Portfolio and mandate of the Minister of the Environment

1. Overview of the Environment Portfolio
2. Parliament’s constitutional jurisdiction over the environment
3. Mandatory duties and authorities of the Minister of the Environment
4. Mandate and summary of legislation

Overview of the Environment Portfolio

The Environment Portfolio currently comprises of the Department of the Environment, the Parks Canada Agency, and the Canadian Environmental Assessment Agency (CEAA).

Environment Canada

A number of acts and regulations provide the department with its mandate and allow it to carry out its programs. Under the Department of the Environment Act, the powers, duties and functions of the Minister of the Environment extend to matters such as:

• the preservation and enhancement of the quality of the natural environment, including water, air and soil quality, and the coordination of the relevant policies and programs of the Government of Canada;
• renewable resources, including migratory birds and other non-domestic flora and fauna;
• meteorology; and
• the enforcement of rules and regulations.

Beyond those authorities conferred under the Department of the Environment Act, the Minister of the Environment exercises additional authorities provided under other acts and regulations including (but not limited to) the Canadian Environmental Protection Act, 1999 (CEPA 1999), the Federal Sustainable Development Act, and several pieces of legislation relating to the protection of biodiversity and water, and the enforcement of environmental laws and regulations (e.g., the Species at Risk Act). (See Tab 1 – d for more detail on Environment Canada’s (EC) legislation.)

The department is a key partner to other federal departments, including CEAA and Parks Canada, which are its ministerial portfolio partners. where statutes provide the Minister with secondary or shared responsibility for the successful execution of other federal departments’ mandates. For example, under CEPA 1999, EC provides information and analysis to others as a federal authority to support robust environmental assessments. Other statutes include the Arctic Waters Pollution Prevention Act (Transport Canada, Aboriginal Affairs and Northern Development Canada, and Natural Resources Canada); the Canada Foundation for Sustainable Development Technology Act (Natural Resources Canada); and the Fisheries Act (Fisheries and Oceans Canada).

Science is central to EC’s capacity to achieve its mandate and to meet its legislative obligations. The department conducts a wide range of environmental monitoring, research, and other scientific activities in fields such as atmospheric sciences, meteorology, physics, biology, chemistry, toxicology, hydrology, ecology, engineering, and informatics. This scientific information and knowledge is used to inform departmental programs, policies, and services, and includes the collection and dissemination of knowledge to support sound environmental decision-making. In 2013–2014, EC developed the Environment Canada Science Strategy 2014-2019, which tells the department’s science story and provides the direction and guidance needed to help ensure its science continues to be directed toward federal environmental priorities.

Environmental issues have wide-ranging implications for social and economic decisions. EC works in collaboration with many partners. In addition to other government departments, the department works with provincial and territorial governments, Aboriginal governments and organizations, the governments of other nations, academic institutions, environmental non-governmental organizations, and international organizations. This collaboration enhances the efforts of all partners in working for a clean, safe and sustainable environment and to achieve planned environmental results.

EC is a key federal regulator that works within the broader federal performance-based regulatory system by developing, promoting compliance with, and enforcing a wide array of regulations to protect Canadians and their environment. The department is committed to maintaining a regulatory system that is evidence‑based, effective, efficient, transparent and adaptable.

The department was created in 1971, but some of its component organizations are much older; the Canadian Wildlife Service was founded in 1947, the Water Survey of Canada in 1908, and the Meteorological Service of Canada in 1871.

About 60% of the department’s workforce is located outside the National Capital Region. Department employees are located across Canada in diverse locations, such as Iqaluit, Burlington, Vancouver, and St. John’s, and they work in field offices, laboratories, National Wildlife Areas and weather stations.

Canadian Environmental Assessment Agency (CEAA)

CEAA delivers high-quality environmental assessments and serves as the centre of expertise on environmental assessment within the federal government. Environmental assessment (EA) supports informed decision making to buttress sustainable development by identifying opportunities to eliminate or reduce a project's potential adverse impact on the environment before it begins, and by ensuring that mitigation measures are applied once the project is initiated.

The Canadian Environmental Assessment Act, 2012 (CEAA 2012) came into force on July 6, 2012. CEAA 2012 sets out the requirements for the conduct of federal environmental assessments and defines the roles and responsibilities of CEAA. The Agency is one of three federal responsible authorities under CEAA 2012, along with the National Energy Board and the Canadian Nuclear Safety Commission. When it is the responsible authority, the Agency determines whether an EA is required for a designated project and conducts the EA in accordance with the procedures and timelines set out in CEAA 2012. The Agency is also responsible for managing environmental assessments already underway before July 2012.

The Agency advises the Minister of the Environment in fulfilling his/her responsibilities under CEAA 2012, including establishing review panels to conduct the environmental assessment of certain projects and issuing enforceable EA decision statements at the conclusion of the EA process.

In support of timely and efficient environmental assessments, the Agency coordinates the delivery of federal EA requirements with provinces and territories to avoid duplication, and advises the Minister of the Environment on requests for substitution of the environmental assessment process of another jurisdiction for the CEAA 2012 process.

The Government of Canada takes a whole-of-government approach to Aboriginal consultation in the context of EAs to ensure that Aboriginal groups are adequately consulted when the Crown (federal government) contemplates actions that may adversely impact potential or established Aboriginal or treaty rights. The Agency serves as the Crown consultation coordinator to integrate the Government of Canada's Aboriginal consultation activities into the EA process, to the greatest extent possible, for review panels and EAs for which it is responsible.

The Agency was established in 1994 and is headed by a president who reports to the Minister of the Environment. The Agency has its headquarters in Ottawa, and regional offices in Halifax, Quebec City, Toronto, Edmonton, and Vancouver.

Parks Canada Agency

Parks Canada protects and promotes nationally significant examples of Canada's natural and cultural heritage, and fosters public understanding, appreciation, and enjoyment in ways that ensure the ecological and commemorative integrity of these places for present and future generations. National parks, national historic sites, and national marine conservation areas offer Canadians the opportunity to visit, meaningfully experience, and personally connect with these heritage places. In carrying out its responsibilities, Parks Canada works in collaboration with a number of partners including Aboriginal peoples, stakeholders, and neighbouring communities.

As the first national park service in the world, Parks Canada is responsible for including representative examples of Canada's natural regions in the system of national parks. The system represents the diversity and natural regions and landscapes in Canada. Forty-four national parks represent 28 of Canada's 39 terrestrial regions, and protect approximately 306,300 square kilometres of Canada's lands. In managing national parks, Parks Canada is mandated to protect ecological integrity.

Canada's first national urban park, Rouge National Urban Park, in the Rouge Valley of the Greater Toronto Area, was recently established and will provide a unique opportunity to connect urban Canadians to their natural and cultural heritage.

The system of national marine conservation areas represents five of Canada's 29 marine regions, and protects approximately 14,800 square kilometres of Canada's marine and freshwater ecosystems. Canada's four national marine conservation areas span two oceans and the Great Lakes. The Agency works to foster the ecologically sustainable use of marine resources while protecting its key features.

The system of national historic sites includes: 970 places of national historic significance, of which 167 are administered by Parks Canada; 671 national historic persons; and 453 events of national historic significance. The system is developed in collaboration with Canadians to define important aspects of Canada's history and contributes to the recognition and celebration of significant anniversaries. The long-term objective is a system which represents the breadth and diversity of Canadian history.

Parks Canada's Heritage Canals support commercial and recreational boating and include water management as well as management of bridge and dam infrastructure for the benefit of Canadians.

Additional programs focus on recommending nominations for formal heritage designations, including national historic sites, heritage railway stations, heritage lighthouses, federal heritage buildings, and Canadian Heritage Rivers.

Parks Canada demonstrates leadership in heritage conservation both nationally and internationally. In Canada, the Agency administers the National Historic Sites Cost-Sharing Program, a contribution program for non-federally-owned national historic sites of Canada. Internationally, the Agency represents Canada as State member for the World Heritage Convention and the International Union for Conservation of Nature, and through participation in other international organizations, conventions and agreements.

National heritage places offer Canadians a variety of recreational activities and learning experiences as well as unique opportunities to personally connect with these heritage places. There are more than 20 million visits annually to heritage places administered by Parks Canada.

Parks Canada has approximately 4,000 employees, with a National Office in Gatineau, Quebec.

Parliament’s constitutional jurisdiction over the environment

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 issues. 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^{Footnote 1} 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.^{Footnote 2}

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.^{Footnote 3}

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.,^{Footnote 4} 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 credits for bus passes and 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 Annex 1.

Conclusion

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.

Annex 1 – 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^{Footnote 5} 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 Indians.

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^{Footnote 6}. 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.^{Footnote 7} 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^{Footnote 8} and nuclear energy^{Footnote 9},as well as local railways^{Footnote 10}.

Mandatory duties and authorities of the Minister of the Environment

Introduction

The Minister of the Environment’s mandate comes from a number of pieces of legislation and regulations, aimed at protecting the natural environment (see Tab 1 – d, Mandate and Summary of Legislation). These statutes give the Minister a framework that includes some mandatory or required obligations, and a much longer list of potential authorities that can be used to deal with environmental issues and concerns. Depending on the legislation or regulation, the Minister may be obligated to take certain actions, 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 legislation or regulation gives the Minister the opportunity to act, should he or she wish.

Mandatory duties

Mandatory duties often come up 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 or its 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.

Obligations or mandatory duties are enforceable by the courts. A member of the public or a public interest group who feels the Minister has not taken the required action can take the Minister to Federal Court. The court will generally look at the “reasonableness” of the Minister’s decision in deciding whether to declare that he or she has failed to carry out a duty or to order the Minister to take action.

When imposing mandatory duties, statutes within the Minister’s mandate can also provide for a degree of flexibility. For example, the Minister is required to produce annual reports to Parliament, inventories of pollutants and other documents, but often has some discretion as to the details of their content. As a further example, the Canadian Environmental Protection Act, 1999 (CEPA 1999) gives the Minister discretion in terms of what action to take to assess and manage chemical substances, but he or she is required to make a decision in that regard within a certain timeframe.

Authorities

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, codes of practice, standard setting, and information-gathering provisions. The Minister may also enter into agreements or contracts, as necessary, and work with provinces and other stakeholders.

For the most part, the Minister’s statutes contain generous regulation-making authority, rather than specific obligations to take action. For example, the Minister may choose to put in place a regulation to control greenhouse gases in a particular sector, but is not legally obligated to do so. The Minister generally has a number of options available to him or her, including doing nothing, leaving it to another level of government, proposing a voluntary agreement with the polluter or the setting of standards or best practices.

In some cases, authorities 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 Federal Court challenge, as with other powers and authorities, the Minister must be able to demonstrate that he or she considered the relevant information and acted reasonably.

Not all of the Minister’s legal authorities are directly spelled out in statutes. Some authorities can flow from his or her general mandate. For example, the Minister generally has sufficient 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 monitor, report or pursue scientific studies in areas where the Minister has no regulation-making authority.

There are also certain legal limits on the Minister’s legislative authorities. The Minister can only use regulation making authorities for the purpose for which they are intended. If a statute gives the Minister the power to make regulations on automobile emissions, it can’t 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. Also, given that environment is a shared jurisdiction with the provinces, the federal government needs to be able to justify any environmental legislation or regulation based on authorities recognized under the Constitution Act, 1867, such as the criminal law power (see  Tab 1 – b, Parliament’s Constitutional Jurisdiction over the Environment, for more details on federal powers). For example, CEPA 1999 gives the Minister the regulatory authority to set emission standards from coal-fired electricity plants. However, since provinces have the authority to regulate utility companies directly, the federal government could not likely prohibit such plants from operating. The practical result may be the same, in the sense that a plant that could not meet the standard could be forced to close, but the regulations would need to be aimed specifically at the emissions in order to be constitutional.

With regards to the authority to enforce environmental statutes, while the “duty to enforce” does not exist at law, federal departments can enforce the prohibitions contained in their statutes in whatever reasonable fashion they deem fit, based on resources and priorities. Environment Canada has a robust policy framework in respect of enforcement, which sets out what will be enforced, in what manner and in which circumstances.