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Due to the federal-provincial nature of the Canadian political system, there is no single national statute providing a global framework for the protection of the Canadian environment. In January 1998, the Canadian Council of Ministers of the Environment - with the exception of Quebec - signed the Canada-wide Accord on Environmental Harmonization. Under the Accord, governments are called upon to work in partnership to reach the highest possible level of environmental protection for all Canadians. In compliance with this accord, governments are to implement sub-agreements on Canada-wide standards and on environmental assessment, employing their powers in a coordinated manner. Among the results obtained to date, the following achievements deserve mention:
Canada's Green Plan (Government of Canada, 1990) was the federal government's first attempt to integrate environmental and economic considerations, utilizing the concept of sustainable development. The Plan called for the participation of about 40 federal departments and agencies.
1995, Parliament revised the Auditor General Act to require all federal departments to prepare sustainable development strategies. The Act established the Office of the Commissioner of the Environment and Sustainable Development (see Chapter 2). The Commissioner will assess how effectively departments are moving forward on sustainable development. Over 25 departments and agencies have tabled sustainable development strategies. The strategies outline each department's goals and action plans for integrating sustainable development into their policies, programs, and operations.
At the 1992 Earth Summit in Rio, Canada became one of the signatories to Agenda 21, a 700-page document calling for global sustainable development in the 21st century. The Department of Foreign Affairs and International Trade was given the responsibility of coordinating preparation of the annual report that Canada submits to the United Nations Commission on Sustainable Development (UNCSD) . In this task, it is assisted by an interdepartmental committee headed by the Department of Foreign Affairs, Environment Canada, and the Canadian International Development Agency (CIDA). The committee obtains input from all federal departments and agencies and consults with the provinces and interested stakeholders (representing business, environmental groups, labour and others). Agenda 21 is also applied at the provincial level in various respects.
The centrepiece of federal environmental legislation in Canada is the Canadian Environmental Protection Act, 1999 (CEPA 1999), which targets pollution prevention as the primary approach to environmental protection. CEPA 1999 has 12 parts that deal with various aspects of environmental protection (these parts are described in more detail in other chapters of this summary):
The federal Fisheries Act is another important statute for the protection of the Canadian environment. Under the Fisheries Act, it is an offence for anyone to carry on any works or undertakings that result in the harmful alteration, disruption, or destruction of fish habitat. Furthermore, it is an offence to deposit or permit the deposit of any type of deleterious substance in "water frequented by fish". The Fisheries Act is administered by Fisheries and Oceans Canada (DFO) and Environment Canada. DFO is responsible for fisheries management and the protection of fish habitats. Environment Canada is responsible for water quality aspects of fish habitat. In addition, there are a number of federal-provincial agreements and memoranda of understanding delegating certain fisheries powers to particular provincial governments.
The Fisheries Act has significant penalties for contravening its provisions, and the courts can order the offender to refrain from engaging in the activity which is the cause of a toxic discharge or deposit into waters frequented by fish.
Provinces and Territories
All provinces and territories have enacted their own legislation establishing general environmental rights and responsibilities on their territories. The level of environmental protection established is significantly different in each province and territory. All provinces and territories regulate the discharge of contaminants into the environment and require licences and permits for any project that could affect the environment. Authorities may bring non-compliers to justice and impose penalties. The regulated matters include environmental impact assessment, waste management, potable water and air quality standards, land conservation, etc. Provinces and territories also deal with other matters affecting the environment, such as land use planning, mining, agriculture and transportation. Again, the level of environmental protection varies from one province or territory to the next.
Alberta. Following extensive public consultation, the government of Alberta created the The Environmental Protection and Enhancement Act (EPEA). The Act takes an integrated approach to the protection of air, land and water. Under this legislation, those who operate or propose developments that may cause environmental problems will be subject to the approval process. The approval process acts as an early warning system by identifying and preventing potential problems during the initial stages of a project. As a further safeguard, approval conditions detail specific operating requirements that projects must meet. Regular inspections and monitoring ensure projects comply with the environmental standards during and after their operation. The EPEA also guarantees public participation in decisions affecting the environment. This public involvement includes access to information, participation in the environmental assessment and approval process and the right, when directly affected, to appeal certain decisions.
British Columbia. The B.C. Waste Management Act prohibits the introduction of waste into the environment in such a manner or quantity as to cause pollution. Waste is defined broadly. Under the Act, a permit from a regional waste manager is required to discharge waste into the environment, and a special approval is required for the collection and disposition of waste. Failure to comply with the Act can result in severe penalties. The province also enacted a new Environmental Assessment Act in 1994.
Manitoba. The Manitoba Environment Act broadly states that the purpose of the Act is to "develop and maintain an environmental management system in Manitoba which will ensure that the environment is maintained in such manner as to sustain a high quality of life, including social and economic development, recreation, and leisure for this and future generations." Licences are required for all major projects. The Act created the Clean Environment Commission. Its duties include conducting public meetings, hearings and investigations into matters specified in the Act. The Commission also acts as mediator between two or more parties involved in an environmental dispute.
New Brunswick. The New Brunswick Clean Environment Act is the statutory basis for the Air Quality Regulations and the Water Quality Regulations. These regulations require approval by the provincial Minister of Environment before a source of air and/or water contamination is constructed or operated. Two other statutes are important: the New Brunswick Clean Water Act, which regulates water allocation including watercourse alteration, and the Clean Air Act which is the governing legislation for all sources of industrial air emissions in the province.
Newfoundland and Labrador. The Newfoundland and Labrador Environmental Protection Act prohibits the emission of pollutants into the environment beyond amounts established by standards or in quantities or concentrations that the Minister deems as having a negative effect on the environment. The Act also deals with environmental themes such as waste, air quality and contaminated sites. Nova Scotia. The Nova Scotia Environment Act requires the issuance of permits or licences for different types of activities which cause the discharge of waste into the natural environment. This recently adopted Act consolidates provincial environmental legislation, including environmental assessment provisions.
Ontario. The four main environmental statutes are the Ontario Environmental Protection Act (OEPA), the Ontario Environmental Bill of Rights Act, the Ontario Environmental Assessment Act and the Ontario Water Resources Act (OWRA). OEPA provides generally for the protection of the natural environment, which is defined in very broad terms. OWRA is concerned with the protection of all surface waters and ground waters. Both acts prohibit any person from discharging, or causing or permitting the discharge, of a contaminant into the natural environment that causes an adverse effect or is likely to impair the quality of the environment. The Ontario Environmental Bill of Rights Act provides for increased public participation rights and creates the Environmental Commissioner, who reports to the Ontario legislature.
Prince Edward Island. The PEI Environmental Protection Act was enacted to manage, protect and enhance the environment. The Minister of Community and Cultural Affairs has the power to take such action as he/she considers necessary to protect natural resources, including all surface, ground and shore waters, sand dunes, and beaches.
Quebec. The Quebec Environment Quality Act (EQA) states that "every person has a right to a healthy environment and to its protection, and to the protection of living species inhabiting in it." The Act allows the granting of an injunction to prohibit any act or operation which interferes or might interfere with the exercise of this right. Under the EQA, no one may discharge or allow the discharge of a contaminant into the environment in a greater quantity or concentration than that provided for in the regulations enacted under the Act The same prohibition applies if the discharge is likely to affect the life, health, safety, welfare or comfort of human beings or to cause damage or otherwise impair the quality of the soil, vegetation, wildlife or property. The Quebec Environment Minister can require a characterization study, a program of decontamination or restoration, and a timetable for the execution of the work from the person or corporate body that has released or discharged the contaminant into the environment. Furthermore, activities presenting potential environmental problems are subject to an early approval process. The EQA also provides for the environmental assessment of major projects.
Saskatchewan. The Saskatchewan Environmental Management and Protection Act, 2002 states that no person shall cause or allow any contaminant to be discharged or released where there is a reasonable possibility that the discharge or release may change the quality of the environment or cause water pollution. The Act also deals with several environmental topics such as the protection of water and environmental emergencies.
Northwest Territories. The NWT Environmental Protection Act prohibits the release of contaminants into the environment. The NWT Environmental Rights Act states that "people of the Northwest Territories have the right to a healthy environment and a right to protect the integrity, biological diversity and productivity of the ecosystems."
Yukon. The Yukon Environment Act recognizes that "every individual in the Yukon has the right to a healthful environment", and prohibits the release of contaminants into the environment. Nunavut. As Nunavut has yet to adopt environmental legislation, the orders and regulations of the Northwest Territories apply in this area.
Certain environmental rights and responsibilities also appear in ordinary law, whether in Quebec civil law or in common law.
The province of Quebec has a Civil Code that establishes the fundamental basis of its civil law system. The Quebec Civil Code includes various concepts which are similar to some of the common law doctrines mentioned below (riparian rights, negligence, etc.). Article 1457 C.c.Q. is the foundation of civil liability, which is based on the notion of fault. A victim must prove that he/she has sustained damage, that the defendant committed a fault and that there is a causal link between the damage and the fault. On the other hand, the defendant may allege and prove that all appropriate measures have been taken that would have been taken by a prudent person or he/she may allege and prove that the victim by his/her conduct is responsible for a portion of the fault. Finally, the defendant may allege and prove the fault of a third party. The degree of proof before the civil courts is weighed according to the preponderance of probabilities. Together with the Code of Civil Procedure, the Civil Code also allows applications for interlocutory or permanent injunctions. In civil litigation in Quebec, the courts can rely only on the existence of statutory provisions (either in the Civil Code or in statutes) in order to impose a sanction or to penalize conduct or an activity.
Common Law Provinces
The common law, a legal system derived from English law, is applied throughout Canada except in Quebec in civil proceedings. Essentially, this system is based on past decisions of the courts-legal precedents that are subsequently used to interpret and clarify cases currently before the courts. Although common law principles are now increasingly codified in statutes, these statutes are not a complete alternative to the application of the common law.
Canadian courts have long been involved in environmental matters, often with the help of common law rights and remedies. The legal tools created by the common law remain an important means of obtaining compensation for injury to health or damage to property, or for an injunction to prevent harm. The most important common law doctrines used in environmental matters are nuisance, riparian rights, trespass, strict liability and negligence.
The nuisance doctrine can be applied to a variety of environmental situations, such as air and water (including underground water) pollution, noise, vibration, smells, soil contamination, flooding, and activities that prevent the peaceful use and enjoyment of someone's property. There are two kinds of nuisance: private and public. A private nuisance is the unreasonable interference with someone's use or enjoyment of the land he/she owns or occupies. A public nuisance is the unreasonable interference to the public's use of public lands and waters. The key element of the concept of nuisance is the determination of what is reasonable or not depending on the circumstances of the case. Issues considered by the courts include the severity of the damage, the type of damage, the social importance and economic benefit of the activity causing the problem, the utility of the defendant's conduct, the character of the neighbourhood, and the sensitivity of the person complaining.
Someone who owns land including a part of a watercourse has the right to the continued flow of the water in its natural quantity and quality, undiminished and unpolluted. A riparian owner can sue for damages or an injunction to restrain someone from altering the flow or the quality of the riparian owner's portion of the watercourse. (While the concept of riparian rights is still considered by courts, most jurisdictions in Canada have passed legislation that governs the allocation of water rights.)
Trespass is the intrusion of people or objects onto land (either above or below the ground) without the consent of the owner or occupier of the land. Any intentional intrusion, even for good motives, could render the intruder liable for any harm (even if unintentional) that results directly from the intrusion. A legal action based on trespass will succeed unless it can be proven that the intrusion was unintentional and not negligent.
The strict liability concept arose from an 1866 English decision, Rylands v. Fletcher. A person who brings onto his/her land for his/her use dangerous substances likely to do harm if they escape, does so at his/her own peril. He/she can be found liable for all damages suffered, even if the escape was unintended and not negligent. There is some doubt now whether strict liability continues to exist independent of the law of negligence, which is discussed below.
The basis of the common law doctrine of negligence is the standard of care that a reasonable person would be expected to take under the circumstances of the case to avoid foreseeable harm to people who might be expected to suffer harm if care were not taken. A person will be found to be negligent if his/her conduct falls below what would be considered normal or reasonable in a community. It may be very difficult to determine what is the standard of care to be applied in environmental matters, especially where complex industrial operations are involved. In order to succeed in a negligence action, the onus is on the plaintiff to show that the conduct of the defendant was below the standard of reasonable care, that the defendant should have foreseen the damage suffered, and that the plaintiff was in a class of people who would be hurt if such damage did occur. Although it is difficult to win a case based on negligence, this is often the only remedy available to plaintiffs. Contrary to the nuisance doctrine, one need not be an owner or occupier of the land to sue for negligence.