Summary of Environmental Law in Canada

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9 Protection and Management of Water Resources

 

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Provinces are the primary regulators of fresh water resources in Canada. They have authority over water use and quality because of their legislative powers regarding local works and undertakings, property and civil rights, municipal institutions, and all matters of a local and private nature.

The federal government has jurisdiction over seacoast and inland fisheries, navigation and shipping, and trade and commerce. It has enacted laws dealing with the prevention of water pollution: the Canadian Environmental Protection Act, 1999 (CEPA 1999), the Fisheries Act, the Canada Water Act, the Arctic Waters Pollution Prevention Act, and the Canada Shipping Act.

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9.1 Establishing Water Discharge Standards

 

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Federal

Water discharge standards are generally developed by the provinces. The federal government, however, has established concentration standards for discharges from certain industrial operations into water. These standards are found under the Fisheries Act and CEPA 1999 (see Section 9.2: Point Sources). In addition, the Canada Water Act provides for the establishment, under federal-provincial agreements, of joint boards to manage water resources.

Provinces

All provinces have enacted their own statutes for the protection of water. Provincial legislation usually includes a general prohibition against the discharge of material of any kind that "may impair the quality of water" in any well, lake, river, pond, spring, stream, reservoir or other water or watercourse, or on their shores or banks (see for example, the Ontario Water Resource Act). These statutes also generally allow the adoption of regulations specifying standards of quality for drinkable and other water supplies, industrial and sewage waste effluents, and ambient water quality in receiving water bodies. The water quality standards recommend safe conditions or limits to protect different types of water use. These standards include, among others, conditions that have a direct effect (pH), substances that degrade water quality (nutrients, algae, and suspended particulates), substances that are toxic at low levels (cyanide, PCB's), substances that are toxic at higher levels (various forms of nitrogen, chlorine, fluoride), metals (aluminum, copper, lead, mercury, molybdenum), and microbiological indicators of risks to human health (coliform).

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9.2 Point Sources

 

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Federal

The federal Fisheries Act prohibits persons from depositing or permitting the deposit of "deleterious substances" into "waters frequented by fish," unless the deposits are of a type, quality, or concentration authorized by regulation. Deleterious substances can include industrial effluent and municipal sewage discharges, as well as bunker oil, ammonia, sewage, gravel, wood preservatives (such as tetrachlorophenol and pentachlorophenol), and diesel fuel. The Act also imposes a duty to report any deposit of a deleterious substance, or any serious and imminent danger of such a deposit.

Beginning in the 1970's, several effluent regulations were adopted under the Fisheries Act. These impose limits on the contents of discharges from pulp and paper mills, petroleum refineries, chlor-alkali plants, meat and poultry plants, metal mining operations, and potato-processing plants. The regulations allow deposits that otherwise would have been prohibited under the general offence provisions of the Act. In 1992, the federal government tightened the pollution standards in the Pulp and Paper Effluent Regulations under the Fisheries Act, and added an important new set of regulations, the Pulp and Paper Mill Effluent Chlorinated Dioxins and Furans Regulations under the Canadian Environmental Protection Act (CEPA) , prohibiting dioxins and furans in pulp mill effluent by January 1994. Also under CEPA are the Phosphorous Concentration Control Regulations.

The federal Navigable Waters Protection Act complements the Fisheries Act by prohibiting the deposit of sawdust, edgings, slabs, barks, or any similar rubbish that might interfere with navigation into navigable waterways. The regulation of water pollution from ships is discussed in Chapter 22, Transportation.

Provinces and Territories

All provinces and territories have legislation under which the government regulates water pollution from fixed point sources. This usually takes the form of regulations applicable to particular industries, or pollution permits issued to individual operations. Generally, the authorities can grant, refuse to grant, or attach terms and conditions to the permits. Often, both federal and provincial laws apply to water pollution from fixed point sources. For example, water standards controlling pulp mill discharges are found in both provincial (pulp mill effluent control regulations under the British Columbia Waste Management Act) and federal law (regulations under both CEPA and the Fisheries Act).

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9.3 Non-Point Sources

 

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Legislation in some of the provinces attempts to control non-point sources of water pollution, such as agricultural practices. More frequently, governments use a non-legislated code of practice, or a guideline which sets out how to use, store, and manage agricultural waste in an environmentally sound manner.

Motor vehicles are another key non-point source of water pollution. Contaminants from vehicle exhausts collect on the ground and are washed by stormwater into water bodies. Air emissions from motor vehicles are discussed above in section 8.3. Municipalities generally manage stormwater and sewage facilities. They have authority to restrict the substances that are allowed to be put in sewers.

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9.4 Protection of Safe Drinking Water

 

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The regulation or control of drinking water quality is a shared responsibility in Canada, with a goal to protect public health. Provinces and territories have jurisdiction over drinking water quality in most community water systems, while the federal government has jurisdiction over drinking water delivered to employees of federal works and undertakings, and water supplied to residents or visitors on federal and Indian lands. The federal government also has jurisdiction to reduce the threat posed by drinking water materials to public health and safety.

Under the aegis of the Canadian Council of Ministers of the Environment, the federal government, in cooperation with the provincial and territorial governments, has established national drinking water quality guidelines. They are contained in the "Guidelines for Canadian Drinking Water Quality" published by Health Canada. These guidelines recommend limits for substances (maximum acceptable concentrations) and conditions that affect the safety of drinking water. They are intended to apply to all drinking water supplies, public and private. However, they are not legally enforceable unless promulgated as such by a provincial or territorial authority. Some provinces, such as Quebec, have implemented a mandatory control of water quality by providers for conventional parameters. Governments ensure that the frequency of mandatory sampling is respected and they note when norms have been exceeded.

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9.5 Protection of Groundwater

 

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In Canada, groundwater does not receive the same statutory protection as surface water, and no federal legislation in this area exists. The 1987 Federal Water Policy states that the federal government will: develop strategies and guidelines for groundwater assessment and protection; conduct research and undertake technological development and demonstration projects; develop exemplary groundwater management practices involving federal lands, responsibilities, facilities, and federally funded projects; develop measures for groundwater quality in transboundary waters; and, provide advice on groundwater issues of federal and national interest.

Most provincial governments do provide some degree of protection of groundwater through general water pollution legislation, through specific regulations, and/or, less formally, through policies. Examples of provincial regulations in this area include: the mapping and classifying of aquifers according to water quality and quantity; designation of groundwater management areas; mandatory licensing of the withdrawal of water from existing and new wells; reporting of any introduction of hazardous substances into groundwater; the authority to regulate land uses or activities that may affect groundwater; mandatory licensing for well drillers and pump installers; mandatory permits for construction, servicing and abandonment of supply wells and test wells; and, province-wide standards for well construction, maintenance, testing, and abandonment. See also Chapter 24.7, Underground Storage Tanks.

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9.6 Water Quantity and Usage

 

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Apart from federal legislation regarding large scale diversions or export of water, rules governing the allocation of water quantity are set by the provinces. Under the Canada Water Act, work continues on collecting data on water quality.

Most provinces have some form of statutory scheme in which surface water is apportioned to licence holders, with priority going to the longest-standing licences. Sometimes, either the licence itself, or some other regulatory instrument imposes terms and conditions under which water can be taken and used. Typically, water allocation legislation also gives water licensees the right to obtain access to the source of water across other landowners' property, providing the licensee pays compensation. In some provinces, such as British Columbia, for example, legislation also controls the sale of bulk and bottled water because the government considers large scale sales of water to be damaging to the environment.

Often, water licensees are taxed according to the type of use for which they are licensed. To a certain extent, heavy water users pay heavier taxes, which tends to limit water consumption. However, most observers agree that water users do not generally pay a price sufficiently commensurate with the quantity of water used, and that this is a disincentive to the conservation of water. As discussed above, in Section 9.5, allocation of groundwater is generally less well defined than allocation of surface water.

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9.7 Protection of Fresh Water Ecosystems

 

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Federal

The Canada Water Act authorizes the federal government to conduct research, planning, and programs for the conservation, development, and use of water resources. The Act also sets out a framework for joint federal-provincial management of water resources. Water management programs conducted under the Act include, for example, the MacKenzie River Basin Agreement, the Great Lakes Water Quality Agreement, the Fraser Basin Management Program and the St. Lawrence Action Program, Vision 2000. The goal of the latter, an environmental partnership that began in 1994 and ends in 2003, is to clean up the river's water and preserve its natural habitat.

The federal International River Improvement Act prohibits the construction, operation, and maintenance on international rivers of "improvements," such as dams and diversions, without a licence from the federal Department of Transport. The obligation to obtain this licence is important because it may trigger the application of the federal environmental assessment process (see chapter 7, Environmental Impact Assessment).

The Navigable Waters Protection Act requires the issuance of permits for dredge and fill. This applies to both fresh and marine waters. The Canadian Heritage River System is an unlegislated program for the protection of outstanding rivers. These rivers, such as the Fraser, must meet the guidelines of the Canadian Heritage Rivers Board for natural and human heritage values, recreation values and river integrity values. Provinces are invited to participate on a voluntary basis.

While wetland conservation is a shared federal, provincial, and territorial responsibility, the federal government's role is a significant one. Wetlands are critical to federal responsibilities for maintaining the quality of the environment, migratory bird populations, inland and ocean fisheries, and international or transboundary resources such as water and wildlife. The federal government is also responsible for managing the impacts of over 900 of its policies and programs in Canada. Many of these directly or indirectly affect wetlands. The 1991 Federal Policy on Wetland Conservation by the Wetlands Subcommittee of the Federal-Provincial Committee on Land Use has the objective of promoting "the conservation of Canada's wetlands to sustain their ecological and socio-economic functions, now and in the future."

Provinces and Territories

In most provinces and territories, protection of fresh water ecosystems occurs as part of governmental management of water pollution, land use, timber harvesting, and other related matters. There are few regulations on watershed protection or wetlands protection, as such. However, municipal and provincial officials utilise land development guidelines developed by the federal Department of Fisheries and Oceans. These apply to any development adjacent to fish-bearing waters such as streams and rivers. Some provinces have designed their own management policy. For example, Quebec has a "Politique de protection des rives, du littoral et des plaines innondables", which is part of municipal regulations. Quebec has also adopted a water policy that manages water resources on a watershed basis. Some municipalities have placed restrictions on the development of environmentally sensitive areas, such as wetlands.

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9.8 Liability and Enforcement

 

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The federal Fisheries Act prohibition against depositing deleterious substances in waters frequented by fish has proven to be very effective in prosecuting polluters. Courts have held that it is sufficient to prove that a substance can harm fish, without having to show that the amount of the substance hfound in the water has actually caused harm. Convictions have also occurred in cases where substances have not been deposited directly into the waters frequented by fish, but rather into places from which they might enter such waters.

A due diligence defence is allowed by the Fisheries Act. In other words, it is a defence to a charge under the Act to show that the accused person (or company) took all reasonable steps to prevent commission of the offence. In 1991, the penalties resulting from violation of either the fish habitat or deleterious substances deposit provisions of the Act were increased by adding fines up to CDN$300,000 and six months imprisonment for first offences, and fines up to CND$1 million and three years imprisonment for second or subsequent offences.

Many provinces prefer to address water pollution through their own statutes. Provincial penalties include fines of up to CDN$200,000 or more, and imprisonment.

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2003