1. Environmental Law
CLN4U

2. Environmental Law
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

3. Federal Laws Canadian Environmental Protection Act, 1999 (CEPA)
Fisheries Act
Species at Risk Act

4. Canadian Environmental Protection Act, 1999 (CEPA)
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.”

5. Canadian Environmental Protection Act, 1999 (CEPA)
Defines toxic substances
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.

6. Canadian Environmental Protection Act, 1999 (CEPA)
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

7. Canadian Environmental Protection Act, 1999 (CEPA)
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

8. Canadian Environmental Protection Act, 1999 (CEPA)
Criticisms:
56 substances listed as toxic
Limited number?
Slow screening process
Effective in combating point-source pollution, but not non-point pollution
i.e. drain pipe vs. runoff

9. Canadian Environmental Protection Act, 1999 (CEPA)
Enforcement:
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

10. Fisheries Act 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

11. Species at Risk Act Passed in 2002 Protects 233 endangered species
Administered jointly by: ministry of environment; DFO; Canadian heritage ministry
3 purposes:
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

12. Species at Risk Act
Under this act, anyone who harms or threatens endangered animals can be prosecuted
Max penalties
For-profit corporation: $1 million
Non-profit corporation: $250,000
Individual: $250,000 and/or up to 5 years

13. Bill C-45 (Omnibus Budget)
“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
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

14. Why?
Dec. 12, 2011 letter to Environment Minister Peter Kent and Natural Resources Minister Joe Oliver
From a group called the Energy Framework Initiative (EFI)
Canadian Association of Petroleum Producers
the Canadian Energy Pipeline Association
the Canadian Petroleum Products Institute
the Canadian Gas Association

15. Why?
"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:
National Energy Board Act
Canadian Environmental Assessment Act
Fisheries Act
Navigable Waters Protection Act
Species at Risk Act
Migratory Birds Convention Act

16. Why?
"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,"

17. Provincial Environmental Laws
Environmental Protection Act
Environmental Assessment Act
Environmental Bill of Rights
Safe Drinking Water Act

18. Environmental Protection Act
regulates harmful substances
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)

19. Adverse Effect
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

20. Spills/Pollution Those who cause the spill have Pollution:
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
Pollution:
Sets limits on emissions of specific contaminants
Waste Management
Requires certificates of approval for the waste management/disposal sites

21. Environmental Assessment Act
Applies to public/municipal undertakings
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
Waterfront improvements
Road building
Bridge construction
Hydro line placement
Landfill/waste disposal sites
Industrial expansion

22. Process 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)
Those that will occur
Those that might reasonably be expected to occur
Assessment of the actions necessary to prevent the above impact(s)

23. Environmental Bill of Rights
“The people of Ontario have a right to a healthful environment.”
See goals on p. 409 of your textbook
Rights granted:
Right to request investigation
Right to seek appeal of decisions reached
Right to sue
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

24. Safe Drinking Water Act, 2002
Stems directly from Walkerton tragedy (7 deaths, 2300 illnesses)
Requires a standard of care for owners/operators of municipal drinking water systems

25. Municipal Authorities
Waste management
Recycling
Sewage
Noise
Pesticides (see Spraytech v. Hudson p. 415)