[Note: This article was originally published online on June 3, 2019 in The Lawyers Daily]
Since 1971, the week of June 5 has been declared by federal law as “Canadian Environment Week.” According to a federal website, this event “celebrates Canada’s environmental accomplishments and encourages Canadians to contribute to preserving and protecting their environment.”
However, Environment Week 2019 offers Canadians fewer reasons to celebrate, and instead provides an opportunity to focus on the daunting environmental issues that confront the country in the 21st century.
For example, following a lengthy diplomatic dispute, 69 shipping containers of waste are being returned to Canada after having been improperly sent to the Philippines years ago. This controversy highlights the need for improved waste reduction efforts in Canada and for better enforcement of the Basel Convention to prevent illegal international shipments of hazardous materials.
Similarly, China’s refusal to accept recyclables from North America has sent Canada’s waste management sector scrambling for solutions to the ever-growing stockpile of post-consumer materials. This situation has prompted interest by Canadian jurisdictions in establishing “Extended Producer Responsibility” regimes that make manufacturers and importers legally responsible for their products and packaging.
During Environment Week 2019, some eastern provinces in Canada are still recovering from severe flooding this past spring, while the wildfire season has already commenced in central and western provinces. Many observers link the intensity and frequency of such events to climate change, which has led to heated political rhetoric in legislatures and to several legal challenges in Canadian courts.
For example, the Saskatchewan Court of Appeal upheld the constitutionality of the federal Greenhouse Gas Pollution Pricing Act, but the province recently filed an appeal to the Supreme Court of Canada. A ruling from the Ontario Court of Appeal is expected soon in another constitutional reference involving this legislation, and it is also likely to end up in the Supreme Court.
In addition, Manitoba has applied to the Federal Court for judicial review of the statute’s applicability within the province, while Alberta is considering the option of commencing its own constitutional reference. The Alberta government has also tabled a bill that would cancel the province’s current carbon tax and has promised to remove the previous government’s “hard cap” on greenhouse gas emissions.
If the cap is eliminated in order to facilitate new or expanded oilsands projects, Alberta’s move will create a showdown with the federal government in relation to the proposed Impact Assessment Act (Bill C-69). At present, this Act is still lodged in the Senate, but is anticipated to return to the House of Commons for passage later this month.
A recent regulatory proposal under the Act suggests that certain oilsands projects will not be subject to the new federal assessment process, provided that a hard emissions cap remains in effect at the provincial level.
The larger context for this ongoing political battle (and the upcoming federal election) is the global climate crisis that prompted Canada to sign the Paris Agreement for reducing greenhouse gas emissions.
Unfortunately, it appears that Canada is on track to miss its modest reduction targets despite the federal carbon pricing program, which some commentators have criticized for setting carbon prices too low to expedite the de-carbonization of the Canadian economy.
Despite the Paris Agreement, the federal government acquired the controversial Trans-Mountain pipeline in order to expand its capacity to transport oilsands product to tidewater. The British Columbia government responded to this prospect by developing new permit requirements for pipelines. However, the British Columbia Court of Appeal recently held that the province has no jurisdiction to regulate interprovincial pipelines, and an appeal to the Supreme Court is expected.
To safeguard Canada‘s northern Pacific coastline, the federal government has proposed a statutory moratorium on oil tanker traffic in this sensitive area. Nevertheless, the legislation (Bill C-48) remains under review in the Senate, and it is unclear whether it will be enacted prior to the next federal election.
In the meantime, the Ontario government has terminated its successful cap-and-trade legislation and cancelled hundreds of renewable energy projects. Several omnibus bills containing environmental rollbacks have been introduced to allegedly “cut red tape” and make the province “open for business.” These changes affect Ontario statutes governing environmental assessment, land use planning and appeals, toxics reduction, conservation authorities and endangered species.
Canada’s track record on endangered species is not particularly enviable, especially since over 500 plant and animal species have been officially listed under the federal Species at Risk Act. Unfortunately, recovery plans under this Act to bring species back from the brink have often been slow and sporadic, thereby prompting litigation by environmental groups.
The urgency of conserving species and their habitat in Canada was reinforced by last month’s United Nations report that found on a global scale, one million species are at risk of extinction.
However, it should be noted that not all updates for Environment Week 2019 are bleak.
For example, Canada has made considerable progress in its regulatory ban against the use, sale, manufacturing, import and export of asbestos.
Similarly, the recent renewal of Canada’s Oceans Act provides enhanced conservation of vulnerable marine ecosystems.
In addition, the upcoming renegotiation of the Canada-Ontario Agreement on Great Lakes Water Quality and Ecosystem Health will enable governmental officials and members of the public to call for stronger measures to protect the Great Lakes basin.