______________________________________________________________________________<strong>Stewart</strong> <strong>McKelvey</strong>Doing Business in Atlantic CanadaCHAPTER 13 – ENVIRONMENTAL LAWRegulatory FrameworkBusinesses in Atlantic Canada should be familiar with various environmental laws and policies which mayapply to their business activities, especially those involving purchasing or leasing real property in AtlanticCanada, industrial development or the production, movement or disposal of dangerous goods, toxicsubstances or wastes in and around the region.Environmental matters in Atlantic Canada are governed by statute and common law. All four AtlanticProvinces have their own sets of statutes and regulations which address environmental matters withineach province. The federal government also legislates with regard to the environment. In addition, somemunicipalities have enacted by-laws in relation to the environment through authority delegated to them bythe provinces. An environmental matter therefore may be governed by federal, provincial, and/ormunicipal law depending on the circumstances. This generally reflects the constitutional division ofpowers in Canada.The Constitution Act, 1867, does not assign exclusive jurisdiction over the environment to the federalgovernment or the provincial governments. Rather, the power to legislate with regard to the environmentfalls under various heads of constitutional authority. Generally, when an environmental matter relates toa matter of federal jurisdiction or is of national or international concern and a compelling case exists for anational response, the federal government will have legislative authority. Where a matter is of localconcern, the provinces are more likely to be the regulating authority.Federal LawFederal Environmental LegislationCanadian Environmental Protection Act, 1999 (“CEPA”)CEPA is administered by the federal Minister of Environment and the Environment Canada department.CEPA’s overall purpose is to set and enforce environmental quality standards. CEPA contains provisionswhich regulate all aspects of the environment under federal jurisdiction, including air pollution, oceandumping, the regulation of toxic substances and the movement of hazardous waste. CEPA also containsprovisions which apply specifically to federal departments, agencies, crown corporations, works,undertakings and lands. The Minister of Environment has authority to appoint inspectors for the purposeof administering and enforcing CEPA.Inspectors under CEPA have the power to inspect any place where there is a substance or activityregulated by the act. Where the owner or person in control takes no response measure, inspectors areauthorized to take any actions required by CEPA to control the release of a regulated substance.Authorized actions include entering onto private property in order to take necessary measures, but do notinclude entering a private dwelling unless authorized by a warrant. In some circumstances, however,there is authority for a warrantless search. Seized goods can be detained under specific provisions ofCEPA.CEPA also provides for the issuance of environmental protection orders and includes penalties that canbe imposed for a contravention of the act or its regulations. Maximum penalties are a fine of up to $1-million per day and/or five years’ imprisonment.Fisheries ActThe Fisheries Act is administered by the federal Department of Fisheries and Oceans. The purpose ofthis legislation is the protection of Canada’s fisheries and, by necessary extension, it applies to protectfish habitat. It applies to all waters in Canadian fishing zones, all waters in the territorial sea of Canadaand all internal waters of Canada. Although this legislation mainly regulates the harvesting of commercialPage 69
______________________________________________________________________________<strong>Stewart</strong> <strong>McKelvey</strong>Doing Business in Atlantic Canadafisheries in Canada’s territorial and inland seas, it has also been used to protect recreational andenvironmentally sensitive fish stocks as well as habitat for fish and other organisms.Transportation of Dangerous Goods Act, 1992 (“TDGA”)The TDGA is administered by Transport Canada. It applies to all modes of transportation of dangerousgoods within federal authority. This includes inter-provincial transport and goods carried by ship oraircraft. The TDGA prohibits any person from handling, offering for transport or transporting anydangerous goods unless applicable safety requirements are met. It establishes specific safetyrequirements for the packaging, labelling and documentation of dangerous goods, as well as for thenotification and reporting of dangerous goods and the training of employees who handle dangerousgoods.Other Federal Statutes• Arctic Waters Pollution Prevention Act and accompanying regulations;• Canada-Newfoundland Atlantic Accord Implementation Act and accompanying regulations;• Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act andaccompanying regulations;• Canada Shipping Act, and accompanying regulations;• Canada Oil and Gas Operations Act and accompanying regulations;• Migratory Birds Convention Act, 1994 and accompanying regulations;• Navigable Waters Protection Act;• Species at Risk Act and accompanying regulations; and• legislation pertaining to public harbours and port authorities.Federal Areas of RegulationThe primary areas of federal regulation which businesses should be aware of include:• air, water and land pollution;• toxic substances; and• transportation of dangerous goods and hazardous wastes.Air PollutionThe federal government has enacted numerous air pollution regulations under CEPA to limit theconcentration of a variety of industrial emissions, including: (1) asbestos emissions from asbestos minesand mills; (2) lead emissions from secondary lead smelters; (3) mercury from chlor-alkali mercury plants;and (4) vinyl chloride from vinyl chloride and polyvinyl chloride plants.Water PollutionAlthough CEPA regulates waste disposal, dumping in Canada’s territorial seas, and international waterpollution, the federal government’s primary regulatory power over water pollution is pursuant to theFisheries Act.Page 70