La force de la perspective

The Canadian Bar Association

Supriya Tandan

Environmental law

Priority of creditors: Sacrificing the environment?

Par Supriya Tandan mai 8, 2017 8 mai 2017

Priority of creditors: Sacrificing the environment?


A new case that pits federal insolvency laws against provincial schemes to clean-up environmental contamination may be headed to the Supreme Court of Canada. Last month the, Alberta Court of Appeal affirmed the Alberta Court of Queen’s Bench’s decision in Redwater Energy Corporation (Re), which ruled last year that federal provisions that give creditors the ability to disclaim certain uneconomic assets hold priority over provincial orders to remediate abandoned wells. The Alberta courts drew heavily upon Newfoundland and Labrador v. AbitibiBowater Inc, a 2012 top court ruling that dealt with similar issues but drew criticism for its potential in creating of perverse incentives. 

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Indigenous law

How extending personhood to Canada’s rivers could help reconciliation

Par Supriya Tandan avril 18, 2017 18 avril 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

Par Supriya Tandan mars 15, 2017 15 mars 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 Umbrella Final Agreement, 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

Par Supriya Tandan mars 7, 2017 7 mars 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

Par Supriya Tandan février 15, 2017 15 février 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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