Law Commons^™

Patents And Plants: Rethinking The Role Of International Law In Relation To The Appropriation Of Traditional Knowledge Of The Uses Of Plants (Tkup), Ikechi Mgbeoji

PhD Dissertations

Legal control and ownership of plants and traditional knowledge of the uses of plants (TKUP) is often a vexed issue, particularly at the international level because of the conflicting interests of states or groups of states in the matter. The most widely used form of juridical control of plants and TKUP is the patent system which originated in Europe. This thesis rethinks the role of international law and legal concepts, the major patent systems of the world and international agricultural research institutions as they affect legal ownership and control of plants and TKUP. The analysis is cast in various contexts …

Regional Human Rights Regimes And Environmental Protection: A Comparison Of European And American Human Rights Regimes’ Histories, Current Law, And Opportunities For Development, Don Mccrimmon

PhD Dissertations

This work reviews the Inter-American and European human rights regimes and their abilities to respond to point-source pollution, climate change, and ecosystem conservation. It begins by reviewing leading human rights theories and the development of the relationship between human rights and the environment. It then focuses on European human rights, both under the ECHR and the CFREU, and highlights the ECHR’s ability to respond to instances of point-source-pollution though the right to privacy. The work then looks at the Inter-American human rights regime, its structure, history and ability to respond to environmental challenges. It reviews the regime’s tendency to use …

From Smokes To Smokestacks: Lessons From Tobacco For The Future Of Climate Change Liability, Martin Zp Olszynski, Sharon Mascher, Meinhard Doelle

Articles, Book Chapters, & Popular Press

In this article, we imagine a future Canada (circa 2030) wherein the world has managed to avoid the worst climate change but nevertheless has begun to experience considerable warming. Governments of all levels, but especially provincial ones, are incurring unprecedented costs to mitigate the effects of climate change and to adapt to new and uncertain climatic regimes. We then consider how legislatures might respond to these challenges. In our view, the answer may lie in the unprecedented story of tobacco liability, and especially the promulgation in the late 1990s of provincial legislation specifically designed to enable provinces to recover the …

The Birth Of The Warsaw Loss & Damage Mechanism: Planting A Seed To Grow Ambition?, Meinhard Doelle

Articles, Book Chapters, & Popular Press

This article starts with an update on the UN climate negotiations with respect to loss & damage. It then explores two approaches to loss & damage that are substantially different form the current path of the negotiations. Both approaches seek to utilize the concern over loss & damage to improve motivation for an adequate and fair global effort to mitigation and adapt to climate change. The approaches differ mainly in the extent they can be integrated into the current UN climate regime. The first approach would create a loss & damage liability fund that seeks to ensure adequate resources to …

Recovery Planning For Pacific Marine Species At Risk In The Wake Of Climate Change And Ocean Acidification: Canadian Practice, Future Courses, Wesley Hartmann, David Vanderzwaag, Katja Fennel

Articles, Book Chapters, & Popular Press

This article evaluates how Canadian recovery planning for Pacific marine species at risk incorporates two pressing 21st century concerns: global climate change and ocean acidification (OA). While many recovery strategies for Pacific species at risk show some understanding of climate change or OA, they generally fail to incorporate key climate and OA information or to consider how these two issues will actually affect the species in question. Two strategies for progress are suggested. First is an administrative strategy that includes the development of a national climate change adaptation strategy, which clarifies how projected climate and ocean acidification impacts should be …

The Icj, Itlos And The Precautionary Approach: Paltry Progressions, Jurisprudential Jousting, David Vanderzwaag

Articles, Book Chapters, & Popular Press

The precautionary approach, although highly touted as a fundamental principle of international environmental law, has become well-known for the confusion surrounding its interpretation and practical implications. Confusion has emanated from definitional generalities and variations and even debates over appropriate terminology. A spectrum of precautionary measures exist and viewpoints on whether strong versions of precaution or weaker versions should prevail have differed.

The Justiciability Of Climate Change: Acomparison Of Us And Canadian Approaches, Hugh Wilkins

Dalhousie Law Journal

Climate change-related disputes, which often include novel, complex,or politically sensitive matters, have experienced a mixed reception by the courts. Defendants both in Canada and the United States have raised the issue of justiciabilitythe question of whether a matter is of the quality or state of being appropriate or suitable for review by a court-with some success in attempts to have these cases summarily dismissed. The author reviews the types ofclimate change cases that have been launched, examines the US and Canadian laws of justiciability analyzes the.paths in which the caselaw regarding justiciability in these countries is headed, and suggests how …

Developing An Ecological Social Justice Framework For Ocean Energy Technologies: Case Studies From The Phillipines, Jay Batongbacal

PhD Dissertations

Unless subjected to skeptical and conscious scrutiny, environmentally-friendly ocean energy technologies can become Trojan machines of social inequity due to the subtle re-organizing influences of technologies on culture and the society. Environmental laws that promote or regulate ocean energy technologies can act as Trojan legal regimes in the absence of a framework for assessing and anticipating their adverse impacts on social justice. Environmental justice is inadequate for this task, so an alternative framework is proposed: ecological social justice, drawn from the Third Worlds perspective of sustainable development as equitable sharing. Though overshadowed by the prevalent notion of sustainable development as …

A Comment On Watersheds: Runoff From The Tax Code, Kim Brooks

Articles, Book Chapters, & Popular Press

The role of tax as an instrument of social and economic policy has recently come to the fore in debates about the environment. This paper provides a short comment on a paper authored by Janet Milne that explores the incentive effects of the tax code on watershed protection.

Creative Sentencing, Restorative Justice And Environmental Law: Responding To The Terra Nova Fpso Oil Spill, Cecily Y. Strickland, Scott Miller

Dalhousie Law Journal

On 20 November 2004 the Terra Nova FPSO inadvertently discharged 165n3 of oily water into the surrounding waters of the Newfoundland and Labrador offshore area. Petro-Canada was charged with having caused a spill and thereby committing an offence pursuant to the Canada-Newfoundland Atlantic Accord Implementation Act. This was the first charge of its type arising from offshore oil and gas operations on the east coast of Canada. The authors provide a factual overview of the incident and identify some resultant legal issues, including the application of creative sentencing and the use of probation orders.

The Regulation Of Tidal Energy Development Off Nova Scotia: Navigating Foggy Waters, Meinhard Doelle, Dawn A. Russell, Phillip Saunders, David Vanderzwaag, David V. Wright

Articles, Book Chapters, & Popular Press

The vast potential for tidal power development in the Bay of Fundy region of the Atlantic coast has been recognized for decades. At the same time, finding an effective way to harness this power in a cost effective, sustainable and environmentally responsible manner has been an ongoing challenge. In the 1980s, barrage based tidal power technology was piloted in Annapolis Royal, Nova Scotia. It was found to be unsuitable from both environmental and cost perspectives.

More recently, pilot projects underway around the world are using new, open turbine technology that is expected to significantly reduce cost and environmental impact. This …

From Hot Air To Action? Climate Change, Compliance, And The Future Of International Environmental Law, Meinhard Doelle

PhD Dissertations

This dissertation considers the evolution, current state, and future prognosis of the global climate change regime under the umbrella of the United Nations Framework Convention on Climate Change. The focus of the dissertation is on State compliance with the Kyoto Protocol. Compliance is considered from the perspective of the internal compliance regime developed under the Kyoto Protocol as well as a select set of potential external international law influences. The dissertation concludes with an assessment of the level of compliance to be expected and its potential influence on the future of the climate change regime. Implications for international environmental law …

Maritime Law, George Strathy

Dalhousie Law Journal

This substantial work. written by three members of the faculty of the Marine and Environmental Law Institute at Dalhousie University, is part of the Irwin Law, Essentials of Canadian Law series. Running to just over 800 pages of text, it covers the waterfront, so to speak, of its subject matter. An indication of the scope of the text is reflected in the division of labour among the three authors. They co-authored an introductory chapter and each took responsibility for writing different chapters of the rest of the book. Edgar Gold, a former ship captain and a Master Mariner, has been …

The Allocation Of Civil Liability For Damage To The Marine Environment In The New Canadian Law Of Merchant Shipping, Or The Polluter Pays How Much?, Hugh M. Kindred

Dalhousie Law Journal

Infrequent but catastrophic incidents of pollution by ships have attracted worldwide attention to the regulation of the merchant shipping industry for the protection of the marine environment. Under the detailed legal regime that has been established, ships and their owners are held strictly liable for the pollution of the oceans that they cause. Less well known but equally well established are other principles of maritime law that allow shipowners to limit their liability for the expense and damage their polluting ships incur. Canada has recently undertaken a major reform of its shipping laws and, in the process, it has revamped …

Liability For Damage To The Marine Environment From Ships, Michael White

Dalhousie Law Journal

Marine pollution damage from ships is not a major problem in Australian jurisdictions, but there are regular incidents. The Australian law relating to marine pollution from ships closely follows the international conventions. Australia is a party to almost all of the relevant IMO conventions and, as is required for common law countries, the domestic legislation to give effect to them needs to be put in place. This has been done for the most part by the Commonwealth, the states and the Northern Territory as Australia is a federation. The Commonwealth and the states have established adequate enforcement resources for the …

The Ocean And International Environmental Law: Swimming, Sinking, And Treading Water At The Millennium, Douglas M. Johnston, David Vanderzwaag

Articles, Book Chapters, & Popular Press

Various images help capture the status and trends of international law and policy efforts to protect the ocean environment. While “treading water” and “sinking” partly describe legal conditions at the millennium, this paper examines seven challenges in the international environmental law field which at the very least promise to make for a “hard swim” in coming decades. Those challenges include: coping with the proliferation of negotiated instruments; overcoming political opposition to environmental commitments; clarifying the jurisprudential underpinnings of international environmental law; sorting out the relation of environmental ethics, science and the rule of law; fleshing out the principles of sustainable …

Future Directions In International Environmental Law: Precaution, Integration And Non-State Actors, James Cameron

Dalhousie Law Journal

In this, the Horace E. Read Memorial Lecture for 1995, James Cameron discusses three developments in international environmental law,-the principles of precaution and of integration and the roles of non-state actors. The precautionary principle calls for regulatory intervention to prevent environmental harm even though the risk of damage remains scientifically uncertain. A wide consensus exists in favour of a precautionary approach to environmental management and state practice is sufficient to assert the principle has attained the status of customary international law, but it remains controversial because it demands changes in practice. The principle of integration takes a holistic approach to …

Individual Enforcement Of Canada's Environmental Protection Laws: The Weak-Spirited Need Not Try, Roger W. Proctor

Dalhousie Law Journal

It is no secret that public awareness and concern for environmental protection in Canada has increased significantly in recent years. Legislators have addressed these concerns by implementing new laws to regulate the various practices that impact negatively on the environment. With statutes in hand, environmentally conscious individuals are beginning to intervene personally to monitor compliance and ensure enforcement of these new laws.

International Law In Asia: An Initial Review, Jeremy Thomas

Dalhousie Law Journal

It is now a little over half a century since the first of the states of Asia to be granted their independence in the aftermath of the Second World War became sovereign and independent of their former colonial masters. In that period there have been very substantial changes in international law. The number of the family of nations has more than tripled and international organisations and even individuals are now subject to the application of international law. Space law, human rights and the law of the environment have appeared, the law of the sea has been transformed, disarmament has reappeared …

Conflicting Principles Of Canadian Environmental Reform: Trubeck And Habermas V. Law And Economics And The Law Reform Commission, Rod Northey

Dalhousie Law Journal

Early in the 1970s, the American legal scholar, David Trubeck, made a far-reaching observation: Law is a practical science. It does not ordinarily dwell on fundamental questions about the social, political and economic functions of the legal order. Satisfied with implicit working assumptions about these matters, legal thought moves rapidly to more tractable questions. But when law's solutions to social problems fail to satisfy, it becomes necessary to examine the basic theory from which they derive. Trubeck expounded this thesis in connection with legal developments in the Third World. Using an idea he termed the "core conception" of law, Trubeck …

The Canadian Institute Of Resources Law At Calgary, Constance D. Hunt

Dalhousie Law Journal

When the University of Calgary's Law Faculty was established in 1976, one of its mandates was to develop a specialized program in resources and environmental law. This process was embarked upon immediately through the use of many resources law issues as teaching vehicles in firstyear courses such as constitutional and property law, and the development of an upper-year curriculum that featured several courses and programs in resources and environmental law. As well, generous contributions from Calgary law firms and corporations resulted in the partial endowment of a Chair of Natural Resources Law.

Canadian Environmental Law In The Eighties: Problems And Perspectives, Peter Z. R. Finkle

Dalhousie Law Journal

Environmental law in Canada has developed slowly during the last two decades. While the rise and popularisation of the environmental movement of the sixties and early seventies did encourage the creation of a federal Department of Environment and many provincial counterparts, as well as facilitate the passage of a number of pieces of legislation, there is some question as to how substantial an impact the institutions and legislation have made on Canada society. One problem which has beset the development of adequate environmental legislation is the significant gap which has opened up between the words on paper, the "black letter …