WC130 MayJune2023 - Magazine - Page 26
FEATURE
is setting its boundaries with federal legislation,” Lemmens says.
“So, we’re seeing a clash of where that line is going to be drawn,
and the courts are having to decide that line.” As her colleague
Carlson sees it, present challenges over environmental regulation
are arising in part because the drafters of the Constitution Act,
1867 were chiefly addressing nation-building issues facing the
nascent country at that time, not modern-era concerns such
as the environment. “As new issues creep up, we have this
traditionally overseen source water planning and protection
of wetlands and other high-risk zones. “Bill 23 implicitly or
explicitly cuts across at least three of our major provincial
statutes that impact water,” Joe Castrilli, a staff lawyer with the
Canadian Environmental Association, says, noting impacts to
Ontario’s planning, clean water and conservation authorities
acts. “Up until now, conservation authorities have been able,
through agreements with municipalities, to provide advice on
”Bill 23 implicitly or explicitly cuts across at least
three of our major provincial statutes that impact water.”
constitutional toolbox for federal-provincial jurisdiction. But the
toolbox does not always contain the perfect tool, which creates
some jurisdictional uncertainty that our courts have needed to
weigh in on.”
The array of interests further complicates matters. Not only are
federal, provincial, and territorial governments sorting out boundaries as new issues arise, industry, conservationists, political parties,
and First Nations are also actively engaged. “Some want a more restrictive view of federal environmental powers; others want a more
expansive view,” Carlson says, adding that the Sovereignty Act, for
example, arises in part from longstanding regional disagreement
between the West and the federal government over natural resources. “There are interests at stake that are not fully aligned, which
leads to political flag planting on certain issues, which invariably
spills over into the courts to adjudicate.”
Alberta isn’t alone in attempting to exert control. This past
November, the Ontario government passed sweeping omnibus
legislation with the stated goal of building urgently needed
housing. Bill 23 is somewhat reminiscent of the Sackett case in
that it looks to change legislation protecting environmentally
sensitive greenbelt areas surrounding Toronto and weaken the
regulatory powers of regional conservation authorities that have
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every single development having a water impact implication. But
with the Bill 23 amendments, those types of agreements may no
longer be possible.” Separately, Castrilli adds, the province has
amended the Ontario Wetlands Evaluation System to empower
the provincial Ministry of Natural Resources and Forestry to
benchmark whether wetlands are provincially significant and
thus deserving of protection.
Castrilli says Bill 23 is unlikely to land wholesale in Canada’s
top federal court, but cases might very well be brought in lower
courts based on individual, site-specific situations. And the
battles could be heated. While provinces take the lead on most
environmental measures, Canada’s Supreme Court has made it
clear it considers the environment shared jurisdiction under the
Constitution, and the federal government has, in recent years,
acted likewise. “In Canada, the courts will be wary of attempts to
basically squeeze one level of government out of their jurisdiction
to address environmental matters,” Castrilli says, noting that he
anticipates ongoing top-court support for federal oversight when
impacts on interprovincial or international waters cannot realistically be fully resolved by a single province or when projects affect
fish and their habitats even within a single province. In such cases, he says, he anticipates “the courts will be prepared to ensure
WAT E R C A N A D A . N E T
Getty Images
Joe Castrilli, Canadian Environmental Association
