3. Canada: Environmental Law Overview
Environmental law is another area that falls partly under federal and partly
under provincial jurisdiction in Canada. The federal government’s regulatory
regime comprises environmental assessment and review procedures,
prohibitions on releases into the environment, license and permit requirements,
spill reporting and clean-up requirements, environmental emergency
preparedness, ministerial powers to issue orders, and statutory offences. The
principal federal environmental statutes are the Canadian Environmental
Protection Act, 1999, which regulates, among other things, the manufacture,
import, export, use, handling, release and disposal of toxic substances, the
Fisheries Act, which regulates discharges into waters under federal jurisdiction,
and the Canadian Environmental Assessment Act.
The provinces have a somewhat greater share of the authority in this area in
virtue of their general right to legislate over real property matters and other
matters that lack interprovincial or national significance. Provincial environmental
legislation, which includes environmental assessment and environmental
protection legislation, is therefore highly important.
Canadian environmental protection legislation generally includes the
regulation of air, soil and water pollution, transportation and storage of dangerous
goods and hazardous wastes, underground storage tanks, pesticides, migration
of contaminants, and radioactive substances. The statutes dealing with such
matters are generally enforced by any or all of the following: criminal sanctions,
abatement, remediation and restraining orders. Environmental protection
legislation also provides courts with the power to strip profits, order licence
suspensions and issue fines.
Environmental assessment legislation, depending on the nature of the project
proposed, can require the proponent to produce an environmental impact
statement describing the project and why it is needed, analyzing the project’s
likely effects on the environment, suggesting mitigating measures where
mitigation is possible and describing residual adverse effects where it is not.
Small projects that are unlikely to have significant effects on the environment
are exempted from the assessment process. Projects that could have significant
adverse environmental impacts are usually submitted to an administrative
agency for a structured review that may lead to the issuance of guidelines or
general or specific directions. Major projects are also generally subject to public
review by an independent board or panel, which may produce recommendations
or a final decision.
Health issues are also addressed through occupational health and safety
legislation including asbestos control or removal requirements, in addition to the
more familiar workplace safety matters.
There are also significant considerations with respect to the potential liability
of directors, officers and lenders for environmental problems. Directors and
officers may be held personally liable for the environmental consequences of a
corporation’s activities, particularly where the director is an inside director (that is,
an officer or employee of the corporation or a major shareholder). Secured
lenders who take no action to control or realize on security are not personally
Potential risks of personal liability for receivers, trustees and monitors have
been addressed in the federal Bankruptcy and Insolvency Act, Companies’
Creditors Arrangement Act and in a variety of provincial legislation.