The Canadian Environmental Protection Act (1999)


It is indeed a beautiful world we ‘were’ living. But, that was long way back. Last 1998, WWF, the largest and the most experienced independent organization on conservation, reported that more than thirty percent of the natural world has been destroyed by humans since 1970. Furthermore, the deterioration of forest, freshwater, and marine ecosystems were revealed. People have almost doubled their consumption of water and wood. There was also a two and a half times increase in emissions of carbon dioxide.

In additional, the forest covers of the planet has a decrease of thirteen percent. These are not fiction but are facts. It was even claimed that people have been experiencing the most destructive period, so far, in the natural world’s history since the dinosaurs’ extinction era. And, if continued, it could lead to a catastrophic economy, society, and environment.

With these realizations, it is an upsetting fact that the struggle of the conservation of Mother Earth is a steep and tough road. Because of this, many environmental organizations have emerged. A number of new environmental laws and policies have been implemented. However, as said earlier, it is not an easy road for environmentalists and nature-lovers as well. This situation is not just because of a single factor.

There are a number of them. To name one is the illegal logging of unstoppable offenders of the law. Some people, in other cases, lay the blame on large corporations. Nevertheless, majority still does not know the real reasons are. It could be the wrong and ineffective way of enforcements of the law, just like in Canada.

To further explain the related environmental issues and concerns, specifically in Canada, a thorough research was done. These facts are presented in this paper. This research paper aims to inform the readers the recent condition of implementation of environmental laws in Canada and its mediocre job in combating law offenders.

The Canadian Environmental Protection Act (CEPA) is renewed to make some contributions toward sustainable development. It is through pollution prevention. Furthermore, another goal of CEPA is to provide protection to the environment, health, and human life from the perils that are connected with toxic substances. The involvement of pollution prevention and the proper control and adequate management of toxic matters and harmful waste to lessen threats to ecosystems and biological diversity of Canada are also acknowledged by the Act.

For the first time, it recognizes the necessity of eliminating virtually the relentless noxious matters in the environment and those that accumulate in living organisms. With this goals and objectives, Health Canada and Environment Canada works together to make some assessments of potential toxic substances. Also, both want to develop some regulations that would control these substances. Below are the highlights, as quoted, of the Canadian Environmental Act:

Part 1: Administration (Sections 6-10)

·        creates a framework for co-operation and co-ordination between federal, provincial, and aboriginal governments

Part 2: Public Participation (Sections 11-42)

·        establishes a public registry that improves the publics access to environmental information

·        gives citizens the right to sue where a CEPA violation results in significant harm to the environment, and the federal government fails to take appropriate action

·        provides expanded “whistle blower” protection

Part 3: Information Gathering, Objectives, Guidelines and Codes of Practice (Sections 43-55)

·        monitor environmental quality and periodically report on the State of the Environment

Part 4: Pollution Prevention (Sections 56-63)

·        gives parties an opportunity to prepare and implement self -directed site specific solutions for toxic pollution prevention

Part 5: Controlling Toxic Substances (Sections 64-103)

·         establishes a firm time frame for a response and follow up action

·         requires all substances on the Domestic Substances List to be categorised and screened for potential risks to human health, life and the environment

·         sets a new goal of virtual elimination of persistent, bioaccumulating, toxic substances

Part 6: Animate Products of Biotechnology (Sections 104-115)

·        outlines the requirements for the assessment and introduction of living organisms that are the products of biotechnologyNote: non-living products of biotechnology (enzymes) biochemical products and biopolymers are covered under part 5

Part 7: Controlling Pollution and Managing Wastes

·         Division 1: Nutrients (Sections 116-119)

·         Division 2: Protection of Marine Environment from Land-based Sources of Pollution (Sections 120-121)

·         Division 3: Disposal at Sea (Sections 122-137)

·         Division 4: Fuels (Sections 138-148) – National fuel mark system

·         Division 5: Vehicle Engine and Equipment Emissions (Sections 149-165) – transfers legislative authority from the Motor Vehicle Safety Act to CEPA. Generally speaking air, rail and marine engines are covered by the Aeronautics Act (R.S.C 1985, c. A-2),the Canada Transportation Act (S.C. 1996, c. 10) and the Canada Shipping Act (R.S.C. 1985, c. S-9)

·         Division 6: International Air Pollution (Sections 166-174)

·         Division 7: International Water Pollution (Sections 175-184)

·         Division 8: Control of the Movement of Hazardous Waste and Recyclable Material and Prescribed Non-Hazardous Waste for Final Disposal (Sections 185-192)

Part 8: Environmental Matters related to Emergencies (Section 193-205) – e.g. spills, explosions and leaks give Environment Canada new regulatory powers

·         lead to establishing a national system of notification and reporting

·         may develop guidelines and codes of practice and

·         require environmental emergency plans

Part 9: Government Operations – Federal and Aboriginal Lands (Section 206-215)

·         gives Environment Canada the responsibility of getting the Federal house in order

·         will attempt close any regulatory gap between federal and provincial requirements by ensuring that federal operations, and works and undertakings on federal lands meet or exceed equivalent provincial provisions for emissions, effluents, waste handling and disposal, and environmental emergencies

Part 10 Enforcement (Sections 216-312) – includes inspections and monitoring to verify compliance and investigation of suspected violations

·         creates a new category of “enforcement” officer with expanded powers

·         authorizes enforcement officers to issue environmental protection compliance orders on the spot to stop illegal activity and to correct violations

·         gives the option of negotiating environmental protection alternatives measures rather than going to trial

Part 11 Miscellaneous Matters (Sections 313-343)

·        provides economic instruments such as deposit-refund schemes and tradable units

Part 12 Consequential Amendments, Repeal, Transitional Provision and Coming into Force (Sections 344-356)

Schedule 1: Toxic SubstancesSchedule 2: Equivalent Acts and RegulationsSchedule 3, Part 1: Prohibited SubstancesSchedule 3, Part 2: Substances Requiring Export NoticeSchedule 3, Part 3: Restricted SubstancesSchedule 4: Equivalent Acts and RegulationsSchedule 5: Waste or Other MatterSchedule 6: Assessment of Waste or Other Matter (“Acts Administered by the Minister of the Environment “, 2002)

Implementation of the Laws

To be a good leader is to be a good follower. That saying could also work for law makers and enforcers. In order to achieve the goals of the environmental act, enforcers of the policies should be working well. With regard to this, there is an essential point to know who should be the first one to be familiar with and practicing the new Act and other regulations.

The Compliance and Enforcement Policy for the Canadian Environmental Protection Act lays down the principles for the enforcement of the Act. The policy was built up in cooperation with the Department of Justice.  Moreover, it also directs everyone who has responsibility of protection and conservation of the environment — governments, industry, organizations, and even individuals — as to the expectations from them. It also offers information on what to look forward to from the officers that will be enforcing CEPA and its regulations. (Klachkov, 2005)

There are many authorities responsible for the enforcement of Canadian Environmental Protection Act. These include the Minister of the Environment, the Minister of Health, the Attorney General of Canada, officials of the Department of the Attorney General together with the Crown prosecutors, the Courts, enforcement officers, review officers, and analysts. The main actors in day-to-day activities of enforcement are the Attorney General, Crown prosecutors and the latter three.

Enforcement officers are responsible for carrying out inspections to verify compliance with the law, directing corrective measures in areas of danger to the environment, stopping and moving conveyances like cars and trucks for inspection, and conducting investigations of alleged violations. They also have the power to search, confiscate, and detain item connected with the CEPA enforcement, to require copies and production of data and documents if necessary, and to give out tickets and orders. However, their decisions should be founded securely in law and in consistency with the Compliance and Enforcement Policy.

Analysts, on the other hand, are any qualified persons in certain areas, like an engineer, a laboratory technician, or a forensic accountant. They are assigned by the Minister to work as an analyst for a certain part of or the entire Act. Analysts are able to use their powers when they are accompanied by an enforcement officer. They can have access to any place and premises to which the Act and other regulations are applied. They can also open receptacles, take samples, perform tests and measurements, and ask for and have copies of data and documents when needed.

The review of an environmental protection compliance order is done by review officers. The Minister of Environment designated them. However, the review is only done when the person subject to the order is applied for it.

The Attorney General is the one responsible for the proceeding and legal actions related to CEPA. Although the enforcement officers give charges to the offenses against the Act, the Attorney General and the officials of his department make the decisions with regards to the proceedings of the prosecution. (Klachkov, 2005)

There are also some devices that would aid these certain officials and officers in assessing the environmental condition and reducing offenders of the environment. These are the environmental compliance reports, administrative monetary penalties, and the due diligence.

Environmental compliance reports provide information about the contaminant discharges in air and water. The discharges are then reported to the Ministry of environment since they are the one responsible in informing the public about the state of environment in their communities. They may or may not identify some of these discharges. The ministry will confirm the reports and are prior to posting. Basically, the objective of environmental compliance reports is to keep the public informed about what is happening in their environment. (“Environmental Compliance Reports”, 2006)

Administrative Monetary Penalties (OSFI) Regulations (the “Regulations”), on the other hand, aims to assign particular violations done by federal financial institutions edicts in such a way that the Superintendent would be able to impose a penalty. It became effective on April 1, 2002, replacing the “Filing Penalties Regulations”. The Regulations seek out only those infringements that would be put through little or no analysis or judgment in identifying a violation. Through this, it would be guaranteed that the Regulations are being applied equitably and consistently. With regards to the tardy and flawed filing contraventions that are presently handled in the Filing Penalties Regulations, the Regulations allocate breaches of specified legislative conditions or devices issued under these stipulations.

The classifications of contraventions are “minor,” “serious” or “very serious” violation. Very serious offenses are those that may have a relevant impact on the unassailability and safety of institutions. Those that may have a lesser effect on institutions’ current security and soundness are generally categorized as serious. The OSFI Act grants for a permission of appeal to the Federal Court of Canada for penalties under serious and very serious contraventions. All of the delayed and incorrect filing violations are classified as minor. (“Regulatory Impact Analysis Statement “, 2005)

Lastly, due diligence is somewhat important in any organization or institution. Due diligence is defined as the point of judgment, concern, discretion, determination, and activity that a person would rationally be expected to do under certain situations. In application to occupational health and safety, due diligence denotes that employers should take sensible precautions, under particular conditions, to avoid accidents and injuries in the workplaces.

Additionally, it is also applicable in circumstances that are not dealt with elsewhere in the occupational health and safety and protection legislation. To put this into action, an employer or owner must instigate a plan that would identify possible place of work hazards and perform the appropriate remedial action to avert accidents and injuries coming up from these hazards. (“OH&S Legislation in Canada “, 1999)

Current Issues on the Enforcement of Environmental Laws in Canada

Although Canadian Government has well-designed policies and accurate staffing, it seems that environmental problems still persist. In one executive summary posted by Sierra Club Canada, environmental assessment (EA) has become a skeptical, irrational and very unrestricted federal policy in Canada. Instead of becoming a logical and democratic sieve to ensure that ecological and economic recklessness does not devastate Canada’s natural riches, it has become a routine exercise that is neither lucrative nor conservation-minded.

 A number of evidences of the government’s lack of enthusiasm to advocate the law on EA and implement it equally are identified. These are increasing legal actions, conflict of interest, mislaid assessments and scientific reprimands. There was complaint due to non compliance that was passed to the NAFTA’s Commission for Environmental Cooperation. Because of that, the government is currently being sued by the Sierra Club of Canada because of falling short in assessing the fiscal and environmental effects of the sales of nuclear reactor in China.

An amount of 1.5 billion US$ was not included in the CANDU sale from EA. This was calculated by the government. It marked the history of the poor system. Voisey’s Bay Nickel Company is one of the followers of the process that is commonly ignored in Ottawa. Actually, the company had already shelled out 20 million US$ on its statement about the results of their nickel mine worth 5 million US$. The million dollar nickel mine supplies the Asian market. Why then that a company this big follows this kind of process? (Nikiforuk, 1997)

Another situation that shows the poor system of enforcement of environmental laws is the failure in Fisheries Act. It is the only and most significant law in Canada for the protection and conservation of fish and fish habitat. Critically, it seizes individuals and even corporations or companies that are responsible in harming fishes and destroying their habitats. However, only fines and jail terms are the penalties available to avoid such damages. Below are some sections of the Fisheries Act that explains the rules and penalties regarding safety of the marine ecosystem:

Section 36(3) of the Fisheries Act states:

“Subject to subsection (4), no person shall deposit or permit the deposit of a

deleterious substance of any type in water frequented by fish or in any place under any

conditions where the deleterious substance or any other deleterious substance that

results from the deposit of the deleterious substance may enter any such water.”

In other words, it is illegal to put toxic substances into water where fish live.

Section 36(4) states that no person contravenes 36(3) if that person deposits or permits the deposit of a deleterious substance that is authorized by regulations made under the Act.

Section 40(2) makes a contravention of s. 36(3) a summary conviction or indictable offence. The penalties available for violating s. 36(3) range up to fines of $1 million and three years in jail.

Section 78.1 of the Fisheries Act states that where a contravention of the Act is ongoing, each day constitutes a separate offence. (THE GOVERNMENT OF CANADA’S FAILURE TO ENFORCE THE FISHERIES ACT AGAINST MINING COMPANIES IN BRITISH COLUMBIA, 1998)

Despite these policies, many incidents of fish habitat destruction still occur. A specific example is the mining operations in British Columbia. These mining operations have been a continuous causes of damage to fishes and their habitats with their past and ongoing drainage of acid mine and other heavy metal pollution. With this dilemma, there are two federal departments accountable in environmental laws enforcement. These are the Department of Fisheries and Oceans and the Environmental Canada. They are aware of these situations and always been updated and informed of these facts for extensive periods of time. However, neither of the two supposed to be ‘responsible’ departments have strongly implemented the Fisheries Act against British Columbia mining companies for a long period of time.

Search for legal records for prosecutions of mining industries in B.C. for violations of Section 36(3) of the Fisheries Act by the Canada government was done by the Submitting Parties. It came up with three cases from 1983, 1984 and 1985. The first case ended with the guilty verdict of Equity Silver in 1983. It also cost them a fine of $12,000. The outcome of the second case was the conviction of Carolin Mines in 1984. A fine of $135,000 was collected from them. The third case, which involved the Westmin Resources, resulted in their conviction in 1985. They paid a fine of $80,000 for their offense.

These occurrences are clear and undeniable evidences of the incessant violations of Fisheries Act Section 36(3). The decreasing number of salmon populations in British Columbia only shows the constant failures of Canadian Government in effectively enforcing environmental laws. (THE GOVERNMENT OF CANADA’S FAILURE TO ENFORCE THE FISHERIES ACT AGAINST MINING COMPANIES IN BRITISH COLUMBIA, 1998)

Furthermore, Canada faces some complaints recently regarding the lax implementation of environmental laws. According to a report, Canadian and American environmental groups collided to file a formal grievance to the Commission for Environmental Cooperation (CEC) of North America. It came to their knowledge the alleged failure of Canada to enforce its Species at Risk Act.

A side agreement to the North American Free Trade Agreement or NAFTA was done by Canada, Mexico, and United States. Under this, they created an international organization, which is the CEC. Because many species have been migrating to the US, Mexico, and other countries, the situation of the Canadian government regarding the protection of species at risk has become internationally significant.

The president of Nature Canada, Julie Gelfand, stated that “Canada is failing its duty of care toward the nations’ wildlife”. The president also added that their organization “wants Canada to take the Species at Risk Act seriously”.

Additionally, the environmental groups claim that federal government’s failure in enforcing the Act has resulted to some delays in the enlistment of critically endangered species, rejection of records for some species that are methodically proven to be at risk, unsuccessful identification and protection of habitats that species need for survival, and their total lack of protection in some provinces. These happenings may lead to a heightened risk of Canadian species extinction. (“International Commission asked to review Canada’s failure to enforce endangered species law “, 2006)

Moreover, the Standing Committee of Environment and Sustainable Development released a report that shows a depressing portrait of enforcement organization of Environment Canada. In relation to this report, Barry N. Spiegel, a lawyer at the Toronto office of an environmental law firm, used the terms ‘confusion, chaos, cognitive dissonance, and denial’ to describe the current situation and performance of Environment Canada. The committee also claimed that the implementation of federal environmental laws is patchy and insufficient. Accordingly, these conditions do not affect only the environment, but also the administration’s operations emasculate the environmental accomplishments of the leading industries of Canada. (Spiegel, 1998)

These are only few recent defiant compliance reports in the environment in Canada. Ontario, the most controversial area in Canada, is in front of much more environmental issues.

Ontario Cases and other Environmental Concerns

Ontario has been going through some water problems due to the Walkerton incidence. Although the province has rigid environmental policies in protecting their environment and the health of the people, severe water problems still persist. They have been experiencing unsafe water drinking and specious management practices of waste water. Consequently, the Ontario Ministry of the Environment utilized a variety of tools in bringing about environmental compliance. On the other hand, the Investigations and Enforcement Branch or IEB has the work of investigating environmental breaches with regards to environmental legislations and related regulations of Ontario.

Based on some studies, most of the water in populated areas of Ontario is contaminated. The water was too much damaged that they lost sensible effort to restore it to be potable again. The only thing that they hold on to is dilution.

A pollution event started the Walkerton catastrophe. If the incidence did not happen and pollution did not cause threat to our environment, shortcomings of the in charge institutions and processes they control would not be important and remain unnoticed.

Many decrees have been passed to protect the water quality. There are three primary laws that provide sanctions on water pollution. These are the Ontario Water Resources Act, the Ontario Environmental Protection Act, and the federal Fisheries Act. However, without sufficient law enforcement, the purposes of these laws would not be possible.

Pollution offenses should be inclined to enforcement in such a way that our environmental laws and regulations are intended. If enforcement is effectively done, its result would be pervasive benefits of the public. Hence, it would exhibit respect for the law, divulge information to the people about pollution, and upholds specific and wide-ranging preclusion. In due course, effective implementation of the laws can aid protect and conserve water. It could also help to lower the shared or public cost of providing potable water to all the residents of Ontario. Therefore, an Ontario Environmental Protection Agency should be founded to perform this function. This agency would be under the Minister of the Solicitor General.

The enforcement of environmental laws in Ontario has been like a rollercoaster ride. Because of the alterations in reporting principles and disclosure policies, it became complicated to track the records of the Ontario government’s law enforcement. The following data illustrates the common underlying movements of enforcement activities:

Source: “Guiding and Controlling Ontario’s Future Water and Wastewater Services: User Pay and  Full Cost Pricing, Independent Economic Regulation, and Strengthened Environmental Law Enforcement” by Thomas Adams

Source: “Guiding and Controlling Ontario’s Future Water and Wastewater Services: User Pay and    Full Cost Pricing, Independent Economic Regulation, and Strengthened Environmental Law Enforcement” by Thomas Adams

Source: “Guiding and Controlling Ontario’s Future Water and Wastewater Services: User Pay and Full Cost Pricing, Independent Economic Regulation, and Strengthened Environmental Law Enforcement” by Thomas Adams Source: “Guiding and Controlling Ontario’s Future Water and Wastewater Services: User    Pay and Full Cost Pricing, Independent Economic Regulation, and Strengthened Environmental  Law Enforcement” by Thomas Adams

Data set on environmental enforcement activity in Ontario – 1986-2000(32)

Date ConvictionsPeople/Cos.chargedCounts LaidFines# InvestigatorsTotal Staff867114987138266881703301.040891763435210089171419156829021054616392.3569127257119752.7589226652521583.69321145515702.1651219423744616402.4611069518828310452.951106961212147581.25491971362329510.964580981374298050.8644899928463512161.54489002851076179634489Source: “Guiding and Controlling Ontario’s Future Water and Wastewater Services: User Pay and Full Cost Pricing, Independent Economic Regulation, and Strengthened Environmental Law Enforcement” by Thomas Adams

From these data, it is shown that the Ontario government has been performing up-and-down law enforcement.  There was an increase in the activity level of the IEB until 1992. From year 1993-1997, it declined. Then again, it increased in the span of 1998-2000. Moreover, it appears that deterioration in activity levels started before staffing levels dropped.

It is demonstrated that the IEB has enforced environmental laws on a large scale successfully from 1985 to 1991. But, due to administrations diverse political colors, enforcement has been permitted to decline. Changes in structure, which is the establishment of Ontario Environmental Protection Agency, would help to take away political concerns in the enforcement.

It seems that the unstable pattern, like a rollercoaster, of enforcement activities is not because of the funding available to IEB.(33) To a certain extent, it appears like the pattern is attributable to the altering attitudes toward enforcement.  In 1999, Toronto Star was told by a spokesperson for the MOE that officials of the ministry were trying to resolve pollution tribulations, together with other companies. Their new goal is prevention of pollution. The upsurge in citizen-inclined enforcement initiatives and their successful environment protection may have caused and encouraged the renewed commitment of MOE since 1999 regarding the enforcement.  (Adams, 2001)

There have been a lot of cases of violation of environmental laws and its mediocre implementation. Because of this, many citizens became more concerned about the environment around them. This is why the Environmental Bureau of Investigation or EBI was formed. Its main objective is to protect the environment by working with the local citizens in investigating pollution cases. With the help of the local citizens, evidences were collected by EBI to prove the complaints. What is good with EBI is that the public is allowed to work with them to protect their environment.

EBI was established in 1997 and has done three cleanups and two convictions since then. They also have about 20 cases that are subject to investigation. These cases include the governments and corporations in Ontario, Quebec, and New Brunswick. EBI believes that they can protect the environment by conducting investigations and they proved it with their experience. Three of the cases that EBI has started with are the Kingston, Hamilton, and Deloro cases. (“Citizen’s Guide to Environmental Investigation and Private Prosecution”)

Charges were placed by Janet Fletcher with the help of the Sierra Legal Defense Fund in March 1997. The charges were against the City of Kingston violating federal Fisheries Act. The complainant alleges that the City of Kingston was emitting toxic substances on the Great Cataraqui River. Members of EBI and SLDF played a vital role by collecting and patching up the evidences. The evidences gathered by them were presented to the MOE. The City was found guilty in December 1998 of four laid charges. The fined 120 thousand US$ for committing such crimes. Aside from that, they also paid an additional fine of 30 thousand US$ due to the violation of environmental statutes.

What was really the case is all about that it took the City of Kingston to pay such a large amount of money? There was a study conducted in 1994 that a toxic substance called leachate was flowing from a closed landfill site. In 1996, evidence was collected to charge the parties responsible for the pollution. Event though the City has already been charged, they were still not taking remedial actions about the pollution.