CASE COMMENTS
CHRONIQUES DE JURISPRUDENCE
Federal Environmental Jurisdiction After Oldman
Steven A. Kennett*
The Supreme Court of Canada’s decision in
the Oldmnan case confronted the complex issue
of environmental jurisdiction under the Cana-
dian Constitution. In particular, it upheld fed-
eral authority to conduct an environmental
assessment of a major irrigation dam con-
structed by the Government of Alberta. The
implications of the case, however, go beyond
the particular facts. The author argues that La
Forest J.’s reasoning supports a distinction
between “comprehensive” and “restricted”
federal environmental jurisdiction. The author
examines the basis for this distinction, the
judicial means of enforcing the limits implicit
in “restricted” jurisdiction, and the implica-
tions of this distinction for the division of
powers. Federal environmental jurisdiction
under the “peace, order and good government”
power and the difficulties of conducting envi-
ronmental assessments where there is overlap-
ping jurisdiction are also discussed in light of
the Oldman decision.
de
l’environnement
Dans I’affaire Oldman, la Cour suprme du
Canada a dfi se pencher sur la question consti-
tutionnelle du partage des comp6tences en
mati~re d’environnement. Plus particuli~re-
ment, elle a drcid6 que le gouvernement frd&
ral peut proc6der A une 6tude des cons6-
quences pour
la
construction par le gouvemement de ‘Alberta
d’un important barrage d’irrigation. Mais la
port~e de la decision va au-del des faits du
itige. L’auteur prtend que le raisonnement du
juge La Forest crre une distinction entre une
competence << large >> et une comp6tence < res-
treinte >> du f&dral en mati~re d’environne-
ment. L’auteur examine la source de la distinc-
tion, les possibilitrs pour les tribunaux de faire
respecter les limites de la comp&ence res-
treinte et ‘incidence de la decision sur le par-
tage des comp&ences. La comp6tence envi-
ronnementale frdrale fondre sur le pouvoir
en mati~re de << paix, ordre et bon gouverne-
ment>> et les probl~mes qui surgissent lors-
qu’il y a chevauchement de comp~tences sont
6galement examin6s A la lumi~re de l’arrt
Oldman.
*Research Associate, Canadian Institute of Resources Law, Calgary, Alberta.
McGill Law Journal 1993
Revue de droit de McGill
To be cited as: (1993) 38 McGill L.L 180
Mode de rdfdrence: (1993) 38 R.D. McGill 180
1993]
CASE COMMENTS
Synopsis
The Facts and Lower Court Decisions
Introduction
I.
II. Overview of the Issues and the Supreme Court of Canada Decision
IMI. Oldman and the Constitutional Basis for Federal Environmental
Jurisdiction
A. The Oldman Decision’s Approach to Environmental Jurisdiction
B. Comprehensive Federal Jurisdiction
C. Restricted Federal Jurisdiction.
D. Enforcement of the Constitutional Limits on Restricted
Jurisdiction
Distinction
E. Division of Powers Implications of the Comprehensive-Restricted
F. Summary
IV. Oldman and Federal Environmental Jurisdiction under ‘Peace,
Order and Good Government”
V. Oldman and Environmental Assessment
VI. Conclusion: Federalism and the Environment
Introduction
The Oldman’ decision is the most recent Supreme Court of Canada pro-
nouncement on environmental jurisdiction under the Constitution Act, 1867.2 In
reviewing the constitutional basis for a federal environmental assessment (EA)
of the Oldman River Dam, La Forest J.3 acknowledges the difficulty of address-
ing environmental issues within the framework of the Canadian Constitution:
It must be recognized that the environient is not an independent matter of legis-
lation under the Constitution Act, 1867. It is a constitutionally abstruse matter
which does not comfortably fit within the existing division of powers without con-
siderable overlap and uncertainty.4
D.L.R. (4th) 1 [hereinafter Oldman cited to S.C.R.].
‘Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, 88
2Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3 (formerly British North America Act, 1867).
3The Court split 8 to 1 in Oldman with La Forest J. writing for the majority and Stevenson J.
dissenting. On the constitutional questions, however, Stevenson J. concurred with La Forest J.
40ldman, supra note 1 at 64.
REVUE DE DROIT DE McGILL
[Vol. 38
The constitutional difficulties raised by environmental jurisdiction, how-
ever, are not simply the result of an awkward fit between “environment” as an
area of government activity and the enumerated heads of power. Federalism
itself is a source of tension. The integration of economic and environmental
decision-making recommended by the Brundtland Report’ and the complex
interrelationships brought to light by an ecosystem perspective on environmen-
tal issues6 suggest the need for a comprehensive approach to policy-making and
regulation. Federalism, however, allocates responsibilities to different levels of
government, thus risking fragmentation.7 This tension is especially relevant to
EA, where a principal objective is to take account of the full range of a project’s
environmental consequences in the early stages of decision-making.
Oldman was the first of a recent series of EA cases8 to reach the Supreme
Court of Canada. The decision was well received by advocates of more rigorous
and comprehensive environmental assessment in Canada.’ One reason for satis-
faction was the Court’s expansive view of the topics to be included in EA. In
interpreting the Guidelines Order which established the Environmental
Assessment Review Process (EARP), La Forest J. rejects the view that “envi-
ronmental quality is confined to the biophysical environment alone” and states
that “the potential consequences for a community’s livelihood, health and other
social matters from environmental change are integral to decision-making on
matters affecting environmental quality.”” La Forest J. also quotes from the rec-
ommendations of the Report of the National Task Force on Environment and
Economy 2 which followed the Brundtland Report in emphasizing the impor-
tance of integrating economic and environmental planning. 3
La Forest J. leaves no doubt, however, that the holistic’4 view of EA is
5World Commission on Environment and Development, Our Common Future (Oxford: Oxford
University Press, 1987) at 9, 310-12 [hereinafter Brundtland Report].
6iJ.. MacNeill, P. Winsemius & T. Yakushiji, Beyond Interdependence: The Meshing of the
World’s Economy and the Earth’s Ecology (New York: Oxford University Press, 1991) at 4, 8-9,
58-59; J.W. MacNeill, Environmental Management (Ottawa: Information Canada, 1971) at 10-14.
7M. Walters, “Ecological Unity aqd Political Fragmentation: The Implications of the Brundtland
Report for the Canadian Constitutional Order” (1991) 29 Alta. L. Rev. 420.
8In particular, the Rafferty-Alameda project in Saskatchewan has been the subject of EA litiga-
tion. See e.g. Canadian Wildlife Federation Inc. v. Canada (Minister of the Environment), [1989]
3 F.C. 309, [198914 WW.R. 526 (T.D.), aff’d [1990] 2 W.W.R. 69, 99 N.R. 72 (F.C.A.) [hereinafter
Canadian Wildlife Federationl. For an EA case concerning the James Bay hydroelectric project,
see Quebec (A.G.) v. Canada (National Energy Board), [1991] 3 F.C. 443, 83 D.L.R. (4th) 146
(C.A.).
9G. York, “Decision leaves dam vulnerable” The [Toronto] Globe and Mail (24 January 1992)
A5. Native and environmental groups participated in the Oldman litigation.
IlEnvironmental Assessment and Review Process Guidelines Order, SOR/84-467 [hereinafter
Guidelines Order]. The Guidelines Order was established pursuant to the Department of the Envi-
ronment Act, R.S.C. 1985, c. E-10, s. 6.
“Oldinan, supra note 1 at 37.
‘2Canadian Council of Resource and Environment Ministers, Report of the National Task Force
on Environment and Economy (Ottawa: The Task Force, September 24, 1987) at 2 [hereinafter
CCREM Report].
‘3Odman, supra note 1 at 37.
14La Forest J. remarks that “the environment is comprised of all that is around us and as such
must be a part of what actuates many decisions of any moment” (ibid. at 70).
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CHRONIQUES DE JURISPRUDENCE
“subject, of course, to the constitutional imperatives.” [emphasis added]”5 The
implications of these constitutional imperatives for federal environmental juris-
diction are the focus of this paper. This paper reviews the facts and lower court
decisions and provides an overview of the issues and decision in the Supreme
Court of Canada. The constitutional basis of federal environmental jurisdiction
following Oldman is analyzed and this analysis is applied to the “peace, order
and good government”‘ 6 power. EA jurisdiction following Oldman, and the con-
stitutional dilemma posed by EA, are then discussed. In the concluding section,
the central constitutional implication of Oldman for environmental protection in
Canada is noted and its consequences for cooperative federalism and EA are
summarized.
I. The Facts and Lower Court Decisions
The origins of the dispute lay in the Government of Alberta’s decision to
construct an irrigation dam on the Oldman River. The project, which was
opposed by Natives and environmentalists, had been the subject of a provincial
EA. Federal approval was also required, however, under the Navigable Waters
Protection Act 7 and this approval was granted without a federal EA.
Litigation was initiated by the Friends of the Oldman River Society to
require the federal departments of Transport and Fisheries and Oceans to con-
duct an EA under the EARP Guidelines Order. The Guidelines Order requires
federal departments with decision-making authority over a proposal having
environmental consequences for an area of federal responsibility to conduct an
EA. By linking -the EA to a decision-making authority, EA recommendations
could be implemented by a refusal of permission to proceed with the project or
by attaching conditions to project approval.
The application in the Trial Division of the Federal Court was for an order
in the nature of certiorari to quash the federal approval and an order in the
nature of mandamus requiring an EA. 8 Jerome A.C.J. held that the Minister of
Transport was not bound to apply the Guidelines Order in granting approval
under the Navigable Waters Protection Act and that, in fact, to do so would
exceed his statutory jurisdiction. The Minister of Fisheries and Oceans also
lacked jurisdiction to apply the Guidelines Order since his department had not
undertaken the project and exercised no power of approval. Jerome A.C.J. also
distinguished Canadian Wildlife Federation,9 which had required a federal EA
for the Rafferty-Alameda Dam. The federal Minister of the Environment’s prior
approval was necessary for the Rafferty-Alameda Dam and that Minister’s stat-
utory duties included the consideration of environmental factors. In contrast, the
Navigable Waters Protection Act allowed for approval of the Oldman River
Dam after the project had commenced and Jerome A.C.J. found that the Min-
15Ibid. at 37.
16Constitution Act, 1867, s. 91 (introductory words).
‘7R.S.C. 1985, c. N-22.
18Friends of the Oldman River Society v. Canada (Minister of Transport), [1990] 1 F.C. 248,
[1990] 2 W.W.R. 150 (T.D.).
19Supra note 8.
McGILL LAW JOURNAL
[Vol. 38
ister of Transport’s statutory duties did not extend to environmental considera-
tions. Finally, Jerome A.C.J. exercised his discretion not to grant relief on
grounds of delay and unnecessary duplication if a federal EA were ordered.
The decision was reversed by the Federal Court of Appeal.’ Stone J.A.
found the Guidelines Order to be applicable to the dam and held that it
expanded the statutory authority of the Minister of Transport to allow him to
undertake an environmental assessment prior to reaching his decision on the
project. In addition, the Minister of Fisheries and Oceans was found to be a
“decision making authority” for the Oldman River Dam and was therefore
bound by the Guidelines Order. Stone J.A. concluded that a federal EA was
mandatory and that the Navigable Waters Protection Act binds the Crown in
right of Alberta. He also overturned the trial judge’s decision on the issue of dis-
cretion to grant the relief requested. Leave to appeal was granted by the
Supreme Court of Canada2e ‘ and the case was argued in February 1991.
II. Overview of the Issues and the Supreme Court of Canada Decision
Five issues were addressed by the Supreme Court of Canada in Oldman.2
The first concerned the statutory validity of the Guidelines Order and, in par-
ticular, its authorization under section 6 of the Department of the Environment
Act’ and its consistency with the Ndvigable Waters Protection Act and the Fish-
eries Act.24 The second issue was the applicability of the Guidelines Order in
specifically, whether it applied to the project and whether the Nav-
Oldman –
igable Waters Protection Act was binding on the Crown in right of Alberta. The
third issue was whether compliance with the Guidelines Order was mandatory.
Fourth, the Federal Court of Appeal’s interference with the trial judge’s discre-
tion in declining to grant the remedies sought was challenged. The fifth issue
was whether the breadth of the Guidelines Order offended section 92 of the
Constitution Act, 1867.
The majority judgment was written by La Forest J. for eight members of
the Court. Stevenson J. dissented on three points: Crown immunity, interference
with discretion and costs. The five issues were addressed by the majority as fol-
lows.
First, the Guidelines Order was validly enacted under the Department of
the Environment Act. It does not conflict with the Navigable Waters Protection
Act in that it simply enlarges the Minister of Transport’s statutory powers when
evaluating a proposal under that Act.’
Second, the Guidelines Order applies to the approval of the Oldman River
Dam by the federal Minister of Transport since the affirmative regulatory duty
20Friends of the Oldman River Society v. Canada (Minister of Transport), [1990] 2 F.C. 18, 68
D.L.R. (4th) 375 (C.A.).
21[1990] 2 S.C.R. x.
2201dnan, supra note 1 at 32-33. The issues are grouped somewhat differently in the judgment.
23Supra note 10.
24R.S.C. 1985, c. F-14.
2O5ldman, supra note I at 33-42.
1993]
CASE COMMENTS
imposed by the Navigable Waters Protection Act makes that Minister an “initi-
ating department,” thus triggering the EA requirement. The Navigable Waters
Protection Act is also binding on the Crown in right of Alberta with the result
that the dam cannot be built without the consent of the Minister of Transport.26
La Forest J. found, however, that the Fisheries Act does not create an equivalent
regulatory scheme an d therefore the Minister of Fisheries and Oceans is not
bound by the Guidelines Order?7
On the third issue, the Court concluded that the Guidelines Order is not
merely an administrative directive but rather constitutes a regulatory scheme
enacted as subordinate legislation which is mandatory. The Minister of Trans-
port is therefore required to assess the environmental impact of the dam on
behalf of the Government of Canada.28
Fourth, the Federal Court of Appeal did not err in interfering with the trial
judge’s discretion. La Forest J. notes that opponents of the dam had made a sus-
tained legal effort to challenge the approval process and that, despite the ongo-
ing proceedings, construction had continued. There was no evidence of preju-
dice to Alberta caused by delay in bringing the action.29
Finally, the Court held that the Guidelines Order is constitutionally valid.
The Guidelines Order can be characterized as a means of facilitating decision-
making based on the particular heads of power used to regulate the project and
as a procedural or organizational device governing the internal operations of the
Government of Canada.0.
Of these five issues, the constitutional one may have the greatest long-term
impact since it is not dependent on the particular statutory scheme.
It is also
relevant to environmental jurisdiction beyond the EA context. This paper will
focus on the implications of Oldman for Parliament’s constitutional jurisdiction
regarding the environment in general and EA in particular.
HI. Oldman and the Constitutional Basis for Federal Environmental
Jurisdiction
The discussion of the Oldman decision’s implications for federal environ-
mental jurisdiction is divided into six sections. First, the approach to environ-
mental jurisdiction taken by La Forest J. will be described. That approach, it is
argued, supports a distinction between “comprehensive” and “restricted” federal
jurisdiction. The second and third sections discuss comprehensive and restricted
federal environmental jurisdiction respectively. Fourth, the “pith and substance”
of legislation and the doctrine of colourability are reviewed as a means of
261bid. at 43-48, 59-62.
“27This element of the decision precludes the use of the Fisheries Act as a legislative basis for
compelling the federal government to conduct EAs.
25Oldman, supra note I at 36-38, 48.
29Ibid. at 79-80.
30Ibid. at 73-74.
31Canadian Environmental Assessment Act, S.C. 1992, c. 37, modifies certain triggering mech-
anisms for federal EA and introduces greater ministerial discretion.
REVUE DE DROIT DE McGILL
[Vol. 38
enforcing judicial limits on restricted jurisdiction. In the fifth section, the impli-
cations of this analysis for the division of powers are noted. Finally, the argu-
ment is briefly summarized.
A. The Oldman Decision’s Approach to Environmental Jurisdiction
La Forest J.’s approach to environmental jurisdiction contains three princi-
pal elements. The first concerns the place of “environment” in the constitutional
division of powers. Second, La Forest J. identifies the focus of inquiry for defin-
ing legislative competence relating to the environment. Third, he notes the
importance of the “nature” of particular heads of power for the extent of juris-
diction. Based on La Forest J.’s approach, it is argued here that a distinction
should be made between comprehensive and restricted federal environmental
jurisdiction.
The first element in La Forest J.’s approach reflects the established view32
that:
[T]he Constitution Act, 1867 has not assigned the matter of “environment” sui
generis to either the provinces or Parliament. The environment, as understood in
its generic sense, encompasses the physical, economic and social environment
touching several of the heads of power assigned to the respective levels of govern-
ment.
33
This passage emphasizes that environmental legislation is not identified as a
separate matter in the Constitution Act, 1867 and that it may be enacted under
various heads of power.
The second element follows directly from the first. La Forest J.’s approach
to environmental jurisdiction requires “looking first at the catalogue of powers
in the Constitution Act, 1867 and considering how they may be employed to
meet or avoid environmental concerns.” 4 Environmental regulation is not an
“independent”35 matter of jurisdiction but rather is a function of the exercise of
particular heads of power.
The third element of La Forest J.’s approach is summarized as follows:
[Tihe exercise of legislative power, as it affects concerns relating to the environ-
ment, must … be linked to the appropriate head of power, and since the nature of
the various heads of power under the Constitution Act, 1867 differ [sic], the extent
to which environmental concerns may be taken into account in the exercise of a
power may vary from one power to another. For example, a somewhat different
32See e.g. W.R. Lederman, “Unity and Diversity in Canadian Federalism: Ideals and Methods
of Moderation” (1975) 53 Can. Bar Rev. 597 at 610; G.A. Beaudoin, “La protection de ‘environ-
nement et ses implications en droit constitutionnel” (1977) 23 McGill L.J 207; P.W. Hogg, Con-
stitutional Law of Canada, 3d ed. (Toronto: Carswell, 1992) at 463, 730.
3301dtnan, supra note 1 at 63. La Forest J. also quotes, ibid. at 63-64, from D. Gibson, “Con-
stitutional Jurisdiction over Environmental Management in Canada” (1973) 23 U.T.LJ. 54 at 85:
“‘[E]nvironmental management’ could never be treated as a constitutional unit under one order of
government in any constitution that claimed to be federal, because no system in which one gov-
ernment was so powerful would be federal.”
3401dman, ibid. at 65.
35Ibid. at 64.
1993]
CHRONIQUES DE JURISPRUDENCE
environmental role can be played by Parliament in the exercise of its jurisdiction
over fisheries than under its powers concerning railways or navigation since the
former involves the management of a resource, the others activities.36
The point is not simply that certain heads of power support federal environmen-
tal jurisdiction while others do not. Rather, the “environmental role” of Parlia-
ment is related to the “nature” of heads of power; there are thus different roles
and natures to be considered. La Forest J. illustrates this point with the distinc-
tion between jurisdiction over “resources” and “activities.”
It is suggested in this paper, however, that a different distinction be used
to determine the extent of federal environmental jurisdiction in particular cases.
The following two sections present a distinction between activities over which
Parliament has “comprehensive” environmental jurisdiction and activities
which, because they merely touch on or have consequences for an area of fed-
eral competence, are subject to only “restricted” jurisdiction. While this distinc-
tion is not made explicitly by La Forest J. in Oldman, it appeais to be implicit
in his analysis and choice of examples.
B. Comprehensive Federal Jurisdiction
This section describes the basis of comprehensive environmental jurisdic-
tion. La Forest J.’s interprovincial railway example in Oldman is then used to
illustrate this type of jurisdiction and two other examples of comprehensive fed-
eral jurisdiction are noted.
The starting point for discussing comprehensive jurisdiction is the recog-
nition that the exercise of environmental jurisdiction involves the regulation of
activities that have consequences for the environment. Rather than identifying
broad subject matters of jurisdiction, such as water or air, the proposed approach
focuses on the relationship between constitutional heads of power and the par-
ticular activities to be regulated. Comprehensive federal jurisdiction means that
Parliament can regulate an activity in terms of all of the activity’s environmental
consequences. This jurisdiction exists, it is suggested, where the activity is
referred to directly or by implication in a federal head of power.
Comprehensive jurisdiction is illustrated in Oldman by the interprovin-
cial railways example. The activities of building and operating interprovincial
railways are within the legislative competence of Parliament since these rail-
ways are referred to directly in the Constitution’s enumeration of federal pow-
ers.37 To illustrate the extent of this jurisdiction, La Forest J. quotes from the
National Transportation Act, 1987,38 which lists a range of factors to be consid-
ered in regulation.39 He then concludes that “it cannot be seriously questioned
that Parliament may deal with biophysical environmental concerns touching.
upon the operation of railways so long as it is legislation relating to railways.
36Ibid. at 67-68.
37Parliament has jurisdiction over interprovincial railways under ss. 92(10)(a) and 91(29) of the
38R.S.C. 1985 (3d Supp.), c. 28, s. 3.
3901dman, supra note 1 at 65-66.
Constitution Act, 1867.
McGILL LAW JOURNAL
[Vol. 38
This could involve issues such as emission standards or noise abatement provi-
sions.””
La Forest J. leaves no doubt that federal regulatory authority may take into
account the full range of environmental considerations when, for example,
approving new rail lines. Exploring this example, he states:
[O]ne might postulate the location and construction of a new line which would
require approval under the relevant provisions of the Railway Act, R.S.C. 1985, c.
R-3. That line may cut through ecologically sensitive habitats such as’wetlands
and forests. The possibility of derailment may pose a serious hazard to the health
and safety of nearby communities if dangerous commodities are to be carried on
the line. On the other hand, it may bring considerable economic benefit to those
communities through job creation and the multiplier effect that it will have in the
local economy. The regulatory authority might require that the line circumvent
residential districts in the interests of noise abatement and safety. In my view, all
of these considerations may validly be taken into account in arriving at a final,
decision on whether or not to grant the necessary approval. To suggest otherwise
would lead to the most astonishing results, and it defies reason to assert that Par-
liament is constitutionally barred from weighing the broad environmental reper-
cussions, including socio-economic concerns, when legislating with respect to
decisions of this nature.4′
Parliament thus has a comprehensive environmental jurisdiction regarding inter-
provincial railways.
Comprehensive environmental jurisdiction is illustrated by two other
examples. The first concerns another direct reference to an activity in a federal
head of power. Parliament has jurisdiction over “navigation and shipping” under
subsection 91(10) of the Constitution Act, 1867. The resulting comprehensive
jurisdiction over shipping supports legislation regulating pollution from ships.42
As an activity within comprehensive federal jurisdiction, all environmental con-
sequences of shipping can be regulated by Parliament.43
A second example is an activity referred to by implication in a federal head
of power.’ The courts have interpreted subsection 92(10)(a), which gives Par-
liament jurisdiction over interprovincial “works and undertakings,” as placing
the construction and operation of interprovincial pipelines under federal author-
ity.4″ Unlike interprovincial railways, pipelines are not referred to directly in
subsection 92(10)(a). This head of power includes them, however, by implica-
40Ibid. at 66.
411bid.
42Canada Shipping Act, R.S.C. 1985, c. S-9, Part XV.
43This argument is also supported by Whitbread v. Walley, [1990) 3 S.C.R. 1273,77 D.L.R. (4th)
25, which held that “maritime law” is an area of exclusive federal jurisdiction. Pollution from ship-
ping might be considered part of “maritime law.”
44Activities referred to by implication are identified through judicial interpretation of heads of
power. The importance of interpretation in identifying these activities is best illustrated by the gen-
erally worded “peace, order and good government” power. This topic is discussed below in the sec-
tion entitled “Oldman and Federal Environmental Jurisdiction under ‘Peace, Order and Good
Government.”‘
45Campbell-Bennett Ltd. v. Comstock Midwestern, [1954] S.C.R. 207, [1954] 3 D.L.R. 481;
Sask. Power Corp. v. TransCanada Pipelines, [1979] 1 S.C.R. 297, 88 D.L.R. (3d) 289; Hogg,
supra note 32 at 582, 713.
19931
CASE COMMENTS
tion.4 Consequently, federal legislation may address all of their environmental
effects.
In summary, La Forest J.’s discussion of interprovincial railway jurisdic-
tion in Oldman provides the basis for an argument that where comprehensive
jurisdiction exists by virtue of explicit or implied reference to an activity in a
federal head of power, Parliament may fully regulate that activity from an envi-
ronmental perspective. While that example has a prominent place in La Forest
J.’s judgment, comprehensive jurisdiction does not provide the answer to the
constitutional issue raised by the Oldman facts. The next section argues that
dam-building on the Oldman River gives rise to only “restricted” federal envi-
ronmental jurisdiction.
C. Restricted Federal Jurisdiction
This section identifies the basis for restricted environmental jurisdiction of
Parliament. La Forest J.’s example of “navigation and shipping” legislation in
Oldman and the Oldman River Dam itself are used as illustrations. Another
example of restricted jurisdiction, based on constitutional jurisprudence regard-
ing the Fisheries Act, is then noted.
Restricted federal jurisdiction exists where an activity has consequences
for an area of federal competence. The extent of jurisdiction over the activity
is restricted to addressing these consequences.
In Oldman, La Forest J.’s discussion of environmental legislation enacted
under the federal “navigation and shipping” power illustrates restricted jurisdic-
tion.47 La Forest J. notes that “some provisions of the Navigable Waters Protec-
tion Act are aimed directly at biophysical environmental concerns that affect
navigation.”‘ For example, section 21 prohibits the throwing or depositing of
specified materials and “like rubbish” which “is liable to interfere with naviga-
tion in any water, any part of which is navigable or that flows into any navigable
water.”49 Section 22 prohibits throwing or depositing material which “is liable
to sink to the bottom in any water, any part of which is navigable or that flows
into any navigable water, where there are not at least twenty fathoms of water
at all times.”5
461t might also be argued that although the word “pipelines” does not appear in s. 92(10)(a) of
the Constitution Act, 1867, the words “other works and undertakings connecting the province with
any other or others of the provinces, or extending beyond the limits of the province” constitute the
naming of a category of activities which includes the construction and operation of interprovincial
pipelines. The reference to interprovincial pipelines in this section could thus be seen, either
directly, or by implication, as a reflection of the fact that the relevant language is less precise than
the word “railways” but more precise than “peace, order and good government.” Of course,
whether interprovincial pipelines are viewed as being referred to directly or by implication in s.
92(10)(a), they are nonetheless subject to comprehensive federal jurisdiction.
470ldman, supra note 1 at 66-67. This discussion is immediately following the interprovincial
railway example but the fundamental distinction between the two is not clearly identified in the
judgment.
48Ibid. at 66.
49Ibid. at 67.
5OIbid.
REVUE DE DROIT DE McGILL
[Vol. 38
This exercise of federal environmental jurisdiction differs significantly
from the interprovincial railway example. That example concerned legislation
regulating the construction and operation of railways enacted under a railways
head of power. In contrast, the Navigable Waters Protection Act provisions do
not regulate activities of “navigation and shipping” but rather are directed at the
“throwing or depositing” of materials which affects navigation and shipping.51
Throwing or depositing –
the activity having harmful environmental effects –
is addressed in the legislation, but only in terms of environmental effects rele-
vant to navigation. Federal environmental jurisdiction over throwing or depos-
iting material into water is therefore restricted. In the railway example, all envi-
ronmental effects of building and operating interprovincial railways may be
regulated by federal legislation.
Construction of the Oldman River Dam is another activity under restricted
federal environmental jurisdiction. Unlike interprovincial railways, dams are
not referred to, directly or by implication, in any federal head of power.5″ Fed-
eral jurisdiction over dam-building is thus restricted to regulating this activity
in terms of its consequences for federal heads of power.
This analysis of restricted jurisdiction is consistent with Fowler v. R.53 and
Northwest Falling Contractors Ltd. v. R., 4 cited by La Forest J. in Oldman,55
which are leading cases on federal environmental jurisdiction based on the fish-
eries power. In Fowler, subsection 33(3) of the Fisheries Act, which prohibited
the deposit of certain material into waters frequented by fish, was found to be
ultra vires Parliament. Martland J. stated:
Subsection 33(3) makes no attempt to link the proscribed conduct to actual or
potential harm to fisheries. It is a blanket prohibition of certain types of activity,
subject to provincial jurisdiction, which does not delimit the elements of the
offence so as to link the prohibition to any likely harm to fisheries. Furthermore,
there was no evidence before the Court to indicate that the full range of activities
caught by the subsection do, in fact, cause harm to fisheries. In my opinion, the
prohibition in its broad terms is not necessarily incidental to the federal power to
legislate in respect of sea coast and inland fisheries and is ultra vires of the federal
Parliament.
56
Northwest Falling, in contra~t, upheld a Fisheries Act provision prohibiting the
deposit of “deleterious” substances. The word “deleterious” provided the nexus
between the environmentally harmful activity of depositing substances into
water and federal fisheries jurisdiction. Federal jurisdiction over the activity of
depositing material into water is thus restricted in that it can only regulate that
activity in terms of its effects for fisheries (or other areas of federal responsibil-
ity).
51Although the activity regulated is throwing and depositing material in navigable waters, the
legislation is in “pith.and substance” about “navigation and shipping” and~thus is constitutionally
valid under s. 91(10) of the Constitution Act, 1867.
52Dam-building is within provincial jurisdiction under the “property and civil rights” or “matters
of a merely local or private nature” powers (ss. 92(13) and 92(16) of the Constitution Act, 1867).
53[1980] 2 S.C.R. 213, 113 D.L.R. (3d) 513 [hereinafter Fowler cited to S.C.R.].
54[1980J 2 S.C.R. 292, 113 D.L.R. (3d) 1 [hereinafter Northwest Falling].
5501dnan, supra note 1 at 68.
56Supra note 53 at 226.
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CHRONIQUES DE JURISPRUDENCE
The argument for restricted jurisdiction can be summarized by returning to
the dam-building example. Parliament has authority with respect to dam-
building if the dam has consequences for areas of federal jurisdiction such as
fisheries, navigation or Indians and lands reserved for Indians.57 This jurisdic-
tion is based on these consequences, not on authority over the activity itself. As’
a result, the extent of jurisdiction is restricted to addressing these consequences.
Put another way, legislation relating in “pith and substance” to fisheries, navi-
gation and shipping, or Indians and lands reserved for Indians may have inci-
dental5″ implications for dam-building because of the conse4uences of this
activity.
To make restricted environmental jurisdiction operational in constitutional
law, the courts must enforce the limits on Parliament’s authority. The next sec-
tion examines enforcement techniques.
D. Enforcement of the Constitutional Limits on Restricted Jurisdiction
This section identifies the problem of judicial enforcement of restricted
jurisdiction. The “pith and substance” characterization of legislation and the
doctrine of colourability are then reviewed. Both constitute means of ensuring
that the limits of restricted jurisdiction are respected.
Restricted jurisdiction implies judicially enforceable limits on legislation.
Federal regulation of an activity is restricted to addressing its environmental
effects for areas of federal jurisdiction. However, the regulatory authority of
Parliament is not restricted in the sense that the powers exercised are weak or
ineffective. In the case of dam-building, for example, federal fisheries and nav-
igation authority gives Parliament the power to veto or attach stringent condi-
tions to certain projects. Given that a veto can be exercised, how can it be kept
within constitutional bounds?
Continuing with the dam-building example, a federal veto should not be
exercised on the sole ground of harm to riparian cottonwood forests, unless a
significant link is established between the cottonwoods and fish or fish habitat,
or another area of federal jurisdiction. Since Parliament has neither comprehen-
sive jurisdiction over dam-building nor jurisdiction with respect to forests, it has
no constitutional basis for regulating this environmental effect of the dam.
One method of judicial control is the “pith and substance” or “dominant or
most important characteristic” analysis of legislation. 9 Using the dam and cot-
tonwoods example, legislation regulating dam-building to protect the trees
would be unconstitutional since it is not, in “pith and substance,” concerned
with a matter of federal jurisdiction. The situation is analogous to the finding
in Fowler that the Fisheries Act provision regulating the depositing of certain
57Jurisdiction over “Indians, and lands reserved for the Indians” is provided by s. 91(24) of the
Constitution Act, 1867.
58Although “incidental” in constitutional terms, these powers are not insignificant since they
confer on Parliament a potential veto over the project.
5901dman, supra note 1 at 62-63. See Hogg, supra note 32 at 377-79 for a discussion of “pith
and substance” characterization of laws.
McGILL LAW JOURNAL
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material into water frequented by fish could not be upheld under the fisheries
power since the depositing was not linked to harm to fisheries.
The doctrine of colourability is a second means of enforcing the limits on
restricted jurisdiction. In Oldman, La Forest J. acknowledges the potential intru-
sion on provincial authority of restricted federal jurisdiction over dam-building:
I am not unmindful of what was said by counsel for the Attorney General for Sas-
katchewan who sought to characterize the Guidelines Order as a constitutional
Trojan horse enabling .the federal government, on the pretext of some narrow
ground of federal jurisdiction, to conduct a far ranging inquiry into matters that are
exclusively within provincial jurisdiction.6
0
La Forest J. addresses this concern by stating that under the Guidelines Order
the mandate given to a federal EA is only
to examine matters directly related to the areas of federal responsibility affected.
Thus, an initiating department or panel cannot use the Guidelines Order as a
colourable device to invade areas of provincial jurisdiction which are unconnected
to the relevant heads of federal power. [emphasis added]61
The use of the word “colourable” to describe an expansion beyond the bounds
of restricted jurisdiction has a particular constitutional meaning.62
The issue of colourability was discussed in Reference Re The Upper Chur-
chill Water Rights Reversion Act. 3 The case involved a challenge to Newfound-
land legislation expropriating the assets of a hydroelectric company operating
on the Churchill River. The legislation was presented as a valid exercise of the
provincial power to expropriate property. On the basis of evidence related to the
intergovernmental dispute over the hydroelectric project, McIntyre J. found that
the Act’s subject matter was the power contract with Quebec and that it affected
extraprovincial civil (i.e. contractual) rights, a matter beyond provincial juris-
diction. He found the legislation to be “a colourable attempt to interfere with the
Power Contract …, 4
The legislation could have been viewed as unconstitutional on “pith and
substance” reasoning; its “dominant and most important characteristic” was the
power contract, not land expropriation. The reference to “colourable” is, how-
ever, a useful addition to the analysis. It makes clear that the form of legislation
is not controlling of constitutional characterization and that judges will look
behind form when enforcing constitutional limits.
6Oldnan, ibid. at 71-72.
611bid. at 72.
62The doctrine of colourability may also be used to invalidate federal legislation regulating activ-
ities subject to comprehensive jurisdiction, if that legislation is found to be a colourable device for
intervening in areas of provincial jurisdiction. La Forest J. refers to colourability when discussing
the range of environmental considerations which may be taken into account in the exercise of fed-
eral jurisdiction over interprovincial railways. He states that: “Absent a colourable purpose or a
lack of bonafides, these considerations will not detract from the fundamental nature of the legis-
lation. A railway line may be required to locate so as to avoid a nuisance resulting from smoke
or noise in a municipality, but it is nonetheless railway regulation” [emphasis added] (ibid. at 69).
631[1984] 1 S.C.R. 297, 8 D.L.R. (4th) 1 [hereinafter Churchill Falls cited to S.C.R.]. This case
is discussed in E. Edinger, Case Comment (1985) 63 Can. Bar Rev. 203.
64Churchill Falls, ibid. at 333.
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CASE COMMENTS
Federal authorities could therefore be required to show that regulation of
activities subject to restricted jurisdiction is reasonably linked to consequences
for areas of federal authority. Controls on dam-building which are unconnected
to federal heads of power, such as fisheries or navigation and shipping, would
be struck down on “pith and substance” and colourability grounds. In this way,
the distinction between restricted and comprehensive jurisdiction could be
enforced. The next section considers four general implications of this distinc-
tion.
E. Division of Powers Implications of the Comprehensive-Restricted
Distinction
This section reviews four general implications of the interpretation of Old-
man presented in this paper. The first three of these implications concern the
general relationship between constitutional heads of power and jurisdiction over
activities which affect the environment. The fourth implication concerns the rel-
ative authority of Parlialnent and the provincial legislatures regarding the envi-
ronment.
First, a head of power may give rise to either comprehensive or restricted
jurisdiction depending on the activity at issue. For example, the federal “navi-
gation and shipping” power supports comprehensive environmental jurisdiction
over shipping activities and restricted jurisdiction over activities, such as the
depositing of certain materials into navigable waters, which affect shipping and
navigation. Equally, the federal “sea coast and inland fisheries” p6wer supports
comprehensive environmental jurisdiction over the operation of fisheries and
restricted jurisdiction over activities that have consequences for fisheries.
Second, comprehensive federal jurisdiction over an activity does not pre-
clude that activity from having a provincial (or “double”) aspect.65 If the activity
has consequences for matters of provincial competence it would’ also be within
restricted provincial jurisdiction.’ For example, provincial legislation protect-
ing forests might apply to the construction or operation of an interprovincial
work or undertaking if that activity had consequences for forests. Comprehen-
sive jurisdiction over an activity, therefore, does not imply exclusive jurisdic-
tion.
Third, activities over which one level of government has only restricted
jurisdiction will generally be within the comprehensive jurisdiction of the
other.67 For example, while the depositing of material into inland waters is
65See Hogg, supra note 32 at 381-83 for a discussion of legislation having a “double aspect.”
66It appears that a provincial law of general application applies to federal undertakings unless
the law “affects a vital part of the management and operation of the undertaking.” See Quebec
(Commission du Salaire Minimum) v. Bell Telephone Co., [1966] S.C.R. 767 at 774,59 D.L.R. (2d)
145. The state of the law in this area is discussed by Hogg, ibid. at 395-403.
67Categories of activities could be defined so broadly that no one level of government has com-
prehensive jurisdiction over all aspects. An example is a mining “activity” or “project” which
involves one activity under comprehensive provincial jurisdiction (e.g. mine construction) and
another under comprehensive federal jurisdiction (e.g. construction of an interprovincial railway).
This example is discussed below in the section entitled “Oldman and Environmental Assessment.”
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[Vol. 38
within restricted federal jurisdiction if it has consequences for fisheries, this activ-
ity is within comprehensive provincial jurisdiction by virtue of the “property and
civil rights” power. For every activity which affects the environment, therefore,
one level of government will usually have the broad authority over environmental
effects described in La Forest J.’s interprovincial railway example.6″
The fourth implication of this analysis concerns the general approach to
federal and provincial environmental jurisdiction. There can be no presumption
that the provinces enjoy a privileged constitutional authority over the “environ-
ment” as a subject matter. In fact, it is probably unhelpful to view the environ-
ment as a category for jurisdictional purposes. It may be, in practice, that the
provinces possess the preponderance of environmental jurisdiction in Canada by
virtue of provincial proprietary rights over land and natural resources69 and
jurisdiction under heads of power such as “property and civil rights,” “matters
of a merely local or private nature” and “municipal institutions.”‘7 There is no
suggestion in Oldman, however, that federal environmental authority, whether
comprehensive or restricted, should be curtailed out of deference to a more gen-
eral provincial environmental responsibility.
The Court specifically notes that once federal jurisdiction over an activity
is established, the fact that the legislation has incidental implications for areas
of provincial responsibility is no constitutional bar.7” Legislation regarding
interprovincial railways, even if directed at their environmental consequences,
remains in “pith and substance” railways legislation.72 In addition, the Court
explicitly rejects the argument that dam-building is a “provincial” activity
which is immune from federal environmental controls.73 In support of this point,
La Forest J. quotes the following passage from Dickson C.J. in Alberta Govern-
ment Telephones v. Canada (Canadian Radio-television and Telecommunica-
tions Commission):74
It should be remembered that one aspect of the pith and substance doctrine is that
a law in relation to a matter within the competence of one level of government
may validly affect a matter within the competence of the other. Canadian federal-
ism has evolved in a way which tolerates overlapping federal and provincial leg-
islation in many respects, and in my view a constitutional immunity doctrine is
neither desirable nor necessary to accommodate valid provincial objectives. 75
Thus, the environmental legislation of each level of government is of equal con-
stitutional legitimacy, provided that it is grounded in the respective heads of
power of Parliament or the provincial legislatures.76
61The incentives to regulate all of these effects may, of course, be weak. Provinces, for example,
might be unconcerned about the transboundary effects of activities. Nonetheless, a province’s leg-
islature has constitutional authority to regulate its industries so as to reduce or eliminate environ-
mental effects in other provinces.
69Constitution Act, 1867, s. 109.
7 Jurisdiction over “municipal institutions” is provided for in the Constitution Act, 1867, s.
92(8).7101dinan, supra note 1 at 62.
72Ibid. at 69.
731bid. at 68.
7 1[1989] 2 S.C.R. 225 at 275, 61 D.L.R. (4th) 193.
7501dinan, supra note I at 68-69.
7 6In the case of a conflict, federal legislation prevails by virtue of the doctrine of paramountcy.
See Hogg, supra note 32 at 417-34.
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CHRONIQUES DE JURISPRUDENCE
The implications of the restricted/comprehensive distinction reviewed in
this section can be summarized as follows. First, a single head of power may
give rise to both comprehensive and restricted jurisdiction, depending on the
activity to be regulated. Second, comprehensive jurisdiction is not exclusive
jurisdiction. Third, every activity affecting the environment will be within the
comprehensive jurisdiction of one level of government. Finally, the authority of
Parliament and provincial legislatures to legislate for environmental protection
is limited only when the activity to be regulated is subject to restricted jurisdic-
tion.
F. Summary
The approach to federal environmental jurisdiction outlined above focuses
on the relationship between particular heads of power and the activities to be
regulated. A distinction between comprehensive and restricted federal jurisdic-
tion was proposed, based on whether the activity which affects the environment
is referred to directly or by implication within a head of federal power, or
merely has consequences for a matter of federal jurisdiction. Specific examples
of both comprehensive and restricted jurisdiction were also discussed. The pith
and substance and colourability approaches were then outlined as means of judi-
cially enforcing the limits on restricted jurisdiction. Finally, four general impli-
cations of the analysis were noted. In the next section, the analysis of Oldman
is applied to federal environmental jurisdiction under the “peace, order and
good government” power.
IV. Oldman and Federal Environmental Jurisdiction under ‘Peace, Order
and Good Government”
There are three reasons for discussing Oldman and federal environmental
jurisdiction based on the “peace, order and good government” (POGG) power.
First, the “national concern” branch of POGG has been proposed as a basis for
federal environmental jurisdiction.77 The application of POGG thus raises the
tension between federalism and a holistic approach to environmental protection.
Second, the most significant recent Supreme Court of Canada statement on fed-
eral environmental jurisdiction prior to Oldman was R. v. Crown Zellerbach
Canada Ltd.,78 a case where the basis of federal jurisdiction was POGG. Third,
another recent subject of EA litigation, the Rafferty-Alameda project, involves
federal regulation of an international and interprovincial river.79 The constitu-
tional basis for the federal role in Rafferty-Alameda is POGG.
This section begins with an example of comprehensive environmental
jurisdiction based on POGG. The Crown Zellerbach and Rafferty-Alameda
cases are then used to illustrate restricted federal environmental jurisdiction.
Comprehensive environmental jurisdiction occurs when the activity which
affects the environment is referred to directly or by implication in a federal head
77See e.g. Gibson, supra note 33 at 84-85; P. Emond, “The Case for a Greater Federal Role in
the Environmental Protection Field: An Examination of the Pollution Problem and the Constitu-
tion” (1972) 10 Osgoode Hall L.J. 647 at 656-60.
78[1988] 1 S.C.R. 401, 48 D.L.R. (4th) 161 [hereinafter Crown Zellerbach cited to S.C.R.].
79Supra note 8.
McGILL LAW JOURNAL
[Vol. 38
of power. Since “peace, order and good government” identifies no activities
directly, comprehensive jurisdiction requires judicial determination that activi-
ties are included within this power.
This situation is illustrated by the Supreme Court of Canada’s identifica-
tion of “aeronautics” as a matter of federal jurisdiction under POGG. 0 Aeronau-
tics includes the design, building and operation of airports and the operation of
aircraft and the air transport system. These activities are therefore included by
implication in the “peace, order and good government” power and are subject
to the comprehensive environmental jurisdiction of Parliament.
POGG can also give rise to restricted environmental jurisdiction, as illus-
trated by Crown Zellerbach.sl The issue was whether the dumping of wood-
waste into British Columbia coastal waters could be regulated under the federal
Ocean Dumping Control Act.82 The Court split 4 to 3, with the majority holding
that the legislation applied on the grounds that “[m]arine pollution, because of
its predominantly extra-provincial as. well as international character and impli-
cations, is clearly a matter of concern to Canada as a whole.”83 The majority also
concluded that marine pollution has sufficient scientific unity and distinctive-
ness to make it a suitable matter for federal POGG jurisdiction.’ The minority
found the legislation to be inapplicable to dumping in British Columbia waters
where no extraprovincial effects could be demonstrated. While the minority left
considerable scope for federal environmental legislation under POGG, the pres-
ence of interjurisdictional externalities was central to its definition of “national
concern.” 85
Whatever reasoning is adopted, Parliament would have only restricted
environmental jurisdiction. On the majority approach, federal jurisdiction over
activities, such as the dredging and logging operations in Crown Zellerbach, is
restricted to their environmental consequences for the marine ecosystem (as
well as consequences for any other areas of federal competence). If the minority
theory of POGG jurisdiction were accepted, federal environmental jurisdiction
over these activities would be restricted to addressing their extraprovincial
effects. In neither case could comprehensive environmental jurisdiction, as
exists over aeronautics or interprovincial railways, be exercised by Parliament.
A similar analysis applies to the Rafferty-Alameda case. As in Oldman, the
activity in question is dam-building. The river affected, however, crosses pro-
80Johannesson v. West St. Paul (Rural Municipality of), [1952] 1 S.C.R. 292, [1951] 4 D.L.R.
609. See Hogg, supra note 32 at 584-88.
81Crown Zellerbach has been analyzed elsewhere. See A.R. Lucas, Case Comment on R. v.
Crown Zellerbach Canada Ltd. (1989) 23 U.B.C. L. Rev. 355; J.B. Hanebury, “Environmental
Impact Assessment in the Canadian Federal System” (1991) 36 McGill L.J. 962 at 1011-17; S.A.
Kennett, Managing Interjurisdictional Waters in Canada: A Constitutional Analysis (Calgary:
Canadian Institute of Resources Law, University of Calgary, 1991) at 199-204.
82S.C. 1974-75-76, c. 55, now Canadian Environmental Protection Act, R.S.C. 1985 (4th Supp.),
83Crown Zellerbach, supra note 78 at 436.
841bid. at 436-38.
85Kennett, supra note 81 at 203-04.
c. 16, Part VI.
1993]
CASE COMMENTS
vincial and international boundaries. The source of federal decision-making
authority, which triggers the EA responsibility under EARP, is the International
River Improvements Act.86 The constitutional basis for this Act is POGG, on the
theory that international relations are matters of national concern and projects
such as dams, which affect the flow of rivers into the United States, may have
important international implications. Jurisdiction is thus restricted to addressing
the dam’s consequences in areas of federal competence.87
The exact scope of the restriction is, however, open to debate following
Crown Zellerbach. Based on the majority reasoning, it might be argued that, like
“marine pollution,” “international river pollution” or “environmental effects on
international rivers” are distinct matters of national concern having “predomi-
nantly extra-provincial as well as international character and implications”” and
a necessary scientific unity and distinctiveness, based on the ecological unity of
a drainage basin. On this analysis, restricted federal environmental jurisdiction
would support regulation of all environmental implications of the dam for the
international river.”
The minority reasoning in Crown Zellerbach would lead to a different
result. If the subject matter of POGG jurisdiction is confined to the transboun-
dary consequences of the dam, federal environmental jurisdiction would be
restricted to addressing those consequences and would not extend to pur6ly
intraprovincial effects on the river ecosystem.
The application of Oldman to federal environmental jurisdiction based on
POGG shows that this head of power can support both comprehensive and
restricted environmental jurisdiction. The scope of regulation under restricted
jurisdiction depends on how the matter of national concern is defined.
V. Oldman and Environmental Assessment
In assessing the implications of Oldman, the final topic to be addressed is
EA. Oldman is one illustration of the centrality of EA in the debate about envi-
ronmental protection and sustainable development in Canada. EA is promoted
as a proactive policy instrument for anticipating and minimizing or eliminating
the negative environmental consequences of activities.’ The benefits of pre-
86R.S.C. 1985, c. 1-20.
87 An argument might be made that, like aeronautics, dam-building and other major works on
international (and perhaps interprovincial) rivers are matters of “national concern” and by neces-
sary implication included within POGG. If this argument were accepted, federal environmental
jurisdiction over these activities would, of course, be comprehensive. This significant allocation of
jurisdiction to Parliament would appear, however, to go beyond that necessary to protect the legit-
imate federal interest in regulating the transboundary effects of these projects.
88Crown Zellerbach, supra note 78 at.436.
89 1t is far from clear that the Supreme Court of Canada would adopt this approach given the
implications for provincial jurisdiction. The same reasoning, if applied to projects on interprovin-
cial rivers, would lead to a considerable increase of federal authority. For discussion and criticism
of the majority judgment in Crown Zellerbach, see Lucas, supra note 81 at 358-63, 368-69; Ken-
nett, supra note 81 at 203-04.
9Canadian Environmental Assessment Research Cobncil, Evaluating Environmental Impact
Assessment: An Action Prospectus (Ottawa: Department of Supply and Services, 1988) at 1;
REVUE DE DROIT DE McGILL
[Vol. 38
venting environmental damage rather than attempting to clean up after the fact,
and the need to integrate economic and environmental decision-making if sus-
tainable development is to be achieved, point to a significant role for EA. In
addition, EA has been the subject of considerable litigation in Canada” and is
seen as an effective weapon by environmentalists and other groups concerned
with the consequences of proposed developments. There is also important new
federal legislation on the subject. 92
This section examines federal EA in light of the Oldman analysis. The dis-
cussion is organized around four points. First, where Parliament has comprehen-
sive jurisdiction, EA is unproblematic. Second, in cases of restricted jurisdic-
tion, the Oldman reasoning and constitutional logic imply limitations on federal
EA. Third, the constitutional limitations on EA in areas of restricted jurisdiction
are to some extent inconsistent with the basic objectives of EA. Fourth, recon-
ciling the logic of federalism with the logic of EA requires a cooperative “polit-
ical” approach rather than relying on a purely “constitutional” definition of fed-
eral and provincial jurisdiction.
The first point is that EA is unproblematic in the case of comprehensive
jurisdiction over an activity since federal authority extends to all environmental
and other effects. Parliament can therefore require that all of these effects be
taken into account when regulating the activity. La Forest J.’s references in Old-
man to a holistic approach to EA and the broad latitude for EA implied by his
discussion of interprovincial railways illustrate EA under comprehensive envi-
ronmental jurisdiction.
The second point centres on the implications of restricted jurisdiction for
federal EA. The issue is whether a federal EA of a project over which Parlia-
ment has only restricted jurisdiction must be limited to an investigation of the
environmental effects of the project for areas of federal authority. There are
indications in Oldman that the references to holistic EA do not mean that wher-
ever Parliament is entitled to act on environmental questions, the scope for EA
is unbounded. These indications are in La Forest J.’s general discussion of EA
jurisdiction and his specific comments on a federal EA for the Oldman River
Dam.
At a general level, La Forest J. states:
Because of its auxiliary nature, environmental impact assessment can only affect
matters that are “truly in relation to an institution or activity that is otherwise
within [federal] legislative jurisdiction;” see Devine v. Quebec (Attorney General),
[1988] 2 S.C.R. 790 at p. 808. Given the necessary element of proximity that must
exist between the impact assessment process and the subject matter of federal
jurisdiction involved, this legislation can, in my view, be supported by the partic-
ular head of federal power invoked in each instance.93
Brundiland Report, supra note 5 at 222; CCREM Report, supra note 12 at 3, 5. For a discussion
of the limitations of EA, see P.S. Elder & W.A. Ross, “How to Ensure that Developments are Envi-
ronmentally Sustainable” in J.0. Saunders, ed., The Legal Challenge of Sustainable Development
(Calgary: Canadian Institute of Resources Law, University of Calgary, 1990) at 124.
91Supra note 8.
92Supra note 31.
9301dman, supra note 1 at 72.
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While the precise constraint imposed by this passage depends on what it means
for EA to “affect matters,” it is clear that EA must be closely linked to heads
of federal jurisdiction. 4
Significantly, La Forest J.’s specific references to” the topics to be
addressed by a federal EA in Oldman are invariably limited to the particular
areas of federal competence which are affected by the dam.95 For example, La
Forest J. states:
In the case of the Guidelines Order, Parliament has conferred upon one institution
(the “initiating department”) the responsibility, in the exercise of its decision-
making authority, for assessing the environmental implications on all areas of fed-
eral jurisdiction potentially affected. Here, the Minister of Transport, in his capac-
ity of decision maker under the Navigable Waters Protection Act, is directed to
consider the environmental impact of the dam on such areas of federal responsi-
bility as navigable waters, fisheries, Indians and Indian lands, to name those most
obviously relevant in the circumstances here.96
As noted above,97 La Forest J. specifically addresses the argument that the
Guidelines Order might be used by the federal government “to conduct a far
ranging inquiry into matters that are exclusively within provincial jurisdic-
tion.”9” His response is that the EA mandate extended only to the examination
of “matters directly related to the areas of federal responsibility affected” with
the result that the Guidelines Order could not operate as “a colourable device
heads of federal power.”99 The “constitutional imperatives”‘” of restricted juris-
94In Devine v. Quebec (A.G.), [1988] 2 S.C.R. 790 at 807-08, 55 D.L.R. (4th) 641, the Supreme
Court of Canada stated that:
ans. See Oldman, supra note 1 at 39, 44, 67, 73.
961bid. at 73.
97Supra notes 60-61 and accompanying text.
980ldman, supra note 1 at 71-72.
99Ibid. at 72.
’00Ibid, at 37.
provincial legislative jurisdiction with respect to language is not an independent one
but is rather “ancillary” to the exercise ofjurisdiction with respect to some class of sub-
ject matter assigned to the province by s. 92 of the Constitution Act, 1867. … We adopt
the following passages of the opinion of Professor Hogg [Constitutional Law of Can-
ada, 2d ed. (Toronto: Carswell, 1985) at 804-05] as a statement of the law on this ques-
tion, i.e., that:
… language is not an independent matter of legislation (or constitutional
value); that there is therefore no single plenary power to enact laws in rela-
tion to language; and that the power to enact a law affecting language is
divided between the two levels of government by reference to criteria other
than the impact of law upon language. On this basis, a law prescribing that
a particular language or languages must or may be used in certain situations
will be classified for constitutional purposes not as a law in relation to lan-
guage, but as a law in relation to the institutions or activities that the pro-
vision covers.
… for constitutional purposes language is ancillary to the purpose for
which it is used, and a language law is for constitutional purposes a law in
relation to the institutions or activities to which the law applies.
In order to be valid, provincial legislation with respect to language must be truly in
relation to an institution or activity that is otherwise within provincial legislative juris-
diction.
95La Forest J. mentions effects on fisheries, navigation and Indians and lands reserved for Indi-
McGILL LAW JOURNAL
[Vol. 38
diction are thus central to La Forest J.’s discussion of the extent of EA in Old-
man.
The constitutional logic of this approach is relatively clear. Since Parlia-
ment has no head of power which supports legislation in “pith and substance”
about dams, its regulatory authority is limited to addressing the consequences
of dams for areas of federal responsibility. This limitation applies to the
decision-making process informing the exercise of that authority. While Parlia-
ment can, of course, veto the dam, respect for the limits of restricted jurisdiction
requires that it only do so for reasons related to its areas of authority.
The technique to enforce these limits is the doctrine of colourability. As a
purely administrative matter, Oldman suggests that the federal government can
gather information about the environmental impact of a project.”‘ If the full
range of environmental effects enters into the decision-making process through
a comprehensive EA, however, there is a risk that the exercise of regulatory
authority in an area of restricted jurisdiction will be colourable. Reliance on an
EA to veto a project where no negative consequences for matters of federal
jurisdiction are shown or to attach to conditions unrelated to areas of federal
jurisdiction would constitute regulation through the EA process which would
not be permissible by direct legislative prohibition. It is suggested that such fed-
eral action would be colourable and unconstitutional.
This constitutional conclusion, however, raises the third point: the tension
between the objectives of EA and the limitations resulting from restricted juris-
diction. The problem is that EA, as a decision-making process, goes beyond a
mere inquiry into the environmental consequences of an activity. It can, and per-
haps should, involve a “holistic” assessment of the entire range of a project’s
effects.’ 2
Consider the example of a dam with consequences for federal fisheries.
Assume that, unlike the present situation, 3 the federal EA process is triggered
by the requirement of a licence under the Fisheries Act to construct the dam.
Given that Parliament has only restricted jurisdiction, how can a holistic assess-
ment be conducted to guide the exercise of a potential veto over the project?
While in some cases it may be possible to conclude that the effects on fisheries
are unacceptable in any circumstances and therefore that the dam should not be
built, it is also possible that the decision-maker would want to examine the over-
all benefits and costs of the project. Perhaps a limited impact on fisheries would
be justified if the dam had significant flood-control or irrigation benefits, but not
if the dam’s effectiveness for irrigation would be undermined by increased
evaporation and it also destroyed important wetlands.
A federal EA which examined only fisheries would not provide the basis
for this type of decision-making. However, once the EA considers the full range
of environmental effects, it risks transforming restricted jurisdiction (based on
101Ibid. at 73-75.
102A “holistic” assessment would consider the short-term and long-term consequences of the
activity and would take into account both quantifiable and non-quantifiable costs and benefits.
10301dnan, supra note 1 at 48-50.
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9ASE COMMENTS
the dam’s consequences for fisheries) into de facto comprehensive jurisdiction,
enabling the federal government to base its refusal to issue a Fisheries Act
licence on its view of the dam’s costs in areas of provincial jurisdiction.
This dilemma highlights the difficulty of environmental regulation in a fed-
eral state. Since the “environment” is so pervasive, it necessarily cuts across cat-
egories in the division of powers. The resulting fragmentation, however,
impedes the comprehensive approach which environmental issues demand.
While the distinction between comprehensive and restricted jurisdiction
works reasonably well in defining each level of government’s regulatory author-
ity over activities which affect the environment, difficulties arise when a gov-
ernment undertakes an EA for an activity over which it has restricted environ-
mental jurisdiction. It is, of course, possible to conduct a limited EA to ascertain
a project’s effects on fisheries, for example, and on this basis decide whether
these effects are acceptable and what, if any, conditions should be attached if the
project is approved. This limited investigation is, however, incompatible with
the holistic assessment which is a major objective of EA as part of a decision-
making process.
The fourth point in this section is to identify two possible responses to this
dilemma. Both responses require a degree of political cooperation. They dem-
onstrate that while the division of powers may make holistic EA awkward in
certain circumstances, the Constitution does not.preclude this decision-making
technique.
First, since one level of govefnment will generally have comprehensive
jurisdiction for every activity, that government could be relied upon to under-
take a full EA. Applying this response to the dam example, for instance, the
province would have authority to regulate the project in terms of all environ-
mental effects, without cbnstitutional constraints on its EA inquiry. The provin-
cial EA would be the only forum for a holistic assessment of the project, and
the federal government could participate by making submissions regarding fish-
eries and other areas of federal jurisdiction. Parliament would retain legislative
authority to regulate the fisheries implications of the dam and could conduct its
own investigations and set its own standards with respect to the impact on fish
and fish habitat.
There are two disadvantages to this response. First, it is inadequate where
a project involves two or more activities, one subject to comprehensive provin-
cial jurisdiction and the other to comprehensive federal jurisdiction. A mining
development might raise this problem.” The province would have comprehen-
sive jurisdiction over mine construction and operation and the construction of
service roads within its territory. If an interprovincial or international slurry
pipeline or railway were required to transport the ore, however, activities asso-
ciated with this aspect of the development would be within comprehensive fed-
eral jurisdiction. As a result, the mining project as a whole, including both the
l’ 4The following fact situation parallels the’open-pit copper mine which has been proposed for
the Tatshenshini Valley in British Columbia.
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[Vol. 38
mine and the pipeline or railway, would not be within the comprehensive juris-
diction of a single level of government. No one government could conduct a
holistic EA of the entire project. A second disadvantage of relying on the level
of government having comprehensive jurisdiction to conduct the EA is the pos-
sible conflict of interest if that government, or one of its agencies, is the propo-
nent of the project.
The second response is a joint federal-provincial EA of activities where
both levels of government have jurisdictional interests. A joint assessment
would confront all regulatory issues at once and could address possible trade-
offs which might be ignored by a narrowly based inquiry. It could therefore gen-
erate a common information base for all regulatory decisions. It would even be
possible, through interdelegation, to confer decision-making authority on a joint
panel. 5 A holistic EA could thus be undertaken by both levels of government
without the risk that EA would become a colourable instrument of wide-ranging
environmental regulation in the case of restricted jurisdiction.
In addition to the constitutional point, joint EA has administrative and
practical advantages. It would minimize cost and duplication for governments,
proponents of projects and intervenors. A joint panel might be more independ-
ent than one appointed by a single government, especially if that government is
the project’s sponsor. Cooperation could extend to the establishment of a perma-
nent federal-provincial body to conduct EA. A federal-provincial EA agency
could develop expertise and a reputation for impartiality and would, even if sub-
ject to certain political checks, constitute a significant improvement over current
EA panels. 06
To conclude, the constitutional constraint on the use of EA in the exercise
of federal regulatory authority depends on whether jurisdiction over the activity
in question is comprehensive or restricted. Comprehensive jurisdiction permits
full EA. If jurisdiction is restricted, however, constitutional logic dictates a
restricted scope for EA to avoid the colourable use of decision-making authority
to regulate aspects of the project beyond federal control. The problem with this
approach is that the logic of EA makes it difficult to conduct an adequate holis-
tic assessment on the basis of such a limited inquiry. The available responses are
reliance on the government having comprehensive jurisdiction to conduct the
EA or the establishment of a joint EA process, possibly through interdelegation.
VI. Conclusion: Federalism and the Environment
This paper has examined environmental jurisdiction under the Canadian
Constitution in light of Oldman: After reviewing the facts and lower court deci-
sions in Oldman and the issues dealt with by the Supreme Court of Canada, the
approach to federal environmental jurisdiction adopted by the Court was
explored using a distinction between comprehensive and restricted jurisdiction.
105For a discussion of interdelegation, see Hogg, supra note 32 at 353-58.
106The idea for this type of joint panel originates with A.W. Scarth, Q.C., Thompson Dorfman
Sweatman, Winnipeg (personal correspondence). Mr. Scarth acted as counsel in the Rafferty-
Alameda litigation.
1993]
CHRONIQUES DE JURISPRUDENCE
This distinction was also applied to POGG and its implications for EA were
considered. The discussion leads to two general conclusions.
First, the broader the view taken of the environment, the less logical it is
to consider “environment” as a relevant category for defining constitutional
jurisdiction. If the environment is the biophysical and socio-economic context
within which human activities occur,”07 environmental considerations are perva-
sive in the regulation of all activities. Decision-making must take account of
interrelationships within ecosystems and the integration of environmental and
economic planning necessary for sustainable development. As the Brundtland
Report argued, environmental considerations must enter into all decision-
making.
The constitutional implication of this perspective is the recognition that
authority to regulate environmental effects is ancillary to jurisdiction over activ-
ities which cause these effects. As a result, both levels of government in Canada
have a strong constitutional grounding for environmental legislation and a holis-
tic approach to regulation is possible in the case of comprehensive jurisdiction.
When jurisdiction over the activity is restricted, however, there are constitu-
tional limits on environmental regulation and EA.
The second conclusion is that federal-provincial cooperation is required if
EA is to achieve its full potential when both levels of government have juris-
dictional interests regarding an activity. As part of a decision-making process,
EA involves considering the broad range of environmental consequences of a
proposed project and making a holistic assessment. Arguably, EA is most effec-
tive where it is most comprehensive. Given the pervasiveness of environmental
effects and the division of legislative authority inherent in federalism, EA inev-
itably encounters constitutional constraints at a certain point. These constraints
limit the scope of a government’s EA when it has only restricted jurisdiction
over an activity.
It is suggested that the appropriate response to this constitutional constraint
is intergovernmental cooperation to establish joint and impartial EA. The Con-
stitution sets limits on the operation of Canada’s political institutions but it can-
not ensure that they operate in an optimum fashion. Improved environmental
decision-making, including the effective use of EA, requires an innovative
approach to institutional arrangements *at the political level. If Canada is to meet
the challenge of achieving sustainable development, innovation of this type is
essential.
1TLa Forest J. suggests that both elements could be addressed when considering environmental
quality in an EA. See Oldman, supra note 1 at 36-37.
