Engineering and the

Environment: National and

International Law

APSC 450

November, 14, 2013

P. Dawn Mills, PhD Law

Overview

General History of Canadian Environmental legislation

Overview of Specific Federal Legislation & Regulations

Mandate of Provincial Governments and Environmental Law & Regulation

Engineering and Environmental Regulation

International Instruments and Adjudication

Statue, Treaties, Agreements

and Common Law Standings There are both Federal and Provincial

Environmental Legislation and Regulations

However in the late 1980s it became apparent that additional legal tools were necessary to ensure that the environment was protected

Global concerns through the Bruntland Report: Our Common Future, 1987 and Rio Declaration on the Environment, 1992

Federal & Provincial Authority

and the Environment

Governed through s. 91 of the Constitution Act,

1982

Ocean and Inland Fisheries

Territories, Indian Land, and other Federal Lands

International Affairs, boundary Rivers

Migratory Birds and inter-provincial projects

Indian Lands

Governed through s. 92 & 92A of the Constitution

Act, 1982

Provincial boundaries

Provincial Ownership of Resources

Management of Civil and Property interests

Federal Legislation

Canadian Environmental Assessment Act, SC 1992, c.37

Exclusion List Regulations, SOR/2007-108

Law List Regulations, SOR/94-636

Inclusion List Regulations, SOR/94-637

Canadian Environmental Protection Act, SC 1999, c.33

Fisheries Act, RSC 1985, c. F-14

Metal Mining Effluent Regulation, SOR/2002-222

Provincial Legislation

Forestry Codes

Fisheries

Wildlife Protection Legislation

Mining Legislation

Main Legislation:

Environmental Management Act, [SBC 2003] c. 53.

Environmental Assessment Act, [SBC 2002] c.

Environmental

Assessment Process

Provincial Legislation:

Environmental Management Act

Environmental Assessment Act

Federal Legislation:

Canadian Environmental Protection Act

Canadian Environmental Assessment Agency Act

Fisheries Act

Transportation of Hazard Goods Act

Recent Case Law: Taku River Tlingit First Nation v.

British Columbia (Project Assessment Director), [2004] 3 S.C.R. 550.

MiningWatch Canada v. Canada (Fisheries and Oceans), [2010] 1 S.R.C. 6.

Whistle Blowing

According to APEG-BC Code of Ethics No.9 an Engineer or Engineer in Training

must:

Report to the Association or other appropriate agencies any hazardous, illegal

or unethical professional decisions or

practices by engineers or others.

When is Whistle Blowing Justifiable?

The matter in question must be important. Failure to act could result in harm to people

and/or the environment.

The whistleblower must have clear first-hand knowledge (not hearsay), as well as relevant

expertise.

All other actions within the power of the employee or citizen should be exhausted before

blowing the whistle.

All normal avenues of communication should be pursued before seeking outside help.

Civil Actions and the Environment

Nuisance

Strict Liability

Negligence

Common Issues

Petrochemical Spills

Metal Concentrate Spills

Damage to Streams and Fish bearing Lakes

Abandoned Mines Sites

Noxious Fumes

Dust

Noise

Forest Fires

Nuisance

The most common example of nuisance in

an environmental context

are those in which the

defendant, through his or

her action, interferes with

the plaintiffs use and enjoyment of their land

by producing such things

as noise, smoke, odours,

and noxious fumes.

St. Lawrence

Cement Inc. v.

Barrette,

2008 SCC 64

Strict Liability

In order for strict liability to apply, the defendants use of the land must be a

use bringing with it

increased danger to

others, and not merely a

natural use that confers a

benefit of the community.

R. v. Sault Ste.

Marie, [1978] 2

S.C.R. 1299

Negligence

For negligence in environmental law to

succeed a plaintiff must

show that the defendant

owed a duty of care and

that the defendant failed

to fulfill that duty, and

that the damage the

plaintiff suffered was a

result of a breach of that

duty of care.

British

Columbia v. Canadian

Forest Products

Ltd., [2004] 2 S.C.R. 74,

2004 SCC 38

International Environmental Law

and Issues Sustainable Issues

Trans-boundary Concerns

Global Food Security

Climate Change

Brundtland Report, 1987, or

Our Common Future Sustainable Development:

Development that meets the needs of the present without compromising the ability of

future generations to meet their own needs."

Rio Declaration, 1992

Role of Humans State Sovereignty The Right to Development Environmental Protection in the

Development Process

Eradication of Poverty Priority for the Least Developed Reduction of unsustainable

patterns of production and consumption

Capacity Building for Sustainable Public Participation National Environmental

Legislation

Supportive and Open International Economic System

Compensation for Victims of Pollution and other Environmental Damage

State Cooperation to Prevent Environmental Dumping

Precautionary Principle Internalization of Environmental Costs. Environmental Impact Assessments Notification of Natural Disasters Prior and Timely Notification Women have a Vital Role. Youth Mobilization Indigenous Peoples have a Vital Role People under Oppression Warfare Peace, development and

environmental protection are interdependent and indivisible.

Resolution of environmental disputes peacefully

Cooperation between the State and people

Precautionary Principles

Precautionary Principle:

http://www.unep.org/Do

cuments.Multilingual/De

fault.asp?documentid=7

8&articleid=1163

Where there are threats of serious or

irreversible damage,

lack of full scientific

certainty shall not be

used as a reason for

postponing cost-

effective measures to

prevent

environmental

degradation.

Engineering and the

Environment

Environmental Engineering

Chemical Engineering

Mining and Geological Engineering

Agricultural Engineering

Structural Engineering

Civil Engineering

Forestry Engineering

Petroleum Engineering,

Computer & Electrical Engineering in Application

International Agreements

Adjudication Processes International Treaties

Agreements

International Arbitration Tribunals

United Nations Declarations

Corporate Financing Criteria

International Finance Corporation

World Bank

International Monetary Fund

Procedures in the Event of

Acknowledge that the event has happened

Identify the Provincial or Federal Agency that will inform, inspect the problem and initiate the

reporting process

Fence off the area

Wait instructions on how to remediate the event

Be prepared to be investigated for a nuisance or negligence

Depending on the severity strict liability

Be prepared to pay Fines

Public Opinion

Use the advise of a Government official when disseminating information related

the issue

Invite the Stakeholders to an information sharing event

Bring in a third party that the Stakeholders trust to evaluate the issue, as well as the

remediation