UBC Theses and Dissertations
Case for reinterpreting the Canadian federal constitutional power over species at risk Young, Sarah Magill
This thesis examines the potential for reinterpreting the Canadian Constitution Act, 1867 as a possible avenue for improving the effectiveness of species-at-risk protection in order to ensure that Canada meets its international commitment to the Convention on Biological Diversity. I also argue that Canada's federalist structure, and correspondingly divided jurisdiction, currently impedes effective species-at-risk protection and change is needed. First, the context of the issue is examined by way of a literature review. I address the role of Canada's constitution and constitutional structure in species-at-risk protection, and the consequent impacts that a divided jurisdiction has on relevant legislation. I explain the dominant role that the provincial and territorial governments currently play in species-at-risk protection, and explain the more limited federal role. I also address the issue of constitutional interpretation, and argue that the current constitutional interpretation should reflect changing societal values and environmental circumstances. Second, is a review of the existing species-at-risk legislation on federal and provincial levels in Canada. I provide an assessment of this legislation, and show that provincial performance is deficient and that the federal government's legislation is more comprehensive. Third, a comparative case study analysis is performed, using the case of another Commonwealth nation, Australia, to demonstrate a constitutional mechanism and justification for greater federal involvement in species-at-risk protection. The Australian case correlates well to the Canadian situation because Australia has a similar constitutional structure to Canada, and like the Provinces, the Australian States have jurisdictional control over species-at-risk. I then use these three components to argue for increased federal jurisdiction over species-at-risk protection in Canada. There is the constitutional means for this shift to occur; there is evidence that the current constitutional interpretation is not functioning to provide effective species-at-risk protection; and there is evidence from the Australian case study that a reinterpretation of constitutional responsibilities is one way for Canada to improve species-at-risk protection and thereby meet the commitments it made under the Convention on Biological Diversity.
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