Environmental Law

• Author: Jocelyn Stacey
• Profession: Assistant Professor, Peter A Allard School of Law at the University of British Columbia
• Pages: 435-466

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Environmental Law

Jocelyn Stacey*

     have matured alongside modern

environmental law. Created in , the Federal Courts’ origin falls squarely

between the  enactment of the inf‌luential National Environmental Policy

Act (US)1 and the United Nations’  Stockholm Declaration on the

Human Environment.2 ese mark the birth of the modern era of environ-

mental law, a time when degradation of land, air, and water became unignor-

able. Canada began to do its part. e s saw the creation of a separate

Department of the Environment (now known as Environment and Climate

Change Canada), the enactment of the Canada Water Act3 and Clean Air Act,4

* Assistant Professor, Peter A Allard School of Law at the University of British Columbia.

Many thanks to Imalka Nilmalgoda (Allard JD ’21) for excellent research assistance.

Thanks to the editors for inviting me to contribute to this anniversary edition and to

Craig Forcese for his helpful feedback on this chapter. Thanks to David Boyd, Laura

Bowman, Martin Olszynski, and Stepan Wood for early suggestions on signif‌icant

decisions to include. I am very grateful to Lara Tessaro for her detailed feedback on

an early draft as well as the comments from two anonymous reviewers. Finally, I am

grateful for the support provided by the Law Foundation of British Columbia. All

errors remain my own.

1 National Environmental Policy Act, 42 USC §4321–47 (1969).

2 Stockholm Declaration on the Human Environment in Report of the United Nations Con-

ference on the Human Environment, UN Doc.A/CONF.48/14, at 2 and Corr 1 (1972).

3 Canada Water Act, RSC 1985, c C-11.

4 Clean Air Act, SC 1970-71-72, c 47.

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        

signif‌icant environment-protection changes to the Fisheries Act,5 the inter-

nationally renowned Mackenzie Valley Pipeli ne Inquiry, and the development

of environmental assessment review.6 is was the era in which a corpus of

federal environmental law was formed.

Reforms to Canadian environmental law that attempt to address pres s-

ing environmental issues have ebbed and f‌lowed.7 In many ways, the Federal

Courts’ jurisprudence ref‌lects this pattern. Faced with reviewing decisions

taken under equivocal and discretionary environmental legislation, the Fed-

eral Courts have only partially incorporated and elaborated the well-known

principles of environmental law that populate the realm of international

environmental law and which have seen robust development in other juris-

dictions.8 At the same time, there are pockets of the Federal Courts’ juris-

prudence that serve as important toeholds for future development as the

courts continue to grapple with the legal dimensions of urgent and ongoing

environmental challenges.

e focus of this chapter is on these cross-cutting legal principles, such

as the precautionary principle, sustainable development, and participatory

rights to access environmental justice. In addition to their existing or emer-

ging status as customary international law, these principles are codif‌ied in

most federal environmental statutes. While environmental principles cannot

perform the Herculean task of unifying the complex and diverse strands

of environmental law, they do allow for a thematic synthesis of much of

the Federal Courts’ environmental caselaw. As Eloise Scotford, a scholar of

principles in environmental law, writes, “environmental principles are signif‌i-

cant focal points for determining the nuanced evolution of environmental

law within discrete legal systems, in terms of their own legal frameworks,

5 An Act to amend the Fisheries Act and to amend the Criminal Code in consequence

thereof, RSC 1985, c F-14.

6 These developments are summarized in Stepan Wood, Georgia Tanner & Benjamin J

Richardson, “What Ever Happened to Canadian Environmental Law?” (2010) 37 Ecol-

ogy Law Quarterly 981 at 996–97.

7 Ibid; David R Boyd, Unnatural Law: Rethinking Canadian Environmental Law and Policy

(Vancouver: UBC Press, 2003); David R Boyd, Cleaner, Greener, Healthier: A Prescription

for Stronger Canadian Environmental Laws and Policies (Vancouver: UBC Press, 2015).

8 Philippe Sands, Jacqueline Peel & Adriana Fabra, Principles of International Environ-

mental Law, 3d ed (Cambridge: Cambridge University Press, 2012) [Sands et al];

Natasha Af‌folder, “Domesticating the Exotic Species: International Biodiversity Law

in Canada” (2006) 51:2 McGill Law Journal 217. The Court of Justice of the European

Union and the New South Wales Land and Environment Court are prominent counter-

examples to the Federal Courts.

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Environmental Law

doctrines and cultures.”9 is chapter examines these focal points, and in

so doing, it illustrates broader aspects of the Federal Courts’ doctrine and

culture and it portends some future pathways as the Federal Courts are con-

fronted with “super wicked” environmental problems,10 “hot” environmental

issues,11 and the legally disruptive climate emergency.12

is chapter proceeds as follows: “Environmental Law at the Federal Courts”

oers a brief introduction to the Federal Courts’ environmental jurisprudence

by highlighting key trends and milestones. “Environmental Principles at the

Federal Courts” turns to central principles of environmental law. After intro-

ducing the principles of precaution, sustainable development and access to

(environmental) justice, this part argues that the courts have developed very

dierent doctrinal roles for these principles across dierent contexts. ese

roles vary from being treated as binding and inf‌luential requirements of statu-

tory interpretation to being treated as justif‌ication for specif‌ic applications

of common law tests to legally irrelevant policy objectives. at section also

highlights instances in which the courts have actively avoided engaging with

environmental principles. “Doctrine, Culture, and the Future of Environ-

mental Law in the Federal Courts” ref‌lects on what this nascent and uneven

pattern of environmental principles says about Federal Courts’ culture and

what it means for the future of federal environmental law at the Federal Courts.

Environmental Law at the Federal Courts

     supervisory jurisdiction over

federal environmental decision-makers. Since the environment is a “diuse

subject that cuts across many dierent areas of constitutional responsibility,

some federal, some provincial,”13 federal jurisdiction over the environment

has been exercised in a piecemeal fashion. is jurisdiction is grounded in a

range of federal matters, notably f‌isheries; navigation and shipping; “Indians,

9 Eloise Scotford, Environmental Principles and the Evolution of Environmental Law

(Oxford: Hart Publishing, 2017) at 4. See also Nicolas de Sadeleer, Environmental Princi-

ples: From Political Slogans to Legal Rules (Oxford: Oxford University Press, 2002) at 1–2.

10 RJ Lazarus, “Super Wicked Problems and Climate Change: Restraining the Present to

Liberate the Future” (2009) 94:5 Cornell Law Review 1153.

11 Elizabeth Fisher, “Environmental Law as ‘Hot’ Law” (2013) 25:3 Journal of Environ-

mental Law 347.

12 Elizabeth Fisher, Eloise Scotford & Emily Barritt, “The Legally Disruptive Nature of

Climate Change” (2017) 80:2 Modern Law Review 173.

13 Canada (Attorney General) v Hydro-Québec, [1997] 3 SCR 213 at para 112.