Environmental protectioni Air quality
Air emissions are regulated at the federal, provincial and territorial levels (and often at the local government level) in Canada. Federally, CEPA regulates air pollution, with several regulations aimed at industry-specific and multi-industry emissions, including asbestos mines and mills, lead smelters and releases of halocarbons. Regulations under CEPA are also targeted at emission reduction, including regarding renewable fuel content, vehicle and engine GHG emissions and carbon dioxide emissions from natural gas-fired electricity generation. The National Pollutant Release Inventory requires owners or operators to report emissions if those emissions exceed certain thresholds.41
The provinces also generally regulate air emissions. The British Columbia Environmental Management Act (EMA) prohibits the introduction of waste into the environment in the course of conducting a prescribed industry and the introduction of waste into the environment so as to cause (air) pollution.42 Authorisations are required for air emissions and often include monitoring and reporting requirements. In Ontario, air emissions are regulated under the Environmental Protection Act (EPA).43 Regulations under the EPA set out limits for air contaminants determined at 'points of impingement' and include permitting and monitoring requirements.44 Quebec's Clean Air Regulation includes standards for air emissions, and Quebec also has a cap-and-trade system for GHG emissions.45ii Water quality
The federal Fisheries Act is the primary federal statute regulating Canada's coastal and inland waters. It prohibits the deposit of deleterious substances into waters frequented by fish. 'Deleterious substance' includes any substance that would degrade or alter or contribute to the degradation or alteration of the quality of water frequented by fish so as to render the water deleterious to fish or fish habitat.46 Although some industries are specifically regulated and allowed to discharge deleterious substances up to certain thresholds, there is generally no ability to obtain an authorisation for such deposits, and the federal government regularly pursues charges for water pollution. The federal government also regulates the boundary waters between Canada and the US, the Great Lakes and Canada's territorial waters.
In British Columbia, the Water Sustainability Act (WSA) requires licences for the use of all fresh water in the province.47 Licence holders are permitted to divert, store, distribute and use water for the purpose specified in their licence. Approval is also required prior to making any changes in and about a stream. 'Stream' is defined broadly and includes natural watercourses and bodies of water, lakes, ponds, rivers, springs and wetlands.48 The WSA also prohibits the deposit of foreign matter (including debris) into a stream.49
The British Columbia EMA prohibitions on the introduction of waste into the environment also apply to bodies of water. The definition of waste includes effluent, which is a substance added to water capable of injuring life forms or damaging the environment.50
Recent amendments to Quebec's Environment Quality Act (EQA) now require all work and construction in bodies of water and wetlands to receive ministerial authorisation prior to commencing.51 If adverse effects cannot be avoided, financial compensation is required, subject to certain exceptions for adverse effects set out in the regulations. The minister may refuse to issue an authorisation if:
- the applicant has not satisfied the minister that the work would avoid adversely affecting the wetlands and bodies of water;
- the proposed mitigation measures would not reduce the impact on the wetlands and bodies of water;
- the minister is of the opinion the project would have adverse effects on the wetlands and bodies of water; or
- the applicant refuses to pay the required financial compensation.52
The Ontario Water Resources Act is aimed at providing for the protection, conservation and management of Ontario's waters for their sustainable use and long-term environmental well-being.53 It requires authorisation from the regulator prior to discharging into bodies of water any discharge that may impair the quality of any waters.54iii Chemicals
The manufacture, import, export, handling, storage and transport of chemicals (sometimes referred to as hazardous or dangerous substances or goods) are regulated by federal, provincial and territorial laws.
At the federal level, CEPA regulates toxic substances. Importers and manufacturers are required to notify the federal government of new substances that are not already listed pursuant to CEPA. New substances must be assessed before they are permitted to be used or imported into Canada. Substances that may present a danger to the environment or human health may be added to the Toxic Substances List, which requires regulators to implement measures to manage these substances, including pollution prevention. Substances that are deemed particularly harmful, bio accumulative and persistent in the environment may be listed on the Virtual Elimination List.55 Such substances will be prescribed a maximum quantity or concentration that may be released into the environment.
The federal Pest Control Products Act regulates pest-control products with a view to protecting human health and the environment.56 It is prohibited to manufacture, possess, distribute or use pest-control products unless they are registered under the Act. Products may only be registered after undergoing a risk assessment that includes consideration of aggregate and cumulative effects.iv Solid and hazardous waste
Solid and hazardous waste is regulated at the federal, provincial and territorial levels (and at times the local government level) in Canada.
Federally, CEPA regulates the interprovincial and international movement of hazardous waste, recyclable material and certain non-hazardous wastes.57 The definitions of hazardous waste and hazardous recyclable materials are based on the Basel Convention. Waste may not be transported across provincial borders without appropriate waste manifests. Exporters and importers of hazardous waste are required to notify the regulators and obtain a permit before importing or exporting the waste. Notification requirements include the nature and quantity of the waste, information of exporters, importers and carriers, proposed disposal or recycling operations, contracts between exporters and importers and insurance information. Insurance coverage is required for potential damage to third parties and costs that may be imposed on the importer, exporter or carrier to clean up the environment owing to a release of the hazardous waste or recyclable material.
The provinces also regulate hazardous waste within their borders. Provinces generally require that hazardous substances be appropriately labelled before transport, with notification provided to the provincial government. In British Columbia, the Hazardous Waste Regulation sets out various requirements for hazardous waste transport, facilities and disposal.58 Hazardous waste includes dangerous goods that are no longer used for their original purpose, leachable toxic wastes, waste oil and biomedical waste. Requirements include operational and siting requirements for facilities, and requirements for hazardous waste generators to register and maintain identification numbers.
The federal Transportation of Dangerous Goods Act, 199259 (TDGA) applies to the transportation of dangerous goods within Canada. It applies to companies that package and offer dangerous goods for shipment, loaders and unloaders, carriers and those who receive the dangerous goods. 'Dangerous goods' are listed in the regulations and arranged into nine classes of goods based on international standards. The TDGA also applies to any good that 'by its nature' would be included in one of the classes set out in the regulations.60 The regulations set out requirements for packaging, marking, safety standards, transport and record keeping. No permit is required so long as the TDGA and regulations are complied with. However, if non-compliance is not possible, permits may be issued for transport with an equivalent level of safety. The provinces also regulate dangerous goods within provincial boundaries with schemes substantially similar to the federal TDGA.
Ontario requires government approvals for the collection, transport, treatment and disposal of solid waste and has a comprehensive product stewardship and producer responsibility regime aimed at reducing waste and protecting the environment. The British Columbia EMA regulates solid waste management, requires waste discharge authorisations for the deposit of waste into the environment and establishes requirements for waste management plans for municipal solid waste. The Landfill Gas Emission Regulation sets out criteria for landfill gas capture in order to minimise landfill gas emissions.61v Contaminated land
Contaminated land is regulated in Canada by the federal, provincial and territorial governments. Generally, these regimes identify contaminated sites and set standards for the remediation of such sites, provide regulators with the power to require assessment and remediation of such sites and issue remediation orders; and provide for government sign-off on completion of remediation. Several jurisdictions provide for the recovery of remediation costs from those who caused the contamination (under the 'polluter pays' principle) or owned or operated on the site (under the 'beneficiary pays' principle), and for the allocation of liability for those costs.
In Alberta, the Environmental Protection and Enhancement Act regulates the release of certain substances into the environment and requires reporting by any person who released or caused or permitted the release of those substances into the environment.62 It also provides the regulator with the ability to issue environmental protection orders (including orders to restore the affected environment) and governs the issuance of remediation certificates in respect of land where remediation has been carried out.
In British Columbia, the EMA and Contaminated Sites Regulation (CSR) sets out a comprehensive scheme for the identification and remediation of contaminated sites, including the assessment and allocation of liability for remediation of contamination on such sites.63 Under this regime, 'responsible persons' are responsible for the costs of remediation and may be liable to anyone who has incurred costs to remediate the site. 'Responsible person' is defined broadly and includes various categories of persons who are connected to the site. These include current and past owners and operators and transporters and producers of contaminants.
The EMA contains a statutory right of action for the recovery of the costs of investigating and remediating a contaminated site. Such actions can be initiated by private parties or the government. Liability is absolute, retroactive, joint and separate. A responsible person who caused only some of the contamination may be named to fund the costs of all of the site remediation, subject to a right of contribution from other responsible persons. The CSR sets out factors that a court may consider in determining compensation under a cost recovery action.64
Under the Ontario Environmental Protection Act, those in control of spills or discharges must notify the regulator and take action to clean up and restore the environment.65 Those who suffer loss or damage as a result of a spill have a statutory right recovery from those in control of the spilled substances. If the government incurs clean-up costs, it may recover those costs from persons in control of spilled substances or from current and past owners, even where those owners did not cause or contribute to the contamination. For certain changes of use of land, a record of site condition is required that confirms the site has been investigated and remediated if the land is contaminated.