Over the course of the past few years, climate change and environmental considerations have influenced the political, social and economic landscape at international, federal, provincial, territorial and local levels. These issues are at the forefront of public discussions and affect the way many sectors of the Canadian economy are being regulated. In 2020, climate change and environmental matters will continue to have significant effects on how Canadian policies, laws and regulations are being shaped and applied at all levels throughout the country.
On December 13, 2019, following the federal election, Prime Minister Trudeau released mandate letters to his cabinet members, including to the Minister of Environment and Climate Change, the Minister of Fisheries, Oceans and the Canadian Coast Guard (F&O), and the Minister of Transport, notably with requests to:
- Strengthen existing and introduce new greenhouse gas (GHG) emissions reducing measures to exceed Canada’s 2030 emissions reduction goal and to achieve net-zero emissions by 2050;
- Ban single-use plastic products, and work with provinces and territories to develop national targets, standards and regulations so that corporations that manufacture plastic products or sell items with plastic packaging be responsible for collecting and recycling them;
- Strengthen the Canadian Environmental Protection Act, 1999;
- Evaluate the effectiveness of the existing Species at Risk Act and assess the need for modernization;
- Implement the recently modernized Fisheries Act, which came into force in August 2019 (New FA). The New FA has notably enhanced the conservation powers of the F&O Ministry. It has also reinstated certain protections, including the prohibition against the harmful alteration, disruption or destruction of fish habitat, and the proscription against causing the death of fish by any work, undertaking or activity other than fishing; and
- Advance toward the zero-emission vehicles targets of 10 percent of light-duty vehicles sales per year by 2025, 30 percent by 2030 and 100 percent by 2040.
It will be relevant to watch how these mandates take form in 2020. Among the many other environmental and climate change law trends to be followed this year—in addition to matters related to the adoption of the highly anticipated federal Impact Assessment Act further analyzed under our Energy section—we highlight the following ones.
Constitutional issues in environmental and climate change law in Canada
Significant developments in various court cases pertaining to constitutional issues in environmental and climate change law in Canada are also to be followed in 2020, including:
- Developments to be expected this year relating to court challenges that certain provinces have brought against the federal Greenhouse Gas Pollution Pricing Act, which is analyzed under our Energy section;
- The outcome of the application for leave to appeal at the Supreme Court of Canada (SCC), filed in November 2019, by the Attorney General of Québec, in the IMTT-Québec (IMTT) and the Québec Port Authority (QPA) case regarding the application of provincial environmental statutes to ports (IMTT Case).
In September 2019, in the IMTT Case, the Québec Court of Appeal (QCA) confirmed the Québec Superior Court’s decision, holding that certain provisions of Québec’s Environment Quality Act (EQA) related to the obligation to obtain certain environmental authorizations, did not apply to IMTT’s construction project on QPA’s lands. In doing so, the Court provided relevant insights into federalism, as it relates to environmental matters that are of concurrent jurisdiction. Based on the doctrine of interjurisdictional immunity recognized in constitutional law, the QCA concluded that:
- The tank terminal leased by QPA to IMTT is a federal public property;
- IMTT is an enterprise that is closely intertwined with matters of navigation and shipping, as well as interprovincial transportation, making it a federal enterprise; and
- The doctrine of federal paramountcy resolves conflicts of application and purpose between federal legislation and the EQA, rendering the provisions of the latter pertaining to the requirements of obtaining environmental authorizations ineffective with respect to IMTT’s facilities and activities within the Port of Québec.
Following this decision, an application for leave to appeal at the SCC was filed.
The 26th Annual Conference of the Parties of the United Nations Framework Convention on Climate Change (COP26)
This year, COP26 is to be held in Glasgow, Scotland, and will notably aim to have countries set more ambitious targets and updated plans (i.e., Nationally Determined Contributions) to reduce GHG emissions pursuant to the 2015 Paris Agreement. In Canada, discussions in that regard will likely occur this year given the federal government’s priority of exceeding its 2030 emissions reduction goal and achieving net-zero emissions by 2050. Issues of global carbon markets pursuant to section 6 of the Paris Agreement—which had not been resolved in 2019 at COP25—will also be a key agenda item to follow closely at COP26 in December 2020.
To read the comprehensive Dentons’ pick of Canadian Regulatory Trends to Watch in 2020 report, click here.
This post was originally published on dentons.com.