Battleground Environment

Deconstructing Environmental Jurisdiction under the Canadian Constitution

The environment and all that it entails does not specifically appear in the Canadian Constitution. Rather, the environment appears distributed across both the federal and provincial governments. In the words of Supreme Court Justice La Forest in Friends of the Oldman River Society v. Canada (Minister of Transport), “it must be recognized that the environment is not an independent matter of legislation under the Constitution Act, 1867 and that it is a constitutionally abstruse matter which does not comfortably fit within the existing division of powers without considerable overlap and uncertainty.”[1]

While constitutionally abstruse, the fact remain that the environment requires clear government action to regulate harmful impacts on air, water, land, and species. These impacts are driven by activities which are often regulated across the federal-provincial field of enumerated constitutional powers (as set out in sections 91, 92, and 92A). Further, the obligations around environment management are squarely at issue of upholding the honour of the Crown in relation to Indigenous rights and treaty rights.

In light of this complicated backstory, the ELC is pleased to present a series of reports and webinars in relation to the constitutional challenges around environmental management. Underlying the series is the question of whether we can move past ongoing conflict, the battleground of the environment, and seek a more environmentally harmonious approach to management. The first step in answering this question is to understand our legal current state. We begin with a backgrounder on Constitutional Law and the Environment which will set the stage for our forthcoming topical reports. Finally, the last report in this series will consider the intersection of environmental law and Indigenous rights.

LINK TO BACKGROUNDER DOCUMENT

Our topical reports will be released two at a time with a webinar to follow.

To begin, we focus on species at risk and water and fisheries. Our species at risk report will consider the provincial Wildlife Act and the federal Species at Risk Act and several case studies to highlight the overlapping constitutional jurisdiction. In our water and fisheries report we consider constitutional provisions related to inland fisheries and water management.

The next two reports will highlight questions that have arisen relating to the management and control of toxic substances, with plastic in particular and the control of GHG emissions, particularly in light of the Reference re Greenhouse Gas Pollution Pricing Act and future federal commitments.

Finally, our last two topical reports focus on interprovincial matters and impact assessment. Interprovincial matters includes both interprovincial works which are clearly designated as federal jurisdiction in the Constitution and interprovincial pollution, which often evades federal oversight. Our focus on impact assessment provides a brief look at the history of assessment law at the federal and provincial level and considers the Reference re Impact Assessment Act which will be heard at the Supreme Court of Canada this spring.

We conclude this constitutional law series with our report on the Intersection of Environment and Indigenous Rights which will highlight constitutional provisions that relate to Indigenous communities, exploring treaty rights, aboriginal rights, and Métis specific provisions, and finally will connect these ideas with environmental law.

Find links to our upcoming webinar series below.

[1] Friends of the Oldman River Society v Canada (Minister of Transport), [1992] 1 SCR 3 at para 63.

[1] Friends of the Oldman River Society v Canada (Minister of Transport), [1992] 1 SCR 3 at para 63.