IN THE COURTS

• “Deleterious Substance” Conviction Under Federal Fisheries Act Requires Different Proof than “Impairing Water” Offence Under Ontario Water Resources Act, Ontario Court of Appeal Rules


FEDERAL LEGISLATION & REGULATORY NEWS

• Draft Guideline Released for Public Participation in Canadian Environmental Assessment Act Screenings
• Off-Road Diesel Engine Emission Regulations


PROVINCIAL/TERRITORIAL LEGISLATION AND REGULATORY NEWS

• QUÉBEC
  • Amendments Tabled to the Environment Quality Act
  • Québec and Canada Enter into Agreement on Environmental Assessment Cooperation
• ONTARIO
  • Further “Brownfields” Laws in Effect October 1, 2004
  • Ontario Blue Box Regulations Under Consideration
  • New Ontario Regulations for Certification of Drinking Water Systems and Operators; Proposed Changes re Small Drinking Water Systems
  • Ontario Greenbelt Task Force Discussion Paper Released
  • Ontario Air Quality Report Released
  
  
  WHAT'S NEW
  
• Environmental Bill of Rights Law Reform Workshop


GOWLINGS SPEAKING ENGAGEMENTS

• Joint Meeting of the Auditing Roundtable and the Canadian Environmental Auditing Association
• Inter-American Seminar on Environmental Law

IN THE COURTS

“DELETERIOUS SUBSTANCE” CONVICTION UNDER FEDERAL FISHERIES ACT REQUIRES DIFFERENT PROOF THAN “IMPAIRING WATER” OFFENCE UNDER ONTARIO WATER RESOURCES ACT, ONTARIO COURT OF APPEAL RULES

A conviction under ss. 36(3) of the federal Fisheries Act for depositing a deleterious substance does not require proof the receiving waters are deleterious to fish.

In reversing an acquittal and restoring a conviction of the City of Kingston for allowing the leakage of leachate from an old dump into the Cataraqui River, the Ontario Court of Appeal ruled:

…a substance is deleterious if, when added to any water, it would alter the quality of the water such that it is likely to render the water deleterious to fish, fish habitat or to the use by man of fish that frequent the water. There is no stipulation…that the substance must be proven to be deleterious to the receiving water….On the contrary, the language makes it clear that the substance is deleterious if, when added to any water, it degrades or alters the quality of the water to which it has been added.

The Court agreed with a previous B.C. Court of Appeal decision which held that “what is being defined is the substance that is added to the water, rather than the water after the addition of the substance.”

The Court continued:

A deleterious substance does not have to render the water into which it is introduced poisonness or harmful to fish; it need only be likely to render the water deleterious to fish. The actus reus is a deposit of a deleterious substance into water frequented by fish. There was no requirement in ss. 36(3) or paragraph (a) of the definition of the term “deleterious substance” in ss. 34(1), of proof that the receiving waters are deleterious to fish.

The Court also clarified that its 2001 decision in R. v. Inco Ltd. establishing a “two-tier” test for a conviction under ss. 30(1) of the Ontario Water Resources Act is not applicable to a prosecution under the Fisheries Act.

In Kingston ammonia was the main leachate toxicant. Ammonia is a naturally occurring substance that can be beneficial and which dissipates quickly in water. Based on Inco, it was argued that although the Crown did not have to prove actual harm or damage to fish or fish habitat when the substance was inherently toxic but, where it is not inherently toxic, such as ammonia, the Crown must prove the substance is deleterious at the point it entered the receiving environment, and this required consideration of the quality, quantity and concentration of material as discharged.

The Court rejected this argument, as well as the submission that the test under ss. 36(3) of the Fisheries Act is the same as under section 30(1) of the OWRA and that the trial judge should have therefore made a finding of fact as to whether the leachate was inherently toxic.

As the Court put it here:

Site-specific impairment is not a necessary ingredient of the offence under ss. 36(3). Although the second step of the test formulated by this Court in Inco relates to substances that are not inherently toxic, the test does not apply to prosecutions under ss.36(3). It applies to prosecutions taken under ss. 30(1) of the OWRA, a provision that does focus on impairment of the quality of the receiving water. It may be that one method of proving that a substance, when added to water, renders that water deleterious to fish is through an examination of the nature of the substance and the quantities and concentrations in which it was discharged. However, that does not make such considerations a necessary component of the offence under ss. 36(3); rather, it provides a possible form of proof. Accordingly, in my view, ss.36(3) and 34(1) cannot be taken as requiring the Crown to prove the nature of the allegedly deleterious substance. The prohibition of ss. 36(3) is against the deposit of a deleterious substance ‘of any type.’ What must be proven is that the substance, whatever it might be, is deleterious within the meaning of paragraph (a) of the definition of that term in ss. 34(1). In this case, it meant that the prosecution had to prove that the leachate, when added to any water, was likely to render the water deleterious to fish or fish habitat… it did not have to prove which component of the leachate was responsible for the degradation or alteration of the quality of the water… Nor was it obliged to show that fish living in the vicinity of the sea were harmed. It was required only to prove the elements of the offence as set out above.

In the result the Court upheld the conviction of the City in Fisheries Act charges brought by the Ontario Ministry of the Environment. However, it allowed an appeal against conviction of the City based on privately laid charges, the proof of which had been based on analysis of the leachate toxicity on samples at 100% concentration i.e. leachate samples which had not been added to water. The Court found that the trial judge did not directly address the question of whether the the privately taken samples, if added to water, would have altered the quality of the water thereby rending it deleterious to fish; that the evidence on that point was unclear; and that on the record before the Court it could not be concluded beyond a reasonable doubt that, had the these leachate samples been added to water, the water would have been rendered deleterious to fish.

The May 12, 2004 decision in R v. Kingston (City) is cited as [2004] O.J. No. 1940

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FEDERAL LEGISLATION & REGULATORY NEWS

DRAFT GUIDELINE RELEASED FOR PUBLIC PARTICIPATION IN CANADIAN ENVIRONMENTAL ASSESSMENT ACT SCREENINGS

A ministerial draft guideline on assessing the need for and level of public participation in screening-level environmental assessments under the Canadian Environmental Assessment Act was released April 30, 2004. Once finalized, the guideline would be issued under ss. 58(1)(a) of the Act which authorizes issuance of Ministerial guidelines respecting application of the Act and regulations. The guideline is intended to apply to all screenings under s. 18 of the Act except those for which a model screening report is used.

The guideline states that any body that has to conduct a screening pursuant to CEAA “should consider this guideline when making a determination as to whether or not public participation in a screening is appropriate in the circumstances.”

Criteria for determining when public participation is appropriate are provided. The criteria include: existing or likely public interest in the project; potential to generate conflict between environmental, social or economic values; perception of the project having potential for significant adverse environmental effects; those who are interested have a history of being involved; potential to learn from community or Aboriginal knowledge and thereby improve the assessment and the project; uncertainty about potential direct and indirect environmental effects; and whether here have been or will be other public participation processes of appropriate scope and coverage meeting the intent of this guideline.

The guideline states that “the public should have an opportunity to have a say in decisions that affect their lives through a meaningful public participation process.” Eight key elements of “meaningful public participation” are prescribed, including early notification, access to information, information sharing, opportunity to evaluate information and respond, interactive participation and consideration of the public comment in decision-making, including information and rationale on whether or how the public input affected the decision.

Further information can be found on the CEAA Agency Web site:
www.ceaa-acee.gc.ca/013/008/pn040430_e.htm

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Off-Road Diesel Engine Emission Regulations

New standards for diesel engines used in off-road applications such as those typically found in construction, mining, farming and forestry machinery have been proposed in draft regulations under the Canadian Environmental Protection Act, 1999. The proposed regulations would apply to engines of 2006 and later model years, and would affect persons manufacturing, distributing or importing for sale in Canada off-road diesel engines and machines, and to persons who import these for their own use. A 60 day comment period ends July 10, 2004.

Further information is found at
www.ec.gc.ca/CEPARegistry/regulations/DetailReg.cfm

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PROVINCIAL/TERRITORIAL LEGISLATION AND REGULATORY NEWS

QUÉBEC

AMENDMENTS TABLED TO THE ENVIRONMENT QUALITY ACT

Bill 44, given first reading in April, 2004, will introduce the following changes to the Québec Environmental Quality Act:

• The Environment Minister will have broader power to make regulations requiring information from any person or municipality "in order to ensure ongoing supervision of the quality of the environment or to ensure, in the area of environmental protection, compliance with an international commitment made in accordance with the applicable legislative provisions or implementation of a Canadian intergovernmental agreement." Relevant information includes the presence, emission, issuance or discharge of contaminants, including their origin, composition, concentration or receiving environment, as well as parameters to be used to evaluate or measure them.
• Regulations may be made determining fees payable by the holder of an authorization, approval, certificate, permit or other permission to cover the costs of control, monitoring and inspections and document review. The fees can vary with the nature of the activities and facility characteristics, as well as based on the number of offences of which the holder has been found guilty and the nature and seriousness of those offences.
• Changes to the English wording of s. 31.53 found in the Land Protection and Rehabilitation Division of the EQA will clarify that the obligation to carry out a site charactertization study and, in an appropriate case, requiring approval for a rehabilitation plan, will apply to any person intending to change the use of land contemplated by this section not only where an industrial or commercial activity of a category designated by regulation was on-going at the time of the change but where such an activity “has been carried on.”

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QUÉBEC AND CANADA ENTER INTO AGREEMENT ON ENVIRONMENTAL ASSESSMENT COOPERATION

The Canada - Québec Agreement on Environmental Assessment Cooperation was signed May 14, 2004. The agreement, which has a five year term, contemplates that the two governments will notify each other in a timely manner about projects potentially subject to a cooperative environmental assessment (EA) and provide mutual access to relevant information. The agreement sets out procedures which can be used for the cooperative environmental assessment of projects subject to both federal and Québec EA requirements, including the establishment of joint panel reviews. The cooperative procedures will only take effect, however, when both governments agree to use them. Even then, the agreement will not apply to areas of the province subject to the James Bay and Northern Québec Agreement Act or to agreements with other Aboriginal communities or nations for which an EA procedure is specified.

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ONTARIO

FURTHER “BROWNFIELDS” LAWS IN EFFECT OCTOBER 1, 2004

The Record of Site Condition (“RSC”) provisions of the “Brownfields” amendments to the Environmental Protection Act will come into force October 1, 2004. The regulatory prerequisites for operation of the RSC system will come into force between the present and October 1, 2004. The RSC provisions will permit owners of property to gain an exemption from potential MOE remediation orders for themselves (as well as subsequent owners and certain others) when they file an RSC on a public registry (the Environmental Site Registry), and the RSC has been acknowledged by the Ministry of the Environment. RSCs must contain the certification by a “qualified person” that environmental site assessments have been completed at the property and that the soil and groundwater at the property meets prescribed site condition standards. The definitions of “qualified person,” the contents of the RSC and Phase I and II ESAs and the prescribed site condition standards are all to be defined by the new regulation. Only the provision of the Brownfields amendments prohibiting certain changes property use without an RSC have yet to receive a proclamation date. See Chapter 1 of David Estrin's book, Business Guide To Environmental Law (Carswell) for an in-depth discussion of the “Brownfields” amendments.

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ONTARIO BLUE BOX REGULATIONS UNDER CONSIDERATION

Proposed new measures and enhancements to Waste Diversion Ontario's Blue Box Program Plan are available for comment on the EBR Registry until June 20, 2004. These deal with policies and practices to ensure that administrative costs incurred by Waste Diversion Ontario and Stewardship Ontario are no more than 5% of the total program costs and also provide a projected schedule of stewards' fees.

The relevant Web site is:
www.ene.gov.on.ca/envision/land/wda/index.htm.

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NEW ONTARIO REGULATIONS FOR CERTIFICATION OF DRINKING WATER SYSTEMS AND OPERATORS; PROPOSED CHANGES RE SMALL DRINKING WATER SYSTEMS

New Ontario Regulations 126, 127, 128 and 129/04 under the Safe Drinking Water Act, 2002 were recently made, providing for certification of drinking water systems, operators and water quality analysts. They replace sections of Ontario Regulations 435/93 and contain requirements in the following general areas: grandparented operators to be recertified; training clearly defined; re-certification of operators every three years; annual hours of training; entry level requirements; and fees. An explanatory note and linkages to Web sites can be found by referencing the EBR Registry No. RA03E0027 (www.ene.gov.on.ca/envregistry.020889er.htm).

Also, on May 12, 2004 proposed amendments to Ontario Regulation 170/03 dealing with drinking water systems were released for public comment. The proposed amendments would help address concerns of municipal and rural stakeholders with regard to the cost, burden and appropriateness of regulatory requirements on small drinking water systems. They would clarify that the definition of food premises does not include systems not serving water to the public and food manufacturers. They also change the sequence of corrective actions for some adverse test results to better provide for immediate correction of the problem. Also, the immediate amendments (deadline extensions, sign posting allowance) will give the Ministry an opportunity to consult on workable solutions. The notice under the EBR Registry is No.RA04E0004. The entire submission can be found at www.ene.gov.on.ca/envregistry/022851er.htm.

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ONTARIO GREENBELT TASK FORCE DISCUSSION PAPER RELEASED

The Ontario Greenbelt Task Force recently released a discussion paper outlining issues and proposed approaches that will be considered in the implementation of the Greenbelt Protection Act 2004. Public comments are being accepted prior to July 13, 2004.

The Greenbelt Protection Act 2004, if passed, would create a greenbelt study area within the Golden Horseshoe, impose a one-year moratorium on new urban development on rural and agricultural lands within this area, and clarify the transition provisions on development applications relating to the Oak Ridges Moraine Conservation Act, 2001.

Further information and relevant websites can be found under EBR Registry No. PF04E0002 (www.ene.gov.on.ca/envregistry/023041ep.htm).

Also on May 4th the Minister of Municipal Affairs proposed amendments to the Minister's Zoning Order which imposed a 12-month moratorium on the Greenbelt Study Area. Amendments to the Zoning Order clarify it does not prohibit a minor variance authorization made under section 45 of the Planning Act from taking effect; does not prevent the removal of a holding symbol and a zoning by-law; does not prevent the extension of a zoning by-law authorizing a temporary use; and that the definition of “urban settlement area” will be more reflective of the affected local and regional Official Plan designations in the Zoning Order area.

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ONTARIO AIR QUALITY REPORT RELEASED

The Ontario Ministry of the Environment released its report “Air Quality in Ontario 2002” on May 21, 2004. The report summarizes 2002 findings and integrates these into a report covering 32 years of province-wide air quality. Chapters deal with ground level ozone, fine particulate matter, other criteria contaminants, smog alerts and air toxics, including selected VOCs. Various graphs and illustrations help provide a quick overview of the status and trends in Ontario air quality.

The report is available at www.ene.gov.on.ca/air.htm

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WHAT'S NEW

ENVIRONMENTAL BILL OF RIGHTS LAW REFORM WORKSHOP

David Estrin and Jennifer Mesquita recently authored a paper commissioned by the Environmental Commissioner of Ontario (ECO) “Statements of Environmental Values Under Ontario's Environmental Bill of Rights: Missed Opportunities and Options for Reform.” David and Jennifer will lead a discussion of their paper at the Environmental Bill of Rights Law Reform Workshop June 16, 2004 at the University of Toronto Faculty Club. Copies of the paper may be obtained from the ECO or by contacting the authors.

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 GOWLINGS SPEAKING ENGAGEMENTS

JOINT MEETING OF THE AUDITING ROUNDTABLE AND THE CANADIAN ENVIRONMENTAL AUDITING ASSOCIATION

David Estrin was a panelist on “The Impact of Globalization on the Practice of Corporate Environmental Law” in Montréalon May 19, 2004 at the Joint Meeting of the Auditing Roundtable and the Canadian Environmental Auditing Association.

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INTER-AMERICAN SEMINAR ON ENVIRONMENTAL LAW

Jennifer Mesquita provided an update on Ontario's actions on drinking water safety and source water protection at the Environmental Law Seminar of the Interamerican Network of Environmental Law Specialists, or Red Interamericana de Especialistas en Legislacíon Ambiental in Asuncíon, Paraguay. Participants heard from environmental law specialists from across the Americas on topics ranging from forest management and agricultural policy to environmentally-friendly methods of oil pipeline construction, along with presentations from local business leaders, government officials, and international lending institutions active in Paraguay. Participants also heard from Gowlings' Mark Madras who provided an update on Canada's implementation of climate change plans and projects.

Jennifer reports that Brazil already has in place the type of local consultation and management of drinking water resources currently proposed by Ontario's Ministry of the Environment in the White Paper on Watershed-Based Source Water Protection. Also noteworthy in relation to water management were the multinational efforts described by several speakers to put in place a legal regime to protect the Guarani Aquifer, with the help of the Global Environmental Facility. The aquifer is a shared resource of the Mercosur countries, occupying 840,000 km2 in Brazil, 225,000 km2 in Argetina, 52,000 km2 in Paraguay and 45,000 km2 in Uruguay.

Future seminars have been tentatively scheduled for both Miami and Mexico, in 2005. If you wish any additional information on the Seminar or on RIELA, please contact Jennifer Mesquita at (416) 369-7290.

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