The Power of Perspectives

The Canadian Bar Association

Doug Beazley

Climate change

Reporting standards for climate change up in the air

By Doug Beazley March 1, 2016 1 March 2016

Reporting standards for climate change up in the air

Like the hangover that follows the night before, media coverage of the Paris COP 21 climate accord in late 2015 seemed to shift suddenly from euphoria to pessimism, as critics turned their attention from the scope of the deal to its limits.

“Don’t worry,” one U.S.-based NGO tweeted on Dec. 14. “The Paris climate deal is non-binding — and ergo, toothless.”

Not entirely. It’s true that — unlike the Kyoto accord — the Paris accord includes no penalties for countries that fail to meet their commitments to reduce carbon emissions. But Kyoto’s penalties were effectively toothless as well; the Paris accord is a political document, and the mechanism, says Stepan Wood, professor of environmental law at Osgoode Hall, is “naming and shaming.”

Enforcement under Kyoto was top-down. If the Paris targets are to succeed where Kyoto failed, the approach must be bottom-up — which is where the courts come in.

Could private citizens and NGOs use the courts to hold governments and corporations to account for their carbon footprints? It’s happening already. Back in June the Hague District Court ruled in favour of the Urgenda Foundation in finding that the Dutch government had violated its duty of care to the environment by failing to take adequate steps to reduce emissions; it ordered the government to cut national emissions at least 25 per cent below 1990 levels. Three months later, the high court in Lahore held Pakistan liable for failing to implement its climate change policy.

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Cover

Investors vs. The State

By Doug Beazley December 10, 2015 10 December 2015

Investors vs. The State

It’s a system that has evolved to respond to the legal challenges inherent to the global trade environment.  But as trade agreements continue to proliferate and take hold, the treaty process that manages conflicts between states and foreign investors is, after decades of operating as an obscure and largely confidential arrangement between lawyers, emerging as a global political flashpoint. Growing unease about the perceived flaws of investor-state dispute settlement, or ISDS, is now emboldening critics calling for reform.

Much of the current brawl started with the Trans-Pacific Partnership negotiations — and an advanced working draft of the trade agreement obtained by Wikileaks and published by the New York Times in early 2015. (The TPP negotiations ended in an agreement-in-principle in early October. A draft of the TPP agreement released by New Zealand in early November shows an ISDS system quite similar to those in other major trade deals, with three-person arbitral panels holding public hearings and delivering non-punitive monetary or restitution awards.)

The draft laid out the TPP’s approach to ISDS, a system by which foreign investors can sue states over government decisions that undermine their investments, through ad-hoc arbitration panels composed of lawyers — not judges. The working draft, dated Jan. 20, 2015, reflects the fact that negotiators expected the inclusion of ISDS to be controversial; the draft’s cover mandates that the ISDS chapter remain classified until four years after the TPP comes into force.

They expected controversy and they got it — from both directions. In Washington, prominent Democrats lined up to attack the ISDS provision as an assault on state sovereignty. “This continues the great American tradition of corporations writing trade agreements, sharing them with almost nobody, so often at the expense of consumers, public health and workers,” Senator Sherrod Brown of Ohio told the Times. Canadians were already talking about ISDS in connection with another trade deal – the Canada-Europe Comprehensive Economic and Trade Agreement – when the TPP draft was published.  The NDP’s Tom Mulcair, then leader of the Official Opposition, told a French think-tank in late 2014 that the European Union should not enact CETA if it includes the ISDS mechanism. “Europe shouldn’t let itself be locked into an agreement that contains such a provision, especially since it’ll serve as the basis for an eventual agreement with the United States,” he said.

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First Nations

Rights of Indigenous peoples: How far will Ottawa go?

By Doug Beazley December 7, 2015 7 December 2015

Rights of Indigenous peoples: How far will Ottawa go?

Every incoming government brings with it a list of housekeeping items to check off when it takes power — which, in the case of the Trudeau Liberals, often means saying ‘yes’ to things the Harper Conservatives rejected.

Canada was one of a handful of nations that refused to sign on to the United Nations Declaration on the Rights of Indigenous Peoples back in 2007. It softened its position somewhat with a statement of support for UNDRIP in 2010, while making it clear that it didn’t see that support effecting any changes to Canadian law. Now, the new government has committed to “implementing” UNDRIP — although it’s not at all obvious what that means.

What was the Conservative government of the day worried about? Article 32 of UNDRIP commits states to obtaining the “free and informed consent” of aboriginal peoples before green-lighting any projects affecting “their lands or territories.” That language raises a few questions. Aboriginal title to traditional lands isn’t established consistently throughout Canada. And while the Supreme Court of Canada has stated the Crown has a “duty to consult” aboriginal communities on any project that might affect land they claim, that word “consent” in UNDRIP seems to many to imply an aboriginal veto — something the SCC has said does not exist in Canadian law.

“If the government implements UNDRIP it has no recourse to the legal power the SCC says it has,” says former Harper advisor Tom Flanagan, who recently penned an article on UNDRIP for the Globe and Mail.

“As written, UNDRIP is just not something Canada could implement,” says Tom Isaac, the Calgary-based head of the aboriginal law practice at Osler, Hoskin & Harcourt LLP. “UNDRIP does not constitute a veto but it does talk about ‘consent’. So it’s something of a semantic game, but whether it’s a veto or consent, it has the same net effect. And giving 600-plus groups a veto over developments would be a fundamental shift in how we govern ourselves.”

Others suggest UNDRIP’s critics are taking a Chicken Little approach to a document that doesn’t really move the dial very far on aboriginal rights in Canada.

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Charitable intent: navigating the murky waters of terrorist financing

By Doug Beazley July 22, 2015 22 July 2015

Charitable intent: navigating the murky waters of terrorist financing

If the first casualty of war is truth, the second is altruism. In its rush to strengthen the legal bulwarks against terrorism in the years since 9/11, the federal government may have lost sight of one of the more powerful tools in the hearts-and-minds arsenal: charity.

Consider this scenario: You’re running an aid group that provides disaster relief. Your work involves delivering medical supplies to a conflict zone where terrorist cells are active. A clinic uses drugs supplied by your group to treat someone for gunshot wounds who turns out to be a terrorist. 

Technically, you’ve just committed a crime that could put you in prison — or at least put you out of the giving business for good. Section 83.19 of the Criminal Code makes it an offence to “knowingly” facilitate terrorist activity. But the mens rea element covered by the word “knowingly” is made almost meaningless by subsection 83.19(2) — which says that a terrorist activity is “facilitated” regardless of whether you knew that a terrorist activity was being facilitated, whether any terrorist activity was forseen or planned, or whether any terrorist activity was carried out.

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Legalization

The business of pot

By Doug Beazley March 3, 2015 3 March 2015

The business of pot

Once there was a federal government with a drug problem. Publicly, it was fighting a war on drugs. Privately, it knew it was losing both the war and the argument.

A government commission recommended that the drug be decriminalized for recreational use. And tobacco companies — anxious to co-opt what they saw as a threat to their core market — began exploring the idea of getting into legal weed.

“The only real threat to our business is that society will find other means of satisfying those needs,” read one confidential memo from an unnamed tobacco industry executive.

The government in question was Richard Nixon’s administration; he ignored the 1972 presidential commission’s recommendation and opted to keep marijuana illegal. But the parallels between where the American drug conversation was 43 years ago and where Canada’s is right now are striking.

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