Discussing how to protect the environment and which level of government to hold accountable is a complicated thing. This article attempts to clarify the jurisdictional mess of environmental policy in Canada.
within their boarders.[i]
In some cases, cooperation with Indigenous governments is required under Section 35 of the Constitution Act (1982), which protects existing Aboriginal and treaty rights.[ii] By law, federal and provincial governments are required to consult with Indigenous communities if their rights are potentially affected by decisions (referred to as ‘the duty of consult’). Some Indigenous groups have negotiated (in treaties) the right to self-government and the power to make laws. Therefore, environmental responsibilities of one government may also be shared with Indigenous governments on a regional level.
However, the protection of the environment isn’t actually mentioned in the Constitution. Instead, jurisdiction over environmental matters is understood as a shared responsibility between federal and provincial/territorial governments, which can really complicate efforts to protect and restore wildlife across the country.
An example is the protection of migratory birds. The federal government has signed on to international agreements for their protection by establishing sanctuaries along migratory paths. However, it is up to the provinces to enact regulations on the hunting of those birds within their boarders.
The federal government is also responsible for fish and inland waters but provinces that own public lands with water features (e.g. lakes, rivers, bogs, etc.) have jurisdiction over the wildlife and habitats within those lands. In essence, the federal government may have jurisdiction over broad, trans-boundary issues, but the provinces can enact laws in these areas if they are of a ‘local matter’.
natural resources and wildlife habitat may be viewed as competing with regional goals. Successful efforts to protect Canada’s environment are deeply rooted in a willing and cooperative effort among all governments.
[i] 56% of publicly owned lands across Canada are owned by the provinces/territories. The federal government owns about 44% - 11% of which is located outside the three territories - demonstrating how small the federal government’s jurisdiction is over land conservation across the country.
[ii] ‘Existing’ refers to those rights that were not formally erased by colonial governments.