Basic Concepts in Environmental Law

• Author: Jamie Benidickson
• Profession: Faculty of Law University of Ottawa
• Pages: 12-29

12

chA Pter 1

BASIC CONCEPTS IN

ENVIRONMENTAL LAW

A. env ironment

“People,” argued the authors of an early report titled The State of Canada’s

Environment “have trad itionally tended to view air, water, land, other

organisms, and t hemselves as separate components that could each be

understood in isolation from the whole.”1 This limiting assumption,

although of stead ily dim inishing inf‌luence, asserts a residual effect in

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

tion governing forests, land-use, and agr iculture, for example, coexists

alongside new frameworks oriented a round environmental protection

or ecosystem management.

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 a s interpreted by the court s in t he light of legal

principles drawn from many dif ferent spheres. Thus interpreted, en-

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

scientif‌ic, or popular understandings of the ter m. 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 ter m applies in the specif‌ic context of the offence. If the

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

Service s, 1991) at 1–1.

Basic Concepts i n Environmental Law 13

damage was done to some man-made structure, and such structures are

excluded from the court s’ underst anding of environment, then no of-

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

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

regime will be required to safeguard t he indoor environment.

Courts have also considered the problem of contamin ants moving

through t he natural env ironment a nd perhaps affecting private prop-

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

farm and a lake:

If t he far mer uses excessive fertil izer, it could become a contamin-

ant that seep s though the farm soil or runs into the abutting land or

seeps into t he soi l of the abutti ng land, and through it i nto the lake.

The interveni ng property owner would have no knowledge eit her of

the contaminant or its loc ation. The contaminant entered the nat-

ural environment on the far m and the owner of the in-between lands

could not be said to be the owner of the source of contaminant. It

would be an undue and i mproper st rain upon t he interpretation of

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

disjunctive and to cover natural movements of contaminant from one

part of the natur al environment to another.3

Also, where one jurisdiction legislates on t he grounds that activity

within its boundarie s might harm the environment of another juris-

diction, courts may be reluctant to enforce the extraterritorial reach

of the statute. However, envi ronmental i mpacts crossing jurisdiction-

al boundaries or extending well beyond national ter ritories are now

more w idely acknowledged. We know, for example, that agricultural

and forest management practices as well as domestic energy and trans-

portation systems profoundly affect global atmospheric conditions and

ultimately climate systems.

Each environmental statute must nevertheless be carefully scr utin-

ized to as sess 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 statutory

initiatives presently in place.

2 R. v. Enso Forest Products (1992), 8 C.E.L .R. (N.S.) 253 (B.C.S.C.), aff’d (1993),

12 C.E.L.R. (N.S.) 221 (B.C.C.A.). See also British Columbia (Ministe r of En-

vironment Land s and Parks) v. Alpha Manufact uring (1996), 132 D.L.R. (4th) 688

(B.C.S.C.), aff’d (1997), 150 D.L.R. (4th) 193 (B.C.C.A.).

3 Canadian Natio nal Railway v. Ontario (Director appointed unde r the Environment-

al Protection Act), (sub nom. Re Canadian Nat ional Railway) (1991), 3 O.R. (3d)

609 at 620 (Div. Ct.).