ENVIRONMENTAL LAW: AMENDMENTS - New Hazardous Waste Regulations Proposed - September 2006

by Gowlings

The proposed Interprovincial Movement of Hazardous Waste and Hazardous Recyclable Material Regulations were published in the Canada Gazette, Part I, on September 2, 2006. The proposed regulations would repeal and replace the existing Interprovincial Movement of Hazardous Waste Regulations. To ensure consistency with the Export and Import of Hazardous Wastes and Hazardous Recyclable Material Regulations, which came into force on November 1, 2005, the proposed regulations would introduce new definitions of hazardous waste and hazardous recyclable material and would replace references to "manifests" with references to "movement documents". More Info...

ENVIRONMENTAL LAW: AMENDMENTS - Contaminated Sites British Columbia - September 2006

by Dennis Ryan, Kevin O’Callaghan and Matthew Prescott of Fasken Martineau

An overview of the Enviromental Management Act and the new British Columbia contaminated sites regime. More Info...

FORESTRY - Protection of the Environment – Kalesnikoff Lumber Co. Ltd. v. Government of British Columbia - August 2006

by Larry Nelson and Lisa Sulek (Summer Student), Vancouver of Fasken Martineau

This bulletin summarizes the recent decision of the Forest Appeals Commission (the “Commission”) in two appeals by Kalesnikoff Lumber Co. Ltd. (“Kalesnikoff”) from determinations that it contravened the Forest Practices Code of British Columbia Act (the “Code”) and the Forest Road Regulation (the “FRR”).1 The contraventions in question relate to four landslides on one of Kalesnikoff’s forest roads. The Commission allowed Kalesnikoff’s appeals, finding that Kalesnikoff did not contravene the Code or the FRR. More Info...

NATIVE ISSUES - First Nations consultation in proceedings before the British Columbial Utilities commission - September 2006

by Matthew T. Ghikas of Fasken Martineau

The construction of a significant capital project by a public utility,2 such as a transmission line, generating facility, or pipeline, will generally require the proponent to obtain a Certificate of Public Convenience and Necessity (“CPCN”) from the British Columbia Utilities Commission (the “Commission”) (in the case of a project wholly within British Columbia) or the National Energy Board (“NEB” or the “Board”) (in the case of a project that, for example, has a multi-jurisdictional dimension). First Nations affected by these projects, like any other affected party, have the right to intervene in CPCN proceedings. Frequently proponents of these projects must also obtain approvals through environmental assessment processes under either the British Columbia Environmental Assessment Act or the Canadian Environmental Assessment Act. More Info...

ALTERNATIVE ENERGY - Dokie wind energy project receives approval - August 10, 2006

by B.C. Ministry of Environment

VICTORIA – Victoria-based Dokie Wind Energy Inc. (the proponent) has received provincial environmental certification for a proposed 300-megawatt wind energy project located in the Peace River Region.

The project will be sited on a number of high-elevation ridge tops in the Rocky Mountain foothills, approximately 40 kilometres southwest of Hudson’s Hope and 40 kilometres west of Chetwynd.

The environmental assessment concluded the project would have no significant adverse environmental, social or health effects on the surrounding area. In addition, the proponent will still need to obtain the necessary provincial approvals and leases following receipt of an environmental assessment (EA) certificate. More Info...

ENVIRONMENTAL LAW: COMPLIANCE & OFFENCES - Use of Jail Time in Sentencing in Environmental Cases - May 31, 2006

by Peter Brady of McCarthy Tétrault

A British Columbia appeal court has looked recently at the issue of the appropriateness of jail time in convictions for breach of environmental legislation.

Alpha Manufacturing held a permit to operate a landfill in Delta, B.C. Eleanor Anderson was the principal officer of Alpha. Alpha’s permit restricted dumping to a specific area.

The Ministry of the Environment (MOE) became concerned that Alpha was dumping outside the permitted area. There was correspondence back and forth between the MOE and Anderson but, in the meantime, the dumping continued. The MOE finally issued a letter ordering Alpha to stop dumping and to remove the material already dumped outside the permit zone. Alpha did not comply with either demand. More Info...

ENVIRONMENTAL LAW: COMPLIANCE & OFFENCES - Appellate Court Considers Sentencing Principles for Environmental Offences - June 14, 2006

by David H. Izett and David J. Stanford of McCarthy Tétrault

Recently, in R. v. Terroco Industries Ltd. (2005), 367 A.R. 1. (C.A.), the Alberta Court of Appeal upheld the decision of the Court of Queen's Bench to increase the fines imposed by the Provincial Court trial judge. The Court of Appeal held that in sentencing a corporation whose defence of due diligence for an environmental offence has failed, courts must consider the degree of carelessness and culpability (blame), as a dominant factor. More Info...

ENVIRONMENTAL LAW: COMPLIANCE & OFFENCES - Environmental Due Diligence in R. v. Gemtec Limited Et Al. - June 2006

by Graham Reynolds and Lynn L. Mitchell of Osler

On April 26, 2006 the New Brunswick Provincial Court convicted an environmental consultant (Gemtec Limited) and its principal on two counts under section 36(3) of the federal Fisheries Act for depositing or permitting the deposit of a deleterious substance into water frequented by fish. The decision demonstrates that consultants cannot rely on sheltering behind their role as advisors or contractors if their activities under a contract give rise to a contravention of environmental laws. More Info...

ENVIRONMENTAL LAW: COMPLIANCE & OFFENCES - B.C. government releases compliance summary - August 23, 2006

by B.C. Ministry of Environment

British Columbia has released its Quarterly Compliance and Enforcement Summary. The second quarter report was released on August 23, 2006.

During the second quarter compliance and enforcement actions taken by the Ministry of Environment were:
• Three Orders issued to prevent or stop impacts to the environment, human health or safety.
• 36 administrative licensing sanctions against individual or commercial hunters or anglers.
• 421 tickets.
• Five court convictions.

The B.C. Ministry of the Environment reports that it has invested an additional $1.5 million on compliance and enforcement in 2006, including the creation of a new industrial and commercial investigative unit that will focus on commercial and industrial activities. More Info...

ENVIRONMENTAL LAW: COMPLIANCE & OFFENCES - Ontario’s Corporate Environmental Tax Regime – Ministry of the Environment Releases Draft Environmental Penalties Regulations - October 10, 2006

by Peter Brady and Douglas Hamilton of McCarthy Tétrault

On October 6, 2006, the Ministry of the Environment ("MOE") released the much-anticipated draft regulations concerning the implementation of Environmental Penalties ("EPs"). Last year, in our seminars and publications concerning Bill 133, we predicted that the MOE’s proposed EPs would take the form of a corporate environmental tax – and we were right. In addition to the extensive draft EP regulations, the MOE released an interpretive guideline for the implementation of EPs. Furthermore, draft regulations relating to spill prevention and contingency plans and a further draft regulation relating in part to spills reporting have been posted (collectively the "Draft Regs"). This collection of regulatory prescriptions, schedules, appendices, policies – and yes, even mathematical formulae – more closely resemble the federal Income Tax Act than the professed environmental abatement tool. More Info...

AIR QUALITY - Clean Air Bylaws Guide - 2006

by Andrew Gage and Sagarika Saha at West Coast Environmental Law

Part I of this Guide provides background information on air pollution problems facing
many municipalities and the range of tools available to local governments. Part
II then discusses in detail what local governments can and can’t do about air pollution
through their bylaw-making powers. Part III highlights some of the municipal
clean air bylaws that are already in place around the province and elsewhere and
provides examples of model bylaws. More Info...

CLIMATE CHANGE - 2006 Report of the Commissioner of the Environment and Sustainable Development to the House of Commons - August 29, 2006

by Office of the Auditor General of Canada

The Commissioner of the Environment and Sustainable Development is expected to table her Report in the House of Commons on 28 September 2006. The following is a brief description of the five chapters contained in the Report.

Chapter 1 — Managing the Federal Approach to Climate Change.
Chapter 2 — Adapting to the Impacts of Climate Change.
Chapter 3 — Reducing Greenhouse Gases Emitted During Energy Production and Consumption.
Chapter 4 — Sustainable Development Strategies.
Chapter 5 — Environmental Petitions. More Info...

ENVIRONMENTAL LAW: COMPLIANCE & OFFENCES - Ontario court of appeal certifies environmental class action - Winter 2006

by Gabrielle Kramer (Toronto Office) of Borden Ladner Gervais

On November 18, 2005, the Ontario Court of Appeal certified the class action brought by Wilfred Pearson against Inco Limited for property damage caused by historic emissions from the company’s former nickel refinery in Port Colborne. We last reported on this case in our Fall 2002 edition of the Environmental Law News. Certification was initially refused by both the Superior Court and Divisional Court. However, since that time, the scope of the claim was reduced and limited to damages for the reduction in the value of real property as a result of soil contamination. In addition, the Ontario Court of Appeal directed that a more liberal approach be taken to certification of class proceedings. These two developments resulted in the certification of this environmental class action. More Info...

ENVIRONMENTAL LAW: COMPLIANCES & OFFENCES - Large fines under environmental legislation upheld - Winter 2006

by Dean Watt (Calgary Office) of Borden Ladner Gervais

In R. v. Terroco Industries Limited (released April 8, 2005), the Alberta Court of Appeal addressed appropriate sentencing considerations for convictions under environmental legislation. In this case, as a result of the improper mixing of chemicals in a transport tank by an employee of the defendant Terroco, chlorine gas was released into the environment injuring a fellow employee. The liquid mixture dissolved the seals on the tank resulting also in a release of liquid to the environment. These releases are offences under Alberta’s Environmental Protection and Enhancement Act (the “EPEA”) and Dangerous Goods Transportation and Handling Act (the “Dangerous Goods Act”). At the initial sentencing, Terroco was sentenced to a $50,000 fine under the EPEA and a $500 fine under the Dangerous Goods Act. The Crown successfully appealed the sentence to the Court of Queen’s Bench and the penalties were increased to $150,000 and $15,000 respectively. More Info...

ENVIRONMENTAL LAW: COMPLIANCE & OFFENCES - Court rules minister's authority to order a revew panel confined to planning phase - Winter 2006

by Dean Watt (Calgary Office) of Borden Ladner Gervais

At issue in Bennett Environmental Inc. v. Canada (Minister of the Environment) was whether the Canadian Environmental Assessment Act (“CEAA”) authorized the federal Minister of the Environment to refer to a review panel for assessment a facility for cleaning contaminated soil when all provincial approvals for the construction of the facility had been obtained and the construction of the facility was substantially complete.When the Minister announced that he was referring the Bennett facility to a joint panel review under CEAA all necessary provincial approvals for the construction of the facility had already been obtained and the construction of the facility was over 90 percent complete. No federal approvals were required for the construction or operation of the facility. Bennett successfully applied to the federal court for a review of the Minister’s decision on the basis that the facility did not fit within the CEAA definition of a “project” as it was substantially complete. More Info...

ENVIRONMENTAL LAW: COMPLIANCE & OFFENCES - Supreme court dismisses leave to appeal pesticide use decision - Winter 2006

by Rick Coburn (Toronto Office)of Borden Ladner Gervais

On November 17, 2005, the Supreme Court of Canada dismissed, without reasons, the application for leave to appeal from the decision of the Ontario Court of Appeal in Croplife Canada v. Toronto (City). The Court of Appeal had upheld a bylaw enacted by the City of Toronto that regulated the use of pesticides. The bylaw was enacted pursuant to section 130 of the Ontario Municipal Act, 2001, which authorizes bylaws for the protection of the health, safety and well-being of residents of the municipality. The Ontario Court of Appeal held that this general power would be available only if there was no specific municipal power to regulate pesticide uses contained in the Municipal Act, 2001 or any other Ontario statute, and that no such specific municipal power existed. The case was heard by the Ontario Court of Appeal after the Supreme Court had rendered its decision upholding a very similar bylaw in the case of 114957 Canada Ltée (Spraytech) v. Hudson (Town) (“Spraytech”) under the general provisions of the Quebec Cities and Towns Act. More Info...

NATIVE ISSUES - Court orders crown to consult First Nation before removing privately owned forest land from tree farm licence - Winter 2006

by Stephanie Lysyk (Vancouver Office)of Borden Ladner Gervais

In Hupacasath First Nation v. British Columbia (Minister of Forests), released in December 2005, the British Columbia Supreme Court held that the Provincial Crown owed, and failed to meet, a duty to consult and to accommodate the Hupacasath First Nation when removing 70,000 hectares of privately held forest land from Tree Farm Licence 44 (“TFL 44”). Based on this decision, the Crown can now be found to have a duty to consult and accommodate First Nations with respect to activities on privately owned lands. This finding may have far reaching implications and will likely be of concern to private land owners. More Info...

ENVIRONMENTAL LAW: GENERAL - Alberta Environmental Protection Commission Issues Report on Emergency Response - Winter 2006

by Dean Watt (Calgary Office) of Borden Ladner Gervais

On August 3, 2005, 43 rail cars went of the tracks beside Lake Wabamun in Alberta, spilling oil into the lake and resulting in a major environmental, social and economic disaster. The response of various levels of government to the incident was characterized by delay, confusion, inadequacy of equipment and inability to coordinate efforts. The Alberta government established the Environmental Protection Commission as a measure to use the experience of the Lake Wabamun incident to review Alberta’s emergency response model and recommend changes for the future. More Info...

ENVIRONMENTAL LAW: AMENDMENT - New Statuatory Right of Entry For Alberta Operators - Winter 2006

by Dean Watt (Calgary Office) of Borden Ladner Gervais

LEGISLATION
Amendments to the Alberta Surface Rights Act came into force December 1, 2005. The amendments assist those who are “operators” under section 134(b) of the Environmental Protection and Enhancement Act and who have received notice of cancellation of a reclamation certificate or who otherwise have a duty to reclaim land affected by the working of a mineral or pipeline-related activities. Application can be made to the Surface Rights Board for a right to enter land in order to carry out the required reclamation. More Info...

AIR QUALITY: Ontario Proposes Clean Water Act - Winter 2006

by Rick Coburn (Toronto Office) of Borden Ladner Gervais

LEGISLATION
On December 5, 2005, the Ontario Legislature gave first reading to Bill 43, the proposed Clean Water Act, 2005.The proposed legislation implements and expands upon certain recommendations of the Walkerton Inquiry, which investigated the tragic consequences of the contamination of the public water supply system in Walkerton, Ontario. The new legislation will put drinking water source protection at the forefront of planning and development activity in Ontario. The proposed Act creates new roles for conservation authorities and municipalities, with tools to implement these new roles. Traditionally, conservation authorities have exercised a relatively limited range of regulatory powers in relation to watercourses.While drinking water supply systems are regulated by the Safe Drinking Water Act, 2002, the purpose of the proposed legislation is to protect existing and future sources of drinking water. The legislation would identify the jurisdictional areas defined by the Ontario Conservation Authorities Act as “drinking water source protection areas”. Local conservation authorities would be required to establish committees to undertake watershed assessments and formulate source protection plans in consultation with the local municipalities. In unorganized territories, these functions will be fulfilled by the Province of Ontario and designated planning boards. More Info...

ENVIRONMENTAL LAW: GENERAL - Québec's Sustainable Development Act Adopted - May 15,2006

by Paul R. Granda and Anne-Frédérique Bourret at Gowlings

Québec’s Bill 118 entitled the Sustainable Development Act ("Bill 118") initially tabled on June 13, 2005 was unanimously adopted by the members of the National Assembly on April 13, 2006, assented to on April 19, 2006 and came into force on the same date. It represents the legislative centerpiece towards implementing Québec's Sustainable Development Plan (the "Plan") originally tabled in November 2004. The Plan as well as Bill 118 in its initial draft form were the object of a series of regional public consultations between February 17 and May 17, 2005 and a parliamentary commission between October and December, 2005 which resulted in the submission of more than 570 briefs which, after review by the Ministère du développement durable, de l'environnement et des Parcs (the Ministry of Sustainable Development, Environment and Parks (the "MSDEP")) led to the tabling of Bill 118. More Info...

ENVIRONMENTAL LAW: GENERAL - Blakes Overview of Environmental Law and Regulation in British Columbia - 2006

by Blake, Cassels, Graydon

This publication provides a general overview of the provincial and federal environ‐mental regimes affecting businesses and individuals in Alberta. This overview is not intended to provide legal or other professional advice and readers should seek specific legal advice on any particular issue or matter of concern. More Info...

ENVIRONMENTAL LAW: GENERAL - Blakes Overview of Environmental Law and Regulation in Alberta - 2005

by Blake, Cassels, Graydon

This publication provides a general overview of the provincial and federal environ‐mental regimes affecting businesses and individuals in Alberta. This overview is not intended to provide legal or other professional advice and readers should seek specific legal advice on any particular issue or matter of concern. More Info...

ENVIRONMENTAL LAW: GENERAL - Environmental Law in Ontario and Canada - 2006

by Blake, Cassels, and Graydon

* Federal Law
* Ontario Law
* Personal and Corporate Liability
* Waste Management
* Emergency Response and Government Investigations

More Info...

ENVIRONMENTAL LAW: GENERAL - Environmental Law in Canada - June 2006

by Osler

Canada’s environmental regulatory framework is complicated by the overlapping jurisdiction of three levels of government – federal, provincial and municipal. While deciding on the correct course of action to avoid liability can sometimes feel like being lost in a maze, all levels of government are attempting to develop more harmonized legislation. More Info...

ENVIRONMENTAL LAW: GENERAL - Environmental Law Summary - May 2006

by Fasken Martineau DuMoulin

This publication has been prepared by Fasken Martineau DuMoulin LLP to provide an overview of Canadian environmental law and regulations across Canada, but particularly in the province of British Columbia. As an overview, it is not intended to be applied as legal advice in any particular situation. Readers are invited to contact any of the lawyers whose names appear on the next page in connection with specific topics for which more detailed information or advice is desired. More Info...

WATER QUALITY: Environmental Consultant Convicted Under the Fisheries Act - August 2006

by Bennett Jones

An environmental consulting company was convicted by the New Brunswick Provincial Court for breach of subsection 36(3) of the Fisheries Act, which prohibits pollution. The company was convicted for advising and implementing a proposal that required authorization by its client and the provincial government. The corporation was sentenced on June 23, 2006, to pay a total penalty of $25,000 (fi nes and contributions to the Environmental Damages Fund and a local
environmental organization). More Info...

ENVIRONMENTAL LAW: AMENDMENTS - The Alberta Environmental Protection and Enhancement Act - Spring/Summer 2006

by Stephen Lee (Calgary office) of Borden Ladner Gervais

On April 10, 2006, the Alberta Legislature Introduced Bill-29, the Environmental Protection and Enhancement Act, 2006. Bill-29 proposes five main categories of amendments to the current Environmental Protection and Enhancement Act (“EPEA”) More Info...

AIR QUALITY: Proposal to Amend Regulation 419/05, Air Pollution—Local Air Quality and to Implement Odour-Based Standards and Guidelines - September 12, 2006

by Joanna Rosengarten , Douglas R. Thomson of McCarthy Tétrault

The Ministry of the Environment ("MOE") is proposing to make a number of amendments to Regulation 419/05, Air Pollution—Local Air Quality ("Regulation 419"), among the most significant being the introduction of new air standards for 15 priority substances and the implementation of 10-minute odour-based standards and guidelines. More Info...

WATER QUALITY: CEC dismisses Devils Lake Submission - August 23, 2006

by Commission for Environmental Cooperation

On 21 August 2006, the Secretariat of the Commission for Environmental Cooperation (CEC) issued a determination terminating the process for the SEM-06-002 (Devils Lake) submission. The submission asserted that Canada and the United States are failing to effectively enforce anti-pollution provisions in the 1909 International Boundary Waters Treaty (Treaty) with respect to the construction and operation by the state of North Dakota of an outlet to drain water from Devils Lake into the Sheyenne River, the Red River Basin, Lake Winnipeg, and ultimately into the broader Hudson Bay drainage system. More Info...

WATER QUALITY: Pakootas v. Teck Cominco Metals, Ltd.: Holding Canadian Companies Liable for Transboundary Pollution in the United States - July 18, 2006

by Peter Brady and Delphine Lourtau (Student at Law) of McCarthy Tétrault

On July 3rd 2006, a US Federal Court of Appeal in San Francisco, California paved the way for Canadian companies to be held liable for the costs of cleaning up transboundary environmental damage in the United States. More Info...

WATER QUALITY: Road washout results in charges against the province of British Columbia - Spring/Summer 2006

by Rick Williams (Vancouver office) of Borden Ladner Gervais

In R. v. British Columbia the Province of British Columbia was charged with three counts under the federal Fisheries Act following a 1999 washout of a forest service road northeast of Prince George, British Columbia. The charges alleged the harmful alteration, disruption or destruction of fish habitat; unlawfully depositing or permitting the deposit of a deleterious substance into water frequented by fish; and failing to mitigate any adverse effects. More Info...

WATER QUALITY: Milestone agreement between Canada and the United States to preserve the waters of the great lakes basin and the St. Lawrence river - Spring/Summer 2006

by Christine Duchaine and Catryn Pinard (Montreal office) of Borden Ladner Gervais

The Premiers of Ontario and Quebec and the Governors of eight American Great Lakes states recently signed the Great Lakes – St. Lawrence River Basin Sustainable Water Resources Agreement (the “Agreement”). Under the Agreement, the ten governments have agreed to act jointly in order to protect, restore and manage the waters of the Great Lakes basin and the St. Lawrence River to ensure the long-term goal of sustainable development. More Info...

CLIMATE CHANGE: Federal Environment Commissioner Critical of Government’s Climate Change Track Record - October 11, 2006

by Gowlings

The Commissioner of the Environment and Sustainable Development, Johanne Gélinas, tabled her Annual Report in the House of Commons on September 28, 2006.

The Report contains a harsh assessment of Canada's climate change policy:

"On the whole, the government's response to climate change is not a good story. At a government-wide level, our audits revealed inadequate leadership, planning, and performance. To date, the approach has lacked foresight and direction and has created confusion and uncertainty for those trying to deal with it. Many of the weaknesses identified in our audits are of the government's own making. It has not been effective in leading and deciding on many of the key areas under its control. Change is needed." More Info...

CLIMATE CHANGE: Climate Change Update - Winter 2006

by Carleigh Whitman, Joe Pagé (Articled Student) Vancouver Office) of Borden Ladner Gervais

LEGISLATION
Two updates to federal regulations intended to address climate change have taken place since the publication of our Fall 2005 edition of the Environmental Law News. On November 21, 2005, six greenhouse gases were added to Schedule 1 of the Canadian Environmental Protection Act, 1999 (“CEPA”). Their inclusion in the Schedule means that these gases are now considered “toxic” substances for the purposes of CEPA and can be regulated as such under the Act. More Info...

CLIMATE CHANGE: Canada’s New Direction on Climate Change - May 2006

by Robert Fishlock

In January of this year, Canadians elected a new federal government that had made it known in some circles that it was unsympathetic to the prior Liberal Government’s commitment to the Kyoto Protocol on Climate Change. However, during the election little was said about the environment in general, as the focus was on Liberal corruption and advertising kick-backs. Finally, over the past few weeks, the new Conservative Government of Stephen Harper started its public campaign of distancing itself from this 1997 agreement on reducing greenhouse gas emissions. Splashed across the national media was new Environment Minister Rona Ambrose’s announcement to Parliament that Canada’s 2004 greenhouse gas emissions were 35% above the Kyoto target negotiated by the prior government. As a result, said the Minister, the Kyoto target of reducing Canada’s greenhouse gas emissions to 6% below our 1990 levels between 2008 and 2012, was in need of a serious reality check. More Info...