The Power of Perspectives

The Canadian Bar Association

Supriya Tandan

Indigenous law

How extending personhood to Canada’s rivers could help reconciliation

By Supriya Tandan April 18, 2017 18 April 2017

How extending personhood to Canada’s rivers could help reconciliation


In March, governments in India and New Zealand independently extended personhood rights to rivers, making them the first jurisdictions in the world to do so. Is it possible that Canada could follow suit? Likely not in the foreseeable future.  Not that it’s impossible.  The Canada Business Corporations Act grants corporations the rights and privileges of a natural person.  But we have yet to have a serious debate in this country as to whether these rights should be extended to components of the environment, such as rivers and forests, as there is little political will among federal and provincial leaders. 

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Indigenous law

Turning back the clock on failed consultations

By Supriya Tandan March 15, 2017 15 March 2017

Turning back the clock on failed consultations

 

Next week the Supreme Court of Canada will hear a case that will clarify how to remedy failed consultations on land-development projects where the Crown has been found to be in breach of its obligations. Of course, the courts have not shied in the past from overturning project approvals that do not respect the process for meaningful consultation. What makes this case unique is the question of whether the Yukon government, in spite of its actions in sandbagging an entire process for the development of land use plans that had been agreed upon, should be allowed to scrap it altogether and go back to the drawing board.

The case involves a modern treaty, the overall "umbrella" agreement of the Yukon Land Claims package, which requires that a third-party commission, in consultation with the Yukon First Nations and the Government of Yukon, develop a land-use plan for traditional territory in the Peel Watershed. Respecting the consultation process outlined in the agreement, the Peel Watershed Planning Commission released a plan that set aside 80 per cent of land for protection while allowing 20 per cent open for development.

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Climate change law

Linking cap-and-trade markets across the Pacific

By Supriya Tandan March 7, 2017 7 March 2017

Linking cap-and-trade markets across the Pacific


China, the world’s leader in greenhouse gas emissions, is moving ahead with its plan to implement a national emissions trading (or cap-and-trade) system. Meanwhile in Canada, Quebec emitters can already trade with those in California, and Ontario is set to link with these markets in 2018.  Beyond that, the question is whether we will soon see a carbon market spanning both sides of the Pacific Ocean that could tie the currently fragmented approach to emission reductions, and that would hopefully help lower costs and encourage innovation.

 

So far there have been no formal announcements about linking a Chinese national market with North America ones but the Paris Agreement does encourage and provide mechanisms to support such a linking.

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Environmental law

How to fix Canada's broken environmental assessment framework

By Supriya Tandan February 15, 2017 15 February 2017

How to fix Canada's broken environmental assessment framework

 

The Ministry of Environment and Climate Change has passed the halfway mark of its review of Canada’s environmental assessment laws and procedures.

The current framework originated with the passage of the Canadian Environmental Assessment Act in 1992. In 2012, the Harper government tried to limit the scope of the Act, by repealing and replacing it with a new version intending to reduce the number of projects that fell under its purview. However, the 2012 version of the CEAA 2012 has come under criticism for being unable to adequately address the magnitude of modern environmental problems. Most experts agree that in order to modernize the environmental assessment process, we cannot just tinker with the existing legislation but need to completely repeal and replace it. What is needed, they argue, is a brand new legislation with an evaluation infrastructure capable of grappling with the diffuse, inter-related and complex nature of environmental problems.

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Charter law

The Ernst decision: Taking issue with a divided Supreme Court

By Supriya Tandan January 25, 2017 25 January 2017

The Ernst decision: Taking issue with a divided Supreme Court

 

Though the Supreme Court of Canada recently denied an Alberta woman’s claim for damages against the province’s energy board, it remains unresolved whether its members could be sued for infringing a Canadian’s Charter rights and seek a remedy under Section 24 (1) of the Charter.  The Court’s majority found it to “be plain and obvious that s. 43 of the Energy Resources Conservation Act” – granting immunity to the regulator –  “on its face bars [Ernst’s] claim for Charter damages.”

It’s a decision that has raised a lot of eyebrows.

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