The environmental regulatory landscape in Canada is continuously evolving and staying up to date on recent developments can be challenging. To help keep you informed, read our Environmental Week in Brief for the week of November 3 - 9, 2020 below. Prepared by experts in our Environmental Group, this weekly resource compiles case law, articles and other relevant materials to help you stay current in environmental law.
On November 5, 2020, Bill 229, Protect, Support and Recover from COVID-19 Act (Budget Measures), 2020 was introduced in the Ontario Legislature and passed first reading. Schedule 41 of Bill 229 would, if enacted, make the following amendments to the Resource Recovery and Circular Economy Act ("RRCA"):
- Expand the definitions of "consumer", "convenience packaging", "primary packaging", "product" and "transport packaging" to include alternative meanings to be provided by regulation;
- Expand the list of persons who may be subject to extended producer responsibility under the RRCA to include: (1) A person who has a commercial connection to a product in a designated class; and (2) A person who meets prescribed conditions in respect of a product or its primary packaging in a designated class;
- Establishing regulation-making authority for the Lieutenant Governor in Council to designate a class of materials that includes one or more material;
- Establishing regulation-making authority for the Lieutenant Governor in Council to make regulations governing the collection of blue box material, including authorizing or requiring one or more prescribed persons or entities to make rules in respect of the collection of blue box material.
Regulatory Proposals and Developments
On November 5, 2020, the Minister of Environment and Climate Change announced that the federal government and the provinces of Alberta, British Columbia, and Saskatchewan have finalized equivalency agreements to establish provincial regulations to replace SOR/2018-66: Regulations Respecting Reduction in the Release of Methane and Certain Volatile Organic Compounds (Upstream Oil and Gas Sector). The provincial regulations will be required to meet equivalent emissions-reduction outcomes to the federal regulation.
On November 3, 2020, the Ministry of Environment, Conservation and Parks posted a proposed regulation (the "Fund Regulation") to the Environmental Registry of Ontario for public comment. The Fund Regulation, if enacted would, among others:
- Enable the use of the Species at Risk Conservation Fund (the "Fund"), established by recent amendments to the Endangered Species Act and which permits proponents to elect to contribute to the Fund ( the "Fund Option") instead of completing beneficial actions for species impacted by a proponent's activities;
- Establish the Species at Risk Conservation Trust ("Agency") as a provincial agency responsible for administering the Fund
- Prescribe six species—the Butternut, Barn Swallow, Bobolink, Eastern Meadowlark, Eastern Whip-poor-will, and Blanding's Turtle within the Canadian Shield—as species that would be eligible under the Fund Option;
- Prescribe the quantum of species conservation charges payable to the Fund under the Fund Option;
- Prescribe the general timing and steps that proponents must follow when providing species conservation charges to the Agency under the Fund Option.
On November 3, 2020, the Ministry of Environment, Conservation and Parks posted a proposal to amend O. Reg. 242/08: General (the "General ESA Regulation") to the Environmental Registry of Ontario for public comment. If enacted, the amendments to the General ESA Regulation would prescribe the following activities as eligible for conditional exemptions under the Endangered Species Act:
- conducting surveys that proponents may be required to complete before starting an activity;
- all activities that have been approved to receive funding through Ontario's Species at Risk Stewardship Program;
- certain low-risk protection or recovery activities that are recommended in government-approved recovery documents;
- actions to minimize the distress of an animal that becomes ill or is unintentionally injured during a protection or recovery activity and has no possibility of survival, provided specific conditions are met; and
- the operation of dams that do not produce electricity.
On November 5, 2020, Canada's Minister of Natural Resources, announced a $28.5 million investment in Sustainable Marine to fund the construction of a nine-megawatt floating tidal energy array in Nova Scotia. The project is funded by Natural Resources Canada's Emerging Renewables Power Program.
On November 5, 2020, the Supreme Court of Canada released its decision in Quebec (Attorney General) v. 9147-0732 Québec inc. In its decision, reversing the Court of Appeal for Quebec's ruling, the Supreme Court held that section 12 of the Canadian Charter of Rights and Freedoms ("Charter") which provides that "Everyone has the right not to be subjected to any cruel and unusual treatment or punishment" does not apply to corporations.
In the underlying action, a corporation was found guilty of carrying out construction work contrary to section 46 Quebec's Building Act. Pursuant to s. 197.1 of the Building Act, the penalty for an offence under section 46 is a mandatory minimum fine. Applying this provision, the Court of Québec imposed the then minimum fine for corporations of $30,843. The corporation challenged the constitutionality of the mandatory minimum fine on the basis that it offended its right to be protected against cruel and unusual treatment or punishment under section 12 of the Charter.
While not decided in the environmental context, the Court's decision has important implications for corporations which may seek to challenge fines imposed for environmental offences.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.