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CANADIAN ENVIRONMENTAL LAW – LAW 387C
Steve Patterson
University of British Columbia
Prof. Shi-Ling Hsu
Fall 2008
TABLE OF CONTENTS
I. Introduction…………………………………………………………………………………….. 3
II. Constitutional Law……………………………………………………………………………... 3
Fowler v. The Queen (1980 SCC)…………………………………………………. 4
Northwest Falling Contractors v. The Queen (1980 SCC)……………………….. 4
R. v. Crown Zellerbach (1988 SCC) ……………………………………………… 4
Friends of the Oldman River Society v. Canada (1992 SCC)…………………….. 5
R. v. Hydro Quebec (1997 SCC) …………………………………………………. 5
III. The Common Law……………………………………………………………………………... 6
1. Introduction to Private Litigation………………………………………………………… 6
Faraday Uranium Mines v. Arrowsmith (1962 Ont. CA)………………………… 8
2. Overview of Common Law Doctrines…………………………………………………… 8
A. Private Nuisance……………………………………………………………………. 8
Mandrake Management Consultants v. Toronto Transit (1993 Ont. CA)………… 9
B. Public Nuisance…………………………………………………………………….. 9
Hickey v. Electric Reduction Co. of Canada, Ltd. (1970 Nfld. TD)………………. 10
C. Strict Liability………………………………………………………………………. 10
Rylands v. Fletcher (1868 UK) …………………………………………………... 10
D. Trespass…………………………………………………………………………….. 10
E. Riparian Rights………………………………………………………………………. 11
3. Challenges and Judicial Struggles in Toxic Torts………………………………………… 11
A. Prevention of Threatened Exposure to Toxic Agents………………………………. 11
Palmer v. Nova Scotia Forest Industries (1983 NSTD)…………………………… 11
B. Proving Causation of Present Injury………………………………………………… 12
Fairchild v. Glenhaven Funeral Services Ltd. (2002 HL) ………………………… 12
Missouri v. Illinois (1906 USASC) ………………………………………………… 12
IV. Regulatory Legislation………………………………………………………………………….. 13
1. Introduction……………………………………………………………………………….. 13
A. Goals of Regulatory Statutes………………………………………………………… 13
B. Provincial Regulatory Legislation…………………………………………………… 15
2. Regulation and Standard Setting…………………………………………………………. 15
Franson, Franson and Lucas, "Environmental Standards"……………………….. 15
Canadian Environmental Protection Act, Chlor-Alkali Mercury Regulations…….. 16
3. Toxic Substances Regulation…………………………………………………………….. 17
4. Air Pollution Regulation…………………………………………………………………. 20
5. Emission Trading Versus Command-and-Control……………………………………….. 20
6. Criminal and Regulatory Offences………………………………………………………. 24
A. Regulatory Offences………………………………………………………………… 24
R. v. MacMillan Bloedel (Alberni Ltd.) (1979 BCCA) …………………………… 24
R. v. MacMillan Bloedel (2001 BCSC) …………………………………………… 25
R. v. MacMillan Bloedel (2002 BCCA) …………………………………………… 25
B. Strict Liability Offences…………………………………………………………….. 26
R. v. Sault Ste. Marie (1978 SCC) ………………………………………………… 27
C. Risk Distribution and Resource Allocation – Calabresi Article……………………. 27
V. International Trade Frameworks……………………………………………………………… 29
1. Dolphin-Safe Tuna Fishing Case Study…………………………………………………... 29
GATT Secretariat – Restrictions on the Importation of Tuna – Sep. 3, 1991……… 29
VI. Environmental Assessment…………………………………………………………………….. 33
1. Introduction……………………………………………………………………………….. 33
2. Background: History and Legislation…………………………………………………….. 34
3. The Canadian Environmental Assessment Act…………………………………………… 34
Alberta Wilderness Assn. v. Cardinal River ("Cheriot Mine") (1999 Admin.)……. 37
Bow Valley Naturalists Society v. Canada (1999 Fed. CA)……………………….. 38
Friends of the West Country Assn. v. Canada (1998 Fed. Ct. Trial Div.)………… 38
Friends of the West Coutnry Assn. v. Canada (1999 Fed. CA)……………………. 38
Manitoba's Future Forest Alliance v. Canda (1999 Fed. Ct. Trial Div.)…………. 39
VII. Public Participation and Judicial Review…………………………………………………….. 39
1. Introduction to Administrative Law………………………………………………………. 39
2. Judicial Review…………………………………………………………………………… 41
A. Standard of Review…………………………………………………………………. 41
Graham v. Alberta (1996 Alta. QB) ………………………………………………. 41
New Brunswick (Board of Management) v. Dunsmuir (2008 SCC)………………. 42
B. Grounds for Review………………………………………………………………… 43
Halfway River First Nation v. British Columbia (Ministry of Forests) (1997 SCC). 43
Aluminum Co. of Canada v. Ontario (Minister of Environment) (1986 Ont. SC)... 44
C. Public Interest Standing…………………………………………………………….. 44
Canadian Council of Churches v. R. (1992 SCC) ………………………………… 45
Sierra Club of Canada v. Canada (Minister of Finance) (1999 SCC)……………. 45
VIII. Aboriginal Rights……………………………………………………………………………… 46
Haida Nation v. BC and Weyerhaeuser (2002 BCCA) …………………………… 47
Haida Nation v. BC and Weyerhaeuser (2004 SCC) …………………………….. 47
IX. Contaminated Real Estate…………………………………………………………………….. 48
1. Introduction………………………………………………………………………………. 48
2. The Cleanup Standard…………………………………………………………………… 48
Tridan Developments Ltd. v. Shell Canada Products Ltd. (2002 Ont. CA)……… 48
3. Parties Liability………………………………………………………………………….. 49
A. Owners and Operator Liability – Past and Present…………………………………. 49
Canadian National Railway Co. v. Ontario (1992 Ont. Ct. Gen. Div.)…………… 49
B. Parent Corporation Liability………………………………………………………… 50
Beazer East, Inc. v. British Columbia (Environmental Appeal Board)…………… 50
C. Lender Liability…………………………………………………………………….. 51
Canadian National Railway Co. v. Ontario (1992 Ont. Ct. Gen. Div.)………….. 51
X. Global Climate Change………………………………………………………………………... 55
1. The Science of Climate Change………………………………………………………….. 55
2. Rough Guide on Climate Change – What to Know for the Exam……………………….. 56
3. Comparison of the Carbon Tax and Cap and Trade……………………………………… 61
4. Summary of Climate Change for the Exam………………………………………………. 62
5. Kyoto Protocol Provisions………………………………………………………………… 65
I. INTRODUCTION
- There are many categories of environmental problems:
a) Air Pollution
- There are many different kinds of air pollutants:
i) SO2 – Sulfer Dioxide
- Combustion of coal, mixes with water vapour in the sky, and comes down as acid rain
- Acid rain acidifies lakes and ponds, changes biology and composition of species, and washes away the colours of buildings
ii) PMx – Particulate Matter
- These are a range of open sources (PM10, PM2.5, ect…)
- ie: dust from unpaved roads, forest fires, construction operations, ect…
- They are small enough to lodge into lung tissue and damage human health
iii) Others
- ie: O3 (ozone), NOx (oxides of nitrogen), ect…
- These sources come from energy, industrial sources, transportation, ect…
b) Water Pollution
- Comes from sources such as agriculture, shipping, industrial dumping, and other land activities
c) Solid Waste Disposal
- As opposed to external sources, this problem comes from YOU
- The average Canadian produces more than 80,000 kg of garbage in their lifetime
d) Toxics
- Comes from industrial sources and agriculture
- Includes PCBs, lead, SO2, ect…
e) Subatomic Particle Pollution
- Comes from energy, defense weapons, and naturally-occurring radon
- Nuclear power plants have become a popular alternative for producing power (w/o Chernobyl)
f) Ozone Layer Depletion
- The hole screens out frequencies of UV sunlight that would kill all life on Earth
- Comes from aerosol consumer products that produce CFCs (chloroflurocarbons)
- CFC byproducts release Cl (chlorine atoms), which convert O3 (ozone) to O2 (oxygen)
- Led to the "hole in the Pole" over Antarctica, which produced a skin cancer hazard
- The 1987 Montreal Agreement reduced the use of CFCs and the results have been good
g) Global Climate Change
- Greenhouse gases come from energy, industrial sources, transportation, and YOU
- Top 3 emitters are USA, China (20x as much as Canada), and India
- GHGs, especially CO2, trap sunlight in the atmosphere, raising the earth's temperature, making the polar ice caps melt, rising sea levels, flooding coastal cities (Katrina and Gustav), ect…
- Biggest, toughest to solve, and potentially most dangerous problem
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II. CONSTITUTIONAL LAW
- The Constitution Act, 1867 sets out the division of powers between the federal and provincial gov't
- Powers were meant to be exhaustive and each gov't meant to be supreme within their own sphere
- However, there are double aspect matters (ie: environment) that don't have an enumerated head
- Possible federal enumerated heads:
a) POGG – "All matters not coming within the classes of subjects by this Act"
- Environmental matters would fall under the national concerns branch
b) s.91(12) – Sea Coast and Inland Fisheries
c) s.91(27) – Criminal Law
d) s.91(3) – Taxation
e) s.91(2) – Trade and Commerce
f) s.91(29) and s.92(10) – Federal Works and Undertakings
g) s.91(10) – Navigation and Shipping
- Possible provincial enumerated heads:
a) s.92(13) – Property and Civil Rights in the Province
b) s.92(16) – "Generally all matters of a merely local or private nature in the Province"
c) s.92A – Non-renewable resources
Fowler v. The Queen (1980 SCC)…s.33(3) struck down because it's overbroad
F: - Fowler, a logging business owner, hauled logs across a stream
- Debris broke off into salt water, but there was no evidence it affected fish or rearing of fish
- Charged under s.33(3) of the Fisheries Act, but says it falls within s.92(13)…feds argue it's s.91(12)
I: - Is s.33(3) of the Fisheries Act ultra vires of Parliament?
J: - Yes, for Fowler, ultra vires because it's a "blanket provision"
A: - Court finds that the prohibition is too broad and is not necessarily incidental to s.91(12)
- Martland J. wants to put boundaries around federal power…doesn't matter if there's evidence or not
- Amended in s.36(3) of current Fisheries Act, which said "deposit of deleterious substance prohibited"
R: - Parliament can't legislate too broadly and intrude into provincial powers
Northwest Falling Contractors v. The Queen (1980 SCC)…s.33(2) upheld because of "deleterious subst."
F: - Oil spill into BC tidal waters, Northwest argues that s.33(2) of the Fisheries Act intrudes into s.92(13)
I: - Is s.33(2) of the Fisheries Act ultra vires?
J: - No, for gov't
A: - "Deleterious substance" defined as deposit of substances frequented by fish
- Thus it limited itself to show that the drafters paid respect to federalism and respect for prov. powers
R: - Shows how one provision of the Fisheries Act can be upheld and another be struck down
- Two points from both of these cases:
a) Environment is a matter that is not exclusively within federal or provincial powers
- This is not necessarily a bad thing (ie: BC institutes Carbon Tax)
b) There are limits to each head of power
- Government drafters must keep this in mind
R. v. Crown Zellerbach (1988 SCC)…Singleness, distinctiveness, indivisibility, and prov. inability test
F: - Ocean Dumping Control Act created for Canada to fulfill international treaty obligations
- s.4 prohibits any dumping at sea unless the dumper has a permit that specifies what can be dumped
- Crown Zellerbach carries on logging operations on Van Island and dumps woodwaste
- They decide to move woodwaste they’ve dumped 60-80 feet into the sea, reported and charged
- Had a permit to dump but the permit specified a dumping location a few miles away
- CZ challenges validity of parts of statute that regulates sea that includes internal waters of Canada
- CZ argues that Parliament can’t regulate dumping in BC waters like Beaver Cove which is internal waters under provincial jurisdiction
I: - Does Parliament have jurisdiction to control dumping in provincial waters of substances (ie: woodwaste) that have no pollutant effect in extra-provincial waters?
J: - For government, legislation valid as falls within national concern doctrine of POGG
A: - SCC considers whether statute validity with respect to national concern branch of POGG
- Common law rule is that province owns low tide line, seabed owned by Canada to a certain distance
- In question are straights…jurisdiction is still up in the air (ie: between island and mainland)
- Case turns on description of dumping restrictions of The Act
- Court decides The Act deals with marine pollution and that it is sufficiently distinct and indivisible for it to qualify within the national concern branch of POGG
- Court enunciates 4 very important general propositions about POGG:
a) National concern doctrine is distinct from national emergency doctrine (Hsu adds gap branch)
b) National concern doctrine can authorize legislation in respect to brand new matters
- Can also authorize matters which, although originally of local or private nature in a province, have since, in absence of a national emergency, become matters of national concern
- These two are standard, next two pick up what Beetz said and add to it
c) Must have a singleness, distinctiveness, and indivisibility that clearly distinguishes the matter from matters of provincial concern
- Thus big issues like general environment protection and the economy don't fall under POGG
- Must be able to find a difference between the federal and provincial problem to invoke SDI
d) Suggestion for determining whether the matter has attained the required degree of singleness, distinctiveness, and indivisibility, is the provincial inability test (most important)
- ie: what would happen if the province didn’t cooperate and failed to legislate?
- Here, if BC didn’t legislate marine pollution, it would flow into federal waters
- Must have both SDI and pass the test in order to rely on the national concerns branch
R: - "For a matter to qualify as a matter of national concern…it must have a singleness, distinctiveness and indivisibility that 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" (ie: 2-part test)
- Thus out of this case we have 2 tests for matters of national concern:
a) Singleness, distinctiveness, indivisibility
- If you are against the legislation, label it broadly and assert that it will upset the Federal Principle if it is upheld (ie: balance intended the constitution and must be maintained)
b) Provincial Inability Test
- Need for one national law which cannot realistically be satisfied by co-operative provincial action because the failure of one province to co-operate would carry with it adverse consequences for the other provinces
Friends of the Oldman River Society v. Canada (1992 SCC)…Info gathering v. binding recommedations
F: - Federal Minister granted approval to Alberta to build a dam on Oldman River, but didn't do an environmental assessment under Environmental Assessment and Review Process Guidelines Order
- Guidelines Order requires federal agencies with decision-making authority for any proposal that may have an environmental effect on an area of federal responsibility to screen for harmful effects
- Society wants to quash the approval and require the Minister to comply with the guidelines
I: - Is the Guidelines Order too broad and infringes on provincial jurisdiction?
J: - No, in pith and substance the Order regulates federal administration
A: - First, court notes that the environment is so diffuse a subject that it doesn't fall under a single head of power, nor under national concerns branch of POGG since it lacks SDI
- Court does a pith and substance analysis to determine whether the legislation falls in a head of power
- Determines that the order regulates federal institutional decision making by requiring environmental impacts to be considered
- Any intrusion into provincial jurisdiction is merely incidental
R: - Environment is too broad a federal subject, but information gathering can be upheld