NOTICE: This document was published in chapter 18 of International Environmental Law by the American Bar Association's Section of Environment, Energy and Resource.
Canada's vast geography, stretching from the Atlantic Ocean to the Pacific Ocean and from its long border with United States to the Arctic and encompassing multiple ecological regions including fresh and salt water coastlines, mountains, forests, prairies, arctic and sub-arctic tundra and island archipelagos and fertile river valleys as well as large and small population centres, has provided a stage upon which the growth of a modern economy, strongly based in resource extraction but participating in industrial and technological development on a relatively even footing with those of the United States, European countries, Japan, Australia and New Zealand and other prosperous economies, has taken place.
The environmental challenges found by Canada, not surprisingly, are not different from those of other modern economies with increasing impacts to air, water and land as well as the bio web that ties them together. And, is the case for a many other countries, the specific challenges of natural resource development adds a frequently challenging set of issues for Canadians.
Canadian's evolution as a country has been strongly influenced by the political drama that has played out immediately to the south in the United States, with the choice of British parliamentary institutions and a constitutional monarchy by Canada over republicanism and an elected executive being a critical difference. Yet the example of US institutions, policy and approach is never far from Canadian consciousness, particularly as Canada's approximately 35 million people (about one-tenth of the US population) are strung along the southern border of a land mass slightly larger than the US with it being estimated that more than 25% of Canadians living within 161 kilometers of the United States . That most of Canada and the United States share the same language and, important to lawyers, a commitment to the common law makes that situation, with both attraction and rejection on the Canadian side, a key determinant in Canadian practice on many issues, including the environment.
It also needs to be remembered that Canada includes a strong French-speaking minority (approximately 23%) which comprises the vast majority of citizens in one of Canada's largest provinces, Québec,1 and that in Québec, the civil law remains the law of the land, in a way which is similar (but on a much less important scale) to the manner in which Louisiana has kept civil law in the United States.
Canada is, as indicated above, a parliamentary and constitutional monarchy. It is also a confederation, comprised of the federal government and 10 provinces of widely varying geographical and population sizes. The federal government is responsible for three very large territories in Canada's north, each sparsely populated but with great natural resource potential and many aboriginal citizen (in case of the territory of Nunavut, an overwhelming majority of its citizens are aboriginal).
Canada's constitution does not include the word "environment" and responsibility and authority for environmental issues are thus not allocated directly to the federal government of Canada nor to the provinces and territories.2 Rather, the exclusive right to legislate with respect to certain "classes of subjects" (frequently called "heads of power" in Canada) is allocated in the constitution3 to the federal or provincial government (neither territories nor municipalities are mentioned in the Constitution; a territory receives only those powers devolved onto it by the federal government and municipalities receive their authority from provinces) and those heads of power provide the federal and provincial governments with the ability to legislate and otherwise deal with environmental matters related to those heads of power.
The provinces are granted the right to legislate exclusively with respect to, among other things, "property and civil rights within the province", most "local works and undertakings" and "all matters of a merely local or private nature in the province";4 in a 1982 amendment, each province was given the exclusive right to legislate in relation to the exploration for non-renewable natural resources in the provinces and the development, conservation and management of non-renewable natural resources and forestry resources in the province and of sites and facilities for the generation and production of electricity in the province and the provinces were granted some ancillary rights.5
On the other hand, the federal government has the exclusive right to legislate with respect to, among other things, "fisheries", "Indians, and lands reserved for Indians", "the criminal law" and "trade and commerce" and "for the peace, order and good government of Canada in relation to all matters not coming within the classes of subjects… assigned exclusively to the… provinces" (this last category being referenced to frequently as "POGG").6 There is a shared responsibility for agriculture,7 with federal laws overriding provincial laws if the provincial law is repugnant to a federal law.
That environmental matter can readily be described as falling within the classes of subjects assigned exclusively to the federal government and the provincial governments at the same time is apparent. The prima facie rule is that where that is the case, legislation of both the federal government and the provincial government is valid unless it is impossible to comply with both pieces of legislation or would frustrate the federal government's legislative purpose, in which case federal legislation will be held to be the only valid legislation under the doctrine of "federal paramountcy".8 It may be open to courts to "read down" provincial legislation to make it capable of being complied with along with federal legislation, rather than invalidating the provincial legislation completely.9
An interesting case which describes the manner in which the constitutional validity of federal legislation can be upheld is the Hydro Québec10 case. There the applicability of requirements of the federal government's centrepiece legislation, the Canadian Environmental Protection Act, 1999 ("CEPA")11 with respect to PCBs contamination was challenged on constitutional grounds by Hydro Québec, the Quebec-based electricity generation transmission corporation. Clearly PCBs and PCB contamination can be seen as a matter of a local nature and as dealing with property and civil rights. Nevertheless, the Canadian Supreme Court (the "SCC") held on a 5-4 division that the federal power to legislate as it did in CEPA was valid in this instance as a proper exercise of the criminal law power. As criminal law must be aimed at eliminating and punishing criminal behaviour, not regulating behaviour of a normal nature, the extensive provisions of CEPA relating to appropriate behaviour and reporting were characterized as being necessary to identify those evidencing behaviours in a manner requiring criminal sanctions, thus permitting the characterization of CEPA as a statute founded on the criminal law head of power allocated to the federal government.
A challenge is the need to co-ordinate these jurisdictions with national efforts, a difficult task in light of the different stages of development each of the provinces and territories is in. The federal and provincial Minister of the Environment have caused the Canadian Council of Minister of the Environment ("CCME") to be formed12 in an effort to co-ordinate in a non-binding way environmental policies, legislation and activities by governments across Canada. Thus, efforts to develop common standards across Canada for the clean-up of contaminated lands as well as for emissions of contaminants into the environment have found a home at CCME.
Provincial legislation that is not impossible to comply with while complying with federal legislation (e.g., provincial reporting regulations and clean-up requirements) is not invalid in these circumstances. In light of the nationalist aspirations of Quebec and both the maturity and wealth of some of Canada's provinces, provinces have resisted (or threatened to resist) the intrusion of federal laws into matters within the province, thus leading to both actions designed to co-ordinate federal activities with provincial law and programs without a conflict.
Municipalities are not mentioned in the constitution at all and are created and empowered by the provinces. Nevertheless, municipalities frequently tackle environmental issues, which is permissible if authorized by the province and valid as provincial legislation.
While numerous pieces of legislation exist at the federal level that relate to environmental matters, the principal statute is CEPA.
CEPA, while very broad in its application, is largely devoted to the gathering of information and the authorization of federal participation in environmental matters, particularly where a national (including in the sense of inter-provincial) issues arise or an interface with the international community and/or international environmental issues is in play. For example, the National Pollutant Release Inventory ("NPRI"), the Canada-wide reporting system imposed on facilities (over 8000 in 2011) using or emitting quantities of substances above a NPRI-established threshold, is created in CEPA.13 Some specific substances deemed to be worthy of special treatment (e.g. PCBs,14 ozone-depleting substances15 and the quality of fuels16) are also regulated under CEPA. The interprovincial movement of hazardous waste,17 the import into Canada and the export out of Canada of hazardous waste,18 assessment requirements for new substances that are imported or manufactured in Canada, restrictions on prescribed toxic substances,19 impacts to marine environments,20 federal and aboriginal lands21 and the use of market based approaches22 are all covered by CEPA.
An important factor in the treatment of environmental issues in Canada is the set of rights of aboriginal peoples. Canada's constitution, when repatriated from Britain in 1982, clearly preserved the existing treaty and non-treaty rights of aboriginals in Canada,23 without specifying what those rights are. Given that a broad range of relationships exist, including some aboriginals (frequently called First Nations) that have entered into treaties, some that have comprehensive land claim settlements and some that have no treaty and no settlement but do have outstanding land claims and given that Canadian courts have held that, depending on the particular circumstances, both federal and provincial governments in Canada (i.e., the Crown in right of Canada or of a province) have a duty to consult with, and to accommodate the interests of, aboriginals, even where treaties exist,24 aboriginal issues are frequently encountered in the Canadian environmental law context, particularly for the development of natural resources.
For example, the numerous environmental issues with respect to the exploration for and development of shale gas in Canada have interacted with aboriginal rights, resulting in litigation on behalf of aboriginal groups alleging failure to take into account the rights of aboriginals and the Crown's duty to consult and accommodate, an aspect of the litigation relating to shale gas development that makes Canada different from the US.
Canadian courts have moved far down the road of accepting international laws, particularly treaties, ratified or not, and customary international laws, into the body of laws applicable in Canada. One aspect of this can be seen in 114957 Canada Ltd. (Spraytech, Sprinkler Company) v. Hudson (Town),25 where the Supreme Court of Canada referred to the precautionary principle that is found in customary international law to support its judgment.
A system of federal courts does exist in Canada but their jurisdiction is limited to matters with respect to which the federal government can legislate under the constitution, where there is applicable federal law and where the federal court is given jurisdiction. That includes matters relating to environmental impact assessment, CEPA and claims against the government, including by aboriginals or alleging a failure to enforce laws. As a result the system of courts established in each province of Canada is more likely to deal with environmental issues. Provinces all have a court with general jurisdiction (often called superior court or supreme court) which provides most of the trial functions, including hearing significant criminal matters while there is also a provincial court that acts as a court of first instance, particularly with respect to regulatory offences; decisions from those courts are applicable to the general jurisdiction courts. The decisions of the court of general jurisdiction are subject to review by a court of appeal in each province and there is the right to appeal decisions from a court of appeal to the Supreme Court of Canada (the "SCC"), but generally only with the approval of the SCC.26
In addition to the traditional court system, most jurisdictions have created tribunals to deal with environmental matters. In Ontario, for example, the Environmental Review Tribunal (the "ERT", formerly known as the Environmental Appeal Board)27 hears appeals of steps (such as the issuance of approvals or orders) taken by the provincial government and, while their decisions are reviewable by the Ontario Superior Court, significant deference is given to the decisions of the ERT except where matters of law are being decided.28
Most Canadian provinces and territories have legislation designed to regulate emissions to the atmosphere. In Ontario, for example, the Environmental Protection Act (the "PA") requires an environmental compliance approval be issued by the Ministry of Environment ("M") before an entity may use, operate, construct, alter, extend or replace a plant, structure, equipment or other thing that may discharge a contaminant into any part of the natural environment except water.29 As well, discharges of contaminants that cause or may cause an adverse effect are prohibited.30 Depending on the particular circumstances, the PA provides the M with the ability to issue certain orders requiring the control or cessation, investigation and/or remediation of impacts from the emission of contaminants into the natural environment.31 Similar provisions exist in most Canadian provinces and territories.32 There are many issues and nuances related to these provisions that are beyond the scope of this paper.
Air pollution, however, does not stop at provincial borders.
CEPA contains provisions which, depending on the circumstances, may permit action to be taken by the federal government (such as Environment Canada), including enacting regulations, if a substance released from a source in Canada may reasonably be anticipated to be contributed to air pollution in a country other than Canada, or air pollution that is likely to violate an international agreement binding on Canada in relation to the prevention, control or connection of pollution.33 Prior to acting, the federal government is required to consult with the government of the province or territory in which the source is located and give it an opportunity to act. As well, the federal government arguably has the ability to legislate with respect to cross-border air pollution, even where the boundary in question is one between provinces.
A current initiative of CCME is the development of a nation-wide Air Quality Management System (AQMS)34 which has a similar purpose to the Clean Air Act ("CAA") in the U.S. but which is premised on the recognition that federal authority over air emission matters is likely limited so that provincial action, coupled with federal support, is likely to produce a better result than efforts focused only at the provincial or federal level. The AQMS contemplates the creation of Canadian Air Quality Standards (CAAQS) to establish targets for outdoor air quality across the country, base-level industrial emission requirements (BLIERS) that set a minimum performance standard for major industries in Canada, co-ordinated actions in regional air sheds where air pollution crosses a border and intergovernmental collaboration to reduce transportation emissions. It is notable that Quebec will not participate directly in AQMS as it considers AQMS duplicative of its own efforts; Quebec apparently will collaborate with the AQMS initiative however on air zone and air shed provisions of the system. It is believed by some industrial sections that AQMS, and in particular BLIERS, may have a profound effort on their operations, not unlike the impact some CAA requirements have had in the U.S.
An earlier federal government (Liberal) took the step of subjecting the traditional Kyoto Protocol greenhouse gases ("ghgs") to the process designed to determine if they are "toxic substances" for purposes of CEPA; the result was positive and these ghgs have been declared to be "toxic".35 The current government (Conservative) has relied on that determination in connection with its own ghg emission control policies and legislation. It has collected ghg emission data from facilities across the country36 (in concert with in many provincial reporting systems, some which apply to emitters of smaller annual quantities of ghgs).37 As well, although the federal government withdrew Canadian participation in the Kyoto Protocol as of December, 2012 (notice was given a year earlier), Canada has made a commitment under the Copenhagen Accord and later the Cancun Agreements to reduce its annual ghg emissions in 2020 to 17% or more below its 2005 emissions "to be aligned with the final economy-wide emission reduction target of the United States of America in enacted legislation".38
It appears to be valid Canadian law that only the federal government of Canada can enter into treaties with foreign nations,39 although that view is not necessarily shared completely by all. However, the fact that only the federal government can enter into treaties binding Canada does not give the federal government the right to legislate in areas of exclusive provincial jurisdiction; however, arguably, the existence of a treaty helps support the "national nature" of legislation that is more likely to fall within the jurisdiction of the federal government.
The federal government's legislation to date has all been made under CEPA. Those actions include setting emissions standards for passenger automobiles and light trucks40 which are, for practical purposes, identical to those imposed by the United States and a regulation requiring coal-fired electricity producing facilities generally to meet the emissions standards associated with combined-cycle natural gas electricity generation on and after July 1, 2015 if they are new or have reached the "end of their useful life", usually 45 years after the commissioning date.41 This approach is part of the federal government's, announced intention to proceed "sector-by-sector" with performance based standards42 which it plans to continue with draft regulations expected to be announced in 2013 for the oil and gas section and later for chemicals, cement and other major emitting sectors. As will be seen below, this is inconsistent with some provincial approaches, particularly those in Alberta, British Columbia and Quebec which are economy-wide and incorporate market mechanisms such as emissions trading or a carbon tax. Under CEPA, the federal government has successfully legislated with respect to vehicles and their efficiency before and with respect to ODS but the argument has been made that the sector-by-sector approach of the federal government does not meet the requirements for federal legislation to be valid and, as it trenches on matters of clear provincial authority, and this may be ultra vires (i.e. beyond the power of) the federal government.
Provinces have enacted ghg reporting requirements and in some cases have put in place ghg emission control systems. The Western Climate Initiative ("WCI") which once featured California and 7 U.S. states as well as 4 Canadian provinces (Ontario, British Columbia, Manitoba and Quebec) has now been reduced by the departure of the 7 U.S. states other than California. Only Quebec joined California on January 1, 2013 in implementing a cap-and-trade system applicable to facilities emitting more than 25,000 tonnes of ghg (measured on a CO2e basis) per annum and to be extended in 2015 to distributors of fossil fuels (other than aviation fuel) with respect to the CO2 to be emitted on the combustion of those fuels; the Quebec system, like California, will permit the use of some offsets produced using government-approved protocols. Alberta has implemented the Specified Gas Emitters Regulation ("SGER") under its Climate Change and Emissions Management Act requiring emission intensity reductions from large (100,000 CO2e tonnes per annum) emitters and permitting the use of offsets produced using government approved offset protocols as well as compliance payments to a government controlled "technology fund" (which invests in ghg emission reduction projects) in lieu of making reductions. British Columbia has imposed a carbon tax equal to $30 per tonne of CO2e on fossil fuels combusted in that province.
CEPA includes a historically little-used provision permitting the federal government to make a regulation enacted under CEPA not enforceable in a specific province if that province and the federal government enter into an "equivalency agreement" premised on the province having its own legislation which is "equivalent" to that in the federal regulation.43 The province of Nova Scotia and the federal government have negotiated an equivalency agreement with respect to the coal-fired electricity ghg regulation referred to above44 and there are strong suggestions from the federal government and some provinces that additional equivalency agreements and non-enforcement orders may follow for federal government sectoral ghg emission regulations, although only time will tell if that can be politically and/or legally achieved.
With lengthy coast lines on three oceans and major rivers and lake systems, including large fresh water Great Lakes shared with the U.S. and the rivers like the Columbia, Red and St. Croix that cross the Canada/U.S. boundary, and a sense that an essential element of Canada's uniqueness is its relationship to nature, including oceans, lakes and rivers, efforts to protect those waters by legislation and legal principles are abundant in Canada.
While provinces have historically taken the lead in implementing protective legislation, the international and interprovincial nature of the water resources has drawn the federal government into this area as well. Federal engagement is premised on its jurisdiction over criminal law (in addition to CEPA, there are Criminal Code provisions that arguably apply to serious environmental offences such as those prohibiting the possession or deposit of an offensive volatile substance, common nuisance endangering life, safety or health of the public, criminal negligence causing death or bodily harm and mischief in relation to property), fisheries (relevant to the quality of water and fish habitat and a strong basis for the federal Fisheries Act), Indians and lands reserved for Indians (which topic, as mentioned above, is of growing importance) and POGG.
Under CEPA, the federal government has enacted regulations dealing with such matters as pulp and paper mill effluent and disposal of substances at sea. Under the Shipping Act, the discharge of prescribed pollutants at sea is prohibited while the Fisheries Act makes it an offence to deposit or permit the deposit of a "deleterious substance" (a very broadly defined term) in water frequented by fish or in any place under any conditions where a deleterious substance might enter such waters.45 Moreover, any work, undertaking or activity that results in any harmful alteration, destruction or disturbance of any fish habitat is illegal;46 this is being changed by a controversial amendment47 to prohibit serious harm to fish (i.e., death of a fish or permanent alteration to, or destruction of, fish habitat) that are part of a commercial, recreational or Aboriginal fishery. Specific regulations are made under the Fisheries Act for, among other things, the discharge of liquid effluent from chlor-alkali mercury operations, meat and poultry plants, metal mining facilities, petroleum refineries, potato processing plants and pulp and paper plants; as well, regulations relating to fish farming and other fishing related topics are in place under the statute.
Provinces, relying on their constitutional rights to legislate with respect to property and civil rights and matters of a local concern, have included water protection in their legislation. For example, Ontario's Environmental Protection Act ("PA") contains similar protections for water as it does for the atmosphere. Ontario also has other statutes designed to specifically protect water, including the Ontario Water Resources Act ("OWRA"),48 which regulates the taking of water as well as groundwater and surface water quality. The OWRA also regulates the management and disposal of sewage (a broad term, which includes storm water).49 Ontario's Clean Water Act, 200650 and the Nutrient Management Act, 200251 regulate matters relating to the source protection of drinking water in the province and agricultural waste management, respectively; these issues are particularly topical in light of the tragedy that struck the Town of Walkerton in Ontario in 2000 when farm waste found its way into the municipal drinking water system and was passed through, untreated, resulting in seven deaths and many others whose health was adversely affected. Ontario also has a Safe Drinking Water Act, 200252 to deal with aspects of that same issue.
An important additional issue relating to water is the cross-border character of many water bodies and the potential for the need for regulation of water on an international and interprovincial basis. International agreements relating to water are referred to elsewhere in this book. They include the Great Lakes Water Quality Agreement between Canada and the U.S., most recently updated and expanded in 2012,53 and the non-binding Great Lakes St. Lawrence River Basin Sustainable Water Resources Agreement between Ontario, Quebec and the 8 states bordering the Great Lakes, most recently updated in 2005.54 It is appropriate to note that provinces have regulated the withdrawal of large quantities of water (e.g. the OWRA requires a permit to withdraw more than 50,000 litres/day from surface or groundwater)55 and the transfer of large amounts of water out of a watershed, even if into another regulated watershed.56
The day to day management of the use, handling and storage of chemicals, hazardous materials and wastes is primarily regulated by the provinces, including by general and some more specific environmental legislation; this includes legislation with respect to the environmental aspects of chemical use (including storage, release and disposal) as well as the health and safety aspects of chemical use (including labelling, exposure, and training). The federal government also has a significant regulatory role in this area, particularly with respect to the regulation of what chemicals and other substances may be manufactured, imported or sold in Canada.
This section discusses the regulation of chemicals and other substances and products in Canada. Section V which follows discusses the regulation of waste, including hazardous waste and recyclable materials.
CEPA contains important provisions with respect to the regulation of substances in Canada. Part 5 of CEPA provides a regulatory regime that prohibits a person from manufacturing or importing a "new" substance in or into Canada unless the federal government is notified and has completed a risk assessment on the substance to identify any risks that may be associated with the substance. A substance will be considered "new" to Canada if it is not listed on the on the "Domestic Substances List" ("DSL"), which is a list that is intended to identify all substances that are known to have been in commerce in Canada prior to 1984 or authorized under CEPA thereafter.
Of particular importance to CEPA are those substances that are determined to be a "toxic substance", which is any substance that has or may have an immediate or long-term harmful effect on the environment or its biological diversity; constitutes or may constitute a danger to the environment on which life depends, or constitutes or may constitute a danger in Canada to human life or health. Substances that are determined to be toxic under CEPA are added to a list of toxic substances in Schedule 1 of the Act and will generally have some form of risk management measure imposed on the substance. Risk management measures typically consist of regulations regarding some aspect of the manufacture, import, use, handling or disposal of the substance, depending on the nature of the risk, but could also include an obligation to prepare and implement a pollution prevention plan or an environmental emergency plan, or the creation by the federal government of a code of practice or a guideline. Substances may also be identified for "virtual elimination" with regulations prescribing stringent release limits and other preventative measures. The federal government is currently in the midst of a significant review, on a staged and prioritized basis, of those substances that are already listed on the DSL to determine whether any of them (many of which were in commerce in Canada prior to 1984 and then not subjected to the regulatory scrutiny of the current notification and assessment regime), should be considered toxic substances and subject to risk management measures.
The federal government establishes safety standards for consumer products through the Canada Consumer Product Safety Act. This Act is used, among other things, to prohibit products that pose an unreasonable risk to consumers, to impose mandatory reporting obligations with respect to safety incidents, and to authorize the government to issue product-related orders, including product recalls and safety testing. The federal government also regulates products under the Hazardous Products Act,57 which is directed primarily at the sale, importation and use of controlled products used in work places in Canada, and requires, among other things, proper labelling and the use of Material Safety Data Sheets for such products.
The federal government legislates with respect to specific chemical products, such as pesticides under the Pest Control Products Act58 and fertilizers under the Fertilizers Act.59 These Acts generally require a federal government registration prior to the sale or import of the product in Canada. The federal government also has specific legislation with respect to the safe handling and transportation of dangerous goods under the Transportation of Dangerous Goods Act, 1992.60
Provinces have the ability to regulate many of the matters referred to above as subject to federal regulation, a situation which can result in the imposition of regulatory requirements from both levels of government. For example, with respect to the regulation of pesticides, the federal Pest Control Products Act requires the registration of a pesticide prior to its manufacture, importation, handling or distribution within Canada.61 Provincial legislation, such as the Pesticides Act62 in Ontario, primarily regulates the licensing of persons involved in the sale and application of pesticides within a province. Municipalities, despite having only those powers delegated to them by provinces, also have the ability to regulate many environmental matters, including the use of pesticides, within the municipal boundaries. Many municipalities in Canada have enacted by-laws banning the cosmetic application of certain pesticides. As long as the municipality is properly exercising their powers provided under municipal legislation and such a by-law is not incompatible with federal and provincial legislation, it will be a valid exercise of municipal authority.63
Site remediation is primarily (and typically) dealt with under provincial legislation. Most provincial legislation contains remedial (i.e., investigation, remediation, monitoring, etc.) obligations premised, at least in theory, on the "polluter pays" principle, which has been endorsed by the CCME. Some jurisdictions, such as Ontario, also authorize the imposition of remedial obligations on property owners, regardless of whether they caused or contributed to the contamination. Remedial obligations can be enforced by the issuance of governmental orders.
In British Columbia, the contaminated sites legislation creates a scheme similar to U.S. Superfund legislation, including the allocation of liability when more than one person is named on a clean-up order and the right to recover from "responsible persons" if a party incurs "remediation costs" (whether voluntarily or as a result of an order).64 While provincial clean-up laws can apply on sites subject to federal legislation (banks, railways, airports, nuclear facilitations, Indian reservations, defence facilities, etc.) if they do not overly interfere with federal jurisdiction, the federal government has taken the responsibility to deal with the clean-up of contaminated sites in a number of those situations.
The regulation of waste and hazardous waste is a shared federal and provincial responsibility with federal jurisdiction focused on international and interprovincial aspects. Federal regulations under CEPA deal with the import and export of hazardous waste and hazardous recyclable materials65 and the interprovincial movement of hazardous waste.66 Provincial statutes typically provide detailed requirements with respect to all aspects of the generation, handling, and disposal of waste within a province, including hazardous wastes and recyclable materials. For example, under the PA, certain materials are expressly designated as wastes and some materials such as prescribed recyclable materials are exempted from the regulatory requirements. Activities involving the transportation, handling and disposal of waste generally require an environmental compliance approval, and subject wastes (a term that includes hazardous wastes and liquid industrial wastes) are subject to additional regulatory requirements including generator registration and the use of waste manifests for off-site shipments. Where waste has been unlawfully disposed of in Ontario, the PA authorizes the issuance of orders requiring the removal of the waste and/or remediation of the site.67
In recent years there have been significant regulatory developments in Canada with respect to waste diversion and extended producer responsibility. Many jurisdictions in Canada now have mandatory obligations on producers or "stewards" of products such as blue box materials (i.e., glass, metal, paper etc.), paper and packaging, electronic and electrical equipment, tires etc. These programs require the stewards to either operate or be part of a diversion program that collects and manages the wastes in a responsible manner, or pay a fee to the government or an agent of the government to fund the diversion of their products from the waste stream.
The Emergency Management Framework for Canada68 provides for the co-operative approach by federal and provincial governments to the preparation for and response to a broad range of emergencies, including chemical, biological, radiological and nuclear events. It recognizes the local nature of most emergencies and explicitly allocates responsibility to the municipalities and the provinces and territories but also recognizes the potential to transcend boundaries and thus the role of the federal government in co-ordinating the efforts of others while providing leadership where it has exclusive jurisdiction or where the lands and properties involved are the responsibility of the federal government.
CEPA contains provisions permitting the federal government to regulate with respect to the prevention and response to environmental emergencies relating to the release of substances into the natural environment.69 Persons in Canada that own or manage prescribed substances above concentration and quantity thresholds are required to notify the federal government of their substances, and prepare and implement environmental emergency response plans.70
Most provinces also have emergency response legislation that sets out responsibilities and authorizations that may be exercised as part of a provincial response to an emergency. For example, Ontario has passed the Emergency Management and Civil Protection Act, which clearly could be applied in the event of an environmental emergency.71
As a result of the addition of Section 92A to Canada's constitution, the exclusive jurisdiction to legislate with respect to renewable natural resources and forests and the sites relating to the generation of electricity is allocated to the provinces. In addition, the provinces have ownership of most natural resources, subject to grants made to private citizens, with some exceptions where the Canadian constitution grants ownership to the federal government and of course to aboriginal rights. Consequently, the provinces have taken the primary role in regulating environmental matters related to natural resource development. Many provinces have adopted land use planning requirements that determine or guide the development of natural resources. For example, British Columbia has implemented a series of regional land use plans that inform regulator in making decisions as to permitting an environmental assessment.
A number of matters under the exclusive jurisdiction of the Federal Government are frequently involved in natural resource development and extraction including fisheries, navigable waters and occasionally Indians and Indian lands.
As a result, both the federal and provincial environmental assessments (the "EAs") statutes have been put in place to force the review and mitigation of adverse environmental impact (or occasionally the abandonment of) the proposed development (see below under "Environmental Review, Permitting and Decision-Making").
As a local matter and one that deals with property and civil rights, land management is almost entirely a provincial responsibility. Environmental matters assist in guiding provincial decision making. For example in Ontario, the Planning Act72 has as one of its purposes "to promote sustainable development in a healthy natural environment…" and requires inclusion of the effects on the social, economic and natural environment in an official plan. Land use planning by municipalities includes consideration of environmental matters including traffic nuisance, sunlight access, etc. In Ontario, under the Green Energy Act,73 municipalities were prohibited from applying land use planning requirements to the sites for provincially approved renewable energy facilities, with the entire obligation to deal with environmental matters delegated to the Ministry of the Environment under the Renewable Energy Approval process.74
An exception to the general rule that provincial governments deal with land use (and therefore planning) matters occurs in the City of Ottawa, Canada's national city, where the federal government's National Capital Commission has broad authority to deal with planning matters.75
Canada has recently determined that it will report on the sequestration and emission consequences of land use, land use changes and forestry with respect to its greenhouse gas targets.76 Canada had earlier suggested that it might take that position but the unfortunate consequences of a number of events and actions in Canada, including the effects of the infestation of forest by the mountain pine beetle in British Columbia and more recently Alberta, adversely affected the sequestration/emission balance. With Canada's new target under the Copenhagen Accords and Cancun Agreements using 2005 as the baseline as opposed to 1990 under the Kyoto Protocol, and a variety of changes to the sequestration US emissions balance in Canada, Canada is again in a position where land use, land use changes and forestry do have a beneficial effect on emissions by reducing them and increasing sequestration.
Unlike the US where a substantial and growing body of law has grown around litigation relating to natural resource damages, the concept of natural resources damages is not a readily recognizable part of Canadian law. However, in the Canfor77 case, the Supreme Court explains that damages could have been allowed if properly pleaded with respect to damage to environmentally protected forests, despite the fact no individuals suffered direct damage.
Endangered species are, like many other environmental matters, subject to joint jurisdiction of the federal and provincial governments with the federal government drawing its jurisdiction from international matters (migrating birds), its responsibility for fisheries, trade and commerce (an international concern) and other international and interprovincial aspects of this issue. Consequently, Canada has a Species at Risk Act78 ("SARA"), pursuant to which species can be listed as endangered so that protection of the species and its habitat becomes mandatory in some cases. The activities of the federal government under SARA have been controversial with the generally perceived reluctance by the federal government to include species on the endangered species list where commercial interests could be limited.
At the same, provinces often have endangered species legislation dealing with those species within the province that are at risk. Ontario, for example, has its own Endangered Species Act, 200779 (the "ESA"). SARA can be deployed where the federal government is of the opinion that the laws of a province do not effectively protect the species.80
The Canadian government made major changes to its environmental assessment legislation by passing a new statute, the Canadian Environmental Assessment Act, 201281 ("CEAA 2012") in 2012. Canadians do not have very much experience with how the "new" federal environmental assessment process will operate. Generally, CEAA 2012 is intended to eliminate matters where assessments were not required, make assessments more efficient, and limit the burden, delay and overlap with provincial environmental assessments that the government perceived to exist under the previous regime. This may permit natural resources and other projects to proceed with a higher degree of certainty, while at the same time ensuring that environmental impacts are considered before projects are undertaken. In that regard, CEAA 2012 is part of the federal government's Responsible Resource Development initiative that included changes to the Fisheries Act.
Under CEAA 2012, federal permits needed for the implementation of a project cannot be issued until the process is completed in a manner that would allow the project to proceed.
CEAA 2012 reflects an intention to defer to provincial environmental assessment processes unless there is a matter within federal competency (such as projects that may impact fisheries, federal lands, migratory birds and Aboriginals). This is designed to prevent overlap with provincial assessments. Those conducting federal environmental assessments are required to consult and cooperate with other jurisdictions (including provinces, foreign states, international organizations and their institutions, and certain Indian self-government bodies or a body that is established under an aboriginal land claims agreements) that have environmental assessment powers, duties or functions. Where there is a provincial environmental assessment and the province requests, the provincial environmental assessment will be substituted for the federal environmental assessment if the federal Ministry of the Environment is satisfied, based upon prescribed criteria, that the substitution would be appropriate. This is intended to preclude the need for joint or parallel environmental assessments at the provincial and federal levels, a result frequently seen with the arrangements before CEAA 2012 became law.
Under CEAA 2012, certain prescribed types of projects are potentially subject to environmental assessment; this includes fossil fuel electricity generating stations, hydro electric facilities, transmission lines, water diversion structures, oil sands mines and processing facilities, offshore oil and gas production facilities, petroleum refineries and certain other coal, oil and gas facilities, pipelines, mines, pulp and paper mills, steel production facilities, other metal working facilities, chemical and pharmaceutical facilities, some wood processing facilities, canals, railways and waste treatment facilities in addition to nuclear facilities and mines and asbestos facilities. Under CEAA 2012, other projects can be designated for assessment.
An initial screening of projects for which the Canadian Environmental Assessment Agency (the "Agency", sometimes referred to as "CEAA") is responsible is to be done within 45 days of the notice of the project being posted. An assessment will be done only if the federal government decides that it is required, based upon prescribed factors. An assessment for which the Agency is responsible can be done either as a "standard" assessment, or a panel review (which would include a hearing, with witnesses, etc).
The government has attempted to deal with a problem of lengthy delays caused by environmental assessments by imposing timelines (usually one or two years for completion), but even these can be extended in certain circumstances.
Most Canadian provinces have their own provincial environmental assessment legislation requiring environmental assessment of a range of proposed activities.
In Ontario, for example, the Environmental Assessment Act ("AA") applies to certain activities by government (provincial and municipal governments and their agencies), as well as designated activities (such as certain electricity and waste projects, whether by private or public sector entities), and other private sector developments that are designated or where proponent chooses to be subject to an Ontario environmental assessment. The Ontario EA process includes the development of terms of reference for approval by the government. Where an environmental assessment is required, a development cannot proceed without the environmental assessment having been completed and a decision having been made that does not preclude it being implemented. Procedures for Class Environmental Assessment conducted by proponents exist for routine, predictable and manageable types of projects with known impacts; those Class EAs can be "bumped up" to full assessment in certain circumstances.
Some federal legislation requires permitting, or meeting specified requirements, before facilities can be constructed; for example, nuclear facilities are subject to a permitting system, as are certain projects impacting fish, fish habitat, species at risk, aeronautics and other matters within federal jurisdiction. CEAA 2012 includes "substitution" and "equivalency" provisions, which can result in deferring a matter to a provincial environmental assessment processes. While "substitution" and "equivalency" details are being worked out between provinces and the federal government, it seems clear that the intention is that the provincial processes would produce the information necessary for the federal government to issue (or decline to issue) specific permits and licenses.
The legislation of almost every province contains an obligation to obtain permits where a development is to take place which could discharge contaminants into the environment that could have an adverse effect. The process of obtaining a permit involves an application and a review by the government but also involves posting for review by the public, e.g., in Ontario, on the Environmental Registry, so that opportunity for public comment is available, again depending on the circumstances. The granting of permits is subject to review by the Environmental Review Tribunal in Ontario.
As indicated above, CEPA contains provisions dealing with international water and air pollution, permitting the federal government to deal with those matters, subject to discussions and an opportunity to act for any province which serves as a source for such contamination. Marine pollution has been determined to have a sufficiently "national" element so as to justify federal legislation under POGG.82 Canada is a signatory to many international environmental agreements, including the 1991 Canada-United States Air Quality Agreement, the United Nations Framework Convention on Climate Change, the Montreal Protocol on Substances that Deplete the Ozone Layer and agreements with the United States dealing with boundary waters. Canada participates in the Arctic Council which frequently deals with transboundary pollution issues.
Environmental statutes in Canada provide a broad range of remedies for provincial and federal governmental authorities, including the issuance of orders,83 administrative penalties, as well as the laying of charges. Convictions for environmental offences in Canada generally carry significant maximum penalties (in some jurisdictions, maximum penalties include fines in the range of several million dollars per day that an offence occurs, as well as the imposition of imprisonment). Some jurisdictions also have minimum statutory penalties imposed, which is generally reserved for more serious environmental offences.84 Environmental offences in Canada are considered to be strict liability offences (unless a contrary intent is clearly expressed), which means that they are subject to a defence of due diligence. To establish due diligence a defendant must prove, on a balance of probabilities, that he or she i) took all reasonable care in the circumstances to prevent the events giving rise to the offence, or, ii) had a reasonable belief in a mistaken set of facts, which, if true, would have rendered the act or omission innocent.85
Those potentially subject to being charged include directors and officers who, under CEPA and the PA, are given a positive duty to take all reasonable care to avoid having the corporation commit offences; in other provinces, generally directors and officers must participate in or acquiesce to the activity that constituted the prohibited act to be charged.
In addition to regulatory offences, administrative monetary penalties are increasingly being adopted in environmental statutes. As administrative penalty is an administrative fine (i.e., it does not involve the laying of a charge and proof of an offence) that is available in respect of specific offences.86 Administrative penalties can often be issued on an absolute liability basis (where there is no defence of due diligence available).
Provisions of the Canadian Criminal Code87 are available but are not typically used with respect to environmental matters, likely because any such provision requires the Crown to prove "mens rea", i.e., a mental element indicating recklessness or intent.
Citizen suits seeking enforcement of environmental statutes are rare, with the lack of a statutory right to bring such suits and the restrictive interpretation of statutory and other litigation rules to deny standing being significant obstacles.
Statutory remedies for those harmed by the emission of contamination are also rare; however, Ontario created a civil cause of action under the PA to recover the damage caused by a spill.88 Ontario also passed the Environmental Bill of Rights, which creates a cause of action related to harm to a public resource. British Columbia's contaminated sites legislation also creates the right to recover damages from a person who is involved with the pollution in some circumstances.89 Under the Fisheries Act, a private charge laid by an individual that results in a conviction can result in 50% of any fine imposed paid to the person laying the charge;90 this has traditionally been of limited significance because the government will often take over the prosecution and, more often than not, settle the matter short of a fine.
Canadian courts recognize the traditional environmental torts that are common in the U.S., including trespass, negligence, nuisance and strict liability. Canadian courts have accepted the possibility of regulatory negligence pursuant to which government agencies can be held liable.91 Tort class actions have been used to seek a remedy for environment-related damages, although this is still very much an emerging development.