Environmental Law
CLN4U
Environmental Law
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Environmental protection in Canada is not
within the exclusive jurisdiction of any one
level of government
Federal, Provincial, and Municipal
governments all have authority to pass
environmental legislation
Federal Laws
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Canadian Environmental Protection Act,
1999 (CEPA)
Fisheries Act
Species at Risk Act
Canadian Environmental Protection
Act, 1999 (CEPA)
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The primary environmental statute in Canada
Sustainable Development: “development that meets
the needs of the present without compromising the
ability of future generations to meet their own needs.”
Pollution Prevention: “the use of processes, practices,
materials, products, substances or energy that avoid
or minimize the creation of pollutants and waste and
reduce the overall risk to the environment or human
health.”
Canadian Environmental Protection
Act, 1999 (CEPA)
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Defines toxic substances
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Have or may have an immediate or long term harmful
effect on the environment or its biological diversity
Constitutes or may constitute a danger to the environment
on which life depends
Constitutes or may constitute a danger in Canada to human
life or health
Establishes “Environmental Registry” allowing
access to policies, regulations, notices, appeals,
approvals, objections, etc.
Canadian Environmental Protection
Act, 1999 (CEPA)
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Gives citizens the right to sue when an action
causes environmental harm
Action must be taken within two years from
the time the plaintiff becomes aware of the
alleged conduct
Plaintiff must prove case on a balance of
probabilities
Canadian Environmental Protection
Act, 1999 (CEPA)
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The Precautionary Principle: full scientific
proof is not necessary for environmental action
to be taken; the threat of damage is enough
The Polluter Pays Principle: Users and
producers of toxic substances are held
responsible for costs associated with regulating
these substances
Canadian Environmental Protection
Act, 1999 (CEPA)
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Criticisms:
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56 substances listed as toxic
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Limited number?
Slow screening process
Effective in combating point-source pollution, but
not non-point pollution
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i.e. drain pipe vs. runoff
Canadian Environmental Protection
Act, 1999 (CEPA)
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Enforcement:
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Use of enforcement officers
Can investigate matters under the act and make inspections
If a violation is found, may issue cease and desist order
Can order that a particular activity be stopped for a
specified period of time
Maximum fine of $1 million
Maximum prison term of 5 years
Penalties are typically well below the maximum (rarely jail
term)
Defendant must establish due diligence: took all reasonable
steps to comply with regulations
Fisheries Act
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administered by the Department of Fisheries and Oceans
prohibits putting harmful substances into fish habitat
no requirement of actual proof of harm to fish
prohibits any activity that results in “harmful alteration,
disruption or destruction of fish habitat”
maximum penalty: $1 million for first offence; subsequent
offences carry a maximum fine of $1 million and/or prison
term of up to 3 years
see R. v. Imperial Oil
Species at Risk Act
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Passed in 2002
Protects 233 endangered species
Administered jointly by: ministry of environment;
DFO; Canadian heritage ministry
3 purposes:
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Prevent Canadian wildlife species at risk from becoming
extinct or extirpated
Provide recovery for species at risk
Encourage the management of species in order to keep
them from becoming at risk
Species at Risk Act
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Under this act, anyone who harms or threatens
endangered animals can be prosecuted
Max penalties
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For-profit corporation: $1 million
Non-profit corporation: $250,000
Individual: $250,000 and/or up to 5 years
Bill C-45 (Omnibus Budget)
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“Streamlined” through House of Commons in 2012
Major component is the removal of “red tape” (i.e.
environmental regulations) that stand in way of
development
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Repeals the Canadian Environmental Assessment Act
Amends the Species at Risk Act and the Navigable Waters
Protection Act (removes protection of endangered species
and their habitat when approving pipeline projects)
Amends the Fisheries Act by removing provisions for
habitat protection
Why?
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Dec. 12, 2011 letter to Environment Minister
Peter Kent and Natural Resources Minister Joe
Oliver
From a group called the Energy Framework
Initiative (EFI)
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Canadian Association of Petroleum Producers
the Canadian Energy Pipeline Association
the Canadian Petroleum Products Institute
the Canadian Gas Association
Why?
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"The purpose of our letter is to express our shared views on
the near-term opportunities before the government to address
regulatory reform for major energy industries in Canada,"
The letter specifically mentions six laws that relate to the oil
and gas industry's ability to do its work:
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National Energy Board Act
Canadian Environmental Assessment Act
Fisheries Act
Navigable Waters Protection Act
Species at Risk Act
Migratory Birds Convention Act
Why?
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"At the heart of most existing legislation is a
philosophy of prohibiting harm:
'environmental' legislation is almost entirely
focused on preventing bad things from
happening rather than enabling responsible
outcomes. This results in a position of
adversarial prohibition, rather than enabling
collaborative conservation to achieve agreed
common goals,"
Provincial Environmental Laws
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Environmental Protection Act
Environmental Assessment Act
Environmental Bill of Rights
Safe Drinking Water Act
Environmental Protection Act
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regulates harmful substances
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contaminants
waste
vehicle emissions
ozone-depleting substances
ex: “no person shall discharge a contaminant
into the natural environment that causes to is
likely to cause an adverse effect.” S. 14 (1)
Adverse Effect
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Impairment of the quality of the natural environment
for any use that can be made of it
Injury or damage to property or to plant or animal life
Harm or material discomfort to any person
An adverse effect on the health of any person
Impairment of the safety of any person
Rendering any property or plant or animal life unfit
for human use
Loss of enjoyment of normal use of property
Interference with the normal conduct of business
Spills/Pollution
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Those who cause the spill have
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Pollution:
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A duty to report it to the MOE/municipality/person who
owns/controls the pollutant
A duty to act in order to mitigate the damage and restore
the environment
Sets limits on emissions of specific contaminants
Waste Management
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Requires certificates of approval for the waste
management/disposal sites
Environmental Assessment Act
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Applies to public/municipal undertakings
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Activities occurring on federal land or using federal money
would fall under the Canadian Environmental Assessment
Act
Environmental assessment must take place prior to
certain activities
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Waterfront improvements
Road building
Bridge construction
Hydro line placement
Landfill/waste disposal sites
Industrial expansion
Process
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Description of purpose and rationale for proposed undertaking
Description of alternative methods for carrying out
undertaking
Description of alternatives to the undertaking itself
Evaluation of the above alternatives
The anticipated environmental impact(s)
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Those that will occur
Those that might reasonably be expected to occur
Assessment of the actions necessary to prevent the above
impact(s)
Environmental Bill of Rights
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“The people of Ontario have a right to a healthful
environment.”
See goals on p. 409 of your textbook
Rights granted:
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Right to request investigation
Right to seek appeal of decisions reached
Right to sue
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Activity must have occurred or be imminent
Must cause significant harm to a public resource
Investigation must occur first
Action must be brought within 2 years
Safe Drinking Water Act, 2002
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Stems directly from Walkerton tragedy (7
deaths, 2300 illnesses)
Requires a standard of care for
owners/operators of municipal drinking water
systems
Municipal Authorities
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Waste management
Recycling
Sewage
Noise
Pesticides (see Spraytech v. Hudson p. 415)