Environmental Law in the 1980s: A New Beginning

Merritt Clifton was an environmental journalist and lived in Brigham, Quebec.

Eighteen of Canada’s most experienced environmental advocates exchange views on how best to reform environmental law. Colloquium participants seem unanimously agreed that federal environmental law as presently administered is chaotic and usually inapplicable. This is partly because neither traditional common law nor criminal law recognizes the nature of environmental offenses, where damages are usually cumulative rather than specific, affecting the general habitat or quality of life rather than an individual victim/plaintiff. Most agree that a new branch of jurisprudence must be established, based upon an environmental ethic apart from civil law, which is concerned strictly with property rights, and criminal law, which is concerned with direct infringements upon life and liberty.

A reformed environmental code must also recognize, all agree, that while present statutes are written as quasi-criminal law, enforcement has become a matter of negotiation and reconciliation. Criminal-type sanctions are politically popular but unenforceable because of the difficulty of fixing blame and because merely imposing criminal penalties does not resolve pollution problems — for instance, jailing an executive won’t directly halt toxic emissions by his employer. Because the negotiation process is not presently recognized in law, though virtually universal, the procedures are unnecessarily prolonged. Nonetheless, haphazardly recognizing that negotiation has superseded application of criminal sanctions, judges have further weakened environmental law by admitting defenses of intent. This shifts the burden of proving guilt even more heavily onto environmental law enforcers, who now must prove negligence as well as the fact of illegal pollution. Few enforcers have the experience or budget to do so.

The increasingly important issue of scientific vs. legal proof is discussed at length. Neither criminal nor civil law admits “reasonable certainty” as substitute for fact. However, absolute scientific proof is hard to come by in the balance of ecological factors — particularly when a prosecution is based upon damage that could happen in the future. Reformed environmental law must recognize this, while judges must be made “scientifically literate.” One solution might be to establish “science courts,” or a special branch of the judiciary specializing in environmental cases.