Environmental law and practice in Canada

Environmental regulatory framework

1. What are the key pieces of environmental legislation and the regulatory
authorities?
Environmental laws are enacted in Canada by the federal government, ten provincial
governments and three northern territorial governments. Municipal governments, under
authority delegated by provincial or territorial legislatures, also legislate locally in
specific environmental areas such as noise and sewer use. While the Canadian
Constitution assigns different areas of responsibility to the federal parliament and the
provincial legislatures, federal and provincial environmental regulatory regimes
frequently overlap. Environmental protection falls primarily under the jurisdiction of
the provinces, which have similar but not identical regulatory requirements. However,
the federal government does exercise jurisdiction.

The key federal laws relating to protection of the environment are:

Canadian Environmental Protection Act 1999 (CEPA).
Fisheries Act.
Transportation of Dangerous Goods Act 1992 (TDGA).
Species at Risk Act (SARA).
Migratory Birds Convention Act 1994.
Nuclear Safety and Control Act (NSCA).
Canadian Environmental Assessment Act (CEAA).

The primary federal regulatory authority is Environment Canada.

Other important regulators in specific areas include Fisheries and OceansCanada,
Transport Canada and the Canadian Nuclear
Safety Commission.Each province and territory has enacted laws to protect the
environment. In some areas, such as transportation of dangerous goods and
species at risk, provincial legislation tracks the relevant federal legislation. Each
province has enacted some form of primary environmental protection law and
has created a key environmental regulator

While no two provincial regulatory regimes are identical, all provinces regulate the
discharge of contaminants to the natural environment with a combination of objective
standards and quantitative standards. All provinces maintain some form of licensing
system for discharges to air, water and land, which typically impose site-specific
requirements on activities that have the potential to affect the natural environment.
In addition to the federal CEAA regime, most provinces and territories maintain an
environmental assessment regime of some form. Many Canadian provinces have chosen
in recent years to regulate in the area of climate change.
Regulatory enforcement
2. To what extent are environmental requirements enforced by regulators?
The federal government and all provinces maintain compliance regimes that authorise
the issuance of various types of orders, and the prosecution of environmental offenders.
Most environmental regulators in Canada have appointed dedicated investigation and
enforcement officers, with powers similar to those granted to police officers. For
example, officers are commonly granted broad powers of entry, as well as specific
powers to conduct environmental testing, examine and take documents and make
reasonable inquiries. Enforcement officers are usually given the authority to seek
judicial authorisation to exercise their powers in circumstances where consent cannot be
obtained. The level of environmental regulatory enforcement varies from jurisdiction to
jurisdiction, depending on political will, available resources and public demand. The
Province of Ontario is the most active in terms of enforcement.

Environmental NGOs
3. To what extent are environmental non-governmental organisations (NGOs) and
other pressure groups active?
There are a number of very active Canadian environmental NGOs, whose influence is
significant in a number of areas. Most NGOs are active in lobbying for changes to
environmental laws and regulations. Some NGOs engage in direct action to draw
attention to environmental issues. Some NGOs, such as Ecojustice and the Canadian
Environmental Law Association maintain a complement of staff legal counsel to
intervene in significant environmental cases.

Environmental permits
4. Is there an integrated permitting regime or are there separate environmental
regimes for different types of emissions? Can companies apply for a single
environmental permit for all activities on a site or do they have to apply for
separate permits?
Integrated/separate permitting regime
Most emissions permitting occurs at the provincial level of government. Each province
maintains a unique environmental permitting regime. In some cases, there are different
regimes for discharges to air, land and water. Some provinces permit a more integrated
approach with multimedia approvals. Even in cases where there are different approval
regimes, it is common to deal with the same regulator.
Single/separate permits
In some provinces, for example Ontario, it is now legally possible to apply for a single
environmental permit for most activities on a site.
Permits and regulator
5. What is the framework for the integrated permitting regime?
In Ontario, a typical industrial facility may require an environmental compliance
approval (ECA) to discharge contaminants into the air and an ECA to discharge into
surface water. In some cases, a facility will require an ECA for waste management
activities. All of these ECAs are issued by the Ontario Ministry of the Environment and
Climate Change and may be combined into a multimedia ECA. Note that if the
wastewater discharge is to a municipal sewer, an ECA will not be required, but it may
be necessary to attain a municipal permit, which cannot be combined in the multimedia
approval.
Length of permit
The practice varies across Canada. In Ontario, the vast majority of ECAs are not time-
limited. There is a trend towards the issuance of ECAs with limited operational
flexibility, which allow the ECA holder to make modifications within a defined
envelope. The limited operational flexibility conditions typically must be renewed
every five years.
Restrictions on transfer
The practice varies across Canada. In Ontario, an ECA can typically be transferred,
subject to a requirement to notify the Ministry of the Environment and Climate Change,
while a permit to take water is not transferable.
Penalties
Penalties for non-compliance differ across the various jurisdictions. For non-
compliance with a permit, penalties can range from as high as CAN$500,000 per day.
Fines may be increased equal to the amount of the monetary benefit which results from
non-compliance, and a compliance order may be issued as part of sentencing.

Water pollution
6. What is the regulatory regime for water pollution (whether part of an
integrated regime or separate)?
Permits and regulator
While the federal and provincial governments share jurisdiction over water, most
wastewater discharge permits are issued by provincial environmental regulators. For
example, in Ontario, a discharge of wastewater to a surface water body requires an
environmental compliance approval under the Ontario Water Resources Act. Municipal
wastewater treatment plants require provincial permits for discharge of treated effluent
to surface water, and in turn impose requirements on upstream sewer dischargers.
Under the federal Fisheries Act, an authorisation may be required for certain discharges
to water that may have a harmful effect on fish.
Prohibited activities
All Canadian environmental statutes prohibit certain types of activities. Federally, the
Fisheries Act prohibits the deposit of harmful substances in water frequented by fish,
the CEPA prohibits the disposal at sea of wastes and other substances without a permit,
and the Arctic Waters Pollution Prevention Act prohibits the deposit of waste of any
type in Arctic waters.
Provincially, environmental protection statutes typically contain broad prohibitions
against the discharge of anything into water that may impair the quality of that water.
Officers and directors in most Canadian jurisdictions have a positive obligation to take
reasonable steps to ensure compliance.
Clean-up/compensation
All Canadian environmental regulators have the ability to require a polluter to clean up
water pollution, typically through some form of administrative order. Some
jurisdictions have created a regime of administrative monetary penalties, in which a
polluter can be ordered to pay monetary compensation for water pollution.
Penalties
Penalties for non-compliance are specific to the jurisdiction, but tend to be similar
across the country. Penalties range from as high as CAN$10 million for corporate
polluters and five years' imprisonment for individuals. Actual penalties are considerably
lower, and imprisonment is rare. Severe penalties are reserved for blatant and repeated
non-compliance.

Air pollution
7. What is the regulatory regime for air pollution (whether part of an integrated
regime or separate)?
Permits and regulator
Air discharge permits are issued by provincial environmental regulators. For example,
in Ontario, a discharge of anything into the air that may cause a defined adverse effect
requires an environmental compliance approval issued by the Ministry of the
Environment and Climate Change under the Environmental Protection Act.
Prohibited activities
All Canadian environmental statutes prohibit certain types of activities. Provincial
environmental protection statutes typically contain broad prohibitions against the
discharge of anything into the air that may cause an adverse effect. Officers and
directors in most Canadian jurisdictions have a positive obligation to take reasonable
steps to ensure compliance.
Clean-up/compensation
All Canadian environmental regulators have the ability to require a polluter to clean up
air pollution, typically through some form of administrative order. Some jurisdictions
have created a regime of administrative monetary penalties, in which a polluter can be
ordered to pay monetary compensation for air pollution.
Penalties
Penalties for non-compliance are specific to the jurisdiction, but tend to be similar
across the country. Penalties range as high as CAN$10 million for corporate polluters
and five years' imprisonment for individuals. Actual penalties are considerably lower,
and imprisonment is rare. Severe penalties are reserved for blatant and repeated non-
compliance.
Climate change, renewable energy and energy efficiency
8. Are there any national targets or legal requirements for reducing greenhouse
gas emissions, increasing the use of renewable energy (such as wind power) and/or
increasing energy efficiency (for example in buildings and appliances)? Is there a
national strategy on climate change, renewable energy and/or energy efficiency?
Under the Copenhagen Accord, Canada committed to reducing its greenhouse gas
(GHG) emissions by 17% from 2005 levels by 2020, to 611 megatonnes of carbon
dioxide equivalent.
It is generally accepted that a true "national plan" to deal with GHG emissions is only
possible through a concerted joint federal-provincial initiative. The current federal
government has been disinclined to initiate joint action, deferring instead to the
provinces to take the lead. However, the federal government is implementing a sector
by sector regulatory approach to reduce GHG emissions in areas where it has clear
constitutional authority. To date, regulatory steps have been taken in the transportation
and electricity sectors. The federal government is also moving forward with regulatory
controls on hydrofluorocarbons.
Some Canadian provinces have also taken steps to legislate reductions in GHG
emissions. Most provinces have introduced requirements to report GHG emissions on
an annual basis. British Columbia has implemented a carbon tax and has announced
plans for a region-wide cap and trade system. Alberta imposes intensity-based carbon
emission limits for large emitters and has established a carbon trading regime. The new
government in Alberta has announced its intention to strengthen its GHG regime.
Qubec imposes a form of carbon tax on the bulk sale of fuels, and has established a
cap and trade system for large emitters through its membership in the Western Climate
Initiative. Ontario has announced that it will join with Qubec in a joint cap and trade
system.
Further changes are anticipated in the regulation of GHG emissions in Canada as the
provincial governments pressure the federal government to adopt a more
comprehensive national GHG reduction strategy. All levels of government have
implemented measures to encourage renewable energy development and energy
efficiency, although generally speaking there are no legal requirements.

9. Is your jurisdiction party to the United Nations Framework Convention on

Climate Change (UNFCCC) and/or the Kyoto Protocol? How have the
requirements under those international agreements been implemented?
Canada remains a party to the UNFCCC but, despite ratifying it in 2006, the Canadian
government formally withdrew from the Kyoto Protocol in 2011.

10. What, if any, emissions/carbon trading schemes operate in your jurisdiction?

Canada has not yet established a national emissions trading scheme. The governments
of Alberta and Qubec have established cap and trade systems, and British Columbia
and Ontario have announced plans to do so. In Alberta, intensity-based emissions limits
have been imposed on large emitters. Emitters unable to meet their targets may
purchase credits from another large emitter, purchase offsets from an Alberta-based
project that reduces carbon emissions, or pay CAN$15 for each ton of
emissions exceeding the limit into an Alberta technology fund.

Environmental impact assessments

11. Are there any requirements to carry out environmental impact assessments
(EIAs) for certain types of projects?
Scope
The federal government and all provincial governments have established EIA
requirements for certain projects. The scope of the requirements vary from jurisdiction
to jurisdiction. The Canadian Environmental Assessment Act (CEAA) only applies to
designated projects, which tend to be major resource-based projects such as mines,
pipelines and nuclear facilities. The scope of a federal environmental assessment is
limited to environmental issues within federal jurisdiction, such as fisheries. Provincial
EIA requirements vary widely, but generally cover a broader range of projects. In
Ontario, environmental assessment legislation applies to all government projects, but
only to designated private sector projects, which over the years have tended to be
limited to the area of waste management.
Permits and regulator
A project subject to CEAA may only proceed following a positive decision by the
federal government, and the issuance of any number of other permits and approvals
from different regulatory agencies at both the federal and provincial levels of
government. EIAs under CEAA are carried out by the Canadian Environmental
Assessment Agency, the Canadian Nuclear Safety Commission and the National
Energy Board. This scenario is similar in a provincial EIA, although actual assessments
may be formally carried out by the project proponent, and approval authority may be
vested in a dedicated regulatory agency.
Penalties
The maximum penalty for non-compliance with CEAA is CAN$400,000. Penalties in
provincial EIA legislation vary. In Ontario, for example, the maximum penalty is
CAN$25,000 per day.

Waste
12. What is the regulatory regime for waste?
Permits and regulator
Regulation of waste management activities falls under provincial jurisdiction, except
for waste management on federal lands or First Nation lands. The federal government
also regulates the import and export of hazardous waste.
Generally speaking, at the provincial level "waste" is defined broadly and any activities
involving the collection, transportation, processing or disposal of waste may only be
undertaken in accordance with a provincial permit, licence or approval issued by the
provincial environmental regulator.
Prohibited activities
Hazardous waste may not be imported to, or exported from, Canada except in
accordance with a permit issued under the federal Export and Import of Hazardous
Wastes and Hazardous Recyclable Materials Regulations.
As a general rule, any activity involving the management of hazardous or non-
hazardous waste is prohibited except in accordance with a permit, licence or approval
issued by a provincial environmental regulatory authority, unless the activity has been
specifically exempted.
Operator criteria
Waste management regulatory schemes in Canada do not tend to include specific
operator criteria, although most provincial regulators will take into account the
capability of the applicant to engage in the waste management activity in an
environmentally responsible fashion. Some jurisdictions, such as Ontario, specifically
allow the issuing authority to consider the past conduct of the applicant. Most
jurisdictions require some form of financial assurance to secure the obligations of
private sector waste management operators.
Special rules for certain waste
Every province has special rules governing the management of hazardous and liquid industrial
wastes. These rules are generally harmonised across the country, with the exception of
Qubec. Typically, a generator of hazardous or liquid industrial waste is required to register
with the provincial regulator and only transfer waste under the authority of a waste manifest.
Most provincial jurisdictions also have special rules for the management of PCB wastes and
refrigerant wastes. Most provincial jurisdictions also have special rules to encourage the
reduction, re-use and recycling of waste, and most have established stewardship programs for
specific recyclable materials such as types and electrical equipment.
Penalties
Penalties for non-compliance with legislated waste management requirements range
widely across jurisdictions in Canada, and can be as high as CAN$10 million for an
offence involving hazardous waste. Some provinces impose minimum fines of, for
example, CAN$25,000 for a first conviction.

Asbestos
13. What is the regulatory regime for asbestos?
Asbestos is regulated both federally and provincially. The federal government classifies
asbestos as a toxic substance and regulates asbestos mining under the Asbestos Mines
and Mills Release Regulations. Provincial governments regulate existing asbestos in
buildings under occupational health and safety regulations and disposal of asbestos
waste under waste management regulations.
Prohibited activities
The release of exhaust gases from asbestos mining or milling operations with a
concentration greater than two asbestos fibres per cubic centimetre is prohibited under
the Asbestos Mines and Mills Release Regulations. The use of asbestos in building
materials in Canada is prohibited.
Removal of asbestos from buildings is prohibited except in strict compliance with
provincial occupational health and safety regulations. Landfilling of asbestos waste in
non-hazardous waste landfills is prohibited except in strict conformity with special
rules.
Main obligations
Under provincial occupational health and safety legislation, the removal of asbestos is
strictly regulated in accordance with risk-based rules. Most of the provincial regulatory
regimes include providing notice to workers, those tendering on projects and provincial
labour regulators. Obligations are typically imposed on owners of property.
Permits and regulator
Some provincial labour regulators require permits for asbestos removal operations.
Asbestos may only be landfilled in accordance with a landfill approval.
Penalties
Penalties for non-compliance range widely across jurisdictions in Canada. For example,
the maximum fine for contravention of the Occupational Health and Safety Act in
Ontario is CAN$500,000.

Contaminated land
14. What is the regulatory regime for contaminated land?
Regulator and legislation
Some provinces, such as Ontario and British Columbia, have established specific
regulatory regimes for the assessment and remediation of contaminated land. Other
provinces deal with contaminated land on a more informal basis. All general federal
and provincial environmental legislation empowers the relevant regulator to order the
assessment and clean-up of contaminated land.
Investigation and clean-up
The circumstances under which a regulator can require investigation and remediation of
contaminated land vary from jurisdiction to jurisdiction in Canada. British Columbia
maintains the most prescriptive regime, imposing registration requirements triggered by
the identification of contaminated land. In Ontario, changes in property use from an
industrial or commercial use to residential or parkland use triggers the mandatory
application of detailed site investigation and remediation requirements. While site
condition standards that are protective of human health and the environment have been
developed and adopted both federally and provincially, exceeding generic standards is
not typically a trigger for investigation on its own. In many cases, provincial regulators
require evidence of off-site impacts before ordering the assessment and/or remediation
of contaminated land.
Penalties
Penalties for non-compliance with investigation and remediation orders range widely across
jurisdictions in Canada.

15. Who is liable for the clean-up of contaminated land? Can this be excluded?
Liable party
Under provincial environmental laws, liability for the clean-up of
contaminated land is typically imposed on current and previous owners and occupiers.
In some cases, liability may be imposed upon producers of the substances that cause the
contamination. Civil liability for contaminated land is typically imposed at common
law on the polluter, but may in some cases be imposed on innocent owners or occupants
who have not taken steps to control off-site migration.
Owner/occupier liability
An owner or occupier who has not caused contamination can be held liable
for the investigation and clean-up of contamination on their land in many Canadian
jurisdictions.
Previous owner/occupier liability
Previous owners or occupiers can be liable for contamination they caused in the past.
Limitation of liability
There are no limits on regulatory liability. From a civil liability perspective, a party
may seek to limit its liability through the use of contractual releases and indemnities,
and through the sale of land on an "as is, where is" basis (where the buyer knowingly
takes the land in a contaminated state and assumes all of the risks associated with the
contamination, sometimes to the extent of indemnifying the seller for future
environmental claims).

16. Can a lender incur liability for contaminated land and is it common for a
lender to incur liability? What steps do lenders commonly take to minimise
liability?
Lender liability
Under provincial environmental laws, a lender can only typically incur liability for
contaminated land if it takes possession of the land or is otherwise directly responsible
for the contamination. It is uncommon for lenders to incur liability.
Minimizing liability
Most commonly, lenders minimize liability by not going into possession of
contaminated land. Some provinces, such as Ontario, have specific legislative
provisions by which a lender can deal with contaminated land without assuming
liability for historic environmental contamination.

17. Can an individual bring legal action against a polluter, owner or occupier?
In all Canadian jurisdictions, an individual can commence a legal action against a
polluter, owner or occupier for damages related to pollution. Most actions are based in
nuisance, trespass, negligence and strict liability. In some provinces, such as Ontario, a
plaintiff may also claim relief on the basis of a statutory cause of action.

Hydraulic fracturing
18. Is fracking being pursued or considered in your jurisdiction? If so, please
describe the regulatory framework which applies to manage environmental risks.
Consenting and environmental impact assessment
Hydraulic fracturing associated with conventional oil and gas reserves has been pursued
in Alberta since the 1950s. Fracking is one of a number of ways in which the recovery
of oil and gas can be enhanced in mature oil and gas fields, extending the life of older
wells. The activity is now regulated by the Alberta Energy Regulator (AER). The
environmental risks of hydraulic fracturing are managed by the AER through a
licensing regime, which can include preparation of a pre-disturbance assessment and
conservation and reclamation plans. The AER has imposed seismic monitoring and
reporting requirements in one area of Alberta as a result of public concerns.
Other issues
There is considerable interest in hydraulic fracturing for non-conventional reserves,
such as shale gas, in some of Canada's eastern provinces, specifically Qubec, New
Brunswick and Nova Scotia. However, Qubec has imposed a moratorium on fracking
activities, and the government of New Brunswick has proposed legislation that would
ban high-volume hydraulic fracturing for onshore oil and gas. In New Brunswick, there
is considerable controversy associated with fracking activities, which are proceeding
under conventional oil and gas exploration licenses.
Environmental liability and asset/share transfers
19. In what circumstances can a buyer inherit pre-acquisition environmental
liability in an asset sale/the sale of a company (share sale)?
Asset sale
In an asset sale, a buyer typically does not inherit pre-acquisition statutory liabilities,
although a buyer may take over an ongoing situation of regulatory non-compliance and
become liable. As an owner of contaminated land, a buyer may be liable to be issued a
remediation order even if the contamination was inherited.
A buyer of assets may in some circumstances inherit civil liability for pre-existing
environmental conditions, especially in relation to contaminated land.
Share sale
In a share sale, a buyer inherits all environmental liabilities of sellers, including
regulatory liabilities and civil liabilities.

20. In what circumstances can a seller retain environmental liability after an asset
sale/a share sale?
Asset sale
In an asset sale, a seller typically remains liable for pre-closing regulatory non-
compliance. Subject to the existence of a contractual indemnity, a seller typically
retains civil liability for contaminated land post-closing.
Share sale
In a share sale, a seller does not typically retain any environmental liabilities, which are
those of the corporate entity and not the selling shareholder(s).

21. Does a seller have to disclose environmental information to the buyer in an asset sale/a
share sale?
Asset sale
There is no legal requirement to disclose environmental information to the buyer in an
asset sale, subject to common law rules on deceit, misrepresentation and latent defects.
Full disclosure of environmental information is a common feature in Canadian asset
purchase agreements.
Share sale
Similarly, there is no legal requirement to disclose environmental information to the
buyer in a share sale, but full disclosure of environmental information is common in
Canadian share purchase agreements.

22. Is environmental due diligence common in an asset sale/a share sale?

Scope
Environmental due diligence is the norm in asset sales and share sales in Canada. Areas
typically covered include records review, government enquiries, database searches,
environmental approvals review and review of existing environmental site assessments.
In some cases, a Phase One or Phase Two environmental site assessment (ESA) will be
undertaken as part of due diligence. Due diligence on climate change and sustainability
issues is uncommon in Canada.
Types of assessment
A Phase One ESA may be undertaken to identify potential areas of environmental
concern. A Phase Two ESA may be undertaken if there is known or suspected
environmental contamination. On occasion, a buyer will undertake an environmental
compliance audit.
Environmental consultants
Environmental consultants are typically employed to undertake Phase One and Two
ESAs and environmental compliance audits. The contractual terms of a consultant's
retainer should deal specifically with limitations on liability, confidentiality, reliance by
the buyer, seller or other parties and ownership of materials.

23. Are environmental warranties and indemnities usually given and what issues
do they usually cover in an asset sale/a share sale?
Asset sale
Environmental representations and warranties are commonly given by sellers in
Canadian asset sales. Environmental indemnities are not as common, but may be given
by either buyer or seller and are very specific to the transaction and the relative
bargaining power of the parties. In an "as is, where is" transaction, where the buyer
knowingly takes the land in a contaminated state and assumes all of the risks associated
with the contamination, the buyer may on occasion indemnify the seller.
The scope of environmental representations and warranties varies depending on the
nature of the transaction and the negotiating position of each of the parties. Typical
environmental representations and warranties include:
Compliance with environmental laws.

No legal proceedings related to environmental issues.

No underground storage tanks or other specified hazards.

Existence of, and compliance with, all necessary environmental approvals.

No hazardous substances on the property or in soil and groundwater.

Share sale
Environmental representations and warranties are also commonly given in Canadian
share sales. Environmental indemnities are somewhat more commonly given by the
seller than is the case in asset sales.
The scope of environmental representations and warranties varies depending on the
nature of the transaction and the negotiating position of each of the parties. Typical
environmental representations and warranties include:
Compliance with environmental laws.
 No legal proceedings related to environmental issues.

No underground storage tanks or other specified hazards.

Existence of, and compliance with, all necessary environmental approvals.

No hazardous substances on the property or in soil and groundwater.

24. Are there usually limits on environmental warranties and indemnities?

Environmental representations and warranties are commonly qualified by knowledge
and materiality. Indemnities are commonly time-limited and total exposure is capped in
most cases.

Reporting and auditing

25. Do regulators keep public registers of environmental information? What is the
procedure for a third party to search those registers?
Public registers
Environmental regulators in the federal and provincial governments maintain various
public registries of environmental information, including environmental permits and
contaminated land. Many Canadian jurisdictions have implemented an environmental
registry tool, where proposals for environmental regulations, policies and instruments
are posted for public comment. In many Canadian provinces, it is possible to search
online for registered generators of hazardous waste.
Third party procedures
Most public registers of environmental information in Canada are available on the
internet. Environmental information may also be obtained through freedom of
information requests in all Canadian jurisdictions.

26. Do companies have to carry out environmental auditing? Do companies have to

report information to the regulators and the public about environmental performance?
Environmental auditing
No Canadian jurisdictions have imposed mandatory environmental auditing
requirements.
Reporting requirements
A company may be required to report information to regulators about environmental
performance in accordance with specific conditions of an environmental approval. On
occasion, an environmental approval will require that such information be available for
review by the public or be posted on the company website. Companies are required to
report emissions information annually to the federal government for the National
Pollutant Release Inventory (NPRI). Some provinces require parallel reporting of
emissions release information. Emissions reporting information is available to the
public.
27. Do companies have to report information to the regulators and the public
about environmental incidents (such as water pollution and soil contamination)?
Most environmental protection statutes in Canada contain mandatory provisions for
reporting of spills to the environmental regulators, and in some cases to the local
municipalities. Public reporting of environmental incidents is not a common
requirement.
28. What access powers do environmental regulators have to access a company?
Environmental regulators have very broad statutory powers of access. In addition,
permission for access is a common condition of environmental approvals in Canada.
Typically, an environmental inspector or investigator may, without warrant or court
order, and at any reasonable time:
Enter property.

Make excavations.

Take samples.

Conduct tests.

Examine and make copies of records.

Take photographs or video recordings.

Require production of documents or data.

Make reasonable enquiries.

If the purpose of the access is to investigate non-compliance for the purpose of

prosecuting, Canadian courts have restricted the powers of entry and it may be
necessary for the investigator to obtain a search warrant.

Environmental insurance
29. What types of insurance cover are available for environmental damage or
liability and what risks are usually covered? How easy is it to obtain
environmental insurance and is it common in practice?
Types of insurance and risk
Canadian insurers offer a range of products to cover environmental risks:
Pollution legal liability coverage is commonly available for new environmental
conditions, and may cover unknown pre-existing conditions.

Cost cap insurance for environmental remediation projects may be available, although
expensive and somewhat difficult to obtain.

Environmental consultants and remediation contractors can obtain pollution liability

insurance and errors and omissions coverage.

Directors' and officers' insurance may cover environmental risks.

Obtaining insurance
Pollution legal liability coverage is relatively easy to obtain. It is more difficult to
obtain some of the other forms of environmental insurance. The cost of premiums may
be prohibitive, and will typically include the cost incurred by the insurer to retain an
environmental consultant to investigate the risk.

Environmental tax
30. What are the main environmental taxes in your jurisdiction?
Environmental taxes are uncommon in Canada. The Province of British Columbia has
imposed a carbon tax.
Tax liability
British Columbia imposes a carbon tax on all consumers of fossil fuels, with some
exceptions for specified industries.
Tax rates
Rates for the British Columbia carbon tax vary by type of fuel. Current rates range from
2.94 cents to 11.01 cents per liter. The gasoline tax rate is presently 6.67 cents per liter.

Reform
31. What proposals are there for significant reform (changes) of environmental law in
your jurisdiction?
There are no pending proposals for significant environmental law reform at the federal level in
Canada. Most provinces are actively pursuing a variety of environmental law reform
initiatives, particularly in relation to climate change and product stewardship. The new
government in Alberta has announced its intention to enhance the GHG emissions control
regime, in response to international criticism of the carbon-intensive oil sands extraction
industry. In Ontario, the government has announced its intention to join with Qubec in a joint
cap and trade system, and is proceeding with amendments to the Waste Diversion Act, which
are expected to fundamentally change the product stewardship regime in Ontario.