Summary of Environmental Law in Canada

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3 Constitutional Provisions


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Nothing in the Canadian Constitution specifically or directly refers to the environment. The jurisdiction for the protection of the environment is shared by both levels of government according to the distribution of their legislative powers. Section 91 of the Constitution Act gives the federal government jurisdiction in 29 areas as well as a residual power to act in matters that have not been granted to one of the two levels of government. The federal Parliament has the power to deal with environmental matters based on the following sources of power:

  1. Taxation (s. 91 (3));
  2. Navigation and Shipping (s. 91 (10);
  3. Sea Coast and Inland Fisheries (s. 91 (12));
  4. Banking (s. 91 (15));
  5. Criminal Law (s. 91 (27));
  6. Interprovincial and international transportation and communication (s. 92 (10)(a));
  7. Works declared to be for the general advantage of Canada (s. 92 (10)(c)); and
  8. Peace, Order and Good Government (residual power) (s. 91, introduction).

Sections 92 and 92A of the Constitution mention 17 areas falling within the provincial jurisdiction. The most important ones relating to the environment are:

  1. Taxation (s. 92 (2));
  2. Management and Sale of the Public Lands belonging to the Province (s. 92 (5));
  3. Municipal Institutions (s. 92 (8));
  4. Local Works and Undertakings (s. 92 (10));
  5. Property and Civil Rights (s. 92 (13));
  6. Generally, all matters of a merely local or private nature in the province (s. 92 (16));
  7. Exploration for non-renewable natural resources in the province (s. 92A (1)(a));
  8. Development, conservation and management of non-renewable natural resources and forestry resources in the province (s. 92A (1)(b)); and,
  9. Development, conservation and management of sites and facilities in the province for the generation and production of electrical energy (s. 92A (1)(c)).

The Constitution also gives concurrent jurisdiction to both levels of government for certain matters, such as agriculture and immigration (section 95 of the Constitution Act, 1867). Overlaps between federal and provincial legislation are common, but if there is a direct conflict between valid federal and provincial legislation then the federal legislation is paramount. Even though the provinces have more extensive powers to protect the environment than the federal Parliament, it is still true that the federal government can legislate all environmental activities if it can prove that the activity or a specific aspect of any activity falls under its jurisdiction under the Constitution. For example, the Supreme Court of Canada, in 1997, confirmed the right of the federal government to use its jurisdiction over Criminal Law to ban toxic substances in Canada. According to the Court, jurisdiction over Criminal Law will not affect provincial authority with regard to regulating pollution.

Nunavut, the Yukon and Northwest Territories derive their legislative powers from the federal statutes creating them. Among other things, the Nunavut Act, the Yukon Act and the Northwest Territories Act give the territories power over wildlife and things of local nature.

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