23 Feb Species at Risk and Water & Fisheries Management
The Environment & The Constitution Series:
Species at Risk and Water & Fisheries Management
AN ELC REPORT SERIES
The ELC is pleased to present a series of reports and webinars in relation to the constitutional challenges around environmental management. Underlying this 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 current legal state. We began with a backgrounder on Constitutional Law and the Environment and from there move on to topical reports.
The first two topical reports consider the constitutional jurisdiction to manage species at risk, the flora and fauna that are at risk of disappearing from the Alberta landscape, and the constitutional overlap of fisheries and water management. They will also be the subject of an upcoming webinar.
Threatened Jurisdiction: Species at Risk and the Constitution
There is no explicit reference to species at risk, or wildlife more generally, in the Constitution. Instead, the management and regulation of wildlife and species at risk is largely provincial jurisdiction with much of this control originating in provincial jurisdiction over public lands and resources. However, there is also overlap with federal jurisdiction in a number of instances. For example, the federal government has authority over aquatic species and migratory birds due to section 91(12) of the Constitution Act, 1867 and the Migratory Birds Convention Act, 1994,respectively. Further, as the owner of all federal lands – such as national parks – the federal government exerts authority over the organisms living on those lands. Finally, there is the question of scope of federal regulatory powers that apply to species at risk under the federal criminal law power.
In light of this, legislation managing species at risk exists at both the federal and provincial level. Federally, there is dedicated species at risk legislation in the Species at Risk Act (SARA) and in Alberta species at risk are managed under the Wildlife Act, which is primarily hunting legislation. In this report, we will outline legislation relevant to species at risk and wildlife at both the provincial and federal levels. From there, we will move on to case studies, highlighting certain species that have been the subject of overlapping legislation and notable caselaw, including the greater sage grouse, caribou, and westslope cutthroat trout.
A Fish out of Water: Inland Fisheries, Water Management and the Constitution
Jurisdiction over inland fisheries and water in the province is separated between the federal and provincial governments, respectively. As such the management of the aquatic environment under the Canadian Constitution is separated but intricately linked.
In this report, we look at what this jurisdictional divide means for aquatic systems, water quality, water quantity, and habitat. We look at the main pieces of legislation both federally and provincially and highlight the different regulatory approaches. Relevant case law will be presented and the implications of the jurisdictional overlap discussed.
Threatened Jurisdiction: Species at Risk and the Constitution; and
A Fish Out of Water: Inland Fisheries, Water Management and the Constitution
Webinar Date: Mar 7, 2023 12:00 PM
Register in advance for this webinar:
After registering, you will receive a confirmation email containing information about joining the webinar.
 Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5, ss 92(13), (16), & 109.
 Sara L. Jaremko, “Laws Protecting the Sage Grouse in Alberta as Compared to Saskatchewan and the United States” (15 March 2019) Canadian Institute of Resources Law Occasional Paper #69 at 4 online: https://cirl.ca/sites/default/files/Occasional%20Papers/Occasional%20Paper%20%2369.pdf.
 Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5, s 91(12); Migratory Birds Convention Act, 1994, SC 1994, c 22.
 Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5, s 91(27.
Read more about the ELC’s Constitution and the Environment series or to download the backgrounder, visit:
ABOUT THE ENVIRONMENTAL LAW CENTRE:
The Environmental Law Centre (ELC) has been seeking strong and effective environmental laws since it was founded in 1982. The ELC is dedicated to providing credible, comprehensive and objective legal information regarding natural resources, energy and environmental law, policy and regulation in Alberta. The ELC’s mission is to advocate for laws that will sustain ecosystems and ensure a healthy environment and to engage citizens in the laws’ creation and enforcement. Our vision is a society where our laws secure an environment that sustains current and future generations and supports ecosystem health.
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