Canadian law as a mechanism for the implementation of sustainable development: an introduction.

Publication: Journal of Business Administration and Policy Analysis

Publication Date: 01-JAN-02

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COPYRIGHT 2002 Journal of Business Administration

INTRODUCTION

Although the term "sustainable development" has been defined in numerous ways, (1) the concept is rooted primarily in the concern for ensuring intergenerational equity. Simply stated, the goal of sustainable development, as defined in the Brundtland Report, is to meet "the needs of the present without compromising the ability of future generations to meet their own needs." (2) Accordingly, sustainable development has been described as promoting an economic system that allows present generations access to the "dividends" of resources while maintaining and improving the "asset base" for the benefit of subsequent generations. (3) Consequently, the concept is said to require that global economic efforts focus on satisfying the current population's needs while recognizing that the Earth's capacity to accommodate development is finite and that there exists a "moral imperative" not to deprive future generations of the resources required to ensure their well-being. (4)

Notwithstanding that the objectives of sustainable development include reconciling both social equity and environmental quality with economic development, this paper will focus primarily on the latter? Following a summary of a number of the principles considered necessary to the implementation of sustainable development, the Canadian approach to sustainable development will be introduced. This introduction will include a brief summary illustrating, in general, how sustainable development has been incorporated into, and is addressed by, pollution control statutes, laws allocating access to or exploitation of natural resources and environmental impact assessment legislation. In addition, three legislative initiatives will be outlined--The Sustainable Development Act6 enacted by the province of Manitoba, the Canada Foundation for Sustainable Development Technology Act (7) and the 1995 amendments to the federal Auditor GeneralAct. (8) Although this legislation will not be critiqued, the Canadian approach to sustainable development will be briefly considered in light of those legal principles generally identified as necessary to its implementation. Finally, the outcome of some of the federal government's efforts to foster sustainable development will be mentioned.

SUSTAINABLE DEVELOPMENT PRINCIPLES

The following is a list of a number of the principles that have been identified internationally as necessary to the implementation of sustainable development:

(a) maintenance of ecosystems and ecological processes essential for the functioning of the biosphere, preservation of biological diversity and observation of the principle of optimum sustainable yield in the use of renewable resources and ecosystems; (9)

(b) ensuring that conservation is treated as an integral part of the planning and implementation of development activities; (10)

(c) establishment of adequate environmental protection standards and monitoring of changes in, and publishing relevant data on, environmental quality and resource use; (11)

(d) enactment of effective environmental legislation; (12)

(e) ensuring that environmental impact assessments are undertaken for those proposed activities that may significantly affect the environment or use of a natural resource; (13)

(f) informing all persons likely to be significantly affected by a planned activity and granting them equal access and due process in administrative and judicial proceedings; (14) and

(g) promoting the internalization of environmental costs and use of economic instruments while taking into account the "polluter pays principle"--with due regard to the public interest and without distorting international trade and investment. (15)

THE CANADIAN APPROACH TO SUSTAINABLE DEVELOPMENT

Introduction

The approach to environmental regulation in Canada is said to be characterized by consensus, consultation and negotiation as opposed to prosecution and litigation. (16) This manner of environmental regulation has been referred to as the "Canadian Experiment." (17) The following three characteristics have been identified as making the Canadian approach distinctive: (1) government leadership is the key impetus; (2) it is collaborative, being based on voluntary partnerships and citizen initiative;18 and (3) it is comprehensive in that it is driven by sustainable development and is intended to address all levels of society and issues relevant to the environment. (19)

Pursued since 1989, this "experiment" was a response to a widely recognized need to address the perception that Canada's environmental legislation and policies were inefficient, public involvement was too limited and insufficient attention was being paid to non-business interests. (20) Critics generally argued that the regulatory regime was "too reactive (solving problems rather than preventing them), too sectoral (focusing on pollution sources or polluting industries, with little intersectoral coordination), and too much orientated towards projects rather than processes such as decision making." (21) Moreover, the approach was seen as piecemeal, resulting in inconsistent and incomplete regulation and implementation, with too much emphasis on regulatory standards to the near exclusion of other possible compliance mechanisms. (22) Government itself was viewed having a negative impact on the environment through, for example, its own operations and activities and its policies and tax breaks that accelerated the unsustainable exploitation of renewable and non-renewable resources. (23) Ultimately, the federal government initiated reform by officially endorsing the philosophy and conclusions of the Brundtland Report- thus engaging in what has been described as the "first large-scale implementation of the principles" outlined in the report, (24)

In addition to arguably being the first country to widely implement sustainable development principles, Canada has been described as a leader in advocating and planning for sustainable development. (25) According to Environment Canada, sustainable development offers "the only acceptable and workable way" of addressing the growing gap between the human demands placed on the environment and the ability of the environment to satisfy these needs. (26) Sustainable development is generally defined in Canada as "the implementation of a process that integrates environmental, economic and social considerations into decision making." (27) All three elements are seen as interdependent and mutually reinforcing and, ideally, these elements are to be integrated such that environmental, societal and economic signals point in the same direction and trade and environmental policies are mutually supportive. (28) The concept in Canada, being based on the articulation of sustainable development in the Brundtland Report, "does imply limits--not absolute limits, but limitations imposed by the present state of technology and social organization on environmental resources and by the ability of the biosphere to absorb the effects of human activities." (29) Ultimately, the underlying premise of this interpretation is that sustainable development "is not a fixed state of harmony, but rather a process of change in which the exploitation of resources, the direction of investments, the orientation of technological development, and institutional change are made consistent with future as well as present needs." (30)

The Incorporation of Sustainable Development Principles into Environmental Law

Pollution Control Statutes

The first generation of environmental laws enacted by the federal and provincial governments (31) in the early 1970s included statutes for the control of pollution. (32) The primary objective of these laws was to regulate the introduction of waste into the environment. (33) Efforts were made to identify sources of pollution and regulate, through the implementation of a permit system, the quantity and quality of waste released from these sources into the environment. (34) In essence, these statutes were intended to minimize the amount of waste discharged onto land or into air or water, the theory being that the environment...

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