Stewart McKelvey

ENVIRONMENTAL LAW : REGULATIONS AND LEGISLATION By Gregory A.C. Moores, Colm St. Roch Seviour, Robert G. Grant, Q.C. & Keith G. Sutherland Regulatory Framework Businesses in Atlantic Canada should be familiar with various environmental laws and policies which may apply to their business activities, especially those in- volving purchasing or leasing real property, industrial development, or the production, movement or dispos- al of dangerous goods, toxic substances or wastes. Environmental matters in Atlantic Canada are gov- erned by statute and common law. All four Atlantic Provinces have their own sets of statutes and regula- tions which address environmental matters within each province. The federal government also legislates with regard to the environment. In addition, some muni- cipalities have enacted by-laws in relation to the en- vironment through authority delegated to them by the provinces. An environmental matter therefore may be governed by federal, provincial, and/or municipal law depending on the circumstances. Environmental Assessments Businesses should be aware that both the federal and provincial levels of government have the power to require assessments concerning the environmental impact of new physical undertakings and alterations to existing undertakings. Environmental assessments may be triggered by major undertakings such as mines or smaller matters such as stream crossings. In general terms, an undertaking cannot be carried on until either (a) the minister determines that an en- vironmental assessment is not required, or (b) follow- ing the completion of an environmental assessment, approval is granted for the carrying out of the under- taking. When an environmental assessment determines that a project is likely to cause adverse environmental effects, approval of the project will be delayed and public hearings may be required. Liability of Directors and Officers Various federal and provincial statutes impose personal liability on directors and officers of corporations for failing to take reasonable care to ensure that the cor- poration does not cause or permit harm to the environ- ment. Typically, directors and officers can avoid per- sonal liability by establishing a defence of due diligence. The threshold for establishing due diligence differs for any given offence. One way of establishing a due dili- gence defence is by demonstrating that the company had an environmental management program in place and was adhering to it at the time of the offence. Principal Provincial Environmental Legislation All four Atlantic Provinces have legislated extensive- ly in the area of environmental protection, although somewhat differently from each other. Some prov- inces have created a single act intended to govern a wide range of environmental issues, while other provinces have created a variety of narrower acts intended, when taken together, to regulate a broad range of environmental issues. Provincial legislation imposes substantial reporting obligations on the owners of contaminants and on per- sons causing or permitting the discharge of contamin- ants into the environment. Where accidental spills or discharges occur, the person or people in control must notify the appropriate environmental authorities im- mediately and do everything practicable to clean up the area and restore the natural environment. Ministerial orders are a common means of enforce- ment under provincial environmental legislation. Min- isters have very broad powers to make orders in relation to actual or potential environmental contamination. Ministerial orders run with the lands against which the orders apply to and are binding against successors and assigns. Notably, the Supreme Court of Canada will soon review the interaction between ministerial orders issued in Newfoundland and Labrador and under the federal Companies' Creditors Arrangement Act, in Re: Abitibibowater Inc. et al. Under provincial legislation, the responsibility for clean up of contaminated property extends beyond those people who caused the contamination. For instance, the current owner of contaminated property may be ordered by the minister to clean up the property even though the owner is not at fault for the contamination and may not even have owned the property when the contamination occurred. For this reason, it is imperative that prospect- ive purchasers conduct appropriate due diligence inves- tigations before acquiring property. Some of the provinces have enacted whistle blower DOING BUSINESS IN ATLANTIC CANADA SUMMER 2011 7

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