Curial Deference in Canadian Environmental Law: In Search of a New Approach

The Supreme Court of Canada has developed over the years, with increased intensity over the last decade, an approach to judicial review of administrative actions that focuses on curial deference. Due to the important role of state actions in environmental protection, the scope of judicial review can have a significant impact on the ability of Courts to ensure that the administration respects its environmental duties. The contemporary approach to judicial review is grounded in the desire of the Canadian judiciary to recognise the will of the legislator and the expertise, both legal and factual, of decision-makers. The Supreme Court had the legitimate goal of limiting unwarranted intrusion by the judiciary in the affairs of specialised administrative tribunals and decision-makers. Due to the largely discretionary nature of Canadian environmental law, the rigid application of contemporary curial deference to environmental decision-making seems ill suited at best. While specialised environmental law tribunals exist in Canada, Ministers and their delegates retain a considerable amount of discretionary powers, especially at the federal level. By applying curial deference to environmental decision-making outside of specialised tribunals, the Courts are allowing decision-makers to determine the extent of their powers and duties. This has, in part, contributed to the poor environmental record of Canada by limiting the abilities of individuals and organisations to challenge administrative decisions that negatively impact the environment. This paper argues for a new approach to curial deference in the field of environmental law. It briefly explicates the constitutional role of Courts in Canadian administrative law and what this role entails for environmental decision-making specifically. It then argues that in order for Courts to fulfill their role fully and to ensure good environmental decision-making, a new approach to curial deference is needed. It subsequently explores a potential new approach based on emerging jurisprudence. The approach can be implemented by Courts without legislative amendment. It emphasises a nuanced approach to judicial review of environmental actions through the consideration of relevant circumstances (factual and legal) such as legislative intent and relevant environmental law principles. Such an approach is ideal as it can easily exist within the current framework of judicial review and emphasises environmental factors or circumstances, thus ensuring a focus on environmental protection.