The discussion on single-use plastics is heating up across Canada. The federal government announced in June 2019 its intention to institute a nationwide ban by 2021 if re-elected this fall. Meanwhile, a growing number of provinces, cities, and towns have already banned certain single-use plastic products and the British Columbia Court of Appeal has now weighed in on a B.C. municipality’s authority to do such a thing. So what are some considerations that single-use plastic bans raise for businesses, consumers, and governments alike?
Background: Plastic Bans Becoming Increasingly Common
On June 10, 2019, the federal government announced its plan to ban a list of single-use plastics by as early as 2021 if re-elected. This comes in the wake of the European Union’s Parliament voting in March 2019 to ban several single-use plastic products on the same timeline. In addition, the federal government recently listed plastic microbeads on the Schedule 1 List of Toxic Substances in the Canadian Environmental Protection Act, 1999, SC 1999, c 33.
Governments at the provincial and municipal level across the country have already imposed bans on items such as single-use plastic bags.
At the provincial level, Newfoundland and Labrador announced in April 2019 that it will become the second province behind Prince Edward Island to ban plastic shopping bags. At the municipal level, the list of communities that have banned plastic bags include dozens in Quebec, four in Manitoba, three in New Brunswick, and a quickly growing number in B.C. In July 2019, Jasper and Wetaskiwin became the second and third communities in Alberta, after the Regional Municipality of Wood Buffalo, to ban plastic bags. This much is clear: whether or not single-use plastic bans can effectively reduce the pollution associated with plastic products, they are becoming increasingly widespread.
Can Governments Ban Single-use Plastics?
An important question for governments proposing a ban, as well as for the businesses and consumers who will be affected, is whether such a ban is legal. In other words: can the government do that?
What does our Constitution say?
Our Constitution says that the federal government can enact laws in some topic areas, while the provincial government can enact laws in others. However, in the case of environmental protection, no level of government has exclusive jurisdiction.
The Supreme Court of Canada has made clear that both the federal and provincial governments can make laws on a specific environmental issue as long as they can connect that issue to a power granted to them in the Constitution. The appellate courts in Ontario and Saskatchewan confirmed this in their recent majority decisions that determined that the federal government could impose a national price on carbon (subject of course to further appeals to the Supreme Court).
What this means is that the federal government may often be able to connect an environmental issue to its power to legislate with respect to criminal law or matters of “national concern” under the “Peace, Order, and good Government” clause in section 91 of the Constitution. Provincial governments, on the other hand, can often legislate on environmental issues due to their authority over property and civil rights and matters of a local and private nature.
Importantly, municipal governments can also legislate on issues relating to the environment, as long as their respective provincial governments have authorized them to do so. A municipality can pass bylaws for any purpose that a province has the power over and has properly delegated to the municipality.
In the past, the Supreme Court of Canada has confirmed the ability of the town of Hudson, Ontario to restrict the use of pesticides within the town, while the Ontario Superior Court has struck down Toronto’s ban on the possession and sale of shark fin products.
Victoria’s Ban on Single-use Plastic Bags
Most recently, and specific to single-use plastics, the British Columbia Court of Appeal in the case of Canadian Plastic Bag Association v Victoria (City), 2019 BCCA 254 struck down Victoria’s ban on single-use plastic bags for being outside Victoria’s jurisdiction.
While Victoria argued that it could impose such a ban because of its authority to create bylaws relating to “business” under the provincial legislation that governs B.C.’s cities, the Court of Appeal found that the bylaw was in fact related to environmental protection. Bylaws relating to environmental protection require provincial approval in B.C. and because Victoria did not receive such approval, its ban on plastic bags was invalid.
This decision highlights the importance of knowing the limits of a government’s authority to impose laws and regulations, such as those that ban single-use plastics. This is important not only for the government seeking to enact laws that will achieve their intended results, but also for the businesses and consumers who stand to be impacted by new laws.
What Comes Next at the Federal Level?
A federal ban on single-use plastics remains speculative at this time. However, if a ban does become reality in the future, it will likely mirror current prohibitions seen elsewhere on plastic bags, straws, and cutlery.
The ban would likely impact the retail and restaurant industry, which uses items such as plastic bags, containers, and cutlery in its day-to-day operations, the oil industry, which provides the building blocks for resins used to produce plastic products, and the plastic producers themselves.
On the other hand, a ban could also be part of a larger plan that reduces waste management costs, lowers greenhouse gas emissions, and provides further financial benefits by redirecting a greater proportion of plastic waste away from landfills and into recycled materials.
Of course, whether a federal ban will be implemented as early as 2021 will likely depend on the outcome of this fall’s federal election. SOURCE