May 1, 2020
Environmental Law Bulletin
This Bulletin is current to May 1, 2020 and will be updated as events warrant.
The COVID-19 pandemic has created an unprecedented global crisis impacting all aspects of life in Canada. All levels of government have issued urgent orders and directions designed to protect public health including mandatory shutdowns of certain sectors. While Canada has a complex environmental regulatory regime at both the federal and provincial levels, some governmental and regulatory bodies have taken steps to temporarily alter legal requirements in light of the current crisis in order to lessen the burden on businesses and encourage the manufacture of products to assist in combatting the virus and its consequences.
In the United States, we have seen the relaxing of environmental obligations and enforcement levels in response to the COVID-19 crisis. In contrast, with the major exceptions being Alberta, Saskatchewan and Quebec, obligations under Canadian environmental legislation remain in effect and consequences for failure to comply remain as they were.
This bulletin discusses the current state of Canadian environmental law requirements and enforcement activity in light of COVID-19. In the last section, we offer suggestions for action and comment on the longer term implications of how companies respond to the crisis with respect to their environmental obligations.
For up to the minute updates on these topics, please contact us for more information.
A. Compliance with Environmental Laws
Subject to the exceptions discussed below, statutory environmental obligations on individuals and companies remain in effect despite the challenges raised by COVID-19 and regulatory bodies continue to exercise their authority to inspect, investigate and issue orders as well as to prosecute parties for failure to comply with statutory requirements.
Accordingly, any assessment, reporting, investigation, remediation, risk management and clean-up requirements in relation to contaminants, waste and spills remain in full force and effect and all due diligence and compliance activities normally undertaken should be maintained.
a. Environmental Approvals
More specifically, where a party, facility or property has been issued an approval, permit or license by an environmental regulatory body ("Environmental Approval") including in relation to emissions, waste management and the storage, use, handling, treatment and disposal of contaminants, the holder of the Environmental Approval must continue to comply with its terms.
That said, it is clear that the ability of Environmental Approval holders to comply with those requirements may be impacted by recent federal and provincial orders and directions relating to specific occupational health and safety obligations intended to limit the spread of COVID-19 or simply preventing specific activities and industries from carrying on operations (i.e. having been deemed non-essential). For more information on current essential designations across Canada, please click here.
For example, compliance with the terms of an Environmental Approval may become challenging as a result of social distancing requirements and reduced supply availability leading to facilities being short-staffed or unable to carry out normal operations. Businesses are encouraged to look for alternative ways of ensuring compliance through, for example, setting up temporary staffing protocols. For more information on COVID-19 occupational health and safety requirements and issues, please click here.
In instances where it may be difficult or impossible to comply with the terms of an Environmental Approval, discussions with the regulatory body should be initiated immediately. We would expect regulators to be willing to become involved in how best to address particular challenges at issue which should decrease the likelihood of a regulatory order being issued or charges laid.
b. Environmental Due Diligence
Regulators have been issuing emergency orders and directions at an unprecedented rate. We therefore recommend implementing the following best practices:
- Identify qualified individuals at your facility tasked with specifically managing environmental compliance during the COVID-19 crisis.
- Continue to monitor any regulatory changes or notices that may apply to your facility, operations and property.
- Identify any potential compliance issues that may arise or have already arisen as a result of the current crisis and implement proactive measures to address or prevent them including updating staffing protocols to address social distancing and safety requirements, engaging alternative suppliers and making alternative arrangements with third party consultants and agents whose normal services may also be impacted by the circumstances.
- Ensure that employees assigned to temporary roles as a result of changes to staffing protocols or duties are properly trained.
- For due diligence purposes, make sure you keep detailed records of modifications made as a result of COVID-19 orders and directions, including any temporary procedures, policies and guidelines.
- As noted, where compliance with any material environmental requirement may not be possible, begin discussions with the regulator immediately.
While most jurisdictions have deemed all environmental and waste management, monitoring, remediation and spill response services provided by environmental consultants as essential, Quebec, Alberta and Saskatchewan have limited these services to certain key industries and activities. These limitations (discussed below) can directly impact ordinary course environmental due diligence and compliance and risk management for companies and individuals in these jurisdictions as well as required environmental due diligence in the context of transactions, in particular with respect to soil, groundwater and air sampling.
B. Enforcement Challenges
As noted, in the absence of any indication to the contrary, failure to comply with any environmental laws including any term of an Environmental Approval creates a risk of enforcement action. The exception to this currently is in Quebec and Saskatchewan, where the government has made clear its intention to reduce environmental law enforcement initiatives, and in Alberta where the regulators seem to be taking a sympathetic approach to interrupted business operations and staffing challenges (as further discussed below).
In Ontario, temporary emergency legislation and orders have been issued suspending limitation periods and filing deadlines in civil, family and certain criminal proceedings, including provincial offences.1 As a result, regulators in this jurisdiction will have additional time following the discovery of an environmental non-compliance event before being required to take action. In contrast, there has been no suspension of limitation periods for quasi-criminal offences in the remaining provinces or federally.2
Normally, enforcement actions are preceded by inspections and investigations often involving in-person attendances at a facility for evidence gathering and face-to-face interviews. COVID-19 requirements may temporarily hinder provincial officers from carrying out these activities due to social distancing requirements, travel restrictions and limited availability of protective equipment. In addition, many businesses are temporarily closed down so physical access to premises is further limited and additional arrangements may need to be made for provincial officers to gain access to these sites.
Even when sufficient information is gathered to complete the investigation, the ability of the regulator to pursue the prosecution through the court system will depend on the forum and the urgency of the matter as most courts are currently only hearing urgent matters.
While we expect that regulator response to environmental emergencies such as spill events will remain a priority, regular non-urgent inspection and investigation activities may be reduced during or postponed until after the period of the pandemic. As a result, there may be renewed enforcement efforts once the crisis has ended. However, in the absence of any statements to the contrary by regulators, and subject to the exceptions noted, companies and individuals should conduct themselves on the basis that inspections and investigations will remain active.
C. Exceptions and Modifications to Environmental Compliance Obligations
This Bulletin provides a summary of all federal and provincial orders, directions and statements arising from the COVID-19 crisis as they relate to environmental regulation as of the effective date of this Bulletin.
Civil legal proceedings across Canada are currently subject to various orders suspending filing deadlines, hearings and reducing court access, which differ for each jurisdiction. However, courts are still hearing urgent environmental matters including proceedings aimed at preventing serious or irreparable harm to a person, property or the environment. Information on changes to court operations and civil procedures is available on the court website for each jurisdiction.
Below are links to the summaries of the various exceptions and modifications to environmental compliance obligations for each federal and provincial jurisdiction.
D. IN CLOSING
We emphasize that whether any company (or its directors or officers) will be granted relief from environmental liabilities should not be assumed even though these are indeed extraordinary times. The answer will depend, as it always has, on the application of long-standing legal principles as well as on the discretion of regulators.
Concepts such as due diligence, officially induced error, regulatory and prosecutorial discretion and evidentiary issues all in various ways affect environmental liabilities. The key question now is how will such concepts be applied in the COVID-19 era? There is little useful precedent to guide us in this situation and so obtaining legal advice will be of central importance.
What is clear is that the circumstances to which these principles and concepts will be applied are unprecedented in nature as well as scope. This, we believe, makes prudence and enlightened due diligence the core principles to be followed by companies and their officers and directors in these extraordinary times.
How companies respond and act in these circumstances will have important implications not just for immediate environmental liabilities but for longer term CSR and ESG responsibilities as well.
APPENDIX: EXCEPTIONS AND MODIFICATIONS TO ENVIRONMENTAL COMPLIANCE OBLIGATIONS FOR EACH FEDERAL AND PROVINCIAL JURISDICTION
While there have been no announcements by the Prime Minister relating to environmental matters, the Ministry of Transportation (Transport Canada) and the Ministry of Fisheries, Oceans and the Canadian Coast Guard (Fisheries and Oceans Canada) have announced several minor changes to their governing legislation in response to the COVID-19 crisis.
i. Transport Canada
Transport Canada has invoked section 31(2.1) of the Transportation of Dangerous Goods Act, 1992 ("TDG Act")3 allowing for the issuance of temporary certificates authorizing an activity to be carried on in a manner that does not comply with the TDG Act. As of this date, Transport Canada has authorized the issuance of five types of temporary certificates which came into effect between March 27 and April 9, 2020 and will remain effective until the earliest of September 30, 2020 or the day they are cancelled in writing by the Minister of Transport.
In addition, Transport Canada has published specific requirements for transporting COVID-19 cultures, samples and waste.
Temporary Certificate No. TU 0750 – Normally, a training certificate under the Transportation of Dangerous Goods Regulation ("TDG Regulations")4 expires either 24 or 36 months after issuance (24 months for transport by aircraft and 36 months for transport by road vehicle, railway vehicle or vessel)5 and a person who handles, offers for transport or transports dangerous goods by aircraft between Canada and another country must have recurrent training every 24 months.6 However, Transport Canada has issued a temporary certificate (Certificate No. TU 0750) which does not require a person to comply with those two requirements subject to specific conditions including: (a) that the dangerous goods are being handled, offered for transport, or transported by a person who was in possession of a valid and compliant transportation of dangerous goods training certificate on March 1, 2020; (b) that all efforts are made to ensure that employees are provided with recurrent training through any means possible; and (c) that employers enroll their employees in recurrent training in order to renew their training certificates at the first available opportunity.7
Note that this temporary certificate does not remove the obligation for a person who handles, offers for transport, or transports dangerous goods to be adequately trained nor does it provide any other regulatory relief.8
Temporary Certificate No. TU 0751 – Part 5 of the TDG Regulations provides standardized means of containment of transported goods including testing and inspection requirements.9 Transport Canada has issued a temporary certificate (Certificate No. TU 0751) authorizing the handling, the offering for transport, the transport, or importation of dangerous goods in a manner that does not comply with the testing and inspection requirements of standardized means of containment prescribed by Part 5 of the TDG Regulations, subject to certain conditions set out in Temporary Certificate No. TU 0751.10
Note that this temporary certificate provides no other regulatory relief and, except as noted above, all other requirements of the TDG Act and the TDG Regulations continue to apply.11
Temporary Certificate No. TU 0752 – Canadian industries have been asked to reorganize their operations to manufacture essential medical supplies such as masks, ventilators and hand sanitizer in response to the COVID-19 pandemic. However, many of the new producers of hand sanitizers do not have the required transportation of dangerous goods training or the appropriate resources to handle, offer for transport or transport dangerous goods in compliance with the TDG Act.12
To respond to this unprecedented situation, Transport Canada has also issued a temporary certificate authorizing the handling, offering for transport or transport of hand sanitizer in a road vehicle, railway vehicle or a vessel within Canada in a manner that does not comply with Parts 3, 4, 5 and 8 of the TDG Regulations when the capacity of the means of containment is less or equal to 30 litres and Parts 3, 6 and 8 of the TDG Regulations when the capacity of the means of containment is greater than 30 litres but less than or equal to 450 litres, subject to certain conditions set out in Temporary Certificate No. TU 0752.13
Note that this temporary certificate provides no other regulatory relief and, except as noted above, all other requirements of the TDG Act and the TDG Regulations continue to apply.14
Temporary Certificate No. TU 0753 – Under the TDG Regulations, Canada Post is restricted from transporting a number of dangerous goods by air, including hand sanitizer. In order to allow Canada Post to contribute to the pressing need to provide medical supplies to remote communities (defined as locations that are not accessible year-round by permanent roadway, railway or waterway including places serviced by an ice road or not serviced year-round by vessel due to seasonal ice), Transport Canada has issued a temporary certificate authorizing the handling, offering for transport or transport of hand sanitizer by air to these communities within Canada in a manner that does not comply with:
- Paragraph 3.1 of Chapter 2 of Part 1 (1;2.3.1) of the Technical Instructions for the Safe Transport of Dangerous Goods by Air (ICAO Technical Instructions), as incorporated by reference in subsection 12.1(2) of the TDG Regulations;
- The quantity limits of Packing Instruction Y341 of Paragraph 1 of Chapter 5 in Part 4 (4;5.1 Packing Instruction Y341) of the ICAO Technical Instructions, as incorporated by subsection 12.1(2) of the TDG Regulations;
- The quantity limits in column 11 of Table 3-1 of Chapter 2 in Part 3 (3;2 Table 3-1, Column 11 - Maximum net quantity) of the ICAO Technical Instructions, as incorporated by subsection 12.1(2) of the TDG Regulations;
- The Training requirements of Chapter 4 in Part 1 (1;4) of the ICAO Technical Instructions, as incorporated by subsection 12.1(2) of the TDG Regulations, and Part 6 of the TDG Regulations; and
- The dangerous goods transport document requirements of Chapter 4 in Part 5 (5;4) of the ICAO Technical Instructions, as incorporated by subsection 12.1(2) of the TDG Regulations, and Part 3 of the TDG Regulations.15
This temporary certificate is subject to specific conditions set out in Temporary Certificate No. TU 0753.16
Note that this temporary certificate provides no other regulatory relief and, except as noted above, all other requirements of the TDG Act and the TDG Regulations continue to apply. 17
Temporary Certificate No. TU 0754 – To accommodate the quick transport of hand sanitizer in this time of shortage to communities across Canada, Transport Canada has issued this temporary certificate to allow air carriers to contribute to the pressing need to provide hand sanitizer, which is typically transported by road vehicle. Transport Canada has exempted air carriers from certain requirements under the TDG Regulations and authorizes either: (1) the handling, offering for transport, or transporting of dangerous goods, by road vehicle to or from an aircraft, an aerodrome or an air cargo facility, in a manner that does not comply with the requirements prescribed in Part 3, 4, 5 and 6 of the TDG Regulations; or (2) the handling, offering for transport, or transporting of dangerous goods, by aircraft in Canada, in a manner that does not comply with the requirements prescribed in:
- The quantity limits of Packing Instruction Y341 of Paragraph 1 of Chapter 5 in Part 4 (4;5.1 Packing Instruction Y341) of the ICAO Technical Instructions, as incorporated by subsection 12.1(2) of the TDG Regulations;
- The quantity limits in column 11 of Table 3-1 of Chapter 2 in Part 3 (3;2 Table 3-1, Column 11 - Maximum net quantity) of the ICAO Technical Instructions, as incorporated by reference in subsection 12.1(2) of the TDG Regulations;
- The means of containment requirements in Part 5 of the TDG Regulations;
- The Training requirements of Chapter 4 in Part 1 (1;4) of the ICAO Technical Instructions, as incorporated by reference in subsection 12.1(2) of the TDG Regulations, and Part 6 of the TDG Regulations;
- The dangerous goods transport document requirements of Chapter 4 in Part 5 (5;4) of the ICAO Technical Instructions, as incorporated by subsection 12.1(2) of the TDG Regulations, and Part 3 of the TDG Regulations.18
This temporary certificate is subject to specific conditions set out in Temporary Certificate No. TU 0754.19
Note that this temporary certificate provides no other regulatory relief and, except as noted above, all other requirements of the TDG Act and the TDG Regulations continue to apply.20
Transportation of COVID-19 Cultures, Samples and Waste – The TDG Regulations provide requirements for the transportation and containment of infectious substances, which are categorized into Category A or B depending on the level of risk posed by the substance. In the context of COVID-19, Transport Canada has provided the following guidance regarding its transportation:
- when transported in the form of a culture (e.g. cultured samples for research), COVID-19 must be handled, offered for transport and transported as a Category A infectious substance in Type 620 packaging;
- when transported in a form other than a culture (e.g. patient samples), COVID-19 must be handled, offered for transport and transported as a Category B infectious substance in Type 650 packaging; and
- any clinical, (bio) medical or regulated medical waste that is transported as UN3291 must be transported in one the packaging options outlined in Part III of the CAN/CGSB-43.125 Standard.21
ii. Fisheries and Ocean Canada
Fisheries and Oceans Canada has confirmed all of its critical functions remain operational, including licensing, catch certification, monitoring and enforcement.22 While travel and in-person meetings have been restricted as a result of COVID-19, the Ministry staff remain on the job and are reachable by phone or email and retain the capacity to respond to incidents on the water as they occur.23
In particular, the Ministry will continue to process requests for Fisheries Act24 authorizations, as well as requests to amend, suspend or cancel existing authorizations. The Ministry also continues to respond to incoming requests and questions regarding existing authorizations or applications for new authorizations. Processing will continue according to established service standards although delays may be possible depending on the nature of the request.25
Note that Fisheries and Oceans Canada has issued a Fisheries Management Order requiring that all authorized fishing activities under the Fisheries Act be carried out, on a temporary basis, without any at-sea observer coverage onboard fishing vessels. This Order will prevail over any regulations made under the Fisheries Act, any orders issued under those regulations, and over any conditions of any lease or licence issued under that Act. This decision arises in response to the nature of the work of at-sea observers, who can be deployed to fishing vessels for up to 45 days at a time, which does not permit effective implementation of isolation and quarantine guidelines.26
With respect to the possibility of changing the opening or closing times of fisheries, Fisheries and Oceans Canada has advised that it is engaging with the fishing industry on issues pertaining to the management of the commercial fishery to ensure an efficient response to market signals. Industry-led proposals for delays in opening and closing times are being assessed on a case-by-case basis.27 For recent Fisheries and Oceans Canada decisions on this issue, click here.
iii. National Pollutant Release Inventory
The National Pollutant Release Inventory (NPRI) amended the deadline for the annual 2019 reporting requirement from June 1, 2020 to July 31, 2020 for owners and operators of facilities meeting the requirements under to the Canadian Environmental Protection Act, 1999.28
British Columbia's environmental regulatory response to COVID-19 includes restrictions on open burning as well as changes to the Environmental Appeal Board's operations. The Ministry of Environment and Climate Change Strategy ("MECCS") has also directed environmental authorization holders to contact the MECCS in the event of any COVID-19 related compliance issues.
i. Open Burning Restrictions
On April 16, 2020, the MECCS prohibited most open burning (fire)29 activities throughout British Columbia until otherwise notified.30 This was done to support the BC Centre for Disease Control's recommendations that measures be implemented to reduce air pollution as there is strong evidence that exposure to air pollution increases susceptibility to respiratory viral infections by decreasing immune function.
These changes were made under section 29(1)(a) of the Open Burning Smoke Control Regulation which allows for the substitution of a requirement under the regulation that is necessary to protect the public or the environment.31
ii. Environmental Appeal Board
On March 27, 2020, the Environmental Appeal Board (and the related Forest Appeals Commission and the Oil and Gas Commission) ("EAB") issued a statement concerning disruptions to the Tribunals' functions due to COVID-19.33 The EAB hears appeals from certain decisions made by government officials related to environmental issues under the Environmental Management Act,34 including water licenses, contaminated site remediation orders, pesticide permits and the cancellation of hunting licenses.
While its operations are not suspended, the EAB has confirmed that it will be focusing on "critical matters" at this time.35
Significantly, the Minister of Public Safety has suspended all mandatory timeframes for the filing of appeals and has granted appeal bodies, including the EAB, the ability to waive, suspend, or extend timeframes until such time as the current state of emergency related to COVID-19 is over. As a result, mandatory timeframes for the filing of appeals with the EAB which would have been due on March 18, 2020 or later are suspended until the end of the state of emergency related to COVID-19 declared by the provincial government.36
Parties wishing to file an appeal or inquire as to the status of a current appeal are directed to do so by email to the EAB. There may be delays with receiving physical deliveries and mail as the EAB's office remains closed to the public.37
iii. Ministry Enforcement
The MECCS has confirmed that its Regional Operations Branch, which deals with enforcement, has staffing resources in place to maintain all core business functions. However, at this time, the MECCS will be prioritizing responses to any events or notifications which have the potential to impact human health, the environment or relate to the maintenance of essential services.38
iv. Environmental Authorizations Compliance
The MECCS has confirmed that environmental authorization requirements remain in effect and it is expected that all reasonable measures be taken to comply. However, the MECCS has encouraged authorization holders who are unable to meet authorization requirements due to orders, directives or guidance issued by the province related to COVID-19 to notify the MECCS identifying the compliance issues, the rationale clearly stating how the compliance issues are related to COVID-19 and the mitigative measures being taken.39
The MECCS has advised that it will take into consideration the above noted provincial orders in addressing these non-compliances.40 While it has not advised how it intends to address these issues, the MECCS' direction to contact them in this circumstance indicates that it may allow some flexibility with the subject authorization holder's compliance requirements and determine appropriate temporary compliance measures.
v. Oil and Gas Commission
The BC Oil and Gas Commission has issued guidance on its operations during the COVID-19 pandemic. While its offices are closed, meetings continue to be held by phone and the Commission is continuing to actively review and make decisions on applications, and anticipating little to no change with regards to timelines for some application types.
The Commission has indicated that greater flexibility in timelines may be a consideration for those applications that require consultation and engagement with other parties; however, this will be determined on an application-by-application basis.41
vi. Environmental Consultants
The BC government has confirmed that businesses that support environmental management/monitoring and spill clean-up and response, including environmental consulting firms and professional engineers and geoscientists are considered essential services.42
In addition to the adverse impact to public health and the public healthcare system, the COVID-19 pandemic is causing severe economic hardship to Alberta's natural resource and industrial sector businesses. As a result, Alberta Environment and Parks ("AEP") has taken significant action to lessen the potential impact through a number of initiatives designed to reduce regulatory burdens and recognize the reduction in staff availability and capacity for on-site work. These actions are set out below.
Pursuant to Alberta's Public Health Act43 and in connection with the state of public health emergency declared in Alberta on March 17, 2020, the AEP and Minister of Energy have issued several Ministerial Orders that will remain in effect until August 14, 2020 unless terminated sooner by reason of the province no longer being in a state of public health emergency. The AEP has also limited certain air monitoring obligations.
In addition, various provincial tribunals have temporarily changed their procedures and accessibility as a result of COVID-19.
i. Reporting Requirements
Ministerial Order 15/2020 issued on March 30, 2020 extends certain deadlines under the Technology Innovation and Emissions Reduction Regulation (TIERR). Regulated facilities now have until June 30, 2020 to submit 2019 compliance reports and 2019 emissions reduction plan reports.44
Ministerial Order 16/2020 issued on March 30, 2020 suspends certain reporting requirements under the Renewable Fuels Standard Regulation. Specifically, the deadline for fuel suppliers, approved contributors and renewable fuel providers to submit reports for the 2019 compliance period is extended from March 31 to June 30, 2020.45
Ministerial Order 17/2020 issued on March 31, 2020 provides for amendments to the reporting requirements under the Environmental Protection and Enhancement Act ("EPEA"),46 the Water Act47 and the Public Lands Act ("PLA").48 These amendments are:
- EPEA and Water Act: All information reporting requirements pursuant to provisions in approvals, licenses, or registrations are temporarily suspended, except in the case of drinking water facilities.
- PLA: All submissions of returns or reports for disposition requirements are temporarily suspended. However approval, registration, license and disposition holders must continue to record and retain complete information and such records shall be made available to AEP or the Alberta Energy Regulator ("AER") upon request. In addition, all drinking water facilities must continue to follow all the terms and conditions of their authorizations, including reporting.49
In addition, the Minister of Energy issued Ministerial Order 219/202050 suspending certain reporting requirements under the Coal Conservation Act,51 Oil and Gas Conservation Act52 and Oil Sands Conservation Act.53 Specifically, the order provides that the requirements to provide certain annual and exploration reports, reservoir pressure surveys, progress reports and performance presentations, well logs and summary reports, and annual plans and reports of operations under the said legislation are temporarily suspended. Importantly, proponents are still required to record and retain complete information relating to reporting and submission requirements, and such records shall be made available to the AER upon request.54
ii. Public Lands Access
Ministerial Orders 18/202055 and Ministerial Order 20/202056 issued on March 27 and 30, 2020, respectively, prohibit certain access to and uses on the province's public lands with a number of exceptions.
Individuals with affirmed Part II rights under The Constitution Act, 198257 or under section 12 of the Natural Resources Transfer Agreement58 are still permitted to exercise their rights as are persons who are accessing the specified public lands for the purpose of exercising their rights pursuant to a disposition under the PLA, a registered fur management agreement under the Wildlife Act59 or a timber disposition under the Forests Act.60
iii. Air Monitoring Requirements
Further to Ministerial Order 17/2020, AEP issued the interim Temporary Amendment of Select Air Monitoring Directive Requirements on March 31, 2020. Effective immediately, industrial operations and Alberta airsheds are permitted to deviate from select Air Monitoring Directive ("AMD") requirements as summarized below:
Reduced frequency of ambient continuous air monitoring station calibrations from monthly to quarterly, for the remainder of 2020.
- Reduced frequency of ambient continuous air monitoring station manifold and inlet cleaning from monthly to quarterly, for the remainder of 2020.
- Removal of requirement to report "calendar day" in AMD reporting forms.
- Three-month extension for completion and submission of 2019 Annual Emissions Inventory Report.
- Removal of requirement to immediately report exceedances of Ambient Air Quality Guidelines until August 31, 2020.
- Two-month extension for submission of airshed monthly monitoring summary reports and ambient data.61
Although the calibration requirements have been amended, AEP is still requiring that data evaluation and existing calibration acceptance criteria be met and that all other routine quality-assurance activities continue.
iv. Provincial Offences Enforcement
The Alberta Minister of Justice and Solicitor General has issued Ministerial Order 27/2020 suspending limitation periods and periods of time within which any step must be taken in any proceeding or intended proceeding from March 17 to June 1, 2020. However, proceedings under the Provincial Offences Procedure Act62 are specifically excluded from this Ministerial Order meaning that limitation periods thereunder have not been suspended and regulators must initiate prosecutions under this Act within the applicable limitation period.63
However, Alberta generally seems to be taking an empathetic approach to interrupted business operations and staffing concerns, so we would expect that other enforcement activities will be less strict unless public health and safety are at risk, non-compliance is not related to COVID-19, or there has been intentional violations. For example, the AUC has paused the enforcement of specified penalties of utility billing infractions to allow the utilities to focus on priority work – being the delivery and maintenance of power, gas, heat and water services.64
If there are matters of critical importance, regulators are working to ensure that these continue – albeit sometimes by untraditional methods. It is important to be flexible and creative at this time to ensure appropriate workarounds and solutions. For example, the Alberta Utilities Commission ("AUC") has explicitly stated that "options may be discussed and explored" with parties such as written or remote participation options if an oral hearing or normally public proceeding needs to proceed and the AER is holding virtual meetings with stakeholders and has established a customer contact centre and emergency response line.
v. Alberta Environmental Tribunals
In Alberta, regulatory tribunals and boards have not taken a consistent approach to changing their operations. However, generally all offices have been closed to the public but are still accepting deliveries of mail and materials. In addition, all public consultations, information sessions, and other live gatherings have seemingly been suspended to comply with the provinces' respective mass gathering prohibitions, but we understand efforts are being made to re-schedule where appropriate. To the extent that regulatory proceedings can be continued remotely or there is a critical, economic or safety event requiring the matter to proceed, we understand that the provinces' various boards and tribunals are attempting to make appropriate arrangements.
Below is a summary of current guidance on hearings.
Alberta Energy Regulator – The oral portions of AER hearings will not be heard at this time and the AER is in the process of reviewing currently scheduled and future adjudicative functions to ensure a balance of fair and transparent regulation and public safety.65
Surface Rights Board and Land Compensation Board – All Surface Rights Board and Land Compensation Board hearings will proceed as scheduled and telephone mediation and dispute resolution conferences will not be impacted. Any parties to oral hearings scheduled for the next three months will be contacted by the board administration to determine whether there are unique issues in a particular hearing that could be addressed by postponement or proceeding on the basis of written submissions or a telephone or webinar meeting. If the parties do proceed with hearings, appropriate risk mitigation steps will be implemented to ensure the safety of the board and stakeholders.66
Alberta Utilities Commission – All public hearings, consultations and information sessions at the AUC are deferred until further notice. If there is an essential economic requirement or essential utility service and infrastructure reason (note that these are not defined terms so are open to interpretation) to proceed, written or remote-participation options will be explored with impacted parties.67
The AUC is also working remotely to move along regulatory proceedings and encourages concerned parties to contact the AUC to discuss and explore options for written or remote-participation so that matters can move along as needed (see Bulletins 2020-0668 and 2020-0769 for more information). Moreover, the AUC is working to meet current performance standards for proceedings in the decision writing stage, applications in record development, and rate applications.70
Other Alberta Tribunals – As of the date of writing, the Alberta Environmental Appeals Board and Alberta Public Lands Appeal Board have not issued any guidance on changes to their operations.
vi. Environmental Consultants
In Alberta, the government has published a list of essential services and has confirmed that businesses and services on this list can continue to operate so long as proper risk mitigation measures are in place.71 The list is not exhaustive and is only meant to provide guidance. The list of essential services includes "environmental emergency response and regulatory enforcement", "construction work and services that support health and safety and environmental rehabilitation projects" and "environmental services for agriculture, mining, oil and gas".72
As a result, services provided by environmental consulting firms and professional engineers and geoscientists are considered an essential service in Alberta provided that they are supporting the industries listed above or are otherwise providing emergency, health and safety or enforcement response.
Saskatchewan's Ministry of Environment has issued the Temporary Enforcement Policy during the COVID-19 Pandemic (the "Temporary Enforcement Policy") to provide enforcement discretion for environmental regulations at all industrial and municipal operations regulated by the Ministry. The Ministry has also specifically provided that proponents need to collect and retain information and records as they may be audited. 73
Saskatchewan's Ministry of Energy and Resources has issued the Temporary Regulatory Relief Measures ("Temporary Regulatory Relief Measures") to provide enforcement discretion for oil and gas regulations on all oil and gas wells, facilities and pipelines regulated by the Ministry. The Ministry has specifically provide that the relief measures identified do not extend to compliance issues posing significant and immediate health and safety risks to people and the environment and that such risks need to continue to be addressed immediately in a manner ensuring compliance with regulatory requirements.74
The Ministry has also issued the Regulatory Relief Measure for Oil and Gas Dispositions ("Relief Measure for Oil and Gas Dispositions") to implement relief for oil and gas dispositions.75
While no specific guidance has been issued by Saskatchewan environmental tribunals to date, general changes to their operations are discussed below.
i. Temporary Enforcement Policy during the COVID-19 Pandemic
The Temporary Enforcement Policy applies retroactively to March 27, 2020.76 The violations covered under the policy include those relating to the Environmental Management and Protection Act, 2010,77 the Environmental Assessment Act,78 the waste stewardship regulations,79 the Wildlife Act,80 the Provincial Lands Act,81 and The Crown Resource Land Regulations, 2019,82 the Conservation Easements Act,83 the Management and Reduction of Greenhouse Gases Act84 and the Saskatchewan Environmental Code,85 together with related regulations.86
The Temporary Enforcement Policy includes some notable conditions:
- It does not apply where proponents are unable to provide documentation on the nature of the non-compliance, how the non-compliance is related to COVID-19, or situations where proponents are not acting in good faith or are knowingly violating legislation.
- Proponents are expected to make every
effort to comply with legislation, but if it is not reasonably
practicable because of COVID-19 issues, then proponents should:
- Report non-compliance to the Ministry, except for Tier 1 activities (explained below);
- Act responsibly to minimize the effects and duration of any non-compliance;
- Identify and document the specific nature and dates of non-compliance; and
- Identify and document how COVID-19 was the cause of the non-compliance, the actions taken in response and all efforts to comply.
- For the purposes of the policy, a non-exhaustive list of COVID-19 issues are identified, including: loss of essential staff due to illness or self-isolation, facilities constrained on the ability to carry out certain activities such as inability to collect and analyze samples or meet reporting obligations, or situations where operations are unable to meet provincial standards, experience a discharge/spill, or are unable to meet provincial standards (i.e. water quality). Each of these situations will be managed differently, depending on the associated risks.
- The policy establishes three
enforcement tiers based on the risk-assessment:
- For Tier 1 activities, proponents do not need to notify the Ministry, but are still required to document the activity and produce same upon request. The Ministry also does not expect to seek penalties for Tier 1 activities where it agrees that the cause was COVID-19 related and appropriate supporting documentation has been provided. Please refer to Appendix 1 of the policy for a full list of the activities included.
- Tier 2 activities are site-specific. For Tier 2 activities, immediate notification is required where there is significant resource impact or threat to the environment. Otherwise, notification is required in accordance with the applicable project approval or Environment Protection Plan. Tier 2 activities will be evaluated by the Ministry to determine whether enforcement response is warranted and voluntary compliance measures may be considered where appropriate.
- Tier 3 activities include potable water systems for industrial and mining facilities and environmental discharges and spills. Tier 3 activities require immediate notification to the Ministry and approval conditions must be met, unless otherwise indicated. Where there is a potential risk of capacity issues for potable water monitoring, the Ministry must be notified in advance of this risk.
- If proponents are unsure about the classification of an activity, they are encouraged to contact the Ministry's general inquiry line, their site-specific Ministry contact, or the program contacts set out in the policy.
- The Ministry continues to have authority to carry out compliance assurance activities during the pandemic; however, the Ministry has reduced the number of inspections. Going forward, the Ministry will assess the need to inspect and conduct audits using a risk-based approach, in compliance with provincial health orders. The Ministry is also evaluating the possibility of utilizing technology, surveys and personal protective equipment in its compliance activities. In the meantime, voluntary compliance efforts and self-reporting are required unless specifically stated otherwise. 87
ii. Temporary Regulatory Relief Measures during the COVID-19 Pandemic
The Temporary Regulatory Relief Measures applies retroactively to March 1, 2020.88 The obligations covered under the measures include those relating to The Oil and Gas Conservation Act,89 The Oil and Gas Conservation Regulations, 2012,90 The Oil and Gas Emissions Management Regulations,91 The Pipelines Act, 1998,92 The Pipelines Administration and Licensing Regulations,93 together with all related Directives.
The Temporary Regulatory Relief measures includes some notable conditions:
- It applies to all oil and gas wells, facilities and pipelines currently regulated by the Ministry under the above-noted legislation Where possible, oil and gas well, facility and pipeline operators should attempt to meet their regulatory obligations during the temporary period of the policy. Licensees and operators are expected to self-access and attend to identified risks to the health and safety of individuals and protection of the environment.
- The Ministry has extended the full compliance implementation date for Directive PNG017: Measurement Requirements for Oil and Gas Operations Implementation and Directive PNG076: Enhanced Production Audit Program until April 1, 2021.
- Penalties associated with reporting non-compliance, as set out in more detail in the Temporary Regulatory Relief Measures, are suspended, with the exception of obligations pertaining to Drilling Start Date and Finished Drilling Date; provided, however, industry is expected to make reasonable attempts to meet reporting obligations during the relief period. At the end of the relief period, industry will be granted an additional two-month grace period from penalties to provide the opportunity to become compliant with any outstanding reporting obligations. Following the grace period, any outstanding obligations will be invoiced at the specified rate back to the original obligation due date.
- Leak detection and repair surveys are subject to an exemption under Directive PNG036: Venting and Flaring Requirements where carrying out the survey poses a risk to personnel health or safety. Well and facility operators are also exempt from conducting surveys during the relief period. However, any installations and other field work required to reduce emissions should be documented and disclosed during the relief period.
- Annulus tests can be deferred on low and medium risk wells, however high risk wells with known integrity issues and those flagged as having insufficient casing and cementing for groundwater protection are not exempted. Such wells will be risk assessed and prioritized accordingly.
- All low risk regulatory inspections and field regulatory monitoring programs and associated reporting requirements are deferred and deadlines are extended on most new and outstanding inspection items. Nonetheless, items posing significant and immediate health and safety risks to people and the environment must be addressed immediately.
- Licensee Liability Rating Program (LLR) invoices will continue to be issued during the relief period, but enforcement of outstanding payments will be deferred.
- Lastly, expiry dates for authorizations, deadlines for annual project reporting requirements for 2019, and timeline requirements for the reclamation of newly drilled leases and non-critical remediation and reclamation work (where there is no imminent risk to environmental receptors), are automatically extended.
iii. Regulatory Relief Measure for Oil and Gas Dispositions
The Regulatory Relief Measure for Oil and Gas Dispositions applies retroactively to March 31, 2020 for all oil and gas dispositions issued under The Oil and Gas Tenure Registry Regulations.94 Under the relief, all Crown petroleum and natural gas leases in whole or in part expiring on March 31, 2020 will continue to March 31, 2021. In addition, extensions will be made for exploration licences and permits and leases of spaces active on March 31, 2020. This includes extensions for reporting permit expenditure estimates and actuals, completion of exploration and drilling programs, creating facilities and continued operations for lease of spaces agreements, and grouping terms 95
iv. Saskatchewan Environmental Tribunals
In Saskatchewan, regulatory tribunals and boards have not taken a consistent approach to changing their operations. However, generally all offices have been closed to the public but are still accepting deliveries of mail and materials. In addition, all public consultations, information sessions, and other live gatherings have seemingly been suspended to comply with the provinces' respective mass gathering prohibitions, but we understand efforts are being made to re-schedule where appropriate. To the extent that regulatory proceedings can be continued remotely, or there is critical, economic or safety event requiring the matter to proceed, we understand that the provinces' various boards and tribunals are attempting to make appropriate arrangements.
As of the date of writing, the Public and Private Rights Board and Surface Rights Board of Arbitration have not issued any guidance on the impacts of the pandemic on operations.
v. Environmental Consultants
In Saskatchewan, the government has published a list of critical public services and allowable business services that can continue to operate in accordance with social distancing practices.96 The list includes "hazardous material responders from government and the private sector", inspection services, services provided to the mining, forestry, energy, agriculture and manufacturing sector, and businesses and services that are engaged in or that support the movement of essential goods and supply chains and the operation, maintenance and repair of critical infrastructure.97
As a result, the services provided by environmental consulting firms and professional engineers and geoscientists are considered an essential service in Saskatchewan provided that services are in support of the industries listed above or are otherwise supporting critical infrastructure or the movement of essential supply chains.
As of the time of writing, Manitoba has not issued any Ministerial Orders or other directives specifically addressing environmental matters in relation to COVID-19.
However, in an order dated April 13, 2020, the Minister of Health, Seniors and Active Living pursuant to the Public Health Act confirmed that businesses that support environmental management or monitoring services or that provide environmental clean-up and response services are critical services and may remain open.98
i. Manitoba Hydro
Manitoba Hydro has asked the province to relax some environmental requirements during the COVID-19 pandemic, particularly with respect to requirements under environmental licensing for certain low-risk elements of projects. The province has confirmed that it is considering the request.99
Ontario has suspended all limitation periods under any provincial statute, regulation or by-law during the state of emergency as part of the Emergency Management and Civil Protection Act100 enacted on March 20, 2020, which includes any provincial environmental offences. While this suspension will impact the timing for the laying of charges arising from an environmental non-compliance event, this does not impact general compliance obligations or provincial officers' inspection and investigation powers.
In addition, tribunals in Ontario that deal with environmental matters have changed their operations as a result of COVID-19 and the Ministry of Environment, Conservation and Parks ("MECP") has provided conservation authorities with authority to amend their by-laws in certain circumstances. Guidance on these changes is summarized below.
i. Environmental Review Tribunal
In a statement issued on April 3, 2020, the Environmental Review Tribunal ("ERT") confirmed that it will continue to receive and process new appeals and applications. All hearings and mediations will be held via teleconference until further notice and only electronic copies of documents are accepted for filing by email.101
The ERT has not commented on whether or not this will result in delays in the typical hearing process.
ii. Local Planning Appeal Tribunal
As of April 6, 2020, the Local Planning Appeal Tribunal ("LPAT") is scheduling settlement hearings through teleconference or written submissions on a case-by-case basis. Parties interested in settlement hearings must submit a Settlement Request Form as well as a list of filing materials, demonstrating that there would be no prejudice to any party if LPAT were to proceed by teleconference or written submissions.102
All front-line counter services remain closed. If parties submit documents by mail or courier, they will experience processing delays. Documents, other than appeal records, may be filed electronically.103
iii. Conservation Authorities
On March 26, 2020, the MECP issued a Minister's Direction providing conservation authorities within Ontario the authority to amend their by-laws to allow for virtual meetings and hearings, including by teleconference.104 Information regarding changes to hearing procedures related to COVID-19 can be obtained from individual conservation authorities within the province.
iv. Ministry of Energy, Northern Development and Mines
On April 17, 2020, the Ministry of Energy, Northern Development and Mines issued an update regarding certain claims under the Mining Act.
Claim holders with claim anniversary dates on or before December 31, 2020 will be granted an exclusion of time order by making a brief request via email. There will be no cost for COVID-19 related exclusion requests. The exclusion of time orders will set aside the requirement to carry out assessment work for a period of time of up to 12 months.105
v. Environmental Bill of Rights
The MECP has temporarily exempted government ministries from the minimum 30-day consultation requirement to post proposals for acts, regulations, policies and instruments to the Environmental Registry. This temporary measure exempts proposals for policies, acts, regulations and instruments from Part II of the Environmental Bill of Rights, 1993 and removed the requirement to consider the Statements of Environment Values so that it can expedite decision-making and implementation of measures to respond to the emergency.
This means that while the regulation is in effect:
- proposals for policy, act, regulation and instrument notices will no longer be required to be posted for a 30-day comment period; and
- decision-makers will no longer be
required to consider their Statements of Environment Values.
This temporary measure will expire 30 days after the termination of the provincial emergency declaration.106
After concern from some environmental groups that the language of these changes was too broad, the MECP confirmed that only pandemic-related proposals are exempt from public consultation although an information notice must be posted online.107
vi. Environmental Consultants
The Ontario government has confirmed that businesses that provide or support the delivery of environmental rehabilitation, management and monitoring, as well as spill clean up and response services are considered essential services.108
Following Quebec's declaration of a state of health emergency, the Government ordered on March 23, 2020 the closure of all non-priority businesses and services until May 4, 2020 and in the process issued a list of essential services and commercial activities.109
The Quebec Ministre de l'Environnement et de la Lutte contre les changements climatiques (the "MELCCC") has introduced temporary exemptions for certain ministerial authorizations otherwise required to modify or convert a company's operations and in respect to enforcement activities of the Centre de contrôle environnemental du Québec ("CCEQ"). It has also extended specific reporting deadlines under its greenhouse gas legislation.
In addition, the Tribunal Administratif du Quebec has temporarily restricted its operations due to COVID-19.
i. Essential services and commercial activities
The majority of the essential services and authorized commercial activities are based on a determination as to their necessity during the state of health emergency, including protection of the environment and the health and safety of the public. The following activities relating to environmental services are currently considered essential:
- Enterprises involved in environmental emergencies;
- Activities related to waste collection and residual materials management;
- Maintenance and operation of strategic infrastructure, including (i) construction, maintenance and upkeep of essential activities in connection, in particular, with public and private infrastructures that may create a risk for public health and safety (private dams, management of hazardous and radioactive waste, etc.) and (ii) Sanitary services and supply chains (for example water treatment plants);
- Construction sector services, including construction and renovation of residential dwellings, for any immovable property where the taking of possession of a residential unit must take place on or before 31 July 2020, including the supply of goods and services that may be required for the work, including the services of land surveyors, building inspectors and assessors, and chartered appraisers.110
Based on the above list, environmental consulting firms and professional engineers and geoscientists appear to be essential services in only certain limited circumstances. As a result, it is likely that ordinary environmental due diligence investigations would not constitute essential services.
On April 28, 2020, the Province updated the list of essential services and announced a gradual resumption of certain activities. Starting on May 11, 2020, all construction industry worksites, residential, civil engineering and roads, institutional, commercial and industrial sectors will be able to resume their activities, along with the industry's supply chains. However, the Province stipulated that administrative staff in these sectors must continue to engage in teleworking.
At this time, it is not clear whether this resumption of activities only involves the supply chain of the industry or if it also involves the supply of other services required in the industry to perform its work, such as the services of environmental consulting firms and professional engineers and geoscientists that is non-urgent.111
ii. Exemptions for Ministerial Authorizations
The MELCCC has simplified the process for companies wishing to convert some or all their operations to help meet the growing and urgent demands for essential products to combat COVID-19.112
On April 2, 2020, the MELCCC exercised its authority under section 31.0.12 of the Environment Quality Act ("EQA")113 to introduce temporary exemptions for companies requiring prior ministerial authorisation in advance of altering their operations in the following two situations:
- Increase in production of a product the company already manufactured; and
- Temporary modification of usual activities in order to produce a new product. The modification or addition of activity includes equipment that can be modified or facilities that could be quickly reorganized to meet medical needs or to manufacture personal protective equipment such as gloves, masks, gowns, disinfectants, wipes, respirators and other medical equipment and supplies.114
To benefit from this exemption, companies must provide the MELCCC with specific information regarding the proposed temporary change to their operations. Upon receipt from the MELCCC of a response confirming the exemption (expected within 48 hours), the exemption will become effective immediately.115
The temporary exemption is only valid for the duration of the health emergency. At the end of that period, temporary activities will be required to cease as soon as possible and regular activities must resume in accordance with any ministerial authorizations in force, if applicable.116
Note that despite the temporary exemption, the MELCCC has made clear that all other provisions of the EQA and its regulations remain applicable at all times and that any company benefiting from this exemption remains under an obligation to comply with the same standards as before the state of health emergency. Similarly, anyone responsible for the accidental release of a contaminant into the environment is still required to immediately stop the release and notify the MELCCC.117
iii. Ministry Operations and Enforcement
The CCEQ has advised that it will temporarily make the following modifications to its operations in order to maintain social distancing and in consideration of current issues faced by impacted parties, including municipalities, farmers, industries and businesses due to COVID-19:
- Field inspections, other than those related to priority services (e.g. emergencies, complaint handling and drinking water monitoring), will be limited and carried out mainly in situations posing a significant risk to the environment or the health and safety of the population or in urgent situations;
- Off-site inspections that are administrative in nature are to be carried out remotely. The CCEQ's objective in this context will be to prepare for its transition to return to routine operations when the current situation returns to normal.118
Note that all other environmental obligations remain in full effect in any situation which may impact the health and safety of the population as well as on the environment and any entities, private or public. However, the CCEQ has indicated that it will show understanding and flexibility in the event of compliance omissions with respect to various administrative obligations of companies who, following the Quebec government's directives in response to COVID-19, have temporarily ceased their activities or for those who provide an essential service.119
The CCEQ has also indicated that:
- Enforcement measures under the EQA, such as notices of non-compliance, administrative monetary penalties or any other recourse will be limited and adapted to the specific situation affecting Quebec.
- In the event that situations of non-compliance lead to harm or significant risk of harm to the environment or to the health and safety of the population, the CCEQ will evaluate the action to be taken, taking into account the current situation and the context specific to each file.
- In the majority of non-compliance situations, coercive tools such as administrative sanctions will not be used during this period.
- The EQCC reserves the right to use one of the applicable enforcement tools if the situation requires it.120
iv. Amendments to Reporting Requirements
The MELCCC has extended the mandatory reporting deadline for reporting issuers to submit their annual declarations and verification reports under the Regulation respecting mandatory reporting of certain emissions of contaminants into the atmosphere121 from June 1, 2020 to July 31, 2020.122
v. Permits and certificates for the sale and use of pesticides
The MELCC has adapted certain steps leading to the issuance of certificates and permits for the sale and use of pesticides:
- Training and Certification Examination. The Société de formation à distance des commissions scolaires du Québec (SOFAD) offers two alternative solutions to cope with the cancellation of training sessions: online self-study training and distance learning. The online exams for most certificates or licenses will be available as of April 22, 2020 for the French and May 6, 2020 for the English versions. The remaining exams will be progressively made available online and will all be available by the end of June 2020.
- Application for Permits or Certificates. When re-applying for a permit or certificate, the electronic format is preferred and the application form and required documents must be emailed to the relevant regional office along with the applicable fee (a bank transfer is now possible for municipalities and companies). The online service also enables to submit new certificate applications.
- Renewal of Permits or Certificates. Instructions will soon be communicated by the MELCC.123
vi. Adjustments to Environmental Approvals
The MELCC has confirmed that the process for applications for Ministerial environmental authorizations and statements of compliance will remain in effect with the additional of the following new special features:
- Applications for Ministerial Environmental Approvals – The MELCC has advised that applications submitted in paper format will be processed as soon as possible. Applications submitted in electronic format cannot be processed at this time. With respect to applications for spring use of certain fertilizing residual materials, electronic filing will speed up the applications assessment process, but this does not exempt the applicant from the requirement to submit a paper version of the application as well.
- Filing a declarations of compliance – Declarations of compliance must be filed at least 30 days before work begins. While paper format is still preferred filing method, if it is not possible to complete a paper filing, the declaration may be filed in electronic format with any required fees.
- Financial compensation for damage to wetlands or water bodies – Financial compensation for damages to wetlands or water environments can now be made by way of a bank transfer for companies and municipalities. Steps are being taken to expand this option to individuals as well.124
vii. Declaration of water withdrawals
The MELCCC will show understanding regarding any delay in filing 2019 water withdrawal declarations by the March 31, 2020 deadline under the Règlement sur la déclaration des prélèvements d'eau.125 However, the MELCCC has not indicated this is a suspension of the filing obligation. This understanding also applies to payment of water usage fees for the year 2019. The MELCCC has confirmed that no interest or penalty will be applied until further notice.126
viii. Tribunal Administratif
The Tribunal Administratif du Quebec, Territory and Environment Section, which hears applications contesting decisions made by a government department or agency or a municipality in relation to land protection, agricultural activities and environmental protection, has advised that only proceedings that are deemed urgent, priority and essential will be heard at this time. Starting on May 4, 2020, remote means (presumably phone or video conference) will be used for hearings and other meetings with the Tribunal. The offices of the Tribunal will remain accessible only to the people called for a hearing or to those who need an essential service.127
In addition, the usual time limits for filing a proceeding are suspended until the health emergency has been lifted. This measure aims to safeguard the rights of citizens, while maintaining social distance from the Tribunal's facilities.128 During this period, motions to institute a proceeding and other documents can nevertheless be submitted electronically.129
The Department of Fisheries and Land Resources has extended the annual validation expiry date for all current existing aquaculture licences in Newfoundland and Labrador from March 31, 2020 to May 31, 2020. The department has stated that it will work with industry during the extension period to ensure aquaculture licence renewal requests are processed in a timely manner.130
As of the date of this Bulletin, Newfoundland and Labrador has not issued any Ministerial orders or other directives limiting services performed by environmental firms, engineers and geoscientists. However, employers and workplaces are required to comply with the health and safety guidance documents issued by the Province.131
As of the time of writing, New Brunswick has not issued any Ministerial Orders or other directives specifically addressing environmental matters in relation to COVID-19.
However, on March 19, 2020, the government of New Brunswick issued an order listing businesses in the province that can maintain operations despite the state of emergency and includes "environmental clean-up businesses". As a result, it appears that at least some work performed by environmental firms, engineers and geoscientists may continue.132
Nova Scotia has closed the Nova Scotia Aquaculture Review Board ("NSARB") and suspended all hearings until further notice. In addition, approved aquaculture licensing and leasing option period expiry dates and referral of adjudicative applications to the NSARB under the Aquaculture Licence and Lease Regulations133 are suspended until further notice.134
As of the date of this Bulletin, Nova Scotia has not issued any Ministerial orders or other directives limiting services performed by environmental firms, engineers and geoscientists. However, employers and workplaces are required to comply with the health and safety protocols under the Health and Protection Order issued April 23, 2020.135
As of the time of writing, Prince Edward Island has not issued any Ministerial Orders or other directives specifically addressing environmental matters in relation to COVID-19.
The Province has designated the following as essential services:
- Professional services, including but not limited to, lawyers and paralegals, engineers, accountants - teleworking and working from home, where possible;
- Provision of clean water;
- Garbage, recycling and waste management collection;
- Construction services and projects (industrial, commercial, institutional and residential; only those that have been issued a building permit).136
Given the above list of essential services, in particular the reference to engineers and other unlisted professional services, it appears that services performed by environmental firms, engineers and geoscientists may continue in the Province.
1 O Reg 73/20 (order under subsection 7.1(2) of the Emergency Management and Civil Protection Act).
3 SC 1992, c 34.
5 Ibid, s 6.5.
6 Ibid, s 12.1(1); International Civil Aviation Organization, Technical Instructions, Montreal: ICAO, at para 4.2.3 (Chapter 4: Training of Part 1: General).
7 https://www.tc.gc.ca/media/documents/tdg-eng/0750-eng-Transportation_of_Dangerous_Directorate_Transport_Canada.pdf Transports Canada, " Temporary Certificate Pursuant to Subsection 31(2.1) of the Transportation of Dangerous Goods Act, 1992: Certificate Number: TU 0750", (27 March 2020).
8 https://www.tc.gc.ca/media/documents/tdg-eng/0750-eng-Transportation_of_Dangerous_Directorate_Transport_Canada.pdf Ibid.
9 Supra note 4 at part 5.
10 Transports Canada, " Temporary Certificate Pursuant to Subsection 31(2.1) of the Transportation of Dangerous Goods Act, 1992: Certificate Number: TU 0751", (27 March 2020).
12 Transports Canada, " Temporary Certificate Pursuant to Subsection 31(2.1) of the Transportation of Dangerous Goods Act, 1992: Certificate Number: TU 0752", (3 April 2020).
15 Transports Canada, " Temporary Certificate Pursuant to Subsection 31(2.1) of the Transportation of Dangerous Goods Act, 1992: Certificate Number: TU 0753", (5 April 2020).
18 Transports Canada, " Temporary Certificate Pursuant to Subsection 31(2.1) of the Transportation of Dangerous Goods Act, 1992: Certificate Number: TU 0754", (9 April 2020).
21 Government of Canada, " COVID-19: Requirements for safe transportation of infectious substances (Class 6.2)", (last modified 7 April 2020).
22 Fisheries and Oceans Canada, " COVID-19 – Information for industry and partners", (last modified 4 April 2020), [Information for industry and partners]; See also Minister's Joint Statement with counterpart Ministers in Quebec, New Brunswick, Newfoundland and Labrador, Nova Scotia, and Prince Edward Island, Government of Canada, " Joint statement on ongoing collaboration of federal-provincial ministers related to COVID-19 impacts", (27 March 2020).
23 Information for industry and partners, supra note 22.
24 RSC 1985, c F-14.
25 Information for industry and partners, supra note 22.
27 Supra note 22.
28 Environment and natural resources Canada, " Deadlines and most recent changes: National Pollutant Release Inventory", (last modified 24 April 2020).
29 Open Burning Smoke Control Regulation, BC Reg 152/2019 (open burning is defined as "the combustion of vegetative debris using an open fire other than (a) for a domestic or an agricultural purpose, if all of the vegetative debris is branches or other pieces of vegetative debris, with or without leaves, each branch or piece of which is less than 3 cm in diameter, or (b) a campfire.", s 1).
30 Ministry of Environment and Climate Change Strategy, " Media Release: Open Burning Restrictions Issued for All High Smoke Sensitivity Zones in British Columbia", (26 March 2020).
31 Supra note 29, s 29(1)(a).
32 BC Wildfire Service, " Category 2, Category 3, Resource Open Management Fires to be prohibited", (7 April 2020).
34 SBC 2003, c 53.
35 Supra note 33.
41 BC Oil & Gas Commission, "BC Oil and Gas Commission COVID-19 Response for Industry", (last visited 22 April 2020).
43 RSA 2000, c P-37.
46 RSA 2000, c E-12.
47 RSA 2000, c W-3.
48 RSA 2000, c P-40.
51 RSA 2000, c C-17.
52 RSA 2000, c O-6.
53 RSA 2000, c O-7.
54 Supra note 51.
57 Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
58 SA 1930, c 21.
59 RSA 2000, c W-10.
60 RSA 2000, c F-22.
61 Environmental and Parks, " Temporary Amendment of Select Air Monitoring Directive Requirements: AEP Response to COVID-19", (31 March 2020).
62 RSA 2000, P-34.
64 Alberta Utilities Commission, " Announcement: Statement from AUC Chair Mark Kolesar regarding COVID-19", (27 March 2020).
67 Alberta Utilities Commission, "COVID-19 impacts: How the AUC is mitigating the risk of COVID-19 and continuing its essential work", (last visited 13 April 2020).
68 Alberta Utilities Commission, "Bulletin 2020-06: AUC defers live proceedings to reduce COVID-19 risk", (12 March 2020).
69 Alberta Utilities Commission, "Bulletin 2020-07: AUC announces two measures in response to COVID-19 threat", (17 March 2020).
70 Supra note 65.
73 Saskatchewan Ministry of Environment, " Ministry of Environment Temporary Enforcement Policy during the COVID-19 Pandemic", (last visited 8 April 2020).
75 Saskatchewan Ministry of Energy and Resources, " Regulatory Relief Measure for Oil and Gas Dispositions", (last visited 26 April 2020).
76 Supra note 74.
77 SS 2010, c E-10.22.
78 SS 1979-80, c E-10.1.
79 Agricultural Packaging Product Waste Stewardship Regulations, RRS c E-10.22 Reg 4; The Electronic Equipment Stewardship Regulations, RRS, c E-10.22, Reg 6; Household Packaging and Paper Stewardship Program Regulations, RRS, c E-10.21, Reg 5; Waterworks and Sewage Works Regulations, RRS, c E-10.22, Reg 3; Waste Paint Management Regulations, RRS, c E-10.21, Reg 3;Used Petroleum and Antifreeze Products Stewardship Regulations, RRS, c E-10.22, Reg 7; Scrap Tire Management Regulations, 2017. RRS, c E-10.22, Reg 5; The Household Hazardous Waste Products Stewardship Regulations, RRS, c E-10.22, Reg 8; Hazardous Substances and Waste Dangerous Good Regulations, RRS c E-10.2, Reg 3; PCB Waste Storage Regulations, RRS c E-10.2, Reg 1; Municipal Refuse Managements Regulations, RRS c E-10.2, Reg. 4; The Waterworks and Sewage Works Regulations, RRS c E-10.22, Reg 3.
80 SS 1998, c W-13.12.
81 SS 2016, c P-31.1.
82 RRS c P-31.1 Reg 3.
83 SS 1996, c C-27.01.
84 SS 2010, c M-2.01.
86 Supra note 74.
88 Supra note 75.
89 RRS 1978, c O-2.
90 RRS 2012, c O-2 Reg 6.
91 RRS 2019, c O-2 Reg 7.
92 SS 1998, c P-12.1
93 RRS, c P-12.1 Reg 2.
94 RRS, c C-50.2 Reg 31.
95 Supra note 76.
96 Government of Saskatchewan, " Critical Public Services to Address COVID-19 and Allowable Business Services", (9 April 2020).
99 CBC News, " Manitoba Hydro asks province to relax environmental requirements during COVID-19 pandemic", (last modified 27 April 2020).
100 Supra note 1.
106 Ontario, "Temporarily exempting proposals from the application of the Environmental Bill of Rights" (last modified 3 April 2020).
107 CBC News, " Environmentalists slam Ontario for suspending oversight regulation amid pandemic", (last modified 23 April 2020).
109 Government of Quebec, " List of essential services and commercial activities" (last modified 21 April 2020).
111 Government of Quebec, " Gradual resumption of activities under the COVID-19-related pause" (last updated 29 April 2020).
113 CQLR c Q-2, s 31.0.12.
121 RRQ, c Q-2, r 15.
122 Ministre of l'Environnement et de la Lutte contre les changements climatiques, " Déclaration obligatoire de certaines émissions de contaminants dans l'atmosphère" (last consulted 28 April 2020).
123 Ministre of l'Environnement et de la Lutte contre les changements climatiques, " Permis et certificats pour la vente et l'utilisation de pesticides (COVID-19)" (last updated 24 April 2020).
124 Ministre of l'Environnement et de la Lutte contre les changements climatiques, "Autorisations environnementales : ajustements (COVID-19)" (last updated 24 April 2020).
125 Règlement sur la déclaration des prélèvements d'eau, CQLR, c Q-2, r 14.
126 Ministre of l'Environnement et de la Lutte contre les changements climatiques, " Déclaration des prélèvements d'eau 2019 – Tolérance pour la transmission et le paiement de la redevance" (last updated 27 April 2020).
130 Newfoundland and Labrador, "Public Advisory: Deadline Extended for Current Aquaculture Licenses", (last viewed 22 April 2020).
131 Newfoundland and Labrador, " COVID-19 Workplace Information" (29 April 2020); Newfoundland and Labrador, " COVID-19 Guidance on Personal Protective Equipment (PPE) for Employers" (29, April 2020).
133 NS Reg 347/2015.
135 Nova Scotia, " Order by the Medical Officer of Health Under Section 32 of the Health Protection Act 2004, c. 4, s.1" (23 April 2020).
The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.
© McMillan LLP 2019