Federal environmental law developments
make headlines in Canada
The Global Mining Group
Several federal environmental law developments have taken place in the federal sphere.
These developments include a str onger mandate from the Supreme Court of Canada to
regulate activities that may pollute the environment, a new federal legislative strategy and
two conflicting court decisions interpreting the scope of federal environmental assessment.
The Hydo-Québec decision: a question of jurisdiction
Environmental protection in Canada has always been an area of shared jurisdiction with
legislation in place at both the federal and the provincial level. While federal environmental
legislation has generally been unchallenged in respect of areas that are clearly within federal
jurisdiction (for example, fisheries and oceans), the jurisdiction of the federal government to
regulate matters that take place solely within a province has not always been as clear.
Accordingly, when Hydro-Québec spilled a small quantity of PCB contaminated liquid and
was charged under the Canadian Environmental Protection Act (CEPA) , it defended itself by
arguing that environmental regulation is a provincial matter and that the federal government
does not have jurisdiction under the Constitution to legislate in that area.
The Supreme Court of Canada decided in favour of the federal government (R. v HydroQuébec [1997] 3 S.C.R. 213) . The Court ruled that environmental offences are so serious
that the federal government is entitled to pass legislation to prohibit such conduct using its
constitutional authority to prohibit criminal conduct. The reasons of the Supreme Court are
worth repeating:
The protection of the environment has become one of the major challenges of our time. To respond to this
challenge, governments and international organizations have been engaged in the creation of a wide variety of
legislative schemes and international structures.
...a fundamental and widely shared value is indeed seriously contravened by some environmental pollution, a
value which we will refer to as the right to a safe environment.
Stewardship of the environment is a fundamental value of our society and Parliament may use its criminal
law power to underline that value.
The effect of this decision has yet to be seen. It is expected, however, that Environment
Canada will more vigorously prosecute environmental offences given this confirmation of its
jurisdiction, and the clear message from the Court that environmental offences are to be
taken very seriously.
The new Environmental Protection Act is passed
The Canadian Environmental Protection Act (CEPA) was originally passed by the Mulroney
government in 1988, and has been credited with making possible a number of advances in
environmental protection in the last decade including the elimination of leaded gasoline, a
substantial reduction in the use of ozone depleting substance and a substantial reduction in
dioxin and furan discharges.
After the 1997 election, the federal government introduced a new CEPA. Some highlights
of the Act include:
· stronger enforcement provisions, including new measures that provide for
inspection warrants, stop orders, new sentencing criteria and new sentencing provisions
that allow for fines equal to the profit resulting from the offence;
· stronger pollution prevention measures including streamlining of the assessment of
toxic substances and the virtual elimination of the most dangerous toxic substances;
· citizens being given the right to bring civil actions in the case of serious damage to
the environment if the government does not enforce CEPA;
the government being given the authority to control motor vehicle emissions; and
stronger protection for “whistle-blowers.”
The new Act was passed by the House of Commons in June of this year, however, it is not
certain that it will ever come into force. Some Senators are unhappy with the Act, which
they perceive to be pro-industry, and the Minister of the Environment has stated that he will
let the Act die (allowing the old CEPA to continue) rather than further extend the six-year
review process that led to the new Act.
If the new CEPA does come into force then, as with any new legislation, the impact will not
be known until the related regulations are made and the government has had the
opportunity to demonstrate whether it is committed to enforcement. It is reasonable to
assume, however, that given the recent increase in the profile of Environment in Cabinet,
and with the Supreme Court of Canada’s affirmation of the federal government’s role in
environmental protection, that the new CEPA will have a significant impact upon business
in Canada.
Conflicting decisions generate uncertainty over Act
Two decisions recently handed down by the Federal Trial Court illustrates different
interpretations of a similar issue under the Canadian Environmental Assessment Act (CEAA).
These two decisions are Friends of the West Country Association v. Canada (Ministry of Fisheries and
Oceans) , better known as the Sunpine decision, and Manitoba’s Future Forest Alliance v. Canada
(Minister of the Environment), known as the Tolko decision. The facts of the two cases are
remarkably similar: in each case, a forestry company had gone through an environmental
assessment at the provincial level (the former in Alberta, the latter in Manitoba). In each
case, a federal screening environmental assessment was conducted in respect of a bridge
over a navigable waterway. In each case, licences for the bridges were granted and an
environmental group challenged the licences.
Reliance was placed on provisions of the CEAA which require that, when an assessment is
done of a physical work, the assessment include not just the physical work but “every
construction, operation, modification, decommissioning, abandonment or other undertaking
in relation to that physical work” that is proposed. In these two cases, the groups challenged
the licenses on the grounds that the assessment should not have concentrated on the bridges
(i.e. shore to shore) but should have considered the entire forestry operations of the
companies building the bridges. Hanging in the balance in the Tolko case was a 13 year
license to harvest over 11 million hectares of land as a result of the construction of a 22
metre single span wooden bridge.
In the Sunpine case, the Court agreed with the group challenging the assessment of the
bridge. The Court noted that a bridge does not exist in isolation: it requires roads,
approaches and other works. Accordingly, an assessment from shore to shore was not
sufficient. The Court ruled that, at a minimum, the roads leading to the bridge and the
bridge approaches should have been considered. The licence for the bridge was quashed
and a new assessment ordered.
In the Tolko case, decided in June of this year, the Court refused to follow the Sunpine
decision. The Court ruled that if Sunpine were to be followed, then everything physically
connected to the bridge would have to be assessed. The Court took a narrower view of the
Act holding that only the works made necessary by the project under review need be
considered as part of the same review. In this case, as neither permanent roads or the
forestry operations were necessary to build the bridge, no broader review was required.
These decisions, from different judges of the same Court, directly contradict one another.
Accordingly, further guidance either by way of a decision of a higher court or by way of an
amendment to the CEAA will be required before there will be any certainty as to the proper
scope of review under the CEAA.