The Constitutional Allocation of Environmental Responsibilities and Interjurisdictional Coordination

• Author: Jamie Benidickson
• Profession: Faculty of Law University of Ottawa
• Pages: 25-45

25

CHAPTER 2

THE CONSTITUTIONAL

ALLOCATION OF

ENVIRONMENTAL

RESPONSIBILITIES AND

INTERJURISDICTIONAL

COORDINATION

1 [1992] 1 S.C.R. 3.

A. INTRODUCTION

Although pollution was certainly under discussion in the

Confederation era, environment is not specifically mentioned in the

documentation that formally establishes Canada’s constitutional

framework. Accordingly, constitutional authority over the environ-

ment is divided between the federal and provincial governments on the

basis of a number of heads of power, more or less as formulated at the

time of Confederation in what is now known as the Constitution Act,

1867. In Friends of the Oldman River Society v. Canada (Minister of

Transport)1Justice La Forest of the Supreme Court of Canada dis-

cussed the difficulty these arrangements present for those who seek to

identify and allocate responsibility for environmental matters in the

Canadian process of constitutional adjudication:

The Constitution Act, 1867 has not assigned the matter of “environ-

ment” sui generis to either the provinces or Parliament. The environ-

ment, as understood in its generic sense, encompasses the physical,

economic and social environment touching several of the heads of

power assigned to the respective levels of government. . . .

It must be recognized that the environment is not an independent

matter of legislation under the Constitution Act, 1867 and that it is a

26 ENVIRONMENTAL LAW

2 A.R. Lucas, “Harmonization of Federal and Provincial Environmental Policies:

The Changing Legal and Policy Framework” in J.O. Saunders, ed., Managing

Natural Resources in a Federal State: Essays from the Second Banff Conference on

Natural Resources Law (Toronto: Carswell, 1986) 33 at 34.

3 D. Gibson, “Environmental Protection and Enhancement under a New

Constitution” in S.M. Beck & I. Bernier, eds., Canada and the New Constitution:

The Unfinished Agenda, vol. 2 (Montreal: Institute for Research on Public Policy,

1983) 113 at 117–23.

constitutionally abstruse matter which does not comfortably fit

within the existing division of powers without considerable overlap

and uncertainty.

La Forest J. then emphasized the necessity of linking environmental

initiatives at either the federal or the provincial level to an existing

head of power, under the Constitution Act, further noting that “the

extent to which environmental concerns may be taken into account in

the exercise of a power may vary from one power to another.” As an

example he indicated that the federal government’s environmental

authority in relation to the management of fisheries, a resource, will

not necessarily correspond with the environmental role permitted in

association with federal constitutional power over such activities as

navigation or railways.

The foregoing confirms that responsibility for important environ-

mental questions has not been allocated with the level of constitutional

certainty often thought to be desirable from the perspective of legisla-

tors, policy makers, and anyone seeking to ensure governmental

accountability in this field. This is partly a consequence of the original

omission dating from 1867, but it is also a result of the processes of

constitutional interpretation and of the changing perceptions of the

nature of environmental problems and appropriate policy responses. Al

Lucas writes, for example, that it is “constitutionally meaningless” to

attempt to determine conclusively whether the federal or the provin-

cial government has jurisdiction over air pollution. An answer to the

question would, he explains, “depend not only on factual matters such

as the source, nature and consequences of particular air pollution, but

also on the precise form and scope of any law aimed at it.”2

This is a useful reminder that constitutional analysis in Canada

requires one to determine or specify the subject of the allocation or the

specific matter one wishes a particular level of government to regulate.3

One might be concerned with the availability of various instruments

and techniques of environmental control such as criminal law, general

regulatory schemes, or licensing controls such as quotas and emission