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Legal Report: Environment

|Written By Vawn Himmelsbach
Legal Report: Environment

As political parties jockey for position to be seen as the party most friendly to the environment, law firms should brace themselves and prepare to ramp up their environmental law bench strength. Canada appears to be entering a new era of environmental conservation. But is current federal environmental legislation enough and will good intentions survive an election or is it simply a lot of political hot air?

Thanks to bizarre weather patterns and the popularity of Al Gore’s documentary, An Inconvenient Truth, the environment is once again a hot topic. And this has not escaped the attention of Canada’s political parties.

The selection of Stéphane Dion as leader of the Liberals, for example, has shifted more political focus on environmental issues. In October, the Conservatives introduced the Clean Air Act as the centrepiece of its “made in Canada” strategy, which was widely criticized. NDP leader Jack Layton is now trying to push a substantially revamped version of that act.

With the possibility of a spring election, many are wondering if and how the role of federal government will change when it comes to environmental issues. Canadians are, without doubt, increasingly concerned about the environment and want to see a strong leadership role by both federal and provincial governments, says Ramani Nadarajah, acting executive director and counsel with the Canadian Environmental Law Association in Toronto.
The selection of Dion as Liberal leader, she says, means the environment will be a key issue in the next election.

“If you look at [the Liberal] platform, it provides a very detailed and strong commitment on environmental issues, particularly in regards to climate change.”

The Liberals have advocated for regulatory caps on greenhouse gases, which stands in sharp contrast to the Conservatives, though that position seems to be wavering. The appointment of political fixer John Baird to the environmental portfolio and recent pronouncements at press time suggest that the Conservatives aren’t ready to cede the title of most green party to their political enemies.

“Given that the recent polling data indicates that protection of the environment has become a paramount concern to Canadians, it will be interesting to see how this plays out in the coming federal election,” says Nadarajah.

What’s not being discussed in the political rhetoric, however, is just what exactly is the federal government’s role in environmental law and how far will a governing party be willing to go to step on the toes of an energy-rich province, such as Alberta, in a bid to win votes? After all, provincial jurisdiction over local environmental issues is firmly entrenched, so environmental law faces the usual provincial-federal challenge that many issues do in Canada. Moreover, lawyers say that existing federal legislation often doesn’t go far enough to make a real difference.

When it comes to national environmental oversight, the federal government provides guidelines in relation to a number of pollutants, but they’re not regulations, which means they can’t be enforced. And each province has its own guidelines. “Ontario has recently taken more effective measures in relation to water protection but those are not national standards,” says Nadarajah. “Pollution does cross over boundaries. Unless we have basic national standards that are enforceable, we’re not going to make much headway in ensuring environmental protection.” Environment Canada should also have the capacity to take enforcement action, she adds.

The Canadian Environmental Protection Act (CEPA) was designed to “respect pollution prevention and the protection of the environment and human health in order to contribute to sustainable development.” This legislation was followed by the Species at Risk Act, designed to protect wildlife species at risk in Canada.

According to Jode Roberts, communications director with the Sierra Legal Defence Fund, a national non-profit environmental law organization based in Vancouver, it’s been difficult to get the federal government to put any teeth into the Species at Risk Act. “It hasn’t hit the ground and actually protected endangered species yet, so we’ve been pushing the Harper government to implement the law as was the original intent.”

Others, however, see too much regulation. There’s a large overlap of environmental regulation in the offshore, says David Henley, a partner with Stewart McKelvey in Halifax, who represents companies dealing with offshore development in Atlantic Canada. In addition to CEPA, regulations also fall under the Canada Shipping Act and the Fisheries Act. “It’s made the offshore a very complex place to operate,” he says.

The Fisheries Act deals with the harmful alteration, disruption, or destruction of a fish habitat — and it’s the predominant legislation used by Environment Canada to prosecute, he says, because certain provisions of the act have a lot of teeth. “So when you get into offshore development or aquaculture or any construction in the
offshore, you’ve got issues there.”

There’s a tension between the need to facilitate development in the offshore and the need to protect the environment. “You never want to be in a situation where there’s no regulation,” says Henley, “but it certainly is a heavily regulated area.” The large oil and gas companies already have detailed risk-management processes and, he adds, a desire to operate in an environmentally conscious manner. If they act irresponsibly, the offshore petroleum boards have the power to shut them down.

But for Rod Northey, an environmental lawyer with Birchall Northey, the scope and application of the Canadian Environmental Assessment Act (CEAA) is so narrow as to completely miss the boat on most climate change issues. “It’s a project-based statute, and the way it defines a project is so narrow as to take the feds out of play on most serious discussions,” he says. “All I’ve seen are some very light exercises that don’t have any teeth.”

Ottawa would have to fundamentally reform CEAA to make it relevant N and he sees nothing to suggest that’s where it’s heading.

The federal government’s tax policy is pro-development, he notes, without any requisite assessment of the impacts of that approach. “Ottawa has had a huge hand in assisting the development of the tar sands and one would only have thought there would be some sort of balance imposed by what it’s done and so far it doesn’t appear to be very balanced.” What is needed, Northey adds, is an independent board or commission that has the authority and resources to investigate whether compliance has been met or missed.

However, Brad Gilmour, a partner at Bennett Jones LLP who’s actively involved in a number of oil sands projects in northern Alberta, says the terms of reference for the approval of any major energy project include a discussion about carbon emissions and measures to reduce those emissions.

“Evidence is reviewed by boards, it’s challenged by interveners, so certainly all of those companies have over the years been looking at ways they can increase their energy efficiency and reduce greenhouse gas emissions,” he explains. “Even lately when you look at projects being currently reviewed, you’re looking at references in their applications to talk about technologies that will produce pure streams of carbon dioxide.”

What’s important is these companies know the rules of the game so they can plan a strategy, he says, and they need sufficient lead time to do so, particularly when billions of dollars are involved. This lack of direction from the federal government is confusing for environmentalists and corporate clients alike. Gray Taylor, also a partner with Bennett Jones, says there should be more direction from government with respect to greenhouse gases and emissions trading.

Taylor provided legal advice on a “buyers’ pool” that aggregates Kyoto Protocol-compliant emission reduction purchase requirements for companies in Japan, Canada, and the European Union. Over the past few years — and certainly the past few months — there has been a feeling that some sort of greenhouse gas policy is inevitable, he says, so business clients want to know what they’re going to be required to do. There’s nothing more difficult to cope with, he says, than a vacuum where you know generally where you have to go, but the road map is blurred or non-existent.

The federal government and political parties have to start rethinking environmental policies, statutes, and regulations, says Chuck Birchall, an environmental lawyer with Birchall Northey. “You’re seeing legislation that is chock full of ministerial discretion,” he says. “If you’re going to get true accountability and get the public engaged, you have to start putting up binding standards.” Voluntary initiatives, or discretionary objectives, fail — or, if they don’t fail, they certainly don’t go far enough, he says.

But he doesn’t feel we should be looking to the courts to take up a leadership role on the environment. “We need to have governments that are actively moving to address the issues that have been clearly identified in the public mainstream.”