Environmental Law 2022

• Published date: 05 December 2022
• Subject Matter: Environment, Environmental Law, Waste Management
• Law Firm: Lawson Lundell LLP
• Author: Mr Kinji Bourchier, Christine Kowbel and Will Shaw

Law and Practice

1. Regulatory Framework

1.1 Key Environmental Protection Policies, Principles and Laws

In Canada, the federal (national) and provincial/territorial (regional) governments have responsibility for the protection of the environment. Federal laws 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, 1999;
• the Fisheries Act;
• the Impact Assessment Act;
• the Transportation of Dangerous Goods Act;
• the Species at Risk 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.

2. Enforcement

2.1 Key Regulatory Authorities

The key federal regulatory authorities in Canada include:

• Environment and Climate Change Canada;
• Fisheries and Oceans Canada;
• the Impact Assessment Agency of Canada;
• Crown-Indigenous Relations 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.

3. Environmental Incidents and Permits

3.1 Investigative and Access Points

Most regulatory authorities employ officers or other enforcement personnel, who are often granted the power to conduct inspections and investigations. These inspections and investigations may be routine or in response to suspected regulatory breaches. For example, a federal fishery officer may enter and inspect a facility or vessel if they have 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 may be required to obtain search warrants or may request voluntary disclosure.

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.

3.2 Environmental Permits

Types of Permits

Environmental permits are issued by the federal and provincial/territorial governments, depending on the nature and location of the activity.

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 federal 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. Some activities will also require municipal or regional permits and authorisations.

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.

Change of Control

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 government consent may be required to do so. This can require a lengthy process in some circumstances, which may trigger consultation with Indigenous groups. Usually, change of control will not trigger the need for government 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 government consent is required.

Time Limit

Environmental permits are usually time-limited, but the duration of the authorisation will depend on the nature of the activity being permitted. Permits can often be renewed, but may require additional regulatory processes in order to secure a renewal.

Conditions

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.

Appeals

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 - ie, 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.

4. Environmental Liability

4.1 Key Types of Liability

The key types of liability faced by project proponents or operators in Canada for environmental damage or breaches of environmental law include monetary fines, remediation orders, the loss of environmental permits and prosecution.

Environmental legislation, such as the Fisheries Act, includes a provision that makes it an offence to fail to comply with the legislation. Furthermore, the Fisheries Act and others like it state that any committed or continued offence that occurs over time will be considered a separate offence for each day the contravention occurred. The result is that offenders may be subject to multiple convictions and large monetary fines should environmental breaches continue. It is often possible for an employee, agent or a director or officer to be held personally responsible for an offence under environmental legislation.

5. Environmental Incidents and Damage

5.1 Liability for Historical Environmental Incidents or Damage

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 incurring remediation costs.

5.2 Types of Liability and Key Defences

Liability

Most environmental legislation in Canada operates on the 'polluter pays' principle, which requires the party that...