Carbon taxes. Rules about where and how you can fish. A bylaw saying you can’t wash your car on a city street. Provincial rules telling you to keep your “wheels out of the water” when operating your quad or dirt bike. Tax breaks so you can install solar panels on your house. Alberta’s Land Use Framework and its seven Regional Plans. International environmental treaties. Rules about the use of harmful things: what you can take to the dump; draining a wetland; saying how closely together oil and gas wells can be drilled; creating National Parks and taking water from streams.
All of these rules and many others like them are environmental laws. A textbook definition is that “[e]nvironmental law is the body of statutes and common law that is and will continue to be used to protect and improve environmental conditions.” [P. Muldoon et al. An Introduction to Environmental Law and Policy in Canada (Toronto: Emond, 2015) 3]
It is difficult to think of another area of law where science and critical thinking are more important. Environmental issues can be complex. Why do we need environmental laws at all? Canada is a “liberal democracy”. The words “liberal” and “liberty” both come from the Latin word meaning “free”. Freedom is part of who we are, part of our national identity. But because we must live together in society, most people agree that we will have to have some restrictions on the things we are allowed to do. To restrict people’s freedom for the common good, society uses laws. All laws are just restrictions on our ability to do as we please, with the threat of some sort of state enforcement being imposed on us if we don’t. While people in our society have different views on the kinds of restrictions that should be put in place, very few people would seriously argue for the outright destruction of the environment. Disagreements are usually about where the line should be drawn, about how much regulation should be allowed, not about whether there should be a line at all.
Law, as a subject, can be divided up in many ways. The headings of some of the columns in LawNow show some of the categories often used . . . Criminal Law, Family Law, Employment Law, Human Rights, Aboriginal Law, Landlord and Tenant Law. The divisions aren’t perfect. Any area of the law created this way will inevitably spill over its boundaries into other areas.
One of the most imperfect categories is that of environmental law. The subject matter of “the environment” is large and almost all human activities have the capacity to impact the environment. An activity (say walking) might be harmless in one situation but harmful in another. We don’t normally regulate people’s ability to walk where they please other than for safety or to protect private property. But if thousands of people want to walk on the same trail in a national park and that trail happens to be in a sensitive wildlife area, then rules will probably be made to restrict walking.
When we are trying to learn about environmental law and find it challenging, it might be for one of the following reasons:
First, the rules are not located in one place. Environmental rules are a mix of:
- common law handed down through court rulings;
- federal and provincial statutes;
- regulations whose main purpose is environmental protection; and
- environmental protection rules hidden in statutes created for other purposes.
There are also rules contained in management plans, strategies, frameworks, sets of guidelines and standards. Some of these have the force of law (or are treated as if they do), some do not.
Second, responsibility for the environment is constitutionally divided between the federal and provincial governments, but not in a way that is always easy to understand. Jurisdiction over some things overlaps or isn’t agreed upon. In other cases, one level of government may have delegated its duties to another by agreement. For example, provinces have recently agreed to take over many of the federal government’s responsibilities for protecting fish habitat.
While people in our society have different views on the kinds of restrictions that should be put in place, very few people would seriously argue for the outright destruction of the environment. Third, it can be hard to know what is true. It is difficult to think of another area of law where science and critical thinking are more important. Environmental issues can be complex. To evaluate whether regulation is appropriate, we must have at least a basic understanding of the science telling us that there is a problem and how we would measure success in combatting it. Developing that understanding takes effort, and that effort is made more difficult by the sheer volume of information and misinformation published, especially online, about major environmental issues. Sometimes what is written about an issue is honest, well informed and based on science. At other times it isn’t. Worse, sometimes it is hard, even impossible, to tell the difference. Regulation which affects economic interests can attract a sophisticated marketing effort to convince people that no regulation is needed.
Finally, it is now critical to understand how aboriginal law, a complex subject in its own right, interacts with environmental law. Section 35 of our Constitution protects “existing aboriginal and treaty rights”. A series of Supreme Court of Canada decisions beginning in the 1970s interpreted what is meant by aboriginal rights and title, the tests for how they are proven, how they can change over time and what the duties of the Crown are when a rule (including a permit) might infringe on them. They confirm that the Crown has a special kind of duty toward aboriginal people which it must always honour. Honouring the Crown’s duty will almost always require consultation with aboriginal people when their rights or title are affected. More recently, the Supreme Court has ruled that where aboriginal title has been proven, the Crown must go beyond consultation and actually obtain consent. This requirement will have significant impacts for environmental law, especially in areas such as pipeline approvals.
About Jeff Surtees
