Environmental Law and Policy

Professor Elaine Hughes

UNIT 2

JURISDICTION

Jurisdictional IssuesFederal-provincial legislative jurisdictionRole of municipalitiesAboriginal rightsCooperative federalism solutionsHarmonization

Federal-provincial Jurisdiction“an enduring obstacle to progress”No express “environmental” head of powerResource ownership doesn’t parallel legislative

authorityIncreasingly, issues are inter-jurisdictional or even

international

Issues:Who has the legal power to act?

Who is actually occupying the field?

Is that level of government acting within its authority, or are its actions unenforceable or ultra vires?

If no one is acting, who should be stepping up?

Will collaboration or competition result in better progress?

Heads of Power: Provincials.92(13) Property and Civil Rights

s.92(5) Public Lands

s.92A Non-renewable natural resources, forestry and electric energy

Laws in relation to private lands are based on s.92(13), while legislation governing public lands (owned by the Province) is based on s.92(5) & 92A.

Jurisdiction over civil rights means non-criminal matters, not civil liberties (Charter)

Included are matters such as torts, contracts and business law.

s.92(16) local and private matters

s.92(10) local works and undertakings

Residual jurisdiction over all local (intra-provincial) matters

Provinces cannot act internationally or pass laws with interprovincial or extra-provincial effect.

Heads of Power: Federals.91(10) navigation and shipping

Navigation power is v. broad – any activity with actual or potential interference with navigable waters.

Shipping is related to interprovincial and international ships and commercial activities.

s.91(29) & 92(10)(a)(b) interprovincial works and undertakings

International and interprovincial communication and transportation

s.91(12) Seacoast and inland fisheries

Fowler v. R.; Northwest Falling Contractors v. R.

Actual or potential harm to fisheries, fish habitat or the use of fish by people – this includes conservation and management as well as water quality (pollution).

Conflict in inland areas with provincial property rights and jurisdiction; Provinces are primary riparian rights owner

Federal influence on resource activities on or near water eg. Forestry

2012 ams (once in force) will limit habitat protection to permanent harm to commercial, recreational and aboriginal fisheries

s.91(3) taxation

s.91(1A) & 106 spending power

Federal powers of direct and indirect taxation create enormous revenue and thus enormous financial influence on private parties and provincial governments.

s.91(2) trade & commerce

International & interprovincial trade including free trade agreements

s.91 Preamble – POGG

Emergency and gap powers eg. Atomic energy

Crown Zellerbach

Matters of sufficient singleness, distinctiveness and indivisibility that have become matters of national concern.

Concern is to uphold federal capacity but to constrain the scale of impact on provincial jurisdiction so as to maintain the essential division-of-powers.

Oldman Dam

Information gathering and planning powers, to aid decisions on matters otherwise within federal jurisdiction, falls within the “residuary aspect” of POGG

s.91(27) criminal lawR. v. Hydro Quebec

Prohibition plus penalty with measures designed to uphold the peace, order, health, morality and security of the public

Environmental protection per se is a proper subject of criminal law

s.95 agriculture

Express concurrent jurisdiction with federal paramountcy in important areas such as pesticides and biotechnology

s.91(22) patents

Intellectual property rights in relation to GMOs.

Proprietary JurisdictionFederal (s.108) & provincial (s.109) governments own public land and can deal with it as owners eg. Contract

Ownership rights do not necessarily parallel legislative jurisdiction under s.91(1A) federal land or s.92(5) & 92A provincial land

Executive JurisdictionCrown Prerogative gives federal government the power to make treaties

Implementation of specific subjects, however, follows the normal division of powers

Municipal Jurisdiction

s.92(8) provinces have legislative jurisdiction over municipalities and delegate authority to them via statute

Hudson v. SpraytechMunicipalities can pass environmental rules using delegated powers over health and welfare, so long as there is no impossibility of compliance with paramount provincial or federal laws

Tri-level regulatory regimes are possible

Aboriginal Jurisdictions.35 of the Constitution Act 1982 gives constitutional

protection to aboriginal interestsBoth levels of government must allocate resources

in a way that respects these rightsThe key duties on the Crown are to consult with

affected First Nations peoples and to accommodate their interests

These rights can only be extinguished by the federal Crown

Aboriginal Jurisdiction (cont'd)Different areas of Canada can be affected by

different interestsThe main types of aboriginal interests are:

1. Treaty rights

2. Comprehensive land claim settlements

3. Aboriginal “use” rights

4. Aboriginal title to land

5. Metis rights

Treaty RightsThese are pre-1924 legal instruments between

various aboriginal peoples and the Crown, some dating to the 1700’s

Rights contained in the treaties vary from one instrument to the next

Treaties can contain both written and oral terms

Treaty Rights (cont'd)In many cases, aboriginal rights or title were

exchanged for various hunting, fishing or land rights and so the original rights may be extinguished.

Numbered treaties in the prairies were altered by the NRTA 1930 (which gives the right to hunt and trap on unoccupied Crown land)

Treaty Rights (cont'd)Alberta is mostly covered by Treaties 6, 7 and 8, all of

which are affected by the NRTA 1930

Province may need to surrender land to fulfil treaty requirements but it need not be the same land as is claimed

Aboriginal title surrendered and a treaty title was obtained, along with specified hunting, fishing and trapping rights on unoccupied Crown lands for food (but not commercial purposes)

Comprehensive Land Claims SettlementsModern (post-1974) ‘equivalent’ of treaties but are

more extensive and detailedEach is a unique documentProvide for such items as: land, access to land, natural

resources including subsurface land, wildlife harvesting and management, compensation, resource revenues, participation in environmental and land-use planning and management bodies

May contain self-government provisionsMay contain specific consultation requirements for

developers

Significant land claims to date:1975 James Bay and Northern Quebec1984 Western Arctic (Inuvialuit)1993 Sahtu Dene & Metis Comprehensive

Agreement1998 Nisga’a Agreement1999 Nunavut

Generally title was extinguished (except Nisga’a), hunting and fishing rights were retained and co-management of resources was formally established.

Aboriginal RightsImportant rights to traditional uses of resources that

exist independently of treatiesMay include hunting, fishing or self-government rightsMust be able to show it is a practice or custom

integral to the culture of the specific group claiming it and that it existed prior to European contact

There must be continuity in the exercise of the right in some form up to the present day

Gives priority of access to the resource and associated rights of access

Aboriginal Rights (cont'd)Both levels of government have a duty to consult

and accommodate aboriginal rights when they engage in resource disposition and regulation

Prima facie aboriginal rights have priority over private property rights that are not constitutionally protected

Only the federal government can extinguish these rights although both levels of government may regulate

Aboriginal TitleAboriginal title is a collective right to the exclusive use

and occupation of land (collective land ownership)Includes right and title to both surface land and

subsurface mineralsIs not limited to traditional or customary (pre-contract)

uses but the land use must not be irreconcilable with traditional usage being made of the land

Must show pre-sovereign occupation, at–contact exclusivity of occupation and a continuity of “substantial connection” to the land since sovereignty

Aboriginal Title (cont'd)Duties to consult and accommodate also arise in

relation to infringements with aboriginal title

Alienation of aboriginal title can be regulated and it may only be disposed of to the Crown

Can be extinguished only by the federal Crown

Metis RightsTo the extent Metis enjoy aboriginal rights, these are

also protected by s.35 of the Constitution Act

Jurisprudence recognized the unique history of the Metis (Powley)

Metis aboriginal rights are those that (necessarily) arose post-contact once a Metis community arose, but before it came under the effective legal and political control of European laws and customs (pre-control)

Metis Rights (cont'd)The community must demonstrate some continuity

and stability to support a site-specific aboriginal right claim

When and how aboriginal rights may be infringed has developed as a matter of common law

Numerous significant S.C.C. decisions that set out under what circumstances infringement can be justified

Infringements can occur via direct regulation, or indirectly via land-use decisions, and may impact either proved or asserted aboriginal interests

R. v. Sparrow (S.C.C.)Established the basic test for justification of an

infringementMust determine if there is a compelling and

substantial valid legislative objective (eg. Conservation)

Was there adequate consultation? Was there as little infringement as possible (i.e., accommodation)? Has the honour of the Crown (fiduciary duty) been upheld? Is compensation available?

R. v. Sparrow (S.C.C.)Where consultation reveals a need to accommodate,

interests must be balanced and the adverse impacts on aboriginal rights must be minimized (i.e. aboriginal rights have priority)

Later cases have added detail; important decisions include Van der Peet, Gladstone, Smokehouse, Delgamuuk, Haida, Taku River, Misikew Cree

Cases involving direct government regulation have tended to emphasize priority and minimal infringement, while cases of impacts arising from project-approval decisions have tended to emphasize consultation and accommodation

Key Elements:1. There is a duty to consult in good faith and in a

meaningful way before authorizing any conduct that can infringe rights

2. The extent of consultation is proportionate to the strength of the asserted interest and the seriousness of the potential impact

3. If consultation reveals a duty to accommodate, adverse impacts must be minimized, so that the aboriginal right is seriously considered and where possible, integrated into the plans

Key Elements (cont'd):4. Duties of consultation and accommodation can be

discharged by a suitable regulatory process but not every process will qualify for all levels of consultation (mere compliance with a regulatory process is not necessarily enough)

5. Only the Crown (and not third parties) have duties, although procedural aspects of consultation (eg. Data collection) can be delegated

Some provinces (eg. B.C., Alberta) have published policy guidelines to set up a procedure for aboriginal consultation

Industry has certain roles that are given to them in these guidelines which project-proponents will need to follow

Overall objective at the end is to reconcile the respective interests of First Nations peoples and the broader interests of Canadian society

“The question is thus not simply which level of government should be responsible for the environment, but rather, what is the most appropriate relationship between federal and provincial governments in light of their overlapping authority?”

- K. Harrison

Possible Solutions

conflict 1. unilateralism

- each level acts as they like

2. collaboration

- joint action

cooperation

3. rationalization

- divide up the work

Rationalization and collaboration have been used extensively in Canada:

ReferralsInter-delegationMirror and parallel legislationMOUs or interdepartmental and intergovernmental

agreementsharmonization

HarmonizationInitiative of the CCMEHarmonization Accord (1998)

Idea is to define the roles of each level of governmentTo create consistency in standards and lawsTo fill gaps and prevent overlapOnly one level of government to act on any given

issueSub-agreements on specific topics to be negotiated

Accord is not legally binding and is unenforceable (2000) 34 C.E.L.R. (NS) 159 (Fed. CA)

Several sub-agreements have been signed:

Environmental Assessment (1998) Canada-Alberta bilateral (1999)

Inspections and Enforcement (2001)

Standards (1998) Series of Canada Wide Standards (1999-present)

Process has been criticized for:InconsistencyLack of stakeholder participationFailure to include First NationsMissing timelinesLack of transparency

CWS exist for: particulate matter, ground level ozone, benzene, mercury in specific industries (base metal smelting, waste incineration, lamps, dental amalgam, coal-fired power plants), petroleum hydrocarbon in soil, dioxins and furans in specific industries (steel manufacture, various incinerators, boilers and furnaces); working on biosolids in municipal waste next

Plans for sub-agreements on monitoring and reporting, research and development, and environmental emergencies are on the back burner

Overall, no uniform national standards have really been achieved and its not clear that any cost savings or improved inefficiencies have been achieved.

“…the public is left to wander a maze of legislated and non-legislative instruments to determine whether standards for a particular substance exist, what those standards are, whether they are being met and whether they can take legal action to enforce them.”

Jason Unger (2005)

Other areas of CCME work: AIT, drinking water standards, ambient water quality guidelines, packaging waste, contaminated sites, TSMP, soil quality guidelines and E-waste