Canada

• Author: Gray E. Taylor
• Pages: 329-348

CHAPTER 18

Canada

GRAY E. TAYLOR

I. Overview and Structure

A. Geography and History

Canada’s vast geography, stretching from the Atlantic Ocean to the Pacific

Ocean and from its long border with the United States to the Arctic, encom-

passes multiple ecological regions including fresh and salt water coastlines,

mountains, forests, prairies, Arctic and sub-Arctic tundra and island archi-

pelagos, and fertile river valleys as well as large and small population cen-

ters. On this stage the growth of a modern economy has taken place, strongly

based in resource extraction but participating in industrial and technological

development on a relatively even footing with those of the United States,

European countries, Japan, Australia, New Zealand, and other prosperous

economies.

The environmental challenges encountered in Canada, not surprisingly,

are not different from those of other modern economies with increasing

impacts to air, water, and land as well as the ecological web that ties them

together. And as is the case for many other countries, the specific challenges

of natural resource development add a frequently challenging set of issues

for Canadians. Canada’s evolution as a country has been strongly influenced

by the political drama that has played out immediately to the south in the

United States, with the choice of British parliamentary institutions and a

constitutional monarchy by Canada over republicanism and an elected exec-

utive being a critical difference. Yet the example of U.S. institutions, policy,

and approach is never far from Canadian consciousness, particularly as Can-

ada’s approximately 35 million people (about one-tenth of the U.S. popula-

tion) are strung along the southern border of a land mass slightly larger than

the United States with more than 25 percent of Canadians living within 161

kilometers of the United States.1 That most of Canada and the United States

share the same language and, importantly for lawyers, a commitment to the

common law, makes that situation, with both attraction and rejection on the

Canadian side, a key determinant in Canadian practice on many issues,

including the environment.

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That said, Canada includes a strong French-speaking minority (approxi-

mately 23 percent), which comprises the vast majority of citizens in one of

Canada’s largest provinces, Québec. In Québec, the civil law remains the law

of the land, similar (but on a much less important scale) to the manner in

which Louisiana has retained a civil law approach in the United States.

1. The Canadian Constitution

Canada is, as indicated above, a parliamentary and constitutional monarchy.

It is also a confederation, composed of the federal government and ten prov-

inces of widely varying geographical and population sizes. The federal gov-

ernment is responsible for three very large territories in Canada’s north, each

sparsely populated but with great natural resource potential and many

Aboriginal citizens (in the territory of Nunavut, an overwhelming majority

of its citizens are Aboriginal).

Canada’s constitution does not include the word “environment,” and

responsibility and authority for environmental issues are thus not allocated

directly to the federal government of Canada or to the provinces and territo-

ries.2 Rather, the exclusive right to legislate with respect to certain “classes of

subjects” (frequently called “heads of power” in Canada) is allocated in the

constitution3 to the federal or provincial government (neither territories nor

municipalities are mentioned in the constitution; a territory receives only

those powers devolved onto it by the federal government and municipalities

receive their authority from provinces) and those heads of power provide

the federal and provincial governments with the ability to legislate and oth-

erwise deal with environmental matters related to those heads of power.

The provinces are granted the right to legislate exclusively with respect

to, among other things, “property and civil rights within the province,” most

“local works and undertakings,” and “all matters of a merely local or private

nature in the province.”4 In a 1982 amendment, each province was given the

exclusive right to legislate in relation to the exploration for nonrenewable

natural resources in the provinces and the development, conservation, and

management of nonrenewable natural resources and forestry resources in the

province and of sites and facilities for the generation and production of elec-

tricity in the province, and the provinces were granted some ancillary rights.5

On the other hand, the federal government has the exclusive right to

legislate with respect to, among other things, “fisheries,” “Indians, and lands

reserved for Indians,” “the criminal law,” “trade and commerce,” and “for

the peace, order and good government of Canada in relation to all matters

not coming within the classes of subjects . . . assigned exclusively to the . . .

provinces” (this last category being referenced to frequently as POGG).6

There is a shared responsibility for agriculture,7 with federal laws overriding

provincial laws if the provincial law is repugnant to a federal law.

That environmental matter can readily be described as falling within the

classes of subjects assigned exclusively to the federal government and the

provincial governments at the same time is apparent. The prima facie rule is

330 INTERNATIONAL ENVIRONMENTAL LAW