The Constitutional Implications of the Hudson Decision: Lessons for Adapting to the Health Effects of Climate Change in Canada

• Author: Carolyn Poutiainen
• Position: Is a BCL/LLB candidate at McGill University Faculty of Law
• Pages: 139-162

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ARTICLE

THE CONSTITUTIONAL IMPLICATIONS OF

THE HUDSON DECISION: LESSONS FOR

ADAPTING TO THE HEALTH EFFECTS OF

CLIMATE CHANGE IN CANADA

Carolyn Poutiainen*

CITED: (2013) 18 Appeal 139-162

INTRODUCTION

Climate change policy is divided into two main types of action, mitigation and

adaptation. Mitigation refers mainly to interventions aimed at reducing greenhouse gas

emissions at the source.1 Adaptation refers to “adjustment in natural or human s ystems

in response to actua l or expected climatic stimuli or their e ects, which moderates harm

or exploits benecial opport unities.”2 Historically, adaptation has been viewed as the

poor cousin of climate cha nge mitigation,3 but it is now seen as a crucial component of

climate change p olicy.4

Climate change has been identied as one of the biggest health threats of the 21st

century,5 and should be a key priority for the global health community.6 Canad a will

likely experience cl imatic impacts with severe c onsequences for public health.7 Canadians’

* Carolyn Poutiainen is a BCL /LLB candidate at McGill Universit y Faculty of Law. She has also

worked with the Climate Change Adapt ation Reseach Group at McGill Univer sity. This paper

was originally written f or a term essay course under the super vision of Professor Vrinda Narain.

The author gratefully ack nowledges Professor Narain fo r her guidance, and Professor James

Ford, Eric Bolo, Andra Syvan en, Jessica Magonet, and Alex andra Lesnikowski for comments on

earlierdrafts.

1 Klein et al, “Inter-Relationships Bet ween Adaptation and Mitigation” in ML Par ry et al, eds,

Climate Change 2007: Impacts, Adaptation and Vulne rability. Contribution of Working Group II to

the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge:

Cambridge Universit y Press, 2007) 745 at 750.

2 Ibid.

3 Roger Pielke, Jr, et al, “Climate Change 2007: Lifting the Taboo on Adaptation” (20 07) 445 Nature

597.

4 Ibid; Barry Smit et al, “An Anatomy of Adaptation to Climate Change and Variab ility” (2000) 45:1

Climatic Change 223.

5 Anthony Costello et al, “Managing the Health Eec ts of Climate Change” (2009) 373:9676 Lancet

1693 [Costello et al 2009]; Costello et al, “Global H ealth and Climate Change: Moving from Denia l

and Catastrophic Fatalism to Positive Ac tion” (2011) 369:1942 Philosophical Transactions o f the

Royal Society A - Mathe matical Physical and Engineering Scie nces 1866.

6 Margaret Chan, World Health Organization, M edia Statement, “The Impac t of Climate Change

on Human Health” (7 April 2008), onlin e: WHO < http://www.who.int/mediacentre /news/

statements/2008/s05/en/index .html>.

7 Canada, Natural Resources Canada, From Impacts to Adaptation: Canada in a Changing Climate

2007 (Ottawa: G overnment of Canada, 2008) [From Impacts to Adaptation]; Canada, Health

Canada, Human Health in a Changing Climate: A Canadian Assessment of Vulnerabilities and

Adaptive Capacity (Ottawa: Health Canada, 2008) [Human Health].

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vulnerabilit y has been highlighted recent ly, through events includin g the 1998 Ice Storm

and 2000 Walkerton water crisis.8 Emergencies such as these are expected to increase,

and adaptation actions w ill be necessary to prevent, reduce, a nd manage climate change -

related risks.9

In this paper, I will address the question: to what extent are Canadian municipalities

constitutionally able to adopt adaptations to the impacts of climate change on health?

For example, to what extent will municipalities be able to implement emergency

management programs, or protect local water sources from contamination? I will argue

that municipalities have potentially wide latitude for local environmental regulation,

including health ad aptation.10 While municipal authority in thi s domain is not unlimited,

courts and provincia l legislatures are increasingly adopting a deferential approach to

municipal authority, as exemplied by the la ndmark decision 114957 Canada Ltée (Spray-

Tech, Société d’arrosage) v Hudson (City of) (“Hudson”).11 Drawin g on Hudson, I will arg ue

that, depending on the in itiative, municipal adaptations may be: (i) implemented under

authority of existin g enumerated powers, although supported by omnibus provisions; (ii)

supported by the principle of subsidiarity ; (iii) supported by the precautionar y principle;

and (iv) permitted to complement federal or provincial regulations related to the same

matter.

is paper takes a novel approach to examining climate change adaptation in Canada.

Climate change law literature is dominated by mitig ation.12 Division of powers analyses

exist regarding climate change mitigation eorts generally and in other jurisdictions,13

and to a limited extent, in Ca nada specically.14 ese analyses examine how dierent

levels of government could construc t carbon taxes or other tools intra vires t heir powers.

Little has been written about division of powers and climate change adaptat ion in

Canada and t his gap must be lled, becau se unclear division of responsibilities a nd lack of

8 From Impacts to Adaptation, supra no te 7.

9 Kristie L Ebi & Ian Burton, “Identif ying Practical Adaptation O ptions: An Approach to Address

Climate Change-Relate d Health Risks” (2008) 11:4 Environmental Science & Policy 359.

10 Note that “health adaptation” r efers to an adaptation to the health ee cts of climate change.

11 114957 Canada Ltée (Spray-Tech, Société d’arrosage) v Hudson (City of), 2001 SCC 40, [2001] 2 SCR

241 [Hudson].

12 Robert L Gli cksman, “Climate Change Adaptation: A Coll ective Action Perspect ive on Federalism

Considerations” (2010) 40:4 Envtl L 1159 (“Although an extensive literature concerning the

federalism implication s of climate change mitigation policy h as developed, less has been

written about the fe deralism issues arising from climate change a daptation policy” at 1159);

W Neil Adger, Nigel W Arnell & Emma L Tompkins, “ Successful Adaptation to Climate Change

Across Scales” (2005) 15:2 Global Environmenta l Change 77 (The “dynamic nature of linkag es

between levels of gover nance” regarding adaptation is poo rly understood and not well- studied

– at 80).

13 See e.g. Rober t K Human & Jonathan M Weisgall, “Climate Change an d the States:

Constitutional Issues Arisin g from State Climate Protection Leaders hip” (2007-2008) 8:2

Sustainable Developm ent Law and Policy 6; Alice Kaswan, “A Cooperati ve Federalism Proposal

for Climate Change Legislation: T he Value of State Autonomy in a Federal System” (2007-

2008) 85:4 Denv UL Rev 791; Thomas D Peterson, Rober t B McKinstry, Jr & John C Dernbach,

“Developing a Comprehe nsive Approach to Climate Change Policy in the Uni ted States that

Fully Integrates Levels of Governme nt and Economic Sectors” (2008) 26 Va Envtl L J 227; Carol M

Rose, “Federalism and Climate Cha nge: The Role of the States in a Future Federal R egime – An

Introduction” (2008) 50:3 Ar iz L Rev 673.

14 See e.g. Nathalie J Chalifo ur, “Making Federalism Work for Climate Change: Cana da’s Division

of Powers over Carbon Taxes” (2008) 22:2 NJCL 119; Shi-Ling Hsu & Robin Elliot, “ Regulating

Greenhouse Gases in Cana da: Constitutional and Policy Dime nsions” (2009) 54:3 McGill LJ 463.