¹ Cities and Towns Act, R.S.Q., c. C-19.

² Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town), 2001 S.C.C. 40 at paras. 84–27 [hereinafter Spraytech].

³ Ibid. at paras. 28–29.

⁴ Baker v. Canada, [1999] 2 S.C.R. 817 [hereinafter Baker].

⁵ Sullivan, R., Driedger on the Construction of Statutes, 3rd ed. (Toronto: Butterworth, 1994) at 330 Google Scholar: “[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.”

⁶ The word “their” appears to be a mistake. “The” is probably the intended word. The French version reads: “Dans le contexte des postulats du principe de précaution, les craintes de la Ville au sujet des pesticides s’inscrivent confortablement sous la rubrique de l’action préventive” (emphasis added).

⁷ Spraytech, supra note 2 at paras. 31-32. I have omitted, for the sake of clarity, the several international, statutory, case law, and secondary sources quoted or cited in this passage. These include: the Bergen Ministerial Declaration on Sustainable Development in the ECE Region 1990, reprinted in (1990) 20 Env. Policy and Law 100; the judgment of the Supreme Court of India in A.P. Pollution Control Board v. Nayudu, (1999) S.O.L. Case no. 53; Freestone, D. and Hey, E., “Origins and Development of the Precautionary Principle,” in Freestone, D. and Hey, E., eds., The Precautionary Principle and International Law: The Challenge of Implementation (The Hague: Kluwer Law International, 1996)Google Scholar; Cameron, J. and Abouchar, J., “The Status of the Precautionary Principle in International Law,” in Freestone, and Hey, , Precautionary Principle, supra note 7Google Scholar; McIntyre, O. and Mosedale, T., “The Precautionary Principle as a Norm of Customary International Law” (1997) 9 J. Env. L. 221 CrossRefGoogle Scholar.

⁸ Cameron and Abouchar, supra note 7 at 52.

⁹ McIntyre and Mosedale, supra note 7 at 241.

¹⁰ On international custom generally, see SirJennings, Robert and SirWatts, Arthur, eds., Oppenheims International Law, 9th ed., vol. 1 (Harlow, UK: Longman, 1992), section 10Google Scholar; Brownlie, I., Principles of Public International Law, 5th ed. (Oxford: Clarendon Press, 1998) at 4–11 Google Scholar; Sands, P., Principles of International Environmental Law I: Frameworks, Standards and Implementation (Manchester: Manchester University Press, 1995) at 118–22 Google Scholar. For discussions by Canadian writers, see Emanuelli, C., Droit international public: contribution à l’étude du droit international selon une perspective canadienne (Montréal: Wilson and Laleur, 1998) at 41––61 Google Scholar; Kindred, H. et al., International Law Chiefly as Interpreted and Applied in Canada, 6th ed. (Toronto: Emond Montgomery, 2000) at 129–48Google Scholar.

¹¹ The state practice need not be universal, but it must be general: North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. The Netherlands), [1969] I.C.J. Rep. 3 at para. 73 [hereinafter North Sea Continental Shelf]; Fisheries Jurisdiction Case (United Kingdom v. Iceland) (Merits), [1974] I.C.J. Rep. 3 at 23-26; Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), [1986] I.C.J. Rep. 14 at para. 186. Likewise, the state practice need not be unbroken, but breaks with it must be viewed as breaches of the rule rather than as indications of a new rule (at g8).

¹² Opinio juris serves to differentiate state practice motivated by courtesy or morality (which amounts only to international usage) from that motivated by a sense of legal obligation (which evidences customary international law). Often international courts and tribunals are willing to presume that state practice is motivated by opinio juris unless the contrary is proven. This approach was advocated by SirLauterpacht, Hersch, The Development of International Law by the International Court (London: Stevens, 1958) at 380 Google Scholar. In at least three leading cases, however, the International Court ofJustice has insisted upon stricter proof: Case of the S.S. Lotus (Francev. Turkey) ( 1927), P.C.I.J. (Ser. A) no. 10 at 33; North Sea Continental Shelf, supra note 11 at 43-45; and Case Concerning Military and Paramilitary Activities in and against Nicaragua, supra note 11 at para. 207. See the discussion in Brownlie, supra note 10 at 7-9.

¹³ There are two exceptions. First, a rule of customary international law is not binding on those states that have persistently objected to it during its formation. Proving persistent objection is almost as difficult as proving custom. Second, where the custom is regional, only states within the region and which have not persistently objected to the custom during its formation, are bound by it: Asylum Case (Columbiav. Peru), [1950] I.C.J. Rep. 266.

¹⁴ The intervenors, the Federation of Canadian Municipalities, Nature-Action Québec Incorporated, and the World Wildlife Fund Canada, were jointly repre-sented by the Sierra Legal Defence Fund.

¹⁵ Factum of the Intervenors, Federation of Canadian Municipalities et al. (on file with the author) at paras. 22-25.

¹⁶ As we have seen, the minority disapproved of reliance on international law in the first place. They made no criticism, however, of the majority’s method.

¹⁷ Some leading instruments include: 1987 Montreal Protocol on Substances That Deplete the Ozone Layer (1987) 26 I.L.M. 154, preamble; 1992 Paris Convention for the Protection of the Marine Environment of the North-East Atlantic (1993) 32 I.L.M. 1068, art. 2(2)(a); 1992 UN Framework Convention on Climate Change (1993) 31 I.L.M. 84g, art. 3(3); 1992 Convention on Biological Diversity (1992) 31 I.L.M. 874; 1992 Treaty on European Union (1992) 31 I.L.M. 247, art. 130R(2); 1992 Convention on the Protection of the Marine Environment of the Baltic Sea Area, available online at <http://www.helcom.fi/ helcom/convention.html>, art. 3(2); 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, available online at <http://www.un.org/Depts/los/convention_agreements/texts/fish_stocks_agreement/CONF164_37.htm>, arts. 5(c), 6. All websites visited August 6, 2002.

¹⁸ Major declarations include: 1984 Bremen Ministerial Declaration of the International Conference on the Protection of the North Sea, preamble; 1987 London Ministerial Declaration of the Second International Conference on the Protection of the North Sea; 1990 Hague Declaration of the Third International Conference on the Protection of the North Sea; 1995 Esbjerg Ministerial Declaration of the Fourth International Conference on the Protection of the North Sea (all declarations available online at <http://odin.dep.no/md/nsc/declaration/index-b-n-a.html>); 1990 Bergen Ministerial Declaration on Sustainable Development in the ECE Region, supra note 7 at para. 7; 1992 Rio Declaration on the Environment and Development (1992) 31 I.L.M. 874, principle 15; 1994 Fort Lauderdale Resolution (on amendments to the 1973 Convention on International Trade in Endangered Species), available online at <http://www.cites.org/eng/resols/g/g_24.shtml>. All websites visited August 6, 2002.

¹⁹ See the opinion of the International Court of Justice in Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France), [1995] I.C.J. Rep. 288 at 290, where the court describes the precautionary principle as “very widely accepted in contemporary international law.” See also the dissenting opinion of Judge Weeramantry, in which the learned judge explains (at 342):

Where a party complains to the Court of possible environmental damage of an irreversible nature which another party is committing or threatening to commit, the proof or disproof of the matter alleged may present dificulty to the claimant as the necessary information may be largely in the hands of the party causing or threatening the damage.

The law cannot function in protection of the environment unless a legal principle is evolved to meet this evidentiary difficulty, and environmental law has responded with what has come to be described as the precautionary principle — a principle which is gaining increasing support as part of the international law of the environment. See also the dissenting opinion ofJudge Palmer (at 412), who observes that “the norm involved in the precautionary principle has developed rapidly and may now be a principle of customary international law relating to the environment.”

²⁰ See, for example, the following enactments and secondary works. For Canada, see Oceans Act, S.C. 1996, c. 31, preamble; Canadian Environmental Protection Act, S.C. 1999, c. 33 (“CEPA”), s. 2(1)(a); and the Endangered Species Act, S.N.S. 1998, c. 11, ss. 2(1)(h) and 11(1). See also the non-binding Agreement on Internal Trade, available online at <http://strategis.ic.gc.ca/SSG/1l0002ie.html> (visited August 8, 2002), at art. 1505(8). See also Vander-Zwaag, D., “The Precautionary Principle in Environmental Law and Policy: Elusive Rhetoric and First Embraces” (1998) 8 J. Env. L. and Pr. 355 at 369–72Google Scholar. For Australia, see Barton, C., “The Status of the Precautionary Principle in Australia: Its Emergence in Legislation and as a Common Law Doctrine” (1998) 22 Harv. Env. L. R. 509 Google Scholar. For Germany, the United Kingdom, and Hungary, see Cameron and Abouchar, supra note 7 at 38-40. For the origins of the precautionary principle in German municipal law, see Moltke, K. von, “The Vorsorgeprinzip in West German Environmental Policy,” in Royal Commission on Environmental Pollution, Twelfth Report (London: HMSO, 1988)Google Scholar, appendix 3. In a recent Organization for Economic Co-operation and Development [hereinafter OECD] publication, a panel of experts observed that “[r]eference to precaution is now a standard feature in food and health legislation and increasingly also in environmental regulation”: OECD, Trade and Environment: Report on a Meeting of Management Experts Held under the OECD Labour/Management Programme, Doc. PAC/ AFF/LMP(200I)6, July 19, 2001.

²¹ See Lauterpacht, supra note 12.

²² Sands, supra note 10 at 212-13. There is also a good counter-argument, founded particularly in the treaties and jurisprudence of the World Trade Organization [hereinafter WTO]. The leading case is EC Measures Concerning Meat and Meat Products (Hormones) (1998) WTO Doc. AB-1997-4. Canada and the United States iled a complaint against the European Communities [hereinafter EC] relating to an EC prohibition of imports of meat and meat products derived from cattle to which certain natural and synthetic hormones had been administered. Two WTO panels found against the EC. On appeal to the Appellate Body, the EC defended its prohibition by invoking certain provisions of the Agreement on the Application of Sanitary and Phytosanitary Measures [hereinafter SPS Agreement], arguing, inter alia, that the panels erred on the issue of burden of proof under the agreement by failing to defer to the EC’ s application of the precautionary principle. The EC submitted that the precautionary principle was a general rule of customary international law or, at least, a general principle of law applicable to the assessment of risk under the SPS Agreement. The United States responded by denying that the precautionary principle was a matter of international law, saying that it represented only an “approach” and, furthermore, that it was an approach not recognized in the SPS Agreement. Similarly, Canada argued that the precautionary principle could not override the express provisions of the SPS Agreement, though Canada did characterize the “precautionary approach” as an emerging principle of international law which may in future crystallize into one of the “general principles of law recognized by civilized nations” within the meaning of Article 38(1)(c) of the ig45 Statute of the International Court ofJustice, [1945] Can. T.S. No. 7. In upholding the panels, the Appellate Body noted the development of the precautionary principle but declined to rule on its status in international law. Instead, it found that while the principle is relected in certain provisions of the SPS Agreement, it is not relected in, and could not override, Articles 5.1 and 5.2, which were the subject of the dispute.

²³ Toope, S., “Keynote Address: Canada and International Law,” in The Impact of International Law on the Practice of Law in Canada: Proceedings of the 27^th Annual Conference of theCanadianCouncil on International Law, Ottawa, October 15-17, 1998 (The Hague: Kluwer Law International, 1999) 33 at 36Google Scholar.

²⁴ Schabas, W., “International Human Rights Law and the Canadian Courts,” in T.A. Cromwell et al., Human Rights in the Twenty-First Century: Prospects, Institutions and Processes (Montréal: Thémis, 1996) 21 at 44Google Scholar.

²⁵ See Ert, G. van, “Using Treaties in Canadian Courts” (2000) 38 C.YI.L. 3 at 42-61Google Scholar.

²⁶ Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

²⁷ Convention on the Rights of the Child, [1992] Can. T.S. No. 3.

²⁸ L’ Heureux-Dubé J.’s phrase in Baker, quoted in Spraytech, was “the values reflected in international human rights law may help inform the contexual approach to statutory interpretation and judicial review”: Baker, supra note 4 at 861 (emphasis added).

²⁹ On the presumption of international legality, see Ert, van, supra note 25 and G. Ert, van, Using International Law in Canadian Courts (The Hague: Kluwer Law International, 2002) at 99–136 Google Scholar.

³⁰ Spraytech, supra note 2 at para. 30.

³¹ Ibid. at para. 48.

³² It is helpful to consider the French text (given here in full): “Si intéressants soient-ils, les renvois aux sources internationales ne sont guère pertinents. Ils confirment l’ importance que la société moderne accorde généralement à l’ environnement et à la nécessité de le protéger, position que partagent la plupart des citoyens de ce pays. Cependant, aussi louable que soit l’ objet du règlement et même si celui-ci exprime la volonté des membres de la collectivité de protéger son environnement local, les moyens pour ce faire doivent être tirés de la loi.”

³³ See, generally, van Ert, supra note 29.

³⁴ Saint John v. Fraser-Brace Overseas, [1958] S.C.R. 263.

³⁵ Ibid. at 268–69.

³⁶ Suresh v. Canada (Minister of Citizenship and Immigration), 2002 S.C.C. 1 [hereinafter Suresh].

³⁷ Vienna Convention on the Law of Treaties, [1980] Can. T.S. No. 37 [hereinafter VCLT].

³⁸ Suresh, supra note 36 at para. 61. This formulation itself may understate the degree of recognition a norm must have to constitute a rule of jus cogens. Article 53 says such norms must be “accepted and recognized by the international community of States as a whole” (emphasis added).

³⁹ Suresh, supra note 36 at paras. 62–64.

⁴⁰ Ibid. at para. 65.

⁴¹ This conclusion was accepted by the parties in R. v. Bow Street Metropolitan Stipendiary Magistrate et al., ex parte Pinochet Ugarte (No. 3), [1999] 2 W.L.R. 827 at para. 28, per Lord Browne-Wilkinson, approving the judgment of the International Criminal Tribunal for the Former Yugoslavia in Prosecutor v. Furundzija, Case no. 17-95-17/1-T at para. 153.

⁴² Suresh, supra note 36 at para. 78.

⁴³ There remains much more to be said about Suresh. I refer the reader to the book by van Ert, supra note 29 at 28–29, 165–70, 248–49, and 263.