Summary of Environmental Law in Canada

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24 Other Environmental Issues

 

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24.1 Biotechnology

 

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The federal government has enacted provisions regulating biotechnology based on its constitutional authority to legislate on new subjects of national significance for "peace, order and good government," as well as its jurisdiction over agriculture, fisheries, trade and commerce, and criminal law in relation to public health. Currently, several federal statutes in addition to CEPA affect biotechnology products: the Pest Control Products Act, the Seeds Act, the Fertilizers Act, the Health of Animals Act, and the Fisheries Act. In the federal level, legislative responsibility for health and environmental assessment of biotechnology products is divided primarily among four institutions: Environment Canada, Health Canada, the Canadian Food Inspection Agency and the Department of Fisheries and Oceans.

Part 6 of the Canadian Environmental Protection Act 1999 (CEPA 1999) provides for an assessment process of the "animate products of biotechnology" (i.e., living organisms). Inanimate products of biotechnology, however, are treated as "substances" under Part 5.

Under Part 6, living organisms that are not on the Domestic Substances List of CEPA 1999-that is, organisms manufactured or imported into Canada between 1984 and 1986-are considered new. As such, they cannot be used, manufactured or imported without:

Under certain circumstances, manufacturers and importers must also report on "significant new activities" related to a previously approved living organism in order that they be reevaluated. The minister has the power to exempt applicants from providing information if:

All exemptions must be published in the Canada Gazette and in the Environmental Registry.

The notification and assessment requirements under CEPA 1999 do not apply if the new living organism has been manufactured or imported for a purpose regulated under any other federal statue that provides for notification and assessment. It is the government's responsibility to determine whether another law fulfills these conditions and to add it to Schedule 4 of the Act. Any proposal to add a statute to Schedule 4 must be submitted for public comment for a period of 60 days.

The government may enact regulations in order to implement an international accord, and relative to the efficient and safe use of living organisms in the prevention of pollution.

CEPA 1999 cannot be used to regulate an issue concerning living organisms if that issue is already regulated under another federal act or in a manner which, according to the Governor in Council, provides sufficient protection to the environment and human health.

For its part, the Canadian Biotechnology Strategy integrates social, ethical, health, economic, environmental and regulatory considerations by addressing public information and participation; establishing a balanced, broad-based advisory committee; providing the context for strengthening the business, regulatory and investment climate; and improving the government's ability to manage horizontal issues. Central to the strategy is the creation of the Canadian Biotechnology Advisory Committee (CBAC). This independent, expert panel advises ministers on the ethical, social, economic, scientific, regulatory, environmental and health aspects of biotechnology, as well as advising on policy directions. It will also give Canadians an ongoing forum to voice their views and participate in an open and transparent dialogue on biotechnology issues. A team of seven ministers, co-ordinated by the Industry Minister, oversees the strategy and address issues that cut across the mandates of various federal departments and agencies. The seven federal ministers are those whose portfolios most closely touch on biotechnology matters: Industry, Agriculture and Agri-Food, Health, Environment, Fisheries and Oceans, Natural Resources and International Trade.

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24.2 Noise and Vibration

 

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The federal government is involved in noise control in two respects. First, it has the power to establish maximum exterior noise emission standards for products, equipment, and vehicles. Second, it has power to control interprovincial transportation systems, including aircraft, airports, trains, and navigable waterways, each of which may involve some noise control.

The provincial governments control the actual operational noise levels of products, equipment, and vehicles. However, most environmental noise control is done at the municipal level. A municipality may pass noise control by-laws. Or, it may control noise through land use plans and zoning, traffic management, and road noise barrier retrofit programs.

For example, in British Columbia, the Municipal Act provides that a Regional District may by by-law establish control of noise. In areas that are unincorporated, residents have no legal protection against noise pollution. It is also difficult even within regulated areas and municipalities to have noise by-laws effectively enforced.

Some jurisdictions in Canada have specific noise legislation, such as Alberta's Noise Control Directive, ID 92-2, under the Energy Resources Conservation Act. This sets specific limits on noise levels and requires new facilities to submit a noise impact statement. In addition, the Yukon has a Noise Prevention Act concerned with domestic noise. Several provincial and territorial environmental protection statutes include noise in their definition of environmental harm, including those in Manitoba, New Brunswick, the Northwest Territories, Ontario, Prince Edward Island, Quebec, and the Yukon Territory.

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24.3 Indoor Air Pollution

 

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In Canada, indoor air pollution is regulated through occupational health and safety standards. See Section 24.4, below.

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24.4 Occupational Health and Safety

 

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Both the federal and provincial governments play a role in occupational health and safety, with the primary role being provincial. All provinces have statutes under which occupational health and safety is governed by legally enforceable standards. Usually, each province has three main types of statutes in this regard: workers compensation legislation, industry specific legislation, which addresses safety issues along with many other issues (such as mining Acts), and, employment standards legislation, which controls hours of work and other safety-related factors. At federally regulated workplaces, occupational health and safety is governed by the Canada Labour Code.

All provinces have legislated no-fault occupational health and safety insurance schemes, which replace a worker's common law right to sue his or her employer for negligence in the event of on-the-job injury or job-related illness. Employers pay into a fund, usually according to the claims rate in the particular industry, and injured employees receive standardized amounts of compensation without having to prove negligence by the employer. Typically, workers compensation schemes are administered by government-appointed boards, which also have extensive powers to control health and safety issues within the workplace.

In unionized workplaces, occupational health and safety is usually addressed in the collective agreement between management and labour. Typically, collective agreements establish a joint management-labour health and safety committee within each workplace.

In the 1980s, the federal and provincial governments, with participation from industry associations and labour unions, established the Workplace Hazardous Materials Information System (WHMIS). WHMIS provides comprehensive labelling, handling, and first aid information about chemicals used in the workplace. It is established under interlocking federal and provincial statutes so that the system is uniform across Canada and in both federally and provincially regulated workplaces. The federal Hazardous Materials Information Review Act established a dispute mechanism for employees, information on workplace hazards and a mechanism to protect confidential business information.

The principal federal statute governing occupational health and safety is the Canada Labour Code, and in most provinces there is an Occupational Health and Safety Act. In addition, many Canadian municipalities have enacted bylaws limiting smoking in public places such as stores and restaurants. These are intended to protect both workers and customers against the health effects of second-hand tobacco smoke.

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24.5 Environmental Economic Instruments

 

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Both federal and provincial governments have broad powers to establish and implement economic instruments regarding environmental protection. At the federal level, CEPA 1999 provides specifically for the use of economic measures such as deposit-refund schemes and tradable units to further the purposes of the Act.

The provinces of British Columbia, Ontario, and Quebec impose waste discharge fees. Fees usually vary according to the amount and toxicity of the pollutant emitted or released into the environment. For example, since 1998, a special tax of $1.25 per litre is imposed on any purchase of perchloroethylene bought or imported in Quebec. These tax revenues are used to finance an income tax credit applicable to the replacement of an existing in-use machine by a less polluting one in terms of perchloroethylene consumption.

Deposit refund systems are widely used across the country. They are most commonly used for beverage containers. However, they have also been used for "green levies" on, for example, car tires and batteries under the British Columbia Social Service Tax Act.

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24.6 Government Procurement

 

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Governments wield substantial purchasing power through their procurement policies. Governments purchase a wide variety of goods and can, therefore, play a very important role in creating markets for goods.

In British Columbia, the Purchasing Commission Act gives a commission the power to create opportunities and programs to encourage local and regional suppliers who provide environmentally sound goods. In Quebec, the Quebec Purchase Policy includes environmental regulation managed by an interministerial committee under the supervision of the Permanent Purchase Commission (PPC). This commission publishes regularly an "Environmental Specifications Index" (Répertoire des spécifications à caractère environnemental) which includes minimal environmental requirements for tendering. Moreover, a list of products and services analysed and approved by the PPC is also included.

Federally, the House of Commons has instituted the "Greening the Hill" program, in an effort to ensure that the federal government "practices what it preaches" with regard to environmental protection. In addition, the federal Environmental Choice Program defines criteria for environmentally-preferable products and allows firms that meet the standards to advertise the product with an "eco-logo." The federal government has also adopted an environmental stewardship program called Greening Government, which includes guidelines for a green procurement strategy.

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24.7 Underground Storage Tanks

 

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Provinces—and the federal government, in areas of its control—have regulations governing underground storage tanks (e.g., for their installation, monitoring, and removal). Leaks and spills also fall under applicable federal, provincial and municipal regulations. Fire codes also deal with the underground storage tank issue.

Pursuant to CEPA, Environment Canada has developed guidelines for storage tanks, both underground and aboveground, used for petroleum products.

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24.8 Introduction of Foreign Species

 

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Alien or exotic species are those which have been recently introduced into the Canadian environment. An alien species can have a major adverse environmental impact by competitively displacing native species. This displacement can lead to the extinction of native species and to damaging alterations in the environment.

Canada has affirmed its commitment to controlling the spread of alien species by being a signatory to the United Nations Convention on Biological Diversity. Article 8(h) obligates each signatory to, as far as possible and as appropriate, "prevent the introduction of, control or eradicate those alien species which threaten ecosystems, habitats or species".

However, there is no legislation at either the federal or provincial levels in Canada that addresses comprehensively the alien species problem. At the federal level, the most important statute in this regard is the Plant Protection Act. It is designed to protect plant life and the agricultural and forestry sectors of the Canadian economy by preventing the importation, exportation, and spread of pests, and by controlling or eradicating pests in Canada. "Pest" is defined as "any thing that is injurious or potentially injurious, whether directly or indirectly, to plants or to products or by-products of plants, and includes any plant prescribed as a pest."

The federal Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act also provides a certain amount of protection from the introduction of harmful species.

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2003