Basic Concepts in Environmental Law

• Author: Jamie Benidickson
• Pages: 11-32

11

CHA PTER 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 them selves as separate components that could each be

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

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

of contexts, including the legal sphere where sectoral legislation gov-

erning forests, la nd use, and agriculture, for example, coexist s alongside

new frameworks or proposals oriented around envi ronmental protec-

tion, ecosystem serv ices, sustainability, or even planetary bound aries.

The way the term environment is interpreted or understood in

legal settings is directly linked to the scope of environmental protec-

tion: envi ronmental prote ction legisl ation safeguards envi ronment as

def‌ined in that legislat ion and as interpreted by the courts in t he light

of legal principles drawn from many different spheres. Thus inter-

preted, environment 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 causing dam-

age to the environment must establish t hat the damage was inf‌licted on

environment as that ter m applies in the specif‌ic context of the offence.

1 Environment Ca nada, The State of Canada’s Environment (Otta wa: Supply &

Ser vices, 19 91) at 1–1.

ENVIRONMENTAL L AW12

If the damage was done to some man-made structure, and such struc-

tures are excluded from the courts’ understanding of environment,

then no offence has been committed under the Act.2 Or, if envi ronment

is def‌ined as “natura l environment,” excluding the indoors, then some

other legal regime will b e required to safeguard the indoor environment.

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 land situated bet ween a

farm and a lake:

If the farmer u ses excessive fertilizer, it could become a conta minant

that seeps though t he 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 environme nt on the farm and the owner of the in-bet ween 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 natu ral environment to another.3

Environmental impact s crossing jurisdictiona l boundaries or extending

well beyond national territories are widespread. We know, for example,

that agricultur al and forest management practices — as well as domes-

tic energy and tran sportation systems — can profoundly affect neigh-

bouring jurisdictions, global atmospheric conditions, and ultimately

climate systems. But these examples of harm to the env ironment have

also been chal lenging to def‌ine and address.

Each environmental statute must nevertheless be carefully scrutin-

ized to asse ss its operational scope. This need not alter anyone’s personal

inclination as to what envi ronmental 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 th at the offence of

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 (BCSC), aff’d (1997),

150 DLR (4th) 193 (BCCA).

3 Canadian National Railway v Ontario (Director Under the Environment al Protec-

tio n Act) (1991), 3 OR (3d) 609 at 620 (Div Ct). See also Kawartha Lakes (City) v

Ontario (Director, Ministry of the Environm ent), 2012 ONSC 2708.