Dayna Nadine Scott
This chapter reviews the key jurisprudential developments in relation to the division of powers in Canada, exploring how the shared jurisdiction over the “environment” created by sections 91 and 92 of the Constitution has historically shaped and continues to shape environmental law and policy. In addition to this federal-provincial struggle, the chapter considers the current trend towards local regulation of environmental matters according to the principle of “subsidiarity”, and the growing recognition of the “inherent jurisdiction” of Indigenous peoples. The contemporary dynamics are explored through two critical policy case studies highlighting barriers to environmental justice: safe drinking water on reserves, and climate change mitigation. The review reveals that Canada’s constitutional framework, although not solely responsible, has contributed to our collective failure to achieve a coordinated and effective set of environmental laws and policies, which translates to unequal distribution of environmental benefits and burdens on the ground.
Luanne A. Walton
This chapter traces the evolution of natural resources jurisdictional litigation from Confederation in 1867 until the present. Issues of resource ownership, legislative control, and environmental protection are all explored. In the years immediately following Confederation, the principal focus was establishing resource ownership for all provinces. Once that was established through the Natural Resources Transfer Agreements, legislative jurisdiction over resources became the issue. The caselaw from this period resulted in the resource amendment, which was the only change to the federal-provincial division of powers constitutionally entrenched by the Constitution Act, 1982. Issues of ownership and legislative jurisdiction were settled just in time for the courts to turn their focus to environmental protection. The author demonstrates the way in which litigation and negotiation through the years has led to the current conflict between environmental and resource protection, and the potential profits available in the fossil fuel sector, with special emphasis on pipelines.
This chapter examines the fiscal aspects of federalism as enshrined in the Indian Constitution. It gives an overview of the original structures of fiscal federalism in India, including assignments of spending and revenue and mechanisms and institutions for making transfers across different government levels. It reviews constitutional amendments that have occurred since the adoption of the Constitution, from changes in expenditure and revenue authorities to the creation of a tier of local governments. It also considers the process of amending the Constitution, with particular emphasis on the intellectual and political drivers of change, and proceeds with a discussion of how the various constitutional provisions and amendments have been implemented in practice. Finally, it looks at legal cases concerning the constitutionality of fiscal federalism in India at various times, paying attention to institutions governing intergovernmental transfers, the distinction between taxes and fees, and the scope of authority of different levels of government.
This article argues for the analysis of global and transnational environmental governance as administration to shed light on some important but neglected themes in international environmental law scholarship. First, it outlines several basic administrative concepts that call for analysis under such an approach (delegation, accountability, deliberation and reason giving, dynamic effects, general versus specific norms), then sets forth an analytical framework of five structures of administration in global governance, namely: distributed administration, international administration, inter-governmental network administration, hybrid administration, and private administration. Normative appraisal in administrative law is often conducted by reference to basic public law values, such as legality, proportionality, rationality, accuracy, effectiveness, efficiency, and respect for basic rights. Political theory inquiries into democracy and legitimacy in global governance may be given more applied purchase by distilling normative values and implicit trade offs, embodied in such legal-administrative components as transparency, notification, participation, reason giving, and review. Inflections in the design and operation of different administrative systems may have impacts on distributive outcomes, procedural fairness, and other elements of justice.