Canada: Environment @ Gowlings: August 25, 2010

Last Updated: August 26 2010

Edited by Harry Dahme


  • Senate Passes Budget Bill Amendments to Canadian Environmental Assessment Act
  • Canadian Environmental Assessment Agency Assumes 22 Comprehensive Studies
  • Batch 8 Substances - Final Decisions Released
  • Residential Indoor Air Quality Guidelines for Carbon & Ozone Released



  • Provincial Incentive Program for Commercial Lighting Retrofits


  • Environmental Protection and Management Regulation approved pursuant to the Oil and Gas Activities Act
  • Clean Energy Act: Exempt Projects, Programs, Contracts and Expenditures Regulation


  • New Minister of the Environment Appointed
  • Eco-fees suspended for 90 days
  • Ontario Power Authority Announces New MicroFITT Price for Ground Mounted-Solar
  • Environmental Commissioner Reports on MHSW Program
  • Toxics Reduction Act Provisions To Take Effect January 1, 2011


  • Regulation to Amend the Agricultural Operations Regulation
  • Sustainable Forest Development Act


Senate Passes Budget Bill Amendments to Canadian Environmental Assessment Act

Significant changes to the federal environmental assessment ("EA" ) process introduced quietly in March, as part of Bill C-9, have now become law.  These changes generated significant controversy, due to the means by which they were placed before Parliament.  Buried within a massive budget bill and subject to a vote of confidence, consideration of the amendments was constrained, and debate and scrutiny was limited.  Bill C-9 received Royal Assent on July 12, 2010.

Bill C-9 implements three key changes to the federal EA process.  First, the Minister of the Environment has been give the authority to determine the scope of a project for the purpose of conducting an EA, and that authority may be delegated to the Responsible Authority.  These amendments overrule a recent decision of the Supreme Court of Canada in Mining Watch Canada v. Canada (Fisheries and Oceans), [2010] 1 S.C.R. 6 ("Mining Watch"), which held that a Responsible Authority could not depart from the scope of project submitted by the project proponent for the purpose of carrying out an EA that was more limited in scope.  (In Mining Watch, the Responsible Authority had attempted to carry out a screening in relation to a project that was subject to the Comprehensive Study List Regulations, by focusing on tailing ponds and excluding the related mine and mill.  The Supreme Court ruled that this attempt to narrow the scope of the project was outside the Responsible Authority's statutory powers.)

The second key amendment in Bill C-9 removes the authority to conduct Comprehensive Studies from Responsible Authorities, and centralizes it within the Canadian Environmental Assessment Agency (the "Agency").  This change does not apply where the Responsible Authority is the National Energy Board or the Nuclear Safety Commission.  The Agency will exercise the powers and responsibilities of the RA until the Comprehensive Study is submitted to the Minister of the Environment pursuant to section 21.3 of CEAA.

Third, temporary exclusions from CEAA that had been granted on a time-limited basis to infrastructure projects have now been made permanent, with the exception that the Minister may require an EA if warranted.  Projects that are funded from any of the following programs are exempt, as long as they are not carried out within a national park, park reserve, national historic site or historic canal:  Building Canada:  Modern Infrastructure for a Strong Canada;  Canada Strategic Infrastructure Fund Act;  funds referenced in the Budget Implementation Act, 2009, s. 300 and 303 and initiatives referenced at sections 309 – 315 of that Act;  the Recreational Infrastructure Canada, Helping Municipalities Build Strong Communities, or Investments in First Nations Infrastructure Initiatives announced in Chapter 3 of Budget 2009;  the Border Infrastructure Fund, the initiative administered by the Canadian Mortgage and Housing Corporation to provide funding for energy retrofits and renovation of social housing units, and the Municipal Rural Infrastructure Fund announced in Budget 2003. 

For the full text of the amendments please see

Canadian Environmental Assessment Agency Assumes 22 Comprehensive Studies

As a result of the amendments passed as part of Bill C-9, the Canadian Environmental Assessment Agency ("Agency") became responsible for carrying out most comprehensive studies.  There are 22 comprehensive studies that were underway and for which the Minister of the Environment had not yet made a decision on the type of assessment;  these comprehensive studies have now been assumed by the Agency.  The list may be consulted at

Batch 8 Substances - Final Decisions Released

Environment Canada has published screening assessment results and final assessment decisions for thirteen of the fourteen substances in Batch 8 of the Industry Challenge.  Four of the thirteen substances assessed have been proposed for inclusion on the List of Toxic Substances ("Schedule 1").  These substances are:  Propane, 2-nitro-(2-Nitropropoane);  Benzene, 1-methyl-2-nitro-(2-nitrotoluene);  Phenol, 2,6-bis(1,1-dimethylethyl)-4-(1-methylproply);  and Methylium, [4-(dimethylamino)phyenyl]bis[4-(ethylamino)-3-methylphenyl]-,acetate.

The other nine substances assessed did not meet the criteria to be listed as CEPA toxic.   These substances are:  Methane, nitro-;  Glycine, N,N-bis(carboxymethyl)-;  Phenol, (1,1-dimethylethyl)-4-methoxy or butylated hydroxyanisole;  Benzene, 1, 3, 5,-tribromo-;  Benzene, 1,2,3,4-tetrachloro-5,6,-dimethoxy-;  Zinc, bis[O,O-bis(1,3-dimethylbutyl) phosphorodithioato-S,S']-;  Fatty acids, C6-19-branched, zinc salts;  Benzenepropanoic acid, 3,5-bis(1,1-dimethylethyl)-4-hydroxy-,(1,2-dioxo1,2-ethanediyl)bis(imino-2,1-ethanedityl)ester;  Phosphonium, triphenyl (phenylmethyl)-, salt with 4,4-[2,2,2,-trifluoro-1-(trifluoromethyl)ethylidene] bis[phenol] (1:1).

The screening decisions and summaries, together with further information on the Challenge program, may be accessed at

Residential Indoor Air Quality Guidelines for Carbon & Ozone Released

Health Canada has released new Residential Indoor Air Quality Guidelines for both ozone and carbon monoxide, which replace guidance provided in 1987. The maximum recommended residential exposure limit for carbon monoxide is now 11.5 mg/m3 or 10 ppm for a 24 hour period, and 28.6 mg/m3 or 25 ppm over a one hour period. The new exposure limit for ozone is 40 ug/m3 or 20 ppb over an 8 hour period.



Provincial Incentive Program for Commercial Lighting Retrofits

Alberta has launched a new incentive program for commercial premises interested in retrofitting in order to install energy-efficient lighting.  The potential rebates vary from $37,500 for warehouses to $375,000 for office spaces, the restaurants, multi-use residential buildings and retail locations each allocated specific caps per company.  The program is intended to reduce greenhouse gas emissions, and Alberta Minister of the Environment Rob Renner noted that "Lighting accounts for approximately 50 per cent of Alberta businesses' annual electricity use".  For further information see


Environmental Protection and Management Regulation approved pursuant to the Oil and Gas Activities Act

The Environmental Protection and Management Regulation ("Regulation") was approved on June 24, 2010, but is not yet in force.  The regulation, which applies only to Crown land, sets out the government's "environmental objectives" pursuant to section 1(2) of the Oil and Gas Activities Act, which is also not yet in force.  For example, the Regulation establishes restoration requirements in relation to oil and gas activities within former operating areas,

The Regulation places restrictions on the location of well sites, facilities and pipeline corridors in relation to environmental features including: water supply wells and water capture zones, waterworks and storage reservoirs, streams, lakes, wetlands, riparian reserve zones, wildlife habitat, old growth management areas.  The Regulation prohibits the deposit of deleterious substances and causing of adverse effects to the quality, quantity or flow of water in aquifers and waterworks.  The Regulation also sets out requirements in relation to stream, wetland and lake crossings, replacement of natural range barriers, and prevention of the establishment of invasive plants around well sites or facility areas.

Clean Energy Act: Exempt Projects, Programs, Contracts and Expenditures Regulation

The Exempt Projects, Programs, Contracts and Expenditures Regulation provides further definition, for the purposes of the Clean Energy Act, of the Northwest Transmission Line, and of the agreements with pulp and paper customers that are eligible for funding under Canada's Green Transformation Program.


New Minister of the Environment Appointed

On August 18, 2010, Premier McGuinty appointed John Wilkinson as Ontario's new Minister of the Environment.  Former Minister John Gerretsen moves to the Ministry of Consumer Services.

Eco-fees suspended for 90 days

The Ontario Power Authority has announced that a new price of 64.2 cents per kWh will apply to ground-mounted solar projects within the microFIT program (designed for small scale renewable projects of 10 kilowatts or less).  New applications will be accepted starting on August 20, 2010.

The adjusted price comes after much controversy and opposition from within the industry and from rural Ontario, after the initial proposal to reduce the price from 80.2 cents to 58.8 cents per kWh, a reduction of approximately 27%, caught program participants by surprise.  The OPA's stated intention was to even out the rate of return between roof-mount and ground-mount solar systems, but it came under criticism for underestimating the cost of ground-mount systems, and for applying the proposed price to applications already submitted, but not yet processed./p>

The compromise announced in August will see the new, lower price of 64.2 cents per kWh for applications received after July 2, 2010, and will leave the original price of 80.2 cents in place for projects with applications submitted prior to that date, whether or not an offer or conditional offer has been received.  Projects in queue prior to July 2, 2010 will have until May 31, 2011 to install their projects and request a connection before higher domestic content requirements become applicable.

The OPA has also announced that commercial aggregators will no longer be allowed to participate in the microFIT program.

Ontario Power Authority Announces New MicroFITT Price for Ground Mounted-Solar

In response to a storm of criticism over retailers charging incorrect "eco-fees" on household cleaners and paints in July, Minister Gerretsen suspended the collection of fees pursuant to the Consolidated Phase of the Municipal Hazardous or Special Waste Program (or "Orange Drop Program") for 90 days.  The suspension of fee payment obligations is effective until October 19, 2010, and was implemented by regulation (O. Reg. 298/10), which suspended the application of section 31(1) of the Waste Diversion Act, 2002.  During this 90-day period, the Ministry of the Environment is examining options for program re-design.

The pre-existing Phase I of the Orange Drop Program remains in effect, and fees remain due and payable for Phase I materials such as paint and single-use batteries.  Phase I material definitions remain in force, but the new higher fees that took effect as of July 1, 2010 are now being applied to Phase I materials.  Stewardship Ontario has delayed the deadline for Phase I reporting and fee payment for the third quarter of 2010 from July 31 to September 30.  For further information on Phase I reporting and fee payment please see Stewardship Ontario's e-Lert at:

Environmental Commissioner Reports on MHSW Program

In late July, the Environmental Commissioner of Ontario released a report entitled "Getting it Right:  Paying for the Management of Household Hazardous Wastes".  The ECO was supportive of the extended producer responsibility principle, that shifts waste disposal costs for household hazardous materials away from municipal taxpayers and onto the producers and users of such products.  However, the ECO had a number of critiques of the existing Orange Drop Program. 

First, the Orange Drop Program levies a single fee per material type, regardless of product design.  This means that the producer of a product that is easier to recycle or that contains fewer toxic materials, is charged the same fee as a product that is more difficult to recycle or contains more toxics.  The ECO suggests varied fees, or a move toward a more competitive system where multiple stewardship programs would exist and allow for variable stewardship fees. 

Second, the ECO noted that a significant portion of household hazardous waste is still directed to municipal landfills, rather than being diverted into the Orange Drop Program's collection infrastructure.  The ECO argues that the cost of managing the waste disposal at municipal landfills ought to be covered by producers, along with the cost of managing materials collected through the Orange Drop Program.

Toxics Reduction Act Provisions To Take Effect January 1, 2011

January 1, 2011 has been named as the date that sections 4(3) and 4(4) of the Toxics Reduction Act, 2009 ("Act") will take effect.  Subsections 4(3) and 4(4) require toxic substance reduction plans ("TSR Plan") to be certified, by a person qualified as prescribed by regulation, to confirm that certain estimates provided in the TSR Plan are accurate and that the TSR plan complies with the Act. 

O. Reg. 455/09 does not yet prescribe the qualifications required pursuant to sections 4(3) and 4(4).  However, the Ministry of the Environment posted proposed qualifications on the Environmental Registry in April of this year.  Fields considered relevant to TSRP included:  chemistry, biology, engineering, environmental management, environmental science, physics, toxicology, quality control, and worker health and safety, plus three to six years of work experience, or a degree in any field plus seven years of work experience.  For further information see


Regulation to Amend the Agricultural Operations Regulation

The Agricultural Operations Regulation, made pursuant to the Environment Quality Act, has been amended.  The amendments address issues including the conditions under which the operator of a raising site may store solid piles of manure in a cultivated field.  These conditions include a prohibition against contaminated water from the pile entering surface water, and a requirement to completely remove the pile within 12 months.  There are also amendments dealing with the preparation of agro-environmental fertilization plans, phosphorus reports, testing of manure piles for fertilizing content, record keeping, and conditions related to the spreading of agricultural waste.  For more detail please see the July 21, 2010 edition of the Gazette Officielle du Quebec, Vol. 142, No. 29

Sustainable Forest Development Act

On March 23, 2010 the National Assembly adopted on the Sustainable Forest Development Act ("Bill 57"), which will completely replace the present Forest Act as of April 1, 2013.  The goal of the legislation is ensuring the longevity of forests in the province through the implementation of sustainable forest planning, encouraging ecosystem-based development as well as integrated regional management of resources and forestry territory.  Bill 57 encourages accountability on the part of forest users and managers, and shared responsibility between the province, regional groups, aboriginal communities and forestry users.  The legislation also addresses monitoring and control of work performed in provincial forests, selling wood at a price that reflects its market value, maintaining wood-processing facilities, managing forest protection activities and giving more importance to private forests.

Bill 57 defines "ecosystem-based development" as development that ensures the preservation of the biodiversity and viability of ecosystems, by reducing the differences between developed and natural forests.  The objective is to involve various stakeholders in the integrated management of resources, to protect all elements of forestry territory.  The Minister of Natural Resources and Wildlife has to consult aboriginal communities to ensure that their interests are protected through sustainable forest planning.  The Minister must also make public a consultation policy in order to encourage public participation in forest management. 

As of April 1, 2013, all timber supply and forest management agreements and all forest management agreements presently granted under the Forest Act will be canceled.  The agreements, however, will continue to apply until the following obligations have been fulfilled:

  • Preparing and submitting to the Minister, before November 1, 2013 a report on the forests development activities carried out during the preceding year;
  • Applying the corrective programs established by the Minister;
  • Scaling harvested timber according to the instructions provided by the Minister; and
  • Paying the applicable dues and contributing to the forestry fund and to forest protection organizations.

Similar provisions of Bill 57 apply to other types of forests management contracts and to auxiliary timber supply guarantee agreements signed under the Forest Act. Section 337 of Bill 57 further provides that the cancellation of the agreements does not give agreement holders the right to an indemnity, except as regards infrastructure such as roads, bridges and forests camps, established by them under a plan approved by the Minister.  The Government shall grant agreement holders an indemnity deemed fair and equitable for the infrastructure expenses for which no subsidies or credits were granted.  The indemnity, according to Bill 57 shall be based on the net value of the infrastructure after depreciation, according to the book value entered in the accounting records of the enterprise and the vouchers submitted.  The indemnity may be paid to an agreement holder in a lump sum or be credited to the purchase of volume of timber from forests in the domain of the State or be paid in any other manner determined by the Government. 

The holder of a timber supply and forest management agreement will be entitled to a timber supply guarantee as set forth under Bill 57 if the holder applies for it in writing before January 1, 2012 and pays the required annual royalty before April 1, 2013.  The holder of a forest management agreement can also be entitled, under Bill 57, to be given the management of a land area identified as a local forest by April 1, 2013 and, for that purpose, to enter into an agreement under which the management of that land area is delegated to the agreement holder, if the agreement holder applies for it in writing before April 1, 2011.  During the process leading to the identification of a local forest, the Minister is required to consult the agreement holder to determine the latter's interest in the different places the holder would like to see identified as a local forest, but taking into account how close the area is to the territory of the municipality or the native community concerned.  Bill 57 provides that in the management delegation agreement, the Minister must try to maintain, as far as possible, a timber harvesting potential of a volume nearing that to which the agreement holder would have been entitled on April 1, 2013, had the agreement not been canceled.

Wood-processing plant operating permits issued under the Forest Act and in force on April 1, 2010 shall be deemed to be wood processing plant operating permits issued under Bill 57 and the holders of the said permits shall be governed by the provisions of the new act.  As mentioned that the outset, a significant portion of Bill 57 is not yet in force and will only become so as of April 1, 2013.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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