Foundations of Environmental Law (Fall 2023)

Foundational Principles of
Environmental Law
1. Introduction to Law;
2. Public Law including the Constitutional Law
and the Courts; and
3. the Law and Indigenous Peoples
© 2023 Will S. Randall II 1

Classification: Protected A
The Land We Are On
• Let’s acknowledge that the traditional land on which we,
at the U of A, are is in Treaty Six Territory.
• Let’s thank the diverse Indigenous Peoples whose
ancestors’ footsteps have marked this territory for
centuries, such as nêhiyaw, Dené, Anishinaabe, Nakota
Isga, and Niitsitapi, peoples.
• Let’s also acknowledge this as the Métis’ homeland and
the home of one of the largest communities of Inuit
south of the 60th parallel.
• Together let’s call upon all of our collective, honoured
traditions and spirits to work together to have an
enriching course.
Course Schedule and Syllabi
• Course Content
• Marking
– Foundational Exam 25%
– In-Class Presentation 20%
– Research Problem Proposal 10%
– Literature Review 30%
– Participation and Attendance 15%

About Me
Will Randall (he/him)
• Born and raised in Sebring, Florida, USA
• B.Sc. in Industrial and System Engineering
• Law degree and masters in environmental law
• Member of the Bars of Alberta and Texas
• Settled in Alberta in 2008 after law school
• Practised environmental, aboriginal, and public law
for Indigenous peoples, corporations, and the
Alberta Government.
• General Counsel to the Advisor Office for Alberta
Workers’ Compensation, an office of the Alberta
Government.
Who is Everyone?
1. How shall I address you? (name, pronouns, etc.)
2. What do you consider to be your hometown?
3. What is, was, or hope to be your work?
4. What do you hope to learn in this class?

A Bit of Theory: What Is a Law?
• Laws - rules made by a Laws:
body of elected • prohibit people from
representatives, their doing certain things and
delegates, or a court, punish those who break
using procedures them
prescribed by law
• Laws create rights and a
framework to ensure
activities of modern
society are carried out
honestly and effectively
Laws vs. Rules
Laws - compliance is Rules - compliance
required is more a matter of choice
• Rule of law:
governments and courts
must follow laws setting
out procedures for
applying & enforcing
laws
– Limited to activities
delegated to them

Law Types: Common & Statute
Common law: made by courts An activity may be the
– Courts and tribunals must follow subject of common and
precedent, or stare decisis statute law
• But a tribunal is not obligated to
– Under common law: a
follow its own precedents!
person harmed by a tort
Statute law: Legislation made by may seek damages or
elected representatives an injunction
– Codification: common law – Under statute law: the
included in statutes with little or government may
no change designate the same
– Statute law consists of statutes, activity as an offence
regulations, and bylaws

Law Types: Public & Private (1/2)
• Public law: deals with the • Private law: regulates how
structure or operation of individuals and corporations
government are required to treat each
– Governs relationship between other
individuals and government – Includes torts, contract law,
– Administrative law: branch of property law, and family law
public law regulating
executive branch • Both public and private law
 Responds to growing
can be statutory or common
number of administrative • A single law may have both
agencies public and private
components

Law Types: Public & Private (2/2)
– Subordinate legislation – Substantive law: deals
or delegated legislation: with the substance of a
law made by a body problem or issue
other than a legislature – Procedural law: gives
or municipal council, as procedures for applying
authorized by statute substantive law
• Valid only if it conforms
with the statute under • Examples
which it is passed

What is “environmental law”?
• Do most of you think of this?
• Really, it is more like this….

– C-SPAN: Senate Hearing on Environmental Justice

What is “environmental law”?
• Special body of rules which seek to
– protect?
– manage?
– improve?
the environment
• Rules include
– international agreements
– laws (statutes and regulations)
– court decisions
– administrative decisions

Canada’s Leaders
• Canada is a constitutional monarchy. Our Head of state: His Majesty
King Charles III
– Governor General represents His Majesty at the federal level in Canada, and
Lieutenant Governors represent His Majesty for the ten provinces
– To abolish the monarchy requires the agreements of Parliament and each of
the ten provinces.
• Our heads of government are the Prime Minister (federal level) and,
the Premier (provincial level)
– “Head of government” is who commands support of the most members of
Parliament or a provincial legislature.

Constitution of Canada
• The Constitution - supreme law of Canada
– similar in Principle to that of the UK
• But still quite different… The UK's Constitution Explained - TLDR Explains
– all laws must conform to it
• The Constitution of Canada - a series of documents,

(unlike the US constitution, which is one document).
– Canadian and UK Imperial Statutes that include:
• Constitution Act, 1867
• The Alberta Act, 1905, 4-5 Edw. VII, c. 3 (Can.)
– There are about 60 more!

Constitution The Courts:
- supreme law of Canada
 interpret and apply the
Constitution;
 interpret, apply, and

enforce laws;
Federal Parliament
- make laws  review decisions of
Prov. Legislatures administrative decision-
(statutes & regulations) - make laws makers;
(statutes & regulations)
 create and interpret
“common law”; and
 resolve disputes between

Administrative decision-makers parties.
- government employee or board
who makes decisions (e.g. WCB)
Constitutional Limits on Law-Making
Constitution Act, 1867 Constitution Act, 1982
– Distributes law-making powers – The Canadian Charter of Rights
to federal and provincial and Freedoms, being Part I:
governments based on subject – Sets out a list of fundamental
matter rights and freedoms belonging to
– Division of Powers, ss. 91-95: all citizens and persons in
» Section 91 – Federal Canada
Powers » Rights and freedoms are
» Sections 92 and 92A – not absolute!
Provincial Powers – Section 35 recognizes and affirms
Aboriginal rights
– Section 36 deals with
equalization
– Sections 37-54 deal with
amending the Constitution
But, who makes the laws?

The Legislative Branch makes laws!
Who is this?
– elected and appointed representatives
– Federal in Ottawa:
• Parliament = Members of Parliament (MPs) + Senate + His
Majesty represented by the Governor General
– Provincial in Edmonton, Halifax, Regina, Victoria, etc.:
• Legislature = Members of Legislative Assembly (MLAs) + His
Majesty represented by the Lieutenant Governor
What do they do?
– The legislature can pass any legislation within its constitutional
areas of competence.
– And I mean any….
Such as adopting the Gregorian
calendar for the British Empire:
Calendar (New Style) Act 1750

Or weights and measures in Canada…

Statutes
Stages:
1. Draft,
2. Public consultation,
– sometimes
3. Committees,
4. Tabled,
5. Three readings with debate,
6. Royal assent, and
7. Proclamation, now or in the future.
Creates framework for regulating a subject:
– sets out rules for an activity, subject matter
– provides rights & duties
– prohibitions & offences
– Also, may empower other bodies or persons to make decisions

The Three Levels of Government
Federal: matters of national concern in areas requiring national
uniformity
• Parliament: House of Commons (elected), & Senate (appointed); passes
federal laws
Provincial/Territorial: regional or local matters
• Provincial laws passed by provincial legislature or Legislative Assembly
Municipal: bylaws governing conduct within municipal boundaries
• not in the constitution; provincial creations
Overlapping or unclear law-making authority:

• Constitution can be ambiguous about which level of government has
authority to pass laws

Division of Powers
(Thanks to Craig Marlatt at https://www.craigmarlatt.com/canada/images&downloads/downloads_govt_division_of_powers.html)
Same in
Alberta as Just one level
in Ontario in Alberta, in
© 2023 Will S. Randall II most cases. 23
Environmental Division of Powers

Executive branch
What does the Executive Includes:
Branch do? – Cabinet Ministers (head
– Operates, implements & of a gov’t dept)
enforces the laws – Tribunals/boards
– Cabinet passes created by government
regulations & makes – Government employees
‘high level’ decisions (civil
– Tribunals, boards, & servants/bureaucrats)
government employees
make administrative
decisions

Regulations (legally binding)
Created by Cabinet or Minister
– Add substance to the broad rules that are in the statute
– Limited to authority granted by Statute
Made by same level of government that created
statute linked to them
• Federal: Canada Labour Code
• Provincial: WCA, OH&S Act
• Statute dictates type of regulations created, by
whom, & for what
• “Subordinate legislation”
– Not made by Parliament or Legislature
– Made under authority of statute
Policies
Created by Executive (often within a
department), to state how it will act in applying
or interpreting its laws & regulations, & its
objectives & standards
• Example: Alberta’s international education strategy : a
post-secondary approach to attracting and developing
global talent
– Not legally binding, unless adopted within statute,
regulation or an approval

Courts
Courts resolve disputes,
interpret laws, & strike
down laws passed without
proper authority
Province appointed
Federal government
judges:
appoints justices:
– Provincial Court of Alberta
– Alberta Courts of Kings’s
Bench & Appeal
– Federal Courts of Canada
– Supreme Court of Canada

Alberta,
Canada’s
Court Court of
King’s Bench
System
of Alberta

Administrative Tribunals
Classification: Protected A © 2023 Will S. Randall II 30

Administrative Tribunals
• Are part of the executive power
– Some are standing boards, some ad hoc
• Ad hoc boards may be like a royal commission
• Can be:
– Quasi-judicial - Decide issues between parties (e.g. EAB), or
– Administrative - issue licences (e.g. AER)
• Each has own process
– Generally less formal than court
– Video: CHRT – Hearing
• Decisions can be:
– final, OR
– a recommendation to the Minister who makes final decision
• Appeals may be possible or Judicial Review
Administrative Decision
Making Gone Awry
• Baker v. Canada (Minister of Citizenship and
Immigration),[1999] 2 SCR 817, at para 5
– Consideration of improper factors
– Anti-Black Racism.

The rights of Canada’s indigenous
peoples are an essential
component of Public Law in
Canada!
To understand environmental and natural
resource law, you need to understand
indigenous peoples and the law.

Terminology (courtesy of UBC: See: https://tinyurl.com/ybffyjr3)
Many Indigenous people prefer to identify themselves by specific
local terms based on family and community location and
traditional names.
• “Aboriginal” is the least contentious and most inclusive general
term currently used in Canada. In most conversations, it is
preferable to “Indian” or “Native.”
– In many contexts, the use of “Indian,” may be viewed as offensive.
• “First Nations” is a widely accepted term and may be used
sometimes generally, but is increasingly used specifically for First
Nations—reserve communities and the people living in them or
closely associated with them. It is sometimes used more generally
as a contemporary replacement for “Indian,” but may not always be
taken to apply to non-status Indians.
• “Métis” may sometimes be used to describe any person of mixed
European and Indian ancestry. That definition is, however,
frequently challenged by Métis people who trace their own lineage
to particular historic Métis communities. The broader usage to
describe general mixed ancestry is not supported by current
Canadian case law. 34 © 2023 Will S. Randall II
Diversity of Indigenous Peoples
There are more than 630 First Nation
communities in Canada, which represent more
than 50 Nations and 50 Indigenous languages.
[Video: 11 Facts You Didn't Know About
Indigenous Languages Spoken in Canada]

Indigenous Population
The 2021 Census counted 1.8 million Indigenous people,
accounting for 5.0% of the total population in Canada, up from
4.9% in 2016
– First Nations (1,048,405 people; 40% live on-reserve lands)
– Metis (624,220 people)
– Inuit (70,545 people; 69% live in Inuit Nunangat)
• The Indigenous population in Canada is one of the largest
among countries that share a similar colonial history
– More than double the number of Aboriginal and Torres Strait
Islander people living in Australia (812,728) in 2021 or the
number of Maori living in New Zealand (775,836) in 2018.
– In 2021, Indigenous people are a larger share of Canada’s
population than in Australia (3.2%) but lower than in New
Zealand (16.5%).
Western Canada
About 55% of Indigenous people live in Western Canada
• In 2021, there were 284,465 Aboriginal people in
Alberta, which is a 12.2% increase from 2016.
– 145,645 were First Nations (10.7% increase over 2016)
– 127,475 were Métis (11.5% increase over 2016)
– 2,945 were Inuit (18.3% increase over 2016)
• Indigenous people were more likely to live in a large
city in 2021 than in 2016.
– In 2021, Winnipeg had the largest Indigenous population at
102,080 people, followed by Edmonton (87,605) and
Vancouver (63,345)
• See Statscan: https://www150.statcan.gc.ca/n1/daily-quotidien/220921/dq220921a-eng.htm

© 2023 Will S. Randall II
39
Doctrine of Discovery
The Doctrine of Discovery allowed the Crown to claim
sovereignty over Indigenous Peoples and land by
holding that Indigenous Peoples cannot claim
ownership of land. It concedes a restricted title
(‘Aboriginal title’) to occupy and use land.
– The Doctrine of Discovery emanates from a series of
Papal Bulls and extensions, originating in the 1400s.
Discovery was used as legal and moral justification for
colonial dispossession of sovereign Indigenous peoples,
including First Nations in what is now Canada. During the
European “Age of Discovery”, Christian explorers
“claimed” lands for their monarchs who felt they could
exploit the land, regardless of the original inhabitants.
Terra Nullius
Doctrine of Terra Nullius
• Latin for “land belonging to no one”
– principle sometimes used in international law to describe territory
that may be acquired by a state's occupation of it.
– Justified on the basis that aboriginal people has not ‘improved’ the
land in the European sense by demarcating it for farming or cities.
• Joseph Trutch, the first Lieutenant Governor of British
Columbia, insisted that First Nations had never owned land,
and thus could safely be ignored.
• It is for this reason that most of British Columbia remains unceded land.
• This concept was also applied in Australia which did not
move away from it until the High Court of Australia rejected
it in Mabo and others v Queensland (No 2) in 1992
Royal Proclamation of 1763
• Issued after Britain wo by King George III in 1763 to officially
claim British territory in North America after the Seven
Years War.
• The Royal Proclamation explicitly states that Aboriginal title
has existed and continues to exist, and that all land would
be considered Aboriginal land until ceded by treaty.
• See also: Doctrine of Discovery
– The Proclamation forbade settlers from claiming land from the
Aboriginal occupants, unless it has been first bought by the
Crown and then sold to the settlers.
– The Royal Proclamation further sets out that only the Crown can
buy land from First Nations.
• See: https://tinyurl.com/yaw5wc4s
• See also: The American War of Independence
Truth and Reconciliation Commission
45. We call upon the Government of Canada, on behalf of all Canadians, to
jointly develop with Aboriginal peoples a Royal Proclamation of
Reconciliation to be issued by the Crown. The proclamation would build on
the Royal Proclamation of 1763 and the Treaty of Niagara of 1764, and
reaffirm the nation-to-nation relationship between Aboriginal peoples and
the Crown. The proclamation would include, but not be limited to, the
following commitments:
1. Repudiate concepts used to justify European sovereignty over Indigenous lands and
peoples such as the Doctrine of Discovery and terra nullius.
2. Adopt and implement the United Nations Declaration on the Rights of Indigenous
Peoples as the framework for reconciliation.
3. Renew or establish Treaty relationships based on principles of mutual recognition,
mutual respect, and shared responsibility for maintaining those relationships into
the future.
4. Reconcile Aboriginal and Crown constitutional and legal orders to ensure that
Aboriginal peoples are full partners in Confederation, including the recognition and
integration of Indigenous laws and legal traditions in negotiation and
implementation processes involving Treaties, land claims, and other constructive
agreements.
Aboriginal Title
Indigenous peoples hold the right to the land itself based on
historical occupation of Canada prior to European contact
– Judicial Committee of the Privy Council rejected aboriginal
titled in 1888 in St Catherines Milling and Lumber Company v
The Queen in favour of the doctrine of discovery
• Calder v BC (1973) was the first recognition that there
existed an aboriginal title to lands in Canada prior to the
Royal Proclamation of 1763
– Elucidated in Delgamuukw v British Columbia, [1997] 3 SCR
1010
• R v Guerin (1984) acknowledged that Canada (the federal
government) has a trust-like relationship, or “fiduciary
duty” towards First Nations, specifically in regards to
reserve lands.
– Stems from the Sui Generis nature of Aboriginal Title
Treaties
• In Alberta -“ceded and surrendered” through treaties entered
into by Canada and First Nation leaders in the late 1800s.
– The nature of surrender under treaties is a topic of debate.
• Treaties 6, 7, and 8 Apply in Alberta
– 45 First Nations
– 140 reserves
– 812,771 ha of reserve land
– Most common languages are Blackfoot, Cree, Chipewyan, Dene,
Sarcee, and Nakoda Sioux
– Treaties date from the 19th century which makes interpretation
difficult
• Modern treaty making process in the north and in British
Columbia
Treaty Rights
• Treaty rights extinguished aboriginal title in exchange for a
number of benefits and commitments from Canada
– And Her Majesty the Queen HEREBY AGREES with the said
Indians that they shall have right to pursue their usual vocations
of hunting, trapping and fishing throughout the tract
surrendered as before described, subject to such regulations as
may from time to time be made by the Government of the
country, acting under the authority of Her Majesty, and saving
and excepting such tracts as may be required or taken up from
time to time for settlement, mining, lumbering, trading or other
purposes.
• Certain academics and activist do not agree with the characterization of
the land being surrendered.
• Not subject to “Van der Peet” and “Delgamuukw” tests,
which are specific to non-treaty lands.
Constitutional Framework

– Section 91 gives powers over Indians and “lands reserved
for Indians” to the Federal government.
• Leaving this at the federal level is similar to the approach of
other British settler societies.
– s. 35: “recognized and affirmed” “existing aboriginal and
treaty rights”

Constitution Act, 1982, section 35
Recognition of existing aboriginal and treaty rights
– (1) The existing aboriginal and treaty rights of the
aboriginal peoples of Canada are hereby recognized and
affirmed.
Definition of “aboriginal peoples of Canada”
– (2) In this Act, “aboriginal peoples of Canada” includes the
Indian, Inuit and Métis peoples of Canada.
• Prior to 1982, aboriginal rights could be extinguished by acts
of government
– Section 35(1) limits government interference -
government may only restrict aboriginal rights if justified
in doing so
Justified Infringement of Rights
• R. v. Sparrow (1990, SCC)
– Ronald Sparrow – member of Musqueam band – fished with net
longer than permitted by band’s Fisheries Act fishing licence
– SCC held: Sparrow was exercising an inherent aboriginal right
• acquitted
• R v. Sparrow was a precedent-setting decision made by the
Supreme Court of Canada that set out criteria to determine
whether governmental infringement on Aboriginal
rights was justifiable, providing that these rights were in
existence at the time of the Constitution Act, 1982. This
criteria is known as “the Sparrow Test.”
– First case to deal with this under section 35

Aboriginal Cultural Practices
• Use the “Van der Peet test” to determine aboriginal
cultural rights
• R. v. Van der Peet (1996, SCC)
– Dorothy Van der Peet – member of Sto:lo Nation – charged
with selling salmon caught under Indian fish food licence
– Defence: was exercising an inherent aboriginal right
– SCC held: commercial selling of fish not part of distinctive
culture of Sto:lo
• The Supreme Court’s ruling and the subsequent adoption
of the Van der Peet test are regarded as problematic by
critics who point out that, by further defining Aboriginal
rights, the test circumscribes the scope of Aboriginal
rights as set out by the previous test outlined in R. v.
Sparrow.
Aboriginal Cultural Practices
• From Van der Peet
– Aboriginal and treaty right to hunt, fish, trap, and
gather for food, ceremonial, and medicinal
purposes.
• Rights judged at the time of first European contact for
Indians
• Rights judged at the time of effective European control
for Metis people.

Duty to Consult
• The duty to consult is grounded in the honour of the
Crown. The duties of consultation and, if required,
accommodation form part of the process of
reconciliation and fair dealing.
– The duty arises when the Crown has actual or
constructive knowledge of the potential existence of
Aboriginal rights or title and contemplates conduct that
might adversely affect those rights or title.
• The extent of the duty of consultation is fact specific.
The depth or richness of the required consultation
increases with the strength of the prima
facie Aboriginal claim and the seriousness of the
potentially adverse effect upon the claimed interest.
– Haida Nation v BC (Minister of Forests), 2004 SCC 73
Crown Consultation
• Consultation and accommodation are not a veto, but the
jurisprudence is sufficiently unclear that it constitutes a de
facto veto.
• The duty to consult with Indian bands arises when
contemplating an action that may adversely affect the
Indian band’s exercise of its aboriginal or treaty rights.
– See Haida Nation v BC (Minister of Forests), 2004 SCC 73, for
unceded lands and see Mikisew Cree, case regarding the
construction of a winter road in Wood Buffalo National Park, for
treaty lands.
• Potential requirement to accommodate aboriginal
demands
– Owed by the Crown
• May be delegated to the industry proponent
• Most consultation in Alberta is completed by industry
Northern Gateway… Poor Consultation

Northern Gateway… Poor Consultation
• Canada offered only a brief, hurried and inadequate
opportunity exchange and discuss information and to
dialogue. The inadequacies—more than just a handful and
more than mere imperfections—left entire subjects of
central interest to the affected First Nations, sometimes
subjects affecting their subsistence and well-being, entirely
ignored. Many impacts of the Project were left undisclosed,
undiscussed and unconsidered. It would have taken Canada
little time and little organizational effort to engage in
meaningful dialogue on these and other subjects of prime
importance to Aboriginal peoples. But this did not happen.
– Gitxaala Nation v. Canada, 2016 FCA 187

TMX… Getting Better Consultation

Trans Mountain
• The Federal Court of Appeal found that parts of the
government's consultation requirements were met and that it
had improved compared to Northern Gateway
• It wasn't until the last phase of the years-long review process
where the court found Ottawa fell short.
– Similar to the approval process of Northern Gateway, the government
used a multi-phased consultation framework to guide its decision-
making. The court found there wasn't a problem with the
framework the federal government used, despite the appellant First
Nations' opposition to the framework itself.
– But, "at the last stage of the consultation process prior to the
decision of the Governor in Council … Canada's efforts fell well short
of the mark set by the Supreme Court of Canada," states the ruling.
– The Crown appeared reluctant to deviate from what the NEB already
decided on the project, and lastly found that Ottawa had come up
with an "erroneous view that it lacked the ability to impose additional
conditions."

Trans Mountain
• Canada completed consultation again, and then
Cabinet re-approved the TMX expansion after
Canada bought the pipeline.
• The court challenges appear to have ended
– It’s expected to cost approximately C$21.4 billion
– Mechanical completion of the Project is anticipated to
occur in the third quarter of 2023

Metis People
Metis people have aboriginal rights but not treaty rights!
– Rights are judged at the time of effective European control
of an area
– The date of effective European control in Alberta varies
• Some argue it was as early as the mid-19th century while others
argue it was with the establishment of an RCMP Detachment in Ft.
McMurray in the 1930s.
• Metis rights are collective in nature and set out in
Powley
• Alberta has a comprehensive system of Metis
Settlements created pursuant to provincial statutes.
They are akin to municipalities and are reserved for
Metis people.

Alberta Natural Resources Transfer
Act, 1930
• Grants control over non-renewable natural
resources to Alberta from Canada
– Some First Nations contend that the transfer of these
resources to Albert without consultation violated the
spirit of the treaties
• Alberta is obligated to transfer lands to Canada so
that Canada can fulfil is obligations to Indians
under the treaties
• Indians are guaranteed the right to take game
and fish for food on unoccupied Crown lands

UNDRIP
• Canada and Alberta support the implementation of the
United Nations Declaration on the Rights of Indigenous
Peoples (“UNDRIP”) [Video: United Nations: Protecting the
rights and well-being of indigenous peoples]
– To ratify UNDRIP would likely be incompatible with the common
law in Canada
• To implement UNDRIP, the federal government has
proposed these ten principles:
– Principles respecting the Government of Canada's relationship
with Indigenous peoples
• Provincial governments have indicated that implementing these
principles could constitute a change of the Constitution of Canada.
– Will’s Opinion: this means that they will likely become one of dozens of
documents on renewing the relationship that go nowhere. Constitutional
change will involve provinces making new demands.

What You Have Learned
• The foregoing constitutes the foundational
legal principles to understand the subject
matter going forward.
• The remainder of this course will consider
specific topics in natural resources and
environmental law.


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Foundational Principles of

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• Really, it is more like this….

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• The Constitution of Canada - a series of documents,

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 interpret, apply, and

 resolve disputes between

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Overlapping or unclear law-making authority:

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• Constitution Act, 1867

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