Departmental overview for the Minister of Environment and Climate Change: chapter 2

Legislative mandate and authority

Mandate and summary of legislation

Overview

The Environment Portfolio is comprised of a federal department and two agencies: Environment and Climate Change Canada (ECCC), Parks Canada Agency (PCA), and the Impact Assessment Agency of Canada (IAAC). Though the Department was created in 1971, some ECCC branches and Portfolio organizations are much older: the Canadian Wildlife Service was founded in 1947, the Water Survey of Canada in 1908, and the Meteorological Service of Canada in 1871. The first national parks service in the world, which ultimately became PCA, was created in 1911. The Canadian Environmental Assessment Agency was created in 1994 and renamed the IAAC in 2019, with the coming into force of the Impact Assessment Act (IAA). The Minister of Environment and Climate Change derives powers, duties and functions under the Department of the Environment Act and exercises additional authorities provided under a number of other acts and regulations.

As environmental issues, notably climate change and biodiversity loss, continue to gain in significance, so does the complexity of addressing them. Shared constitutional authority means working with provincial and territorial governments is essential in achieving lasting results. The global nature of the challenge requires continual collaboration through both formal and informal mechanisms.

Within the Government of Canada, the Environment Portfolio works across the federal government with key partners including Health Canada, Fisheries and Oceans Canada, Transport Canada, Infrastructure Canada, Natural Resources Canada, Agriculture and Agri-Food Canada, Public Safety Canada and Innovation, Science and Economic Development Canada.

Partnerships with Indigenous peoples are core to the work of the portfolio: in recognizing their contributions to our natural heritage and their special relationship with the land; in managing protected areas; and in considering the impacts of regulatory and project decisions on their rights, traditional practices and traditional lands.

Mandates of Department and Agencies

Department of the Environment Act, 1971 [ECCC]

The Department of the Environment Act, and other major pieces of legislation, in addition to providing for the establishment of the Department itself, confers certain powers, duties and functions on the Minister, which extend to and include matters relating to:

• the preservation and enhancement of the quality of the natural environment, including water, air and soil quality
• renewable resources, including migratory birds and other non-domestic flora and fauna
• water
• meteorology
• the enforcement of any rules and regulations made by the International Joint Commission relating to boundary waters, and questions arising between the United States and Canada related to the preservation and enhancement of the quality of the natural environment
• the co-ordination of the policies and programs of the Government respecting the preservation and enhancement of the quality of the natural environment

Beyond those authorities conferred under the Department of the Environment Act, the Minister exercises additional authorities provided under other acts and regulations. These include, but are not limited to the Canadian Environmental Protection Act, 1999 (CEPA) and several pieces of legislation relating to climate change (the Greenhouse Gas Pollution Pricing Act and the Canadian Net-Zero Emissions Accountability Act) and the protection of biodiversity and water (e.g., the Species at Risk Act).

Impact Assessment Agency of Canada [IAAC]

The Impact Assessment Agency of Canada (IAAC) is responsible for providing high-quality impact assessments and coordinating Crown Indigenous consultation related to the regulatory review of major projects subject to the Impact Assessment Act (IAA). Under the IAA, IAAC is responsible for assessing the positive and negative environmental, economic, social and health impacts of potential major projects. The impact assessment process applies to ‘designated projects’, which are either designated by the Physical Activities Regulations, also known as the Project List, or by the Minister of Environment and Climate Change Canada.

Parks Canada Agency [PCA]

The Parks Canada Agency Act establishes the Parks Canada Agency (PCA) as a separate agency reporting to the Minister of Environment and Climate Change. PCA’s mandate is to protect and present nationally significant examples of Canada’s natural and cultural heritage and foster public understanding, appreciation and enjoyment in ways that ensure their ecological and commemorative integrity for present and future generations through the establishment and management of Canada’s system of national parks, national marine conservation areas, and the protection and presentation of Canada’s cultural heritage.

PCA has a broad mandate to ensure that Canada’s national parks, national historic sites, national marine conservation areas and other heritage areas are protected and preserved for present and future generations. Heritage areas include heritage railway stations, heritage lighthouses, federal heritage buildings, historic places in Canada, federal archaeology and Canadian heritage rivers. PCA must ensure that there are long-term plans in place for establishing systems of national parks, national historic sites and national marine conservation areas. PCA is also responsible for negotiating, and recommending to the Minister, the establishment of these areas and sites.

Parks Canada protects a vast network of cultural and natural heritage places that include 171 national historic sites, 47 national parks, five national marine conservation areas and one national urban park, and is also responsible for administering, in whole or in part, 12 of Canada’s 20 World Heritage sites. It also protects over 470,000 km2 of Canada’s terrestrial, marine and freshwater ecosystems. It is one of the largest federal administrator of Crown lands and one of the largest federal asset managers with more than 18,000 built assets, the total replacement value of which was valued at more than $26.5 billion in 2021.

Jurisdiction, duties and authorities

Constitutional jurisdiction

The constitutional authority for federal environmental legislation is founded on criminal law, as well as the power to make laws for peace, order and good government (POGG) and on federal constitutional powers such as international borders, international relations, trade and commerce, navigation and shipping, seacoasts and fisheries.

Provincial environmental laws are based on provincial constitutional powers, such as over municipalities, local works and undertakings, property and civil rights, provincially owned (public) lands, and natural resources. Territorial governments exercise delegated powers under the authority of the Parliament of Canada. The devolution of powers, or the transfer of province-like responsibilities from the federal government to territorial governments, is ongoing with agreements finalized in Yukon (2003) and in the Northwest Territories (2014), and an Agreement-in-Principle signed in August of 2019 with Nunavut.

The Constitution Act, 1867 constitutional jurisdiction over the environment

Section 91 of the Constitution Act, 1867 gives Parliament the authority to make laws on a broad range of matters. Section 92 sets out the issues for which the provinces may make laws. The environment is not explicitly listed in either section. As a result, there is often overlap and uncertainty in terms of which level of government is responsible for various aspects of the environment. Based on a number of Supreme Court of Canada (SCC) decisions, protection of the environment is recognized as a matter of shared jurisdiction between Parliament and the provincial legislatures.

The federal heads of power

The Criminal Law Power – s. 91(27)

In 1997, in R. v Hydro-Québec, the SCC decided unanimously that the protection of the environment is a valid criminal law purpose for which the criminal law power can be used. At issue in that case was the toxic substances regulatory scheme in the Canadian Environmental Protection Act. This decision established a broad scope of federal jurisdiction over the environment.

Peace, order and good government

The federal government has the authority to take action on matters of national concern, based on the peace, order and good government (POGG) power of section 91. The courts have provided guidance of the extent of the federal POGG power, including as it relates to the environment. In R. v Crown Zellerbach Canada Ltd., the SCC used POGG to justify federal jurisdiction over ocean pollution. At issue was the Ocean Dumping Control Act, which prohibited the dumping of any substance into the sea without a permit.

In March, 2021, in Reference re. Greenhouse Gas Pollution Pricing Act, the SCC ruled that Parliament has authority under POGG to legislate minimum national standards of greenhouse gas price stringency to reduce GHG emissions. The SCC clarified that a three-step test applies to identify matters of national concern for the POGG power. Courts must first determine whether the matter is of sufficient concern to Canada as a whole. Second, they must also determine whether the matter is specific and identifiable, and qualitatively different from matters of provincial concern. To this end, Courts will consider whether there is a provincial inability to deal with the matter and grave extra-provincial consequences would result. Finally, Courts must conduct a scale of impact analysis by balancing the intrusion upon provincial autonomy and the interests affected if Parliament was unable to legislate on the matter under POGG.

Other heads of power

Federal jurisdiction over certain aspects of the environment may also come from other federal powers. For example, the taxation power (s. 91(3)) provides the federal government with the ability to adopt measures to generate revenues that also encourage environmentally friendly behaviors, such as tax assistance for donations of ecologically sensitive land.

Other heads of power may provide a basis to regulate the environment in specific contexts, including, for example, express constitutional authority over fisheries.

As well, the courts have accepted that there is a power that allows federal spending, even in areas where Parliament does not have the authority to pass legislation. For example, while Parliament cannot legislate in provincial fields of jurisdiction, such as education and healthcare, it can place conditions on how provinces spend federal funding. Where environmental matters are concerned, the federal spending power could be used in a variety of ways to collaborate with provinces and territories.

Duties

The Minister’s mandate derives from various statutes and regulations aimed at protecting the environment. These statutes and regulations give the Minister a framework that includes some Ministerial obligations, and a much longer list of powers that can be used to deal with environmental issues and concerns. Depending on the statute or regulation, the Minister may be required to take certain actions or make certain decisions, sometimes within a specific timeframe.

Each issue must be examined on a case-by-case basis to determine whether the Minister has a duty, obligation or authority to act. There may be situations where the statute or regulation gives the Minister a power to act, should he or she wish.

Mandatory duties

Ministerial duties are enforceable by the courts. Should the Minister not take action, members of the public, or public interest groups, may ask the courts to force the Minister to fulfill their duty. When the Minister takes action, those actions can also be reviewed by the courts. The courts will then generally look at the “reasonableness” of the Minister’s decision or action.

Mandatory duties often arise in the context of the Species at Risk Act (SARA) where, based on a particular set of facts, the Minister is obligated to make a recommendation to the Governor in Council for a regulation to protect a species. In particular, where there is an imminent threat to the survival or recovery of a species, or where the necessary protection for the species, the residences of its individuals or its critical habitat are not in place, the Minister has a duty to make a recommendation to the Governor in Council. The Minister’s position regarding an imminent threat or the level of protection for a species and its habitat must be supportable on the basis that it is reasonable.

Statutes imposing mandatory duties on the Minister usually provide a certain degree of discretion. For example, the Minister is required to produce annual reports to Parliament, inventories of pollutants and other documents. However, the Minister has discretion to determine the details of the content of the report.

Authorities

The Minister has significant discretion in terms of the types of actions to take and the level of environmental protection to seek. Some statutes provide the Minister with a toolkit that allows for a choice of action. This could include regulation-making authority, the authority to adopt codes of practice, standards and information-gathering instruments. The Minister may also enter into agreements or contracts, as necessary, and work with provinces and other stakeholders.

For the most part, the statutes under the responsibility of the Minister contain wide regulation-making authority. For example, the Minister may choose to develop and recommend for adoption by the Governor in Council regulations to control greenhouse gases in a particular sector, but the Minister is not legally obligated to do so. The Minister generally has a number of options, including doing nothing, leaving it to another level of government to regulate or control the subject matter, proposing a voluntary agreement with the polluter or the setting of standards or best practices.

In some cases, powers include the ability to issue a permit to allow a specific type of activity, within certain limits. Under the Canada Wildlife Act, for example, an activity can only be permitted in a wildlife area if it will not interfere with the conservation of wildlife. In the event of a court challenge, as with other powers, the Minister must be able to demonstrate that he or she considered the relevant information and acted reasonably when making their decision.

Not all of the Minister’s powers are directly spelled out in statutes. Some can flow from the Minister’s general mandate. For example, the Minister generally has authority to take action to assist decision-making. Where there may be a problem with air emissions, for instance, the Minister could undertake a monitoring program to determine what type of action may be needed to address the issue. Such broad authority, if found nowhere else, is implicit in the Department of the Environment Act, which provides the Minister and department with their overall mandate over environmental matters. This includes the authority to conduct monitoring activities, or conduct scientific studies even if this is not expressly authorized by law or regulation.

Regulatory responsibilities and processes

Environment and Climate Change Canada (ECCC) is among the federal government’s most active regulators. The Department’s regulatory portfolio addresses such issues as toxic chemicals, air pollutants, greenhouse gas emissions, effluent, migratory birds and species at risk.

The federal regulatory process is governed by legal and policy frameworks. The Statutory Instruments Act provides the main legal framework. Some statutory orders and regulations are subject to the requirements of the Statutory Instruments Act. The Cabinet Directive on Regulation sets out expectations and requirements in the development, management, and review of federal regulations.

In order to ensure that regulations result in the greatest overall benefits to current and future generations, federal regulations are guided by the following four principles:

• the regulatory process is modern, open, and transparent
• regulatory decision-making is evidence-based
• regulations support a fair and competitive economy
• enforcement of laws and regulations is done in a fair, predictable and consistent manner

The development of regulations within ECCC typically involves policy approval (either by the Minister or Cabinet, depending on the issue), consultations with interested parties throughout the regulatory development cycle (including with Indigenous peoples), preparation of drafting instructions, economic analysis, enforcement advice, legal advice, and drafting of the actual text of the regulation. Publication of proposed regulations in the Canada Gazette, Part I, provides a formal opportunity for Canadians to provide input on proposed regulatory text. Final regulations are published in the Canada Gazette, Part II.

Along with officials within the Department, other parties within Government are involved in the development and approval of regulations:

• The Minister sets overall policy guidance and approves the details of specific regulations. For some issues, the Minister may issue a regulation under their own authority. Most regulations, however, are issued by the Governor in Council (GIC), acting on the recommendation of the Minister. The Treasury Board acts as the GIC for this purpose.
• Some decisions under CEPA must be made by both the Minister of the Environment and the Minister of Health, reflecting the focus of CEPA on both environmental and health protection.
• Similarly, some decisions under SARA must be made by both the Minister of the Environment and the Minister of Fisheries and Oceans.
• The Treasury Board Secretariat reviews all proposed regulations to ensure that the analysis that the Department provides to support each regulatory proposal is consistent with the requirements in the Cabinet Directive on Regulation and will enable Treasury Board members to make informed decisions.
• The Department of Justice Canada provides legal counsel, who help departmental officials design regulations that are supported by relevant statutory authorities. The Department of Justice Canada also provides the drafters who prepare the legal text of regulations.
• The Privy Council Office is responsible for receiving regulatory submissions, examining them in consultation with the Department of Justice Canada, and registering regulations, once approved.
• The Governor General, as the representative of the Crown, signs into law the regulations approved by the GIC (Treasury Board).
• Public Services and Procurement Canada publishes the Canada Gazette, the official newspaper of the Government. Proposed regulations and supporting documentation are published in Canada Gazette Part I. Final regulations are published in Canada Gazette Part II.
• The Standing Joint Committee for the Scrutiny of Regulations, pursuant to the Statutory Instruments Act, examines each regulation after it has been published to ensure that there is adequate statutory authority for each requirement in the regulation.

The timeframe for developing a regulation is on average 18 to 24 months, but can vary considerably. The duration of consultations is one of the main factors affecting regulatory development timelines.

ECCC’s regulatory activities

Developing new regulations

The increasing priority placed on addressing environmental concerns and the need to employ an array of tools, from performance standards to pricing pollution, to achieve the desired shift in behaviour in ways that minimize differential impacts and that create maximum incentives for innovation and economic development has both increased the complexity of the instrument choice and regulatory development process and has resulted a steadily growing number of new regulations or equivalents.^{Footnote 1}  ECCC publishes on average 40 regulations a year.

Regulatory development is guided by a quality management system, and entails extensive engagement with provinces and territories, affected businesses, civil society and Indigenous peoples, and is supported by science-based risk assessments, technology reviews, international comparisons and detailed economic analysis.

Third party studies consistently demonstrate that appropriately targeted and well-designed environmental regulations can stimulate technological innovation, spur the development of new products and services, and are increasingly important determinants of market access and social license to operate.

Amending existing regulations

The Minister may decide to amend a regulation to:

• strengthen its performance requirements if scientific monitoring indicates that the targeted environmental or health risk has not been addressed adequately
• require the use of a more current test method
• allow for use of new technologies or practices
• expand the scope of application to include sources or pollutants not previously addressed
• remove a regulatory requirement where there is no longer a bona fide need for it, etc.

Issuing orders

Many of the processes established under the various ECCC statutes require the Minister or the GIC to issue orders to formalize decisions. This is particularly the case for updating statutory lists based on the results of scientific assessments. Each year, for example, the Minister typically receives numerous assessments of chemical substances, leading to the need to decide, in conjunction with the Minister of Health, whether or not to recommend that the GIC add the substances to Schedule 1 under the Canadian Environmental Protection Act, 1999. This is a precondition for being able to develop various risk management measures for those substances. A similar process is followed for adding or changing the status of species under the Species at Risk Act (SARA), which in turn triggers various management authorities.

Regulatory agenda

ECCC administers or shares responsibility for some 30 Acts of Parliament and over 80 regulations or equivalents, addressing issues as diverse as pollution prevention, wildlife protection, and emergency management. A wide range of sectors are covered by ECCC regulations, including:

• industrial sectors
• various commercial products
• municipalities
• importers/exporters
• federal departments

Regulations also impact hundreds of thousands of individuals who partake in regulated activities such as migratory game bird hunting and entry into any of ECCC’s 146 protected areas.

Posted in April 2021, the Department’s Forward Regulatory Plan for 2021–2023 proposed 64 regulatory initiatives, including new regulations, amendments to existing regulations, consolidations, and repeals and reflect existing policies as of 2021. All regulatory initiatives are conducted at the direction of the Minister, who has broad authority under the various departmental statutes to determine the overall focus of regulatory programs, and to make decisions about whether or not to intervene, the choice of instrument, and the nature of the regulatory obligation to impose.

High activity acts for which the Minister is primarily responsible

Canada National Parks Act, 2000 [Parks Canada Agency]

This Act establishes and dedicates national parks to the people of Canada for their benefit, education and enjoyment and provides that parks are to be maintained and used so as to leave them unimpaired for future generations. The Act provides that the Minister is responsible for the administration, management and control of national parks and, in particular, states that the maintenance or restoration of ecological integrity shall be the first priority of the Minister when considering all aspects of the management of parks. There is a requirement to table in Parliament management plans for national parks within five years of their establishment and to review them every ten years. The Act confers authority to make regulations relating to a wide range of issues governing the management of national parks, including:

• protection of natural resources
• recreational activities such as camping and fishing
• leasing and licences of occupation
• fire management
• control of trades, businesses and other activities
• aircraft access
• maintenance and administration of public works
• maintenance and administration of road, highways, bridges and other improvements
• exercise of traditional renewable resource harvesting activities

Impact Assessment Act, 2019 [IAAC]

The Impact Assessment Act (IAA) sets out a process for assessing the environmental, health, social and economic effects of designated projects with a view to preventing certain adverse effects and fostering sustainability. Designated projects are identified in the Physical Activities Regulations, known as the Project List, or through an order of the Minister of Environment and Climate Change.

IAAC or an independent review panel established by the Minister conducts the impact assessment. Federal authorities, including ECCC, provide expert or specialist information. The process includes opportunities for meaningful public participation, partnerships with Indigenous groups and participant funding. An Internet-accessible registry provides convenient public access to information.

Mechanisms for co-operation with other jurisdictions, including Indigenous jurisdictions, are available.

A report on the impact assessment informs decisions by either the Minister or the Governor in Council on whether adverse effects within federal jurisdiction or those resulting from federal decisions, are likely to be caused by a designated project are in the public interest.

The Minister will issue to the proponent a decision statement that sets out the public interest decision, whether made by the Minister or the Governor in Council. The Minister may set enforceable conditions related to matters within federal jurisdiction, including mitigation measures, to be implemented by the proponent. The Act provides compliance and enforcement powers.

The IAA enables regional assessments of existing or potential future activities in a region and strategic assessments of policies, plans, programs or issues relevant to designated project assessments. Requirements for an assessment of environmental effects are set out for non-designated projects on federal lands and outside Canada that require a federal decision and ECCC provides expert advice on these projects as well.

Canadian Environmental Protection Act, 1999 (CEPA 1999) [ECCC, Health Canada]

CEPA provides the authority for many of ECCC’s environmental protection activities, including:

• environmental and biomonitoring
• pollution prevention planning
• toxic substances
• animate products of biotechnology
• nutrients, ocean disposal, fuels, vehicle and engine emissions, international air and water pollution, and the transboundary movement of hazardous wastes
• environmental emergencies
• government operations, and federal and Indigenous lands

Because of its dual focus on protecting the environment and human health, many provisions apply to both the Ministers of Environment and Climate Change and of Health.

There are many regulations under the Act, which apply to substances that are on the List of Toxic Substances in Schedule 1 of the Act. Under CEPA, the test to add a substance to Schedule 1 is that the substance has or may have an immediate or long-term harmful effect on the environment or its biological diversity; constitute or may constitute a danger to the environment on which life depends; or constitute or may constitute a danger in Canada to human life or health. Some CEPA regulations establish limits on the release or emissions of substances. Others, such as those for ocean disposal and the import and export of hazardous waste, specify the requirements for obtaining a permit to carry out the activity.

The Act also allows the Minister to develop a wide range of non-regulatory tools to manage environmental and health risks, including codes of practice, guidelines, and requirements to prepare pollution prevention plans and environmental emergency plans. CEPA’s enforcement regime similarly allows for the use of various tools to promote compliance and enforce the Act and its regulations. The Minister is also responsible for maintaining an online public database of activities undertaken under CEPA and for preparing an annual report to Parliament on the administration of the Act.

Fisheries Act Pollution Prevention Provisions, 1985 [ECCC, Fisheries and Oceans Canada]

Most of the Fisheries Act is administered by the Minister of Fisheries and Oceans. By Order in Council, the Minister of Environment and Climate Change has been designated as responsible for the administration and enforcement of the Act’s pollution prevention provisions, other than for aquaculture, pest management and aquatic invasive species. The pollution prevention provisions prohibit the deposit of deleterious substances into water frequented by fish unless authorized by Governor in Council regulations. There are such regulations currently in place, including regulations addressing effluent from metal and diamond mining, wastewater systems, and pulp and paper mills.

In 2012, the Act was amended to allow the Minister to make regulations authorizing deposits under certain conditions; that is, where deposits are of lower risk and already well-controlled by a federal or provincial instrument. To date, one ministerial regulation has been made establishing conditions for research activities in the Experimental Lakes Area in Northern Ontario.

The implementation of these provisions, and of the regulations made under them, are important elements of the Minister’s overall responsibilities for environmental protection.

Species at Risk Act, 2002 (SARA) [ECCC, Parks Canada Agency, Fisheries and Oceans Canada]

This Act came into force in 2002, and plays an important role in Canada’s conservation of biological diversity. Designed to work in a complementary fashion with provincial and territorial legislation on species at risk, its purposes are to prevent wildlife species from being extirpated or becoming extinct, to provide for the recovery of wildlife species that are extirpated, endangered or threatened as a result of human activity and to manage species of special concern to prevent them from becoming endangered or threatened. It provides various measures for the protection of species listed as at risk, their residences and critical habitat.

The Minister of Environment and Climate Change has the lead responsibility for administration of the Act, but does so in cooperation with the Minister of Fisheries and Oceans. The Minister also holds implementation responsibilities for PCA under SARA. As a major federal landholder, PCA has a major role to play under SARA with respect to the protection of species listed at risk in national parks, national marine conservation areas, national historic sites and other protected heritage areas under its jurisdiction.

The Minister of Environment and Climate Change makes recommendations to the Governor in Council on whether to list a species on Schedule I, based on the assessment of the status of a candidate species by the arms-length, science-based Committee on the Status of Endangered Wildlife in Canada. The Minister is also responsible for the development of recovery strategies and action plans for listed species for which the Minister is the competent authority and the enforcement of prohibitions, orders and permits. These include:

• Species at risk in national parks, national historic sites or other protected heritage areas;
• All migratory birds; and
• All other species at risk on federal lands, with the exception of aquatic species, which are under the jurisdiction of the Minister of Fisheries and Oceans.

The Minister of ECC also leads the negotiation of administrative agreements with provincial and territorial authorities and is responsible for an annual report to Parliament on the administration of the Act.

Greenhouse Gas Pollution Pricing Act, 2018 (GGPPA) [ECCC, Finance Canada]

This Act establishes the legal framework for the federal carbon pricing system – the “backstop.” The purpose of this Act is to implement stringent pricing mechanisms designed to reduce greenhouse gas emissions by creating incentives for behavioural change. It establishes the legal framework for a federal carbon pricing system that applies only in provinces or territories that do not have a sufficiently stringent pricing mechanism. The carbon pricing system created by this Act has two complementary components:

• A charge on fossil fuels that is generally paid by fuel producers or distributors – also known as the fuel charge (Part 1 of the Act, which is under the responsibility of the Minister of Finance); and
• A performance-based pricing system for industrial facilities that are trade-exposed – also known as the output-based pricing system (Part 2 of the Act, which is under the responsibility of the Minister of Environment and Climate Change).

The output-based pricing system complements the fuel charge. Fuels used at the facilities covered by the output-based pricing system under Part 2 are not subject to the fuel charge under Part 1. Instead, pricing applies to a portion of a covered facility’s emissions that exceed an emissions limit.

The application of Part 1 and Part 2 of the GGPPA is triggered by adding the names of provinces and territories on
Schedule 1 of the Act when they do not have a pricing system that sufficiently meets the federal standard. Direct
revenues generated under GGPPA are returned to the jurisdiction of origin.

Canadian Net-Zero Emissions Accountability Act, 2021 (CNZEAA) [ECCC and Finance Canada]

This Act came into force on June 29, 2021. The purpose of this Act is to require the setting of national targets for the reduction of greenhouse gas emissions based on the best scientific information available and to promote transparency, accountability and immediate and ambitious action in relation to achieving those targets, in support of achieving net-zero emissions in Canada by 2050 and Canada’s international commitments in respect of mitigating climate change.

This Act requires that targets be set by the Minister of Environment and Climate Change for 2030, 2035, 2040 and 2045. The target for 2030 is Canada’s nationally determined contribution for that year communicated under the Paris Agreement. In order to promote transparency and accountability in relation to meeting those targets, the CNZEAA:

1. requires that an emissions reduction plan, a progress report and an assessment report with respect to each target be tabled in each House of Parliament
2. provides for public participation
3. establishes an advisory body to provide the Minister of Environment and Climate Change with advice with respect to achieving net-zero emissions by 2050 and matters that are referred to it by the Minister
4. requires the Minister of Finance to prepare an annual report respecting key measures that the federal public administration has taken to manage its financial risks and opportunities related to climate change (note: this requirement is not yet in force and will come into force on a day to be fixed by order of the Governor in Council)
5. requires the Commissioner of the Environment and Sustainable Development to, at least once every five years, examine and report on the Government of Canada’s implementation of measures aimed at mitigating climate change
6. provides for a comprehensive review of the Act five years after its coming into force

Other Acts for which the Minister is primarily responsible

Environmental Protection

Manganese-based Fuel Additives Act, 1997 [ECCC]

This Act prohibits the import and inter-provincial trade for commercial purposes of controlled substances, set out in the Schedule to the Act. There are, however, currently no substances listed in the Schedule.

Antarctic Environmental Protection Act, 2003 (AEPA) [ECCC, Fisheries and Oceans Canada]

This Act and its regulations provide the legal framework for Canada to implement the Protocol on Environmental Protection to the Antarctic Treaty, the purpose of which is to protect the Antarctic from commercial exploitation primarily of its mineral wealth. The Act, through a series of prohibitions, protects the marine environment, specially protected areas, historic sites, monuments, and native species of the Antarctic from Canadian activity. The Act also provides a permitting regime for Antarctic ventures, which the Minister is responsible for administering.

Perfluorooctane Sulfonate Virtual Elimination Act, 2008 [ECCC]

This Act requires the Ministers of Health and Environment and Climate Change to add perfluorooctane sulfonate (PFOS) and its salts to the Virtual Elimination List under CEPA. A CEPA regulation to this effect was put in place in 2009, and therefore this Act currently has no practical effect.

Wildlife

Canada Wildlife Act, 1985 (CWA) [ECCC]

This Act allows the Minister to deal with the conservation and study of wildlife through research and investigation, cooperation with provinces and the public, coordination of policies and programs, and conservation and protection measures.

The Act also allows for the designation of National Wildlife Areas and Marine Wildlife Areas. There are a number of National Wildlife Areas, all managed by ECCC with the exception of one area, Suffield National Wildlife Area, which is managed by the Department of National Defence. To be considered for designation as a National Wildlife Area, a site must contain “nationally significant” habitat for migratory birds, support wildlife or ecosystems at risk, or represent rare or unusual wildlife habitat or a bio-geographic region.

Marine Wildlife Areas address offshore and coastal conservation issues. Several such areas are under study, and the Scott Islands archipelago off British Columbia was finalized on June 27, 2018, as the first Marine Wildlife Area in Canada.

Migratory Birds Convention Act, 1994 (MBCA) [ECCC]

This Act implements the Convention for the Protection of Migratory Birds in the United States and Canada of 1916, the purpose of which is to protect and conserve migratory birds — as populations and individual birds — and their nests from over-hunting and from other human actions. The Act prohibits the purchase, sale or possession of any migratory bird, including parts, nests or eggs, unless authorized by regulation.

The Act also plays a key pollution prevention role. Section 5.1 protects migratory bird habitat by prohibiting the deposit of any substance, or combination of substances, that is harmful to migratory birds on land or in waters they may frequent.

The Migratory Birds Regulations allow ECCC to regulate and enforce a range of human activities and their impacts on migratory birds and the Department is responsible for issuing permits to support regulations.

The Act also provides for the designation of Migratory Bird Sanctuaries. These include a mix of public and private lands under federal, provincial or territorial jurisdiction. Migratory Bird Sanctuaries protect birds and their breeding grounds during the nesting and migratory seasons. There are 92 Migratory Bird Sanctuaries, 21 of which Environment and Climate Change Canada directly manages. ECCC is responsible for enforcement in all 92.

Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act, 1992 (WAPPRIITA) [ECCC]

This Act implements the Convention on International Trade in Endangered Species (CITES) by regulating trade in wild animals and plants. Internationally, more than 30,000 species are listed under CITES. The Act forbids the import, export and interprovincial transportation of designated species unless the specimens are accompanied by the appropriate permits. The Act applies to the plant or animal, alive or dead, as well as to its parts and any derived products.

ECCC issues about 7,000 permits and inspects thousands of imports and exports of CITES-listed species under this Act each year. In some cases, provinces may engage in permitting. The Minister is responsible for preparing an annual report to Parliament.

National Wildlife Week Act, 1985 [ECCC]

This Act designates the week in which April 10 occurs as National Wildlife Week. April 10 was the birthday of Jack Miner, an early Canadian waterfowl conservationist.

Water

Canada Water Act, 1985 [ECCC]

This Act provides the legal framework for undertaking federal/ provincial/territorial programs and agreements for the conservation, development and utilization of Canada’s water resources and stipulates that the Minister of Environment and Climate Change shall develop and implement comprehensive water resource management plans for transboundary waters (i.e., waters that flow across or from Canada-U.S. or inter-provincial/territorial boundaries) where there is a significant national interest. The Minister of Environment and Climate Change is the federal lead for administering Canada Water Act agreements (e.g., providing secretariats for and appointing federal members to water boards) and for conducting research and monitoring in support of these agreements. The Minister of Environment and Climate Change is also responsible for preparing an annual report to Parliament.

International River Improvements Act, 1985 (IRIA) [ECCC]

This Act provides authority to regulate the construction, operation and maintenance of various hydraulic structures (e.g., dams, canals) that alter the flow of water out of Canada or impact the use of a receiving water body outside Canada. The Minister is responsible for issuing IRIA licences that regulate how improvements on international rivers flowing into the United States may affect water flows, levels and uses. However, the Act prohibits the Minister from issuing licenses that would allow for the bulk removal of water from rivers flowing across the international boundary. The Minister is also responsible for preparing an annual report to Parliament.

Lake of the Woods Control Board Act, 1921 [ECCC]

This Act provides for the establishment of the Lake of the Woods Control Board, and defines its purposes and powers. The Board is responsible for regulating specified waters in the Winnipeg River basin.

Lac Seul Conservation Act, 1928 [ECCC]

This Act provides for the implementation of the Canada-Ontario-Manitoba agreement to construct a dam creating the Lac Seul reservoir in the area of the Winnipeg River basin. This is similar to a Canada Water Act agreement, but because it predates other agreements, it is handled separately. The Minister has the same responsibilities as under the Canada Water Act, and reports activities under this Act in the Canada Water Act annual report.

Parks and Protected Areas

Canada National Marine Conservation Areas Act, 2002 [Parks Canada Agency]

This Act provides for the establishment of national marine conservation areas for the purpose of protecting and conserving representative marine areas for the benefit, education and enjoyment of the people of Canada and the world. It states that these areas are to be used in a sustainable manner that meets the needs of present and future generations without compromising the function and structure of marine ecosystems. It provides for zoning to ensure ecologically sustainable use.

The Minister is responsible for the administration, management and control of marine conservation areas in relation to matters not assigned to any other Minister. There is a requirement to table in Parliament a management plan for national marine conservation areas within five years of their establishment and to review them every ten years. The primary considerations in the development or modification of management plans are the principles of ecosystem management and the precautionary principle. Provisions of management plans respecting fishing, aquaculture and fisheries management, and those respecting marine navigation and marine safety are subject to the agreement of the Minister of Fisheries and Oceans and the Minister of Transport, respectively.

The Minister is required to establish a management advisory committee to advise on the management plan for each marine conservation area.

The Act confers authority to make regulations relating to a wide range of issues dealt with by the Government of Canada on the management of national marine conservation areas, including:

• the protection of marine ecosystems
• the protection of cultural, historical and archaeological resources
• the management and control of renewable resource harvesting activities
• the delimitation of zones
• the restriction or prohibition or regulation of activities in marine conservation areas

Any regulations respecting fisheries management, aquaculture, fishing or marine navigation or safety requires the recommendation of the Minister of Fisheries and Oceans or Transport.

Rouge National Urban Park Act, 2015 [Parks Canada Agency]

This Act establishes Canada’s first national urban park, the Rouge National Urban Park, located near Toronto, Ontario. The national urban park is the newest category of protected areas within the PCA family, alongside national parks, national historic sites and national marine conservation areas. The Act provides for the Park’s protection and promotes nature, culture and agriculture while respecting the urban infrastructure required of Canada’s largest metropolitan area.

The Minister is responsible for the administration, management and control of the national urban park, and the administration of public lands in the park. The Minister may also enter into agreements with other levels of government and other persons for the management of the park. Authority is also granted to the Minister to lease, grant easements over and issue licences of occupation for lands in the national urban park. The Act confers on the Governor in Council authority to make regulations with respect to all aspects of the management and administration of the national urban park.

Saguenay-St. Lawrence Marine Park Act, 1997 [Parks Canada Agency]

This Act establishes the Saguenay–St. Lawrence Marine Park in accordance with an agreement with the Government of Quebec, and provides for the marine park’s protection while encouraging its use for educational, recreational and scientific purposes. The Minister is responsible for the administration, management and control of the marine park and is required to table a management plan in Parliament and review that plan every seven years. A coordinating committee makes recommendations to the Minister and the Quebec minister on the implementation of the management plan. An additional committee exists to ensure harmonization of the activities and programs of the federal and provincial governments with respect to the marine park.

The Act confers authority to make regulations over a broad range of uses relating to the management of the marine park, including:

• the protection of ecosystems
• the protection of submerged cultural resources
• zoning characteristics
• the control of the nature and type of activities within the marine park

Historic sites

Historic Sites and Monuments Act, 1985 [Parks Canada Agency]

This Act establishes the Historic Sites and Monuments Board of Canada (HSMBC) and provides for the commemoration of national historic sites, persons and events. The mandate of the HSMBC is to advise the Minister on the commemoration of nationally significant aspects of Canada’s history. Following evaluation and recommendation by the HSMBC, the Minister may declare a site, event or person to be of national historic significance, and may recommend commemoration in the form of a plaque or other suitable manner. The Act also sets out particular requirements for the composition, tenure and meetings of the HSMBC, members of which are appointed by the Governor in Council.

Heritage Railway Stations Protection Act, 1988 [Parks Canada Agency]

This Act provides for the designation of heritage railway stations, and requires Governor in Council approval of any alteration, demolition or transfer of ownership of a designated heritage railway station. The Act requires that eligible stations (those owned by all railway companies governed by Part III of the Canada Transportation Act) be evaluated by the HSMBC. The HSMBC then advises the Minister on whether a building merits designation as a heritage railway station and on its heritage features. The Act authorizes the Minister to designate the railway station as a heritage railway station and features of the building as heritage features for the purposes of the Act. The Act provides a clear process through which proposed changes to heritage railway stations must be reviewed and approved. The Heritage Railway Stations Regulations, made pursuant to this Act, set out the manner in which public notices and applications for authorization must be made by a railway company that plans to remove, destroy, alter, sell, assign, transfer or otherwise dispose of a heritage railway station that it owns or is under its control.

Heritage Lighthouse Protection Act, 2008 [Parks Canada Agency]

This Act provides for the designation of heritage lighthouses owned by the federal government, and protects the heritage character of designated lighthouses by preventing their unauthorized alteration or disposition, and by requiring that they are maintained or altered in accordance with established conservation standards. Under the Act, the Minister responsible for PCA may designate a nominated lighthouse as a heritage lighthouse, taking into account the advice of an advisory committee and criteria established by the Minister. During a 5 year mandated process that ended May 29, 2015, the Minister designated 74 heritage lighthouses. Although the process has officially ended, the Minister can still designate heritage lighthouses at any time pursuant to the Act.

National Cemetery of Canada Act, 2009 [Parks Canada Agency]

This Act gives honorary recognition to Beechwood Cemetery in Ottawa, Ontario, as the national cemetery of Canada.

Laurier House Act, 1952 [Parks Canada Agency]

This Act provides for the administration of the property and contents of Laurier House National Historic Site of Canada and the funds in the Mackenzie King Trust Account in accordance with the will of the late Right Honourable William Lyon Mackenzie King. The Act gives PCA care, custody and control of Laurier House and its contents.

Weather

Weather Modification Information Act, 1985 [ECCC]

This Act creates an obligation on any person engaged in activities aimed at weather modification to inform the Administrator (the Assistant Deputy Minister of the Meteorological Service) of any activity or action in Canada that is designed or intended to produce changes in the weather.

Other

Canadian Environment Week Act, 1985 [ECCC]

This Act designates the week in which June 5 occurs as Canadian Environment Week. This coincides with the United Nations’ designation of June 5 as World Environment Day.

Environmental Violations Administrative Monetary Penalties Act, 2009 (EVAMPA) [ECCC]

This Act provides the legislative framework for an administrative monetary penalties regime under the nine Acts amended by the Environmental Enforcement Act as well as the Canada Water Act and CEAA 2012. The regulations to implement the Act for legislation administered by ECCC were brought into force June 14, 2017. The purpose of this Act is to establish, as an alternative to the existing penal system and as a supplement to existing enforcement measures, a fair and efficient administrative monetary penalty system for the enforcement of the Environmental Acts (as defined in section 2 of that Act).

Federal Sustainable Development Act, 2008 (FSDA) [ECCC]

This Act requires the Minister to develop a Federal Sustainable Development Strategy every three years, which sets out goals/ targets and an implementation strategy, and identifies the responsible Ministers. Consultations on the content of the strategy are required before it is adopted by the Governor in Council and involves other departments, agencies, the Commissioner of the Environment and Sustainable Development, Parliamentary committees and the public. Departments and Agencies must also develop and table their own sustainable development strategies that comply with and contribute to the Federal Strategy.

Amendments to the FSDA that received Royal Assent in 2019 came into force on December 1, 2020. These include increasing the number of federal organizations covered by the Act from 26 to 97 and broadening the meaning of sustainable development beyond environmental matters to include social and economic considerations.

National Strategy for Safe and Environmentally Sound Disposal of Lamps Containing Mercury Act, 2017 [ECCC]

This Act outlines a plan to develop a national strategy on disposing light bulbs containing mercury in an environmentally responsible way. The Minister must report on the implementation of the Act every 5 years. A national consultation concluded in April 2019 that informed the development of the National Strategy which was released later that same year.

Acts for which the Minister has a secondary role or responsibility

Arctic Waters Pollution Prevention Act, 1985 [Fisheries and Oceans Canada, ECCC]

This Act is to prevent pollution of waters in the Canadian Arctic (i.e., North of 60). ECCC helps the Departments of Aboriginal Affairs and Northern Development (now Crown-Indigenous Relations and Northern Affairs Canada and Indigenous Services Canada), Natural Resources, and Transport administer regulations dealing with waste from natural resources.

Bridge to Strengthen Trade Act, 2012 [Transport Canada, ECCC]

This Act exempts the new international bridge between Detroit and Windsor from a variety of environmental approval requirements. However, the Act creates an obligation for proponents to consult and file a plan for mitigation measures on proposed works, undertakings or activities for the purpose of construction of the bridge that would otherwise require authorizations. This includes an obligation on the proponent to consult the Minister of Environment and Climate Change in instances where the SARA would have otherwise required an authorization regarding a listed wildlife species.

Canada Foundation for Sustainable Development Technology Act, 2001 [Natural Resources Canada, ECCC]

This Act establishes the Canada Foundation for Sustainable Development Technology, the purpose of which is to provide funding for projects that meet certain eligibility requirements related to the development of sustainable development technology. The Minister of Environment and Climate Change, together and in consultation with the Ministers of Industry (now Minister of Innovation, Science, and Economic Development) and of Natural Resources, recommends members to the board of directors that are ultimately appointed by the Governor in Council.

Canada Oil and Gas Operations Act, 1985 (COGOA) [Natural Resources Canada, ECCC]

This Act governs the exploration, production, processing, and transportation of oil and gas in marine areas controlled by the federal government. They do not include areas controlled by a provincial government. The purpose of the Act is to promote safety, protection of the environment, the conservation of oil and gas resources, and joint production agreements.

Canada-Newfoundland and Labrador Atlantic Accord Implementation Act, 1987, Canada-Nova Scotia and Offshore Petroleum Resources Accord Implementation Act, 1988 (Accord Acts) [Natural Resources Canada, ECCC, Impact Assessment Agency Canada]

These Accord Acts govern oil and gas development and activities in Canada’s offshore. The Accord Acts implement agreements between the federal and provincial governments relating to offshore petroleum resources. The Acts mirror COGOA and the Canada Petroleum Resources Act, and outline the shared management of oil and gas resources in the offshore, provide for revenue sharing, and establish the respective offshore regulatory boards.

Under these Acts, the Minister of Environment and Climate Change is responsible for:

• providing science advice to inform responders’ efforts to mitigate spills
• establishing a list of spill-treating agents acceptable for use
• recommending regulations relating to spill-treating agents
• authorizing deposits of oil, oil surrogates and spill-treating agents for the purpose of field research on spill-treating agents

Canada Shipping Act, 2001 [Parks Canada Agency, Transport Canada, Fisheries and Oceans Canada]

This Act, primarily administered by the Minister of Transport, is the principal legislation governing safety of marine transportation and recreational boating, as well as protection of the marine environment. The Governor in Council may make regulations respecting the salvage of wreck or classes of wreck on the recommendation of the Minister of Transport and the Minister responsible for PCA.

Cultural Property Export and Import Act, 1985 [Parks Canada Agency, Canadian Heritage, Canadian Border Services Agency]

This Act controls the import and export of movable cultural property and helps to ensure that cultural property of outstanding significance and national importance remains in Canada. The Act establishes the Canadian Cultural Property Export Review Board, members of which are appointed by the Governor in Council and report to the Minister of Canadian Heritage. The Act authorizes the Minister of Canadian Heritage to appoint expert examiners to advise the Board and the Minister of Canadian Heritage on whether cultural property that is proposed for export is of such outstanding significance to Canada’s cultural heritage that its loss to Canada would significantly diminish the national heritage. PCA has been designated by the Minister of Canadian Heritage as an “expert examiner.”

Department of Transport Act, 1985 [Transport Canada, Parks Canada Agency]

This Act establishes the Department of Transport, and provides the regulatory authorities for the Historic Canals Regulations and the Canal Regulations. These regulations govern the management, maintenance, use and protection of the nine historic canals administered by PCA and provide the necessary authorities to control various land- and water-based activities as well as navigation. The nine historic canals are: St. Peter’s Canal in Nova Scotia; Saint-Ours, Chambly, Carillon, Sainte-Anne-de-Bellevue and Lachine canals in Quebec; and Rideau and Sault Ste. Marie canals and the Trent–Severn Waterway in Ontario. The duties and functions of the Minister of Transport under the Act with respect to these historic canals were transferred to the Minister responsible for PCA when the control and management of the canals were transferred to PCA between 1972 and 1979. Subsection 6(4) of the Parks Canada Agency Act confirms that PCA is responsible for the administration and enforcement of the Historic Canals Regulations.

Dominion Water Power Act, 1985 [Indigenous Services Canada, Parks Canada Agency] (some regulations repealed)

This Act and the Dominion Water Power Regulations control the development and use of water power on any federal property and applies to water powers on PCA lands. The Act is administered by Indigenous Services Canada.

Emergency Management Act, 2007 [Public Safety and Emergency Preparedness/Public Safety Canada, ECCC]

This Act came into force on August 3, 2007, and provides for a national emergency management system. The Act created the office of the Minister of Public Safety and Emergency Preparedness. This Minister is primarily responsible for leading and coordinating emergency management in Canada. All Ministers accountable to Parliament, including the Minister of Environment and Climate Change, have a duty under the Act to prepare, test and implement an emergency preparedness plan for those risks that are within or related to each individual Minister’s area of responsibility.

Energy Supplies Emergency Act, 1985 [Natural Resources Canada, Health Canada, ECCC]

This Act permits conservation of energy supplies in Canada during periods of national emergency. The Energy Supplies Allocation Board must consult with the Ministers of the Environment and Climate Change and Health before making regulations relaxing air standards.

Income Tax Act, 1985 [Finance Canada, ECCC]

The Income Tax Act provides tax benefits to landowners who donate ecologically sensitive land or a partial interest in an ecologically sensitive land to a qualified recipient. In order for the donation to qualify with Canada’s Ecological Gifts Program, the Minister of Environment and Climate Change is given the responsibility in the Act to certify the land as ecologically sensitive, approve the recipient to receive the gift, and certify the fair market value of the donation.

Marine Liability Act, 2001 [Transport Canada, ECCC]

This Act requires the Minister of Transport to consult the Minister of Environment and Climate Change in certain circumstances relating to levies imposed under the domestic Ship-source Oil Pollution Fund.

Nunavut Planning and Project Assessment Act, 2013 [Indigenous Services Canada, ECCC]

This Act concerns the assessment of ecosystem and socio-economic impacts of projects in the Nunavut Settlement Area, as well as land-use planning in the Area. It clearly establishes the roles and authorities of Inuit, federal and territorial governments with respect to planning and project assessment in Nunavut. Although administered by Indigenous Services Canada, the Minister of Environment and Climate Change has certain responsibilities related to environmental assessments in the Nunavut Settlement Area.

Resources and Technical Surveys Act, 1985 [Natural Resources Canada, Fisheries and Oceans Canada, ECCC]

The Minister of Environment and Climate Change is responsible for technical surveys, such as meteorological surveys. The Act enables the Minister to distribute results, sell publications and conduct relevant research.

Yukon Environmental and Socio-economic Assessment Act, 2003 [Indigenous Services Canada, ECCC]

This Act was established in the Yukon Umbrella Final Agreement and outlines the process for assessing the environmental and socio­-economic effects of certain activities in Yukon. While administered by Indigenous Services Canada, the Minister of Environment and Climate Change can provide recommendations on the selection of members of the Yukon Environmental and Socio-economic Assessment Board and has certain responsibilities with respect to assessments conducted by the Board.