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The Investigator's Legal Handbook
by Gordon Scott Campbell

 


Le manuel juridique de l’enquêteur
par Gordon Scott Campbell

 

REGQUEST: Regulatory Offences and Compliance Newsletter (Carswell), 12 issues per year
Co-Editor Gordon Scott Campbell

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TEN THINGS YOU NEED TO KNOW ABOUT ENVIRONMENTAL LAW IN CANADA

1. Legal jurisdiction over the environment in Canada is constitutionally split between federal and provincial governments, and further split as a matter of policy amongst various ministries of those governments. Federally, for example, Environment Canada (transboundary and certain types of chemical pollution), Transport Canada (pollution from ships), and Fisheries and Oceans Canada (fish habitat) all have significant jurisdiction over pollution. Provincial ministries are principally responsible for water quality, soil contamination, and atmospheric pollution within a province.

2. Through delegated jurisdiction, municipalities can also significantly control activities that affect the environment through planning controls and bylaw creation. The Supreme Court of Canada in 114957 Canada Ltée (Spraytech, Société d'arrosage) v. Hudson (Town), [2001] 2 S.C.R. 241 affirmed the authority of a municipality to prohibit pesticide use for purely aesthetic reasons within its boundaries in order to promote the general welfare and health of its residents.

3. An individual or organization is responsible for obtaining all necessary environmental approvals from all government ministries before taking government-regulated action.

4. Environmental assessment processes seek to predict the environmental effects of proposed initiatives, suggest mitigation measures, and ensure environmental factors are incorporated into decision-making. Assessments are triggered by a variety of factors like type or magnitude of action depending on the federal or provincial legislation applicable to a project, and at the federal level may involve different levels of inquiry including screenings, comprehensive studies, mediations and review panels.

5. The “precautionary principle” maintains that where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing legal and other measures to prevent environmental degradation.

6. Directors are at risk of personal liability for actions of their organizations that affect the environment. Organizations may need to formulate and implement extensive environmental policies in order for directors to be able to demonstrate due diligence with respect to environmental protection.

7. The penalties in Canada for environmental offences are now very severe. A maximum of a one million dollar fine and three years imprisonment per offence is possible under the Canadian Environmental Protection Act, 1999. Under the Ontario Environmental Protection Act five years imprisonment, a ten million dollar fine, and mandatory minimum fines ranging from $5,000 to $100,000 are possible. While environmental enforcement powers tend to focus on stopping further harm, and on punishing those who commit offences, newer legislation has a greater scope for achieving remediation of environmental damage depending on the uniqueness and importance of the affected environment, and the potential for restoring it to its pre-damaged state.

8. In addition to the statutory remedies available to governments for breaches of environmental obligations, private citizens and organizations may seek civil remedies under torts like nuisance, negligence, or trespass, and can also pursue private prosecutions. But private recourse to the courts for environmental matters can be expensive, time consuming, have a difficult burden of proof to meet in the face of conflicting scientific evidence, and only access limited remedies.

9. Environmental law, intellectual property law, and Aboriginal law all intersect in balancing promotion of biodiversity with ensuring control and benefits for indigenous communities of their traditional ecological knowledge. The international community acknowledged this balancing act in the Convention on Biological Diversity  

10. Sustainable development law integrates economic development, social justice and environmental protection. It’s promoted through agreements like the Rio Declaration on the Environment and Development which proclaims that human beings “are entitled to a healthy and productive life in harmony with nature,” and that states should “reduce and eliminate unsustainable patterns of production and consumption,” undertake environmental impact assessment “for proposed activities that are likely to have a significant adverse impact on the environment,” and provide “effective access to judicial and administrative proceedings, including redress and remedy.”

 

This material is for information purposes only, is not advice, and since the law is constantly evolving its accuracy cannot be guaranteed. It may be freely distributed for non-commercial purposes provided you acknowledge the source and copyright.

© 2012 Gordon Scott Campbell, Barrister & Solicitor
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