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Articles 1 - 30 of 42
Full-Text Articles in Law
Boom Or Bust: The Public Trust Doctrine In Canadian Climate Change Litigation, Hassan M. Ahmad
Boom Or Bust: The Public Trust Doctrine In Canadian Climate Change Litigation, Hassan M. Ahmad
All Faculty Publications
Over the past few years, Canadian courts have heard the first climate change cases. These claims have been commenced on behalf of youth and future generations who allege that governments have failed to meet or, otherwise, uphold greenhouse gas reduction targets under the Paris Agreement. This novel area of litigation has brought forth creative legal arguments to expand or re-envision existing doctrines in order to place blame for what continues to be a warming planet and increasingly unstable ecosystems. This article investigates the public trust doctrine. In Canadian courts, the doctrine’s limited and arguably parochial interpretation has diverged from its …
Of Lock-Breaking And Stock Taking: Ip, Climate Change And The Right To Repair In Canada, Graham Reynolds
Of Lock-Breaking And Stock Taking: Ip, Climate Change And The Right To Repair In Canada, Graham Reynolds
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This paper argues that Canadian governments have both legal and moral obligations to act to combat climate change. In seeking to fulfill these obligations, Canadian governments should pay particular attention to Canada’s intellectual property (IP) regime. This paper argues that given the centrality of IP to Canada’s economy, a comprehensive review is required in order to determine whether and the extent to which elements of Canada’s IP regime contribute to climate change or impede climate action. To illustrate the need for such a review, this paper will highlight one example of how Canada’s IP regime, as currently structured, impedes the …
The Transnational Exchange Of Law Through Climate Change Litigation, Natasha Affolder, Godwin Dzah
The Transnational Exchange Of Law Through Climate Change Litigation, Natasha Affolder, Godwin Dzah
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Climate change litigation continues to bash holes in the view of domestic legal systems as hermetically sealed units. Domestic cases are inspired by litigation elsewhere, actively fostered by transnational advocacy communities, and the decisions themselves are indicative of transjudicial influences and sometimes even dialogue on climate change. This chapter, written in 2021 to reflect the transnationalism of early climate change litigation, takes a close look at practices of transjudicialism in climate change litigation. In so doing, it seeks to disrupt some default patterns of studying the spread of law. By problematizing the practices of ‘finding’ influential climate law cases, measuring …
The Public Law Paradoxes Of Climate Emergency Declarations, Jocelyn Stacey
The Public Law Paradoxes Of Climate Emergency Declarations, Jocelyn Stacey
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Climate emergency declarations occupy a legally-ambiguous space between emergency measure and political rhetoric. Their uncertain status in public law provides a unique opportunity to illuminate latent assumptions about emergencies and how they are regulated in law. This article analyzes climate emergency declarations in Canada, the United Kingdom, Australia and New Zealand. It argues that these climate emergency declarations reflect back a set of paradoxes about how emergencies are governed in law—paradoxes about defining the emergency, its relationship to time and who gets to respond to the emergency and how. These paradoxes productively complicate long-held and over-simplified assumptions about emergencies contained …
"A Code Red For Humanity": Judicial Relevance In A Time Of Climate Emergency, Margot Young
"A Code Red For Humanity": Judicial Relevance In A Time Of Climate Emergency, Margot Young
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The Washington Post calls it the “the biggest political story in the world, a grinding global crisis in public view.” The Globe and Mail’s coverage is more muted, but its Editorial Board notes about this crisis that “[t]wo things have since changed: urgency and ability. The danger is growing closer, but so is humanity’s capacity to avert disaster.” These statements reference the 9 August 2021 release by the Intergovernmental Panel on Climate Change (IPCC) of its Working Group I report, first instalment of the IPCC’s Sixth Assessment due out in 2022. The recent report, compiled by 234 authors based on …
Climate Disruption In Canadian Constitutional Law: References Re Greenhouse Gas Pollution Pricing Act, Jocelyn Stacey
Climate Disruption In Canadian Constitutional Law: References Re Greenhouse Gas Pollution Pricing Act, Jocelyn Stacey
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This analysis considers the Supreme Court of Canada’s decision in References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, in which a majority of the Court upheld as constitutional national carbon pricing legislation. The decision presents an excellent illustration of the legally disruptive nature of climate change. Illustrating that nothing is static in a climate disrupted world—including constitutional law—this article identifies three shifts the Court makes in relation to climate disruption. First, the decision represents a shift away from climate denialism toward a judicial willingness to confront the environmental, social and legal implications of climate change for Canada. Second, …
An Unknown Past, An Unequal Present, And An Uncertain Future: Transnational Environmental Law Through Three Research Challenges, Natasha Affolder
An Unknown Past, An Unequal Present, And An Uncertain Future: Transnational Environmental Law Through Three Research Challenges, Natasha Affolder
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This chapter seeks to bring into focus three broad research challenges facing transnational environmental law – an unknown past, an unequal present, and an uncertain future. Transnational law theory invites scholars to stand at a distance from current orthodoxies and to contemplate environmental law and its practice from new vantage points. The study of transnational environmental law thus prompts new ways of thinking about where to look for environmental law and its foundational influences. New research agendas emerge organically from such shifts of gaze. By identifying future research agendas, we can illuminate both the diversity of sites of past and …
The Deliberative Dimensions Of Modern Environmental Assessment Law, Jocelyn Stacey
The Deliberative Dimensions Of Modern Environmental Assessment Law, Jocelyn Stacey
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Environmental assessment (EA) is a cornerstone of environmental law. It provides a legal framework for public decision making about major development projects with implications for environmental protection and the rights and title of Indigenous peoples. Despite significant literature supporting deliberation as the preferred mode of engagement with those affected by EA decisions, the specific legal demands of EA legislation remain undeveloped. This article suggests a legal foundation for deliberative environmental assessment. It argues that modern environmental assessment can be understood through three public law frames: procedural fairness, public inquiry, and framework for the duty to consult and accommodate. It further …
Environmental Law, Jocelyn Stacey
Environmental Law, Jocelyn Stacey
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In commemoration of their 50th anniversary, this chapter examines the Federal Courts’ role in shaping environmental law in Canada. The chapter uses well-known environmental principles – the precautionary principle, sustainable development and access to (environmental) justice – as focal points for examining environmental law as well as the legal culture of the Federal Courts. The chapter identifies four distinct interpretive roles that the Federal Courts have ascribed to the precautionary principle and it argues that three of these roles have the potential to generate more coherent and transparent doctrine that upholds the rule of law in the environmental context. In …
Responsible Scholarship In A Crisis: A Plea For Fairness In Academic Discourse On The Carbon Pricing References, Stepan Wood, Meinhard Doelle, Dayna Nadine Scott
Responsible Scholarship In A Crisis: A Plea For Fairness In Academic Discourse On The Carbon Pricing References, Stepan Wood, Meinhard Doelle, Dayna Nadine Scott
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The Canadian federal government’s carbon pricing legislation has generated substantial public and academic debate. In this paper we argue that academic debate should adhere to standards for responsible conduct of research during crises such as the current climate emergency, and avoid the nastiness and distortion that infect populist political rhetoric and social media. We discuss the norms of responsible scholarship that apply to Canadian legal academics, with a focus on standards that demand scrupulous fairness to other scholars and to the materials one is analyzing. We argue that a recent article by Professor Dwight Newman on the Saskatchewan and Ontario …
Contagious Environmental Lawmaking, Natasha Affolder
Contagious Environmental Lawmaking, Natasha Affolder
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It is rare to find an environmental law development or ‘innovation’ announced or celebrated without some discussion of its transferability. Discourses of diffusion are becoming increasingly central to the way that we develop, communicate and frame environmental law ideas. And yet, this significant dimension of environmental law practice seems to have outgrown existing conceptual scaffolding and scholarly vocabularies. The concept, and intentionally unfamiliar terminology, of ‘contagious lawmaking’ creates a space for both fleshing out, and problematizing, the phenomenon of the dynamic and multi-directional transfer of environmental law ideas. This article sets the stage for further study of the global diffusion …
Time To Act: Response To Questions Posed By The Expert Panel On Sustainable Finance On Fiduciary Obligation And Effective Climate-Related Financial Disclosures, Janis P. Sarra, Cynthia Williams
Time To Act: Response To Questions Posed By The Expert Panel On Sustainable Finance On Fiduciary Obligation And Effective Climate-Related Financial Disclosures, Janis P. Sarra, Cynthia Williams
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While there are numerous strategies to be deployed to move Canada to a financially sustainable future, this study addresses two critically important issues: fiduciary obligation of corporate- and pension-fiduciaries, and national action on environmental, social and governance (“ESG”) financial disclosure, including climate-related financial risk disclosure. The Canadian economy is facing significant challenges and disruptions in the transition to a lower carbon world. Absent clear and innovative steps to ensure our corporations and financial institutions act to address carbon emissions and other environmental, social and governance risks and opportunities, we will be seriously prejudiced in a world that is rapidly moving …
Transnational Climate Law, Natasha Affolder
Transnational Climate Law, Natasha Affolder
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Climate change leaves little on this planet untouched. The concept of transnational law is no exception. Transnational law has long functioned as a mechanism for illuminating particular legal subjects, processes, and spaces: the empty space left by existing doctrinal perspectives, the relationships between, around and outside of national laws, the importance for law of private actors and the power and powerlessness of those actors. It offers a way of opening our eyes to spheres of normativity other than the nation state and distinct ways of conceiving of the nation state itself. But climate change shatters the idea that jurisdictional borders …
Fiduciary Obligations In Business And Investment: Implications Of Climate Change, Janis P. Sarra
Fiduciary Obligations In Business And Investment: Implications Of Climate Change, Janis P. Sarra
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Fiduciary obligation, under both corporate law and the common law, requires directors and officers to identify and address climate-related financial and other risks. In fulfilling their obligations to act in the best interests of the company, directors and officers must directly engage with developments in knowledge regarding physical and transition risks related to climate change and how these risks may impact their corporation. Depending on the firm’s economic activities, the risk may be minor or highly significant, but directors and officers have an obligation to make the inquiries, to devise strategies to address risks, and to have an ongoing monitoring …
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
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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".
Preventive Justice, The Precautionary Principle And The Rule Of Law, Jocelyn Stacey
Preventive Justice, The Precautionary Principle And The Rule Of Law, Jocelyn Stacey
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Despite its largely preventive orientation, environmental law has, with one exception, remained distinct from the burgeoning field of preventive justice. The exception is the precautionary principle, which has become a subject of interest and frequent skepticism amongst preventive justice scholars. The precautionary principle is a central principle in environmental law. Its centrality arises from the pervasiveness of scientific uncertainty in environmental regulation; that is, our inability to reliably predict the consequences of our policy choices on environmental and human health. The precautionary principle squarely addresses the question of how we ought to proceed in the face of unavoidable uncertainty. This …
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
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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 …
The Precautionary Principle And Its Application In The Intellectual Property Context: Towards A Public Domain Impact Assessment, Graham Reynolds
The Precautionary Principle And Its Application In The Intellectual Property Context: Towards A Public Domain Impact Assessment, Graham Reynolds
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This chapter considers whether the precautionary principle - a central element of contemporary environmental law and policy - can be usefully applied in the intellectual property context as a means through which the public domain can be protected. Assuming the importance of the public domain, and arguing that expansions in intellectual property protection risk harming the public domain, this chapter contends that it is appropriate to apply the precautionary principle in the intellectual property context in order to guard against harm to the public domain; suggests several ways in which a precautionary principle (or a precautionary approach) could be applied …
The Rule-Of-Law Underpinnings Of Endangered Species Protection: Minister Of Fisheries And Oceans V. David Suzuki Foundation, 2012 Fca 40, Jocelyn Stacey
The Rule-Of-Law Underpinnings Of Endangered Species Protection: Minister Of Fisheries And Oceans V. David Suzuki Foundation, 2012 Fca 40, Jocelyn Stacey
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Environmental organizations have experienced a string of recent courtroom successes enforcing the federal Species At Risk Act. This case comment examines one of these cases, Minister of Fisheries and Oceans v. David Suzuki Foundation (“Killer Whales”), to expose the rule-of-law underpinnings of the Federal Court of Appeal’s decision. It argues that, while the decision is on its face an ostensible victory for endangered species protection, the conception of the rule of law on which the court relies is incapable of providing meaningful legal constraints for much environmental decision-making.
Transnational Conservation Contracts, Natasha Affolder
Transnational Conservation Contracts, Natasha Affolder
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Transnational environmental law is the subject of growing scholarly interest. Yet, much work remains to be done to fill in both the conceptual and empirical contours of this field. One methodological challenge that transnational law poses is the need to look beyond traditional sources of international and national law. This article contributes to efforts to understand transnational law's multilayered architecture by drawing attention to the use of transnational contracts as a mechanism to protect habitats and species. The diverse and proliferating examples of conservation contracts discussed in this article – which include forest carbon agreements, conservation concessions, debt-for-nature swaps, conservation …
The Basics Of Species At Risk Legislation In Alberta, Shaun Fluker, Jocelyn Stacey
The Basics Of Species At Risk Legislation In Alberta, Shaun Fluker, Jocelyn Stacey
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This article examines Alberta's Wildlife Act and the federal Species at Risk Act (SARA) to assess the legal protection of endangered species in Alberta. Most of the discussion related to provisions contained in SARA, as there is comparatively less to discuss under the Wildlife Act. The fact that legal protection for endangered species in Alberta consists primarily of federal statutory rules is unfortunate, as wildlife and its habitat are by and large property of the provincial Crown, and it is a general principle of constitutional law that the federal government cannot in substance legislate over provincial property under the guise …
Responsive Regulation In Context, Circa 2011, Cristie Ford, Natasha Affolder
Responsive Regulation In Context, Circa 2011, Cristie Ford, Natasha Affolder
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In the fall of 2010, the University of British Columbia Faculty of Law welcomed a group of scholars from around the world to consider the state and evolution of responsive regulation, in both theory and practice. The occasion was the presence of Dr. John Braithwaite, the faculty's inaugural Fasken Martineau Senior Visiting Scholar.' Given that we are on the cusp of the twentieth anniversary of Ian Ayres and John Braithwaite's seminal book, Responsive Regulation: Transcending the Deregulation Debate,' it is appropriate that this issue begins with John Braithwaite's own reflections on the responsive regulation project. On one level, the set …
What Ever Happened To Canadian Environmental Law?, Stepan Wood, Georgia Tanner, Benjamin J. Richardson
What Ever Happened To Canadian Environmental Law?, Stepan Wood, Georgia Tanner, Benjamin J. Richardson
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This Article examines the history of Canadian environmental law in order to explain why it has become a laggard in both legal reform and environmental performance. Canadian environmental law has long been of interest to scholars worldwide, yet its record is often poorly understood. The Article contrasts recent developments with the seemingly progressive initiatives of the 1970s, and analyzes these trends in light of their political, economic and governance context, as well as the wider critiques of environmental law. It argues that there is considerable room for Canadian governments to adopt more robust methods of environmental law, including following pioneering …
Why Study Large Projects? Environmental Regulation’S Neglected Frontier, Natasha Affolder
Why Study Large Projects? Environmental Regulation’S Neglected Frontier, Natasha Affolder
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Large-scale natural resource and infrastructure projects create some of the most challenging and high-stakes contexts for environmental regulation. Witness the heated debates surrounding the Keystone XL pipeline project. But to date, large projects have attracted relatively little sustained interest from scholars of environmental law and regulation. Case studies stand alone as valuable empirical accounts of individual pipelines, dams, and mining projects. But synthesis of these case studies is lacking. A workshop that celebrates the approaching 20th year anniversary of Ian Ayres’ and John Braithwaite’s 1992 book, Responsive Regulation, provides an opportune moment to reflect on this lacuna in environmental regulatory …
Tax Expenditures To Limit The Growth Of Carbon Emissions In Canada: Identification And Evaluation, David G. Duff, E. Ian Wiebe
Tax Expenditures To Limit The Growth Of Carbon Emissions In Canada: Identification And Evaluation, David G. Duff, E. Ian Wiebe
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Unlike the U.S., which relies heavily on tax expenditures as instruments of energy and climate change policy, Canada has introduced very few such tax expenditures, relying instead on voluntary initiatives, direct subsidies, and limited regulatory measures to limit carbon emissions. This paper identifies and evaluates the most prominent tax expenditures in Canada to limit the growth of carbon emissions. As background to this inquiry, Part II reviews Canadian experience with carbon emissions over the last two decades and the limited government response to this growing problem. Part III identifies the most prominent tax expenditures that Canadian governments have introduced in …
The Olympic Games And The Triple Bottom Line Of Sustainability: Opportunities And Challenges, Joseph Weiler, Arun Mohan
The Olympic Games And The Triple Bottom Line Of Sustainability: Opportunities And Challenges, Joseph Weiler, Arun Mohan
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Growing public expectations that the Olympic Movement and Olympic Host City Organizing Committees be socially, environmentally and economically responsible has made a commitment to integrate sustainability principles and practices a common theme in the bids of cities competing to host the Games. To understand the growing role of sustainability as an Olympic theme, the authors trace the evolution of the sustainability aspirations of the Olympic Movement by looking at the key Olympic Games and bids in this process. The authors determine that unlocking the potential of the Olympic Games to use sport to attract new audiences to sustainable living cannot …
The Market For Treaties, Natasha Affolder
The Market For Treaties, Natasha Affolder
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Corporations are consumers of treaty law. In this article, I empirically examine three biodiversity treaty regimes - the Convention on Biological Diversity, Ramsar Convention, and World Heritage Convention - to demonstrate that corporations implement or internalize treaty norms in a variety of ways that are not captured by the dominant model of treaty implementation – national implementation. As an exegetical model, I explore how corporations use biodiversity treaties as a source of private environmental standards. I focus on the interactions between mining and oil and gas companies and biodiversity treaties, as revealed through transactional documents, corporate reports, security law filings, …
Rethinking Environmental Contracting, Natasha Affolder
Rethinking Environmental Contracting, Natasha Affolder
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Environmental contracts occupy an ill-defined middle ground between command and control regulation and voluntary initiatives. These agreements have captured the imagination of policymakers and scholars in the U.S. and Europe in particular. They are heralded as promising examples of “new governance.” This Article explores a little known example of environmental contracting which emerged in the context of a Canadian diamond mine — the Ekati Environmental Agreement. Through a fine-grained case study of the Ekati Agreement, this article challenges some of the assumptions that shape the “environmental contracting literature as well as the wider literature on “new governance.” By debunking the …
The Private Life Of Environmental Treaties, Natasha Affolder
The Private Life Of Environmental Treaties, Natasha Affolder
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The gravitational pull of environmental treaties is felt not only by states. Yet international lawyers almost exclusively focus on states to explain treaty compliance, measure treaty implementation, and assess treaty effectiveness. This essay draws attention to a phenomenon that falls outside traditional boundaries of treaty analysis: the efforts of private corporations that aim at complying with environmental treaties. Existing models of treaty implementation are inadequate to explain these direct interactions between corporations and treaties. The dominant grammar of treaty “compliance” equally fails to fit. Using a little-studied example - the UNESCO World Heritage Convention - this essay highlights the phenomenon …
Beyond A Politics Of The Possible? South-North Relations And Climate Justice, Karin Mickelson
Beyond A Politics Of The Possible? South-North Relations And Climate Justice, Karin Mickelson
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This symposium’s issue on ‘Climate Justice and International Environmental Law: Rethinking the North–South Divide’ asks contributors to explore the intersection between law and emerging ideas of climate justice, and how international environmental law is shaped by and in turn reshapes (or fixates, or interrogates) our understandings of the North–South divide. In relation to the former, the author posits that there appears to be a profound disconnect between the law and the politics of climate change, one that reflects a broader disconnect between those who view the challenge posed by climate change through an ethical lens, and those who see it …