Summary of Environmental Law in Canada

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• 6. Public Participation
• 6.1. Participation in Law-Making
• 6.2. Participation in Implementation and Enforcement

Public participation in environmental decision-making is usually possible through the approval and assessment processes established by legislation. Often, these processes result in proceedings before administrative tribunals rather than courts. In many situations, public meetings are held to obtain public input on a proposed project.

In Canada, the federal and most provincial governments have set up "Round Tables on the Environment and the Economy." These new institutions are intended to bring together people with a variety of perspectives, including government, business, environmental groups, labour, and the general public, in order to integrate economic and environmental issues. Some Round Tables have developed a high public profile and have actively sought to draw the public into their activities (See Chapter 2: Institutional Framework for Environmental Protection).

6.1 Participation in Law-Making

The legislative process normally provides some form of opportunity for members of the public to participate in the enactment of statutes. For other legislative tools, such as regulations, the governing legislation and the policies of the relevant ministry determine what opportunities exist for public consultation.

The Canadian Environmental Protection Act, 1999 (CEPA 1999) states that the federal Minister of the Environment may consult with any interested person and can work jointly with the representatives of different sectors interested in the protection of the environment. CEPA 1999 also states that proposed regulations under the Act must be published in the Canada Gazette, Part I. Within 60 days of the publication of a regulation, any person may file a notice of objection requesting a board of review. Some provinces have also adopted this prior publication approach. See, for example, the Ontario Ministry of the Environment's Policy on Public Consultation No. 16-09-91, and the Yukon Environment Act.

Another type of opportunity for public participation is in provincial land use planning processes. These processes are designed to ensure that municipal decisions related to community plans and the approval of development proposals are made in an open public forum and after consideration of all available relevant information. These processes usually include opportunities for interested parties to obtain information, to be given notice, to be given a hearing before decisions are made, and to appeal certain kinds of decisions to a review board. A more active community consultation approach has been developed in British Columbia through the Commission on Resources and Environment, which has developed guidelines for mediation and the establishment of community-based commissions.

6.2 Participation in Implementation and Enforcement

In Canada, violation of environmental legislation or regulations is usually treated as a criminal offence. Administrative penalties for non-compliance with environmental standards are less common. Criminal proceedings for environmental violations are initiated usually by federal or provincial authorities. Nevertheless, there is also a common law right of a citizen to initiate criminal proceedings. This is called a private prosecution. However, the provincial Attorney General, the chief law enforcement official, is entitled to take over a private prosecution and to proceed with it or to terminate it.

In addition to criminal prosecutions, certain environmental statutes allow an individual to bring a civil action to recover damages for loss or injury resulting from environmental offences and spills. Indeed, CEPA 1999 provides specifically for such cases.

Injunctions are an important legal tool for environmental cases. As part of a civil legal action, a court can, in certain circumstances, grant an injunction to prevent a loss or an injury from occurring. Injunctions can be temporary, preserving the status quo until the legal case has been resolved. Or, they can be permanent, being imposed at the conclusion of the court case. In the common law provinces (all provinces except Quebec), the rules governing injunctions are determined by the rules of court and by the courts themselves. In Quebec, a general right of injunction can be found in the Civil Code (as specified by the Code of Civil Procedure of Québec) and in section 19.2 of the Environment Quality Act. Also, some environmental statutes expressly authorize a court to grant an injunction to prevent a violation of the Act.

Some legislation contains provisions that move completely or partly toward the notion of an "environmental bill of rights." Such statutes include Ontario's 1993 Environmental Bill of Rights Act, the 1991 Yukon Environment Act, and the Northwest Territories' 1990 Environmental Rights Act. Other legislation containing limited aspects of an environmental bill of rights include the Quebec Environmental Quality Act (which has included, since 1978, a right to environmental quality), Alberta's Environmental Protection and Enhancement Act, and the Environmental Act of Nova Scotia. Although these existing or proposed environmental bills of rights have different provisions, they contain many of the same concepts and introduce many of the same types of actions, such as:

• a citizen's right to environmental quality;
• a declaration of the public trust doctrine, that is, that natural resources are held in trust by the government, such that a citizen can bring an action for damages against the government in cases of environmental degradation;
• a right to protect the environment, that is, a right for a citizen to bring an action or application against another individual in order to protect the environment, though remedies and defences may vary; and,
• a legal remedy for violation of an environmental Act or standard, that is, a specific provision that a person may bring an action to protect the environment to the extent provided for in law.