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WHAT'S NEW IN THE COURTS WHAT'S HAPPENING FEDERALBUDGET 2005 The Government of Canada's Budget 2005 was introduced by Minister of Finance Ralph Goodale in the House of Commons on February 23, 2005. A significant component of the Budget is directed to programs to implement the government's vision of an environmentally sustainable economy for Canada. The Budget includes a $5 billion five year envelope for environmental sustainability programs. The major program components of the allocation are:
To address Climate Change the Budget provides:
Budget 2005 increases the capital cost allowance to 50% from 30% for certain equipment that enhances energy efficiency or produces energy from renewable resources. The list of eligible equipment includes, among others: cogeneration equipment, wind turbines, small hydroelectric facilities and NGO thermal energy systems. The government also commits to consulting on other opportunities to use the tax system to further environmental objectives. Budget 2005 also commits significant funds to a number of infrastructure related investments, including $300 million for Green Municipal Funds, $150 million of which will be used to help communities clean-up and redevelop brownfields, and the equivalent of $5 billion over five years out of federal gas tax revenues to municipalities for infrastructure projects like transit, water and community energy systems. As well, Budget 2005 allocates funds for environmental protection, including funding for Canada's National Park System, the protection of the Great Lakes and Oceans, as well as further resources to conduct health assessments and research with respect to toxic substances. For more information see: www.fin.gc.ca. KYOTO IMPLEMENTATIONThe global challenge of Climate Change remains a national priority for Canada. Working to achieve our Kyoto commitments is seen by the government as a path to a better quality of life as well as opening prospects for new economic opportunities for Canada. The government maintains that Canada's Kyoto programs will establish the country as a global leader in the field of environmental technology, developing a global competitive advantage while becoming a more innovative economy. In a speech delivered at Carleton University in Ottawa on February 15, 2005, Stéphane Dion, Canada's Minister of the Environment, presented this vision of the country as it strives to achieve its Kyoto obligations:
The Government of Canada has indicated that a refinement to Canada's 2002 Climate Change Plan will be released shortly. Since the release of the 2002 Plan, Canada's greenhouse gas emissions have continued to rise and the country is straying further from its objective to achieve for the period 2008 to 2012 a 6% reduction in the volume of emissions from 1990 levels. The refined plan is to set targets for industry for GHG reductions. Canada will use the emissions trading mechanisms provided for in the Kyoto Protocol, with international linkages. Budget 2005 committed the government to a mandatory emissions reduction regime and emissions trading system, including the related legal framework, for “Large Final Emitters.” The regime is to have four main characteristics:
For more information see: www.ec.gc.ca and www.fin.gc.ca. CANADA TO HOST COP 11 On February 16, 2005, the day of entry into force of the Kyoto Protocol, Prime Minister Paul Martin announced that Canada will host the 11th Conference of the Parties to the United Nations' Framework Convention on Climate Change. The Convention will be held in Montréal from November 28, to December 9, 2005. Environment Minister, Stéphane Dion, will chair CoP 11. Minister Dion has said in relation to the announcement:
An objective of Canada going into CoP 11 is to develop a post-2012 international regime inclusive of the United States, and to set targets for emerging, developing nations such as China and India. The Montréal conference is expected to be attended by more than 10,000 delegates, media and observers from around the world. For more information see: www.climatechange.gc.ca. NATIONAL ROUNDTABLE ON THE ENVIRONMENT AND THE ECONOMY (“NRTEE”) Continuing with the Kyoto theme, the Government of Canada has requested the NRTEE to provide advice and recommendations on the development of a long term energy and climate change strategy for Canada. Specifically, the Prime Minister has asked the NRTEE to advise on:
The Prime Minister is also requesting that the NRTEE develop advice on a long term strategic energy and Climate Change policy for Canada. For more information see: www.nrtee-trnee.ca/eng/index_e.htm. WHAT'S NEW AT CCME The Canadian Council of Ministers of the Environment (“CCME”) has announced that in 2005 it will review the Petroleum Hydrocarbons' Canada-wide Standard (“PHC CSW”). The review will occur throughout the next one and a half years. The Ministers will receive the draft reviewed and revised Standard in November 2006. The first phase of the review is currently underway. Comments relevant to the present information gathering and priority setting process are invited to be delivered by March 31, 2005. This phase will be followed by Technical Development Work (April 2005 — October 2005), Review of Draft Documents (November 2005 — May 2006) and finally the CCME Approval Process (July 2006 — November 2006). For further information see: www.ccme.ca/initiatives/standards.html. ENVIRONMENT CANADA — EXISTING SUBSTANCES EVALUATIONS Environment Canada has announced that it has completed the ecological science assessment of releases of radionuclides from nuclear facilities (impact on non-human biota). Its assessments conclude that the release of uranium and uranium compounds contained in effluent from uranium mines and mills are entering the environment in quantities or concentrations that may have a harmful effect on the environment and its biological diversity. Final Ministerial recommendations will be announced at a later date. With respect to 3,5-Dimethylaniline (“3,5-DMA”) and Bis(2-chloroethyl) ether, both substances had been listed on the first Priority Substances List (“PSL 1”), and in both cases it was determined that there was insufficient information to establish whether the substances constituted a danger in Canada to human life or health. For both substances Health Canada reviewed new and existing information and released a draft follow-up report in October 2002. The final report concludes that the evaluation of the exposure potential as well as the potential effects on human health and environment will be performed prior to the importation or manufacture of the substances when additional notifications under the New Substances Notification Regulations are submitted. For further information see: www.ec.gc.ca/substances/ese/eng/psap. CANADIAN NUCLEAR SAFETY COMMISSION (“CNSC”) The CNSC has issued for public review and comment a list of twenty-six proposed regulatory documents. The list sets out the purpose and scope for each of the documents. Interested persons are invited to assist in the further development of the draft list by delivering written comments by April 22, 2005. The CNSC will take the comments into account as the list undergoes further development. All comments received will be publicly available upon request. To review the document see:
PEST MANAGEMENT REGULATORY AGENCY (“PMRA”) PMRA has released an Information Note dated February 9, 2005, in which it describes its re-evaluation program in place to determine whether currently registered pesticides remain acceptable for use. The current focus of the program is the re-evaluation of all products that were registered before January 1, 1995. The onus is on the manufacturers of these products to demonstrate that their products meet the latest health and environmental risk assessment standards. The Information Note advises that Canada's re-evaluation program relies strongly on reviews available from the United States Environmental Protection Agency. The PMRA intends to complete its re-evaluation of 401 targeted active ingredients within the same timeframe as United States Environmental Protection Agency (2000 — 2006 for food uses, 2008 — 2009 for non-food uses). The Information Note, and the PMRA Re-evaluation Program Work Plan (April 2004 to June 2005) may be obtained at
CANADIAN ENVIRONMENTAL ASSESSMENT AGENCY (“CEAA”) CEAA has issued a Status Report regarding the Implementation of Crown Corporations' Obligations under the Canadian Environmental Protection Act. Effective June 21, 2006, federal parent Crown Corporations will be required to comply with the Canadian Environmental Assessment Act. Compliance will be achieved either by direct compliance with the Act or by a modified environmental assessment process which will be set out in new regulations. The Agency has conducted background research into the operations and business lines of federal parent Crown Corporations. Its Status Report presents the results of this research. It has concluded that 37 of the 41 parent Crown Corporations would best comply directly the following with the Act, beginning in 2005. However, research and discussions are ongoing with four Crown Corporations which may require a regulatory variation to the Act: Atomic Energy of Canada Limited, Business Development Bank of Canada, Canadian Commercial Corporation and Farm Credit Canada. The Agency is now inviting the public to comment on its report. The Agency will also consult the public on regulatory proposals and implementation frameworks for those Crown Corporations requiring a modified environmental assessment process under the Act. The consultations are expected to commence in early 2005. Written comments to the Status Report are invited to be submitted by March 31, 2005, to the Agency. For more information see: www.ceaa-acee.gc.ca. NEWS FROM THE PROVINCESBRITISH COLUMBIACOMMUNITY WATER IMPROVEMENT PROGRAM British Columbia has announced the creation of the B.C. Community Water Improvement Program. $80 million has been allocated to the program to assure safe, reliable and accessible drinking water and improved wastewater systems in the province. Through the program the provincial government will provide two-thirds of the cost of projects to improve drinking water and wastewater management. Local governments will provide one-third of the funding. Investments will run from 2005 to 2010. For more information see: www.gov.bc.ca. ONTARIOPROTOCOLS FOR UPDATING CERTIFICATES OF APPROVAL Ontario has released a set of Protocols for Updating Certificates of Approval for Waste Management Systems, Sewage Works, Air Emissions and Drinking-Water Systems. Each Protocol addresses the updating process to be followed by the applicant and the Ministry of the Environment as well as the assessment criteria to be applied to the applications by the Ministry. The Protocols follow on the recommendations of the Provincial Auditor and the Environmental Commissioner. They are intended to promote consistency in the approvals process and ensure transparency and accountability, communicating to proponents in the regulated community and to the public the Ministry's objectives and processes for updating Certificates of Approvals. The Protocols may be found at the Ministry of the Environment's Web site:
ONTARIO'S INDUSTRY EMISSIONS REDUCTION PLAN: PROPOSALS FOR A NITROGEN OXIDES (“NOX”) AND SULPHUR DIOXIDE (“SO2”) REGULATION The Ontario Ministry of the Environment is proposing a draft Regulation for limitations to industrial emissions of nitrogen oxides and sulphur dioxide. The Industry Emission Reduction Plan would establish NOx and SO2 industry sector emissions caps for 2006, 2007 — 2009, 2010 — 2014 and 2015 and onward. The proposal builds upon the current emissions reduction trading system created as part of the Regulations limiting the emissions from the electricity sector. The draft Regulation establishes the maximum number of allowances that will be allocated to seven industrial sectors and how the caps are divided into allocations for the facilities in the seven industrial sectors, as well as a New Source Set Aside for new sources and expansions. The draft Regulation also establishes the details for the methods and systems for allocating allowances for individual facilities within each sector, as well as rules for emissions trading by facilities. Also proposed are rules for reductions in allowances for facilities that reduce or close production. Continuous Emission Monitors (“CEMs”) are proposed to be required for large emitters. For more information see:
QUÉBECRE-NAMED MINISTRIES Following the latest cabinet shuffle by Premier Jean Charest, the Ministry of the Environment has by Order in Council 123-2005 of 18 February 2005 been re-named the “Ministère du Développement Durable et des Parcs” (Ministry of Sustainable Development and Parks) and the Ministry of Natural Resources, Wildlife and Parks has by Order in Council 124-2005 of the same date been re-named the “Ministère des Resources Naturelles et de la Faune” (Ministry of Natural Resources and Wildlife). NEWS FROM SOUTH AMERICABIODIESEL USE IN BRAZIL BECOMES MANDATORY On January 18, 2005, Brazil introduced a federal law requiring the addition of 2% biodiesel content into all diesel marketed by fuel distributors throughout the country (Law No. 11,097 of January 13, 2005, as published in the Federal Official Gazette). In 2013, the biodiesel content must increase to 5%. The regulation will be administered by the Brazilian Oil Agency, which will be re-named the Brazilian Oil, Natural Gas and Biofuels Agency, in light of its new mandate. SUPPORT FOR BIODIESEL IN COLOMBIA Colombian Law No. 939 of 2004 sets out a list of biofuels, permits that other fuels contain biofuel content, and provides a tax exemption for sales of biofuels as an incentive for their commercialization. WHAT'S NEW IN THE COURTSLEAVE TO INTERVENE GRANTED IN PEARSON v. INCO APPEAL The Ontario Court of Appeal has agreed to allow the Environmental Commissioner of Ontario, the Canadian Environmental Law Association, and Friends of the Earth represented by Sierra Legal Defence Fund to intervene on the issue of costs in what many view as the leading proposed environmental class action in Canada. Gowlings' environmental law specialist David Estrin is counsel for the Environmental Commissioner, an officer of the Legislature. In its 10 year history, this marks only the second time that the ECO has intervened in a proceeding. In 2001, Port Colborne resident Wilfred Pearson launched a $750 million claim against Inco, the Ontario government and others for alleged community-wide pollution caused by the nickel mining and refining company. In 2003 and 2004, settlements were reached with all defendants except Inco. To date, two levels of Ontario courts have held that while individual actions can still be brought against Inco, the claims are not suitable to proceed as a class action. In September of 2004, Ontario's Court of Appeal granted Pearson the right to appeal those decisions. A hearing is scheduled for May 30, 2005. SUPREME COURT WILL NOT HEAR APPEAL OF FISHERIES ACT CONVICTIONS On January 27th the Supreme Court of Canada refused to hear an appeal of the Ontario Court of Appeal's decision in R. v. Kingston (City) (2004), 70 O.R. (3d) 577. This means that the Court of Appeal's controversial judgment is now the leading authority on interpreting the Fisheries Act prohibition against water pollution. As we reported in our May 2004 issue, the Court of Appeal restored the conviction (on some counts) of the City of Kingston for allowing leachate from a former dumpsite to seep into the Cataraqui River. It rejected the City's argument that s. 36(3) of the Fisheries Act, which prohibits the deposit of deleterious substances in waters frequented by fish, requires proof of actual impairment to those waters. Instead it held that the focus of s. 36(3) is on the substance that is deposited, not the effects of that substance on the waters it enters. In essence, the Court of Appeal took a “zero-tolerance” approach to depositing deleterious substances. It is irrelevant whether the substance is deposited very gradually, whether it is greatly diluted, or whether any fish even notice. All that matters is whether the substance itself is deleterious, meaning that, when added to any water in a laboratory, it renders that water deleterious. Thus the Court approved of a 1979 decision by the BC Court of Appeal that spilling just one spoonful of toxic oil in the ocean is enough to make out the s. 36(3) offence. The City believes this interpretation is too strict. Unfortunately it will not get the opportunity to make this argument to the Supreme Court. WHAT'S HAPPENINGLEGAL AND PRACTICAL ISSUES AFFECTING BROWNFIELDS DEVELOPMENT Harry Dahme spoke on Legal and Practical Issues Affecting Brownfields Development at the Brownfields Workshop in Thunder Bay, Ontario hosted by the Canadian Brownfields Network and aboutremediation.com on March 1. Gowlings is a sponsor of aboutremediation.com, which is a website devoted to disseminating information on Brownfields. EMISSIONS REPORTING PURSUANT TO THE NATIONAL POLLUTANT RELEASE INVENTORY On April 4, Harry Dahme and AirZone will be presenting a breakfast seminar at Gowlings on Emissions Reporting pursuant to the National Pollutant Release Inventory and O. Reg. 127. G.R.E.E.N. CONFERENCE: THINK GLOBALLY, ACT LOCALLY! Stacey Ferrara will be speaking to high school students at a G.R.E.E.N. Conference on April 9, 2005. G.R.E.E.N. provides learning opportunities for students to understand, improve and sustain water resources in their community. Stacey's presentation will reflect the Conference's theme: “Think globally, act locally!” CORPORATE SOCIAL RESPONSIBILITY (CSR) - WORKING A SOCIAL ETHIC INTO THE BOTTOM LINE Mark Madras will be speaking on Corporate Social Responsibility (CSR) — Working a Social Ethic into the Bottom Line at the Canadian Bar Association's Environment, Energy and Resources Summit in Calgary on May 7, 2005. GHG TRADING IN THE NORTH ATLANTIC: LINKING THE CANADA, U.S. AND EUROPEAN MARKETPLACES Mark Madras will also be participating as a moderator in GHG Trading in the North Atlantic: Linking the Canada, U.S. and European Marketplaces at the EECO 2005 Conference in Toronto on May 27, 2005. CONTAMINATED SITES TRANSACTIONS — CHALLENGES AND SOLUTIONS On April 20, 2005 Mark Madras will be chairing and Craig Parkinson will be speaking at a breakfast seminar at Gowlings with John McKee of Trow Engineering and George Boire of Marsh Canada on Contaminated Sites Transactions — Challenges and Solutions. |
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| Gowlings is an internationally acknowledged leader in environmental law. Professionals in our Environmental Group are recognized in the Lexpert/American Lawyer Media 2004 Guide to the 500 Leading Lawyers in Canada and the Lexpert Legal Directory. They're also included in Euromoney's Guide to the World's Leading Experts (Canada). Gowlings is further recognized in the areas of intellectual property, technology, business law and advocacy. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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