The International Context of Canadian Environmental Law

• Author: Jamie Benidickson
• Profession: Faculty of Law University of Ottawa
• Pages: 61-87

61

CHAPTER 4

THE INTERNATIONAL

CONTEXT OF

CANADIAN

ENVIRONMENTAL LAW

1 A. Daniel, “Environmental Threats to International Peace and Security:

Combatting Common Security Threats Through Promotion of Compliance with

International Environmental Agreements” (1994) Canadian Council for

International Law 134–46.

A. INTERNATIONAL ENVIRONMENTAL LAW

AND ORGANIZATIONS

Nations around the world have had long-standing concerns about the

impact on their domestic environments of transboundary air and water

pollution, as well as about offshore tanker spills inflicting economic

and ecological damage on their coastal regions and resources. In addi-

tion, indications of environmental deterioration in areas of common

interest outside national boundaries such as the oceans, the Antarctic,

and the atmosphere sheltering the planet have encouraged efforts to

identify effective international responses, including legal measures. To

some degree, pressure in this direction is even increased by the

thought that environmental deterioration constitutes a threat to both

peace and security.1

The United Nations Conference on the Human Environment

(Stockholm, 1972), the report of the World Commission on

Environment and Development, Our Common Future (1987), and the

UN Conference on Environment and Development at Rio de Janeiro

(1992) have been landmarks in the development of principles of inter-

62 ENVIRONMENTAL LAW

2Trail Smelter Arbitration (1941), 3 U.N. Rep. Int. Arb. Awards 1908 at 1965.

3 R.W. Hahn & K.R. Richards, “The Internationalization of Environmental

Regulation” (1989) 30 Harv. Int’l L.J. 421.

4 For judicial suggestion of the possible relevance of international environmental

law developments to the legal powers of Canadian municipalities, see 114957

Canada Ltée (Spraytech) v. Hudson (Town) 2001 SCC 40. File No.: 26937 at

paras. 31–32.

national environmental law. But, alongside these high profile initia-

tives, the evolution of international law affecting the environment is

ongoing (see table 4.1).

Public international law, the principles governing relations

between and among nations, derives from several sources — agree-

ment, customary international law, and general principles of law. All

are independent sources of international obligations. For example,

over fifty years ago, in connection with an arbitration between Canada

and the United States concerning liability for damage from air pollu-

tion from smelting facilities in Trail, British Columbia, an international

tribunal stated that “no State has the right to use or permit the use of

its territory in such a manner as to cause injury by fumes in or to the

territory of another or the persons or property therein, when the case

is of serious consequence and the injury is established by clear and

convincing evidence.”2

Today, however, treaties or other similar documents are increas-

ingly used to embody the text of environmental agreements between

states. Such agreements may be reached on a bilateral basis — between

neighbouring countries, for example — or they may involve many sig-

natories. Formal agreements of this nature dealing with such subjects

as the law of the sea, the protection of endangered species, trans-

boundary movement of hazardous wastes, prevention of pollution

from ships, and so on are the primary forms of international environ-

mental law. These agreements will often directly influence the shape of

domestic environmental regimes. Indeed, some commentators even

speak of a process of “internationalization” of environmental regula-

tion.3

The process for incorporating international law into Canada’s

domestic legal regime varies as between customary and treaty law; the

former is presumed to apply automatically in the absence of conflict

with statute or judicial precedent, while treaty obligations are imple-

mented only by means of legislative enactment.4Consistent with the

division of powers under the Constitution Act, 1867, domestic Canadian

responsibility for treaty implementation is divided between the federal

government and the provinces depending on the subject matter in