Categories: Biodiversity Article 4

Consitutional Impacts on Conservation – Effects of Federalism on Biodiveristy Protection (Canada)

Michelle L. Campbell* and Vernon G. Thomas**
Osgoode Hall Law School at York University, Toronto, Canada
2 University of Guelph, Guelph, Canada

* Co-corresponding author 
**Co-corresponding author

EPL, Vol.32, Iss.5, pp.223-232, 2002



The protection of biodiversity has become an important national and international issue within the past decade (see Noss and Cooperrider 1994 for a discussion of the reasons, which range from intrinsic to aesthetic). Canada, along with over 150 other countries, ratified the 1992 Convention on Biological Diversity (CBD 1992), and is obliged to implement the provisions of the convention through programmes, plans, and legislation to protect native biodiversity (Lyster 1985). Biodiversity conservation is multi-sectoral and interdisciplinary, encompassing, inter alia, protected areas, wildlife and habitat, species at risk and land use planning, and also has iadian landscape, and the real challenge is to protect native biodiversity in other areas.

Numerous scientific studies have been undertaken in Canada, and globally, regarding the biological aspects of biodiversity conservation (see CBIN 2000). There is a variety of issues to consider regarding the conservation of biodiversity, e.g. habitat, population and community dynamics, invasive species etc. Here we focus on legislative and constitutional issues. We examined whether the federal government can implement fully the provisions of the CBD imposed on Canada by ratification of the conventionmplications for agriculture, forestry and mining sectors. Because of this pervasiveness, an ecosystem (or ‘whole picture’) perspective will be required to protect biodiversity. Specifically, this includes the application of ecosystembased management for the maintenance of ecological integrity (Agee and Johnson 1988; Grumbine 1990; Grumbine 1994). In Canada, for example, the concept of ecological integrity was included in the National Parks Act (R.S. 1985 Ch.N-14) in 1988 in a secondary capacity of park management, but was enshrined in policy (Parks Canada 1994) as the major priority in all management decisions. Subsequently, through the 2000 National Parks Act amendments, ecological integrity was given top priority, and now provides the legal mandate for Parks Canada to work towards this objective. Parks, however, represent a small percentage of the Can. Specifically, we examined whether the constitutional division of powers, as set out in the Canadian constitution, and the operational system of environmental federalism (including federal-provincial relations) limit biodiversity conservation in Canada. The first half of this article addresses the constitutional limitations on the federal government’s ability to conserve at the national level: the second half addresses the capacity of existing federal legislation to conserve at the ecosystem level.

Constitutional Division of Powers Relating to Environment 

The Constitution Act of 1982, and the various accompanying documents, establishes the federalist system of government and outlines the jurisdiction and responsibilities of the federal and provincial governments in Canada.

Provincial Powers
Section 92 of the Constitution outlines 16 areas in which the provinces may enact legislation. Section 92(5) has the greatest implications for land use planning and protected areas establishment. Under this section, the provinces are given legislative authority to manage and sell public lands belonging to them, including forestry resources. Section 92A outlines provincial authority over, inter alia, the ‘development, conservation and management of non-renewable natural resources and forestry resources’ (s.92A(1)(b)). In addition to legislative authority, section 109 of the Constitution confers ownership rights to the provinces of all public lands, mines and minerals within their borders. Ownership of lands does not include ownership of wildlife, fish and waters according to the common law; however, ownership does give the provinces the authority to conserve resources (Harrison 1996:33). Although the Constitution confers broad provincial jurisdiction over areas that affect the environment, there are constitutional limits to provincial power. For instance, throughout the 1982 constitutional amendment process, renewable resources were consciously excluded (Meekison and Romanow 1985:15). Also, provincial powers extend only to matters within the province, such that a province cannot enact legislation primarily to regulate activities that occur beyond its borders, even if such activities affect the environment within its borders (Harrison 1996:34). Matters of extraprovincial effect are the realm of federal government authority under s.92(10)(a). The provinces cannot officially legislate in areas that are of exclusive federal jurisdiction, but legislation would likely only be invalidated if its primary concern overlaps with a matter of federal jurisdiction (Harrison 1996:34). In the face of a challenge over conflicting overlapping legislation, the paramountcy doctrine dictates that the federal law prevails (Rutherford and Muldoon 1991).

Limits on Federal Powers
The legislative authority of the federal parliament is listed in section 91 of the Constitution. Contrary to the explicit jurisdictional powers conferred upon the provinces with respect to public lands and property, the Constitutional position regarding the federal government over environmental matters is unclear (Harrison 1995:418). The exclusive fisheries legislative authority is potentially the most far-reaching of the federal sectoral powers as it gives the federal government the power to control water pollution (Skogstad and Kopas 1992:45; Harrison 1995:419). Historically, the federal government has used this power for environmental objectives (Thompson 1980:24). Section 91(1A) gives the federal government ownership over federal Crown property, which includes the legislative power over its resources. This ownership authority has implications for the conservation and protection of territorial lands and wildlife outside of areas that are subject to comprehensive land claim agreements. The amount of federal property within provincial borders is limited, but includes lands negotiated as part of the national park system as well as national wildlife refuges. However, federal authority over the land ends at the park boundary, and since National Parks are scattered around the country and represent a small percentage of the land base (2.6%), the federal government’s proprietary powers, except in the territories (Yukon, Northwest and Nunavut), are not significant enough to provide a comprehensive basis for nationwide broad ecosystem protection.

The Federal General Power
Under s.91, federal parliament has the general power to make laws for the ‘Peace, Order and good Government of Canada’ (POGG), and the extent of this authority with respect to the environment is the subject of some debate (Harrison 1995:419; Morton 1996:45). Two doctrines have emerged in attempts to provide justification and interpretation for the appropriate application of the POGG power: national emergency and national concern (Harrison 1996:43; Morton 1996:45). In the face of a large-scale environmental emergency of national or international proportions, the federal government would have extensive, but only temporary, power to intervene into matters normally of exclusive provincial jurisdiction. The declaration of ‘environmental emergency’ would be in the hands of the courts, and it is unlikely that such a contingency would be a common occurrence (Harrison 1996:43). Where a matter has not been specifically named to either level of government, but is considered to be beyond local or provincial concern, the national concern doctrine could be used by the courts to justify the application of POGG (Harrison 1996:43). The extensive proprietary authority granted to the provinces through the Constitution represents the main barrier to federal involvement in broad-scale environmental and conservation protection. Although the courts generally do not find in favour of federal legislative powers over provincial property powers, a few cases in the past two decades illustrate a potential relaxation in the judicial defense of provincial resources. (For example, Friends of the Old Man River Society v. Canada (Minister of Transport) 1991 and Canadian Wildlife Federation Inc. v. Minister of the Environment 1991. Perhaps the most important constraint to federal environmental protection is the uncertainty of the limits of federal authority due to the indirect environmental powers conferred upon the federal government through the Constitution (Harrison 1995:420). It is due partly to this uncertainty that the federal government has taken a limited view of its jurisdiction.

Environmental Federalism

The operational system of government in Canada regarding environmental matters has been described as a decentralized, cooperative federalism (Saunders 1985; Skogstad and Kopas 1992; Harrison 1996). This means that rather than the federal government actively asserting jurisdiction in areas that are not clearly defined by the Constitution, it normally takes a back seat role with respect to environmental regulation (Harrison 1996). This contributes to the decentralized power structure, with the provinces generally being able to decide when, or if, to regulate on matters of environmental concern. In certain situations in recent history, the federal government has pushed jurisdiction, and at these times, the traditional cooperative system has shifted to a type of competitive federalism, (described generally by Breton (1989)). The pattern of federal involvement in environmental matters over the past three decades has occurred during two periods, termed ‘green waves’ (see Chapters 4, 5 and 6 of Harrison (1996)). The first occurred between 1969 and 1972, when public environmental awareness and interest in environmental issues grew nationally, and internationally, with respect to air and water pollution and depletion of natural resources. The federal government passed nine environmental statutes during this time (e.g. Canada Water Act 1970; Amendments to Fisheries Act 1970; Clean Air Act 1971) and created the Department of the Environment to administer them (Dwivedi 1974). The federal government retreated from playing a larger role in the environment between 1973 and 1985. Public interest in environmental issues also subsided during this time. The balance of power shifted back to the provinces, and the federal government took advantage of overlapping jurisdiction and avoided regulation and enforcement of the controversial sections of its new environmental statutes (Harrison 1996:81). The federal government also backed down on its commitment to set national environmental standards, deferring to the provinces for the regulation of pollution control mechanisms (Harrison 1996:86).

The second period occurred between 1985 and 1995, and more diverse issues came to the fore, both globally (e.g. the ozone layer, global warming, tropical forest destruction), and locally (e.g. preservation of wilderness areas, the importance of waste disposal and recycling) (Skogstad 1996:103). Again during this time, public interest in environmental issues increased. In response to public concern, both levels of government passed new environmental legislation. The centrepiece of the federal initiative was the passage of the Canadian Environmental Protection Act in 1988 (CEPA; amended in 1999, c.33). The federal government asserted that control of toxic substances was an area of ‘national concern’, and thus used the POGG power to justify jurisdictional limits (Harrison 1996:130). It also passed the Canadian Environmental Assessment Act (CEAA; 1992 c.37, proclaimed in January 1995) during this time.

The federal pattern of government on environmental matters includes proposing national guidelines, overseeing federal-provincial consultation and bargaining to define national regulatory standards, and then seeking provincial cooperation in enforcing the agreed-upon standards (Skogstad and Kopas 1992:43-4; MacLellan 1995:324). In general, the federal government maintains a weak role in the environmental field (Harrison 1995:415). This may be attributed to: 1) uncertain constitutional jurisdiction and overlapping jurisdiction (Dwivedi 1974); 2) the federal government taking a limited view of its own powers regarding environmental issues due to provincial resistance (Muldoon and Valiante 1988; Saunders 1988); 3) preference to avoid coercive regulation in the provinces that may be perceived as placing environmental quality over economic development (MacLellan 1995:324); 4) an underlying belief that economic development and environmental protection cannot be achieved simultaneously, and that resource development should take priority (Skogstad and Kopas 1992:44); and, 5) the facilitation of intergovernmental consultation through numerous cooperative mechanisms (Skogstad and Kopas 1992:43/4). That the federal government normally takes a narrow view of its jurisdiction, conceding to the provinces in environmental issues (Harrison 1996:19), is an impediment to the federal government implementing not only its environmental statutes, but also its commitments under international treaties, such as CBD, where jurisdiction is overlapping.

The traditional pattern of cooperative federalism in environmental matters presented above has been characterized by intergovernmental agreements, negotiations behind closed doors generally without public consultation (MacLellan 1995:326), and relative harmony between the two levels of government. During the second green wave the general public and environmentalists, alike, widely supported a greater federal role in environmental matters (MacLellan 1995:329; Harrison 1996:120,140,153) because of Canada’s weak enforcement history with regard to environmental regulations (Skogstad and Kopas 1992:50).

Approach to Land Use Planning and Protected Areas

To evaluate whether the constitutional make-up and resultant system of federalism limits the federal government’s ability to protect biodiversity, the commitments made in the national biodiversity strategy are examined, and an overview of federal implementation of the objectives listed in the strategy is presented. Constraints on the federal government are also identified.

The Canadian Response to the CBD
With support from the provincial and territorial governments, the federal government ratified the convention in December 1992, and is committed to implementing the articles of the CBD. Article 6(a) of the CBD states that each Party (i.e. country that has ratified the CBD) must develop a national strategy for the protection of biodiversity. Ratification has implications for not only the federal government, but also the provincial governments, because the vast majority of native species and their habitats come under provincial jurisdiction. Federal–provincial sensitivities and potential for conflict over jurisdiction explain why the federal government sought provincial endorsement before ratifying the CBD. This also explains why development of the Canadian Biodiversity Strategy (CBS) (Environment Canada 1995) took place through a specially commissioned working group, which included ministers from parks, environment, wildlife and forestry, and was advised by a multi-stakeholder advisory group (Environment Canada 1995:10). During this process, a few sound principles were developed and included in the CBS, such as the need to adopt an integrated ecosystem-based approach to planning and management (21,60-1), and a need to increase the capacity for the public and interest groups to participate in implementation activities.

Nevertheless, there are two main concerns with the CBS. First, there is no legal component (i.e. an act with regulations) to the CBS, and thus there is no instrument to compel action. Two out of the five goals listed could be interpreted as action goals, while the other three pertain to research, cooperation and education (see Table 1). Both research and action, e.g. through regulation, are important components of a conservation strategy. Also, the strategic directions of the two action-oriented goals do not actually commit the governments to any specific legislative or policy initiatives. Certain objectives are outlined (e.g. reconnection of fragmented ecosystems (1.5), completion of protected areas network by 2000 (1.13), review of species at risk legislation (1.21)), but the tone is discretionary, and mechanisms to implement these objectives are not specified. Second, responsibility for protection has largely been deferred to the provinces, and is discretionary. The CBS states that ‘provincial, territorial, and federal governments, in cooperation with stakeholders and members of the public, will pursue the implementation of the strategic directions contained in the Strategy in accordance with their policies, plans, priorities, and fiscal capabilities’ (Environment Canada 1995:2). Thus, governments were not given guidance on how to protect biodiversity, and there is no system of interjurisdictional coordination or accountability. Such potential for inconsistency across the provinces and territories of Canada may not enhance the case of the conservation of biodiversity, as wildlife and ecosystems do not obey jurisdictional boundaries (Sierra Club of Canada 1996a). The 1998 Report of the Commissioner of the Environment and Sustainable Development provided a critique of federal implementation efforts regarding the CBS. The Commissioner determined that even though implementation of the CBS is still in its early stages, progress has been slow and deadlines have been missed.

Several shortcomings were identified. First, the national report to the Conference of the Parties (COP), prepared by the Biodiversity Convention Office (BCO) branch of Environment Canada (BCO 1998a), failed to include many elements identified in the COP reporting guidelines (Com. Env. and Sust. Dev. 1998:4.20). The Annex to the report (BCO 1998b) lists various initiatives that have been undertaken in each jurisdiction, but many of these are sectoral and/or previously ongoing programmes that appear to be incidental to the objectives of the CBS. There are few direct links made between these initiatives and specific needs under the CBS. There is also no definitive requirement for ongoing jurisdictional reporting and no mechanism for synthesizing the information into an informative national report to the COP

EPL Biodiversity Article 4, Fig 3

EPL Biodiversity Article 4, Fig 4

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