Basic Concepts in Environmental Law

• Author: Jamie Benidickson
• Pages: 11-30

11

chAPter 1

BASIC CONCEPTS IN

ENVIRONMENTAL LAW

A. environment

“People,” argued the authors of a report titled 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 inf‌luence, asserts a residual effect in a

variety of contexts, including the legal sphere where sectoral legisla-

tion governing forests, land use, and agriculture, 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 environmental protection: en-

vironmental protection legislation safeguards environment as 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 hypothetical offence of doing damage to the en-

vironment must establish that the damage was inf‌licted on environ-

ment as that term applies in the 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

12

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

excluded from the courts’ understanding of environment, then no of-

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

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

regime will be required to safeguard the indoor environment.

Courts have also considered the problem of contaminants moving

through the natural environment and perhaps affecting private prop-

erty in the process. One example concerned land situated between a

farm and a lake:

If the farmer uses excessive fertilizer, it could become a contamin-

ant that seeps though the farm soil or runs into the abutting land or

seeps into the soil of the abutting land, and through it into the lake.

The intervening property owner would have no knowledge either of

the contaminant or its location. The contaminant 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 owner of the source of contaminant. It

would be an undue and improper strain upon the interpretation 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 territories 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 examples of harm to the environment

have also been challenging 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 what 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.