ENVIRONMENTAL PROTECTION ............................................................................................................ 1
EUROPEAN COURT OF JUSTICE .......................................................................................................... 2
Handelshwekerij G J Bier B V & Another v Mines De [1978] QB 708, [1977] 3 WLR 479: ............... 2
EUROPEAN COURT OF HUMAN RIGHTS ........................................................................................... 2
BALMER-SCHAFROTH AND OTHERS v. SWITZERLAND (67\1996\686\876) 26 August
1997: –Extension by Swiss Federal Council of licence to operate nuclear power station- Right to have physical integrity adequately protected from risks entailed by use of nuclear energy-- Link between the operating conditions of the power station and right to protection of their physical integrity
................................................................................................................................................................ 2
GUERRA AND OTHERS v. ITALY (116/1996/735/932) 19 February 1998: Failure to provide local population with information about risk factor and how to proceed in event of an accident at nearby chemical factory -- Urgent application-- Lodging a criminal complaint-- Right of public to receive information-- Direct effect of toxic emissions on applicants’ right to respect for their private and family life—Effective protection ............................................................................................................ 6
Canada ...........................................................................................................................................................11
R. v. Hydro-Québec [1997] 3 S.C.R. 213: Federal legislation empowering Ministers to determine what substances are toxic and to prohibit introduction of such substances into environment except in accordance with specified terms and conditions -- Whether federal legislation valid -- Whether legislation falls within Parliament's jurisdiction to make laws for peace, order and good government of Canada -- Whether legislation falls within Parliament's criminal law jurisdiction - ......................11
Friends of the Oldman River Society v. Canada (Minister of Transport) [1992] 1 S.C.R. 3: --
Environmental assessment -- Whether federal environmental guidelines order intra vires Parliament --
Judicial review -- Remedies -- Discretion .............................................................................................15
Ontario v. Canadian Pacific Ltd. [1995] 2 S.C.R. 1031 : Vagueness -- Use of reasonable hypotheticals -- Overbreadth -- Environmental protection law drafted in very broad terms -- Whether or not law capable of interpretation so as to allow for legal debate .....................................................20
Gauthier v Commission de protection du territoire agricole du Québec [1989] 1 S.C.R. 859 :
Protection of agricultural land -- Acquired rights -- Permits authorizing use ........................................25
Environment
24. Everyone has the right ­ a.
to an environment that is not harmful to their health or well-being; and b.
to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that ­ i.
prevent pollution and ecological degradation; ii.
promote conservation; and iii.
secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

EUROPEAN COURT OF JUSTICE
Photocopy:
Handelshwekerij G J Bier B V & Another v Mines De [1978] QB 708, [1977] 3
WLR 479:
Environment; pollution; torts; jurisdiction.
EUROPEAN COURT OF HUMAN RIGHTS
BALMER-SCHAFROTH AND OTHERS v. SWITZERLAND (67\1996\686\876)
26 August 1997:
–Extension by Swiss Federal Council of licence to operate nuclear power station- Right to have physical integrity adequately protected from risks entailed by use of nuclear energy-- Link between the operating conditions of the power station and right to protection of their physical integrity
Switzerland – extension by Swiss Federal Council of licence to operate nuclear power station (Federal Act on the Peaceful Use of Nuclear Energy)
II. ARTICLE 6 OF THE CONVENTION
B. Applicability
Right on which applicants had relied in substance - to have their physical integrity adequately protected from risks entailed by use of nuclear energy - was recognised in
Swiss law.
Inasmuch as it sought to review whether statutory requirements had been complied with,
Federal Council’s decision had been more akin to a judicial act than to a general policy decision.
No doubt that the dispute had been genuine and serious.
Applicants had not established a direct link between the operating conditions of the power station and their right to protection of their physical integrity, as they had failed to show that they were personally exposed to a serious, specific and imminent danger - effects of measures which Federal Council could have ordered in the instant case hypothetical - neither dangers nor remedies had been established with a degree of probability that would have made outcome of proceedings directly decisive for right relied on by applicants - connection between that right and Federal Council’s decision too tenuous and remote.
Conclusion : Article 6 not applicable (twelve votes to eight).
AS TO THE FACTS
I. The circumstances of the case
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7. The applicants live in the villages of Wilteroltigen, Deltigen and Gümmenen, situated in containment zone no. 1 ( Alarmzone 1 ) within a radius of between four and five kilometres from the nuclear power station at Mühleberg (Canton of Berne). They either own or rent their homes.
A. Application for an operating licence
8. On 9 November 1990 the company which had operated the power station since 1971, the Bernische Kraftwerke AG ("the operating company"), applied to the Swiss Federal
Council (the Government) for an extension of its operating licence for an indefinite period and for permission to increase production by 10%. The application was published in the Official Gazette of 4 December 1990 together with a notice inviting persons satisfying the requirements laid down by section 48 of the Federal Administrative
Proceedings Act (see paragraph 15 below) to file an objection.
9. More than 28,000 objections in all were sent to the Federal Energy Office, 21,000 of which came from Germany and Austria.
In their objection of 4 March 1991, to which several expert opinions were attached, the applicants requested the Federal Council to refuse an extension of the operating licence and to order the immediate and permanent closure of the nuclear power station. Relying in particular on section 5(1) and (the former) section 10(1) of the Nuclear Energy Act
(see paragraph 12 below), they maintained that the power station did not meet current safety standards on account of serious and irremediable construction defects and that, owing to its condition, the risk of an accident occurring was greater than usual. In addition, they asked the authorities to obtain further data and in the meantime take certain provisional measures. With regard to the fact that under the applicable law the Federal
Council would consider the application for an operating licence as an authority of both first and last instance, they pointed out that its decision could give rise to an application based on Article 6 § 1 of the Convention since it affected their civil rights.
10. On 3 September 1991 and 23 June 1992 the Federal Department of Transport,
Communications and Energy rejected the requests for interim measures and for gathering the additional data.
AS TO THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTION THAT THE APPLICANTS
WERE NOT VICTIMS
24. In their first preliminary objection the Government argued that the applicants were not victims, because the consequences of the violations they complained of were too remote to affect them directly and personally.
25. The Court notes that on 29 February 1996, following the Commission's decision of 4
December 1995 whereby it declared inadmissible the application in the case of Noël
Narvii Tauira and Others v. France (no. 28204/95, Decisions and Reports no. 83-A, pp.
112 et seq.), the Government (unsuccessfully) invited the Commission to apply Article 29 of the Convention in the present case on the ground that the applicants were not victims.
The Court therefore has jurisdiction to entertain this preliminary objection.
26. Under the Court's case-law, for the purposes of Article 25 the word "victim" means the person directly affected by the act or omission in issue, the existence of a violation of the Convention being conceivable even in the absence of prejudice, which is relevant
3

only in the context of Article 50 (see, among other authorities, the Amuur v. France judgment of 25 June 1996, Reports of Judgments and Decisions 1996-III, p. ..., § 36).
In the instant case, the fact that the Federal Council declared admissible the objections the applicants wish to raise before a tribunal (see paragraph 11 above) justifies regarding them as victims. The first preliminary objection must therefore be dismissed.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
27. The applicants alleged a violation of Article 6 § 1 of the Convention, which provides:
"In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal..."
As only the Federal Council had jurisdiction to consider the application for an extension of the operating licence for Mühleberg power station, the applicants had not been able to secure a ruling by a tribunal on their objections to the extension.
The Commission agreed in substance with that submission, whereas the Government contested it.
A. The Government's preliminary objection of failure to exhaust domestic remedies
28. The Government raised a preliminary objection of failure to exhaust domestic remedies. The applicants had not availed themselves of certain remedies which would have led to a ruling on their complaints by a tribunal in accordance with Article 6 § 1.
29. In view of its conclusion on the applicability of Article 6 § 1 (see paragraph 40 below), the Court does not consider it necessary to decide this issue.
B. Applicability of Article 6 § 1
30. The Government submitted that Article 6 § 1 was not applicable in the instant case.
Inasmuch as the applicants' complaints were that their physical integrity was in jeopardy, they did not concern "civil rights and obligations" within the meaning of that provision.
31. The applicants pointed out that they had been parties in the proceedings before the
Federal Council and as such had enjoyed the same rights as the operating company. The company's economic rights had been at stake in those proceedings, which therefore clearly came within the ambit of Article 6 § 1.
32. Under the Court's case-law, for Article 6 § 1 in its "civil" limb to be applicable, there must be a "dispute" ( contestation in the French text) over a "right" which can be said, at least on arguable grounds, to be recognised under domestic law. The "dispute" must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise. The outcome of the proceedings must be directly decisive for the right in question. As the Court has consistently held, mere tenuous connections or remote consequences are not sufficient to bring Article 6 § 1 into play (see the following judgments: Le Compte, Van Leuven and De Meyere v. Belgium, 23 June
1981, Series A no. 43, p. 21, § 47; Fayed v. the United Kingdom, 21 September 1994,
Series A no. 294-B, p. 46, § 56; and Masson and Van Zon v. the Netherlands, 28
September 1995, Series A no. 327-A, p. 17, § 44).
33. The Court notes in the first place that the objection of 4 March 1991 shows that the applicants opposed the application for an extension of the operating licence because of the risks which they maintained such an extension entailed for the life and health of the local population, to which they belonged. At no stage in the proceedings had they claimed to have suffered any loss, economic or other, for which they intended to seek compensation (see paragraph 9 above). The right on which the applicants relied in
4

substance before the Federal Council was the right to have their physical integrity adequately protected from the risks entailed by the use of nuclear energy.
34. The Court considers that this right is recognised in Swiss law, as is apparent in particular from section 5(1) of the Nuclear Energy Act - to which both the applicants and the Federal Council expressly referred - and from the constitutional right to life, on which the Federal Council commented in its decision (see paragraphs 9, 11 and 12 above).
35. The Government, however, referring to the Van Marle and Others v. the Netherlands judgment of 26 June 1986 (Series A no. 101), maintained that the right concerned had not been the subject of a "genuine and serious dispute", as it was not reviewable by the courts. Firstly, it was clear from the Federal Council's decision that what was in issue was scarcely of a legal nature but was, on the other hand, highly technical. Secondly, even supposing that the courts had the necessary knowledge and time to hear the case, the moral and political responsibility for the decision nonetheless lay with the political authorities alone as, for example, had also been the case with the acceptance of the nuclear moratorium by the Swiss people and legislature on 23 September 1990. That was why the proceedings in the instant case had taken place before the Federal Council. If, on the other hand, every decision capable of affecting a person's pecuniary interests had, in the last instance, to be taken by a court, democratic political debate would become meaningless.
36. The applicants argued that judicial evaluation of technical issues was part of the courts' ordinary daily work in cases concerning buildings, the environment or sites where hazardous materials were produced. In such cases, it was the court's duty to seek the assistance of an impartial expert to assess whether a particular risk was inevitable or, on the contrary, could be avoided or at least lessened by appropriate technical measures.
37. The Court notes that the objection of 4 March 1991 was directed at the application for an extension of the licence to operate Mühleberg power station. Although, as the
Government indicated, the decision to be taken necessarily had to be based on technical data of great complexity - a fact which does not in itself prevent Article 6 being applicable - the only purpose of the data was to enable the Federal Council to verify whether the conditions laid down by law for the grant of an extension had been met.
That is indeed how the Federal Council proceeded. Thus in point 2 of its decision of 14
December 1992, in which it considered the conditions for the grant of the licence, the
Federal Council recapitulated the factors which, under section 5 of the Nuclear Energy
Act (see paragraph 12 above), justified refusing an operating licence or granting it on terms; it went on to add that an applicant who satisfied all the statutory requirements was entitled to an operating licence (see paragraph 11 above). In point 4 of its decision, relating to the continued operation of the power station, it said that it would simultaneously consider the merits of the objections, including the demands made in them, and ascertain whether the substantive conditions for the grant of an extension had been satisfied. Inasmuch as it sought to review whether the statutory requirements had been complied with, the Federal Council's decision was therefore more akin to a judicial act than to a general policy decision such as the nuclear moratorium in 1990.
38. Moreover, in the light of the above considerations and the fact that the Federal
Council declared the applicants' objection admissible, there can be no doubt that the dispute was genuine and serious.
5

39. It therefore remains to be determined whether the outcome of the proceedings in issue was directly decisive for the right asserted by the applicants and in particular whether the link between the Federal Council's decision and the applicants' right to adequate protection of their physical integrity was sufficiently close to bring Article 6 § 1 into play, and was not too tenuous or remote.
40. It will be recalled that the applicants asked the Federal Council to refuse to extend the operating licence on the ground that, in their submission, Mühleberg power station had serious and irremediable construction defects, it did not satisfy current safety standards and its condition entailed a greater than usual risk of accident (see paragraph 9 above).
They endeavoured to prove the existence of the alleged technical deficiencies and the need to lessen the resulting danger to the population and the environment in general by every available means. However, they did not for all that establish a direct link between the operating conditions of the power station which were contested by them and their right to protection of their physical integrity, as they failed to show that the operation of
Mühleberg power station exposed them personally to a danger that was not only serious but also specific and, above all, imminent. In the absence of such a finding, the effects on the population of the measures which the Federal Council could have ordered to be taken in the instant case therefore remained hypothetical. Consequently, neither the dangers nor the remedies were established with a degree of probability that made the outcome of the proceedings directly decisive within the meaning of the Court's case-law for the right relied on by the applicants. In the Court's view, the connection between the Federal
Council's decision and the right invoked by the applicants was too tenuous and remote.
Article 6 § 1 is accordingly not applicable in the instant case.
GUERRA AND OTHERS v. ITALY (116/1996/735/932) 19 February 1998:
Failure to provide local population with information about risk factor and how to proceed in event of an accident at nearby chemical factory -- Urgent application--
Lodging a criminal complaint-- Right of public to receive information-- Direct effect of toxic emissions on applicants’ right to respect for their private and family life
—Effective protection
Italy – failure to provide local population with information about risk factor and how to proceed in event of an accident at nearby chemical factory
I. ARTICLE 10 OF THE CONVENTION
A. Government’s preliminary objection ("non-exhaustion")
First limb – urgent application (Article 700 of the Code of Civil Procedure): would have been a practicable remedy if applicants’ complaint had concerned failure to take measures designed to reduce or eliminate pollution; in instant case, however, such an application would probably have resulted in factory’s operation being suspended.
Second limb – lodging a criminal complaint: would at most have secured conviction of factory’s managers, but certainly not communication of any information.
Conclusion : objection dismissed (nineteen votes to one).
B. Merits of complaint
6

Right of public to receive information had been recognised by Court on a number of occasions in cases concerning restrictions on freedom of press, as a corollary of specific function of journalists, which was to impart information and ideas on matters of public interest – facts of present case were, however, clearly distinguishable from aforementioned cases since applicants complained of a failure in system set up pursuant to relevant legislation – although Prefect had prepared emergency plan on basis of report submitted by factory and plan had been sent to Civil Defence Department on 3 August
1993, applicants had yet to receive relevant information.
Freedom to receive information basically prohibited a Government from restricting a person from receiving information that others wished or might be willing to impart to him
– that freedom could not be construed as imposing on a State, in circumstances such as those of present case, positive obligations to collect and disseminate information of its own motion.
Conclusion : not applicable (eighteen votes to two).
II. ARTICLE 8 OF THE CONVENTION
Direct effect of toxic emissions on applicants’ right to respect for their private and family life meant that Article 8 was applicable.
Applicants complained not of an act by State but of its failure to act – object of Article 8 was essentially that of protecting individual against arbitrary interference by public authorities – it did not merely compel State to abstain from such interference: in addition to that primarily negative undertaking, there might be positive obligations inherent in effective respect for private or family life.
In present case all that had to be ascertained was whether national authorities had taken necessary steps to ensure effective protection of applicants’ right to respect for their private and family life.
Ministry for the Environment and Ministry of Health had jointly adopted conclusions on safety report submitted by factory – they had provided Prefect with instructions as to emergency plan, which he had drawn up in 1992, and measures required for informing local population – however, district council concerned had not by 7 December 1995 received any document concerning the conclusions.
Severe environmental pollution might affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely – applicants had waited, right up until production of fertilisers had ceased in
1994, for essential information that would have enabled them to assess risks they and their families might run if they continued to live at Manfredonia, a town particularly exposed to danger in event of an accident at factory.
Respondent State had not fulfilled its obligation to secure applicants’ right to respect for their private and family life.
Conclusion : applicable and violation (unanimously).
CIRCUMSTANCES OF THE CASE
A. The Enichem agricoltura factory
12. The applicants all live in the town of Manfredonia (Foggia). Approximately one kilometre away is the Enichem agricoltura company’s chemical factory, which lies within the municipality of Monte Sant’Angelo.
7

13. In 1988 the factory, which produced fertilisers and caprolactam (a chemical compound producing, by a process of polycondensation, a polyamide used in the manufacture of synthetic fibres such as nylon), was classified as "high risk" according to the criteria set out in Presidential Decree no. 175 of 18 May 1988 (" DPR 175/88"), which transposed into Italian law Directive 82/501/EEC of the Council of the European
Communities (the "Seveso" directive) on the major-accident hazards of certain industrial activities dangerous to the environment and the well-being of the local population.
14. The applicants said that in the course of its production cycle the factory released large quantities of inflammable gas – a process which could have led to explosive chemical reactions, releasing highly toxic substances – and sulphur dioxide, nitric oxide, sodium, ammonia, metal hydrides, benzoic acid and above all, arsenic trioxide. These assertions have not been disputed by the Government.
15. Accidents due to malfunctioning have already occurred in the past, the most serious one on 26 September 1976 when the scrubbing tower for the ammonia synthesis gases exploded, allowing several tonnes of potassium carbonate and bicarbonate solution, containing arsenic trioxide, to escape. One hundred and fifty people were admitted to hospital with acute arsenic poisoning.
16. In a report of 8 December 1988 a committee of technical experts appointed by
Manfredonia District Council established that because of the factory’s geographical position, emissions from it into the atmosphere were often channelled towards
Manfredonia. It was noted in the report that the factory had refused to allow the committee to carry out an inspection and that the results of a study by the factory itself showed that the emission treatment equipment was inadequate and the environmentalimpact assessment incomplete.
17. In 1989 the factory restricted its activity to the production of fertilisers, and it was accordingly still classified as a dangerous factory covered by DPR 175/88. In 1993 the
Ministry for the Environment issued an order jointly with the Ministry of Health prescribing measures to be taken by the factory to improve the safety of the ongoing fertiliser production, and of caprolactam production if that was resumed (see paragraph
27 below).
18. In 1994 the factory permanently stopped producing fertiliser. Only a thermoelectric power station and plant for the treatment of feed and waste water continued to operate.
ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
B. Merits of the complaint
51. In the Government’s submission, that provision merely guaranteed freedom to receive information without hindrance by States; it did not impose any positive obligation. That was shown by the fact that Resolution 1087 of the Council of Europe’s Parliamentary
Assembly and Directive 90/313/EEC of the Council of the European Communities on freedom of access to information on the environment spoke merely of access, not a right, to information. If a positive obligation to provide information existed, it would be
"extremely difficult to implement" because of the need to determine how and when the information was to be disclosed, which authorities were responsible for disclosing it and who was to receive it.
52. Like the applicants, the Commission was of the opinion that the provision of information to the public was now one of the essential means of protecting the well-being
8

and health of the population in situations in which the environment was at risk.
Consequently, the words "This right shall include freedom ... to receive information..." in paragraph 1 of Article 10 had to be construed as conferring an actual right to receive information, in particular from the relevant authorities, on members of local populations who had been or might be affected by an industrial or other activity representing a threat to the environment.
Article 10 imposed on States not just a duty to make available information to the public on environmental matters, a requirement with which Italian law already appeared to comply, by virtue of section 14(3) of Law no. 349 in particular, but also a positive obligation to collect, process and disseminate such information, which by its nature could not otherwise come to the knowledge of the public. The protection afforded by Article 10 therefore had a preventive function with respect to potential violations of the Convention in the event of serious damage to the environment and Article 10 came into play even before any direct infringement of other fundamental rights, such as the right to life or to respect for private and family life, occurred.
53. The Court does not subscribe to that view. In cases concerning restrictions on freedom of the press it has on a number of occasions recognised that the public has a right to receive information as a corollary of the specific function of journalists, which is to impart information and ideas on matters of public interest (see, among other authorities, the Observer and Guardian v. the United Kingdom judgment of 26 November
1991, Series A no. 216, p. 30, § 59 (b) and the Thorgeir Thorgeirson v. Iceland judgment of 25 June 1992, Series A no. 239, p. 27, § 63). The facts of the present case are, however, clearly distinguishable from those of the aforementioned cases since the applicants complained of a failure in the system set up pursuant to DPR 175/88, which had transposed into Italian law Directive 82/501/EEC of the Council of the European
Communities (the "Seveso" directive) on the major-accident hazards of certain industrial activities dangerous to the environment and the well-being of the local population.
Although the Prefect of Foggia prepared the emergency plan on the basis of the report submitted by the factory and the plan was sent to the Civil Defence Department on 3
August 1993, the applicants have yet to receive the relevant information (see paragraphs
26 and 27 above).
The Court reiterates that freedom to receive information, referred to in paragraph 2 of
Article 10 of the Convention, "basically prohibits a government from restricting a person from receiving information that others wish or may be willing to impart to him" (see the
Leander v. Sweden judgment of 26 March 1987, Series A no. 116, p. 29, § 74). That freedom cannot be construed as imposing on a State, in circumstances such as those of the present case, positive obligations to collect and disseminate information of its own motion.
54. In conclusion, Article 10 is not applicable in the instant case.
55. In the light of what was said in paragraph 45 above, the case falls to be considered under Article 8 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
56. The applicants, relying on the same facts, maintained before the Court that they had been the victims of a violation of Article 8 of the Convention, which provides:
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
9

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
57. The Court’s task is to determine whether Article 8 is applicable and, if so, whether it has been infringed.
The Court notes, firstly, that all the applicants live at Manfredonia, approximately a kilometre away from the factory, which, owing to its production of fertilisers and caprolactam, was classified as being high-risk in 1988, pursuant to the criteria laid down in DPR 175/88.
In the course of its production cycle the factory released large quantities of inflammable gas and other toxic substances, including arsenic trioxide. Moreover, in 1976 following the explosion of the scrubbing tower for the ammonia synthesis gases, several tonnes of potassium carbonate and bicarbonate solution, containing arsenic trioxide, escaped and
150 people had to be hospitalised on account of acute arsenic poisoning.
In addition, in its report of 8 December 1988, a committee of technical experts appointed by the Manfredonia District Council said in particular that because of the factory’s geographical position, emissions from it into the atmosphere were often channelled towards Manfredonia (see paragraphs 14-16 above).
The direct effect of the toxic emissions on the applicants’ right to respect for their private and family life means that Article 8 is applicable.
58. The Court considers that Italy cannot be said to have "interfered" with the applicants’ private or family life; they complained not of an act by the State but of its failure to act.
However, although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the
State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in effective respect for private or family life
(see the Airey v. Ireland judgment of 9 October 1979, Series A no. 32, p. 17, § 32).
In the present case it need only be ascertained whether the national authorities took the necessary steps to ensure effective protection of the applicants’ right to respect for their private and family life as guaranteed by Article 8 (see the Lopéz Ostra v. Spain judgment of 9 December 1994, Series A no. 303-C, p. 55, § 55).
59. On 14 September 1993, pursuant to Article 19 of DPR 175/88, the Ministry for the
Environment and the Ministry of Health jointly adopted conclusions on the safety report submitted by the factory in July 1989. Those conclusions prescribed improvements to be made to the installations, both in relation to current fertiliser production and in the event of resumed caprolactam production, and provided the Prefect with instructions as to the emergency plan – that he had drawn up in 1992 – and the measures required for informing the local population under Article 17 of DPR 175/88.
In a letter of 7 December 1995 to the European Commission of Human Rights, however, the mayor of Monte Sant’Angelo indicated that the investigation for the purpose of drawing up conclusions under Article 19 was still continuing and that he had not received any documents relating to them. He pointed out that the District Council was still awaiting direction from the Civil Defence Department before deciding what safety measures should be taken and what procedures should be followed in the event of an
10

accident and communicated to the public. He said that if the factory resumed production, the measures for informing the public would be taken as soon as the conclusions based on the investigation were available (see paragraph 27 above).
60. The Court reiterates that severe environmental pollution may affect individuals’ wellbeing and prevent them from enjoying their homes in such a way as to affect their private and family life adversely (see, mutatis mutandis , the Lopéz Ostra v. Spain judgment cited above, p. 54, § 51). In the instant case the applicants waited, right up until the production of fertilisers ceased in 1994, for essential information that would have enabled them to assess the risks they and their families might run if they continued to live at Manfredonia, a town particularly exposed to danger in the event of an accident at the factory.
The Court holds, therefore, that the respondent State did not fulfil its obligation to secure the applicants’ right to respect for their private and family life, in breach of Article 8 of the Convention.
There has consequently been a violation of that provision.
R. v. HydroQuébec [1997] 3 S.C.R. 213: Federal legislation empowering
Ministers to determine what substances are toxic and to prohibit introduction of such substances into environment except in accordance with specified terms and conditions -- Whether federal legislation valid -- Whether legislation falls within
Parliament's jurisdiction to make laws for peace, order and good government of
Canada -- Whether legislation falls within Parliament's criminal law jurisdiction --
ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC
Constitutional law -- Distribution of legislative powers -- Environmental protection --
Federal legislation empowering Ministers to determine what substances are toxic and to prohibit introduction of such substances into environment except in accordance with specified terms and conditions -- Whether federal legislation valid -- Whether legislation falls within Parliament's jurisdiction to make laws for peace, order and good government of Canada -- Whether legislation falls within Parliament's criminal law jurisdiction --
Canadian Environmental Protection Act, R.S.C., 1985, c. 16 (4th Supp.), ss. 3
"environment", "substance", 11, 34, 35 -- Chlorobiphenyls Interim Order, P.C. 1989-296, s. 6(a) -- Constitution Act, 1867, ss. 91 preamble, 91(27) .
The respondent allegedly dumped polychlorinated biphenyls (PCBs) into a river in early
1990. It was charged with two infractions under s. 6( a ) of the Chlorobiphenyls Interim
Order , which was adopted and enforced pursuant to ss. 34 and 35 of the Canadian
Environmental Protection Act . Sections 34 and 35 appear in Part II of the Act, entitled
"Toxic Substances". Part II deals first with the identification of substances that could pose a risk either to the environment or to human life and health, and then provides a procedure for adding them to the List of Toxic Substances in Schedule I (which contains a list of dangerous substances carried over from pre-existing legislation) and for imposing by regulations requirements respecting the terms and conditions under which substances so listed may be released into the environment. According to s. 11 of the Act, a substance
11

is toxic where "it is entering or may enter the environment" under conditions "having or that may have an immediate or long-term harmful effect on the environment",
"constituting or that may constitute a danger to the environment on which human life depends", or "constituting or that may constitute a danger in Canada to human life or health". Section 3 defines a "substance" as "any distinguishable kind of organic or inorganic matter, whether animate or inanimate" and the "environment" as "the components of the Earth". Section 34 provides for the regulation of substances on the List of Toxic Substances. Section 35 is ancillary to s. 34. It provides that where a substance is not listed in Schedule I (or where it is listed but the Ministers of the Environment and of
Health believe it is not adequately regulated) and the Ministers believe that immediate action is required, an "interim order" may be made in respect of the substance. Such orders may contain any regulation which could have been made under s. 34, but they remain in effect for only 14 days unless they are approved by the Governor in Council.
Failure to comply with regulations made under s. 34 or an order made under s. 35 constitutes an offence under s. 113 of the Act. The respondent brought a motion seeking to have ss. 34 and 35 of the Act as well as s. 6( a ) of the Interim Order itself declared ultra vires the Parliament of Canada on the ground that they do not fall within the ambit of any federal head of power set out in s. 91 of the Constitution Act, 1867 . The Attorney General of Quebec intervened in support of the respondent's position. The motion was granted in the Court of Québec, and an appeal to the Superior Court was dismissed. A further appeal to the Court of Appeal was also dismissed.
Held (Lamer C.J. and Sopinka, Iacobucci and Major JJ. dissenting): The appeal should be allowed. The impugned provisions are valid legislation under the criminal law power.
Per La Forest, L'Heureux-Dubé, Gonthier, Cory and McLachlin JJ.: The environment is not, as such, a subject matter of legislation under the Constitution Act, 1867 . Rather, it is a diffuse subject that cuts across many different areas of constitutional responsibility, some federal, some provincial. If a provision relating to the environment in pith and substance falls within the parameters of any power assigned to the body that enacted the legislation, then it is constitutionally valid.
Under s. 91(27) of the Constitution Act, 1867 , Parliament has been accorded plenary power to make criminal law in the widest sense. It is entirely within Parliament's discretion to determine what evil it wishes by penal prohibition to suppress and what threatened interest it thereby wishes to safeguard. Under s. 91(27), it is also within the discretion of Parliament to determine the extent of blameworthiness that it wishes to attach to a criminal prohibition. This power is of course subject to the "fundamental justice" requirements of s. 7 of the Canadian Charter of Rights and Freedoms , which may dictate a higher level of mens rea for serious or "true" crimes. The Charter apart, the only qualification that has been attached to Parliament's plenary power over criminal law is that it cannot be employed colourably. Like other legislative powers, it cannot permit
Parliament simply by legislating in the proper form to colourably invade areas of exclusively provincial legislative competence. To determine whether such an attempt is made, it is appropriate to determine whether a legitimate public purpose underlies the prohibition.
The protection of the environment, through prohibitions against toxic substances, constitutes a wholly legitimate public objective in the exercise of the criminal law power.
Protection of the environment is an international problem that requires action by
12

governments at all levels. The legitimate use of the criminal law in no way constitutes an encroachment on provincial legislative power, though it may affect matters falling within the latter's ambit. Parliament may validly enact prohibitions under its criminal law power against specific acts for the purpose of preventing pollution. This does not constitute an interference with provincial legislative powers. The use of the federal criminal law power in no way precludes the provinces from exercising their extensive powers under s. 92 to regulate and control the pollution of the environment either independently or in cooperation with federal action.
Broad wording is unavoidable in environmental protection legislation because of the breadth and complexity of the subject. The effect of requiring greater precision would be to frustrate the legislature in its attempt to protect the public against the dangers flowing from pollution. Part II of the Canadian Environmental Protection Act does not deal with the protection of the environment generally, but simply with the control of toxic substances that may be released into the environment under certain restricted circumstances, through a series of prohibitions to which penal sanctions are attached.
There was no intention that the Act should bar the use, importation or manufacture of all chemical products, but rather that it should affect only those substances that are dangerous to the environment, and then only if they are not otherwise regulated by law.
The broad purpose and effect of Part II is to provide a procedure for assessing whether out of the many substances that may conceivably fall within the ambit of s. 11, some should be added to the List of Toxic Substances in Schedule I and, when an order to this effect is made, whether to prohibit the use of the substance so added in the manner provided in the regulations made under s. 34(1) subject to a penalty. These listed substances, toxic in the ordinary sense, are those whose use in a manner contrary to the regulations the Act ultimately prohibits. This is a limited prohibition applicable to a restricted number of substances. The prohibition is enforced by a penal sanction and is undergirded by a valid criminal objective, and so is valid criminal legislation. Specific targeting of toxic substances based on individual assessment avoids resort to unnecessarily broad prohibitions and their impact on the exercise of provincial powers.
The interim order is also valid under s. 91(27) of the Constitution Act, 1867 . PCBs are not only highly toxic but long lasting and very slow to break down in water, air or soil.
They are also extremely mobile. As well, they dissolve readily in fat tissues and other organic compounds, with the result that they move up the food chain. They pose significant risks of serious harm to both animals and humans.
It is not necessary to consider whether the impugned provisions fall within Parliament's jurisdiction to make laws for the peace, order and good government of Canada.
Per Lamer C.J. and Sopinka, Iacobucci and Major JJ. (dissenting): The pith and substance of Part II of the Canadian Environmental Protection Act lies in the wholesale regulation by federal agents of any and all substances which may harm any aspect of the environment or which may present a danger to human life or health. While Parliament has been given broad and exclusive power to legislate in relation to criminal law by virtue of s. 91(27) of the Constitution Act, 1867 , the criminal law power has always been made subject to two requirements: laws purporting to be upheld under s. 91(27) must contain prohibitions backed by penalties, and they must be directed at a legitimate public purpose. Although the protection of human health has been held to be a legitimate public
13

purpose, the impugned legislation goes well beyond this goal. However, the protection of the environment is also a valid purpose of the criminal law.
While the impugned provisions have a legitimate criminal purpose, they fail to meet the other half of the test. They are not intended to prohibit environmental pollution, but simply to regulate it, and so do not qualify as criminal law under s. 91(27). While a criminal law may validly contain exemptions for certain conduct without losing its status as criminal law, in order to have an exemption, there must first be a prohibition in the legislation from which that exemption is derived. There are no such prohibitions in the legislation at issue here. Sections 34 and 35 do not define an offence at all. Rather, they establish a regulatory regime whereby the Ministers of Health and the Environment can place substances on the List of Toxic Substances and define the norms of conduct regarding those substances on an ongoing basis. It would be an odd crime whose definition was made entirely dependent on the discretion of the executive. The prohibitions in s. 113, such as they are, are ancillary to the regulatory scheme, not the other way around. This strongly suggests that the focus of the legislation is regulation rather than prohibition. Section 34 allows for the regulation of every conceivable aspect of toxic substances. It is highly unlikely that Parliament intended to leave the criminalization of such a sweeping area of behaviour to the discretion of the Ministers.
Moreover, the equivalency provisions in s. 34(6) of the Act, under which a province may be exempted from the application of regulations if it already has equivalent regulations in force there, creates a strong presumption that the federal regulations are regulatory, not criminal, since any environmental legislation enacted by the provinces must be regulatory in nature. Finally, granting Parliament the authority to regulate so completely the release of substances into the environment by determining whether or not they are "toxic" would inescapably preclude the possibility of shared environmental jurisdiction and would infringe severely on other heads of power assigned to the provinces.
Assuming that the protection of the environment and of human life and health against any and all potentially harmful substances could be a "new matter" which would fall under the peace, order and good government power, that matter does not have the required singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern. The definition of "toxic substances" in s. 11, combined with the definition of "substance" found in s. 3, is an all-encompassing definition with no clear limits. While s. 15 does specify some criteria to refine the notion of "toxic substance", it does not narrow the broad definition of that notion, but only offers investigatory guidelines. Moreover, the investigatory process provided for in s. 15 can be totally bypassed where an interim order is issued pursuant to s. 35. With respect to geographical limits, although the preamble of the Act suggests that its ambit is restricted to those substances that "cannot always be contained within geographic boundaries", nowhere in
Part II or the enabling provisions at issue is there any actual limitation based on territorial considerations. Part II's failure to distinguish between types of toxic substances, either on the basis of degree of persistence and diffusion into the environment and the severity of their harmful effect or on the basis of their extraprovincial aspects, demonstrates that the enabling provisions lack the necessary singleness, distinctiveness and indivisibility. To the extent that Part II of the Act includes the regulation of "toxic substances" that may only affect the particular province within which they originate, the appellant bears a
14

heavy burden to demonstrate that provinces themselves would be incapable of regulating such toxic emissions, a burden which it has not discharged.
The impugned legislation cannot be justified as an exercise of the federal trade and commerce power.
Friends of the Oldman River Society v. Canada (Minister of Transport)
[1992] 1 S.C.R. 3: -- Environmental assessment -- Whether federal environmental guidelines order intra vires Parliament -- Judicial review --
Remedies -- Discretion
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory,
McLachlin, Stevenson and Iacobucci JJ.
ON APPEAL FROM THE FEDERAL COURT OF APPEAL
Constitutional law -- Distribution of legislative powers -- Environment -- Environmental assessment -- Whether federal environmental guidelines order intra vires Parliament --
Constitution Act, 1867, ss. 91, 92 -- Environmental Assessment and Review Process
Guidelines Order, SOR/84-467.
Environmental law -- Environmental assessment -- Statutory validity of federal environmental guidelines order -- Whether guidelines order authorized by s. 6 of
Department of the Environment Act -- Whether guidelines order inconsistent with
Navigable Waters Protection Act -- Department of the Environment Act, R.S.C., 1985, c.
E-10, s. 6 -- Navigable Waters Protection Act, R.S.C., 1985, c. N-22, ss. 5, 6 --
Environmental Assessment and Review Process Guidelines Order, SOR/84-467.
Environmental law -- Environmental assessment -- Applicability of federal environmental guidelines order -- Alberta building dam on Oldman River
-- Dam affecting areas of federal responsibility such as navigable waters and fisheries --
Whether guidelines order applicable only to new federal projects --Whether Minister of
Transport and Minister of Fisheries and Oceans must comply with guidelines order --
Department of the Environment Act, R.S.C., 1985, c. E-10, ss. 4(1)(a), 5(a)(ii), 6 --
Environmental Assessment and Review Process Guidelines Order, SOR/84-467, ss. 2
"proposal", "initiating department", 6 -- Navigable Waters Protection Act, R.S.C., 1985, c. N-22, s. 5 -- Fisheries Act, R.S.C., 1985, c. F-14, ss. 35, 37.
Crown -- Immunity -- Provinces -- Whether Crown in right of province bound by provisions of Navigable Waters Protection Act, R.S.C., 1985, c. N-22 -- Interpretation
Act, R.S.C., 1985, c. I-21, s. 17.
Administrative law -- Judicial review -- Remedies -- Discretion -- Alberta building dam on Oldman River -- Dam affecting areas of federal responsibility such as navigable waters and fisheries -- Environmental group applying for certiorari and mandamus in
Federal Court to compel Minister of Transport and Minister of Fisheries and Oceans to comply with federal environmental guidelines order -- Applications dismissed on grounds of unreasonable delay and futility -- Whether Court of Appeal erred in interfering with motions judge's discretion not to grant remedy sought.
The respondent Society, an Alberta environmental group, brought applications for certiorari and mandamus in the Federal Court seeking to compel the federal departments of Transport and Fisheries and Oceans to conduct an environmental assessment, pursuant
15

to the federal Environmental Assessment and Review Process Guidelines Order , in respect of a dam constructed on the Oldman River by the province of Alberta -- a project which affects several federal interests, in particular navigable waters, fisheries, Indians and Indian lands. The Guidelines Order was established under s. 6 of the federal
Department of the Environment Act and requires all federal departments and agencies that have a decision-making authority for any proposal (i.e., any initiative, undertaking or activity) that may have an environmental effect on an area of federal responsibility to initially screen such proposal to determine whether it may give rise to any potentially adverse environmental effects. The province had itself conducted extensive environmental studies over the years which took into account public views, including the views of Indian bands and environmental groups, and, in September 1987, had obtained from the Minister of Transport an approval for the work under s. 5 of the Navigable
Waters Protection Act . This section provides that no work is to be built in navigable waters without the prior approval of the Minister. In assessing Alberta's application, the
Minister considered only the project's effect on navigation and no assessment under the
Guidelines Order was made. Respondent's attempts to stop the project in the Alberta courts failed and both the federal Ministers of the Environment and of Fisheries and
Oceans declined requests to subject the project to the Guidelines Order. The contract for the construction of the dam was awarded in 1988 and the project was 40 per cent complete when the respondent commenced its action in the Federal Court in April 1989.
The Trial Division dismissed the applications. On appeal, the Court of Appeal reversed the judgment, quashed the approval under s. 5 of the Navigable Waters Protection Act , and ordered the Ministers of Transport and of Fisheries and Oceans to comply with the
Guidelines Order. This appeal raises the constitutional and statutory validity of the
Guidelines Order as well as its nature and applicability. It also raises the question whether the motions judge properly exercised his discretion in deciding not to grant the remedy sought on grounds of unreasonable delay and futility.
Held (Stevenson J. dissenting): The appeal should be dismissed, with the exception that there should be no order in the nature of mandamus directing the Minister of Fisheries and Oceans to comply with the Guidelines Order.
Statutory Validity of the Guidelines Order
The Guidelines Order was validly enacted pursuant to s. 6 of the Department of the
Environment Act , and is mandatory in nature. When one reads s. 6 as a whole, rather than focusing on the word "guidelines" in isolation, it is clear that Parliament has elected to adopt a regulatory scheme that is "law", and amenable to enforcement through prerogative relief. The "guidelines" are not merely authorized by statute but must be formally enacted by "order" with the approval of the Governor in Council. That is in striking contrast with the usual internal ministerial policy guidelines intended for the control of public servants under the minister's authority.
The Guidelines Order, which requires the decision maker to take socio-economic considerations into account in the environmental impact assessment, does not go beyond what is authorized by the Department of the Environment Act . The concept of
"environmental quality" in s. 6 of the Act is not confined to the biophysical environment alone. The environment is a diffuse subject matter and, subject to the constitutional imperatives, the potential consequences for a community's livelihood, health and other
16

social matters from environmental change, are integral to decision making on matters affecting environmental quality.
The Guidelines Order is consistent with the Navigable Waters Protection Act . There is nothing in the Act which explicitly or implicitly precludes the Minister of Transport from taking into consideration any matters other than marine navigation in exercising his power of approval under s. 5 of the Act. The Minister's duty under the Order is supplemental to his responsibility under the Navigable Waters Protection Act , and he cannot resort to an excessively narrow interpretation of his existing statutory powers to avoid compliance with the Order. There is also no conflict between the requirement for an initial assessment "as early in the planning process as possible and before irrevocable decisions are taken" in s. 3 of the Guidelines Order, and the remedial power under s. 6(4) of the Act to grant approval after the commencement of construction. That power is an exception to the general rule in s. 5 of the Act requiring approval prior to construction, and in exercising his discretion to grant approval after commencement, the Minister is not precluded from applying the Order.
Applicability of the Guidelines Order
The scope of the Guidelines Order is not restricted to "new federal projects, programs and activities"; the Order is not engaged every time a project may have an environmental effect on an area of federal jurisdiction. However, there must first be a "proposal" which requires an "initiative, undertaking or activity for which the Government of Canada has a decision making responsibility". The proper construction to be placed on the term
"responsibility" is that the federal government, having entered the field in a subject matter assigned to it under s. 91 of the Constitution Act, 1867 , must have an affirmative regulatory duty pursuant to an Act of Parliament which relates to the proposed initiative, undertaking or activity. "Responsibility" within the definition of "proposal" means a legal duty or obligation and should not be read as connoting matters falling generally within federal jurisdiction. Once such a duty exists, it is a matter of identifying the "initiating department" assigned responsibility for its performance, for it then becomes the "decision making authority" for the proposal and thus responsible for initiating the process under the Guidelines Order.
The Oldman River Dam project falls within the ambit of the Guidelines Order. The project qualifies as a proposal for which the Minister of Transport alone is the "initiating department" under s. 2 of the Order. The Navigable Waters Protection Act , in particular s. 5, places an affirmative regulatory duty on the Minister of Transport. Under that Act there is a legislatively entrenched regulatory scheme in place in which the approval of the
Minister is required before any work that substantially interferes with navigation may be placed in, upon, over or under, through or across any navigable water.
The Guidelines Order does not apply to the Minister of Fisheries and Oceans, however, because there is no equivalent regulatory scheme under the Fisheries Act which is applicable to this project. The discretionary power to request or not to request information to assist a Minister in the exercise of a legislative function does not constitute a "decision making responsibility" within the meaning of the Order. The Minister of
Fisheries and Oceans under s. 37 of the Fisheries Act has only been given a limited ad hoc legislative power which does not constitute an affirmative regulatory duty.
The scope of assessment under the Guidelines Order is not confined to the particular head of power under which the Government of Canada has a decision-making responsibility
17

within the meaning of the term "proposal". Under the Order, the initiating department which has been given authority to embark on an assessment must consider the environmental effect on all areas of federal jurisdiction. The Minister of Transport, in his capacity of decision maker under the Navigable Waters Protection Act , must thus consider the environmental impact of the dam on such areas of federal jurisdiction as navigable waters, fisheries, Indians and Indian lands.
Crown Immunity
Per Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.: The Crown in right of Alberta is bound by the Navigable Waters
Protection Act by necessary implication. The proprietary right the province may have in the bed of the Oldman River is subject to the public right of navigation, legislative jurisdiction over which has been exclusively vested in Parliament. Alberta requires statutory authorization from Parliament to erect any obstruction that substantially interferes with navigation in the Oldman River, and the Navigable Waters Protection Act is the means by which it must be obtained. The Crown in right of Alberta is bound by the
Act, for it is the only practicable procedure available for getting approval. The purpose of the Act would be wholly frustrated if the province was not bound by the Act. The provinces are among the bodies that are likely to engage in projects that may interfere with navigation. Were the Crown in right of a province permitted to undermine the integrity of the essential navigational networks in Canadian waters, the legislative purpose of the Navigable Waters Protection Act would effectively be emasculated.
Per Stevenson J. (dissenting): The province of Alberta is not bound by the Navigable
Waters Protection Act . The Crown is not bound by legislation unless it is mentioned or referred to in the legislation. Here, there are no words in the Act "expressly binding" the
Crown and no clear intention to bind "is manifest from the very terms of the statute". As well, the failure to include the Crown would not wholly frustrate the purpose of the Act or produce an absurdity. There are many non-governmental agencies whose activities are subject to the Act and there is thus no emasculation of the Act. If the Crown interferes with a public right of navigation, that wrong is remediable by action. There is no significant benefit in approval under the Act. Tort actions may still lie.
Constitutional Validity of the Guidelines Order
The "environment" is not an independent matter of legislation under the Constitution Act,
1867 . Understood in its generic sense, it encompasses the physical, economic and social environment and touches upon several of the heads of power assigned to the respective levels of government. While both levels may act in relation to the environment, the exercise of legislative power affecting environmental concerns must be linked to an appropriate head of power. Local projects will generally fall within provincial responsibility, but federal participation will be required if, as in this case, the project impinges on an area of federal jurisdiction.
The Guidelines Order is intra vires Parliament. The Order does not attempt to regulate the environmental effects of matters within the control of the province but merely makes environmental impact assessment an essential component of federal decision making.
The Order is in pith and substance nothing more than an instrument that regulates the manner in which federal institutions must administer their multifarious duties and functions. In essence, the Order has two fundamental aspects. First, there is the substance of the Order dealing with environmental impact assessment to facilitate decision making
18

under the federal head of power through which a proposal is regulated. This aspect of the
Order can be sustained on the basis that it is legislation in relation to the relevant subject matters enumerated in s. 91 of the Constitution Act, 1867 . The second aspect of the Order is its procedural or organizational element that coordinates the process of assessment, which can in any given case touch upon several areas of federal responsibility, under the auspices of a designated decision maker (the "initiating department"). This facet of the
Order has as its object the regulation of the institutions and agencies of the Government of Canada as to the manner in which they perform their administrative functions and duties. This is unquestionably intra vires Parliament. It may be viewed either as an adjunct of the particular legislative powers involved, or, in any event, be justifiable under the residuary power in s. 91.
The Guidelines Order cannot be used as a colourable device to invade areas of provincial jurisdiction which are unconnected to the relevant heads of federal power. The "initiating department" is only given a mandate to examine matters directly related to the areas of federal responsibility potentially affected. Any intrusion under the Order into provincial matters is merely incidental to the pith and substance of the legislation.
Discretion
Per Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.: The Federal Court of Appeal did not err in interfering with the motions judge's discretion not to grant the remedies sought on the grounds of unreasonable delay and futility. Respondent made a sustained effort, through legal proceedings in the Alberta courts and through correspondence with federal departments, to challenge the legality of the process followed by the province to build the dam and the acquiescence of the appellant Ministers, and there is no evidence that Alberta has suffered any prejudice from any delay in taking the present action. Despite ongoing legal proceedings, the construction of the dam continued. The province was not prepared to accede to an environmental impact assessment under the Order until it had exhausted all legal avenues. The motions judge did not weigh these considerations adequately, giving the
Court of Appeal no choice but to intervene. Futility was also not a proper ground to refuse a remedy in the present circumstances. Prerogative relief should only be refused on that ground in those few instances where the issuance of a prerogative writ would be effectively nugatory. It is not obvious in this case that the implementation of the Order even at this late stage will not have some influence over the mitigative measures that may be taken to ameliorate any deleterious environmental impact from the dam on an area of federal jurisdiction.
Per Stevenson J. (dissenting): The Federal Court of Appeal erred in interfering with the motions judge's discretion to refuse the prerogative remedy. The court was clearly wrong in overruling his conclusion on the question of delay. The common law has always imposed a duty on an applicant to act promptly in seeking prerogative relief. Given the enormity of the project and the interests at stake, it was unreasonable for the respondent
Society to wait 14 months before challenging the Minister of Transport's approval. It is impossible to conclude that Alberta was not prejudiced by the delay. The legal proceedings in the Alberta courts brought by the respondent and others need not have been taken into account by the motions judge. These proceedings were separate and distinct from the relief sought in this case and were irrelevant to the issues at hand. The present action centres on the constitutionality and applicability of the Guidelines Order. It
19

raises new and different issues. In determining whether he should exercise his discretion against the respondent, the motions judge was obliged to look only at those factors which he considered were directly connected to the application before him. Interference with his exercise of discretion is not warranted unless it can be said with certainty that he was wrong in doing what he did. The test has not been met in this case.
Costs
Per Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.: It is a proper case for awarding costs on a solicitor-client basis to the respondent, given the Society's circumstances and the fact that the federal Ministers were joined as appellants even though they did earlier not seek leave to appeal to this Court.
Per Stevenson J. (dissenting): The appellants should not be called upon to pay costs on a solicitor and client basis. There is no justification in departing from our own general rule that a successful party should recover costs on the usual party and party basis. Public interest groups must be prepared to abide by the same principles as apply to other litigants and be prepared to accept some responsibility for the costs.
Ontario v. Canadian Pacific Ltd. [1995] 2 S.C.R. 1031 : Vagueness -- Use of reasonable hypotheticals -- Overbreadth -- Environmental protection law drafted in very broad terms -- Whether or not law capable of interpretation so as to allow for legal debate
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory,
McLachlin, Iacobucci and Major JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO
Constitutional law -- Fundamental justice -- Vagueness -- Use of reasonable hypotheticals -- Overbreadth -- Environmental protection law drafted in very broad terms -- Whether or not law capable of interpretation so as to allow for legal debate --
Environmental Protection Act, R.S.O. 1980, c. 141, ss. 1(1)(c), (k), 13(1)(a) -- Canadian
Charter of Rights and Freedoms, s. 7.
1
During controlled burns along the appellant's railway right-of-way, dense smoke escaped onto adjacent properties. This led to complaints about injuries to health and property, and the appellant was charged under s. 13(1)( a ) of Ontario's Environmental Protection Act
(EPA). This provision constitutes a broad and general prohibition of the pollution "of the natural environment for any use that can be made of it". CP's acquittal in the Provincial
Offences Court of Ontario was overturned on appeal to the Ontario Court of Justice,
Provincial Division and a further appeal to the Court of Appeal was dismissed. The constitutional issues that were raised in that court were appealed here. The first, that the
Ontario EPA was not constitutionally applicable to CP, a federal undertaking, was dismissed here as Canadian Pacific Railway Co. v. Corporation of the Parish of Notre
Dame de Bonsecours , [1899] A.C. 367, was determinative of the issue. The second, that s. 13(1)( a ), and in particular the words "for any use that can be made of [the natural
1 7.
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
20

environment]", was unconstitutionally vague, overbroad, and therefore in violation of s. 7 of the Canadian Charter of Rights and Freedoms , remained.
Held : The appeal should be dismissed.
Per La Forest, L'Heureux-Dubé, Gonthier, McLachlin, Iacobucci and Major JJ.: Section
13 (1)( a ) EPA was neither unconstitutionally vague nor overbroad, and clearly covered the pollution activity at issue.
A law will be found unconstitutionally vague if it is so lacking in precision as not to give sufficient guidance for legal debate. Legislative precision is required because of (1) the need to provide fair notice to citizens of prohibited conduct and, (2) the need to proscribe enforcement discretion. Vagueness must be considered within the larger context and not in abstracto . A court can only determine whether an impugned provision affords sufficient guidance for legal debate after its interpretative role has been exhausted.
Using broad and general terms in legislation may well be justified. Section 7 of the
Charter does not preclude the legislature from relying on the judiciary to determine whether those terms apply in particular fact situations. The standard of legal precision required by s. 7 will vary depending on the nature and subject matter of a particular legislative provision. A deferential approach should be taken in relation to legislation with legitimate social policy objectives.
The purpose of the EPA is to provide for the protection and conservation of the natural environment. Environmental protection has an obvious social importance and yet the nature of the environment does not lend itself to precise codification. In the context of environmental protection legislation, a generally framed pollution prohibition may be desirable from a public policy perspective. The generality of s. 13(1)( a ) ensures flexibility in the law, so that the EPA may respond to a wide range of environmentally harmful scenarios which could not have been foreseen at the time of its enactment.
The fair notice element of vagueness analysis has procedural and substantive aspects.
Procedural notice, which involves the mere fact of bringing the text of a law to the attention of citizens who are presumed to know the law is not a central concern of vagueness analysis. Instead, the focus of the analysis is the substantive aspect -- an understanding that some conduct comes under the law. Whether citizens appreciate that the particular conduct is subject to legislative sanction is inextricably linked to societal values.
The purpose and subject matter of s. 13(1)( a ) EPA, the societal values underlying it, and its nature as a regulatory offence, all have some bearing on the analysis of the s. 7 vagueness claim. Because environmental protection is an important societal value, legislators must have considerable room to manoeuvre in regulating pollution. Section 7 must not be employed to hinder flexible and ambitious legislative approaches to environmental protection.
To secure a conviction under s. 13(1)( a ) EPA, the Crown must prove: (1) that the accused has emitted a contaminant; (2) that the contaminant was emitted into the natural environment; and (3) that the contaminant caused or was likely to cause the impairment of the quality of the natural environment for any use that can be made of it. The statutory definitions of "contaminant" and "natural environment" provide the basis for legal debate as to what constitutes a "contaminant" and the "natural environment". The term
"impairment" has been the subject of legal debate in other contexts and provides the basis for legal debate. Judicial interpretation of what constitutes a "use" of the natural
21

environment is easily accomplished through various interpretive techniques. The word must be considered in its context, should be interpreted in a manner which avoids de minimis applications and absurd results, and may be considered in contexts other than environmental law. These principles demonstrate that s. 13(1)( a ) does not attach penal consequences to trivial or minimal impairments of the natural environment, nor to the impairment of a use of the natural environment which is merely conceivable or imaginable. A degree of significance, consistent with the objective of environmental protection, must be found in relation to both the impairment, and the use which is impaired.
After taking these interpretive principles and aids into account, the scope of s. 13(1)( a ) is reasonably delineated, and legal debate can occur as to its application to a specific fact situation. This is all that s. 7 of the Charter requires.
Although its conduct fell within the "core" of polluting activity prohibited by s. 13(1)( a ),
CP is challenging the provision by relying on hypothetical fact situations which fall at the
"periphery". Peripheral vagueness arises where a statute applies without question to a core of conduct but applies with uncertainty to other activities. Peripheral vagueness is the basis for the argument that the expression "for any use that can be made of [the natural environment]" is vague because it is not qualified as to time, degree, space or user, and thus fails to delineate clearly an "area of risk" for citizens.
Reasonable hypotheticals, however, have no place in the vagueness analysis under s. 7.
There is no need to consider hypothetical fact situations, since it is clear after an analysis of the provision and its context that the law either provides or does not provide the basis for legal debate, thereby either satisfying or infringing the requirements of s. 7 of the
Charter .
Unlike the analysis for overbreadth, where reasonable hypotheticals may be advanced, proportionality plays no role in vagueness analysis. When considering a vagueness claim, a court is required to perform its interpretive function in order to determine if an impugned provision provides the basis for legal debate. The comparative nature of proportionality is, therefore, not an element of vagueness analysis.
Section 13(1)( a ) is not overbroad. Environmental protection is a legitimate concern of government and a very broad subject matter which does not lend itself to precise codification. The legislature, when pursuing the objective of environmental protection, is justified in choosing equally broad legislative language in order to provide for a necessary degree of flexibility. Section 13(1)( a ), while it captures a broad range of polluting conduct, does not apply to pollution with only a trivial or minimal impact on a use of the natural environment. Moreover, the "use" condition limits the application of s.
13(1)( a ) by requiring the Crown to establish not only that a polluting substance has been released, but also that an actual or likely use of the environment, which itself has some significance, has been impaired by the release. Speculative or purely imaginary uses of the environment are not captured by the provision. These limits on the application of s.
13(1)( a ) prevent it from being deployed in situations where the objective of environmental protection is not implicated.
It was not necessary to decide whether the independent principle of overbreadth, as outlined in R. v. Heywood , is available to the appellant in the circumstances of this case.
Section 13(1)( a ) is simply not overbroad.
22

Per Lamer C.J. and Sopinka and Cory JJ.: Section 13(1)( a ) of the Ontario EPA meets the test for vagueness under s. 7 in that it provides sufficient guidance for legal debate. The claim that the section is unconstitutionally overbroad also fails.
The availability of a defence can be relevant to s. 7 vagueness analysis if the fact that the defence exists sheds light on the meaning to be ascribed to an otherwise vague provision.
The availability of the defence of due diligence, however, has no bearing on the question of whether s. 13(1)( a ) EPA is unconstitutionally vague. This defence does not protect an accused from the consequences of his or her erroneous interpretation of a vague statutory provision and does nothing to impose standards on how such a provision is applied. Its availability is thus of no relevance to the s. 7 vagueness analysis.
Arguments based on hypothetical examples generally have little or no bearing on the s. 7 vagueness analysis since the task of a court conducting the analysis is to determine whether the law at issue provides "sufficient guidance for legal debate", as distinct from actually interpreting it. This conclusion, however, is not based on any doctrine of standing similar to that found in U.S. case law (such as Hoffman Estates v. Flipside,
Hoffman Estates, Inc.
, 455 U.S. 489 (1982)). As this Court has held on many occasions, a person charged with an offence in Canada need not show that the law at issue directly infringes his or her constitutional rights in order to have standing to raise a constitutional challenge. However, the fact that an accused's conduct clearly falls within the ambit of the impugned provision may still be relevant to the s. 7 vagueness analysis since the fact that an identifiable "core" of prohibited activity can be identified will often be a strong indicator that the terms of the law provide sufficient guidance for legal debate. It should also be noted that s. 7 vagueness claims will often be raised in conjunction with other arguments that do call for a consideration of hypothetical examples.
As this Court held in R. v. Heywood , s. 7 overbreadth analysis requires a comparison of the state's objectives underlying a statutory provision with the means it has chosen to achieve these objectives. In order to make such a comparison, it is necessary to interpret the statutory provision in question so as to determine what the means at issue are. The key to the interpretation of s. 13(1)( a ) EPA is the expression "impairment of the quality of the natural environment for any use that can be made of it". Interpreting this expression requires that meaning be ascribed to two distinct phrases: the phrases
"impairment of the quality" and "for any use that can be made [of the natural environment]".
Ordinarily, it can be presumed that a statute's literal meaning, as construed in the context of the statute as a whole, best reflects the intention of the legislature. In some cases, however, this presumption can be countered by the competing presumption that the legislature does not intend to violate the constitution. If the words in a statutory provision reasonably bear an interpretation other than a literal reading, the presumption of constitutionality can sometimes justify rejecting the literal interpretation in favour of the non-literal reading, when the former interpretation would render the legislation unconstitutional and the latter would not. If, however, the terms of the legislation are so unequivocal that no real alternative interpretation exists, respect for legislative intent requires that the court adopt the plain meaning, even if the legislation must then be struck down as unconstitutional.
The expression "for any use that can be made of [the natural environment]" has an identifiable literal or "plain" meaning when viewed in the context of the EPA as a whole,
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particularly the other paragraphs of s. 13(1). When the terms of the other paragraphs are taken into account, it can be concluded that the literal meaning of the expression "for any use that can be made of [the natural environment]" is "any use that can conceivably be made of the natural environment by any person or other living creature". In ordinary circumstances, once the "plain meaning" of the words in a statute have been identified there is no need for further interpretation. Different considerations can apply, however, in cases where a statute would be unconstitutional if interpreted literally. This is one of those exceptional cases, in that a literal interpretation of s. 13(1)( a ) would fail to meet the test for overbreadth established in Heywood .
The state objective underlying s. 13(1)( a ) EPA is, as s. 2 of the Act declares, "the protection and conservation of the natural environment". This legislative purpose, while broad, is not without limits. In particular, the legislative interest in safeguarding the environment for "uses" requires only that it be preserved for those "uses" that are normal and typical, or that are likely to become normal or typical in the future. Interpreted literally, s. 13(1)( a ) would capture a wide range of activities that fall outside the scope of the legislative purpose underlying it, and would fail to meet s. 7 overbreadth scrutiny.
There is, however, an alternative interpretation of s. 13(1)( a ) that renders it constitutional.
Section 13(1)( a ) can be read as expressing the general intention of s. 13(1) as a whole, and paras. 13(1)( b ) through ( h ) can be treated as setting out specific examples of
"impairment[s] of the quality of the natural environment for any use that can be made of it". When viewed in this way, the restrictions place on the word "use" in paras. ( b ) through ( h ) can be seen as imported into ( a ) through a variant of the ejusdem generis principle. Interpreted in this manner, s. 13(1)( a ) is no longer unconstitutionally overbroad, since the types of harms captured by paras. ( b ) through ( h ) fall squarely within the legislative intent underlying the section. In light of the presumption that the legislature intended to act in accordance with the constitution, it is appropriate to adopt this interpretation of s. 13(1)( a ). Thus, the subsection should be understood as covering the situations captured by paras. 13(1)( b ) through ( h ), and any analogous situations that might arise.
The term "impairment" supports two alternative interpretations: it can be seen as covering even slight departures from the norm or, alternatively, as requiring a more marked departure. When interpreting a term that on its face bears two equally plausible meanings, it is appropriate to consider the consequences that would result from applying either interpretation to the statutory provision at issue, and to ask whether these consequences can plausibly be seen as having been intended by the legislature. If the term "impairment" in s. 13(1)( a ) were interpreted as capturing all slight departures from the norm, virtually everyone in Ontario would regularly be in contravention of the section, and thus subject to fines or imprisonment. While the legislature has a legitimate interest in controlling pollution that results from multiple sources, each one insignificant in itself (such as air pollution resulting from automobile emissions) the legislature clearly did not consider the threat of imprisonment to be an appropriate means of addressing problems of this nature
(for example, the legislature clearly did not contemplate the imprisonment of all Ontario drivers). Rather, the legislature intended to reserve the threat of imprisonment as a deterrent aimed at persons whose activities contribute significantly to an environmental problem. When the term "impairment" in s. 13(1)( a ) is interpreted in this manner, the impugned provision is not overbroad in relation to the underlying legislative purpose.
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Gauthier v Commission de protection du territoire agricole du Québec [1989] 1 S.C.R. 859 : Protection of agricultural land -- Acquired rights
-- Permits authorizing use
Environmental law -- Protection of agricultural land -- Acquired rights -- Permits authorizing use -- Land bought and developed for residential purposes -- Subdivision plan for location of street approved by municipal council -- Subdivision plan for development filed with Department of Lands and Forests -- Part of land located in agricultural zone after adoption of Act to preserve agricultural land -- Development work done in part located outside agricultural zone -- Whether appellant had acquired rights over lots in his residential development located within agricultural zone -- Whether approval of municipal council or filing of subdivision plan, or both, constitutes a permit authorizing use for purpose other than agriculture within meaning of s. 101 of Act -- Act to preserve agricultural land, R.S.Q., c. P-41.1, s. 101.
In 1975 the appellant bought a piece of land intending to turn it into a residential development and began the construction of a street and ditches. Two years later the municipal council approved by resolution the plan for subdivision of the land used in constructing a street, and the appellant filed the subdivision plan for the entire development with the Department of Lands and Forests in accordance with art. 2175
C.C.L.C. This subdivision plan was accepted by the Department. The appellant proceeded with the development work. He built an electricity and telephone line and a model house. He also sold several lots. When the Act to preserve agricultural land came into effect, part of the appellant's land was included in an agricultural zone. This part, which is the subject of the litigation, though subdivided, had not been developed and had not been the subject of any building permit, sale or promise of sale. It was fallow land apart from an earth and gravel street extending the street located in the non-agricultural part of the land.
In order to proceed with his residential development project, the appellant made several requests to the respondent for permission to use his land located in the agricultural zone for purposes other than agriculture and to alienate it. His requests were denied. The appellant then applied to the Superior Court asking it to declare that he had acquired rights over the lots located in the agricultural zone. The Superior Court dismissed the application and the Court of Appeal affirmed the judgment, except as regards the roadbed. The appeal at bar seeks to determine whether the appellant holds acquired rights pursuant to s. 101 of the Act.
Held: The appeal should be dismissed.
The appellant does not have acquired rights to proceed with his entire residential project, by virtue of either the use made by him of his land or the permit authorizing use which he says he holds.
Section 101 of the Act to preserve agricultural land requires not only use for nonagricultural purposes but also that such use must be effective and in progress at the time the Act became applicable to the lot in question. Effective and current use can only be demonstrated by verifiable human intervention that would indicate that the lots are
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currently being used for a purpose other than agriculture. However, such effective and current use of a lot does not guarantee the existence of acquired rights to non-conforming use of the lot as a whole. The second paragraph of s. 101 limits the acquired rights resulting from use for purposes other than agriculture exclusively to the area of the lot actually used. The concept of the "vocation" of land regarded as a whole is foreign to the
Act and cannot be a source of acquired rights. In the case at bar, looking at the appellant's lots as they were at the time the Act came into effect, it can be seen that they were unoccupied land, which, except for the street, was not being used for any apparent purpose and on which no activity was taking place. In fact, the use of the appellant's land appears to be use for agricultural purposes, since the word "agriculture" is defined in s.
1(1) of the Act as being, inter alia, "leaving land uncropped".
The approval of his subdivision plan by the municipal council or the filing of this plan with the Department of Lands and Forests, or both, does not constitute a permit authorizing use within the meaning of s. 101. A permit authorizing use within the meaning of that section must (1) be issued by a body having public powers; (2) be in effect at the time the provisions of the Act became applicable to the lot; (3) mention a specific use for a purpose other than agriculture; and (4) apply to a given lot or surface area. The approval of the subdivision plan by the council and its filing with the
Department do not meet these criteria. Moreover, whereas a permit authorizing use allows the use requested, a "subdivision permit" is only intended to allow the marking out of a new property or identification of a new lot. It does not authorize use.
The respondent did not act in a discriminatory manner contrary to s. 15 of the Canadian
Charter of Rights and Freedoms by denying the appellant's requests to use his land for a purpose other than agriculture. Under s. 12 of the Act, the respondent must take a number of factors into consideration before rendering a decision. It is the diversity of the facts and circumstances it must consider in arriving at each decision which leads the
Commission to authorize some applications and deny others.
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