Canada: Environment @ Gowlings – May 2006

The Ministry of Natural Resources is undertaking a review of the Endangered Species Act in order to update the legislation and provide for broader protection and recovery of species at risk in their habitat. The identified objectives for the Review are to provide for more effective enforcement, to enhance the ability to facilitate stewardship and recovery activities, to acknowledge the importance of private land as habitat for species at risk and the important role of land owner involvement and stewardship approaches, and to complement the federal Species at Risk Act . Notice of the Review was posted on the EBR Registry on May 9, 2006. Written submissions may be made until July 7, 2006.

For further information please see:
www.ene.gov.on.ca/envregistry/027695ea.htm

Implementation of Canada-wide Standards for Dioxins and Furans

Dioxins and Furans Canada-Wide Standards for: Waste Incineration, Coastal Pulp and Paper Mill Boilers, Steel Manufacturing Electric Arc Furnaces and Iron Sintering Plants – 2006 Review were posted on-line by the Canadian Council of Ministers of Environment on April 28, 2006.

Certificates of Approval (Air) for steel manufacturing electric arc furnaces in Ontario are being amended by the Director to incorporate the Canada-Wide Standards. The terms and conditions of the Certificates of Approval include a progressive reduction in permitted emissions.

For further information please see:
www.ccme.ca/assets/pdf/df_reviews_decisions_fnl.pdf

Environmental Review Tribunal Appointments

Paul Muldoon, formerly a lawyer with the Canadian Environmental Law Association was appointed as Vice-Chair of the Environmental Review Tribunal in April, 2006. Mr. Muldoon joins Vice-Chair Jerry Demarco, formerly a lawyer with the Sierra Legal Defence Fund.

QUÉBEC

Residual Materials Disposal Charges

On April 26, 2006, the Québec Government adopted the Regulation respecting the charges payable for the disposal of residual materials , O.C. 340-2006, pursuant to the Environment Quality Act. The Regulation was published in the Gazette Officielle du Québec on May 24, 2006 and will come into force on June 23, 2006. The purpose of the Regulation is to prescribe the charges payable for the disposal of residual materials in landfill or other elimination sites. The Regulation applies to sanitary landfill sites, dry materials disposal sites and incinerators that are still governed by the Regulation respecting solid waste , R.R.Q., c. Q.-2, r.14, and to municipal water treatment sludge incinerators and engineered landfills, construction or demolition waste landfills and residual materials incineration facilities that fall under the application of the Regulation respecting the landfilling and incineration of residual materials (O.C. 451-2005, 11 May 2005).

Pursuant to the Regulation, every operator of a disposal site must pay disposal charges of $10.00 for each tonne of residual materials received for disposal. No charge is payable for incineration residue generated by incinerators, for soils or other materials to be used as cover materials, for residual materials that are sorted and recovered on the premises in order to be reclaimed or, for mine tailings or residue generated by a mine tailings reclamation process. The charges will be indexed on January 1 st of each year on the basis of the percentage change in the Consumer Price Indexes for Canada as published by Statistics Canada. The Regulation also provides that the devices for weighing the materials must be installed, used and maintained so as to provide reliable data, and they be calibrated at least once a year. Sorted and recovered material on site for reclamation as well as cover materials must be weighed before being transported offsite.

The operator of a residual materials landfilling or incineration facility is subject to a series of obligations including the obligation to keep an annual log stating the quantity of incineration residue received from any above-mentioned incinerator, the quantity of soils or other materials to be used as cover material, the quantity of materials recovered for reclamation, the quantity shipped offsite, the name of the carrier, the license plate number of the vehicle used and the names and addresses of all consignees as well as the quantity of mine tailings or residue generated by a mine tailings reclamation process. All of the quantities required to be reported must be expressed in weight. The annual logs must be kept at the disposal site and made available to the Minister of Sustainable Development, Environment and Parks for a minimum of 5 years after the date of the last entry. Within 90 days after the end of each year, the disposal site operator must also send to the Minister an assessment, certified by an external auditor member of a professional order of accountants, of the quantity expressed in weight of residual materials disposed of during the year at the site.

The operator of an existing disposal site that does not have a device on the premises for weighing the residual materials received shall have until November 2006 to have one installed unless the quantity of residual materials received per year is fewer than 20,000 tonnes in which case the exemption period is 3 years. In addition, the operator of such a disposal site must indicate in the quarterly reports sent to the Minister if materials were weighed elsewhere than on the premises, the place and date on which they were weighed and the name of the person who weighed them. If the materials were not weighed, the operator must indicate the quantity expressed in cubic meters and the equivalents in weight.

The quarterly reports to be provided by all disposal site operators are due with the payment of the prescribed charges no later than April 30, July 30, October 30 and January 30 of each year for the 3 month period preceding the month in which the payment becomes due together with the operator's name and address, the quantity of residual materials received for disposal during the quarter covered by the charges including the quantity, if any, of incineration residue from an incinerator, of soils or other materials to be used as cover material, of materials sorted and recovered for reclamation and of residue generated by a mine tailings reclamation process, all of the quantities of these materials to be expressed in weight, and the amount of the charges paid. The charges due for the period from June 23, 2006 to September 30, 2006 will be payable on October 30, 2006.

Non-compliance with certain of the provisions of the Regulation may result in a fine of between $2,000 and $15,000 in the case of a natural person and of between $5,000 to $100,000 in the case of a legal person or corporation. The fines will be doubled in case of a second or subsequent offence.

The charges collected by the Government will be deposited in the Green Fund created pursuant to the Sustainable Development Act that came into force on April 19, 2006. The Government intends to redistribute 85% of the sums collected to municipalities for the purpose of helping them finance their residual materials management plan. The remaining 15% will be used by the Ministry of Sustainable Development, Environment and Parks to finance priority activities linked to residual materials management. It is anticipated that municipalities shall receive on average $52,7 millions per year while having to pay only $28 millions in elimination charges for residual materials generated by residences. The Government thus expects that this financial support for municipal residual materials management plans will enable municipalities to reach the objectives established in the Politique québécoise de gestion des matières résiduelles 1998-2008 (Québec Residual Materials Management Policy 1998-2008) that are aimed at reclaiming more than 60% of residual materials generated each year.

Québec Tables its Energy Strategy

The Government of Québec recently tabled its Energy Strategy for 2006-2015 « L'énergie pour construire le Québec de demain ». The strategy centers around six objectives: (1) Québec must secure its supply of energy, (2) energy should be used as a lever for economic development by prioritizing hydroelectricity, wind potential, hydrocarbon resources and diversification of the province's supply of natural gas, (3) provide more importance to local and regional communities and to aboriginal nations, (4) use energy more efficiently, (5) Quebec wishes to become a leader of sustainable development and establish a cost of electricity that is in accordance with the province's interests while better managing this resource.

Amongst the provinces priorities are the renewal and acceleration of the development of the province's hydroelectric capacity through new projects totaling 4,500 MW over the next five years. According to the Strategy the new 4,500 MW should be sufficient to meet the Québec market's long term demand, to encourage industrial development to create wealth and should continue to allow Quebec to export electricity. The Strategy notes that it is not a priority to promote small private 50 MW or less power stations which are not, according to the strategy, essential to the province's energy needs. Those projects will be left to local community initiatives provided however that the projects are submitted to the environmental impact assessment and review procedure and are subject to power purchase agreements with Hydro-Québec. It is the intention of the Government to increase exports of electricity and, for this purpose, the short-term priority will be to reinforce interconnections with Ontario.

The Strategy envisages that by 2015, the wind power potential capable of being integrated to the Hydro-Québec system should reach 4,000 MW through the completion of actual projects that are in the works. If conditions are favorable, the Strategy recognizes the potential increase of wind power capacity by another 500 MW.

Energy efficiency remains though at the heart of the Strategy. The Strategy anticipates that the effect of achieving the energy efficiency targets represents annual savings of 2.5 billion dollars for consumers. These actions shall also contribute significantly to reducing greenhouse gases by some 9.4 million tonnes per year.

The Strategy favors renewable fuels such as biodiesel and ethanol-containing fuels. The objective is to reach an average of 5% ethanol content in gasoline sales by 2012. In the province's last budget, a plan was announced to reimburse the Québec Sales Tax up to $1,000 on the purchase of a new hybrid vehicle. The Strategy contemplates other opportunities to promote financial incentives that would direct purchasers towards more fuel efficient vehicles. The province is also looking at integrating California emissions standards for vehicles sold in Québec. The Strategy plans to further increasingly support public transportation to make it more attractive.

The Agence de l'Efficacité Énergétique (Energy Efficiency Agency) will have its mandate increased in order to support and promote energy innovation. Research and development will be at the heart of this objective. The Government will put in place a financial support program towards solar and geothermal energy for residential, institutional and commercial projects. The energy strategy also provides that the Government will look into the possibility of regulating biogas distribution activities and to decentralize electricity production.

The Government anticipates pursuing, in compliance with the Environment Quality Act , its petroleum exploration program in the St. Lawrence Estuary and in the Gulf of St. Lawrence. It will collaborate with the Federal Government in order to settle the territorial differences concerning petroleum exploration in the Gulf of St. Lawrence in light of similar agreements entered into between the Federal Government and Newfoundland-Labrador and Nova Scotia. Petroleum companies will be asked to provide the Government with a response plan to ensure an appropriate supply of petroleum products should difficulties arise. Finally, the Government intends to modernize the legislative and regulatory framework in order, namely, to take into account sustainable development when analyzing energy projects. The Régie de l'Énergie (Energy Board) shall be responsible for assessing economic as well as energy related justifications of projects while also ensuring that energy projects subject to the Environment Quality Act comply with the environmental impact assessment and review regime and, more particularly, undergo public hearings before the Bureau des audiences publiques sur l'environnement (BAPE).

ALBERTA

Oil Sands Consultation Group

The Final Report and Recommendations of the Oil Sands Consultation Group, March 31, 2006 made 9 recommendations for consultations on oil sands development. A News Release dated May 17, 2006 indicates that the Government of Alberta accepted all 9 recommendations. The recommendations include consultation using the hybrid multi-stakeholder and panel model and process developed by the Oil Sands Consultation Group. The intention is to work towards consensus recommendations. Consultation is to include consideration of economic, environmental and social issues in an integrated manner for the purpose of maximizing economic, social and environmental benefits and minimizing negative impacts. The focus of consultation is not on particular areas but on the overall subject of oil sands development. The intention is to provide for overall coordination between oil sands development and other issues that need to be taken care of, although First Nations Consultation will be conducted in a separate but parallel process.

The entire consultation process is to be completed by June, 2007.

For further information please see:
http://www.gov.ns.ca/enla/airlandwater/envactconsultation.asp

Oil Sands Consultation Group

The Final Report and Recommendations of the Oil Sands Consultation Group, March 31, 2006 made 9 recommendations for consultations on oil sands development. A News Release dated May 17, 2006 indicates that the Government of Alberta accepted all 9 recommendations. The recommendations include consultation using the hybrid multi-stakeholder and panel model and process developed by the Oil Sands Consultation Group. The intention is to work towards consensus recommendations. Consultation is to include consideration of economic, environmental and social issues in an integrated manner for the purpose of maximizing economic, social and environmental benefits and minimizing negative impacts. The focus of consultation is not on particular areas but on the overall subject of oil sands development. The intention is to provide for overall coordination between oil sands development and other issues that need to be taken care of, although First Nations Consultation will be conducted in a separate but parallel process.

The entire consultation process is to be completed by June, 2007.

For further information please see:
http://www.gov.ns.ca/enla/airlandwater/envactconsultation.asp

British columbia

British Columbia Crown Contaminated Sites Management

In British Columbia, while the Ministry of Environment deals with environmental regulation under the Environmental Management Act (British Columbia) and the Contaminated Sites Regulation, the Ministry of Agriculture and Lands (the Ministry), through the Crown Contaminated Sites Branch (the Branch), is responsible for the management of provincial contaminated sites. The vast majority of the Province's land base, 94%, is under Crown ownership. The Ministry has just released the Crown Contaminated Sites Biennial Report 2006.

The Branch is guided by the Provincial Contaminated Sites Committee. This committee, chaired by the Ministry, includes representatives from the Ministry of Labour and Citizens' Services, the Ministry of Energy, Mines and Petroleum Resources, the Ministry of Forests and Range, the Office of the Comptroller General, the Treasury Board, the Ministry of Attorney General, the Ministry of Finance – Risk Management Branch, the Ministry of Transportation and the Crown Agencies Secretariat.

Since August, 2001, the B.C. government has committed $116.5 million to identify, clean up and return to productive use a number of the province's contaminated sites. An additional $47.2 million is earmarked for this program for 2007 – 2009.

The British Columbia government established the current Crown Contaminated Sites program in 2003 in response to the Auditor General's report, "Managing Contaminated Sites on Provincial Lands, 2002/2003: Report 5".

The Branch identifies candidate contaminated sites and determines remediation priority based on risk to health and environment.

Remediation work has been completed at the Pitt River landfill site in the Lower Mainland and at Goose Bay, a former and cannery and fishing camp located on the Central Coast.

Progress has also been made on significant sites such as the Britannia Mine near Squamish, Pacific Place located in Vancouver on the former Expo lands, the Yankee Girl mine in the Kootenays and the Malakwa landfill site on the Eagle River east of Sicamous.

Further, three brownfield sites: Millstream Meadows – District of Highlands, Vancouver Island, Gasworks – City of New Westminster and Ladysmith Harbour, Ladysmith, have been identified as pilot projects.

Preliminary site investigations were initiated at 10 candidate sites in 2005/06 in order to identify future remediation sites.

For example, the Britannia Mine was one of the largest metal pollution sources in North America due to acid rock drainage into Howe Sound. The provincial government reached an agreement with former mine operators by which they contributed $30 million towards remediation. The Province contributed an additional $45.9 million. In March, 2005, the government and EPCOR Britannia Water Inc. unveiled plans for a new water treatment plant which is a key component of the remediation program. The plant became operational in December, 2005. EPCOR financed the design and construction of the water treatment plant and will operate the plant for 20 years under a private public partnership. The Province pays EPCOR a monthly fee based on the volume of water treated provided it complies with environmental standards established by the Ministry of Environment.

Another example is Pacific Place, the former Expo lands, located on False Creek in Vancouver. This 82-hectare property was once an industrial centre. Soil and groundwater contamination resulted from coal gasification plants, saw mills, wood preserving operations, metal shops and rail yards. Cleanup has been underway since 1991.

The Yankee Girl mine which operated in the Kootenays from the late 1800s to the 1950s resulted in extensive tailings of heavy metals on the banks of the Salmo River and Ymir Creek. In 2005 a barrier was built to stop the erosion of tailings into the Salmo River.

The Goose Bay abandoned fishing camp and cannery, located on the West Coast 483 kilometres north of Vancouver, was cleaned up by the Branch.

Similarly, the Pitt River landfill site has been remediated. Much of the loose debris was taken either from the site itself or from downstream. Excavation was backfilled with clean fill material and an erosion barrier was constructed to prevent any further spillage into the Pitt River.

Lastly, the Malakwa former landfill site which closed in 1975 is being cleaned up. Riverbank stabilization, a joint effort between the Branch and the Department of Fisheries and Oceans Canada, is ongoing.

The contaminated sites management policy principles are:

a provincial priority-based approach to human health and environmental issues, as well as legal and financial liability issues;

use of the "polluter pays" principle;

consultation and cooperation across the agencies and with First Nations;

consistency and fairness in processes and standards;

accountability and transparency in government management of provincial contaminated sites;

innovative leadership approaches including P3s and brownfield re-development;

prevention of future contaminated sites on provincial lands; and

sound science and technology to guide the management of contaminated sites.

For more information on this topic, contact Martin Palleson.

IN THE COURTS

New Trial for Inco

In 1994 Inco Ltd. was charged with two offences under subsection 30(1) of the Ontario Water Resources Act . The charges related to the discharge of untreated mine effluent into a watercourse. Inco was convicted. On appeal to the Ontario Court of Justice, the convictions were overturned and a new trial was ordered. The Court found that the Justice of the Peace had failed to apply the correct test for determining whether the offence of impairing water quality had been committed. This decision was then appealed to the Ontario Court of Appeal which upheld the decision directing a new trial.

Chief Justice McMurtry set out a two-part test for determining whether the offence of impairing water quality had been committed. The first part of the test required the Court to determine whether or not the material that had been discharged was inherently toxic. The Court must be satisfied that the evidence established that the discharged material was inherently toxic in order to find that the offence has been committed. However, where there is no evidence that the discharged substance is inherently toxic, then at that point, the Court must consider the quality and concentration of the discharge, as well as the time-frame over which the substance was discharged in order to determine if the offence has been committed.

The new trial was heard in 2004. Following the Crown's case, the trial judge granted the defence motion for a non-suit. The granting of the non-suit was appealed by the Crown. The issue on appeal was the trial judge's application of the second part of the test, insofar as it had been established that nickel was not an inherently impairing substance.

The Crown had led evidence on the quantity, concentration and time-frame of the discharge. The trial judge found that there was no evidence of the concentration of a particular species of nickel and on that basis granted the non-suit. In granting the Crown's appeal of the non-suit, Justice Hennessy dealt with the test for a non-suit:

"A non-suit should only be granted where there is no evidence which, if believed could result in a conviction. At the non-suit stage, the cases allow that the fact that there is "some evidence" is sufficient to avoid the non-suit, if the evidence is, in the opinion of the trier of fact, "manifestly unreasonable".

She found that there was ample evidence to defeat the motion for a non-suit and on that basis granted the appeal.

For further information please see: R. v. Inco Ltd . [2006] O. J. no. 1809.

To Certify or Not to Certify: Recent Decisions on Class Certification in Alberta

Two recent Alberta class certification decisions shed light on what a certifiable class should look like and reiterated the importance of common issues. In a judgment released May 17, 2006, Windsor v. Canadian Pacific Railway 2006 ABQB 348, the plaintiff's application for certification of a class was successful, further opening the door for environmental class actions in the Province. However, on May 19, 2006 a judgment from the same Court denied certification of the proposed class in Paron v. Alberta (Environmental Protection) 2006 ABQB 375.

In Paron the court denied certification since it found that the interests of all members could not adequately be represented through class action proceedings. The proposed class of property owners on Wabamun Lake were seeking damages and an injunction in relation to thermal pollution by the defendant. Additionally, a group in the proposed class wanted the water level in the lake to be increased, which would flood other proposed class members' property and homes. This result would not be desirable for all, so a class action was not a preferable procedure. The Court noted that geographical links between members are not sufficient to certify a class.

Justice Topolniski in Paron explained: "Success for one class member must mean success for all; all members of the class must benefit from the successful prosecution of the action, although not necessarily to the same extent. If one class member is successful on a common issue, either all class members are successful or some class members are indifferent to that issue. There is no common issue, if success for one member of the class means loss for another".

The Court found that since membership in the class was dependant on a state of mind – whether use and enjoyment of property was adversely affected – it was impossible for the defendant to know who was in or out of the class. Since the common issues were only held in the most general terms, the Court worried about the inevitable break down into individual proceedings. Additionally, the representative plaintiff was strongly in favour of raising the water levels of the lake. His interests were seen to be in conflict with other proposed class members. The Court decided that class proceeding would not advance the members claims fairly, or efficiently.

The Windsor case arose from contamination of the defendant's railway yards from the use of a de-greasing agent. There was extensive seepage and migration of the de-greasing agent found in the groundwater in the vicinity of the yards. The proposed class comprised residents of the community of Ogden, who own property within the proposed class boundaries.

The Court in Windsor certified the class and allowed the proceedings to continue to the next stage. The judge reiterated that certification is not a determination on the merits of the action. The Court referred to the Supreme Court's decision in Hollick where the question at the certification stage was deemed not to be "whether the claim is likely to succeed, but whether the suit is appropriately prosecuted as a class action". Whether property values had actually been impacted by the defendants' actions did not need to be determined. (Significantly, the proposed class action plaintiff did not file an expert report at the class certification stage.) The Court required that there needed to be some indication that property values could have been impacted.

Justice Rooke in Windsor found that the proposed common issues related directly to the liability of the defendant and were rationally connected to the identified class and damages claims. He found that certification would not make the proceedings more complicated, and there were no other means that would be more practical or efficient. The action was appropriate for certification, notwithstanding that issues of causation and individual damage assessments would remain once common issues were established. This decision contains a useful summary of considerations in class action certification proceedings; it was argued before the Ontario Court of Appeal released its decision in Pearson v. Inco, and additional arguments were requested from counsel by Justice Rooke, in light of that decision.

Both of these cases support the judgment of the Supreme Court in Hollick v. Metropolitan Toronto (Municipality), which emphasised the need for a predominant common issue in the class. This is not to say that there can be no differences between class members, however the action as a whole needs to be considered. If there are distinct tensions between members on important issues, a class certification will be unlikely.

For further information please see:

Paron v. Alberta
http://www.albertacourts.ab.ca/jdb/2003-/qb/civil/2006/2006abqb0375.cor1.pdf

Windsor v. Canadian Pacific Railway Limited
http://www.albertacourts.ab.ca/jdb/2003-/qb/civil/2006/2006abqb0348.pdf

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.