scope:

Preface

This is the first edition of CSA Special Publication PLUS 1162, ISO 74007 and Compliance in Canada. It has been prepared 'by Dianne Saxe, D. Jur., Specialist in Environmental Law, with the assistance of Linda Klaamas, BA, LLB, MPA, LLM.

This Special Publication addresses the current confusion about the relationship between the ISO 14000 series of voluntary environmental management standards and regulatory compliance. Many of those involved in the development of the standards have argued that there is, and should be, no relationship between the two. However, in the Canadian legal system, such a relationship is inevitable, and likely to strengthen with time. Early signs of this process are already apparent.

To explain why, PLUS 11 62 reviews the nature of Canadian environmental regulation and the judicial defence of due diligence. Application of this flexible concept to the thousands of wildly differing regulatory offences has forced criminal judges and administrative tribunals to look for benchmarks of acceptable behaviour, as civil courts do in claims of negligence. The more authoritative and widely accepted the benchmark, the greater its influence on the standard of care, and the more essential it becomes to due diligence (¡e, to compliance).

Sometimes the establishment of benchmarks is deliberate, such as when the Council of Canadian Ministers of the Environment (CCME) develops emission limits or ambient criteria with the intention that they should ultimately be incorporated into legislation. However, this is not always so; as in the case of ISO 14000, instruments developed for one purpose, such as trade or education, frequently end up as legal benchmarks.

New benchmarks follow a predictable path from "ideal" to "norm" as the standard of care rises. Both judges and regulators adopt benchmarks as guides for their discretion and as tools in evaluating the behaviour of others. Some successful benchmarks are incorporated by reference into legislation (statutes or regulations). The requirements of ISO 14001 and the ISO 14000 series of standards are currently undergoing these processes of legal ratification, to the mutual benefit of government, business, and civil society.

July 2007

Notes:

(1) Use of the singular does not exclude the plural (and vice versa) when the sense allows.

(2) All enquiries regarding this Special Publication should be addressed to Canadian Standards Association, 178 Rexdale Boulevard, Toronto, Ontario, Canada M9W 7 R3