Chapter 1: Environmental Law and Its Evolution in Canada

common law

relies on precedent, decisions made by the courts (judgements) (rather than codified rules) - then it becomes a law

statutes

laws passed by legislation and created by elected representatives

• provincial laws made by provincial representatives

civil law

only in quebec. deals with disputes between individuals

municipal bylaws

a subsection to provincial laws that derive their power from the province and are administered by the local government

• ex: idling laws, pollution laws, parking tickets

what is environmental law

aims to protect and restore/improve the environment, reflecting the value many canadians place on the envr. the process whereby common resources of society are allocated to, and protected from degradation by public and private interests

what is environmental law trying to protect/improve

land, water, air, resources

torts

a wrongful act leading to civil legal liability. form the basis of individual common law. they are causes of action: negligence, nuisance, liability

environmental regulator law

do this do that. law governing the discharge of harmful substances into the air and water and onto land.

• catalytic converter, unleaded gas

environmental assessment law

law requiring careful attention to environmental and related considerations in the planning and potential approval of new undertakings

environmental protection laws

parks canada, SARA

environmental provisions in sectoral laws

fisheries, mines, forestry, marine envr, biodiversity laws

what are some other areas/examples of environmental laws

• wildlife management and national/provincial park legislation

• planning law

• human health law

• tax and economic benefit law

• common law elements of property and tort law

• aboriginal laws and the rights of indigenous peoples

• laws concerning sustainability

what role do public welfare and citizen participation play in canadian environmental law

• public concern about envr issues drives progressive steps in envr law

• governments have a public welfare role in protecting the envr

• citizen participation in policy deliberations is critical

what are the main principles of environmental philosophy and ethics

• most envr laws emerged from concerns about threats to human health and material interests

• prevention is preferable to repair

• better to consider overall effects than single problems

• adopt precautionary approaches

what is the role and place of environmental law

envr law is mandatory, unlike guidelines or codes of practice

what are the two general categories of envr law

laws of general application and sectoral laws

• the overlap/conflict between these can be resolved through harmonization, negotiation or the courts

laws of general application

laws that apply to everyone and to all activities

sectoral laws

laws dealing with a resource sector such as water or forests, or an industrial sector such as fisheries or waste management

what are some other laws and influences that do not qualify as envr law that can impact envr concern

• liability rules, tax laws, spending powers and other financial tools

• general laws ensuring public access to information

• broad law making power governments can use to encourage “voluntary” environmental efforts

explain phase 1 of the canadian envr law

common law rights and early statutes (1960s)

• envr law began to be given serious attention

• main tool of envr law were the causes of action under tort and property law - nuisance and negligence

• other tools: fisheries act, public health statutes, anti pollution provisions

explain phase 2 of the canadian envr law

waste control and cleanup laws (late 1960s)

• need for comprehensive envr protection realized

• cleanup laws focused on regulating discharge of waste

• belief that the envr could be used for disposal so long as there was not too much contamination

explain phase 3 of canadian envr law

toxics control laws (1970s to 80s)

• understanding that waste control and cleanup laws did not consider accumulation

• most toxic control laws are federal (though provinces also involved)

• toxic substances do not respect ecosystem or political boundaries

• canadian environmental protection act (CEPA)

explain phase 4 of canadian envr law

comprehensive approaches to environmental assessment and planning and management regimes (looking at it with a more holistic approach)

• consideration of anticipatory and preventative approaches to envr law

  • envr assessment requirements

  • planning and management regimes

what are the four associated trends in envr law

1. regional, continental and global effects

2. transparency and citizen participation

3. international influences

4. effective and efficient application of the law

what are the three big challenges for envr law

1. sustainability - demanding a broader and longer agenda that has been commonly adopted

2. complexity and uncertainty - respecting uncertainty, acting with precaution

3. protection and transformation - strengthening the resilience of systems