Research publications

This paper introduces the constitutional division of powers between the federal and provincial governments over various environmental issues. Canada’s Constitution does not list “the environment” as a subject matter specifically assigned to one level of government or the other. Rather, one or more subject matters that the Constitution allocates to the federal Parliament or to the provincial legislatures can apply to an environmental issue. Which level of government has jurisdiction to regulate in relation to a specific environmental issue therefore depends on which subject matter listed in the Constitution best describes the substance of the regulation and which level of government has authority for that subject matter. Whereas certain environmental issues can be regulated solely by the federal or provincial governments, many can be regulated by both. Over time, the federal and provincial governments have worked together to harmonize the regulations regarding many aspects of the environment. Lawmakers interested in regulating in relation to environmental issues must bear in mind which aspects of the physical environment fall under federal jurisdiction, which are under provincial jurisdiction, and which may be regulated by both levels of government. In this paper, the word “regulate” is used in its generic sense, meaning control by coercion. It encompasses the enactment of legislation by Parliament or a provincial legislature and the making of regulations by a government, as well as government decision-making and management of an issue when backed by the force of law. Sections 91 and 92 of the Constitution Act, 1867 list subject matters in relation to which each level of government may regulate.1 Neither list includes “environment” as a subject matter. Rather, the “environment” is a collective term referring to numerous issues, including some of the various subject matters the Constitution assigns to either Parliament or the provincial legislatures.