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L’environnement et la responsabilitd civile ddlictuelle en
“common law” canadienne
Environmental Torts Liability in Canadian Common Law
by
Maurice Tancelin
Industrial society ranks environmental considerations as a poor second
to economic growth. In Canada the several available common law remedies
are not equally effective in recovering for damages -caused by pollution but
one of them, public nuisance, could potentially prove effective given the
recent developments in the recognition of standing to sue. Legislative action
has been industry-oriented for the most part (and deliberately so), and has
rarely favoured the environment. There is evidence, however, of a recent
change in judicial thinking in pollution cases. At the international or trans-
national level, in cases of dramatic damages a completely new system of
compensation was established. The piecemeal approach of the legislators
means that the environment as a whole is still waiting for relief.
La protection de l’environnement en droit penal canadien
Canadian Criminal Law and the Protection of the Environment
by
Hdlbne Dumont
Traditional criminal law, providing as it does for the protection of such
values as the preservation of life and liberty, developed before it was possible
to foresee the immense potential of modern man to degrade and destroy his
physical surroundings. Consequently it offers very little in the way of
coercive action against those guilty of the destruction of the environment. If
by chance some traditional offence can be applied to cover a form of pollution,
the low rate of prosecutions attests to the fact that the harm to life and
liberty caused by pollution has not yet radically shocked our collective social
consciousness.
The fifty-odd statutes that provide for offences arising from the pollution
of the environment are strict liability offences, another indication that the
legislatures do not view pollution as a particularly disgraceful or even serious
crime. The penalties attached to such offences are essentially of a pecuniary
nature borne by the financially well-off polluter as being the price to be paid
for the right to discharge pollutants into the environment.
Lastly, the disparate and sporadic application of repressive measures in
environmental law results from the lack of resources set aside for the
detection of polluters, as well as from the lack of interest on the part of
governments in enforcing anti-pollution laws.
McGILL LAW JOURNAL
[Vol. 23
La protection de l’environnement et ses implications
en droit constitutionnel
The Constitutional Implications of Environmental Protection
by
Girald Beaudoin
This article deals with the protection of the environment and its im-
plications in Canadian constitutional law. The Fathers of Confederation, in
the section of the B.N.A. Act dealing with the distribution of legislative powers,
did not provide for the protection of the environment. At the time of Confed-
eration no threat of pollution was recognized, and as a result the protection
of the environment is nowhere enumerated in the B.N.A. Act.
It is the author’s opinion that the legislative jurisdiction as to the pro-
tection of the environment is divided between the Parliament of Canada and
the legislatures of the provinces and that several heads of powers are
implicated. A recent decision of the Supreme Court seems to confirm the
view that we are in the presence of a divided jurisdiction similar to the
jurisdiction relating to inflation. In such an area the recourse to the federal
emergency power appears to be quite remote. In any case, the recourse to
the “national dimension doctrine” cannot be justified.
Both Parliament and the legislatures may adequately fight pollution
on the basis of many of the powers enumerated in sections 91 and 92, and
also by virtue of their proprietary rights which are recognized
in the
Constitution.
Finally, the author is of the opinion that there is no need to amend the
B.N.A. Act to attribute exclusive jurisdiction over pollution either to Parliament
or to the legislatures, or to give them a concurrent jurisdiction. A divided
jurisdiction should not be an excuse for inaction on the part of any govern-
ment, provincial or federal, but a divided jurisdiction is still the best func-
tional solution to the problem of environmental protection.
La protection des travailleurs contre les maladies industrielles
et les effets de ]a pollution
Protecting Workers Against Industry-Related Illnesses
and the Effects of Pollution
by
Jean Denis Gagnon
Although concern for the protection of the environment in Quebec, as
elsewhere, is a recent phenomenon, pollution as a cause of industrial disease
has received governmental attention since the end of the last century. Pro-
visions dealing with health conditions in the place of work are now found in
many statutes, regulations, and collective agreements. These provisions
19771
ABSTRACTS – R2SUM.S
generally deal with precautions which the employer must take. As well,
special compensation
is available for workers who suffer from certain
industrial diseases or who are injured on the job.
This article examines collective agreements that regulate health and
security conditions in the place of work. Employer/employee committees
on health and security play an active role in the regulation of such conditions.
These committees are sometimes empowered to decide whether employees are
justified in refusing to work under certain circumstances.
Finally, the author points out that laws and regulations are more
effective than collective agreements in dealing with health protection as
the former apply to non-unionized as well as to unionized workers, and are
also applicable industry-wide so that competitors are subject to the same
rules and restrictions.
L’amdnagement du territoire en droit public qudbdcois
Land Use Planning in Quebec Public Law
by
Jane Matthews Glenn
This article synthesizes Quebec land use control legislation, classifying it
terminology of decentralization/centralization and
under the traditional
concentration/deconcentration.
It first analyzes legislation reflecting “centrifugal” forces, that is, those
forces favouring local autonomy in land use control decisions. For historic
as well as geographic reasons, the traditional administrative structure in
Quebec has been a strongly decentralized one, with the creation of a large
number of small municipalities almost totally autonomous in matters of
land use control. Thus, local autonomy, but paid for in isolation and
inefficiency. The Quebec government is trying to resolve these problems
in two ways: firstly, still within the framework of a decentralized structure,
by reducing the number of local units through amalgamation or the creation
of urban communities; and secondly, turning to the technique of deconcentra-
tion, by developing a regionalized structure for its own provincial organiz-
ation.
The “centripetal” forces, that is, those tending towards a centralized
decision-making power, are represented by the increased efforts of the
Quebec government either to control the activities of local authorities or
even to intervene directly in the planning process where necessary. As well,
the government is wrestling with the problem of the coordination of the
activities of its various departments.
The author concludes that during the last ten years an increasingly im-
portant place has been given to the question of land use control in Quebec
and that one can expect further fundamental changes in the near future.
McGILL LAW JOURNAL
[Vol. 23
A la recherche du statut juridique de l’environnement:
L’Arbre reconsiddrd
Legal Rights for the Environment: A Reappraisal of the Tree
by
Jean Denis Archambault
This article adopts a non-anthropocentric attitude towards the law, that
is, may things, as well as persons, have rights. To what extent may trees, as
representative of natural objects typical to Quebec, be considered to be
holders of legal rights, possessors of a juridical status independent of any
human intervention. In order to decide whether a thing may be a holder
of legal rights there are three questions to be answered:
1) Can the thing institute legal actions at its behest?
2) Does the court take injury to the thing itself into account when granting
relief?
3) Does the relief accorded benefit the thing itself?
The author looks to the Civil Code, the jurisprudence, and the public
law of the province to determine whether Quebec law permits a tree to be
the holder of legal rights, the conclusion being that Quebec law deems a tree
not to have juridical personality. A tree, can never, on its own, institute legal
proceedings. Instead an action must be taken by someone with a particular
interest. In such an action the intrinsic value of the tree is not taken into
account; rather the attitude of the courts has been to indemnify the person
bringing the action for the damage he himself has suffered. The legislator,
moreover, has generally seen trees as objects of economic, rather than ecolo-
gical, value.
As a tree itself is incapable of instituting legal proceedings, the author
recommends that the notion of standing be-enlarged to permit any concerned
person or association to take an action for the purpose of protecting a tree.
To do so must involve judicial recognition of the intrinsic value of a tree when
awarding damages and/or penalties. Further, the amount awarded should be
used for the benefit of the tree itself, not that of the owner of the tree. The
author believes that these are the preconditions necessary to ensure true
juridical status for the environment.
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L’application de la thdorie des troubles de voisinage au droit de
l’environnement du Qudbec
The Application of the Theory of “Neighbourhood Troubles”
in Quebec Environmental Law
by
Jean Hdtu
This article deals with the application of the theory of abuse of rights in
Quebec environmental law. Based upon provisions in the Quebec Civil Code,
this traditional legal technique for the protection of the environment is
comparable in many ways to the theory of nuisance in the common law. Its
application results in an action for damages which is generally joined to a
request for injunctive relief.
After defining the criteria of fault that are accepted in the doctrine and
in Quebec case law with regard to abuse of rights, the author explains how
the principal arguments invoked by the different parties involved in litigation
are treated by the courts. These arguments include those based on the fact
that the accused polluter has the necessary permission from the competent
legislative or administrative authorities; the character of the premises; the
fact that the accused offender was established there first; the question of
tolerance; public interest; the cost of anti-pollution devices; and contributory
negligence. Lastly, he explores the limits of the recourse to an action in
damages and/or for injunctive relief in the light of the above arguments.
L’intdrit h poursuivre et la protection de
‘environnement en
droit qudbdcois et canadien
Standing to Sue and the Protection of the Environment in
Quebec and Canadian Law
by
Lorne Giroux
This article discusses the problem of locus standi in the context of the
battle for environmental protection in Canadian and Quebec law. The author
focuses on three situations where the traditional approach to locus standi
impedes the effectiveness of judicial intervention in environmental matters.
The first situation arises when members of the public want to participate in
the administration of provincial environmental control legislation or seek
judicial control of the administrative action of public authorities invested
with conservation powers and responsibilities. The second situation arises in
the urban area where legal standing rules tend to hinder the enforcement of
municipal land use controls by private citizens while, in the third situation
McGILL LAW JOURNAL
(Vol. 23
the same rules have prevented environmental associations from using the
judicial system for the furtherance of the public interest.
The author believes that a solution to the problem of locus standi may
come from two directions. Recent constitutional cases have shown a liberaliz-
ation of the attitude of the courts toward locus standi although their applic-
ability to administrative law cases has not yet been clearly determined.
Furthermore, a more effective use could be made of “relator proceedings”,
either in obtaining the authorization of the Attorney-General, or in having the
court exercise its discretion to grant standing to a private citizen in case
of a refusal of permission by the Attorney-General.
La protection de l’environnement culturel canadien et qudbcols
The Protection of the Cultural Environment in Canada and Quebec
by
Jacques L’Heureux
The community, in general, and each citizen, in particular, have a right to
the protection of their common heritage.
The Quebec Cultural Property Act provides three main procedures for
the protection of cultural immoveable property: recognition by the Minister
of Cultural Affairs, classification by that same Minister, and declaration of
historic districts. Federal laws provide for recognition by the Minister of
Indian and Northern Affairs and the creation of National Historic Parks.
The main effect of recognition under the Quebec Cultural Property Act is
the obligation to give to the Minister of Cultural Affairs notice of intention to
destroy, repair, change or alienate a recognized immoveable and notice of saisin
of such an immoveable. Classification has more important effects. In particular,
a classified immoveable must be kept in good condition and shall not be
alienated without the authorization of the Minister. Moreover, such an immove-
able and the property situated in a perimeter of 500 feet from it shall not be
destroyed, repaired or altered without the authorization of the Minister. The
main effects of the declaration of an historic district are to require the
authorization of the Minister before demolishing, repairing or altering an
immoveable and to permit regulation and planning of the district. Rec-
ognition of immoveables, creation of National Historic Parks and dispositions
protecting property in Indian reserves, under federal law, have very limited
effects.
In order to protect cultural immoveable property it is possible to use
means not meant specifically for this end: acquisition of immoveables, master
plans, zoning, programmes provided for in the Quebec Housing Corporation
Act and in the National Housing Act, designation of special areas, and the
projects of the National Capital Commission.
The protection of cultural immoveable property in Quebec depends too
greatly on the discretion of the Minister of Cultural Affairs. The Cultural
Property Commission, now only an advisory body, should have the power
to decide on matters of recognition, classification and approbation of works.
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377
Le Canada et la pollution de la mer par les navires
Canada’s Role in the Prevention of Marine Pollution
by
Francis Rigaldies
The problem of marine pollution is one of great immediate importance.
The world’s oceans are in danger; they can no longer provide food for
millions of inhabitants and still absorb
the refuse of civilization. Ca-
nada, with its 60000 miles of coastline has played an extremely active
role in the rapidly changing Law of the Sea. Canada’s dissatisfaction with
the present state of the law has resulted in unilateral (and hotly contested)
legislative action in the area of marine pollution. At the Third Conference
on the Law of the Sea, Canada’s active participation has contributed signifi-
cantly to the Single Negotiating Text, which to date, has not taken treaty
form. Much is left to be done, but at least there is hope for the future.
