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- Environmental law (9)
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Articles 1 - 18 of 18
Full-Text Articles in Law
Pursuing A Reconciliatory Administrative Law: Aboriginal Consultation And The National Energy Board, Matthew J. Hodgson
Pursuing A Reconciliatory Administrative Law: Aboriginal Consultation And The National Energy Board, Matthew J. Hodgson
Osgoode Hall Law Journal
Environmental assessment within the process of regulatory review is recognized as the preferred means for carrying out the duty to consult and accommodate Aboriginal rights in administrative decisions over proposed resource development. Recent evidence suggests that integrating the duty to consult into National Energy Board (NEB) proceedings and subsuming the law of Aboriginal consultation under principles of administrative justice have not advanced the goal of reconciliation. This article considers whether the statutory mandate of the National Energy Board requires it to have sufficient regard to Aboriginal rights in a manner consistent with the adjudication of constitutional issues in administrative law. …
The Unbearable Licence Of Being The Executive: A Response To Stacey’S Permanent Environmental Emergency, Bruce Pardy
The Unbearable Licence Of Being The Executive: A Response To Stacey’S Permanent Environmental Emergency, Bruce Pardy
Osgoode Hall Law Journal
This article responds to Jocelyn Stacey’s “The Environmental Emergency and the Legality of Discretion in Environmental Law.” In her article, Stacey attempts to establish the legitimacy of unfettered executive discretion to deal with environmental issues, but the justification that she provides is not up to the task. She asserts that all environmental issues are emergencies, but she does not explain why they are so. She proposes to resolve the problem of executive discretion by redefining the rule of law, thereby rendering it an empty shell. Environmental protection and the rule of law do not push in opposite directions. Instead, it …
The Environmental Emergency And The Legality Of Discretion In Environmental Law, Jocelyn Stacey
The Environmental Emergency And The Legality Of Discretion In Environmental Law, Jocelyn Stacey
Osgoode Hall Law Journal
This article argues that environmental issues confront us as an ongoing emergency. The epistemic features of serious environmental issues – the fact that we cannot reliably distinguish ex ante between benign policy choices and choices that may lead to environmental catastrophe – are the same features of an emergency. This means that, like emergencies, environmental issues pose a fundamental challenge for the rule of law: They reveal the necessity of unconstrained executive discretion. Discretion is widely lamented as a fundamental flaw in Canadian environmental law, which undermines both environmental protection and the rule of law itself. Through the conceptual framework …
Process And Reconciliation: Integrating The Duty To Consult With Environmental Assessment, Neil Craik
Process And Reconciliation: Integrating The Duty To Consult With Environmental Assessment, Neil Craik
Osgoode Hall Law Journal
As the duty to consult Aboriginal peoples is operationalized within the frameworks of government decision making, the relevant agencies are increasingly turning to environmental assessment (EA) processes as one of the principal vehicles for carrying out those consultations. This article explores the practical and theoretical dimensions of using EA processes to implement the duty to consult and accommodate. The relationship between EA and the duty to consult has arisen in a number of cases and a clear picture is emerging of the steps that agencies conducting EAs must carry out in order to discharge their constitutional obligations to Aboriginal peoples. …
The Promise Of The Rule Of (Environmental) Law: A Reply To Pardy’S Unbearable Licence, Jocelyn Stacey
The Promise Of The Rule Of (Environmental) Law: A Reply To Pardy’S Unbearable Licence, Jocelyn Stacey
Osgoode Hall Law Journal
This short reply clarifies and defends the argument presented in “The Environmental Emergency and the Legality of Discretion in Environmental Law.” It responds to the arguments that were made, and that could have been made, in Pardy’s critique “An Unbearable Licence.” The reply further develops the public-justification conception of the rule of law, arguing that it is at home within Canadian public law. It also argues that this conception of the rule of law highlights possibilities for future research directions in Canadian environmental law.
Environmental Damages After The Federal Environmental Enforcement Act: Bringing Ecosystem Services To Canadian Environmental Law?, Martin Z. P. Olsynski
Environmental Damages After The Federal Environmental Enforcement Act: Bringing Ecosystem Services To Canadian Environmental Law?, Martin Z. P. Olsynski
Osgoode Hall Law Journal
The Canadian Environmental Enforcement Act [EEA] directs judges to consider actual environmental damage, or risk thereof, when setting fines for environmental offences. The EEA defi nes damage as including the loss of use and non-use values. While these terms are not unprecedented in Canadian environmental law, their use in environmental damage assessment is. Bearing in mind recent developments in environmental valuation in the United States and internationally, and considering the emergence of the “ecosystem services” paradigm in particular, this article explores the opportunities and challenges for ecosystem services based environmental damages assessment in the Canadian environmental sentencing context. The ecosystem …
Containing The Gmo Genie: Cattle Trespass And The Rights And Responsibilities Of Biotechnology Owners, Katie Black, James Wishart
Containing The Gmo Genie: Cattle Trespass And The Rights And Responsibilities Of Biotechnology Owners, Katie Black, James Wishart
Osgoode Hall Law Journal
Genetically modified organisms (GMOs) have caused substantial economic losses by contaminating non-GMO crops and threatening the economic self-determination of non-GMO farmers. After Monsanto v. Schmeiser, biotech IP owners hold most of the rights in the property "bundle" with respect to bioengineered organisms. This commentary highlights the disequilibrium between these broad patent rights and the lack of legal responsibility for harms caused by GMO products. The authors propose that there is a role for tort law--specifically the tort of cattle trespass--in fairly allocating risk and responsibility. The doctrine of cattle trespass reflects a policy of distributive justice, positing that the unique …
Putting Ethics Into Environmental Law: Fiduciary Duties For Ethical Investment, Benjamin J. Richardson
Putting Ethics Into Environmental Law: Fiduciary Duties For Ethical Investment, Benjamin J. Richardson
Osgoode Hall Law Journal
This article argues that environmental law must target the financial sector, which sponsors and profits from environmental pillage. The rise of a system of finance capitalism has made the financial sector a crucial economic sector. A long-standing movement for socially responsible investment (SRI) has recently begun to advocate environmental standards for financiers. While the SRI movement has gained more influence in recent years, it has come at the price of jettisoning its former emphasis on ethical investment in favour of an instrumental, business case approach. Some modest legal reforms to improve the quality and extent of SRI have yet to …
"Are We There Yet?": Reflections On The Success Of The Environment Law Movement In Ontario, D. Paul Emond
"Are We There Yet?": Reflections On The Success Of The Environment Law Movement In Ontario, D. Paul Emond
Osgoode Hall Law Journal
In this short article, the author explores the history of the environmental law movement in Canada and explains how this history has affected many of the environmental laws and trends today. With a focus on Ontario, the author reports back from a round table discussion held in Toronto in early 2008. Some of Canada's leading environmental lawyers, as well as many of the pioneers of the environmental law movement, reflected at the round table on the extent to which their aspirations for strong, effective environmental laws have been met and how much more remains to be done. While we are …
Confronting Chronic Pollution: A Socio-Legal Analysis Of Risk And Precaution, Dayna Nadine Scott
Confronting Chronic Pollution: A Socio-Legal Analysis Of Risk And Precaution, Dayna Nadine Scott
Osgoode Hall Law Journal
The central aim of this article is to demonstrate a socio-legal approach to risk and precaution using the example of chronic pollution. Drawing on ongoing empirical work with the Aamjiwnaang First Nation, which is tucked into Sarnia's "Chemical Valley," a secondary aim is to influence and shape how we understand the problem and confront the risks of chronic pollution. This article forwards the argument that the prevailing regulatory approach is incapable of capturing the essence of contemporary pollution harms, because those harms are increasingly linked to continuous, routine, low-dose exposures to contaminants that are within legally sanctioned limits. Community residents …
Six Principles For Integrating Non-Governmental Environmental Standards Into Smart Regulation, Stepan Wood, Lynn Johannson
Six Principles For Integrating Non-Governmental Environmental Standards Into Smart Regulation, Stepan Wood, Lynn Johannson
Osgoode Hall Law Journal
Ontario recently introduced environmental penalties (EPs), the environmental equivalent of speeding tickets. EPs are widely understood as part of a move toward "smarter" environmental regulation. As part of the EPs regime, facilities with an environmental management system aligned with ISO 14001 or Responsible Care qualify for reduced penalties. The Ontario government's attempt to incorporate voluntary standards-such as ISO 14001-into its EPs regulations was not very smart, however, because it failed to observe six principles that, in our view, should guide the incorporation of standards into smart regulation. First, do not reinvent the wheel. If an existing standard fulfills the objectives …
Leading Towards A Level Playing Field, Repaying Ecological Debt, Or Making Environmental Space: Three Stories About International Environmental Cooperation, Karin Mickelson
Osgoode Hall Law Journal
This article considers a number of different ways of conceptualizing the relationship between South and North in the environmental context, focusing on international responses to climate change and, in particular, the Kyoto Protocol to the United Nations Framework Convention on Climate Change. It explores three stories about international environmental cooperation. One derives from the concept of "ecological debt," the second comes from the concept of "environmental space," and the third, which might be said to underlie the U.S. approach to the Kyoto Protocol at the present time, is labelled "leading towards a level playing field." The article provides an overview …
From Civil Disobedience To Obedient Consumerism: Influences Of Market-Based Activism And Eco-Certification On Forest Governance, Emily Walter
Osgoode Hall Law Journal
This article looks at the implicit politics of eco-certification as an activist strategy. Drawing on the example of the Forest Stewardship Council and forestry activism in British Columbia during the 1990s, this article considers underlying norms of the certification approach, the inherent limitations of its institutional setting, and the empowering and disempowering implications for participants in forest policy debates. These implicit politics may have a disciplining influence on public debate regarding the future of environmental regulation, and governance more generally, at a time when wider experimentation with alternative approaches is both necessary and otherwise timely. The analysis draws attention to …
Taking Uncertainty Seriously: From Permissive Regulation To Preventative Design In Environmental Decision Making, R. Michael M'Gonigle, T. Lynne Jamieson, Murdoch K. Mcallister, Randall M. Peterman
Taking Uncertainty Seriously: From Permissive Regulation To Preventative Design In Environmental Decision Making, R. Michael M'Gonigle, T. Lynne Jamieson, Murdoch K. Mcallister, Randall M. Peterman
Osgoode Hall Law Journal
This paper contrasts two paradigms of environmental regulatory decision making, "permissive regulation" and "preventative design," with respect to their treatment of scientific and legal uncertainty and the allocation of legal standards and burdens of proof. "Permissive regulation," which is the predominant approach in Canada, suffers two types of statistical errors. A type I error occurs when, for example, a pollution control device is unjustly imposed on an industry. A type II error occurs when no action is taken to control an industry when, in fact, damage is taking place. Concern to prevent type I errors often leads to type II …
Toward The Twenty-First Century: A Canadian Legal Perspective On Resource And Environmental Law, Constance D. Hunt
Toward The Twenty-First Century: A Canadian Legal Perspective On Resource And Environmental Law, Constance D. Hunt
Osgoode Hall Law Journal
This paper surveys existing and emerging Canadian approaches to environmental and resource management issues, and assesses the strengths and weaknesses of some of our past and current approaches. It considers the challenges posed by the fact that Canada is a federal state as illustrated by jurisdictional competition regarding environmental assessment. The successful utilization of cooperative strategies is considered and examples are given of new problems that need to be addressed. Difficulties faced by governmental, judicial, and administrative bodies are surveyed. Examples are given of emerging legislative strategies. It is concluded that, while much change is apparent, it is far from …
Environmental And Resource Law In Australia, Ben Boer
Environmental And Resource Law In Australia, Ben Boer
Osgoode Hall Law Journal
This article outlines the development of environmental and resource law in Australia and explores its constitutional and political setting. The need for a national approach to the environment within the context of Australia as a federally organized country is recognized, particularly with regard to Australia's international obligations and the fact that environmental issues span state, territory, and/or national boundaries. It is argued that, to date, federal action with respect to the environment does not satisfactorily demonstrate the emergence of a national environmental strategy. However, the recent Intergovernmental Agreement on the Environment, signed by the state and federal governments in 1992, …
A Black (And Rising?) Tide: Controlling Maritime Oil Pollution In Canada, Suzanne Hawkes, Michael M'Gonigle
A Black (And Rising?) Tide: Controlling Maritime Oil Pollution In Canada, Suzanne Hawkes, Michael M'Gonigle
Osgoode Hall Law Journal
A series of dramatic oil spills in recent years has once again drawn critical attention to the nature and adequacy of existing domestic and international legislation regarding ship source oil pollution. Predictably, legislators and policy makers have responded with a plethora of studies, reviews, and consultations. However, past improvements to the domestic and international regimes have traditionally been slow and incremental, at best. In Canada, approximately three years have passed since the Nestucca spill took place off the B.C. coast. Yet, while there has been much discussion, domestic legislation remains virtually unaltered at the present time. The authors find that …
Federalism And Comprehensive Environmental Reform: Seeing Beyond The Murky Medium, Rodney Northey
Federalism And Comprehensive Environmental Reform: Seeing Beyond The Murky Medium, Rodney Northey
Osgoode Hall Law Journal
This article examines the legal constraints that Canadian federalism places on comprehensive environmental reforms. Having specific regard for the Canadian Environmental Protection Act and its regulation of toxic substances, the article questions the ability of federal constitutional powers to support a broad scope for the statute. The article then examines two approaches to this problem. First, it examines an alternative vision of federalism which provides the federal government with broad environmental authority. Secondly, it examines various mechanisms of federal-provincial cooperation for their application to comprehensive environmental schemes. It concludes that these options provide enough scope to regulate environmental activities comprehensively …