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What ever happened to Canadian environmental law?

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Three writers from York University's Osgoode Hall Law School* have prepared a thought provoking examination of Canadian environmental law to explain why they believe Canada has become a laggard in both legal reform and environmental performance.

The authors, Associate Professor Stepan Wood, Law Student Georgia Tanner and Professor Benjamin J. Richardson, compare recent developments in Canadian environmental jurisprudence with the seemingly progressive initiatives of the 1970s, and argue there is considerable room for Canadian governments to adopt more robust methods of environmental law, including following pioneering reforms advanced in other countries.

During the 1970s and 1980s, Canada was known internationally for its leadership in environmental law reform and progressive stance on environmental matters. Trail-blazing accomplishments, such as the Berger Inquiry into the Mackenzie Valley Pipeline, the Ontario Environmental Assessment Board, 'round tables' on environment and economy, and comprehensive land claims agreements with Aboriginal peoples impressed policy-makers and scholars worldwide.

Indeed, they argue, Canada was known as an environmental law 'exporter,' setting precedents for other countries and taking a leadership role in international environmental diplomacy.

But Canada's reputation has waned in recent decades, according to the authors. Canada is now viewed as a laggard in both policy innovation and environmental performance, they argue and is better known today for inaction and obstruction on such issues as climate change.

The article does not base these judgments on a systematic attempt to quantify Canada's environmental record. Rather it focuses instead on developments in Canada's legal and policy frameworks at all levels of government.

One reason they suggest for the apparent stagnation of Canadian environmental law is the distinctive structure of Canada's economy. Primary industries, including agriculture, forestry, mining, and oil and gas have long been a bulwark of Canada's economy and have been very effective at shaping the public policy agenda around itself,' conclude the authors.

They suggest that despite the rhetoric of business and political elites about turning Canada into a 'knowledge-based economy' anchored on financial services, higher education, science and technology development, the Canadian economy still relies heavily on these 'old' industries.

In the face of federal government inaction on climate change, argue the authors, other actors have taken up the initiative. A case in point is the Kyoto Protocol Implementation Act (KPIA), an Opposition Party initiative that was passed in 2007 which requires Ottawa to publish a plan specifying how Canada would meet its GHG emission reduction obligations under the Kyoto Protocol.

Even more telling, the article suggests, is the fact that real action on GHG emissions reductions and promotion of green energy has shifted to the provinces. Québec introduced North America's first (modest) carbon tax in 2007, followed by a more substantial tax in British Columbia in 2008.

The BC tax was part of an ambitious package of climate change-related policies including tougher-than-Kyoto GHG reduction targets, a cap-and-trade system, a carbon-neutral electricity generation system, 100 percent carbon capture and storage for coal-fired power plants, and adoption of California's low carbon fuel and GHG tailpipe emission standards. Ontario and Quebec have also enacted cap-and-trade legislation.

Also, they note, some of the most practical environmental reforms are occurring in municipal governance. Historically a backwater for environmental policy, many municipalities across Canada are adopting vibrant plans, by-laws and other measures to protect urban vegetation, improve waste management, curb suburban sprawl, and take other initiatives commonly associated with the 'smart growth' movement

The report authors identify Canada's improving environmental relationships with Indigenous peoples as a positive sign of change. Since the constitutional recognition and protection for Aboriginal rights in the Constitution Act, 1982, many environmental management decisions have had to take into account the legal interests of Indigenous stakeholders.

The federal and provincial governments no longer can extinguish Aboriginal title to land or customary rights to hunt and fish, and any infringement of those rights must meet due process requirements including a duty to consult with affected First Nations.

Ultimately, the authors argue, what is most frustrating about Canada's poor environmental record is not that it has failed to be an innovator, but that it has failed to even borrow the many successful precedents in other countries.

If Canada lacks the ingenuity to devise its own solutions, they argue, at the very least it should import solutions pioneered elsewhere. The real problem is not the lack of legal tools 'but a domestic failure of policy imagination.'

The article concludes that 'Sustainability in Canada, as elsewhere, will likely only arise if people are prepared to choose fundamentally different goals for their society, including a fundamentally different economic model in which maintenance of ecological integrity is a precondition to all development. Environmental law is ultimately a means to an end, not an end in itself.'

Richard Bereti, a Partner with the Vancouver-based law firm Harper Grey LLP, agrees, at least in part. He notes the term 'Environmental Law' is very broad and issues of concern to the general population are vastly different from one decade to the next, even from one year to the next. 'Science is shifting at least as quickly. Law really does follow the concerns and wishes of the people and always has in a democracy. It cannot be the reverse.'

This is the context in which all levels of government in all parts of the world must operate - one of uncertainty as to the science underpinning both the problems and the solutions; emerging law must follow science or risk failure, he adds.

Sweeping legal reforms are available at the stroke of a pen to anyone in a position of power, notes Bereti. 'It is they who face the real questions, not lawyers or academics. They must and do ask themselves will it work and will any benefit be outweighed by collateral damage such as catastrophic economic crisis, industry extinction, community collapse?'

The full citation and link to the study is as follows:  Wood, Stepan, Tanner, Georgia and Richardson, Benjamin J., What Ever Happened to Canadian Environmental Law? (April 23, 2010). Ecology Law Quarterly, Forthcoming. Available at SSRN: http://ssrn.com/abstract=1595097

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