The Constitutional Allocation of Environmental Responsibilities and Interjurisdictional Coordination

• Author: Jamie Benidickson
• Profession: Faculty of Law University of Ottawa
• Pages: 30-51

30

CHAPTER 2

THE CONSTITUTIONAL

ALLOCATION OF

ENVIRONMENTAL

RESPONSIBILITIES AND

INTERJURISDICTIONAL

COORDINATION

A. INTRODUCTION

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

discussion in the Confederation era, environment is not specif‌ically

mentioned in t he documentation that formally established the consti-

tutional framework. There was therefore no assign ment of responsibil-

ity for the environment a s 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 known 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 discu ssed the diff‌iculty these ar rangements present for those who

seek to identify and allocate re sponsibility for environment al matters

in the Canadian process of constitutional adjudication:

The environment, as understood in its generic sense, encompasses the

physical, economic a nd social environment touching several of the

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

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

The Constitution al Allocation of Environment al Responsibilit ies 31

It must be recog nized that the e nvironment is not an independ-

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

is a constitutionally abst ruse matter wh ich does not com fortably f‌it

within the existing d ivision of powers without considerable overl ap

and uncertai nty.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 Constitut ion Act, fur ther noting t hat “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 indi-

cated th at the federal government’s environmental authority in relation

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

pond with t he environmental role permitted in association with federal

constitutional power over such activities a s navigation or railways.

The foregoing conf‌ir ms t hat responsibility for importa nt environ-

mental questions has not been allocated with the level of constitutional

certainty often thought to be desirable from the perspect ive of legisla-

tors, policy makers, and anyone seeking to ensure governmental ac-

countability in this f‌ield. This is partly a cons equence of the original

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

constitutional interpretation and of the ch anging perceptions of the

nature of environmental problems and appropriate policy responses.

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

to attempt to determi ne conclusively whether the federal or the prov-

incial 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.”3

This is a useful reminder that constit utional 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.4

One might be concerned with the availability of a particular instrument

or technique of environmental control such as cri minal law, general

2 Ibid., at para 86.

3 A.R. Lucas, “Ha rmonization of Federal and P rovincial Environment al Policies:

The Changing L egal and Policy Framework” in J.O. Saunders, ed., Man aging

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

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

4 D. Gibson, “Environment al Protection and Enhance ment under a New Consti-

tution” in S.M. Beck & I. Ber nier, eds., Canada and the New Const itution: The

Unf‌inished Agenda, vol. 2 (Montre al: Institute for Researc h on Public Policy,

1983) 113 at 117–23.