Environmental Legislation in Canada
Sep 13, 2010 QuickCounsel Download PDF
Environmental law in Canada applies to businesses across virtually all sectors of the economy and all regions of the country. The federal and ten provincial governments, as well as the three territorial governments, are active in the creation and evolution of environmental law to meet the changing environmental challenges of the day: ranging from climate change, to toxic substances management, waste reduction, urban renewal through brownfields redevelopment, and the facilitation of environmental assessments of infrastructure and renewable energy projects.
Canadian environmental law will continue to evolve to keep pace with the times. Water management challenges, adaption to climate change, and the interconnection of environmental regulation and global trade, promise to be the issues of the immediate future. A large and diversified country, with a significant industrial base, a wealth of natural resources in mining, forestry and fisheries, large tracts of agricultural lands, coastal frontage on three oceans, and arctic and subarctic territories, Canada is sensitive to virtually the full range of environmental issues facing the planet.
The legislative powers of the federal Parliament and provincial legislatures are expressly divided and defined by the Constitution Act, 1867, Canada's founding legal document. However, the power to legislate with respect to the environment is not expressly included in the powers granted to either the federal Parliament or the powers granted to the provincial legislatures. The federal government's express authority over criminal law, fisheries, shipping and navigation, interconnected undertakings, and peace, order and good government, has been used to justify a wide variety of federal environmental legislation. The provincial governments have generally relied on their authority over property and civil rights, matters purely of a local nature, and local works and undertakings in justifying the passage of environmental legislation.
Canadian Environmental Protection Act (CEPA)
The Canadian Environmental Protection Act, 1999 (CEPA), is the federal government's primary environmental regulatory statute. It provides for broad federal regulatory authority over the management and control of toxic substances and a range of other issues from environmental emergencies to the cross-border movement of wastes and recyclable materials. CEPA is a consolidation of a number of pre-existing federal environmental statutes.
The CEPA provisions concerning toxic substances provide for a wide range of controls for any substance which is classified as "toxic" and listed in Schedule 1 of the act. The Minister of the Environment has the authority under CEPA to obligate any person to provide samples, information, and data regarding a particular substance. Special procedures are in place regarding substances which are new to Canada. Additionally, CEPA imposes a duty to report and take remedial action on those who are in control of or own a spilled toxic substance. The same duty is imposed on persons who contribute to the initial release of a toxic substance. Authority to issue orders in the case of environmental emergencies is also included in CEPA.
CEPA is supported by variety of enforcement powers. A person in breach of CEPA may monetary penalties or in certain cases imprisonment. Alternative dispositions through environmental protection and alternative measures agreements may be possible. Officers and directors may be prosecuted if they authorise, assent to or acquiesce in the commission of an offence by a corporation. They may also be prosecuted if they fail to take all reasonable measures to ensure corporate compliance.
National Pollutant Release Inventory (NPRI)
CEPA also establishes the National Pollutant Release Inventory (NPRI). Facilities which release one or more of the substances found in the NPRI Substances List in an amount greater than the reporting thresholds are required to submit a detailed inventory of their emissions to Environment Canada. The data collected through NPRI reporting is made publicly accessible.
Federal authority to regulate with respect to water pollution and quality is primarily found in the Fisheries Act. While the act as a whole is generally concerned with the protection of commercial and recreational fisheries, provisions of the act prohibiting the deposit of deleterious substances into water frequented by fish, and the harmful alteration or destruction of fish habitat are enforcement which in effect establish virtual zero tolerance thresholds for unapproved water discharges and disruptive water works.
Both federal and provincial law exists with respect to the transportation of dangerous goods. At the federal level, the Transportation of Dangerous Goods Act, 1992 (TDGA) establishes a comprehensive regulatory regime; all of the provinces have adopted an identical regime with respect to intra-provincial transportation. Eight classes of goods are regulated ranging from explosives to dangerous organisms.
The TDGA regulates on a wide range of issues outlined in the Transportation of Dangerous Goods Regulations. The act contains a full range of enforcement powers including provisions for officer and director liability.
Environmental assessment at the federal level is governed by the Canadian Environmental Assessment Act (CEAA). To trigger an assessment under CEAA, a federal authority must either be the proponent of the project, provide financing to the proponent, give federal lands to be used for the project, or issue a license or approval required for the project to be carried-out.
The legislation discussed above includes several of the most prominent federal environmental statutes. However, it should be noted that there are several other federal statutes which contribute to the body of Canadian federal environmental law, such as the Pest Control Products Act, the Navigable Waters Protection Act, the Marine Liability Act and the Canada Shipping Act, 2001.
The provincial legislatures are empowered by the Constitution Act, 1867 to legislate with respect to a very wide range of environmental issues. In general, each province has developed a complex web of regulations and statutes which address matters such as waste management, waste disposal, air pollution, water pollution, fuel handling, contaminated site remediation and environmental assessment.
The provinces each typically have a central environmental conservation and protection statute which establishes both general and specific prohibitions with respect to discharges of contaminants and the disposal of waste and provides for a means of approval by the administrative branch of government. Examples of these statutes include; Ontario's Environmental Protection Act, British Columbia's Environmental Management Act, Alberta's Environmental Protection and Enhancement Act, and Quebec's Environmental Quality Act.
Spills & Clean-up
Spills of pollutants are generally given special treatment as a particular class of contaminant discharge. Under the provincial environmental protection statutes, persons who own or are in control of a pollutant at the time of a spill may be subject to a range of obligations regarding notification and the remediation of adverse impacts, regardless of whether they are at fault. Failure to respond adequately may result in an order to remediate and prosecution.
The provincial environmental protection statutes may also contain special provisions regarding the clean-up, use and control of contaminated sites. For instance, Ontario's Record of Site Condition Regulation sets out detailed requirements regarding the investigation and documentation of contaminated site conditions and in certain circumstances there is a requirement for the filing of a Record of Site Condition (RSC). The regulations also specify who is qualified to certify a RSC and what information must be included. Specific information regarding contaminated sites may be published in a publically available registry.
Waste management is also generally regulated under provincial environmental protection statutes. Approval may be required for the operation, alteration or construction of a waste management system or disposal site. Applications for approval will need to disclose plans and specifications of the proposed site or system. In some situations, a hearing by an administrative tribunal may be required prior to approval. Regulations regarding waste management often include specific standards which must be maintained, reporting requirements and fees payable to the province.
Provincial environmental protection statutes usually contain provisions which authorize the imposition of fines or other punishment for breaches of the act.
Environmental Assessment Statutes
The provinces have generally also enacted environmental assessment (EA) statutes or regulations. Examples include: Ontario's Environmental Assessment Act, British Columbia's Environmental Assessment Act, and Alberta's Environmental Assessment Regulations. Typically EA legislation applies to projects proposed by the province or provincial agencies, municipalities and private projects where they are designated by the regulations as being subject to an EA. Ontario has also recently provided for more streamlined EA approvals for green energy projects through a wide range of amendments to environmental legislation as provided for under the Green Energy Act, 2009.
Generally speaking, proponents of projects are required to submit for approval both proposed terms of reference and an EA in accordance with the approved terms of reference. The Ministry administering the process will review the EA and coordinate with the proponent in an effort to have any outstanding issues resolved. Once reviewed, the public will be notified and given an opportunity to comment on the proposed project and EA. Final decisions regarding a project are often reviewable by an administrative tribunal. It should be noted that while there are many similarities between each province's environmental legislation, the specific requirements and processes under each are equally nuanced.
Canada's three territories, the Northwest Territories, Yukon and Nunavut, do not have inherent jurisdiction entrenched in the Constitution Act, 1867 as do the provinces. The jurisdiction of the territories are wholly defined by the power granted to them by the federal government through enabling statutes.
Environmental laws in the territories generally are reflective of federal environmental law. Territorial specific environmental legislation is a relatively recent occurrence. The enabling statutes for the territories, such as the Yukon Act, contain provisions which expressly provide for the paramountcy of federal law in cases of conflict with territorial law. To the extent that territorial environmental law is similar to that of the provinces, it can generally be said that territorial regulation is less complex and extensive.
Municipalities across Canada have used the law-making authority granted to them by the provinces to enact a variety of environmentally related by-laws. An example is the City of Toronto's former Pesticide By-law which banned the use of pesticide products for purely cosmetic purposes; the by-law was recently displaced by Ontario's Pesticides Act to the same effect. Most recently, the City of Toronto has enacted the Environmental Reporting and Disclosure By-Law which requires businesses to report their annual usage, production and release of 25 listed toxic chemicals where the quantity of the chemical exceeds a reporting threshold.
Trends in Canadian Environmental Law
Environmental legislation in Canada is continuing to grow and evolve. Recently there has been an effort to increase the use of administrative penalties - the imposition of fines for the commission of environmental offences on an absolute liability basis. This trend can be seen at both provincial and federal levels. Examples include Ontario's passage of the HYPERLINK "http://www.e-laws.gov.on.ca/html/source/statutes/english/2005/elaws_src_s05012_e.htm" Environmental Enforcement Statute Law Amendment Act, and most recently the federal Environmental Violations Administrative Monetary Penalties Act.
We expect to see further government initiatives to reduce the use and creation of toxic substances. For example, Ontario's Toxics Reduction Act, 2009 promotes voluntary reductions by requiring reduction plans, voluntary reduction targets, and toxic substance use, creation and reduction disclosure obligations to the public, the workforce and the government.
While Canada is a signatory to the Kyoto Protocol, and has committed to achieving greenhouse gas reductions, it has failed to legislate greenhouse gas emission reductions. It has linked the nature of Canada's future regulations in this area to those of the United States, and as the U.S. government has yet to legislate so too has Canada. The province of Alberta has greenhouse gas emission regulations made under the Climate Change and Emissions Management Act, and other Canadian provinces have announced a commitment to regulate by 2012, and to participate in regional carbon markets established with certain U.S. states, the largest organization of which is the Western Climate Initiative.
Read the Expanded Article on Environmental Legislation in Canada: http://www.acc.com/legalresources/resource.cfm?show=991395
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