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Text of the 2017 Canada–Ukraine Free Trade Agreement – Chapter 12: Environment

Article 12.1: Definitions

1. For the purposes of this Chapter:

Committee means the Committee on the Environment established by Article 12.16;

environmental laws means any statute or regulation of a Party or provisions thereof, including legally binding instruments thereunder, the primary purpose of which is the protection of the environment, or the prevention of a danger to human life or health, through:

• (a) the prevention, abatement or control of the release, discharge or emission of pollutants or environmental contaminants;
• (b) the management of chemicals and waste and the dissemination of information related thereto; or
• (c) the conservation and protection of wild flora or wild fauna, including endangered species, their habitat and specially protected natural areas;

but does not include any statute or regulation, or any provision thereof, directly related to worker health and safety, and does not include any statute or regulation, or any provision thereof, of which the primary purpose is managing the commercial harvest or exploitation, or subsistence or aboriginal harvesting, of natural resources;

province means a province of Canada, and includes Yukon, the Northwest Territories and Nunavut; and

Review Panel means a panel established pursuant to 12.21.9.

2. For the purposes of this Chapter, a Party has not failed to “effectively enforce its environmental laws” in a particular case if the action or inaction in question by an agency or official of that Party:

• (a) reflects a reasonable exercise of their discretion in respect of investigatory, prosecutorial, regulatory or compliance matters; or
• (b) results from a bona fide decision to allocate resources to enforcement in respect of other environmental matters determined to have a higher priority.

Article 12.2: Context and Objectives

1. The Parties recognize that each Party has sovereign rights to conserve and protect its environment and sustainably manage its natural resources. They affirm their environmental obligations under their law, as well as their international obligations under multilateral environmental agreements to which they are a party.

2. The Parties further recognize the mutual supportiveness between trade and environmental policies and the need to implement this Agreement in a manner consistent with environmental protection and conservation.

Article 12.3: Levels of Protection

Recognizing the right of each Party to set its own environmental priorities, to establish its own levels of environmental protection and to adopt or modify its environmental laws and policies accordingly, each Party shall strive to ensure that those laws and policies provide for and encourage high levels of environmental protection and shall strive to continue to improve them and their underlying levels of protection.

Article 12.4: Compliance With and Enforcement of Environmental Laws

1. A Party shall not fail to effectively enforce its environmental laws, through a sustained or recurring course of action or inaction, in a manner that affects trade or investment between the Parties.

2. Each Party shall ensure that violations of its environmental laws can be remedied or sanctioned under its law through judicial, quasi-judicial or administrative proceedings.

Article 12.5: Non-derogation

Each Party recognizes that it is inappropriate to encourage trade or investment by weakening or reducing the level of protection afforded in its environmental laws. Accordingly, a Party shall not waive, or otherwise derogate from, or offer to waive or otherwise derogate from, its environmental laws, in a manner that weakens or reduces the protections afforded in those laws, to encourage trade or investment.

Article 12.6: Environmental Impact Assessment

1. Each Party shall maintain appropriate procedures for assessing the environmental impacts of proposed projects which may cause significant adverse effects on the environment, with a view to avoiding or minimizing such adverse effects.

2. Each Party shall ensure that its environmental assessment procedures provide for the disclosure of information to the public concerning proposed projects subject to assessment and, in accordance with its law, shall allow for public participation in such procedures.

Article 12.7: Public Awareness

Each Party shall promote public awareness of its environmental legislation by ensuring that relevant information is available to the public, including information about enforcement and compliance procedures.

Article 12.8: Private Access to Remedies

1. Each Party shall ensure that an interested person residing in or established in its territory may request the Party’s competent authorities to investigate an alleged violation of its environmental laws and shall give such a request due consideration, in accordance with its law.

2. Each Party shall provide a person with a legally recognized interest in a particular matter under its legislation appropriate access to administrative, quasi-judicial or judicial proceedings for:

• (a) the enforcement of the Party’s environmental laws; and
• (b) seeking remedies for a violation of those laws.

Article 12.9: Procedural Guarantees

1. Each Party shall ensure that an administrative, quasi-judicial or judicial proceeding referred to in Article 12.8.2 is fair, equitable and transparent and to this end shall ensure that the proceeding:

• (a) complies with due process of law;
• (b) is open to the public, except if the administration of justice requires otherwise;
• (c) entitles the parties to the proceeding to support or defend their respective positions and to present information or evidence; and
• (d) is not unnecessarily complicated and does not entail an unreasonable fee or time limit or an unwarranted delay.

2. Each Party shall provide that a final decision on the merits of the case in the proceeding is:

• (a) in writing and, if appropriate, states the reasons on which the decision is based;
• (b) made available without undue delay to the parties in the proceeding and, in accordance with its law, to the public; and
• (c) based on information or evidence presented by the parties to the proceeding.

3. Each Party shall further provide, as appropriate, that parties to the proceeding have the right, in accordance with its law, to seek review and, if warranted, correction or redetermination, of a final decision in the proceeding.

4. Each Party shall ensure that a tribunal that conducts or reviews the proceeding is impartial and independent, and does not have any substantial interest in the outcome of the matter.

Article 12.10: Corporate Social Responsibility

Recognizing the substantial benefits brought by international trade and investment, each Party shall encourage voluntary best practices of corporate social responsibility by enterprises established in its territory or subject to its jurisdiction, to strengthen coherence between economic and environmental objectives.

Article 12.11: Measures to Enhance Environmental Performance

1. The Parties recognize that flexible, voluntary and incentive-based measures can contribute to the achievement and maintenance of a high level of environmental protection, complementing regulatory measures under environmental laws. In accordance with its law and policy, each Party shall promote the development and use of such measures.

2. In accordance with its law and policy, each Party shall promote the development, establishment, maintenance or improvement of performance goals and standards used in measuring environmental performance.

Article 12.12: National Contact Point

Each Party shall designate an official within the appropriate agency or ministry to serve as its National Contact Point and inform each other of this designation.

Article 12.13: Public Information and Accountability

1. An interested person residing in or established in the territory of either Party may submit a written question to either Party through its National Contact Point, indicating that the question is being submitted pursuant to this Article regarding a Party’s obligations under this Chapter.

2. The Party receiving the question shall acknowledge the question in writing, forward the question to the appropriate authority and provide a response in a timely manner.

3. If an interested person submits a question to a Party that relates to the obligations of the other Party, the Party that receives the question shall, in a timely manner, provide to the other Party a copy of the question and its response referring the question to the other Party.

4. Each Party shall, in a timely manner, make publicly available all of the questions it receives and its responses to those questions.

Article 12.14: Party-to-Party Information Exchange

A Party may notify the other Party of, and provide to that Party, any credible information regarding a possible violation of, or failure to effectively enforce its environmental laws. This information shall be specific and sufficient to allow the other Party to inquire into the matter. The notified Party shall take appropriate steps to make inquiries, in accordance with its law, and to respond to the other Party.

Article 12.15: Cooperative Activities

1. The Parties recognize that cooperation is an effective way to achieve the objectives and fulfill the obligations of this Chapter. Accordingly, and subject to the availability of resources, the Parties may develop programs of cooperative activities based on their respective priorities.

2. Each Party may involve the public, interested stakeholders and any other entity that the Party deems appropriate in activities undertaken pursuant to this Article.

3. The Parties shall strive to strengthen their cooperation on environmental issues in other bilateral, regional and multilateral forums in which they participate.

Article 12.16: Committee on the Environment

1. The Parties hereby establish a Committee on the Environment (Committee), composed of senior representatives of each Party. The Committee shall:

• (a) oversee and review the implementation of this Chapter, including any cooperative activity undertaken by the Parties;
• (b) discuss any matter of common interest; and
• (c) perform any other function the Parties may decide.

2. The Committee shall meet for the first time no later than one year following the entry into force of this Agreement and subsequently as mutually decided.

3. Canada shall notify the Committee of any declaration provided to Ukraine under paragraph 1 of Annex 12-B.

4. The Committee shall prepare a summary record of each meeting unless the Committee decides otherwise. The Committee may prepare reports and recommendations on any activity or action related to the implementation of this Chapter. A copy of these reports and recommendations shall be submitted to the Joint Commission for its consideration. These reports may include recommendations to update Annex 1-A - Multilateral Environmental Agreements.

5. Summary records, reports and recommendations of the Committee meetings shall be made available to the public, unless otherwise decided by the Parties.

Article 12.17: Review

1. The Committee shall consider undertaking a review of the implementation of this Chapter, with a view to improving its operation and effectiveness, within five years of the date of the entry into force of this Agreement.

2. The Committee may provide for the participation of the public and independent experts in the review process.

3. The Parties shall make the results of the review available to the public.

Article 12.18: Public Engagement

1. Each Party shall inform the public of activities, including meetings of the Parties and cooperative activities, undertaken to implement this Chapter.

2. Each Party shall endeavour to engage the public, as appropriate, in activities undertaken to implement this Chapter.

Article 12.19: Disclosure of Information

This Chapter does not require a Party to release information that would be otherwise prohibited or exempt from disclosure under its legislation, including those concerning access to information and privacy.

Article 12.20: Relation to Other Environmental Agreements

This Chapter does not affect the existing rights and obligations of either Party under international environmental agreements.

Article 12.21: Dispute Resolution

1. The Parties shall at all times endeavour to agree on the interpretation and application of this Chapter.

2. The Parties shall make every attempt, through consultations and cooperation, to address any matter that might affect the operation of this Chapter.

3. Consultations, including at the Ministerial level, are confidential and without prejudice to the rights of the Parties in any proceeding. Each Party shall ensure that information designated by either Party for treatment as confidential information, in particular personal or commercial information, is protected.

4. A Party may request consultations with the other Party through the Committee regarding any matter arising under this Chapter by delivering a written request to the National Contact Point of the other Party. The request shall present the matter clearly, identify the question at issue and provide a brief summary of any claim under this Chapter. Consultations shall commence promptly after a Party delivers a request for consultations.

5. During the consultations, each Party shall provide the other with information in its possession sufficient to allow a full examination of the matters raised, subject to its legislation regarding access to information and privacy.

6. If the Parties fail to resolve the matter pursuant to paragraph 4, the requesting Party may request consultations with the other Party at the Ministerial level regarding any matter under this Chapter by delivering a written request to the National Contact Point of the other Party. The Party receiving the request shall respond expeditiously. Ministerial consultations shall be concluded within 120 days of a Party’s receipt of the request unless the Parties decide on another date.

7. Following the conclusion of the Ministerial consultations, the requesting Party may request that a Review Panel be convened to examine the matter if it considers that the consultations have not satisfactorily addressed the matter by delivering a written request to the National Contact Point of the other Party.

8. Subject to the provisions of this Article, the Parties shall apply, as applicable and with such changes as may be necessary, Article 17.10 (Rules of Procedure), Annex 17-C (Rules of Procedure) and the Code of Conduct adopted pursuant to Article 17.9(e) (Qualification of Panellists), unless the Parties decide otherwise. If there is an inconsistency between these referenced provisions and this Chapter, the provisions of this Chapter shall prevail.

9. A Review Panel shall be established upon receipt of a request by the National Contact Point referred to in paragraph 7. Unless the Parties decide otherwise, the terms of reference of a Review Panel shall be: “To examine, in light of the relevant provisions of Chapter 12 (Environment) of the Canada – Ukraine Free Trade Agreement, the matter referred to in the request for the establishment of the Review Panel, and to issue a report making recommendations for the resolution of the matter.” The procedures set out in Annex 12-A apply to the selection of panellists for matters under this Chapter.

10. Unless the Parties decide otherwise, a Review Panel shall perform its functions according to Annex 17-C (Rules of Procedure) and the Code of Conduct adopted pursuant to Article 17.9(e) (Qualification of Panellists), as applicable and with such changes as may be necessary. Notwithstanding these referenced provisions, a Review Panel shall ensure that:

• (a) each Party has the opportunity to provide written and oral submissions to the Review Panel;
• (b) a non-governmental organization, institution, or person in the territory of either Party with information or expertise relevant to the matter at issue has the opportunity to provide written submissions to the Review Panel; and
• (c) at least one hearing is held before the panel for each set of Review Panel proceedings, which shall be open to the public, subject to Article 12.21.3.

11. A Review Panel shall issue to the Parties an initial report and a final report, each setting out the findings of fact, its determinations as to whether the responding Party has complied with its obligations under this Chapter and the rationale behind any findings, determinations and recommendations that it makes.

12. A Review Panel shall submit the initial report to the Parties within 120 days of the date of selection of the last panellist or within another time period decided by the Parties.

13. The Parties may provide comments to a Review Panel on the initial report within 45 days of its submission to the Parties. After considering these comments, a Review Panel may reconsider its report or make any further examination it considers appropriate.

14. A Review Panel shall submit the final report to the Parties within 60 days of the submission of the initial report. Each Party shall make the final report publicly available within 30 days after it is submitted to the Parties.

15. If in the final report a Review Panel determines that a Party has not complied with its obligations under this Chapter, the Parties shall, within three months of the submission of that final report and taking into account that report, endeavour to consent to a mutually satisfactory action plan to address the matter. Any action plan developed by the Parties shall be made public without delay.

16. If the Parties reach a mutually agreed solution to a matter at any point after a Review Panel has been established, they shall notify the Review Panel of the solution. Upon the Review Panel’s receipt of this notification, the panel procedure shall be terminated.

17. At any time, the Parties may have recourse to means of alternative dispute resolution to resolve a matter, including good offices, conciliation or mediation. Unless the Parties decide otherwise, alternative dispute resolution is confidential and without prejudice to the rights of the Parties in any proceeding.

Article 12.22: Extent of Obligations

For Canada, the application of this Chapter to the provinces of Canada is subject to Annex 12-B.

Annex 12-A: Panel Selection Procedures

1. A Review Panel shall be composed of three panellists, including a chair, appointed by the Parties.

2. For the purposes of selecting a Review Panel, the following procedures shall apply:

• (a) within 30 days of a Party’s receipt of the request to establish a Review Panel, each Party shall select one panellist;
• (b) if one Party fails to select a panellist within the period referred to in subparagraph (a), the other Party shall select the panellist from among qualified individuals who are nationals of the Party that failed to select its panellist within a further seven days; and
• (c) the following procedures shall apply to the selection of the chair:
  • (i) the Party that is the subject of the request shall provide the requesting Party with the names of three qualified candidates. These names shall be provided within 30 days of a Party’s receipt of the request to establish the Review Panel;
  • (ii) the requesting Party may choose one of the three candidates in sub-subparagraph (i) to be the chair or, if no names were provided or none of the candidates are acceptable, provide the Party that is the subject of the request with the names of three candidates who are qualified to be the chair. Those names shall be provided no later than seven days after the receipt of names provided under sub-subparagraph (i) or 37 days after the receipt of the request for the establishment of the Review Panel, whichever is earlier; and
  • (iii) the Party that is the subject of the request may choose one of the three candidates to be the chair within seven days of receiving the names under sub-subparagraph (ii), failing which the chair shall be selected by lot by the requesting Party from the six candidates proposed by the Parties pursuant to sub-subparagraphs (i) and (ii) within a further seven days.

3. Panellists shall:

• (a) be chosen based on their expertise in environmental matters or other appropriate disciplines, as well as on their objectivity, reliability and sound judgment; and
• (b) be independent of, and not be affiliated with or take instructions from, either Party.

4. If either Party believes that a panellist has violated the Code of Conduct adopted pursuant to Article 17.9(e) (Qualification of Panellists), the Parties shall consult and, if they so decide, that panellist shall be removed and a new panellist shall be selected in accordance with the procedures set out in this Annex. The applicable time limit listed in Article 2 shall run from the date of their decision to remove the panellist.

5. An individual may not serve as a panellist for a review in which he or she, or a person or organization with which he or she is affiliated, has an interest.

6. The chair shall not be a national of either Party.

Annex 12-B: Application to the Provinces of Canada

1. Following the entry into force of this Agreement, Canada shall provide to Ukraine through diplomatic channels a written declaration indicating the provinces for which Canada is to be bound by this Chapter in respect of matters within their jurisdiction. The declaration shall become effective on its date of receipt by Ukraine.

2. Canada shall use its best efforts to make this Chapter applicable to as many provinces as possible.

3. Canada shall notify Ukraine six months in advance of any modification to its declaration.

4. Canada may not request information or send a notification under Article 12.14, or request consultations under Article 12.21.4, at the instance of the government of a province not included in the declaration made under paragraph 1.