Subsidiarity and Environmental Federalism: The Emergence of 'New Governance' in Finfish Aquaculture in Canada

Abstract

This paper examines a dispute over the allocation of legislative competence in finfish aquaculture (Morton v. B.C.), with a view to elaborating on the application of the principle of subsidiarity to environmental federalism in Canada. The paper begins with a description of the legitimacy concerns in finfish aquaculture that have given rise to a highly polarized debate over the future of finfish aquaculture in Canada and have resulted in legal challenges, such as the Morton case, that seek to challenge the current cooperative governance structure in finfish aquaculture. The governmental response to this legitimacy crisis has been to turn away from traditional command and control forms of regulation towards more process-oriented, adaptive and collaborative forms of governance, which require less, not more centralization. It is argued that the trial court decision in Morton fails to appreciate the “New Governance” turn in finfish aquaculture. As a result, instead of viewing aquaculture regulation as a coherent, multi-level governance framework, the court treats the provincial scheme in isolation from the broader ecological, social and economic conditions that informed its creation. The position put forward in this paper is that in order for courts to make sound decisions on the allocation of legislative powers, they must incorporate a more theoretically complete understanding of the governance context of their decision. Indeed, the current principles of environmental federalism, which emphasize concurrency and subsidiarity, require courts to engage in a more searching examination of the nature of the regulatory framework subject to the constitutional challenge. Subsidiarity, while accepted as a relevant constitutional consideration, has not been elaborated upon by Canadian courts, but if we are to take subsidiarity seriously then it requires judicial engagement with the democratic and legitimacy-enhancing aspirations that inhere in that principle. In the context of environmental federalism, subsidiarity favours concurrent jurisdiction over exclusivity and counsels judicial deference towards inter-governmental cooperation.