Environmental Law

All levels of government across Canada have enacted legislation to regulate the impact of business activities on the environment. The environment is not named specifically in the Canadian Constitution, which means that neither the federal nor provincial governments have exclusive jurisdiction over it. Rather, jurisdiction is based upon other named "heads of power" that interact with the environment to varying degrees, such as criminal law, fisheries and natural resources. For many matters falling under the broad "environment" label, both the federal and provincial governments can and do exercise regulatory responsibilities. This is referred to as "concurrent jurisdiction," which, in practical terms, means that businesses must often comply with both provincial and federal regulations, depending on the circumstances of their operations. In addition, some municipalities are also becoming more active in environmental regulation, as is evidenced, for example, by their use of bylaws to regulate such matters as the development of contaminated land, the discharge of liquid effluent into municipal sewage systems, and reporting on the emission of chemical substances or application of herbicides/pesticides in the course of business operations.

As a consequence of the broad ambit of environmental matters and the concurrent jurisdiction of the federal and provincial governments, there is a proliferation of legislation which regulates different aspects of the interaction of business activities with the environment. The scope of legislation includes the management of emissions, substances and waste, the use of water and the development of natural resources, and the impact of development on wildlife and wildlife habitat, as well as enforcement mechanisms and penalties for noncompliance.

1. Toxic and Dangerous Substances

The federal government exercises jurisdiction over the identification, production and handling of toxic and dangerous substances in Canada and over the interprovincial and international transportation of dangerous goods. Each of the provinces has intra-provincial requirements that parallel the federal requirements regarding the transportation of dangerous goods for intra-provincial transportation.

1.1. Federal Regulation of Toxic and Dangerous Substances

1.1.1. Canadian Environmental Protection Act

The primary federal government department is Environment and Climate Change Canada (ECCC), which is responsible for administering the Canadian Environmental Protection Act (CEPA). CEPA provides the federal government with regulatory authority over substances considered toxic. The CEPA regime provides for the assessment of "new" substances not included on the Domestic Substances List, a national inventory of chemical and biotechnical substances. CEPA requires an importer or manufacturer to notify the federal government of a new substance before manufacture or importation can take place in Canada. Consequently, businesses must build in a sufficient lead-time for the introduction of new chemicals or biotechnology products into the Canadian marketplace. In certain circumstances, manufacturers and importers must also report new activities involving approved new substances so they can be re-evaluated.

If the government determines that a substance may present a danger to human health or the environment, it may add the substance to the List of Toxic Substances, which currently lists upwards of 150 toxic substances or groups of substances. Within two years of a substance being added to the list, ECCC is required to take action with respect to its management. Such actions may include preventive or control measures, such as securing voluntary agreements, requiring pollution prevention plans or issuing restrictive regulations that may provide for the phase-out or outright banning of a substance. Substances that are persistent, bioaccumulative, and result primarily from human activity must be placed on the Virtual Elimination List, and companies will then be required to prepare virtual elimination plans to achieve a release limit set by the minister of environment or the minister of health. Listed toxic substances include PCBs, CFCs and chlorinated solvents, to name but a few.

1.1.2. Pest Control Products Act

The Pest Control Products Act (PCPA) prohibits the manufacture, possession, handling, transportation, importation, distribution or use of a pest control product that is not registered under the PCPA or in any way that endangers human health or the safety of the environment. Pest control products are registered only if their risks and value are determined to be acceptable by the minister of health. A risk assessment includes special consideration of the different sensitivities to pest control products of major identifiable groups such as children and seniors, and an assessment of aggregate exposure and cumulative effects. New information about risks and values must be reported, and a re-evaluation of currently registered products must take place. The public must be consulted before significant registration decisions are made. The public is given access to information provided in relation to registered pest control products. Maximum penalties under the PCPA are C$1-million and/or three years' imprisonment.

1.1.3. Hazardous Products Act

The Hazardous Products Act (HPA) prohibits suppliers, in certain circumstances, from importing and/or selling "hazardous products" that are intended for use in a workplace in Canada. The legislation identifies various hazard classes of hazardous products. Maximum penalties under the HPA are C$5-million and/or two years' imprisonment. If a person knowingly or recklessly contravenes a provision of the HPA, maximum penalties are fines in an amount that is at the discretion of the court and/or five years' imprisonment.

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