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.

Shaun

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.

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.