CANADA Law and Practice Contributed by: Darrell Podowski, Brian Dominique, Joel Matson and Christa Alvernaz, Cassels Brock & Blackwell LLP
jurisdiction, and were therefore unconstitutional. The IAA was amended in June 2024 to address such encroachment and improve regulatory certainty by focusing on mitigation of impact to Indigenous rights and adverse environmental effects within federal jurisdiction. Notably, the amended IAA definition of “adverse effects with - in federal jurisdiction” excludes greenhouse gas emissions, but includes pollution to boundary or international waters and other marine pollution. The new IAA also adds flexibility for the federal and provincial governments to use co-operative assessment processes for clean growth pro - jects, and to enhance environmental protections. Regulation of the discharge of pollution Much environmental regulation in Canada con - sists of prohibitions against the discharge of pollutants into the environment, except where authorised in advance. For example, the Brit - ish Columbia Environmental Management Act forbids the introduction of waste into the envi - ronment so as to cause pollution (unless valid permits and approvals are obtained). Other environmental regulations focus on the impact of projects on the broader environment, including wildlife and their habitats. For example, Quebec’s Act Respecting Threatened or Vulner - able Species and Ontario’s Endangered Species Act prohibit the destroying or harming of desig - nated species, including altering the ecosystem or biological diversity of their habitat. Environmental protection and permits In mining, environmental standards are com - monly prescribed in relation to air emissions, waste, water, noise and mine closure plans. Reg - ulatory authorisation for discharges of effluents or emissions into the environment from a mine usually takes the form of permits tied to com -
mitments to meet pre-established standards or guidelines tailored to the particular project. Proponents are required to provide financial security against mine closure plans towards reclamation of the mine site as a condition of permit approval. This security safeguards com - munities from lasting environmental damage if a proponent becomes insolvent or prematurely abandons their project. Each province has its own environmental per - mitting regime, often overlapping under multiple statutes and ministries. Permits are required for the discharge of waste, the building and storage of mine tailings and the use of water, among oth - er activities. Mining operations may also require certain federal permits or approvals under vari - ous federal statutes, including: • the Fisheries Act; • the IAA; • the Canadian Environmental Protection Act; • the Canadian Navigable Waters Act; • the Explosives Act; • the Migratory Birds Convention Act; or • the Nuclear Safety and Control Act. While Indigenous communities and govern - ments do not have statutory authority over the environment, mining projects frequently inter - sect with the statutory and constitutional rights of Indigenous people. As such, the participation of Indigenous groups in the regulatory review process is fairly standard, and affected groups are given an opportunity to make submissions to statutory decision-makers in such cases. 2.2 Impact of Environmentally Protected Areas on Mining Cultivated lands, park lands, railway lands, pub - lic roadways, environmentally sensitive lands
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