The Constitutional Allocation of Environmental Responsibilities and Interjurisdictional Coordination

• Author: Jamie Benidickson
• Pages: 31-51

31

CHAPTER 2

THE CONSTITUTIONAL

ALLOCATION OF

ENVIRONMENTAL

RESPONSIBILITIES AND

INTERJURISDICTIONAL

COORDINATION

A. INTRODUCTION

Although pollution of Canada’s lakes and rivers was actively under

discussion in the Confederation era, environment is not specif‌ically

mentioned in the documentation that formally established the consti-

tutional framework. There was therefore no assignment of responsibil-

ity for the environment as such to either the provinces or the federal

government. Accordingly, constitutional authority over the environ-

ment is divided on the basis of a number of heads of power, essentially

as formulated at the time of Confederation in what is now know n as the

Constitution Act, 1867. In Friends of the Oldman River Society v Canada

(Minister of Transport)1 Justice La Forest of the Supreme Court of Can-

ada discussed 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 environment, as under stood in its generic sense, encompas ses the

physical, economic and social environment touching several of the

heads of power assig ned to the respective levels of government. . . .

It must be recognized that the environment is not an independ-

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

is a constitutionally abstruse matter which does not comfortably f‌it

1 [1992] 1 SCR 3.

ENVIRONMENTAL L AW

32

within the existing division of powers without considerable overlap

and uncertainty.2

La Forest J then emphasized the necessity of linking environmental in-

itiatives 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 concern s may be taken into account in the exercise

of a power may vary from one power to another.” As an example he indi-

cated that the federal government’s environmental authority in relation

to the management of f‌isheries, a resource, will not necessarily corres-

pond 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 a llocated 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 ac-

countability 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 prov-

incial government has jur isdiction 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.”3

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 p articular level of government to regulate.4

One might be concerned with the ava ilability of a particular in strument

or technique of environmental control such as criminal law, general

regulatory schemes, or licensing controls such as quotas and emission

standards. Alternative instruments might include zoning and land-use

restrictions, positive programs with respect to wilderness protection,

2 Ibid at para 86.

3 AR Lucas, “Har monization of Federal and Prov incial Environment al Policies:

The Changing L egal and Policy Framework” in JO Saunders, e d, Managing Nat-

ural Resources in a Federal State: Essays from the Secon d Banff Conference on Nat-

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

4 D Gibson, “Environ mental Protection and Enha ncement under a New Consti-

tution” in SM Beck & I Ber nier, eds, Canada and the New Const itution: The Un-

f‌inished Agenda, vol 2 (Montre al: Institute for Researc h on Public Policy, 1983)

113 at 117–23.