Shortcomings of the Current Legislative Regime of Contaminated Site Liability in Saskatchewan and a Principled Approach to an Alternative Model

Abstract

The purpose of this study was to examine the effectiveness of the current legislative scheme provided in The Environmental Management and Protection Act (the EMPA) and the current strategy established by Saskatchewan Environment and Resource Management (SERM) in ensuring the cleanup of contaminated land where voluntary cleanup is not forthcoming. Both the EMPA and the strategy, based on the EMPA, are found inadequate for a number of inter-related reasons. The study is comprised of three parts. First, the EMPA itself is examined and in particular its potential for unfair and arbitrary outcomes. The fact or perception of such outcomes, it is argued, serve to undermine the accomplishment of the purposes the EMPA is intended to effect by affecting the decisions of both SERM and parties potentially subject to the regime. The impact of the Saskatchewan Court of Appeal's 1998 decision in Busse Farms Ltd. v. F.B.D.B. is examined and found to both severely undermine powers provided to the Minister under the EMPA and consequently the SERM strategy, and to reflect a confusion between issues of fairness as between private parties and a broader concept of fairness in the context of effecting public purposes. Finally principles upon which to base an alternative model are proposed. These principles are developed based on liability which may rationally and fairly be connected to the purposes of preventing contamination and funding remediation.