Environment @ Gowlings: December 21, 2009

Edited by Harry Dahme

Contents

FEDERAL NEWS

• ENVIRONMENTAL OCCURRENCES NOTIFICATION AGREEMENTS
• CANADA-WIDE VISION FOR WATER
• REPORT OF THE COMMISSIONER OF THE ENVIRONMENT AND SUSTAINABLE DEVELOPMENT

PROVINCIAL NEWS

ONTARIO

• BILL 212: AN ACT TO PROMOTE GOOD GOVERNMENT BY AMENDING OR REPEALING CERTAIN ACTS AND BY ENACTING TWO NEW ACTS
• WASTE DIVERSION
• PROPOSED GROWTH PLAN FOR NORTHERN ONTARIO

ALBERTA

• ALBERTA LAND STEWARDSHIP ACT

QUÉBEC

• QUÉBEC TABLES ITS NEW DRAFT RESIDUAL MATERIALS MANAGEMENT POLICY AND ACTION PLAN 2010-2015
• PROPOSED REGULATIONS TO SUPPORT QUÉBEC'S DRAFT RESIDUAL MATERIALS MANAGEMENT POLICY
• PROPOSED AMENDMENTS TO THE MINING ACT
• PUBLIC CONSULTATIONS ON GREENHOUSE GAS REDUCTION
• QUÉBEC AND THE COPENHAGEN MEETING OF THE PARTIES
• MINISTRY OF NATURAL RESOURCES AND WILDLIFE PROGRAM ON DEVELOPMENT OF GREEN ENERGY TECHNOLOGIES
• ONTARIO-QUÉBEC COMMON MARKET AGREEMENT

FEDERAL

ENVIRONMENTAL OCCURRENCES NOTIFICATION AGREEMENTS

Notice was published in the October 24, 2009 Canada Gazette, Part 1 of the Environmental Occurrences Notification Agreements with the governments of Alberta, British Columbia, Manitoba, the Northwest Territories, Ontario, Saskatchewan and Yukon. These Agreements obligate each respective government to maintain and monitor a notification system for "environmental occurrences" and to notify the other party to the Agreement of any environmental occurrence.

An "environmental occurrence" refers to the release or likely release of a substance into the environment in contravention of the specified regulations of the Canadian Environmental Protection Act, 1999 (CEPA, 1999), an environmental emergency under Section 201 of CEPA, 1999, the deposit of deleterious substance into water frequented by fish contrary to Subsection 38(4) of Fisheries Act, or other environmental incidents of federal interest. "Other environmental incidents of federal interest" include the release or deposit of a substance harmful to the environment or the release of a substance which causes or threatens to cause adverse effects to public safety, security, health or welfare, to the environment or to property along an inter-jurisdictional or international boundary, and the release of a substance that is of a magnitude that causes or threatens to cause substantial adverse affects to public safety, security, health or welfare to the environment or to the property of Canadian citizens.

In each case the respective provincial Ministry or Department of Environment will be the lead response agency for releases, with the exception of releases on Federal lands, works or undertakings. Environment Canada will act as a support agency for releases involving a deposit of a deleterious substance into water frequented by fish, releases which are likely to result in harmful alteration, disruption or destruction of fish habitat, and releases involving or which may involve lands or waters outside of the territory or boundaries of the respective province.

The Agreements will come into effect on the day on which the Federal Release and Environmental Emergency Notification Regulations and the Federal Deposit Out of the Normal Course of Events Notification Regulations come into force.

The comment period expires on December 23, 2009.

For further information please see:
Part I, Canada Gazette, October 24, 2009, Volume 143, No. 43, page 3240

For further information please see:
http://www.ec.gc.ca/ceparegistry/agreements/EONA/default.cfm (www.ec.gc.ca/ceparegistry/agreements/EONA/default.cfm)

CANADA-WIDE VISION FOR WATER

On October 29, 2009 the Ministers of Environment from across Canada endorsed a Canada-wide strategic vision for water which outlines how the Canadian Council of Ministers of the Environment (CCME) will ensure that Canadians have access to clean, safe and sufficient water to meet their needs but also maintain the integrity of eco-systems.

The CCME vision entitled Setting Strategic Directions for Water provides a framework to guide CCME in the future activities related to water. The five goals to be achieved are that:

• Aquatic eco-systems are protected on a sustainable watershed basis;
• The conservation and wise use of water is promoted;
• Water quality and water quantity management is improved, benefitting human and eco-system health;
• Climate change impacts are reduced through adaptive strategies; and
• Knowledge about the state of Canada's waters developed and shared.

Potential future deliverables include:

• Guidance documents for integrated community-based watershed management;
• A water valuation guidance document;
• A report on the use of social marketing techniques to promote positive behavioural changes;
• Continued development of the Canadian Water Quality Guidelines;
• Development and implementation of a Canada-wide strategy for the management of Municipal Wastewater; and
• Continued monitoring for climate change detection, watershed vulnerability assessment, prioritization and adaption planning and ongoing public reporting.

For further information please see:
http://www.ccme.ca/about/communiques/index.html?item=368 (www.ccme.ca/about/communiques/index.html?item=368)

REPORT OF THE COMMISSIONER OF THE ENVIRONMENT AND SUSTAINABLE DEVELOPMENT

The 2009 Fall Report of the Commissioner of the Environment and Sustainable Development was released on November 3, 2009.

The Report examines a number of areas critical to environmental management, beginning with the emphasis on science-based environmental information that is timely, robust and accessible in ways that identify patterns of environmental degradation and assist programs concentrating on environmental issues. The Commissioner examined a variety of environmental monitoring and science-based programs and concluded that many were working as intended. Examples cited were Canada's Greenhouse Gas Inventory, the Air Quality Health Index and the ongoing review and updating of the Guidelines for Canadian Drinking Water Quality. The Commissioner however was critical of the absence of information on fish habitat protection and on the absence of adequate systems and practices being implemented by Environment Canada to verify that all facilities required to report on the National Pollutant Release Inventory are doing so and that the information being reported is accurate.

The Report examined specific issues. In respect of the application of the Canadian Environmental Assessment Act (CEEA), the recommendations included:

• resolution of long-standing federal coordination issues;
• conducting an evaluation of the quality of environmental assessments, in particular, of screenings conducted under CEAA; and
• implementation of a quality assurance program to ensure the responsible authorities are conducting good-quality environmental assessments and whether the assessments are contributing to the protection of the environment.

In the case of Risks of Toxic Substances recommendations included:

• Preparation and implementation of risk management strategies for lead and mercury in order to address the ongoing risks to human health and the environment associated with these substances;
• Regular preparation and annual release of the Canadian Environmental Protection Act, 1999 annual reports in order to present a complete picture of the previous year's compliance promotion and enforcement activities and related results including compliance rates.

Recommendations flowing from the review of the National Pollutant Release Inventory (NPRI) included:

• the development of the strategy for improving the accuracy of NPRI data; and
• the development of a program to identify non-reporting facilities that may be subject to NPRI reporting requirements and the development of a program to ensure that all facilities report fully.

For further information please see:
http://www.oag-bvg.gc.ca/internet/English/parl_cesd_200911_e_33253.html (www.oag-bvg.gc.ca/internet/English/parl_cesd_200911_e_33253.html)

ONTARIO

BILL 212: AN ACT TO PROMOTE GOOD GOVERNMENT BY AMENDING OR REPEALING CERTAIN ACTS AND BY ENACTING TWO NEW ACTS

Bill 212 received first reading on October 27, 2009. The stated purpose of the Bill is to promote good government. With respect to environmental matters the Bill deals with, among other issues, the rights of appeal to Provincial Cabinet.

Bill 21 proposes to amend the Consolidated Hearings Act by removing the right to make an application to Provincial Cabinet to review a decision of a Joint Board. Similarly, the Environmental Protection Act is to be amended by removing the right to appeal to Provincial Cabinet to review a decision of the Environmental Review Tribunal. Similar amendments are proposed to the Ontario Water Resources Act.

Appeals to Provincial Cabinet have in the past been the subject of controversy. For example, in the case of a proposed landfill at Site 41 located in the Township of Tiny, the approval by Provincial Cabinet of the appeal by the County of Simcoe following a lengthy Joint Board hearing led to a second lengthy hearing before the Joint Board and the subsequent approval of the landfill. The controversy surrounding Site 41 ended only with the decision of Simcoe County Council in 2009 to no longer proceed with Site 41. At the same time, the ability to appeal to Provincial Cabinet was often viewed as beneficial where a party was dissatisfied with the decision of the Joint Board or Tribunal.

Bill 212 proposes certain consequential amendments are made to the Clean Water Act, 2006 and the Nutrient Management Act, 2002.

Section 36 of the Clean Water Act is to be re-enacted to provide that when the Minister approves a source protection plan the Minister shall specify the requirements related to the review of the plan. Section 36 will set out requirements relating to the preparation of terms of reference for a review by a Source Protection Committee, the review of assessment report by the Source Protection Committee and the terms of reference for the review by a Source Protection Committee of all other aspects of a source protection plan.

In the case of the Nutrient Management Act, 2002 the definition "a nutrient" is to be amended to include material that can be applied to land for the purpose of improving the growing of agricultural crops or for the purpose of a prescribed use.

For further information please see:
http://www.ontla.on.ca/web/bills/bills_detail.do?locale=en&Intranet=&BillID=2235 (www.ontla.on.ca/web/bills/bills_detail.do?locale=en&Intranet=&BillID=2235)

WASTE DIVERSION

The Minister of the Environment's report on the Waste Diversion Act, 2002 review entitled "From Waste to Worth: The Role of Waste Diversion in the Green Economy" was posted on the Environmental Registry on October 28, 2009.

The Report outlines proposed changes to Ontario's waste diversion framework. It proposes outcomes – based individual producer responsibility, to be achieved through the following initiatives:

• Making individual producers fully responsible for meeting waste diversion requirements for waste discarded in both the residential and IC&I sectors;
• Allowing those producers to meet their waste diversion requirements either by joining a materials management scheme or by developing their own individual waste diversion plan;
• Requiring individual producers to annually report information on sales into the Ontario marketplace of designated products and packaging
• Requiring that any waste diversion plan meet outcome-based requirements;
• Requiring producers who fail to meet outcome-based requirements to meet prescriptive requirements ("default" option) or face penalties for non-compliance

Clarification of the concept of diversion is to be achieved by:

• Clarifying the concept of diversion to allow a wider range of processes and technologies to be used to meet diversion requirements and encourage innovation:
• • Diversion continues to be reduce, reuse, recycle (which includes material recovery)
  • The material value recovered and preserved from all processes and technologies will be counted as diversion
  • Burning waste, without recovering material for reuse, would not be counted as diversion

A long-term schedule for diversion is to be established. This will be done by:

• Developing a long-term waste diversion schedule for the province that would:
• • Designate materials for diversion including materials discarded in both the residential and IC&I sectors
  • Set consistent timelines and milestones for producer registration, development and implementation of waste diversion plans, and data submission for each designated material
  • Set five-year material-specific collection and diversion targets
  • Trigger a review of targets five years after coming into force
• Including the following materials in the five year schedule: IC&I generated paper and packaging, additional electronics, construction and demolition materials, bulky items, vehicles, branded organics, and small household items.

Effective oversight will be required if this is intended to be accomplished by:

• Improving oversight by clearly articulating the roles of the Ministry of the Environment and Waste Diversion Ontario:
• • Ministry of the Environment: set the policy framework, including designating materials, setting targets and establishing timelines, setting penalties for non-compliance, and setting environmental standards as appropriate. Maintain enforcement role in those instances where prosecution for offences under the WDA is required.
  • Waste Diversion Ontario: carry out guidance, oversight and compliance, including setting up systems for and conducting compliance checks on registration, waste diversion plans, and annual data submissions; levying administrative penalties for non-compliance, and setting administrative standards as appropriate.

The theme of user responsibility will continue. Specific measures to be imposed include:

• Ban designated materials from disposal
• Implementing a disposal levy to narrow the gap between the cost of diversion and disposal, and shift behaviour toward greater diversion
• Using disposal levy revenues to support the waste diversion efforts of businesses, consumers, and municipalities such as measures aimed at design for the environment and consumer education.

Ontario intends to dramatically increase its overall waste diversion rate above the current diversion rate approximately 22%. If the measures as proposed are implemented, there will undoubtedly be an increase in diversion. The outstanding question is the cost to the consumer and whether or not that will be offset by new economic opportunities that will arise from implementation of the measures as set out in the report.

For further information please see:
http://www.ebr.gov.on.ca/ERS-WEB-External/displaynoticecontent.do?noticeId=MTA4MDIy&statusId=MTYyMjY5&language=en (www.ebr.gov.on.ca/ERS-WEB-External/displaynoticecontent.do?noticeId=MTA4MDIy&statusId=MTYyMjY5&language=en)

PROPOSED GROWTH PLAN FOR NORTHERN ONTARIO

The Proposed Growth Plan for Northern Ontario was loaded onto the Environmental Registry on October 23, 2009.

The Places to Grow Act, 2005 received royal assent on June 13, 2005. This Act provides that the government may designate the geographic area of the province as a growth plan area and may develop a growth plan for that area. Ontario Regulation 416/05, as amended designated Northern Ontario as the second part of the province for which a growth plan would be developed. For the purposes of the Plan, Northern Ontario is more or less defined as the part of Ontario north of Parry Sound and Huntsville.

The Plan examines the economy of the North and provides an Action Plan for specific sectors of the economy. In the case of mining, the Plan proposes that:

• Ontario strengthen its position as a leading global mining jurisdiction, maintain its competitive edge and pursue growth in a Northern mining cluster;
• there be investment in research and innovation and that Ontario implement "green" mining initiatives to improve energy efficiency and sound environmental management;
• mine development be linked with regional infrastructure planning;
• incentives be provided to stimulate exploration investment in Ontario; and
• the Mining Act be amended to ensure environmentally sustainable mineral developments stewardship while supporting aboriginal participation in the mineral sector and increasing timeliness and clarity of the regulatory process.

In the case of forestry, the Plan for Action proposes:

• new forest tender and pricing system to provide for more equitable access to forest resources;
• creation of a Forestry Cluster Council to support collaboration among industry, labour, communities, aboriginal people with other forestry and government organizations; and
• innovations to advance forest health, regeneration and new products.

The Plan anticipates the expansion of electricity transmission capacity to support future growth. Proposed are more opportunities for "green" energy with a specific focus on aboriginal participation and new renewable energy and transmission projects through the guaranteeing of up to 75% of an aboriginal community's equity share in a project.

There is also a focus on agriculture and aquaculture. The Plan of Action anticipates:

• the increase of farm and aquaculture production;
• the creation of district agricultural development plans identifying land improvement needs;
• improvements in regional storage and processing infrastructure; and
• new markets and research

Tourism and culture are a key part of the Northern Ontario economy. Measures are proposed to implement a comprehensive northern tourism development strategy and to facilitate partnerships to strengthen the Northern Ontario tourism experience.

The Plan recognizes that investment is required. The Plan proposes the development and implementation of a Northern Investment Strategy in consultation with business, communities and aboriginal groups. Initiatives for improvement in health services, education and the establishment of a Northern Research Policy Institute are key the elements of the Plan.

The Plan recognizes the significant role of aboriginal communities and proposes actions for the purpose of benefitting aboriginal communities, and connecting and strengthening northern communities. This also will require improvements in transportation infrastructure which will require investment in highways, water transportation services, rail and air transportation services.

All of these initiatives are to take place in the context of heightened awareness and implementation of policies for the purpose of ensuring improved environmental stewardship. Growth plan development strategies will take into account environmental impacts and the ecological values of Northern Ontario. Measures will be required to protect and preserve air and water quality and support green energy development as well as adaptation to climate change.

Comments on the Plan can be made up until February 1, 2010.

For further information please see:
https://www.placestogrow.ca/index.php?option=com_content&task=view&id=109&Itemid=78 (www.placestogrow.ca/index.php?option=com_content&task=view&id=109&Itemid=78)

ALBERTA

ALBERTA LAND STEWARDSHIP ACT

The Alberta Land Stewardship Act, S.A. 2009, c. A-26.8 (ALSA), was proclaimed in force on October 1, 2009. It is an ambitious piece of legislation that attempts to balance competing economic, environmental, and social demands. It also endeavours to reduce the institutional fragmentation between government departments and the increasing cumulative effects of development on the landscape.

ALSA serves as the legislative framework that supports the Land-use Framework (LUF) released by the Alberta Government in December 2008. The LUF outlines a comprehensive strategy to manage public and private lands and natural resources in Alberta. It recognized the problem with having separate legal and policy regimes regulating resources such as water, air, oil and gas, wildlife, fish and forests; when many activities such as mining, forestry, energy development, agriculture, transportation, recreation and wildlife harvesting share the same land base. The LUF was also the policy blueprint from which ALSA was conceived.

Purpose Of The ALSA

The purpose of ALSA is to:

1. provide a means by which the Alberta government can give direction and provide leadership in identifying the economic, environmental and social objectives of the province of Alberta;
2. provide a means to plan for the future, recognizing the need to manage activity to meet the reasonably foreseeable needs of current and future generations of Albertan, including Aboriginal peoples; and
3. create legislation and policy that enable sustainable development by taking account of and responding to the cumulative effect of the activities.

In other words, it is an attempt to create a single land planning process that spans both private and public lands, and to consolidate responsibility for land use planning that has been divided and spread across different government departments, agencies, and regulatory tribunals. It is an attempt to manage and to sustain Alberta's growing economy, while balancing this with Albertan's social and environmental goals.

Overview Of ALSA0

(a) Regional Plans, Regional Planning Process, and its Administration

ALSA provides for the establishment of regional plans as the primary means for land use planning within integrated planning regions and the means by which regional plans are created, amended and reviewed. Although ALSA does not explicitly mandate planning regions, it is the intention of the Alberta Government to divide the province into seven regions based on the geographic boundaries of Alberta's seven watersheds as outlined in the LUF. However, ultimately, under ALSA, the Lieutenant Governor in Council has the power to divide Alberta into different planning regions beyond the seven regions that were contemplated in the LUF and to create a regional plan for each region. ALSA also allows for the adoption of sub-regional plans and issue-specific plans under and which become part of a regional plan.

The content of any individual regional plan is flexible. The only mandatory content requirement is that each planning region must describe a vision and state at least one planning objective. It is interesting to note that there is no requirement that the vision or objective needs to promote conservation or environmental protection. This is in contrast with the LUF from which the ALSA is conceived that states regional plans will adopt a cumulative effects approach that address the impacts of existing and new activities on the land.

Further, ALSA lists some of the items that a regional plan may include. These include:

1. policies designed to achieve or maintain the objectives for the planning region;
2. thresholds and indicators;
3. monitoring and assessment criteria;
4. regulations;
5. law about what a local government body may enact as a regulatory instrument;
6. management of the surface or subsurface of land or any natural resource; and
7. authorization for expropriation including expropriation of mines and minerals.

The items listed above are not mandatory:

Moreover, there is no mechanism in ALSA that gives the public the right to participate in the development of a regional plan or challenge the content of a plan. This seems to be inconsistent with the LUF that states regional plans will "consider the input from First Nations and Metis communities, stakeholders, and the public."

ALSA creates a Land Use Secretariat, which is headed by the Stewardship Commissioner. The Secretariat is responsible for the initiation and administration of the planning process leading to the regional plans being submitted to the Lieutenant Governor in Council. Both the Secretariat and the Lieutenant Governor in Council can appoint Regional Advisory Councils (RAC) for the planning regions. The Secretariat would then incorporate the RAC into the planning process for the purpose of providing advice to the Lieutenant Governor in Council regarding the proposed plans. The Lieutenant Governor in Council has no obligations to appoint RACs and, even if they are appointed, there is no obligation to follow or even consider the advice they provide. The approval and amendment of regional plans fall within the absolute and unfettered discretion of the Lieutenant Governor in Council.

Once a regional plan has been made, ALSA further provides that every decision-making body affected by the regional plan must review, decide if any changes are required and make necessary changes to its regulatory instrument or implement new initiatives to comply with the regional plan. Following that review a statutory declaration that the decision making body is in compliance with the regional plan must be filed.

b) Conservation and Stewardship Tools

ALSA creates four new conservation and stewardship policy tools that may be used to protect a landscape, viewscape or other ecological heritage value. These tools can be incorporated into regional plans to help the region meet its objectives. The four tools are:

(i) Conservation Easement

Conservation easements allows private property owners to set aside some of their land for certain defined purposes in section 29. It enables the landowner to grant a qualified organization a conservation easement for any, or all of their land to protect and conserve the ecological integrity of the piece of land. A conservation easement constitutes an interest in land that can be registered at Land Titles.

(ii) Conservation Offsets

Conservation offsets are compensatory actions to address biodiversity or natural value loss arising from development on both public and private lands. To counterbalance the effects of an activity has on the lands, the conservation offsets allows for compensation mechanisms which includes restitution for the damage to the environment through replacement, restoration, or compensation.

(iii) Transfer Development Credit Schemes:

The transfer of development credits is a tool that allows for economic development on private lands but directs it away from specific landscapes by designating conservation areas and development areas. It also allows conditions to be set out under which stewardship units may be used in the conservation areas.

(iv) Conservation Directives:

Conservation directives allows for the express setting aside of specific parcels of land under regional plans to protect, conserve, manage, and enhance environmental, natural scenic, aesthetic or agricultural values. Unlike conservation easements, conservation directives are not interests in land. It is the expropriation through a regional plan, which is allowed under section 9(2)(h) of the ALSA.

CONCLUSION

Both present and future development is likely to be impacted by ALSA. Most of the goals and policies outlined in the LUF have been adopted in some shape or form into ALSA. However, unlike the LUF, ALSA has made some of the requirements optional or discretionary, which can make some regional plans toothless in achieving the intended purpose of this piece of legislation.

Further, the broad grants of discretionary power to the Lieutenant Governor in Council and the little accountability may also limit the effectiveness of the ALSA. The unconstrained power to independently create, amend, and implement the planning regions and regional plans creates a heavy-handed centralized bureaucracy, which is the opposite of what the LUF had intended.

When comparing the LUF to the recently proclaimed ALSA, RACs were intended, under the LUF, to be the main vehicle to ensure local interests and concerns were taken into account during the development of regional plans. However, under the ALSA, the role of the RACs is left wholly to Cabinet's discretion. Further the role of the RACs are not clearly established and seems to suggest that the government wants to avoid the shared responsibility, collaboration and public and stakeholder participation that has been key elements in the LUF.

QUÉBEC

QUÉBEC TABLES ITS NEW DRAFT RESIDUAL MATERIALS MANAGEMENT POLICY AND ACTION PLAN 2010-2015

Québec's Minister of Sustainable Development, Environment and Parks, tabled the Québec Draft Residual Materials Management Policy (Draft Policy) and its proposed Action Plan 2010-2015 on November 16, 2009. Unlike its predecessor the Québec Residual Materials Management Policy 1998-2008, the Draft Policy is intended to be perennial and will be supported with five year action plans.

Objectives

The main objective of the Draft Policy, if adopted, will be to bring the amount of waste that remains to be eliminated in the Province by disposal down to 700 kg per person, to recycle 70% of residual paper, cardboard, plastic, glass and metal, to treat 60% of organic matter using biodegradable agents, to recycle or upgrade 80% of concrete, brick and asphalt waste and to send 70% of building construction, renovation and demolition residual materials to sorting stations. Although the policy does not have force of law, it provides an indication of where the Québec Government stands regarding the management and, namely, the reduction of residual materials generated in the province.

Strategies

In order to reach the objective set by the Draft Policy, the Ministry of Sustainable Development, Environment and Parks proposes ten (10) strategies among which the most noteworthy are:

• the intention to amend the Environment Quality Act to clarify the priority given to the hierarchy of the 3 RV-E principles (reduce, reuse, recycle, adding value, elimination) with respect to the recovery and reclamation of residual materials.
• obtaining stakeholders' views with respect to source reduction and reuse of materials with the view of extending the service life of products while discouraging the use of those with a short life cycle and, in so doing, obtain commitments towards reducing the quantity of packaging and limiting the use of materials that are more difficult to recycle.
• prohibit the burying of paper and cardboard in landfill sites and develop a strategy to foster composting and methane collection from biomass.
• prescribe a framework determining compensation payable by industry for municipal recovery and reclamation services of recyclable materials whereby enterprises would assume the entire cost of recovering and reclaiming containers, packaging and print media and determine if enterprises should bear full responsibility for managing, recovery and reclamation programs.
• increase inspections of landfill sites and impose obligations for waste site operators to support the cost of managing the site after its closure.

The Draft Policy is subject to a comment period for stakeholders until February 23, 2010. The Draft Policy can be accessed on the Ministry's site at http://www.mddep.gouv.qc.ca/ (www.mddep.gouv.qc.ca/).

PROPOSED REGULATIONS TO SUPPORT QUÉBEC'S DRAFT RESIDUAL MATERIALS MANAGEMENT POLICY

Following the tabling of the Québec Draft Residual Materials Management Policy and its Action Plan 2010-2015, the Minister of Sustainable Development, Environment and Parks tabled three draft regulations to support the Policy's implementation in accordance with the strategies of the Action Plan.

1. Extended Producer Responsibility

The Draft Regulation respecting the recovery and reclamation of products by enterprises (Draft Regulation) is aimed at reducing the quantity of residual materials sent for disposal by making businesses responsible for the recovery and reclamation of certain products designated under the Draft Regulation. At this time, the products covered by the Draft Regulation are electronic products, batteries, mercury lamps, paint and paint containers, as well as used oils, coolants, antifreeze and their filters and containers.

(a) Recovery And Reclamation Program

The Draft Regulation provides that companies that market a new product under a brand, name or distinguishing guise, owned or used by the enterprise, will be required to implement a recovery and reclamation program within the prescribed period that meets the requirements of the Draft Regulation. They must also set up collection points where all types of products similar to the ones they sell can be left for recovery or, in some cases, provide collection services for these products (if they were delivered to a consumer's home, for example). An exemption is provided for those companies who become a member of an organization the function or one of the functions of which is to implement or to contribute financially towards the implementation of a recovery and reclamation system for discarded products that has been approved in accordance with the Environment Quality Act.

The Draft Regulation provides that a recovery and reclamation program must provide for the management of recovered products to ensure their reclamation by focussing on reuse, recycling, biological reclamation and energy from waste reclamation or, ultimately, their elimination unless a life cycle analysis shows that a method is more advantageous than another in environmental terms or existing technology does not allow for the use of a management method. The system must furthermore ensure that the management of recovered products, including their transportation, storage, sorting, consolidation and treatment is carried out according to accepted standards and enables to follow the recovery and reclamation process of the products and materials, from their recovery to their final reclamation destination. Favouring the local or regional management of residual materials and providing for collection points as determined by the Draft Regulation are other requirements to be met besides providing information, awareness and education activities, including a research and development aspect of the program and ensuring that it is regularly audited as prescribed by the Draft Regulation.

(b) Designated Products

The categories of products presently targeted by the Draft Regulation are electronic products, batteries, mercury lamps, paint and paint containers and oil, coolants, antifreeze and their filters and containers. Existing regulations applicable to the recovery and reclamation of paints and paint containers as well used oils, oil or fluid containers and used filters will be revoked and existing programs for these products will be replaced with the programs developed under the Draft Regulation.

Electronic products covered by the Draft Regulation are electronic appliances used to send, receive, display, store, record or save information, images, sounds or waves, and their accessories, except products designed and intended to be used in an industrial, commercial or institutional environment inclusively. The Draft Regulation provides that the subcategories of electronic products covered by the Regulation are:

1. desktop computers;
2. laptop computers;
3. handheld computers and tablet PCs;
4. computer screens;
5. television sets;
6. printers;
7. cellular or satellite telephones, wireless and conventional telephones and their hands-free devices, pagers and answering machines;
8. keyboards, mouses, cables, connections, remote controls and ink cartridges designed to be used with a product covered by the products listed under the Regulation;
9. scanners, faxes and photocopiers;
10. videogame consoles and their peripherals;
11. players, recorders, burners, sound, image and wave storage devices, amplifiers, frequency-equalizers and digital receivers;
12. portable digital players, e-book readers, radio receivers, walkie-talkies, digital cameras, digital photo frames, camcorders and global positioning systems;
13. routers, servers, hard disks, memory cards, USB keys, speakers, webcams, earphones and other wireless devices designed to be used with one of the listed products;
14. handheld devices one of the functions of which is a telephone that will also be considered as that type of electronic product.

(c) Recovery Rates And Payments To The Green Fund

The Regulation provides for various recovery rates depending on the type of product, a timeline to implement the recovery and reclamation programs as well as the amount payable to the Quebec Green Fund in the event that the applicable recovery rates are not met (a 15% penalty will be added if payment due to the Green Fund is late for more than 60 days). For example, in calculating the sums to be paid to the Green Fund for electronic products, according to the formula set forth under the Draft Regulation, the latter provides that $20 per unit will have to be paid for desktop computers, $5 per unit for laptop computers and videogame consoles and their peripherals, $25 per unit for computer screens, $75 per unit for television sets and $12 per unit for printers, scanners, faxes and photocopiers.

(d) Coming Into Force, Implementation Periods And Penalties

The Draft Regulation is set to come into force 15 days after its publication in the Gazette officielle du Québec. However, enterprises targeted by the Draft Regulation will benefit from various timelines allowing between one to five years depending on the products in order to reach the prescribed recovery rates. Taking electronic products as an example, as of the third complete calendar year following the implementation of the recovery program for such products, a recovery rate of 40% will have had to be reached for desktop and laptop computers, handheld computers and tablet PCs, computer screens, television sets, printers, scanners faxes and photocopiers, videogame consoles and their peripherals, and players, recorders, burners, sound, image and wave storage devices, amplifiers, frequency-equalizers and digital receivers. This rate shall be increased by 5% per year until a recovery rate of 65% is reached.

Besides penalties for an offence under the Draft Regulation that will range between $2,000 to $250,000 depending on the nature of the offence, the Draft Regulation also provides for the payment of significant financial penalties to be paid into the Québec Green Fund that are applicable to paint and paint containers, and oil, coolants, antifreeze and their filters and containers.

Any comments with respect to the Draft Regulation can be made until January 24, 2010.

For further information please see: the Draft Regulation at http://www.mddep.gouv.qc.ca/ (www.mddep.gouv.qc.ca/).

2. Additional tdrtgemporary charges to land fill residual materials

The Minister of Sustainable Development, Environment and Parks also tabled the Draft Regulation to amend the Regulation respecting the charges payable for the disposal of residual materials pursuant to which for each metric ton of residual materials received for disposal in an authorized landfill between April 1, 2010 and March 31, 2015, the operator of a landfill site will be required to pay an additional charge of $9.50 that is added to the present charge of $10.67 per ton. This is meant to be purportedly a temporary measure aimed at reducing the amount of residual materials sent to a landfill.

3. Organic matter reclamation program and financial guarantees

In order to meet one of the strategies of the Québec Residual Materials Management Policy Action Plan 2010-2015, the Minister of Sustainable Development, Environment and Parks tabled the Draft Regulation respecting financial guarantees payable for the operation of an organic matter reclamation facility, the purpose of which is to make the operation of an organic matter reclamation facility conditional to the setting up of a financial guarantee, by the operator or by a third person on behalf of the operator, intended to ensure the performance of the obligations imposed on the operator pursuant to the Environment Quality Act or any regulation, order or authorization made thereunder. The reclamation facilities aimed by these regulatory requirements, that are intended to apply to both existing and new reclamation facilities, are those where sorting, transfer, storage or treatment operations are carried out on organic matters for the purpose of their reclamation.

The Government also tabled a program aimed at encouraging the treatment of organic materials by biomethanisation and composting the objectives of which are to reduce greenhouse gas emissions and to reduce the quantity of organic materials sent to landfill sites.

For further information please see: http://www.mddep.gouv.qc.ca/ (www.mddep.gouv.qc.ca/).

PROPOSED AMENDMENTS TO THE MINING ACT

The Québec Mineral Strategy entitled Preparing the Future of Québec's Mineral Sector tabled this summer addresses three main policy directions: Create wealth and prepare the future of the mineral sector, ensure environment friendly mineral development and foster integrated, community-related mineral development.

In seeking to reach those objectives, the Minister of Natural Resources and Wildlife, on December 2, 2009, tabled Bill 79 entitled An Act to amend the Mining Act in order to obtain guarantees regarding the restoration of mining sites. The proposed amendments would also confer to the Minister the power to exclude territories in the Province from mining activities in accordance with regional planning objectives. The Mining Act would require every holder of mining rights who engages in exploration work to furnish a guarantee covering rehabilitation and restoration obligations required under the Act. In the event that a company fails to provide the guarantee within the required delay, the proposed amendments provide that the company pay a penalty equal to 10% of the amount of the guarantee. Furthermore, if the company leaves material on the land where exploration work was done at the expiry of the mining exploration rights, a fine of between $50,000 to $100,000 could be imposed on the offender depending on the geographic area concerned.

Rehabilitation and restoration obligations for mine operators are also increased by the proposed amendments so that an operator who engages in mining operations, who operates a concentration plant or who engages in mining operations in respect of tailings will be required to furnish a guarantee covering the anticipated costs of the rehabilitation and restoration of accumulation areas, geotechnical soil stabilization, stabilizing mine openings and surface pillars, water treatment and road work. The guarantee which, presently, must cover 70% of the anticipated cost of performing the work required under the rehabilitation and restoration plan approved by the Minister in relation with accumulation areas will be increased to 100% of the anticipated costs of such work. The guarantee shall also be revised three (3) years following the adoption of Bill 79. The release of a person from the obligations with respect to rehabilitation and restoration work shall remain possible under the amendments where the rehabilitation and restoration work has been performed, in the Minister's opinion, in accordance with the rehabilitation and restoration plan that has been approved and no sum of money is due to the Minister with respect to the performance of the work and, in the Minister's opinion, the land affected by the mining activities no longer presents a risk for the environment or for the health and safety of individuals. Such a release will still be available where the Minister agrees to let a third person assume the obligations. In each case, a favourable opinion from the Minister of Sustainable Development, Environment and Parks shall be required prior to issuing a certificate of release.

PUBLIC CONSULTATIONS ON GREENHOUSE GAS REDUCTION

Following the public consultation held at the request of the Minister of Sustainable Development, Environment and Parks in order to determine the greenhouse gas reduction target that the Québec Government wishes to set for 2020. Premier Jean Charest and Ms. Line Beauchamp both unveiled on November 23, 2009 Québec's target to reduce greenhouse gas emission by 20% below 1990 levels by 2020. This reduction will be reached, according to the Premier and his Minister, according the flexibility from one economic sector to another based on the reduction potential of each, international competitiveness, available technology and required transition measures.

In making the announcement, Premier Charest stated that 48% of Québec's total energy currently comes from renewable energy sources and that the Province holds the best GHG emissions record in Canada with approximately eleven tons per capita, half of the Canadian average. If it reaches its target, Québec will have the smallest level of emission per capita in North America. Since the transportation sector accounts for 40% of Québec's GHG emission, it is the Government's goal to continue implementing a number of reduction initiatives in this sector and to consider major investments to improve the availability of mass transit options and encourage increased use of intermodal transportation of goods.

For further information please see: the consultation document entitled "Le Québec et les changements climatiques : quelle cible de réduction d'émission de GES pour le Québec à l'horizon 2020?" that can be consulted at http://www.mddep.gouv.qc.ca/chang-clim/2005-2020/cible2020.htm (www.mddep.gouv.qc.ca/chang-clim/2005-2020/cible2020.htm)

QUÉBEC AND THE COPENHAGEN MEETING OF THE PARTIES

Québec has set up a website "quebecverscopenhague.gouv.qc.ca" leading up to Québec's presence in Copenhagen for the next COP meeting on climate change. The site is dedicated to informing the public concerning events and activities pertaining to climate change initiatives in which the Government of Québec will participate, as well as providing information concerning Québec's initiatives against climate change and those elsewhere in the world.

MINISTRY OF NATURAL RESOURCES AND WILDLIFE PROGRAM ON DEVELOPMENT OF GREEN ENERGY TECHNOLOGIES

The Québec Ministry of Natural Resources and Wildlife has put in place a program with a duration of two years that is open to private enterprise, universities, colleges and non-profit organisms and which is dedicated to the development of new green energy technologies. The program is also aimed at contributing to the development of enterprises and job creation in this sector.

The program is intended to stimulate research and innovation activities, promote the demonstration of new green energy technologies and contribute to the development of enterprises and job creation in the green energy sector. The green energy technologies aimed by the program are those emerging technologies relative to the production of green and renewable energies, as well as other new technologies (electric vehicles, for example) to be used in the medium and long term.

The program does not apply to projects relative to new environmental applications of existing green energy technologies. The program thus aims, namely, solar energy, wind turbines, geothermal energy, hydrogen, bioenergies. The projects will be assessed according to their energy potential, technical and economic feasibility and socio-economic and environmental advantages. The financial aid available for research and innovation can reach 80% of admissible recognized expenses with a non-refundable maximum contribution of $100,000. With respect to demonstration of these new technologies, financial aid can reach a maximum level of 50% of admissible expenses with a maximum level of financial aid of 40% for expenses exceeding $500,000 of admissible recognized expenses. The maximum amount can reach $1,000,000. More information regarding the program can be found at the above link.

For further information please see: http://www.mrn.gouv.qc.ca/energie/verte/index.jsp (in French only) (www.mrn.gouv.qc.ca/energie/verte/index.jsp).

ONTARIO-QUÉBEC COMMON MARKET AGREEMENT

On September 11, 2009, the Premiers of Québec and Ontario signed a common market agreement ("Accord pour un marché commun") that came into force on October 1^st, 2009 with the exception of the provisions concerning regulatory cooperation that will come into force in March 2010. In regard to the environment, the agreement recognizes the right for each party to adopt different environmental standards in order to protect or improve the quality of their respective environment. Furthermore, the Ontario-Québec agreement further states explicitly that the absence of scientific certainty regarding the use of an environmental measure will not constitute a sufficient justification to consider such a measure as a violation. This appears to constitute an implied recognition of the precautionary principle. The agreement further provides for the harmonization of regulations concerning emission standards for heavy vehicles, as well as the joint development of regulations and programs concerning products stewardship and, namely, the internalization of environmental costs, eco-conception, performance objectives and traceability of recovered products.

What's Happening

Go for Green: 20 Years of Environmental Law at Gowlings. In January 2010 it will have been 20 years since David Estrin Barristers & Solicitors joined what was then Gowling Strathy & Henderson. David Estrin and Harry Dahme joined Mark Madras and thus created the impetus to what has led to the Gowlings Environmental Law Group becoming recognized nationally and internationally for its expertise and high quality of work. Since 1990 the Group has attracted other Environmental Law professionals, such as Paul Granda in Montreal and Alan Blair in Vancouver, all of whom are recognized for their tremendous expertise in this practice area. Together with the other professionals in the Environmental Law National Practice Group, Gowlings now has one of the leading Environmental Law practices in Canada.

This milestone event presents an opportunity to review and reflect upon dramatic changes that have occurred over that period of time in terms of awareness of environmental issues and in the practice of Environmental Law. On the evening of February 4, 2010 Gowlings will be hosting a reception to celebrate this event. For further information please contact Joanne McDonnell joanne.mcdonnell@gowlings.com.

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