Overview of Federal Water Law 2015 - S tatutory and Case Law Update February 23, 2016 Jacqueline Wilson, Counsel
OVERVIEW 1. Division of power to regulate water law 2. Overview of selected federal water law statutes 3. Amendments in 2015 4. Mort on v Canada (Fisheries and Oceans), 2015 FC 575 (CanLII) 5. Looking ahead: Ministerial mandate letters and water law in 2016 2
Division of power • Water and the environment are not explicitly assigned to either the federal or provincial government in the Constitution Act, 1867 • The environment is touched by several federal and provincial heads of power because the environment encompasses “the physical, economic and social environment” (Friends of the Oldman River Society v Canada (Minister of Transport), [1992] 1 SCR 3) 3
Federal power to regulate water Under the Constitution Act, 1867 , the federal government exercises power over water under these provisions: • Section 91 (10)- Navigation and Shipping • Section 91 (12)- Sea Coast and Inland Fisheries • Section 91 (24)- Indians and Lands reserved for the Indians • Matters of national importance or national concern • Water that flows through inter-provincial and international boundaries 4
Provincial power to regulate water Provinces have broader jurisdiction on issues like water quality and quantity. Under the Constitution Act, 1867 , the provincial government exercises power over water under the following powers: • Section 92(8)- Municipal Institutions • Section 92(10)- Local Works and Undertakings • Section 92(13)- Property and Civil Rights • Section 92(16)- Matters of a merely local or private nature 5
Major federal statutes • Canada Water Act , RSC 1985, c-11 • Canadian Environmental Protection Act , 1999 , SC 1999, c33 • Fisheries Act , RSC 1985, c F-14 • International Boundary Waters Treaty Act , RSC 1985, c I-17 • Navigation Protection Act , RSC 1985, c N-22 • Safe Drinking Water for First Nations Act , SC 2013, c 21 6
Major federal statutes Canada Water Act • Provides for federal-provincial arrangements for water resource management over water quality and quantity • Authorizes unilateral action by the federal government if agreement with a province cannot be reached on matters related to federal waters or inter-jurisdictional waters of significant national concern Canadian Environmental Protection Act • Provides for the protection of the environment and human health by managing toxic substances, marine pollution, disposal at sea and other sources of pollution • Authorizes the federal government to act on international water pollution if a province is not addressing the issue 7
Federal statutes continued Fisheries Act • First enacted in 1868 • Gives the federal government authority over fish and fish habitat • Provides for the protection of water quality for the prevention of pollution to waters inhabited by fish International Boundary Waters Treaty Act • Gives effect to a 1909 treaty between Canada and the United States Provides for the protection of international waterways by • requiring a license to obstruct or divert boundary waters • Establishes an International Joint Commission to handle cases under the treaty 8
Federal statutes continued Navigation Protection Act • Enacted in 1873 to protect navigable streams and rivers from discharge by sawmills • Called the Navigable Waters Protection Act until 2014 • Schedule to the Act that lists the navigable waters for which regulatory approval is required for works that risk a substantial interference with navigation 9
Federal statutes continued Safe Drinking Water For First Nations Act • Acknowledges the importance of access to safe drinking water for residents of First Nation lands • Details of any requirements under the Act will come through regulations • No regulations have been passed 10
Statutory update for 2015 • No significant statutory changes in 2015 • Small amendments were made to the following statutes: 1. Canada Marine Act 2. Canadian Environmental Protection Act 3. Fisheries Act 4. Oceans Act 5. Nunavut Waters and Nunavut Surface Rights Tribunal Act 6. Canada National Marine Conservation Areas Act 11
Statutory update for 2015 Canada National Marine Conservation Areas Act • Definitions of “water taking” and “water transfer” were added to the Act Ontario laws will be applicable in the context of the protection of national • marine conservation areas in Ontario • Lake Superior is added as a national marine conservation area of Canada in Schedule 1 to the Act Nunavut Waters and Nunavut Surface Rights Tribunal Act Fine for offences is increased • • Maximum penalty for an offence was raised to $250,000 for a first offence, $500,000 for a second or subsequent offence • Prior to the amendment, the maximum penalty was $100,000 and there was no increase for subsequent offences 12
Case law review - 2015 Two types of cases: • 1- Judicial review • 2- Regulatory offences /compliance with a licence 13
Morton v Canada (Fisheries and Oceans) , 2015 FC 575 (CanLII) • Application for judicial review • Marine Harvest Canada Inc. was granted a licence to transfer salmon from its hatchery to its fish farm • Salmon tested positive for PRV • Scientific debate about whether PRV caused heart and skeletal muscle inflammation (“HSMI”) • Held: Application allowed – Licence conditions were inconsistent with and diluted the requirements of the Regulations – Significant discussion of precautionary principle 14
Looking ahead to 2016: Ministerial mandate letters Ministerial mandate letters highlight some areas to watch: • Canadian Environmental Assessment Act, 2012 – Several ministers are instructed to “review Canada’s environmental assessment processes to regain public trust, and help get resources to market and introduce new, fair processes” – “Amend environmental assessment legislation to enhance the consultation, engagement and participatory capacity of Indigenous groups in reviewing and monitoring major resource development projects” • Fisheries Act and Navigation Protection Act – Several ministers are instructed to “review the previous government’s changes to the Fisheries Act and Navigable Waters Protection Act , restore lost protections, and incorporate modern safeguards” 15
Acknowledgements and Thanks Thanks to: • Commons Institute • Keshab Dahal for his research assistance Jacqueline Wilson, Counsel jacqueline@cela.ca 16
www.cela.ca 17
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