In the last issue of LawNow I talked about some of the reasons environmental law can be challenging to understand. One of those reasons was that different levels of government in Canada have power to make rules about different things. In this article I want to discuss the basics of who has jurisdiction over the environment in Canada.
Canada is one country but we are also ten provinces and three territories. Inside the provinces and territories, we have municipalities, cities and towns, each with a physical geographic area and a government or council that makes rules (I’m using “rules” to refer to all enforceable laws and regulations to keep it simple). Within the provinces and territories, rules are also made by a wide variety of other organizations called by different names, including agencies, boards or authorities. These organizations can look a lot like governments. Sometimes they have authority to make enforceable rules in specific geographic areas (for example, the 36 Conservation Authorities in Ontario). Sometimes they have authority to make rules over a certain kind of activity (for example the Sterile Insect Release Board in British Columbia that has the power to order entire orchards cut down if they don’t comply with pest control rules). There are many examples of rulemaking authorities like these across the country.
The Supreme Court of Canada has said that all levels of government (even municipalities through delegated authority) have important roles to play in environmental protection and should do so, within their own allowed jurisdictions. Before Canada was created as a country in 1867, we were a British colony. The document that created the country was a British statute called the British North America Act. (which you will usually hear called the BNA Act). In the BNA Act, authority for the things that the British government thought were important 150 years ago were divided between the federal government and the four provinces that were first created. Section 91 of the Act lists the federal powers, section 92 lists the provincial powers. In 1982, at the insistence of Alberta under Peter Lougheed, and in response to the federal National Energy Program, a new section 92A was added, giving the provinces the exclusive power to make laws for exploration, development, conservation and management of non-renewable and forestry resources.
Each level of government is only allowed to make rules about things included on its list of powers. If one level of government thinks another level of government has made a rule that is outside its allowed area, they can ask a court to rule that the law is ultra vires (Latin for “beyond the powers) of that level of government.
The environment is not mentioned in either list of powers. In 1867, when the original BNA Act was written, people would have understood that rules were needed to control resources people could take advantage of (like fish and lumber) or activities (like navigation) but not many people would have thought of the environment as something that needed to be regulated on its own. The ability to pass laws that will affect the environment (for good or bad) is, however, included inside of many of the specific powers that were given to the two levels of government. As a result, we have what is probably the most challenging factor when it comes to environmental law in a federal system like Canada – shared jurisdiction over many things. Occasionally, both levels of government will make rules about something they share jurisdiction over. The courts have said that unless the provincial law and the federal law conflict with each other, both can be in effect. If there is direct conflict between the federal and provincial laws, then the provincial law will be declared invalid to the extent it conflicts with the federal law. This is called the “doctrine of paramountcy”.
Federal government powers creating environmental laws include trade and commerce, navigation and shipping, fisheries, criminal law, aboriginal lands and people, taxation, anything that is a national concern or emergency, residual power over anything not specifically covered in either list, and to make laws for the peace, order and good government of Canada (you will hear this called the “POGG clause”). The federal government also has control over the rules for land it owns, (like the National Parks and military bases) the industries it controls, (like railways and airlines) and the oceans.
Provincial powers that have been used to justify environmental laws include powers over mines, minerals and non-renewable resources, forestry, electricity, public lands the province owns, municipal institutions, matters of a local or private nature, local works and undertakings and property and civil rights within the province.
In 1867, when the original BNA Act was written, people would have understood that rules were needed to control resources people could take advantage of (like fish and lumber) or activities (like navigation) but not many people would have thought of the environment as something that needed to be regulated on its own. The Supreme Court of Canada has said that all levels of government (even municipalities through delegated authority) have important roles to play in environmental protection and should do so, within their own allowed jurisdictions. The federal government potentially has greater powers because of the residual power clause and the POGG clause, but most of the time the federal government has been happy to allow the provinces to play the lead role when it comes to environmental regulation.
Some things to remember about the division of powers in Canada:
First, the Constitution only creates two levels of government, federal and provincial. Other levels of government and other institutions that make rules can only exist because they have been created by the federal government (for example the territorial governments or the military) or by the provinces (for example cities and towns). All of the powers any city or municipality has are given to it by the province it is in and it is impossible for a city to have a power that the province itself doesn’t have. Even so, the powers of municipalities to create environmental laws are substantial. They control most development, the location of roads and services, sewage treatment and many things that affect water quality and air quality.
This also applies to any board, agency, tribunal or authority that creates rules. The powers that they have are delegated from the federal or provincial government. In most cases there will be a piece of legislation that creates the organization and sets out their authority. When you are trying to figure out who has authority to create rules and what the extent of that authority is, you can always look at the legislation that creates the agency and check the agency’s websites.
Second, the most common complaint isn’t that there are too many levels of government putting too many rules in place to protect the environment. It is the opposite . . . that no level of government is doing enough and that each level points the finger at the other as the problem.
Third, while there have been many disputes between levels of government about jurisdiction, many things are done co-operatively. There are agreements between jurisdictions setting out who is going to do what and a large amount of effort is put into harmonization of environmental laws between jurisdictions. The Canadian Counsel of Ministers of the Environment was created for this purpose.
Finally, before the area which is now Canada became a British colony, it was occupied by a variety of Aboriginal groups who had systems of law of their own and whose members had rights which came from those laws. Some Aboriginal groups entered treaties which may have altered those rights, some groups did not. Section 35 of the Constitution Act, 1867 states “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed”. We will talk about the significant impact this has on environmental law in Canada in the next column.