Download PDF - Stewart McKelvey

______________________________________________________________________________Stewart McKelveyDoing Business in Atlantic CanadaProvincial LawPrincipal Environmental LegislationAll four Atlantic Provinces have legislated extensively in the area of environmental protection. Themanner in which this legislation has been created varies from province to province. Some provinces havecreated a single act intended to govern a wide range of environmental issues. See, for example, PrinceEdward Island’s Environmental Protection Act. Other provinces have created a variety of narrower actsintended, when taken together, to encompass a broad range of environmental issues. New Brunswick,for example, has three principal pieces of environmental legislation, being the Clean Environment Act, theClean Air Act, and the Clean Water Act.While the form of provincial legislation in this field varies quite significantly, the substance of thelegislation has many common features. Whether through a single statute or multiple statutes, the AtlanticCanadian provinces have legislated in common over a wide variety of environmental issues relating toland, water and air pollution.The term “environment”, as used in provincial environmental legislation, is defined very broadly toencompass land, water and air. The term “pollution”, however, is not defined. Instead, the focus ofprovincial environmental laws is on the regulation of the emission of a broad range of “contaminants”which impair or damage the environment, including (but not limited to) those which adversely effecthuman health.Provincial legislation imposes substantial reporting obligations on the owners of contaminants and onpersons causing or permitting the discharge of contaminants into the environment. Where accidentalspills or discharges occur, the person or people in control must notify the appropriate environmentalauthorities immediately and do everything practicable to clean up the area and restore the naturalenvironment.Environmental inspectors are generally provided with extensive investigatory powers, including the rightto enter property and to seize objects or substances they believe will provide evidence of an offence.Normally, a warrant is required for such actions. However, in certain exigent circumstances, propertymay be searched and goods seized without a warrant.Ministerial orders are a common means of enforcement under provincial environmental legislation.Ministers have very broad powers to make orders in relation to actual or potential environmentalcontamination. These powers typically include the right to order people to allow inspections, testing andsampling of their lands; the right to order the cessation of activities which cause or may causeenvironmental contamination; the right to require the cleaning, repair and restoration of areas affected bycontamination; and the right to require that specific actions be taken to prevent danger to human life orhealth or damage to property. Ministerial orders run with the lands against which the orders apply to andare binding against successors and assigns.It is noteworthy that under provincial legislation, the responsibility for clean up of contaminated propertyextends beyond the persons who caused the contamination. For instance, the current owner ofcontaminated property may be ordered by the Minister to clean up the property even though the owner isnot at fault for the contamination and may not even have owned the property when the contaminationoccurred. For this reason, it is imperative for prospective purchasers to conduct appropriate due diligenceinvestigations before acquiring property and to have appropriate protections to enable this to occur builtinto any agreements for the purchase of property. In New Brunswick, recent amendments to the CleanEnvironment Act have expanded the scope of the responsibility for clean up of a contaminated propertyeven further to now include the heirs, successors, executors, administrators and assigns of the person towhom an order is directed.Ministers also have the power to prosecute a person or corporation or to seek injunctive relief with regardto environmental offences. Liability for offences can be very substantial, with the most seriouscontraventions attracting jail terms of up to two years and fines of up to $1-million per offence. Also, eachPage 74