Environmental Law in Canada
Constitutional Foundations
Environmental law in Canada operates within the constitutional division of powers, with no single level of government possessing exclusive jurisdiction over environmental matters. The Supreme Court of Canada confirmed in R v. Hydro-Québec, [1997] 3 SCR 213 that both Parliament and the provincial legislatures may validly enact environmental legislation under their respective heads of power. Federal environmental jurisdiction derives primarily from the criminal law power (s. 91(27)), the fisheries power (s. 91(12)), the peace, order, and good government (POGG) power (s. 91), and jurisdiction over sea coast and inland fisheries. Provincial environmental jurisdiction arises from property and civil rights (s. 92(13)), local works and undertakings (s. 92(10)), and ownership of natural resources (s. 92A).
This overlapping jurisdiction creates a complex regulatory landscape in which environmental protection statutes exist at both levels of government. The Supreme Court’s decision in Reference re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 affirmed that Parliament may legislate on matters of national concern under the POGG power where the subject matter has a definable scope and the failure of one province to act could have adverse effects on other provinces or the nation as a whole, as was found with respect to greenhouse gas emissions.
Federal Environmental Legislation
Canadian Environmental Protection Act
The Canadian Environmental Protection Act, 1999 (CEPA), SC 1999, c 33, is the cornerstone of federal environmental regulation. CEPA governs toxic substances management, including the assessment and control of existing and new substances, and regulates air and water pollution, waste management, and hazardous materials. The Act establishes the Domestic Substances List and requires the Minister of Environment to assess substances for toxicity under s. 64. Substances found to be “toxic” as defined in the Act may be subject to preventive or control measures, including regulations prohibiting or restricting their manufacture, import, use, or release.
CEPA also regulates greenhouse gas emissions from certain industrial sources, vehicle and engine emissions, and fuels. Significant amendments to CEPA, enacted through the Strengthening Environmental Protection for a Healthier Canada Act, SC 2023, c 12, introduced a right to a healthy environment, recognized the principle of environmental justice, and expanded the government’s authority to address cumulative effects, substitute chemicals, and regulate toxic substances more efficiently.
Fisheries Act
The Fisheries Act, RSC 1985, c F-14, contains the key prohibition against the harmful alteration, disruption, or destruction (HADD) of fish habitat under s. 35(1). This prohibition applies to any works, undertakings, or activities that could harm fish habitat unless authorized by the Minister of Fisheries and Oceans. The Act provides for authorizations (permitting projects that would otherwise contravene s. 35(1)) and offsets and compensation measures. The Fisheries Act was substantially amended in 2012 (limiting protections to commercial, recreational, and Aboriginal fisheries) and again in 2019 (restoring broad habitat protections, adding provisions on fish passage, and creating new prohibitions on causing death to fish).
Species at Risk Act
The Species at Risk Act (SARA), SC 2002, c 29, creates a federal framework for the protection of endangered and threatened species and their critical habitat. SARA establishes the Committee on the Status of Endangered Wildlife in Canada (COSEWIC), an independent scientific body that assesses species and assigns a status designation (extinct, extirpated, endangered, threatened, or of special concern). Once listed under SARA, species receive legal protection: absolute protection for individuals under ss. 32-33 (prohibiting killing, harming, harassing, possessing, or collecting listed species) and critical habitat protection under s. 58 (prohibiting destruction of habitat identified in a recovery strategy or action plan). SARA incorporates a safety net provision, allowing the federal government to act where a province has failed to adequately protect an endangered species. The Act also requires the preparation of recovery strategies and action plans for listed species.
Impact Assessment Act
The Impact Assessment Act (IAA), SC 2019, c 28, s 1, governs the federal environmental assessment (now “impact assessment”) of designated major projects. The IAA replaced the Canadian Environmental Assessment Act, 2012 and established the Impact Assessment Agency of Canada to conduct integrated assessments considering environmental, health, social, and economic factors. The Supreme Court’s ruling in Reference re Impact Assessment Act, 2023 SCC 23 found the original IAA partly unconstitutional for exceeding federal jurisdiction. The amendments introduced through the Budget Implementation Act, 2024 restricted the scope of designated projects and clarified the constitutional foundation for federal assessments, narrowing the definition of “effects within federal jurisdiction” to align with established heads of federal power.
Provincial Environmental Protection
Each province has enacted comprehensive environmental protection legislation. Ontario’s Environmental Protection Act (EPA), RSO 1990, c E.19, prohibits the discharge of pollutants into the natural environment that cause or are likely to cause an adverse effect. The EPA is administered by the Ministry of the Environment, Conservation and Parks and provides for abatement orders, control orders, environmental penalties, and prosecutions. Ontario also maintains the Ontario Water Resources Act and the Nutrient Management Act as part of its environmental framework.
British Columbia’s Environmental Management Act, SBC 2003, c 53, similarly prohibits the introduction of waste into the environment without a permit or approval. The Act empowers the minister to issue permits, approvals, and operational certificates, and establishes administrative penalties and offences for non-compliance. BC has also enacted the Environmental Assessment Act, SBC 2018, c 51, which governs the provincial assessment of major projects and includes mandatory timelines, Indigenous participation requirements, and consideration of cumulative effects.
Alberta’s Environmental Protection and Enhancement Act, RSA 2000, c E-12, provides a comprehensive framework for environmental regulation, including assessment, protection, and reclamation requirements. Alberta’s system is notable for its integrated regulatory approach under the Alberta Energy Regulator and the Alberta Environment and Parks, which coordinate environmental approvals with energy development authorizations.
Environmental Assessment Regimes
Environmental assessment (EA) in Canada operates at both federal and provincial levels. Federal EA is governed by the IAA, while each province has its own EA legislation. Assessments consider potential adverse environmental effects, including effects on biophysical components, human health, socio-economic conditions, and Indigenous rights. Under the IAA, assessments may be conducted by the Agency, a review panel (for more controversial or complex projects), or the Impact Assessment Agency in collaboration with other jurisdictions through substitution or equivalency agreements.
Provincial EA regimes vary significantly in scope and process. British Columbia’s Environmental Assessment Act requires assessment of reviewable projects as designated in the Reviewable Projects Regulation. Alberta’s Environmental Protection and Enhancement Act provides for mandatory EAs for major projects listed in the Schedule of Activities. Ontario’s EA regime operates under the Environmental Assessment Act, RSO 1990, c E.18, applying to public sector projects and designated private-sector undertakings. The trend across Canadian jurisdictions is toward early engagement, Indigenous participation, and cumulative effects assessment, though implementation remains inconsistent.
Indigenous Consultation and Environmental Decision-Making
Canadian environmental law operates within the constitutional framework of Aboriginal and treaty rights recognized and affirmed by s. 35 of the Constitution Act, 1982. The Crown has a duty to consult and accommodate Indigenous peoples when Crown conduct may adversely impact potential or established Aboriginal or treaty rights, as established in Haida Nation v. British Columbia (Minister of Forests), [2004] 3 SCR 511. This duty applies in environmental decision-making, including permitting, licensing, and project approvals.
The Federal Court of Appeal’s decision in Tsleil-Waututh Nation v. Canada (Attorney General), 2018 FCA 153 (the Trans Mountain case) set important precedents for the scope of the duty to consult in the environmental context. The Court held that the Crown’s consultation must be meaningful, with the depth of consultation proportionate to the strength of the claim and the severity of the potential impacts. The Court also emphasized that consultation must occur early in the decision-making process and that adequacy of consultation is a matter of procedural fairness reviewable on a reasonableness standard.
Carbon Pricing Framework
The federal greenhouse gas pollution pricing system, established by the Greenhouse Gas Pollution Pricing Act, SC 2018, c 12, s 186, provides a national backstop applicable in provinces that have not implemented carbon pricing meeting federal standards. The system includes a fuel charge applied to fossil fuels and an output-based pricing system (OBPS) for industrial emitters. The Supreme Court of Canada in Reference re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, upheld the Act as constitutional under the national concern branch of the POGG power, finding that minimum national standards of GHG price stringency are necessary to prevent carbon leakage and ensure collective action on climate change.
Provincial carbon pricing mechanisms include British Columbia’s revenue-neutral carbon tax (the first North American carbon tax, introduced in 2008), Quebec’s cap-and-trade system linked with California under the Western Climate Initiative, and Nova Scotia’s regulatory system for large emitters. The federal backstop applies in Alberta, Saskatchewan, Manitoba, Ontario, New Brunswick, Nova Scotia, Prince Edward Island, and the Yukon and Nunavut territories in varying combinations of the fuel charge and OBPS.
Net-Zero Emissions Accountability
The Canadian Net-Zero Emissions Accountability Act, SC 2021, c 22, establishes Canada’s commitment to achieving net-zero greenhouse gas emissions by 2050. The Act requires the Minister of Environment and Climate Change to establish national emissions reduction targets for 2030, 2035, 2040, and 2045, each at least as stringent as the preceding target. The government must publish emissions reduction plans describing the measures to achieve each target, progress reports every two years, and assessment reports after each target year. The Act creates the Net-Zero Advisory Body to provide independent expert advice and requires the Commissioner of the Environment and Sustainable Development, an officer of the Office of the Auditor General of Canada, to examine and report on the government’s implementation of emissions reduction measures.
Role of the Commissioner of the Environment and Sustainable Development
The Commissioner of the Environment and Sustainable Development (CESD) is a senior official within the Office of the Auditor General of Canada, responsible for providing objective, independent analysis and recommendations on the federal government’s management of environmental and sustainable development issues. The CESD conducts performance audits of federal environmental programs, including climate change mitigation, species protection, water quality management, and environmental assessment. The Commissioner also reviews the government’s progress against its Federal Sustainable Development Strategy and provides Parliament with regular reporting on environmental matters. While the CESD holds no enforcement authority, the office’s audit findings have significant influence on environmental policy and regulatory practice in Canada.
Enforcement and Compliance
Environmental enforcement in Canada is achieved through a range of tools including prosecution for offences, administrative monetary penalties, environmental protection orders, and director’s orders directing compliance. Federal enforcement is carried out by enforcement officers under CEPA, the Fisheries Act, and SARA, with investigative powers including entry, inspection, search, seizure, and the requirement to provide information. Both federal and provincial environmental statutes typically create strict liability offences (where the Crown must prove the actus reus but the accused may raise a defence of due diligence) and absolute liability offences in limited circumstances.
Public participation in environmental enforcement is facilitated through citizen suit provisions in some statutes and the availability of private prosecutions at common law. The Environmental Damages Fund, administered by Environment and Climate Change Canada, directs court-ordered penalties toward environmental remediation and restoration projects.