In Canada, environmental law is an area of jurisdiction shared between the federal government, the various provincial and territorial governments, and municipalities. This jurisdictional split arose because the Constitution of Canada, which dates back to 1867, did not specifically allocate power over the environment, leaving instead a gradual evolution of powers. Broadly speaking, the federal government has the power to legislate for the “peace, order and good government” of Canada, and notably has jurisdiction over federally-owned land and undertakings, sea coast and inland fisheries, navigation and shipping, aviation (including airports), railroads, import and export of toxic substances, interprovincial and international transportation and nuclear power. Provinces have the constitutional power to legislate on a wide range of environmental matters, including on all matters of a merely local or private nature in a province, and on the exploration, development, conservation and management of non-renewable natural resources and forestry resources, among other things. Municipalities in most provinces have the delegated power to pass by-laws, particularly with respect to storm and sanitary sewer discharges, control of noxious weeds, noise and certain other nuisances. The Supreme Court of Canada has held that where more than one level of government has the authority to regulate, duplication is permissible as long as there is a possibility of dual compliance, i.e., by abiding by the stricter of the applicable standards. In all other cases, and generally speaking, federal law trumps the others, and provincial law will be paramount over municipal law.
When doing business in Canada, it is important to keep in mind that environmental laws are not uniform among the provinces and territories. Attempts have been made to harmonize certain standards and criteria; however, there remain many differences with which companies operating in more than one Canadian province or territory need to be familiar.
More in this section:
- Environmental permits
- Enforcement and compliance
- Real estate transactions and contaminated land
- Environmental insurance
- Waste management
- Climate change and emissions trading