Environment and Climate Change Canada’s primary tool for managing water pollution is the Fisheries Act. Under subsection 36(3) of the Act, deposits of deleterious substances to fish-frequented water are prohibited unless authorized by regulation. Subsection 36(5) of the Act allows the Governor in Council to make regulations prescribing:
the deleterious substances authorized to be deposited;
the waters or places where any deleterious substances are authorized to be deposited;
the quantities or concentrations of any deleterious substances that are authorized to be deposited;
the conditions or circumstances under which the requirements subject to which any deleterious substances or any quantities or concentrations of those deleterious substances authorized to be deposited in any waters or places or in the course or conduct of any works or undertakings; and
the persons who may authorize the deposit of any deleterious substances in the absence of any other authority, and the conditions or circumstances under which and requirements subject to which those persons may grant the authorization.
Regulations made under the Fisheries Act generally grant industrial operations the authority to deposit deleterious substances to the environment as long as they meet certain conditions, such as substance concentration limits, acute lethality requirements, and environmental monitoring. Regulations like these (for example the Metal and Diamond Mining Effluent Regulations, the Pulp and Paper Effluent Regulations, and the Wastewater Systems Effluent Regulations) are usually passive in nature, meaning that the authority to deposit effluent is granted automatically to operations covered by the regulations. Under this type of regulation, operators maintain the authority to deposit as long as they meet the requirements, and their environmental performance is not assessed prior to release. Instead, performance is assessed through inspections and enforcement under the regulations. Releases of effluent are also managed by provincial and territorial governments.
The Crown-Indigenous Working Group (CIWG) has decided that this model of regulation is not appropriate for potential releases of oil sands mining effluent. Instead, the CIWG is interested in pursuing a more active approach to managing oil sands mining effluent, such as a permitting or authorization regime. This approach could include pre-release assessments, including an assessment of existing and potential cumulative effects of potential effluents before they are authorized. Under this approach, effluents could also be assessed for potential effects to the environment, ecosystems, human health, traditional land-use and Indigenous rights. Indigenous communities in the oil sands region and downstream could be given an opportunity to meaningfully participate in the decision-making process, and decisions could take into account the potential cumulative and sector-scale effects of oil sands mining effluent.
Please send proposals to rabel@fortmckay.com by August 1, 2022. Please reach out with any questions.
