Issues and possible approaches, Canadian Environmental Protection Act: discussion paper, chapter 7

7. Supporting environmental protection related to federal activities and on federal and Aboriginal lands

• 7.1 Facilitate incorporation by reference of provincial regimes

Under Canada's Constitution, provincial environmental laws do not necessarily apply to federal government operations or on federal lands (including water). This means that these federal operations and activities on federal lands, including activities on certain Aboriginal lands, may not be subject to provincial regulations or permit systems covering emissions, effluents, environmental emergencies, waste handling and other environmental matters. Part 9 of the Canadian Environmental Protection Act (CEPA) provides some enabling authorities to address this gap. 

7.1 Facilitate incorporation by reference of provincial regimes

Issue

‘Incorporation by reference’ describes a mechanism by which a document or part of a document, as it exists on a particular date or as it is amended from time to time, may be included in a statute or regulation, without needing to reproduce the text of the document in the legislation itself. Once incorporated, the document is considered to be part of the legislation and acquires the force of law.

Incorporation by reference of provincial environmental legislation, or a part thereof, into federal regulations made under Part 9 of CEPA, could help address some of the gaps that exist due to provincial regulations not applying. However, some additional authorities would be needed in Part 9, in order for incorporation by reference of provincial legislation to function effectively.

Possible Approach to Address the Issue

CEPA could be amended to:

• Modify Part 9 regulation making powers to facilitate the incorporation by reference of provincial permitting regimes.
• Formally allow Part 9 regulations to incorporate provincial regimes by reference, on a jurisdiction-by-jurisdiction basis.
• Expressly allow Part 9 regulations to distinguish, not only on the basis of jurisdiction, but also on the basis of classes of entities or areas, or specific entities or areas.