CONSTITUTIONAL JURISDICTION OVER ENVIRONMENTAL PROTECTION

Chapter 2 – Jurisdictional issues pp. 37-67 Constitutional Act 1867 Provincial Powers Section 92.13 ‘Property and Civil Rights in the Province’ and 92.16 ‘Generally all

matters of a merely local or private nature in the Province’.a) Pollution regulation in context of land use planning = provincial matter by virtue of these

sections. No regulations by prov companies allowed.b) Also control of ownership of land, mines and minerals s.109 and non-renewable resources,

forestry and electrical energy s.92A. Federal powers where there is inter-provincial and international effects.

a) Functional powers : s.92.10 ‘navigation and shipping’, s.92.12 ‘Sea Coast and Inland Fisheries’, s.108 ‘Canals, Harbours, Rivers and Lake Improvements’ and s.91.29 and 92.10 ‘Federal Works and Undertakings’

b) Conceptual powers : s.91.27 ‘Criminal Law’, s.91 ‘Peace, Order and Good Government’, s.91.3 ‘Taxation’, s.91.2 ‘Trade and Commerce’ and s. 91.1A ‘Public Debt and Property’ = spending power.

Fowler v. R [1980] SCR Logging operation dragging logs through a stream and leaving debris behind. This is prohibited by

section 33(3) of the Fisheries Act – is it within federal power? Held: the prohibition in its broad terms is not necessarily incidental to the federal power to legislate

in respect of sea coast and inland fisheries and is ultra vires the feds

Northwest Falling Contractors v. R [1980] SCR Diesel fuel spilled into BC tidal waters in violation of 33(2) Fisheries Act Held: that legislation is not an attempt by feds to legislate generally on subject of pollution – rather it

is necessary for the protection and preservation of fisheries.

R v. Crown Zellerbach Ltd [1988] SCR Z charged with contravention of s 4.1 of Ocean Dumping Control Act for dumping woodwaste into

the sea w/o a permit. No evidence that the dumping interfered with navigation or marine life. AG Canada argued pollution of provincial marine waters was of national concern within POGG. Provincial inability test: a reason for finding that a particular matter is one of national concern

falling within the POGG power—that prov failure to deal effectively with the intra-prov aspects of the matter could have an adverse effect on extra-prov interests.

Marine pollution clearly a concern to Canada as a whole…the question is whether the control of pollution by the dumping of substances in marine waters, including provincial marine waters, is a single, divisible matter, distinct form the control of pollution by the dumping of substances in other provincial waters.

Held: s.4(1) of the Act is valid as enacted in relation to a matter falling within the national concern doctrine of POGG.

Dissent: LaForest J—there is no evidence of deleterious effects beyond the limits of the province. The prohibition applies to an inert substance regarding which there is no proof that it either moves or pollutes. There is danger in placing the broad subject-matter of enviro protection under POGG – it

would have a huge impact on provincial legislative powers. Environmental control does not have the requisite distinctiveness to meet the test under the ‘national concern’ doctrine.

Friends of the Oldman River Society v. Canada (Minister of Transport & Minister of Fisheries and Oceans) 1992 SCC In response to an application by the prov of AB to construct a dam on the Oldman River. Approved

by Minister of Transport by s.5 of Navigable Waters Protection Act without requiring an EIA as provided in Enviro Assessment and Review Process Guidelines Order.

Friends applied for an order in the nature of ceriorari as well as mandamus to quash the approval and require Ministries’ compliance with the Guidelines Order.

Is the Guidelines Order so broad as to offend s92 and s92A CA 1867 and therefore constitutionally inapplicable to the Dam owned by AB?

AB argues that the Guidelines Order purports to give the fed gov’t general authority over the environment as to trench on the prov’s exclusive legislative domain.

Held: LaForest J characterises the EIA as a planning tool and a process of decision-making. The Guidelines Order is in pith and substance nothing more than an instrument that regulates the manner in which fed institutions must administer their multifarious duties and functions….it gathers and organises information and does not bind the decision-maker. It also falls under POGG and can be supported by the particular head of fed power invoked at each instance.

“the CA 1867 has not assigned the matter of ‘environment’ sui generis to either the provinces or Parliament. Rather it is a diffuse subject that cuts across many different areas of constitutional responsibility, some federal, some provincial.”

R v. Hydro Quebec 1997 SCC HQ charged with breaching a 1989 interim order restricting the emission of PCBs. Order made by

Minister of the Environment under s34 and 35 of CEPA on regulation of toxic substances. HQ sought to have these sections and the order declared ultra vires the fed gov’t. Held: the Court focuses on the public purpose of enviro protection that engages ALL levels of gov’t.Uses its approach in Oldman: that the legislative provision must be tested against the specific characteristics of the head of power under which it is proposed to justify it. It is clear that s.91(27) confers Parliaments power over ‘criminal law in its widest sense’ and

includes any prohibited act with penal consequences. Prohibitions in s34 are precisely defined and made subject to penal consquences. Section 35 indicates even more clearly a criminal purpose where it is believed that ‘immediate action is required to deal with a significant danger to the environment or human life and health.’

Dissent: argues that Part II of CEPA is by nature a wholesale regulation by the feds of any and all dangerous substance to human life and health and does not outline any ‘true crimes’. Also reject POGG analysis – regulation of toxic substances under the Act is not a subject matter which is sufficiently singular, distinct or indivisible. Eg: a distinction could be made between temporary and localized toxicity to one that is diffuse and persistent.

INTERGOVERNMENTAL COOPERATION FOR ENVIRONMENTAL PROTECTION

Chapter 2 – Harmonization Initiative pp. 67-73

Canadian Council of Ministers of the Environment (CCME)

“Background on the Harmonization Initiative” Attempt to develop a number of national approaches to environmental problems of national,

international and global proportions. Problems identified – (1) cooperative mechanisms being developed without any guiding framework,

often in response to events rather than in anticipation (2) the level of consistency of addressing the right issues across the country (3) significant issues of overlap and duplication [for example, as related to mgmt of toxic chemicals and EIAs] (4) governments faced with reduced budgets and resources [a call for efficiency and effectiveness].

Review of Canada’s enviro mgmt regime and establish a new one based on cooperation, effective definition of roles and responsibilities and a capacity to act.

Environmental Management Framework Agreement (EMFA) approved 20 November 1996 by the Council of Ministers…sets the direction…by laying out a vision, objectives and principles. It will provide guidance for sub-agreements, be they multilateral, regional or bilateral.

Consists of a framework agreement and 11 schedules referring to areas of functional responsibility: Monitoring, Environmental Assessment, Compliance, Int’l Agreements, Guidelines, Objectives and Standards, Policy and Legislation, Enviro Education/Communication, Enviro Emergency Response, Research and Development, State of the Enviro Reporting and Pollution Prevention.

CCME “A Canada-Wide Accord on Environmental Harmonization” January 29, 1998

Vision, Purpose, Objectives, Principles, Sub-Agreements, Administration

House of Commons Standing Committee on Environment and Sustainable Development“Report on the Harmonization Initiative of the CCME” December 1997

Committee heard from a cross-section of representatives from business, industry and labour sectors, environmental groups, Aboriginal peoples, CCME and gov’t officials.

Conclusions:--1. Insufficient evidence of overlap and duplication of enviro regulation of federal and provincial

gov’ts…a more comprehensive analysis should have been made.2. That the provinces may eventually assume a considerate number of functions to be covered by sub-

agreements to the Accord and would leave the feds with limited set of responsibilities.3. Cautions a devolution of federal enviro protection powers.4. Transfer of duties between gov’ts can only be done with full consideration of funding implications.5. Maintenance of adequate funding paramount to effectively protect enviro and human health.6. Sub-agreements risk removing one level of regulations rather than making practices at both levels

complementary.7. Meaning consultation of Aboriginal peoples before the Accord and sub-agreements are ratified.8. Careful consideration on reprecussions on Canada’s internal and int’l trade commitments.Recommendations:--

1. That ratification of the Accord and the three sub-agreements be delayed until public consultations are made and the Committee’s concerns are addressed

2. Delay until participation of Aboriginal peoples in negotiation.3. Delay until impact on all relevant obligations to relevant domestic and int’l agreements is

considered and studies on gaps, overlap and duplication are done and made public.

4. That the Auditor General of Canada do enviro audit of effectiveness of bilateral agreements between feds+provs such as CEPA and the Fisheries Act.

5. That there is more focus on cooperation rather than assignment of areas of responsibility.6. Clarification of consensus and majority support provisions.7. Placement of effective dispute resolution mechanism.8. Sunset clause with expiry of each agreement within five years unless it is renewed after

meaningful public consultation.9. Express provision that no amendment to CEAA be required.10. Focus of sub-agreement on Standards should be on discharge of standards rather than ambient

environment quality standards.

ENVIRONMENTAL ASSESSMENT

Chapter 6

EIA broad objectives: use an expansive definition of the environment, including the natural environment and the human

social, economic and cultural environments. to reduce effects upon the enviro not only the project itself, but project alternatives and alternative

ways of carrying out the project. develop public support for assessment decision-making broad consultation, access to documents,

hearings with intervenor funding for independent and expert examination of assessment results.EIA Law in context It is unlike other enviro laws in the breadth of its procedural requirements eg: it encompasses and

exceeds requirement of other enviro regimes like (1) discharge approval laws—EiA focuses on fuller effects of emissions – social, cultural and cumulative effects and requires an examination of alternative process/technology and (2) land-use planning – EiA looks at alternative locations.

No single model of EIA – but 3 essential questions: 1) Whether a proposal may cause any significant adverse enviro effect;2) If yes, whether any alternative may offer a less significant adverse effect; and 3) If yes, having regard to all reasonable alternatives, which alternative overall is the most

appropriate for the environment. Problems with distinction between law and planning – what panels or governments consider to be

good planning may not coincide with what the courts conclude to be good law. When enviro assessment is a legally binding process, three fundamental legal questions arise:

1) When must it apply: what action, if any, triggers the requirement to carry out EIA?2) How must it be carried out: what process must be followed to produce a required EIA?3) What alternatives must be considered?

Enviro regimes vary – and will often produce different answers to these questions. Task is to identify specific requirements of each regime and where unclear, look to other regimes for assistance. Also consider effects of Cdn Constitution – division of powers affects the requirements for when different regimes are triggered and the requirements on what may be required by each regime once triggered. This difficulty in determining precise limits for fed&prov EIAs for projects with no interprov or extraterritorial effects illustrated in Friends of the Oldman case.

Reflects the basic Cdn constitutional principle that enviro is not an exclusive matter of either gov’t.

Berger Inquiry 1970s - most important enviro assessment in Canadian history (chaired by Justice Berger) Inquiry into two pipeline proposals to deliver natural gas from the Arctic Ocean to southern markets. Resulted in a landmark hearing process and an overall recommendation not to proceed, which was

followed by the government. A ‘look before you leap’ concept. Major considerations:

Cumulative impact of a transportation corridor for two energy systems which may eventually include roads and other transportation systems.

Challenges of engineering and construction – in both size and in remote setting (arctic climate). Also-majority of project done in summer = severe enviro impact.

Impact on the Old Crow community in N.Yukon Protection of wilderness, national park and wildlife habitat and migration. Critical gaps in information identified. Cultural, Economic and Social impacts – especially on surrounding community

Canadian Environment Assessment Act [CEAA] Predecessor statute: Enviro Assessment and Review Process Guidelines Order (1984) Began as a planning tool obly, but in 1989 Fed Court of Canada held that it was legally binding. It’s scope was narrowed by SCC in Friends of the Oldman in 1992 . Problems identified by courts in areas of application, administration and enforcement (pg198) CEAA developed in response – proclaimed in force on 19 Jan 1995 with four regulations required to

implement the CEAA – Inclusion List, Law List, Exclusion List and Comprehensive Study List. Sources of federal authority + scope of EIA: constitutional, mgmt of national parks and

infrastructure (rail, airports, ports), spending power, regulatory authority in jurisdictions such as international + interprov works, trade, navigable waterways, fisheries, agriculture, nuclear energy

What triggers a Federal EIA? s2(1) – definition of project – (a) in relation to a physical work…or any undertaking related thereto

or (b) any physical activity not relating to a physical work that is prescribed or is within a class of physical activities that is pursuant to regulations made under 59(b). Also includes a definition of proponent – the person, body, fed authority or gov’t that proposes the project.

Purposes s5(1) – An EIA of a project is required if a federal authority is (a) the proponent of the project and

does any act or thing that commits the fed authority to carry out the project in whole or part; (b) makes or authorizes payments or provides a guarantee for a loan or any other form of financial assistance; (c) has the administration of federal lands and sells, leases or otherwise disposes of lands or any interests in those lands, or transfers the admin or control to a province; (d) under provision of 59(f) issues a permit or license, grants approval or takes any other action enabling project to proceed

The CEAA applies to projects under specific circumstances only – to determine 3 step process:(1) is there a ‘project’? (2) Is the project within the general principles of Application of the CEAA? (3) do any exemptions apply?Definition of project in section 2(1) – clearly limited to physical changes, not plans or transactions. For projects that

involve physical works, the CEAA requires assessment of all related works and undertakings (s.15)CEAA Principles of Application CEAA applies directly to projects under s5.(1). Fed authority is a Minister, an Agency, certain corps

under the Financial Admin Act and any other body prescribed by Regulation- eg: the Law List

Regulations designate fed permits, license and approvals under the Act (eg: tax relief does not count as a trigger, but guaranteed loans would be).

Friends of the Oldman River Society v. Canada (Minister of Transport) 1992 SCC The province of AB applied to Minister of Transport for an approval to construct a dam on the

Oldman River, which was granted pursuant to section 5 of the Navigable Waters Protection Act. The federal minister considered the impact of the dam on marine navigation but did not subject the

application to an EIA as provided in the EARP Guidelines Order. Friends applied for certiorari as well as mandamus in order to quash approval and require the

Minister of Transport and of Fisheries and Oceans to comply with Guidelines Order. Held: is the Guidelines Order Authorized by s.6 of the Dept of the Enviro Act? Yes – concept of

enviro quality is not confined to bio-physical environment alone and consequences of a community’s livelihood, health and other social matters affected by enviro change are integral to decision making.

Are there inconsistencies between the Guideline Order and the Navigable Waters Protection Act and Fisheries Act? No- the minister’s duty under the Guidelines Order is consistent with the objectives stated in both the order itself and its parent legislation to make EIA an essential component of fed decision-making.

Exemptions from the CEAA Section 7 provides limited exemptions from EIA. Two categories: projects carried out in response to

emergencies and projects receiving fed funding, where funding is provided in advance of specific details on the project.

Also makes provision for exempting regulations, Exclusion List Regulations. Projects on this list must fit at least on one of three grounds of exclution:

1. EIA of the project is inappropriate for reasons of national security2. Federal role in authorizing the project is minimal3. The potential enviro effects of the project are insignificant [this exception is the most used – there is

careful watch by ENGOs on this process] The present list regulations state that they are relying on 3rd ground of exemption only. section 60 – also provides for an exceptional form of exemption from the requirements of the Act or

regulations, where the fed Cabinet determines that compliance is inappropriate.Special Applications of the CEAA Application to crown corps and harbour commissions is uncertain. They are exempted from

definition of ‘federal authority’ and do not come under triggers of s.5(1). However, s.8 and 9 provide specific instructions for requiring some form of ‘assessment of enviro effects’ where these bodies propose, fund or provide land for projects. (not clear whether special regulations must be passed before there is a legal requirement)

Indian reserves – also uncertain if they are recipients of fed financial assistance. Again, issue is whether a regulation is required before EIA is required, or whether the Act applies generally.

Special panel reviews – problems with duplication. There is no provision for dispensing with the CEAA because of duplication. To address potential gaps in EIA, sections 46-48 provide for public review of projects no otherwise subject to CEAA. See page 205-206 for list and procedure.

How is a Federal Environmental Assessment Carried Out? Responsible Authority – sections 11 and 12. Environmental Assessment Process – sections 14 – 16 Screening – sections 18 and 20 Comprehensive Study – sections 21 and 28

Decision of Responsible Authority – section 37Once it is determined that the CEAA applies to a project, the next step is determining what is required to carry out an EIA. Any person proposing a project where there is some requirement of federal decision-making is

affected by EIA. Proponents should also be aware that further federal action is halted until EIA is included. CEAA does not provide for a proponent driven process, however. The EIA is not the responsibility

of the proponent, but the responsible authority. There may be more than one responsible authority for a single project. To avoid duplication of

EIAs, section 12(2) provides that all responsible authorities should ‘together determine’ their respective duties and functions under the Act or seek advice of the Agency.

No legal responsibility of the proponent at EIA stage. However, under section 17, the responsible authority may delegate any aspect of screening or comprehensive study to any person - even the proponent. Also may be included as an interested party if there is a public review of the project.

Also limited provision for proponents subject to special application of the Act via sections 46-48. Where a project is subject to public review under these sections, the minister may issue an order and seek an injunction against a proponent to prohibit action until EIA complete (section 50-51).

Timing of EIA Set out in section 11 – ‘as early as practicable in the planning stages of the project and before

irrevocable decisions are made’. Two cases turning on timing under the Guidelines Order:— Carrier-Sekani Tribal Council v. Canada (Minister of Env); Alcan Aluminum Ltd v. Save the Bulkley Society (1992) The Guidelines must be given full application in all cases where duty on fed Minister to give or

refuse permission…the promoter being precluded from acting without prior ministerial consent. A mandated EIA is meant to help a Minister in the exercise of a duty to intervene and act positively

with respect to the execution or completion of a project.Friends of the Island Inc v. Minister of Public Works et al. [1993] What does seen clear is that the assessment is required to take place at a stage when the enviro

considerations can be fully considered and when it can be determined whether there may be any potentially adverse enviro effects….it should take place at a time when both the proposal and the decision relating thereto, including the grounds on which it is based, can be released to the public.

Quebec v. Canada (National Energy Board) [1994] turns on CEAA section 11 Problems with definitions of ‘as early as practicable’ and ‘irrevocable’. This decision seems to imply that an approval is not an irrevocable decision, since the court

permitted the NEB to issue an approval before carrying out an EIA, with the condition that it be completed before construction.

There is nothing, however, preventing a proponent from starting an assessment long before any irrevocable decision.

The case also suggests that the principle that projects must be fully considered may override the principle of early assessment of a project (you may not have all the necessary information). This is supported by s.7(2) where essential details of the project are not know at the time of funding and by section 12 which prohibits responsible authorities from making a decision until an EIA has been completed and an appropriate course of action is identified.

Components of the Environmental Assessment Process The process is set out in section 14 and includes up to three components:1. A screening or comprehensive study (including preparation of reports)2. Where required, mediation or panel review (including preparation of reports) 3. Where required, the design and implementation of a follow-up program. CEAA makes provision for a two-stage assessment of enviro effects. These stages are described

administratively be the Agency as (1) self-directed assessment: screening or comprehensive study and (2) public review: mediation or panel review.

Comprehensive study (section 21): all such projects listed in the Comprehensive Study List Regulations. Include major projects for national parks, water mgmt, oil, gas, or mineral resource, pulp+paper, smelters, defence works, navigable waterways, waste mgmt. This step may only be avoided by forgoing stage 1 assessment and proceeding immediately to stage 2, through special referral by the Minister of Env.

Screening : Most basic level of EIA within the CEAA – expected to apply to over 90% of all projects subject to the CEAA and encompasses other fed decisions like permit, license and approvals under a list of Acts p215. A screening may only be avoided where more substantial forms of assessment are employed at the outset, such as a comprehensive study or direct referral to the minister for panel review or mediation (section 29).

Avoiding Duplication : One project, one assessment. 4 questions: 1—is the project within a class of projects subject to a class assessment? [Class screenings are possible] 2—is it subject to an earlier EIA? 3—is it currently subject to more than one federal authority? [identification of a lead responsible authority by section 12(1) and (2)] 4—is it regulated by more than the fed gov’t [ie: is it subject to regulation by a province, foreign state or other regulatory body? Cooperation is dictated by sections 12(4)and(5)]

Conducting an Assessment from classnotes Section 216 - four category process: (1) scoping (2) describing enviro effects (3) mitigating effects

(4) evaluation or determination of significance of effects [socio-economic, cultural effects included = more broad than predecessing section] Mitigating – alternatives need not be seriously considered Significance – Friends of the Oldman – especially on jurisdiction cut-off point Scope – difficult – feds may have little authority to begin with but assessment becomes quite

extensive fisheries, navigable waters, bridges etc. Not defined in the Act, so the scope tends to turn on the definition of “project” eg: diversion of a river during construction of a bridge. Relevant caselaw: on broad interpretation of scope. It has been cut-back – but depends on context – the definition is taken into account on case-by-case basis – eg: ancillary projects versus directly ancillary projects. The Berger inquiry was not carried out in current regulations – but does discuss definition of scope. Time factor: entire life cycle must be taken into consideration (maybe even future expansion proposals).

In terms of carrying out an assessment, CEAA assigns principal responsibility to fed authority. However, allows for administrative duties to be delegated. Delegation can facilitate intergov’t cooperation.

Environment and Environmental Effects pg 216-217 Definitions given in s.2(1) of the Act. It is important to understand their relationship in complying

with requirements of section 16(1). Major issue is what is included in the definition of enviro effect that is not included in enviro. Also,

‘enviro effect’ requires consideration of both the impact of the project on enviro and vice versa.

Cumulative effects Section 16 requires their consideration. There are effects that are physically cumulative as well as

cumulative over time and over space. Cumulative chemical or biological effect. Cumulative in a socioeconomic sense as well.

Alternatives Consideration of alternatives essential where a project is likely to cause significant adverse effects. Section 16(1)e – allows responsible authority to include consideration of ‘alternatives to the project’

and ‘need for the project’ in EIA but does not require such a consideration in any form of assessment Section 16(2)b – requires consideration of ‘alternative means of carrying out the project’ for all

comprehensive studies, panel review and mediations.Significance of Enviro Effects Section 16(1) requires first that screenings and comprehensive studies consider the significance of

the effects associated with a project. CEAA Guide presents a three-part test: (1)are the enviro effects adverse? (2) are the adverse effects significant? (3) are the significant adverse effects likely? Second, consider if there are any measures technically and economically feasible to mitigate them.

Section 20 identifies the courses of action applicable to screenings: responsible authority may take action on the project (proceed), refer it for public review or take no action on the project (stop).

Similar framework for comprehensive studies (section 23) – but different as there is already a preliminary determination that the project is likely to cause significant adverse enviro effects.

Mediation and Panel Review For the CEAA, public review means either mediation or panel review it also means public

involvement and independent expertise. Within self-directed assessments there some public notice and written public comment, but this is

not extensive involvement or access. Both M and PR provide a public forum to assess a project’s potential effects and is managed by

persons independent of the federal gov’t [section 30 and 33 on independence and conflict of interest]Role of the Public During a Federal EIA s.55—responsible authority has a duty to establish a public registry for every project subject to EIA.

Maintenance of registry s.55(2). Under M or PR, interested public parties should receive copies of all relevant materials. Screening: a person may participate in assessment process where authorization granted in s.18.

responsible authority may not take any action before giving the public an opportunity to examine and comment upon any screening reports or class screening reports by s.19 and 22.

Comprehensive study: public participation is mandatory – publication of notices when report to be available, information made available and deadlines for comments by s.22. By section 23, more public input may be required upon review of the minister.

Panel review: no clearly stated role for the public in the selection of panel members or in establishment of terms of reference for the panel. Mandatory hearing by s.34. May participate directly or engage an expert and funding is available by s58(1.1).

Varied Federal EIA pg227-228 Four different types of regimes (high to lower standard): full enviro assessment, varied enviro

assessment,, assessment of enviro effects and special panel review.Current Legal Issues in EIAInternational Espoo Convention on Transboundary Impact Assessment – Canada, US and EU are all parties.

Canada has EIA requirements on projects outside Canada receiving federal funds as does the World Bank on projects they fund.

Role of First Nations in EIA pg230 James Bay and Northern Quebec agreement 1975 – one of the first examples of binding

legislation on EIA – between Cdn, QC gov’ts and the Cree and Inuit of North QC. Ratified by both fed and prov – requiring EIA of project in areas subject to the agreement.

Nunavut Land Claims Agreement 1993 – one of the key articles provide for establishment of the Nunavut Impact Review Board with a broad EIA mandate.

Union of Nova Scotia Indians v. AG Canada 1997 Emphasis of the special status of First Nations during consultation within federal EIA. Three applications for judicial review concerning decisions reached in regard to approvals on

behalf of the Minister of Fisheries + of Environment to accept as satisfactory an environmental screening report made under CEAA.

Two basic issues: one relating to procedural fairness in terms of denial of the level of respect to which the applicants were entitled in the assessment process, the second is whether the assessment process met the requirements and standards under CEAA re: mitigation measures and careful consideration of scientific evidence.

Held: aboriginal interests and actual use of fishery resources not fully taken into consideration and not according to definition of ‘environmental effects’ under s.2(1) CEAA. Also, a fiduciary duty owed to aboriginal people by the Crown not to permit unjustified adverse effects on continuing interest in fishing in area for food. A special role of aboriginal people in EIA as a result of this duty and the Act itself denied.

From classnotesCEAA Levels of assessmentA. s.20– screening – modest responsibility of project organisers. If it is found that circumstances are

considered significant proceed to next level.B. s.21 –comprehensive study – by responsible authority or refer project to Minister + skip to next levelC. s. 29 – mediation/review – where effects are significant but not clearly justified. OR referred back to

responsible authority (where effects are insignificant or if significant that can be justified).Provincial EIA provinces usually have a simpler structureEnviromental Quality Act Similar triggers? Standard requirements and other added on case-by-case basis as required by ministry No public involvement during process but there are public hearing rights Exemptions – grandfather clause (within one year of legislation requiring it). Emergencies: court

held that ice storm project was subject to the discretion of the Minister. Elements of assessment – similar to feds with slightly wider definition of effects, includes

irreversible effects.Federal-Provincial Harmonization AB-Federal agreement

Obligations to notify encroachment of jurisdictions. Process of deciding who is to be lead party (proponent deals with coordinator only) Terms of reference in consultation Actual assessment by both parties.

QC-Federal agreement Based on a report, not agreement Joint assessment with aim for greater co-ordination

Critique of harmonization – removes federal gov’t from procedure. Tends to be hands-off where prov involvement – what are the impacts of this?

ADMINISTRATIVE LAW AND ENVIRONMENTAL PROTECTION (Jan 23)

The Administrative Process

Components of admin. policy:1) legislation

- raw policy objectives articulated-articulates controls and how they will be implemented-many powers delegated-E.g. CEPA states its purpose as regulating or eliminating noxious substances.

2) regulations-more specific than leg. and thus easier to adopt-ambient standards or conditions for permits may be contained w/I regs.-E.g. CEPA sets forth regs listing controlled substances

3) administrative acts-decisions or actions taken under rubric of leg.-E.g. issuance of a permit

Rationales for giving administrative agencies powers including conferring appellate jurisdiction on administrative tribunals:1) efficiency and flexibility-more procedurally expedient than courts, more informal. 2) openness – enhanced opportunities for public participation (at least with admin decisions…

not so much with admin acts)3) expertise 4) experience – may be more sensitive to broader policy considerations

Problem with broad admin power = ensuring protection for rights and interests of individuals affected. To alleviate this concern, admin law has developed.

Admin. law dfn:“A body of law that governs gov’t officials and admin tribunals that are charged with the power

to make decisions or pass regulations that affect people’s right or interests.” It is largely common law but there are some statutes in existence such as the statutory codes of procedure for admin. tribunals in Ont. and ALTA

Standing before admin boards and tribunals:

Kostuch v. Alberta (Environmental Appeal Board) (AB, QB)Facts – Environmental activist sought to obtain standing before the Board to protest the construction of a cement plant.Issue – By what criteria should the Board determine whether or not to grant standing?

Held – Denied standing. Crt. applied a “directly affected test and endorsed the view from a prior case that “”Directly” means that the person claiming to be affected must show causation of harm to her particular in interest by the approval challenged on appeal.” They stated that “the use of the word "directly" indicated a legislative intent to circumscribe a right of appeal which was confined to persons having a personal rather than a community interest in the matter.” Here, they held that it wasn’t enough that Kostuch had a history of intervening, being consulted and generally caring about the environment in the area in question.

A different approach to standing was taken in the following case:

In the matter of an appeal under s. 131 of the Forest Practices Code of BC (1994, BC Forest Appeals Commission)Facts – Cariboo-Chilocotin Conservation Council (a local environmental coalition) applied for intervenor status in case re: the damaging road construction and hauling of a forestry companyIssue – Standing?Held – Yes…full intervenor status granted. 2 Prong test: 1) did they have a valid interest in participating? Here the crt. said yes, 2) can they be of assistance. Here the crt said yes b/c they can offer assistance in determining the meaning and scope of “damage to the environment” in the legislation.

Judicial Review of Administrative Action

What determines the standard of review?1) usually, admin agencies and tribunals are protected by a privitive clause purporting to limit

review of decisions and actions…the scope of this clause is considered2) common law (and s. 18(1) of the Federal Court Act in the fed. realm) which has largely

focussed on the amount of deference that should be accorded a particular admin actor. E.g.:Graham v. Alberta (1996, NS, QB)Issue – What is the appropriate standard of review applicable to the Environmental Appeal Board’s decisions?Held – Patent unreasonableness. Crt says that regardless of whether there is a privitive clause, there is a strong tradition of crts showing curial deference to admin bodies which possess a high degree of expertise. They said the q. is whether the legislature intended the Board to decide on the issue at hand. To make this determination, look at the reason for their existence (here to hear appeals) and the areas of expertise of the members (here they are experts).

Spectrum of standard of review:

Correctness------------------------------------------------------------------Patently Unreasonable

-Correctness is the appropriate standard when there is a weak or non-existent privitive clause and little deference is owed.-Patently unreasonable is the appropriate standard when there is an all-encompassing privitive clause that purports to exclude all judicial review and a high degree of deference is seen as appropriate given the nature of the body in question. Here, reasonableness is equated with whether or not the admin

actor acted w/I their judgment. There are several ways a admin actor can be found to have acted outside their judn:

1) does something they are not authorized by their enabling statute to do2) took into account irrelevant considerations or failed to take into account relevant

considerations3) unlawfully fettered their discretion…i.e., imposes policy guidelines on herself which

contradict the legislation4) real or apprehended bias…many forms: personal interest, relation, hostility to a party,

comments made that indicate she had her mind made up prior to hearing5) breach of procedural fairness…includes notice, right to be heard6) bad faith7) unlawful subdelegation of a discretionary power8) errors of law or fact…only in particular circumstances = error of law has to be so bad as to

render the decision patently unreasonable and error of fact arises when the body decided without the requisite amount of facts thus rendering the decision patently unreasonable.

Halfway River Nation v. BC (Min of Forests) (1997, BC, SC)Facts – Halfway River Nation (HRN) seeks a review of the decision of the Min of Forest re: approval of a cutting permit on lands they claim they have a traditional right to.Issue – Did the issuance of the permit violate principles of admin law?Held – Yes…decision of Min quashed. Several breaches of admin law were alleged by HRN:1) Min. considered irrelevant consideration and failed to consider relevant considerations. – Must

look to enabling statute to determine what considerations the Min. is bound to consider. Here, crt said the Min. did consider all relevant factors (found in a list in the preamble) and did not consider irrelevant ones

2) Min. fettered his discretion – Crt said he did fetter discretion by taking the gov’t’s stand as conclusive on the matter without considering other factors.

3) Bias (real and apprehended) – Crt said in this case apprehended bias would suffice and here there was such a bias due to some letters written by the Min prior to the conclusion of the case which tended to indicate that his mind was made up

4) Error of fact – Crt concluded that Min’s decision was patently unreasonable due to the limited factual info he considered

5) Procedural fairness – To determine level of procedural fairness owed, look at the nature of the decision to be made, the relationship b/w the admin body and the indiv, and the effect of the decision on indiv rts. Here, crt noted that decision was final and specific, there was a fiduciary relationship b/w the min and HRN and the decision could affect HRN very way of life. Thus, crt concluded that the highest standards of fairness should apply. This requires that notice be given and HRN be given a rt to be heard. Crt held that Min failed in these duties.

Halfway River Nation v. BC (Min of Forests) (1999, BC, CA)Held – Appeal wrt quashing of decision to grant permit denied. Wrt:1) Min fettered his discretion – Crt disagreed w/ SC here. They claimed that although Min

considered the gov’t policy, he also considered all relevant factors2) Bias – Crt disagreed w/ SC here. They claimed that the letters that allegedly showed that Min had

his mind made up prior to hearing merely showed that he believed that the permit application was in order….not that he was shutting his mind to all arguments to the contrary

3) Procedural Fairness – Crt disagreed w/ SC wrt adequate notice. They claimed that since the legislation was silent on notice, there was no requirement of a particular length of notice (although a reasonable amount is required). However, they agreed w/ the SC that there was insufficient consultation w/ HRN in breach of procedural fairness requirements.

Aluminum Co. of Can. v. Ont. (Min of Environment) (1986, ON, SC)Fact – Executive (Min of Environment) established a scheme to implement the use of aluminum cans that are recyclable in order to decrease litter but delayed implementation 2 years until the steel industry in Hamilton was able to become equipped to produce the cans (at this time the Hamilton steel industry was ailing). Alcan, who was already equipped to produce the cans, argued that the Min exceeded his jurisdiction by acting in bad faith, upon economic and political considerations outside the scope of the act under which this scheme was implemented.Issue – Breach of admin law?Held – No. Crt held there was no evidence of bad faith. Crt also indicates that greater deference will be given to members of the executive wrt their discretionary decisions. (Prof says the only way to justify this decision is by considering fact that they changed the existing law by allowing aluminum cans (previously under the law, only refillable containers were allowed). This change did not affect the purpose of the law which was to decrease litter and thus the Min acted w/I the scope of the legislation)

Remedies:1) certiorari = order quashing the admin action2) mandamus = order requiring authority to act3) prohibition = order prohibiting the action4) declaratory relief = order declaring existing rts, duties, or powers5) injunction = temporary or permanent. Basic test – balance of inconveniences b/w pl and df.

Matters considered – seriousness, extent, costs/ foregone revenues, non-reversible etc.

FEDERAL LEGISLATION: CONTROL OF TOXIC SUBSTANCES

Chapter 5 and CEPA

Pages 141-144Alastair Lucas, ‘The New Environmental Law’ 1989 Waste control laws = first generation of enviro statutes including basic air, water and land pollution

statutes enacted by feds and provs. Essential object of these Acts was control of waste that was being deposited on land or discharged into water or air. Focus on management.

Regulatory systems established to identify waste sources, bring them under permit and control quality and quantity of waste discharged. Enforcement = summary convictions and modest fines.

Second generation of enviro statues – response to overwhelming evidence that the waste control approach is only one aspect of an effective enviro protection regime.

Central objective of these new laws is control of persistent toxic substances. View enviro protection as a long-term process. The new approach is preventative and also anticipatory.

Also important is that toxic substances know no boundaries, therefore new laws are outward looking. Variety of enforcement tools from ticketing for minor offences, to criminal offences and civil action.

Note: Also consider the development of enviro legislation on preventative assessment and consensual decision-making. EIA, mediation, barganing all have impact on new approach.Kernaghan Webb, “Pollution in Canada: The Regulatory Approach in the 1980’s” 1988 Underlying the shift from blanket prohibitionx to control regimes was a fundamental shift in

approach toward gov’t handling of industrial pollution – with a shift to more practical restrictions. More interventionist – determination of acceptable levels of pollutants, abatement technologies

explore, what industry can afford and what public will tolerate. This control approach is more flexible than blanket approach but this comes at a cost. Pollution

abatement decisions driven underground into the quiet and less visible regulation and license-negotiating process of gov’t. Must bring back into public view.

The Toxics Control Model – CEPA – pages 153-71

PART A – in general – CEPA cannot said to be totally new legislation since, for a good part, it is a revision and consolidation of a number of fed enviro statutes. For that reason, its nine Parts often deal with subject matters which are quite dissimilar.

Part I – ss.7–10 gives the Minister of the Environment the power to gather enviro data to conduct research and to formulate objectives, guidelines and codes of practice.

Part II – ss.11–45 deals with toxic substances Part III – ss.49–51 is concerned with nutrients such as phosphates Part IV – ss.52–60 is the enabling authority for the eviro control regime applicable on federal

lands and to federal agencies. Part V – ss.61–65 deals with international air pollution Part VI – ss.66–86 contains the statutory control regime applicable to ocean dumping.

PART B – Toxic substances Part II of CEPA sets up a regulatory regime allowing the feds to control toxic substances ‘from

cradle to grave’ that is manufacture to importation in Canada to their final disposition. Definitions : to understand the statutory scheme, start with definition of ‘substances’ in section 3:

‘any distinguishable kind of organic or inorganic matter, whether animate or inanimate’ A substance may be considered as toxic if it can enter the enviro and have an immediate or long-term harmful effect on the enviro, or constitute a danger to the enviro on which human life depends or a danger in Canada to human life or health (section 11)

Assessing toxicity of substances : procedure in sections 12-18. Minister of National Health and Welfare MOH and of Environment MOE are given the power to investigate and collect data on the toxicity of substances, but imposes generic and specific duties on importers, manufacturers and users to provide information upon request from MOE (ss.15-18).

Section 12 also requires MOH and MOE to compile a Priority Substances List according to toxicity. Section 13 - requires preparation of a report and summary for the Canada Gazette along with the Ministers’ decision whether to a substance on PSL to be listed as toxic under Schedule I.

If assessment has not been completed within 5 years on the PSL, any person may file a notice of objection with MOE + request establishment of a board of review of the substance. Minister is required to comply with the request by s.14 and 89.5.

Substances New to Canada : under s.25, the MOE is required to compile a list of substances to be known as the ‘Domestic Substances List’ which specifies ‘all substances that the Minister is satisfied were, between 1 Jan 1984 and 31 Dec 1986 (a) manufactured in or imported into Canada

by any person in a quantity of not less than 100kg in any one calendar year; or (b) in Canadian commerce or used for commercial manufacturing purposes in Canada.

The minister shall also compile ‘Non-domestic Substances List’ for substances, other than those on the DSL, that are in world commerce, but not in Canada.

Sections 26-30 set up a notification system under which no person shall manufacture or import a substance not listed on the DSL unless MOE provided with information prescribed by regulation and assessment conducted [substances on NDSL should have less onerous notification requirements that those no listed on DSL looking for approval].

Listing of Toxic Substances : s.33 – once assessment concluded, if established as toxic, both MOH and MOE may recommend to the G-in-Council that the substance be added to the List of Toxic Substance in Schedule I.

A copy of proposed order published in Canada Gazette and further review/extent of danger may be requested by any person within 60 days (ss.48.2 and 89.1). Minister is under no obligation to comply with request. If agreed to, must be completed before adding/dropping from list (s.33.4)

Regulation of Toxic Substances : means of control under s.8. Regulatory power under s.34. Equivalency Provisions : under s.34, regulations can be enacted dealing with the whole life cycle of

toxic substances….and provides for potential/how to avoid duplication and jurisdictional conflicts. Interim Orders : s.35 grants emergency powers to MOE. Very strict procedural requirements. Release of Toxic Substances : ss36-40 impose duties on interested persons in case of a release of

toxic substances. Substance must be on Schedule I and in contravention of a regulation or an interim order. Section 36 – duty to report, take all emergency measure, remedy dangerous condition and notify public who may be adversely affected. Also, any person whose property is affected by the release and knows it to be toxic shall report to inspector. Report can also be made by a person not required to with whistle-blower protection under s.37.2-.3.

Export and Import of Toxic Substances and Waste Materials : sections 41-45 contain provisions prohibiting or restricting import and export of toxic substances or waste materials.

Sanctions and remedies : regime of administrative and judicial recourse, both civil and penal for the enforcement of its provisions by sections 98-137. Of special interest are the introduction of civil remedies to prevent, stop or repair damages resulting from violation of its provisions.

CEPA from classnotes Not a broad-based piece of legislation – focus on pollution There has been a reordering pt IptIII , ptIIpt V [look at table of contents] Part I – looks at national advisory committee. Provinces can make agreements and substitute

them for some CEPA provisions. Part IV – pollution protection Pg 154 – CEPA works based on a list of substancesDomestic – s.66, Non-domestic – s.66(2), PSL, Toxic – s.91, Virtual elimination lists? – s.65(2), all substances subject to screening and categorization – s.74, screening – s.83 Sources of information: ministry, other gov’ts, handlers, individuals Following assessment, if substance is found:

1) To be non-toxic: nothing needs to be done2) To be toxic: placed on toxic list and should be regulated by s.77(3) authorises and

s.77(4) recommendation by minister.

The Quasi-Criminal Offence Model The other major federal environmental regulatory regime is that under the Fisheries Act = greater

emphasis on enforcement through prosecution of quasi-criminal offences.

Environmental Standards Decisions under statutes must be based on standards established by regulation or by non-binding

guidelines. At a federal level, contaminant standards are established by regulations under the Fisheries Act or by regulation, following toxicity assessment of substances under CEPA.

Franson, Franson and Lucas “ Environmental Standards” 1982A model procedure for setting environmental standards set out.What are standards? Establishment of consistent terminologyDefinition of Terms ‘objective’ denotes a goal or purpose toward which an enviro control effort is directed. ‘criteria’ are compilations or digests of scientific data that are used to decide on chosen objectives. ‘standard’ denotes a prescribed numerical value setShould standard be set? The traditional, technically-based approach to setting standards are as follows:1. Identification of uses of the ambient resource to be protected or objectives to be met2. Formulation of the criteria through collection and/or generation of scientific information3. Formulation of ambient quality standards from the criteria4. Development of effluent standards for discharges into the environment that will produce a quality

meeting the ambient standard.5. Development of monitoring and other information-gathering programs that will refine the data

inputs to the previous steps and provide feedback on whether the objectives are being met.Objectives Pollution control and enviro preservation - move scope and character beyond human purposes+use Strong public input at this level in standard-setting process.Criteria Formulation of criteria is strictly a scientific matter – involves gathering of data on the effects of

potential pollutants and combinations of pollutants. Number of new substances is growing rapidly in industry, effects of substances difficult to predict

and possibilities of synergistic and antagonistic effects. Formulate criteria on the basis of parameters of the greatest concern on one end and those which

are clearly safe on the other. Ambient Quality Standards This is the prescribed quality of water or air that is deemed necessary to protect the desired

objectives in the light of scientific knowledge supplied by the criteria and of socioeconomic factors affecting the control of pollution. May set upper limits on undesirables or lower limits on desired substances [like dissolved oxygen].

Setting these standards are not fundamentally a technical decision…the primary purpose of water quality standards is to maximize the level of protection of beneficial uses and the second is to minimize the cost of meeting the standards.

This also involves a political choice process with information needs on public preferences, risk acceptability and benefit-cost judgements.

Effluent Standards At this stage, there is movement form a statement of the desired condition of the air or water to

standards defining limits on discharges to the resource that will permit the desired state to be obtained. Also requires both technical (like math models, coordination of control efforts in various

media and feasibility of effluent standard compliance) and non-technical (equity and bargaining between the regulators and regulated) input.

Beyond the Effluent Quality Standard—Technology-Based Effluent Standards Quantitative limits placed on all dischargers, where quantities are determined by reference to the

available technology defined in terms of what is ‘practical’ or ‘achievable’. Otherwise – standards become unachievable and therefore unenforceable.

PROVINCIAL REGULATION FOR ENVIRONMENTAL PROTECTION

Chapter 5 and EQA

Pages 144-153Basic Provincial Regulatory Model Provincial legislation regulating discharge of enviro contaminants is by no means uniform. There

are common elements to suggest a basic model. Model creates a regime for licensing and controlling contaminant discharges with breaches treated as

quasi-criminal offences. There is also an array of powers to issue mandatory admin orders in the event of unapproved release of contaminants.

Outline of model: (1) interpretation (with definition of key terms) (2) statement of purpose (3) scope of application (4) prohibition against discharge of contaminants without an approval (5) application procedure provisions and power in designated official or authority to grant approvals (6) enforcemtn order powers (8) offences (9) regulation-making powers

Interpretation: includes key terms that delineate the application of the regime and establish enviro standards for environmental harm. Application may be defined in terms of contaminant sources rather than or in addition to contaminants or substances. Standards for enviro harm may also be defined in terms of effects.

Purposes: there is a trend toward more elaborate purpose sections in enviro regulatory statutes eg: MN and AB.

Application Procedure and Approval Powers: normally included in the Act with details of timing, manner, and required information specified by regulation.

Enforcement Orders: As in AB, there may be a general enforcement order power that includes various mandatory requirements as well as suspension or cancellation of approvals. More conventional powers authorizing (1) control orders concerning contravention of regulation standards or approval terms and (2) stop orders designed to shut down an activity causing contamination dangerous to human life, health, or property, are exemplified by OT Act.

Offences: an array of offences is normally included – strict liability with specific statutory due diligence provisions, or even in AB explicit mens rea offences. Key offense = engaging in prohibited activities, contravening an enforcement order, failing to comply or to report release of contaminant.

Regulation-making powers: may include ministerial regulation powers, generally concerning matters of administration and the more usual powers authorizing the L-G in council to make regulations.

Pages 171-176Interpretation of Environmental Legislation Courts have applied general principles of statutory interpretation – but often not clearly articulatedSK Action Foundation for the Environment Inc v. SK Minister of the Env and Public Safety 1992 SKCA

Main issue: whether and to what extent do members of the public have a right of access to documents in the possession of the Minister and documents related to projects or developments which have undergone, or are undergoing, or are liable to undergo, assessment under the provisions of the EAA SK?

SAFE argues that (1) because Minister did not claim documents as having public interest immunity, they are subject to disclosure and production (2) right to production and disclosure is contemplated in the Act itself under definition of ‘person’.

Crown argues that (1) there is no right at CML or under statute to disclose except as provided by s.11.2 and (2) that Act does not create private rights – therefore SAFE has no standing (3) mandamus does not lie (4) the matter is moot and the application untimely.

Held: that there is a right to disclosure and a duty to disclose founded in the statute. Only when it is ‘not in the public interest or in the interest of any person’ within meaning of s.7 do they not exist.

There is a close analysis by the Court-no equivocal meanings found in the provisions of the Act–there is a broad definition, followed by an exception. Interprets a requirement for meaningful public input from various sections of the Act.

PUBLIC PARTICIPATIONChapter 7 Public Participation Generally

Anand and Scott “Financing Public Participation in Environmental Decision Making” (p. 236 csbk) Barriers facing public interest groups wrt public participation:

1) env concerns of average citizen are spread across a great range of projects, issues and locations…so difficult to make views known very forcefully to gov’t

2) env interests are not homogeneous unlike highly concentrated producer interests

3) free rider problem (no one will get involved thinking others will make the effort and they can reap the benefits w/o effort)

A common response to the argument for increased public participation is that it’s unnecessary given that public agencies such as admin tribunals and crts are entrusted w/ the dual role of regulators of the industry and representatives of the public interest. But, the agency capture by regulated interests has taken over tot a large extent (i.e., the regulator and regulated industry develop a close relationship such that the general public interest is on the back-burner). Three things contribute to this occurring:

1) limited resources of admin agencies along w/ the mass of things they are expected to do necessitates a close relationship b/w the regulator and the regulated industry to provide info

2) dependence of regulatory agencies on the regulated interests for political support (b/c they can’t rely on gov’t to protect them fr. legislatory attack)

3) gov’tal agencies rarely respond to interests that are not represented in their proceedings

Benefits to increased public participation:1) greater range of ideas presented

2) enhanced public acceptance of admin decisions3) problems of agency dependence on industry for political support may be

alleviated by the broad participation of other parties4) induce decision makers to be more thorough in their analyses and to articulate

more clearly and precisely the reasons

Public Interest Standing

Over the past 2 decades, crts have gradually liberalized the law of public interest standing. The landmarks in this evolution are:1) the standing trilogy of Thorson, McNeil, and Borowski2) the enactment of the Charter 19823) the extension of public interest standing to non-constitutional cases in Finlay

SCC decision in the following case is seen by some as evidence that we may be in the twilight of this liberalization trend (although not all crts see this case as limiting or altering the ratio in Finlay):

Canadian Council of Churches v. R (1992, SCC)Facts – CCC sought to challenge changes to the Immigration Act wrt current and future refugee claimantsIssue – Standing?Held – No…Cory cited the current situation in Canada w/ reference to Thorson, McNeil and Borowski. Quoting fr Borowski, he said the conditions which a plaintiff must satisfy in order to be granted standing are that “a person need only show that he is affected by it directly or that he has a genuine interest as a citizen in the validity of the legislation and that there is no other reasonable and effective manner in which the issue may be brought before the crt”. Cory then looked to Finlay for post-Charter opinion and said that that case extended the scope of the trilogy and held that crts have a discretion to award public interest standing to challenge an exercise of admin authority as well as legislation. However, Cory went on to stress that the granting of standing to a public interest plaintiff is limited to cases where no directly affected individual might be expected to initiate litigation. He says that this limitation ensures that the proper balance be struck b/w access to justice and preserving judicial resources. Here, he held that the issue would likely be the subject of attack by a private litigant and thus denied the application. Note then that public interest standing is discretionary and not granted as of right

The following cases show how crts have decided wrt environmental public interest standing:

Shiell v. Atomic Energy Control Board (1995, FC, TD)Facts – AECB approved an amendment to the operating license of a corporation wrt uranium mining operations on land several hundred miles away fr where Shiell had her home. S. sought judicial review of this decision.Issue – Should she be granted public interest standing?

Held – No. She was not personally or directly affected. Although she was interested in uranium development and participated in inquiries and hearings on the subject, she lives several miles fr the corporation in question’s operations and the decision of AECB will not affect her in any way different from that felt by any other member of the general public. She is a mere “busybody” who does not warrant the allocation of scarce judicial resources.

Algonquin Wildlands League v. Ontario (Min of Natural Resources) (1996, Ont, TD)Facts – Env groups brought a judicial review application arguing that timber harvesting activities that had been authorized by the Min violated a provincial law on forest sustainability.Issue – Should the group be granted public interest standing?Held – Yes. Here the crt said there was no other reasonable or effective manner in which the issues are likely to be brought before the crt. Although it was suggested that the Min of the Env might bring a claim, the judge said this is highly unlikely. He also said that the citizens living near the site would also not likely take action because there was a great amount of controversy surrounding the issue and many people supported the harvest.

Availability of Interim Injunctive Relief

Crts have been very unsympathetic to public interest litigants wrt the availability of interim injunctive relief. The following case demonstrates this:

Algonquin Wildlands League v. Ontario (Min of Natural Resources) (1996, Ont, TD)Facts – see aboveIssue – Should a stay order (analogous to an injunction) be issued to halt the harvest pending judicial review of the Min’s decision?Held – No. Sauders refers to the three stage test for injunctive relief provided in Borowski: 1) is there a serious issue to be tried? – here the judge says that unless the case on the merits is frivolous or vexatious or is a pure q of law, you should move to next step ..here judge said that since the applicants have raised issues of statutory interpretation and ministerial conduct which are not frivolous, go to next stage; 2) would the applicant suffer irreparable harm if the stay were refused? – here the judge says that in the case of public interest applicant, this step should be skipped b/c they don’t personally suffer any harm and to grant them standing and then refuse them relief b/c they had not suffered harm would be illogical; 3) what is the balance of convenience? That is, which of the parties would suffer the greater harm from the granting or refusing the interim relief. – here, the judge acknowledged that there would be some irreparable harm to the natural growth and wildlife but held that the gov’ts interests in Crown revenue and employment in the community were weighing heavily against this. He noted that the decisions made wrt logging necessarily involve a weighing of public interests and the judge is willing to defer to the Min’s decisions absent some proof that the Min was breaking a law (which here he was but according to the judge, there was no link b/w that breach and the damage now complained of).

A similar result was reached in Western Canada Wilderness Committee v. AG BC (1991, BC, CA). There, the judge dismissed an injunction to stop the construction of a logging road in the last unlogged valley on eastern Vancouver Island (and near a gathering place for Orca whales) on three grounds:1) the applicants had no direct or indirect interest that would be adversely affected if

the road building continued2) the applicants had not proffered an undertaking to indemnify the company as to

damages; and3) completion of the road in this remote location would not amount to irreparable

harm. Elgie commented on this decision in his article “Injunctions, Ancient Forests and

Irreparable Harm: A Comment on Western Canada Wilderness Committee v. AG BC” He said the following wrt to the three grounds of denial of the injunction:1) Since Findlay, lack of a distinct interest is no longer a barrier for standing wrt

admin actions so it doesn’t make sense that it is weighed against them in awarding interlocutory injunctions. “There is no rational foundation for such differing treatment”.

2) Public interest plaintiffs are generally private citizens or non-profit organizations which don’t have the money to put up security for costs. “There is ample precedent establishing that a plaintiff who raises a substantial issue and are acting in the public interest to preserve the status quo ought to be relieved of the obligation to pay damages should their injunction later be dissolved…”

3) Judgement says little about why the harm is not irreparable. There is some mention of the remoteness which is strange b/c wilderness areas by dfn are remote. Also, there is mention of the small size of land in q…but this argument works equally well for the logging company. Once an old-growth forest is cut, hundreds of years must pass before the biological diversity returns. In the interim, no amount of human effort or money can replace it.

Costs and Public Interest Litigants

Tollefson, “When the Public Interest Loses: The Liability of Public Interest Litigants for Adverse Costs Awards” (p. 269 csbk) In the US there is a well developed public interest costs exception (i.e., if public

interest group is unsuccessful, they are not responsible for opponent’s costs) In Can case of Sierra Club v. Chief Forrester and MacMillan Blodel (1993, BC,

SC), Smith J declined to recognize such an exception for fear that this would give rise to the dangerous principle that public interest litigants should be insulated fr an award of costs in all cases” and would not foster responsible public interest litigation. Tollefson disagrees w/ this conclusion.

Factors favoring an award of costs:-In the Sierra Club case, the judge held that MacMillan was entitled to costs b/c they are a private party not a public agency. Tollefson questions this….b/c they are so wealthy, they are in fact somewhere b/w private and public. Also, they added themselves voluntarily as part of the action against a public agency.

-There is also a problem in awarding a public interest exception that “public interest” is not easy to define (if it’s possible at all w/ such divergent potential interests)

Factors favoring a costs exemption-An argument made in Sierra Club was that the petitioners were performing a valuable public service. -Further, resolving env issues in court is a responsible way to deal w/ very difficult issues that deeply affect people (its better than forcing people to chain themselves to trees)-Awarding adverse costs also increases access to justice for normally poor public interest advocates.

McCool, “Costs in Public Litigation: A Comment on Prof. Tollefson’s Article” (p. 272 csbk) Author argues that we can’t determine the presence of the public interest either

from the content of the positions advanced by the parties to litigation or from the presence or absence of a personal or direct interest in the outcome of the litigation.

Instead, it is the subject of the litigation which should determine whether a public interest exists (i.e., if a group interest rather than individual interest is involved) It doesn’t matter if the party in question is public or private but whether the own or control (or are questioning the acts of) something which is of public consequence.

Strategic Lawsuits Against Public Participation (SLAPPS)

Tollefson, “Strategic Lawsuits and Environmental Politics: Daishowa Inc. v. Friends of the Lubicon” (p. 274 csbk) SLAPPS are lawsuits commenced and maintained for the purpose of chilling

public participation in decision-making processes. They are typically brought by corp interests and target citizens and citizen organizations for taking part in lawful demonstrations and boycotts, reporting health or env offences, circulating petitions, even attending public meetings.

Started in the US where there are hundreds and maybe thousands filed every year. W/ increasing ways for Canadians to participate, SLAPPS have come north. An e.g. was the case of Daishowa Inc. v. Friends of the Lubicon where a pulp and paper company brought suit against a small env group, who advocated a ban on their paper products, for allegedly illegally conspiring to injure its business.

Author argues that legislation is needed to combat the SLAPP since the Charter protection don’t seem to be enough.. The legislation should:-recognize a statutory right of public participation that has legal force in dealings w/ both gov’t and w/ other private actors…framed as broadly as possible to encompass the diverse ways people can participate (short of criminal acts)-prescribe the remedies available to a person who believes their rts to participate are being threatened by a SLAPP lawsuit….a pretrial motion for dismissal would be effective

-state funded legal aid for applicant who are able to satisfy legal aid administrators that they are the target of a SLAPP-compensate successful SLAPP targets for all litigation expenses

Statutorily Provided Public Participation

Both CEPA at Part 2 (Public Participation), and the EQA Div III.1 (Right to a Healthy Environment and to the Protection of Living Species) and Div. XIV, ss. 117 & 118 provide for public participation.

TOXIC REAL ESTATE

Chapter 8

Introduction Many sectors of Cdn economy have contributed to problem of contaminated lands throughout Cda. The sale, ownership and mgmt of these contaminated lands with toxic substances, wastes and other

hazardous materials increasingly has occupied the interest of the real estate, business and financial community as well as gov’t due to the potential for liability to injured private parties or gov’t for clean-up and compensation costs.

Three areas of law: (1) private rights of action among purchasers, vendors + other persons involved in toxic real estate (2) regulatory controls and liability involving other potentially responsible parties such as owners, operators, lenders, receivers, receiver-managers, and trustees in bankruptcy for contamination of land and (3) insurance coverage for damage arising from environmentally contaminated property.

Liability of vendors Caveat emptor – buyer beware – you should make proper inspections before you purchase. Eg: look

for any tanks above or below ground – check for contamination. There are exceptions for latent defects that are not perceptible at outset.

Latent – if you know of it, vendor’s obligation to disclose. Patent – no vendor obs to disclose.Tony’s Broadloom & Floor Covering Ltd v. NCM Canada Inc 1995 OT Issue: liability of vendors under K principles. Did the vendor fail to advise the plaintiff that the land

had been contaminated by varsol = a latent defect? Held: that contamination was readily discoverable by the purchaser and was a patent defect. Caveat

emptor applies where an inspection by a reasonably competent person would have revealed defect. Vendor silence on defect doesn’t amount to fraudulent or negligent misrepresentation. No +ive duty. Some provinces have since imposed some disclosure requirements on vendors eg: BC Waste

Management Act – requires vendors to compile a site profile to prospective purchasers.Sevindal v. Chopra [1988] OT Issue: liability of vendors under tort principles. Did the vendors owe a duty to the purchasers to

disclose the presence of radioactive material in the area before agreement to purchase was signed and/or the later discovery of its presence in the property before closing?

Held: latent defect – caveat emptor doesn’t apply. Vendor’s active concealment = fraudulent misrep.

Also issue: liability of real estate agents and solicitors. They may attract env liability in a land transaction in contract or in tort if they fail to exercise a reasonable degree of care and skill.

Held: real estate agent failed to explain the waiver to the purchasers and did not meet the level of competence expected of her. Here, the solicitor was found to act in a reasonably competent manner.

Heighington v. Ontario [1990] OT Issue: gov’t may attract enviro liability in the context of real estate matters as a vendor of land or

regulator. Here, prov dept of health became aware of contaminated soil on property in 1940s. In 1970s, prov housing dept leased the land to developers. Contamination discovered after homes built.

Held: province was negligent – duty imposed by the Public Health Act.Liability of Owners and Operators In addition to private rights of action by purchasers against vendors and others in the connection

with the sale of toxic real estate, a variety of other parties with interests in the contaminated land are subject to regulatory controls and liability. Eg: owners, operators, lenders, receivers, trustees.

Legislatures of many prov have vested enviro ministries with broad authority to order the clean-up of contaminated property [soil and groundwater].

Canadian National Railway Co v. Ontario [1992] OT This case exemplifies judicial treatment of current + past owners and operators under early

versions of statutory authorities. By OT Enviro Protection Act, the Board found that the contamination of the soil and water as a

result of continuous, present and past activity on site. Held: that the owner of the land that is a source of the contaminant was not responsible as the land

did not occupy, control or manage the site and the source of contamination. Nor was the former occupant as it cannot re-enter the site + control seepage. Only the present occupant is responsible.

Waste Management Act [1996] BC Treats current and past owners and operators as persons responsible for remediating contaminated

sites, subject to certain exemptions.Liability of Lenders Lenders can be held liable for the costs of remediating the contaminated property of those who

borrow from them if they assume ownership of the property or exercise control or mgmt.CNR v. Ontario [1991] OT Issue: is a mortgagee who is not in possession an owner responsible under the Act? Held: if a mortgagee has taken no active steps with respect to gaining or obtaining control of the

property, it is not responsible. [a simple holding of security is not sufficient to bring under the Act].Re Karge [1997] OT Env. App. Bd. Issue: Karge sold farm property and took back a second mortgage on property. The new owner

brought 30,000 used tires to the site w/o enviro approval, buried them with knowledge of the Ministry and abandoned site when it began to threaten groundwater. Karge tried to sell property and rented it in the meantime. Ministry ordered Karge to remove the tires.

Held: that as second mortgagee, he did not have charge or control of the property by attempting to sell the property, as all his rights were subservient to those of first mortgagee. Although minimal, he did do so by renting the property and collecting rent (but Board gave some relief as he did not actually bury the tires and because of the involvement of the Ministry).

Global Agreement Concerning Environmental Investigations Attempt to provide lenders with a standard agreement with some assurance about the scope of their

enviro liability for properties on which they hold security and want to realize.Waste Management Act [1996] BC

Treats lenders as persons responsible for remediating contaminated sites, subject to certain exemptions. No responsibility if they impose compliance of enviro laws, take steps to protect value of secured assets or reduce contamination.

The liability of receivers and receiver-managers Receivers are appt by creditors or pursuant to a court order to take possession and control of the

property of bankrupt or insolvent persons. Receiver managers have further responsibility of carrying on the business of the debtor. Liability only where clean-up order made under legislation.

Panamericana de Bienes Servicios SA v. Northern Badger Oil & Gas Ltd [1992] AB Found that the costs of enviro cleanup take priority over a secured party’s claim in the distribution

of the assets of an insolvent party. Remedial costs should not be charged to the public.Standard Trust Co. v. Lindsay Holdings Ltd. [1995] BC Receivers have also petitioned for appointment orders that seek to limit their enviro liability to the

amount realized from the sale of the bankrupt’s property after they have been paid, unless the receiver has engaged in wilful misconduct or gross negligence. Such an order sought in this case.

Held: that protection of the receiver as sought represents a potential encouragement to creditors to have a have a receiver appointed to improve the creditor’s position. If you stand to gain – you accept the risks.

The liability of Trustees in Bankruptcy The Bankruptcy and Insolvency Act permits trustees in bankruptcy to be appointed by courts to

administer the estates of bankrupt persons – the courts and Parliament treat trustees somewhat better than other potentially responsible parties.

Re Lamford Forest Products Ltd [1992] BC Held: that trustees do not become personally responsible for any other debts of the bankrupt, so it

cannot be held liable for the costs of cleanup beyond the funds realizable from the estate. Only the trustee’s fees may be subtracted before meeting costs/requirements of cleanup order [other creditors must stand in line].

Insurance Potentially responsible persons are seeking insurance protection to cover costs of enviro claims and

gov’t orders. To what extent is coverage available esp where exclusion clauses in policies?R v. Kansa General Insurance Co [1994] OT Illustrates the effect of a pollution exclusion clause in a policy of insurance in the context of a

claim of negligence against the government. Held: that the regulatory negligence of the Crown is not an intervening act which takes the

occurrence or the damages outside the scope of the pollution exclusion clause.CCQ provisions on warranty of quality – from classnotes Art 1726 – on defects that diminish usefulness or intended purpose of the purchaser which is

known to the vendor – purchase priced affected. Strict distribution of risks borne by the vendor. Art 1728 – remedy = revision + damages Art 1401 – error induced by fraud vitiates consentCommon Law Basic remedy = recision of sale contract Rule depends on actual knowledge of vendor of the purposes intended by purchaser

eg: for residential or industrial use. Also on rules + regulations in place. Fraudulent misrepresentation (takes us away from patent + latent defect).

Information withheld when faced with direct inquiry.

Three categories of misrepresentation/fraud – (1) statement made knowingly, recklessly (2) conceal inform (3) failure to disclose a potential danger – not a question of warranty.

Section 20 EQA analysis s. 19.3 on how to bring an injunction see hand-out problems

SELF REGULATORY INITIATIVES (Mar. 1)

Self Regulation

Controversial…”leaving the fox to guard the hen house”…but many critiques of the command and control approaches (e.g. lack of adequate resources, commitment, unsuited for the task at hand etc.) have merit and maybe this is an acceptable alternative.

Gov’t is moving rapidly in direction of self-regulation. Such regs have to be open for public scrutiny if they are to succeed.

Types of self-regulation:

1) Voluntary Codes of Conduct usually have little gov’t involvement adherence is entirely voluntary incentives to participate are largely wrt public relations but also companies

may be seeking a head start to legislation which is likely to be passed in the future

e.g. Canadian Chemical Producers’ Association (CCPA) (from the Memorandum of Understanding on web) “The objective of this

Memorandum of Understanding (MOU) is to reduce the release of chemical substances through voluntary,non-regulatory action under CCPA Responsible Care® by encouraging and publicly recognizing progress on the part of the CCPA and its member companies. This MOU establishes an understanding and process involving the CCPA, CCPA member companies and the Governments of Canada, Ontario and Alberta with respect to environmental protection that:- will contribute to achievement of Canadian environmental and population health objectives through voluntary, non-regulatory actions by CCPA member companies under Responsible Care®;- will contribute to Canada’s long-term prosperity by promoting the progressive implementation of pollution prevention measures and of management practices that are environmentally sound and promote eco-system and population health;- will build mutual trust in dealing with environmental protection issues between CCPA and its member companies and the federal government.This MOU is not intended to be legally binding and is not intended to replace, limit or preclude the participation in, development or

implementation of environmental protection initiatives by any of the signatories.

e.g. British Columbia Pollution Prevention Demonstration Project: (from the final report on the web) “In 1996, the British Columbia Ministry

of Environment, Lands and Parks (MELP), the Canadian Chemical Producers’ Association, and six companies embarked on a project to develop and demonstrate pollution prevention (P2) planning at major industrial operations located in British Columbia. The participating companies were representative of a cross-section of industries active in the province and included producers of metal products, forest products, natural gas, cement, chemicals and fertilizers. The impetus to embark on the British Columbia Pollution Prevention Demonstration Project reflected the participants’ collective desire to examine alternatives or complements to the traditional “command and control” and “end of pipe” regulatory approaches, which have been prevalent in British Columbia over the last three decades. Although these approaches have led to significant improvements in environmental quality and management of the environment, there was a general awareness that substantial new gains in environmental protection would not likely be achieved under the prescriptive and often adversarial climate that exists under command and control. In addition, there was a recognized need to shift the emphasis in environmental protection from pollution control to pollution prevention.

The Demonstration Project goals, objectives and overall terms of reference were set out in a Memorandum of Understanding (MOU) signed by the parties. The overall goal of the parties was to determine whether P2 planning could contribute to achieving a better standard of environmental protection while accommodating social and economic concerns and priorities.The parties recognized that achieving this goal would require a cooperative effort, with open communications and a transparent process.

The MOU set out a series of objectives to guide the Demonstration Project. These objectives included: n To design an innovative, effective, and consultative process for developing and implementing P2 planning;n To implement P2 plans at the sites selected by the association and volunteer companies;n To evaluate the costs and benefits of P2 planning as analternative to conventional permitting processes;n To reduce emissions of pollutants through P2 planningand voluntary actions;n To develop techniques and procedures that improve theenvironmental and economic performance of the participating companies;n To promote the use of public consultation with otherstakeholders to identify their interests and reflect those interests in P2 planning;n To document and develop a framework for P2 planning;

n To develop recommendations to eliminate duplication and overlap within and between each government; andn To contribute to the development of a single facility-wide P2 process to integrate into one plan all permits, regulatory requirements, approvals and authorizations.

2) Statutory Self Regulation prototype – self-governing professional organizations the state delegates to non-state organizations the authority to regulate the norms adopted under such schemes are enforceable at law the norms are drafted by the association in question

3) Firm-Defined Regulations gov’t adopts a framework of rules and then delegates to the firm the authority

to create more specific rules and regulations (but w/ less latitude in drafting the rules than w/ 2) above)

the firm is responsible for implementation

4) Supervised Self-Regulation administrative agencies created by the gov’t membership is mandatory for all firms in the industry e.g. Securities Commission constant supervision by gov’t usually through quasi-judicial tribunals rules are made by the gov’t and implemented by the members

5) Regulatory Self-Management rules made by the gov’t and gov’t retains residual control over implementation

and monitoring compliance compliance can be dealt w/ in 3 ways:

a) oversight organization created by the gov’t to conduct investigations, write reports etc….when non-compliance is found, a file is turned over to the agent specialized in the legislation

b) industry-hired independent auditorsc) firm-created internal compliance structures

Examples of Self-Regulatory Initiatives

1) Accelerated Reduction and Elimination of Toxins (ARET) 1991 fed initiative established emission reduction targets for a list of substances voluntary participation but gov’t threatens they will impose regulations if firms do

not comply results oriented short term goals: 90% reduction in the most dangerous toxins; 50% reduction in

other toxins

program has seen some success but problems also surfaced such as a lack of verification for results, a low rate of participation, incomplete reporting, and the program reaching the limits of its viability (i.e., the last % of toxins is much harder to get rid of…so voluntary measures are unlikely insufficient at this point)

2) Initiatives geared towards particular industries (sectoral) fed and prov gov’t and industry are all involved the focus is on pollution prevention and life-cycle management voluntary adherence eggs. pulp and paper and mining industry Canadian Chemical Producers’ Association and the gov’ts of Can. , AB and Ont

reached an agreement in 1994 which established a steering committee which set global end-results targets (see above)

problems include: lack of publicity of the initiatives so no peer pressure factor, figures of individual firm are not available…only aggregate figures for all firms in industry

3) Pollution prevention project umbrella under which individual pilot pollution prevention plans (ppps) are

created objective: offering an alternative to command and control systems and end-of-the-

pipe solutions comments of the Commissioner of Environment and Sustainable Development (a

fed Min. who’s mandate is to achieve an overview of gov’t policy from an environmental point of view): problems w/ ppps = no targets or time lines, the base lines for substances are not always known so progress is difficult to measure.

new CEPA has provisions on ppps (for the substances listed under the old CEPA) – Part IV art. 36 – “Min. may require ppp for substances”. Feds got around the s.92 problem by a) having ppps apply only to substances listed in CEPA or in the International Agreement on Air Pollution at art. 166 or in the International Agreement on Water Pollution at art. 176.; b) make content of the plans general and vague…little is provided about what they are supposed to contain

for substances under the new CEPA, ppps are used to supplement regulations or in the interim while the gov’t is drafting legislation for the substance in question. Exceptions: Min. will require ppp for certain substances except where it is declared unnecessary. So now there is a regulatory backdrop but ppps are also required in some cases.

Virtual Elimination Plans are also required in certain cases in the new CEPA (art. 79). The procedure for such plans is basically the same as for ppps but the regulatory framework is different….the Min can set deadlines for elimination and regulations in the interim.

Assessing the Likelihood of Success of Initiatives

The Commissioner for the Environment and Sustainable Development claims these initiatives aren’t sufficient

Conditions for success include:1) the credibility of the threat that if voluntary regulations aren’t adhered to, non-

voluntary ones will be imposed (prof says this isn’t a problem b/c in order for gov’t to assess whether voluntary codes are being adhered to, there must be effective means to determine which firms are adhering…and as seen above, only aggregate figures, if any accurate figures at all, are provided…also there are no base-lines established so how can we judge whether program is successful)

2) industry wide participation (this is a problem…under new CEPA the Min can require ppps from all firms in a given industry but the requirements of such plans are limited.

3) accurate and firm specific reporting (as seen, unlikely)4) public access to info wrt firm compliance for peer-pressure reasons (also

problematic)5) focus on environmental initiatives (not merely cost reduction which is now the

case….problem b/c effective development and implementation is very costly)

ECONOMIC INSTRUMENTS FOR PROMOTING COMPLIANCE (Mar. 6)

The Economic Alternative

The assumptions that underlie an econ approach to public policy are:1) legislation has as its objective to change the behaviour of people2) regulation and econ incentives have the same goal in env protection = to increase

the cost of pollution3) people act according to maximize their net econ benefits

Argument presented in favor of econ policies and against command and control:1) command and control is much more expensive than leaving the regulation to the

market forces2) regulations are inflexible which can lead to inefficiencies (e.g. if a firm has to

adopt a certain pollution prevention technology due to the implementation of a regulation, it may not seek cheaper and more effective alternatives)

3) regulations are usually framed broadly which leaves it to individual firms to comply at a base level (I don’t understand why she said this is an argument against command and control)

Problems With the Economic Approach

Howse, “Retrenchment, Reform, or Revolution? The shift in Incentives and the Future of the Regulatory State” (web) Howse argues that regulatory instruments should be complemented or replaced by

other incentive programs. He criticizes econ instruments in that they are an oversimplification….econ

incentives can have undesired outcomes working against the goals. Even if well designed, econ instruments may not be good for stigmatizing

undesirable behaviour.

Thus, an interplay is needed between econ regs and other instruments.

Market failures which render an economic approach problematic (from lecture notes and Haveman and Knopf “The Market System” p. 362 csbk and Hardin “The Tragedy of the Commons” p. 369):

a) (from Haveman and Knopf) environmental quality is a public good…everyone benefits…thus, the market fails because any efforts taken by one person benefits all the others so there is no incentive to do anything (the free rider problem)

b) (form Haveman and Knopf) spillover effects (externalities) – when certain things are produced and sold privately, some people are required to incur costs for which they are not required to reimburse or they receive benefits for which they do not have to pay. As a result, private costs and gains may not coincide with total social costs and benefits. Then, too much or too little of the good will be produced and resource misallocation results. Such spillover costs and benefits also have a time dimension (i.e., they cross generations)

c) (from Hardin) tragedy of the commons – since many facets of the environment are held in common, individual actors will seek to maximize their gain (i.e., if no one owns the proprietary rights, there is nothing to stop everyone from exploiting the environment to the greatest extent possible) Privatizing a resource is a common solution which forces the owner to consider not only the short terms but also the long term sustainability of the resource. However, this assumes that the owner will have enough knowledge or have the desire to promote sustainability.

d) incongruance with the market and the environment – the market does not address social costs and all costs that do not translate into dollar values (i.e., the market is a poor allocator of resources for which there is no price tag)

Solutions to Market Imperfections:

Polisky in “An Introduction to Law and Economics” explains the Coase Theorem. Coase was of the opinion that without transaction costs, no matter what policy is adopted to change the status quo, the efficient solution will be reached. Polinsky provides the example of a factory emitting smoke causing damage to the

laundry hanging outside of the homes of five residents nearby. Either the firm can buy a smokescreen at a cost of $150 or each of the homeowners can buy a fan at a cost of $50 per resident (so total $250). Coase suggests that here, whether you force the polluter to buy the smokescreen by giving the residents a right to clean air or force the residents to get together and negotiate with the factory to install the smokescreen if the factory is given the right to pollute, in either case the more efficient purchasing of the smokescreen will result. The problem is that getting the residents all together is a positive transaction cost. Coase then expands on his theory by saying that when there are positive transaction costs, the efficient outcome may not occur under every legal rule. Under these

circumstances, the preferred legal rule is the rule that minimizes the effects of these transaction costs.

So, Coase suggests, we must look at the possible legal rules aimed at halting pollution only with an eye for the lowest transaction costs:

1) individuals suffering costs should individually seek out redress through nuisance actions. The transaction costs involved with each individual taking a suit is far greater than those involved with some form of collective action

2) collective lawsuits/class actions. Lower transaction costs but still significant.3) polluter buys pollution abatement equipment. High transaction costs involved

(i.e., the people in the neighborhood would have to all get together and negotiate with the polluter)

4) adopt regulations requiring the polluter to purchase pollution abatement equipment. Lower transaction costs but adopting legislation also has transaction costs (the initial costs of setting it up, monitoring, enforcing compliance….there are also costs involved in forcing people to change the status quo in both monetary and political terms-which can also be monetary)

Cost-Benefit Analyses

They play a role both in public policy making and the economic approach to environmental protection.

They involve a comparison of marginal benefits and marginal costs. The 2 major theories used to determine whether a proposal’s benefits outweigh the costs are (from Cinti, “The Regulator’s Dilemma..” p. 373 csbk):1) Pareto efficiency – a good decision is one in which the welfare of at least one

person is ameliorated without a corresponding harm to another. Thus, resources will continue to be reallocated until the Pareto optimum is reached. A problem with this approach is that it is inherently conservative because rarely will an action not harm a anyone. Also, there is no consideration paid to the weight of different forms of harm (i.e., would it not be logical to consider harms to health as more detrimental than harm to property?)

2) Kaldor-Hicks efficiency – look at the aggregate increase in welfare. This approach is more utilitarian and less conservative than the Pareto criterion, but it suffers from a lack of consideration for the distributional effects of a decision. For example, if all the harm falls on one group, this can be ok as long as the net benefits outweigh it. This can lead to inequity in results.

There are several problems w/ using cost benefit analyses (from Cinti’s article csbk p. 374)1) they require that a dollar figure be put on things that typically aren’t viewed in

that manner such as resources and health of humans. Environmentalists often argue that assigning a dollar value to a tree fails to account fully for the inherent value…or perhaps that there simply is no way to determine such a value. And by assigning a value, it seems to turn the environment into merely another cost of business (i.e., if I can sell the tree for more than it’s worth then everything is A ok). On the other hand, some argue that failing to assign dollar values to

resources would be more detrimental because human beings tend to respond to dollar figures rather than notions of inherent values.

2) there is no consideration of the distribution of costs and benefits3) it’s contingent on the existing distribution of wealth4) it has daunting informational requirements

How are calculations made about the value of the environment? There are several methods. The main ones are:1) willingness to pay surveys. People are surveyed and ask what they would be

willing to pay to have access to a lake for fishing for example.2) willingness to pay to maintain access surveys (compensation demanded). Here

people are asked how much it’s worth to them to maintain their access to the lake. In theory, survey takers should obtain the same number with both methods but in

reality, as pointed out in Knetsch’s article “Economics, Losses, Fairness, and Resource Use Conflicts” (p. 379 csbk), 2) receives higher values and thus leads to greater conservatism. “People value losses much more than they do commensurate gains” (p. 381 csbk). Studies have shown that people are willing to pay from between 2-3 and 5 times more to retain rights than to acquire them. So, the choice of methods to calculate value is very relevant to the policy chosen.

Howse in his article (see above) suggests that a better way of valuating is through public debate re: the relative values of various amenities. (i.e., translate the debate back into the language of public policy because then dollar values need not be discussed)

Tools for public policy makers to enable market forces to drive environmental protection

There are several instruments available to public policy makers to control external costs (from Heilbroner, “Understanding Microeconomics”csbk p. 366 and Scott, “Economic Incentives: The Problem of Getting Started” csbk p. 385):1) fines on polluters - this is sometimes the cheapest and most effective way but it is

problematic in that there may be expensive monitoring costs involved. As Scott points out, fines usually give an incentive to firms to behave in an all or nothing fashion.

2) regulation of polluters – polluters can often externalize costs that then fall on many individuals (and result in market imperfections)…thus taxing them or requiring permits forces them to internalize these costs. The assumption behind such taxes/permits is that polluters will attempt to decrease pollution rather than pay. So they are meant to change the incentive structure to change behaviour. As Scott points out, these “polluter must pay” policies are often attributed to economic reasoning b/c it’s supposed to prevent countries attracting industry by offering a haven to the worst polluters. This principle in embodies in the Stockholm agreement. But, there are problems with this approach:a) polluters may start to see that they have a right to pollute if they pay to do so.b) for highly toxic pollutant, taxes/permits won’t workc) monitoring and enforcing costs are involved in such a schemed) who will tax the gov’t when they are the polluters

3) gov’t grants, subsidies and tax reductions - implementing such a subsidy program may get around problems a) and b) above (i.e., have the gov’t pay for part of pollution abatement equipment to companies willing to install it). A possible method pointed out by Scott is to use an abatement subsidy approach where the authorities would pay a fee to each firm for every ton they can stop emitting. However, there is now the problem of the moral dilemma of providing tax dollars to firms polluting the environment.

4) transferable emission rights – here the gov’t gives out a limited number of permits that are freely transferable giving firms the right to pollute. An initial problem is how to allocate the permits. If they are simply given out based on firm size, there will be large transaction costs involved with firms coming together to negotiate to acquire more permits or sell them. A solution would be to have the allocation based on current pollution levels. Firms can then decrease their rates of pollution and sell permits. Therefore, firms that can cheaply reduce pollution will do so and sell their excess permits to firms where pollution reduction would be very costly. The goal of gradually reducing pollution could then be achieved by slowly taking permits out of circulation. This method would encourage the development of pollution reduction equipment...however, of the new technology becomes widely available, the permits will decrease in value. This creates the perverse incentive on firms to keep their technology advances secret. -Examples of marketable permits are provided by McFetridge in his article “The Economic Approach to Environmental Issues” csbk p. 389 – a) A system of marketable effluent permits was introduced in Fox River, Wisconsin in 1981 which allowed the holder (pulp and paper mills and municipal waste treatment plants) to discharge effluent., b) the EPA allows limited trading in the right to emit carbon monoxide, sulfur dioxide and nitrous oxides, c) from 1982-87 the US gov’t gave lead rights to oil refiners to encourage them to decrease the lead in gasoline…this program was considered to have been effective.-One of the questions in the casebook (p. 393) asks about the possibility of allowing environmental groups to purchase the permits to reduce pollution by taking them out of circulation…good idea!

Consumer Approaches

Kimmel, “Disclosing the Environmental Impact of Human Activities..” (csbk p. 394) Kimmell argues that we should not focus all our attention of the supply side….the

demand of consumers for products is a great contributor to pollution. Focussing policies on reducing the demand for highly polluting products (i.e., developing demand-driven economic incentives to encourage compliance with env goals) could have many environmental benefits:1) decreasing the aggregate pollutant emissions2) making the demand for products sensitive to the pollution generated

throughout the product’s life cycle would provide an incentive to producers and disposal firms to meet the consumer demand for more environmentally friendly products

3) providing for a more efficient policy-making mechanism….for central planning agencies, they would no longer be making supply-side decisions based on imperfect and expensive to obtain info. Each producer and consumer would make their own decisions based on market info that would guide those decisions towards env goals.

4) eliminates the problems of trying to force thousands of ambivalent producers to comply with regulatory standards. If consumers demand env friendly products, the producers will comply without any need for the gov’t to monitor.

The csbk at p. 395 asks us to consider whether a range of product taxes could be imposed (like deposits on cans) to reflect the costs to society of solid waste generation.

Wynne, “Defining Green: Towards Regulation of Environmental Marketing Claims” (csbk p. 395) Wynne’s article shows the possibility of making claims against companies for

misleading advertising under consumer protection legislation wrt their environmentally friendly claims.

He points out that most consumers are guided in their consumption choices by env concerns

Vague green marketing terms like “ozone friendly” and “env responsible” imply that they are based on some scientific investigation when in reality they are not…and they are vague and subjective enough that producers can insulate themselves from challenges.

Specific terms such as “recyclable” or “degradable” are also likely to mislead the consumer in that they paint an unclear or false picture of a product’s physical composition and effects on the env. Also, they portray these terms as good for the env when often this isn’t true (for e.g., products can say “recycled” but contain only a small portion of recycled materials…also saying “recyclable” indicates that it may be recycled but not that it will)

The csbk point out the possibility at p. 399 of env groups endorsing product as “green’ in return for a percentage of sales. This has occurred in the US and the UK since the 80s. But the fear of the group becoming tainted is a real one …for example, in Canada the Pollution Probe which began to endorse products at Loblaws came under fire as being corrupt. Consumer boycotts are offered as another alternative especially in an international context where GATT is almost silent on the env. For example, in when the US found out that Mexicans were catching tuna in nets that also caught many dolphins, they tried to ban the import of Mexican tuna. Mexico brought a compliant under GATT and won but the tribunal said it would be ok for the US to label tuna with “dolphin safe” stickers and let the consumer decide. The dolphin safe stickers in fact led to an effective consumer boycott.

ALTERNATIVE DISPUTE RESOLUTION

Chapter 14

Introduction Level of public involvement distinguishes ADR from traditional decision-making methods – citizens

play a direct role with high level of collaboration. Three ‘modes’ of decision-making with increasing public participation –

(1) authoritative – imposition of a decision by an individual or org’n without consulting those who will be affected eg: court-rendered decisions.

(2) consultative – by the individual or org’n of those affected before making the decision.eg: public hearings.

(3) negotiative – individuals or org’n making trade-offs with those making the decision. Three main forms of ADR with the most attention in Canada: (1) mediation (2) contract negotiation (including negotiated regulation reg-neg) and (3) CORE – the BC

attempt to introduce systematic ADR techniques for resolving land-use and resource conflicts. Each form involed the intervention of a third party to assist the parties to resolve their differences. Results of ADR can be non-binding, binding, voluntary or non-voluntary depending on the legal and

regulatory regime. You must always consider the institutional + legal setting in which ADR to take place eg: legislation and enviro policies can place significant constraints on ADR options available.

Class notes In mediation – mediator is objective, like a judge – but there is no judgement. Helps parties come to

a mutually beneficial solution. Plays a persuasive role with focus on procedure and fairness. In arbitration – it is an adjudication of dispute but different than under legislation. There is more

procedural flexibility and the parties decide beforehand if the judgement will be binding. The adjudicator has experience in the field. Includes forms of fact-finding – for example a form of judicial inquiry available by a panel formed under the enviro side agreement in NAFTA.

In negotiation – done with a facilitator and can be formal or informal. Focus here on consensus-building: sharing information, open-ended discussion and consultation with interested parties on an outstanding issue.

ADR and environmental disputes What kind of disputes? Conflicts between two parties that could probably go to court but choose

ADR for cost-effectiveness reasons.1) On issuance of permits (in the context of admin law under CEPA or EQA). Usually the ministry, the proponent and the industry and maybe others involved.

2) On EIAs3) On substances of enviro law and policy. It is based on values and it is no likely to make it before

the courts. eg: CEPA measures on consultations between gov’t, aboriginal groups or NGOs.4) On compliance and enforcement (by a private party only – there are other avenues to go after a

gov’t agency for failure to comply or enforce).

Justification for ADR in Environmental Disputes Ability of the courts and judicial admin agencies to deal effectively with enviro controversies has

been criticized. They have neither the inclination or expertise to effectively address issues because technical/scientific nature and lack of data (and judicial review based on procedure, not substance).

Nature of litigation – it is adversarial. Also turn on the legal issues and because of stare decisis, issues are framed narrowly. It is therefore unlikely that all the underlying poli, econ, soci or enviro values are properly addressed.

ADR attempts to address the concerns of all stakeholders to enviro dispute, including public interest.

Environmental Mediation in Canada Enviro mediation EM is a form of ADR that is a voluntary process of resolving environmental

disputes that requires intervention of a ‘neutral’. Two distinguishing characteristics of EM(1) (unlike arbitration and fact-finding) it is unfettered by

procedural formality, other than those procedures negotiated and agreed to by the participants. (2) The ‘neutral’ plays a unique role – a mediator focused on voluntary assistance.

EM is a voluntary process and parties are free to pursue any other legal remedies. It is consensus-based with parties establishing scope of issues and prepared to negotiate ‘in good faith’. It is non-binding, though there must be legislation or regulation structure in place to implement the settlement. Mediator is passive, though may play educative role in providing information.

Essential criteria of viability for EM Issues relating to the participants – ensure that all parties that may have an interest are at the table.

Page 518 – failure to do so by the Dona Lake Agreement negotiations. Willingness of the participants to negotiate in good faith is imperative as well as the selection of a good mediator.

The nature of the enviro dispute – this is the focus on this w/o being encumbered with substantive and procedural rules that bind the adjudicative process. Focus on balancing of powers.

The institutional legal framework of the dispute Effect of existing law and policy. Was the EM required by statute?

Mediation under CEAA, CEPA & EQA from classnotes

Canadian Environmental Assessment Act on pg 5244 triggers: (1) where a federal agency is proponent of the project

(2) where a federal agency provides funding for a project(3) where project takes place on federal land or involves the cession of fed land(4) where fed agency provides a permit

Two other factors to take into consideration: the exclusion list and the comprehensive study list (these go straight to EIA w/o screening process)If a trigger is present: Begin with screening process – 3 possible results: 1) stop 2) go 3)proceed with EIA. 1) can be a comprehensive study 3) mediation or assessment by a review panel (s.14 CEAA) Minister has discretion as to which of 3 actions to take.

Formal process under CEAA has never been used But enviro mediation on two occasions – though outside CEAA(1) building of crafts harbour in Queen Charlotte Islands(2) re: a sub-category of issues on hydro-electric project. On both occasions, the issues were not resolved by mediation but were never forced to be

subject to a panel review process – so a part success? Often, even though public interest may fail on the surface, there can be surrounding

successes….public attention, narrowing of issues etc.

CEPA provisions Section 29 – (1) general (2) necessity for parties to agree (3) extracting assessment from

mediation. Section 30 – appt of mediator. But no formal mediation under the Act.EQA provisions There is a procedure for public hearings in EIA process [but Ellis is not sure if this an accurate

description of a ‘mediation’]. Art 31.1 – cases where EIA should go forward.

Two lists – of excluded and non-excluded projects (but even if you don’t need an EIA under provincial regulation, you may need to under federal regulation).

Report made public and ministry decides on how much public input/participation required. Art 6.1 et seq – BAPE – division 2.1 of EQA created by art 6.1 and mandated by art 6.3

This bureau has powers of inquiry (many powers of a judge in deciding how inquiry should go forwardtherefore is this really under the scope of mediation?)

The Contract Model - from classnotes K model intended to replace permit system and place obligations on the company – a

voluntariness by attachment of conditions Two K parties willing to bind their behavior according to K Can’t leave remedies and enforcement to CML rules on breach of K = it won’t work.

Need something else – eg: liquidated damages clause where set $ for breach, posted bonds, specific performance and injunctions (equitable remedies). Are these sufficient deterrents – must draft K carefully. **good discussion on remedies on pg 536.

Voluntary mechanisms increase participation of the parties and facilitate compliance. The K model keeps relationship out of the formal regulatory structure.

Negotiation-based Approaches: the contract model of ADR pg 533 Contract model is best suited for ‘process pollution’ where pollution is a normal by-product of a

desirable human activity. Intended for those who desire to avoid pollution and intend to comply with the law. A properly drafted agreement is firm – with support in part by criminal law.

The negotiating of the agreement: vital factor is voluntariness (makes it distinct from permit system).It may take more time, effort, legal and technical expertise, the parties are more likely to come to agree on terms which they can comply with – they also look ahead, make future contingencies and plan how to deal with unpredictable events.

Basic content: the usual stuff. With 1) elimination of statutory offenses, orders and penalties except in extreme instances 2) clear provision of K remedies for defaults 3) flexible terms for creating incentives, resolving disputes etc.

Agreement not to prosecute or to make statutory orders – careful, you are not surrendering your right to take a polluter to court – your aim is simply the most effective enforcement.

Contractual remedies – all remedies available under law applied to breach of waste mgmt Ks. Incentives – used to encourage compliance. Procedures – flexibility used to create procedures that facilitate dealings and compliance. Adaptability – to tailor to project and any special difficulties of a particular site.

These agreements still made within the regulatory system where legislative authority still applies. Because the purpose of K model is privacy of the K parties – there is little public scrutiny in this

model. The author suggests a requirement that a K be made public after negotiations are complete.

Negotiation of private agreements through consensus: ARET (accelerated reduction/elimination of toxics) process Representatives form industry, gov’t, health professionals, academia, ENGOs. Voluntary, decision making is open, non-prescriptive and consensus driven. List of substances for action plan elimination. Result: Memo between feds and Canadian Chemical Producers Assoc for reduction of benzene.

New approaches to environmental conflict resolution in Canada: the British Columbia CORE process Commissioner on Resources and Environment CORE Act to ‘develop for public and gov’t

consideration a BC wide strategy for land use and related resource and enviro mgmt’. Result: Draft Land Use Charter with principles of consensus, negotiation and public interest. Evaluation of CORE in practice on pg 543 – it does facilitate access to process and interested

parties included. But financial constraints by some sectors (with no or little representation as a result) and imbalance of influence among sectors at the table.

FIRST NATIONS AND ENVIRONMENTAL PROTECTION (Mar. 13)

Current Legal Framework wrt First Nations Peoples (FN)

Const Act 1867 s. 91(24) – gives feds judn over “Indians and Lands reserved for Indians” – here FN are seen as objects of legislation

Const Act 1992 Part II “Rights of the Aboriginal Peoples of Canada” – here FN are seen as rights holders

The inherent rt to self-gov’t has been held to be inherent to treaty rts found in s. 35 Const Act 1982. As seen in a report by the Min of Indian Affairs and Northern Development (at p. 73 csbk), FN rts to self-gov’t may be expressed in treaties reached through negotiation w/ FN (and indeed this is the preferable approach b/c litigation is costly and adversarial), contracts, legislation, and non-binding MOUs. The central object of negotiations will be to reach agreements on self-gov’t as opposed to legal dfns of the inherent rts. Gov’t views the scope of FN judn as likely extending to matters that are internal to the group, integral to its distinct aboriginal culture, and essential to its operation as a gov’t or institution. The Min then goes on to list what would likely be included in the scope of FN self-gov’t and what would likely be excluded including environmental protection, assessment and pollution prevention that go beyond matters that are integral to aboriginal culture or are strictly internal to them

An example of a negotiated treaty is the Nisga Treaty entered into by the gov’ts of Can and BC and the Nisga Peoples. (parts of the Treaty wrt Environmental Assessment and Environmental Protection are found at p. 76 csbk…basically they just set that they will negotiate w/ one another wrt these issues and keep each other informed)

.Background to FN rights

The Royal Proclamation 1763 was issued in the name of King George III. It included an Indian Provision containing the recognition of British Crown rights over FNs and the manner in which FN lands are to be ceded.

From the 1800s to 1970, treaties and proclamations were entered into w/ FN. Until the 1970s, such agreements were viewed as contracts (not international conventions although they are in reality a hybrid of the two). They were seen as creating rights (as opposed to acknowledging that the rights exist) so by implication, the nature and extent of their tenure in land and other rights was determined restrictively by looking at the content of such treaties….also, where there were no such treaties, no rights existed at all. In addition, these rights were seen as creatures of the Feds and can thus be modified, limited, or extinguished by them alone.

Around 1970, the jurisprudence (SCC) took a different approach – a tenure in land arose from occupation from time immemorial (so prior to the signing of any treaties or proclamations) but could be extinguished through settlement (for e.g.). The crts were not specific about how the rights could be extinguished…they tended to err on the side of presuming extinction.

Around the 1980s, we saw the emergence of the current approach – crts began requiring gov’ts to show explicit proof of extinction of rts…they were no longer willing to presume this. The position of crts today is largely consistent with this – right persist unless there is express proof otherwise. In 1982 w/ s. 35 of the Const Act, FN rights were constitutionally enshrined (not created). The implications of the current approach are: crts ask whether the rights in q exist at all…this is resolved through a variety of

evidentiary techniques the source of a right is seen as the use and occupation of land by FN communities rights are extinguished by: a) cession, b) treaty rights that persist are protected in const so it’s doubtful if unilateral extinction is

possible (also b/c the source is now seen as lying beyond the judnal scope of the feds)

feds cannot limit right….placing restrictions on a right for legitimate reasons within the judn of the gov’t is permitted though (eg. fishing quotas are imposed on FN in some cases). So limiting the right itself is not allowed but limits on exercising the right can be ok.

Interpretation and Application of FN Rights in Light of Valid Fed Legislation

***see also the section on fisheries for a section on aboriginal rights Fed’s have fiduciary relationship w/ FN (Sparrow) which implies that the Crown has

a duty to protect and promote FN interests. This is relevant both in terms of interpreting treaties and in determining the applicability of legislation to FN.

SCC has generally taken an approach generous to FN in interpreting treaties. Eg.:

Sparrow v. R (1990, SCC)Facts – Sparrow was charged w/ violation of the Fisheries Act with fishing w/ a net longer than that permitted by the terms of the band’s food fishing license. S. contended

that he was exercising an aboriginal right to fish and that the net length restriction was inconsistent w. s. 35 of Const Act 1982.Issue – Is the net length restriction inconsistent w/ s. 35?Held – No. LaForest holds that the phrase “existing aboriginal rights” in s. 35 had to be interpreted flexibly to permit evolution, rather than defined according to the state of the law in existence in 82. In this case, there was evidence that S had been fishing in ancient tribal territory where his ancestors had fished. The Crown argued that the Fisheries Act constituted a complete code inconsistent w/ the continued existence of an aboriginal right, but the crt held that nothing in the Act demonstrated a clear intention to extinguish the aboriginal right to fish for subsistence and for other social and ceremonial purposes. The crt held that each infringement of s. 35 would have to be assessed on its own facts. In general, the inquiry would begin w/ a determination of whether the legislation in q interfered w/ an existing aboriginal rt. That inquiry involved qs of whether there was an unreasonable limitation, an undue hardship, or a denial of a preferred means of exercising a rt. Any interference found would have to be justified by establishing a valid legal objective. (So its similar reasoning to when a charter argument is presented…if rt is infringed, look to whether s. 1 can save it). Applied to the facts of the current case, the court held that the gov’t conservation goal embodied in the particular section of the Act in question was a legitimate reason for limiting aboriginal rights to fish. But the importance of the case is that it opened the door wrt competition b/w commercial fishers and aboriginal fishing rights and left open possibility that conservation laws may not apply to aboriginal in certain cases.

R. v. Van der Peet (1996, SCC)Facts – V was selling fish he caught pursuant to his aboriginal right to fish in the area.Issue – Does an aboriginal right to fish include the right to trade in the caught fish?Held – No. This is a very bizarre holding by the SCC (and the court was divided) who said that they must avert the danger of commercial exploitation of the resource which was not what aboriginal rights were intended to protect in the first place. This is based on the very strange notion that aboriginal rights are frozen in time and that they would never have developed to the point of commercially exploiting resources had they been left alone (Wilson J. makes this argument) It also seems to say that the right to fish is a subsistence right only and this means that they must only consume the fish….this is very bizarre given that even very long ago there was a division of labour and barter for services.

HUMAN RIGHTS AND ENVIRONMENTAL QUALITY

Class notes Thinking critically how such a right might take shape. Contextualize the creation of a human right to environmental quality with three approaches:

(1) basic legal framework (2) liberal framework (3) republican framework.Liberal framework Approach = that role of government is to secure public interest. This in turn is translated into legal rights….not just private property rights.

Expansion into a civil or human right – like a right to a healthy environment that can stand up against an economic right to economic expansion/growth.

This is not necessarily an adversarial approach – we can try to balance all rights.Republican framework “Aristotlean” and democratic – made through a deliberative process Justification of positions and a discussion of interests with no winners or losers Focus on overlap of interest (and they don’t automatically transfer into rights) Try to give access to as many interested parties as possible under enviro legislation.

Q: What would a human right to environmental protection look like? Results? The question of injury becomes less artificial (than having to try and characterise the injury

under another right) It would facilitate access of public into decision-making process. The right would give you automatic standing before the courts. Make protection of environment a priority = of equal weight of other rights eg: property rights. This weight is necessary because by nature, an injury to an enviro right is not as immediate as

injury to an economic or property right.Q: Concrete objectives of an enviro right? (from easy to difficult to meet) Information – this is the easiest for gov’t to deliver. This would make gov’t more engaged and

would serve as better watchdogs. Citizens would be better informed to engage in the debate.Eg: CEPA presently publicizes all authorized permits under the Act.

Public participation – better structure required for public participation in the decision-making process. Better contact between constituents and MPs. Increase appearance before legislative committees and agencies. Eg: CEPA has consultative committees.

Right to influence over decision-making process – ‘a right to win my argument’? It’s a tough sell. More difficult to structure than the ‘right to give my argument’.

Ensure that protection standards are implemented and upheld

Q: Substantive content of an enviro right? Higher standard of enviro protection – need a stronger right with more weight. We need substantive content to push us further than procedural rights. Focus on positive right rather than negative right. The Yukon Act in provisions 6+7 – is this a right to a healthy environment? It comes closer than

the Ontario Bill of Enviro rights or the EQA – but it is still just an ordinary piece of legislation. Gibson’s argument on constitutionally entrenched enviro right – have we already achieved what

he lists?

Chapter 11 – pp. 403-436 Law reform looking to create a legally enforceable civil right to environmental quality.

Swaigen and Woods, “A Substantive Right to Environmental Quality” 1981 Problem: equating powerlessness with a lack of rights. Dworkin describes ‘rightless’ a situation

where each party is not provided with treatment equal in respect and dignity. Sax compares: a regime based on public substantive rights or mere procedural rights by government

discretion? That is, the citizen who comes to court with a status as a claimant of rights to which he

is entitled vs: the citizen who comes before an admin body requesting that the protection of the environment be considered a public value/interest.

Problem with relying on the admin process as a mechanism for enivro protection = public remains as an outsider and the admin body a “middleman interposed between the citizen and his interest in eviro quality”.

Notes: should rights be anthropocentric (human rights to environmental quality) or ecocentric (animal rights, species’ rights or rights for nature)? Procedural vs substantive? Individual or collective? Created by statute or constitution? Enforceable against whom?

Three categories of proposals of enviro rights – (a) The creation of a statutory bill of rights – framing as individual human rights to a

reasonable level of enviro quality. Two approaches: i) removal of procedural obstacles to enviro litigation or ii) enactment of procedures to ensure citizen participation in gov’t and admin decision-making processes eg: liscensing.

(b) Enviro rights as constitutional rights incorporated in the Charter. Often framed as individual rights to enviro quality, violated either when human life, property or health are injured or when a reasonable level of enviro quality is exceeded. Enforceable against the gov’t…together with a collective right with corresponding gov’t duty to protect the public enviro interest or ‘public’ trust’ == substantive rights.

(c) Enviro rights aimed at the protection of non-human life or protection of environment. These proposals tend to focus on why these rights should be granted but not how. Include links between animal welfare activism and enviro mov’t.

Procedural Rights Numerous attempts to obtain an ‘environmental bill of rights’ have been made in Cda since the early

1970’s – primarily at the provincial level [see Notes section at pp 410-11 for various attempts]. Proposals have been procedural in nature: for better EIAs, provisions addressing litigation costs,

legislative limits on the exercise of admin discretion, creation of an enviro ombudsman, and reverse onus provisions.

Yukon Environment Act 1991 [more comprehensive than NWT Act and includes a set of enviro rights]. Section 6 ‘The people of the Yukon have the right to a healthful natural environment’. Section 7 ‘It is hereby declared that it is in the public interest to provide every person resident in the Yukon with a remedy adequate to protect the natural environment and the public trust’. Section 8 gives a resident citizen or corporate person standing on reasonable grounds.

The Ontario Environmental Bill of Rights 1993 is not primarily directed toward improving the efficacy of enviro legislation. Instead, focuses on increasing gov’t accountability by way of increasing public participation in environmental decision making. Judicial intervention is treated as a back-up measure when other processes, such as rights to request gov’t investigation of enviro harm, have failed. Access to information [s. 6(1)] and ‘whistleblower’ protection provisions are also included.

Section 2(1)(c)….to protect the right of a healthful environment by the means provided in this Act.Section 61(1) et seq….procedure to allow for any two persons resident in OT to apply to Enviro Commissioner for a review of the policy, Act, regulation, instrument etc. Section 82 et seq….similar procedure for the request of an investigation. Notes: the OT Act has been described as ‘byzantine’, ‘peculiar’, ‘complex’, ‘contradictory’ and

‘paradoxical’. User guides have been developed as a result. The OT Act chose to focus on political accountability, through mechanisms such as the statements of environmental values and the Office

of the Enviro Commissioner. Rather than using judicial review of admin decisions. For example, the commissioner has no power to engage in substantive policy and program reviews, and there are no sanctions if ministries fail to comply with the legislation [apart from negative comments in the Commissioner’s report to the legislature]. Acts, policies, regulations, and instruments that are found in defiance of OT Act process remain valid. Citizens are given no substantive rights, and have no direct method to effect enviro policy, apart from complex s84 tort. Class proceedings are prohibited and no intervenor funding is provided. IS THIS POLITICAL ACCOUNTABILITY MODEL preferable to a judicial accountability model???

Some successful applications for review and investigation, but the OT Act is in the process of being phased out and reformed.

Substantive Rights

Swaigen and Woods, “A Substantive Right to Environmental Quality” 1981 The failure of institutional arrangements [courts, gov’ts, legislation] to result in decisions in favour

of enviro protection has led to disillusionment. Any adjustments made have not led to a balancing of enviro concerns against private property rights or for enviro protection over economic benefit.

Are substantive rights the only way to effect change to the process? They would confer status to participate in decision-making. Stone identified three incidents of rights: (1) the right-holder can institute legal action (2) injury to the right-holder must be taken into account by the legal system (3) relief must run to the benefit of the right-holder.

Dworkin: rights are important moral principles which lead to decisions which enhance the dignity and independence of the right-holder, even when these decisions may be contrary to political or economic expediency.

A right to enviro quality would confer more than a right to participate or requirement of due process. This right should (1) be equal to a civil liberty that would constrain gov’t actions harmful to the enviro (2) be equal to a property right that would restrain the uses of private property incompatible with sound ecological management and (3) be a sufficient ground to dictate a decision in favor of enviro protection in difficult cases.

Notes: how to make an enviro right ‘paramount’ over or at least just as important as other legal rights? This is resisted by judicial and legislative conservatism….statutory bills of rights are arguably too easily amended or repealed, other inconsistent legislation is not necessarily invalid, exemptions are easily granted and provisions are construed too narrowly by the courts wanting to defer to the intention of the legislature.

Attempt to place such a right in the CA Act 1982 on p 419. CEPA was also to have an enviro bill of rights, but it was decided that without constitutional status, it would be ineffective.

Gibson, ‘Constitutional Entrenchment of Environmental Rights’ Gibson formulated a proposal for enviro protection in the constitution. To be effective, it would need to be more than an empty declaration….needs an implementation

subject to judicial review. Responsibility for the creation and enforcement of the guarantee would be delegated to ordinary legislative and admin processes by the Constitution, but some essentials would have to be listed: (1) creation an enviro protection agency for each jurisdiction (2) establishment minimum standards of enviro quality by such agencies (3) effective enforcement of standards (4) right of residents of the jurisdiction to be informed of pending determinations by the agencies (5) right of residents to make representations to the agency on the subject.

Better enacted in the Charter in order to benefit from the Charter’s limitation and enforcement provisions.

Suggested rights: (1) Right to Beneficial Environment consistent to equivalent rights, health and safety of others. (2) Duty to Make and Enforce Environmental Laws by fed and prov gov’ts (3) Content of Laws – the creation and maintenance of enviro protection agency, creation of effective measures to enforce minimum standards, the right of everyone resident to be informed by the enviro agency by public notice, the right of everyone resident to make representations of fact, law or policy re: the minimum standards (4) Scope – shall apply to activities of the Crown, organisations and public persons (5) Judicial Review – everyone has a right to apply for a review or failure by gov’t to fulfil enumerated duties.

Notes: Swaigan and Woods argue that an effective substantive enviro right must give standing against the gov’t but against other citizens as well. There should be no absolute defences, instead a range of considerations, standards and ‘rules of thumb’ should be used by the courts. The law must give clear guidance with courts erring on the side of stringent standards. It is absolutely necessary that such a right be equivalent to a property right.

Problems with content of the right – difficulty in defining terms like ‘beneficial’ and ‘healthful’ natural environment, what is an ‘infringement’ and what is ‘clear guidance’ for the courts?

Problem with Charter right….aims at gov’t and not private activity from which most pollution stems….therefore a constitutional but non-Charter amendment is the best choice? Maybe an amendment based on the adjustment of division of powers over environmental matters.

Or are there existing Charter rights which could encompass aspects of an enviro right? Section 7 – enviro degradation as a threat to the life or security of the person, section 2 – wilderness preservation as matter of conscience or religion, section 15 – unequal standards and enforcement as discrimination; differential impacts of toxic substances on the elderly or physically challenged.

Non-Human Rights

Stone, “Should Trees Have Standing? – Toward Legal Rights for Natural Objects” 1972 Concept of extending legal rights to the environment itself. Makes comparisons with extending rights to children who are not ‘persons’ under the law – as well

as other ‘non-human’ entities such as trusts, corporations, joint ventures, municipalities, nation-states etc….so why not oceans, lakes, forests and other ‘natural objects’?

Granting of rights has two sides: (1) legal-operational aspects (2) psychic and social-psychic aspects. (1) an entity cannot be said to hold a legal right unless and until some public authoritative body is

prepared to give some amount of review to actions that are colourably inconsistent with that right. A holder of a legal right must have (i) the ability to institute legal actions at its behest, (ii) a court must take the holder’s injury into account when determining the grant of legal relief and (iii) the relief must run to the benefit of the holder. [together with a set of correlative procedural and constitutional rights for it to invoke once in court…]

(i) toward having standing in its own right…legal problems with natural objects are handled by treatment of legal incompetents (because of senility, disability etc.). In this situation, someone would be designated to speak on their behalf. Courts make a similar appointment when a corporation has become ‘incompetent’ – they appoint a trustee in bankruptcy or reorganization to oversee its affairs and speak for it in court.

(ii) toward recognition of its own injuries….taking into account harm to the environment in its own right – it would not be necessary for there to be human injury in order to bring an action on its

behalf. This would gather up fragmented and otherwise unrepresented damage claims where for legal or practical reasons, would not be pressed by traditional class action plaintiffs.

(iii) toward being a beneficiary in its own right…to prevent it from being ‘sold out’ in a negotiation among private litigants who agree not to enforce rights that may have been established among themselves. Money settlements could be put into a trust fund to be administered by the guardian.

Notes: Consider who the holder is….an individual tree or lake or a species? Or even an ecosystem or geographic area?

What type of philosophical shift is needed in social and legal systems to accept this notion? Moral pluralism issues. Danger of extending human dominance and power over the environment.

Aboriginal rights and the environment Possibility of placing environmental rights under the umbrella of aboriginal rights. Aboriginal enviro belief systems – lack of division between humans and the enviro, a spiritual

relationship with nature, concern about sustainability, attention to reciprocity and balance and the idiom of respect and duty (rather than rights).

Conservation has been integral to survival of indigenous peoples…ways of sharing and managing resources…ethics that reconcile subsistence and co-existence.

Central legal recognition of aboriginal rights in section 35 of CA 1982 – it recognises and affirms ‘the existing aboriginal and treaty rights of the aboriginal peoples of Canada’. This shows potential for a degree of enviro protection, esp. wilderness preservation wrt hunting, fishing, trapping rights.

Kapashesit and Klippenstein, ‘Aboriginal Group Rights and Environmental Protection’ 1991 The content of aboriginal group rights – (1) principle of ‘necessary rights’—acceptance of a group as

a bearer of rights implies recognition of certain specific rights in that group (eg: the right to exist and preserve itself as a group) (2) principle of ‘internal authority’ – the group has the authority and political responsibility for administering that right as between the members of the group (3) principle of ‘external relations’ – exercise of the group right must be coordinated with persons or other groups who are not members of the group.

Apply the principles to hunting, fishing and trapping rights.1. Necessary rights – these rights essential to Aboriginal identity as a separate group = right of

group-preservation.2. Internal Authority – Aboriginal ecological management systems operates effectively. Section

35(1) properly understood, protects these time-honoured systems as part of the group right. Therefore, the courts and relevant legislation must come to terms with unwritten nature of this system and show a willingness and flexibility in recognizing a different system of law. There is a focus on community and a consensual process. Recognition of an internal authority without discourse of individual rights. Evidentiary rules – allowing elders to testify directly as to norms.

3. External Relations – Keep in mind: (1) sensitivity of the resource (2) Aboriginal priority to it (see Sparrow). The group right is meaningless if the resource if subject to damage or depletion by external individuals or groups – therefore there is a need for a means to protect it.

Notes: aboriginal rights do come into conflict with other enviro goals – eg: aboriginal hunting of endangered species.

Conclusion Reforms based on a civil right model by (1) recognition of a human right to environmental quality

(2) constitutionalisation of the right (3) granting rights to natural objects and (4) expanding existing rights to achieve indirect enviro protection.

All sit uneasily with the traditional ‘rights’ paradigm. Problem: most individual rights are negative = a right to be free from interference by gov’t. A list of reasons of non-conformity at p 433-432. How to fit positive rights into this paradigm? Also problem of prioritizing with competing rights.

Social aspects – impact of controlling human growth with concepts of individual liberty. How to curtail expansion and consumption equally around the globe?

Or is the realisation of all other human rights contingent on our ability to preserve the environment?

PROTECTED SPACES AND ENDANGERED SPECIES Chapter 12

Endangered species page 462Why save species? Anthropocentric vs: ecocentric reasons – ecosystem benefits, maintenance of food source, medicinal

uses, recreational and aesthetic uses (birdwatching), economic benefits and ethical reasons. Threats to species – due to human interference – habitat loss, direct human exploitation, pollution. Solutions: habitat protection, endangered species legislation both domestic and int’l. US first to pass Endangered Species Act. Updated in 1973 to three main objectives: (1) listing of all

endangered and threatened species, (2) designation and protection of critical habitat for all listed species and (3) prohibition against ‘takings’ of a listed species. Plus added provision for US Fish and Wildlife to develop a recovery plan for each listed species as well as for all fed agencies to not take any action which jeopardizes the continued existence of an endangered species. This Act specifically permits citizens to bring a civil action against anyone who violates the Act.

Successful challenges under this legislation in Northern Spotted Owl v. Hodel and NSO v. Lujan.The lead plaintiff in each case is the spotted owl itself…not because it is a legal person but US courts have developed a principle of ‘standing for one means standing for all’, so other plaintiffs followed in the list.

Also successful in interpretation of takings as including harm to a species in Palila and Babbitt.

The Canada Endangered Species Protection Act (Bill C-65) CESPA First reading 31 October 1996

Intergovernmental cooperation from notes Necessary for broad reach req’d for ecological objectives In principle vs: in practice – problems with political will.Decision-making constraints Division of labour between science and policy. Decide what level of protection we are willing to tolerate.

Although the CESPA was not passed as law, there have been promises to pass similar legislation.Bill C-65 was strongly criticized by media, enviromentalists and scientists for being too weak = limited application of the Bill, the process for listing and habitat protection provisions.

Species at risk Schedule I – three categories:

1. Extirpated: no longer exist in the wild in Canada2. Endangered: facing imminent extinction or extirpation3. Threatened: likely to become endangered if nothing is done

Species of special concern Schedule II – under lower risk or threat.(Listed animals in the Act will serve as a trigger for an EIA once in place and once EIA Act is amended)

Actors – who administers the Act? Art 14 – committee on endangered.…assess status of wildlife species and which are

at risk. Classify species into categories in schedules. Scientific expertise here – conservationists, taxonomists etc.

Report to the “Canadian…Council” art 7 – advisory body only, giving general direction and coordination. Composed of “the Minister” – minister of the environment and “Competent Ministers” – heritage (for federal parks jurisdiciton), fisheries & wildlife, environment [with no clear division of labour – its up to them]

Listing process for Schedule I species The Committee – reports submitted to the Council + minister of the environment and

immediately publicized. Once on the list, protection measure apply to species and its habitat.1) Prohibitions —art 32

Support of the criminal law power ‘…kill, harm, harass, capture or take…’Art 33 – on residence ‘nest, burrow…’Art 34.1 – on species under federal jurisdiction – aquatic species & migratory birdsArt 34.2 – exception – can also apply to add species(which are out of fed jurisdiction) by recommendation to the Minister. This can be done constitutionally by using inter-provincial argument or POGG power.Art 34.3 – Minister must recommend the extension of prohibitions where provincial laws are inadequate.

2) Recovery strategies —art 37 et seq.Competent Minister CM will come up with recovery strategy. Art 41.1 – must address the threats to the speciesArt 47 – must identify dangers + threats in an action plan = wide swath (obs of CM) Art 49 – Features of action plan critical habitat and measures to protect it, unprotected portions, statement of measures to be taken, evaluation of social and economic costs of plan (cost benefit analysis).Art 53 – where federal jurisdiction only. **no provisions to extend scope of action plans**3) Protection of critical habitat —art 57 et seq.Much more difficult to implement.Art 58 – prohibitionArt 59.1 – on regulations to protect discretionary provision Art 59.2 – attempt to fetter discretion by CMArt 61 – when minister makes recommendation to extend beyond federal lands and juris (if asked by relevant provincial minister and recommended by the Council)

Art 6? – minister must recommend if there are no prov laws or inadequate laws to achieve protection. Justifications by criminal law power (destruction of habitat) and POGG for extra-provincial implications.

Listing process for Schedule II species Art 65 et seq – on mgmt of these species Art 71 – on federal jurisdiction

*New Bill just tabled re: agreements and permits on Schedule I species = art 74 restriction of activities via permits and liscences.

Provincial Legislation Only four provinces have passed endangered species legislation: OT, NB, QC, MN. OT and NB lists include species listed by COSEWIC as endangered (but not species

that are threatened). QC has yet to add any animals to its list = plants only. MN list up to discretion of the cabinet with advice of an advisory committee.

All include prohibitions against harming the species or destroying its habitat. But MN gives discretion of exemption to the Minister. Exemptions in other provs as well.

Effectiveness of Cdn prov statutes and the US key steps: (1) Listing – all Cdn statutes leave listing decisions to discretion of a minister or cabinet.

This is a critical weakness – if not listed, no other legislative protections apply.(2) Critical habitat – none requires government to designate the critical habitat of an

endangered species – a step that US courts have called the ‘most critical step’.(3) Takings – all 4 prov acts prohibit taking of listed species and interference with its

habitat. But again, these are weakened with exemptions esp. in MN and QC. Spotted owl litigation shows relative strength of US program. In Canada, the owl was

listed by COSEWIC but no recovery plan has been adopted and no legally protected areas. In US a political decision to make preservation of species important.

Other approaches: 1. saving every species is impossible and too expensive 2. Better focus on saving endangered ecosystems 3. Focus on biodiversity.

Movement from critical care approach to a more preventative approach.Case Study – Wood Buffalo – A National Park in Peril Land set aside for wood bison but wetlands also serve as vital habitat for migrating

birds and other species. Wetlands threatened by BC gov’t dam on Peace River upstream as well as damage

from logging. Notes: what are the gov’t powers to cancel logging liscenses? Also consider plans for

slaughter of bison for spread of brucellosis under National Park Act obligations etc.

Parks and Protected Areas – The history of the parks page 437 Relatively recent North American creation – mid-late 1800s. Change in attitude from

wilderness as something to be conquered and subdued into something to be valued. Creation of parks: (1) recreational (2) profit – tourism (3) education – parks provide a

living lab for study and appreciation for ecosystems (4) spiritual value – idea of sanctity (5) cultural heritage – cdn identity has been deeply influenced by wilderness (6) protection of ecosystems for human needs – maintain watersheds, clean air,

diversity of species (genetic pool for agri, medical, scientific research) (7) intrinsic preservation – all life has a right to exist for its own sake (area needs minimization of human intrusion to function normally).

Creation from largely an anthropocentric viewpoint – some provinces have created ecological reserves emphasizing preservation for both anthropo + ecocentric reasons.

Is our park system adequate to meet these needs? How much land? Various int’l org’ns recommend 12% of land be protected areas. What size of ecosystem? Must be sufficient size and must follow natural boundaries

and boundaries of animal habitat. Where? Call for a representative mix of geography, species of all natural regions. At what cost? Costs of purchasing land from existing owner – gov’ts can expropriate

but rarely do. National Parks Act s. 6(5) allows for compensation of land owners and right/permit holders. For national park, feds must buy from provincial Crown.

The Queen in Right of British Columbia v. Tener et al. (1985) SCC Respondents had Crown grant in 1937 of subsurface mineral rights. Two years later,

land was incorporated into a “class B” BC provincial park – but allowed to mine until 1973 when status changed to “class A”. Claim for compensation

Held: Compensation does not automatically follow from a valid interest – depends on governing legislation. Original grant = matter of mineral regulation then upon creation of the park = matter of Park Act. First regulation taken into account for valuation process and the second for the taking process. The denial of access to these lands occurred under the Park Act and amounts to a recovery by the Crown of a part of the right granted to the respondents in 1937. The acquisition by the Crown constitutes a taking form which compensation must flow….[this process should be distinguished from zoning wrt to land use legislation as it applies to the entire community…there is no value taken in this type of regulation. Here, the 1978 notice took value away from respondents and added value to the park].

Notes: following decision BC rezoned the mineral claim area as ‘recreational’ within the park – this permitted mining activity and compensation claim moot.

Now, following Cream Silver judgement, unless legislation indicates otherwise, compensation only if resource extraction right constitutes an “interest in land”. Amount based on market value of license AND future revenue from license.

National Parks from classnotes Notion of creating a new park = difficult and expensive. Problems with those with interests in land – face expropriation + claim compensation. Competition between uses – recreational vs: conservation

eg: Sunshine Village – argued that ‘expansion’ didn’t qualify as trigger for EIAZoning –solution to over-use of the parks page 450 By NPA s. 5(1.1) zoning must be in mgmt plan. Five zones: special preservation,

wilderness, natural environment, outdoor recreation and park services. Majority of park is 1 + 2 while maintaining high use in zones 3-5.Internal Threats NPA s.4 - nat parks to be maintained ‘unimpaired for future generations’

Problems with waste + sewage wrt water quality, dump sites and bears, dangerous cargo on park highways, resource extraction (resource conflicts usually result in removal of resource-rich area from the park).

Provincial Parks page 453 Resource extraction even greater threat in prov parks and conservation areas. Problems with overall purpose clauses in provincial park acts and what is done in

practice. Quebec appears to one of few prov to exclude all resource extraction from prov parks – but little land in this status.

External Threats “island effect” = park is an island in a sea of development which affects its function

as a protected ecosystem. Water and air pollution, effects of logging on watersheds and water quality etc. There is US legislation that calls for stringent regulation of emissions near nat parks and wilderness areas.

Public Trust Doctrine from notes Not too much talk in the Cdn context – but could be used in Cda as a legislative tool. Basic elements object (land, capital), beneficiary, administrator. A CML doctrine, but incorporated into legislation to protect land. Idea of “object of a public trust” – beneficiaries = public and future generations and

administrator with fiduciary obs = government. Apply to protection of public land on navigable waterways, shoreline, and provincial

and national parks by analogy. Judicial review implications found in US law in Sierra Club and in Cda in Green.Public Trust Doctrine page 455 In US law, it is not an outright prohibition against government alienation of interests

in public lands and waters – this would give to the courts the policy-making role of elected legislatures. Rather, ‘when a state holds a resource which is available for the free use of the general public, a court will look with considerable skepticism upon any government conduct which is calculated either to reallocate that resource to more restricted use or to subject public uses to the self-interest of private parties’.

Sierra Club v. Department of Interior (1974) US Redwood National Park created 1968 – sheltering some of the lasts stands of Calif’s

redwood trees. Logging (both fed and private) surrounding the park affecting soil stability and water quality in the park. Sierra Club brought action against Secretary of the Interior SI for violation of statutory trust obligation to protect park.

Held: that the terms of the Redwood National Park Act impose a legal duty to use the SI specific powers given…to protect the park…all other duties are subordinate to it, not only under his trust obs, but by the statute itself.

Sierra Club v. Department of Interior (1975) US Held: that the SI had not implemented any of the recommendations made by on

behalf of his own agency in studies wrt damage and threats of damage to the Redwood National Park caused by logging operations on adjacent lands. A breach of duties under the National Park System Act.

Notes: remedy here was to order the agency to come up with a plan of action how to meet its obligations – is this to strike a balance between the court’s duty to review the legality of agency action but not to take over role of gov’t?

Green v. The Queen in the Right of the Province of Ontario et al. (1973) OTHC Does s.2 of Provincial Parks Act impose a trust upon the OT gov’t wrt Sandbanks

Provincial Park as it should restrict use by private cement operation on adjacent land? Action by Larry Green, not a public nuisance action, he is not claiming any damage

or injury to himself beyond what might be alleged by any other member of the public. He is seeking a declaration of a breach of statutory trust.

Held: that the statute does not compel the prov to hold the lands, for any specific time or purpose…therefore as framed for breach of trust, there is no cause of action.

Note: shortly after this decision, the province expropriated the cement company’s lease = public interest litigation can serve a valuable purpose even when lawsuit fails.

MUNICIPAL AND LAND USE-PLANNINGChapter 13 – pp.487-512

Introduction Province delegates specified planning and regulatory powers over land uses to municipalities. Land use policies, authority over zoning and sub-division (industrial use vs green space), control of

private land development (sewers, roads) = all affect enviro quality. Cities with high density have more pedestrians and less traffic. Use of mixed commercial and

residential zones to get around for less reliance on motor vehicles. Zoning laws – eg: energy efficiency of shared walls between homes etc

Source of and Limitations on Powers As statutory creations, municipalities have no authority beyond the powers expressly granted by

legislation….or which are necessarily or fairly implied by express grant. If a municipality acts beyond statutory authority, a court may declare the act to be ultra vires and

without effect. Legislation must expressly or implicitly empower municipalities. Though not sovereign (as they are statutory creatures), they are still gov’ts and courts treat them as

such = heightened duty than regular administrative bodies.

Jurisdictional conflicts Powers delegated by a province to municipality may not exceed the powers that a province may

validly carry out under the CA 1897 eg: bylaw on fisheries = not valid. Municipal regulation or action may also be ultra vires other provincial laws. BUT just because a

provincial ministry regulates a matter under specific provincial legislation, it does not follow that municipalities may not also regulate some aspects of that matter.

Some tolerance of overlap…courts try to read municipal bylaw and prov regulation as not in conflict. This is different than concurrency doctrine between prov + fed powers (with paramountcy given to feds) and judicial power to read down legislation eg: Superior Propane

Municipal Authority – from notes Municipal authority varies from province to province. In AB+BC = extensive authority. Especially in AB over environmental matters (as response to strong populism?) But more successful

in BC in the area of effective delegation of environmental regulation. In general, municipalities given jurisdiction over air pollution (airports etc…), on water quality, the

prevention of nuisances (noise, vibrations, fumes – all reduced by bylaws), regulation of dangerous

substances ( esp. handling and transport), local public health authorities (usually wrt water supply) and regulation of licenses to business in their borders.

Also panning & zoning powers – what types of activities in various parts of the municipality. But wary of Superior Propane interpretation on exercising these powers. Also have the power of enforcement in the way of fines, orders etc.**In AB statute – municipalities have authority to environmental objectives in bylaws.

Robertson et al. v. the City of Edmonton 1990 QB Applicants bring application on their own behalf and as reps of the Stop Aurum Dumping

Association to quash and declare ultra vires and void two bylaws. One adopted new structure plan to reflect changes wrt proposed landfill operation and the other re-

districted the lands in question from their previous designations. Public hearing advertised in newspaper for two days and notices sent to parties within 60 metres of

the subject site and to other interested parties. Applicants only given 5 minutes to address city council and only 13 minutes of discussion followed.

They seek: (a) an order quashing the bylaws for illegality (b) judicial review in the nature of certiorari quashing of the bylaws and (c) a declaration that the bylaws are ultra vires and void.

They argue that the council failed to take enviro implications into consideration = jurisdictional error.

Held: Bylaws quashed. These considerations not specifically required by the Planning Act but are implied and relevant = jurisdictional error in passing bylaw.

Superior Propane Inc v. York(City) 1995 OTCA Both provincial regulation (for safety purposes) and municipal bylaw (for land-use planning) aimed

at regulating size and placement of propane tanks on land. Bylaw is much stricter and is challenged. Court uses reasoning from Ontario AG v. Mississauga: “If, in covering the same ground the

subordinate legislation works at cross purposes to the provincial statute, then the case for conflict is reinforced. [And] the bylaw should be declared inoperative.”

Held: that the bylaw is at cross-purposes with provincial regulation because it negates the operating effect of the latter respecting tank size, height, setbacks and protection. Held that bylaw is (1) operatively in conflict with prov reg’n (2) aimed at safety concerns and not within land use planning jurisdiction (3) even if it did properly relate to land use planning, there then would be no reasonable basis for regarding it as enhancing a law enacted for a different purpose.

Ontario AG v. Mississauga – from notes but quoted in Superior Propane Provincial legislation with effect of burning PCB prohibited without permit whereas the

municipal bylaw banned it altogether. Held: again municipal bylaw went beyond what province legislated. If permit given, it would

be valid provincially but prohibited municipally. Obiter: that even if two instruments are exactly the same, there is no room for the municipal

bylaw.Martin F v. Goldrich – from notes By putting municipal bylaw in a different category – you can save it. So, in the case of Superior Propane, prov purpose = safety and municipal purpose = aesthetics.

Planning Regulation and Takings – Exceeding Jurisdiction Takings – under Cdn law, if a gov’t takes an interest in land w/o owner’s consent, and the statute

under which the taking occurred either explicitly or implicitly gives the owner the right to compensation, the gov’t must compensate the owner.

A different situation where land use is regulated = ‘regulatory taking’ as the landowner’s property rights are limited in order to protect environmental objectives.

Municipalities can create city parks and restrict property use by process of ‘down-zoning

Steer Holdings Ltd. v. Manitoba 1993 MTCA Distinction made between compulsory taking and restriction of right Where the legislature does not provide for compensation for an injuriously affected owner = no

compensation. One must establish a statutory right. In case law, some allowances made but only where there is a compulsory taking, as opposed to cases

where some right or interest in the property has been restricted or affected. No compensation for effects of zoning bylaws and “down-zoning” [better to attack the bylaw as

ultra vires or some other action than for compensation, even better to frame it as an outright taking]. In this case the provincial legislation was general, but designed to prohibit the commercial

development of a specific piece of land abutting a creek and ravine in Winnipeg. The Court found that there was no outright taking in this case, only commercial development was

prohibited. To be a compensable taking, there must be a taking away of something that the plaintiff had already enjoyed, and a corresponding benefit or acquisition flowing to the government taker.

***Similar conflicts often about the fact that there is no compensation for the restriction of the right.

Exceeding jurisdiction Jurisdictional limitations on municipalities acting to protect green spaces under their authority over

land uses and development. Case law indicates that a court will quash action which is shown to be (1) discriminatory—statutory delegate acts in a partial and unequal way, (2) carried out in bad faith—fraud, corruption or acting for ulterior motives unrelated to planning, (3) made without factual basis—did not act on the basis of the facts and evidence, or (4) beyond legitimate planning objectives or authorization—municipal action exceeded the authority of the plans, bylaws, or other regulation the municipality relied on.

Municipalities must act in scope of enabling legislation and employ powers in ways the province intends.

MacMillan Bloedel Ltd. v. Galiano Island Trust Committee 1995 BCCA Logging Company [Mac] acquired 66 parcels [20-220 acres each] of forested land on Galiano

Island. 1973 bylaws allowed one family dwelling per legal parcel with min size of 20 acres. 1990 BC passed Island Trust Act – new land-use planing and development scheme for designated islands. This established local trust committee with municipal-like powers in these areas.

Mac tried to sell its holdings to the local community but a local conservation association could not raise the funds to buy at market value. In order to frustrate Mac’s sales to the public, the trustees made a bylaw to change zoning to remove the use of parcels for family dwellings and increase the min parcel size to 50 acres.

Mac brings action for illegality, bad faith and discrimination. Southin J: there is no immutable principle of law that a bylaw may not discriminate or not be aimed

at a particular land owner. The only immutable principle of law is that a body with a power to enact

subordinate legislation must act within the powers conferred. The trustees acted within their powers and the court sympathizes with their aim to preserve the land. “…a bylaw which, upon its true construction, does not effect a purpose which would be illegal cannot be struck down because of the hopes or desires of the members of the council who enact it.”

Finch J: looks at the legislative intent behind the Island Trust Act and the powers it meant to confer and for what objective. Also, underlines that the fact that the trustees are elected and bad faith should be punished by the democratic process. “An ulterior purpose that is within the ambit of the delegated power is not an improper purpose.”

Power to down-zone not used in bad faith – motive out of concern to protect land for community.

Protecting Green Spaces through Private Conservancy Private conservancy tools are intended to enable landowners to protect from development all or a

part of land for nature conservation purposes. Before, landowners would have to use restrictive covenants and easements.

In Canada, new legislation for “conservation easements” to facilitate private conservancy by removing CML impediments.

Example: AB Environmental Protection and Enhancement Act enables a landowner to enter into a conservation easement agreement with a ‘qualified organization’ [includes prov + municipal gov’ts, NGOs] with respect to all or a part of land, without the need of any other benefiting parcel. Once registered at Land Titles – binds future owners.

However, a municipality has no power to require that a conservation easement be created eg: as a condition of a subdivision.

Moor v. Saanich BCSC Application brought under Judicial Review Procedure Act. Officer of District of Saanich required

terms in a covenant that aimed to protect the bank above the North Beach, a cormorant rookery and a rare plant area.

The test [from City of Vancouver v. Simpson 1976]: was the officer’s reasons specious and totally without an ‘adequate factual basis”?

Three reasons put forth (1) to preserve bank from risk of erosion (2) preserve the bank and the beach in its natural state for the benefit of the environment generally (3) preserve the viewscape presented by the bank for the benefit of neighbouring public lands.

Held: The officer did not effectively prove the necessity of restrictions to prevent erosion. Bad faith argument – the officer failed to distinguish between his role as a Planner and as Approving Officer – failure to discuss the issue of the viewscape and rezoning before land was purchased by the petitioners. “He clearly had in mind the prospect of preserving the park viewscape but he said nothing for the specific purpose of enabling the sale to occur.”

Note: that the court did not suggest that it was improper for the approving officer to require the applicant to enter into a restrictive covenant as a condition of subdivision in order to meet legitimate planning and development concerns. In this case, it was only done in bad faith.

THE INTERNATIONAL CONTEXT: INTERNATIONAL LAW IN DOMESTIC COURTS (Mar. 27)

Although int’l law is neither created nor enforced like domestic law, it is nevertheless law (no kidding?) and a state can be subject to sanctions for breaches.

Sanctions can include:1) collective sanctions under the UN Charter2) state action such as recourse the ICJ, arbitration, econ sanctions, and diplomatic

protests3) more intangible enforcement mechanism such as: political consequences for a

state alleged to be in breach of an int’l duty The fundamental rules of int’l society are:

1) states are bound to observe agreements2) states are sovereign over population, territory, and matters which take place w/I

the domestic sphere (this is contested now by some who argue that nothing falls into this category)

The traditional conception of itn’l law was that national gov’ts represent the interests of a state on the int’l arena. Problem: national gov’ts representing all of the state’s interests is not a realistic assumption.

Sources of Int’l Law

Art. 38 of the Statute of the ICJ is seen as providing a good overview of the sources of int’l law (although note this is only a guideline for the ICJ….so perhaps there are other sources). It lists as sources:1) int’l conventions2) int’l custom3) general principles of law recognized in civilized nations4) judicial decisions and the teaching of the most qualified publicists of the various

nations The 2 main sources are the first 2:

1) int’l custom look at the behaviour of states..do they seem to be using a rule to guide their

behaviour? Must be a rule for which states feel they are bound…they don’t conform out of expediency or self-interest but b/c they feel they are bound (opinion juris). Such rules take time to develop into law but they can evolve quickly.

Eg. a) the good neighbor principle (articulated in Trail Smelter Arbitration

(1941)…then declared in Stockholm Declaration in 1972 – Principle 21)b) equitable utilization of shared natural resources (codified in the Helsinki

Rules of 1966 – Art. IV –see p. 554 csbk)c) duty to ensure equal access – i.e. countries undertaking activities that may

have adverse effects ensure that those affected countries have access to the legal and admin regimes w/I the country to seek redress for those adverse impacts (e.g. include the Law of the Sea Treaty – Art. 235, the Boundary Waters Treaty – Art. II, and NAAEC – Art. 6)

d) duty to inform and negotiate – i.e., when a country is undertaking an activity that may have transboundary impacts, they are under an obligation to inform neighboring countries and attempt to work out difficulties (eg.

International Law Association, Report on the Sixtieth Conference – Art. 5…see p. 555 csbk)

2) int’l conventions like contracts b/c states must agree to be bound D’Amato and Engels in “International Env Law Anthology” (csbk p. 556)

note that there are nearly 900 int’l legal instruments either dealing directly w/ the env or contain env provisions. They also note that the scope of such agmts is broadening…fr concern w/ single species or emissions to broader ecosystem approaches and fr concern only w/ transborder effects to concern about env contained w/I territory of one state.

The 1992 United Nations Conference on Environment and Development (UNCED) raised expectations about the role of int’l law to address env problems.

Some specific regimes dealt w/ in int’l conventions are explored in the csbk:1) Fisheries – Paisley in “Int’l Regulation of Fisheries” (csbk p.557) notes

that the int’l regulation of fisheries is inextricably intertwined w/ the 1982 UN Convention on the Law of the Sea (CLOS). CLOS is best know for establishing the 200 mile exclusive economic zone (EEZ) for fishing.

2) Biological Diversity – the Convention on Biological Diversity was formally adopted at the Earth Summit in 1982. (see csbk p. 558 for small excerpt)

3) Antarctic – the Protocol on Environmental Protection to the Antarctic Treaty was adopted in 1991 (see csbk p. 559 for small excerpt)

Int’l Environmental Law

Until 1972, when env degradation was brought under conventional protection, env degradation was seen as an invasion of sovereign rts of territories…so state A could be responsible to state B to make reparations. Eg. Trail Smelter Arbitration – articulated the good neighbor principle of

customary int’l law (now seen in Principle 31 of the Stockholm Declaration) The neighbor principle was subject to criticism in that it only captured a small part of

env degradation (only private rights are protected…not public good or the intrinsic value of the env).

Due to the shortcomings of the neighbor principle domestically, env law has developed to include more than negative prop rts. Similarly, int’l law developed in the direction of providing more protection. The 1972 conference in Stockholm culminating in the Stockholm declaration provided non-legally-bindings sets of goals and policy objectives.

The Stockholm Declaration had a significant impact on the development of int’l env law. Following the conference there was an explosion of conventions covering topics including:-climate control-biodiversity-ozone layer-law of the sea

Many of these new conventions produced binding legal documents. This in turn has had some impact on domestic legislation but the ICJ does not have

binding universal judn so enforcing can be hard. Therefore, broad guidelines are usually created and states translate them into domestic legislation b/c int’l law is not directed at domestic states directly. Int’l norms are usually about humanity writ large or the intrinsic value of the env.

Usually states have to enact domestic law to fulfill their int’l obs…but some states don’t. 2 models:1) monism – premised on notion that domestic and int’l law are part of a larger

single system of law. If a country adopts this view, they need not enact domestic law…int’l law is automatically domestic law as well

2) dualism – 2 separate legal systems exist (domestic and int’l) so must enact domestic law to adhere to int’l obs. (called ratification). Therefore, domestic laws need not conform w/ int’l obs until those int’l obs are themselves translated into domestic law. Canada adheres to this model.

Teoh (Australia)Facts – A Malaysian citizen was in Australia on a temporary visa. He married and had kids there. His wife was a heroin addict and he was convicted on drug importation charges and was thereafter denied residency and was issued a deportation order.Issue – Was his deportation order a violation of the UN Convention on the Rights of the Child (to which Australia is a signatory)Held – Although Australia is dualist and no specific laws wrt the Convention had been passed, the crt held that they must try to interpret domestic laws in a way that makes them consistent w/ int’l obs (prof says the same has been held to be true in Canada). Here, the crt said the Convention created a reasonable expectation that the decision-maker would take into account all relevant factors (here, including the welfare of the kids if their dad is deported). Prof says this seems to put forth the view that int’l law is like a giant preamble to domestic laws (which she says is better than nothing but not great).

In 1999 the Australian gov’t enacted legislation to overturn Teoh. The fact that they have signed an int’l convention does not give rise to reasonable expectations that admin decision-makers will act in light of its contents.

Baker (Canada)Facts – A woman w/ kids born in Canada was facing a deportation order. She sought to avoid the requirement that you must leave Canada in order to apply for residency. This request was denied and a deportation order was issued.Issue – Was the admin board (immigration officer) correct in denying her request?Held – No. Here, the crt said that the decision-maker should have turned their mind to the interest of the children. However, the crt did not make mention of legitimate expectations as in Teoh. They simply said that forgetting the kids was wrong. At para 70 though, they say that the values put forth in int’l law may help inform judicial review. Some environmentalists and legal scholars have put great faith in this decision as giving more bite to int’l law but the prof is skeptical.

So, Canadian citizens can’t bring an action against the gov’t for breach of an int’l ob. Int’l conventions etc can operate in the background but they can’t be directly pleaded or attacked.

Crts have made reference to int’l human rts convention w/o providing the legal basis by which they are doing so or the weight such conventions should have. They usually look to int’l law only when it supports their conclusion. So it’s a results oriented use of int’l law.

It could be argued that reference to the int’l human rts conventions is logical in Charter cases b/c the Charter was largely draw fr such convention. In contrast, where the domestic obligation is not incorporated in domestic law, it would be harder to argue….but Baker wasn’t a Charter case so there is a potential that such an argument would succeed.

Trends for the Future

Cameron in “Future Directions in Int’l Env Law: Precaution, Integration and Non-State Actors” (p. 560 csbk) points out that an element of precaution is now being built into int’l env law b/c env problem solvers no longer feel they have the luxury to wait for conclusive scientific evidence of env degradation. He also says the integrated, ecosystem approach is becoming more common.

D’Amato (p. 7 csbk) also point to the trend towards “soft law” (non-binding legal instrument). An eg. is the Rio Declaration concluded at the 1992 UNCED. It contains very broad guidelines such as at Principle 1: “Human being are at the centre of concerns for sustainable development. They are entitled to a healthy env and productive life in harmony w/ nature” (see p. 561 for more of this Declaration)

THE INTERNATIONAL CONTEXT: REGIONAL AND GLOBAL REGIMES AND DOMESTIC LAW (Mar 29)

Application of international law in the domestic courts

In Can international law is not directly applicable in the courts….it must be translated into domestic law. 2 nuances:

1) there is a common law principle that Parliament should not be taken to have intended to legislate contrary to principles of international law

2) Can. Crts have shown some willingness to look to international law for guidance in interpreting domestic law but this is ad hoc and the crts don’t articulate the legal basis by which they are purporting to do so

Traditional legal framework

Environmental degradation becomes an issue when it crosses borders. E.g. pollution of cross-border H2O, laws passed in one country that interfere w/ another.

The implication of the traditional framework for international rules is that states have the negative right to be free from pollution caused by another state. The institutional framework is also limited…the states can’t just take action against each other…disputes are resolved largely through ad hoc panels. There is no particular need for standing tribunals.

Emerging framework

We haven’t completely moved away from the traditional framework but there have been some changes to it as of late:1) the influence of the ecosystem approach is being felt – E.g. the Biodiversity

Convention where biodiversity itself it the focus of the convention (not the preservation of a particular species or addressing a particular environmental problem). We also see a move away from preservation attempts aimed at one species to habitat preservation per se (for e.g. even when it falls completely w/I one country’s borders)-e.g. Antarctica has been recognized as a matter of common concern. ***So b/c of the ecosystem approach, the framework is broader…there is a move from negative rights to positive obligations etc.

2) stress put on the need for an administrative structure (e.g. Biodiversity Secretariat) creating bodies which typically organize meetings, manage flows of info, generate reports, organize conventions, establish boards, forums for ongoing interaction etc. More specific admin agencies are also created including scientific and technical bodies …e.g. a board in charge of a particular river.

3) The traditional dispute resolution mechanisms have not disappeared but there has been an evolution of the compliance mechanisms which include duties to report, analyses of problems of implementation etc. These have in many cases been much more successful in bringing parties into compliance.

The Boundary Waters Treaty (BWT) and the International Joint Commission (IJC)

BWT was created in 1909 b/w US and GB (for Canada) (see p. 566 csbk for parts of the treaty)

BWT was not particularly revolutionary. Concerned itself w/ water quality and navigability….not directly w/ water pollution. ICJ was created in Article VII of BWT

ICJ is composed of six commissioners, three on the part of the US appointed by the President and three from Canada appointed by the Governor in Council.

IJC was supposed to signal to parties as to problems and possible solutions wrt boundary waters.

For a list of the powers, responsibilities and functions of the IJC (found in art VIA of the BWT) see csbk p. 585)..basically it’s mandate is to gather data, make recommendations, issue reports, and adjudicate disputes (although it has never actually adjudicated any disputes probably b/c of the very difficult conditions precedents needed to invoke it)

NAFTA

The US was particularly concerned w/ Mexican polluters so a side agreement was struck in NAFTA dealing w/ concerns about the env.

The North American Agreement on Environmental Cooperation Between the Government of Canada, the Government of the United Mexican States and the Government of the United States of America (NAEEC) (1993) (see p. 569 csbk for parts of the treaty and also handout with more of the treaty) was thus added onto NAFTA in a separate agreement along w/ a separate agreement for labour. This received some criticism b/c people felt it should be in the main body of NAFTA b/c as an add-on, people won’t see it in the same light.

NAAEC was drafted in particular to address:1) the concern re: the race to the bottom (i.e., in an effort to compete w/ each other,

each country will loosen environmental requirements in order to boost their economy). This is dealt w/ in an oblique way in the agreement. There is no specific mention of standards…it’s framed very generally.

2) The concern re: countries slackening enforcement of their env standards. This is addressed more directly by the NAAEC perhaps b/c it is seen as less intrusive to ensure a country is obeying their own laws rather than requiring them to adhere to certain specific policies.

The NAAEC creates at art. 8 a Commission for Environmental Cooperation comprised of a Secretariat, a Council, and a Joint Public Advisory Committee.

The NAAEC at Part III art. 14+ allows citizens to submit complaints wrt a country’s failure to comply w/ an env law. This has been used extensively. The following are the steps to be followed wrt submissions:1) Any non-gov’tal organization or person can submit a complaint that a party is

failing to effectively enforce its env law (art 14(1))2) The Secretariat then undertakes a review to determine whether (art 14(1)):

(c) the Secretariat is provided w/ sufficient evidence to make a determination(d) the complaint appears to be aimed at promoting enforcement rather than harassing the industry.

3) Should the complaint meet the requirements in art 14(1), the Secretariat must then determine whether it merits a response from the parties. Here the Secretariat will be guided by whether (art 14(2)):(a) the submission alleges harm to the person or organization making the

submission

(b) it advances the goals of the agreement(c) private remedies are unavailable(d) submission drawn entirely from media reports

4) If the Secretariat then believes that the submission warrants developing a factual record, they will inform the Council and Council will vote on it (art. 15).

5) If the Council votes for it w/ a 2/3 majority, the Secretariat will prepare the record.

Concerns re: citizen enforcement:-it may be difficult to gather enough proof-it must meet the hurdle of discretion found at art 14(2)…particularly at (a) it must prove that there has been harm to their own interests and environmental harm.-under art 15(2) the Council must vote by a 2/3 majority which could be problematic given that the Council is made up of env ministers from the 3 countries so there could be politicking (i.e., you scratch my back and I’ll scratch yours)

Some examples of the citizen enforcement in action:-US v. Canada re: hog farm pollution – The Secretariat concluded that a factual record was warranted but the Council voted it down 2-1. This raises questions about the validity of the process.-BC Hydro – The submitters alleged that provisions of the Fisheries Act were not being adhered to by BC Hydro. Here a factual record was prepared.-Cozumel – A wharf was constructed without the proper EIA. A factual record was prepared.-Metalis – There was an abandoned lead smelter in Mexico and a law stating that abandoned toxic waste must be repatriated. Mexico did nothing to force the US to do so. Again here, a factual record was ordered and is now pending.

Under the NAAEC, states may also file complaints against each other but this is rarely used for fear of retaliation.

Issues in Canada-US Environmental Relations

1) Water Quality

Great Lakes Water Quality Agreement (1978) (csbk p. 571) the primary operational agreement b/w US and Canada re: quality of the water in

the Great Lakes….the result of an ICJ report on the subject gives the ICJ more responsibilities = research, advice etc….so a more scientific

and technical role. Called for an ecosystems approach…took the area as defined by the Great Lakes

basin (instead of the US/Can border). This approach was criticized in that some (including Sly, Leith and Waterson in “What’s Gone Before: The Draft Charter’s Legal and Administrative Context” csbk p. 583) argued that this approach came at the expense of a comprehensive and integrated approach….it may lead to overlooking of the interaction b/w the basin and the rest of the environment. So, a

balance needs to be struck in this regime (much like fed and prov balances must be achieved).

a protocol was added the agreement in 1987 which provided for Remedial Action Plans (RAPs) (csbk p. 587) which is a process to deal with the 442 most contaminated areas in the Great Lakes. In effect, it’s an experiment for both the implementation of the ecosystem approach and local decision processes.

2) Water Quantity/Diversions

Great Lakes Charter (1985) (csbk p. 576) developed by the Great Lakes states and provinces and set trigger points wrt

consumptive use or diversion which, when met, created reporting requirements

3) Air

Agreement Between the Gov’t of Canada and the Gov’t of the US on Air Quality (1991) (csbk p. 578)

4) Trade

NAFTA (NAAEC see above)

Dispute Settlement

1) General Dispute Settlement Mechanismsa) IJC – have an arbitrative power but it’s never usedb) general international law dispute settlement mechanisms (for e.g., as pointed out

by McWinney at csbk p. 590, the ICJ (not to be confused with the IJC) is a possible arbitrator

2) Specific Dispute Settlement Mechanismsa) Air quality – the Agreement B/w the Gov’t of Canada and the Gov’t of the US on

Air Quality Pollution 1991 has a dispute settlement procedure (see csbk p. 591)b) Commission on Environmental Cooperation – have a general dispute settlement

mechanism at art. 10 and 13c) Domestic mechanisms for control of transboundary pollution – E.g.:

i) The US Clean Air Actii) the Ont. gov’t has intervened in several US cases in the hope of raising the

consciousness of US decision-makers on env issues affecting Canadaiii) in NAAEC, at art 6 it says that each party shall ensure that the others are

respecting their domestic environmental law…and parties can complain if they are not (see above)

ISSUES IN ENVIRONMENTAL LAW: FISHERIES CONSERVATION AND MANAGEMENT (Apr. 3)

Cod stocks in the Atlantic

In Feb. 1992 a moratorium was established on cod fishing in the Atlantic.

Between 1992 and 1995, other classes of fish were also included. The science of fisheries was called into question; can we replenish fish stocks with a

moratorium? It was widely believed that it was possible and that the stocks would be replenished by 2000. Obviously this did not occur. Cod has now been listed as a “species of concern”.

In 1992 it was estimated that the stocks were ¼ the size that they were in 1977. This was a strange result given that in the 70’s the coastal water property regime was established in an attempt to prevent a “tragedy of the commons” type situation…but it seems to have occurred anyway.

When the cod stocks collapsed, the gov’t blamed over-fishing by foreign vessels. Eg. Canada blamed Spain. In 1995, Canada seized a Spanish trawler in international waters just beyond Canada’s 200 km coastal waters area (the Estai affair). They were fishing Turbot in violation of Canadian laws wrt net size but they were in international waters so Canada had to unilaterally extend their jurisdiction and revoke the jurisdiction of the ICJ (they did both in a statute). The incident ended w/ negotiations b/w Can and the EU re: fishing quotas and a decision by the ICJ that Spain had no judn to claim against Can wrt violation of int’l law (although it was obvious Can was in violation of int’l laws).

It is clear that over-fishing by foreign fleets contributed to the shortages but there were obviously other causes:1) environmental degradation writ large (notably, the change in the temperature of

the water)2) pollutants in the water3) Canadian over-fishing (for example, fishers fishing in excess of their quotas,

extensions in the seasons in which fishing is permitted, hygrading) 4) Improvements in fish harvesting technology (trawlers harvest all fish…even those

that aren’t marketable)5) Industry is over-capitalized….i.e., there are just too darn many fisherpeople and

fishing boats and stuff. Many though a quota system was the answer but there are many problems w/ this

solution including:1) some argue that even if the quotas were adhered to at all times (which they were

not), they were set too high (i.e., setting the correct levels of fishing to attain sustainabilty requires more perfect information than our current science allows)

2) the Department of Fisheries and Oceans (DFO) faced much political pressure to keep the quotas high

3) quotas are too hard to change in response to the constant changes in fish stocks The DFO has now acknowledged that Canada did indeed have a role in the decrease

of the cod stocks.

An all-encompassing look at the course of env law through the eyes of a fish

A) Ecology/environmental ethics: Determining quotas etc is a very imprecise science. We can (and do) make

predictions but it could very well be that we are missing some vital link in the chain.

Some people argue that fish protection schemes were faulty b/c of our limited science. Others argued that we just weren’t conservative enough w/ our projections.

There is a common belief that there should be a conservative ethic imposed on fishers. Some say this is unfair and argue that they indeed had such an ethic but policy-maker’s intrusions made them loose it. (i.e., they weren’t consulted by DFO even though they know a lot about fish obviously)

Ethics of fish exploitation – instrumentalist activity (i.e., we fish to meet our needs)…one conclusion is that we just shouldn’t fish at all and just eat something else. But, there are social considerations….it’s a way of life for those crazy maritimers and god forbid we make them do something productive with their lives (sorry it’s 11:00 on a Friday night and I’m bitter). There is also a suggestion that we have created a false dichotomy b/w social and economic….although it’s a way of life, they do it to get money.

B) Prof suggests that the decisions must be made by policy-makers informed by scientists and other actors involved in the issue.

C) Constitutional jurisdiction issues: Feds have jurisdiction over fish by virtue of s. 91(12) “sea coast and inland

fisheries” Provs have significant interests in fish too to the extent that fish are w/I prov

boundaries and are thus affected by prov laws wrt H20 quality and protection of fish habitat etc.

Feds have delegated responsibility for fresh water fish management to the provinces. (A fine example of interjurisdictional cooperation). This is controversial in practice….the delegation of management is often not accomplished through formal agreements so sometimes it is unclear who is ultimately responsible. This can result in a lack of accountability by virtue of finger pointing and also discrepancies b/w different provinces.

D) Environmental Impact Assessments: One of the ways a federal EIA can be triggered is when federal agencies issue

permits. The lawlists lists those federal permits which will trigger an EIA and included in this list is s. 35 of the Fisheries Act which prohibits works or undertakings that disturb fish habitat w/o a permit. Therefore, before issuance of a permit, an EIA will be needed. We saw this occur in the Oldman River case.

E) Administrative law: Fisheries law is administrative law….it is a collection of legislation and

regulations administered by regulatory agencies. Fishers get licenses and quotas. The ministers who issue such licenses and quotas must do so in line w/ admin law principles and failure to do so may lead to admin remedies.

F) Public participation: The involvement of fishers and the fishing community in the making of fish

policies may result in more legitimate policies which may result in a higher compliance rate.

G) Statutes/regulatory framework: The Fisheries Act:

TAC (total allowable catch) – DFO scientists establish them by determining sustainable levels. They are established for each species of fish.

We have a common regulatory framework b/c of the status of fish as a common resource.

Policy tools at the DFO’s disposal: Quotas Regulations prohibiting fishing certain fish Restrictions on fishing in certain seasons Restrictions on fishing in certain areas Restrictions on gear

Critiques on the quota-based regulatory framework (MaCullum, “The Community Based Management of Fisheries in Atlantic Canada: A Legislative Proposal” (web)): The species approach to quotas is shortsighted. It doesn’t take into

account environmental pressures, interrelations b/w species, impacts on fish habitat etc. I.e., they should use a broader ecosystem approach.

The single species quotas breed antagonism and competition in the industry. Everyone is seeking to exploit the resource to the maximum extent possible in order to quash the competition.

There is an incentive under the regime to commit offences (eg. If you met your cod quota you would have an incentive to dump cod when fishing for turbot and simply not report it…this is very difficult to detect short of having someone from DFO present on every fishing vessel)

H) Self-Regulation: As an alternative to the current regulatory regime, MacCullum suggests that

communities should be given jurisdiction over particular areas. His basic ideas is that it’s the fishers who should be managed; not the fish. Fishers are given exclusive jurisdiction to fish in a particular area and it is thus up to them to determine the levels of fishing that will sustain them in the future. This gets around the problem of fishers blissfully catching in lie with their quotas (or even more) without a care in the world about the fact that next year they could be on the unemployment line b/c there just isn’t any more little fishies left. So instead of fish being a common resource w/ all the associated problems relating to the “tragedy of the commons”, they are made into proprietary/managed resources. The implication of this is that you are looking at a social fishery not a commercial one. The elements of such a scheme are articulated by MacCullum as:

1) must have a defined territory over which a community has exclusive jurisdiction

2) should have the ability to determine the conditions for membership and posses the means to enforce the specific rights and duties of membership

3) the rights of membership are non-transferable4) community must have a relationship of geographical proximity, historical use,

and dependency 5) decision-making process must be participatory6) community must exhibit a willingness for self-monitoring and enforcement.7) there must be a legislative sanction for the community’s jurisdiction to

guarantee that the benefits flow to that community.

-There are problems w/ this suggestion including the very real possibility that the community of fishers won’t know any better than the gov’t what sustainable levels of fishing are…or care for that matter. Perhaps parts of this theory can be taken though such as the notion of flexible quotas.

I) Aboriginals: Kyle, “Aboriginal Fishing Rights: The SCC in the Post-Sparrow Era”, (web)

The Sparrow Decision - decision has been credited w/ changes to the DFO policy and creation of the

Aboriginal Fishing Strategy (AFS)- delineates the interpretation which is to be given to s. 35 of the Const- it required sensitivity to the Aboriginal perspective (i.e., their notion of rights

may be different from ours)- it rejected the frozen rights approach – crt held that the phrase “existing

aboriginal rights” in s. 35 was to be interpreted flexibly, to permit the evolution of rights over time.

- crt set out the test to determine whether a proper reconciliation has taken place b/w gov’t regulations and aboriginal rights:

a) determine whether there is interference w/ an aboriginal rightb) onus is on the crown to prove it is justified interference (requires that

there is a valid legislative objective – and conservation was considered by the crt to be valid – as little infringement as possible, and aboriginals must be consulted.)

- the decision is limited in scope b/c the crt was considering the aboriginal right to fish in the context of fishing for food and for ceremonial purposes only….the crt expressly refused to deal w/ whether there was a commercial element to the right.

The Van der Peet Decision - presented the tests to determine whether an aboriginal right exists- Lamer stated that the purpose of s. 35 is to recognize pre-existing aboriginal

societies and thus recognition of rights should be linked to the practices, customs and traditions central to aboriginal societies prior to contact. The question is therefore, “whether without the practice, tradition or custom, the culture would be fundamentally altered”.

- Lamer’s test establishes a very high threshold for aboriginal claimants to meet (the author of the article argues that this is a departure from Sparrow)

- Lamer denied the claim that the aboriginal claimants had a right to fish commercially b/c he said there was no evidence that “prior to contact, the exchange of fish for money or other goods was an integral part of the distinctive culture”

The Gladstone Decision- Here the crt found for the first time that the claimants had a right to fish

commercially. The Lewis and Nikal Decisions- These cases both involved the question of whether aboriginals could manage

their rights to fish

- In both cases, the SCC decided that they didn’t but the decision was based on the fact that the fisheries in question were found to not be “on the reserve” and thus s. 81(1)(o) of the Indian Act that allowed them to regulate the management of fish on the reserve was not applicable.

- There has yet to be a case where the question is framed in terms of whether there is a right to manage the resource incidental to the right to fish.

- In Nikal, the crt found that requiring aboriginals to seek permits to fish even when they had a right to do so was an infringement of the right.

In Burnt Church, the DFO sought to negotiate licensing agreements but the aboriginals didn’t like it so they developed their own fishery without it and some were arrested.

J) Protected spaces / endangered species: National Marine Conservation areas and various parks have been established that

serve to preserve fish habitats The Fisheries Act also requires a permit before anyone can undertake activities

which may disturb fish habitat. 4 species of fish and some species of whales are listed in species protection

legislation as “of special concern”K) International law:

International law tends to parallel domestic law here. Traditionally, international law was concerned w/ who could fish and where. Then, fish conservation became an international issue.

States have a duty to impose conservation measures w/I their 200 km Exclusive Economic Zone (EEZ) in addition to imposing regulations on their flag ships anywhere they may sail.

NAFO (North Atlantic Fisheries Organization) is an international treaty which has the same mandate as the DFO on an international scale. It sets quotas and zones. So Canada receives quotas from them which they must then distribute to Canadian fishers. (in my notes it says “this applies to int’l waters in canada b/c they won’t let it apply to the EEZ…I have no idea what this means …sorry)

Canada has signed and ratified the Straddling Stocks Agreement. Canada has not yet signed the Convention on the Law of the Sea. It will do so

when the Straddling Stocks Agreement enters into force. The Canadian Code of Conduct for Responsible Fishing Operations (web)

represents an attempt at a more holistic, ecosystem approach. It’s also an attempt to bring an international document to a national level. Note that it is merely policy, not a legal document. It may serve as a basis for a more broad-based policy on fisheries.

OVERVIEW: CURRENT STATUS AND FUTURE DIRECTIONS OF CANADIAN ENVIRONMENTAL LAW (Apr. 5)

Nature of environmental law

It’s not a discrete body of law w/ principles and rules…it’s just a collection of principles and rules from various sources.

There is a great administrative dimension to env law largely b/c of its complexity and the need for a comprehensive and broad-based regime. The problems w/ this are that there is a risk of loosing transparency and responsiveness w/ admin law. But the advantage is that the law may be more specialized and focused which may foster transparency if properly designed.

Stages in the development of environmental law

1) private rights and interests played a dominant role2) statutes and administrative agencies3) efforts to incorporate the environment in all public decision making Each of these stages will be considered in turn:1) Private rights and interests played a dominant role

50 years ago the env was not seen as an issue area…it was generally believed that it could be subsumed under existing legal categories. Problem – rights and interests of traditional legal categories aren’t wide enough to capture public interest or the inherent value of the env.

2) Statutes and administrative agencies (command and control) This change was the result of an awareness that a more coherent approach was

needed. Prevention of injury could be addressed by 1) but private rights are usually

asserted in a reactive way. The fear of a compensation award may work in a preventative way but a regulatory framework is more efficient and effective at achieving prevention.

Statutes tackling specific issues were the first to be passed (i.e., end of the pipe approach…concern w/ effluent emissions at the end of the manufacturing process)…so effluent levels were set. Problems – seems to assume that we must live with a certain level of pollution….firms may then think they have the right to pollute. Also, the sectoral approach can create “env shell game” E.g., dumping at sea was given much attention at one time and international obligations were imposed but then what followed was that waste began to be dumped in more dangerous ways.

3) Efforts to incorporate the environment in all public decision making In an effort to overcome the problems of 2) (command and control) there began to

be a recognition that the env is connected to all human activity. It has been suggested by some that we transform the gov’t into one big Minister

of the Environment (i.e., we would have a Min of Finance and the Env, Min of Human Resources and the Env etc.)

A problem w/ a more ecosystem approach is that it will require more gov’tal cooperation since most ecosystems cross borders. Some argue that this means we should give sole jurisdiction to the Feds and others argue that we should decentralize and give all power to the provinces. In the EU, they have adopted a decentralized policy. Why would this be a good idea? A division of powers and responsibilities will always be needed. Any jurisdictional division of powers will be arbitrary to some extent…and none will function perfectly. In practice, interim gov’tal arrangements can also create problems.

The feds created the Commissioner on Sustainable Development with a mandate to achieve an overview of gov’tal policy from an environmental perspective. The current commissioner criticized CEPA.

The focus is on effects now rather than sources (reactive vs. proactive). Problems w/ the end of the pipe can be addressed (such as pushing pollutants into another form, the failure to address the overall levels of pollutants in the env, and the interaction b/w different medium)

Command and Control Alternatives

A commonly articulated alternative is to have self-regulatory initiatives w/ economic incentives. But the “holy grail” of env protection would certainly (according to prof) be a statutory system w/ some bite (i.e., a regulatory framework backed by penal sanctions). But there are limits to this approach too:1) practical limits – the complexity of the industrial process (although prof puts faith

in this process)2) criticisms of the end of the pipe solutions. They create perverse incentives not to

innovate, the last % of effluents are very hard to get rid of…so if the gov’t is in charge of ensuring virtual elimination, in effect you are requiring them to look into and change how industry deals w/ pollution. Arguably, the firm is in a better position to know this…so maybe the gov’t should instead provide incentives to innovate which may look like delegation to firms which can lead to its own set of problems (e.g., leaving the fox to guard the hen-house etc.)

3) protecting private rights – even if we broaden the scope of private rights (by slackening the requirements for standing, creating a human right to env quality, give statutory rights to a person to bring a suit when a statute is violated etc.), they may not receive adequate protection. There are problems of env cases and proving legal causation…judges are underinformed and the burden of proof is difficult to meet. Some argue that we should adjust the burdens in env cases …perhaps if you can show that there is a 50% probability that a particular firm is responsible, they should be saddled with 50% of the damages. But changing the burden does not alleviate the problem of over or under-compensating the plaintiffs.

4) separation of power b/w the crts, the legislature and the executive is problematic. Crts aren’t democratic…also the public loses control over issues when they come before the crts. So, maybe giving crts a broad role in pursuing public interest is misguided. At a certain point, the law ceases to be the best way to protect the environment. Perhaps the political forum is better suited to deal w/ the env. Our reliance on litigation may cause the political forum to atrophy. Also, there is a problem that experts may take over the discussion in the crts. However, giving power to the gov’t may result in not enough use of science. E.g., Env NGOs argue that allowing Ministers discretion will result in bad policies. But in the end all env policies are political questions b/c science isn’t exact enough to provide all the answers.