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Canadian Environmental Legislative  

Canadian Environmental Legislative  . David Hunter B.A., LL.B., LL.M. Bennett Jones LLP Presentation to: Fachbereich 1 Architektur, Bauingenieurwesen, Geomatik Master Infrastrukturmanagement FH Frankfurt am Main – University of Applied Sciences Fachhochschule Giessen Friedberg

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Canadian Environmental Legislative  

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  1. Canadian Environmental Legislative   David Hunter B.A., LL.B., LL.M. Bennett Jones LLP Presentation to: Fachbereich 1 Architektur, Bauingenieurwesen, Geomatik Master Infrastrukturmanagement FH Frankfurt am Main – University of Applied Sciences Fachhochschule Giessen Friedberg November 3, 2009

  2. Principle Purposes of the Presentation • Consumers of Engineering Services in Canada expect highly competent engineering services • Consumers of Engineering Services also require value added - strategic advise on how to address critical issues that evolve from the Regulatory System • Engineers and Consultants are expected to be familiar with Federal and Provincial Regulatory Requirements and to interact with Lawyers and Public Relations officials • Performance of the Company will be gauged on capability to provide Regulatory Strategic Advise • Engineers and Consultants may be required to appear as expert witnesses in Regulatory Hearings and in Criminal Proceedings

  3. Constitutional Framework • Canada has a Federal Government, 10 Provincial Governments and 2 Territorial Governments ( Far North ) • There is a division of powers between the Federal Government and the Provincial and Territorial Governments • Environmental matters are addressed at both levels of government as well as Municipal and there is significant overlap of responsibilities and mandates

  4. Constitutional Framework • Canada operates within the framework of Constitution Act which sets out basic rights and freedoms • Section 35 of the Constitution Act sets out that no Act of any government can interfere or effect Treaty and Aboriginal Rights • The Act also sets out the independence of the Courts • Critical factors in discussing the implementation of environmental legislation and policy

  5. Federal Environmental Assessments (The Planning Process) • Any undertaking that requires i) federal money and /or  ii) federal approval must be screened and approved by the Federal Minister of Environment • Specific Approvals Canada Fisheries Act, Canadian Navigation Act, Canadian Wildlife Act, International Boundaries Act, • To obtain approval - no impairment, if impairment then mitigation and compensation, must be consultation with First Nations • Screening Process - Public Consultation - Environmental Assessment - Alternatives to the Proposal • Extensive Review by the Government Agencies and the Public • Potentially Public Hearings before a Regulatory Tribunal

  6. Engineers and Consultants Role • All technical aspects • Consultation Design and Participation • Management of Regulatory Relationships • Attendance as Expert Witness Before Regulatory Boards

  7. Types of Projects • All Inter Provincial Projects - Pipelines • All River Crossing Projects • All  Air Permitting with Interprovincial / US Canada Air Shed Projects • All harbour developments • All Far North projects • Major Infrastructure

  8. Environmental Assessment ( Ontario ) • The Environmental Assessment Act - Planning Document • All Provincial and Municipal Infrastructure Projects must proceed through the Environmental Assessment Act • Transportation, Water and Sewage, Schools, Hospitals,  Waste Sites • Basic Requirements • Assess Options • Assess Environmental Impacts • Assess Mitigation • Public Consultation • First Nation Consultation • Potentially Regulatory Hearing

  9. Roles and Responsibilities of Engineers, Scientists and Technicians • Traditional Role of Design and Construction Implementation • Assessment of Regulatory Risk - High Expectation of Knowledge of Regulatory Requirements • Capability to Perform in Public Meetings and Public Hearings

  10. First Nations - Treaty and Aboriginal Rights • Assessment - Impact on Treaty and Aboriginal Rights - Impact on Traditional Activities - Mitigation and Alternatives • Aboriginal People – Indians, Métis and Inuit • First Nations – Political/geo-political definition

  11. Environmental Protection  (Ontario)  • Basic Area of Provincial Jurisdiction - Certificates of Approval • Any Activity Where a Contaminant is Discharged into the Environment (Air, Land, Water) • Any Process Which is Altered - where a loading process, and/or concentration is Altered (Essentially No Grandfathering) • Required to Meet Permitting Standards which are set out in Regulation for Air, Land and Water • Required to Meet Industrial Standards Steel, Pulp and Paper, Manufacturing • Significant Adaptation of USEPA Regulatory Requirements and Modeling Requirements (Air Shed)

  12. Prosecutions • Ontario Environmental Protection Act • Three Basic Charges • Discharge to Environment that May Impair the Environment • Failure to Report a Discharge to the Environment Forthwith •  Failure to Comply With Requirements of a Certificate of Approval (Exceed a Regulatory Requirement)

  13. Process Initiated by • 1. Complaint • 2. Report •  Inspected by Abatement Officer  • Investigated by Enforcement Officer • Extensive Powers of Search and Seizure and Legal Powers to Take Statements from Employees

  14. Charges Laid Against, Company, Owners, Employees • Contractors to the Company Can be Charged and/or Called as Witnesses for the Trial

  15. Defences • Charge that Company Discharged a Contaminant into a River and did Impair the Quality of the Water • Crown must Prove that Company Committed the Offence • Company Must Prove on Balance of Probability that • i) Took all Reasonable Steps to Prevent the Discharge and/or • ii) The Discharge was Totally Unforeseeable • Defence of Due Diligence

  16. Proceedings are in a Criminal Court and subject to the Criminal Rules of Evidence and Disclosure • Court is Constitutionally Independent from the Government(s) • Constitutional Protections for Individuals

  17. Penalties • $35.000 to $50.000 for First Offence - Regulatory Offence or Minor Discharge • $50.000 to $100.000 for First Offence - Regulatory with Impairment • $100.000 to $1.000.000 for Second to Third Offences with Impairment • Imprisonment up to Two Years

  18. Last Year (Ontario) 600 Investigations • 160 Provincial Crown Briefs Prepared • 80 Trial Initiated • 40 Completed •  Major Policy Initiative by Federal and Provincial Governments

  19. Role of the Engineer, Scientist, Technician • May be Called as a Witness for the Crown • May be Charged  • May be Retained as an Expert Witness for Crown  • May be Retained as an Expert Witness for the Defence  • Will be Responsible for Certificate of Approval Process as Engineer and/or Consultant

  20. Responsibilities of Engineers, Scientists, Technicians • Design, Construction and Operation of Planning and Operations that will be subject to Public and Regulatory Oversight • Management of Projects through Environmental Planning Processes and Regulatory Risks  • Extensive Interaction with Regulators  • Extensive Participation in Project Team - Client, Lawyers, Public Relations Personnel

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