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Executive Summaries Oct 15, 2019

Obtaining Environmental Permits: Where to Start?

Depending on the nature or location of an infrastructure or construction project, it is highly likely an environmental permit may be required in order to carry out the project. Overview of the various authorisations and permits which are required depending on the nature of the project undertaken.

An Environmental Authorisation Under the Environment Quality Act

The Environment Quality Act requires that an environmental authorisation be obtained in accordance with the nature of the project or the location in which a project will be undertaken. The requirement for an environmental authorisation is set out in section 22 of the Environment Quality Act. In particular, an environmental authorisation - formerly known as a "certificate of authorisation" - must be obtained in the following cases:

  • the construction and operation of an industrial plant
  • the installation of a water withdrawal facility;
  • the establishment, modification or extension of any waste-water management or treatment facility;
  • any work, construction or other intervention in wetlands and bodies of water;
  • certain activities relating to the management of hazardous materials;
  • the installation and operation of equipment to prevent the release of contaminants into the atmosphere;
  • the implementation or operation of a waste disposal facility;
  • establishment and operation of a residual materials reclamation facility;
  • any construction on land that has been previously used as a waste disposal site and is no longer in use;
  • any other activity determined by government regulation;
  • any project involving an activity that may result in contaminants being released or a change in the quality of the environment, including, but not limited to, the construction and operation of an industrial facility, the use of an industrial process and any increase in goods or services.

What procedures should be followed?

The Environment Quality Act and its regulations provide guidance on how to apply for authorisation from the Ministry of Sustainable Development, Environment and Fight Against Climate Change. The Act provides for a mechanism to protect confidential industrial or trade secrets that may be included within an application for an environmental authorisation. When such application is filed with the Ministry, a copy must also be sent to the municipality in which the project will be undertaken.

The Act sets out the criteria that the Minister must consider when analysing the impact of the project for which an environmental authorisation has been requested. In the case of a project that affects a wetland or body of water, the applicant may be required to pay monetary compensation that will be used to protect or create other wetlands or bodies of water to offset those that will be destroyed by the project.

The Act authorises the Minister to prescribe conditions, restrictions or prohibitions on, among other things, measures to mitigate the environmental impact, an environmental monitoring programme, the communication of environmental monitoring or surveillance reports, measures to respect the characteristics and support the capacity of the host environment, the period during which an activity must be carried out, management of residual materials, site restoration measures, measures to reduce greenhouse gas emissions, measures to adapt to climate changes and even the formation of a monitoring committee. In some cases, these measures may be different from those prescribed by government regulations.

Among the formalities to be followed, any person applying for an environmental authorisation must file a declaration of integrity stating that the applicant, its directors, officers and even, in some cases, shareholders, have not been convicted of an environmental offence or even a criminal offence in connection with activities authorised under the Environment Quality Act.

Several regulations implementing section 22 and the following sections are currently being prepared. Consultations with participants have just taken place via "co-creation tables" where interested participants were asked to put forward their ideas and suggestions and to contribute towards drafting the regulations for the implementation of section 22 of the Environment Quality Act.

Which projects are subject to a "declaration" and which are exempt?

The Environment Quality Act provides that the government may, by regulation, identify projects considered to have "low environmental impacts" that will be subject to a "declaration" instead of an application for an environmental authorisation. Consultations are ongoing to establish which project categories will be subject to a "declaration".

Similarly, the government may, by regulation, exempt certain activities from the requirement to obtain an environmental authorisation. Again, consultations are ongoing with interested participants to establish which project categories will be considered to have a "negligible impact", which will exempt them from any requirement to obtain an environmental authorisation or to file a "declaration".

What happens if a project is carried out without authorisation?

When an environmental authorisation is obtained pursuant to section 22 of the Environment Quality Act, the holder of the authorisation must comply with its terms and conditions, under penalty of a fine, an administrative sanction, a suspension or a revocation.

If an individual carries out a project without obtaining an environmental authorisation or filing a declaration, depending on the situation, the natural person is liable to an administrative monetary penalty of $1,000 and a minimum fine of $5,000 and, in the case of a legal person, to an administrative monetary sanction of $5,000 and a minimum fine of $15,000. Fines can reach a maximum of $3 million when the offence is committed by a legal person. Directors or managers of a legal entity, partnership or an unincorporated association are also at risk of prosecution when a legal entity, partnership or unincorporated association commits an offence under the Act or its regulations.

An Environmental Authorisation Under the Fisheries Act

If a project of any nature is to be carried out in a location where it is likely to result in the "deterioration, destruction or disruption to fish habitat", it must obtain a ministerial authorisation under section 35(2)(b) of the Fisheries Act. This section applies to all projects carried out in a body of water, where there is a risk of damage to fish habitat.

Fisheries and Oceans Canada is preparing guides and guidelines to facilitate the application and interpretation of the new version of section 35(1) of the Fisheries Act adopted by Bill C-68 and regulations that will clarify the application of this Act, which broadly covers all activities conducted in a body of water that have the potential to harm, destroy or disrupt fish habitat.

In this regard, it is worth highlighting the Fish and fish habitat protection policy statement, which was published in August 2019 to help litigants understand the meaning and scope of the new provisions of the Fisheries Act, including section 35. This policy statement is based on the principles of "Avoid, Mitigate, Compensate", a philosophy similar to that used by the Government of Quebec for authorising work in a wetlands or body of water.

A Permit Under the Migratory Birds Act

In some cases, a project may be carried out on a shoreline or in a body of water, in an area that is a sanctuary for migratory birds.

The Migratory Birds Convention Act, 1994 is a federal law that protects migratory birds from being affected by human activities. The Migratory Bird Sanctuary Regulations provide for a procedure to issue permits for any activity that is harmful to migratory birds, their eggs, nests or habitats. There are currently 27 migratory bird sanctuaries in Quebec that are protected by law.

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