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Environment - Precautionary Principle

. 114957 Canada Ltée (Spraytech, Société d'arrosage) v. Hudson (Town)

In 114957 Canada Ltée (Spraytech, Société d'arrosage) v. Hudson (Town) (SCC, 2001) the Supreme Court of in an historic environmental case, considered the international 'precautionary principle' where a Quebec town by-law restricting pesticide use to non-cosmetic purposes:
30 To conclude this section on statutory authority, I note that reading s. 410(1) to permit the Town to regulate pesticide use is consistent with principles of international law and policy. My reasons for the Court in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, at para. 70, observed that “the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review”. As stated in Driedger on the Construction of Statutes, supra, at p. 330:
[T]he legislature is presumed to respect the values and principles enshrined in international law, both customary and conventional. These constitute a part of the legal context in which legislation is enacted and read. In so far as possible, therefore, interpretations that reflect these values and principles are preferred. [Emphasis added.]
31 The interpretation of By-law 270 contained in these reasons respects international law’s “precautionary principle”, which is defined as follows at para. 7 of the Bergen Ministerial Declaration on Sustainable Development (1990):
In order to achieve sustainable development, policies must be based on the precautionary principle. Environmental measures must anticipate, prevent and attack the causes of environmental degradation. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
Canada “advocated inclusion of the precautionary principle” during the Bergen Conference negotiations (D. VanderZwaag, CEPA Issue Elaboration Paper No. 18, CEPA and the Precautionary Principle/Approach (1995), at p. 8). The principle is codified in several items of domestic legislation: see for example the Oceans Act, S.C. 1996, c. 31, Preamble (para. 6); Canadian Environmental Protection Act, 1999, S.C. 1999, c. 33, s. 2(1)(a); Endangered Species Act, S.N.S. 1998, c. 11, ss. 2(1)(h) and 11(1).

32 Scholars have documented the precautionary principle’s inclusion “in virtually every recently adopted treaty and policy document related to the protection and preservation of the environment” (D. Freestone and E. Hey, “Origins and Development of the Precautionary Principle”, in D. Freestone and E. Hey, eds., The Precautionary Principle and International Law (1996), at p. 41. As a result, there may be “currently sufficient state practice to allow a good argument that the precautionary principle is a principle of customary international law” (J. Cameron and J. Abouchar, “The Status of the Precautionary Principle in International Law”, in ibid., at p. 52). See also O. McIntyre and T. Mosedale, “The Precautionary Principle as a Norm of Customary International Law” (1997), 9 J. Env. L. 221, at p. 241 (“the precautionary principle has indeed crystallised into a norm of customary international law”). The Supreme Court of India considers the precautionary principle to be “part of the Customary International Law” (A.P. Pollution Control Board v. Nayudu, 1999 S.O.L. Case No. 53, at para. 27). See also Vellore Citizens Welfare Forum v. Union of India, [1996] Supp. 5 S.C.R. 241. In the context of the precautionary principle’s tenets, the Town’s concerns about pesticides fit well under their rubric of preventive action.



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