CHAPTER 12 Environmental Law and Indigenous Rights
ENVIRONMENTAL PERMITTING AND ENFORCEMENT In addition to any EIA process, there are generally two principal regulatory mechanisms for protection of the environment from the impact of commercial and industrial operations (including resource extraction): standard operating requirements and a general prohibition against the discharge of contaminants; and a system of permits or certificates to address specific operations. Proposed operations that may impair the environment (air emissions, noise, water intake, wastewater discharges, etc.) may trigger federal, provincial, territorial and municipal permitting requirements. Such permitting requirements may be triggered by the location of a project, the equipment and substances used or the emissions and waste generated. In addition, decommissioning and rehabilitation obligations may be imposed by permit, with costs related to waste and wastewater management facilities often being secured through financial assurances. Federal, provincial and territorial environmental laws set out enforcement mechanisms enabling the regulators to ensure compliance with the environmental prohibitions and permits. These include, but are not limited to, – wide inspection and investigation powers; – the imposition of fines, administrative monetary penalties and/or damages; – the power to order the execution of prescribed works; and – the power to complete prescribed works at the expense of the contravener.
Provincial EIA regimes target similar large-scale projects. Ontario is in the process of modernizing its EIA regime and is moving to a project list approach that is expected to better align with the federal and other provincial EIA legislation. Many provincial regimes also require consideration of projects of a smaller scale than those assessed federally. The targeted projects are generally determined by regulations, although the governmental authorities may, in some circumstances, subject other projects to EIA regimes if, for example, (i) a project raises major environmental issues and public concern warrants it; (ii) a project involves a new technology or new type of activity whose expected impacts on the environment are major; or (iii) a project involves major climate change issues. The provincial EIA regimes vary, notably with respect to public disclosure and consultation, timelines and decision process. In Canada’s North, the federal government no longer has sole responsibility for assessing proposed projects. As a result of comprehensive land-claim settlements, self-government agreements and devolution to territorial governments, the federal government now works with Indigenous peoples, resource and environmental regulatory boards and the territorial governments to review and approve impact assessments of proposed projects in the North. Canada’s environmental assessment process, particularly in the North, presents a complex challenge for project proponents, and delays for controversial projects are common. Further, environmental groups and other stakeholders may use the courts to challenge EIA approvals. As a result, judicial review of EIAs, even at the early scoping stage, is not uncommon and can cause project delays. The new IAA was intended to address transparency issues and facilitate public and Indigenous consultation, but there is little indication to date that it has reduced the complexity or inherent delays in Canada’s EIA regime.
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