Jurisdiction, duties and authorities
The constitutional authority for federal environmental legislation is founded on criminal law, as well as the principles of peace, order, and good government and on federal constitutional powers such as international borders, international relations, trade and commerce, navigation and shipping, seacoasts and fisheries.
Provincial environmental laws are based on provincial constitutional powers, such as over municipalities, local works and undertakings, property and civil rights, provincially owned (public) lands, and natural resources. Territorial governments exercise delegated powers under the authority of the Parliament of Canada. The devolution of powers, or the transfer of province-like responsibilities from the federal government to territorial governments, is ongoing with agreements finalized in Yukon (2001) and in the Northwest Territories (2014), and an Agreement-in-Principle signed in August of 2019 with Nunavut.
The Constitution Act, 1867 constitutional jurisdiction over the environment
Section 91 of the Constitution Act, 1867 gives the federal government the authority to make laws on a broad range of matters. Section 92 sets out the issues for which the provinces may make laws. The environment is not explicitly listed in either section. As a result, there is often overlap and uncertainty in terms of which level of government is responsible for various aspects of the environment. Based on a number of Supreme Court of Canada decisions, protection of the environment is recognized as a matter of shared jurisdiction between Parliament and the provincial legislatures.
The federal heads of power
According to the Supreme Court, federal jurisdiction over the environment is mainly supported by main federal “powers”: the criminal law power and the “peace, order and good government” power.
The Criminal Law Power – s. 91(27)
For many years, there was debate as to whether or not the federal criminal law power would support environmental protection legislation. However, in 1997, in R. v Hydro-Québec, the Supreme Court decided unanimously that the protection of the environment is a valid criminal law purpose for which the criminal law power can be used. At issue in that case was the toxic substances regulatory scheme in the Canadian Environmental Protection Act. This decision was a major breakthrough in establishing a broad scope of federal jurisdiction over the environment.
Peace, order and good government
The federal government has the authority to take action on matters of national concern, based on the “peace, order and good government” (POGG) power of section 91. The courts have provided guidance of the extent of the federal POGG power, including as it relates to the environment. In R. v. Crown Zellerbach Canada Ltd., the Supreme Court used POGG to justify federal jurisdiction over ocean pollution. At issue was the Ocean Dumping Control Act, which prohibited the dumping of any substance into the sea without a permit.
In Crown Zellerbach, the Court emphasized that the national concern argument applies to those legislative subject matters that have national dimensions so significant as to warrant federal action, even if a provincial government might have responsibilities.
A key consideration is whether granting jurisdiction to the federal government over such a subject matter would take away too much from provincial jurisdiction. The courts will look at whether the subject matter in question can be defined and limited in a manner which avoids this. In the overall analysis on whether a subject matter fits under POGG, it is also relevant consider the potential overall national impact if one or more provinces is unable to effectively manage or address the issue in question.
Other heads of power
Federal jurisdiction over the environment may also come from other federal powers. For example, the taxation power (s. 91(3)) provides the federal government with the ability to encourage environmentally friendly behaviors, such as tax assistance for donations of ecologically sensitive land. As well, the courts have accepted that there is a power that allows federal spending, even in areas where Parliament doesn’t have the authority to pass legislation. For example, while Parliament cannot legislate in provincial fields of jurisdiction, such as education and healthcare, it can place conditions on how provinces spend federal funding. Where environmental matters are concerned, the federal spending power could be used to conduct remediation on polluted private or provincial lands, where the federal government would not otherwise have jurisdiction.
Other heads of power may provide a basis to regulate the environment in specific contexts. These are set out in the Annex.
The Supreme Court of Canada has recognized that environmental management and protection is a broad area and, depending on the issue, falls under federal or provincial jurisdiction. Parliament could enact new or expanded federal legislation respecting environmental protection as long as such action can be linked to a federal power and meets the criteria established by the Supreme Court of Canada in its recent decisions.
The Minister of the Environment and Climate Change’s mandate derives from various statutes and regulations, aimed at protecting the environment (see Tab 1a – About Environment and Climate Change Canada and Tab 1d, Mandate and Summary of Legislation). These statutes and regulations give the Minister a framework that includes some Ministerial obligations, and a much longer list of powers that can be used to deal with environmental issues and concerns. Depending on the statute or regulation, the Minister may be required to take certain actions or make certain decisions, sometimes within a specific timeframe.
Each issue must be examined on a case-by-case basis to determine whether the Minister has a duty or obligation to act. There may be situations where the statute or regulation gives the Minister a power to act, should he or she wish.
Ministerial duties are enforceable by the courts. Should the Minister not take action, members of the public or, public interest groups, may ask the courts to force the Minister to fulfill their duty. When the Minister takes action, those actions can also be reviewed by the courts. The courts will then generally look at the “reasonableness” of the Minister’s decision or action.
Mandatory duties often arise in the context of the Species at Risk Act where, based on a particular set of facts, the Minister is obligated to make a recommendation to the Governor in Council for a regulation to protect a species. In particular, where there is an imminent threat to the survival or recovery of a species, or where the necessary protection for the species, the residences of its individuals or its critical habitat are not in place, the Minister has a duty to make a recommendation to the Governor in Council. The Minister’s position regarding an imminent threat or the level of protection for a species and its habitat must be supportable on the basis that it is reasonable.
Statutes imposing mandatory duties on the Minister usually provide a certain discretion. For example, the Minister is required to produce annual reports to Parliament, inventories of pollutants and other documents. The Minister however is granted discretion to determine the details of the content of the report. As a further example, the Canadian Environmental Protection Act, 1999 (CEPA 1999) gives the Minister discretion to determine the action to take to assess and manage chemical substances, but the Minister is required to make a decision in that regard within a certain timeframe.
The Minister has significant discretion in terms of protecting the environment. Most statutes provide the Minister with a toolkit that allows for a choice of action. This could include Ministerial or Governor in Council regulation-making authority, the authority to adopt codes of practice, standards, and information-gathering instruments. The Minister may also enter into agreements or contracts, as necessary, and work with provinces and other stakeholders.
For the most part, the statutes under the responsibility of the Minister contain wide regulation-making authority. For example, the Minister may choose to develop and recommend for adoption by the Governor in Council regulations to control greenhouse gases in a particular sector, but the Minister is not legally obligated to do so. The Minister generally has a number of options, including doing nothing, leaving it to another level of government to regulate or control the subject-matter, proposing a voluntary agreement with the polluter or the setting of standards or best practices.
In some cases, powers may include the ability to issue a permit to allow a specific type of activity, within certain limits. Under the Canada Wildlife Act, for example, an activity can only be permitted in a wildlife area if it will not interfere with the conservation of wildlife. In the event of a court challenge, as with other powers, the Minister must be able to demonstrate that he or she considered the relevant information and acted reasonably.
Not all of the Minister’s powers are directly spelled out in statutes. Some can flow from their general mandate. For example, the Minister generally has authority to take action to assist decision-making. Where there may be a problem with air emissions, for instance, the Minister could undertake a monitoring program to determine what regulation may be necessary. Since regulating emissions is within the Minister’s mandate, he or she can take steps to arrive at a proper regulatory scheme, even if a statute doesn’t specifically dictate such steps. Such broad authority, if found nowhere else, is implicit in the Department of the Environment Act, which provides the Minister and department with their overall mandate over environmental matters. This includes the authority to conduct environmental monitoring activities, or pursue environmental scientific studies even if this is not expressly authorized by regulation.
There are also certain legal limits on the powers concerning regulations. Regulation powers can only be relied on for the purpose for which they are intended. For example, if a statute contains the power to make regulations on automobile emissions, this power cannot be used to make regulations reducing emissions from other types of vehicles. Such a regulation would be considered outside the authority provided by the statute.
Furthermore, the federal government needs to be able to justify any environmental legislation or regulation under the Constitution Act, 1867 (see above, Constitutional Jurisdiction)
Annex – Other heads of power as a basis for federal jurisdiction in environmental matters
Seacoast and Inland Fisheries – s. 91(12)
The courts have confirmed federal jurisdiction over fisheries resources that includes authority to make laws to protect fish habitat, including regulating water quality for this purpose.
Trade and Commerce – s. 91(2)
This power has been interpreted as having two branches: international trade and trade between provinces; and the general trade and commerce power. Courts have found that this power allows for some incidental federal regulation of trade within a province if certain conditions are met, including that the legislation’s primary purpose is to regulate trade outside of a province. Courts have held that customs duties are a form of trade and commerce legislation and this power is also considered to be a source of federal jurisdiction over certain environmental issues such as the movement of hazardous waste.
Public Property – s. 91(1A)
The federal power over property includes federal property, including national parks.
Indians and Lands Reserved for the Indians – s. 91(24)
Parliament may legislate with respect to environmental matters on lands reserved for the Indigenous Peoples.
Navigation and Shipping – s. 91(10)
The federal power over navigation and shipping confers federal legislative competence over navigable waters, works of navigation and harbours, and extends to vessels engaged in local shipping. It applies on the high seas, tidal waters and also extends up navigable rivers. This power permits the federal government to regulate obstructions to navigation, such as dams and bridges (in Oldman, the Supreme Court upheld the application of the Guidelines Order, in part, on this head of power).
Empire Treaty – s. 132
The Migratory Birds Convention of 1909, which regulates the hunting and conservation of migratory birds, falls within the scope of s. 132. Parliament has exclusive jurisdiction to implement Canada’s obligations under this treaty. This power, however, is only available in respect of treaties signed by Great Britain on behalf of Canada, a practice which ended with the Statute of Westminster in 1931.
Extraprovincial Works and Undertakings – ss. 91(29) and 92(10)(a)
Under this power, Parliament may regulate works and undertakings that extend beyond the limits of a province or that operate as part of an interprovincial system. The regulation could be used to impose environmental standards on pipelines between provinces (e.g., gas or water).
Works declared to be for the general advantage of Canada – ss. 91(29) and 92(10)(c)
This power is the basis for federal jurisdiction over several matters that touch on environmental protection such as uranium mining and nuclear energy, as well as local railways.
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