As Canadians become ever more vigilant about the state of the environment and insistent that offenders of environmental laws be held accountable, we have witnessed an increasing degree of government regulation intent upon protecting the environment. Indeed, in light of the emergence of climate change as perhaps the major environmental issue of our time, the environment has become such an important issue that it is
imperative for anyone in a business venture to be fully informed on what the relevant environmental laws
allow and prohibit, and how to respond to the demands of governments and the public.
All levels of government across Canada have enacted legislation to regulate the impact of business activities
on the natural and human environment. Environmental legislation in Canada is not only complex, but often
exceedingly vague, and regulators have considerable discretion in the manner in which it is enforced. Courts
have been active in developing new standards and principles for interpreting environmental legislation. In
addition, civil environmental lawsuits (including class actions) are now commonplace in Canadian
courtrooms, involving claims over contaminated land, noxious air emissions and environmental agreements.
The result has been a proliferation of environmental rules and standards to such an extent that one needs a
ʺroad mapʺ to work through the legal maze.
The environment is not named specifically in the Canadian Constitution and, consequently, neither federal
nor provincial governments have exclusive jurisdiction over it. Rather, jurisdiction is based upon other
named ʺheads of powerʺ, such as criminal law, fisheries or natural resources. For many matters falling under
the broad label known as the ʺenvironmentʺ, both the federal and provincial governments can and do
exercise regulatory responsibilities. This is referred to as ʺconcurrent jurisdictionʺ, which, in practical terms
for business managers, means both provincial and federal legislation and regulations must be complied with.
Historically, the provinces have taken the lead with respect to environmental conservation and protection.
However, the federal government is increasing its role in this area and some municipalities are becoming
more active, by their use of bylaw authority.
Environmental statutes frequently create offences for non‐compliance, which can lead to substantial penalties
including million dollar fines and/or imprisonment. Many provide that maximum fines are doubled for
subsequent offences, and can be levied for each day an offence continues. Most environmental statutes
impose liability on directors, officers, employees or agents of a company where they authorize, permit or
acquiesce in the commission of an offence, whether or not the company is prosecuted. Companies and
individuals may defend against environmental charges on the basis that they took all reasonable steps to
prevent the offence from occurring. Some statutes create administrative penalties, which are fines that can be
levied by the government regulators and boards, instead of courts. British Columbia and Canada both allow
for tickets, similar to motor vehicle infractions, for non‐compliance. Enforcement officers generally have
rights to inspect premises, issue stop‐work orders, investigate non‐compliance, obtain warrants to enter and
search property, and seize anything believed to be relevant to an alleged offence.
British Columbia has a unique history in that the vast majority of its land base is subject to unresolved land
claims by First Nations (there are a few treaties in certain parts of the province). As a result, any natural
resource development activities in British Columbia will need to consider and address the potential impacts
to aboriginal rights, which are constitutionally protected in Canada. The law has been rapidly developing in
this area over the last decade and it is both a matter of provincial and federal government authority. While it
is beyond the scope of this Overview to discuss these considerations, governments must carry out
consultation with First Nations on proposed activities on government land and, where necessary,Page 2 BLAKE, CASSELS & GRAYDON LLP
accommodate the interests of First Nations. The scope and meaning of this will depend on the nature of the
potential impact to a First Nationʹs rights. In addition, establishing a business relationship between First
Nations and a business operator or project proponent has become integral to the successful pursuit of such an
activity or project in British Columbia.
This Overview is designed to assist the reader to understand the rapidly changing environmental regulatory
maze in British Columbia, but it is not intended to provide legal or other professional advice. Readers should
seek specific legal advice on particular issues with which they are concerned. For more information on how
we can help you meet your business objectives, visit our web site at www.blakes.com, or contact any member
of the Blakes Vancouver Environmental Group.
The law is stated as of February 10, 2014. BLAKE, CASSELS & GRAYDON LLP Page 3
2. KEY LEGISLATIVE / REGULATORY DEVELOPMENTS
This year we are introducing a new section to our Overview, in which we highlight key regulatory
developments from the previous year, as well as those we expect to see in the upcoming year.
2 . 1 B r i t i s h C o l u m b i a
W a t e r A c t R e v i e w
The provincial government is in the process of modernizing the Water Act to respond to current and future
challenges related to the management of surface and groundwater in British Columbia. The modernization of
the Water Act has four goals: (i) protect stream health and aquatic environment; (ii) improve water
governance and arrangement; (iii) introduce more flexibility and efficiency in the water allocation system;
and (iv) regulate groundwater use in the priority areas for large withdrawals. In the Province’s Throne
Speech of February 11, 2014, the government indicated its intension to introduce a new Water Sustainability
Act in the spring session of the legislature.
P a p e r P r o d u c t s a n d P a c k a g i n g R e c y c l i n g
The stewardship requirements for paper products and packaging, which were introduced under the Recycling
Regulation in 2011, must be implemented by May 19, 2014. Manufacturers, brand owners or first importers of
such products, which include advertisements, promotional material, periodic mailings and envelopes, are
obliged to ensure they are recycled. These obligations are met by participating in programs under approved
product stewardship plans.
S p e c i e s a t R i s k R e g u l a t i o n i n B r i t i s h C o l u m b i a
Following up on the 2011 Report from the BC Task Force on Species at Risk, the Ministry of Environment
released a draft five‐year plan for protecting vulnerable species in 2013. The plan includes activities to track
and report on the recovery actions being undertaken in the province, and to develop government
implementation plans. The plan also included development of recommendations for changes to natural
resources legislation to provide for protection of species at risk, however, it did not include a
recommendation for a standalone species at risk law. Rather, the plan called for review and amendment of
existing legislation applying to various natural resource sectors to ensure consistency and to address gaps in
legal protections for species.
2 . 2 C a n a d a
F i s h e r i e s A c t
The revisions to the habitat provisions of the Fisheries Act established under Bill C‐38 in 2012 came into force
on November 25, 2013. These revisions included transitional provisions for authorizations which had been
issued under the older version of the Fisheries Act. The Order in Council bringing the revisions into force was
also accompanied by new regulations setting out the conditions for application for authorizations, and policy
and operations statements from the Department of Fisheries and Oceans regarding the application of the new
prohibitions.Page 4 BLAKE, CASSELS & GRAYDON LLP
C a n a d i a n E n v i r o n m e n t a l A s s e s s m e n t A c t , 2 0 1 2 ( C E A A 2 0 1 2 )
The Regulations Designating Physical Activities under CEAA 2012 were amended by the federal government
after input from various resource sectors and other stakeholders. Of particular significance in the
amendments was the removal of large chemical manufacturing facilities, such as LNG plants.
In 2013, British Columbia and the federal government entered into an agreement regarding substitution of the
process under the BC Environmental Assessment Act for assessments under CEAA, 2012. Subsequent to the
agreement, several projects in the Province were the subject of substitution orders, and as a result, these
projects will be assessed by the BC Environmental Assessment Office, with the federal government relying
upon on the report from that office in making its determination as to whether the project can proceed.
N a v i g a b l e W a t e r s P r o t e c t i o n A c t ( N W P A )
The amendments to the NWPA which were passed under Bill C‐45 in October, 2012, have yet to come into
force. The amendments rename the act the Navigation Protection Act (NPA) and bring about significant
amendments to the requirement for approval of construction of works associated with navigable waters. The
NPA will no longer prohibit works for all navigable waters without approval, but rather, only prohibit works
on navigable waters that are listed in the Schedule to the Act, which includes a relatively short list of oceans
and major lakes and rivers across the country. Rumor has it that the changes will come into force in the spring
N a t i o n a l E n e r g y B o a r d A c t ( N E B A )
On July 3, 2013 certain sections of Bill C‐38 which amend the National Energy Board Act came into force. These
amendments enabled: the creation of administrative monetary penalties for non‐compliance with the Act and
regulations; and the National Energy Board (NEB) to assume responsibility for international and
interprovincial pipelines that pass through navigable waters. The Administrative Monetary Penalties
Regulations were also introduced on July 3, 2013.BLAKE, CASSELS & GRAYDON LLP Page 5
3. BRITISH COLUMBIA ENVIRONMENTAL LAW AND REGULATION
3 . 1 E n v i r o n m e n t a l M a n a g e m e n t A c t
The Environmental Management Act (EMA) is the principal environmental statute in British Columbia. The
administration of the EMA falls primarily to the Ministry of Environment (the Ministry).
The EMA prohibits the introduction of waste into the environment from industries listed in the Waste
Discharge Regulation. It also prohibits the introduction of waste into the environment from any activity in
a manner or quantity that causes pollution. Pollution is defined in the EMA as the presence in the
environment of substances or contaminants that substantially alter or impair the usefulness of the
environment. Waste is broadly defined to include air contaminants, litter, effluent, refuse, biomedical
waste, hazardous waste and any other substance designated by the provincial Cabinet, whether or not the
waste has any commercial value or is capable of being utilized for a useful purpose. “Air contaminants”
and “effluents” are defined as substances that injure or damage, or are capable of injuring or damaging,
among other things, the environment. With respect to air contaminants and effluents, the EMA provides
that an air contaminant or effluent continues to be capable of harm, even if it is diluted at, or subsequent
to, the point of discharge. Furthermore, it is unnecessary to prove the actual presence of a person or other
life form that is capable of being harmed.
Activities which introduce waste into the environment may operate as long as they do so in accordance
with a permit, a Code of Practice, or a regulation. The Waste Discharge Regulation prescribes the activities
which may operate under a Code of Practice, as well as those which must have a permit. Over the past
few years, the Ministry has developed several Codes of Practice, and there are a number of others
currently under development.
The EMA also contains provisions which:
establish a specific regime for the handling of hazardous waste;
establish rules regarding spills and spill reporting;
provide for pollution abatement and pollution prevention orders;
provide for orders requiring remediation of contaminated sites;
provide for municipal waste management programs;
provide for enforcement powers, procedures and penalties;
provide for environmental protection orders; and
provide for orders in the event of an environmental emergency.
H a z a r d o u s W a s t e s
The EMA establishes a detailed regime for dealing with hazardous wastes. These include:
dangerous goods which are no longer used for their original purpose;
PCB waste;Page 6 BLAKE, CASSELS & GRAYDON LLP
wastes containing dioxin;
waste pest control product containers;
leachable toxic waste;
waste containing tetrachloroethylene; and
waste containing polycyclic aromatic hydrocarbons.
The Hazardous Waste Regulation establishes detailed siting and operational requirements and performance
standards for facilities, which include on‐site management facilities dealing with hazardous wastes. Also,
any person generating hazardous waste must register the waste and apply for a provincial identification
S p i l l R e p o r t i n g
Under the EMA, a person who has charge or control of substances listed on the Spill Reporting Regulations
must report an escape or spill to the Ministry forthwith.
C o n t a m i n a t e d S i t e s
Part 4 of the EMA and the Contaminated Sites Regulation establish a detailed regime for the identification,
determination and remediation of contaminated sites, and the assessment and allocation of liability for
remediation. Liability under the regime is absolute, retroactive, joint and separate. Once a site is found to
be contaminated, persons referred to as “responsible persons” will be responsible for remediation of the
site and may be liable to anyone who has incurred costs to remediate the site unless an exemption from
liability can be established. Remediation orders may require a responsible person to, among other things,
provide information, carry out tests, undertake site investigations, construct or carry out works, and/or
carry out site remediation. The term “responsible person” is broadly defined and includes a wide variety
of persons connected to the site, including current and past owners and operators of the site, and
transporters and producers of contaminants. A responsible person who caused only a portion of the
contamination may be named by the government to pay all of the costs of the cleanup, subject to a right
of contribution from other responsible persons. Parties are required to notify neighbours and the
government when a substance has migrated, or is likely to migrate to a neighbouring site.
The EMA provides for actions for recovery of the costs of investigation and remediation of contaminated
sites in civil court if certain conditions are met. The key condition is that the site must be determined to be
contaminated by the Ministry or by a court.
The EMA contains specific exemptions for past owners and operators of mines and mine exploration
sites. These exemptions are contingent on a number of factors, including if the owner or operator
obtained either a transfer agreement or indemnification under the Financial Administration Act.BLAKE, CASSELS & GRAYDON LLP Page 7
Since the Actʹs creation, Protocol 12, which outlines mandatory technical procedures related to site risk
classification, has undergone significant revision. In addition, technical guidance documents related to
groundwater investigation and characterization and water use determination are available. Please refer to
the Ministry’s website for further details on these and other protocols and technical guidance documents
related to the Contaminated Sites Regulation.
O t h e r R e g u l a t i o n s
The EMA also includes numerous regulations related to specific activities and/or substances. For
example, the Recycling Regulation sets out requirements for British Columbia’s recycling program. This
program has been continually expanding and currently includes beverage container, electronic and
electrical, solvent and flammable liquid, pesticide, tire, fuel, lubricating oil, pharmaceutical, paint, and
packaging and printed paper industries, which are required to implement collection and disposal
The Ozone Depleting Substances and Other Halocarbons Regulation prohibits the release of an ozone
depleting substance from air conditioning, fire extinguishing, and refrigeration equipment, or any other
container used in the recycling, re‐use, reclaiming or storage of ozone depleting substances.
The Municipal Wastewater Regulation establishes municipal effluent quality requirements and applies to all
discharges to the ground, sewer system or combination of sewer systems, and to water and to all uses of
reclaimed water. It prohibits the discharge of non‐domestic waste to a municipal wastewater facility
unless the pre‐discharge quality of the waste meets the standard or is within the range specified in the
Hazardous Waste Regulation.
E n f o r c e m e n t P r o v i s i o n s
The EMA creates a number of offences, including the failure to produce, store, transport, handle and treat
hazardous waste in accordance with the Regulations, the failure to comply with the terms of a permit,
and the failure to report the escape, spill or discharge of waste into the environment. Prosecution of an
offence must commence within three years of the date the Director designated under the Act became
aware of the offence or if the Minister issues a certificate on which the information of the offence is based,
within 18 months after the date the facts on which the information is based came to the knowledge of the
Minister. The maximum penalty for a strict liability offence is C$1‐million and/or six months’
imprisonment. In addition, the maximum penalty may be imposed for each day that the offence
continues. Where a person intentionally causes damage or loss to the environment, the maximum penalty
is C$3‐million and/or three years’ imprisonment. Courts may order penalties to be paid directly to the
government or into the Habitat Conservation Trust Foundation, which uses the money to fund
environmental projects around the province.
The EMA also allows for administrative penalties for contraventions; however, the amount of potential
penalties, the circumstances under which they can be imposed and what a proponent may do to defend
itself against a penalty have all been left to regulations which have yet to be developed.
The EMA establishes the Conservation Officer Service. Conservation Officers have the power to enforce
the EMA and the provisions of a number of other enactments, including the Forest and Range Practices Act,
the Integrated Pest Management Act, the Transportation of Dangerous Goods Act, the Water Act and the WaterPage 8 BLAKE, CASSELS & GRAYDON LLP
Protection Act, as well as, through interagency agreements, the federal Fisheries Act and the Canadian
Environmental Protection Act, 1999. Conservation Officers have inspection powers and the authority, in
certain circumstances, with or without a warrant, to enter and search property and to seize and remove
anything that is believed, on reasonable and probable grounds, to be relevant to the commission of an
The EMA also establishes the Environmental Appeal Board to hear appeals under the EMA, the Water
Act, the Integrated Pest Management Act, the Wildlife Act and the Health Act.
3 . 2 C l i m a t e C h a n g e L e g i s l a t i o n
The Greenhouse Gas Reduction Targets Act sets a province‐wide target of a 33% reduction in the 2007 level
of greenhouse gas (GHG) emissions by 2020 and an 80% reduction by 2050. While the Act sets the targets,
it does not yet impose requirements on the private sector to achieve the stated goals.
The Greenhouse Gas Reduction (Renewable and Low Carbon Fuel Requirements) Act allows the government to
set standards for the amount of renewable fuel that must be contained in British Columbia’s
transportation fuel blends, reduce the carbon intensity of transportation fuels, and meet its commitment
to adopt a new low carbon fuel standard similar to California’s. Fuel suppliers were required to carry an
average of 5% renewable fuel content by 2010. Fuel suppliers can retain fuel credits and/or GHG emission
credits and carry forward a portion of their surplus to future years. The Act also allows for a deferral of
any deficiencies in renewable fuel obligations into the next compliance period. Procedurally, the Act
allows small fuel suppliers to apply for an exemption from the renewable requirements, and sets out the
process for administering administrative penalties, and detail fuel labelling requirements.
The Greenhouse Gas Reduction (Cap and Trade) Act requires certain operations to report their GHG
emissions and authorizes creation of regulations in relation to both regulated and supporting operations.
Contravention of the Act constitutes an offence with a maximum penalty of C$1‐million and/or up to six
months’ imprisonment. Separate fines may be imposed for each day the offence continues. The Reporting
Regulation requires British Columbia‐based operations emitting 10,000 tonnes or more of carbon dioxide
equivalent per year to report GHG emissions to the Ministry. Reporting operations with emissions of
25,000 tonnes or greater are required to have emissions reports verified by a third party.
The Greenhouse Gas Reduction (Emissions Standards) Statutes Amendment Act requires owners or operators
of waste management facilities of certain classes to manage GHGs produced from waste handled in their
The Carbon Tax Act imposes a tax on the purchase of fossil fuels. Tax rates are set out in a schedule to the
legislation. The legislation requires the Minister of Finance to table a plan in the legislature each year,
showing how the revenue raised will be returned to taxpayers through reductions in personal and
business taxes. The rate of tax payable on fuel escalated gradually until July 1, 2012 but will remain the
same until 2017.
3 . 3 E n v i r o n m e n t a l A s s e s s m e n t A c t
The Environmental Assessment Act (EAA) establishes a comprehensive process for the identification of the
potential environmental effects of major projects in British Columbia. It provides that “reviewable”BLAKE, CASSELS & GRAYDON LLP Page 9
projects must undergo an environmental assessment and cannot proceed without an environmental
assessment certificate. It gives discretion to both the Minister, and the Executive Director of the
Environmental Assessment Office, to exempt a project from the requirement for a certificate, where the
official considers that an otherwise reviewable project will not have a significant adverse environmental,
economic, social, heritage or health effect. In making this decision, the official is to take into account any
practical means available to prevent or reduce the potential adverse effects to an acceptable level. Further,
the Minister may direct that a project, which would not otherwise be reviewable, must be reviewed if the
project may have a significant adverse effect on the environment and if the review is in the public
Under the EAA, the scope, procedures and methods for each project review are determined either by the
Minister or the Executive Director. These include the facilities to be reviewed, the potential effects to be
assessed, the information to be required, the persons (e.g., public, First Nations) to be consulted, and
timelines to be followed. These procedures may also be prescribed by regulation. The Act also contains
provisions allowing for class assessments for specified categories of “reviewable projects”.
“Reviewable projects” are those listed in the Reviewable Projects Regulation, which categorizes them
according to a variety of criteria, such as size, geographical location, potential for adverse effects, type of
industry or type of project. The categories of reviewable projects include:
special, solid and liquid waste management;
In addition to the Reviewable Projects Regulation, the following regulations establish the parameters for
Prescribed Time Limits Regulation;
Public Consultation Policy Regulation;
Transition Regulation; and
Concurrent Approval Regulation.
3 . 4 S i g n i f i c a n t P r o j e c t s S t r e a m l i n i n g A c t
The Significant Projects Streamlining Act allows the government to designate a project as a “provincially
significant project”. Once so designated, authorities responsible for regulatory approval are required toPage 10 BLAKE, CASSELS & GRAYDON LLP
make their decisions expeditiously and to facilitate the expeditious completion of the project. The
designation order must come from the Lieutenant Governor upon recommendation from the Minister
and Cabinet. The Act also contains provisions for the removal of constraints, project performance, cost
recovery and non‐compliance. If there is a conflict between this Act and the provisions of the EAA, the
3 . 5 F i s h P r o t e c t i o n A c t
The stated goal of the Fish Protection Act (FPA) is to protect and restore fish habitat in waters under
provincial jurisdiction. The Act prohibits the construction of dams on significant rivers in British
Columbia including the Fraser, Nass, Tatshenshini and Thompson rivers. The FPA authorizes a regional
water manager to consider the impact on fish and fish habitat when deciding whether to grant a licence
or approval under the Water Act.
The FPA also allows for the designation of sensitive streams and imposes certain restrictions on the
granting of Water Act licences which will impact those streams. The Sensitive Streams Designation and
Licensing Regulation designates 15 streams in the Lower Mainland, the Omineca‐Peace Region and on
Vancouver Island as “sensitive”. Plans for the protection and recovery of fish in sensitive streams are to
be developed co‐operatively with interested stakeholders. The FPA provides for the granting of
streamflow protection licences, which may be issued to an organization possessing a community‐based
interest in the stream. These must include a condition requiring the licensee organization to undertake
works in relation to fish and fish habitat in the stream.
The Riparian Areas Regulation (RAR) establishes a system of site‐specific assessment of the effect of
proposed development on fish habitat. The concept is to allow for development to go ahead when there
will be no impact on fish habitat or when such impact can be mitigated. The RAR requires an assessment
by a qualified environmental professional on whether there will be an impact to fish habitat, and copies
of that assessment to be provided to three levels of government through an electronic database. The
assessment methodology is attached to the RAR. Local governments must rely on the conclusions
reached by the qualified professional in the assessments and are precluded from varying the setbacks
3 . 6 F o r e s t a n d R a n g e P r a c t i c e s A c t
The Forest and Range Practices Act (FRPA) became law in early 2003 as part of the provincial government’s
“forestry revitalization” legislative package. It sets the framework for achieving “results‐based” forestry
on public land. This framework requires forest operators to set specific targets or strategies for
environmental objectives established by the government for soils, timber, fish, biodiversity, cultural
heritage, forage and associated plant communities, visual quality, water, wildlife, and resource and
recreation features. Operators must prepare five‐year Forest Stewardship Plans designed to achieve the
targets or strategies, and must operate on the land base in accordance with both the targets or strategies
and their plans. Detailed objectives and strategies are set out in regulations, discussed below.
E n f o r c e m e n t P r o v i s i o n s
Contraventions of the FRPA are divided into those which are offences and those which are not offences
but which give rise to administrative sanctions. BLAKE, CASSELS & GRAYDON LLP Page 11
failure to ensure that the intended results specified in a forest stewardship plan are achieved or
strategies are carried out;
carrying out a forest practice that results in “damage to the environment” (discussed further below);
unauthorized road construction or modification;
failure to establish a free growing stand after harvesting; and
unauthorized cutting or damage to Crown timber (trespass).
The penalties for offences vary depending upon the offence; however, the maximum penalty for an
offence is C$1‐million and/or a term of imprisonment not exceeding three years. Some offences are
continuing offences and an offender may be liable for a separate penalty for each day that the
contravention continues. In addition, maximum penalties may be based on a per hectare basis in certain
circumstances and may result in a monetary penalty in excess of C$1‐million.
In addition to offences, regulators can impose administrative penalties for a contravention of the FRPA
and its regulations. Potential maximum penalties range from C$5,000 to C$1‐million. The defence of due
diligence is available in the case of either an offence or an administrative penalty.
In addition to monetary penalties, the FRPA contains other enforcement mechanisms. For example, in
certain circumstances, government officials have the power to issue stopwork and/or remediation orders;
to suspend or cancel certain permits; and to seize assets such as vehicles, vessels and Crown timber.
Where the contravention is an offence, a court may issue orders requiring, among other things,
compliance with stopwork and/or remediation orders.
Finally, the government has created a broad intervention power for remedying or mitigating certain acts,
including a potential, unjustifiable infringement of an aboriginal right. The FRPA also provides that a
person ordered to take measures under these powers may seek recovery from the government for the
costs of carrying out these measures.
F R P A R e g u l a t i o n s
The FRPA requires Ministry approval of a Forest Stewardship Plan before forestry activities can take
place. The Forest Stewardship Plan must set out the specifics on how operators intend to reach the targets
prescribed in the FRPA and its regulations. The key regulation under the FRPA is the Forest Planning and
Practices Regulation (FRPA Regulation). The FRPA Regulation defines specific objectives which must be
provided for in a Forest Stewardship Plan for soils, timber, wildlife, riparian areas, biodiversity, and
cultural heritage resources. Forest planning centres around Forest Development Units, identified in the
Forest Stewardship Plan, which are the designated areas where forest activities, including timber
harvesting, may occur during the term of such Plan. The FRPA Regulation also sets out the procedure for
public review and comment, and government approvals of Forest Stewardship Plans. It also contains
default requirements for results or strategies on how objectives can be met as an alternative to operator‐
proposed results or strategies.Page 12 BLAKE, CASSELS & GRAYDON LLP
In 2009, the FRPA Regulation was amended to provide an exemption to the requirement of a Forest
Stewardship Plan for areas subject to contracts which provide for the preparation of areas for
The FRPA Regulation defines “damage” for the purposes of the FRPA’s prohibition against causing
“damage to the environment”. “Damage” includes a specific list of events, such as landslides or deposits
of harmful substances into streams, that “adversely alters an ecosystem”. The effect of this definition is to
create an overriding environmental protection rule for extreme risks and impacts for forest activities. This
very limited approach is presumably because specific forest values are otherwise protected by the
objectives and results required in Forest Stewardship Plans.
The FRPA Regulation also provides for offences for contravention of its provisions. Maximum fines are
up to C$500,000 and/or two years’ imprisonment.
3 . 7 P r i v a t e M a n a g e d F o r e s t L a n d A c t
The Private Managed Forest Land Act and its regulations create a mechanism for the regulation of forest
practices on private land categorized as managed forest. The legislation creates a governing council
representing a partnership of members appointed by government and by private forest landowners. The
council must establish and enforce environmentally sustainable forest practices on private managed
forest land in accordance with objectives set by the government in the Act.
3 . 8 H e r i t a g e C o n s e r v a t i o n A c t
The Heritage Conservation Act (HCA) creates a mechanism for the identification and conservation of sites
of heritage or archaeological value. Sites included on the Heritage Site Registry established under the
HCA are protected from alteration or damage without a permit and the HCA contains specific conditions
for the handling of aboriginal artefacts and sites. Under the HCA, the government may issue orders to
stop work on any property that has, or may have, heritage value.
Contravention of the HCA constitutes an offence with a maximum penalty of C$50,000 and/or two years’
imprisonment for individuals, and C$1‐million for corporations. The courts are granted specific powers
to grant injunctions restraining persons from carrying out activities that would be in contravention of the
HCA, and to issue restoration and compliance orders.
3 . 9 P a r k A c t
The Park Act establishes parks, conservancies and recreation areas (collectively referred to as “parks”) on
Crown land in British Columbia, and sets out the mechanisms for their administration. The relevant
government Minister is required to manage all matters concerning parks, including private and public
use. While the Act emphasizes conservation, it does allow for use or exploitation of parks under
prescribed circumstances. The government is empowered to issue park use permits granting interests in
land or use of natural resources, provided such use meets the conditions set out in the Act. The Park Act
also provides that authorizations, licences and permits issued under the Petroleum and Natural Gas Act for
the purposes of development or production of petroleum or natural gas are valid in a park. BLAKE, CASSELS & GRAYDON LLP Page 13
Contravention of the Park Act constitutes an offence with a maximum penalty of C$1‐million and/or a
term of imprisonment of one year.
3 . 1 0 P r o t e c t e d A r e a s o f B r i t i s h C o l u m b i a A c t
The Protected Areas of British Columbia Act (PAA) establishes a number of parks, ecological reserves and
places which are listed in schedules to the Act. The PAA also transfers existing Class “A” parks and
ecological reserves previously established by orders‐in‐council to schedules to the Act. Over the past
several years, PAA Regulations have resulted in a substantial expansion of the number of parks and
protected areas in the province. Under the PAA, a change to a park boundary requires a legislative
amendment, rather than an order‐in‐council. The Protected Areas Forests Compensation Act provides for
compensation to forest licence holders who have suffered a loss because of a reduction in their allowable
annual cut, deletion of land from their licence area, or the establishment of a protected area that includes
all or part of the area under the licence.
3 . 1 1 I n t e g r a t e d P e s t M a n a g e m e n t A c t
The Integrated Pest Management Act (IPMA) requires “integrated pest management”, a process that uses a
combination of techniques to suppress pests, to be applied to all commercial and industrial pesticide use
on all public land, and all private land use by forestry, utilities, transportation and pipelines. The IPMA
does not apply to agricultural use or pesticides used by homeowners. The IPMA prohibits the application
of pesticides unless a pest management plan has been prepared (in accordance with a regulation), the
pesticide is applied in accordance with the plan and the regulation, and a pesticide use notice has been
sent to the government. Where pesticides are to be used in areas of high concern, approval of the plan
must be obtained.
Contravention of the IPMA constitutes an offence with a maximum fine for first offences of C$200,000
and/or six months’ imprisonment for individuals. Corporations can face a maximum fine of C$400,000 for
first offences, and up to C$800,000 for subsequent similar offences. Corporate employees and agents may
also be held personally liable under the Act. Violations of some provisions of the IPMA are ticketable
offences, resulting in fines of C$500. The IPMA also introduces administrative penalties as an alternative
3 . 1 2 T r a n s p o r t o f D a n g e r o u s G o o d s A c t
The Transport of Dangerous Goods Act (TDGA) regulates the transportation of dangerous goods within
British Columbia and provides additional powers to municipal councils to regulate the transportation of
dangerous goods within their boundaries. Provision is also made for agreements with the federal
government regarding the administration and enforcement of the TDGA and the regulations. The
Transport of Dangerous Goods Regulation under the TDGA substantially adopts the Regulation under the
federal Transportation of Dangerous Goods Act, which is discussed later.
In general, the TDGA prohibits the handling or transportation of dangerous goods unless all applicable
and prescribed safety requirements are complied with and all containers, packaging, road vehicles and
rail vehicles comply with the applicable safety standards and display the applicable safety marks. The
Act imposes reporting requirements where a discharge, emission or escape of dangerous goods occurs. Page 14 BLAKE, CASSELS & GRAYDON LLP
Contravention of a prohibition of the TDGA, or failure to comply with the terms of a permit, is an
offence, and the maximum penalty is, upon first conviction, a maximum fine of C$50,000 and/or two
years’ imprisonment. Maximum penalties are doubled for subsequent offences. Contravention of the
reporting provisions is an offence which has a maximum penalty of a fine of up to C$10,000 and/or a term
of imprisonment of up to one year.
3 . 1 3 W a t e r A c t
The Water Act (WA) vests property and the right to the use and flow of all the water in any stream in
British Columbia in the provincial Crown, except to the extent that private rights have been established
under licences or approvals given under the Act. “Stream” is broadly defined to include natural
watercourses or sources of water supply, groundwater, lakes, rivers, creeks, springs, ravines, swamps
and gulches. The Act imposes an obligation to exercise reasonable care to avoid damaging land, works,
trees or other property.
The WA establishes a licensing regime for surface water use whereby holders of licences are permitted to
do a number of things, including:
divert and use water for the “purpose” specified in the licence;
construct, maintain and operate the “works” authorized under the licence and necessary for the
proper diversion, storage, carriage, distribution and use of the water or the power produced from the
alter or improve a stream or channel for any “purpose”.
The Act also allows for the grant of an approval rather than a licence where a diversion or use of water is
required for a term of less than 24 months, and has a “quick” licensing procedures, for licences for
domestic purposes, for irrigation purposes or agricultural use, or any other purposes established by
The WA also requires changes in and about a stream to be approved by the Ministry. Applicants for
“Section 9 Approvals”, as these are commonly referred to, are required to submit detailed plans which
include proposals to mitigate harm to the environment. There are some exemptions from the requirement
to obtain a Section 9 Approval in relation to construction or modification of roads authorized under other
listed legislation such as the Mines Act and the Forest and Range Practices Act.
The Groundwater Protection Regulation establishes a registration system for qualified well drillers and
standards for drilling, sealing, maintaining and closing wells. Wells must be floodproofed so run‐off
contamination cannot occur during flooding or heavy rains.
The maximum penalty for offences under the WA is a fine of C$1‐million and/or one year’s
imprisonment. Where the offence is a continuing offence, the maximum penalty is a fine of C$1‐million
each day that the offence continues.BLAKE, CASSELS & GRAYDON LLP Page 15
3 . 1 4 W a t e r P r o t e c t i o n A c t
The purpose of the Water Protection Act (WPA) is to foster sustainable use of British Columbia’s water
resources. The Act contains provisions prohibiting, among other things, the removal of water from British
Columbia (unless under a historical licence), and the construction or operation of large‐scale projects
capable of transferring water from one major watershed to another.
The maximum penalty under the WPA is a fine of C$200,000 and/or one year’s imprisonment. In
addition, the Act provides for continuing offences and provides a maximum fine of C$200,000 for each
day that the offence continues.
3 . 1 5 D r i n k i n g W a t e r P r o t e c t i o n A c t
The Drinking Water Protection Act (DWPA) provides a statutory framework for the protection of drinking
water in British Columbia, and has as its primary focus the protection of public health by ensuring
comprehensive regulation of water supply systems, establishing mechanisms for source protection and
providing for greater public accountability of water suppliers. Key elements of the Act include: the
establishment of water quality standards, including tap and source standards; requirements for
assessments and response plans in relation to threats to drinking water; inspection; monitoring and order
powers; public accountability; appointment of drinking water officers with the authority to investigate
complaints; and development of community‐based Drinking Water Protection Plans.
The DWPA and the Drinking Water Protection Regulation define water suppliers as owners of systems
which supply domestic water, other than single‐family residences or facilities excluded by regulation.
Water suppliers must provide potable water, obtain construction and operating permits, meet
qualification standards for operators, have emergency response and contingency plans, follow
monitoring requirements, and report threats to drinking water. The Regulation provides exemptions to
these requirements for “small systems”.
The DWPA requires a report to the local drinking water officer if a spill that is also “reportable” to the
Provincial Emergency Program under the EMA, may result in a threat to drinking water.
The maximum penalty under the DWPA is a fine of C$200,000 and/or one year’s imprisonment. In the
case of a continuing offence, the Act provides for a maximum fine of C$200,000 for each day that the
3 . 1 6 U t i l i t i e s C o m m i s s i o n A c t
The British Columbia Utilities Commission (BCUC) is an independent regulatory agency that operates
under and administers the Utilities Commission Act (UCA). The BCUC’s responsibilities include the
regulation of British Columbia’s natural gas and electricity utilities as well as intra‐provincial pipelines. A
person must obtain a certificate of public convenience and necessity from the BCUC before beginning the
construction or operation of a public utility plant or system, or an extension of either. All energy supply
contracts entered into by independent power producers and British Columbia Hydro and Power
Authority (BC Hydro) must be approved by the BCUC under the UCA. The provincial government has
stated its intention to have the BCUC consider environmental issues when hearing rate setting
applications submitted by regulated utilities.Page 16 BLAKE, CASSELS & GRAYDON LLP
The maximum penalty under the UCA is a fine of C$1‐million. In addition, the BCUC has the ability to
issue administrative penalties to a maximum of C$1‐million. Due diligence is a defence to an allegation of
a contravention of the UCA.
The Mandatory Reliability Standards Regulation applies reliability standards to a variety of transmission
facilities, including bulk power systems, generating units connected to bulk power systems or designated
as part of a transmission facility operator’s plan for the restoration of a bulk power system. The
Regulation requires reports on the reliability standard to be prepared and submitted to the BCUC.
3 . 1 7 C l e a n E n e r g y A c t
The Clean Energy Act sets out British Columbia’s energy objectives, and requires BC Hydro to submit
integrated resource plans describing what it intends to do in response to those objectives. It also requires
the province to achieve electricity self‐sufficiency by the year 2016. One of British Columbiaʹs energy
objectives is to generate at least 93% of the electricity in the province from clean or renewable resources
and to build the infrastructure necessary to transmit that electricity. The Act also prohibits certain projects
from proceeding (e.g., the development or proposal of energy projects in parks, protected areas or
conservancies), ensures that the benefits of the heritage assets are preserved, provides for the
establishment of energy efficiency measures, and establishes the First Nations Clean Energy Business
Fund (initially funded at C$5‐million). The Act also directed the integration of the British Columbia
Transmission Corporation with BC Hydro into a single entity.
3 . 1 8 M e t a l D e a l e r s a n d R e c y c l e r s A c t
The Metal Dealers and Recyclers Act regulates the purchase and sale of regulated metal, which includes
household products normally recycled to avoid waste, and requires reports to the police of materials
received by the recyclers. It is accompanied by the Metal Dealers and Recyclers Regulation, which
establishes the registration and recording information for metal dealers and recyclers and includes
administrative penalties for non‐compliance.
3 . 1 9 P e t r o l e u m a n d N a t u r a l G a s A c t
One of the key provincial statutes governing oil and gas activities is the Petroleum and Natural Gas Act.
Although not an exclusively environmental statute, the Act requires proponents to obtain various
approvals before undertaking exploration or production work, such as geophysical licences, geophysical
exploration project approvals, and permits for the exclusive right to do geological work and geophysical
exploration work, and well, test hole, and water source well authorizations. Such approvals are given
subject to environmental considerations and licences and project approvals can be suspended or
cancelled for failure to comply with the Act or its Regulations.
A person who contravenes a provision of the Act or the Regulations is liable for a minimum fine of
C$500 up to a maximum of C$5,000. If an offence continues for more than one day, each day the
offence continues is deemed to be a separate offence.BLAKE, CASSELS & GRAYDON LLP Page 17
3 . 2 0 O i l a n d G a s A c t i v i t i e s A c t
The Oil and Gas Activities Act regulates conventional oil and gas producers, shale gas producers, and other
operators of oil and gas facilities in the province. Under the Act, the British Columbia Oil and Gas
Commission (Commission) is granted greatly expanded powers, particularly with respect to compliance
and enforcement and the setting of technical safety and operational standards for oil and gas activities.
The Commission’s powers include the power to make determinations as to whether contraventions under
the Act have occurred and to impose administrative penalties for such conventions. The Administrative
Penalties Regulation prescribes maximum administrative penalties for contravening the Act and/or the
Regulations. Specifically, it prescribes the following maximum penalties: C$500,000 under the Oil and Gas
Activities Act; C$500,000 under the Environmental Protection and Management Regulation; C$100,000 under
the Consultation and Notification Regulation; C$500,000 under the Drilling and Production Regulation;
C$500,000 under the Pipeline and Liquefied Natural Gas Facilities Regulation; and C$100,000 under the
Geophysical Exploration Regulation.
Administrative penalties are in addition to monetary fines that the courts can impose, which have also
been significantly enhanced under the Act. Contraventions of the Act can result in fines up to
C$1.5‐million or imprisonment for up to three years or both. Due diligence, mistake of fact and officially
induced error are defences to prosecutions for contraventions of the Act. Further, the range of other
remedial measures available to the courts for convictions under the Act and its Regulations have been
broadened. Administrative appeal and review processes are also provided for under the Act.
At the date of this publication, 13 regulations had been passed under the Act, including the Environmental
Protection and Management Regulation, which establishes the government’s environmental objectives for
water, riparian habitats, wildlife and wildlife habitat, old‐growth forests and cultural heritage resources.
The Act requires the Commission to consider these objectives in deciding whether or not to authorize an
oil and gas activity. The Pipeline Crossings Regulation establishes a 30‐metre zone on either side of a
pipeline in which conditions for activities are prescribed. There are also additional conditions for carrying
out activities within 10 metres of a pipeline, which include advising BC One Call of the proposed site of
the activity. The Commission must be notified if any physical contact with the pipeline occurs. The Oil
and Gas Road Regulation governs permitting, construction, maintenance, use and deactivation of oil and
gas roads. The Emergency Management Regulation (effective October 1, 2014) governs response
contingency plans and emergency response programs required from permit holders under the Act.
3 . 2 1 M i n e s A c t
The Mines Act applies to all mines during exploration, development, construction, production, closure,
reclamation and abandonment activities. Before starting any work in or about a mine, the owner, agent,
manager or any other person must hold a permit and have filed a plan outlining the details of the
proposed work and a program for the conservation of cultural heritage resources, and for the protection
and reclamation of land, watercourses and cultural heritage resources affected by the mine.
The Act allows the Lieutenant Governor in Council, by regulation and on any terms and conditions
considered necessary or advisable, to exempt one or more classes of persons, or a person or a ministry of
the government, respecting one or more classes of work in, on or about a mine, from the requirement toPage 18 BLAKE, CASSELS & GRAYDON LLP
hold a permit. The terms and conditions imposed may include those respecting environmental protection
and reclamation and public health and safety.
A person who contravenes a provision of the Act or the Regulations is liable for a maximum fine of
C$100,000 and/or one year’s imprisonment.
3 . 2 2 W i l d l i f e A c t
The Wildlife Act regulates the management of wildlife in British Columbia, other than on federal lands.
Although much of it relates to hunting, it also has specific protections for raptors and their habitats, and
for managing alien species such as snakes and tigers, as well as protecting public and native wildlife. The
Act has some limited protections for species considered to be a risk. Maximum fines for a first offence
under the Wildlife Act are C$250,000 and/or a maximum imprisonment term of two years.
3 . 2 3 M i n i s t r y o f E n v i r o n m e n t A c t
The Ministry of Environment Act establishes the Ministry, sets out its purposes and functions, and
authorizes its Minister to enter into agreements with the federal and provincial governments on behalf of
the Province of British Columbia. The Act also authorizes the Minister to disclose certain information
with respect to a person who is convicted of an offence, has paid or is liable to pay an administrative
penalty or is subject to another sanction under the Act under the Ministerʹs administration (e.g., their
name and the provision of the enactment they contravened). In accordance with this power, the Ministry
publishes a quarterly list of convictions, tickets and administrative penalties on its website. Under the
Act, the Minister is authorized to include, where a fine or penalty is overdue, the date it was due and the
3 . 2 4 N a t u r a l R e s o u r c e C o m p l i a n c e A c t
The Natural Resource Compliance Act authorizes the Minister of Forests, Lands and Natural Resource
Operations (MFLNRO) to designate persons as ʺnatural resource officersʺ (NROs) to enforce a broad
range of legislation across the natural resource sector and to specify limits, terms and conditions on the
designation. The corresponding Natural Resource Officer Authority Regulation sets out the powers and
duties which NROs may exercise and perform.
3 . 2 5 L o c a l G o v e r n m e n t R e g u l a t i o n o f t h e E n v i r o n m e n t
Court decisions over the past few years have confirmed that, depending upon the powers given to them
by the province, municipalities may pass bylaws regulating the environment. The Community Charter
provides specific power to local governments to pass bylaws for the protection of human health or the
environment. Such bylaws must be approved by the appropriate provincial ministry. The Spheres of
Concurrent Jurisdiction–Environment and Wildlife Regulation provides specific direction to local
governments on environmental matters they may (or may not) regulate. Many local governments have
such by‐laws and many more are currently in the planning stages. For example, a number of
municipalities have by‐laws prohibiting the use of pesticides for “cosmetic” purposes, and idling of
vehicles. A number of others have stream protection by‐laws.BLAKE, CASSELS & GRAYDON LLP Page 19
Through the EMA, the government delegates the regulation of the introduction of air contaminants in
Greater Vancouver to the Greater Vancouver Regional District (GVRD, also known as Metro Vancouver).
Through the Air Quality Management Bylaw No. 1082, 2008, the GVRD controls air contaminants either
by issuing permits or, for some industries, through setting regulatory standards.
A full examination of “environmental” by‐laws in British Columbia is beyond the scope of this Overview,
however, business and individuals with commercial and industrial activities need to be aware that local
government involvement in regulating environmental matters is increasing.
4. FEDERAL ENVIRONMENTAL LAW AND REGULATION
4 . 1 C a n a d i a n E n v i r o n m e n t a l P r o t e c t i o n A c t
The Canadian Environmental Protection Act, 1999 (CEPA) is the principal federal environmental statute
governing environmental activities within federal jurisdiction such as the regulation of toxic substances,
cross‐border air and water pollution and dumping into the oceans. It also contains specific provisions to
regulate environmental activity on lands and operations under the jurisdiction of federal departments,
agencies, boards, commissions, federal Crown corporations, federal works and undertakings like banks,
airlines and broadcasting systems, federal land, and aboriginal land. CEPA establishes a system for
evaluating and regulating toxic substances, imposes requirements for pollution prevention planning and
emergency plans and contains broad public participation provisions. CEPA is administered by
T o x i c S u b s t a n c e s
CEPA provides the federal government with “cradle‐to‐grave” regulatory authority over substances
considered toxic. The regime provides for the assessment of “new” substances not included on the
Domestic Substances List, a national inventory of chemical and biotechnical substances. The Act requires
an importer or manufacturer to notify the federal government of a new substance before manufacture or
importation can take place in Canada. Consequently, businesses must build in a sufficient lead time for
the introduction of new chemicals or biotechnology products into the Canadian marketplace. In certain
circumstances, manufacturers and importers must also report new activities involving approved new
substances so they can be re‐evaluated.
If the government determines that a substance may present a danger to human health or the
environment, it may add the substance to a Toxic Substances List. Within two years of a substance being
added to the List, Environment Canada is required to take action with respect to its management. Such
actions may include preventive or control measures, such as securing voluntary agreements, requiring
pollution prevention plans or issuing restrictive regulations. Substances that are persistent,
bioaccumulative, and result primarily from human activity must be placed on the Virtual Elimination
List, and companies will then be required to prepare virtual elimination plans to achieve a release limit
set by the Minister of Environment or the Minister of Health.
N a t i o n a l P o l l u t a n t R e l e a s e I n v e n t o r y
CEPA requires Environment Canada to keep and publish a “National Pollutant Release Inventory” (the
NPRI). Owners and operators of facilities that manufacture, process or otherwise use one or more of thePage 20 BLAKE, CASSELS & GRAYDON LLP
NPRI‐listed substances under certain prescribed conditions, are required to report releases or off‐site
transfers of the substances to Environment Canada. The information is used by Environment Canada in
its toxics management programs and is made publicly available to Canadians each year.
A i r a n d S e a P o l l u t i o n
While most air emission regulation is conducted at the provincial level of government, a number of
industry‐specific air pollution regulations exist under CEPA that limit the concentration of such
emissions as: 1) asbestos emissions from asbestos mines and mills; 2) lead emissions from secondary lead
smelters; 3) mercury from chlor‐alkali mercury plants; and 4) vinyl chloride from vinyl chloride and
polyvinyl chloride plants. The current trend is for Environment Canada to focus on substance specific
regulations, some of which, like chlorofluorocarbons, are considered air pollutants.
CEPA establishes a system for obtaining a permit from Environment Canada to dispose of waste at sea.
Permits typically govern timing, handling, storing, loading, placement at the disposal site, and
monitoring requirements. The permit assessment phase involves public notice, an application that
provides detailed data, a scientific review and payment of fees.
C l i m a t e C h a n g e
While the reduction of GHGs such as carbon dioxide has, since the early 1990s, been a priority of the
Canadian government, implementation of a mandatory reduction system is still under development. In
April 2007, the government released its Regulatory Framework for Air Emissions (the Framework), which
set targets for reduction in GHGs of 20% below 2006 levels by the year 2020, and 60% to 70% below 2006
levels by 2050. In 2008, the federal government released further details of the Framework, including
guidelines for the Credit for Early Action Program and the domestic offset system.
In 2009, the federal government indicated that the Framework would be redesigned to reflect a common
North American approach to GHG management, including the implementation of a cap‐and‐trade
system and targets that are consistent with emission reduction targets established by the U.S. In 2010, the
federal Environment Minister announced a new target to reduce GHG emissions 17% from 2005 emission
levels by 2020, matching the target in the proposed U.S. climate change legislation. This target is expected
to be adjusted to reflect any changes to the final target established by the U.S. However, plans for a cap‐
and‐trade system have been shelved indefinitely in the U.S. This means that plans for a Canadian cap‐
and‐trade system have also been shelved indefinitely.
In December 2011, the Canadian government formally withdrew from the Kyoto Protocol (pursuant to
which Canada had international commitments to reduce GHG emissions). Despite this, the Canadian
government has not indicated any intent to backtrack on Canada’s domestic emission reduction targets.
In the absence of an emissions trading system, it is anticipated that the Canadian federal government will
move to reduce GHG emissions through regulations. Sector‐based regulations already include those for
light‐duty vehicles and renewable fuel content.
The Reduction of Carbon Dioxide from Coal‐fired Generation of Electricity Regulations establish emissions
intensity targets for coal‐fired power generation units, and require phasing out of older units on a
prescribed schedule. While these are federal regulations, they currently do not have any implications in
British Columbia, as there is no electricity in the Province which is produced using coal.BLAKE, CASSELS & GRAYDON LLP Page 21
E n v i r o n m e n t a l E m e r g e n c i e s
The Environmental Emergency Regulations require those who own, or have charge, management or control
of listed substances, to submit an environmental emergency plan to Environment Canada.
E n f o r c e m e n t
Maximum penalties under CEPA are C$1‐million and/or three years’ imprisonment for individuals and
C$6‐million for large corporations. In addition, courts can levy fines equal to profits earned as a result of
the commission of the offence. The Act gives enforcement officers the authority to issue Environmental
Protection Compliance Orders to stop illegal activity or require actions to correct a violation. The
Environmental Violations Administrative Monetary Penalties Act (discussed below) allows for administrative
monetary penalties for non‐compliance with CEPA. However, these penalties are not yet available, as the
necessary regulations have not been created.
P u b l i c P a r t i c i p a t i o n a n d C o n s u l t a t i o n
CEPA provides for a number of public participation measures designed to enhance public access to
information, and to encourage reporting and investigation of offences, such as:
an environmental registry, providing online information on the Act and its regulations, government
policies, guidelines, agreements, permits, notices, and inventories as well as identifying opportunities
for public consultations and other stakeholder input;
whistleblower protection for individuals who voluntarily report CEPA offences; and
a mechanism through which a member of the public can request an investigation of an alleged
offence and, in the event that the Minister fails to conduct an investigation, launch an environmental
protection action against the alleged offender in the courts.
CEPA also contains provisions for mandatory consultation with provincial, territorial and aboriginal
governments on issues such as toxic substances and environmental emergency regulations.
4 . 2 T r a n s p o r t a t i o n o f D a n g e r o u s G o o d s A c t
The Transportation of Dangerous Goods Act, 1992 (TDGA) applies to all facets and modes of transportation
of dangerous goods in Canada. The objective of the TDGA is to promote public safety and to protect the
environment during the transportation of dangerous goods, including hazardous wastes. The TDGA
applies to those who transport or import dangerous goods, manufacture, ship, and package dangerous
goods for shipment, or manufacture the containment materials for dangerous goods.
The TDGA and the Transportation of Dangerous Goods Regulations (TDG Regulations) establish a complex
system of product classification, documentation and labelling; placarding and marking of vehicles;
hazard management, notification and reporting; and employee training. The TDGA requires Emergency
Response Assistance Plans before the offering for transport or importation of prescribed goods. The plans
must be approved by the Minister of Transport, or the designated person, and such approval is revocable.
The TDGA also enables a prevention program and a government response capability in the event of a
security incident involving dangerous goods.Page 22 BLAKE, CASSELS & GRAYDON LLP
Dangerous goods are specified in the TDG Regulations and arranged into nine classes and 3,000 shipping
names. The classes include: explosives, compressed gases, flammable and combustible liquids and solids,
oxidizing substances, toxic and infectious substances, radioactive materials, corrosives and numerous
miscellaneous products prescribed by regulation. The TDGA also applies to any product, substance or
organism which “by its nature” is included within one of the classes. The TDG Regulations have
equivalency provisions with respect to such international rules as the International Maritime Dangerous
Goods Code, the International Civil Aviation Organization Technical Instructions and Title 49 of the U.S.
Code of Federal Regulations.
In the case of the transportation of hazardous or dangerous wastes, a prescribed “waste manifest” must
be completed by the shipper, the carrier and the receiver. Where an international or trans‐border
consignment of hazardous waste will take place, from or into Canada, advanced notice and the waste
manifest must be provided to Environment Canada. In the case of the export of hazardous waste from
Canada, notification must also be made to the environmental authorities in the country of destination.
Detailed import and export requirements, based on the Basel Convention, are contained in the Export and
Import of Hazardous Wastes Regulation.
Maximum penalties under the TDGA are C$100,000 and/or two years’ imprisonment. In addition, any
property which had been seized by a federal inspector in relation to the offence may be forfeited to the
government. TDGA also provides for court orders to refrain from doing anything regulated by the TDGA
for up to a year; for compensation to anyone damaged by the commission of an offence; for rehabilitation
of the environment; and to pay money towards research and development. Further, in the event of an
accidental release, orders can be made requiring the removal of dangerous goods to an appropriate place;
requiring that certain activities be undertaken to prevent the release or reduce the danger; and requiring
that certain persons refrain from doing anything that may impede the prevention or reduction of danger.
If non‐compliance with the TDGA is anticipated, a person may apply for either a permit of exemption or
a permit of equivalent level of safety.
4 . 3 H a z a r d o u s P r o d u c t s A c t
The Hazardous Products Act (HPA) prohibits the advertising, sale or importation of prohibited products
and restricts the advertising, sale or importation of restricted products except as authorized by
regulation. The Act also prohibits, in certain circumstances, suppliers from importing and/or selling a
controlled product, which is intended for use in a workplace in Canada. Prohibited, restricted and
controlled products are defined in the regulations and are collectively referred to as “hazardous
products”. Maximum penalties under the HPA are C$1‐million and/or two years’ imprisonment.
The Workplace Hazardous Materials Information System is a national program designed to protect
workers from exposure to hazardous material that is enabled under the HPA. This system is similar to
what is known in other jurisdictions as “Worker Right to Know” legislation. In Canada it consists of both
federal and provincial legislation, reflecting the limited constitutional power of the federal government
over worker safety and labour relations. In 1987, the federal government took the lead role in developing
regulations that require manufacturers and importers to use standard product safety labelling and to
provide their customers at the time of sale with standard Materials Safety Data Sheets (MSDS). Provincial
occupational health and safety regulations require employers to make these MSDS, along with prescribed
training, available to their workers.BLAKE, CASSELS & GRAYDON LLP Page 23
The classification of hazardous materials or “controlled products” is similar to that used under the
TDGA. Test procedures determine whether a product or material is hazardous and in some cases the
procedures are extremely complicated and require the exercise of due diligence in obtaining reasonable
information on which to base the classification. A significant amount of information must be disclosed on
an MSDS, including a listing of hazardous ingredients, chemical toxicological properties and first aid
4 . 4 P e s t C o n t r o l P r o d u c t s A c t
The Pest Control Products Act, 2002 (PCPA) prohibits the manufacture, possession, distribution or use of a
pest control product that is not registered under the Act or in any way that endangers human health or
the safety of the environment. Pest control products are registered only if their risks and value are
determined to be acceptable by the Minister of Health. A risk assessment includes special consideration
of the different sensitivities to pest control products of major identifiable groups such as children and
seniors, and an assessment of aggregate exposure and cumulative effects. New information about risks
and values must be reported, and a re‐evaluation of currently registered products must take place. The
public must be consulted before significant registration decisions are made. The public is given access to
information provided in relation to registered pest control products.
Maximum penalties under the PCPA are C$1‐million and/or three years’ imprisonment. Enforcement
officers can shut down activities and require measures necessary to prevent health or environmental
4 . 5 C a n a d i a n E n v i r o n m e n t a l A s s e s s m e n t A c t , 2 0 1 2
CEAA 2012 is intended to identify and mitigate against significant adverse environmental effects prior to
project approvals, and provide for meaningful opportunities for public participation. Under CEAA 2012,
the review process is carried out by three federal bodies: the Canadian Nuclear Safety Commission
(CNSC), the National Energy Board (NEB) and the Canadian Environmental Assessment Agency (CEA
Agency). There is also a provision allowing the Minister to add other responsible authorities.
Projects subject to environmental assessment under CEAA 2012 are those which propose physical
activities that are designated in Regulations Designating Physical Activities and include activities that are
“incidental” to the designated activities.
Designated projects under the authority of the CEA Agency are required to undergo an initial screening
to determine if they may cause significant environmental effects. “Environmental effects” is defined in
the Act and includes changes that may be caused to components of the environment within federal
jurisdiction, such as aquatic species, migratory birds, interprovincial or international effects, changes on
federal lands, and those that may impact Aboriginal Peoples.
Once the initial screening is completed and a designated project is determined by the CEA Agency to
have a potential to cause significant environmental effects, it will be subject to a comprehensive
environmental assessment. The Environment Minister is granted the power to divert a project from a
standard assessment to a review panel. There are also provisions for joint review panels between agencies
or with other jurisdictions. For designated projects under the authority of the NEB or the CNSC, the
screening step is not carried out and the proposed project goes straight to an environmental assessment. Page 24 BLAKE, CASSELS & GRAYDON LLP
The federal Species at Risk Act (discussed in 4.12 below) require the CEA Agency, the CNSC or the NEB to
ensure that species at risk which may be impacted by a designated project are considered in the
environmental assessment, and that any proposed mitigation strategies are consistent with recovery
strategies and action plans.
Once an environmental assessment is completed by the CEA Agency or the CNSC, a decision is made as
to whether the proposed project should be allowed to proceed. If there are no significant environmental
effects, then the Minister of Environment or the CNSC are empowered to make the decision. If significant
environmental impacts are predicted to occur, then the decision to let the project proceed is made by the
Governor in Council (i.e., the federal Cabinet). For projects reviewed by the NEB, both the determination
of significant environmental impact and whether the project may proceed, is made by the Governor in
Council. A “decision statement” is then issued under CEAA 2012, approving the project and stipulating
conditions that will mitigate any environmental effects. These conditions are binding and enforceable,
and subject to a penalty for non‐compliance of up to C$400,000 per day. Projects cannot proceed without
a decision statement.
Express time limits are provided within which environmental assessments are to be concluded, although
these are subject to “off ramps” for gathering of information. A decision on an environmental assessment
is required within 365 days from the issuance of a notice of commencement. In projects under review by a
panel, a decision statement must be issued no later than 24 months from the date the review panel is
CEAA 2012 allows for the delegation of federal environmental assessment to provincial governments or
agencies, or the substitution of a provincial review process for the federal when there is an equivalent
assessment by another jurisdiction. Canada has an agreement with British Columbia regarding the
circumstances under which substitution will be applied to projects also being assessed under the B.C.
Environmental Assessment Act.
The Prescribed Information for the Description of a Designated Project Regulations set out information that
must be included in a proponent’s project description, and the Cost Recovery Regulations provide for cost
recovery that the CEA Agency can recover from a proponent undergoing an assessment.
4 . 6 F i s h e r i e s A c t
The primary purpose of the Fisheries Act is to protect Canada’s fisheries as a natural resource by
safeguarding both fish and fish habitat. The Act applies to both coastal and inland waters, and is
generally administered by the Department of Fisheries and Oceans (DFO), although the environmental
protection parts of the Act are administered by Environment Canada. The Act has frequently been used
by Environment Canada to punish those responsible for water‐polluting activities.
It is an offence for anyone to deposit or permit the deposit of any type of deleterious substance in water
frequented by fish without a permit or under a regulation. “Deleterious substance” is defined in the Act
to include any substance that would degrade or alter or contribute to the degradation or alteration of the
quality of water so as to render it deleterious to fish or fish habitat. There are a number of regulations
under the Act that limit wastewater or effluent discharges from certain industrial facilities including pulp
and paper mills, petroleum refineries and meat and poultry processing plants. BLAKE, CASSELS & GRAYDON LLP Page 25
It is also an offence for anyone to carry on a work, undertaking or activity that results in serious harm to
fish that are part of a commercial, recreational or aboriginal fishery, or to fish that support such a fishery.
Serious harm to fish includes harm to fish and permanent alteration or destruction of fish habitat.
Because of the manner in which commercial, recreational or aboriginal fishery is defined this prohibition
applies to most coastal and internal waters in Canada. The DFO may issue authorizations to permit
serious harm to fish (and fish habitat). The application process is set out in the Application for
Authorization under Paragraph 35(2)(b) of the Fisheries Act Regulations. Failing to comply with conditions of
an authorization is also an offence.
The Act also imposes reporting requirements. Where a deposit of a deleterious substance into water
frequented by fish or a serious and imminent danger thereof occurs, and where a detriment to fish habitat
or fish may reasonably be expected to occur, the persons responsible are obligated to notify the DFO or
Environment Canada. The Act also requires reporting the occurrence of a serious harm to fish (which
includes fish habitat) or a serious or imminent danger thereof. There is also a requirement to provide
written reports after both of these notifications are made, and a concurrent duty to take measures to
prevent the occurrence of a serious harm to fish or a deposit, or to counteract, mitigate or remedy the
adverse effects of such harm or deposit once they occur.
The Act allows for agreements with the provinces for equivalency or delegation of administrative
Penalties for offences under the Act are a minimum of C$100,000 up to a maximum of C$12‐million for
large corporations. Fines for small corporations are a minimum of C$25,000 up to a maximum of C$8‐
million. Individuals may be liable for minimum fines of C$5,000 up to a maximum of C$2‐million and/or
three years’ imprisonment. Fines are paid into the Environmental Damages Fund. There is a five year
limitation period for laying of charges.
4 . 7 C a n a d a S h i p p i n g A c t
The Canada Shipping Act (CSA), although not exclusively an environmental statute, contains a number of
provisions that deal with environmental issues. In particular, the Act provides for the creation of
regulations prohibiting the discharge of specified pollutants from ships. In addition, the Minister of
Transport may take actions to repair, remedy, minimize or prevent pollution damage from a ship,
monitor measures taken by any person, direct a person to take measures, or prohibit a person from taking
The Act gives officers the power to direct any Canadian ship or, in certain circumstances, any other ship
to provide information pertaining to the condition of the ship, its equipment, the nature and quantity of
its cargo and fuel, and the manner and locations in which the cargo and fuel of the ship are stowed. In
addition, officers have the power to board any Canadian ship and inspect the ship for the purposes of
determining whether the ship is complying with the Act and its regulations, and to detain a ship where
the officer believes that an offence has been committed. The Act requires certain vessels to have
arrangements with emergency response organizations. In some cases, oil pollution prevention plans and
oil pollution emergency plans are also required. Maximum penalties under the CSA are C$1‐million
and/or 18 months’ imprisonment. In April 2008, the Administrative Monetary Penalties Regulations came
into force, which allow authorities to impose penalties of up to C$25,000 outside of the more formal court
process.Page 26 BLAKE, CASSELS & GRAYDON LLP
4 . 8 M a r i n e L i a b i l i t y A c t
The Marine Liability Act includes provisions to implement international conventions on liability and
compensation for oil pollution damage. The Act imposes liability on the owner of a ship for the costs and
expenses incurred in respect of measures taken to prevent, repair, remedy or minimize oil pollution
damage from the ship, including measures taken in anticipation of a discharge. The owner of the ship
may be liable for costs and expenses incurred by the government or any other person in respect of
measures she/he was directed to take or prohibited from taking. Maximum fines for offences under the
Act are C$100,000.
4 . 9 N a v i g a b l e W a t e r s P r o t e c t i o n A c t
The Navigable Waters Protection Act (NWPA) prohibits the unauthorized construction or placement of a
“work” on, over, under, through or across any navigable water. The Act is administered by Transport
Canada. Where a project falls into the definition of “work”, the federal government must approve it
before it is undertaken.
any bridge, dam, dock, pier, tunnel or pipe, and any other works necessary for or connected to
construction or placement of the work;
the dumping of fill or excavation of materials from the bed of a navigable water;
any telegraph, power cable or wire; and
any structure or thing similar in nature to the above which may interfere with navigation.
Where a work is built or placed without an approval, or is not built in accordance with the approval, the
Minister of Transport may order the owner of the work to remove or alter the work, or refrain from
proceeding with construction. Where an owner fails to comply with an order to remove the work, the
Minister may remove and destroy it and dispose of the materials. Maximum penalties under the NWPA
are C$50,000. In addition, an owner may be liable for the costs of removal and destruction of works.
Where the materials are deposited by a vessel, the vessel is liable for the fine and may be detained until it
The NWPA allows for exemptions from the requirement for an approval if the work falls into a class of
works or the navigable water falls into a class of navigable waters established by Ministerial regulation,
which may also include conditions for such works. There are also provisions regarding removal of
existing works and approval of works already started.
4 . 1 0 O c e a n s A c t
Under the Oceans Act, the Minister of Fisheries and Oceans fulfils a co‐ordinating and facilitating role
among the various governmental agencies concerned with the environmental protection of the oceans. In
particular, the Minister is required to:BLAKE, CASSELS & GRAYDON LLP Page 27
lead and facilitate the development and implementation of a national strategy for the management of
lead and facilitate the development and implementation of plans for the integrated management of
all activities or measures in or affecting estuaries, coastal waters and marine waters;
lead and co‐ordinate the development and implementation of marine protected areas (MPAs); and
make recommendations to the federal Cabinet to make regulations prescribing MPAs and marine
environmental quality requirements and standards.
Contravening a regulation made for an MPA or a marine environmental quality requirement is an
offence. Maximum penalties under the Oceans Act are C$500,000. A court may also order the offender to
pay an additional fine in an amount equal to the monetary benefits accrued to the person as a result of the
commission of the offence.
4 . 1 1 C a n a d a N a t i o n a l M a r i n e C o n s e r v a t i o n A r e a s A c t
The Canada National Marine Conservation Areas Act provides the Minister of Canadian Heritage with the
authority to establish national marine conservation areas with the objective of protecting and conserving
a variety of aquatic environments for the benefit, education and enjoyment of the people of Canada and
the world. The Act also creates a range of regulatory powers relating to the protection of living and non‐
living marine resources and to ensuring these resources are managed and used in a sustainable manner.
Penalties under the Act for a corporation convicted of its first offence are a fine of not less than C$500,000
and not more than C$6‐million. The maximum penalty for a breach of most regulations under the Act is
4 . 1 2 S p e c i e s A t R i s k A c t
The Species at Risk Act (SARA) identifies wildlife species considered at risk, categorizing them as
threatened, endangered, extirpated or of special concern, and prohibits a number of specific activities
related to listed species, including killing or harming the species, as well as the destruction of critical
habitat which has been identified in any of the plans required under the Act. Such plans include recovery
strategies and action plans for endangered or threatened species and management plans for species of
concern. Plans are currently being developed by Environment Canada in partnership with the provinces,
territories, wildlife management boards, First Nations, landowners and others. SARA allows for
compensation for losses suffered by any person as a result of any extraordinary impact of the prohibition
against the destruction of critical habitat. SARA provides for considerable public involvement, including
a public registry and a National Aboriginal Council on Species at Risk which provides input at several
levels of the process. Maximum penalties under SARA are C$2‐million and/or five years’ imprisonment.
The protections in SARA currently apply throughout Canada to all aquatic species and migratory birds
(as listed in the Migratory Birds Convention Act ) regardless of whether the species is resident on federal,
provincial, public or private land. This means that if a species is listed in SARA and is either an aquatic
species or a migratory bird, there is a prohibition against harming it, or its residence and the penalties for
such harm can be substantial. For all other listed species, SARA’s protections only apply on federal lands,
including National Parks and First Nations Reserves. However, SARA also contains provisions underPage 28 BLAKE, CASSELS & GRAYDON LLP
which it can be extended to other species throughout Canada, if the federal government is of the view
that the provinces or territories are not adequately protecting a listed species.
SARA has provisions which allow for permits to conduct work impacting species, their residences or
their critical habitat, provided the work is for the purpose of scientific research, for the benefit of the
species or the impact to the species is incidental. The conditions in SARA for permits are very strict, and
as a result, it is very difficult to obtain one for industrial activities. The Permits Authorizing an Activity
Affecting Listed Wildlife Species Regulations establish the information that must be submitted for application
for permits and time limits for consideration of such applications.
4 . 1 3 M i g r a t o r y B i r d s C o n v e n t i o n A c t
The Migratory Birds Convention Act (MBCA) enacts an international agreement between Canada and the
U.S. for the protection of migratory birds. Although most of the statute regulates harvesting or hunting, it
also contains some environmental protection provisions. The MBCA prohibits the deposit of oil, oil waste
or other substances harmful to migratory birds in any waters or areas frequented by migratory birds,
except as authorized by regulation. It also prohibits the disturbance of the nests of migratory birds.
Maximum penalties under the MBCA are C$1‐million and/or three years’ imprisonment. There are also
minimum penalties for violations by large vessels, ranging from C$100,000 to C$500,000. The 2008
Environmental Enforcement Act raised the maximum penalties under the MBCA to C$1‐million for offences
by individuals and C$6‐million for offences by large corporations, however, the revised penalty scheme
for the MBCA is not yet in force.
4 . 1 4 C a n a d a N a t i o n a l P a r k s A c t
The Canada National Parks Act provides procedures for the creation of new parks and the enlargement of
existing ones, adds several new national parks and park reserves, and includes provisions for the
enhancement of protection measures for wildlife and other park resources. The National Parks Wilderness
Area Declaration Regulations designate wilderness areas in Banff, Jasper, Kootenay and Yoho National
Parks. The effect of these designations is to restrict activity in the designated area to activities including
park administration, public safety, and the carrying out of traditional renewable resources harvesting.
4 . 1 5 E n v i r o n m e n t a l V i o l a t i o n s A d m i n i s t r a t i v e M o n e t a r y P e n a l t i e s A c t
The Environmental Violations Administrative Monetary Penalties Act (EVAMP Act) establishes a system for
administrative monetary penalties (AMPs) for the enforcement of 10 pieces of federal legislation,
including CEPA, the MBCA, the Canada National Parks Act and the Canada National Marine Conservation
Areas Act. Maximum penalties are C$5,000 for an individual and C$25,000 for other accused entities.
AMPs are an alternative to the more traditional ‘penal’ route for enforcement, and if the government
proceeds with an AMP for a violation, it is precluded from prosecuting it as an offence. However, not all
environmental violations may be handled under the EVAMP Act: only those which have been identified
in regulations. The EVAMP Act allows accused entities to request a review of an AMP, but the defences
of due diligence and reasonable mistake of fact are not available. Although public consultation on the
proposed regulations occurred in 2011, regulations have not yet been created; therefore there are no
AMPs actually available.BLAKE, CASSELS & GRAYDON LLP Page 29
4 . 1 6 C r i m i n a l L a w
The Criminal Code contains provisions which address corporate liability and which potentially create
avenues for charges to be brought against corporations in the event of activities which cause harm to the
environment and where negligence or fault can be proved. Three provisions expand criminal
responsibility so that it can be attributable to organizations in addition to individuals. First, for
negligence offences, criminal intent will be attributable to an organization where one of its
representatives (directors, partners, employees, members, agents or contractors) is a party to the offence
and its senior officers depart markedly from the standard of care that could reasonably be expected to
prevent the commission of the offence. Second, in respect of offences where fault must be proven, an
organization is a party to an offence if one of its senior officers is a party to the offence, or, acting within
the scope of their duty, directs other representatives of the organization to commit the offence, or fails to
take all reasonable measures to stop the commission of the offence by a representative of the
organization. Another provision imposes a legal duty on those who direct how another person does work
to take reasonable steps to prevent bodily harm to that person or any other person.
4 . 1 7 N a t i o n a l E n e r g y B o a r d A c t
The National Energy Board Act, first enacted in 1959, establishes the NEB, a federal agency that regulates
interprovincial and international energy projects. The NEB has jurisdiction over the interprovincial and
international import and export of oil, gas, and electric power, and the construction of interprovincial and
international pipelines and power lines. The NEB grants certificates of public convenience and necessity
(CPCN) approving pipelines and power lines within the NEB’s jurisdiction, issues licences for the import
and export of oil, gas and electric power, and regulates rates, tariffs and tolls. The NEB’s responsibility
also includes ensuring environmental protection during the various phases of NEB‐regulated energy
projects, including planning, construction, operations and abandonment.
The NEB is one of three responsible authorities charged with carrying out environmental assessment
under CEAA 2012. Environmental assessments are consolidated with the hearings currently held by the
NEB for applications for a CPCN. Pursuant to the Act, the NEB must consider matters of public interest
that may be affected by the issuance of the CPCN or dismissal of the application. Safety and the
environment are among matters of public interest. Specifically, the NEB’s report setting out its
recommendations as to whether or not a CPCN should be issued, must also set out the NEB’s
environmental assessment prepared under CEAA 2012, if the proponent’s application relates to a
designated project within the meaning of that Act.
Subject to certain exceptions, the NEB has authority to conduct public hearings with respect to the
issuance, revocation or suspension of a CPCN or leave to abandon the operation of a pipeline.
Furthermore, the NEB may hold a public hearing in respect of any other matter if it considers it advisable
to do so.
Maximum fines under the National Energy Board Act are C$1‐million and/or imprisonment not exceeding
five years. Under the Administrative Monetary Penalties Regulations, contravention of an order or decision
made under the Act, or failure to comply with a term of a certificate, licence or permit is a violation
subject to an AMP. The maximum AMPs for individuals and companies are C$25,000 and C$100,000