Disclosure of Environmental Law Enforcement in Canada: Lessons from America

Article excerpt

1. INTRODUCTION
   1.1 Constitutional Jurisdiction over the Environment
   1.2 Fragmentation on environmental enforcement reporting
2. COMMUNITY RIGHT TO KNOW IN CANADA
   2.1 Democratic Participation, Government Accountability and
       Transparency
   2.2 Current State of Access to Information: the Need to Move
       towards Proactive Disclosure
3. THE AMERICAN APPROACH
   3.1 Enforcement and Compliance History Online [ECHO]
4. THE CANADIAN APPROACH
   4.1 National Pollution Release Inventory
   4.2 Three Sources of Environmental Enforcement Information
       4.2.1 Annual Reports on Inspections, Investigations and
             Prosecutions
       4.2.2 Enforcement Notifications of Prosecutions
       4.2.3 News Releases and Statements
   4.3 NEMISIS: Environment Canada's Internal Enforcement Database
   4.4 Improving NEMISIS
5. CONCLUSION

As the government of Canada candidly admits, "legislation and regulation are only as good as their enforcement". (1) This report addresses the federal government's enforcement obligations and reporting practices as required under several federal environmental and wildlife statutes. These statutes not only require the Canadian government to enforce its laws but also to publish its enforcement practices by producing annual reports on inspections, investigations, prosecutions, and other enforcement measures. (2) Publicizing the laying of charges and the results of prosecutions is an effective means of deterring potential offenders. (3) Availability of enforcement data also allows the public to make meaningful informed choices about the environmental risks to which they expose themselves, and participate in enforcement activities by reporting or requesting action on environmental offenders.

Environment Canada has performed poorly with respect to reporting obligations required by the Canadian Environmental Protection Act" (4) (hereafter "CEPA"), as outlined in the 2009 report by the Commissioner of the Environment and Sustainable Development. (5) In addition, the Commissioner indicated that the quality of publicly available enforcement data is inadequate, based on accuracy, completeness and accessibility. (6)

Moreover, many other federal environmental statutes do not include a general reporting obligation. In such cases, most of the information on enforcement activities is not publicly available and is instead held in a database called the National Enforcement Management Information System and Intelligence System (hereafter "NEMISIS"), access to which is restricted to government officials. (7) Non-sensitive data is only available upon request, (8) yet processing requests is evidently a costly and time-consuming use of resources for the government, as it is for the requester.

This paper provides new contributions to the discussion of environmental enforcement in Canada by critically assessing the federal government's efforts to provide public access to environmental enforcement information through the Internet. It is our contention that while the federal-provincial divide is often identified in order to explain fragmentation of environmental law in Canada, the exercise of political will by successive federal governments can circumvent the jurisdictional constraints to create a holistic approach to enforcement of environmental law. An analysis of the enforcement reporting practices in the United States (hereafter "US"), also a federal state with no clear constitutional jurisdiction over the environment, illustrates the possibility and benefits of a centralized database on environmental enforcement data. By comparing Canada's online enforcement information to what is available in the US, we make recommendations as to how Canada can make improvements to its domestic system drawing on the experience of its southern neighbour.

The paper begins with a discussion of jurisdictional differences with regards to environmental law in the United States and Canada which stem from their respective Constitutions. …

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