Legislating Restoration

Overview

The polluter-pays-principle (PPP) is a globally recognized principle that obliges responsible parties to pay for restoration of damage they cause to the environment. The principle has been recognized in environmental legislation around the world since its establishment during the 1992 United Nations Earth Summit. Our Living Waters believes that enshrining the PPP in Canadian legislation is essential to ensuring the financial costs of restoration are borne by those responsible for projects that damage the environment. Each federal/provincial/territorial jurisdiction in Canada has its own keystone environment act* regulating standards for environmental quality and protection. These acts are the primary laws governing environmental restoration and it is within them that the PPP would, ideally, be enshrined.

The federal government officially enshrined the PPP in Canadian law with the 1999 Canadian Environmental Protection Act (CEPA). Inclusion of the PPP in the preamble to CEPA provides a clear legal framework within which courts may oblige polluters to pay for remediation of the environment; at least, in cases where the federal government has jurisdiction over their activities.

The PPP is also explicitly recognized in keystone environmental legislation at the provincial/territorial level, though not widely. Of the thirteen provinces and territories, the PPP as such is recognized in only two keystone acts. At the same time, the notion that those who damage the environment should somehow be held accountable for their actions is recognized more or less clearly – though quite differently – in all provincial/territorial acts. This uneven approach leads to differences in the adjudication of cases involving environmental damage.

Our Living Waters is tracking recognition of the PPP in keystone environmental legislation by grouping federal/provincial/territorial jurisdictions into three tiers:

  • Tier 1: jurisdictions that directly enshrine the PPP in their keystone environmental legislation
  • Tier 2: jurisdictions that do not directly enshrine the PPP, but nevertheless make clear in legislation that polluters will be held financially accountable for environmental restoration
  • Tier 3: jurisdictions that do not enshrine the PPP and leave considerable discretion in legislation to government officials to decide on an ad hoc basis what the responsibilities of polluters for environmental restoration are.

Environmental legislation is a highly contextual matter. Keystone environmental acts are influenced by the specific geography, environment, economy and demographics of the jurisdiction they represent. As our research shows, all Canadian jurisdictions have keystone environmental acts that give governments the power to hold polluters accountable for their actions, should they wish to exercise that power. However, holding polluters necessarily to account has been prioritized only by some jurisdictions. Others are less stringent in codifying the PPP, giving officials considerable discretion to determine accountability on a case-by-case basis. These findings do not presuppose the decisions judges will make in any given case but they do indicate how important holding polluters to account is to different legislators across the country. Jurisdictions that enshrine the PPP in environmental legislation signal clearly the obligation for responsible parties to pay the financial costs of their environmental damage. Those that do not leave greater latitude in the interpretation of their legislation – both for officials and the judiciary – decreasing the likelihood that polluters will pay. Ensuring a restoration economy in Canada would be easier if there was uniformity in application of the PPP across the country.

Read our full report on this research here.

* By “keystone” legislation, we mean the overarching environmental protection act of a government at the federal, provincial or territorial level. For example, the Canadian Environmental Protection Act 1999 is the keystone act at the federal level.

Last updated December 2020

Note: The data presented here represents our best research given the time and resources at hand. We acknowledge there may be errors. This shared measurement system belongs to all members of the Our Living Water Network, so if you have any corrections for us, or ideas to share on this measure, please send us an email at [email protected].

Legislating Restoration
Legislating Restoration
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