This post is part of the Lessons from the Aarhus Convention and Escazú Agreement for Procedural Environmental Rights in Canada blog symposium.
Public participation in environmental decision-making and access to environmental justice have been globally accepted as fundamental human rights since 1992 when the Rio Declaration adopted principle 10, codifying this idea. Two of the most prominent international mechanisms for promoting procedural environmental rights around the world are the Aarhus Convention, ratified by close to 50 primarily European countries, and the Escazú Agreement, signed and/or ratified by 25 countries in Latin America and the Caribbean. While these international mechanisms promote the public participation and access to justice rights of citizens of adopting countries, Canada has insisted that it does not need to join the Aarhus Convention, as existing tools are sufficient to protect its citizens.
This blog post summarizes and critiques one international procedural environmental rights mechanism available to Canadians: the citizen submission process through the Commission for Environmental Cooperation (the “CEC”). This mechanism provides the public with a venue to lodge complaints against the government for failures to enforce environmental laws. For example, a complaint was submitted on November 2, 2023 alleging that Canada has not been enforcing its laws preventing cruise ship and vessel pollution on the Pacific coast. The reflections in this blog post are timely, as the CEC was designed to mitigate concerns that trade agreements would undermine environmental protection in North America. With the Trump administration’s recent imposition of tariffs against Canada and Mexico, these agreements may be up for renegotiation in the near future, although it remains to be seen whether or not the CEC process would also be on the table.
What is the CEC and the citizen submission process?
The CEC was created in 1994 when Canada, the United States of America and Mexico entered the North American Agreement on Environmental Cooperation (the “NAAEC”) alongside the North American Free Trade Agreement (“NAFTA”). The NAAEC established the CEC and its subcomponents: the Council, the Secretariat and the Joint Public Advisory Committee (the “JPAC”).[1] Each of these branches has their own role to play in the various functions of the CEC, including the Submissions on Enforcement Matters (the “SEM”) process, also known as the citizen submission process.
The SEM process begins when an NGO or citizen (a “submitter”) files a complaint with the CEC (NAAEC article 14.1). After completing an initial review of the submission to ensure that it contains all necessary documents and information (NAAEC article 14.1), the Secretariat decides whether the complaint warrants requesting a response from the state against whom the complaint was made (NAAEC article 14.2). If it makes such a request, the responding state must provide their own documentation and information to the Secretariat (NAAEC article 14.3).
Once this information has been reviewed, the Secretariat can forward the submission to the Council for approval of the creation of a factual record by the Secretariat based on the relevant information that is publicly available, developed by experts, received from both the submitter and the responding state, or gathered by the JPAC (NAAEC articles 15.1, 15.2 & 15.4). If approval is granted, the Secretariat prepares and submits a draft factual record to the Council and provides an opportunity for the state to make a comment on the draft (NAAEC article 15.5). The final draft, which includes any comments from the responding state, is then provided to the Council for consideration (NAAEC articles 15.5 & 15.6). If two thirds of the Council votes in favour, then the factual record is made publicly available (NAAEC article 15.7). The factual record contains technical, scientific and legal information along with interviews with government employees and expert reports. The goal of the record is to be an investigation into relevant environmental, legal, and public health issues.
The SEM process was established in 1994 and continues to follow the same framework today, despite the NAAEC being repealed and replaced in 2020 by the Environmental Cooperation Agreement (the “ECA”) (Kong at 272). At the same time, NAFTA was also reworked and replaced by the Canada-United States-Mexico Agreement (“CUSMA”). Although the SEM process was moved from the NAAEC to the new CUSMA (CUSMA articles 24.27 & 24.28), the process remains very similar with a few notable changes (Kong at 272).[2]
First, the scope of government actions that may be reported by submitters has been limited to those of the federal level of government through a narrowed definition of “environmental law” (Kong at 272, CUSMA article 24.1). By contrast, the definition of submitter has been broadened to allow corporations operating for-profit to bring forward a submission (Kong at 273, CUSMA article 1.4 & 24.27.1). It also tightens the timeframe for the Secretariat’s review of a submission (Kong at 273, CUSMA article 24.27.3). While preparing the factual record, the requirement that responding states cooperate by providing information is now strictly imposed (Kong at 275, ECA article 14). The JPAC’s authority to give advice to the Council and information to the Secretariat has become more generalized, no longer directly stating its role in the development of a factual record (Kong at 270, ECA article 6(4)). At the last stage of the process, it is now the assumption that the factual record will be published, unless two or more Council members vote in opposition of publication (Kong at 273-274, CUSMA article 24.28.6). Furthermore, responding states are now expected to provide updates on the implementation of factual records to the CEC (Kong at 275, CUSMA article 24.28.8). CUSMA has also established a new body, the Environmental Committee, which is authorized to provide an opinion on the results of the factual record and may recommend cooperative activities (Kong at 275, CUSMA article 24.28.7).
How is the submission process performing in its role as a tool for public participation?
The SEM process has not been a panacea for public participation in environmental justice in North America. Some early critiques of the CEC itself, summarized by David Blair, are focused on the CEC’s enforcement role. First, was that the NAAEC allowed for flexibly designed environmental laws that permit states to exercise discretion in their enforcement of these laws, effectively creating a loophole in enforcement (Blair at 301).[3] The NAAEC was also criticized for following a litigious approach instituted in the USA instead of more cooperative frameworks, used by Canada and Mexico, that focus on creating a dialogue and cooperation between environmental offenders and the state, as enforcers (Blair at 301). Furthermore, a concern that continues to be echoed today is that the CEC’s enforcement role is limited due to its inability to propose solutions and impose penalties on states (Blair at 302; Kong at 276). Some have also argued that CEC enforcement is a disincentive for strengthening environmental laws. The concern is that stronger laws will expose the states to more complaints under the SEM for any enforcement failures (Blair at 302). Lastly, there are some who would prefer a market-based approach to environmental enforcement, which allows for voluntary involvement (Blair at 302).
The SEM process also faced several operational struggles soon after its inception. Relatively few submissions were made to the CEC initially, suggesting that difficulty in having a factual record produced discouraged NGO’s from using the process (Blair at 303 & 304). From 1995 to 2002, an average of 5 submissions were made each year. Of those submissions, only 2 successfully resulted in the production and release of a factual record by the end of 2001 (Blair at 303-306). This was exacerbated by inadequate explanations for dismissed submissions until the Council remedied the issue in 1999 (Blair at 304). Another early struggle of the SEM process was that it could take years to have the matter settled (Blair at 307). In response to concerns regarding these unreasonable delays, in 2001 the Council committed to making the process more efficient, including making best efforts to process submissions within 2 years (Blair at 310).
Other critiques of the SEM process in its first decade included concerns regarding opportunities for citizens to participate meaningfully. After submitting their initial documentation, submitters are not provided with an opportunity to respond to the information provided by a state before the Secretariat decides whether to refer the matter to Council (Markell at 683).[4] Nor do they have an opportunity to submit additional information directly to Council should the Secretariat decide to proceed with the referral (Markell at 684). Furthermore, while the responding state is invited to make comments on the draft factual record prior to finalization, submitters are not provided with the same opportunity. This creates an imbalance in the opportunities afforded to states and submitters (Markell at 684). Participation may be additionally limited by the fact that the process unfolds nearly entirely through written submissions, which some suggest precludes genuine engagement with the CEC and states, reducing the value of the process as a collaborative tool for public participation (Markell at 685). Finally, submitters are left to navigate the submission process without any additional support, such as financial assistance for lawyers’ fees, which could affect its perceived value to submitters (Markell at 686).
The neutrality of the SEM process and the CEC’s bodies has also raised concern among some submitters and scholars (Markell at 689). For example, critics suggest the Council may not be truly neutral given its affiliation with the states, its ability to vote against the development of the factual record, and control over the release of the factual record (Markell at 695-698). While Council has generally been supportive of the process by voting in favour of the development and publication of the factual record, there have been several actions taken by the Council that have made submitters question its independence (Markell at 698 & 699). First, it overstepped its authority on several occasions and encroached on the responsibilities of the Secretariat by making decisions that fall under the Secretariat’s authority (Markell at 699 & 700). The Council has also, at times, attempted to delay the publication of the Secretariat’s recommendations and allowed states to rely on a confidentiality provision within the NAAEC to limit the information published (Markell at 705-706). Even after the shift of the SEM to CUSMA, mistrust in the Council due to a perceived conflict of interest remains one of the major critiques of the process (Kong at 276; Garver at 47 & 48).[5]
Additional concerns have arisen since the SEM process was transferred to CUSMA. Notably, submissions are now limited to only federal legislation, which excludes a large portion of environmental law and regulation conducted by lower levels of government (Kong at 272 & 277, Garver at 47 & 48). Another concern is that the broadened application of CUSMA to any person, with the definition of “person” including enterprises, opens the possibility for submissions to be brought by corporations in an attempt to achieve economic advantages over competitors (Kong at 273). Furthermore, Kong has expressed concern that CUSMA is not equipped to deal with large scale environmental issues, stressing the lack of reference to climate change in the agreement (Kong at 278 & 279).
Concluding Remarks
Despite its imperfections, the process is still used by individuals and NGO’s today. At the time of writing, there are 10 active submissions registered with the CEC. Only one of these submissions, the vessel pollution in Pacific Canada referred to above, is active against Canada. The most recent submission, brought in October 2024, is directed at Mexico’s approval of the Sonora Railway Project. The state allegedly allowed railway developments to proceed without proper environmental impact assessments despite the project crossing a natural protected area. Other submissions continuing to move forward include the North Atlantic right whale submission, launched in 2021 against the US for failure to enforce laws protecting the North Atlantic right whale from various pressures, though primarily fishing gear entanglement and vessel strikes. In January 2025, the Council unanimously voted in favour of the development of a factual record on the matter.
As the above summary of ongoing submissions demonstrates, submitters continue to place their faith in the SEM process as a mechanism to hold their governments accountable for their environmental commitments. Though this blog has highlighted many of the critiques that the SEM has faced over the years, the intention is not to discourage the use of the SEM process. It is to bring awareness to an existing mechanism that is perhaps not well known, nor well used, noting both its potential and its weaknesses, while also observing that this is a time of uncertainty as to CUSMA’s future, and by implication the future of the CEC. Finally, it must be acknowledged that even if the CEC were to survive the Trump administration’s assault on the Canada-US-Mexico trade cooperation, it can only address enforcement of environmental laws, not their rollback as is current US reality, and which may or may not face Canada in the near future.
[1] The Council, whose roles include governing the CEC, overseeing the Secretariat, promoting cooperation and discussion on environmental matters, implementing the agreement, and developing recommendations, is comprised of cabinet-level representatives from each state (NAAEC articles 9 & 10). The Secretariat is comprised of an Executive Director, appointed by the Council for a term of 3 years, and a member of staff, appointed by the Executive Director (NAAEC article 11). It supports the Council and directs both states and the public to resources for environmental expertise, functioning independent of instructions from any state (NAAEC article 11). The JPAC is made up of 5 representatives from each state and its roles include offering advice to the Council and providing information to the Secretariat (NAAEC article 16).
[2] Hoi L Kong, “The Submissions on Enforcement Matters Process: Changes in Law and Theory” (2021) 42:2 Vt L Rev 265.
[3] David J Blair, “The CEC’s Citizen Submission Process: Still a Model for Reconciling Trade and the Environment” (2003) 12:3 The Journal of Environment & Development 275.
[4] David L Markell, “Understanding Citizen Perspectives on Government Decision-Making Processes as a Way to Improve the Administrative State” (2006) 36 Environmental Law 651.
[5] Geoffrey Garver, “Trade and Environment in NAFTA’s Replacement: An Old Gas Guzzler Gets a Paint Job” (2021) 13:1 Golden Gate University Environmental Law Journal 39.