Canada: Environment @ Gowlings - September 2005

Last Updated: November 14 2005

Edited by Ms Katherine van Rensburg

Federal News

  • Update on Environment Canada's Competitiveness and Environmental Sustainability Framework: Sector Sustainability Tables
  • New Substances Notification Regulations Finalized
  • Greenhouse Gases to be Added to List of Toxic Substances under CEPA, 1999

News From The Provinces

Ontario:

  • Ministry of Natural Resources Launches Tips Line

Recent Cases

  • Supreme Court Allows British Columbia to Sue Tobacco Industry for Health Care Costs

What's Happening

  • Brownfields, Sustainable Urban Solutions - Harry Dahme
  • IBA Conference- David Estrin
  • Canada-China Environmental & Renewable Energy Business Opportunities - Ian Richler
  • CCEAM Seminars in Calgary & Vancouver- Katherine van Rensburg

Federal News:

Update on Environment Canada's Competitiveness and Environmental Sustainability Framework: Sector Sustainability Tables

In September 2004, the federal government launched an initiative called the Competitiveness and Environmental Sustainability Framework (CESF), which is designed "to attain the highest level of environmental quality as a means to enhance the health and well-being of Canadians, preserve our natural environment, and advance our long-term competitiveness."

One way Environment Canada is implementing the CESF is through the creation of "Sector Sustainability Tables", which will be a permanent forum for stakeholders such as industry, Aboriginal organizations and non-governmental organizations to provide policy-makers from the federal government and participating provincial and territorial governments with advice on how best to achieve the goals of the CESF.

To begin the process of designing and establishing the Sector Tables, the Clerk of the Privy Council has named co-chairs for four Tables:

Mining Sector Sustainability Table:

  • Richard Ross, Chairman and CEO, Inmet Mining Corporation
  • Alan Nymark, Deputy Minister, Human Resources and Skills Development Canada

Energy Sector Sustainability Table:

  • Gerry Protti, Executive Vice-President, EnCana Corporation
  • Larry Murray, Deputy Minister, Fisheries and Oceans Canada

Chemicals Sector Sustainability Table:

  • Steve Griffiths, Vice-President and General Manager, Imperial Oil Limited
  • Suzanne Hurtubise, Deputy Minister, Industry Canada

Forestry Sector Sustainability Table:

  • Still to be decided
  • Mark Carney, Senior Associate Deputy Minister, Finance Canada

In addition to these four Sector Tables, a fifth Cross-Cutting Issues Table (CCIT) will be established to support the work of the four Sector Tables. The CCIT will look at issues that impact and overlap across the various Sector Tables. The CCIT will be chaired by:

  • Elizabeth May, Sierra Club of Canada
  • Samy Watson, Deputy Minister, Environment Canada
  • Morris Rosenberg, Deputy Minister, Health Canada

The membership of the CCIT will include the co-chairs of each of the Sector Tables, a representative group from the membership of the Tables, and other experts, as necessary.

The co-chairs of each Sector Table have been tasked with setting up a design team to formally establish their Tables and to establish "terms of reference" for each Table. In doing so, the co-chairs and their design teams will consider suggestions from a range of stakeholders, including industry, environmental NGOs, Aboriginal Peoples, and others. Stakeholders wishing to participate in a Sector Table should contact the co-chairs of the Table.

The four Sector Tables are progressing at different rates. At present, the Energy and Mining Tables are the most advanced, with their design phases virtually completed, their terms of reference in the process of being approved, and their memberships being finalized. The first meetings of the Energy and Mining Tables are scheduled for October 27, 2005 and November 8, 2005, respectively. The Chemicals Table is still in the process of establishing its membership and terms of reference, but the first meeting of the Table is tentatively scheduled for November 22, 2005. The Forestry Table is the least advanced, and has not yet met to discuss their terms of reference. The Clerk of the Privy Council has indicated a desire to take stock of progress with the co-chairs of the Tables in early 2006.

A Sector Sustainability Tables Secretariat has been established to provide organizational and logistical support to the Tables and their Working Groups. The Secretariat is in the process of establishing a public website where all meeting agendas, recommendations and reports on progress will be posted on an ongoing basis. This website is expected to be established in mid-October 2005. The Director of the Secretariat is Okenge Morisho.

New Substances Notification Regulations Finalized

On August 30, 2005, the federal Cabinet approved the final version of the New Substances Notification Regulations (Chemicals and Polymers) and the New Substances Notification Regulations (Organisms). These were published in the Canada Gazette, Part II on September 21, 2005 and will come into force on October 31, 2005. As we reported in the November 2004 issue of Environment@Gowlings, these two new regulations will replace the current New Substances Notification Regulations under the Canadian Environmental Protection Act, 1999 . Like the current Regulations, they are designed to ensure that no new substance is introduced to the Canadian marketplace before its potential environmental and health effects are assessed.

The new Regulations can be accessed at:
http://canadagazette.gc.ca/partII/2005/20050921/html/sor247-e.html.

 

Greenhouse Gases to be Added to List of Toxic Substances under CEPA, 1999

On September 3, 2005, a proposed order adding six greenhouse gases – carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons and sulphur hexafluoride – to Schedule 1 of the Canadian Environmental Protection Act, 1999 ("CEPA, 1999") was published in the Canada Gazette, Part I . Once this order is finalized, it will allow the government to proceed with its plan to regulate emissions of these gases, including those by "Large Final Emitters". The order comes in the wake of a federal report that concluded that these gases constitute or may constitute a danger to the environment on which life depends, and thus qualify as "toxic" under CEPA, 1999 (see the July 2005 issue of Environment@Gowlings for an overview of the report).

For more information see:
http://canadagazette.gc.ca/partI/2005/20050903/html/regle4-e.html.

News From The Provinces - Ontario

Ministry of Natural Resources Launches Tips Line

On September 27, 2005, the Ontario Ministry of Natural Resources unveiled a new toll-free phone line to enable members of the public to report suspected violations of natural resources laws. The Ministry asks anyone who spots illegal activities involving fish and wildlife, forests, parks, aggregates or public lands to call 1-877-TIPS-MNR.

For more information see:
http://www.mnr.gov.on.ca/MNR/csb/news/2005/sep27bg_05.html.

Recent Cases

Supreme Court Allows British Columbia to Sue Tobacco Industry for Health Care Costs

In a unanimous judgment written by Justice Major, released on September 29, 2005, the Supreme Court of Canada upheld the constitutional validity of British Columbia's Tobacco Damages and Health Care Costs Recovery Act ("the Act"). The landmark decision authorizes the BC government to sue tobacco companies to recover the money it spent on health care as a result of its population's exposure to cigarette smoke. The implications of this decision could extend well beyond the tobacco industry, as it could open the door to similar claims against other industries whose operations or products are alleged to cause adverse health effects.

The Act states that the government can recover the cost of health care benefits for particular individuals or on an aggregate basis (i.e. for a wider population of people exposed to tobacco products). Significantly, the Act operates retroactively: the government can recover damages for the health effects caused by the products of the tobacco companies prior to the enactment of the legislation.

Moreover, the Act contains a number of procedural and evidentiary advantages for the government. For example, where the government pursues a claim on an aggregate basis, it need not identify particular members of the population on which it bases its claim, nor must it prove what caused tobacco-related disease in any particular individual or how much it spent on health care for any particular individual. The Act also reverses the burden of proof for some elements of an aggregate claim. As the Court stated:

Once the government proves that

  1. the defendant manufacturer breached a common law, equitable or statutory duty or obligation it owed to persons in British Columbia who have been or might become exposed to cigarettes;
  2. exposure to cigarettes can cause or contribute to disease; and
  3. during the manufacturer's breach, cigarettes manufactured or promoted by the manufacturer were offered for sale in British Columbia,

the court will presume that

  1. the population that is the basis for the government's aggregate claim would not have been exposed to cigarettes but for the manufacturer's breach; and
  2. such exposure caused or contributed to disease in a portion of the population that is the basis for the government's aggregate claim.

In this way, it falls on a defendant manufacturer to show that its breach of duty did not give rise to exposure, or that exposure resulting from its breach of duty did not give rise to the disease in respect of which the government claims for its expenditures.

The Act came into force on January 24, 2001. The very same day the government sued 14 tobacco companies. Several of them challenged the constitutionality of the Act. Each of their three main arguments was rejected by the Supreme Court.

First, the Court ruled that the Act does not lie outside the BC government's jurisdiction. The pith and substance of the Act is the creation of a civil cause of action, which provinces may do by virtue of their exclusive power over property and civil rights. Although the Act may capture some activities occurring outside BC, it does not overstep the territorial limits on provincial legislative competence. The Court held, "There are strong relationships among the enacting territory (British Columbia), the subject matter of the law (compensation for the government of British Columbia's tobacco-related health care costs) and the persons made subject to it (the tobacco manufacturers ultimately responsible for those costs), such that the Act can easily be said to be meaningfully connected to the province."

Secondly, the Act does not offend the principle of judicial independence. The rules of civil procedure and evidence embedded in the Act are not so pro-government as to fundamentally interfere with the adjudicative role of the court hearing an action brought under the Act: "Judicial independence can abide unconventional rules of civil procedure and evidence."

Thirdly, the Act does not offend the principle of the rule of law. That principle is not so broad that it requires legislation to be prospective. Retroactive legislation is fine except in the criminal context, where retroactivity is proscribed by s. 11(g) of the Charter of Rights and Freedoms . Moreover, the rule of law does not prohibit legislation that is targeted towards a specific company or class of companies. Nor does it prohibit legislation that gives the government procedural advantages over anyone sued pursuant to the legislation.

In upholding the Act, the Supreme Court has enabled the government of BC to proceed with its lawsuit against the tobacco companies. Other provinces may well follow suit. All of them except PEI intervened on BC's behalf in this case.

It will be interesting to see whether governments broaden their sights and pursue other industries whose operations or products are alleged to cause adverse health effects and increased public health care costs. The decision may also pave the way for governments to create statutory causes of action to enable claims for damages for environmental restoration or protection measures as a result of pollution or climate change.

The Court's decision, British Columbia v. Imperial Tobacco , is available at:
www.lexum.umontreal.ca/csc-scc/en/rec/html/2005scc049.wpd.html.

What's Happening?

Brownfields

Harry Dahme was recently quoted by Canadian Lawyer magazine on legal liabilities and opportunities associated with the redevelopment of contaminated properties, or "Brownfields". Harry also provided a cross-Canada review of applicable provincial legislation, highlighting the similarities and the key differences in legislation and administrative practice, at the Canadian Urban Institute conference, Canadian Brownfields 2005, held in Ottawa. Harry has become a member of the Board of Directors of the Ontario Centre for Environmental Technology Advancement.

Sustainable Urban Solutions

Gowlings also launched Sustainable Urban Solutions at Canadian Brownfields 2005. Sustainable Urban Solutions is a "one stop shopping" service offering of the Real Estate Environment and Urban Development, Energy and Infrastructure and Government Relations and Regulatory Affairs Groups at Gowlings, and is available through Gowlings' offices across Canada. Sustainable Urban Solutions will connect municipalities, lenders and private project partners with funding opportunities associated with environmental improvement, infrastructure and sustainable development. Sustainable Urban Solutions will offer advisory services on strategies for urban development, Brownfield redevelopment, heritage preservation and redevelopment, tax incremental financing, alternative finance procurement and options for infrastructure financing. Contact persons in the Toronto office of Gowlings are Mark Madras, Bob Onyschuk and Harry Dahme. Contact persons in the other offices are Paul Granda (Montreal), Jacques Shore (Ottawa), Kevin Keyes (Calgary), and Philip Marshall (Vancouver).

More information is available at:
http://www.gowlings.com/news/index.asp?intNewsId= 222&strShowWhat=releases.

IBA Conference

David Estrin presented a paper in September at the International Bar Association Conference in Prague, Czech Republic entitled "A Canadian Lawyer's Comparative Perspective on EU Environmental Law Implementation in Accession States". The paper focuses on a comparison of Canadian and EU approaches to implementation of the Kyoto Protocol and emissions trading; and on waste electrical and electronic equipment (WEEE) regulation.

The paper can be found on the Gowlings website.

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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