Environmental Law in Canada

Americans (especially liberals) often have a warm and fuzzy vision of our neighbors to the north as a kinder, gentler version of the United States.  (Remember this map after the 2004 election?)  But when it comes to environmental issues, that really isn’t the case.

The conservative Canadian government led by Prime Minister Harper has recently introduced its budget for the next fiscal year.  In that budget, the Harper government appears to have taken a cue from prior US legislators who have put provisions weakening US environmental laws in appropriations and budget bills.  According to news coverage and environmental groups, the new budget bill will significantly weaken environmental laws in Canada – the government calls it “streamlining.”  In particular, the bills would exempt a large range of projects that are not of “national significance” from Canada’s federal environmental review statute (the equivalent of America’s NEPA) – that environmental review would instead be conducted by the provinces.  Public participation in environmental review would also be reduced.  In addition, it appears that the budget bill will create a broad new exemption from Canada’s existing endangered species laws for federal government action, and reduce protection for fisheries and fish habitat.

The dirty little secret here, however, is that Canada’s environmental laws aren’t really all that strict in the first place – at least, that’s the impression I’ve gotten from talking to Canadian environmental lawyers and from the scholarship I’ve seen that covers Canadian environmental law.  There are a number of good explanations for this difference, even though Canada is much more left-wing on other issues than the United States, such as health care or gun control.  Canada has a lot fewer people than the United States – and so the direct pressure of human exploitation on many of its resources and lands is much less than in the United States.  If wilderness is plentiful (as it is in Canada), there is much less reason to give it and other environmental resources significant legal protection.  Canada is also a country whose economy is much more dependent on natural resources extraction than the United States.  That means that there is much stronger political pressure to allow for greater development of the environment in Canada than in the United States – as shown by the quotes from the Harper government about how streamlining of environmental laws is necessary to allow for greater oil and mineral development and the jobs they produce.  Finally, Canada’s federal structure delegates a great deal more authority to the provinces than America’s does, and gives its federal government much less power.  That means that provinces that are heavily dependent on one type of natural resource industry (British Columbia and timber; Alberta and oil; Newfoundland and fishing) are much less likely to be aggressive in regulating development of that industry.

There are some other important differences between the Canadian and American legal and political systems that contribute to these differences that I’ll explore shortly in another blog post.