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Case for reinterpreting the Canadian federal constitutional power over species at risk Young, Sarah Magill

Abstract

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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