CONSTITUTIONAL LAW AND NATURAL RESOURCES

FEBRUARY 5, 2013

Overview

• Canada’s Constitution—Overview • Division of Legislative Powers relating to

Natural Resources and Environment• Constitutionality of Federal Laws such as

CEPA, CEAA 2012 • Adequacy of Federal Legislative Authority

over Environment • U.S. Constitution and Natural Resources

Overview of Canada’s Constitution

• What is it? What’s in it?

• British North America Act

• Constitution Act 1982

• Canadian Charter of Rights and Freedoms

Overview of Canada’s Constitution

• Constitutional law cases in Canada– Authority of levels of government to

legislate over different subjects– Consistency of laws with Charter (since

1982)– Consistency of laws with constitutionally

entrenched Aboriginal rights (s.35) since 1982

Division of Powers Exclusive vs. Concurrent

Jurisdiction

• Exclusive Provincial Powers ss. 92, 92A, 93

• Exclusive Federal Powers ss. 91, 132

• Concurrent Powers – 94A, 95

Ownership vs. Legislative Authority

• Ownership of Crown lands and waters a product of constitutional history

• Legislative authority - division of powers under Constitution

• Provinces own Crown lands (and thus natural resources) within respective boundaries subject to exceptions

• Feds own Crown lands in northern territories, Indian reserves, national parks, military bases, offshore seabed

Ownership Authority

• Ownership affords authority to control, manage, regulate production, collect royalties

• Export of natural gas as example of how ownership authority can frustrate legislative authority

• Public ownership of natural resources such as fish, wildlife, water (when does ownership change?)

Division of Legislative Powers: Natural Resources, Environment

• “Federal patchwork superimposed on

provincial carpet”

• Distinguish Natural Resource Development from Environmental Protection Powers?

Provincial Legislative Powers (s.92, 92A)

• Property and civil rights

• Matters of a merely local or private nature

• Lands, mines, minerals; non-renewable natural resources; forestry; electrical energy

• Local works and undertakings

Property and Civil Rights

• Most important head of provincial power

• Upheld by courts in competition with federal powers such as trade and commerce (Citizens Insurance case)

• Provincial authority over property and civil rights upheld when regulated companies extend beyond jurisdiction of any one province

Matters of a merely local or private nature

• Overshadowed in cases by property and civil rights power

Natural Resources s. 92A

• 1982 constitutional amendments• Exclusive provincial authority to legislate in

relation to:– Exploration for non-renewable natural

resources– Development, conservation and management

of non-renewable natural resources and forestry resources

– Development, conservation and management of electrical energy

Natural Resources s. 92A

• Concurrent provincial authority to legislate in relation to export from province to another of primary production from non-renewable natural and forestry resources and production from electricity facilities

• Authority to legislative taxes in relation to non-renewable natural and forestry resources, and electricity production

Federal Legislative Powers (s.91)

• Sea coast and inland fisheries

• Navigation and shipping

• Works and undertakings (interprovincial, declared for general benefit of Canada)

• Spending and taxation• Trade and commerce

• Indians and lands reserved for Indians

• Criminal law

• Peace order and good government

Federal Legislative Powers (s.132)

• Implementation of Empire treaties

– International Boundary Waters Treaty – Migratory Birds Convention

• Implementation of Canadian treaties?

• Labour Conventions Case 1937

• Signature and ratification – federal

• Implementation – federal/provincial or both depending on subject matter (e.g, Biodiversity Convention, UNFCCC)

Sea Coast and Inland Fisheries

• Federal fisheries power under s.91 is legislative only (Fisheries Reference 1898)

• Exercise of federal fisheries power can legally restrict exercise of property rights (closed seasons, licencing)

• Federal power does not extend to processing and canning plants (Fish Canneries Reference)

Sea Coast and Inland Fisheries

• R. v. Fowler – Wood debris deposited into a stream contrary to

Fisheries Act – No evidence actual harm to fish, habitat– Not within federal legislative authority

• R. v. Northwest Falling Contractors– Diesel oil - deleterious substance deposited

into waters frequented by fish– Evidence of harm to fish– Within federal authority

Navigation and Shipping

• Provides federal authority to legislative with respect to protection of navigable waters as well as navigable

• Note recent amendments in 2012 Omnibus Bill C-45

• Navigable Waters Protection Act is now Navigation Protection Act

Works and Undertakings

• “Works” are physical things

• “Undertakings” not physical things but arrangements under which physical things are used

• Works and undertakings confined to transportation or communications undertakings (e.g., pipelines)

Works and Undertakings

• Works and Undertakings connecting provinces or extending beyond limits of a province s. 92.(10)(a) – Railways, canals, telegraph lines, pipelines

• Works for general advantage of Canada s.92.(10)(c)– Requires declaration by Parliament of Canada

• NEB-regulated pipelines: provincial legislative authority?

Indians and lands reserved for Indians

• Lands reserved for Indians by virtue of 1763 Royal Proclamation and pre-confederation reserves fall within federal legislative authority

• Enables feds to administer and control Indian lands

• Underlying title remains with province subject to proprietary rights of Indians

• Land surrendered by Indians becomes provincial Crown land

Criminal Law

• R. v. Hydro-Quebec • PCBs released into Quebec stream by

Hydro-Quebec facility contrary to Canadian Environmental Protection Act

• Tests for valid exercise of criminal law power (RJR MacDonald):– Legitimate public purpose– Prohibition of an activity– Penalty

Criminal Law

• R. v. Hydro-Quebec • Issue: does CEPA use appropriate tools to

pursue the legitimate public purpose?• Is CEPA about environmental protection or

control of toxic substances?• Laforest (majority)

– lengthy process identify toxic substances– regulatory measures to reduce, control justifiable

so long as combined with prohibitions

Peace Order and Good Government

• “91. It shall be lawful … for the Senate and House of Commons to make laws for the Peace, Order and good Government of Canada in relation to all matters not . . . assigned exclusively to the . . . Provinces”

• Emergency Branch of POGG • National Concern Branch of POGG

– Singleness, Distinctiveness, Indivisibility

Peace Order and Good Government

• Aeronautics, atomic energy justified under POGG

• Crown Zellerbach - Federal marine pollution legislation justified by POGG

• R. v. Hydro-Quebec Toxic substances legislation perhaps not justified?

Crown Zellerbach

• Crown Zellerbach, a logging company, was charged under Ocean Dumping Control Act with dumping woodwaste into marine waters part of British Columbia (internal waters to Canada)

• No evidence that woodwaste harmed fish, marine life or navigation

• No evidence of polluting effect in extra-provincial waters

Crown Zellerbach

• What is the test for justifying a federal law under “national concern”?

• How do majority and minority differ on application of that test to Ocean Dumping Control Act? Who do you agree with, and why?

• Does the test give the federal government enough scope to effectively address environmental problems?

Hydro-Quebec

• Breach of an interim order under Canadian Environmental Protection Act (CEPA) restricting emissions of PCBs

• How does the minority apply the “national concern” test?

• What inference can be drawn from the fact that the majority decided not to address justification under POGG?

POGG and Environmental Assessment: Oldman Dam Project

Oldman Dam Project

Oldman Dam Project

• Irrigation benefits to 200 farmers plus up to 25 MW electricity

• Peigan First Nations Reserve 12 km downstream from Oldman Dam site

• Loss of riparian cottonwood forests

• Loss of cold-water trout habitat

• Mercury contamination, dust, air pollution

Oldman Dam Project • Alberta prepared environmental assessment,

found no significant effects

• Federal Environment Minister refused to conduct EA although Navigable Waters Protection Act permit and Fisheries Act authorization required

• Application for judicial review submitted by Friends of Oldman River

• Application denied at trial, appealed successfully

Oldman DamConstitutional Validity

• Is federal law requiring EA so broad as to offend ss. 92 and 92A of the Constitution Act, 1867 and therefore constitutionally inapplicable to the Oldman River Dam owned by Alberta?

Oldman Dam Analysis of Constitutional Issues

• Authority to conduct a federal assessment of a proposal?

• SCC - EA is merely a component of federal decision-making; constitutional authority to carry out EA derives from federal authority over subject matter

• Distinguish subject matter that brings feds in as decision-maker from scope of project, scope of issues to be considered

Constitutional Limits on Scope of Issues to be Considered

• No for projects (e.g., rail lines) where feds have “comprehensive jurisdiction”

• If comprehensive federal jurisdiction, integrated decision can be made that takes into account how project affects “provincial” as well as federal environmental issues

Constitutional Limits on Issues to be Considered in Decision?

• What about projects (e.g.,Oldman) where federal jurisdiction is not central to project (“restricted jurisdiction”), but results from impact (e.g., navigation)

• Supreme Court - Feds can conduct an integrated assessment (federal, provincial issues) if affirmative regulatory duty and legitimate concern about “federal” impacts (e.g., fish)

CEAA 2012 Overview

• CEAA 2012 provides for environmental assessment of few projects (identified in regulations) compared to CEAA 1992

• Requires assessment only of “federal effects” of projects except where federal agency has comprehensive regulatory authority (NEB, CNSC)

• But CEAA 2012 appears to authorize Agency to require EA of project even if no federal decision

CEAA 2012: Constitutional Issues

• CEAA 2012 includes prohibitions and penalties (unlike CEAA). Does criminal law power support CEAA 2012?

• Does POGG provide constitutional authority for federal EA of project when no other federal decision required?

• New federal power to require environmental assessments of provincial projects “of national concern”?

Summary Issues• Have the Constitution and Courts struck

appropriate balance between provincial and federal legislative authority?

• Is Harper government’s elimination of federal environmental laws an attempt to implement s.92A, ensure provinces have plenary and exclusive authority to control natural resources development?

• What federal authority to legislate on globally catastrophic environmental issues?

U.S. Constitution and Natural Resources

• Congress lacks authority to displace state migratory bird laws (Geer v. Connecticut )

• Migratory Birds Treaty signed in 1916 • Is Migratory Birds Treaty Act

constitutional? • “National interest of very nearly the first

magnitude” (Missouri v. Holland)• Treaty-making vs. Commerce clauses?