The Canadian Legal Landscape for Carbon Dioxide Removal

In Canada, the legal system for CDR projects is complex, uncertain, and sometimes unclear. That is because different CDR technologies work in different ways, and each part of a project can be regulated by several laws at both the federal and provincial levels. As a result, both federal and provincial laws can apply to different aspects of the same project. Biomass energy with carbon capture and storage (BECCS) technology, for example, must comply with more than 10 different laws in a single province. These laws range from forestry management to rules on underground storage space. Together, these laws create a confusing legal system that makes it hard for companies to navigate the project approval process. 

There are several possible approaches to addressing this legal complexity at this relatively early stage:

1. Maintain the current approach, allowing CDR projects to work through the existing laws and approval processes on a case-by-case basis. 

2. Use planning tools such as Strategic assessments (SAs), which look at big-picture issues. Instead of focusing on a single project, they examine federal policies, plans, programs, or common problems that affect many projects or entire sectors. Think of an SA as the rule-setter of a football game before anyone steps onto the field. 

3. Use planning tools such as Regional assessments (RAs), which zoom in on a specific geographic area. They study the combined — or cumulative — environmental effects of multiple projects across different sectors happening in the same region over time. If an SA sets the rules of the game, an RA studies what the field itself looks like and how repeated play is changing it. 

4. Using a combination of both, SAs and RAs, pairing big-picture policy rules with a close study of cumulative effects in a specific region.  

SAs and RAs can also be seen as the foundation of a house. If they are done well upfront, everything built on top of them is more stable, more legitimate, and less likely to collapse under pressure. Used together, SAs and RAs can provide both a broad framework for considering how CDR should develop in Canada and how projects could affect specific regions over time. This combined approach can enable a CDR development that is inclusive, carefully considered, and privy of unintended harm to the environment and communities alike. It also raises an important question: how can this planning respect the rights and self-determination of Indigenous Peoples? 

CDR Legal system and Indigenous communities  

Indigenous communities in Canada have worked hard for the recognition of their rights and self-determination, including through litigation, negotiation, and revitalization of laws and governance. When planning and developing multiple CDR projects, it should be kept in mind that, although these technologies need to scale quickly, proponents and governments must conduct the necessary consultation with Indigenous communities. The Crown (the federal, provincial or territorial government acting in an official capacity) is legally required to consult and accommodate Indigenous communities before approving projects that may adversely affect their rights or lands. In fact, the Canadian legal framework is moving beyond token consultation toward consent-based approaches that include Indigenous ownership and equity partnerships in major projects. 

This shift matters for CDR. Careful planning of the legal framework is crucial to not undermine the reconciliation efforts made over several years. CDR success includes early engagement with communities and relationship-building to understand their concerns and traditional stewardship practices.

Advancing SAs and RAs for Canadian CDR 

As CDR technology develops, Canada could continue using existing laws and approval processes, or develop new policies and regulations specifically for CDR. In the near term, SAs and RAs offer two existing tools for examining CDR at different levels. SAs can look at broad issues across the sector, while RAs can examine the combined effects of projects in a specific region. Used together, they provide both perspectives, creating opportunities for early engagement with Indigenous communities and other impacted communities. Over time, if CDR grows significantly, governments may also consider whether new CDR-specific laws or regulations are needed.