La force de la perspective

The Canadian Bar Association

Supriya Tandan

Climate change

A pathway for climate change litigation in Canada

Par Supriya Tandan septembre 11, 2017 11 septembre 2017

A pathway for climate change litigation in Canada


Earlier this summer the Supreme Court of Canada handed down two rulings clarifying how regulatory bodies, such as the National Energy Board, can fulfill the Crown’s duty to consult. The Clyde River and Chippewas of the Thames First Nation rulings are noteworthy in that the top court has recognized that evaluating cumulative effects of a proposed project and its impact on existing aboriginal and treaty rights can inform the scope of that duty.  That raises the question of the scope of the duty to consult include giving proper consideration to the impacts of a project on the climate.

Climate change litigation has yet to reach the Supreme Court, but it has made headway in a growing number of jurisdictions, namely in Norway, Pakistan, the United States and the Philippines. And now our top court appears to have offered a pathway for similar litigation in Canada.

What should the NEB do, for example, with an inter-provincial pipeline that would increase greenhouse gas emissions, shifting the migratory patterns of caribou? Following the Chippewas decision, the NEB might have to evaluate the environmental impacts related to shifting caribou distribution as well as seriously consider the importance of that mammal’s importance on the rights, cultural tradition and diets of Aboriginal people. The SCC, in explaining why established rights to hunt and harvest mammals was related to the spiritual, cultural and economic well-being of the Inuit people of Clyde River, cited the Nunavut Court of Justice:

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Indigenous law

Sustainable development as a moral obligation tied to aboriginal title

Par Supriya Tandan juillet 17, 2017 17 juillet 2017

Sustainable development as a moral obligation tied to aboriginal title

 

It would be fitting were the Prime Minister to name an Indigenous person to fill Chief Justice Beverley McLachlin's seat after she steps down in December. 

After all, it was under her tenure that the Supreme Court of Canada took great pains to strengthen indigenous rights, relying in large part on honour and reconciliation as the twin moral obligations that should guide Canada in its stewardship of certain lands. In her court’s later years, it seems to have added a third that could change how we view our collective responsibility in terms of owning land: sustainability.

The Crown draws its power to manage lands via the sovereignty proclamation. However this power is not absolute and in the words of the court, is “burdened” by land that belongs to aboriginal communities. 

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Kinder Morgan: Is the law really on its side?

Par Supriya Tandan juin 5, 2017 5 juin 2017

Kinder Morgan: Is the law really on its side?

 

Politics will surely intervene in determining whether the Trans Mountain Kinder Morgan pipeline expansion project goes ahead.  It’s still unclear how things will get resolved in the BC legislature with possible challenges ahead surrounding the election of a new Speaker, and there’s even a chance the province could hold a new election.

But if the NDP and Green Party do succeed in forming an alliance to create a stable minority government, what happens to the Kinder Morgan the pipeline expansion project? The NDP and Green Party agreement includes a statement of shared interest in halting the project.

Can they do so legally?

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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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