Order Amending the Commission for Environmental Cooperation Privileges and Immunities in Canada Order: SOR/2020-280

Canada Gazette, Part II, Volume 154, Number 26

Registration

SOR/2020-280 December 16, 2020

FOREIGN MISSIONS AND INTERNATIONAL ORGANIZATIONS ACT

P.C. 2020-1076 December 14, 2020

Her Excellency the Governor General in Council, on the recommendation of the Minister of Foreign Affairs and the Minister of Finance, pursuant to section 5 footnote a of the Foreign Missions and International Organizations Act footnote b, makes the annexed Order Amending the Commission for Environmental Cooperation Privileges and Immunities in Canada Order.

Order Amending the Commission for Environmental Cooperation Privileges and Immunities in Canada Order

Amendments

1 The definitions Agreement, Commission and Secretariat in section 1 of the Commission for Environmental Cooperation Privileges and Immunities in Canada Order footnote 1 are replaced by the following:

Agreement
means the Headquarters Agreement between the Government of Canada and the Commission that was signed by Canada at Gatineau on October 5, 2020 and by the Commission at Ottawa on October 5, 2020. (Accord)
Commission
means the Commission for Environmental Cooperation that was established by Canada, the United States and the United Mexican States on January 1, 1994 and is continued under the Agreement on Environmental Cooperation among the Governments of Canada, the United States of America, and the United Mexican States, that was signed by Canada at Ottawa on December 18, 2018 and that came into force on July 1, 2020. (Commission)
Secretariat
means the Secretariat of the Commission. (Secrétariat)

2 (1) Subsections 2(1) to (3) of the Order are replaced by the following:

2 (1) The Commission shall have in Canada the legal capacities of a body corporate and, to the extent specified in Articles 3 to 7 of the Agreement, the privileges and immunities set out in Articles II and III of the Convention.

(2) Representatives of foreign states who are members of the Council of the Commission shall have in Canada, to the extent specified in Article 8 and paragraph 1 of Article 13 of the Agreement, the privileges and immunities comparable to those accorded to diplomatic representatives in Canada under the Vienna Convention.

(3) The Executive Director and the Directors of the Secretariat, and members of their families forming part of their households, shall have in Canada, to the extent specified in Article 9 and paragraph 2 of Article 13 of the Agreement, privileges and immunities comparable to those accorded in Canada under the Vienna Convention to diplomatic agents and members of their families forming part of their households.

(2) The portion of subsection 2(4) of the Order before paragraph (a) is replaced by the following:

(4) Other officials of the Secretariat shall have in Canada, to the extent specified in Article 10 and paragraph 2 of Article 13 of the Agreement, the following privileges and immunities set out in Section 18 of Article V of the Convention:

(3) The portion of subsection 2(5) of the Order before paragraph (a) is replaced by the following:

(5) Experts performing missions for the Commission shall have in Canada, to the extent specified in Article 11 and paragraph 3 of Article 13 of the Agreement, the following privileges and immunities set out in Article VI of the Convention:

Coming into Force

3 This Order comes into force on the day on which the Headquarters Agreement between the Government of Canada and the Commission for Environmental Cooperation that was signed by Canada at Gatineau on October 5, 2020 and by the Commission for Environmental Cooperation at Ottawa on October 5, 2020 enters into force, but if it is registered after that day, it comes into force on the day on which it is registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Order.)

Issues

As part of the process to modernize the North American Free Trade Agreement (NAFTA), Canada, Mexico and the United States negotiated the separate Agreement on Environmental Cooperation among the Governments of Canada, the United States of America, and the United Mexican States (“Environmental Cooperation Agreement”) to complement the environment chapter of the Canada–United States–Mexico Agreement (CUSMA). The Environmental Cooperation Agreement establishes a cooperative framework for a broad range of areas related to strengthening the environment; reducing pollution; supporting low emissions and strong, resilient economies; conserving and protecting biodiversity and habitats; supporting green growth and sustainable development; and promoting the sustainable management and use of natural resources.

The Environmental Cooperation Agreement replaces the predecessor agreement, the North American Agreement on Environmental Cooperation, which established the Commission for Environmental Cooperation (CEC) to facilitate collaboration and public participation to foster conservation, protection and enhancement of the North American environment in the context of increasing economic, trade and social links between Canada, Mexico and the United States.

The CEC is based in Montreal and employs nationals of the three countries that are party to the Environmental Cooperation Agreement. The CEC is provided with legal status and privileges and immunities in Canada pursuant to a bilateral treaty between Canada and the CEC, known as the Headquarters Agreement between the Government of Canada and the Commission for Environmental Cooperation, concluded in 1997 and updated in 2020 (respectively the “1997 Headquarters Agreement” and the “2020 Headquarters Agreement”). Like other international organizations hosted in Canada, the CEC enjoys legal status and privileges and immunities under the Foreign Missions and International Organizations Act, implemented in this case via the Commission for Environmental Cooperation Privileges and Immunities in Canada Order (“CEC Order”). Under the CEC Order, CEC officials enjoy certain privileges and immunities with respect to their official actions while in Canada, which include immunity from legal process, immunity from immigration restrictions and duty and tax relief privileges with respect to their CEC salaries and the importation of their personal property at the time of first taking up their post in Canada. CEC experts also enjoy immunity from legal process and from seizure of their personal baggage. The duty and tax relief privileges do not apply to Canadian citizens or permanent residents of Canada.

The CEC Order describes the CEC as the organization established by the North American Agreement on Environmental Cooperation and describes the CEC Secretariat as the Secretariat of the organization established by that agreement. Furthermore, the CEC Order references the 1997 Headquarters Agreement and therefore needs to be updated to refer to the Environmental Cooperation Agreement and the 2020 Headquarters Agreement.

With the entry into force of the Environmental Cooperation Agreement under CUSMA, along with the 2020 Headquarters Agreement which replaces and essentially replicates the 1997 Headquarters Agreement, the CEC Order needs to be amended to allow for the continuation of the CEC’s privileges and immunities without interruption.

Objective

The amendments have the following objective:

Description and rationale

The CEC Order has been amended to remove explicit references to the North American Agreement on Environmental Cooperation and to refer instead to the Environmental Cooperation Agreement. It has also been amended to refer to the 2020 Headquarters Agreement. The amendments to the CEC Order have the effect of continuing the CEC’s existing legal personality and privileges and immunities in Canada, including duty and tax relief privileges, without interruption, with the entry into force of the Environmental Cooperation Agreement and the 2020 Headquarters Agreement. Other non-substantive amendments ensure the CEC Order adheres to current drafting practices.

Technical, yet consequential, updates were made to the 2020 Headquarters Agreement to replace the references to the North American Agreement on Environmental Cooperation with the Environmental Cooperation Agreement.

The 2020 Headquarters Agreement further updates the term “director” to clarify the privileges and immunities accorded to individuals occupying that position. While “directors” are excluded from the definition of “officials,” it was previously not clear if a “director” was considered a “senior official” entitled to the privileges and immunities accorded to diplomatic agents. Updating the definition of “director” in the 2020 Headquarters Agreement remedies the interpretation risk. The “executive director” and “directors” are accorded privileges and immunities comparable to diplomatic agents as “senior officials.” The 2020 Headquarters Agreement does not change past practices; it only makes it explicit.

Furthermore, consistent with the Foreign Missions and International Organizations Act, the new agreement makes clear that Members of the Council who are citizens or permanent residents of Canada do not enjoy privileges and immunities in Canada.

One-for-one rule and small business lens

The one-for-one rule does not apply to these amendments, as there is no change in administrative costs or burden to business.

Analysis under the small business lens determined that the amendments will not impact small businesses in Canada.

Contacts

Hassen Bahri
Policy Analyst
Americas Division
Environment and Climate Change Canada
Telephone: 819‑938‑3765
Email: hassen.bahri@canada.ca

Grace Tahhan
Trade Policy Officer
Procurement, Trade and Environment Division
Global Affairs Canada
Telephone: 343‑571‑5943
Email: Grace.Tahhan@international.gc.ca