LSA-Environmental Law CANs PDF

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Environmental Law Beth Hardy Winter 2013 JURISDICTION: DIVISION OF POWERS Introduction  Environment is what’s around us and what we can protect, we can use, what are our resources?  Conservation - flexible to include emerging environmental trends  Sustainable Development (3 Pillars) - ethical principles o 3 pillars  Economic  Environmental  Social o Harper got away from sustainable development and brought in responsible development  what does this mean, why the change?  Precautionary Approach  balancing science with legal

Zellerbach [1988] (Conceptual Power/POGG) Facts

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Dumping under th province for the Ocean Dumping Control Act per their permit – but they exceeded their permit Sea includes all water inland except for freshwater The respondent had a permitto dump under the Act, but it did not cover this site Whether s(4)1 of the Ocean Dumping Control Act is consitutional in its application to the dumping of waste in waters, other than fresh waters within a province Provincial Inability test o Singleness, distinctiveness and indivisibility o New matters not present when drafting the constitution or were local and private but are now national in nature o The effect on extra-provincial interest of a provincial failure to deal effectively with the control or regulation of the intra-provincial aspects General purpose of the Ocean Dumping Control Act is to regulate the dumping of substances at sea in order to prevent various kinds of harm to the marine environment That Parliament has jurisdiction to regulate the dumping in provincial waters of substance that can be shown to have a polleutant effect in extraprovincial waters Fowler – It seeks to control certain kinds of operations not strictly on the basis that they have deleterious effects on fish but rather o the basis that they might have such effects. Prima facie s.33(3) regulates property and civil rights within a province. … It is a blanket prohibition of certain types of activity, subject to provincial jurisdiction, which deos not delimit the

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elemnets of the offence so as to link the prohibition to any likely harm to fisheries…In my opinion, the prohibition in its broad terms is not necesssarily incidental to the federal power to legislate in repsect of sea coast and inlad fisheries and is ultra vires of the federal While the effect on fisheries of marine pollution caused by the dumping of waste is clearly one of the concerns of the Act it is not the only effect of such pollution with which the Act is concerned A matter falling within the national concern doctrine of POGG that it is consitutional in its application Sect 4(1) is not ultra vires of the Fed and is thus good law

Oldman River [1992] (Local jurisdiction unless impinges on federal) Facts

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Dam was being built in Alberta Went through the process to gather all pertinent approvals Minister of Transport did not subject the project to an environmental assessment prior to giving approval Does Fed have jurisdiction over the environment? The environment has broad jurisdictino and a project that in nature if provincial but touches on federal powers will have dual jurisdictions Environmental management touches on several heads of power The Act has a more expansive environmental dimension, given the common law context in which it was enacted The Guideline Order the “initiating department” assigned responsbibility for conducting an initial assessment, and if required, the environmental review panel, are only given a mandate to examine matters directly related to the areas of federal responsibility affeted…cannot use the order as a colourable device to invade areas of provincial jurisdiction which are unconnected to the relevant had of federal power The scope of assessment is not confined to the particular head of power under which the government of Canda has a decision-making responsibility I amd satisfied that the Guidelines Order is in pith and substance nothing more than an instrument that regulates the manner in which federal institutions must administer their muitfarious duties and functions…it is nothing more than an adjunct of the federal legislative pwoers affected..it falls under the purely residuary aspect of POGG Project touched on several areas of Federal responsibility Appeal dismissed: intra vires of Fed

Hydro-Quebec [1977] (pith and substance of CEPA is enviro protection) Facts

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HQ (respondent) alledgedly dumped PCBs into the St Maurice River Charged under s.6(a) of the CB Interim Order which was enforced by s. 34 and 35 of CEPA Does s.6(a) of the CB Interim Order and CEPA enabling provisions fall in whole or in part within the jurisdiction of the Fed to make laws for POGG, Criminal or other jurisdiciton? Purpose and effect of the law – prevention with prohibition Test o Protection of the environment o Any danger to human life and health o Toxins present a danger

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o Not trying to interfere just trying to protect the environment True character of the law or the dominant or most important characteristic of the law Environmental provisions must be tied to the appropriate consitutional source I conclude that Fed may validly enact prohibitions under its criminal law power against specific acts for the purpose of preventing pollution or to put it in other terms causing the entry into the environment of certain toxic substances. Good law within the Fed jurisdiction under criminal law

Chalifour Article Pith and Substance Discussion  Two Test o Purpose Test (What problem is trying to be remedied) o Effects Test (Considering the legal and the practice effects of the law – after the purpose test)

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National Concern Test o Singleness, Distinctiveness, indivisibility  clearly distinguishes it from matters of provincial concern and a scale of impact on provincial jurisdiction that is reconcilable with the fundamental distribution of legislative power under the Constitution Double Aspect Doctrine o Both Powers o Which ahs the dominate purpose o Efficiency (who would do it best) and democratic values Necessary Incidental o When the policy falls under one but effects a class under the other o As long as the law is relation to a valid head of power then it will be allowed o R v GST Conflicts of law Interjurisdiction Cooperation o MOUs o Equivalency Agreements o Express incorporate by a reference (reference the other jurisdiction) S. 92(10) o Local works except  Extend beyond province  Another country  Core of country interests o Fulton Case  99% transmission, transmission inter-provincial is only for emergency is still considered local 92(13)

o Property and Civil Rights  Important for province jurisdiction  Expense grants to federal (Banking, marriage and divorce, labour relations) Industrial industry – under provincial power  Electricity and energy generation 92(a) (REALLY IMPORTANT) o Public Lands  Broaden the provincial power over  To create legislation 92(5) o Public Lands Federal Powers o Criminal law, trade and commerce, seacoast and inland fishries, navigation, Indian Reserves, residual POGG and public power of public debt and property Provinces o Local, municipal, Natural Resources, and Mines and Minerals Ambiguity o Both govs use it to justify their lack of action POGG o National Concern is where Environmental primarily will fall under o Only been used 3 times by the SCC (one was Zellerbach and marine pollution) o Provincial Inability Test  A law that cannot be carried out by all the provinces all together then falls under Fed power  If one province does not agree or does not act accordingly then it will cause the law not to function properly Provincial Power of Property and Civil Rights o Lake Ontario Cement  Fed could also argue that they have jurisdiction Functional power v conceptual power Functional power – function of the legislation (wording) o Fowler  Deposited debris into coastal water  No evidence that the debris affected the fish  Persecuted under Fisheries Act  The Consitutional question is whether or not the impact to seacoast and inland fish is ultra vires?  not valid  Can’t put logging debris that may harm fish  Blanket provision and isn’t valid o Northwest Falling Contractors  Is fed jurisdiction because it mentions actual harm to the subject matter  Diesel fuel in Cooper Range  Validity  Not legislative to seacoast and inland fisheries  Definition of fish is too broad  Negative effect on the fish

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Within fed power – deleterious substance – deposit of substances frequented by fish Kupchanko  Navigating part of the Columbia River  Purpose was to protect wildlife and the habitat and is clearly within the provincial government’s power  Double aspect  Order under Provincial gov is inapplicable  Can’t regulate anything in navigable waters 

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JURISDICTION: ABORIGINAL LAW & THE ENVIRONMENT Sparrow [1990] (Aboriginal Rights and Infringement justification test) Facts

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A Musqueam Band Member was fishing 16 kms from the reserve with a 45 furlong net without a license. The federal fisheries act requires the band to have a food fishing license and only permits 25 furlong net. Mr. Sparrow claims he was fishing according to his aboriginal right to fish and that right was protected by section 35 of the Constitution. Is there an AB right to fish protected by s 35 of the Const’n 1982? Was it extinguished? If not then has the federal government justified the regulation of the ab right to fish? Government has a fidiciary duty to Aboriginal peoples Justification of infringement test  The infringement of the aboriginal right must be in furtherance of a legislative objective that is compelling and substantial  Whether the infringement is consistent with the special fiduciary relationship between the Crown and aboriginal people.  Honour of the Crown  Gave the rights sufficient priority  Infringe on the rights as little as possible  Consulted  Compensation Conclusion – no aboriginal right established and infringement was justified

Gladestone [1996] (Priority of alloting resources) Facts

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Charged under the Fisheries Act with attempting to sell herring spawn on kelp caught without the proper licence Attempted to sell it Had an Indian Fodd Fishing licence for up to 500 lbs Whether s. 20(3) of the Reg was of no force or effect in the circumstances, in virtue of s. 52 of the Consitution Act 1982 by reason of the aboriginal rights within the meaning of s.35(1) of the Constitution Act 1982? Modern version of the aborignal right Must have an element of a practice, custom or tradition integral to the disctinctive culture of the aboriginal group claiming that right Determination of the precise nature of the claim being made No frozen rights – must consider the evolution of the rights over time

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Extinguishment – must be clear and plain intention of the Crown and acting under valid law Used Van der Peet test for Aboriginal Right o Must be an element of a practice, custom or tradition integral to the distinctive culutre o Pre-contact o Central Significance No commercial right Appeal Allowed – confirming the existence of an aboriginal right to sell herring spawn on kelp for sustenance purposes

Delgamuukw [1997] (Infringement of Aboriiginal Title) Facts

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A land claim was brought against the British Columbia government regarding 58,000km of land by the Gitksan and Wet’suwet’en nations. Initially, there was 51 separate claims however upon appeal of the claims, the claims were altered by (1) replacing the claims for ownership and jurisdiction with claims for aboriginal title and self-government and (2) amalgamating the 51 claims into 2, one for each nation. What is the nature of the protection given to aboriginal title under s. 35(1) of the Constitution Act, 1982? Did the province have the authority to extinguish the title after confederation? The sui genesis nature of the Aboriginal Title provides for a few features of Aboriginal Title which includes the (1) inalienability of the title, (2) the source of the title, and (3) the communal nature of the title. The sui genesis nature of the Aboriginal Title provides for a few features of Aboriginal Title which includes the (1) inalienability of the title, (2) the source of the title, and (3) the communal nature of the title. 1. Inalienability: the land can only be transferred to the Crown. 2. Source: occupation prior to the Royal Proclamation and that it survived British claims of sovereignty (the interplay between common law and pre-existing systems of aboriginal law) 3. Communal nature: it’s a collective right to land held by all members of the nation To be able to claim Aboriginal Title, an Aboriginal nation must establish: 1. the group occupied the land prior to sovereignty 2. if a group relies on present occupation as proof of occupation presovereignty, there is a continuity present and pre-sovereignty occupation, and 3. at sovereignty, the group’s occupation of the land was exclusive. Appeal remitted as could not determine title but in the mean time exercise their Aboriginal Rights

Marshall #1 [1999] (Principles governing treaty interpreation) Facts

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MicMac selling 463lbs of eel for 787.10 without a license contrary to Fisheries Act Claims to have the right to sell the eel due to his Treaty rights Abo leaders in Maritimes asked for Truckhouses (trading posts) for furnishing them with necessaries but written treaty only included the promise to Traffik, Barter or Exchange any commodities in any manner but with such persons or the Manager of such Truckhouses

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Were the existing Treaty rights allow Marshall to be exempted from the Fisheries Act license requirements? Could Marshall bring the fish to a modern “truckhouse” to “trade”? Look at what the treaty intended, not just what was written and adapt to modern day…necessaries means moderate livelihood which in this case included fishing if it was at a subsistence level which is was. Look at wording but tough as there was a series of small treaties signed with individual MicMac communities that were never consolidated…found a treaty that seemed to refer to the trading Evidence shows that all terms were not included in the written document Unconscionable to ignore terms that were agreed upon orally GB saw the trade clause as a term of peace as people who trade don’t tend to fight Lower court erred by saying the only enforceable obligations were outlined in the written document Puts to the test the Honour of the Crown Provide necessaries which today can mean a moderate livelihood meaning basic food, clothing and housing Regs wouldn’t necessarily infringe on the treaty rights but no direction on how to approve the licences Close season put a limitation Acquittal Outcome by McLachlin J codified how to interpret Treaties

Taku River [2002] (Limits of Crown’s duty to consult) Facts

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Re-opening a mine EA – 3 years Duty to consult owed as there would be adverse effects Was the duty to consult satisfied by the EA? Was is the limit on the duty to consult and accommodate the Crown has? Where consultation is meaningful, there is no ultimate duty to reach agreement. Rather, accommodation requires that Aboriginal concerns be balanced reasonably with the potential impact of the particular decision on those concerns and with competing societal concerns Report thoughly addressed their issues Some of the interest impacted the mitigation is sufficient evidence to conclude that the TRTFN have prima facie Aboriginal rights and title over at least some of the area that they claim. Their land claim underwent an extensive validation process in order to be accepted into the federal land claims policy in 1984. The potentially adverse effect of the Ministers’ decision on the TRTFN’s claims appears to be relatively serious. The chambers judge found that all of the experts who prepared reports for the review recognized the TRTFN’s reliance on its system of land use to support its domestic economy and its social and cultural life (para. 70). The proposed access road was only 160 km long, a geographically small intrusion on the 32,000-km2 area claimed by the TRTFN. The chambers judge was satisfied that any duty to consult was satisfied until December 1997, because the members of the TRTFN were full participants in the assessment process (para. 132). I would agree. The Province was not required to develop special consultation measures to

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address TRTFN’s concerns, outside of the process provided for by the Environmental Assessment Act, which specifically set out a scheme that required consultation with affected Aboriginal peoples. Appeal allowed: conclude that the consultation and accommodation engaged in by the Province prior to issuing the Project Approval Certificate for the Tulsequah Chief Mine were adequate to satisfy the honour of the Crown.

Hiawatha Indian Band [2007] (public consultation) Facts

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Land exchange involved approx 1275 acres of land near Pickering (Seaton lands)  Lands contained marked and unmarked FN burial grounds  The ORC agreed to trasnfer land to private developer for 1057 acres of an environmentally sensitive area  Culturally sensitive areas in the Seaton lands were not transferred  Took part in an ON EA  Consultation process was created as part of the assessment  Notices of the proposed transfer were delivered to various stakeholders including most of the FN applicants  The ORC commissioned 3 comp archeological studies of Seaton that guided in part the ORC’s consultation with FN  A gourp called Founding First Nations Circle was formed and participated in the review of the archeological assessments  Signatories of the 1923 Williams Treaty  Did the Crown satisfy it’s duty to consult?  There is a right to preservation of burial grounds and while they gave up their rights under the Treaty a prov Act will protect the burial grounds  The Court dismissed the appeal because o The undertaking was only for the transfer of property o The confirmed archeological sites are culturally affliated to the Huron-Wendat, not Anishnaabeg o Culturally sensitve areas were removed from the land proposed to be transferred o Acugog, the Anishnaabeg FN geographicall closest to Seaton lands, participated fully in the consultation process o Future developments of the lans is subject to a protective development regim and the supervision of the FN Circle o The Cemeteries Act and Regulations establis a comprehensive means of protecting aboriginal remains o The FN applicants surrendered any interest in the Seaton Lands in the Williams Treaties  It follows that there is no aboriginal right or potential aboriginal right...