Federalism, the Environment and the Charter in Canada

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

Osgoode Legal Studies Research Paper

30 Pages Posted: 24 Oct 2019

See all articles by Dayna Nadine Scott

Dayna Nadine Scott

York University - Osgoode Hall Law School

Date Written: October 2016

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.

Note: 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.

Keywords: environmental law, federalism, division-of-powers, POGG, environmental justice, inherent jurisdiction, constitutional litigation

Suggested Citation

Scott, Dayna Nadine, Federalism, the Environment and the Charter in Canada (October 2016). The Law Society of Upper Canada, Special Lectures 2017: Canada at 150: The Charter and the Constitution, (Toronto, 2018), pp. 188-201, Osgoode Legal Studies Research Paper, Available at SSRN: https://ssrn.com/abstract=3474616

Dayna Nadine Scott (Contact Author)

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

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