ENVIRONMENTAL REGULATIONS IN CANADA

The article is written by Saloni of 7^th Semester of BBALL.B, Department of laws, Bhagat Phool Singh Mahila Vishwavidyalaya, Khanpur Kalan, an intern under Legal Vidhiya

ABSTRACT

This article presents all-inclusive synopsis about the environmental regulation in Canada. Environment has become a cause of concern now a days because the quality of environment is degrading day by day so Environment regulations are adopted by the various countries in order to protect the environment from being degraded and Canada is one of them. The report titled “Environmental Rule of Law,” that was produced by researchers from the Environmental Law Institute under the supervision of a team from the UN Environment Programme (UNEP), gives an overview of the numerous developments in environmental law since 1972 as various nations increasingly come to grasp the connections between the environment, economic growth, public health, social consistency, and protection. [1]As of 2017, 150 countries have made laws for the protection of environment and the right to healthy environment in their constitution and 164 countries has made cabinet level bodies for the protection of environment.  According to research approximately 350 courts were established for the protection of natural environment and about 50 tribunals have been established.  Environment regulation is the process of imposing restrictions or obligations on people, businesses and other organization in order to protect the environment or to restore damaged ecosystems and maintain ecological balance. One strategy to regulate the environment is by means of environmental regulation, which is frequently combined with other complementary techniques. In most of the cases the purpose of environmental regulation is to protect the natural environment and to protect all the natural resources. The main focus of regulation usually involves pollution of the air, water, noise, and soil, as well as intoxication of aquifers beneath the surface. To tackle ecological issues and ensure the conservation of natural resources, legislation regarding the environment must be implemented. Environmental laws, for instance, tackle concerns like climate change, acid rain, hunting endangered species, deforestation, the loss of natural resources, and pollution of the air, water, and land.  In Canada, the federal, provincial, and municipal levels each possess power to implement regulations pertaining to environmental concerns.  The Constitution Act of 1867 grants jurisdiction over multiple problems to either the central government or the provinces.  The courts, however, have determined that it is a shared, joint area of duty since it is not specifically assigned to either the federal government or the provinces.

Keywords: Environmental impact assessment, CEPA, federal and provincial institutions,Provincial and Territorial Ministries, Environment Canada, climate change

INTRODUCTION   

Firstly in order to know about the environmental regulation in Canada it is essential to understand the institutional framework for the protection of the environment. Canada is a sovereign monarchy, the Federal republic and parliamentary democracy. There are 10 provinces in it – Alberta, British Columbia, Manitoba, New Brunswick, Newfoundland and Labrador, Nova Scotia, Ontario, Prince Edward Island, Quebec and Saskatchewan  and 3 territories are there in it namely the Northwest Territories, the Yukon and Nunavut (created on 1 April 1999). Environmental laws are enacted in Canada by the federal government, 10 provincial governments and the 3 northern territorial governments. The provincial and territorial legislatures also grant the municipal administration the authority to pass laws in a few limited environmental areas. The federal government maintains to exercise authority over interprovincial or cross-border problems like transportation of dangerous commodities, navigation, water bodies, aquaculture, nuclear energy, and interprovincial infrastructure like pipelines and railroads. Federal and provincial environmental regulatory regimes commonly overlap, even though the Canadian Constitution gives the federal parliament and the provincial legislatures’ discrete areas of responsibility. However, the federal government has jurisdiction over a few specific problems.

FEDERAL LEGISLATION:

The federal government has enacted some of the following legislation, among others:

• Canadian environment protection acts 1999
• Transportation of dangerous goods act 1992
• Nuclear safety and control act
• Species at risk act
• Fisheries act
• The Canada Shipping Act
• The Arctic Waters Pollution Prevention Act
• The Pest Control Products Act
• Migratory Birds Convention Act 1994

FEDERAL DEPARTMENTS

Ministries and departments dedicated to environmental conservation are present in both the federal government and each provincial Environment Canada; a federal agency established in 1971, is administered by the Department of Environment Act and is presided over by the Federal Minister of the Environment. The excellence of the natural environment, which includes the flora, wildlife, and renewable resources of the air, water, and soil, is the responsibility of Environment Canada. Additionally, it coordinates with federal government policies and initiatives aimed at improving and safeguarding the environment and natural resources. It also fits with how the GREAT LEAKS INTERNATIONAL JOINT COMMISSION has approved rules and regulations to be applied. About 15 federal acts are administered by Environment Canada. Environment Canada is also assigned the responsibility to implement Canadian environment protection act 1999.

 The implementation of CEPA 1999 also provides for the treatment of dangerous substances, which is under the joint responsibility of Health Canada and environment Canada. Another department dealing with the environment which is likely to have bearing on Canadians’ lives and health is health Canada. National parks are the responsibility of Heritage Canada.

OTHER FEDERAL DEPARTMENTS

There are other several federal departments which are also responsible for environmental matters. Some of them are as follows:

Agriculture and Agri food Canada

Fisheries and oceans Canada

Natural resources Canada

Department of foreign affairs and international trade

Federal government in 1994 created the national round table on the environment and the economy (NRTEE). NRTEE is an independent entity from the federal government. The federal government has no authority over NRTEE. Through the development of broad policies and the formulation of guidelines to guide governmental action, NRTEE aids in the definition, interpretation, and promotion of the fundamental ideas underlying sustainable development.

FEDERAL-PROVINCIAL INSTITUTIONS

In order to encourage cooperation between federal and local authorities in environmental matters, Canadian Council of Ministers for the environment has been set up. In order to assist in solving issues relating to the environment, additional federal-provincial institutions have been set up. Some of them are:

 Wildlife Ministers Council of Canada

The Federal-Provincial Parks Council

The Canadian Council of Forest Ministers

 Federal-Provincial Agriculture Ministers Conference

Canadian Council of Energy Ministers

PROVINCIAL AND TERRITORIAL MINISTRIES

The ministry of environment and natural resources has executive responsibility for pollution prevention and preservation in every province or territory. The responsibility for the application and development of environmental legislation, regulation and policies lies with local and regional authorities. They are responsible for issuing permits and licenses, monitoring the compliance of developments with environment standards, carrying out inspections as well as preparing criminal cases on offences in relation to pollution. Various bodies report directly to the environment ministries.

LOCAL PUBLIC AUTHORITIES

• The following categories shall normally be used for environmental management and regulation at local level:
• Hazardous materials,
• Business licensing and regulation,
• Air and water pollution
• Nuisance
• Environmentally sensitive areas
• Public health
• Planning and zoning

CONSTITUTIONAL PROVISIONS

Local public bodies’ ability to regulate and manage the environment is significantly influenced by their legal status as municipalities established by provincial governments. The Canadian constitution does not specifically or implicitly refer to the environment. The two levels of government share responsibility for protecting the environment. In addition, the provisions of section 91 of the constitution confer jurisdiction in 29 areas on the federal government and give it no additional competence to deal with matters which have yet to be established by either level of government.

17 areas fall within the province’s jurisdiction are mentioned in sections 92 and 92A of the constitution. There are many conflicts between federal and provincial laws, however if there is a direct contradiction, the federal law must take precedence. Although provinces have much more authority over the environment compared to federal parliament, if they can show that any activity or specific aspect of a certain activity is subjected to its jurisdiction pursuant to the constitution, it remains necessary for the federal government to impose legislation on all activities relates to the environment.

GENERAL LEGISLATION AND POLICIES RELATING TO THE ENVIRONMENT

There is no uniform National Statute for environmental protection in Canada due to the federalistic, regional nature of that country’s policy system The Canada-wide Accord on Environmental Harmonization was signed in January 1998 by all members of the Canadian Council of Ministers of the Environment, with the exception of Quebec. In order to achieve the highest possible level of environmental protection for all Canadian citizens, governments are called upon by the Accord to work in partnership.

IMPLEMENTATION AND ENFORCEMENT

In Canada, the offence is usually considered to be a crime for failure to comply with laws and regulations relating to the environment. Federal or local authorities are usually the ones who initiate legal proceedings for environmental violations. However, the citizen’s right of initiating legal proceedings is also governed by common law. It’s a matter of private prosecution. However, a public prosecution may be administered by the provincial attorney general and continued or terminated by that person in charge of law enforcement. Apart from criminal prosecutions, certain environmental legislation allows individuals to bring civil actions to recover damages for loss or damage caused by environmental offences. These are, indeed, precisely the types of cases covered by CEPA 1999. In the field of environment, injunctions have been a significant tool in court proceedings. A court may, in certain circumstances, order that loss or injury be prevented as part of a civil action.

ENVIRONMENTAL IMPACT ASSESSMENT

There is the power of law to regulate environmental impact assessments at both levels of government in Canada. Federal environmental evaluation is governed by the Canadian Environmental evaluation Act (CEAA), which became effective in January 1995. The management of the environmental assessment process is under the responsibility of the Canadian Environmental Assessment Agency. The Act imposes no obligation on the Federal authorities to give reasons for their decision, if they decide that an environmental impact assessment of a project is not required by law. Fracflow Consultants Inc. v. White, 1993

PROTECTION OF THE ATMOSPHERE                                   

The constitutional authority over air quality issues is also exercised by the Federal and Provincial Governments. Air pollution control is the constitutional responsibility of the Federal Government and in particular through its powers for protection of Public Health and Security, as well as regulation of impacts on neighbouring countries. In view of their Constitutional competences relating to natural resources, the local governments have jurisdiction with regard to air quality. The Canada Environmental Protection Act 1999 CEPA allows for scientific research to be carried out by the Canadian Government with a view to supporting health and environmental issues in relation to air quality, development of rules on emissions from vehicles, engines and fuels; To submit a report on emissions of pollutants and to fulfil its international obligations in the field of air quality.

The Canadian government has also passed a ten-year clean air agenda that intends to enhance air quality by implementing the following five strategies:

• Decrease in transnational emissions,

• Reduction of transportation sector emissions

• Primary industrial emissions are reduced,

• Advances in science, and

• Public involvement

PROTECTION AND MANAGEMENT OF WATER RESOURCES

In Canada, provinces are primarily responsible for managing fresh water resources. Since they have legislative power to deal with all matters relating to local and personal nature, they are responsible for water use and quality [2]Young v Morash, 1991 CanLII 4415 (NS SC)

The federal government shall have jurisdiction in the field of coastal and inland fisheries, navigation and sea transport as well as trade and commerce. However, in respect of discharges to waters from a number of manufacturing activities the Federal Government set standards for concentration. In order to protect water, all provinces have adopted their own legislation. These standards include, among others, conditions that have a direct effect (pH), substances that degrade water quality substances that are toxic at low levels substances that are toxic at higher levels and microbiological indicators of risks to human health. The Federal Fisheries Act makes it illegal for persons to “deposit or permit the dumping of ‘deleterious substances’ in waters that are used by fish. The federal government has jurisdiction over drinking water provided to employees of federal works and undertakings as well as water provided to residents and visitors on federal and Indian lands. Provinces and territories are responsible for the quality of drinking water in the majority of community water systems. There is no similar statutory protection of groundwater as for surface waters within Canada, and there are no federal provisions on the subject. A certain degree of groundwater protection is not explicitly provided for by most provincial governments through policies. The Canadian Water Act provides that research, planning and programming on conservation, development and exploitation of water resources shall be endorsed by the federal government. The Act also lays out a framework for collaborative management of water resources by the federal and provincial governments.

CONSERVATION OF BIOLOGICAL DIVERSITY AND WIDLIFE

In respect of issues relating to conservation and management of wildlife, the Canadian Government and the Provinces shall have jurisdiction under their respective constitutions. It is primarily the Province’s responsibility to protect wildlife. However, migratory birds are managed by the federal government through the Canadian wildlife service of the Environment Canada. The Department of Fisheries and Oceans Canada regulates fish, marine mammals, and ocean species. In order to take into account greater awareness of the importance of biodiversity, Canada’s law on wildlife was changed in 1994. All wild animals, plants and extraterrestrial organisms shall be covered by the Act. With the 1994 amendment, Canada’s wildlife act currently allows marine ecosystems to be protected in seas up to 200 miles from shore. Threatened and endangered species fall under the purview of both the federal and provincial governments. The nine-year legislative process to safeguard endangered species in Canada and their ecosystems came to an end in December 2002 when the Federal Parliament passed the Species at Risk Act. In 2003, the new Act becomes effective.

AGRICULTURE

Federal and state governments have concurrent power to regulate agriculture in accordance with Article 95 of the Canadian Constitution. To ensure that consumers are able to obtain secure and nutrient foodstuffs at reasonable prices, the Federal Department of Agriculture and Agri Food has jurisdiction over agriculture. With a view to ensuring that consumers receive safe, healthy foods at affordable prices, the Federal Department of Agriculture and Agri Food is in charge of regulating agriculture.The responsibility for controlling pollution caused by agriculture practices such as the use of pesticides lies with the Ministry of the Environment, which has jurisdiction over most provinces. In order to prevent air and water pollution from agricultural activities, a variety of regulations or directives have been developed. The Federal Government may also regulate Pollutants from agricultural practices in which they enter fishery waters within the meaning of the Fisheries Act. In order to protect agricultural land from disturbance by residential, commercial, or industrial development, specific legislation, such as the Agricultural Land Preservation Act, may be adopted.

PROTECTION AND MANAGEMENT OF FORESTS

Forestry is regulated at local level in particular the Fisheries Act and the Convention on Migratory Birds are some of the basic Federal Statutes governing forestry management. The Canada Forestry Service is a division of the Ministry of Natural Resources. The Model Forest Programme shall be managed by the CFS. In order to demonstrate the concept of sustainable forestry practices in practice and at work, this programme was intended to set up a network of sites. In order to provide sufficient attention to forestry issues, a Canadian Council of Forest Ministers was set up in September 1995. It shall consist of 13 Ministers who are in charge of forestry at the federal, state and territorial level. In recent years, a new vision for the sustainability of Canada’s forests, called Forest 2020, has been adopted by the Canadian Council of Forest Ministers, which has reviewed global trends in forestry policy and practice [3]R. v. Roff, 1996 Newfoundland and Labrador Court of Appeal, which held that the Trial Judge had erred in his conclusion, as the Province had jurisdiction over inland waters.

[4]British Columbia v. Canadian forest products ltd (2004) the Supreme Court explains that damages could have been allowed if properly pleaded with respect to damage to environmentally protected forests, despite the fact no individuals suffered direct damage.

NATURAL RESOURCE MANAGEMENT AND PROTECTION

Following the addition of Section 92A to Canada’s Constitution, provinces are in a position to take over legislative power relating to renewable energy sources and forestland and sites for generation of electricity. Moreover, the provinces shall be entitled to most natural resources under grants granted to private persons in accordance with the Canadian constitution but certain exceptions such as ownership by a federal government and of course indigenous rights are also provided for. Therefore, it is provinces that play an essential role in regulating issues relating to the development of natural resources. Consequently, in order to ensure the review and mitigation of the adverse environmental impact of the proposed development, both federal and provincial environmental assessment statutes have been put in place. [5]Reference re Newfoundland Continental Shelf, 1984 This case was heard in the Supreme Court of Canada. In this reference case, the Supreme Court of Canada considered whether Canada or Newfoundland has the right to explore for and exploit mineral and other natural resources of the seabed and subsoil of the continental shelf offshore Newfoundland. The Court also considered which government—the federal or the provincial—has the jurisdiction to make laws concerning such exploration and exploitation. Ultimately, the Court held that Canada has the right to explore for and exploit the natural resources in question, and that Canada also has the jurisdiction to make laws concerning such activities

REGULATORY ENFORCEMENT 

In Canada, the Environment Act provides for a wide range of remedies to Provincial and Federal Governmental Authorities, including issuing Orders, Administrative Sanctions as well as imposing charges. In Canada, convictions of offences against the environment carry a significant maximum sentence. Minimum legal sanctions, usually reserved for more serious infringements on the environment, are also laid down in some jurisdictions. In Canada, serious infringements of the environment are treated as strict liability offences. In addition to regulatory offences, administrative monetary penalties are increasingly being adopted in environmental statutes.

RECENT DEVELOPMENTS IN CANADIAN ENVIRONMENTAL REGULATIONS

Canada’s in the business of preserving the environment, just like many western industrialized countries. Over the last ten years, enforcement activity has continued to rise sharply as evidenced by a high number of f prosecutions and stricter penalties. Canada also considers its environmental legislation, which seeks to foresee and prevent actors from carrying out activities that could ultimately result in degradation of the environment, as proactive.

On April 13, the Government of Canada introduced Bill C-28: Strengthening Environmental Protection for a Healthier Canada Act, which proposes to amend the Canadian Environmental Protection Act, 1999 (CEPA) and the Food and Drugs Act (FDA). These changes would mark a historic reform of CEPA, making it easier to make major changes in the Canada program for managing Chemicals and facilitating an entirely new assessment regime with regard to FDA regulated drugs.

Recognizing the right of each Canadian to a proper environment and cumulative effects: In order to enshrine this right in CEPA’s preamble, we are amending it, An implementing framework setting out how this right is to be taken into account in the administration of CEPA shall be drawn up.

On June 14th, 2023, Bill S-5, Strengthening Environmental Protection for a Healthier Canada Act, received Royal Assent. CAPE joins in celebrating Canada’s first law recognizing the right to a healthy environment and updates to the CEPA framework for toxic substances.

[6]As quoted in the Government of Canada News Release CAPE Board President Dr. Melissa Lem said: “The passage of Bill S-5 today brings long-awaited reforms to the Canadian Environmental Protection Act (CEPA) – and this is good news for environmental and human health, and environmental justice.”

[7]The Canadian federal government, with a view to achieving zero waste of plastics by 2030, has taken first steps towards regulating Single Use Plastics when it put plastic manufactured items on the list of Toxic Substances covered by Canada’s Environmental Protection Law 1999 and empowered its Environment Minister to enforce those provisions.

CONCLUSION

Hence it can be concluded that the constitution of Canada grants power to both the federal and the provincial government to make laws regarding environmental matters. In Canada various rules and regulations are enacted to ensure protection and management of natural resources and environment. Curiously, the environmental challenges found in Canada are not different from those of other modern economies with an increasing impact on air, water and landscape as well as a bio web that ties them together. Moreover, the special challenges of resource development bring a wide range of problems and issues to Canadians as they do in most other countries.

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[1] (Carl Bruch, 2019 ) https://www.universal-rights.org/wp-content/uploads/2019/10/UNEP-Environmental_rule_of_law.pdf

[2] (Young v. Morash, 1991 CanLII 4415 (NS SC), 1991)https://www.canlii.org/en/ns/nssc/doc/1991/1991canlii4415/1991canlii4415.html

[3] (R. v. Roff, 1996 CanLII 11042 (NL CA), 1996)https://www.canlii.org/en/nl/nlca/doc/1996/1996canlii11042/1996canlii11042.html

[4] (British Columbia v. Canadian Forest Products Ltd., 2004) https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2152/index.do

[5] (Reference re Newfoundland Continental Shelf, 1984 CanLII 132 (SCC), 1984)https://www.canlii.org/en/ca/scc/doc/1984/1984canlii132/1984canlii132.html

[6] (Canadian Environmental Protection Act (CEPA) Reform)

[7] (Environment & Climate Change Laws and Regulations Canada 2023)https://iclg.com/practice-areas/environment-and-climate-change-laws-and-regulations/canada