Canadian Environmental Legislative David Hunter B.A., LL.B., LL.M. Bennett Jones LLP Presentation to: Fachbereich 1 Architektur, Bauingenieurwesen, Geomatik Master Infrastrukturmanagement FH Frankfurt am Main – University of Applied Sciences Fachhochschule Giessen Friedberg November 3, 2009

Principle Purposes of the Presentation Consumers of Engineering Services in Canada expect highly competent engineering services Consumers of Engineering Services also require value added - strategic advise on how to address critical issues that evolve from the Regulatory System Engineers and Consultants are expected to be familiar with Federal and Provincial Regulatory Requirements and to interact with Lawyers and Public Relations officials Performance of the Company will be gauged on capability to provide Regulatory Strategic Advise Engineers and Consultants may be required to appear as expert witnesses in Regulatory Hearings and in Criminal Proceedings

Constitutional Framework Canada has a Federal Government, 10 Provincial Governments and 2 Territorial Governments ( Far North ) There is a division of powers between the Federal Government and the Provincial and Territorial Governments Environmental matters are addressed at both levels of government as well as Municipal and there is significant overlap of responsibilities and mandates

Constitutional Framework Canada operates within the framework of Constitution Act which sets out basic rights and freedoms Section 35 of the Constitution Act sets out that no Act of any government can interfere or effect Treaty and Aboriginal Rights The Act also sets out the independence of the Courts Critical factors in discussing the implementation of environmental legislation and policy

Federal Environmental Assessments (The Planning Process) Any undertaking that requires i) federal money and /or ii) federal approval must be screened and approved by the Federal Minister of Environment Specific Approvals Canada Fisheries Act, Canadian Navigation Act, Canadian Wildlife Act, International Boundaries Act, To obtain approval - no impairment, if impairment then mitigation and compensation, must be consultation with First Nations Screening Process - Public Consultation - Environmental Assessment - Alternatives to the Proposal Extensive Review by the Government Agencies and the Public Potentially Public Hearings before a Regulatory Tribunal

Engineers and Consultants Role All technical aspects Consultation Design and Participation Management of Regulatory Relationships Attendance as Expert Witness Before Regulatory Boards

Types of Projects All Inter Provincial Projects - Pipelines All River Crossing Projects All Air Permitting with Interprovincial / US Canada Air Shed Projects All harbour developments All Far North projects Major Infrastructure

Environmental Assessment ( Ontario ) The Environmental Assessment Act - Planning Document All Provincial and Municipal Infrastructure Projects must proceed through the Environmental Assessment Act Transportation, Water and Sewage, Schools, Hospitals, Waste Sites Basic Requirements Assess Options Assess Environmental Impacts Assess Mitigation Public Consultation First Nation Consultation Potentially Regulatory Hearing

Roles and Responsibilities of Engineers, Scientists and Technicians Traditional Role of Design and Construction Implementation Assessment of Regulatory Risk - High Expectation of Knowledge of Regulatory Requirements Capability to Perform in Public Meetings and Public Hearings

First Nations - Treaty and Aboriginal Rights Assessment - Impact on Treaty and Aboriginal Rights - Impact on Traditional Activities - Mitigation and Alternatives Aboriginal People – Indians, Métis and Inuit First Nations – Political/geo-political definition

Environmental Protection (Ontario) Basic Area of Provincial Jurisdiction - Certificates of Approval Any Activity Where a Contaminant is Discharged into the Environment (Air, Land, Water) Any Process Which is Altered - where a loading process, and/or concentration is Altered (Essentially No Grandfathering) Required to Meet Permitting Standards which are set out in Regulation for Air, Land and Water Required to Meet Industrial Standards Steel, Pulp and Paper, Manufacturing Significant Adaptation of USEPA Regulatory Requirements and Modeling Requirements (Air Shed)

Prosecutions Ontario Environmental Protection Act Three Basic Charges Discharge to Environment that May Impair the Environment Failure to Report a Discharge to the Environment Forthwith Failure to Comply With Requirements of a Certificate of Approval (Exceed a Regulatory Requirement)

Process Initiated by 1. Complaint 2. Report Inspected by Abatement Officer Investigated by Enforcement Officer Extensive Powers of Search and Seizure and Legal Powers to Take Statements from Employees

Charges Laid Against, Company, Owners, Employees Contractors to the Company Can be Charged and/or Called as Witnesses for the Trial

Defences Charge that Company Discharged a Contaminant into a River and did Impair the Quality of the Water Crown must Prove that Company Committed the Offence Company Must Prove on Balance of Probability that i) Took all Reasonable Steps to Prevent the Discharge and/or ii) The Discharge was Totally Unforeseeable Defence of Due Diligence

Proceedings are in a Criminal Court and subject to the Criminal Rules of Evidence and Disclosure Court is Constitutionally Independent from the Government(s) Constitutional Protections for Individuals

Penalties $ to $ for First Offence - Regulatory Offence or Minor Discharge $ to $ for First Offence - Regulatory with Impairment $ to $ for Second to Third Offences with Impairment Imprisonment up to Two Years

Last Year (Ontario) 600 Investigations 160 Provincial Crown Briefs Prepared 80 Trial Initiated 40 Completed Major Policy Initiative by Federal and Provincial Governments

Role of the Engineer, Scientist, Technician May be Called as a Witness for the Crown May be Charged May be Retained as an Expert Witness for Crown May be Retained as an Expert Witness for the Defence Will be Responsible for Certificate of Approval Process as Engineer and/or Consultant

Responsibilities of Engineers, Scientists, Technicians Design, Construction and Operation of Planning and Operations that will be subject to Public and Regulatory Oversight Management of Projects through Environmental Planning Processes and Regulatory Risks Extensive Interaction with Regulators Extensive Participation in Project Team - Client, Lawyers, Public Relations Personnel