TRANSBOUNDARY ENVIRONMENTAL ASSESSMENTS: THE LEGAL DIMENSION

Abstract

Provincial projects with transboundary and interjurisdictional impacts have been the focus of numerous legal battles in the last few years in Canada. The primary issue in these cases has been the role the federal government should play in assessing the environmental impacts of such projects. So far, the courts have said that the federal government has authority which must be exercised. This view has created vocal opposition in most provinces and pushed the reluctant federal government into assessing the impacts of projects that are nearly built, contrary to the principles of environmental assessment. This situation has created duplication and inefficiency and undermined the credibility of the environmental assessment process. In legal terms, the federal government has a responsibility to act. The Canadian Constitution divides authority over the environment between the provinces and the federal government so that impacts on fisheries, native interest, and international or interprovincial relations are within federal competence. In addition, international law imposes duties on Canada to asses potential international impacts. Thus, the issue that should be addressed is not whether the federal government should be involved with projects with transboundary or interjurisdictional impacts, but how to ensure the legally-mandated federal involvement is coordinated with provincial environmental assessment so that both the law and principles of environmental assessment can abe complied with.