1. INTERNATIONAL AND TRANSBOUNDARY ENVIRONMENTAL ASSESSMENT LAW OCTOBER 29, 2012

2. OVERVIEW International Conventions governing Environmental Assessment CEAA 2012 Transboundary EA

3. INTERNATIONAL CONVENTIONS Our Common Future 1987 Espoo Convention 1991 Rio Declaration 1992 Convention on Biological Diversity 1992 Aarhus Convention 1998

4. OUR COMMON FUTURE, 1987 Report of the World Commission on Environment and Development Annex I Prior Environmental Assessments Principle 5. States shall make or require prior environmental assessments of proposed activities which may significantly affect the environment or use of a natural resource.

5. ESPOO CONVENTION 1991 Convention on Environmental Impact Assessment in a Transboundary Context Signed and ratified by Canada, implemented through CEAA, agreements with provinces U.S. has not ratified

6. ESPOO CONVENTION GENERAL DUTY Art. 2.(1) The Parties shall... take all appropriate and effective measures to prevent, reduce and control significant adverse transboundary impact from proposed activities

7. DUTY TO ESTABLISH EIA PROCEDURE Art. 2.(2) Each Party shall take the necessary legal, administrative or other measures to implement the provisions of this Convention, including with respect to proposed activities listed in Appendix I that are likely to cause significant adverse transboundary impact, the establishment of an environmental impact assessment procedure that permits public participation and preparation of... documentation described in Appendix II.

8. DUTY TO UNDERTAKE EIA PRIOR TO DECISION Art. 2.(3) Each Party shall ensure that... an environmental impact assessment is undertaken prior to a decision to authorize or undertake an activity listed in Appendix I that is likely to cause a significant adverse transboundary impact.

9. DUTY TO NOTIFY Art. 2.(4) Each Party of origin shall... ensure that affected Parties are notified of a proposed activity listed in Appendix I that is likely to cause a significant adverse transboundary impact.

10. DUTY TO DISCUSS NON- APPENDIX I ACTIVITIES Art. 2.(5) Concerned parties shall, at the initiative of any such Party, enter into discussions on whether one or more proposed activities not listed in Appendix I is or are likely to cause a significant adverse transboundary impact and thus should be treated as if it or they were so listed.

11. DUTY TO PROVIDE EQUIVALENT PUBLIC PARTICIPATION OPPORTUNITY Art. 2.(6) The Party of origin shall provide... an opportunity to the public in the areas likely to be affected to participate in relevant environmental impact assessment procedures regarding proposed activities and shall ensure that the opportunity provided to the public of the affected Party is equivalent to that provided to the public of the Party of origin.

12. APPENDIX I LIST OF ACTIVITIES 1.Crude oil refineries...and installations for gasification and liquefaction of 500 tonnes or more of coal or bituminous shale per day 2.Thermal power stations and other combustion installations with a heat output of 300 megawatts or more and nuclear power stations and other nuclear generators 7. Construction of motorways, express roads 8.Large-diameter oil and gas pipelines 11. Large dams and reservoirs.

13. RIO DECLARATION 1992 PRINCIPLE 17 Environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority.

14. RIO DECLARATION 1992 PRINCIPLE 10 Environmental issues are best handled with participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities... and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.

15. CONVENTION ON BIOLOGICAL DIVERSITY 1992 Article 14 requires Parties to ensure that the environmental consequences of proposed projects, policies and programs that are likely to have significant adverse impacts on biodiversity are considered through an environmental assessment or other suitable process.

16. AARHUS CONVENTION 1998 Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters Objective... [e]ach Party shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters in accordance with the provisions of this Convention Canada not a signatory

17. IS INTERNATIONAL LAW RELEVANT TO EA IN CANADA? Sections 46 to 48 CEAA directly linked to Espoo Convention Is Espoo Convention otherwise relevant without United States ratification? Does language of “significant adverse environmental effect” constrain legislative reform towards sustainability?

18. IS CEAA 2012 CONSISTENT WITH INTERNATIONAL EA LAW? S. 4.(1)(g) Purpose of CEAA 2012 “to ensure that projects... outside Canada and that are to be carried out or financially supported by a federal authority, are considered in a careful and precautionary manner to avoid significant adverse environmental effects” S. 68 requires federal authority not to carry out or financially support project outside Canada unless project “is not likely to cause significant adverse environmental effects”

19. IS CEAA 2012 CONSISTENT WITH INTERNATIONAL EA LAW? But no EA procedures specified in CEAA 2012 for projects outside Canada, or those having transboundary effects Transboundary provincial/international effects addressed in definition of environmental effects s. 5.(1)(b) Possible litigation, remedies?