Public Environmental Rights : A New Paradigm for Environmental Law?

The Supreme Court of Canada's affirmation of the existence of public environmental rights in Canadian Forest Products v. B. C. is the latest in a long line of authority·recognizing the existence of public rights in respect of the natural environment. These rights form the basis for a new way of looking at environmental laws. While the courts and academic commentators have tended to view environmental law as a modern phenomenon, and environmental legislation as enacted from a blank legal slate, the existence of common law public environmental rights suggests another view. If public environmental rights are viewed as central to environmental law, then environmental statutes must be interpreted as affirming these pre-existing rights. Far from being a new constraint on land owners and other private actors, this new paradigm sees environmental laws as expanding the legal tools available to enforce legal constraints which existed all along. This approach is supported by a body of case law which affirms that legislation must, absent clear legislative intent, be interpreted in favour of existing public rights. In addition, the emergence of the public trust doctrine in Canadian law would provide further support for this narrative. Adopting such an approach to environmental law puts both environmental legislation and the public's rights on a stronger legal footing, and could form the basis for a major shift in how environmental law is understood in Canada.