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Enhancing Environmental Protection in the Canadian Constitution: Comments on the Canadian Government's Constitutional Proposals

Subject: 
other law, Environmental Protection, Canadian Constitution, Canadian Government
Author: 
Andrews, William; Alexander, Lawrence
Summary: 

EXECUTIVE SUMMARY

1. West Coast Environmental Law Association applauds the federal government's proposed constitutional commitment to protection of the environment, and the Minister of Constitutional Affairs' statement that the government's intention is not to weaken the federal role in protecting the environment. A strong federal role in protecting the environment is of critical importance.

2. The proposals in this brief for strengthening the ability of the Constitution of Canada to foster protection of the environment are predicated on the recognition that the Canadian Constitution will not be complete until the legal relationship between Canada and Native peoples is resolved on a basis of mutual trust and respect.

3. This brief is offered in a spirit of cooperation with people from Quebec, Newfoundland, Nova Scotia, New Brunswick, Prince Edward Island, Ontario, Manitoba, Saskatchewan, Alberta, the Yukon and the Northwest Territories. We know they all want essentially the same as we do: satisfactory constitutional arrangements and protection of the environment we all love.

4. The proposals' failure to link a prosperous economy and human health with a sustainable environment is a glaring betrayal of Canada's Green Plan and must be rectified throughout the constitutional package.

5. The constitutional package should explicitly acknowledge the fundamental importance of maintaining and enhancing biodiversity, including the survival of threatened species, subspecies and their ecosystems.

6. The proposed recognition of a commitment to environmental protection should be bolstered by the inclusion of key environmental principles:

the obligation to act to protect the environment,
the precautionary principle,
the polluter pays principle,
prior environmental assessment, and
opportunities for public participation.

7. Canadians want strong federal leadership in protecting the environment.

8. The federal government's constitutional authority to implement Canada's international environmental commitments should be explicitly entrenched in a modernized constitution.

9. Federal jurisdiction over the environmental aspects of tourism, forestry, mining, recreation, housing and municipal/urban affairs should not be diminished.

10. Federal-provincial cooperation is highly desirable, but any delegation of federal environmental authority to the provinces should be subject to strong federal leadership, accountability and opportunities for public participation.

11. The government's declaration that the environment is held in trust is highly significant and should be made legally enforceable.

12. Correspondingly, environmental rights should be enshrined in the Charter of Rights and Freedoms.

13. The proposed entrenchment of private property rights in the Charter would inhibit measures by government to protect the environment and should not be pursued.

Publication Date: 
October 1, 1991
Publication Pages: 
30
Publisher: 
West Coast Environmental Law
Publication City: 
Vancouver BC
Publication Format: 
PDF