The Constitution Act,1867, falls short of ecological sustainability. It is not surprising that at the time when there were no serious environmental issues, this Act did not provide for any power and responsibility over the protection of the environment. This inadequacy may undermine any potential holistic jurisdiction needed for enacting environmental laws over impacts of activities such as Offshore Wind Energy (OWE). This gap opens room for uncertainty and needs to be filled.
When disputes over provincial and federal jurisdictions arise around the power to enact environmental laws and regulations, courts have played a role in filling the gap. They have attached environmental matters to the powers listed in the Constitution Act such as fisheries and criminal law. These powers can mostly fall within the ambit of section 91 (Parliament’s jurisdiction) or section 92 (provinces’ jurisdiction) of the Constitution Act based on the substance of a relevant law. According to the Supreme Court of Canada (the SCC), the environment is regarded as an abstruse matter that may fall under different heads of power or both federal and provincial jurisdictions. Since environmental issues cut across various matters and powers, they are considered within the shared jurisdiction between federal and provincial legislations. Accordingly, the environment is not considered as an independent matter and does not have its own identity.
The SCC also applied the “national concern doctrine” to cases where a new matter created problems beyond the limits of a province or is considered an issue for the whole of Canada. For example, control or regulation of marine pollution under a relevant law may not fall under any heads of jurisdictions but could fall under a more general clause of the peace, order, and good government of Canada (the POGG) of section 91 of the Constitution Act. Similarly, enacting the Greenhouse Gas Pollution Pricing Act regarding the minimum carbon pricing standard is regarded as a matter of national concern under the POGG clause. If the national concern doctrine, which has limited room, applies, it is one of the areas that can be a basis for federal jurisdiction over environmental impacts of OWE projects.
Critiques and High-level Pathways for a Change
1) The environment should be a separate “matter” under the Constitution Act because it is physically and scientifically considered as a stand-alone unit with distinctive characteristics. The most effective route to recognize this unique identity is the amendment of the Constitution Act to retain jurisdiction for the protection of the environment. This pathway is difficult to apply as it needs more research and the legal procedure for an amendment is not straightforward.
2)
a. First, the environment with its ecological integrity should be regarded as a commons in which all people have interest and should be preserved for all. Currently, there are examples related to the environment such as fisheries and pollution of the environment that involve public interest. Other environmental components and issues deserve such high and national level of attention.
b. Second, the national concern doctrine is a reactive response that applies after arising a serious environmental issue that could not be controlled by provinces. This standard is not aligned with the principle of prevention, i.e., the overarching principle of environmental law that requires due diligence, anticipation, and proactivity.
c. Third, drawing sharp and icy political boundaries related to federal and provincial jurisdiction by the SCC would not adequately respond to the complex environmental impacts. SCC’s approach in terms of the interpretation of the Constitution Act should be more flexible and proactive in addressing new environmental issues (See my first and second blog posts).
3) Federal-Provincial Cooperations: Such cooperations do not have general applicability at the national level and their primary purpose is not environmental law making but they can offer some sort of environmental jurisdiction. For example, Bill C-49 intends to amend the Canada–Newfoundland and Labrador Atlantic Accord Implementation Act and the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act to include offshore renewable energy. The Bill includes some references to environmental protection that will be analyzed in the next blog post.
Image by Rudy and Peter Skitterians from Pixabay
