Document Type

Book Chapter

Publication Date

2018

Source Publication

The Law Society of Upper Canada, Special Lectures 2017: Canada at 150: The Charter and the Constitution, (Toronto, 2018), pp. 188-201

Keywords

environmental law; federalism; division-of-powers; POGG; environmental justice; inherent jurisdiction; constitutional litigation

Abstract

This Chapter reviews the key jurisprudential developments in relation to the division of powers in Canada, exploring how the shared jurisdiction over the “environment” created by sections 91 and 92 of the Constitution has historically and continues to shape environmental law and policy. In addition to this federal-provincial struggle, the chapter considers the current trend towards local regulation of environmental matters according to the principle of ‘subsidiarity’, and the growing recognition of the ‘inherent jurisdiction’ of Indigenous peoples. The contemporary dynamics are explored through two critical policy case studies highlighting barriers to environmental justice: safe drinking water on reserves, and climate change mitigation. The review reveals that Canada’s Constitutional framework, while not solely responsible, has contributed to our collective failure to achieve a coordinated and effective set of environmental laws and policies, which translates to unequal distribution of environmental benefits and burdens on the ground. Finally, recent movements to overcome these weaknesses are explored, including recent Charter litigation attempting to define “environmental rights” in Canada, and other attempts to establish a constitutional right to a healthy environment.

Comments

The attached PDF is a post-print version of the final published book chapter.

This post-print was written in October 2016. The final book chapter was published in 2018.

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