The Nothing that is: The leading environmental law case of the past decade

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The most important judicial decision in environmental law from Alberta courts (or the Supreme Court of Canada for that matter) during the last decade is precisely the absence of any such decision. This is not to say that significant issues in environmental law have not been ruled upon by the courts during this time, but rather that environmental law has stagnated and has lost its vigour and imagination. The 1990s were marked with strong statements by the Supreme Court of Canada on environmental protection: “one of the major challenges of our time” (Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3 at para. 1); “a fundamental value in Canadian society” (Ontario v. Canadian Pacific, [1995] 2 S.C.R. 1031 at para. 55); “a public purpose of superordinate importance” (R. v. Hydro Quebec, [1997] 3 S.C.R. 213 at para. 85). Looking back now, these statements seem like nothing more than rhetoric.

A Canlii text search of ‘environmental protection’ on Alberta Court of Appeal judgements produced 72 hits since 1998. Nearly all of these decisions were hit because either the Minister of Environmental Protection was a party to the action, an environmental protection order was under consideration, or the Environmental Protection and Enhancement Act, R.S.A. 2000, c. E-12 was being interpreted. None of these decisions refer to environmental protection as a fundamental value or public purpose in Alberta. Similarly, a quick survey of News Briefs issued by the Environmental Law Centre since 2000 confirmed no discussion of an Alberta judicial decision with significance for environmental law over the past decade.

Some readers might think I’ve overlooked decisions such as the Supreme Court’s decision in 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town), [2001] 2 S.C.R. 241 upholding the validity of a municipal bylaw prohibiting the application of pesticides or the Federal Court’s decision in Pembina Institute for Appropriate Development v. Canada (Attorney General), 2008 FC 302 to require a federal-provincial environmental assessment panel to provide a rationale for its conclusion that increased greenhouse gas emissions from Imperial Oil’s Kearl oil sands project would not result in adverse environmental effects due to intensity-based mitigation measures. My reading of these decisions, and the basis for my view of their insignificance, is that they represent tinkering at the margins of environmentalism. These decisions are significant in their findings but they hardly qualify as important landmarks. No one seriously believes that municipalities should not be able to restrict the application of pesticides and likewise no one seriously believes that intensity-based emissions measures will have any meaningful effect on climate change. These decisions, and others like them, do not push the boundaries of environmental law.

Indeed the one decision I considered noting as most important actually subverts environmental protection. Since the late 1960s preservationists have lobbied the federal government to assert preservation of nature as the purpose of Canada’s national parks. This pressure, along with several high-profile studies in the 1990s, led to new federal parks legislation in early 2001 – the Canada National Parks Act, S.C. 2000, c. 32 – that mandates the maintenance or restoration of ecological integrity as the first priority in parks management. The new legislation seemingly charts a preservationist direction for national parks with the preservation of nature for its own sake taking precedence over the ‘parks for people’ ideology that has governed the parks since their inception in the late 19th century. The Federal Court was asked to interpret this new preservation mandate shortly after its enactment, and its interpretation in Canadian Parks and Wilderness Society v. Canada (Minister of Canadian Heritage), 2001 FCT 1123, aff’d 2003 FCA 197 has effectively nullified any impact of the legislation towards enhancing a preservation mandate in the parks (See my paper “Ecological Integrity in Canada’s National Parks: The False Promise of Law“).

I suspect that one reason for the absence of judicial activism here is that environmental issues are by and large viewed by the judiciary as a political question with an insufficient legal component to be justiciable. The most recent illustration of this view is the Federal Court’s decision in Friends of the Earth v. Canada (Minister of the Environment), 2008 FC 1183, aff’d 2009 FCA 297, dismissing as non-justiciable an application for judicial review of the federal government’s failure to adhere to various sections of the Kyoto Protocol Implementation Act, S.C. 2007, c. 30. The Federal Court held that the application, if granted, would improperly place the Court into the executive sphere of government by making policy choices on climate change. For similar reasons, courts are extremely reluctant to compel government decision-makers (via mandamus orders or otherwise) to act on environmental matters. That is why there are only a handful of judicial decisions concerning the Species at Risk Act, S.C. 2002, c. 29, despite the widespread view that Canada is failing to enforce the provisions of the legislation (Canada is subject to an investigation under the North American Agreement on Environmental Cooperation examining allegations that Canada is failing to enforce the Species at Risk Act). Environmental law in Canada is dominated by legislation that effectively restricts the judicial role to statutory interpretation and judicial review of government decisions.

The stagnant position of environment law will remain entrenched until creativity and imagination return to the judicial role in this area. I think this will have to include viewing certain environmental issues as concerning the rule of law: Increasingly finding that government officials have a legal duty to act in the interests of environmental protection.

(Note: The title for this post was inspired by Robert Kaplan’s The Nothing That is: A Natural History of Zero (Oxford, 1999)).

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About Shaun Fluker

B.Comm. (Alberta), LL.B. (Victoria), LL.M. (Calgary). Associate Professor. Please click here for more information.
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6 Responses to The Nothing that is: The leading environmental law case of the past decade

  1. Jonnette Watson Hamilton says:

    Great post, Shaun! It is a far more effective summary of the dismal state of environmental law in Canada than is the nomination of a single case.

    I see the Supreme Court is scheduled to hand down its decision in MiningWatch Canada v. Minister of Fisheries and Oceans and MiningWatch Canada v. Red Chris Development Company Ltd. (F.C.) this Thursday, January 21, a case with interventions from many environmental groups. I wonder whether there will be any evidence of creativity in the decision, or any indication that litigation is a worthwhile focus for environmental groups’ efforts.

  2. Laura Bowman says:

    This is a really interesting post Shaun. I am wondering what your thoughts are on MiningWatch v. DFO just released today. Although I think this case is significant in terms of overturning TrueNorth and Sunpine and improving EA processes, the decision does not provide any broad statements on environmental law or its importance. Indeed the relief section seems to ignore the ousting of the public or that there might be any true “public interest” in the relief. It is a victory, but one that seems to come from the desire of the court to provide a unanimous compromise. It also is fairly limited to project-splitting under CEAA but it is a good result that understands the statute much better than it has been understood in the past.

    I think we can agree that there is a huge reluctance to treat environmental law seriously by the courts both because it is considered “political” and because it is considered to be scientific. This is of course fueled by the array of discretion in the legislation. However, I do see the federal court starting to be more willing to interfere with discretionary decisions. I do see an improved recognition that there must be legal limits to the administrative discretion on environmental law. The Species At Risk decisions being a good example of this. Other good examples being the Lafarge decision in Ontario. Here there is some enhanced appreciation for rule of law issues that was not previously taken seriously. There is some willingness to see and address the pervasive bad faith activity that Canadian citizens are faced with. I think these decisions do represent a shift towards more rigorous statutory interpretation, limiting discretion and a more purposive approach to environmental law and are significant.

    I actually don’t agree with you that Spraytech merely pointed out the obvious as it was followed with legislative restrictions on municipal jurisdiction over pesticides in at least Ontario after it came out – so some people do not take this municipal role seriously (also see the decisions in BC limiting municipal powers over logging, for example).

    What is still very lacking is (a) a true recognition of the importance of the environment to both individuals and the public on a bigger scale (some hint of this in Spraytech, not much elsewhere) (b) A recognition of the importance of procedural fairness in the environmental context (recognizing that people’s rights ARE affected by environmental decision making and that public consultation DOES matter to sustainable development) and finally (c) that the courts should be no less willing to supervise the environmental health of individuals than they are willing to supervise, assess and protect constitutional and common law rights to human health in other contexts (Chaoulli, Morgentaler, tort law generally).

    To this end, Canadians still by and large lack access to effective, fair, impartial remedies to environmental disputes. There is still a long way to go, but I think that fully appreciating the rule of law and discretionary limitation issues is a good step forward.

  3. Shaun Fluker says:

    Thanks for the comments Laura and Jonnette. The MiningWatch judgement does not alter my opinion in this post at all. My comments on that case are forthcoming. I’m glad you took me to task on Spraytech Laura – i chose that decision in part to be somewhat controversial here. That said, i believe that Spraytech was written by Justice L’Heureux Dube, who was in my view capable of the creativity and imagination that i call for in this post. Indeed the first paragraph of that decision does follow along with the sort of judicial pronouncements on environmentalism that the 1990s decisions include.

    Shaun

  4. Pingback: ABlawg.ca » Blog Archive » MiningWatch Canada v. Canada (Fisheries and Oceans): Hoisted on one’s own petard?*

  5. Great post.

    What about BC v. Canfor (2004 SCC) as something more creative? The court held that the crown can seek damages for environmental harm to public lands so long as the claim is properly pleaded. In obiter, the court suggested that evidence of damages could include the uniqueness of the ecosystem, the services it provided, or the attachment of the public to the destroyed land. The dissenting judgment went even farther, suggesting that the crown has a duty to protect the environment in the public interest. This case hinted at public environmental rights and I wonder why it has not been followed much. The Federal Court did consider it in Great Lakes United v. Canada and it was also followed in Quebec to allow a small private claim.

  6. Shaun Fluker says:

    My take on Canfor is it was an excellent opportunity (not taken) for the Court to push the boundaries of environmental protection law – rather than just open the door a notch. The majority in Canfor seems well attuned to the difficult issues that await in developing the public trust doctrine here – for example whether the doctrine places a duty on the Crown to act in the interest of environmental protection. But of course, simply notes this in passing. The facts in Canfor strike me as the more traditional notion of the Crown as a rights holder in relation to environmental damage rather than owing an obligation to protect against it – and for that reason i don’t see it as noteworthy. It has potential though, and i hope i’m wrong in the long run.

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