The Crown's Duty to Consult.

AuthorSurtees, Jeff

What is the most important environmental law case in Canada since the turn of the century? Twenty years is a long time in Canadian environmental law, given that this area of law has only existed as a 'thing' for a little more than twice that length of time.

One well-reasoned view is that choosing such a case is an impossible task because courts routinely sidestep the important environmental issues, seeing them as primarily political rather than legal matters. (See the analysis by Professor Shaun Fluker from the University of Calgary in a piece he wrote for ABIawg in 2010 titled "The Nothing that is: The leading environmental law case of the past decade".)

The subject matter of environmental law is vast, complex and varied. Over the past twenty years, cases have been decided by all levels of courts and by an assortment of administrative tribunals. The subject matters of these decisions include:

* constitutional law (both division of powers and under the Charter);

* environmental assessment;

* Aboriginal law;

* review of regulatory decisions made by local authorities;

* judicial review of decisions of administrative boards;

* the extent and processes of public participation (standing);

* protection of endangered species;

* protection of physical spaces, such as rivers, parks and marine conservation areas;

* public trust;

* criminal law and enforcement actions under a myriad of mostly provincial regulatory statutes and regulations.

(See William A. Tilleman and Alastair R. Lucas Q.C. Litigating Canada's Environment: Leading Canadian Environmental Cases by the Lawyers Involved (Toronto: Thompson Reuters, 2017).)

Courts and parties have grappled with how to deal with key environmental concepts such as sustainable development and the precautionary principle when environmental damage has occurred, issues related to prosecution, issues related to sentencing, evidentiary issues, and the role of government agencies in the prosecution of environmental offences. (See Allan E. Ingelson, ed, Environment in the Courtroom (Calgary: University of Calgary Press, 2019.)

Cases that are not even about the environment can have a big impact on environmental law. One such case that was suggested to me is a very recently published decision of the Supreme Court of Canada which provides a revised framework for determining the appropriate standard (correctness or reasonableness) courts are to apply when reviewing decisions made by Canadian administrative tribunals...

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