Reconsidering Red Chris: Federal Environmental Decision-Making after MiningWatch Canada v Canada (Fisheries and Oceans)

Forthcoming in Lucas and Tilleman, Litigating Canada’s Environment: Leading Canadian Environmental Cases by the Lawyers Involved (2017)

12 Pages Posted: 22 May 2017 Last revised: 28 May 2017

See all articles by Martin Olszynski

Martin Olszynski

University of Calgary - Faculty of Law

Date Written: May 16, 2017

Abstract

This chapter considers the Supreme Court of Canada’s decision in MiningWatch Canada v. Canada (Fisheries and Oceans) 2010 SCC 2 (also known as “Red Chris”) through the lens of a fictional re-hearing. An intervenor has requested the Court to further explore the constitutional and administrative law issues left unresolved by Justice Rothstein in his judgment on behalf of the Court. Specifically, the analysis focuses on the constraints, if any, on federal decision-making upon receipt of an environmental assessment of a project whose effects transcend federal and provincial jurisdiction. Reiterating the distinction between legislating with respect to a subject on the one hand, and decision-making pursuant to that legislation on the other, the analysis suggests that arguments seeking to constrain federal environmental decision-making are primarily political, rather than constitutional, in nature.

Keywords: environmntal law, jurisdiction, constitutional law, environmental assessment

JEL Classification: K32

Suggested Citation

Olszynski, Martin Z.P., Reconsidering Red Chris: Federal Environmental Decision-Making after MiningWatch Canada v Canada (Fisheries and Oceans) (May 16, 2017). Forthcoming in Lucas and Tilleman, Litigating Canada’s Environment: Leading Canadian Environmental Cases by the Lawyers Involved (2017). Available at SSRN: https://ssrn.com/abstract=2970751 or http://dx.doi.org/10.2139/ssrn.2970751

Martin Z.P. Olszynski (Contact Author)

University of Calgary - Faculty of Law ( email )

Murray Fraser Hall
2500 University Dr. N.W.
Calgary, Alberta T2N 1N4
Canada

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