How Are Environmental Laws Made?

• Author: Surtees, Jeff
• Position: Feature: How We Make Our Laws

Written environmental laws come in all different sizes and shapes. For example, the Canadian Environmental Protection Act, 1999 has 356 sections, six schedules and fifty-seven sets of regulations. Other environmental laws are only one page long. Big or small, they all have a few things in common. They must be put in place by a government that has the constitutional authority to create a law about whatever it is that is being regulated. (We looked at the issue of jurisdiction in the March/April 2017 issue of LawNow.) Also, for every law there will some kind of process that was followed to put it in place.

Laws are usually defined as rules that are enforceable using state power. If you break a law, there is at least the possibility that you will face a penalty. The penalty could be a fine, loss of a licence or privileges, or even jail. Laws are different from policies. Government policy can be defined many ways but essentially it is the plan of action the government wishes to take. Governments often need to pass laws to put their policies into effect.

Much of the debate about environmental law creation takes place during the policy formation stage. A government will formally and informally seek input from the public about things it is thinking about doing. It may release a 'green paper' setting out possible alternatives for discussion or a 'white paper' showing the alternative that the government likes the best. It is the job of the opposition parties in the federal Parliament or in the legislature of the province creating the policy to point out all the potential negative effects of the proposed laws. The federal, provincial and territorial governments have broad duties to consult if proposed legislation affects Aboriginal or treaty rights. Sometimes, as with the creation of Regional Plans in Alberta under the Alberta Land Stewardship Act, the law requires consultation. The government in power may adjust its policies depending on what it hears. In recent years, the public has come to expect that there will be consultation on bigger environmental and planning matters.

Once the policy the government wants to adopt becomes more firm, laws can be created. The ways environmental policy becomes environmental law are the same as the ways other laws are created in Canada. The federal, provincial and territorial governments can create statutes or regulations. Municipalities can create bylaws.

The creation of a statute follows a formal process which...