The Constitutional Allocation of Environmental Responsibilities and Interjurisdictional Coordination

• Author: Jamie Benidickson
• Pages: 33-54

33

CHAPTER 2

THE CONSTITUTIONAL

ALLOCATION OF

ENVIRONMENTAL

RESPONSIBILITIES AND

INTERJURISDICTIONAL

COORDINATION

A. INTRODUCTION

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

cussion in the Confederation era, environment is not specif‌ically men-

tioned in the documentation that form ally established the constitutiona l

framework. There was therefore no explicit assignment of responsibil-

ity for environmental law to either the provinces or the federal gov-

ernment. Accordingly, constitutional authority over the environment

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 La Forest J of the Supreme Court of Canada

discussed t he 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 understood in its generic sense, encompasses

the physical, economic and social environment touching several of

the heads of power as signed to the respective levels of gover nment . . . .

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 AW34

within the existing division of powers without considerable overlap

and uncertainty.2

Justice La Forest then emphasized the necessity of linking environ-

mental initiatives at either the federal or the provincial level to an exi st-

ing 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 a llocated with the level of constitutional

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

lators, 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 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 availability of a specif‌ic regulatory

2 Ibid at para 86. See, i n addition, the observat ion of the International Cour t of

Justice in Legality of the Threat or Use of Nuclear Weapon s, [1996] ICJ Rep 226

at para 29 that “the e nvironment is not an abstract ion but represents the livi ng

space, the qual ity of life and the very healt h of human beings, includin g genera-

tions unbor n.”

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

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

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

4 D Gibson, “Environm ental Protection and Enha ncement under a New Constitu-

tion” in SM Beck & I Ber nier, eds, Canada and the New Consti tution: The Unf‌in-

ished Age nda, vol 2 (Montreal: In stitute for Research on Public Polic y, 1983) 113

at 1 17–23.