Case Law       

            

Canadian courts will quote decisions from courts in other common law countries in many instances. Decisions from other jurisdictions may be persuasive, but are not binding on courts in Canada, even if they come from common law jurisdictions. Within Canada, lower court decisions are obviously not binding on higher levels of court which hear appeals of those decisions, although the reverse is true: lower courts, such as a Provincial Court, are bound by a judgement of a higher court, such as the Court of Appeal in a province, or the Supreme Court of Canada.

 

In theory, statutes (i.e. laws made by a Legislature or the Parliament) overrule common law (i.e. law made by the courts). That is, it is possible for the Parliament or Provincial Legislatures to create statutes that explicitly change the common law. Courts must follow what the Parliament or Legislature has expressed as law in a statute. Their role is to read the legislation and interpret the "will" or "intent" of the body that created the statute. When the language in a statute is unclear, judges have the power to decide what statute means (i.e. the legislative intent), based on certain principles of statutory interpretation. Judges also have the power to determine if statutes have provisions that violate the Canadian Charter of Rights and Freedoms which forms part of our constitution. Case law is, therefore, one of the best sources to determine the meaning of statutes, regulations and guidelines. You will find in reading cases that judges will stop short of telling a Legislature what it should enact as a law. Provided the elected officials in the Legislature are acting within the Constitution (i.e., within their jurisdiction and not inappropriately contravening rights and freedoms), it is not the role of the courts to make the laws. Again, the courts interpret and apply the law and Constitution.

 

         Division of Powers in Canada's Constitution

 

IKnowing some basic facts about Canada's constitution is essential for understanding environmental law. There are many environmental laws and regulations in Canada. Some are federal (like the Fisheries Act and Canadian Environmental Protection Act) and some provincial (like the BC Wildlife Act, Forest Act, Environmental Management Act, etc). There are also municipal bylaws that relate to the environment. Sometimes there are even both federal and provincial laws on the same topic – like the Canadian Environmental Assessment Act and provincial Environmental Assessment Acts.

 

But how is it determined who has what authority to pass what environmental laws? The answer is found in Canada's Constitution, and various court decisions deciding which government has what jurisdiction. It is not a simple matter of assigning certain topics to one level of government or the other: it can be fairly complex and confusing.

 

Canada was formed in 1867 as a federal state and a parliamentary democracy. Before Confederation, there were several colonies or provinces; Upper and Lower Canada, Quebec, Nova Scotia, New Brunswick, British Columbia, etc. The various provinces negotiated terms under which they would join Canada. The first four provinces to join the Canadian federation were Quebec, Ontario, Nova Scotia and New Brunswick. The others all joined gradually, one at a time.  BC joined in 1871. Newfoundland was the last, in 1946.

 

In joining Canada, the provinces struck bargains with ‘Canada', including the entrenchment of separate "exclusive" provincial powers as components of the Constitution. The "division of powers" are found in sections 91, 92 and 92A of Canada's Constitution. Originally known as the British North America Act, Canada's original constitutional document was a statute passed by the British Parliament and remained a British statute until 1982, when it was "patriated," meaning that if the constitution is to be amended it can now be done by Canada, not Britain.   

 

So we now have a Constitution Act, 1867, and a Constitution Act, 1982.  The division of powers between the federal and provincial governments are primarily found in sections 91 and 92 of the Constitution Act, 1867 (section 92A was a further clarification that the provinces have jurisdiction over their natural resources, added in 1982).

 

​The Constitution Act, 1982 is primarily known for the Charter of Rights and Freedoms contained within it. There are many other constitutional documents that added other provinces to confederation and made relatively minor changes.  There are also unwritten constitutional provisions such as Royal prerogative, which refers to residual powers of the Crown and they have been reduced over time by the parliamentary system. These included for example the authority to declare war and enter treaties, to issue passports, make appointments, and to take lands that "escheat" (revert) to the Crown.  

 

      

 

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