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Environmental Law and Policy Professor Elaine Hughes.

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Presentation on theme: "Environmental Law and Policy Professor Elaine Hughes."— Presentation transcript:

1 Environmental Law and Policy Professor Elaine Hughes


3 Jurisdictional Issues Federal-provincial legislative jurisdiction Role of municipalities Aboriginal rights Cooperative federalism solutions Harmonization

4 Federal-provincial Jurisdiction an enduring obstacle to progress No express environmental head of power Resource ownership doesnt parallel legislative authority Increasingly, issues are inter-jurisdictional or even international

5 Issues: Who has the legal power to act? Who is actually occupying the field? Is that level of government acting within its authority, or are its actions unenforceable or ultra vires? If no one is acting, who should be stepping up? Will collaboration or competition result in better progress?

6 Heads of Power: Provincial s.92(13) Property and Civil Rights s.92(5) Public Lands s.92A Non-renewable natural resources, forestry and electric energy

7 Laws in relation to private lands are based on s.92(13), while legislation governing public lands (owned by the Province) is based on s.92(5) & 92A.

8 Jurisdiction over civil rights means non-criminal matters, not civil liberties (Charter) Included are matters such as torts, contracts and business law.

9 s.92(16) local and private matters s.92(10) local works and undertakings Residual jurisdiction over all local (intra-provincial) matters Provinces cannot act internationally or pass laws with interprovincial or extra-provincial effect.

10 Heads of Power: Federal s.91(10) navigation and shipping Navigation power is v. broad – any activity with actual or potential interference with navigable waters. Shipping is related to interprovincial and international ships and commercial activities.

11 s.91(29) & 92(10)(a)(b) interprovincial works and undertakings International and interprovincial communication and transportation

12 s.91(12) Seacoast and inland fisheries Fowler v. R.; Northwest Falling Contractors v. R. Actual or potential harm to fisheries, fish habitat or the use of fish by people – this includes conservation and management as well as water quality (pollution).

13 Conflict in inland areas with provincial property rights and jurisdiction; Provinces are primary riparian rights owner Federal influence on resource activities on or near water eg. Forestry 2012 ams (once in force) will limit habitat protection to permanent harm to commercial, recreational and aboriginal fisheries

14 s.91(3) taxation s.91(1A) & 106 spending power Federal powers of direct and indirect taxation create enormous revenue and thus enormous financial influence on private parties and provincial governments.

15 s.91(2) trade & commerce International & interprovincial trade including free trade agreements

16 s.91 Preamble – POGG Emergency and gap powers eg. Atomic energy Crown Zellerbach Matters of sufficient singleness, distinctiveness and indivisibility that have become matters of national concern.

17 Concern is to uphold federal capacity but to constrain the scale of impact on provincial jurisdiction so as to maintain the essential division- of-powers.

18 Oldman Dam Information gathering and planning powers, to aid decisions on matters otherwise within federal jurisdiction, falls within the residuary aspect of POGG

19 s.91(27) criminal law R. v. Hydro Quebec Prohibition plus penalty with measures designed to uphold the peace, order, health, morality and security of the public Environmental protection per se is a proper subject of criminal law

20 s.95 agriculture Express concurrent jurisdiction with federal paramountcy in important areas such as pesticides and biotechnology s.91(22) patents Intellectual property rights in relation to GMOs.

21 Proprietary Jurisdiction Federal (s.108) & provincial (s.109) governments own public land and can deal with it as owners eg. Contract Ownership rights do not necessarily parallel legislative jurisdiction under s.91(1A) federal land or s.92(5) & 92A provincial land

22 Executive Jurisdiction Crown Prerogative gives federal government the power to make treaties Implementation of specific subjects, however, follows the normal division of powers

23 Municipal Jurisdiction s.92(8) provinces have legislative jurisdiction over municipalities and delegate authority to them via statute

24 Hudson v. Spraytech Municipalities can pass environmental rules using delegated powers over health and welfare, so long as there is no impossibility of compliance with paramount provincial or federal laws Tri-level regulatory regimes are possible

25 Aboriginal Jurisdiction s.35 of the Constitution Act 1982 gives constitutional protection to aboriginal interests Both levels of government must allocate resources in a way that respects these rights The key duties on the Crown are to consult with affected First Nations peoples and to accommodate their interests These rights can only be extinguished by the federal Crown

26 Aboriginal Jurisdiction (cont'd) Different areas of Canada can be affected by different interests The main types of aboriginal interests are: 1.Treaty rights 2.Comprehensive land claim settlements 3.Aboriginal use rights 4.Aboriginal title to land 5.Metis rights

27 Treaty Rights These are pre-1924 legal instruments between various aboriginal peoples and the Crown, some dating to the 1700s Rights contained in the treaties vary from one instrument to the next Treaties can contain both written and oral terms

28 Treaty Rights (cont'd) In many cases, aboriginal rights or title were exchanged for various hunting, fishing or land rights and so the original rights may be extinguished. Numbered treaties in the prairies were altered by the NRTA 1930 (which gives the right to hunt and trap on unoccupied Crown land)

29 Treaty Rights (cont'd) Alberta is mostly covered by Treaties 6, 7 and 8, all of which are affected by the NRTA 1930 Province may need to surrender land to fulfil treaty requirements but it need not be the same land as is claimed Aboriginal title surrendered and a treaty title was obtained, along with specified hunting, fishing and trapping rights on unoccupied Crown lands for food (but not commercial purposes)

30 Comprehensive Land Claims Settlements Modern (post-1974) equivalent of treaties but are more extensive and detailed Each is a unique document Provide for such items as: land, access to land, natural resources including subsurface land, wildlife harvesting and management, compensation, resource revenues, participation in environmental and land-use planning and management bodies May contain self-government provisions May contain specific consultation requirements for developers

31 Significant land claims to date: 1975James Bay and Northern Quebec 1984Western Arctic (Inuvialuit) 1993Sahtu Dene & Metis Comprehensive Agreement 1998Nisgaa Agreement 1999Nunavut Generally title was extinguished (except Nisgaa), hunting and fishing rights were retained and co- management of resources was formally established.

32 Aboriginal Rights Important rights to traditional uses of resources that exist independently of treaties May include hunting, fishing or self-government rights Must be able to show it is a practice or custom integral to the culture of the specific group claiming it and that it existed prior to European contact There must be continuity in the exercise of the right in some form up to the present day Gives priority of access to the resource and associated rights of access

33 Aboriginal Rights (cont'd) Both levels of government have a duty to consult and accommodate aboriginal rights when they engage in resource disposition and regulation Prima facie aboriginal rights have priority over private property rights that are not constitutionally protected Only the federal government can extinguish these rights although both levels of government may regulate

34 Aboriginal Title Aboriginal title is a collective right to the exclusive use and occupation of land (collective land ownership) Includes right and title to both surface land and subsurface minerals Is not limited to traditional or customary (pre-contract) uses but the land use must not be irreconcilable with traditional usage being made of the land Must show pre-sovereign occupation, at–contact exclusivity of occupation and a continuity of substantial connection to the land since sovereignty

35 Aboriginal Title (cont'd) Duties to consult and accommodate also arise in relation to infringements with aboriginal title Alienation of aboriginal title can be regulated and it may only be disposed of to the Crown Can be extinguished only by the federal Crown

36 Metis Rights To the extent Metis enjoy aboriginal rights, these are also protected by s.35 of the Constitution Act Jurisprudence recognized the unique history of the Metis (Powley) Metis aboriginal rights are those that (necessarily) arose post-contact once a Metis community arose, but before it came under the effective legal and political control of European laws and customs (pre- control)

37 Metis Rights (cont'd) The community must demonstrate some continuity and stability to support a site-specific aboriginal right claim

38 When and how aboriginal rights may be infringed has developed as a matter of common law Numerous significant S.C.C. decisions that set out under what circumstances infringement can be justified Infringements can occur via direct regulation, or indirectly via land-use decisions, and may impact either proved or asserted aboriginal interests

39 R. v. Sparrow (S.C.C.) Established the basic test for justification of an infringement Must determine if there is a compelling and substantial valid legislative objective (eg. Conservation) Was there adequate consultation? Was there as little infringement as possible (i.e., accommodation)? Has the honour of the Crown (fiduciary duty) been upheld? Is compensation available?

40 R. v. Sparrow (S.C.C.) Where consultation reveals a need to accommodate, interests must be balanced and the adverse impacts on aboriginal rights must be minimized (i.e. aboriginal rights have priority)

41 Later cases have added detail; important decisions include Van der Peet, Gladstone, Smokehouse, Delgamuuk, Haida, Taku River, Misikew Cree Cases involving direct government regulation have tended to emphasize priority and minimal infringement, while cases of impacts arising from project-approval decisions have tended to emphasize consultation and accommodation

42 Key Elements: 1. There is a duty to consult in good faith and in a meaningful way before authorizing any conduct that can infringe rights 2. The extent of consultation is proportionate to the strength of the asserted interest and the seriousness of the potential impact 3. If consultation reveals a duty to accommodate, adverse impacts must be minimized, so that the aboriginal right is seriously considered and where possible, integrated into the plans

43 Key Elements (cont'd): 4. Duties of consultation and accommodation can be discharged by a suitable regulatory process but not every process will qualify for all levels of consultation (mere compliance with a regulatory process is not necessarily enough) 5. Only the Crown (and not third parties) have duties, although procedural aspects of consultation (eg. Data collection) can be delegated

44 Some provinces (eg. B.C., Alberta) have published policy guidelines to set up a procedure for aboriginal consultation Industry has certain roles that are given to them in these guidelines which project-proponents will need to follow Overall objective at the end is to reconcile the respective interests of First Nations peoples and the broader interests of Canadian society

45 The question is thus not simply which level of government should be responsible for the environment, but rather, what is the most appropriate relationship between federal and provincial governments in light of their overlapping authority? - K. Harrison

46 Possible Solutions conflict1.unilateralism - each level acts as they like 2.collaboration - joint action cooperation 3.rationalization - divide up the work

47 Rationalization and collaboration have been used extensively in Canada: Referrals Inter-delegation Mirror and parallel legislation MOUs or interdepartmental and intergovernmental agreements harmonization

48 Harmonization Initiative of the CCME Harmonization Accord (1998) Idea is to define the roles of each level of government To create consistency in standards and laws To fill gaps and prevent overlap Only one level of government to act on any given issue Sub-agreements on specific topics to be negotiated

49 Accord is not legally binding and is unenforceable (2000) 34 C.E.L.R. (NS) 159 (Fed. CA)

50 Several sub-agreements have been signed: Environmental Assessment (1998) Canada-Alberta bilateral (1999) Inspections and Enforcement (2001) Standards (1998) Series of Canada Wide Standards (1999-present)

51 Process has been criticized for: Inconsistency Lack of stakeholder participation Failure to include First Nations Missing timelines Lack of transparency

52 CWS exist for: particulate matter, ground level ozone, benzene, mercury in specific industries (base metal smelting, waste incineration, lamps, dental amalgam, coal-fired power plants), petroleum hydrocarbon in soil, dioxins and furans in specific industries (steel manufacture, various incinerators, boilers and furnaces); working on biosolids in municipal waste next

53 Plans for sub-agreements on monitoring and reporting, research and development, and environmental emergencies are on the back burner

54 Overall, no uniform national standards have really been achieved and its not clear that any cost savings or improved inefficiencies have been achieved.

55 …the public is left to wander a maze of legislated and non-legislative instruments to determine whether standards for a particular substance exist, what those standards are, whether they are being met and whether they can take legal action to enforce them. Jason Unger (2005)

56 Other areas of CCME work: AIT, drinking water standards, ambient water quality guidelines, packaging waste, contaminated sites, TSMP, soil quality guidelines and E-waste

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