environmental law cln4u. environmental protection in canada is not within the exclusive jurisdiction...

Environmental LawEnvironmental Law

CLN4UCLN4U

Environmental LawEnvironmental Law

Environmental protection in Canada is not Environmental protection in Canada is not within the exclusive jurisdiction of any one within the exclusive jurisdiction of any one level of governmentlevel of government

Federal, Provincial, and Municipal Federal, Provincial, and Municipal governments all have authority to pass governments all have authority to pass environmental legislationenvironmental legislation

Federal LawsFederal Laws

Canadian Environmental Protection Act, Canadian Environmental Protection Act, 19991999 (CEPA) (CEPA)

Fisheries ActFisheries Act Species at Risk ActSpecies at Risk Act

Canadian Environmental Protection Canadian Environmental Protection Act, 1999Act, 1999 (CEPA) (CEPA)

The primary environmental statute in CanadaThe primary environmental statute in Canada Sustainable Development: “development that meets Sustainable Development: “development that meets

the needs of the present without compromising the the needs of the present without compromising the ability of future generations to meet their own needs.”ability of future generations to meet their own needs.”

Pollution Prevention: “the use of processes, practices, Pollution Prevention: “the use of processes, practices, materials, products, substances or energy that avoid materials, products, substances or energy that avoid or minimize the creation of pollutants and waste and or minimize the creation of pollutants and waste and reduce the overall risk to the environment or human reduce the overall risk to the environment or human health.”health.”


Defines toxic substancesDefines toxic substances Have or may have an immediate or long term harmful Have or may have an immediate or long term harmful

effect on the environment or its biological diversityeffect on the environment or its biological diversity Constitutes or may constitute a danger to the environment Constitutes or may constitute a danger to the environment

on which life dependson which life depends Constitutes or may constitute a danger in Canada to human Constitutes or may constitute a danger in Canada to human

life or healthlife or health Establishes “Environmental Registry” allowing Establishes “Environmental Registry” allowing

access to policies, regulations, notices, appeals, access to policies, regulations, notices, appeals, approvals, objections, etc.approvals, objections, etc.


Gives citizens the right to sue when an action Gives citizens the right to sue when an action causes environmental harmcauses environmental harm

Action must be taken within two years from Action must be taken within two years from the time the plaintiff becomes aware of the the time the plaintiff becomes aware of the alleged conductalleged conduct

Plaintiff must prove case on a balance of Plaintiff must prove case on a balance of probabilitiesprobabilities


The Precautionary Principle: full scientific The Precautionary Principle: full scientific proof is not necessary for environmental action proof is not necessary for environmental action to be taken; the threat of damage is enoughto be taken; the threat of damage is enough

The Polluter Pays Principle: Users and The Polluter Pays Principle: Users and producers of toxic substances are held producers of toxic substances are held responsible for costs associated with responsible for costs associated with regulating these substancesregulating these substances


Criticisms:Criticisms: 56 substances listed as toxic56 substances listed as toxic

Limited number?Limited number? Slow screening processSlow screening process

Effective in combating point-source pollution, but Effective in combating point-source pollution, but not non-point pollutionnot non-point pollution

i.e. drain pipe vs. runoffi.e. drain pipe vs. runoff


Enforcement:Enforcement: Use of enforcement officersUse of enforcement officers Can investigate matters under the act and make inspectionsCan investigate matters under the act and make inspections If a violation is found, may issue cease and desist orderIf a violation is found, may issue cease and desist order Can order that a particular activity be stopped for a Can order that a particular activity be stopped for a

specified period of timespecified period of time Maximum fine of $1 millionMaximum fine of $1 million Maximum prison term of 5 yearsMaximum prison term of 5 years Penalties are typically well below the maximum (rarely jail Penalties are typically well below the maximum (rarely jail

term)term) Defendant must establish due diligence: took all reasonable Defendant must establish due diligence: took all reasonable

steps to comply with regulationssteps to comply with regulations

Fisheries ActFisheries Act administered by the Department of Fisheries and Oceansadministered by the Department of Fisheries and Oceans prohibits putting harmful substances into fish habitatprohibits putting harmful substances into fish habitat no requirement of actual proof of harm to fishno requirement of actual proof of harm to fish prohibits any activity that results in “harmful alteration, prohibits any activity that results in “harmful alteration,

disruption or destruction of fish habitat”disruption or destruction of fish habitat” maximum penalty: $1 million for first offence; subsequent maximum penalty: $1 million for first offence; subsequent

offences carry a maximum fine of $1 million and/or prison offences carry a maximum fine of $1 million and/or prison term of up to 3 yearsterm of up to 3 years

see see R. v. Imperial OilR. v. Imperial Oil

Species at Risk ActSpecies at Risk Act

Passed in 2002Passed in 2002 Protects 233 endangered speciesProtects 233 endangered species Administered jointly by: ministry of environment; Administered jointly by: ministry of environment;

DFO; Canadian heritage ministryDFO; Canadian heritage ministry 3 purposes:3 purposes:

Prevent Canadian wildlife species at risk from becoming Prevent Canadian wildlife species at risk from becoming extinct or extirpatedextinct or extirpated

Provide recovery for species at riskProvide recovery for species at risk Encourage the management of species in order to keep Encourage the management of species in order to keep

them from becoming at riskthem from becoming at risk

Species at Risk ActSpecies at Risk Act

Under this act, anyone who harms or threatens Under this act, anyone who harms or threatens endangered animals can be prosecutedendangered animals can be prosecuted

Max penaltiesMax penalties For-profit corporation: $1 millionFor-profit corporation: $1 million Non-profit corporation: $250,000Non-profit corporation: $250,000 Individual: $250,000 and/or up to 5 yearsIndividual: $250,000 and/or up to 5 years

Bill C-45 (Omnibus Budget)Bill C-45 (Omnibus Budget) ““Streamlined” through House of Commons in 2012Streamlined” through House of Commons in 2012 Major component is the removal of “red tape” (i.e. Major component is the removal of “red tape” (i.e.

environmental regulations) that stand in way of environmental regulations) that stand in way of developmentdevelopment Repeals the Canadian Environmental Assessment ActRepeals the Canadian Environmental Assessment Act Amends the Species at Risk Act and the Navigable Waters Amends the Species at Risk Act and the Navigable Waters

Protection Act (removes protection of endangered species Protection Act (removes protection of endangered species and their habitat when approving pipeline projects) and their habitat when approving pipeline projects)

Amends the Fisheries Act by removing provisions for Amends the Fisheries Act by removing provisions for habitat protectionhabitat protection

Why?Why?

Dec. 12, 2011 letter to Environment Minister Dec. 12, 2011 letter to Environment Minister Peter Kent and Natural Resources Minister Joe Peter Kent and Natural Resources Minister Joe OliverOliver

From a group called the Energy Framework From a group called the Energy Framework Initiative (EFI)Initiative (EFI) Canadian Association of Petroleum ProducersCanadian Association of Petroleum Producers the Canadian Energy Pipeline Associationthe Canadian Energy Pipeline Association the Canadian Petroleum Products Institutethe Canadian Petroleum Products Institute the Canadian Gas Associationthe Canadian Gas Association

Why?Why? "The purpose of our letter is to express our shared views on "The purpose of our letter is to express our shared views on

the near-term opportunities before the government to address the near-term opportunities before the government to address regulatory reform for major energy industries in Canada,"regulatory reform for major energy industries in Canada,"

The letter specifically mentions six laws that relate to the oil The letter specifically mentions six laws that relate to the oil and gas industry's ability to do its work:and gas industry's ability to do its work: National Energy Board ActNational Energy Board Act Canadian Environmental Assessment ActCanadian Environmental Assessment Act Fisheries ActFisheries Act Navigable Waters Protection ActNavigable Waters Protection Act Species at Risk ActSpecies at Risk Act Migratory Birds Convention ActMigratory Birds Convention Act

Why?Why?

"At the heart of most existing legislation is a "At the heart of most existing legislation is a philosophy of prohibiting harm: philosophy of prohibiting harm: 'environmental' legislation is almost entirely 'environmental' legislation is almost entirely focused on preventing bad things from focused on preventing bad things from happening rather than enabling responsible happening rather than enabling responsible outcomes. This results in a position of outcomes. This results in a position of adversarial prohibition, rather than enabling adversarial prohibition, rather than enabling collaborative conservation to achieve agreed collaborative conservation to achieve agreed common goals,"common goals,"

Provincial Environmental LawsProvincial Environmental Laws

Environmental Protection ActEnvironmental Protection Act Environmental Assessment ActEnvironmental Assessment Act Environmental Bill of RightsEnvironmental Bill of Rights Safe Drinking Water ActSafe Drinking Water Act

Environmental Protection ActEnvironmental Protection Act

regulates harmful substancesregulates harmful substances contaminantscontaminants wastewaste vehicle emissionsvehicle emissions ozone-depleting substancesozone-depleting substances

ex: “no person shall discharge a contaminant ex: “no person shall discharge a contaminant into the natural environment that causes to is into the natural environment that causes to is likely to cause an likely to cause an adverse effectadverse effect.” S. 14 (1).” S. 14 (1)

Adverse EffectAdverse Effect Impairment of the quality of the natural environment Impairment of the quality of the natural environment

for any use that can be made of itfor any use that can be made of it Injury or damage to property or to plant or animal lifeInjury or damage to property or to plant or animal life Harm or material discomfort to any personHarm or material discomfort to any person An adverse effect on the health of any personAn adverse effect on the health of any person Impairment of the safety of any personImpairment of the safety of any person Rendering any property or plant or animal life unfit Rendering any property or plant or animal life unfit

for human usefor human use Loss of enjoyment of normal use of propertyLoss of enjoyment of normal use of property Interference with the normal conduct of businessInterference with the normal conduct of business

Spills/PollutionSpills/Pollution

Those who cause the spill haveThose who cause the spill have A duty to report it to the MOE/municipality/person who A duty to report it to the MOE/municipality/person who

owns/controls the pollutantowns/controls the pollutant A duty to act in order to mitigate the damage and restore A duty to act in order to mitigate the damage and restore

the environmentthe environment Pollution:Pollution:

Sets limits on emissions of specific contaminantsSets limits on emissions of specific contaminants Waste ManagementWaste Management

Requires certificates of approval for the waste Requires certificates of approval for the waste management/disposal sitesmanagement/disposal sites

Environmental Assessment ActEnvironmental Assessment Act

Applies to public/municipal undertakingsApplies to public/municipal undertakings Activities occurring on federal land or using federal money Activities occurring on federal land or using federal money

would fall under the would fall under the Canadian Environmental Assessment Canadian Environmental Assessment ActAct

Environmental assessment must take place prior to Environmental assessment must take place prior to certain activitiescertain activities Waterfront improvementsWaterfront improvements Road buildingRoad building Bridge constructionBridge construction Hydro line placementHydro line placement Landfill/waste disposal sitesLandfill/waste disposal sites Industrial expansionIndustrial expansion

ProcessProcess Description of purpose and rationale for proposed undertakingDescription of purpose and rationale for proposed undertaking Description of alternative methods for carrying out Description of alternative methods for carrying out

undertakingundertaking Description of alternatives to the undertaking itselfDescription of alternatives to the undertaking itself Evaluation of the above alternativesEvaluation of the above alternatives The anticipated environmental impact(s)The anticipated environmental impact(s)

Those that will occurThose that will occur Those that might reasonably be expected to occurThose that might reasonably be expected to occur

Assessment of the actions necessary to prevent the above Assessment of the actions necessary to prevent the above impact(s)impact(s)

Environmental Bill of RightsEnvironmental Bill of Rights

““The people of Ontario have a right to a healthful The people of Ontario have a right to a healthful environment.”environment.”

See goals on p. 409 of your textbookSee goals on p. 409 of your textbook Rights granted:Rights granted:

Right to request investigationRight to request investigation Right to seek appeal of decisions reachedRight to seek appeal of decisions reached Right to sueRight to sue

Activity must have occurred or be imminentActivity must have occurred or be imminent Must cause significant harm to a public resourceMust cause significant harm to a public resource Investigation must occur firstInvestigation must occur first Action must be brought within 2 yearsAction must be brought within 2 years

Safe Drinking Water Act, 2002Safe Drinking Water Act, 2002

Stems directly from Walkerton tragedy (7 Stems directly from Walkerton tragedy (7 deaths, 2300 illnesses)deaths, 2300 illnesses)

Requires a standard of care for Requires a standard of care for owners/operators of municipal drinking water owners/operators of municipal drinking water systemssystems

Municipal AuthoritiesMunicipal Authorities

Waste managementWaste management RecyclingRecycling SewageSewage NoiseNoise Pesticides (see Pesticides (see Spraytech v. Hudson Spraytech v. Hudson p. 415)p. 415)

environmental law cln4u. environmental protection in canada is not within the exclusive jurisdiction...

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