The Environment and Climate Change Law Review: Canada

Introduction

Canadian federal and provincial governments have taken active roles in environmental protection and climate change, with increasing legislative action in recent years. Climate change has become a forefront issue, with governments enacting legislation or policies aimed at addressing this challenge through reducing emissions or mitigation measures. Federal and some provincial governments have also introduced new legislation for the assessment of major projects, and such assessments now directly include an assessment of certain factors related to climate change and Canada's international climate commitments. The federal government also recently introduced a bill that, if passed, will enshrine Canada's international emission reduction targets into Canadian law.

The new legislation has not been without its challenges. Canada's primary legislation regarding greenhouse gas (GHG) emissions was challenged by several provinces. These court cases were recently heard by the Supreme Court of Canada and the decisions (which have not yet been rendered) are likely to impact future climate legislation and policy in Canada.

Climate change and the transition to a low-carbon economy has also featured prominently in environmental, social and governance (ESG), a tool increasingly used by investors to evaluate the risks of investing in companies.

Legislative framework

In Canada, jurisdiction over the environment is shared among various levels of government as the environment is not named specifically in the Canadian Constitution. Jurisdiction is instead based upon other named heads of power, including natural resources, fisheries, criminal law, property and civil rights in the province and the power over peace, order and good governance. Consequently, all levels of government have enacted legislation to regulate impacts on the natural and human environment.

i International

Canada has been an active participant in international agreements and initiatives. In 2016, Canada ratified the Paris Agreement.2 The federal government then released the Pan-Canadian Framework on Clean Growth and Climate Change, a plan to meet Canada's emission reduction targets and mitigate climate change. To achieve these goals, the key objective of the Framework was a Canada-wide carbon pricing system implemented by the provinces with a federal backstop if provincial governments do not implement federal targets. The federal government introduced the Greenhouse Gas Pollution Pricing Act in 2018, which set out standards for carbon pricing across Canada.3 In December 2020, the federal government released A Healthy Environment and a Healthy Economy4 (Climate Plan), a new climate plan to exceed Canada's 2030 emission reduction targets and achieve net-zero greenhouse gas emissions by 2050.

Canada also participates in a number of bilateral and multilateral treaties. These include the MARPOL protocol preventing pollution from ships,5 the Ramsar Convention on protection of wetlands,6 the Protocol on Environmental Protection of the Antarctic,7 and the Rotterdam Convention on the prior informed consent procedure for hazardous chemicals.8

ii Federal

The Canadian Environmental Protection Act, 1999 (CEPA) is the main federal environmental statute regulating activities under federal jurisdiction.9 CEPA establishes a comprehensive scheme regulating toxic substances, disposal at sea, cross-border air and water pollution, federal works and undertakings and activities on federal land. In October 2020, the federal government announced a plan to add 'plastic manufactured items' to the List of Toxic Substances under CEPA and to ban several plastic waste products over the next two years.

The Impact Assessment Act came into force in August 2019, replacing the Canadian Environmental Assessment Act, 2012.10 It establishes a comprehensive process for assessing the environmental, health, social and economic effects of designated projects to prevent adverse effects and foster sustainability. Certain projects cannot proceed without undergoing an impact assessment. Compared to its predecessor legislation, the Impact Assessment Act has a greater focus on impacts related to climate change and involvement of Indigenous groups. Assessments must take into account several legislated factors, including the changes to the environment that are likely to be caused by the project, alternative means of carrying out the project (including the use of best available technologies), the extent to which the effects of the project hinder or contribute to Canada's ability to meet its environmental obligations and commitments in respect of climate change and changes to the designated project that may be caused by the environment.

The Fisheries Act is the key federal law protecting Canada's fisheries and waters.11 It applies to both coastal and inland waters and contains provisions protecting fish and fish habitat. It requires authorisations for work, undertakings or activities that may harm fish or fish habitat and prohibits deposits of deleterious substances into water frequented by fish.

Other key federal legislation regulating the environment includes the Transportation of Dangerous Goods Act, 1992,12 Species at Risk Act13 and the Migratory Birds Convention Act, 1994.14

Canada recently introduced Bill C-12, the Canadian Net-Zero Emissions Accountability Act.15 If passed by Parliament, Bill C-12 will turn the federal government's commitment to net-zero emissions by 2050 into law. The Bill aims to promote transparency and accountability in relation to achieving emission targets and to support Canada's international commitments to mitigate climate change. Emission targets are to be based on the best scientific information available.16 In its current form, Bill C-12 requires emission targets set in five-year intervals between 2030 and 2050, accompanied by an emission reduction plan and key reduction measures.17 The Bill also requires progress reports for each emission target, including updates on the progress made toward achieving those targets, the implementation of federal measures, sectoral strategies and information on additional measures that could be taken to increase the probability of achieving the targets.18

iii Provincial

The provinces also have jurisdiction to regulate the environment, and each province and territory has its own regime for environmental protection. This generally includes legislation concerning environmental assessment, pollution prevention, water protection, wildlife, hazardous substances, contamination and waste. As jurisdiction over the environment is shared, compliance with both federal and provincial laws is generally required. For impact and environmental assessments, the provinces may enter into agreements with the federal government to avoid duplication of assessments. For example, in 2019, British Columbia and Canada entered into a Cooperation Agreement regarding environmental assessment for projects that require impact and environmental assessment under both federal and provincial legislation. Under the Cooperation Agreement, the governments may cooperate by conducting coordinated or joint assessments or by substitution.19

iv Municipal

Municipalities may participate in environmental protection and climate change policy through the implementation of bylaws. These powers include the ability to regulate waste disposal and recycling. Municipalities may also regulate stormwater and wastewater disposal. For example, Metro Vancouver's Sewer Use Bylaw sets out standards for discharge to municipal sewers with a view to protecting human health and the environment.

v Indigenous groups

There has been an increasing focus on Indigenous participation in environmental regulation. Under treaties, Indigenous groups may have rights to be involved in environmental protection and regulation. Aboriginal title has also been recognised in British Columbia.20 The courts have played an active role in clarifying Indigenous rights and participation in regulatory processes. Key cases have established that the crown has a duty to consult and, where appropriate, accommodate Indigenous groups where the crown's conduct may adversely affect an Indigenous or treaty right.21 The duty to consult and accommodate often arises in the context of major natural resource projects. The scope of the duty 'stresses the need to balance competing societal interests with aboriginal and treaty rights'.22 The duty to accommodate may arise when consultations with Indigenous groups indicate the proposed project or authorisation may adversely affect Indigenous rights. In practice, accommodation has resulted in rerouting proposed roads, timing construction to reduce impacts on wildlife, reducing the size of projects and environmental monitoring to assess and mitigate environmental impacts. Accommodation may also include denying a project the ability to proceed or relevant permits.

Recent environmental legislation also includes direct roles for Indigenous groups. For example, the Impact Assessment Act recognises Indigenous governing bodies as a level of government with shared jurisdiction over the environment.23 It allows for the government to enter into agreements delegating parts of the impact assessment process to Indigenous governing bodies.24 It also requires the regulator to consult with Indigenous groups at various stages of an assessment. The British Columbia Environmental Assessment Act requires consultation and for the regulator to consider Indigenous knowledge during environmental assessments.25 It also requires the regulator to seek to achieve consensus with participating Indigenous groups at several points during the assessment.26 In 2019, British Columbia passed the Declaration on the Rights of Indigenous Peoples Act to implement the United Nations Declaration on the Rights of Indigenous Peoples in British Columbia.27 In December 2020, the federal government introduced Bill C-15, the United Nations Declaration on the Rights of Indigenous Peoples Act,28 which, if passed, would affirm that the United Nations Declaration applies in Canada. Based on this new British Columbia legislation and Bill C-15, increasing consultation and agreements with Indigenous groups is likely, particularly in the regulation of natural resources.

The regulators

The primary federal regulator is Environment and Climate Change Canada (ECCC), which is responsible for enforcing and administering CEPA. Fisheries and Oceans Canada (also known as DFO) is the lead regulator for managing and enforcing legislation regarding Canada's waters, fisheries and oceans. Fisheries and Oceans Canada administers the majority of the Fisheries Act, though the pollution prevention provisions are enforced by ECCC. Transport Canada oversees the regulation of dangerous and hazardous goods and substances to ensure their safe transport and storage across Canada.

The provinces have their own regulators for environmental protection and enforcement. In British Columbia, the Ministry of Environment and Climate Change Strategy is the primary agency responsible for environmental regulation, including water, land and air quality, climate change, environmental emergencies and wildlife, fish and protected areas. The Ministry of Energy, Mines and Petroleum Resources regulates the mining and energy sectors and permitting of major mineral exploration projects. In Ontario, the Ministry of Environment, Conservation and Parks regulates environmental protection, authorisations, waste management, species at risk and air and water quality. The Ministry of Energy, Northern Development and Mines regulates Ontario's mining and energy sectors.

Environmental offences in Canada are quasi criminal offences, and offenders may face prosecution for non-compliance. Upon conviction, the courts can impose sentences of imprisonment or fines, which in recent years have become substantial. Some environmental statues also provide the courts with creative sentencing options including the discretion to require restoration of the environment, compensation for damage to the environment, payments of fines to environmental funds, and requiring the offender to take action or build infrastructure to prevent a recurrence or publish details of the offence.

Enforcement

Generally, environmental enforcement officers are given broad powers to investigate non-compliance, issue stop-work orders and order measures be undertaken to achieve compliance and restore the environment. These include pollution prevention orders and remediation or restoration orders requiring persons who have possession, charge or control of a substance to prevent the release of substances or to remedy the adverse effects on the environment. Environmental legislation also often provides that authorisations may be suspended or cancelled for non-compliance.

For example, under the British Columbia Environmental Assessment Act, if the regulator considers there is or is likely to be a contravention of the Act or a certificate issued under it, the regulator may order the certificate holder to stop doing the activity that is or is likely to be a contravention, take any measures considered necessary to comply or cease construction or any other activities authorised by the certificate.29

Federal and provincial environmental laws contain offence provisions for non-compliance and penalties are substantial. Offences can result in imprisonment under many statutes and fines can be up to several million dollars. For example, fines under CEPA and the Fisheries Act are up to C$12 million.30 Additionally, many laws allow for these fines to be imposed for each day the offence continues, and some have mandatory minimum penalties.31 Various environmental laws also impose liability on employees, agents, officers and directors if they authorise, permit or acquiesce in the commission of an offence.32

Many environmental laws also permit administrative penalties (fines) to be levied for non-compliance by enforcement officers if the regulator is satisfied on a balance of probabilities that an offence occurred. This is an out-of-court process, but fines may still be significant. Enforcement by way of administrative penalties has been increasing in recent years. Various jurisdictions also provide for tickets for non-compliance. Prosecutions may also be published on the environmental offender's registry.

Limited defences are available to avoid penalties and prosecution under environmental law. These include necessity, impossibility and due diligence. The defence of necessity only applies in circumstances of imminent danger where the actions were taken to avoid some greater risk or peril. In order for the defence to be successful, there must be an imminent peril, a lack of an alternative, and the harm caused by the non-compliance is less than the harm that was being avoided. The defence of impossibility applies where compliance with the law is impossible. The due diligence defence is the most common defence in environmental prosecutions. To make a successful due diligence defence, the accused must demonstrate they took all reasonable steps to prevent the commission of the offence.33

Some environmental laws create civil liability where compensation can be claimed by those adversely affected. For the most part, these laws are focused on providing that right to governments, who are usually the ones that take action. Pollution and contamination are areas where private parties have rights of action against those who cause or contribute to the pollution or contamination. Most of these causes of action are based in the common law (negligence, nuisance, strict liability) or contract, though some laws provide statutory rights of action, such as the cost recovery action in the BC Environmental Management Act.

Reporting and disclosure

Many environmental laws have reporting and disclosure requirements. For example, the Fisheries Act requires owners or persons who have charge, management or control of a deleterious substance of works, undertakings or activities that have contributed to a deposit to report the deposit or the serious and imminent danger of such a deposit.34 Failure to immediately report a deposit is an offence and may result in charges. Under CEPA, persons who own or have charge, management or control of a substance that causes or contributes to an environmental emergency must report the environmental emergency, take all reasonable measures to protect the environment and mitigate any effects.35

In 2017, a comprehensive spill reporting regime came into force in British Columbia. It requires 'responsible persons', those who have possession, charge or control of a substance when a spill occurs or is at imminent risk of occurring, to report spills. Reportable spills are the spill of a prescribed quantity of a substance listed in the Spill Reporting Regulation, or the spill of any quantity of a substance that enters or is likely to enter a body of water.36 Reporting is required immediately, every 30 days after the spill and at the end of the spill (once the spill is under control, waste has been removed from the spill site and disposed of appropriately).37 The Spill Reporting Regulation sets out a comprehensive list of information that is required to be reported, including the date, time and location of the spill, a description of the spill site, the source of the spill and a description of the circumstances, cause and effects of the spill and details of actions taken or proposed to monitor, evaluate and mitigate the spill.38

Many authorisations (federal and provincial) will require the permittee to report non-compliance with the permit to regulators. Authorisations also often contain monitoring and general reporting requirements. For example, authorisations for effluent and air discharge often include monitoring of discharge points and reporting to ensure discharges are within permitted limits.

Reporting of environmental risks by regulated companies is evolving in Canada. Companies are required to disclose material information affecting their business, and environmental information may be material, and climate change has been identified as a particular risk. The Canadian Securities Administrators (CSA) issued a staff notice on 'Reporting of Climate Change-related Risks'39 that reinforces and expands upon the guidance provided in CSA Staff Notice 51-333 'Environmental Reporting Guidance'.40 Regulators have noted that companies should disclose material risks related to both physical risk (such as extreme weather events or rising sea levels) and material risk the business faces in the transition to a low-carbon economy (including reputational risk, policy risk, regulatory risk and market risk, among others).

Environmental protection

i Air quality

Air emissions are regulated at the federal, provincial and territorial levels (and often at the local government level) in Canada. Federally, CEPA regulates air pollution, with several regulations aimed at industry-specific and multi-industry emissions, including asbestos mines and mills, lead smelters and releases of halocarbons. Regulations under CEPA are also targeted at emission reduction, including regarding renewable fuel content, vehicle and engine GHG emissions and carbon dioxide emissions from natural gas-fired electricity generation. The National Pollutant Release Inventory requires owners or operators to report emissions if those emissions exceed certain thresholds.41

The provinces also generally regulate air emissions. The British Columbia Environmental Management Act (EMA) prohibits the introduction of waste into the environment in the course of conducting a prescribed industry and the introduction of waste into the environment so as to cause (air) pollution.42 Authorisations are required for air emissions and often include monitoring and reporting requirements. In Ontario, air emissions are regulated under the Environmental Protection Act (EPA).43 Regulations under the EPA set out limits for air contaminants determined at 'points of impingement' and include permitting and monitoring requirements.44 Quebec's Clean Air Regulation includes standards for air emissions, and Quebec also has a cap-and-trade system for GHG emissions.45

ii Water quality

The federal Fisheries Act is the primary federal statute regulating Canada's coastal and inland waters. It prohibits the deposit of deleterious substances into waters frequented by fish. 'Deleterious substance' includes any substance that would degrade or alter or contribute to the degradation or alteration of the quality of water frequented by fish so as to render the water deleterious to fish or fish habitat.46 Although some industries are specifically regulated and allowed to discharge deleterious substances up to certain thresholds, there is generally no ability to obtain an authorisation for such deposits, and the federal government regularly pursues charges for water pollution. The federal government also regulates the boundary waters between Canada and the US, the Great Lakes and Canada's territorial waters.

In British Columbia, the Water Sustainability Act (WSA) requires licences for the use of all fresh water in the province.47 Licence holders are permitted to divert, store, distribute and use water for the purpose specified in their licence. Approval is also required prior to making any changes in and about a stream. 'Stream' is defined broadly and includes natural watercourses and bodies of water, lakes, ponds, rivers, springs and wetlands.48 The WSA also prohibits the deposit of foreign matter (including debris) into a stream.49

The British Columbia EMA prohibitions on the introduction of waste into the environment also apply to bodies of water. The definition of waste includes effluent, which is a substance added to water capable of injuring life forms or damaging the environment.50

Recent amendments to Quebec's Environment Quality Act (EQA) now require all work and construction in bodies of water and wetlands to receive ministerial authorisation prior to commencing.51 If adverse effects cannot be avoided, financial compensation is required, subject to certain exceptions for adverse effects set out in the regulations. The minister may refuse to issue an authorisation if:

  1. the applicant has not satisfied the minister that the work would avoid adversely affecting the wetlands and bodies of water;
  2. the proposed mitigation measures would not reduce the impact on the wetlands and bodies of water;
  3. the minister is of the opinion the project would have adverse effects on the wetlands and bodies of water; or
  4. the applicant refuses to pay the required financial compensation.52

The Ontario Water Resources Act is aimed at providing for the protection, conservation and management of Ontario's waters for their sustainable use and long-term environmental well-being.53 It requires authorisation from the regulator prior to discharging into bodies of water any discharge that may impair the quality of any waters.54

iii Chemicals

The manufacture, import, export, handling, storage and transport of chemicals (sometimes referred to as hazardous or dangerous substances or goods) are regulated by federal, provincial and territorial laws.

At the federal level, CEPA regulates toxic substances. Importers and manufacturers are required to notify the federal government of new substances that are not already listed pursuant to CEPA. New substances must be assessed before they are permitted to be used or imported into Canada. Substances that may present a danger to the environment or human health may be added to the Toxic Substances List, which requires regulators to implement measures to manage these substances, including pollution prevention. Substances that are deemed particularly harmful, bio accumulative and persistent in the environment may be listed on the Virtual Elimination List.55 Such substances will be prescribed a maximum quantity or concentration that may be released into the environment.

The federal Pest Control Products Act regulates pest-control products with a view to protecting human health and the environment.56 It is prohibited to manufacture, possess, distribute or use pest-control products unless they are registered under the Act. Products may only be registered after undergoing a risk assessment that includes consideration of aggregate and cumulative effects.

iv Solid and hazardous waste

Solid and hazardous waste is regulated at the federal, provincial and territorial levels (and at times the local government level) in Canada.

Federally, CEPA regulates the interprovincial and international movement of hazardous waste, recyclable material and certain non-hazardous wastes.57 The definitions of hazardous waste and hazardous recyclable materials are based on the Basel Convention. Waste may not be transported across provincial borders without appropriate waste manifests. Exporters and importers of hazardous waste are required to notify the regulators and obtain a permit before importing or exporting the waste. Notification requirements include the nature and quantity of the waste, information of exporters, importers and carriers, proposed disposal or recycling operations, contracts between exporters and importers and insurance information. Insurance coverage is required for potential damage to third parties and costs that may be imposed on the importer, exporter or carrier to clean up the environment owing to a release of the hazardous waste or recyclable material.

The provinces also regulate hazardous waste within their borders. Provinces generally require that hazardous substances be appropriately labelled before transport, with notification provided to the provincial government. In British Columbia, the Hazardous Waste Regulation sets out various requirements for hazardous waste transport, facilities and disposal.58 Hazardous waste includes dangerous goods that are no longer used for their original purpose, leachable toxic wastes, waste oil and biomedical waste. Requirements include operational and siting requirements for facilities, and requirements for hazardous waste generators to register and maintain identification numbers.

The federal Transportation of Dangerous Goods Act, 199259 (TDGA) applies to the transportation of dangerous goods within Canada. It applies to companies that package and offer dangerous goods for shipment, loaders and unloaders, carriers and those who receive the dangerous goods. 'Dangerous goods' are listed in the regulations and arranged into nine classes of goods based on international standards. The TDGA also applies to any good that 'by its nature' would be included in one of the classes set out in the regulations.60 The regulations set out requirements for packaging, marking, safety standards, transport and record keeping. No permit is required so long as the TDGA and regulations are complied with. However, if non-compliance is not possible, permits may be issued for transport with an equivalent level of safety. The provinces also regulate dangerous goods within provincial boundaries with schemes substantially similar to the federal TDGA.

Ontario requires government approvals for the collection, transport, treatment and disposal of solid waste and has a comprehensive product stewardship and producer responsibility regime aimed at reducing waste and protecting the environment. The British Columbia EMA regulates solid waste management, requires waste discharge authorisations for the deposit of waste into the environment and establishes requirements for waste management plans for municipal solid waste. The Landfill Gas Emission Regulation sets out criteria for landfill gas capture in order to minimise landfill gas emissions.61

v Contaminated land

Contaminated land is regulated in Canada by the federal, provincial and territorial governments. Generally, these regimes identify contaminated sites and set standards for the remediation of such sites, provide regulators with the power to require assessment and remediation of such sites and issue remediation orders; and provide for government sign-off on completion of remediation. Several jurisdictions provide for the recovery of remediation costs from those who caused the contamination (under the 'polluter pays' principle) or owned or operated on the site (under the 'beneficiary pays' principle), and for the allocation of liability for those costs.

In Alberta, the Environmental Protection and Enhancement Act regulates the release of certain substances into the environment and requires reporting by any person who released or caused or permitted the release of those substances into the environment.62 It also provides the regulator with the ability to issue environmental protection orders (including orders to restore the affected environment) and governs the issuance of remediation certificates in respect of land where remediation has been carried out.

In British Columbia, the EMA and Contaminated Sites Regulation (CSR) sets out a comprehensive scheme for the identification and remediation of contaminated sites, including the assessment and allocation of liability for remediation of contamination on such sites.63 Under this regime, 'responsible persons' are responsible for the costs of remediation and may be liable to anyone who has incurred costs to remediate the site. 'Responsible person' is defined broadly and includes various categories of persons who are connected to the site. These include current and past owners and operators and transporters and producers of contaminants.

The EMA contains a statutory right of action for the recovery of the costs of investigating and remediating a contaminated site. Such actions can be initiated by private parties or the government. Liability is absolute, retroactive, joint and separate. A responsible person who caused only some of the contamination may be named to fund the costs of all of the site remediation, subject to a right of contribution from other responsible persons. The CSR sets out factors that a court may consider in determining compensation under a cost recovery action.64

Under the Ontario Environmental Protection Act, those in control of spills or discharges must notify the regulator and take action to clean up and restore the environment.65 Those who suffer loss or damage as a result of a spill have a statutory right recovery from those in control of the spilled substances. If the government incurs clean-up costs, it may recover those costs from persons in control of spilled substances or from current and past owners, even where those owners did not cause or contribute to the contamination. For certain changes of use of land, a record of site condition is required that confirms the site has been investigated and remediated if the land is contaminated.

Climate change

The new federal Climate Plan addresses emissions from many sources including buildings, transportation, heavy industry, and oil and gas production. A key feature of the Climate Plan is an increase on the price on carbon to C$170 per tonne by 2030. The Climate Plan also sets out 64 policies and programmes to achieve Canada's emission reduction goals and transition to a low-carbon economy. For example, the federal government intends to launch a Net-Zero Challenge for large industrial emitters to transition facilities to net-zero emissions by 2050. It also seeks to substantially reduce greenhouse gases from buildings while reducing owner-operator expenses by incentivising energy-efficient retrofitting. The Climate Plan also includes policies and programmes aimed at clean fuel, energy and waste reduction (among others).

The Greenhouse Gas Pollution Pricing Act66 (GGPPA) sets out the framework for the federal carbon pricing system in order to meet Canada's carbon emission targets under the Paris Agreement by reducing GHG emissions across Canada. The GGPPA implements a carbon tax (administered by the Canada Revenue Agency) on fuel for 21 different types of fuel and waste. It also sets out an output-based pricing system for industrial facilities with significant emissions (administered by ECCC). The GGPPA establishes a federal backstop for provinces and territories that do not adopt their own carbon pricing systems which meet the federal requirements. If provinces implement their own carbon pricing system that complies with the federal requirements, the GGPPA does not apply in those provinces.

Ontario, Saskatchewan and Alberta (and others) launched court challenges to the GGPPA on the basis that the Act was unconstitutional and infringed on provincial jurisdiction. Both the Ontario and Saskatchewan Courts of Appeal held that the GGPPA is constitutional under the federal government's power over matters of national concern under the peace, order and good government power.67 However, the Alberta Court of Appeal found the GGPPA was unconstitutional as it did not fall within federal jurisdiction and infringed on the province's exclusive jurisdiction.68 The Ontario, Saskatchewan and Alberta decisions have been appealed to the Supreme Court of Canada. The Supreme Court recently heard these appeals, and decisions are expected in the near future.

Ontario, Manitoba, New Brunswick, Saskatchewan, the Yukon and Nunavut are subject to the federal system under the GGPPA.

British Columbia has implemented its own carbon pricing system. In British Columbia, several statutes regulate GHG emissions and seek to address climate change. The Climate Change Accountability Act sets out provincial targets for reductions of GHG emissions by 2050.69 Under the Carbon Tax Act, a carbon tax is imposed on the purchase of different types of fossil fuels.70 The Greenhouse Gas Emission Reporting Regulation requires industrial operations in British Columbia emitting 10,000 tonnes or more of CO2e annually to report emissions. Industrial operations emitting over 25,000 tonnes or more of CO2e annually must also have their emissions verified independently.71 The Greenhouse Gas Reduction (Renewable and Low Carbon Fuel Requirements) Act provides the government with the ability to set standards for renewable fuel in transportation fuel blends to meet its commitments for a new low-carbon fuel standard.72

Alberta's Emission Management and Climate Resilience Act sets out Alberta's GHG emission reduction targets, emission offsets and trading regime and reporting requirements.73 It also regulates the Technology Innovation and Emissions Reduction Fund for the purposes of energy conservation and efficiency, demonstrating the use of new technologies to reduce emissions and the development of opportunities for the removal of specified gases from the atmosphere, among others.74 In late 2020, Alberta announced it was providing significant funding to three new programmes to reduce GHG emissions. These include programmes for operational and energy efficiencies, GHG reduction, low-carbon products, alternative power sources and energy-saving measures for businesses.

Recently, a number of legal actions have been commenced against the Canadian government, to try to compel the government to better address climate change. Similar to lawsuits in other countries, the Canadian actions have not met with success to date.

In Misdzi Yikh v. Canada,75 the court struck a claim by an Indigenous group on the basis that it was not justiciable and did not disclose a cause of action. The plaintiff had alleged that the Canadian government's approach to climate change had violated their constitutional and human rights. The plaintiffs claimed to have experienced significant impacts on their territories caused by warming, and expect to experience negative health impacts because of climate change. In striking the claim, the court noted that 'the issue of climate change, while undoubtedly important, is inherently political, not legal, and is the realm of the executive and legislative branches of government'.

In La Rose et al v Her Majesty the Queen,76 15 children and youths from across Canada sued the Crown, alleging that GHG emissions violated their Charter rights and breached the Crown's obligations under the 'public trust' doctrine. This claim, too, was struck by the court.

In Environnement Jeunesse v. Attorney General of Canada,77 the court dismissed a motion to certify a class action by a group of citizens claiming that the Canadian government failed to set up a GHG emission reduction target and plan to avoid dangerous climate change impacts.

Outlook and conclusions

The last year in Canada saw increasing legislation and lawsuits related to environmental regulation and climate change. As climate change remains a key issue both globally and in Canada, including for the current government, more regulation (and challenges) are expected. Bill C-12, the federal government's proposed legislation to enforce its 2050 net-zero emission requirements, is likely to pass into law in 2021. However, the Supreme Court of Canada's decision on the provincial challenges to the GGPPA and national carbon pricing system will have a significant impact on the future of Canadian climate policy and legislation.

Footnotes

1 Tony Crossman is a partner and Paulina Adamson is an associate at Blake, Cassels & Graydon LLP.

2 United Nations Framework Convention on Climate Change, 'The Paris Agreement'.

3 SC 2018, c 12.

4 Environment and Climate Change Canada, A Healthy Environment and a Healthy Economy, Canada's strengthened climate plan to create jobs and support people, communities and the planet, available online: www.canada.ca/content/dam/eccc/documents/pdf/climate-change/climate-plan/healthy_environment_healthy_economy_plan.pdf.

5 International Convention for the Prevention of Pollution from Ships 1973, as amended by the Protocol of 1978 (MARPOL 73/78).

6 Convention on Wetlands of International Importance Especially as Waterfowl Habitat (Ramsar).

7 Protocol on Environmental Protection to the Antarctic Treaty (Environmental Protocol).

8 Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade.

9 SC 1999, c 33.

10 SC 2019, c 28, replacing SC 2012, c 19.

11 RSC 1985, c F-14.

12 SC 1992, c 34.

13 SC 2002, c 29.

14 SC 1994, c 22.

15 Bill C-12, An Act respecting transparency and accountability in Canada's efforts to achieve net-zero greenhouse gas emissions by the year 2050, 2nd Sess, 43rd Parl, 2020 (First Reading) [Bill C-12].

16 Bill C-12, s 4.

17 Bill C-12, s 7, 9 and 10.

18 Bill C-12, s 14.

20 Tsilhqot'in Nation v. British Columbia, [2014] SCJ No. 44, [2014] 2 SCR 257, 2014 SCC 44.

21 Haida Nation v. British Columbia (Minister of Forests), [2004] SCJ No. 70, 2004 SCC 73 (SCC) (Haida) and Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 SCR 388, 2005 SCC 69 at para 53 (Mikisew).

22 Chippewas of the Thames First Nation v. Enbridge Pipelines, Inc, 2017 SCC 41 at para 59.

23 Impact Assessment Act, s 2.

24 Impact Assessment Act, s 29.

25 Environmental Assessment Act, SBC 2018, c 51, s 2.

26 Environmental Assessment Act, s 16, 19 and 27.

27 SBC 2019, c 44.

28 Bill C-15, An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples, 2nd Sess, 43rd Parl, 2020 (First Reading).

29 Environmental Assessment Act, s 53.

30 Fisheries Act, s 40.

31 See, for example, Fisheries Act, s 40 and 78(1).

32 See, for example, Fisheries Act, s 78(2).

33 R v. Sault Ste Marie, [1978] 2 SCR 1299.

34 Fisheries Act, s 38(5).

35 CEPA, s 95.

36 BC Reg 187/2017, s 2 [Spill Reporting Regulation].

37 Spill Reporting Regulation, s 4, 5 and 6.

38 Spill Reporting Regulation, s 4.

39 Canadian Securities Administrators, CSA Staff Notice 51-358 Reporting of Climate Change-related Risks (1 August 2019), available online: www.bcsc.bc.ca/-/media/PWS/Resources/Securities_Law/Policies/Policy5/51358-CSA-Staff-Notice-August-1-2019.pdf.

40 Canadian Securities Administrators, CSA Staff Notice 51-333 Environmental Reporting Guidance (15 October 2010), online: www.bcsc.bc.ca/-/media/PWS/Resources/Securities_Law/Policies/Policy5/CSA-Staff-Notice-51333.pdf.

41 Environment and Climate Change Canada, National Pollutant Release Inventory, available online:
www.canada.ca/en/services/environment/pollution-waste-management/national-pollutant-release-inventory.html.

42 EMA, s SBC 2003, c 53, s 6 [EMA].

43 RSO 1990, c E 19, s.

44 Air Pollution – Local Air Quality, O Reg 419/05.

45 Clean Air Regulation, CQLR c Q-2, r 4.1.

46 Fisheries Act, s 34(1).

47 SBC 2014, c 15, s 6 [WSA].

48 WSA, s 1.

49 WSA, s 46(1).

50 EMA, a 1.

51 CQLR c Q-2, s 22 [EQA].

52 EQA, s 46.0.6.

53 RSO 1990, c O.40, s 0.1 [OWRA].

54 OWRA, s 30.

55 SOR/2006-298.

56 SC 2002, c 28.

57 Interprovincial Movement of Hazardous Waste Regulations, SOR/2002-301; Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations, SOR/2005-149.

58 BC Reg 63/88.

59 Transportation of Dangerous Goods Act, 1992, SC 1992, c 34.

60 Transportation of Dangerous Goods Regulations, SOR/2001-286; TDGA, s 2.

61 BC Reg 391/2008.

62 RSA 2000, c E-12, Part 5.

63 BC Reg 375/96 [CSR].

64 CSR, s 35.

65 RSO 1990, c E 19, Part X.

66 SC 2018, c 12, s 186.

67 Reference re Greenhouse Gas Pollution Pricing Act, 2019 SKCA 40; Reference re Greenhouse Gas Pollution Pricing Act, 2019 ONCA 544.

68 Reference re Greenhouse Gas Pollution Pricing Act, 2020 ABCA 74.

69 SBC 2007, c 42.

70 SBC 2008, c 40.

71 BC Reg 249/2015, Part 2.

72 SBC 2008, c 16.

73 SA 2003, c E-7.8, s 3, 5, 6 [EMCRA].

74 EMCRA, s 10.

75 [2020] FCJ No. 1109.

76 2020 FC 1008.

77 2019 QCCS 2885.

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