SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
essary for the effective management of the natural environment so as to ensure the conservation, protection, and sustainable use of its natural resources’. Discharge of this obligation requires the setting of rules on what can and cannot be done and the establishing of a coherent system of control in which the regulating body sets a frame- work for activities on an ongoing basis, with a view to conditioning and policing behavior. Typically, regulatory tools include permits, licenses, notices, and cessation orders.
Under the modern scheme for environmental management, then, the courts assume a subsidiary role in enforce- ment. Administrative bodies do still have recourse to use of the criminal law, but only as a last resort. The criminal law is, after all, a prime example of remedial control, with its emphasis on punishing the abuser of the environment. Administrative regula- tion aims to be preventive by, for example, stopping pollution before it occurs. Individuals do still petition the courts for review of the action of administrative bod- ies, but only when the advantages of the informality and the relative lack expense of addressing concerns to the environmental tribunals do not produce minimum satisfac- tion.
fer. This meant that fidelity to the internal mechanisms and forums established by the legislature to enable the individual to assert their rights. As the Court went on to say: "It is clear from a review of the Environmental Protection Act that its pur- pose is not simply to repair damage to the environment resulting from human activity,
but primarily to prevent contamination of
the … environment. Such a purpose requires rapid and effective means in order to ensure that any necessary action is taken promptly… In the case at bar, the appellants elected to disregard not only the order, but also the appeal mechanism, pre- ferring to wait until charges had been laid before asserting their position. … to permit the appellants to collaterally attack the order at the stage of penal proceedings would encourage conduct contrary to the Act’s objectives and would tend to under- mine its effectiveness." The House of Lords made statements to similar effect in R. v. Wicks in the context of dismissing a collateral challenge to a plan- ning decision.
The complementary role of the courts has been recognized, perhaps wel- comed, by the courts themselves. In the Canadian case of R. v. Consolidated Mayburn Mines Ltd. the court made clear that like court orders, administrative orders deserve to be respected and obeyed. It made the point that administrative bodies regulate countless activities in society; reg- ulation that was essential for the protection of individuals and groups in the society and for the prevention of harm to societal inter- ests. The orders and decisions issued by administrative bodies thus form an impor- tant part of the law. Unless these orders and decisions are respected the orderly functioning of regulatory justice would suf-
In the end, however, not even the judicial concession of exercising a sub- sidiary and complementary role to that of administrative agencies resolves our initial dilemma. If the court is consigned the sta- tus of the forum of last resort, its generic role in, for example, the interpretation of the criminal law or administrative law, does not change merely because the case before it relates to the environment.
At the same time, it would be diffi- cult to argue, with a straight face, that the judicial process is an exercise in syllogistic reasoning where the clearly established statutes or precedents are applied to the facts with little or no discretion on the part