Published in Guide to the World's Leading Environment Lawyers, 2005.
Environmental law in Canada is a complex combination of federal, provincial and municipal regulation. For most matters, the provincial or territorial government will be the primary environmental regulator (with obvious exceptions, such as matters of national importance, and fisheries and oceans). For example, the Supreme Court of Canada has upheld the authority of a municipality, which derives its powers from the provincial government, to impose a bylaw restricting the use of pesticides for aesthetic purposes, even though pesticide use was already expressly regulated by both the federal and provincial governments (114957 Canada Limited (Spraytech) v Town of Hudson  2 SCR 241). This case also referred to the controversial issue of the precautionary principle.
The most commonly encountered federal environmental statutes are the Canadian Environmental Protection Act, 1999 (CEPA, 1999), the Fisheries Act and the Canadian Environmental Assessment Act. CEPA, 1999 encourages public participation in environmental decision-making; provides for a civil cause of action for a person who suffers or is about to suffer loss or damage as a result of conduct that contravenes CEPA, 1999; provides for the collection of certain emissions information, including the National Pollutant Release Inventory; and regulates toxic substances and substances that are imported or exported.
One tool provided under CEPA, 1999 that has been used sparingly to date is the environmental protection alternative measure, which can be used to deal with a person who has alleged to have committed an offence. If that person admits that an offence was committed, an agreement can be negotiated as an alternative to court prosecution. This allows a person to avoid a conviction, while at the same time ensuring that compliance is achieved and the person receives an appropriate penalty.
The controversial Species at Risk Act became law between December 2002 and June 2004. This legislation updated and extended existing protections for wildlife species and added new protection for critical habitats.
Climate change and the Kyoto Protocol remain highly controversial issues in Canada. Canada, a party of the Kyoto Protocol, committed to a 6% reduction from 1990 levels in the emissions of greenhouse gases between 2008 and 2012. Since 2004, certain companies have been required to report greenhouse gas emissions to Statistics Canada. Numerous federal and provincial initiatives have had, and will have, an effect on reducing greenhouse gas emissions. There has also been much discussion regarding emissions trading as a mechanism for using economic instruments to achieve reductions. On April 13 2005 the federal government launched the first phase of Project Green by releasing "Moving Forward on Climate Change: A Plan for Honouring our Kyoto Commitment".
Each province and territory has environmental protection legislation, such as Ontario’s Environmental Protection Act and Water Resources Act; British Columbia’s Environmental Management Act; Alberta’s Environmental Protection and Enhancement Act; and Quebec’s Environment Quality Act, to name a few.
Alberta and New Brunswick adopted legislation that allows them to impose administrative monetary penalties, which are used to impose financial penalties for relatively minor offences. Ontario has ratcheted this up by adopting, from New Jersey, environmental penalties that can be imposed on certain companies for unlawful spills. These penalties, which are expected to come into force in 2006, can be up to $100,000 a day, and are in addition to a prosecution that can then be launched that could result in a conviction and subsequent fine and/or imprisonment. Further, the defence that a company took all reasonable care to avoid committing the offence is not available for an environmental penalty, whereas it would be for a more conventional charge.
Governments across Canada are encouraging redevelopment of brownfield sites. For example, in Ontario, legislation was passed that provides certain protections if property is remediated to a certain standard. Several issues arise with respect to this protection; for example, it does not protect one against a civil action brought by a neighbour.
Personal liability for environmental protection continues to be a big issue. In Ontario and in the federal CEPA, 1999, a positive duty is imposed on officers and directors to take all reasonable care to prevent the commission of environmental offences. In Ontario, the legislation expressly imposes the obligation on the officer and director charged with an offence to prove that he or she took all reasonable care to comply with this obligation.
Hot Issues to Watch
The Crown’s ability to sue for compensation under its parens patriae authority with respect to environmental matters and environmental loss. In a case from British Columbia decided by the Supreme Court of Canada, the Court acknowledged that the Crown can receive compensatory remedies in its role as defender of the public interest, but cautioned that there are policy questions to consider, including the Crown’s potential liability for inactivity in the face of threats to the environment; the limits to the role, function and remedies of governments that take such action; and the imposition on private interests of an indeterminate liability for an indeterminate amount of money for environmental damage.
Duties to consult and to accommodate claims of Aboriginal rights or title are issues that the Supreme Court has opined on, with more expected to come.
Class actions are generally available in most provinces, but have not been permitted to proceed, in a number of recent high-profile cases, where the courts have decided not to certify environmental claims, in some cases because a class action would not be the preferable procedure for resolving the issues. Chapter 11 of the North American Free Trade Agreement is being used to bring claims for breach by a government of the requirement that investors from each of the three countries be treated similarly to domestic investors (for example, a case was successfully brought under Chapter 11 for damages resulting from the Canadian government’s ban on the export of PCB wastes to the US). Another hot issue relates to international environmental liability, such as in a case where the US government issued an order under US legislation (Superfund) purporting to require a Canadian company to undertake an extensive contamination study in accordance with US EPA standards, on the basis that the Canadian company was discharging contamination in Canada that ultimately flowed to the US and caused damages. The Canadian company, Teck Cominco, attempted to have the action dismissed, but a US court refused to do this when it concluded that the US EPA was not "attempting to tell Canada how to regulate" Teck Cominco’s contaminants. The Court stated that Teck Cominco must assist in cleaning up a mess in the US that it allegedly caused.
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.