While Canada has been at the forefront of economic development, it does so while not disregarding its careful protection of the environment.
This can be seen through the country’s vast environmental laws and regulatory framework. At the forefront of these laws is the Canadian Environmental Protection Act, 1999.
What is the Environmental Protection Act in Canada?
There are many environmental protection laws that were enacted in Canada at the federal, provincial, and territorial levels.
It is acknowledged that environmental protection is a shared responsibility among these levels of government.
These different laws may pertain to certain areas of environmental protection (land, air, sea), or regulating a particular activity that may disrupt the environment.
At the federal level, the central law that binds them together is the Canadian Environmental Protection Act, 1999 (called CEPA 1999 for short).
Canadian Environmental Protection Act, 1999
Lana Finney, an environmental lawyer and a Partner at Blake, Cassels & Graydon LLP, provided some insights on what is CEPA 1999 all about.
"In Canada, the protection of the natural environment is regulated at both the federal and provincial levels. CEPA is the federal environmental protection act, which governs a variety of environmental matters within the jurisdiction of the federal government, including air and water pollution, toxic substances, and environmental emergencies," says Finney.
Bill S-5, or the Strengthening Environmental Protection for a Healthier Canada Act, received royal assent last June 13, 2023. This Bill has amended certain provisions of CEPA 1999.
Learn more about the Canadian Environmental Protection Act, 1999 by consulting a lawyer in your area. If you’re in Montréal, contact one of the best environmental lawyers in Québec as ranked by Lexpert.
Principles under the CEPA 1999
In its Declaration, the CEPA 1999 set up certain guiding principles to be followed by the government and by those covered by this Act.
Some of these key principles are:
- Pollution prevention: shifts the focus from management to prevention as the current approach to pollution
- Virtual elimination: reducing the release of persistent, bioaccumulative, and toxic substances to a point where it is almost immeasurable
- Precautionary principle: if there are threats of environmental damage, cost-effective measures to prevent environmental degradation must not be postponed just because of a lack of scientific certainty
- “Polluter pays” principle: companies and individuals that use and produce pollutants will be liable in case of environmental damage
Toxic substances list
CEPA 1999 maintains a list of toxic substances, which are subject to a stricter regulation as to their production, release, and importation or exportation.
Existing and new substances are categorized whether they are considered “toxic” under the definition of CEPA 1999.
To elaborate more on these, there are four types of lists under CEPA 1999:
- Domestic Substances List: existing and new substances or chemicals that can be manufactured and imported to Canada in a limited quantity
- Priority Substances List: new substances or chemicals that require a more prioritized and in-depth risk assessment to determine whether it’s toxic or not
- List of Toxic Substances: substances or chemicals listed under Schedule 1 that met CEPA’s criteria as “toxic” after its risk assessment when it was in the Priority Substances List
- Virtual Elimination List: substances or chemicals that can be released into the environment according to its prescribed quantity or substance concentration
Substances not found in these lists are prohibited from being imported to or produced in Canada, unless they have been assessed by the government.
These lists are also helpful in the enforcement of CEPA 1999, as discussed further below.
Other laws related to environmental protection
Aside from the Canadian Environmental Protection Act, 1999, there are other federal laws in Canada that also addresses environmental and human health protection.
Some of these laws include:
- Fisheries Act
- Canada Water Act
- Species at Risk Act
- Canada Wildlife Act
- Impact Assessment Act
- Migratory Birds Convention Act, 1994
- Canadian Environmental Assessment Act
- Transportation of Dangerous Goods Act, 1992
These laws complement CEPA 1999 and do not run counter to it. This also means that individuals and entities covered by CEPA 1999 may also be governed by these other laws.
For example, mining companies do not only follow the country’s mining laws, but also the laws on environmental compliance.
All these federal laws related to environmental protection are in addition to the laws enacted by the provinces and territories.
What agencies administer the CEPA 1999?
The Canadian Environmental Protection Act, 1999 is administered by:
- Minister of the Environment, or Environment and Climate Change Canada
- Minister of Health, or Health Canada
What are the provisions on enforcement of CEPA 1999?
CEPA 1999 has empowered authorities to act against violators by outlining investigation procedures and their prosecution.
Finney highlighted some of the important provisions of CEPA 1999. She said that one of the aspects of CEPA that has recently been before the courts, and has received a lot of press coverage as a result, is the provisions governing toxic substances and, in particular, plastic pollution.
"Regulations under CEPA also place limits on the amount of chemicals certain industries can discharge into air and water (for example, pulp and paper mills and dry cleaning). CEPA also regulates the content of gasoline and other fuels, and the emissions from engines," Finney added.
The enforcement of CEPA 1999 is done under the following regulatory framework:
Risk assessment
Screening level risk assessments are a series of procedures to be followed to figure out whether a matter is “toxic” under the criteria of CEPA 1999.
Assessments can be done by Health Canada or Environment and Climate Change Canada. If a substance or chemical is listed under the Priority Substances List, other assessments can be done to see if it’s toxic and must be listed under the List of Toxic Substances.
Inspections and investigations
CEPA 1999 empowers government officials to conduct inspections and investigations in carrying out its provisions on enforcement. There are two designated officials for this:
Enforcement Officers:
These officers have all the powers of a peace officer, such as:
- entering premises
- opening any receptacle or package
- examining books and documents
- seizing evidence found in premises
- stopping and detaining a vehicle or ship to investigate
- using enforcement tools
Analysts:
They go with enforcement officers in their investigations; they can be a chemist, biologist, engineer, forensic accountant or laboratory personnel.
Are there penalties under the Canadian Environmental Protection Act?
CEPA 1999 outlines both civil and criminal liabilities to those who violate the Act. Finney provided a summary of these liabilities, as found in Part 10 of the Act.
"For certain more serious offences, the penalties for individuals on a first conviction range from a fine of no less than C$15,000 and not more than C$1-million or imprisonment for up to three years or both. For corporations, other than small revenue corporations as defined in the act, where convicted of a more serious offence, fines start at C$500,000 and go up to a maximum of C$6-million for a first offence. These penalties increase for subsequent convictions."
She also said that historically, the maximum fines were rarely levied. However, with the passage of time, fines have been increasing against these violators.
Courts can also order the violator to make more payments to solve the damage to the environment. Any profit they earned because of the offense may also be forfeited by the court.
If the violator is a corporation, its officers can also be held liable if they have authorized, accepted, or participated in any act that violates CEPA 1999.
Know more on how to comply with the Environmental Protection Act by hiring one of the Lexpert-Ranked best environmental lawyers in Canada.