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All levels of government across Canada have enacted legislation to regulate the impact of business activities on the environment. The environment is not named specifically in the Canadian Constitution, which means that neither the federal nor provincial governments have exclusive jurisdiction over it. Rather, jurisdiction is based upon other named “heads of power” that interact with the environment to varying degrees, such as criminal law, fisheries and natural resources. For many matters falling under the broad “environment” label, both the federal and provincial governments can and do exercise regulatory responsibilities. This is referred to as “concurrent jurisdiction,” which, in practical terms, means that businesses must often comply with both provincial and federal regulations, depending on the circumstances of their operations. In addition, some municipalities are also becoming more active in environmental regulation, as is evidenced, for example, by their use of bylaws to regulate such matters as the development of contaminated land, the discharge of liquid effluent into municipal sewage systems, and reporting on the emission of chemical substances or application of herbicides/pesticides in the course of business operations.
As a consequence of the broad ambit of environmental matters and the concurrent jurisdiction of the federal and provincial governments, there is a proliferation of legislation which regulates different aspects of the interaction of business activities with the environment. The scope of this legislation includes the management of emissions, substances and waste, the use of water and the development of natural resources, and the impact of development on wildlife and wildlife habitat, as well as enforcement mechanisms and penalties for noncompliance. From the provincial perspective, this chapter focuses on the legal regimes of the four most populous provinces: Alberta, British Columbia, Ontario and Quebec.
1. Toxic and Dangerous Substances
The federal government exercises jurisdiction over the identification, production and handling of toxic and dangerous substances in Canada and over the interprovincial and international transportation of dangerous goods. Each of the provinces has intra-provincial requirements that parallel the federal requirements regarding the transportation of dangerous goods for intra-provincial transportation.
1.1 - Federal Regulation of Toxic and Dangerous Substances
1.1.1 - Canadian Environmental Protection Act
The primary federal government department is Environment and Climate Change Canada (ECCC), which is responsible for administering the Canadian Environmental Protection Act (CEPA). CEPA provides the federal government with regulatory authority over substances considered toxic. The CEPA regime provides for the assessment of “new” substances not included on the Domestic Substances List, a national inventory of chemical and biotechnical substances. CEPA requires an importer or manufacturer to notify the federal government of a new substance before manufacture or importation can take place in Canada. Consequently, businesses must build in a sufficient lead-time for the introduction of new chemicals or biotechnology products into the Canadian marketplace. In certain circumstances, manufacturers and importers must also report new activities involving approved new substances so they can be re-evaluated.
If the government determines that a substance may present a danger to human health or the environment, it may add the substance to the List of Toxic Substances, which currently lists upwards of 150 toxic substances or groups of substances. Within two years of a substance being added to the list, ECCC is required to take action with respect to its management. Such actions may include preventive or control measures, such as securing voluntary agreements, requiring pollution prevention plans or issuing restrictive regulations that may provide for the phase-out or outright banning of a substance. For example, plastic manufactured items were added to the List of Toxic Substances in 2021 to enable the federal government to develop risk management measures to address ecological risks associated with waste plastic. Such measures have, most notably, taken the form of a ban on importing, exporting, manufacturing and selling six categories of single-use plastics, which will be phased in between December 2022 and December 2025.
Once amendments to CEPA enacted in June 2023 come into force, the List of Toxic Substances will be divided into two parts. Part 1 is reserved for toxic substances considered to pose the highest risk to humans or other organisms, prioritizing the partial or total prohibition of their use. Substances that are persistent, bioaccumulative, and result primarily from human activity must be added to Part 1. This new high-risk substance list will include a wider range of chemicals unlike the soon-to-be-repealed Virtual Elimination List, which currently serves a similar function to Part 1 but only lists two substances. The toxic substances listed in this part include PCBs, DDT and chlorinated alkanes, as well as perfluorooctane sulfonate (PFOS), a chemical belonging to a family of compounds known as perfluoroalkyl substances (PFAS). Regulation of these substances is accomplished in part through the Prohibition of Certain Toxic Substances Regulations, 2012, which prohibit the manufacture, use, sale and importation of certain toxic substances and products containing them, subject to a limited number of exemptions.
Part 2 of the List of Toxic Substances is for substances of lower risk. Regulation of these substances will prioritize pollution prevention rather than outright elimination.
1.1.2 - Pest Control Products Act
The Pest Control Products Act (PCPA) prohibits the manufacture, possession, handling, transportation, importation, distribution or use of a pest control product that is not registered under the PCPA or in any way that endangers human health or the safety of the environment. Pest control products are registered only if their risks and value are determined to be acceptable by the Minister of Health. A risk assessment includes special consideration of the different sensitivities to pest control products of major identifiable groups such as children and seniors, and an assessment of aggregate exposure and cumulative effects. New information about risks and values must be reported, and a re-evaluation of currently registered products must take place. The public must be consulted before significant registration decisions are made. The public is given access to information provided in relation to registered pest control products. Maximum penalties for violations under the PCPA are C$1-million and/or three years’ imprisonment.
1.1.3 - Hazardous Products Act
The Hazardous Products Act (HPA) prohibits suppliers, in certain circumstances, from importing and/or selling “hazardous products” that are intended for use in a workplace in Canada. The legislation identifies various hazard classes of hazardous products. Maximum penalties for violations under the HPA are C$5-million and/or two years’ imprisonment. If a person knowingly or recklessly contravenes a provision of the HPA, maximum penalties are fines in an amount that is at the discretion of the court and/or five years’ imprisonment.
1.1.4 - Transportation of Dangerous Goods Act
The Transportation of Dangerous Goods Act (TDGA) applies to all facets and modes of interprovincial and international transportation of dangerous goods in Canada with the exception of commodities moved through pipelines that are governed by the federal energy regulator or a province.
The TDGA applies to those who transport or import dangerous goods; handle, manufacture, ship, and package dangerous goods for shipment; or manufacture the containment materials for dangerous goods. The TDGA and the Transportation of Dangerous Goods Regulations (TDG Regulations) establish a complex system of product classification, documentation and labelling; placarding and marking of vehicles; hazard management, notification and reporting; and employee training. The TDG Regulations also set standards for containers used in road, marine, air and rail transportation. The TDGA requires an Emergency Response Assistance Plan, security training and an implemented security plan before the offering for transport, handling or importation of prescribed goods.
Dangerous goods are specified in the TDG Regulations and arranged into nine classes and over 3,000 shipping names. The classes are: explosives, compressed gases, flammable and combustible liquids and solids, oxidizing substances, toxic and infectious substances, radioactive materials, corrosives and numerous miscellaneous products prescribed by regulation. The TDGA applies to any product, substance, or organism that “by its nature” is included within one of the classes. The TDG Regulations have equivalency provisions with respect to international rules such as the International Maritime Dangerous Goods Code, the International Civil Aviation Organization Technical Instructions and Title 49 of the U.S. Code of Federal Regulations.
2. Air Pollution and Greenhouse Gases
Most air emission regulation is conducted at the provincial level of government, but the federal government regulates a number of industry-specific air emissions and greenhouse gas (GHG) emissions nationally. Several provinces also regulate GHG emissions locally.
2.1 - Federal Air Emissions Regulation
2.1.1 - Air Emissions under CEPA
Industry-specific air emissions regulations under CEPA limit the concentration of such emissions as: asbestos emissions from asbestos mines and mills, carbon dioxide emissions from natural gas-fired and coal-fired powerplants, methane and certain volatile organic compounds from upstream oil and gas facilities, and lead emissions from secondary lead smelters. The trend is for ECCC to focus on regulating specific substances, some of which, like CFCs, are considered air pollutants.
CEPA requires ECCC to keep and publish a National Pollutant Release Inventory (NPRI). Owners and operators of facilities that manufacture, process or otherwise use one or more of the numerous NPRI-listed substances under certain prescribed conditions are required to report releases or off-site transfers of the substances to ECCC. The information is made publicly available to Canadians each year.
2.1.2 - Federal GHG Emissions Regulation
The federal government has also been focusing attention on regulations aimed at reducing GHG emissions such as carbon dioxide. The regulations are part of the federal government’s strategy to reach its target of achieving a 30% GHG emission reduction from 2005 levels by 2030. These include the Passenger Automobile and Light Truck Greenhouse Gas Emission Regulations which apply to vehicles for 2011 to 2025 model years, and are aligned with mandatory national standards of the U.S.
The Heavy-duty Vehicle and Engine Greenhouse Gas Emission Regulations establish progressively more stringent emission standards for 2014 to 2027 model year heavy-duty vehicles, such as pick-ups, semi-trucks, garbage trucks, and buses.
The Clean Fuel Regulations, which came into force on June 21, 2022, require liquid fossil fuel primary suppliers to reduce the carbon intensity of the liquid fossil fuels they produce in, and import into, Canada from 2016 carbon intensity levels by 3.5 grams of CO2e/MJ in 2023, increasing by 1.5 gCO2e/MJ each year to 14 gCO2e/MJ in 2030. By 2030, this will result in a 15% decrease in carbon intensity compared to 2016 levels. A credit market established under the regulations allows suppliers to meet their annual reduction requirement via three main categories of credit-creating actions: (1) actions that reduce the carbon intensity of the fossil fuel throughout its lifecycle, (2) supplying low-carbon fuels, and (3) specified end-use fuel switching in transportation. Entities that are not producers and importers of fossil fuels may voluntarily participate in the market and generate credits through actions such as operating electric vehicle charging stations or supplying low-carbon fuels. The regulations also require that fossil fuel primary suppliers include an average renewable fuel content of 5% in gasoline and 2% for diesel fuel and heating distillate oil. Five provinces (Ontario, Manitoba, Saskatchewan, Alberta and British Columbia) also have similar (or more stringent) renewal fuel mandates. The Reduction of Carbon Dioxide Emissions from Coal-Fired Generation of Electricity Regulations impose registration, monitoring, and reporting requirements on all coal-fired generation units, as well as establishing emission standards.
The federal Greenhouse Gas Pollution Pricing Act (GGPPA) establishes the legal framework and authority for the federal carbon pricing system throughout Canada. The GGPPA acts as a backstop and only applies to those provinces and territories that do not have a carbon pricing system that meets the federal benchmark. The GGPPA is comprised of two parts. Part 1 involves a carbon levy imposed on small producers and users of carbon fuels (Federal Carbon Levy). Part 2 is an output-based pricing system (OBPS) that applies to large facilities emitting 50,000 tonnes of carbon dioxide equivalent (CO2e) or more per year. The price of a tonne of carbon under the GGPPA is C$65 per tonne for 2023 and it is scheduled to increase by C$15/tonne each year until it reaches C$170 per tonne in 2030. As of July 1, 2023, the Federal Carbon Levy applies in Alberta, Saskatchewan, Manitoba, Ontario, Newfoundland, New Brunswick, Nova Scotia, Prince Edward Island, the Yukon and Nunavut. The federal OBPS applies to certain large emitters in Saskatchewan and all large emitters in Manitoba, Prince Edward Island, the Yukon and Nunavut.
2.2 - Provincial Air Emissions Regulation
2.2.1 - Alberta
Alberta has developed a large emitters GHG emissions reduction program. Under the Emissions Management and Climate Resilience Act and the Technology Innovation and Emissions Reduction Regulation, Alberta’s large emitters GHG emissions reduction program includes emissions trading systems, mandatory reporting, and the creation of a Climate Change and Emissions Management Fund (Fund) for implementing new technologies. Facilities that emit more than 100,000 tonnes of carbon dioxide equivalent (CO2e) per year are required to meet established emissions intensity benchmarks, which increase in intensity each year. If they are unable to do so through operational improvements, they have three credit mechanisms available to apply against their emissions. They can: (i) purchase emissions offsets, (ii) purchase emissions performance credits, or (iii) contribute to the Fund (Fund Credit). The price of a Fund Credit is consistent with the GGPPA, which is C$65 per tonne for 2023.
The Alberta Oil Sands Emissions Limit Act sets a cumulative GHG emissions limit of 100 megatonnes per year for all oil sand sites in Alberta. The regulatory scheme required to put into practice this emissions limit is still in development and is anticipated to include some type of a cap-and-trade component.
2.2.2 - British Columbia
In British Columbia, GHG emissions are regulated through a variety of statutes. The Carbon Tax Act imposes a tax on the purchase of fossil fuel with rates for different types of fuel set out in a schedule to the legislation. The Greenhouse Gas Emission Reporting Regulation under the Greenhouse Gas Industrial Reporting and Control Act requires B.C.-based operations emitting 10,000 tonnes or more of CO2e per year to report GHG emissions to the B.C. Ministry of Environment and Climate Change Strategy. Operations emitting 25,000 tonnes or more of CO2e are required to have their GHG report verified by an accredited third party. Certain sectors are exempt, including air and marine transportation.
The Clean Energy Act sets out B.C.’s energy objectives, including the generation of at least 93% of the electricity in B.C. from clean or renewable resources. The Climate Change Accountability Act (formerly titled the Greenhouse Gas Reduction Targets Act) sets a provincial target in B.C. of a 40% reduction from the 2007 level of GHG emissions by 2030 and an 80% reduction by 2050. An interim target of reducing emissions by 16% below 2007 levels by 2025 and specific sectoral targets have also been set.
The Greenhouse Gas Reduction (Renewable and Low Carbon Fuel Requirements) Act allows the B.C. government to set standards for the amount of renewable fuel that must be contained in transportation fuel blends, as well as reduce the carbon intensity of transportation fuels and meet its commitment to adopt a new low carbon fuel standard. The renewable fuel content requirement for gasoline is a 5% annual average and for diesel a 4% annual average.
In late 2021, B.C. released its CleanBC Roadmap to 2030 aimed at reducing GHG emissions, while supporting the growth of clean and renewable energy industries in the province. The CleanBC roadmap was developed to help achieve B.C.’s legislated climate targets. The CleanBC roadmap focuses on key actions in the transportation, building, agriculture, forestry, waste management and clean industry sectors. Key initiatives include that B.C. will require automakers to meet an escalating annual percentage of new light-duty, medium-duty, and heavy-duty zero-emission vehicle (ZEV) sales and, by 2030, all new buildings constructed in B.C. will be “net-zero ready.” Light-duty ZEV sales requirements have been codified in the Zero-Emissions Vehicles Act, which requires automakers to meet annual sales targets for light-duty vehicles or purchase offset credits.
2.2.3 - Ontario
Air emissions are regulated under Ontario’s Environmental Protection Act (EPA) through a combination of the environmental approval process and specific air contaminant limits determined at “points of impingement.” The principal air emission regulation is Ontario Regulation 419/05. Among other things, this regulation requires the use of new air emission models, detailed monitoring and reporting, and the phasing-in of stricter air emission standards for over 100 different chemical parameters.
Facilities that have stationary fuel combustion equipment or which engage in one or more specified GHG activities, including various metal and chemical production activities, must also report their GHG emissions under Ontario Regulation 390/18 if they emit 10,000 tonnes or more of CO2e. Regulations in Ontario also impose limits and monitoring requirements for smog-causing industrial emissions of nitrogen oxide and sulfur dioxide in the electricity generation, base metal, iron and steel and petroleum sectors, among others.
Fuel sales in Ontario are currently subject to the federal government’s carbon fuel charge under Part 1 of the GGPPA. Large emitters that meet certain prescribed criteria are exempt from the fuel charge but are subject to Ontario’s Emissions Performance Standard (EPS) program, which sets increasingly stringent emissions limits for covered facilities. Owners or operators of covered facilities with verified emissions in excess of the annual emissions limit prescribed by Ontario Regulation 241/19 must meet their compliance obligations by purchasing excess emissions units from the provincial government, using emissions performance units (earned by outperforming the applicable emissions limit in a previous compliance period), and/or using offset credits earned through the implementation of approved projects that have reduced GHG emissions.
2.2.4 - Quebec
In Quebec, the Clean Air Regulation sets standards for contaminant emissions to the atmosphere. This regulation applies throughout Quebec, except for the Island of Montreal where the Montréal Metropolitan Community has adopted specific air quality regulations. Quebec has also adopted a cap-and-trade regime for the purpose of managing GHG gas emissions. Persons who emit a quantity of GHGs greater or equal to 10,000 Mt of CO2e per year must file a declaration in accordance with the Regulation respecting mandatory reporting of certain emissions of contaminants into the atmosphere. Persons who emit GHGs in an amount greater or equal to 25,000 Mt of CO2e and distributors of fuel whose emissions meet that threshold are subject to the cap-and-trade regime that is regulated under the Regulation respecting a cap-and-trade system for greenhouse gas emission allowances. It is useful to note that Quebec is part of the Western Climate Initiative (carbon market) with California and Quebec and California’s cap-and-trade regimes are linked. Amendments coming into force in 2024 will further reduce the market emissions cap by progressively reducing the number of emissions allowances allocated to eligible emitters.
An Act to increase the number of zero-emission motor vehicles in Québec in order to reduce greenhouse gas and other pollutant emissions was adopted in October 2016. The Act establishes a system of credits applicable to the sale or lease of motor vehicles in Quebec. Credits may be accumulated by leasing or selling vehicles propelled by a means of propulsion that emits no pollutants, or by purchasing them from another automaker. The obligation to accumulate credits under the Act began for 2018 model year vehicles, and only for vehicle manufacturers that meet a certain threshold established under the Act and its regulations.
3. Land Contamination
In Canada, jurisdiction over matters affecting land is often a provincial responsibility; however, the federal government exerts jurisdiction over certain federally owned or controlled lands. Responsibility for past environmental damage can be imposed upon a past, current or purchasing operator or owner of land in a variety of ways.
First, statutory liability — that is, responsibility for clean-up or remediation — for historical environmental damage can be imposed upon a current or past operator or owner by way of legislation.
Second, civil liability for historic environmental damage can be imposed upon a current or purchasing operator or owner by operation of the common law (or civil law in Quebec). For example, a civil lawsuit for environmental damage may be brought by another landowner whose property has been contaminated by the migration of pollutants. Such an action may be based on common law liability principles of nuisance, negligence, trespass, riparian rights or strict liability or on the general extra-contractual liability regime in Quebec.
For non-historical incidents of potential land contamination, such as a spill, release or other incident, environmental legislation imposes reporting and remediation obligations, which vary between jurisdictions. In some provinces this requirement is quite broad and can apply to a wide range of persons, including past and present owners and occupiers of land, those who have management or control over a property or undertaking, and those who owned or controlled a pollutant before it was released. It is possible for an entity to be charged with failing to report, even if ultimately it is determined that the environmental incident itself does not result in charges or a conviction.
3.1 - Provincial Land Contamination Regulation
Each of the provinces has legislation dealing with releases to the environment and land contamination.
3.1.1 - Alberta
In Alberta, the Environmental Protection and Enhancement Act (EPEA) is aimed at promoting “the protection, enhancement and wise use of the environment.” EPEA regulates the release of specific substances and imposes a reporting obligation on any person who “releases or causes or permits the release of [one of these substances] into the environment.” EPEA also regulates land contamination and remediation through the issuance of remediation certificates and environmental protection orders (EPOs). The EPEA director may issue an EPO requiring a person to take whatever measures the director deems necessary to deal with a release or potential release of a substance that may cause, is causing, or has caused an adverse effect. EPOs can be issued to a person in charge, management or control of a substance, including principals and agents.
3.1.2 - British Columbia
British Columbia’s Environmental Management Act (EMA), together with the Contaminated Sites Regulation (CSR), establishes a detailed regime for the identification, determination and remediation of contaminated sites, and the assessment and allocation of liability for remediation. Liability under the regime is absolute, retroactive, joint and separate.
Under the CSR, the owner or operator of a site where certain industrial and commercial activities have occurred is required to submit a site disclosure statement and perform a preliminary site investigation when the owner or operator, among other things, decommissions the site, ceases operations for 12 months, or applies for municipal approvals that involve soil disturbance. If the preliminary site investigation reveals areas of environmental concern, the owner or operator must complete a detailed site investigation to delineate the contamination.
Once a site is found to be contaminated, “responsible persons” will be responsible for remediation of the site and may be liable to anyone who has incurred costs to remediate the site unless an exemption from liability can be established. The term “responsible person” is broadly defined and includes current and past owners and operators of a site, plus transporters and producers of contaminants.
3.1.3 - Ontario
Ontario’s EPA is the principal legislation dealing with land contamination in that province. Where accidental spills or discharges of contaminants occur, the persons in control are obligated under the EPA to notify government agencies “forthwith” and to do everything practicable to clean up major spills and restore the natural environment. Pursuant to section 99 of the EPA, persons suffering loss or damage from a spill are entitled to compensation from the persons in control of the substances spilled without having to establish a duty of care, foreseeability, intent or fault. If the government incurs clean-up costs, it is able to recover these costs from the past or current owners and persons in control of the substances spilled. The EPA gives the power to the government to issue orders against and recover costs of the remediation from current or former owners or persons who are or were in control of the property, even in circumstances where that owner or person is not responsible for the contamination. Directors and officers are specifically obligated to exercise “reasonable care” to prevent their corporations from causing or permitting the discharge of contaminants into the environment.
The “record of site condition” (RSC) part of the EPA, Ontario Regulation 153/04, and certain related “brownfield” legislation in Ontario establish a voluntary remediation certification system for contaminated land. This involves filing an RSC when acceptable soil and groundwater standards are met and allows lenders, bankruptcy trustees and other fiduciaries to deal with contaminated land without assuming liability for historical environmental conditions. Landowners who complete an environmental site assessment or remediation of a property in accordance with the requirements of the EPA and file an RSC with the Ministry of Environment, Conservation and Parks (MECP), obtain protection from EPA environmental orders with respect to historic contamination. The RSC soil and groundwater standards vary depending upon the nature of the land use and the potability of the groundwater, among other things.
3.1.4 - Quebec
The Quebec Environment Quality Act (EQA) contains a framework for managing contaminated sites. The EQA requires a person who permanently ceases an activity that is designated in a regulation, or a person who changes the use of property on which a designated activity once occurred, to carry out a site assessment in accordance with Ministry of the Environment and the Fight against Climate Change (MEFCC) guidelines. If the site assessment indicates that soil or groundwater standards are exceeded, there is a requirement to provide the MEFCC with a remediation plan and an execution timetable for approval, and remediation must be carried out according to the approval plan. Pursuant to recent amendments to the EQA certain land rehabilitation work can be carried out by filing a declaration of compliance and a rehabilitation plan, and approval of the MEFCC is not required. The EQA recognizes the possibility of carrying out remediation by way of a risk assessment for certain types of contamination. In addition, if the site assessment establishes that standards are exceeded, a Notice of Contamination must be registered at the land registry. A Notice of Decontamination can be registered against title once a government-certified expert establishes that concentrations of contaminants onsite no longer exceed regulatory criteria. Where an approved risk assessment rehabilitation is carried out, a Notice of Land Use Restriction setting out limits on the future use of the property must be registered on title.
The EQA also requires a person to notify their neighbours if they become aware that contaminants resulting from designated activities are present in soil at the property limits or if there is a serious risk that contaminants in groundwater are migrating offsite that might affect the use of water. The EQA gives the MEFCC the power to order polluters or custodians of property to carry out site assessments and site remediation when the MEFCC is aware that contaminants either exceed regulatory limits or where there are no limits set for a contaminant that is likely to adversely affect the life, health, safety, welfare or comfort of human beings, other living species or the environment. Liability under these types of orders is joint and several. Defences available to innocent custodians of contaminated land facing an order from the MEFCC include: (1) they honestly did not know about the contamination; (2) they knew about the contamination, but they complied with the law and acted reasonably and diligently under the circumstances; or (3) the site was contaminated as a result of contamination migrating from a neighbouring property and the contamination was caused by a third party.
4. Water
Jurisdiction over water is shared between the federal and provincial governments. The federal government has jurisdiction to regulate the water in connection with its authority, for example, over navigable waters, shipping, fisheries and criminal law. The provinces exercise jurisdiction over provincial bodies of water in connection with their authority over, for example, management of provincial public lands and resources within their provincial borders.
4.1 - Federal Water Legislation
The federal Fisheries Act protects Canada’s fisheries by safeguarding both fish and fish habitat. The Act applies to both coastal and inland waters and is administered by the Department of Fisheries and Oceans (DFO) and by ECCC. The Act has frequently been used by the government to charge those responsible for water-polluting activities.
There are two key prohibitions under the Fisheries Act. First, the Act prohibits the deposit of any type of deleterious substance into waters frequented by fish. A “deleterious substance” is defined to include any substance that would degrade or alter, or contribute to the degradation or alteration of, the quality of water frequented by fish so as to render the water deleterious to fish or fish habitat. Second, the Act prohibits carrying out a work, undertaking or activity that results in serious harm to fish or fish habitat. DFO may issue authorizations to permit activities that would otherwise constitute serious harm to fish (and fish habitat). The 2019 amendments also include an expanded regulatory framework for authorizing otherwise prohibited activities.
4.2 - Provincial Water Legislation
Each of the provinces has legislation dealing with water rights and water pollution.
4.2.1 - Alberta
Alberta’s Water Act (WA) supports and promotes the conservation and management of water. Property in, and the rights to, the diversion and use of all water in Alberta is vested in the province. The definition of “water” is broad and includes all water on or under the surface of the ground, whether in liquid or solid state.
The WA provides for the development of water management areas and plans, and establishes an approvals, priority, and licensing regime. An approval will be required before a person uses or affects water in certain ways, including: by altering water flow, location or level; potentially causing siltation or erosion; or affecting aquatic life. Additionally, a party must have a licence before it diverts water for impoundment, storage or consumption, or takes or removes water for any purpose. The WA operates on a first in time, first in right principle, and older licence holders have full priority to their water supply over newer licence holders.
4.2.2 - British Columbia
In British Columbia, the Water Sustainability Act (WSA) establishes the licensing regime for surface water and groundwater use whereby holders of licences are permitted to divert and use water for the “purpose” specified in the licence; and to construct, maintain and operate the “works” authorized under the licence and necessary for the proper diversion, storage, distribution and use of the water or the power produced from the water. Certain users are exempted from the requirement to have a licence to use groundwater, including domestic users and specified oil and gas operations using “deep water” wells. The WSA also prohibits the deposit of debris into water in a manner that causes harm.
The Water Protection Act prohibits the removal of water from B.C. and the construction or operation of large-scale projects capable of transferring water from one watershed to another without a licence. The Drinking Water Protection Act regulates drinking water supply systems, establishing mechanisms for source protection and provides for greater public accountability of water suppliers. The Riparian Areas Protection Act establishes regulations regarding the protection of riparian areas that may be subject to residential, commercial or industrial development.
4.2.3 - Ontario
The Ontario Water Resources Act (OWRA) provides for the conservation, protection, and management of Ontario’s waters and for their efficient and sustainable use.
Under OWRA, no person is permitted to establish or operate a facility or works for the collection, transmission, treatment and disposal of sewage wastes (defined very broadly to include any industrial wastewater and all storm water) without first obtaining an environmental compliance approval.
The construction of water wells and the use or taking of any surface or groundwater above 50,000 litres a day is also regulated by OWRA, which requires such takings to be permitted by the MECP. Fees are imposed for some takings. Some water takings that would otherwise require a permit, such as eligible water takings related to highway projects and transit projects, construction site dewatering, and water taking for pumping tests can be carried out after registration of the activity on the Environmental Activity and Sector Registry.
The OWRA also makes it an offence to discharge, without approval, any substance to a local water body if the discharge “may impair the quality of the water.” Upon conviction for such an offence, the generator/discharger may be fined or imprisoned in accordance with the same penalty structure provided for under the EPA.
The Ontario Lakes and Rivers Improvement Act (LRIA) regulates the public and private use of lakes, rivers, and the land located under them by requiring a person wishing to construct, repair, or use a dam to obtain an approval under the Act. Operators of waterpower facilities may also be required under the Act to prepare or amend water management plans to ensure water levels and flows are kept within an appropriate range and that environmental, social, and economic concerns associated with the operation of water control features are addressed. The LRIA also prohibits the depositing of any substance or matter into a lake or river or onto their banks or shorelines if doing so would conflict with the purposes of the Act.
The Ontario Clean Water Act establishes areas to protect drinking-water sources. Such plans will guide and restrict development activities within the plan areas much like current provincial and municipal development plans.
4.2.4 - Quebec
Subject to certain specific exemptions, Quebec’s Environment Quality Act provides for the requirement to obtain approval for any withdrawal of water — defined as the taking of surface water or groundwater by any means — of 75,000 litres or more. Authorizations are generally valid for 10 years and government decisions regarding their issuance and renewal must give priority to public health needs and the environment. Certain exceptions are provided, including for bottled water. Regulations require payment of fees and the submission of a declaration of withdrawal for water takings in excess of 75 m3 per day.
A ministerial authorization issued pursuant to the EQA will generally be required for the establishment, alteration, or extension of a stormwater management system, sewer system, aqueduct, or wastewater treatment system. However, activities that pose a low environmental risk, such as modifications to existing stormwater management works, may be undertaken following the submission of a declaration of conformity by the project proponent.
Where someone discharges liquid wastes into a municipal sanitary sewer, they should become familiar with any applicable sewer use bylaw. Municipal sewer bylaws often restrict what may be discharged into local sanitary and storm sewers and, in some cases, require pollution prevention plans.
5. Waste Management
While most waste is regulated at the provincial level, the federal government has jurisdiction over the movement of waste and recyclable material in and out of the country as well as between provinces.
5.1 - Federal Waste Management Regulation
A number of regulations exist federally under CEPA regarding the movement of waste internationally and interprovincially. The Cross-Border Movement of Hazardous Waste and Hazardous Recyclable Material Regulations (Cross-Border Movement Regulations) implement Canada’s obligations under the Basel Convention and certain other international treaties or agreements aimed at controlling the international movement of such materials. Section 185 of CEPA requires that the minister be notified of any intended international shipment of hazardous wastes or hazardous recyclable materials. An international movement may consist of an export from Canada, an import into Canada, a transit through Canada, or a transit through a country other than Canada.
The notification requirements are set out in the regulations and include the requirement to provide prescribed information via a movement tracking system. Such information includes: the nature and quantity of the hazardous waste or hazardous recyclable material involved; the addresses and sites of the exporters, importers, and carriers; the proposed disposal or recycling operations of the hazardous waste or hazardous recyclable material; and a certified statement that valid insurance policies and written contracts between the exporters and importers are in place.
If the notification requirements set out in the regulations are met, ECCC notifies the authorities in the destination country. If any authority (including those in any transit countries) objects to the proposed shipment, the shipment cannot proceed until the objection is lifted. A permit may be granted following a review of the notice and approval from the authorities in the destination country.
The Cross-Border Movement Regulations govern the export of PCB waste by Canadian owners to the U.S. for treatment and destruction (excluding landfilling) when these wastes are in concentrations equal to or greater than 50 mg per kilogram. The regulations require that advance notice of proposed export shipments be given to ECCC. If the PCB waste shipment complies with the regulations, and authorities in any countries or provinces through which the waste will transit do not object to the shipment, a permit is sent from ECCC to the applicant authorizing the shipment to proceed.
The Cross-Border Movement Regulations require the completion of waste manifests prior to the movement of hazardous waste and hazardous recyclable material between provinces and territories within Canada.
5.2 - Provincial Waste Management Regulation
Each of the provinces has a waste approvals regime.
5.2.1 - Alberta
In Alberta, waste management is primarily legislated under EPEA and specific waste regulations, which regulate the recycling or disposal of various types of waste and how waste must be transported and processed. Some types of waste are subject to specific rules for environmental management, such as asbestos waste, biomedical waste, automotive waste, hazardous wastes and hazardous recyclables, and wastes which contain mercury.
5.2.2 - British Columbia
In British Columbia, the EMA establishes specific rules for the management of waste, including permitting and regulatory requirements for authorized waste activities, identification and handling of hazardous waste, spills and spill reporting, municipal waste management programs, product stewardship, and enforcement procedures and penalties. The product stewardship program called the “Extended Producer Responsibility” covers a large range of consumer products including electronics, packaging and printed paper, paint, tires, beverage containers, used oil, pesticides, batteries, solvents and flammable liquids and other miscellaneous residual products. Responsibility for the programs rests with the producers of the materials, who administer them under product stewardship plans. Typically, producers appoint non-profit entities to act as their agents for carrying out the programs. Most products are collected through curbside pick-up by local governments, or recycling depots scattered across the province.
5.2.3 - Ontario
In Ontario any business which collects, transports, treats or disposes of waste must obtain an environmental compliance approval from the MECP. In the case of “liquid industrial and hazardous wastes,” special rules apply. The generators of such waste must register each waste with the ministry and use prescribed waste manifests in respect of each shipment from the waste generation facility. Hazardous waste must be packaged and labelled in accordance with the federal Transportation of Dangerous Goods Act and the generator must confirm the delivery of a waste shipment at the intended receiving facility. If the liquid industrial or hazardous wastes are stored onsite for more than three months, the ministry must be notified and, in most cases, it will require assurances that the waste will ultimately be removed from the site.
The Ontario provincial government, under the authority of the Waste Diversion Transition Act and the Resource Recovery and Circular Economy Act, currently has several stewardship and extended producer responsibility (EPR) programs aimed at the end use of consumer products. The “Blue Box” recycling program applies to packaging and printed materials with respect to a variety of consumer products and affects all “brand holders” and “first importers” of products that generate plastic, paper, glass, metal or textile packaging waste. Where there is no Canadian brand holder or first importer, the retailer who supplied the product to the consumer will be responsible for fulfilling applicable requirements. A new Blue Box Regulation has been finalized and will replace the current Stewardship Ontario Blue Box Program, which relies on municipalities for the collection and recycling of blue box materials. This regulation will make producers fully responsible for collecting and reusing, refurbishing, or recycling their paper products and packaging, with the full ERP program transitioning into force between 2023 and 2025. As of July 1, 2023, municipalities and First Nations communities began to transition their blue box programs to the new framework, passing responsibility for collection, reuse and recycling to producers. Approximately one-third of Ontario municipalities will transition per year to the new independent producer-responsibility system. Similar waste diversion programs have already been extended to household hazardous wastes, electrical and electronic equipment, batteries, and tires. Producers subject to such legislation may meet their collection and recovery targets by contracting with producer responsibility organizations that act on behalf of multiple producers.
5.2.4 - Quebec
Regulations have been adopted in Quebec requiring manufacturers to take back used paint and paint containers, as well as used oil, used batteries, consumer electronics and fluorescent light bulbs. Companies that market printed materials or products containing containers and packaging are required to pay dues that are remitted to municipalities to finance the cost of curbside recycling programs. The Government of Quebec has recently enacted legislation designed to shift responsibility for collecting, sorting, and recycling these materials from municipalities to producers. Regulations concerning the modernization of the deposit and selective collection systems came into force on July 7, 2022; however, the transition to an ERP-based collection system will take place over three years from December 2022 until December 2025. Under the new ERP regulations, producers will be assigned performance targets for recovery and recycling of their materials. Two government-designated stewardship organizations, Éco Entreprises Québec (ÉEQ) and the Quebec Beverage Container Recycling Association (QBCRA), acting on behalf of producers, will be responsible for overseeing and managing the recovery, sorting and processing of covered products as well as preparing accountability reports. ÉEQ will be responsible for collection systems, while QBCRA will manage Quebec’s deposit system. Although certain curbside collection activities may still be managed by municipalities, a partnership agreement between the ÉEQ and municipal organizations will ensure that municipalities are reimbursed for the costs of such activities.
Standards are in place at the provincial level for the use, treatment and storage of hazardous waste (known as residual hazardous materials in Quebec).
6. Project Assessments
6.1 - Federal Project Assessment
The Impact Assessment Act (IAA) prohibits “designated projects” from proceeding unless:
the Impact Assessment Agency of Canada (Agency) concludes, following a pre-assessment planning phase, that an impact assessment is not required; or
the Minister of ECCC (or, in some cases, the federal cabinet) issues a decision statement approving the project following the completion of the impact assessment process.
In general, designated projects are major projects that the federal government believes have the greatest potential for significant adverse environmental effects.
When reviewing the impact assessment prepared by the project proponent, the Agency considers potential environmental, health, social and economic impacts of proposed projects. Both positive and adverse impacts are considered in the assessment. Potential impacts on Aboriginal treaty rights are also assessed and Indigenous groups are consulted on those potential impacts. The environmental effects considered by the Agency are those that impact components of the environment that are within the legislative authority of the federal government. Assessments are generally conducted by the Agency, although a review panel will perform the assessment under certain circumstances. Where a project falls within the jurisdiction of a lifecycle regulator, such as the Canadian Nuclear Safety Commission or the Canadian Energy Regulator (CER), an integrated panel comprised of the Agency and a commission established by the lifecycle regulator will assess the project. The CER has jurisdiction over the lifecycle of federal energy projects and participates in panel assessments of international electrical transmission lines, international or interprovincial pipelines, offshore renewable energy projects with more than 10 turbines, and interprovincial power lines designated under the Canadian Energy Regulator Act.
The end product of a federal impact assessment will include a “decision statement” issued under the IAA, either approving or rejecting the project. If approved, the decisions statement will stipulate conditions for the project to mitigate any negative effects that are directly linked or necessarily incidental to the power exercised by the federal authority. These conditions are binding and enforceable.
6.2 - Provincial Project Assessment
The provinces have also enacted project assessment legislation for proposed projects within their borders. Project assessment legislation increasingly contains provisions that, in combination with federal-provincial cooperation agreements, streamline or harmonize environmental assessments for projects that are subject to the IAA and one or more provincial assessment regime. Cooperation between jurisdictions can take the form of coordination of timelines and proponent requirements, delegation of some assessment tasks by the federal government to the provinces, substitution of the provincial assessment process for those of federal assessment agencies, or the creation of a joint review panel comprised of panel members from all relevant jurisdictions.
6.2.1 - Alberta
In Alberta, a project may be subject to provincial environmental assessment requirements under EPEA. In addition to EPEA, projects must comply with the provisions of the Alberta Land Stewardship Act (ALSA) which provides a statutory framework for the provincial government to give direction with respect to Alberta’s economic, environmental and social objectives, and to create policy that enables sustainable development through cumulative effects management. The ALSA divides Alberta into seven regions, and development decisions are considered in light of the overall impacts to a region. Each region will ultimately be subject to a regional plan based on its particular environmental, economic and social needs. Two regional plans have been finalized, and a third is in development.
6.2.2 - British Columbia
British Columbia has a range of legislation related to project approvals. The Environmental Assessment Act (BCEAA), which is administered by the B.C. Environmental Assessment Office (EAO), establishes a comprehensive process for the assessment of potentially adverse environmental, economic, social, heritage, and health effects that may occur during the lifecycle of major projects in British Columbia. Projects designated in the Reviewable Projects Regulation or designated as reviewable by ministerial order must undergo an environmental assessment and cannot proceed without an environmental assessment certificate, unless the EAO Executive Director exempts the project from the requirement for a certificate.
6.2.3 - Ontario
Under the Ontario Environmental Assessment Act (EAA), significant public projects proposed by the provincial and municipal governments as well as a small number of private sector undertakings are deemed to carry a higher likelihood of adverse environmental effects, such as certain waste management, electricity, and transit projects. The current EAA requires all “proponents” of an “undertaking” to which the EAA applies to conduct an environmental assessment and obtain the approval of the Minister of the Environment, Conservation and Parks unless the project falls within a class of undertakings exempted by regulation or is subject to a class environmental assessment (Class EA) already approved by the Minister. A Class EA is a streamlined EA process, involving self-assessment. It does not require the project to obtain ministerial approval but still necessitates the preparation of an environmental assessment and consultation with interested persons. A streamlined EA process can also be created by regulation, as is the case for certain waste management, electricity, and transit projects that would otherwise be required to undergo an individual environmental assessment.
If a project in Ontario is required to undergo an individual environmental assessment, at the very least, extensive environmental studies will be required to determine the project’s environmental impacts and consider the need for, and alternatives to, the undertaking. Some public consultation will be required and, in many cases, full public hearings are carried out before an independent tribunal known as the Environmental Review Tribunal. Where other government approvals are required, a consolidated public hearing may be held and the hearing can easily go on for a number of months.
The environmental assessment regime is currently in a transitional phase, as extensive amendments to the EAA have been enacted but have not yet been proclaimed into force. These amendments convert the existing framework of the EAA to one that ties the requirement to undertake an environmental assessment to whether or not a given project involves activities matching one of the project descriptions contained in a project list. Proposed regulations specifying which activities will require a comprehensive (i.e., individual) environmental assessment and those that require can proceed under a streamlined assessment process were posted on November 26, 2021 and then on March 10, 2023 in a revised form, but neither these regulations nor the EAA amendments have taken effect.
6.2.4 - Quebec
In Quebec, certain types of major projects classified as “high risk” and listed in Schedule 1 of the Regulation respecting the environmental impact assessment and review of certain projects must undergo an environmental impact assessment (EIA) and review process before the government may issue a ministerial authorization. The process can take about two years to complete and includes among other things the publication of a project notice, the preparation of an EIA, a public information period and, in some cases, may include public hearings before the Bureau d’audiences publiques sur l’environnement (BAPE), the office of public hearings on the environment. The recommendations of the BAPE must be taken into account by the Quebec government in making its decision to authorize or deny a project and in setting the conditions of a ministerial authorization.
The EQA contains a separate environmental and social impact assessment process for the James Bay and Northern Quebec Region which requires the involvement of Cree or Inuit representatives, and a decision by Cabinet. Projects that are subject to the EIA process were historically based on a closed list. Provisions of the EQA now grant the government the power, in exceptional circumstances, to designate a project that is not specifically listed by regulation as being subject to the environmental impact assessment and review procedure. The government can make such a designation when (1) in its opinion the project may raise major environmental issues and public concern warrants it; (2) the project involves a new technology or new type of activity in Quebec whose apprehended impacts on the environment are, in its opinion, major; or (3) in its opinion, the project involves major climate change issues.
7. Environmental Permitting
In addition to undergoing environmental assessment for approval, proposed projects in Canada must also often be otherwise licenced or permitted. The licensing or permitting system in Canada differs between each federal authority or provincial authority overseeing the specific project, with permits granted on a facility-wide basis in some cases and granted in association with particular activities (relating to air, water, soil and so on) in others. These approvals may be accompanied by conditions, which may concern certain infrastructure that is required at a facility, routine testing and reporting and basic contamination control measures. There are typically mechanisms for appeal, such a review by a government official, an administrative tribunal, or the relevant minister, and in some cases to the courts.
7.1 - Provincial Environmental Permitting Regimes
7.1.1 - Alberta
Alberta has a range of legislation regarding project licensing and permitting related to various industries. Most non-oil and gas industrial projects require environmental permits issued by the provincial government ministry Alberta Environment and Protected Areas (AEPA), while industry-specific facility permitting is overseen by a number of regulatory agencies or government entities. Mineral leases are issued and administered by the Ministry of Alberta Energy and Minerals, while major natural resource project permits for mining, forestry, water management and recreation projects that require an environmental assessment under EPEA are issued by the Natural Resources Conservation Board.
Permits and licences for natural gas transmission and electrical utility facilities are primarily legislated under the Hydro and Electric Energy Act and the Gas Utilities Act, which are administered by the Alberta Utilities Commission (AUC). A factor the AUC must consider when determining whether to issue a permit or licence for a project is the effect of the project on the environment. The AUC and AEPA have specific processes in place to consider and regulate the environmental effects of renewable energy projects.
The regulatory agency for the Alberta oil and gas industry is the Alberta Energy Regulator (AER), which is responsible for issuing oil and gas project permits and licences pursuant to various statutes that govern energy resource development in Alberta. The mandate of the AER includes environmental matters pertaining to upstream oil and gas development, including oil sands development, as well as energy-related resource extraction and intra-provincial pipeline projects. For projects under its regulatory oversight, the AER is responsible for administering requirements and issuing permits and licences under the EPEA and the WA.
7.1.2 - British Columbia
Environmental permitting of activities in British Columbia primarily falls under the EMA, which prohibits the introduction of waste into the environment except in accordance with a permit, regulation, or code of practice. The Waste Discharge Regulation prescribes the activities that may operate under a code of practice or that require permits. Some industries may be exempt from the permitting requirements under the EMA if they are authorized to operate under other legislation. The EMA permitting regime is principally administered by the Ministry of Environment and Climate Change Strategy. In some situations, the permitting under the EMA is delegated to other agencies such as the Oil and Gas Commission. The authorization of air emissions in the Greater Vancouver area is delegated to the Greater Vancouver Regional District.
The British Columbia Utilities Commission (BCUC) is an independent regulatory agency that operates under and administers the Utilities Commission Act (UCA). The BCUC’s responsibilities include the regulation of B.C.’s natural gas and electricity utilities as well as intra-provincial pipelines. A certificate of public convenience and necessity must be obtained from the BCUC before beginning the construction, operation or extension of a public utility plant or system.
The Forest and Range Practices Act sets the framework for a “results-based” forestry system on provincial public land. The Act and its regulations set environmental objectives for soils, timber, fish, biodiversity, cultural heritage, forage and associated plant communities, visual quality, water, wildlife, and resource and recreation features. Amendments proclaimed on November 25, 2021, introduce a new forest landscape planning process that enhances First Nation and local community participation in forestry decisions. They also require ministerial authorization for forest operation plans, which describe harvesting and road-building activities, and give the minister increased discretion to refuse to authorize plans that fail to meet provincial objectives. The Private Managed Forest Land Act (PMFLA) complements the Forest and Range Practices Act by establishing a mechanism for the regulation of forest practices on private land.
The Oil and Gas Activities Act (OGAA) regulates conventional oil and gas producers, shale gas producers and other operators of oil and gas facilities in B.C. The OGAA establishes the British Columbia Energy Regulator which has broad powers over permitting compliance and enforcement and the setting of technical safety and operational standards.
The Environmental Protection and Management Regulation under the OGAA establishes environmental objectives for water, riparian habitats, wildlife and wildlife habitat, old-growth forests, and cultural heritage resources. The Petroleum and Natural Gas Act regulates the tenures for sub-surface petroleum and natural gas rights in B.C. and requires proponents to obtain various other approvals before undertaking exploration or production work.
The Mines Act applies to all mines in B.C. during exploration, development, construction, production, closure, reclamation, and abandonment activities. Before starting any work in or about a mine, the owner, agent, manager, or any other person must hold a permit and have filed a plan outlining the details of the proposed work, as well as a program for the conservation of cultural heritage resources, and for the protection and reclamation of land, watercourses and cultural heritage resources affected by the mine.
7.1.3 - Ontario
In Ontario, whenever a contaminant is discharged into the air or water, or when waste is deposited on land, an environmental compliance approval (ECA) must first be obtained from the MECP.
Prior to issuing an ECA, the ministry generally requires detailed plans and modelling describing the discharge source, the expected off-site impact and the manner in which the level or concentration of contaminants discharged will be minimized. The ministry has increasingly required evidence that the owner or operator of the subject facility has identified the best available pollution control technology that is economically feasible. The ministry will also have regard to concentration limits that have been developed for specified contaminants and is aggressively pushing Ontario industries to continually reduce the levels of contaminants being discharged into the province’s air and water. Major facilities are subject to detailed wastewater discharge requirements, contained in both their approvals and industrial sector regulations.
In addition to the ECA permitting regime, there is also an Ontario Environmental Activity and Sector Registry (EASR) registration regime. EASRs are intended for certain prescribed low-risk activities, such as certain lower-impact water taking activities, the use and operation of heating systems and standby power systems, printing, small solar facilities, non-hazardous waste transportation systems and automotive refinishing. No specific approval is required for activities that fall within the EASR regime. All that is required is that the activity be registered with the MECP.
The Crown Forest Sustainability Act is the principal statute governing forestry activities in Ontario. The Act provides for the administration and regulation of forest management planning, forest resource agreements and licences, information management, reforestation, and revenue collection. The Ministry of Natural Resources and Forestry administers the Act and relies on several manuals to guide various aspects of forest management activities and ensure that provincial forests are managed in a sustainable manner consistent with the long-term objectives set out in forest management plans.
Mining activities in Ontario are governed by the Mining Act, which provides for the exploration, development, and rehabilitation of mines. Before proceeding with advanced exploration or mine production, the proponent must first file a closure plan that must be accepted by the Ministry of Northern Development, Mines, Natural Resources and Forestry. Such a plan will require a description of the proposed conditions and uses of the mine site and those that will exist after site closure. The plan must provide for the rehabilitation of tailings areas and detail all other necessary rehabilitation work. The MECP will likely be required to issue approvals under its legislation as well. The Ministry of Northern Development, Mines, Natural Resources and Forestry will also require some form of financial assurance that the closure plan will be carried out at the end of the mine’s life.
Recent amendments to the Mining Act enacted in May 2023 are intended to expedite the closure plan approval process, rather than the current process, which requires a technical review by the Ministry of Northern Development, Mines, Natural Resources and Forestry. The amendments empower the Minister to defer closure plan requirements until some specified date after filing and allow qualified persons to certify closure plans for filing. The amendments also permit mine proponents to submit phased financial assurance tied to the construction of new mine features, rather than providing the full estimated amount of rehabilitation measures in the closure plan in advance.
License obligations and rehabilitation requirements are imposed on stone, sand and gravel extractions under the Aggregate Resources Act. Oil, gas and salt extraction operations are regulated under the Oil, Gas and Salt Resources Act.
7.1.4 - Quebec
The EQA is the main environmental statute in the Province of Quebec. Together with its many regulations, it established a regulatory framework governing, among other things, the environmental authorization process, the environmental impact assessment scheme, the protection of water resources, air emissions and the fight against climate change, and contaminated land protection and rehabilitation.
The EQA makes it an offence to discharge or allow the discharge of a contaminant into the environment over and above limits set by regulation, that is prohibited by regulation or in a manner that negatively impacts human health, safety, welfare or comfort or that causes damage or impairment to soil, vegetation, wildlife or property. Accidental releases must also be reported to the MEFCC immediately.
Anyone who intends to undertake an activity in Quebec that may result in the release of a contaminant into the environment must first obtain a ministerial authorization from the MEFCC. Specific provisions apply to projects affecting wetlands and bodies of water.
Under the EQA, subject to a few exceptions, a single type of ministerial authorization is now required for a given project. In addition, projects are classified into different categories based on the environmental risks they present: high-risk, moderate, low-risk and negligible-risk activities. Depending on the assigned risk level, some projects will require an EIA process to be followed prior to authorization, whereas a declaration of compliance will be required for low-risk activities. Negligible-risk activities, established pursuant to regulation, will be exempt from an approval requirement. Environmental approvals are transferable upon simple notification to the minister.
Air emission control and wastewater treatment equipment are normally covered by authorizations issued by the MEFCC under the EQA. However, if a facility is located on the Island of Montréal, its air emissions and wastewater discharge are subject to standards set forth in bylaws of the Montréal Metropolitan Community (MMC).
Under the EQA, facilities in certain industrial sectors are subject to the requirement to obtain a ministerial authorization for the operation of an industrial establishment (previously a “depollution attestation”), a type of comprehensive environmental operating permit that must be renewed every five years. The three sectors currently subject to this requirement are pulp and paper mills, mining, and the primary metals industry. Emissions standards in depollution attestations are tailored to the facility and its receiving environment. Holders of attestations pay fees that are based on their emissions and are subject to requirements to monitor the effects of their emissions on the local environment.
The Mining Act governs the prospecting, exploration, and development of mineral substances in Quebec. It sets out the procedure for obtaining various mineral rights, the conditions for acquiring and maintaining them, as well as the authorizations required in order to carry on certain activities. It also sets out the situations in which a promoter is required to file a rehabilitation before commencing mine operations or significant exploration work and provide financial assurance to guarantee the execution of the anticipated rehabilitation work.
The Act respecting natural gas storage and natural gas and oil pipelines describes the regulatory regime for oil and gas pipelines and natural gas storage in Quebec. It is supplemented by regulations applying to the authorization of provincial pipeline construction or use and licensing of natural gas storage.
Under the provisions of the Sustainable Forest Development Act, the Ministère des Forêts, de la Faune et des Parcs (MFFP) is responsible for planning and managing the public forests, as well as for carrying out, monitoring and controlling operations in the forests. Authorizations are required for a variety of works and activities in forests.
The Petroleum Products Act is intended to ensure the continuity and security of the petroleum products supply in Quebec. Regulations under the Petroleum Products Act and related statutes set out standards governing the types of permitted petroleum products (oil and gasoline). Regulations adopted under the Building Act set standards for the use, monitoring and maintenance of petroleum storage tanks and other petroleum equipment, leaks and leak prevention, safety procedures, and government inspections and reporting, and permitting of high-risk petroleum products storage equipment.
8. Species Protection
The federal Species at Risk Act (SARA) identifies wildlife species considered at risk, categorizing them as threatened, endangered, extirpated or of special concern, and prohibits a number of specific activities related to listed species, including killing or harming the species, as well as the destruction of critical habitat that has been identified in any of the plans required under SARA. These include recovery strategies and action plans for endangered or threatened species and management plans for species of concern. Plans are developed by ECCC in partnership with the provinces, territories, wildlife management boards, First Nations, landowners, and others. SARA allows for compensation for extraordinary losses suffered by any person as a result of the prohibition against the destruction of critical habitat or the issuance of an emergency order to protect critical habitat. SARA provides for considerable public involvement, including a public registry and a National Aboriginal Council on Species at Risk that provides input at several levels of the process.
The protections in SARA apply throughout Canada to all aquatic species and migratory birds (as listed in the Migratory Birds Convention Act, 1994) regardless of whether the species are resident on federal, provincial, public, or private land. This means that if a species is listed in SARA and is either an aquatic species or a migratory bird, there is a prohibition against harming it, or its residence, throughout Canada, and the penalties for such harm can be substantial. For all other listed species, SARA’s protections only apply on federal lands, including National Parks and First Nations Reserves. However, SARA also contains provisions under which it can be extended to protect other species throughout Canada if the federal government is of the view that the provinces or territories are not adequately protecting a listed species.
The Migratory Birds Convention Act (MBCA) enacts an international agreement between Canada and the U.S. for the protection of migratory birds. Although most of the statute focuses on the regulation of harvesting or hunting, it also contains some environmental protection provisions. The MBCA prohibits the deposit of substances harmful to migratory birds in any waters or areas frequented by migratory birds, except as authorized by regulation. It also prohibits the disturbance of the nests of migratory birds except as authorized by regulation.
Some provinces have also enacted endangered species legislation. Most notably, Ontario has an extremely restrictive regime that can significantly affect development.
9. Enforcement
Individuals and corporations may be held liable for any damage to the environment, pursuant to either federal or provincial legislation, or both.
First, such liability may be quasi-criminal “regulatory” and enforced under federal or provincial criminal statutes. Upon conviction, an offence such as the discharge of waste will be accompanied by fines or jail terms. Some of these fines can be significant and escalate rapidly upon subsequent offences. Canada relies more heavily on the criminal process for environmental enforcement than many jurisdictions. Persons subject to quasi-criminal regulatory offences may minimize or avoid liability by asserting a due diligence defence.
Second, persons may be named in EPOs which may require them to undertake extensive repair, delineation, monitoring and remediation obligations. Once named in an EPO, it is extremely difficult for a person to succeed in removing themselves from the EPO. Compliance is often on a no-fault basis such that persons named in an EPO are generally precluded from asserting a due diligence defence.
Third, there are also administrative penalties which may be imposed without a full prosecution upon those who contravene certain environmental legislation. At the federal level, the Environmental Violations Administrative Monetary Penalties Act, and the Environmental Violations Administrative Monetary Penalties Regulations establish administrative penalties for specific offences under a variety of federal statutes. At the provincial level, in addition to fines stemming from a conviction of an offence, various provinces have established administrative “environmental penalties” that can be imposed very shortly after an environmental incident. This does not preclude the laying of charges. Liability under administrative penalties legislation is often referred to as absolute liability and persons subject to administrative penalties are often not able to assert any due diligence defence.
Under both federal and provincial statutes, enforcement officers have broad powers of investigation. They typically may issue orders to stop illegal activity or require actions to correct a violation, carry out inspections and, in certain circumstances, search and seizure.
The ranges of fines payable under environmental statues can be significant. For example, for a first offence under CEPA the penalties are as follows:
For individuals, between C$5,000 to C$1-million, and/or a term of imprisonment of up to three years
For small-revenue corporations, between C$25,000 to C$4-million
For all other persons and corporations, between C$100,000 to C$6-million
In all cases, mandatory minimum fines double for repeat offenders.
Other federal environmental legislation, and all provincial environmental legislation, provide for fines or jail terms for breaches, some quite significant. When imposing penalties, courts are required to consider specified aggravating factors to ensure that penalties reflect the gravity of the offence. CEPA imposes broad liability on officers and directors who “directed or influenced” the corporation’s policies or activities in respect of conduct that is the subject matter of the corporation’s offence. A public registry is used to maintain details of convictions of corporate offenders.
Fourth, there is also significant potential for civil liability under the common law and as a result of statutory causes of action. Civil liability may arise in a variety of circumstances, such as under tort law or in relation to defects in disclosure of environmental problems prior to a transaction. More specifically, the common heads of action under which environmental claims are brought are nuisance (unreasonable interference with the use and enjoyment of land), negligence (stemming from a failure to meet a standard of care and damage caused to a plaintiff), trespass and strict liability. Environmental protection laws in some provinces also create statutory causes of action that enable landowners whose property has been impacted by contamination caused by the acts or omissions of a polluter to claim compensation, irrespective of the polluter’s fault or negligence.
The Criminal Code of Canada contains provisions that address corporate liability and provide a basis for criminal charges to be brought against corporations and individuals in the event that an activity causes harm to persons or property and negligence or fault can be proven. Three provisions expand criminal responsibility so that it can be attributable to organizations in addition to individuals. For negligence offences, criminal intent will be attributable to an organization where one of its representatives (directors, partners, employees, members, agents or contractors) is a party to the offence and departs markedly from the standard of care that could reasonably be expected to prevent the commission of the offence. For offences where fault must be proven, an organization is a party to an offence if one of its senior officers is a party to the offence, or, while acting within the scope of his or her duty, directs other representatives of the organization to commit the offence, or fails to take all reasonable measures to stop the commission of the offence by a representative of the organization.