Overview

The new edition of this casebook focuses on environmental law across Canada, offering perspectives from each region, using samples of statutes, regulations, guidelines, cases, government policy, and academic writings. All chapters in Environmental Law and Policy have been updated and revised to better illustrate the links between environmental law and other related areas, including science, politics, the economy, and basic ethical and philosophical concerns. New material is offered on such topics as environmental-aboriginal rights, interjurisdictional issues, and the changing perspectives on enforcement and compliance, as well as numerous new federal statutes that have been enacted in the last five years, such as:

• the Canadian Environmental Protection Act, 1999,
• the Species at Risk Act,
• the Canada National Parks Act, and
• amendments to the Canadian Environmental Assessment Act.

The new edition provides fundamental knowledge of the major legal initiatives and a good base for future learning in more specialized areas of environmental law.

TopContent Summary

• The Environment: Ecological and Ethical Dimensions
• Jurisdictional Issues
• Common Law and Environmental Protection: Legal Realities and Judicial Challenges
• Environmental Law in Quebec
• Regulatory Legislation
• Environmental Assessment
• Public Participation and Judicial Review
• Pollution Prevention and Environmental Liability: The Evolution of the
• Law of Toxic Real Estate, Contaminated Lands, and Insurance
• Enforcement and Compliance
• The Economic Approach
• Environmental and Animal Rights
• Protected Spaces and Endangered Species
• Municipal and Land-Use Planning
• Alternative Dispute Resolution in Environmental Law: Uses, Limitations, and Potentials
• Bilateral and Multilateral Dimensions of International Environmental Law
• The Future of Environmental Law

TopPreface

Environmental law and policy is a vast subject area. Our approach, therefore, was to continue to try to identify the major directions that the law has taken, and survey these in the materials. In the process, we have attempted to provide learning materials in relation to as many of the major issues in environmental law as feasible in a work of this length. We have attempted to retain a national focus and to include perspectives from each region of Canada where possible. In planning the book—originally and in the subsequent editions—we attempted to use materials that were applicable in all regions, or that served as useful illustrations of an approach common to several jurisdictions. We have tried to provide a sampling of statutes, regulations, guidelines, cases, government policy, and academic writings in the area. We have also tried to illustrate the links between environmental law and the many social and legal issues to which it relates, including science, politics, the economy, and some basic ethical and philosophical concerns. An important objective was to ensure that the materials can accommodate a variety of perspectives and teaching approaches. If we have been able to provide some fundamental knowledge of the major legal initiatives, and a base for future learning in more specialized areas of environmental law, we will have accomplished our goal.

In the third edition, we have attempted to respond to the suggestions of teachers and students who have used the book during the past decade, and to our own critiques as users of the book. We have also been sensitive to changing concerns and emerging issues and perspectives. All of the second edition chapters have been updated. Of course, as with many subjects, the Web now provides a ready source of continuous updates to the material; however, the fluid nature of Web site citations has meant that we have retained traditional citations by which materials can be located whenever possible. An online index to this edition can be found on the Web at http://www.emp.ca/elp3/index.html.

Without the assistance of some of the most knowledgeable experts and academics across the country, this project would have once again been impossible. As fellow educators, all our contributors have wrestled with the need for good teaching materials in an area that is changing rapidly and regularly, where the issues seem to proliferate instead of stabilize. While we have done our best to ensure that the materials are current and that we have not omitted any major developments, we hope that readers of this edition, as with those of the first two editions, will pass on their comments and suggestions to us.

A grant from the Rocky Mountain Mineral Law Foundation once again supported critical third-edition research and editorial assistance. For this support, we are deeply grateful. We also express our sincere appreciation to the following individuals, who worked beyond the call of duty to assist us in our third-edition editorial duties: Omolara Oladipo, LLM (research assistance); Kim Cordeiro (manuscript preparation); the staff of the faculties of law at both the University of Alberta and the University of Calgary; and our family members, who have continued to encourage and support our work.

Elaine L. Hughes
Alastair R. Lucas
William A. Tilleman
March 2003

TopForeword

The year 2003 marks the 10th anniversary of Environmental Law and Policy and the 35th anniversary of the introduction of teaching environmental law in Canadian law schools. Early environmental law courses in Canada were characterized by a number of features: (1) teaching materials that were made up of cases (mostly tort cases), statutory excerpts, and articles that came from scientific rather than law journals; (2) persistent comment from faculty members who believed that environmental law had no place in a law school curriculum (after all, they argued, it was already well covered in the torts class under the heading “nuisance” and finally, (3) an irrepressible enthusiasm among faculty and students that the law could be enlisted in support of the environment. From this somewhat inauspicious beginning in the late 1960s environmental law began to grow in popularity and sophistication. When I last taught the course nine years ago, more than 70 students were enrolled (compared with 18 in 1974) and we were using a new "casebook" that successfully integrated the writings and ideas of the leading environmental scholars and practitioners from across Canada. That casebook was the first edition of Environmental Law and Policy.

The third edition of this casebook continues to build on the strengths of the first two editions. Contrary to what one might have assumed from an authorial team of strong environmentalists, the book and the courses it supports are well balanced. There is, of course, a pro-environment bias, but it is tempered by a clear understanding of how complex environmental issues are and, as a result, how illusory simple solutions are. In fact, environmental regulation and compliance is extraordinarily complex. The book is also well balanced in its use of secondary materials and references, drawing as it does from a broad range of academic, governmental, and NGO sources. The book defines environmental law in very broad terms, from both a substantive and a process perspective, and it now includes topics such as endangered places and species, topics that were seldom part of those early courses.

In my view, the two most important aspects of this edition are its accessibility to students and its provocative and stimulating approach to the subject. Its accessibility flows from the clear, non-technical writing and the authors' capacity to present complicated ideas in a well-organized, straightforward manner. The book challenges students and readers to imagine emerging trends in domestic and international law and how those new developments might be used to secure a better environmental future.

This is a book that will make teaching environmental law and policy stimulating and enjoyable for both instructor and student. Professors Hughes, Lucas, and Tilleman have assembled a veritable who's who of Canadian environmental law teachers and lawyers as contributing authors and have overseen the development of a book that is an important contribution to both faculty and students. The third edition of this book is a clear signal that Environmental Law and Policy can take its place beside the best law teaching resources in Canada today.

D. Paul Emond
July 2003