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School of Environment
Paul Muldoon

Review the last lecture Constitution  Division of powers  CCRF (charter) Constitution - CA, 1867; CA, 1982; Cases  Reflects the values of society and embodied in certain periods Division of Powers – Section 91, section 92  In Canada, the only 2 bodies that can make laws are the one federal government and the ten provincial governments; cities can make law, those are bylaws  Every issues deal with the tension between the federal and provincial government – trade, keystone pipelines and the tar sand issues  Federal can negotiate the treaty but the federal government has no power to force the province to do it. Division of Powers – How are the Legislative Powers Divided?  General  Provincial Powers – s. 92 o Specific Heads  92(5) management and Sale of Public Lands  92(8) municipal institutions  92 (13) Property and civil rights  92(16) Matters of a Local or Private Nature o Natural Resources  92(A) Non-renewable forestry, electricity, laws export and tax Legislative Rights] – “1982” Resources Amendment” captures changes in powers to manage and to capture revenues from non-renewable and forestry resources sand the generation of electrical energy  109 Proprietary interests – [Ownership Rights]  Federal Powers s. 91 o Specific Rights  91(2) Trade and commerce  92(10) Navigation  91(12) Seacoast and Fisheries  Canada version of clean water act  91(27) Criminal law  Protect health and morality  91(3) Taxation power o Treaty Making Power o Residual Clause – Peace, Order and Good Government  National emergency  Airport  General power when there is an area of national concern  Decade ago , aggressive moves were done by the federal government o These actions are faded Laws enacted federally and provincially and have a true conflict, in that case, the court would try to save both laws, the federal law is paramount  Environmental Assessment are different between each provinces and federal governments CCRF (charter)  Outlines fundamental freedom in Canadian society o Civil, language, fundamental, legal to read o Those rights are not absolute and are compromise by section one o Evolves with community values and are not set in time o Many lawyers are found ultra vires and they are changed Operation as mental – challenge the ability of the US government who test crew missiles in Canada . If you use it in war, u put Canada in jeopardy. There is too many “if” there to make it real. Nuclear Energy in Toronto – Challenges Ontario’s program of extending the use of nuclear energy. Liability to a nuclear accident is 70 million dollars, which is a small amount of money, a commission is set up for more money to be paid. A whole number of groups challenge #7 which it violates “ when you do not have the incentives to take precautions, u will be less diligent in preventing accident”. In that case, the court could prove the limited liability provide limited precaution; US has a similar law “Nuclear liability law”. Section 15, equality rights – every individual are equal in front of the law without discrimination. The argument: the victims are being discriminated as they only get 70 million dollars, compare with the oil spill 300 billion dollars. The sections are not for the pollution victims Ban of the spring bear hunt: The regulation is ultra vires the constitution. Why doesn’t the environmental groups pursue aggressively in the charter?  Many lawyers held back and wait for the right case because you don’t want the courts keep saying no The Canadian charter of Rights and Freedom  The Nature and Scope of the Charter  How the Charter Evolved  Description of charter’s Important sections  Examples of Charter Applications o Operations Dismantle Case o Nuclear Liability Act Case o OFAH v. MNR Constitutional Reform: Formal and informal  Formal reform o 1987 Meech lake Accord  Recognizes Quebec as “distinct society”  Significant powers to provinces o 1992 Charlottetown Accord  Recognize environment as the fundamental value for Canadian , environments are top of heart for Canadians  Canada Clause  Property Rights  Minister thought to take it out, 8 years of liberty primer Quebec o Go to section 7 to the constitution, every person has the right to live liberty o Statues - Over half of them are design for property rights o Every single planning and environmental law…? o The government needs the power to override property to protect resource like air and water  Division of powers (mining, forestry, tourism)  Tourism are purely provincial matters? o Constitutional challenge  Maintenance of National parks  Both provincial and federal government try to find consensus  Social covenant versus e
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