What powers do Canadian municipalities have to create environmental rights?

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A reader asked us if Canadian municipalities can pass an environmental bill of rights, as some American jurisdictions have with the help of the Community Environmental Legal Defence Fund. The example provided by the reader prohibited the extraction of natural gas by means other than gas wells installed and operating at the time of the enactment of the ordinance.

In Canada, municipalities are created by provincial laws and their powers are limited both by those laws and by the limits on provincial jurisdiction. Historically, Canadian courts would read municipal legislation very carefully to determine if an express regulatory power existed to authorize a bylaw. However, in 2001 the Supreme Court of Canada explained in a case called Spraytech that broad "general welfare" provisions in municipal legislation could support environmental regulation, in that case a municipal pesticide ban bylaw, with the result that a specific "pesticide bylaw" power was not required. Nearly all municipal legislation has some kind of general welfare provision in Canada. However, the courts will still look at bylaws in municipalities to see if they were enacted for an improper (for example, a non-local) purpose.

If the province amends legislation to provide for no powers or narrower powers over a specific subject (including pesticides), then the power is effectively removed from municipal jurisdiction. In the decade since the Spraytech case, many provinces have done just that. In Alberta for example, municipalities cannot regulate oil and gas; in Ontario, aggregates, cosmetic pesticides, renewable energy projects, and regulation of "nutrients" such as sewage sludge, are largely or entirely excluded from municipal bylaw regulation. However, where a subject is not specifically addressed in provincial legislation, municipalities continue to have general welfare powers as set out in their governing acts and can enact a wide range of bylaws concerning the environment. General welfare provisions can be relied on, for example, for plastic bag bans (for example in Wood Buffalo, Alberta) or tree-cutting bylaws.

Earlier in June, the City of Toronto passed a motion to ban plastic bags, denounced by the mayor who predicted it would face a legal challenge and be quashed. No draft bylaw has been released, but unless a court declares that it was passed in bad faith, it is our expectation that the city could also rely on its general welfare provisions, as it has in other cases like the ban on cosmetic pesticides (before this was regulated by provincial law) or its green roof bylaw.

Another interesting recent example is the City of Toronto's Environmental Reporting and Disclosure Bylaw (CHEMtrac). This bylaw, enacted under the authority of the City of Toronto Act, requires businesses releasing substances of concern in Toronto to report their releases in more detail than is required by the federal or provincial governments. The bylaw is local because it deals with contaminants which are of concern within the city limits because they are found in higher levels in Toronto.

Three other important limits on municipal "general welfare" powers should be kept in mind. First, the bylaw cannot be an infringement on federal jurisdiction. Municipalities cannot ban airports or nuclear power plants (however, they may be able to regulate them to a very limited extent).

Second, while a municipality certainly could enact a bylaw providing environmental rights -- for example, a process for disclosure and consultation -- they would be constrained by the nature of the subjects they in fact regulate through their own bylaws, which are usually fairly limited.

Third, a municipal bylaw cannot "conflict" with existing federal or provincial legislation. A municipality could not provide rights over provincial or federal environmental approvals. They also could not create a process that conflicts with the process set out in provincial legislation for making municipal decisions. Municipalities can set a higher standard than provincial or federal legislation, but not a lower one.

The upshot is that there is a lot of untapped potential in municipalities to regulate more to protect health and welfare in the community, including providing more information and consultation opportunities to citizens, and by limiting environmentally harmful activities within the municipality. However, there are also diverse legislative limitations that need to be kept in mind when approaching your municipality to do more. Every province has different limitations and different municipal powers and procedures to be addressed when advocating for environmental regulation at the local level. For this reason, it's important to understand the legal framework in your jurisdiction to ensure you provide a workable proposal to your municipal council.

Note: Pro Bono provides legal information designed to educate and entertain readers. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. While efforts are made to ensure the legal information provided through these columns is useful, we strongly recommend you consult a lawyer for assistance with your particular situation to obtain accurate advice.

Submit requests for future Pro Bono topics to probono@rabble.ca. Read past Pro Bono columns here.

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