doing business in canada - Davies Ward Phillips & Vineberg LLP

The federal government currently requires large industrial facilities that emit 100,000 tonnes or more ofgreenhouse gases per year to report the quantity of such emissions to Environment Canada. The federalgovernment has emphasized the importance of harmonizing Canada's approach to climate change with that ofthe United States as a means of maximizing progress on reducing greenhouse gas emissions while maintainingeconomic competitiveness. As a result, Canada's 2020 emissions reduction target under the Copenhagen Accord—a 17 per cent reduction from 2005 levels—is identical to the current U.S. target and subject to adjustment toremain consistent. Canada's target is also contingent on all major emitters associated with the CopenhagenAccord. Canada has committed to work toward the implementation of the Copenhagen Accord and to supportinternational negotiations under the United Nations Framework Convention on Climate Change with the goal ofreaching a legally binding, post-2012 international agreement.A consistent approach between Canada and the U.S. could provide some uniformity to the complex patchwork ofclimate change regulatory frameworks that are being implemented in numerous provinces, states and regionsacross North America. For example, the Western Climate Initiative ("WCI"), a coalition of Western U.S. states andfour Canadian provinces (British Columbia, Manitoba, Ontario and Quebec), has agreed to a common emissionsreduction target and is committed to the establishment of a regional cap-and-trade system. Similarly, theRegional Greenhouse Gas Initiative, comprised of Northeastern and Mid-Atlantic U.S. states (with Québec andthe Eastern Canadian provinces as observers) is implementing a cap-and-trade program for carbon dioxideemissions from power plants. Further, Alberta has imposed reduction requirements based on emissions intensityand both British Columbia and Québec have instituted carbon taxes. Finally, Ontario and Québec agreed to worktogether to create a bilateral cap-and-trade system. As part of this agreement and the WCI commitments,Québec has passed climate change legislation enabling the government to put in place, by future regulation, apublic registry of greenhouse gas emissions reported by regulated emitters, greenhouse gas reduction targetsfor regulated sectors and a cap-and-trade system. Québec has a present target of 20% reduction of greenhousegas levels below 1990 levels by the year 2020.Similarly, Ontario has proposed climate change legislation to enable Ontario to regulate greenhouse gasemissions and is working with its WCI partners to develop a cap-and-trade system that can be linked to otherjurisdictions. Ontario has also established a feed-in tariff program with pricing incentives intended to reduce theProvince's carbon footprint and encourage the development of renewable energy projects within the province.CROWN'S DUTY TO CONSULT AND ACCOMMODATE ABORIGINAL PEOPLEIn Canada, the federal and provincial governments (i.e., the "Crown") have a legal duty to consult with FirstNation, Inuit and Métis communities when the Crown has knowledge (real or constructive) of established orasserted Aboriginal or treaty rights (e.g., traditional uses of land, such as hunting, fishing, trapping and theharvesting and gathering of plants, interests in culturally relevant archaeological sites, etc.) and contemplatesconduct that might adversely affect these rights. Such consultation may, in appropriate circumstances, lead to aduty on the Crown to accommodate Aboriginal people. Accommodation measures vary widely including, forexample, the modification of a proposed project, enhanced environmental monitoring, training and employmentfor Aboriginal people and financial contributions to Aboriginal communities.The Crown's duty to consult and accommodate can be triggered by a federal, provincial or territorial approval,licence, permit or any other activity that could potentially adversely affect Aboriginal or treaty rights, such asthe expansion or initiation of resource extraction operations. As a result, the federal and provincial governmentshave instituted Crown consultation processes for proposed projects within their jurisdiction. For projectsinvolving both federal and provincial/territorial governments, the Crown generally tries to coordinateconsultation efforts to minimize duplication. The Crown will also try to coordinate its consultation process withany existing consultation or participation procedures required by land claim or similar self-governmentagreements.Environmental Law 15