CONSTITUTIONAL LAW
AND ENVIRONMENT
SEPTEMBER 16, 2013
Overview
• Canada’s Constitution—Overview
• Division of Legislative Powers relating
to Environment
• Constitutionality of Federal Laws such
as CEPA, CEAA 2012
• Adequacy of Federal Legislative
Authority over Environment
Overview of Canada’s Constitution
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What is it? What’s in it?
British North America Act
Constitution Act 1982
Canadian Charter of Rights and
Freedoms
Overview of Canada’s Constitution
• Constitutional law cases in Canada
– Authority of levels of government to
legislate over different subjects
– Consistency of laws with Charter (since
1982)
– Consistency of laws with constitutionally
entrenched Aboriginal rights (s.35) since
1982
Division of Powers
Exclusive vs. Concurrent
Jurisdiction
• Exclusive Provincial Powers ss. 92,
92A, 93
• Exclusive Federal Powers ss. 91, 132
• Concurrent Powers – 94A, 95
Ownership vs. Legislative Authority
• Ownership of Crown lands and waters
a product of constitutional history
• Legislative authority - division of
powers under Constitution
• Provinces own Crown lands (and thus
natural resources) within respective
boundaries subject to exceptions
• Feds own Crown lands in northern
territories, Indian reserves, national
parks, military bases, offshore seabed
Ownership Authority
• Ownership affords authority to control,
manage, regulate production, collect
royalties
• Export of natural gas as example of how
ownership authority can frustrate
legislative authority
• Public ownership of natural resources
such as fish, wildlife, water (when does
ownership change?)
Division of Legislative Powers
Relating to Natural Environment
• Environment not mentioned specifically
in Confederation era documents
• Constitutional authority divided
according to various heads of power
• Environment is “constitutionally
abstruse” Oldman
• Environmental initiatives need be linked
to head of power, but legislative
authority may vary
Division of Legislative Powers
Relating to Natural Environment
• Why should fisheries power differ from
navigation or railways powers?
• Constitutionality of environmental law
depends on:
– Source, nature, consequences of law
– Form and scope of law (Lucas)
• History of cases: federal legislative
powers are patchwork superimposed on
provincial carpet
Provincial Legislative Powers
(s.92, 92A)
• Property and civil rights
• Matters of a merely local or private
nature
• Lands, mines, minerals; non-renewable
natural resources; forestry; electrical
energy
• Local works and undertakings
Property and Civil Rights
• Most important head of provincial power
• Upheld by courts in competition with
federal powers such as trade and
commerce (Citizens Insurance)
• Provincial authority over property and
civil rights upheld when regulated
companies extend beyond jurisdiction of
any one province
Matters of a merely local or private
nature
• Overshadowed in cases by property
and civil rights power
Natural Resources s. 92A
• 1982 constitutional amendments
• Exclusive provincial authority to
legislate in relation to:
– Exploration for non-renewable natural
resources
– Development, conservation and
management of non-renewable natural
resources and forestry resources
– Development, conservation and
management of electrical
energy
Natural Resources s. 92A
• Concurrent provincial authority to
legislate in relation to export from
province to another of primary
production from non-renewable natural
and forestry resources and production
from electricity facilities
• Authority to legislate taxes in relation to
non-renewable natural and forestry
resources, electricity production
Geographic Constraints on
Provincial Authority
• Right of action under Manitoba law
against pollution originating in upstream
province held to be unconstitutional
(Interprovincial Co-op)
• Extraterritorial origin of pollution
removed it from provincial legislative
authority
• Implications for federal authority?
Federal Legislative Powers (s.91)
• Sea coast and inland fisheries
• Navigation and shipping
• Works and undertakings (interprovincial,
declared for general benefit of Canada)
• Spending and taxation
• Trade and commerce
• Indians and lands reserved for Indians
• Criminal law
• Peace order and good government
Federal Legislative Powers (s.132)
• Implementation of Empire treaties
– International Boundary Waters Treaty
– Migratory Birds Convention
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Implementation of Canadian treaties?
Labour Conventions Case 1937
Signature and ratification – federal
Implementation – federal/provincial or
both depending on subject matter (e.g,
Biodiversity Convention, UNFCCC)
Sea Coast and Inland Fisheries
• Federal fisheries power under s.91 is
legislative only (Fisheries Reference
1898)
• Exercise of federal fisheries power can
legally restrict exercise of property
rights (closed seasons, licencing)
• Federal power does not extend to
processing and canning plants (Fish
Canneries Reference)
Sea Coast and Inland Fisheries
• R. v. Fowler
– Wood debris deposited into a stream
contrary to Fisheries Act
– No evidence actual harm to fish, habitat
– Not within federal legislative authority
• R. v. Northwest Falling Contractors
– Diesel oil - deleterious substance
deposited into waters frequented by fish
– Evidence of harm to fish
– Within federal authority
Navigation and Shipping
• Provides federal authority to legislate
with respect to protection of navigable
waters as well as navigation
• Note recent amendments in 2012
Omnibus Bill C-45
• Navigable Waters Protection Act is now
Navigation Protection Act
Works and Undertakings
• “Works” are physical things
• “Undertakings” not physical things but
arrangements under which physical
things are used
• Works and undertakings confined to
transportation or communications
undertakings (e.g., pipelines)
Works and Undertakings
• Works and Undertakings connecting
provinces or extending beyond limits of
a province s. 92.(10)(a)
– Railways, canals, telegraph lines, pipelines
• Works for general advantage of Canada
s.92.(10)(c)
– Requires declaration by Parliament of
Canada
• NEB-regulated pipelines: provincial
legislative authority?
Indians and lands reserved for
Indians
• Lands reserved for Indians by virtue of
1763 Royal Proclamation and preconfederation reserves fall within
federal legislative authority
• Enables feds to administer and control
Indian lands
• Underlying title remains with province
subject to proprietary rights of Indians
• Land surrendered by Indians becomes
provincial Crown land
Criminal Law
• R. v. Hydro-Quebec
• PCBs released into Quebec stream by
Hydro-Quebec facility contrary to
Canadian Environmental Protection Act
• Tests for valid exercise of criminal law
power (RJR MacDonald):
– Legitimate public purpose
– Prohibition of an activity
– Penalty
Criminal Law
• R. v. Hydro-Quebec
• Issue: does CEPA use appropriate tools
to pursue the legitimate public purpose?
• Is CEPA about environmental protection
or control of toxic substances?
• Laforest (majority)
– lengthy process identify toxic substances
– regulatory measures to reduce, control
justifiable so long as combined with
prohibitions
Peace Order and Good
Government
“91. It shall be lawful … for the Senate
and House of Commons to make laws
for the Peace, Order and good
Government of Canada in relation to all
matters not . . . assigned exclusively to
the . . . Provinces”
• Emergency Branch of POGG
• National Concern Branch of POGG
– Singleness, Distinctiveness, Indivisibility
Peace Order and Good
Government
• Aeronautics, atomic energy justified
under POGG
• Crown Zellerbach - Federal marine
pollution legislation justified by POGG
• R. v. Hydro-Quebec Toxic substances
legislation perhaps not justified?
Crown Zellerbach
• Crown Zellerbach, a logging company,
was charged under Ocean Dumping
Control Act with dumping woodwaste
into marine waters part of British
Columbia (internal waters to Canada)
• No evidence that woodwaste harmed
fish, marine life or navigation
• No evidence of polluting effect in extraprovincial waters
Crown Zellerbach
• What is the test for justifying a federal
law under “national concern”?
• How do majority and minority differ on
application of that test to Ocean
Dumping Control Act?
• Does the test give the federal
government enough scope to effectively
address environmental problems?
Hydro-Quebec
• Breach of an interim order under
Canadian Environmental Protection Act
(CEPA) restricting emissions of PCBs
• How does the minority apply the
“national concern” test?
• What inference can be drawn from the
fact that the majority decided not to
address justification under POGG?
Oldman Dam Project
Oldman Dam Project
Oldman Dam Project
• Alberta prepared environmental
assessment, found no significant effects
• Federal Environment Minister refused to
conduct EA although Navigable Waters
Protection Act permit and Fisheries Act
authorization required
• Application for judicial review submitted
by Friends of Oldman River
• Application denied at trial, appealed
successfully
Oldman Dam
Constitutional Validity
• Is federal law requiring EA so broad as
to offend ss. 92 and 92A of the
Constitution Act, 1867 and therefore
constitutionally inapplicable to the
Oldman River Dam owned by Alberta?
Oldman Dam Analysis of
Constitutional Issues
• Authority to conduct a federal
assessment of a proposal?
• SCC - EA is merely a component of
federal decision-making; constitutional
authority to carry out EA derives from
federal authority over subject matter
• Distinguish subject matter that brings
feds in as decision-maker from scope of
project, scope of issues to be
considered
Constitutional Limits on Scope of
Issues to be Considered
• No for projects (e.g., rail lines) where
feds have “comprehensive jurisdiction”
• If comprehensive federal jurisdiction,
integrated decision can be made that
takes into account how project affects
“provincial” as well as “federal”
environmental issues
Constitutional Limits on Issues to
be Considered in Decision?
• What about projects (e.g.,Oldman)
where federal jurisdiction is not central
to project (“restricted jurisdiction”), but
results from impact (e.g., navigation)
• Supreme Court - Feds can conduct an
integrated assessment (federal,
provincial issues) if affirmative
regulatory duty and legitimate concern
about “federal” impacts (e.g., fish)
Current Constitutional Issues
CEAA 2012, GHGs under CEPA
• CEAA 2012, GHG Regulation (CEPA)
• CEAA 2012 appears to authorize
Agency to require EA of project even if
no federal decision (Oldman)
• Criminal power? CEAA 2012 includes
prohibitions, penalties, unlike CEAA
• POGG if projects are of “national
concern” but no other federal decision
required?
Municipal Authority and the
Environment
• Municipal authorities lack constitutional
autonomy as creatures of provinces
• Executive/legislative functions are
delegated by provincial legislation
• Municipal authority in relation to
environment is vital and extensive:
public health, planning and zoning,
business licencing and regulation,
dangerous substances
Scope of Municipal Authority
• Municipal bylaws cant exceed or
contradict provincial law Superior
Propane (1995) Ont. Court Appeal
• Judicial review of municipal decision to
be treated according to deferential
standard Rascal Trucking (2000) SCC
• Hudson QC pesticide bylaw ruled to be
within scope of statute delegating broad
authority, but lacking specific authority
Spraytech (2001) SCC
Intergovernmental Coordination
• Delegation of legislative authority is
unconstitutional
• Administrative delegation is
constitutional: CEAA 2012: Provincial
EA “substituted” for federal EA can
meet federal legal requirement
• Intergovernmental agreements to
cooperate, collaborate, harmonize
(CCME, 1998 Harmonization Accord)
Summary Issues
• Have the Constitution and Courts struck
appropriate balance between provincial
and federal legislative authority?
• Is Harper government’s elimination of
federal environmental laws an attempt
to implement s.92A, ensure provinces
have exclusive authority to control
resources development?
• Adequate federal authority to legislate
on major resource developments,
address climate change?