NAFTA in Transition

By Stephen J. Randall; Herman W. Konrad | Go to book overview

Bradly J. Condon Director, Centre for North-American Business Studies Simon Fraser University


16
The Impact of the NAFTA, the NAAEC,
and Constitutional Law on Environmental
Policy in Canada and Mexico

INTRODUCTION

There has been much debate over the constraints the North American Free Trade Agreement (NAFTA) and the North American Agreement on Environmental Cooperation (NAAEC) may place on the ability of Canada and Mexico to maintain independent environmental policies. The NAFTA prohibits the use of environmental measures to restrict trade. The NAAEC contains provisions aimed at ensuring that national and subnational environmental measures are properly enforced in each country. However, both agreements affirm the freedom of each country to determine its own environmental policies and laws.

This article argues that constitutional law and political realities may do more to limit environmental policy options than either of these new North American agreements. Constitutional documents form the legal basis upon which national and sub-national governments are granted authority to make environmental laws. Without adequate constitutional jurisdiction over the environment, no government can give its environmental policies legal effect. Constitutional law may therefore place severe constraints on a government's ability to enact laws, and on its ability to enforce laws that lack a solid constitutional foundation.

This article first analyzes the legally binding environmental provisions of the NAFTA and the NAAEC. It then analyzes Canadian constitutional jurisdiction over environmental laws, and the relationship between the Canadian Constitution, the NAFTA the NAAEC, and the Canadian Environmental Protection Act. Next, it examines Mexican constitutional jurisdiction over the environment, as set out in the Mexican Constitution and federal environmental legislation. It concludes with comparisons between the degree of policy freedom available to Canada's and Mexico's

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