations of environmental laws. However, only certain parts of the eea came into force in December 2010. The amendments to the penalty schemes  2 established under the Canadian Environmental Protection Act (cepa), the Migratory Birds Convention Act (mbca), the Canada Wildlife Act (c wa), and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act (wappriita) are not yet active. and Plant Protection and Regulation of International and Interprovincial Trade Act; International River Improvements Act; Antarctic Environmental Protection Act; International River Improvements Act; Canada National Parks Act; Canada 14 2 See e.g. 144 C Gaz II, 26 (22 December 2010); and SI 2010, National Marine Conservation Areas Act; Saguenay-St. SOR/2010-91, online: Canada Gazette http://canadagazette. Lawrence Marine Park Act. gc.ca/rp-pr/p2/2010/2010-12-22/html/si-tr91-eng.html the enactment of the environmental enforcement act The eea does not amend the Fisheries Act or the Species at Risk Act (sar a), apparently because it only intended to amend statutes under the power of the Minister of the Environment and Parks.  3 Finally, the regulations needed to render evampa effective in practical terms have not yet been adopted. The Environmental Enforcement Act and Environmental Violations Administrative Monetary Penalties Act may, once fully operative, provide a better legislative and regulatory framework to achieve compliance and enforcement with federal environmental legislation, but what difference they may make on the ground is unclear. In terms of how the eea affects the manner in which the federal government 3 Canada Bill C-16, Environmental Enforcement Act, legislative summary, LS 636E, fn 78, citing House of Commons, Stand- must provide environmental enforcement information to the public, the amendments are not far-reaching. The eea resulted in the establishment by Environment Canada of a registry called the Environmental Offenders Registry. This public registry contains information regarding all corporate convictions, but nothing regarding acquittals or withdrawn charges—a major informational gap —for offences under each of the laws amended by the eea. At present, however, the Environmental Offenders Registry contains only nine records (June 19, 2009 through November 18, 2011) of convictions under these laws.  4 Thus, it remains open to question whether the federal government’s updated environmental enforcement regime, including the associated public reporting and disclosure of enforcement activity, will truly deliver on one of its main promises. ing Committee on Environment and Sustainable Development, Evidence, 2nd Session, 40th Parliament, 26 March 2009, 9:50 (Ms. Cynthia Wright, Acting Assistant Deputy 4 Environment Canada, Environmental Offenders Reg- Minister, Environmental Stewardship Branch, Department istry, online: http://www.ec.gc.ca/alef-ewe/default. of the Environment). asp?lang=En&n=1F014378-1 getting tough on environmental crime? 15 part one information disclosure & environmental enforcement 16 part one: information disclosure & environmental enforcement i enforcement and the community right to know principle: beyond access to information requests The concept of a Community Right to Know reflects the right to self-protection through access to information about chemicals, substances or conditions that may pose a risk to health or the environment.  1 The availability of environmental information allows citizens to make choices about the environmental risks to which they or their families should be exposed.  2 Access to environmental enforcement information is a crucial component of any approach to governance that seeks to satisfy the Community Right to Know principle. Until the 1980s, public access to environmental information in Canada was a top-down process, left to the discretion of decision-makers.  3 The first steps towards empowering citizens and civil society began when the Access to Information Act became law in 1983 and the Office of the Information Commissioner of Canada was established to enforce it.  4 The purpose of the Access to Information Act is to provide a right of access to records and personal information, in any format, held under the control of government institutions and subject to certain specific and limited exceptions.  5 The needs of the Access to Information Act are balanced against the Privacy Act, which ensures the privacy of individuals and corporations is protected. This right of access to public information applies to citizens and permanent residents of Canada as well as to individuals who are present in Canada. In addition to promoting informed public decision-making, the Access to Information Act is concerned with advancing the values of participation and accountability in the democratic process.  6 It establishes that the availability of federal government information should be the norm, rather than the exception, and that decisions on the disclosure of government information should be reviewed independently of government.  7 The impact this law has had on transparency in public affairs by enhancing government accountability cannot be overstated. 1 Canadian Environmental Law Association (2006), Creating Community Right-to-Know Opportunities in the City of Toronto (January 2006) at 4, online: CELA www.cela.ca 2 Jamie Benedickson (2009) Environmental Law (Toronto: Irwin Law) at 380. 3 Andrew J Green et al (1998-1999) “Public Participation, Federalism and Environmental Law” 6 Buff Envtl LJ 170 at 178. 4 CEPA Office (1994) ed, Reviewing CEPA, The Issues #9: 5 Access to Information Act, RSC 1985, c A-1; Privacy Act, RSC 1985, c P-21. 6 [1997] 2 SCR 403, 148 DLR (4th) 385, 46 Admin LR (2d) 155, 132 FTR 55. 7 Environment Canada (2011). Access to Information and Community Right to Know (Hull, QC: Minister of Supply and Privacy Act (ATIP), online: http://www.ec.gc.ca/default. Services) at 4. asp?lang=En&n=DAF39D24-1 getting tough on environmental crime? 17 As former Supreme Court of Canada Justice Gérard La Forest stated in the landmark decision Dagg v Canada (Minister of Finance):  1 The overarching purpose of Access to Information legislation … is to facilitate democracy. It does so in two related ways. It helps to ensure first, that citizens have the information required to participate meaningfully in the democratic process, and secondly, that politicians and bureaucrats remain accountable to the citizenry. Government records must be available to allow for public participation in environmental protection. But the Community Right to Know principle cannot be realized solely through access to information legislation, which requires citizen initiative to file an application and government co-operation to release the desired documents. Furthermore, Environment Canada has earned a less-than-stellar track record on access to information requests. An April 2010 report card released by the interim Information Commissioner Suzanne Legault evaluated several federal departments on their compliance with the Access to Information Act.  2 The commissioner’s conclusions were highly critical, particularly concerning the ease of access and clarity of information. Environment Canada received a failing grade (F) in this report card due to its unsatisfactory performance in responding to access to information requests and was chastised for its failure to meet its statutory obligations: Environment Canada’s Access to Information office described the last three years as challenging. This period coincides with an increase in public interest in environmental matters, which translated in 2008– 2009 into a 35 per cent increase in requests and a 55 per cent increase in the number of pages reviewed from the year before. There was also a sizeable backlog of 276 files. The institution did not have the internal capacity to meet its legislated Access to Information obligations on a consistent basis in 2008–2009.  3 Clearly, the Community Right to Know, regarding environmental enforcement, is not going to be achieved merely through access to information requests. 1 [1997] 2 SCR 403, 148 DLR (4th) 385, 46 Admin LR (2d) 155, 132 FTR 55. 2 Interim Information Commissioner of Canada (2010), A Special Report to Parliament. Out of Time. 2008-2009 Report 18 3 Ibid at 106. For a summary of Environment Canada’s report Cards (Ottawa: Minister of Public Works and Government card, see: http://www.oic-ci.gc.ca/eng/rp-pr_spe-rep_rap- Services, 2010). spe_rep-car_fic-ren_2008-2009_28.aspx part one: information disclosure & environmental enforcement Moving Towards an Open Government Approach to Enforcement: National Pollutant Release Inventory The federal government’s most prominent example of a public, web-accessible Community Right to Know mechanism is the National Pollution Release Inventory (npri), created in 1992 under the legislative authority of the Canadian Environmental Protection Act. The npri publishes information on releases to the environment of a wide range of substances. The 2009 npri reported the emissions of 347 regulated pollutants released, disposed of or sent for recycling at over 8,400 reporting facilities in Canada.  1 All Canadian companies with 10 or more employees and using 10 or more metric tons of a designated substance must disclose their environmental releases to the federal government. The npri Online Data Search function allows users to create tables by combining a number of variables (e.g., year, facility, substance, location, type of industry, type of pollutant release, disposal or transfer). The database allows comparison of data over the years and within industrial sectors. Alternatively, users can download the entire npri database in Microsoft Access format and complete their own analysis. The data is also available for download in a format (.kmz) that allows for files to be cross-referenced with Google Earth, an online program that allows users to explore the globe virtually using satellite images. This allows users to search for reporting facilities in a specified location through postal code and community searches. The main shortcomings of the npri database relate to data quality and the lack of information provided by Environment Canada to help users understand the data. As Scott Vaughan, the Commissioner of the Environment and Sustainable Development, pointed out in his 2009 fall report, “the Department should help users clearly understand the npri, its data, and the data’s limitations regarding its completeness and accuracy.”  2 Although the npri is not a repository for environmental enforcement data (re: inspections, prosecutions, etc.), and while it only applies to cepa-listed substances, it does provide Canadians with critical information about pollutant releases and transfers in their communities. Such information allows for self-assessment of exposure to environmental hazards and invites public oversight, leading to greater citizen-government engagement in the enforcement of this particular federal law. It has served as the source of data for innovative citizen initiatives such as Emitter Beta (www.emitter.ca), a website that allows for the geographic mapping and colour-coded ranking of different industrial emissions across Canada. The npri is a positive contribution to the Community Right to Know principle and, provided that the shortcomings are resolved, suggests a model for how to distribute environmental enforcement information under federal environmental statutes. 2 Office of the Auditor General of Canada (2008), 2009 Fall Report of the 1 Environment Canada (2010), 2009 NPRI Reviewed Facil- Commissioner of the Environment and Sustainable Development to the ity Data Release, online: http://www.ec.gc.ca/inrp-npri/default. House of Commons (Ottawa: Minister of Public Works and Government asp?lang=En&n=BA891E32-1 Services) at para 3.65, online: http://www.oag-bvg.gc.ca/Internet/ English/parl_cesd_200911_03_e_33198.html getting tough on environmental crime? 19 ii proactive disclosure and the government of canada’s slow transition to open government For Canadians to exercise their right to know about environmental enforcement activities, the federal government must become more open and transparent. Not only must it provide information upon public request, but it must also proactively disclose comprehensive data online for use by civil society, neighbours of polluting industries, academia, regulated entities (industry and municipalities), and other governments. Indeed, the link between transparency, the right to know and open government was highlighted in the interim Information Commissioner’s latest annual report.  1 Commissioner Suzanne Legault stated that proactive disclosure “is a fundamental aspect of freedom of information and open government, and we strongly encourage institutions to consider its value.”  2 She further remarked upon the importance of making information available to the public as a matter of course “without the public having to resort to the Access to Information Act to get it.”  3 More broadly speaking, the federal government has taken steps towards establishing a more open culture of governance. In March 2011, the government launched Open Data Pilot, a 12-month project aimed at improving the ability of the public to find, download, and use data collected by the government.  4 As well, the federal government has a proactive disclosure policy, which focuses on financial and human resources related information, and was implemented to enhance transparency and oversight of public resources.  5 The explicit purpose of this policy is to allow Canadians and Parliament to better hold the government and public sector officials to account. However, the policy is only applied to limited categories of information, such as travel and hospitality expenses of officials, contracts over $10,000 and cases of “founded wrongdoing” (e.g., breaches of the law or misuse of public funds) at departments or agencies.  6 governments at all levels across Canada to endorse open government and to proactively disclose information in open formats. The resolution states that “[a]ccess to information and privacy commissioners are advocates for open government and promote the paradigm shift from reactive to Proactive Disclosure, and ultimately to open government.” See Access to Information and Privacy Commissioners Call for 1 Interim Information Commissioner of Canada (2010), Annual Open Government (1 September 2010), Office of the Informa- Report 2009-2010, Achieving Results. Building for Success, tion Commissioner of Canada, online: http://www.oic-ci. (Ottawa: Minister of Public Works and Government Services) gc.ca/eng/med-roo-sal-med_nr-cp_2010_8.aspx at c 6 (“Getting the Message about Transparency and Open Government”). 4 Government of Canada (2011), Open Data Pilot Project, online: http://www.data.gc.ca/default. 2 Ibid at 28. asp?lang=En&n=F9B7A1E3-1 3 Ibid at 28. At an intergovernmental level, Canada’s federal and provincial Access to Information and Privacy Commissioners issued an Open Government Resolution, calling for 5 See Treasury Board of Canada (2011), online: http://www. tbs-sct.gc.ca/pd-dp/index-eng.asp 6 Environment Canada (2011), Proactive Disclosure, online: http://www.ec.gc.ca/default.asp?lang=En&n=390AF41B-1 20 part one: information disclosure & environmental enforcement table 1 summary of statutory reporting obligations Statute Reporting Obligation Canadian Environmental Protection Act 342. (1) The Minister shall, as soon as possible after the end of each fiscal year, prepare and cause to be laid before each House of Parliament a report on the administration and enforcement of this Act for that year. 42.1 (1) The Minister shall, as soon as possible after the end of each fiscal year, prepare and cause to be laid before Parliament a report on the administration and enforcement of the provisions of this Act relating to fish habitat protection and pollution prevention for that year. Fisheries Act Statistical summary (2) The Annual Report shall include a statistical summary of convictions under section 40 for that year. 126. The Minister must annually prepare a report on the administration of this Act during the preceding calendar year and must have a copy of the report tabled in each House of Parliament within the first 15 days that it is sitting after the completion of the report. The report must include a summary addressing the following matters: Species at Risk Act …. (e) enforcement and compliance actions taken, including the response to any requests for investigation; … Migratory Birds Convention Act No general reporting obligation Canada Wildlife Act No general reporting obligation The Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act 28. The Minister shall annually prepare a report with respect to the administration of this Act during the preceding calendar year and shall cause a copy of the report to be laid before each House of Parliament on any of the first fifteen days that the House is sitting after its completion. getting tough on environmental crime? 21 While Ecojustice applauds this shift towards open government that a proactive disclosure policy and the Open Data Pilot project may represent, they must be applied more broadly. Open government ought not to be selectively achieved. The enforcement of Canada’s federal environmental laws, supported by meaningful public engagement, requires the proactive publication of comprehensive enforcement and compliance data via the Internet. Although the National Pollutant Release Inventory (see sidebar, page 19) does not provide enforcement information per se, it does offer a web-based, downloadable and machine-readable model to build upon. But as outlined in the following section, the piecemeal enforcement information that is currently available does not constitute delivery on the promise of open government. iii piecemeal enforcement information made public: an incomplete picture of enforcement At present, only partial information regarding the federal government’s enforcement of environmental laws is made publicly available. The information comes from three main sources: »» annual reports prepared pursuant to statutory requirements; »» Enforcement Notifications posted online; and »» news releases and departmental statements. 22 None of these sources, separately or in combination, provides the public with sufficient information to allow for a comprehensive evaluation of the federal government’s enforcement efforts. Statutory reporting obligations, including any requirement to publish annual reports regarding environmental enforcement, vary according to each law (see Table 1). Typically, annual reports provide basic enforcement information. However, the reports are dispersed across several Environment Canada websites and the available information is fragmented and released at unpredictable times throughout the year. The following examples illustrate the limited level of detail provided in the annual reports regarding key cepa prosecutions in 2009-10: On June 4, 2009, the owner of a Nova Scotia company pleaded guilty to violating the Disposal at Sea Regulations and was fined $2,000. On October 20, 2009, a company from British Columbia was ordered to pay a $1,000 fine and make a $14,000 contribution to the EDF [Environmental Damages Fund] after pleading guilty to committing an offence under paragraph 272(1)(a) of cepa 1999 for using more solvent than what is allowed under the company’s Environment Canada permit.3 In these examples, there is no information about the company’s name, its exact location, the specific cepa substance or the quantity disposed of in violation of the regulations. part one: information disclosure & environmental enforcement Where the law does not impose any obligation to publish an annual report, the public must rely upon Enforcement Notifications. Enforcement Notifications consist of a press release-style document with limited information concerning successful prosecutions, and are found on the Environment Canada website.  1 Unfortunately, Enforcement Notifications are typically limited to providing the name of the party prosecuted and convicted, the date and reason for the conviction and the amount of the penalty. The third source of enforcement information comes from news releases and departmental statements, which may provide further information regarding charges and convictions that are also reported in the Enforcement Notifications. Ecojustice’s research indicates that not all information provided in Enforcement Notifications is consistent with news releases. At right is a recent example of an Enforcement Notification,  2 which was also made available as a news release.  3 1 Environment Canada (2011), Enforcement Notifications, online : http://www.ec.gc.ca/alef-ewe/default. asp?lang=En&n=8F711F37-1 2 Environment Canada (2011).  IBID? 3 Environment Canada (2011), News Release: CN Rail Convicted Under Fisheries Act for Diesel Spill, online: http://www.ec.gc. ca/default.asp?lang=En&n=714D9AAE-1&news=96A4C151B025-4F62-A98E-9CED5D5D5D6D; Enforcement Notifications: CN Rail Convicted for Diesel Spill, online: http://www.ec.gc. CN Rail Convicted for Diesel Spill March 14, 2011 SURREY, B.C.—On Friday, March 11, 2011, Canadian National Railway (CNR) Company was convicted in British Columbia Provincial court of an offence under the Fisheries Act. Canadian National Railway was sentenced to pay a total of $75,000 for depositing a deleterious substance (diesel fuel) into waters frequented by fish. A total of $70,000 of these penalties is being directed to projects related to the conservation and protection of fish and fish habitat in the waters of the Fraser River and its tributaries. On January 5, 2009, Environment Canada was notified of a diesel slick near the confluence of Barker Creek and the Fraser River. A subsequent investigation confirmed that a fuel pumping system, found on the CN Rail Thornton Yards property, was the source of the diesel release.   Environment Canada enforcement officers investigate potential offences under a number of Acts and Regulations including the Canadian Environmental Protection Act, 1999; the Species at Risk Act; the pollution prevention provisions of Canada’s Fisheries Act; the Migratory Birds Convention Act, 1994; Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act (wappriita). They help ensure that companies, government departments and agencies and the general public comply with legislation and regulations that protect Canada’s environment. ca/alef-ewe/default.asp?lang=En&n=1E61EB9E-1 getting tough on environmental crime? 23 Together, these sources of environmental enforcement information provide Canadians with a fragmented and incomplete picture. The most glaring weaknesses in enforcement information disclosure reflect the following structure/ format and substance considerations: »» Overall compliance rates—i.e., the number of regulated entities divided by the number of violations— are not provided under any statute or regulation, with the exception of the Metal Mining Eff luent Regulations under the Fisheries Act.  1 The federal government’s failure to disclose compliance levels is unacceptable, and must be addressed. »» Very limited supplemental information is provided for each conviction in the annual report tables, particularly as regards the identification of the offenders (often a municipality or company), the exact location of the incident/violation and the exact nature of the violation (i.e., specific substances, quantities, etc.). »» The data on enforcement activities, such as inspections and investigations, lack context and are only useful to track trends because they are not normalized. That is, the number of annual inspections is not presented in relation to the associated number 1 Environment Canada, Summary Review of Performance of Metal Mines Subject to the Metal Mining Effluent Regulations in 2009, online: http://www.ec.gc.ca/Publications/default. asp?lang=En&xml=A0E3B5E2-DA9C-4B9C-9F13-19F4BA3BDB00 24 of total facilities, which would demonstrate the percentage of regulated facilities that are inspected each year, and the percentage of regulated facilities that are found to be in non-compliance. »» In general, there is no detailed information regarding cases that did not result in a conviction—mere inspections or investigations— or regarding charges that did not result in prosecution. The Government of Canada does not provide conviction rate statistics, as does the Environmental Protection Agency in the United States. »» Although administrative monetary penalties (amps) have only recently emerged as an enforcement tool, data concerning their use (number of amps by law/regulation, amounts imposed, etc.) would be useful in future disclosures. »» There are inconsistencies between the statistical information provided in the annual report and Enforcement Notifications from the same year. As illustrated in Table 2 (see page 34), the data with respect to number of convictions under particular regulations are, on occasion, materially different. »» Certain annual reports (sar a and wappriita) are based on the calendar year, while others (cepa, Fisheries Act) are based on the government’s fiscal year (April—March). This creates an unnecessary layer of complication when comparing enforcement data between various federal environmental laws. part one: information disclosure & environmental enforcement »» Geographic data analysis, which would allow the public to learn how enforcement activities are carried out in a particular location or vis-à-vis a particular regulated entity, is not possible. As a result, there is no way for citizens or investors to know what is going on at a specific facility or company. This fundamental weakness reflects the fact that the tabular information provided in annual reports is destined for Parliament, as opposed to citizens concerned about pollution in their community. Finally, it must be mentioned that none of these fragmented sources of information are available in searchable formats as is done with the npri or the U.S. Environmental Protection Agency’s Enforcement and Compliance History Online (echo), which we will discuss in section five. and wildlife acts.  2 The data is available to Environment Canada inspectors, investigators, wildlife officers and managers, and is widely accessed and used by other federal departments (Fisheries and Oceans Canada, Health Canada) responsible for the enforcement of environmental laws. Non-sensitive information contained in nemisis may be obtained pursuant to Access to Information and Privacy (atip) requests. nemisis includes recording, tracking and reporting of occurrences, inspections, investigations, persons, organizations and enforcement officers.  3 “As a management tool, nemisis can be used to monitor trends, set priorities and prepare regular and special purpose reports.”  4 2 Environment Canada (2010), About the Enforcement iv national enforcement management information system and intelligence system (nemisis): for government eyes only A fourth source of information, which is classified and not readily available to the public, is the National Enforcement Management Information System and Intelligence System (nemisis) electronic database. nemisis allows the federal government to collaborate extensively and interdepartmentally and to share environmental enforcement information. nemisis is used to track and manage federal enforcement activities with respect to six environmental protections getting tough on environmental crime? Branch, online: