Articles 2022

Phase Two of Ontario’s On-Site and Excess Soil Management Regulation took effect on January 1, 2022. Since coming into force on January 1, 2021, the Regulation has introduced a new framework for the excavation, removal and transport of “excess soil” between two or more sites. These regulatory changes have affected property owners, developers, consultants, and the construction industry as a whole, exposing its participants to new risks and legal requirements.

How has impact assessment (IA) and environmental assessment (EA) legislation evolved over the past fifty years in Canada? How will recent IA/EA amendments and modernization schemes impact environmental protection, meaningful Indigenous consultation, socio-economic benefits, and post-approval processes? The Ontario Bar Association’s “Environmental Assessment Primer” provided valuable insight into these questions as well as a comprehensive overview of the practice of environmental assessment law. 

As part of the 2022 OBA Institute conference on February 3rd, 2022, the speakers presented a non-exhaustive list of top ten cases from 2021 based on their relevance to the wide membership of the OBA Environmental Law Section. The selected cases are summarized below and are grouped in themes.

Recent changes to the Endangered Species Act, 2007 (“ESA”) include allowing payment of species conservation charges to a Species at Risk Conservation Fund and streamlining conditional exemptions for activities impacting prescribed species at risk. One significant change is the introduction of a new option allowing proponents undertaking authorized activities to contribute to the Species at Risk Conservation Fund instead of completing beneficial actions for species impacted by their activities.

In this article, Angela Dittrich and David McRobert review the keynote presentation made by Dr. Dianne Saxe to the OBA’s Environmental Law Mentorship Session on June 29, 2021. Dr. Saxe presented a summary of the scientific evidence supporting human-caused climate change and argued that the moral case for the courts taking action on climate change now has been made. A review of climate litigation to date is also provided.

In an effort to reach its stated goal of net-zero emissions across the country, the Government of Canada has plans to implement a ban on the sale of all gasoline-powered vehicles by 2035. This article explores concerns that Canada is not ready for the mass adoption of EVs. Significant upgrades are needed to EV infrastructure, from chargers to local distribution capacity.

On June 29, 2021, the British Columbia Supreme Court held for the first time that the Crown’s power to take up lands for industrial development under a treaty could violate First Nation treaty rights if industrial development resulted in the First Nation no longer being able to meaningfully exercise their treaty rights. The Yahey v. British Columbia decision may have significant impacts on industrial developments involving forestry, oil and gas, and renewable energy in Canadian provinces.

Learn about the recent decision of Greenpeace Canada (2471256 Canada Inc.) v. Ontario (Minister of the Environment, Conservation and Parks) which has confirmed the potentially significant environmental impact of the use of Ministerial Zoning Orders as well as the government’s obligation to closely consider whether public consultation is required under the Environmental Bill of Rights, 1993 prior to the enactment of proposed legislation or policy.

The new Blue Box Regulation came into force on June 3, 2021. This regulation shifts the responsibility of operating and paying for Ontario’s recycling program on to Producers of Blue Box Materials. The transition will take place between July 1, 2023 and December 31, 2025; however, there are important registration requirements effective as of this year to be aware of, as detailed below.

This article examines whether Part 6 of the Canadian Environmental Protection Act (CEPA) adequately regulates the animate products of biotechnology. The authors propose changes to Part 6, and examine the extent to which Bill C-28 could address the challenges identified.