The Judicialization of Canadian Environmental Policy, 1980–1990: A Test of the Canada-United States Convergence Thesis

Observers of the development and evolution of Canadian environmental policy have noted evidence of what appears to be a pattern of lagged emulation of United States environmental initiatives by Canadian authorities. The record of recent Canadian court activities in the area of environmental assessments is cited as evidence that Canadian environmental policy is converging with that of the US. Other commentators, however, have failed to observe the increase in litigation required to justify the convergence hypothesis. Using evidence gleaned from a database of over 150 Canadian superior court decisions on the environment between 1980 and 1989, this article finds little evidence of a systematic pattern of convergence in the judicialization of Canadian environmental policy, and suggests that the reasons for this lie in the different institutional and constitutional structures which define the roles and relationship of the judiciary, legislators and administrative agencies in each country.