Canadian Federalism and Environmental Protection

The constitutional distribution of powers affecting the environment with a federal state is significant externally in terms of a country's ability to subscribe to international treaties and internally, especially in the area of implementation and enforcement. This article examines current developments in Canada, set against a backdrop of both increasingly challenging environmental targets and signs of regulatory retreat at both provincial and federal level. The Constitution Act 1867 contains no direct reference the environment for the purpose of legislative competence, and key decisions of the Supreme Court avoid simplistic, clear-cut divisions of competence. Against that backdrop, pragmatic administrative approaches designed to ensure cooperation between Federal and provincial governments, notably the Canadian Council of Ministers of the Environment, assume particular importance. The Canadian constitutional framework allows for a considerable amount of vertical movement between Federal and provincial levels, particularly in the area of implementing and enforcement of regulatory responsibilities. Regulatory collaboration can lead to stronger enforcement, but in the present climate it is arguable that it is leading to an unnecessarily complex system of control, which lacks transparency and which is over-dependent on political influence rather that the rule of law.