Summary of Environmental Law in Canada

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14 Environmental Emergencies

 

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14.1 Emergency Notification and Reporting Requirements

 

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This section describes spill reporting and notification requirements. It focuses primarily on federal requirements, although requirements with respect to emergency notification and reporting are found in both federal and provincial legislation. The federal requirements apply throughout the country. However, there are significant variations among the provincial requirements.

The primary federal requirements relating to spill reporting are found in the Canadian Environmental Protection Act, 1999 (CEPA 1999) , the Fisheries Act, the Transportation of Dangerous Goods Act, the Canada Shipping Act, and the Canada Oil and Gas Operations Act. In addition to statutory duties requiring notification, there is a common law duty to warn those who it is reasonably foreseeable will be affected by a spill of a hazardous substance.

Part 8 of CEPA 1999 confers upon the Minister of Environment and the Governor in Council (federal Cabinet) the power to adopt regulations and non-regulatory measures to prevent environmental emergencies, to prepare for them, and to intervene and remedy and repair damages. the Act also establishes a regime whereby the person who owns or controls the harmful substances must repair any damages to the environment and assume the costs of any measures taken as a result of an environmental emergency. Part 8 of the Act serves as a "safety net" for the integrated management of environmental emergencies. If no federal or provincial regulations exist for the prevention of, preparation for, intervention in, and remedy and reparation of the damages caused by an environmental emergency, Part 8 fills this hole and protects human health and the environment.

Also under CEPA, the Minister of Environment can carry out research and issue guidelines and codes of practice with respect to environmental emergencies. Research may include studies of the causes of environmental emergencies and necessary corrective measures. The Minister may also create a national system of notification and reports on environmental emergencies.

Moreover, Part 8 authorizes the Minister to require the preparation and implementation of environmental emergency plans for substances on the List of Toxic Substances (Schedule 1, CEPA 1999) or for substances deemed toxic that will be registered. Under Part 8, the government can also adopt regulations concerning various other matters related to environmental emergencies. Finally, part 8 introduces a civil liability plan that allows for the recovery of costs and expenses related to corrective measures aimed at avoiding environmental harm and at restoration of environments damaged by or during an environmental emergency.

CEPA 1999 contains other provision that touch on environmental emergencies. Part 7 (Controlling Pollution and Managing Wastes) authorizes the Governor in Council to adopt regulations for the prevention, control and correction of the causes of pollution of air or international waters. Part 9 (Government Operations and Federal and Aboriginal Land) authorizes the Governor in Council to enact regulations concerning environmental emergencies within the framework of federal operations. And Part 10 (Enforcement) allows a judge to require, in cases of infractions under CEPA, the preparation and implementation of environmental emergency plans.

CEPA requires that any deposit of a deleterious substance in water frequented by fish be reported to an inspector or other persons prescribed by the regulations under the Act. The report is to be made in accordance with "any regulations applicable thereto." There are currently no regulations to prescribe how the report should be made or to identify persons other than an inspector to whom a report could be made.

The Transportation of Dangerous Goods Act requires that "accidental releases" be reported and that all reasonable emergency measures be taken to mitigate damage to people or the environment. Accidental releases are defined as an unplanned or accidental discharge or other emission from dangerous goods. The term "dangerous goods" is not specifically defined. However, many substances are listed as dangerous substances in schedules to the Act. The Act also covers those goods which are "by their nature" dangerous goods.

The Canada Shipping Act addresses pollution prevention and control in relation to vessels engaged in commercial shipping in the territorial sea of Canada and all internal waters. The Act does not apply to offshore drilling and related activities that are covered by the Canada Oil and Gas Operations Act. The Act addresses "discharges," which includes spills. Discharges of "pollutants" are prohibited. Pollutants are defined to include any substance which if added to the waters would degrade or alter the quality of water to make it harmful to any animal, plant, or fish that is useful to humans. The Act does not prohibit all discharges of pollutants from ships, but regulations may be made to prohibit such discharges from ships.

The Canada Oil and Gas Operations Act prohibits unauthorized spills of oil or gas and requires that any person who at the time of a spill is carrying on work in the area of the spill report the spill to the Chief Conservation Officer in the manner set out in the regulation. In addition, those persons must take all reasonable measures to protect the environment, to mitigate any danger to life, health, property, and the environment that could result, and to prevent further spills.

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14.2 Emergency Response and Preparedness

 

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This section addresses the authority given to government officials in an emergency and the rules governing initial response by private parties.

The federal Emergencies Preparedness Act addresses "national emergencies" which are defined as "urgent or critical situations which are of temporary nature, that seriously endanger the lives, health, or safety of Canadians, and that are of such proportion or nature as to exceed the capacity or authority of a province to deal with." The Act also regulates "public welfare emergencies," which are real or imminent occurrences, including accidents or pollution that could result in danger to life or property, social disruption, or a breakdown in the flow of essential goods, services, or resources which is determined to be serious enough to constitute a national emergency.

The Act provides that the Governor in Council may, by proclamation, declare a public welfare emergency and make a wide range of orders or regulations in order to address the emergency. Included in the regulation and order-making power are powers to make an assessment of the damage to the environment and to eliminate the damage. There is also the power to create regulations regarding the imposition of fines and imprisonment for contravention of orders or regulations. Prior to issuing or amending a declaration of a public welfare emergency, the Governor in Council must consult the Lieutenant Governor in Council of each of the provinces where the direct effects of the emergency occur.

Emergency Preparedness Canada, administered by the Department of National Defence, is responsible for coordinating emergency planning for the federal government. It ensures continuing consultation between departments on the development of emergency plans and procedures. The agency also works closely with the provinces and territories to ensure a standard of emergency response capacity across Canada.

Federal and provincial officers and inspectors have fairly broad powers of investigation and broad authority to take action where there has been a spill, particularly in situations where an event may constitute an emergency. In some cases, obligations are placed on individuals to assist when an emergency has occurred. Provincial statutes determine the powers of inspectors and officers authorized to act under provincial legislation. Federal inspectors' powers are given under the relevant federal statutes. In some cases, there are agreements between the federal and provincial governments whereby provincial officers and inspectors have the authority to act under some federal statutes.

Under CEPA 1999, for emergencies involving substances governed by the Act, the concerned parties (owners of the substance or those responsible for the emergency) are required, as soon as possible, to notify an enforcement officer of the emergency and to take useful action-compatible with the protection of the environment and public safety-to prevent the emergency or repair or attenuate any harmful effects to the environment or to human life and health that could result, and to make a reasonable effort to notify members of the public whom the emergency could adversely affect. If the concerned parties fail to take the above measures, an enforcement officer can take them, cause them to be taken or direct the concerned parties to take them.

The federal Fisheries Act provides that those who own or have charge, management, or control of a deleterious substance, or who caused or contributed to a deposit of the substance, must, in addition to reporting the occurrence, take all reasonable measures consistent with safety and conservation of fish and fish habitat to prevent the occurrence, or to counteract, mitigate, or remedy any adverse effects which may result. The Act also gives inspectors the power to take any measures, or to direct that measures be taken by any person, where the inspector is satisfied on reasonable grounds that there has been an occurrence requiring immediate action. For the purposes of taking action, an inspector or another person may enter any place, premises, vehicle, or vessel and take all reasonable, necessary action to comply with the relevant provisions of the Act. The Act also requires that owners or persons in charge of any place, premise, vehicle, or vessel entered by an inspector and every person found there, must give the inspector all reasonable assistance to enable the inspector to carry out his or her duties under the Act.

The federal Transportation of Dangerous Goods Act requires that where there is a discharge of dangerous goods, or an imminent danger that this will occur, the person with the charge, management, and control of the goods must report the release or potential release. In addition, the Act requires that all reasonable measures must be taken to address the emergency. Where an inspector believes that actions are necessary, and will not be taken, the inspector may intervene and take the actions to address public safety. The reporting requirements are set out in the regulations.

The Pollutant Substances Regulations under the Canada Shipping Act set out the duty to report. Where a ship discharges a pollutant, or is in danger of discharging a pollutant, this must be reported to the individuals listed in Schedule 2. The regulation also requires the reporting of any discharge that is prohibited by the Oil Pollution Prevention Regulations and the Pollutant Substances Regulations. A pollution prevention officer listed in Schedule 2 has broad powers to require information, to board ships, and to make directions consistent with prevention of pollution, including the detention of a ship where it is reasonably believed that the Act has been contravened. Officers may also declare areas emergency zones and direct other ships to leave where the officer is satisfied, on reasonable grounds, that there is a "grave and imminent danger." Other ships may also be ordered to assist in cleaning up any spill or taking steps to control a spill.

The Canada Oil and Gas Operations Act specifies that the Chief Conservation Officer under the Act may authorize people to enter a place where a spill has occurred and to take over the activity or management of the activity in the area. Those so directed must comply with the directions of the Chief Conservation Officer.

Readiness being a key factor in emergency events, the responsibility for first interventions often lies on the municipalities. However, the federal government and most provincial governments have established a toll-free emergency line.

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2003