15 Federal Regulations
Canada is a representative constitutional democratic monarchy. Canada is also a dominion of ten provinces and three territories. In Canada and the United States (US), our constitutions are the backbone of our respective legal systems. In Canada, the constitution bestowed certain authorities across the country. For example, the federal government was made responsible for defense, banking and all things interprovincial. The provinces are responsible for their natural resources.
While the Canadian constitution guarantees certain powers to the federal government and certain powers to the provinces, the territories do not have constitutionally guaranteed authorities. Their authorities are passed to them from the federal government. Cities receive powers from their provincial government, as cities are not included in the constitution either.
At the time of confederation (in 1867) environmental matters were not a concept as we understand them today. Unsurprisingly the constitution is mute to who should regulate environmental issues. For example: when the constitution was framed in 1867, little was understood about climate change. So, climate was not explicitly covered in the constitution.
Today the environment portfolio is a shared responsibility. This leaves overlaps and inefficiencies. For example, there are 10 provincial hazardous waste regulations, and three for territorial and a federal one for interprovincial or international movement of wastes.
By the constitution, if a matter is connected to resources, it is a provincial matter, but if connected, to international trade, interprovincial transportation, trade or peace, it is generally a federal matter (The Constitution Acts, 1867 to 1982, n.d.)
So where does air pollution fit? Generally, it is a provincial issue. But Canada has agreed on national air quality standards. They are not written in an act. There are some federal regulations that are related to air quality including vehicle emissions and efficiency regulations; toxicity is also defined federally. However, there is no comprehensive federally regulated air emissions regulation.
So where would greenhouse gases fit? Due to international treaties, it is a federal matter. CO2 also moves freely and it is a global problem. But most CO2 is generated by burning fossil fuels which is a resource. Therefore, it is a provincial matter. In the end overlapping and sometimes conflicting priorities.
With climate change the federal government formally sets the targets in consultation with various entities, but the provinces have to meet them. It can get quite contentious. And it is also quite political. Some politicians still believe sewage is a bigger issue than climate change (it is not) (Tasker, 2021).
Follows is a brief look at some important federal regulations, presented in no particular order.
Impact Assessment Act (IAA) (Canada)
The Impact Assessment Act (IAA) is referred to in the scope of the Canadian federal government. This act regulates impact assessments which includes the environment of all projects under federal jurisdictions and selected major projects. The IAA was passed in 2019 and replaced the earlier Canadian Environmental Assessment Act (CEAA).
New projects that fall under this act and its regulations must include many environmental issues including air quality, fisheries, and climate change as mandatory components of the assessments (Canada, n.d.).
The IAA is enforced by the IAA. Confusing, yes. The enforcement agency is the Impact Assessment Agency (IAA) (Canada, n.d.).
Under the IAA, climate change must be considered. Details of what must be considered are listed in the Strategic Assessment of Climate Change (Canada, 2020). For further information see also chapters on climate, environmental assessment, and case law.
Fisheries Act
The federal government’s Fisheries Act is one of the oldest standing acts in Canada first passed in 1868. It has been updated many times, with the last update occurring in 2019 (Fisheries Act). This 2019 revision reversed some of the changes made in the 2012 version. In particular, the changes below are quoted from the Government of Canada website (2019); the updated act includes:
- protecting all fish and fish habitats
- restoring the previous prohibition against “harmful alteration, disruption or destruction of fish habitat” (HADD)
- restoring a prohibition against causing ”the death of fish by means other than fishing”
The concept of HADD is a key element of the Fisheries Act
Its purpose is to protect fisheries and their habitat and is an important environmental act. Despite the strong link between oceans and climate, the Fisheries Act has no official link to air or climate change.
Fish are also a resource and there can be overlap between federal and provincial authorities as well. For fish bearing bodies of water, both levels of authority may need to be considered.
Canada Water Act, RSC 1985, c C-11
Under the federal system, water regulation is confusing so we need to remember to be specific about which act or regulation we are referencing. Some of the federal water acts include:
- Canadian Navigable Waters Act
- Arctic Waters Pollution Prevention Act
- Canada Water Act
- Dominion Water Power Act
- NWT Waters Act
- Yukon Waters Act
- International Boundary Waters Act
- Safe Drinking Water for First Nations Act
But possibly the most relevant to the discussion is the Canada Water Act (R.S.C., 1985, c. C-11). It was proclaimed in 1970 and was updated in 1985. The Act allows the federal government to enter into agreements with the provinces and to conduct research and gather data.
This allows the federal Water Survey of Canada to operate and gather data from more than 2000 stations in Canada (Water Survey of Canada, n.d.).
Safe Drinking Water Act for First Nations
The Safe Drinking Water for First Nations Act, SC 2013, c 21 authorized the Minister to make regulations for the management of drinking water on Indigenous lands. The regulations could be varied to account for provincial variations. Interestingly, no regulations were written (sic 2022).
Further the government has consulted with Indigenous peoples and the act has proven to be problematic. The government withdraw the act and intends to replace it (Canada, 2019). It was repealed effective June 23, 2022 (Canlii, 2022).
Canadian Environmental Protection Act, 1999, SC 1999, c 33 (CEPA, 1999)
Canadian Environmental Protection Act was first passed in 1988 as an omnibus environmental bill at the federal level. It had a focus on toxic substances. The act today is often noted as CEPA, 1999, the year of its last major revision. It is still Canada’s federal omnibus environmental act. It has authorized many federal regulations that are related to air pollution and other pollutants.
These regulations include emission standards for vehicles, ships and trains and off-road engines. For vehicles, standards are synchronized with United States regulations. CEPA, 1999 also authorizes toxicity investigations. The following are three of the toxicity provisions under CEPA, 1999 that affect many industries and institutions.
This major act is currently (sic 2023) under debate for modifications. It is currently (sic January 2023) before a House of Commons committee to undergo some significant changes (Canada, 2022). According to the Government of Canada the proposed modifications include the following list (Canada, 2022):
- A right to a clean environment
- Mention of the United Nations Declaration on Indigenous Peoples
- Cumulative effects of chemicals
- Protecting vulnerable populations
- Canada (2022) defines vulnerable populations as “a group of individuals within the Canadian population who, due to greater susceptibility or greater exposure, may be at an increased risk of experiencing adverse health effects from exposure to substances.”
- Assessing real life exposures including cumulative effects of chemicals and synergistic effects
- A stronger “regime” for substances that are toxic under CEPA and of the highest risk
- Supporting the shift to safer chemicals
- A new priorities plan
- Increased transparency in decision-making
- Formal process for citizens to request toxicity information
- Confidentiality will be considered similar to the United States Environmental Protection Agency and the Toxic Substances Control Act (TSCA).
- Reducing reliance on animal testing
- Changes to the Food and Drugs Act (FDA) to strengthen the environmental risk assessment and risk management of drugs
- Other changes will be considered in conjunction with CEPA, the FDA and the Canada Consumer Product Safety Act, including:
- Labeling and information for consumers
- Updating the regulatory framework for products of biotechnology
As we consider the ambitions in this legislation, many are supported by a very emerging science on topics like cumulative effects. The author believes that while the sentiments are laudable, it is difficult to regulate without solid science to back the requirements.
National Pollutant Release Inventory (NPRI)
The National Pollutant Release Inventory (NPRI) is a published under the Canada Gazette under the authority of CEPA, 1999 and contains the rules and requirements for reporting listed pollutants. The annual gazette has updated reporting requirements. It is a parallel regulation to the United States TRI.
The NPRI lists and reporting requirements are updated regularly and those who have to report need to stay current (Canada, 2022). It requires the reporting of greenhouse gases, and the details of the program are announced annually in the Canada Gazette.
Priority Substances List (PSL)
The Priority Substances List (PSL) is established under CEPA, 1999 is a list of substances that were to be prioritized for study as to whether they should be considered toxic and regulated.
Where a substance is declared toxic under provision 64 of CEPA, 1999, there is an expectation of regulations that should follow (Canada, 2019)
See also the definition of CEPA Toxic in CEPA, 1999. (Canada, 2005).
Virtual Elimination List SOR/2006-298
The virtual elimination list is a regulation under CEPA, 1999. It lists those substances where toxicity testing has recommended these chemicals from virtual elimination from the Canadian environment. As of 2022 only two chemicals have been designated for virtual elimination (Virtual Elimination List SOR/2006-298).
Canada Consumer Product Safety Act (S.C. 2010, c. 21)
The Canada Consumer Product Safety Act (S.C. 2010, c.21) is designed to protect Canadians from unsafe goods. Sometimes this includes products that have environmentally toxic substances in their makeup.
As part of the act, flame retardant chemicals are discouraged but only a few are banned in some consumer goods. (Canada, 2021).
While there are protections against false claims, the regulation of products for reduced VOCs may not be as rigorous. Much of that work is left to standard setting organizations and green labels, like Ecolog by Underwriters Laboratories (UL Solutions, 2022).
Canadian Net-Zero Emissions Accountability Act, SC 2021, c 22
The Canadian Net-Zero Emissions Accountability Act, SC 2021, c 22 is the most recent legislation at the federal level for climate change. The act makes law the commitment to set net zero as Canada’s target for 2050. It also requires plans and interim targets. The act defines net zero as the following (Canadian Net-Zero Emissions Accountability Act, SC 2021, c 22 ):
- net-zero emissions means that anthropogenic emissions of greenhouse gases into the atmosphere are balanced by anthropogenic removals of greenhouse gases from the atmosphere over a specified period.
The Government of Canada also committed to the 2030 greenhouse gas emissions target as being Canada’s Nationally Determined Contribution (NDC) under the Paris Agreement, which will be 40-45% below 2005 levels, by 2030”. (Canada, 2021)
Net Zero
Net zero is a goal of emissions reduction. It is still full of ambiguities. Net zero means that an entity, either small or large like a country, emits no greenhouse gas emissions or it offsets those it does emit. Offsets can be planting trees or absorbing carbon or similar carbon sequestration.
Sometimes there can be a generic use of net zero, you should always look for the definition as to how net zero is being implemented. While an enviable goal, remember a goal is nothing if there is no plan behind it.
There is a temptation to look at net zero by just selling carbon sequestration. For this approach to be viable the sequestration has to be achievable and verified. To achieve net zero, we will need all the carbon reduction, elimination, and sequestration tools that we have and can invent.
Species at Risk Act, SC 2002, c 29 (SARA)
The Species at Risk Act, SC 2002, c 29 (SARA) is the federal act that allows for protection of threatened species in Canada. While it is a federal act, provinces may opt out with a regulated equivalent protection ?British Columbia, Saskatchewan and Ontario have equivalency agreements (Canada, 2022).
A committee called the Committee on the Status of Endangered Wildlife in Canada (COSWIC) on is established to consider what species should be included and the level of threat to them (COSWIC, 2021).
Migratory Birds Convention Act, 1994, SC 1994, c 22
The Migratory Birds Convention Act, 1994, SC 1994, c 22 is an interesting act as it was written to ensure compliance with a bilateral treaty with the United States originally signed in 1916 (Canada, 2022). The treaty is informally called the called Migratory Birds Convention, more formally called the Convention for the Protection of Migratory Birds in the United States and Canada (Canada, 2022).
The act’s aim is to protect migratory birds in Canada and the convention aims for the same goal only on a continent basis. It is a federal jurisdiction because migratory birds can and do cross borders. It does not protect birds who do not migrate.
Migratory birds can also be considered a resource so they can be provincially regulated. Provinces then also have regulations about migratory birds in the form of hunting regulations. So, there can be overlap in jurisdictions for migratory birds
Is it a regulation?
Canadian Guidelines for the Management of Naturally Occurring Radioactive Materials (NORM)
As their name suggests, the Canadian Guidelines for the Management of Naturally Occurring Radioactive Materials, these are guidelines only but are issued within the scope of all of Canada. An interesting aspect is that most provinces participated. In Alberta they have been converted into regulation in the AER’s Directive 058, Oilfield Waste Management Requirements for the Upstream Petroleum Industry as a requirement.
Section Conclusion
Federal environmental regulations are focused on those areas that are the interest of the Canadian government. That is they consider cross-border, international, and big picture issues. The above listing is far from complete, as each act may have multiple regulations that the act authorizes.
Even with the clear scope of a Canadian interest, like things that move between borders, it is easy to see potential overlap with provincial authorities, as many environmental aspects can be seen as a resource as well. In some cases, federal and provincial governments have come to an understanding by signing equivalency agreements. But it is not always that clear.
Even industries that are covered by life cycle regulators provincially will have some federal regulations that are applicable. As with any regulatory review, check to see you have the most current advice.
Learning Questions
- Does a product just have to be toxic to be listed as toxic under Canada; CEPA?
- Was Canada the first country to have an air quality act federally?
- Was Canada the first country to have a Right to Know act about toxic air emissions?
References
Alberta, (2022). Directive 058: Oilfield Waste Management Requirements for the Upstream Petroleum Industry. Retrieved from https://static.aer.ca/prd/documents/directives/Directive058.pdf
Government of Canada (Canada). (2019). Guidance and transitional provisions of Bill C-68. Retrieved from https://www.dfo-mpo.gc.ca/pnw-ppe/guidance-ligne-directrice-eng.html#_Context
Canada. (2022). National Pollutant Release Inventory. Retrieved from https://www.canada.ca/en/services/environment/pollution-waste-management/national-pollutant-release-inventory.html
Canada. (2022). Government of Canada delivers on commitment to strengthen the Canadian Environmental Protection Act, 1999 and recognizes a right to a healthy environment. Retrieved from https://www.canada.ca/en/environment-climate-change/news/2022/02/government-of-canada-delivers-on-commitment-to-strengthen-the-canadian-environmental-protection-act-1999-and-recognizes-a-right-to-a-healthy-enviro.html
Canada Consumer Product Safety Act (S.C. 2010, c. 21)
Canada Gazette, Part I, Volume 156, Number 7: Supplements
Canada (2022). Canada-US convention protecting migratory birds. Retrieved from https://www.canada.ca/en/environment-climate-change/corporate/international-affairs/partnerships-countries-regions/north-america/canada-united-states-protecting-migratory-birds.html
Canada. (2019). Canadian Environmental Protection Act: priority substances list. Retrieved from https://www.canada.ca/en/environment-climate-change/services/canadian-environmental-protection-act-registry/substances-list/priority-list.html
Canada. (2013). Canadian Guidelines for the Management of Naturally Occurring Radioactive Materials (NORM). Retrieved from https://www.canada.ca/en/health-canada/services/publications/health-risks-safety/canadian-guidelines-management-naturally-occurring-radioactive-materials.html
Canada. (2021). Notice to stakeholders on the use of flame-retardant chemicals in certain consumer products in Canada. Retrieved from https://www.canada.ca/en/health-canada/services/consumer-product-safety/legislation-guidelines/guidelines-policies/notice-stakeholders-flame-retardant-chemicals-certain-consumer-products.html
Canada. (2022). Permits, agreements and exceptions for Species at Risk Act. Retrieved from https://www.canada.ca/en/environment-climate-change/services/species-risk-public-registry/permits-agreements-exceptions.html
Canada. (2019). Safe drinking water for First Nations legislation: First Nations-led engagement 2019. Retrieved from https://www.rcaanc-cirnac.gc.ca/eng/1557864203211/1609250091722
Canada. (2020). Strategic Assessment of Climate Change: Revised, October 2020. Retrieved from https://www.canada.ca/en/services/environment/conservation/assessments/strategic-assessments/climate-change.html
Canada. (2019). Species at Risk. Retrieved from https://www.canada.ca/en/environment-climate-change/services/species-risk-act-accord-funding/act-description.html
Canada Water Act (R.S.C., 1985, c. C-11)
Canada. (2022). Water office home page. Retrieved from https://wateroffice.ec.gc.ca/
Canada (2005). What Does Toxic Mean under CEPA 1999? Retrieved from https://www.ec.gc.ca/lcpe-cepa/DEF9EA38-699F-5C10-3447-20B9C6041B91/fi-fs01_eng.pdf
Canadian Environmental Protection Act, 1999, SC 1999, c 3
Canadian Net-Zero Emissions Accountability Act, SC 2021, c 22
Committee on the Status of Endangered Wildlife in Canada (2021). Home page. Retrieved from https://www.cosewic.ca/index.php/en-ca/
Convention for the Protection of Migratory Birds in the United States and Canada
Migratory Birds Convention Act, 1994, SC 1994, c 22
Safe Drinking Water for First Nations Act, SC 2013, c 21 Repealed
Tasker. J. (2021). Conservatives debate whether to declare that “climate change is real” at policy convention. CBC News. Retrieved from https://www.cbc.ca/news/politics/conservative-policy-convention-climate-change-1.5956661
Species at Risk Act, SC 2002, c 29
UL Solutions. (2022). ECOLOGO® certification program. Retrieved from https://www.ul.com/resources/ecologo-certification-program
Virtual Elimination List SOR/2006-298
