CANADA Law and Practice Contributed by: Laura Duke, Will Shaw and Emma Russell, Lawson Lundell LLP
The same project may require multiple permits from different government authorities, including across multiple levels of government. By way of example, work on or near a fish-bearing waterway may require a permit under the federal Fisheries Act from Fisher- ies and Oceans Canada, as well as an authorisation from the appropriate provincial authority (eg, in British Columbia, it may also require a permit under the Water Sustainability Act). In some circumstances, the vari- ous environmental permits required for a project may be obtained through a harmonised process, though this is not always the case. Depending on the nature of the project, a federal or provincial environmental assessment (or both) may be required before permits can be issued. Environmental permits are usually time-limited, but the duration will depend on the nature of the activity being permitted. Permits can often be renewed, but an additional regulatory process may be required to secure renewal. Permits typically contain conditions that accord with the requirements of the legislation under which they are granted. In many cases, the applicable legislation explicitly states that environmental permits will only be grant- ed to individuals or businesses that can show they are qualified to hold them. As an example, the federal Nuclear Safety and Control Act forbids transfers of licences unless the licensee can show that they are authorised to carry out the particular activity granted under the licence. Some, but not all, permitting regimes will provide for appeal rights if a permit is denied or if the permit-hold- er is not satisfied with the permit conditions. Typically, such appeals are made to a quasi-judicial author- ity (often an administrative tribunal) or a member of the federal government (a minister). The decision to grant or refuse a permit may also be reviewable by the courts through an application for judicial review. Where indigenous rights have the potential to be impacted by a permit or authorisation, the federal and provincial governments have a constitutional obliga- tion to consult with impacted indigenous groups prior to issuance. Although this legal obligation rests with the government, consultation is often initiated by pro-
ject proponents in order to avoid delays in permitting. The extent of the duty to consult has been the subject of considerable litigation in Canada and remains an area of ongoing legal development. 4.3 Regulators’ Approach to Policy and Enforcement In general, Canada is moving towards a more pro- active approach to enforcing environmental policy ‒ although this depends in large part on the specific agency responsible. Environmental prosecutions are increasingly common, and many agencies publish enforcement decisions as a form of both specific and general deterrence. Penalties are often increased for repeat offenders, whereas penalties may be reduced for those who co-operate with enforcement activi- ties and who voluntarily remediate any environmental harm caused. 4.4 Transferring Permits/Approvals Most environmental permits can be transferred, but governmental consent may be required to do so. The permit transfer process can be lengthy in some cir- cumstances, and may trigger consultation obligations with impacted indigenous groups as well as depend on the manner in which the proposed acquisition is structured. Usually, a change of control will not trigger the need for governmental consent, but the language of the permit and the underlying legislation should be carefully reviewed to make that determination. In some cases, transfers may be prohibited unless the transferee can show that they are authorised to carry out the particular activity granted under the licence. 4.5 Consequences of Breaching Permits/ Approvals The consequences for breaching an approval or per- mit are set out in the governing legislation; additional consequences may also be set out in the authorisation or permit itself. Consequences can include: • compliance orders; • suspension or revocation of the approval or permit; and • administrative penalties, fines and imprisonment. See also 3.2 Breaching Protections .
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