Part One: British Columbia Defends its Amendments to the Environmental Management Act at the Court of Appeal

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In April, 2018, British Columbia’s Attorney General presented the Reference to the Court, which sought an opinion on the constitutionality of the proposed legislation, which aimed to amend the Environmental Management Act by adding a Part 2.1 titled “Hazardous Substance Permits”. The hazardous substance  identified in the proposed legislation is “heavy oil”, which is defined in the Proposed Legislation as: 

(a) a crude petroleum product that has an American Petroleum Institute (“API”) gravity of 22 or less, or

(b) a crude petroleum product blend containing at least one component that constitutes 30% or more of the volume of the blend and that has either or both of the following: (i) an API gravity of 10 or less, and/or (ii) a dynamic viscosity at reservoir conditions of at least 10,000 centipoise.

Section 22.3(1) of the Proposed Legislation requires all businesses to obtain a permit from B.C.’s Environmental Assessment Office in order to increase the volumes of “Heavy Oil” they bring into or possess in British Columbia:

Requirement for hazardous substance permits 22,3 (I} In the course of operating an industry, trade or business, a person must not, during a calendar year; have possession, charge or control of a substance listed in Column I of the Schedule, and defined in Column 2 of the Schedule, in a total amount equal to or greater than the minimum amount set out in Column 3 of the Schedule unless a director has issued a hazardous substance permit to the person to do so. (2) Subsection (I) does not apply to a person who has possession, charge or control of a substance on a ship.

Before issuing a permit, the Director may require the applicant to

(a) provide information documenting, to the satisfaction of the Director, the risks to human health or the environment that are posed by a release of “Heavy Oil”, as well as an explanation of the impacts and costs of a release; (b) demonstrate, to the satisfaction of the Director, that appropriate measures are in place to prevent, minimize, and respond to releases of “Heavy Oil”; (c) demonstrate, to the satisfaction of the Director, financial capacity to respond and compensate in respect of releases of “Heavy Oil”;

(d) establish funds for or make payments to local or First Nation governments in order to ensure these governments have the capacity to respond to releases of “Heavy Oil”; and (e) agree to compensate any person, local government or First Nation government for damages resulting from a release of “Heavy Oil”

The Director may also require that the permit holder implement and maintain conditions which require the permit holder to prevent release of a substance, insure minimal release of a substance, and maintain equipment and personnel dedicated to effective response to substance release in a time specified by the director.

The Director is also empowered to impose conditions respecting the impacts of a substances’ release. Importantly, a condition may be “to compensate, without proof of fault or negligence” any person, government or First Nation impacted by a substance’s release.

This blog post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the view of the CCLA or PBSC.