Restoring Legitimacy to Environmental Governance in Manitoba
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Restoring Legitimacy to Environmental Governance in Manitoba: The Need for Meaningful Public Participation by Heather Fast A Thesis submitted to the Faculty of Graduate Studies of The University of Manitoba In partial fulfillment of the requirements of the degree of MASTER OF LAWS Robson Hall, Faulty of Law University of Manitoba Winnipeg Copyright @ 2018 by Heather Fast Abstract This thesis uses the concept of legitimacy, a measure of the public’s support of government operations, as a lens through which to approach environmental legal reform in Canada. An analysis of the legitimacy of Manitoba’s environmental regulatory regime as it pertains to the hydroelectric industry is undertaken, with an emphasis on opportunities for public participation. As a result, it is suggested that environmental governance in Manitoba has suffered a significant loss of legitimacy. This indicates that environmental reforms are needed to support meaningful public participation. Based on the components of meaningful public participation recognized by Canadian legal scholars, legal reforms are identified that could be enacted in Manitoba to restore lost legitimacy. It is suggested that the most effective means of restoring legitimacy would be to focus on reforms that clarify the environmental obligations of government and allow citizens to more meaningfully participate in the enforcement and review of environmental protection measures. i Acknowledgements I would like to thank the many people who assisted me during the past year. I am particularly grateful to my advisor, Brenda Gunn, for the many hours she spent editing my thesis drafts. You really helped push my work to the next level. I am also grateful to my reviewers who provided me with valuable feedback. I would also like to thank my colleagues from the Public Interest Law Centre and Dr. Patricia Fitzpatrick from the University of Winnipeg for their ongoing support of my environmental law goals. Last, but not least, I would like to thank my friends and family for always being there for me, no matter what I choose to do. ii Dedication To Mary-Ann, Tim and Phil. I couldn’t have done this without you. iii Table of Contents Chapter 1: Canadian Environmental Governance and the Need for Reform .................................. 1 Chapter 2: Legitimacy and the Importance of Meaningful Public Participation .......................... 12 2.1) Defining Legitimacy .......................................................................................................... 13 2.2) Marshall and Goldstein’s “Environmental Legitimation Crisis” ...................................... 14 2.3) Meaningful Public Participation in Canadian Environmental Governance....................... 21 2.4) Conclusion ......................................................................................................................... 23 Chapter 3: Case Study – The Legitimacy of Environmental Governance in Manitoba ............... 25 3.1) The Governance of the Hydroelectric Industry in Manitoba ............................................. 27 3.2) Are Public Participation Opportunities in Manitoba Meaningful? .................................... 43 3.3) Is Manitoba Experiencing an Environmental Legitimation Crisis? .................................. 51 3.4) Conclusion ......................................................................................................................... 61 Chapter 4: Restoring Legitimacy: Promising Legal Approaches ................................................. 65 4.1) Determining the “Public Interest” ..................................................................................... 67 4.2) Public Access to the Courts ............................................................................................... 77 4.3) The Public Trust Doctrine ................................................................................................. 85 4.4) Environmental Human Rights ........................................................................................... 90 4.5) Conclusion ....................................................................................................................... 101 Chapter 5: Conclusion................................................................................................................. 105 Bibliography ............................................................................................................................... 110 iv List of Figures Figure 2.1: Crisis Systems Model………………………………………………………………..16 Figure 2.2: Natural Resource Management Systems Model………………………………….….17 Figure 3.1: Manitoba Hydroelectric Power Governance Systems Model………………………..28 v Chapter 1: Canadian Environmental Governance and the Need for Reform Canadian environmental law, in its modern form, emerged after World War II as the negative environmental effects of natural resource development became increasingly acknowledged.1 However, this does not mean that there was a complete lack of legal responses addressing environmental protection before this time. Instead, what existed was a piecemeal system of legal mechanisms focused on conservation and pollution control. For example, Canada’s national parks system was officially created in 1911 with the enactment of the Dominion Forest Reserves and Parks Act.2 Prior to this enactment, several national parks had already been established under sections of the Dominion Lands Act as early as 1885.3 The Rocky Mountains Park Act, enacted in 1887 was the first Parks Act to provide for the preservation of the landscape and wildlife.4 Despite the enactment of these early protective legal mechanisms, it was not until the 1960s and 1970s that the development of a more comprehensive response to environmental issues occurred in Canada.5 The modern environmental regulatory regime developed over the last fifty years is intended to ensure that air, land, water and biological diversity in Canada is conserved and protected.6 Of particular importance to Canada’s modern environmental regulatory regime was the development of legal mechanisms that required the assessment of the construction and 1 Stepan Wood, Georgia Tanner and Benjamin J. Richardson, “What Ever Happened to Canadian Environmental Law?” (2010) 37 Ecology L.Q. 981, at 994 [Wood, Tanner and Richardson]. 2 Parks Canada, “Archives: Canada Creates World’s First National Parks Service” (2011), online: <https://www.pc.gc.ca/apps/cseh-twih/archives2_E.asp?id=851>; Canada’s Historic Places, “Creating Canada’s National Parks”, online: <http://www.historicplaces.ca/en/pages/13_canadas_national_parks.aspx>. 3 Under s. 26 of the Dominion Lands Act, the lands surrounding the mineral hot springs at Banff was recognized as reserved from “sale, settlement or squatting”. [Parks Canada, A History of Canada’s National Parks Volume II: Chapter 4, National Parks Administration (1885 to 1973) (Government of Canada, 1977), online: <http://parkscanadahistory.com/publications/history/lothian/eng/vol2/chap4.htm>] 4 Parks Canada, ibid. 5 Andrew Green, “Norms, Institutions, and the Environment” (2007) 57 U. Toronto L.J. 105, at 110. 6 David R. Boyd, Unnatural Law: Rethinking Canadian Environmental Law and Policy (Vancouver, BC: UBC Press, 2003), 12. [Boyd, 2003] 1 operation of projects that could adversely affect the surrounding ecosystems.7 In 1973, the federal Cabinet formally committed to reviewing the environmental effects of federal decisions, which eventually led to the adoption of the Environmental Assessment and Review Process Guidelines Order (EARPGO) in 1984 and later, in 1995, the Canadian Environmental Assessment Act.8 At the provincial level, the development of environmental legal mechanisms followed a similar trajectory, with piecemeal legislation existing prior to the enactment of more comprehensive regulatory frameworks beginning in the 1960s and 1970s.9 Since the 1970s, Canada’s environmental governance framework has developed into a complex body of law.10 Although at some points in history Canada has been viewed as a leader in environmental law reform and recognized internationally for a “progressive stance on environmental matters”, our environmental reputation has become tarnished.11 Canada is now seen as a “laggard in both policy innovation and environmental performance, known for inaction and obstruction” on such issues as climate change and the recognition of Indigenous environmental rights.12 Today, the need for reform of Canada’s environmental governance 7 Manitoba Law Reform Commission, Manitoba’s Environmental Assessment and Licensing Regime under The Environment Act (2015) at 30 [MLRC]; Penny Becklumb and Tim Williams, Canada’s New Federal Environmental Assessment Process, (2012: Library of Parliament), at 1, online: <http://www.parl.gc.ca/Content/LOP/ResearchPublications/2012-36-e.pdf>. 8 Canadian Environmental Assessment Act, S.C. 1992, c. 37. Note: Sections 61 to 70, 73, 75 and 78 to 80 came into force December 22, 1994, and Sections 1 to 60, 71, 72, 74, 76 and 77 came into force January 19, 1995; Canadian International Development Agency, Implementation of the Canadian Environmental Assessment Act, (2000: Government of Canada), at 9, online: <http://www.acdi-cida.gc.ca/inet/images.nsf/vLUImages/Performance%20 Review%20Branch/$file/ImplementationofCanadianEnvironmentalAssessmentAct(CEAA).pdf>; Canadian Environmental Assessment Agency, Frequently Asked Questions: Milestones in the History of Federal Environmental Assessment: Cabinet Policy, online: <http://www.ceaa-