Environmental Law

Constitutional Jurisdiction

In Canada the power to pass laws relating to the environment is divided between federal and provincial governments. The Constitution gives the federal government power to pass laws relating to fisheries, shipping, interprovincial trade and commerce, and criminal law. The federal residuary power to pass general legislation for the "Peace, Order, and Good Government of Canada" also justifies environmental legislation.

Federal legislation enacted under these powers includes the Canadian Environmental Protection Act, the Canadian Environmental Assessment Act, the Pest Control Products Act, the Canada Shipping Act, the Arctic Waters Pollution Prevention Act, the Fisheries Act and the Transportation of Dangerous Goods Act.

Provincial powers cover all matters of a local nature and property and civil rights within the province. The provinces also have primary jurisdiction over agriculture, forestry, mining and hydroelectric development. These powers give the provinces ample authority to pass most kinds of environmental laws.

Provincial governments also "own" most natural resources. Provincial provisions for exploitation of these resources may include measures intended to protect the environment. All provinces have now passed legislation on water pollution and air pollution. Provincial legislation also includes most wildlife conservation and management regulations, and the creation of ecological reserves and wilderness areas. National parks and migratory bird regulations, however, are administered federally, and the federal government is drafting new endangered species legislation. Other wildlife regulations involve interprovincial arrangements.

The Common Law

Historically, the law left private individuals to solve what are now considered pollution problems by negotiation or, if that failed, by suing one another in the Common Law courts. Judges developed 2 key principles for dealing with these problems. The first tort of significance to environmental law is the nuisance action, which dates back to the early common law, long before Confederation. Any landowner has the right to sue another who injures him or her by creating a "nuisance," defined as a use of land that causes physical injury to neighbouring land or substantially and unreasonably interferes with the use and enjoyment of neighbouring lands.

The second kind of tort, a specialized form of the first, arises from the principle established in the leading case Rylands v Fletcher, decided by the British House of Lords in 1866. It holds that people who bring dangerous substances onto their land and allow them to escape are strictly liable for resulting damages. These 2 kinds of actions are still the key legal means by which private persons may bring pollution problems before the courts, although negligence actions (ie, suing someone if he or she negligently causes harm to one's property) are increasingly common. However, these torts do not provide an effective means of pollution control.

Air pollution in your neighbourhood might be caused by several factories. In order to sue one of them, you would be required to identify injuries that it caused and to prove that the specific factory caused them. Such proof would be very difficult to establish in most cases and the legal costs very high. Also, the usual remedy is financial compensation, rather than ordering the pollution to stop.

Since the late 1960s and early 1970s, Parliament and the provincial legislatures have passed numerous laws intended to protect the natural environment. One legal reference book, for example, contains 9 volumes devoted exclusively to federal and provincial legislation relating to the environment. It catalogues hundreds of separate statutes and regulations dealing with the environment (see Environmental Agencies). Obviously, regulating environmental quality is complex.

Water Pollution Control

A key law in Canada pertaining to water pollution is the federal Fisheries Act, which prohibits discharge or deposition of substances harmful to fish if that discharge or deposition can contaminate waters where fish might be found. The term "fish" is used broadly to include all aquatic animals and including their immature stages. Steep penalties are provided (a fine of up to $1 million and up to 3 years' imprisonment); each day on which the violation continues is considered a separate offence. Court decisions hold firms convicted in violation of this Act as strictly liable; ie, guilty regardless of intention. However, a firm will not be found guilty if it establishes due "diligence"; ie, that it took reasonable steps to avoid causing the pollution.

These provisions play a leading role in Canadian environmental law because of vigorous enforcement by the federal Department of the Environment. The Fisheries Act also gives certain regulatory powers to the federal Cabinet, which may pass regulations establishing standards for certain industries. They have been established for the following industries: chlorine manufacturers, petroleum refineries, pulp and paper mills, metal-mining and -finishing plants, meat- and poultry- products plants and potato-processing plants.

Other federal laws also concern water pollution. The Canadian Environmental Protection Act, which controls the manufacture, use and disposal of toxic substances, regulates the disposal of waste at sea, phosphorous pollution, and defoamers, wood chips, dioxins and furans in pulp and paper mill effluent.

The federal International Boundary Waters Treaty Act implements a treaty between the US and Canada (entered into by Great Britain on behalf of Canada). The treaty established the International Joint Commission, which is empowered to report on water quality issues referred to it by the 2 nations. The IJC has been instrumental in establishing water quality standards and cleanup programs in the Great Lakes Basin. It also plays a role under the Canada/US Acid Rain Treaty.

The Canada Shipping Act prohibits discharge of certain pollutants, notably oil, by ships operating in Canadian waters and includes elaborate safety standards (see Hazardous Wastes). The Arctic Waters Pollution Prevention Act accomplishes the same objective for the Arctic.

All provinces have passed legislation regulating water pollution. The basic provincial approach is to use a licensing or permit system for pollution control; ie, firms may not discharge any contaminants until they have received a permit from the appropriate agency. The firm must outline the system of pollution control that it intends to use. The permit sets limits to what the company may discharge, and usually specifies the kind of pollution-control equipment the company must use. Most major water-polluting enterprises, including municipal sewage systems and pulp mills, are subject to provincial controls.

Air Pollution Control

The federal government controls air pollutants which can have an international impact, or where the emissions would constitute a significant danger to health or would violate the terms of an international treaty. The key legislation is the Canadian Environmental Protection Act.

Pursuant to this statute, the government has issued regulations for the following industries: secondary lead smelters, asbestos mining and milling, chlor-alkali mercury processing plants, and vinyl-chloride and polyvinyl-chloride manufacturing. It also controls ozone-depleting substances and prohibits lead in gasoline.

The primary control over local and domestic air pollution is provincial. Provincial air pollution control measures are similar to water pollution control schemes. A company planning to build a plant that will emit contaminants into the air must get a permit before beginning construction. Additional permits are required before the plant can begin operation. Air pollution standards or guidelines are set by provincial authorities, usually incorporating the federal standards. Most provincial authorities also have the power to issue control orders to prevent significant air pollution.

Ecotoxicity and Impact Assessment

Long-term ecotoxicity also presents governments with difficult problems. Over 100 000 chemicals are now in commercial use, with hundreds of new chemicals being manufactured each year. Most have never been tested, and we know little about them, but inevitably they end up in the environment. Many are both toxic and persistent (ie, do not break down quickly) and build up in food chains. The challenge for government is to detect and regulate dangerous chemicals before they become a problem.

Pesticides and herbicides are regulated federally under the Pest Control Products Act. Basically, the Act imposes control over the manufacturing, importing, labelling use, export and distribution of these products. Other toxic substances are regulated under the federal Canadian Environmental Protection Act, which allows the government to designate substances (eg, PCBs) that are likely to pose a significant danger to the environment. The government may prohibit anyone from releasing these chemicals into the environment. The Act also establishes a process to assess the dangers of new chemical compounds.

Provincial legislation generally controls the disposal of garbage and hazardous wastes, while both levels of government regulate transportation of dangerous goods. The federal government controls radioactive waste disposal.

Environmental impact assessment is another tool that government uses to prevent or reduce environmental problems. An environmental impact assessment is usually required when a company plans to build a new mine, dam or other facility that is likely to have significant impact on the environment. The legal source of this requirement varies. Most provinces have statutes providing for environmental impact assessments. The federal Parliament has also passed a law requiring such assessments, but a Cabinet order requires assessments, for projects under federal regulatory control: the Canadian Environmental Assessment Act.

Environmental law has made great strides, but many challenges remain. Increasingly, pollution problems are becoming global in scope, and progress in issues such as climate change, overpopulation, deforestation and mass extinction needs to be made. Few areas of the law are completely static; however, environmental law will probably continue to change with unusual rapidity as governments try new solutions to environmental problems created by development and new technologies. It will continue to offer a challenge for judges, lawmakers and lawyers.