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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 . - PowerPoint PPT Presentation


One Earth, One Chance: Canadas Role in Preventing Catastrophic Climate Change


SEPTEMBER 16, 2013

1Overview Canadas ConstitutionOverview Division of Legislative Powers relating to EnvironmentConstitutionality of Federal Laws such as CEPA, CEAA 2012 Adequacy of Federal Legislative Authority over Environment


Overview of Canadas Constitution What is it? Whats in it? British North America Act Constitution Act 1982Canadian Charter of Rights and Freedoms


Overview of Canadas Constitution Constitutional law cases in CanadaAuthority of levels of government to legislate over different subjectsConsistency of laws with Charter (since 1982)Consistency of laws with constitutionally entrenched Aboriginal rights (s.35) since 1982

4Division of Powers Exclusive vs. Concurrent Jurisdiction Exclusive Provincial Powers ss. 92, 92A, 93Exclusive Federal Powers ss. 91, 132Concurrent Powers 94A, 95

5Ownership vs. Legislative Authority

Ownership of Crown lands and waters a product of constitutional history Legislative authority - division of powers under ConstitutionProvinces 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

6Ownership Authority

Ownership affords authority to control, manage, regulate production, collect royaltiesExport 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?)

7Division of Legislative Powers Relating to Natural Environment Environment not mentioned specifically in Confederation era documents Constitutional authority divided according to various heads of powerEnvironment is constitutionally abstruse OldmanEnvironmental initiatives need be linked to head of power, but legislative authority may vary

8Division 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 lawForm 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 rightsMatters of a merely local or private natureLands, mines, minerals; non-renewable natural resources; forestry; electrical energyLocal works and undertakings


Property and Civil Rights

Most important head of provincial powerUpheld 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 amendmentsExclusive provincial authority to legislate in relation to:Exploration for non-renewable natural resourcesDevelopment, 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 facilitiesAuthority 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 authorityImplications for federal authority?


Federal Legislative Powers (s.91) Sea coast and inland fisheriesNavigation and shippingWorks and undertakings (interprovincial, declared for general benefit of Canada) Spending and taxationTrade and commerceIndians and lands reserved for IndiansCriminal lawPeace order and good government


Federal Legislative Powers (s.132) Implementation of Empire treatiesInternational Boundary Waters Treaty Migratory Birds ConventionImplementation of Canadian treaties?Labour Conventions Case 1937Signature and ratification federalImplementation federal/provincial or both depending on subject matter (e.g, Biodiversity Convention, UNFCCC)

17Sea 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)

18Sea Coast and Inland Fisheries R. v. Fowler Wood debris deposited into a stream contrary to Fisheries Act No evidence actual harm to fish, habitatNot within federal legislative authority R. v. Northwest Falling ContractorsDiesel oil - deleterious substance deposited into waters frequented by fishEvidence of harm to fishWithin federal authority

19Navigation 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-45Navigable Waters Protection Act is now Navigation Protection Act


Works and Undertakings

Works are physical thingsUndertakings 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, pipelinesWorks for general advantage of Canada s.92.(10)(c)Requires declaration by Parliament of Canada NEB-regulated pipelines: provincial legislative authority?

22Indians and lands reserved for IndiansLands reserved for Indians by virtue of 1763 Royal Proclamation and pre-confederation reserves fall within federal legislative authority Enables feds to administer and control Indian lands Underlying title remains with province subject to proprietary rights of IndiansLand surrendered by Indians becomes provincial Crown land

23Criminal LawR. 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 purposeProhibition of an activityPenalty

24Criminal 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 substancesregulatory measures to reduce, control justifiable so long as combined with prohibitions

25Peace Order and Good Government91. 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 . . . ProvincesEmergency Branch of POGG National Concern Branch of POGGSingleness, Distinctiveness, Indivisibility

26Peace Order and Good GovernmentAeronautics, atomic energy justified under POGGCrown Zellerbach - Federal marine pollution legislation justified by POGG R. v. Hydro-Quebec Toxic substances legislation perhaps not justified?

27Crown 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 navigationNo evidence of polluting effect in extra-provincial waters

28Crown 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?

29Hydro-Quebec Breach of an interim order under Canadian Environmental Protection Act (CEPA) restricting emissions of PCBsHow 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?

30Oldman Dam Project

31Oldman Dam Project

32Oldman 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 requiredApplication for judicial review submitted by Friends of Oldman River Application denied at trial, appealed successfully

33Oldman DamConstitutional 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?

34Oldman 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