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The Act

Part 8: Environmental Matters Related to Emergencies

Definitions

193. The definitions in this section apply in this Part.

"environmental emergency" « urgence environnementale »

"environmental emergency" means

  1. (a) an uncontrolled, unplanned or accidental release, or release in contravention of regulations or interim orders made under this Part, of a substance into the environment; or
  2. (b) the reasonable likelihood of such a release into the environment.

"substance" « substance »

"substance" means, except in sections 199 and 200.1, a substance on a list of substances established under regulations or interim orders made under this Part.

1999, c. 33, s. 193; 2004, c. 15, s. 26.

Application

194. For the purposes of this Part, any power, duty or function conferred or imposed under this Part may only be exercised or performed in relation to those aspects of an environmental emergency that

  1. (a) have or may have an immediate or long-term harmful effect on the environment;
  2. (b) constitute or may constitute a danger to the environment on which human life depends; or
  3. (c) constitute or may constitute a danger in Canada to human life or health.

Research

195. Despite subsection 36(3) of the Fisheries Act, subsection 123(1) and regulations made under paragraphs 93(1)(a), (b), (c) and (d) and 209(2)(a), (b), (c) and (d), the Minister may

  1. (a) examine and conduct research, including tests, respecting the causes, circumstances and effects of and remedial measures for an environmental emergency; and
  2. (b) conduct and publicize demonstration projects.

Guidelines and codes of practice

196. The Minister may issue guidelines and codes of practice respecting the prevention of, preparedness for and response to an environmental emergency and for restoring any part of the environment damaged by or during an emergency.

Consultation

197. (1) In carrying out the responsibilities conferred by section 196, the Minister shall offer to consult with the government of a province and the members of the Committee who are representatives of aboriginal governments and may consult with a government department or agency, aboriginal people, representatives of industry and labour and municipal authorities or with persons interested in the quality of the environment or environmental emergencies.

Minister may act

(2) At any time after the 60th day following the day on which the Minister offers to consult in accordance with subsection (1), the Minister may act under section 196 if the offer to consult is not accepted by the government of a province or members of the Committee who are representatives of aboriginal governments.

Publication of guidelines and codes of practice

198. The Minister shall publish in the Canada Gazette, or in any other manner that the Minister considers appropriate, guidelines and codes of practice issued under section 196 or a notice stating where copies of those documents may be obtained.

Requirements for environmental emergency plans

199. (1) The Minister may at any time publish in the Canada Gazette, and in any other manner that the Minister considers appropriate, a notice requiring any person or class of persons described in the notice to prepare and implement an environmental emergency plan respecting the prevention of, preparedness for, response to or recovery from an environmental emergency in respect of

  1. (a) a substance or group of substances on the List of Toxic Substances in Schedule 1; or
  2. (b) a substance or group of substances in relation to which there has been published in the Canada Gazette
    1. (i) a statement of the Ministers under paragraph 77(6)(b) indicating that the measure that they propose to take, as confirmed or amended, is a recommendation that the substance be added to the List of Toxic Substances in Schedule 1, or
    2. (ii) a copy of an order proposed to be made under subsection 90(1).

Contents of notice

(2) The notice shall specify

  1. (a) the substance or group of substances in relation to which the plan is to be prepared;
  2. (b) the period within which the plan is to be prepared;
  3. (c) the period within which the plan is to be implemented; and
  4. (d) any other matter that the Minister considers necessary.

Extension of time

(3) Where the Minister is of the opinion that further time is necessary to prepare or implement the plan, the Minister may extend the period for a person who submits a written request before the expiry of the period referred to in the notice or of any extended period.

Plan prepared or implemented for another purpose

(4) Subject to subsection (5), where a person who is required to prepare or implement an environmental emergency plan under a notice published under this section has prepared or implemented a plan in respect of environmental emergencies on a voluntary basis or for another government or under another Act of Parliament that meets all or some of the requirements of the notice, the person may use that plan for the purposes of meeting the requirements of this Part and, in that case, the plan shall be considered to be an environmental emergency plan that has been prepared or implemented under this Part.

Where partial requirements met

(5) Where a person uses a plan under subsection (4) that does not meet all of the requirements of the notice, the person shall

  1. (a) amend the plan so that it meets all of those requirements; or
  2. (b) prepare an additional environmental emergency plan that meets the remainder of those requirements.

Application of provisions re declarations and keeping plans

(6) Sections 58 and 59 apply to environmental emergency plans, with any modifications that the circumstances require, as if any reference to a pollution prevention plan were read as a reference to an environmental emergency plan.

Submission of plans

(7) The Minister may publish in the Canada Gazette, and in any other manner that the Minister considers appropriate, a notice requiring any person or class of persons described in the notice who are required to prepare or implement an environmental emergency plan under subsection (1) or section 291 or under an agreement in respect of environmental protection alternative measures to submit, within the period specified by the Minister, the plan or any part of the plan.

Regulations

200. (1) The Governor in Council may, on the recommendation of the Minister and after the Committee is given an opportunity to provide its advice to the Minister under section 6, make regulations

  1. (a) establishing a list of substances that, if they enter the environment as a result of an environmental emergency,
    1. (i) have or may have an immediate or long-term harmful effect on the environment or its biological diversity,
    2. (ii) constitute or may constitute a danger to the environment on which human life depends, or
    3. (iii) constitute or may constitute a danger in Canada to human life or health;
  2. (b) prescribing, in respect of a substance on the list established under paragraph (a), a minimum quantity;
  3. (c) respecting the identification of the places in Canada where a substance referred to in paragraph (a), in any quantity or in the quantity prescribed for that substance under paragraph (b), is located and requiring notification to the Minister of those places;
  4. (d) respecting the prevention of, preparedness for, response to and recovery from an environmental emergency in respect of a substance;
  5. (e) respecting the notification and reporting of an environmental emergency;
  6. (f) respecting the notification and reporting of the measures taken
    1. (i) to prevent the environmental emergency, or
    2. (ii) to repair, reduce or mitigate any negative effects on the environment or human life or health that result from the environmental emergency or that may reasonably be expected to result from it;
  7. (g) respecting the implementation of international agreements entered into by Canada in relation to environmental emergencies; and
  8. (h) respecting any other matter necessary for the purposes of this Part.

Environmental emergencies regulated under other Acts of Parliament

(2) The Governor in Council shall not make a regulation under subsection (1) in respect of a matter if, by order, the Governor in Council states that it is of the opinion that

  1. (a) the matter is regulated by or under any other Act of Parliament that contains provisions that are similar in effect to sections 194 to 205; and
  2. (b) that Act or any regulation made under that Act provides sufficient protection to human health and the environment or its biological diversity.

Interim orders

200.1 (1) The Minister may make an interim order, in respect of a substance, that contains any provision that may be contained in a regulation made under this Part, if

  1. (a) the substance
    1. (i) is not on the list established under regulations made under this Part and the Ministers believe that, if it enters the environment as a result of an environmental emergency,
      1. (A) it would have or may have an immediate or long-term harmful effect on the environment or its biological diversity,
      2. (B) it would constitute or may constitute a danger to the environment on which human life depends, or
      3. (C) it would constitute or may constitute a danger in Canada to human life or health, or
    2. (ii) is on that list and the Ministers believe that it is not adequately regulated; and
  2. (b) the Ministers believe that immediate action is required to deal with a significant danger to the environment or to human life or health.

Effect of order

(2) Subject to subsection (3), an interim order has effect

  1. (a) from the time it is made; and
  2. (b) as if it were a regulation made under this Part.

Approval of Governor in Council

(3) An interim order ceases to have effect unless it is approved by the Governor in Council within 14 days after it is made.

Consultation

(4) The Governor in Council shall not approve an interim order unless the Minister has

  1. (a) within 24 hours after making the order, offered to consult with all affected governments to determine whether they are prepared to take sufficient action to deal with the significant danger; and
  2. (b) consulted with other ministers of the Crown in right of Canada to determine whether any action can be taken under any other Act of Parliament to deal with the significant danger.

Recommendation of regulations

(5) If the Governor in Council approves an interim order, the Minister shall, within 90 days after the approval, publish in the Canada Gazette a statement indicating whether the Minister intends to recommend to the Governor in Council

  1. (a) that a regulation having the same effect as the order be made under this Part; and
  2. (b) if the order was made in respect of a substance that was not on the list established under regulations made under this Part, that the substance be added to that list.

Contravention of unpublished order

(6) No person shall be convicted of an offence consisting of a contravention of an interim order that, at the time of the alleged contravention, had not been published in the Canada Gazette unless it is proved that, at the time of the alleged contravention, the person had been notified of the interim order or reasonable steps had been taken to bring the purport of the interim order to the notice of those persons likely to be affected by it.

Cessation of effect

(7) Subject to subsection (3), an interim order ceases to have effect on the earliest of

  1. (a) the day it is repealed,
  2. (b) the day a regulation referred to in subsection (5) is made, and
  3. (c) two years after the order is made.

Tabling of order

(8) A copy of each interim order must be tabled in each House of Parliament within 15 days after it is made.

House not sitting

(9) In order to comply with subsection (8), the interim order may be sent to the Clerk of the House if the House is not sitting.

2004, c. 15, s. 27.

Remedial measures

201. (1) Subject to any regulations made under subsection 200(1) or any interim orders made under section 200.1, if there occurs an environmental emergency in respect of a substance on a list established under the regulations or interim orders, any person described in subsection (2) shall, as soon as possible in the circumstances,

  1. (a) notify an enforcement officer or any other person designated by regulation or interim order and provide a written report on the environmental emergency to the enforcement officer or other person;
  2. (b) take all reasonable emergency measures consistent with the protection of the environment and public safety
    1. (i) to prevent the environmental emergency, or
    2. (ii) to repair, reduce or mitigate any negative effects on the environment or human life or health that result from the environmental emergency or that may reasonably be expected to result from it; and
  3. (c) make a reasonable effort to notify any member of the public who may be adversely affected by the environmental emergency.

Application

(2) Subsection (1) applies to any person who

  1. (a) owns or has the charge, management or control of a substance immediately before the environmental emergency; or
  2. (b) causes or contributes to the environmental emergency.

Report by other persons

(3) A person, other than a person described in subsection (2), shall, as soon as possible in the circumstances, report an environmental emergency to an enforcement officer or to a person designated by regulation or interim order if their property is affected by the environmental emergency.

Intervention by enforcement officer

(4) Where any person fails to take any measures required under subsection (1), an enforcement officer may take those measures, cause them to be taken or direct any person referred to in subsection (2) to take them.

Limitation on power of direction

(5) Any direction of an enforcement officer under subsection (4) that is inconsistent with a requirement imposed by or under any other Act of Parliament is void to the extent of the inconsistency.

Access to property

(6) Any enforcement officer or other person authorized or required to take any measures under subsection (1) or (4) may enter and have access to any place or property and may do anything reasonable that may be necessary in the circumstances.

Personal liability

(7) Any person, other than a person described in subsection (2), who provides assistance or advice in taking the measures required by subsection (1) or who takes any measures authorized under subsection (4) is not personally liable either civilly or criminally in respect of any act or omission in the course of providing assistance or advice or taking any measures under those subsections unless it is established that the person acted in bad faith.

1999, c. 33, s. 201; 2004, c. 15, s. 28.

Voluntary report

202. (1) If a person knows about an environmental emergency but the person is not required to report the matter under this Act, the person may report any information about the environmental emergency to an enforcement officer or to a person designated by regulation or interim order.

Request for confidentiality

(2) The person making the report may request that their identity and any information that could reasonably reveal their identity not be released.

Requirement of confidentiality

(3) No person shall disclose, or have disclosed, the identity of the person making the request or any information that could reasonably be expected to reveal their identity unless the person making the request authorizes the disclosure in writing.

Employee protection

(4) Despite any other Act of Parliament, no employer shall dismiss, suspend, demote, discipline, harass or otherwise disadvantage an employee, or deny an employee a benefit of employment, by reason that

  1. (a) the employee has made a report under subsection (1);
  2. (b) the employee, acting in good faith and on the basis of reasonable belief, has refused or stated an intention of refusing to do anything that is an offence under this Act; or
  3. (c) the employee, acting in good faith and on the basis of reasonable belief, has done or stated an intention of doing anything that is required to be done by or under this Act.

1999, c. 33, s. 202; 2004, c. 15, s. 29.

Recovery of costs and expenses

203. (1) Her Majesty in right of Canada may recover the costs and expenses of and incidental to taking any measures under subsection 201(4) from

  1. (a) any person referred to in paragraph 201(2)(a); and
  2. (b) any person referred to in paragraph 201(2)(b) to the extent of their negligence or wilful conduct in causing or contributing to the environmental emergency.

Reasonably incurred

(2) The costs and expenses referred to in subsection (1) shall only be recovered to the extent that they can be established to have been reasonably incurred in the circumstances.

Liability

(3) Subject to subsection (4), the persons referred to in subsection (1) are jointly and severally liable or solidarily liable for the costs and expenses referred to in that subsection.

Limitation

(4) A person referred to in paragraph 201(2)(b) shall not be held liable under subsection (3) to an extent greater than the extent of their negligence or wilful conduct in causing or contributing to the environmental emergency.

Procedure

(5) A claim under this section may be sued for and recovered by Her Majesty in right of Canada with costs in proceedings brought or taken therefor in the name of Her Majesty in right of Canada in any court of competent jurisdiction.

Recourse or indemnity

(6) This section does not limit or restrict any right of recourse or indemnity that a person may have against any other person.

Limitation period

(7) Where events giving rise to a claim under this section occur, no proceedings in respect of the claim may be instituted after five years from the date on which the events occur or become evident to the Minister, whichever is later.

Minister's certificate

(8) A document purporting to have been issued by the Minister certifying the day on which the events giving rise to a claim under this section came to the knowledge of the Minister shall be received in evidence and, in the absence of any evidence to the contrary, the document shall be considered as proof of that fact without proof of the signature or of the official character of the person appearing to have signed the document and without further proof.

National notification and reporting system

204. (1) The Minister may establish, in cooperation with the governments of the provinces and aboriginal governments and government departments or agencies, a national system for the notification and reporting of environmental emergencies.

Copies

(2) Subject to section 314, any person may have access to and a copy of any information contained in the national system established under subsection (1).

Liability of owner of substance

205. (1) Subject to this Part, the person who owns or has the charge, management or control of a substance immediately before an environmental emergency is liable

  1. (a) for restoring any part of the environment damaged by or during the emergency;
  2. (b) for costs and expenses incurred by a public department within the meaning of the Criminal Code or other public authority in Canada in respect of measures taken to prevent, repair, remedy or minimize the damage to the environment resulting from the emergency, including measures taken in anticipation of the environmental emergency, to the extent that the measures taken and the costs and expenses are reasonable, and for any loss or damage caused by such measures; and
  3. (c) for costs and expenses incurred by the Minister in respect of measures taken to prevent, repair, remedy or minimize the environmental emergency to the extent that the measures taken and the costs and expenses are reasonable, and for any loss or damage caused by such measures.

Definition of "public authority in Canada"

(2) In subsection (1), "public authority in Canada" means Her Majesty in right of a province, an aboriginal government or any other body designated by the Governor in Council for the purposes of that subsection as a public authority in Canada.

Strict liability subject to certain defences

(3) The person's liability under subsection (1) does not depend on proof of fault or negligence, but the owner is not liable under that subsection if the owner establishes that the environmental emergency

  1. (a) resulted from an act of war, hostilities or insurrection or from a natural phenomenon of an exceptional, inevitable and irresistible character;
  2. (b) was wholly caused by an act or omission of a third party with intent to cause damage; or
  3. (c) was wholly caused by the negligence or other wrongful act of government, public department or public authority.

Reduced liability

(4) Where the person who is liable under subsection (1) establishes that the environmental emergency resulted wholly or partially from

  1. (a) an act or omission done by the person who suffered the damage with intent to cause damage, or
  2. (b) the negligence or wilful conduct of that person,

the liability of the person referred to in subsection (1) to that other person is reduced or nullified in proportion to the degree to which the environmental emergency resulted from the factors mentioned in paragraphs (a) and (b).

Person's rights against third parties preserved

(5) Nothing in this Part shall be construed as limiting or restricting any right of recourse that the person who is liable under subsection (1) may have against any other person.

Person's own claim for costs and expenses

(6) Costs and expenses incurred by the person referred to in subsection (1) in respect of measures voluntarily taken to prevent, repair, remedy or minimize damage from the environmental emergency, including measures taken in anticipation of an environmental emergency, to the extent that the measures taken and the costs and expenses are reasonable, rank equally with other claims against any security given by that person in respect of that person's liability under this section.

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