Environment and Climate Regulation Comparative Guide

Published date11 November 2021
Subject MatterEnvironment, Energy and Natural Resources, Energy Law, Environmental Law, Renewables, Climate Change, Waste Management
Law FirmSiskinds LLP
AuthorMs Paula Lombardi

1 Legal framework

1.1 Which legislative and regulatory provisions govern environment and climate regulation in your jurisdiction?

The current federal government and most provincial governments entered into the Pan-Canadian Framework on Clean Growth and Climate Change in 2016. Under the framework, all Canadian jurisdictions were obliged to implement carbon pricing mechanisms that are at least as stringent as the national benchmark. In 2018, with the change in provincial government, the Cap and Trade Cancellation Act, 2018 (SO 2018, c 13) was introduced, which repealed the prior government's cap and trade programme. The provincial government subsequently released its Made-In Ontario Environment Plan, which details the province's commitment to reduce the provincial emissions to 30% below 2005 levels by 2030 and fight climate change.

The Environmental Protection Act (RSO 1990, c E 19) and its regulations also outline environment and climate regulation provisions including, for example, the cessation of coal use at generation facilities and prohibitions against ozone-depleting substances.

Federally, the Greenhouse Gas Pollution Pricing Act (SC 2018, c 12) establishes a set of minimum national standards to be applied for carbon pricing in Canada to reduce emissions. Ontario, Alberta and Saskatchewan formally challenged the constitutionality of this legislation; but in 2021 the Supreme Court of Canada upheld the Greenhouse Gas Pollution Pricing Act as being valid.

The Canadian Environmental Protection Act, 1999 (SC 1999, c 33) is also a key piece of legislation in environment and climate regulation.

1.2 Which bilateral and multilateral instruments on environment and climate regulation have effect in your jurisdiction?

The federal government has negotiated bilateral agreements with specific provinces concerning the administration of environmental law regimes. The Canadian Environmental Protection Act, 1999 authorises federal-provincial agreements concerning the administration of the act. Such agreements include, for example:

  • the Canada and Saskatchewan Agreement for the Canadian Environmental Protection Act; and
  • the Canada-Quebec Pulp and Paper Administrative Agreement.

In 1998 the federal, territorial and provincial (except Quebec) governments signed the Harmonization Accord and the Agreement on Internal Trade, which solidified a commitment to environmental protection and management among the provincial, territorial and federal governments.

Canada ratified the Kyoto Protocol in 2002 as a commitment to reduce greenhouse gas emissions. In 2011, the Stephen Harper federal government withdrew from the Kyoto Protocol after Canada failed to meet its goals. In 2015, Canada ratified the Paris Agreement under the United Nations Framework Convention on Climate Change, which required a commitment to reduce greenhouse gas emissions by 30% from 2005 levels by 2030. In 2015, Canada also adopted the United Nations' 2030 Agenda for Sustainable Development. This agenda contained 17 Sustainable Development Goals, including Goal 13: Climate Action.

1.3 Which bodies are responsible for enforcing the applicable laws and regulations? What powers do they have? To what extent do they cooperate? What are the mechanisms for cooperation?

In Ontario, the Ministry of the Environment, Conservation and Parks is responsible for developing, enforcing and providing education and outreach on Ontario's environmental laws (this is similar to the other provinces). At the federal level, Environment and Climate Change Canada secures compliance with federal environmental legislation, including the Canadian Environmental Protection Act, 1999, through two types of activity: promotion and enforcement.

Regulatory bodies at both the provincial and federal level have broad authority to issue control, stop, preventive and remedial orders. At the federal level, environmental legislation - including the Canadian Environmental Protection Act, 1999 - provides for environmental protection compliance orders. In Ontario, administrative penalties are common, as the Environmental Penalties Regulation designates 'regulated persons' which may be subject to penalty regimes in accordance to specified contraventions.

The powers of Parliament enumerated in Sections 91 and 92(10) of the Constitution Acts, 1867 to 1982 concern matters of national interest. Constitutional authority over the environment is shared between the federal and provincial government based on the enumerated heads of power set out in the Constitution Act. The Supreme Court of Canada has indicated that responsibility for certain environmental issues is not clear, and as such, is to be shared between the various levels of government, including federal, provincial and municipal governments. Given this overlap, cooperation is necessary in enforcing environmental laws. The provincial/municipal environmental laws must be consistent with the laws enacted at the federal level. Similarly, governance of environmental matters at the municipal level must be consistent with the laws enacted at the provincial level.

1.4 What is the regulators' general approach to environment and climate regulation/action?

The general approach of both provincial and federal regulators to environmental and climate regulation is to focus primarily on regulation, impact minimisation and accountability. This is apparent from:

  • the legislation passed;
  • an increase in initiatives that incentivise eco-friendly behaviour; and
  • the enforcement measures enacted at both the provincial and federal levels.

Canada's commitment to the Paris Agreement confirms that Canada is committed to a stronger response to the dangers of climate change and is seeking to achieve this through heightened efforts to hold the increase in the global average temperature, foster climate resilience and reduce greenhouse gas emissions.

2 Environmental protection

2.1 What are the key features of the regulatory regimes that protect the following environmental assets in your jurisdiction? (a) Air; (b) Soil; (c) Fresh water; (d) Sea water; (e) Flora and fauna; and (f) Natural habitats and scenic landscapes.

(a) Air

Prior to discharging any contaminants into the environment, including air, a permit/authorisation is required from the Ministry of Environment, Conservation and Parks to allow for the discharge. These permits are required by the Ontario Environmental Protection Act and associated regulations, and are referred to as 'environment compliance approvals'.

The Ministry of the Environment, Conservation and Parks, in addition to the applicable statutory requirements and regulations set out in the Ontario Environmental Protection Act, sets Ontario's Ambient Air Quality Criteria. These allow the government to regulate contaminants emitted by various corporations, albeit that they are not legally binding. Canada also has Canadian Ambient Air Quality Standards that outline non-binding objectives developed to 'set the bar' for air quality actions across the country. The key features of such regulatory regimes are to monitor and assess emissions into the air with the understanding that high concentrations of a contaminant in the air can have adverse effects on human health and the environment.

The Greenhouse Gas Pollution Pricing Act (SC 2018, c 12) and Canada's commitments to international initiatives such as the Paris Agreement reflect the notion that air pollution and greenhouse gas emissions have detrimental impacts on health, environment and climate change. The focus of these regulatory regimes is on regulation, prevention and responsibility in minimising Canada's impact on climate change.

(b) Soil

Prior to discharging any contaminants into the environment, including soil, a permit/authorisation is required from the Ministry of Environment, Conservation and Parks to allow for the discharge. These permits are required by the Ontario Environmental Protection Act and associated regulations, and are referred to as 'environment compliance approvals'.

The Ministry of the Environment, Conservation and Parks is the regulatory body responsible for protecting Ontario's land and soil. The regulations under the Ontario Environmental Protect Act achieve this goal through regulatory requirements that govern, for example:

  • waste management;
  • illegal dumping;
  • hazardous waste;
  • brownfields and contaminated sites;
  • excess soil; and
  • pesticides.

In December 2019, the Ministry of Environment, Conservation and Parks released a new regulation under the Environmental Protection Act, titled "On-Site and Excess Soil Management", to support improved management of excess construction soil. These changes reduce soil management costs, while protecting human health and the environment.

(c) Fresh water

As one of Ontario's most important resources, fresh water is heavily regulated and protected in the province. These regulatory regimes protect:

  • drinking water;
  • fishing;
  • source water;
  • the Great Lakes and watersheds; and
  • the maintenance of wells on property.

The key features of these regulatory regimes are primarily focused on the protection and conservation of freshwater resources. This is achieved primarily through regular water quality testing, monitoring, reporting and management. Ontario has also deployed independent action plans, strategies and funds targeted at particular lake, river and watershed conservation. Some notable legislation for fresh water includes:

  • the Environmental Protection Act (RSO 1990, c E 19);
  • the Clean Water Act, 2006 (SO 2006, c 22);
  • the Water Resources Act (RSO 1990, c O 40); and
  • the Lakes and Rivers Improvement Act (RSO 1990, c L3).

The federal government has jurisdiction for waters in certain areas such as navigation, fisheries and boundary waters, and shares responsibilities with the provinces in other areas such as agriculture and human health.

(d) Sea water

The federal government assumes jurisdiction over 'sea' water in Canada, including issues such as:

  • ...

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