Basic Concepts in Environmental Law

• Author: Jamie Benidickson
• Pages: 11-30

11

chA Pter 1

BASIC CONCEPTS IN

ENVIRONMENTAL LAW

A. en vironment

“People,” argued the authors of a report tit led The State of Canada’s

Environment “have traditionally tended to view air, water, land, other

organisms, and themselves as separate components that could each

be understood in isolation from the whole.”1 This limiting assump-

tion, although of diminished in f‌luence, asserts a residual effect in a

variety of contexts, including t he legal sphere where sectoral legisla-

tion governing forests, land use, and ag riculture, for example, coexists

alongside new frameworks oriented around environmental protection,

ecosystem services, or sustainability.

The way the term environment is interpreted or understood in legal

settings is directly linked to the scope of environmenta l protection: en-

vironment al protection leg islation safeguards environment a s def‌ined

in that legislation and as interpreted by the courts in the light of legal

principles drawn from many different spheres. Thus interpreted, en-

vironment may, but frequently does not, correspond with professional,

scientif‌ic, or popular understandings of the term. By way of example,

those prosecuting the hy pothetical offence of doing damage to the en-

vironment must establish that the damage was inf‌licted on environ-

ment as that term applies in t he specif‌ic context of the offence. If the

1 Environment Ca nada, The State of Canada’s Environment (Ott awa: Supply & Ser-

vices, 1991) at 1–1.

ENVIRONMENTAL L AW

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damage was done to some man-made str ucture, and such st ructures are

excluded from the courts’ understandi ng of environment, then no of-

fence has been committed under the Act.2 Or, if environment is def‌i ned

as “natural envi ronment,” excluding the indoors, them some other legal

regime will be required to safeguard the indoor envi ronment.

Courts have also considered the problem of contaminants moving

through the natural env ironment and perhaps affecting private prop-

erty in the process. One example concerned la nd situated between a

farm and a lake:

If the farmer u ses excessive ferti lizer, it could become a contamin-

ant that seeps t hough the farm soil or run s into the abutting land or

seeps into the soil of t he abutting land, and th rough it into the lake.

The intervening proper ty owner would have no knowledge either of

the contamin ant or its location. The contamin ant entered the nat-

ural environment on t he farm and the owner of the in-betwe en lands

could not be said to be the owne r of the source of contaminant . It

would be an undue and improper stra in upon the interpretat ion of

the def‌inition of a natu ral environment in s 1(1)(k) to read it as being

disjunctive and to cover n atural movements of contamina nt from one

part of the natur al environment to another.3

Environmental impacts crossing jurisdictional boundaries or ex-

tending well beyond national terr itories are widespread. We know, for

example, that agricultural and forest management practices — as well

as domestic energy and tra nsportation systems — can profoundly affect

neighbouring jurisdictions, global atmospheric conditions, and ultim-

ately climate systems. But these e xamples of harm to the envi ronment

have also been chal lenging to def‌ine and address.

Each environmental statute must nevertheless be carefully scrutin-

ized to assess its operational scope. This need not alter anyone’s per-

sonal inclination as to wh at environmental law should encompass, but

it will serve to identify some of the practical legal limits of specif‌ic

statutory initiatives. One need not dig too deeply to appreciate that the

offence of operating a pit without a licence depends upon the legal in-

terpretation of operating and on the law ’s understanding of a pit.4

2 R v Enso Forest Products (1992), 8 CELR (NS) 253 (BCSC), aff ’d (1993), 12 CELR

(NS) 221 (BCCA). See also British Columbia (Minister of Env ironment Lands and

Parks) v Alpha Manufacturing (1996), 132 DLR (4th) 688 (BC SC), aff ’d (1997),

150 DLR (4th) 193 (BCCA).

3 Canadian Nation al Railway v Ontario (Director appointed und er the Environmental

Protection Act), (sub nom R e Canadian National Railway) (1991), 3 OR (3d) 609 at

620 (Div Ct).

4 R v Ontario Corp 311578, 2012 ONCA 60 4.