Environmental Law 2020
| Published date | 17 November 2020 |
| Subject Matter | Environment, Environmental Law, Climate Change, Clean Air / Pollution, Waste Management |
| Law Firm | Lawson Lundell LLP |
| Author | Ms Christine Kowbel, Clifford G. Proudfoot, Brad Armstrong and Kinji C. Bourchier |
In Canada, the federal (national) and provincial/territorial (regional) governments have responsibility for the protection of the environment. Federal laws will generally apply to all projects or operations throughout the country, while provincial/territorial laws apply only to those projects or operations located within the specific province or territory.
The key federal laws governing environmental protection include the Canadian Environmental Protection Act, the Fisheries Act, the Impact Assessment Act, the Transportation of Dangerous Goods Act and the Canadian Navigable Waters Act. Provinces bolster these laws with legislation within their jurisdiction, such as British Columbia's Environmental Management Act or Ontario's Environmental Protection Act. Territories also have legislation within their jurisdiction, such as Nunavut's Environmental Protection Act.
Each one of these acts is underscored by regulations, orders and guidelines designed to ensure compliance and further the goals of each respective act.
The key federal regulatory authorities in Canada include Environment and Climate Change Canada, Fisheries and Oceans Canada, the Impact Assessment Agency of Canada, Indigenous and Northern Affairs Canada, Transport Canada, Parks Canada and Natural Resources Canada.
Other key regulatory authorities exist in each province or territory, many of which will co-ordinate their approach to regulation and enforcement with their federal counterparts.
Most regulatory authorities employ officers or other enforcement personnel, who are often granted the power to conduct routine inspections and investigations. For example, a federal fishery officer may enter and inspect a facility or vessel if he or she has reasonable grounds to believe that federal fishery regulations are being breached. In this example, they may also open containers, examine fish or take samples of them, conduct tests, or take copies of documents.
Regulatory officers investigating an offence or pursuing prosecution may be required to obtain search warrants. If a breach occurs, these officers would then be a key part in any proceedings against the offender, in either a judicial or administrative proceeding.
The approach to the enforcement of environmental law varies according to the severity of the environmental incident or breach of the regulation. Whenever possible, Canadian authorities enforce environmental law through voluntary agreements and specific orders to comply. Canadian authorities will hold polluters responsible for the clean-up costs of pollution or contamination, and may seek further penalties where necessary.
Environmental permits are issued by the federal and provincial/territorial governments, depending on the nature and location of the activity at issue.
Environmental permits may be necessary for a wide variety of activities. For example, activities that may harm a threatened or endangered species will require a permit under the Species at Risk Act, while activities related to forestry will require a permit from the relevant provincial or territorial regulatory authority. While federal and provincial jurisdictions may not strictly overlap in this instance, environmental activities often require both federal and provincial permits and authorisations, thereby increasing compliance concerns for businesses.
Depending on the circumstances, some projects may be able to obtain multiple environmental permits through a single process, but this is not always the case. Project proponents or operators in Canada will need to obtain permits from each of the responsible government authorities, at the federal and provincial/territorial levels, as required. As noted above, either federal or provincial environmental assessment (or both) may be required before permits may be issued.
Investors looking to purchase Canadian projects or operations will want to ensure they acquire the project's associated permits. Most environmental permits can be transferred, but governmental consent may be required to do so. This can require a lengthy process in some circumstances, which triggers consultation with indigenous groups. Usually, change of control will not trigger the need for governmental consents, but the specific requirements of the applicable legislation as well as the language of the permit itself must be carefully reviewed to determine whether governmental consents are required.
Environmental permits are usually time limited, but the duration of the authorisation will depend on the nature of the activity being permitted.
Permits typically contain conditions that accord with the requirements of the legislation under which they are granted.
Environmental permits are generally obtained by applying to the appropriate government authority with responsibility over the permitting scheme; for example, permits around fish or fish habitats will commonly be obtained from Fisheries and Oceans Canada.
In many cases, the applicable legislation explicitly states that environmental permits will only be granted to individuals or businesses that can show they are qualified to hold them. As an example, the federal Nuclear Safety and Control Act forbids transfers of licences unless the licensee can show that they are authorised to carry out the particular activity granted under the licence.
Some permitting regimes, but not all, will allow for an appeal to a quasi-judicial authority (often an administrative tribunal) or a member of the federal government, known as a Minister. In all cases, the decision to grant or refuse a permit can be reviewed by the courts through an application for judicial review. Further appeals from these decisions may find themselves in courts of competent jurisdiction.
The key types of liability faced by project proponents or operators in Canada for environmental damage or breaches of environmental law include monetary fines, the loss of environmental permits and criminal prosecution.
Environmental legislation, such as the Fisheries Act, provides for both summary and criminal convictions for offences. Furthermore, the act and others like it state that any committed or continued offence that occurs over time shall be considered a separate offence for each day the contravention occurred. The result is that offenders may be subjected to both large monetary fines and criminal convictions simultaneously should environmental breaches continue. Offences are often broadly construed so as to catch any employee, corporate officer or licence holder that may contravene the legislation.
Subject to available defences, a current or purchasing operator or landowner will be subject to liability if they acquire contaminated land. The Canadian liability regime is designed to ensure that liability always falls on either past or present owners or operators of land in order for federal and provincial governments to avoid being the entities that pay out of pocket for any potential remediation costs.
Most environmental legislation in Canada operates on the "polluter pays" principle, which requires the party that caused the harm to the environment to bear the ultimate cost of any clean-up or remediation.
However, Canadian contaminated sites legislation can impose liability for historic environmental incidents or damage on a current operator or landowner of contaminated land; for example, if the new landowner is aware of...
To continue reading
Request your trial