CONSTITUTIONAL LAW AND ENVIRONMENT SEPTEMBER 16, 2013

1. CONSTITUTIONAL LAW AND ENVIRONMENT SEPTEMBER 16, 2013

2. Overview • Canada’s Constitution—Overview • Division of Legislative Powers relating to Environment • Constitutionality of Federal Laws such as CEPA, CEAA 2012 • Adequacy of Federal Legislative Authority over Environment

3. Overview of Canada’s Constitution • What is it? What’s in it? • British North America Act • Constitution Act 1982 • Canadian Charter of Rights and Freedoms

4. Overview of Canada’s Constitution • Constitutional law cases in Canada • Authority of levels of government to legislate over different subjects • Consistency of laws with Charter (since 1982) • Consistency of laws with constitutionally entrenched Aboriginal rights (s.35) since 1982

5. Division of Powers Exclusive vs. Concurrent Jurisdiction • Exclusive Provincial Powers ss. 92, 92A, 93 • Exclusive Federal Powers ss. 91, 132 • Concurrent Powers – 94A, 95

6. Ownership vs. Legislative Authority • Ownership of Crown lands and waters a product of constitutional history • Legislative authority - division of powers under Constitution • Provinces own Crown lands (and thus natural resources) within respective boundaries subject to exceptions • Feds own Crown lands in northern territories, Indian reserves, national parks, military bases, offshore seabed

7. Ownership Authority • Ownership affords authority to control, manage, regulate production, collect royalties • Export of natural gas as example of how ownership authority can frustrate legislative authority • Public ownership of natural resources such as fish, wildlife, water (when does ownership change?)

8. Division of Legislative Powers Relating to Natural Environment • Environment not mentioned specifically in Confederation era documents • Constitutional authority divided according to various heads of power • Environment is “constitutionally abstruse” Oldman • Environmental initiatives need be linked to head of power, but legislative authority may vary

9. Division of Legislative Powers Relating to Natural Environment • Why should fisheries power differ from navigation or railways powers? • Constitutionality of environmental law depends on: • Source, nature, consequences of law • Form and scope of law (Lucas) • History of cases: federal legislative powers are patchwork superimposed on provincial carpet

10. Provincial Legislative Powers (s.92, 92A) • Property and civil rights • Matters of a merely local or private nature • Lands, mines, minerals; non-renewable natural resources; forestry; electrical energy • Local works and undertakings

11. Property and Civil Rights • Most important head of provincial power • Upheld by courts in competition with federal powers such as trade and commerce (Citizens Insurance) • Provincial authority over property and civil rights upheld when regulated companies extend beyond jurisdiction of any one province

12. Matters of a merely local or private nature • Overshadowed in cases by property and civil rights power

13. Natural Resources s. 92A • 1982 constitutional amendments • Exclusive provincial authority to legislate in relation to: • Exploration for non-renewable natural resources • Development, conservation and management of non-renewable natural resources and forestry resources • Development, conservation and management of electrical energy

14. Natural Resources s. 92A • Concurrent provincial authority to legislate in relation to export from province to another of primary production from non-renewable natural and forestry resources and production from electricity facilities • Authority to legislate taxes in relation to non-renewable natural and forestry resources, electricity production

15. Geographic Constraints on Provincial Authority • Right of action under Manitoba law against pollution originating in upstream province held to be unconstitutional (Interprovincial Co-op) • Extraterritorial origin of pollution removed it from provincial legislative authority • Implications for federal authority?

16. Federal Legislative Powers (s.91) • Sea coast and inland fisheries • Navigation and shipping • Works and undertakings (interprovincial, declared for general benefit of Canada) • Spending and taxation • Trade and commerce • Indians and lands reserved for Indians • Criminal law • Peace order and good government

17. Federal Legislative Powers (s.132) • Implementation of Empire treaties • International Boundary Waters Treaty • Migratory Birds Convention • Implementation of Canadian treaties? • Labour Conventions Case 1937 • Signature and ratification – federal • Implementation – federal/provincial or both depending on subject matter (e.g, Biodiversity Convention, UNFCCC)

18. Sea Coast and Inland Fisheries • Federal fisheries power under s.91 is legislative only (Fisheries Reference 1898) • Exercise of federal fisheries power can legally restrict exercise of property rights (closed seasons, licencing) • Federal power does not extend to processing and canning plants (Fish Canneries Reference)

19. Sea Coast and Inland Fisheries • R. v. Fowler • Wood debris deposited into a stream contrary to Fisheries Act • No evidence actual harm to fish, habitat • Not within federal legislative authority • R. v. Northwest Falling Contractors • Diesel oil - deleterious substance deposited into waters frequented by fish • Evidence of harm to fish • Within federal authority

20. Navigation and Shipping • Provides federal authority to legislate with respect to protection of navigable waters as well as navigation • Note recent amendments in 2012 Omnibus Bill C-45 • Navigable Waters Protection Act is now Navigation Protection Act

21. Works and Undertakings • “Works” are physical things • “Undertakings” not physical things but arrangements under which physical things are used • Works and undertakings confined to transportation or communications undertakings (e.g., pipelines)

22. Works and Undertakings • Works and Undertakings connecting provinces or extending beyond limits of a province s. 92.(10)(a) • Railways, canals, telegraph lines, pipelines • Works for general advantage of Canada s.92.(10)(c) • Requires declaration by Parliament of Canada • NEB-regulated pipelines: provincial legislative authority?

23. Indians and lands reserved for Indians • Lands reserved for Indians by virtue of 1763 Royal Proclamation and pre-confederation reserves fall within federal legislative authority • Enables feds to administer and control Indian lands • Underlying title remains with province subject to proprietary rights of Indians • Land surrendered by Indians becomes provincial Crown land

24. Criminal Law • R. v. Hydro-Quebec • PCBs released into Quebec stream by Hydro-Quebec facility contrary to Canadian Environmental Protection Act • Tests for valid exercise of criminal law power (RJR MacDonald): • Legitimate public purpose • Prohibition of an activity • Penalty

25. Criminal Law • R. v. Hydro-Quebec • Issue: does CEPA use appropriate tools to pursue the legitimate public purpose? • Is CEPA about environmental protection or control of toxic substances? • Laforest (majority) • lengthy process identify toxic substances • regulatory measures to reduce, control justifiable so long as combined with prohibitions

26. Peace Order and Good Government “91. It shall be lawful … for the Senate and House of Commons to make laws for the Peace, Order and good Government of Canada in relation to all matters not . . . assigned exclusively to the . . . Provinces” • Emergency Branch of POGG • National Concern Branch of POGG • Singleness, Distinctiveness, Indivisibility

27. Peace Order and Good Government • Aeronautics, atomic energy justified under POGG • Crown Zellerbach - Federal marine pollution legislation justified by POGG • R. v. Hydro-Quebec Toxic substances legislation perhaps not justified?

28. Crown Zellerbach • Crown Zellerbach, a logging company, was charged under Ocean Dumping Control Act with dumping woodwaste into marine waters part of British Columbia (internal waters to Canada) • No evidence that woodwaste harmed fish, marine life or navigation • No evidence of polluting effect in extra-provincial waters

29. Crown Zellerbach • What is the test for justifying a federal law under “national concern”? • How do majority and minority differ on application of that test to Ocean Dumping Control Act? • Does the test give the federal government enough scope to effectively address environmental problems?

30. Hydro-Quebec • Breach of an interim order under Canadian Environmental Protection Act (CEPA) restricting emissions of PCBs • How does the minority apply the “national concern” test? • What inference can be drawn from the fact that the majority decided not to address justification under POGG?

31. Oldman Dam Project

32. Oldman Dam Project

33. Oldman Dam Project • Alberta prepared environmental assessment, found no significant effects • Federal Environment Minister refused to conduct EA although Navigable Waters Protection Act permit and Fisheries Act authorization required • Application for judicial review submitted by Friends of Oldman River • Application denied at trial, appealed successfully

34. Oldman DamConstitutional Validity • Is federal law requiring EA so broad as to offend ss. 92 and 92A of the Constitution Act, 1867 and therefore constitutionally inapplicable to the Oldman River Dam owned by Alberta?

35. Oldman Dam Analysis of Constitutional Issues • Authority to conduct a federal assessment of a proposal? • SCC - EA is merely a component of federal decision-making; constitutional authority to carry out EA derives from federal authority over subject matter • Distinguish subject matter that brings feds in as decision-maker from scope of project, scope of issues to be considered

36. Constitutional Limits on Scope of Issues to be Considered • No for projects (e.g., rail lines) where feds have “comprehensive jurisdiction” • If comprehensive federal jurisdiction, integrated decision can be made that takes into account how project affects “provincial” as well as “federal” environmental issues

37. Constitutional Limits on Issues to be Considered in Decision? • What about projects (e.g.,Oldman) where federal jurisdiction is not central to project (“restricted jurisdiction”), but results from impact (e.g., navigation) • Supreme Court - Feds can conduct an integrated assessment (federal, provincial issues) if affirmative regulatory duty and legitimate concern about “federal” impacts (e.g., fish)

38. Current Constitutional Issues CEAA 2012, GHGs under CEPA • CEAA 2012, GHG Regulation (CEPA) • CEAA 2012 appears to authorize Agency to require EA of project even if no federal decision (Oldman) • Criminal power? CEAA 2012 includes prohibitions, penalties, unlike CEAA • POGG if projects are of “national concern” but no other federal decision required?

39. Municipal Authority and the Environment • Municipal authorities lack constitutional autonomy as creatures of provinces • Executive/legislative functions are delegated by provincial legislation • Municipal authority in relation to environment is vital and extensive: public health, planning and zoning, business licencing and regulation, dangerous substances

40. Scope of Municipal Authority • Municipal bylaws cant exceed or contradict provincial law Superior Propane (1995) Ont. Court Appeal • Judicial review of municipal decision to be treated according to deferential standard Rascal Trucking (2000) SCC • Hudson QC pesticide bylaw ruled to be within scope of statute delegating broad authority, but lacking specific authority Spraytech (2001) SCC

41. Intergovernmental Coordination • Delegation of legislative authority is unconstitutional • Administrative delegation is constitutional: CEAA 2012: Provincial EA “substituted” for federal EA can meet federal legal requirement • Intergovernmental agreements to cooperate, collaborate, harmonize (CCME, 1998 Harmonization Accord)

42. Summary Issues • Have the Constitution and Courts struck appropriate balance between provincial and federal legislative authority? • Is Harper government’s elimination of federal environmental laws an attempt to implement s.92A, ensure provinces have exclusive authority to control resources development? • Adequate federal authority to legislate on major resource developments, address climate change?