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Environmental Law – Midterm Summary Chapter 1: International Environmental Law Sources of International Law Customary International Law (CIL): o Norms which have become accepted by countries over time as guiding principles. o Examples: State sovereignty. A state must not permit activities that cause harm in adjoining states. o Binding on all countries. Treaties o Binding only on countries that sign them. o A treaty must be implemented by the state, often through legislation, though some treaties can be implemented through policy measures. Patent implementation: when a country signs a treaty, indicates their intent to implement, and indicates that legislation is not required for implementation, they can be considered to have implemented the treaty. Soft law: o Guiding principles which have been endorsed in the international forum and may have been referenced by courts, but fall short of CIL and are not binding. o Examples: Precautionary principle: if there is a serious threat to the environment, it is not necessary to wait for scientific certainty about the causes – precautionary measures should be taken, even in the face of scientific uncertainty. Old formulation was that one must take action despite scientific uncertainty. Newer formulation is weaker – scientific uncertainty shouldn’t be an excuse for inaction; also, has come to be limited by the notion of ‘cost-effective action’. Some Canadian legislation explicitly or implicitly incorporates the PP. Principle of Polluter Pays: The cost of damage to the environment should be borne by the polluter as part of the cost of doing business, rather than by society at large. Domestic Application of International Law Only the federal government can make treaties, but their implementation may require provincial legislation. This raises constitutional balance of power issues. Application of international law in Canadian courts:

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Page 1: UVic LSS - 329 Environmental - 200…  · Web viewEnvironmental Law – Midterm Summary. Chapter 1: International Environmental Law. Sources of International Law. Customary International

Environmental Law – Midterm Summary

Chapter 1: International Environmental Law

Sources of International Law Customary International Law (CIL):

o Norms which have become accepted by countries over time as guiding principles.o Examples:

State sovereignty. A state must not permit activities that cause harm in adjoining states.

o Binding on all countries. Treaties

o Binding only on countries that sign them.o A treaty must be implemented by the state, often through legislation, though some treaties can

be implemented through policy measures. Patent implementation: when a country signs a treaty, indicates their intent to

implement, and indicates that legislation is not required for implementation, they can be considered to have implemented the treaty.

Soft law:o Guiding principles which have been endorsed in the international forum and may have been

referenced by courts, but fall short of CIL and are not binding.o Examples:

Precautionary principle: if there is a serious threat to the environment, it is not necessary to wait for scientific certainty about the causes – precautionary measures should be taken, even in the face of scientific uncertainty.

Old formulation was that one must take action despite scientific uncertainty. Newer formulation is weaker – scientific uncertainty shouldn’t be an excuse for

inaction; also, has come to be limited by the notion of ‘cost-effective action’. Some Canadian legislation explicitly or implicitly incorporates the PP.

Principle of Polluter Pays: The cost of damage to the environment should be borne by the polluter as part of the cost of doing business, rather than by society at large.

Domestic Application of International Law Only the federal government can make treaties, but their implementation may require provincial

legislation. This raises constitutional balance of power issues. Application of international law in Canadian courts:

o Spraytech v. Hudson (Ville) [2001 SCC]: Facts: Montreal municipal gov’t passed bylaw against pesticides allowed under Federal

laws. Chemical companies took municipality to court challenging law as ultra vires and/or inconsistent with provincial and/or federal legislation. Court upheld bylaw.

Significance: Court considered international agreements as soft law; applied precautionary principle, and the fact that it has been explicitly incorporated into several recent Canadian statutes and many recent international agreements. Considered whether precautionary principle is CIL, but stopped short of saying it is.

o Gosselin v. Quebec AG [2002 SCC]: Facts: Plaintiff challenged Qc welfare program as violating Qc charter rights. Court

declined to look to international agreements to clarify the meaning of these rights, saying the Charter provisions were left deliberately vague and were not intended to give the courts review powers re: what is appropriate evidence.

Significance: No private party can sue to enforce rights under an international agreement. Courts are not institutionally competent to review international agreements.

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o Canadian Foundation for Children: Facts: Challenge to Criminal Code provision regarding permissible use of force on

children for corrective purposes. Court upheld provision. Significance: Canada’s laws should be construed so as to be consistent with international

agreements. Treaties (and European Court of Human Rights) were used as interpretive tools to provide guidance.

Cross-border application of domestic law:o Reciprocal enforcement of judgments: a judgment rendered in the US can be registered in

Canada and then enforced by the Canadian system, and vice versa.o Tek Cominco Meadows v. Pakootas:

Facts: Smelter released slag into Columbia River in accordance w/ Canadian law. Slag flowed into US, causing US EPA to order smelter to investigate contamination and pay for cleanup. Trial court threw this out, as it would mean applying US law in Canada. Court of Appeal reversed this, saying the pollution source was the slag which had flowed into the US, not the smelting plant in Canada, so it was a domestic problem – and smelter had known the slag would flow into the US.

The international trade regime:o Formerly GATT, but has now been subsumed under the WTO.o Free trade agreements prevent Canada from erecting “barriers to trade” with certain countries.

This has caused some environmental regulations to be struck down when they look too much like regulation of foreign goods.

Example: US regulations requiring imported shrimp be caught using a device which made fishing practice safer for sea turtles was struck down by a panel.

Chapter 2: The Common Law

Elements of Torts in Environmental Law: The common environmental torts are negligence, nuisance, Rylands v. Fletcher, and trespass. 1. Negligence:

o Elements: i. Duty of care ii. Breach/standard of care iii. Damages to P, caused (legally and factually)by D.

2. Nuisance:o Unreasonable interference with a possessory right to use of land.o Types of nuisance:

Private nuisance: most nuisance cases fall into this category. Plaintiff must have possessory interest in land Defendant must have unreasonably interfered with dependant’s

use/enjoyment of land, causing foreseeable harm. Used in: Palmer, Cambridge Water

Public nuisance: interference with public rights, such as access to and use of public highways, waterways, etc.

It is difficult to achieve standing in public nuisance – usually limited to crown. An individual cannot sue in public nuisance unless they get permission from AG, or can show that they have suffered some special damage over and above that of the general populace (and this is typically interpreted quite strictly.)

“Any activity which unreasonably interferes with the public’s interest in questions of health, safety, morality, comfort or convenience” is capable of constituting a public nuisance (Ryan v. Victoria (City) [1999 SCC]).

o Considerations in a nuisance case: Was there damage to the land itself?

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Utility of the activity that caused it. Character of the neighbourhood. Sensitivity of the plaintiff: courts apply a ‘reasonable person’ test. Gravity, seriousness and duration of the interference.

o Defence of statutory authority: Defendant can argue that their activity was authorized by statute. To invoke this defence, the harm complained of must be an inevitable consequence of

the activities carried out under the statute. (Ryans, [SCC]). Hayes v. BC Transit: Translink rejected an earlier plan of tunnelling that would have

avoided the disruption to business, in order to save money. Thus consequence was not ‘inevitable’ and plaintiff was entitled to damages.

3. Rylands v. Fletcher (aka ‘strict liability’):o Elements:

i. When bringing onto land a dangerous substance (i.e. one that, if it escapes, can cause harm),

ii. as part of a non-natural use of land, iii. and the risk manifests, iv. you are strictly liable, regardless of whether you were negligent in allowing the

escape.o Cambridge Water:

Facts: Chemicals used in a tanning business spilled onto concrete floor & seeped down into aquifer.

Significance: Foreseeability of harm is still an element of this tort. (There was no scientific

knowledge of harmful effects of chemical at time of spill.) ‘Natural use’ should not be read so broadly as to include the normal activities

of a tanning business. 4. Tresspass:

o Trespass to land: a direct, intentional, unjustifiable violation of a person’s ownership of land. No need to show injury, or knowledge of ownership E.g. dumping waste. A more contentious possibility: overspill from pesticide spray?

o Trespass to the person: Could be used in the context of damage to someone’s health, but this usually falls under negligence.

Palmer v. Nova Scotia Forest Industries [1983] Facts: NS Forest Products wanted to spray pesticides from an airplane. Adjacent land owners and an

aboriginal with an interest in the area filed for a quia timet injunction (an injunction granted after trial), alleging private nuisance, trespass to land, Rylands v. Fletcher, riparian rights, and breach of the Fisheries Act.

Analysis:o Private nuisance: requires substantial interference w/ enjoyment of property, and proof of

damage. Damage need not be pecuniary, but must be material or substantial. Health would qualify, if P can prove chemicals would migrate onto land and create health risk.

o Trespass to land: no damage required – if chemicals end up on land, trespass made out.o Rylands v. Fletcher: P must show likelihood of damage if it escapes, and direct consequences.o Quia Timet injunction: P must show strong probability that apprehended mischief will arise.

Court can consider convenience and hardship in determining sufficient degree of probability.o Regular injunction: Requires irreparable harm, and that damages are not adequate. (Also applies

to Quia Timet.) Discretionary remedy, requires sufficient grounds. In negligence it can be difficult to prove factual causation in the face of scientific uncertainty – one must

show that the something can cause a particular harm, and also that it did in this particular case. The judge

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declined to grant the injunction because he wasn’t convinced of any serious risk to health, and he didn’t like the injunction being used as essentially an appeal from the decision of the regulatory agencies which approved the pesticide.

Disadvantages of Torts: Standing: can be difficult to obtain. Costs:

o Cost of litigation can be difficult, esp. if you don’t see any money until judgment is granted.o Expert witnesses

Difficulty of establishing proof of causation.o Latency period: problems may take a while to develop.o Multiple potential causes (aka ‘causal indeterminacy’): ‘but for’ test is difficult to meet when

other factors could have caused you to develop the harm anyway. Often P can only show ‘material contribution’, i.e. that D materially increased their risk

of developing the harm.o Circumstantial evidence (aka ‘causal uncertainty’ about nature of substance and harm): evidence

is often epidemiological or probabilistic. And although courts use “balance of probabilities” (51%) standard, scientists use the

95% standard, so it may be difficult to find experts willing to say something is “proven”, even if by the court standard it is.

Snell v. Farrell Optic nerve atropy case. Discusses necessary standards of evidence – ok to infer causation from little evidence where info is uniquely in possession of D.

Practical effect may be to permit finding of causation based on material contribution to risk.

Hollis v. Dow Corning Corp: significant gap in knowledge between parties can justify application of flexible standard of proof.

Cambridge Water discusses foreseeability of harm in the face of lack of scientific knowledge.

Private law only mediates disputes between individuals – may not be best forum for advancing law as a whole.

Three problematic scenarios in ‘toxic torts’:o Indeterminate defendant: plaintiff knows the harm was caused by chemical X, but can’t prove

which manufacturer of X was the source of the harm.o Indeterminate plaintiff: A certain background level of the harm exists, but chemical X elevates

that. Can plaintiff prove they wouldn’t have developed the harm anyway? Some courts have said that if the defendant has special knowledge of whether the

breach caused the damage in this case (i.e. because they performed the operation), it is ok to infer causation on very little information.

o Indeterminate harm: Plaintiff’s risk of developing a harm in future has been increased, but hasn’t manifested as yet.

Remediation difficulties:o Monetary compensation may be less desirable than stopping harm.o Difficulty of quantifying damages:

Cost of remediation? Clean-up cost + loss of property value? B/c environmental costs are rarely assigned adequate market value, polluter rarely

“pays” in full and some harm goes uncompensated. Historical contamination:

o Most provinces require owner to remediate site. These laws only require elimination of threat to human health, not restoration of

environment.

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o Court takes very different approaches in Tridan Developments Ltd. v. Shell Canada Products Ltd. [2002 OCA] vs. Cousins v. McColl-Frontenac Inc. [2007 NBCA]

o See also BC v. Canadian Forest Products Ltd. [2004 SCC]

Suggestions for Law Reform Reversing burden of proof: once plaintiff establishes they have a type of harm caused by X, burden shifts

to defendant to prove they didn’t cause it. (McGhee case in UK – though they later abandoned this.) Creating liability for increased risk: increasing risk becomes a tort, with damages recoverable

proportionate to the degree of increased risk.

Litigation in the Context of Global Warming Four areas of Global Warming litigation have been increasing lately:

o Against public agencies for acts or omissions relating to climate change.o Against public agencies for considerations in decision-making.o By regulated agencies, against public agencies regulating GHGs.o Private actions against companies that emit GHGs.

Hurdles to this kind of litigation:o Foreseeability of harmo Duty of careo Public policy considerations (economic considerations, social need, etc)o Standingo Statutory authorityo Causation

Public Environmental Rights The Crown can sue as a representative of the public, to protect public rights in the environment. However, there is still debate over how these things are to be valued. Canfor:

o Canfor negligently failed to detect that one of its controlled burns had not extinguished itself, causing forest fires the next year. Crown sued for various types of damage, including loss of trees set aside for environmental reasons, suing both as property owner and as representative of the people of BC.

o Court said that it was technically possible for AG to seek tort damages for public, but in this case Crown had only argued commercial damages at trial and never proposed a coherent basis for valuing environmental damages (or even what those would be, over and above commercial losses).

Class Actions Rationale for class actions: where a group of people have the same complaint, combining into one lawsuit

saves time, money on expert witnesses, etc. Three requirements for a court to issue an order allowing a class action:

o 1. An identifiable classo 2. A common issueo 3. A class action must be the preferable procedure

Barriers to class action in environmental lawsuits:o Damage is often not uniform, reducing ‘judicial economy’ from a class action

Hollick v. Metro Toronto: pollution from landfill was not spread evenly over geographic areas over time, so the necessary facts would be massive. Thus, multiple small claims were considered a preferable procedure to a class action. (B/c small claims was an option, no access to justice issues; behaviour modification not an issue b/c better ways to deter polluters, insufficient judicial economy.)

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o Resulting harm may also vary, making a ‘common issue’ problematic: Pearson v. Inco: victims of smelter pollution could only get property damage certified as

a class action; health problems varied too widely to form a ‘common issue’. Ways of overcoming these barriers:

o Need to assess individual damages is no longer a reason to avoid a class action. (Per Ontario legislation, s. 6(1))

o Subdivision into subclasses is acceptable.o Rumley v. BC: not an environmental case (class action against institution for 49 years of

sexual/physical abuse at school for disabled children), but court was flexible re: Class Action certification – sanctioned systemic liability.

o Barrett v. Saint Lawrence Cement [2008 SCC]: dust from a cement operation was coating nearby houses. Judge divided plaintiffs into four subclasses based on four ‘zones’ which had been variously affected, ensuring a common injury within each zone. Court also held that the civil code provision at issue did not create a requirement for proving fault or negligence, and rejected a statutory authority argument.

Distinguished Hollick Held that trial judge has discretion to assess damage on an ‘average’ basis to facilitate

legislation.

SLAPPs Strategic Lawsuits Against Public Participation: where developers file a lawsuit against a person or group

publically opposing them, (often with no merit), not to win, but to force them to expend legal costs and bully them into silence.

Charter does not apply in private litigation, per Dolphin Delivery Ltd. v. RWDSU [1986 SCC] Definition (proposed in Tollefson article, not official):

o 1. The lawsuit is a claim for damages or an injunctiono 2. It is filed against an individual or groupo 3. It is filed against them because of their communications to a government body or official, or to

the electorateo 4. This is an issue of public concern

Anti-SLAPP legislation in Canada:o BC passed some in 2001, but it was repealed.o Qc is currently the only state with anti-SLAPP legislation.

“A court may declare an action or other pleading improper, and impose a sanction. In considering whether a case is improper, the court may consider whether it is an attempt to defeat the ends of justice; in particular, if it restricts freedom of expression and public debate.”

If a court decides a case may be improper, onus shifts to plaintiff to justify it. Court can then refer case to case management, suspend it, or can even make a special

order for company executives who participated in the decision to personally pay damages.

Fraser v. Saanich [1999 BCSC]:o Fraser tried to expand a mental hospital, but neighbours lobbied Saanich and it wasn’t approved.

Then Fraser tried to sell hospital, but neighbours lobbied Saanich to downzone property to residential-only, affecting selling price. Fraser sued neighbours and Saanich.

o Judge dismissed case and awarded special damages against Fraser for vexatious lawsuit, noting importance of public participation in community decisions.

Chapter 3: Jurisdiction over the Environment

Difficulties

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Tension between provinces and federal gov’t – provinces don’t want feds legislating in particular areas because they want to retain those powers to themselves.

Environmental concerns often aren’t lobbied for as hard as other concerns. This is because environmental benefits tend to be diffuse, while the costs tend to be concentrated, so only a few will have strong incentive to push for environmental protection in a particular case.

“Collaborative” vs “Competitive” model: in the competitive model, each jurisdiction pushes for its own agenda. In the collaborative model, they try to work together, but the resulting compromises tend to lead to very weak requirements.

Federal regulation allows for uniform standards across the country, but enforcement can still vary by province, so stronger federal presence may not be desirable.

Federal Powers: ‘Conceptual’ powers (granting general authority over a broad range of activities):

o Criminal Law, s. 91(27) Requires a prohibition backed by a penalty Arguments often turn on the complexity of the legislation, arguing over whether it is so

complex as to be more ‘regulatory’ than ‘criminal’. Disadvantage: reactive rather than proactive

o Federal taxation, s. 91(3) Can be useful in setting incentives and penalties

o Trade and Commerce, s. 91(2) Generally limited to interprovincial or international trade Could potentially be used to implement international emissions trading systems.

o POGG Emergency Powers doctrine:

Must be a temporary situation National Concerns doctrine:

Can be used only for issues that did not exist or were not of national significance in 1867.

Singleness/uniqueness/indivisibility ‘Scale of impact’ must be compatible with constitutional separation of powers.

o Federal Spending Power Can achieve environmental objectives directly by spending money.

‘Functional’ powers (granting authority over specific activities):o Fisheries, s. 91(12)o Navigation and Shipping, s. 91(10)o Federal Works and Undertakingso Canals, harbours, rivers, etc.

Provincial Powers: The province is the ‘owner’ of the land and is able to manage the environment. Provincial heads of power:

o Property and civil rightso Matters of a local or private natureo Mines and mineralso Non-renewable resources, forestry and energy

Cases R. v. Fowler [1980]:

o Company spilled diesel oil in water frequented by fish, contrary to federal Fisheries Act. Company challenged these provisions as ultra vires the feds. Court upheld the act under s. 91(12), Fisheries, as regulating things harmful to fish clearly related to fisheries.

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R. v. NW Fallers [1980]:o Similar to Folwer, except they were dumping debris. Act provision was held to be ultra vires in

this regard, as there was no evidence that debris was harmful to fish. R. v. Crown Zellerbach [1988 SCC]:

o Company dumping debris in ocean was charged under Ocean Dumping Control Act, which they challenged as ultra vires. Feds successfully upheld it under POGG National Concerns.

o Court laid out the test for National Concerns. Distinctiveness and compatibility with separation of powers were met in this case by drawing a line between salt and fresh waters.

o Strong dissent from LaForest, arguing that salt and fresh waters intermingle all the time, and that air carries substances into salt waters, so this grants too broad a scope to fed authority.

Friends of Oldman River [1992 SCC]:o Alberta gov’t wanted to dam the river, which required approval from feds under Navigable

Waters Protection Act and Fisheries Act. Feds had issued an order requiring an environmental impact assessment before a minister could grant approval, but the Ministers of Transportation and Fisheries both granted approval without one. A group challenged this for not following federal guidelines; the counterargument was that the guidelines were ultra vires.

o Court upheld the order as a justifiable ancillary to a s. 91 power (or alternately under POGG). The motivation for legislation (environmental, etc) is irrelevant as long as it relates to a proper head of power; in this case, legislating with respect to fisheries necessarily implies deciding the process s under which you will exercise that authority.

o Court also noted that calling something a ‘provincial project’ is irrelevant to constitutional division of powers.

R. v. Hydro-Quebec [1997]:o Feds had passed an order regulating PCBs under EPA. Hydro-Quebec spilled PCBs into river, then

argued that toxic substances are a provincial matter.o Court upheld the order under the Criminal Law power:

Legislation addressed both health and environmental concerns, but court decided that the environment was of sufficient public interest that it was ok to extend the Criminal Law power beyond health.

Minority felt scheme was too complex and was regulatory in nature, but majority accepted it as prohibitive, saying the Act was simply taking the time to lay out explicitly what is banned.

Minority were concerned about sweeping away provincial power, but majority pointed out that criminal law power, unlike POGG national concerns, doesn’t prevent further regulation under s. 92 – criminal law power should “underline and protect fundamental values” of our society, including environmental protection.

Jurisdiction and Climate Change Carbon tax:

o Feds: almost certainly allowable under their powerso Provinces: problematic. S. 92(2) allows for direct taxation for purposes of raising revenue, but in

BC we have structured the legislation to be revenue-neutral. Cap and Trade Legislation:

o Feds: can regulate specific areas (e.g. aeronautics), but oil and gas is more problematic. Might be justified under Criminal Law power, but harm is less direct than in Hyrdro-Quebec and allowing for emissions-trading looks like regulation.

o Provinces: No problem with industries that are validly regulated under provincial legislation, but impacts on federally-regulated entities might be problematic.

Chapter 4: Environmental Regulation

Regulatory Models (McGonigle Article)

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Permissive regulation vs. Preventative design:o Permissive regulation: allow pollution to happen, but set standards regulating what can come out

of the pipe.o Preventative design: design the system so pollution doesn’t happen in the first place. (This is

becoming more popular.) Assumptions in our regulatory model:

o Assimilative capacity: assumption that the environment can absorb what we throw at it.o Scientific knowledge: assumption that our studies give us an accurate picture of what is going on.

(Despite the fact that many effects are subtle and do not appear for decades.)o Effective regulation: assumption that regulatory agencies have enough funding/staff/etc to keep

up with developments. (Often they don’t, and gov’t often doesn’t enforce its own standards.)

An Idealized Approach (Tollefson Article) Four-step approach:

o 1. Set an objective (e.g. “conserve fish and fish habitat”)o 2. Develop criteria (e.g. “quality of water frequented by fish”)o 3. Establish an ambient quality standard (e.g. “no change from natural state of waters”)o 4. Define an individualized operational standard

Performance-based: not concerned with how compliance is obtained, as long as the standard is met.

Technology-based: require use of particular equipment or type of equipment. Management-based: requirements for how companies go through the planning process.

(Such as mandating professional assessments.) Implications of different approaches:

o Who sets the standards? Company probably knows more, but don’t want to leave it to their discretion.

o Who participates? Various models suggest broader or narrower participation.

o Size of individual companies: if the industry consists of numerous small companies, regulation may be more difficult.

o Size of the industryo Local circumstances:

Economic/social: how critical is the industry to the province? Environmental: how sensitive is the environment in question?

o Clarity of environmental objective and of standard set: Easy to know if you’re in compliance with technology-based standards; harder with

others. On the other hand, more vague standards may allow the company more flexibility in

how they comply.o Amount of red tape, paperwork, bureaucracy.o Private autonomy vs. certaintyo Innovation and “freedom to manage”: rigid standards may have more short-term impact, but

may also become obsolete more quickly.o Economic efficiency: what is most cost effective in terms of overall economics?o Regulatory cost: how difficult/expensive will it be to enforce this standard?o Risk: how you phrase the standard can affect who bears the risk.

“Use performance standard x” – if the company does, but harm results anyway, taxpayers bear the risk.

“Don’t cause landslides” – company bears the risk.o Transparency and public participation

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o Relationship between regulator and regulated: “checklist” regulations might encourage regulators to simply check for compliance on those items, and not investigate whether the overall situation is acceptable.

o Information requirements: depending on the standard, you may need a baseline for comparison. (E.g. “don’t allow more landslides than the natural level”)

o Fairnesso International pressures/implications:

Treaties Markets (e.g. BC forestry is heavily export-dependent, so international pressures played

a large role in the regulations we adopted.) Alternatives to regulation:

o Voluntary measureso Education: educate people to achieve a certain targeto Economic instruments: tax deductions in exchange for e.g. upgrading equipment

Enforcement issues:o Time frames: With some standards you can tell immediately if they are complied with, but with

others, the effects of noncompliance may not manifest for decades. (E.g. land-slides)o Proof of cause: how do you prove the company caused the harm? (As opposed to it being a

“natural” land-slide, or the fault of some subsequent company?)o Recourse: what if the company has gone out of business when the harm manifests?

Current Regulatory Regimes Forest and Range Practices Act (FRPA):

o A 2004 replacement for the Forest Practices Code.o Example difference: Under FPC, company had to create a Forest Development Plan and follow it

to avoid creating landslides, so it was easy to tell if they were in compliance, but if they were, any landslides weren’t their fault. Under FRPA, companies are prohibited from causing “significant landslides”, making them responsible for any that occur, but now gov’t has to prove they caused it.

o Even though assessments are now voluntary, companies still do them, for various reasons: Avoid penalties for causing slides, or establish due diligence defence. To be a good corporate citizen/maintain public image To maintain access to foreign markets To get seal approval from Forest Stewardship Council and others (which can provide a

further competitive advantage in foreign markets) To avoid lawsuits from those injured in slides

o Disadvantages to this system: Problems may not manifest for years If company hits hard times, churning out wood may take priority over planning.

Canadian Environmental Protection Act (CEPA):o Has been upheld under the Criminal Law power (Hydro-Quebec)o Provides mechanisms for a private citizen to bring an actiono Has been found to conflict with NAFTA (1995 ban on PCB exports)

Chapter 5: Compliance and Enforcement

Mechanisms of Enforcement Compliance inspections Investigation (if a compliance inspection turns up a potential non-compliance) Stop-work orders Remediation orders Prosecution/administrative penalties

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o Prosecution: Previously, you had to find the ‘directing mind’. New CC provisions now make

prosecutions easier. Three types of offences:

Mens Rea: mental element required Absolute liability: need only show the act was committed. (Less popular where

penalties are harsher, esp. jail time. Strict liability: Crown must show actus reus, but defendant then gets due

diligence defence. (How likely was event to occur, was a preventative system in place, etc.)

o Administrative penalties: have the advantage that you can punish the company w/o punishing the workers.

Licensing: has the additional enforcement mechanism that you can suspend/cancel the license.o Though this may put innocent employees out of work.

Compliance Monitoring Bodies Forest Practices Board:

o Audits effectiveness and appropriateness of government enforcement.o Considerations:

Has the gov’t established enforceable requirements? (I.e. no “weasel words”?) Do gov’t agencies have enough info on the activities in question? Do gov’t agencies have ways of identifying risk and focusing enforcement on that risk? Does gov’t conduct sufficient inspections, in appropriate ways, in appropriate places?

Commission on Environmental Cooperation:o A NAFTA appendage with an environmental oversight mandate.o If one gov’t isn’t enforcing its own laws, Commission can complain to the others.o Commission cannot ‘punish’ a gov’t, but can investigate and publish findings.

Problems With Enforcement Cooperative approach: regulator and company work together to see how company can be brought into

compliance.o Danger: regulatory capture. Industry and regulator get so close that industry ends up calling the

shots.o Not punishing enough is unfair to companies that have bothered to comply.o Not punishing enough may lead to companies ‘calculating’ what they can get away with.

Adversarial approach: punish all infractions.o Danger: punishing too vigorously discourages economic growth.o The threat of “amoral calculators” may be overstated; there may be other types of companies

you might be dealing with: Amoral calculator: calculates what they can get away with. Political citizen: wants to be a good corporate citizen and follow the law, but only if the

law is reasonable. Incompetent: simply doesn’t know the rules (poss. b/c they can’t afford an in-house

lawyer), or lacks the technical competence to comply, or lacks the finances to comply.

Sentencing Principles (from R. v. United Keno Mines Ltd. [1980]) Nature of environmental damage: how important/resilient/etc was environment? How serious was the

harm to it?o Irreparable damage?o Single or repeated incident?o Persistence?o Possibility of greater damage?

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Was contravention accidental or wilful? What preventative efforts were undertaken? Signs of remorse (voluntary reporting, speed of cleanup, etc) Did gov’t tacitly encourage noncompliance, e.g. through non-enforcement? Size of corporation:

o A bigger corporation will need a bigger fine, so they can’t just write it off as the “cost of doing business”.

o A smaller corporation should not be punished so harshly it drives them out of business. Benefits to company (profits/avoided costs) from breaking law? At minimum, the penalty should take

these away. History of non-compliance? Remedies/creative sentencing:

o CEPA: Audits, ems, publication order, payment into a general fundo Fisheries act s. 79(2): sentencing considerations absent, but still takes guidance from United Keno

Mines.

Director Liability Environmental legislation will often say that where a company contravenes a provision, a director/officer

who allowed it also contravened it. Principles:

o Discourage wilful blindnesso Did each director ensure due-diligence systems were developed and implemented to prevent

non-compliance? Regina v. Bata Industries:

o Stored toxic substances, barrels were deteriorating. Penalty imposed at prosecution.o Principles considered:

Relative position in the company (control/power) Specific responsibility re: environmental management

Were they expected to take a more proactive approach re: environmental management?

Also consider measures they undertook and achieved. Policy considerations:

Profit/Shares in company Judge considered three individuals involved in case:

Senior director: lived in Toronto, visited rarely. When he did, he saw a problem and asked company to deal with it.

Two officers. One was responsible for environmental mgmt, was aware of toxic substances, took bids on cleaning up but went with lowest bid. Found more culpable than the other.

Indemnification of officers/directors: Company had agreement to indemnify directors/officers should they incur

costs, which could extend to criminal matters/prosecution. Court looked at provincial offences act: probation order can be made for

purposes of punishment/rehabilitation Also looked at Companies Act, allowing indemnification of directors/others if in

good faith, etc. Policy question: if directors/officers can be indemnified, does it make sense to

put them in jail instead? Aside: company liability:

o Company is accountable for illegal actions; corporate veil protects shareholders, board of directors, officers, etc from any culpability for wrongdoing.

o Company is separate legal entity, exists perpetually, cannot die.

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Administrative Penalties Gov’t official can determine there was a contravention and apply a penalty w/o prosecution.

o Applies only to some offences, e.g. under FRPA, SEC.o BC Forestry industry has seen 100-150 penalty determinations.

Compliance & Enforcement finds possible contravention, investigates, gathers evidence Field staff present this to gov’t official, in this case the District Manager

District Manager is kept out of loop on investigations. Dist. Mgr writes to company, gives “opportunity to be heard” Dist. Mg’s considerations in administering a penalty:

Magnitude of contravention Wilfulness, repetition Did they profit? Has company shown remorse Etc.

Penalty seeks to ‘compensate crown’ (e.g. for lost timber royalties) Usually, a hearing is held for purposes of administrative fairness. Standard of proof is balance of probabilities. Advantages over court proceedings:

o Faster (at least in theory – Min. of Forests can take up to 3 years to administer a penalty!)o Less formalo Less expensiveo Lower standard of proof than a criminal proceedingo Minister has more expertise in the area than a court would.

Disadvantages:o Lower standard of proofo Informality

Citizen Enforcement (Private Prosecutions) In Canada, a citizen can bring a suit against a corporation for breaching environmental regulations. Usual test for a public prosecution:

o Public interesto Probability of conviction

Advantages of private prosecutions:o Gov’t has limited budget and faces political constraints, so citizens can “help out”.o Safeguard against corruption

In crown prosecutorial discretion In gov’t/industry getting too close Averts laws becoming ‘paper tigers’ for gov’t inaction

o Reassures complying groups that competitors will not benefit through non-complianceo Arguably an important civil liberty in a participatory gov’t.

Disadvantages of private prosecutions:o AG has authority to step in and take over, and can then stay the prosecution. No requirement to

justify this action. AG has exercised discretion to do so in every environmental case brought against a corporation so far.

o Indemnification of costs for successful citizen is crucial.o Could be malicious, profit driven, lacking in evidence, etc.

It is argued that this is why AG discretion is important Though possibly not such an concern, given time/expense involved.

o Kostuch v. Alberta [1995 Alta CA]: Woman involved in Oldman River case made eight attempts to bring a private suit, but AG stayed it each time. She filed for judicial review, but court said proof

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of misconduct had to amount to “flagrant impropriety” (i.e., corruption, violation of law, or bias) before they would second-guess AG’s discretion.

Charter s. 7: Private interests are not matters for criminal prosecution. Fundamental consideration is public interest. Also, AG is member of executive and answers to legislature and public.

o Fletcher v. Kingston: concerns when a substance counts as ‘deleterious’o Sycrude Ducks:another case stayed by AG.

US system (Tollefson, “Towards a Cost Jurisprudence in Public Interest Litigation):o In USA, private AG has emerged to ensure compliance with federal lawo Where private AG is successful, they are paid litigation fees and reasonable attorney costs

Where attorney worked pro bono, should be compensated at rate their service would have been billed in private firm.

o One-way costs rules: allows enforcement by ensuring costs if private group wins, without risk of adverse costs if they lose.

o Citizen suits use balance-of-probabilities standard of proof, more consistent with resources of parties.

Chapter 6: Judicial Review

Overview Statutes typically give cabinet (or a minister) power to make regulations. However, their decisions can be

subject to judicial review if they overstep their authority. Decisions can be challenged by individuals, public interest groups, or even the individual seeking a permit. Started by petition, and evidence by affidavit. Very few live witnesses. It is an effort by courts to strike a balance between duty to uphold rule-of-law, and deference to elected

gov’t. (Dunsmuir) Deals with the legality of a decision, not its merits. Possible outcomes:

o Certiorari: setting the decision aside. (“quashing”) Can include sending the decision back for re-consideration.

o Prohibition: prohibiting the decision that was madeo Mandamus: requiring decision-maker to make a particular decisiono Declaration: judicial declaration of existing rights, powers or duties.

Considerations:o What are the statutory requirements?o What is the scope of the authority granted by the statute?o Interpretations: if the official has to interpret the law in performing their function, what are the

limits? What are the relevant and irrelevant considerations?o How much discretion does the official have?

Legal Errors Which Can Justify Overturning a Decision Action is substantively ultra vires the decision-maker Unlawful delegation: delegating your authority to someone not allowed to exercise it. Fettering discretion: wrongfully limiting your discretion by refusing to consider certain things, or by only

considering certain things. Ignoring relevant considerations/taking account of irrelevant considerations. Real or apprehended bias Exercising statutory discretion for improper/discriminatory purpose, or in bad faith Breach of procedural fairness Error of law Error of fact (very rare)

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Standard of Review Post-Dunsmuir, there are two standards of review in Canada:

o Correctness: does not show deference to decision-maker. Court will analyze the problem themselves and provide the “correct answer”. Often applies to questions of law.

Jurisdictional condition precedent: a term which comes up a lot. Was a certain factor a precondition of the decision-maker having jurisdiction, such that they couldn’t make the decision if the factor wasn’t there? (See Algonquin Wildlands case, below.)

o Reasonableness: shows deference to decision-maker. As long as decision-maker’s conclusion falls within the range of reasonable solutions they could have reached, court will uphold it. Often applies to discretionary decisions, or questions of law which clearly fall within the mandate and expertise of the decision-maker. Two sub-considerations:

Process and reasoning: do the reasons given reflect a thoughtful and reasoned approach to the decision? Transparency and intelligibility may be considered.

The outcome itself: does it fall within the spectrum of reasonable outcomes? Which standard to apply - factors:

o Privative clauses: some legislation contains clauses ‘ousting’ jurisdiction of court to review something. Courts have said they will “take this into consideration.”

o Expertise of tribunal: courts show more deference on questions of fact in area tribunal has expertise in, than on questions of law where tribunal has no special advantage.

o Nature and purpose of legislation: courts show more deference where legislation is “polycentric” (i.e., requiring balancing of multiple interests/considerations).

Cases:o Weir: Application for judicial review of Environmental Appeal Board’s decision that the

precautionary principle was irrelevant to their mandate. Court said application of international law was a “correctness” standard, and held that EAB could take international law into account in their decisions.

o Algonquin: under statute, a forestry plan had to comply with a manual, but minster was approving forestry plans before manual was complete. Environmental group took this to review. Court said this was a jurisdictional condition precedent issue (was existence of manual a precondition of approving forestry plans?), and therefore applied “correctness” standard. Decided minister didn’t have jurisdiction.

o Wimpey Western Ltd. v. Alberta [1983 Alta CA]: Company sought permit to operate wastewater treatment plant under Alberta Clean Water Act. Official said no based on Minister’s policy for issuing permits, but Minister can’t tell official what to do unless legislation says so, so court said this was “irrelevant consideration” or else” fettering”.

Fact that act does not limit Director’s discretion does not mean he has free reign; the test is whether the consideration in question falls within intent/purpose of the act.

o Imperial Oil Ltd. v. BC [2002 BCTC]: Gov’t refused to issue AIP for remediation plan of contaminated site until company cleared up its litigation issues. Court said this was outside the scope of the legislation, and was therefore “irrelevant consideration”, “fettering” and “unlawful delegation”.

Mandamus appropriate where irrelevant consideration was only basis for failing to issue permit.

‘Unlawful delegation’ b/c it effectively meant permit would only be issued when other company felt they had acceptable agreement with Imperial; other company could not wield that authority.

o Moresby Explorers v. Canada [2007 FCA]: Haida/non-Haida tour guides got different allowable user limits; challenged as ‘administrative discrimination’. Court says “ameliorative discrimination” is allowed; race discrimination is only contrary to public policy where it reinforces stereotypes.

Where leg confers broad discretionary regulation-making power, administrative discrimination is permitted unless expressly prohibited.

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o Pembina: Under CEAA, a review panel must prepare a report setting out their rationale, conclusions and recommendations. In this case, they did not do so. Overturned on review for “failure to give reasons” – court said it was not necessary to comment on every aspect of an issue, but given significance of issue, amount of evidence presented, and fact that recommendation would go to minister who had to make a decision, an understanding of project effects was necessary for that decision to be informed, which was the whole point of the panel.

Procedural Fairness It is assumed that legislators intend to act fairly, and therefore statutory decision-makers have a duty to

act fairly unless the statute says otherwise.o Note: this does not apply to regulations or policy.

Three sources of duty to act fairly:o Legislation itself: may include requirements to give notice, hold hearings, etc.o Promises of the decision-maker (such as published procedural guidelines)o What the courts have said

Courts will balance efficiency/effectiveness of gov’t with protection of individual rights. Two principles:

o Adequate opportunity to be heard: Oral hearing/written submissions Right to be informed of information and arguments Opportunity to dispute/correct misinformation Adequate notice (both in form of notice, and in timing of notice) Right to adjournments (if something comes up that you need time to prepare for) Right to counsel (though some tribunals specifically disallow this) Right to cross-examine those presenting info for opposing points of view.

o Unbiased decision-maker: Impartiality (no conflicts of interest) Institutional independence (i.e., you aren’t facing a tribunal appointed by the branch of

government you are arguing against.) Subject to legislation (so long as legislation is constitutional, particularly as regards

Charter of Rights and Freedoms) Le Chaemau: NS “sunken treasure” case. NS Gov’t contacted British gov’t who said they laid claim to the

wreck, so NS denied salvage permit w/o giving applicant a hearing. British claim didn’t apply to applicant, but they didn’t get to say so. Overturned on review.

Public Interest Standing Three requirements (Miningwatch):

o 1. Serious, justiciable issue Is this an issue the courts can/should solve, or should it be left to legislature?

o 2. Individual seeking standing has a genuine interest in the issue Not merely “concerned” about the issue, but have participated in the process.

(Participated in meetings, wrote letters, etc.) Must be “directly affected”:

Applicant in Algonquin got standing because they lived on the land in question, but applicant in Shiell (same issue) did not, because she lived 200km away.

Miningwatch: Public interest group was based far off in Ottawa, but got standing because they had participated in the environmental assessment, and because relevant statue made numerous references to public participation.

o 3. There is no better forum for resolving the issue Interim relief:

o An application for an interim injunction is a quick process to obtain an interlocutory injunction, to ensure that the harm isn`t long done by the time the review is heard.

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o Three requirements (RJR MacDonald): 1. Serious issue to be tried 2. Irreparable harm if injunction not granted

In Canada, it varies whether environmental harm will qualify. (E.g. in one case, logging old growth didn’t qualify because “trees grow back”.)

In Algonquin, other side argued that since they had public interest standing, they weren’t being directly harmed. But judge said it made no sense to allow public interest standing and then deny injunction on same basis – should instead deal with this under “balance of convenience”.

3. Balance of convenience Algonquin: judge said Gov’t interest in implementing its legislation outweighed

potential harm to the public, as both gov’t and logging company had proceeded in good faith.

Imperial Oil: Minister’s approval to develop oil sands had been declared nullity on review for failure to give reasons; company launched own review seeking restoration of permission, and interim injunction for project to continue in meantime. Judge agreed they would suffer irreparable harm, but held balance of convenience favoured public because it wasn’t clear how much harm would result in short time before trial, and didn’t want to proceed with project while there was still so much uncertainty.

o One problem is that once you have your injunction, you often no longer have an incentive to push for the trial, and it falls to the other side to do so.

Difficulties with Public Interest standing:o Undertaking on damages: you may have to give one of these to get an interim injunction, which

says that if you then lose the trial, you must compensate other party for losses. Can be a big disincentive to seek public interest standing.

Though some judges decline to insist on these, on basis that genuine public interest issue should not be undermined by procedural difficulties.

o Risk of adverse costs awardso Proposals for law reform in this area:

Adverse costs immunity: because costs are awarded after trial conclusion, courts are in a position to consider reasons not to award adverse costs. The SCC has encouraged lower courts to consider desirability of promoting access to justice and the public benefits flowing from such litigation.

Perell J. proposes a 2-step test in Incredible Electronics: 1. Public importance – is it significant to the broader community to get the issue settled? 2. Public interest litigant eligibility – should the litigant be considered more of a public or private interest litigant? (In other words, are their motives predominantly “unselfish”?)

Anticipatory costs: determine costs at outset of trial, alleviating uncertainty, in situations where that is a factor likely to otherwise dissuade an unselfish public interest claim.

Gov’t pays public interest litigant’s costs in advance: only in exceptional circumstances where they genuinely can’t afford to bring case to trial otherwise, claim is prima facie meritorious, and issues are of public importance and have not been resolved in previous cases.

Chapter 7: Federal Environmental Assessment

Triggers for Environmental Assessments Canadian Environmental Assessment Act (CEAA) applies only to ‘projects’. CEAA contains a definition of

projects, which is partly a list and partly a generic description.

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o Projects are defined to include “physical works” and “prescribed physical activities not related to a physical work”.

o There is an “inclusion list” and an “exclusion list” CEAA section 5 sets out the triggers for an EA:

o Federal authority is proponent of the projecto Federal gov’t is providing financial assistance to the projecto Federal lands are involvedo A permit or approval from feds is required.

Per sections 11(1) and (2), the EA should happen early in the process before any irrevocable decisions are made. Minister may not issue approval/authorization until EA is done.

Four Levels of Assessment Screening:

o Very basic assessment carried out by ‘responsible authority’.o Most assessments are screenings.o CEAA s. 20 describes possible outcomes of a screening:

No adverse effect: project can go ahead. Adverse effect, but justified in circumstances: minister can exercise their discretion. Environmental effect is uncertain: can refer issue to review panel.

Comprehensive study:o Still conducted by the responsible authority, but with more public input.

Panel review:o The most comprehensive form of assessment; process is taken out of the hands of the

responsible authority and put in hands of a panel appointed by the minister.o Panel responsibilities are to ensure necessary information is obtained, ensure opportunities for

public participation, and prepare a report.o Usually reserved for huge projects; there are typically only four or five panel reviews each year.o Cheviot: Review panel claimed they tried to get info on a large open coal mine, but couldn’t get

any, so they let it go ahead. Overturned on review, based on failure to give reasons - statutory requirement to produce a report to allow minister to make informed decision.

Mediation:o A mediator is appointed to try to resolve the issue.o Both parties must agreeo Decisions are non-bindingo Technically an independent process, but acts as an adjunct to the other three.

Scope of Assessment Discussed in CEAA s. 15: project is scoped based on “opinion of responsible authority” as to what the

physical work is, and whether other works are being carried out in relation to it.o Courts have applied high degree of deference to scoping decisions.

Though in theory this could be used to scope up, case law tends to treat it as authority to scope down (e.g. to exclude works connected to the project).

Case law:o Cheviot [1999]: Alberta Wildlife Assoc challenged adequacy of EA on open pit coal mine. Held

that panel had “clear and onerous evidence gathering duty” and had to require production of all relevant evidence it knew to exist, and/or use expert opinion – rationale/substantiation for report recommendation is necessary.

o Supine [1999]: Bridges scoped as separate projects from the road connecting them. Trial court used “independent utility test” (are bridges any use w/o the road), decided

EA was flawed. Appellate court said “independent utility test” not appropriate, but still held EA to be

flawed.

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RA was not obligated to include road, but had fettered discretion by declining to even consider other factors. RA not limited to considering effects within scope of CEAA section 15(1).

o True North [2006 FCA]: Proponent wanted to construct an oil sand facility, requiring destruction of a watercourse, which triggered an EA via Fisheries Act. RA scoped project as watercourse destruction, not oil sand; this was challenged. Court deferred to RA authority to determine scope under CEAA s. 15(1).

Standard of review for CEAA legal issues is “correctness” (Supine), but for RA discretion is “reasonableness”. Court will not overturn discretionary decision except where RA failed to consider relevant factors, or considered irrelevant ones.

o Miningwatch aka Red Chris [2007]: RA scoped a mine at a level not requiring a comprehensive study – tailings pond only, no public consultation required. Mines were listed on Comprehensive Study List (CSL) as a project requiring comprehensive study. At issue was whether RA was under legal duty to conduct comprehensive study and consult public re: scope.

First case dealing with post-2003 revision of CEAA. Held: once EA is “triggered” via CEAA s. 5, RA cannot re-scope a CSL-listed project to

avoid a comprehensive study. Attempting to sidestep s. 21 requirements under guise of re-scoping is a reviewable error.

Distinguished from True North:H Here, applicant alleged breach of duty to consult public under the new s. 21

(which now refers to “proposed project”), whereas True North had concerned discretion under s. 15.

In TN there was no evidence that RA had originally seen it as a Comprehensive Study but then changed that – was always intended as a screening.

Other Issues Scoping:

o Who should make scoping decisions?o Proper process for scoping, and appropriate role of interested partieso Substance of scoping decisions and level of substantive guidance or criteria.

Will the assessment be binding, or merely advisory? Who has jurisdiction to conduct EAs? (See Oldman River, where federal jurisdiction to conduct EAs was

upheld where it related to Fisheries, Indians & Lands or other specific heads of power, or generally under POGG)

Role of public:o CEAA preamble recognizes public as valuable contributor, but their actual participation is

discretionary.o Benefits of public participation:

Local/traditional knowledge Enhances legitimacy of projects/reduce controversy Helps define problems and identify solutions Permits comprehensive consideration of factors on which decision is made Ensure project meets needs of public Alternative ethical perspectives Illuminates goals/objectives Avoid litigation

o Barriers to public participation: Lack of capacity (time/resources) Lack of confidence in ability to influence outcome of EA process

Chapter 8: Parks and Protected Areas

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Canadian Parks and Wilderness Society v. Canada (Minister of Canadian Heritage) [2003 F.C.A.] Concerned a recent amendment to the Canadian National Parks Act (CNPA) which made preserving

ecological integrity the first priority of the minister when considering parks management. (S. 8(2)) CPAWS applied for judicial review of minister’s approval of construction of a winter road through Wood

Buffalo National Park. Minister had reviewed EA and decided no significant adverse environmental effects would result, but CPAWS argued this wasn’t sufficient to make preserving ecological integrity the “first priority” (b/c of incremental degradation, development wasn’t to promote park purposes but rather regional transport purposes, etc.)

Standard of review was held to be “patent unreasonableness” b/c of polycentric nature of decision – minister had to balance many different factors, and the process was already transparent and accountable to Parliament.

Court upheld decision b/c although minister did not explicitly refer to duty under s. 8(2), there were no strong grounds for thinking she had ignored it, nor could CPAWs point to any information she had failed to take into account in the report.

Public Trust Doctrine In a normal trust, a donor’s asset is held by a trustee on behalf of a beneficiary. In a public trust, the government holds an asset (such as a park) on behalf of the public. Trustee owes fiduciary relationship to beneficiary, so in this case gov’t has fiduciary duty to public. Stone Fire:

o Addresses crown’s potential liability for inactivityo Addresses existence of enforceable duties.

Means of creating a trust:o Trust documento Statutory trusts: there is debate over how specific the language needs to be.

Sierra Club [1974]: Minister had made no regulations regarding the park. Court said they would defer in cases where minister had weighed all required factors, but that it was patently unreasonable to have no regulations at all. Sent it back to minister to create regulations. Essentially creates a public trust doctrine – minister has duty to protect park.

Green v. Ontario [1972]: Ontario gov’t created a park but continued to allow sand extraction from a non-park piece of land inside it (as had gone on since before it was a park.) Green argued park legislation created a public trust which was being violated. Judge took legalistic approach, said express language of statute did not make out elements of a trust. “There can be no trust unless the subject matter of the trust is certain”, and RA could increase, decrease or even close down park under s. 3(2).

Chapter 9: Species Protection

Species At Risk Act (SARA) Four aspects:

o The listing processo Measures to protect listed species (protecting habitat, preparing recovery strategies)o Protecting individuals of the species by prohibiting harm to them or habitato Compensation of individuals whose land value is reduced by these measures

The listing process:o COSEWIC makes a scientific assessment of whether the species is at risk, and whether it is

possible to recover them, and makes a recommendation to parliament.o Parliament makes a policy decision on whether to list, not list, or refer it back to COSEWIC for

more information. Reverse onus: they have nine months to decide, or species is automatically listed.

Protection measures:

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o Once a species is listed, there is an automatic prohibition against killing/injuring/etc an individual of that species, or damaging their habitat.

o These prohibitions apply automatically to species/individuals under federal jurisdiction (aquatic species, migratory birds, individuals on Indian lands, etc), but where they fall under provincial jurisdiction, province gets first chance to regulate.

o Safety net: If minister feels that species is not adequately protected by provincial laws, Governor in Council can make an order that federal prohibitions now apply. This avoids constitutional issues because minister can argue this is a national concern because of provincial inaction. In practice, this discretion has never been used.

o Critical habitat identification Recovery strategies:

o Minister must prepare a recovery strategy within one year of listingo Strategy must consider whether recovery is technically and biologically feasible, and if so, must

address threats to survival and must identify critical habitat so far as possible. Action plans:

o Includes measures to protect habitat, implement recovery strategy, and set what kinds of monitoring will take place.

o Must include analysis of socioeconomic costs and benefits.o No set timeline for this step.

Protection of Critical Habitat:o All critical habitat for species under federal jurisdiction must be protected within 180 days of

listing.o Province gets first opportunity to protect critical habitat on other lands.o There was recent controversy over a BC policy of not identifying critical habitat

Greater sage-grouse: Ecojustice took province to court for failing to identify critical habitat. Court said info was available; uncertainty over precise borders was not an excuse not to identify as law said “based on best available evidence”

Nootsack Dace: similar, but with a fish species. Bilateral agreements:

o SARA s. 10 provides for bilateral fed/province agreements, but BC doesn’t have one. Project review:

o If a project is likely to affect a listed species or its critical habitat, responsible authority must: Notify the minister Identify adverse effects on species/habitat If project is carried out, ensure that measures consistent with recovery strategy are

taken to avoid/lessen/monitor adverse effects.

Governance Issues with Species at Risk Federalism problems:

o Most jurisdiction over wildlife is provincial, particularly as regards the habitat on provincial lands.o Feds have jurisdiction over aquatic species, migratory birds, and animals on federal land. May

also justify jurisdiction under “national concerns”.o The fact that under SARA, provinces have the first chance to regulate, tends to create incentive

to act just enough to keep the feds away, but not necessarily enough to actually protect the species.

o Local pressure to exploit habitat (e.g. from loggers/ranchers/etc) may be intense.o Unlike air/water quality, uniform federal standards re: wildlife are not practical.

BC has relied on a rough estimate from the early days of the Forest Practices Code that wildlife protection would not affect more than 1% of timber supplies, treating this as a “maximum” that had to be rationed out.

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o MOE position is that even that 1% hasn’t been fully used anywhere yet, so clearly it’s getting the job done, but critics say that because so little is available, it is being intensely competed for and so is taking longer to get allocated.

o More problematic in some areas like the Queen Charlotte Islands, where 1% translates to so little land that it just isn’t enough for the species.

Chapter 10: Climate Change

Emergence of Climate Change as Canadian Priority (Bernstein, “A Globally Integrated CC Policy” , p. 462) Canada was lagging by 1990s. Reasons:

o Internal divisions in Fed cabineto Fed/Province issueso Lack of attention from PMo Resistance from industry, esp. energy sector.

Liberal gov’t bowed to int’l pressure:o Signed onto Kyotoo Voluntary Challenge Registryo Climate Change Plan for Canada (2002)o Project Green:

Proposed, but not implemented Cap/trade system, large emitters pay into Technology Investment Fund Carbon Fund: to finance purchase of domestic + int’l emission credits. Voluntary measures

o One Tonne Challenge Subsequent Conservative gov’t pushed for “Made in Canada” solution:

o Canadian cap/trade system, emphasis on intensity targetso Contains many loopholes

Need for action:o Intergovernmental Panel on Climate Change:

Stop asking “whether” to respond, as “how” to respond.o Canadian Policy Options:

Foster voluntary action Info/education Subsidies Taxation Cap/trade Prohibition and regulation

o Federalism: Complications due to power overlaps/conflicts Key principle: no sector should be asked to bear “unreasonable share” of burden.

Potential Constitutional Issues (Shi-Ling Hsu, “Regulating Greenhouse Gases in Canada”, p. 467):o Alt’a generates 1/3 of Canada’s GHG, but takes huge profits.o Potential for constitutional battle btwn federal enviro leg and economic forces.

Climate Change, Int’l Law +Domestic Application Int’l climate change regime:

o UNFCCC (UN Framework Convention on Climate Change) : provides human context.o IPCC: Provides scienceo Kyoto:

Negotiated in 1997, came into force in 1995 Developed states: 8-11% GHG reduction from 1990 levels, by 2008-2012 Can supplement domestic action with int’l mechanisms:

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Clean Development Mechanism (CDM) Joint Implementation Emissions Trading

Kyoto Mechanisms for reducing GHG (Doelle, “Global Carbon Trading”, p. 468):o Emissions Trading (ET):

Int’l cap/trade system for developed nations Baseline: emissions reduction targets for developed nations Can trade “assigned amount units (AAUs)”, and credits from CDM and/or JI. Limits on “banking” to prevent collapse of carbon price.

Collapse probable due to USSR economic collapse, non-involvement of USA.o Clean Development Mechanism (CDM):

Incentives for developing nations - provides credits for keeping emissions below baseline, w/o imposing obligations.

Two objectives: Release valve for developed nations is carbon is too expensive. Assist developing nations with technology & economic transfer

Encourages investment in mitigation measures in developing nations. Allows developed nation to reduce emissions in developing nation instead of their own.

o Joint Implementation (JI): Hybrid of ET and CDM Directed at economies in transition

Allows developing countries that cannot meet criteria to remain eligible for CDM.

Two “tracks”: Host country monitors Where host country has not met monitoring criteria, they are treated like a

developing country.o Options for domestic use of Kyoto Mechanisms:

Full Integration: Domestic entities get full access to int’l credits No gov’t control over how much of target is met through domestic action vs

international credit purchase. Fully Domestic:

Reject int’l credits, focus on domestic action Could be expensive – Canada is far behind, and might fail in its commitments.

Partial Use Controlled use of/access to int’l credits Carbon taxes Industry targets/penalties Limits on percentage/share of emissions reductions met by int’l credits

o Conclusions: We need int’l markets to meet our goals We will encourage developing nations in choosing low-emissions development Could see 100% reduction to 1990 levels.

Friends of the Earth v. Canada (Governor in Council) [2008 FC] Overview: Court holds it has no role in reviewing reasonableness of gov’t response to KYOTO within four

corners of KPIA, b/c it is largely a discretionary policy issue. Facts: Under Kyoto Protocol Implementation Act (KPIA), Minister of Environment was required to table

action plan to meet Kyoto, and amend/repeal enviro leg to comply w/ Kyoto. Min’s first plan said Kyoto was discretionary and cost of implementation would outweigh benefits. By the time of FOTE’s 2nd/3rd applications, it was clear gov’t had not carried out any regulatory actions per KPIA s. 7-8. (see p. 479)

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FOTE brings application seeking mandatory/declaratory relief for alleged breaches of duty under KPIA. Respondents argue issue is not justiciable – involves parliamentary accountability involving scientific, public policy and legislative decisions, and should be a “ballot box” issue.

Held:o Court says issue is not justiciable, and even if it were, would not grant mandatory relief as there

are no hard rules in KPIA and so nothing to “order” minister to do.o Starting point: even largely political issues can be subject to JR if they “possess a sufficient legal

component to warrant a decision by a court.”o KPIA s. 5:

Concerns minister’s duty to prepare annual Climate Change plan Contains “policy” terms like “equitable distribution” and “just transition” – not suitable

for JR. Must read S. 5 as a whole, not piecemeal. Failure of minister to prepare climate change plan is justiciable, but evaluation of

contents is not. Word “shall” is imperative, but “ensure” is not, so “to ensure Canada meets its Kyoto

obligations” does not create justiciable issues.o KPIA s. 7 and 9:

Require Governor in Council (GIC) to meet Kyoto obligations Justiiciability is dependent on authority of court to order GIC to make/amend/repeal

environmental regs referred to in s. 7. S. 7 creates no mandatory duty, so neither do s. 8 or 9. Without clear statutory language, court has no role to play in requiring legislation to be

implemented. Court cannot create meaningful remedy nor dictate what GIC would have to do. Any attempt by court to dictate contents of regulatory arrangements would be

inappropriate . Outside constitutional context, court should not control/dictate conduct of other branches of gov’t.

o Parlimentiary accountability: The complex and broad parliamentary accountability/public notification required by

KPIA displace court enforcement role Though court adds that this will not be true in every case

Act ensures compliance through parliamentary, public + scientific discourse. In light of KPIA language and review mechanisms, Act must be interpreted as excluding

judicial review. Practical significance of political accountability not to be underestimated, esp. in

minority gov’t.

Regulatory Options for Responding to CC (Hsu/Elliott, “ Regulating GHGs in Canada ,” p. 488) Traditional mechanisms:

o Command and Controlo Best Available Technologyo Quantity Limits

Modern price-signal mechanisms (becoming more popular):o Cap and Trade:

Issue allowances which can be bought/sold/traded Total number of allowances is fixed (the “cap”), and keeping them scarce achieves net

emissions reductions. In theory, allowances will flow to highest and best uses Helps spur innovation

o Intensity-based trading: Moveable “cap” that focuses on reducing emissions intensity, not overall emissions. The more productive you are, the more credits you get.

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o Carbon Tax: Levied at point-of-sale for carbons intended for combustion. Price signal: by imposing marginal cost on emissions, those who can most cheaply

reduce emissions will do so. Price instrument (vs. cap/trade, which is a quantity instrument)

Federal attempts at GHG regulation:o Both former Liberal and current Conservative gov’t favour intensity-based emissions trading

regime.o Plans involve ill-defined spending programs, and assertions of effectiveness of spending money

on undefined research to reach target goals.o Emissions trading program includes “safety valve” guaranteeing price of an allowance when it

reaches a certain level Risk of losing Benefit Certainty Effectively turns scheme into overly complex Carbon Tax.

Provincial Experience w/ GHG regulation:o Alberta:

Climate Change Central (CCC) (1999): Proposed carbon intensity regime, in response to Kyoto Pembina Institute Report says intensity targets were so lax they would have

increased emissions. 2007 update: new plan to fund carbon capture and storage – GHGs stored in

underground caverns in perpetuity.o BC:

Implemented Carbon Tax “Revenue Neutral”, as consumption-based taxes tend to hit poor harder than

rich. Part of Western Climate Initiative

A California-led state-and-province GHG emission trading reduction plan. Also includes Ontario, Qc, Manitoba.

Constitutional Issues in Climate Change (Shi-Ling Hsu, “ Regulating GHG in Canada” , p. 500) Overview:

o SCC has said environmental jurisdiction does not rest exclusively with either level of gov’t.o SCC has permitted Fed regulation of pollution under POGG and criminal power (Crown

Zellerbach, Hydro-Quebec)o Power to implement treaties rests largely with provinces.

Provincial Powers:o Carbon Tax:

S. 92(2) direct taxation to raise revenue for provincial purposes Province must:

Impose a tax, Directly, Within the province, For the purposes of raising revenue.

The fourth point is difficult, given BC carbon tax is supposed to be revenue-neutral.o Cap and Trade/Intensity Based Trading:

Probably valid if limited to business qua business, per S. 92(5), s. 92(10), s. 92(13), s. 92A Provincial jurisdiction over industries has been interpreted broadly by courts. If province attempted to regulate federal industry (e.g. aeronautics), courts would likely

look at ‘necessarily incidental doctrine’: To what extent does impugned part of statute impinge on fed jurisdiction when

viewed in isolation?

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Is rest of statute valid? Is section sufficiently integrate into whole to profit from its validity?

Cap/Trade regime in Manitoba, BC and other provs will likely be held valid if challenged because it does not seek to regulate interprovincial/int’l trade; merely allows undertakings governed by statute to take part in the scheme.

o Command and Control regimes: Same considerations as cap/trade

Federal Powers:o Carbon Tax

S. 91(3) “Raising money by any mode or system of taxation” This is a very broad power; very easy for feds to pass carbon tax.

o Cap and Trade/Intensity-Based Trading: No problem if it only affects federal undertakings. Regulation involving provincial industries (e.g. oil and gas) would be more complicated:

Criminal Law (s. 27): Cap/trade is highly regulatory, hard to fit into criminal law Similar provincial legislation has been seen as regulatory Hydro-Qc opens the door, but health effects of emissions are less

direct than toxins Another issue: CT permits buying/selling of what it tries to prohibit,

and never explicitly prohibits it, just regulates it. Potential concern: if upheld under criminal law, almost anything with a

penalty and public purpose could. POGG National Concerns:

Unlikely to fit, b/c lacks “singles/uniqueness/indivisibility” clearly distinguishing it from matters of provincial concern.

Difficult to prove provincial inability. Could argue extraprovincial nature of issue and int’l obligations, but

counter would be that extraprovincial harms are very indirect and of little significance, and treaty implementation is not up to parliament alone.

Scale of impact on provincial powers would probably be large. POGG National Emergency Doctrine:

Cap/trade might be upheld under this doctrine, but probably not intensity-based system, as intensity-based system isn’t actually trying to prevent the ‘emergency’.

1. Emergency Doctrine can be used to respond to/prevent emergencies

2. This can include economic emergencies, e.g. inflation 3. Courts shouldn’t second-guess parliament; all that is needed is a

“rational basis”. 4. Can only be invoked to sustain legislation of temporary duration 5. Preamble should explicitly mention emergency. 6. Does not preclude provinces from legislating as well.

o Command-and-Control Regime: Similar to cap/trade, but with a better chance of being upheld under criminal law power

b/c it does not allow companies to sell the right to pollute.

Common Law and Liability for CC Impacts (D Curran, “ Climate Change Backgrounder” , p. 508) Overall assessment: will be very difficult in Canada. Four categories of tort action against gov’t for failing to deal with CC:

o 1. Against public agencies for acts/omissions leading to CC

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o 2. Against public agencies to require considerations of CC impacts in decision makingo 3. Civil suits against private entities that emit GHGs (mostly nuisance, negligence)o 4. Against public agencies regulating GHGs, by regulated parties

Challenges:o Duty of Care:

P’s injuries must be direct result, foreseeable result of D’s actions. Arguable duty to foresee harm to everyone in the world; as knowledge expands, so does

foreseeability. Spectre of indeterminacy is likely to make courts nervous. In next generation of tort actions, companies falling behind competitors may run risk of

being singled out. Public nuisance:

Requires “special damage” to P, over and above that done to general public Court balances various factors (see Chapter 2) Defence of statutory authority is an additional hurdle

Private nuisance: Requires unreasonable interference with property. Courts look at nature,

severity, foreseeability, and reasonableness of activity. GHG emissions are considered a “reasonable” part of everyday business, so at

what point do they become “unreasonable”?o Causation:

“But-for” test: applies in all but the most exceptional situations (SCC) “Material Contribution” test: only available where:

Impossible to make out “but-for” test b/c of limits of science Plaintiff’s injury must fall within ambit of risk created by defendant’s breach.

Likely judicial resistance due to floodgates concerns, and passing de minimis test. USA has “market share liability” alternative; not picked up by SCC, but available through

BC legislation.o Remedies:

In USA, held liable for market share in appropriate cases. In BC, jointed and severally liable for full amount under Negligence Act

So courts may be more reluctant to hold any particular emitter liable.o Fees:

In Canada/UK, potential for adverse costs award if you lose This is a serious impediment to non-profit organizations and public interest groups.

CC and Environmental Assessment (Shi-Lung, “ Regulating GHGs in Canada , p. 516) Early efforts to use EAs on CC were unsuccessful, but situation has shifted It is open to feds to include GHGs in list of enviro concerns to be considered by panels under CEAA

o ...but they probably can’t be forced to do so.o Extent to which this has been done varies widely.o There are currently no defined criteria for measuring what would be “significant” wrt GHGs, thus

complicating CEAA s. 37 mandate to determine whether project is likely to have significant adverse environmental effects.

o Absent such criteria, panels have tried to assess project based on fed/prov reduction initiatives, but there is no basis for this in law.

o Conclusion: CEAA as it currently stands is not good for forcing GHG analysis in EAs; legislative reform needed, but unlikely in current political climate.

Suggested reforms:o More guidance for panels, e.g.:

Ensuring “carbon neutral” projects “have undertaken reasonable efforts to mitigate gas emissions”

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