The Power of Perspectives

The Canadian Bar Association

Supriya Tandan

Environment

Environmental litigation will be big in 2017

By Supriya Tandan January 4, 2017 4 January 2017

Environmental litigation will be big in 2017

 

Environmental litigation promises to make headlines in 2017, as some major cases are likely to be heard or decided in different courts around the globe.  Here’s an overview of five trends to keep an eye out for.

1. As Earth’s warming trend continues, citizens sue for action

Climate change litigation gained momentum in 2016 with lawsuits launched against several governments and multinationals.

The right to a livable climate and environment, as articulated in Article 112 of Norway’s constitution, is the basis for legal action by environmental groups suing the country’s national government.

At issue is whether Norway’s decision to award new exploration licences in the Barents Sea violates the right of citizens to a healthy environment.  Coming off the heels of a Dutch court decision in 2015 (still under appeal), which ordered its government to cut emissions by 25 per cent by 2020, a Norwegian re-think of offshore oil and gas development would go a long way in forcing governments to take action on climate change.

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Climate law

Would Canada’s framework on climate change withstand a constitutional challenge?

By Supriya Tandan December 15, 2016 15 December 2016

 

Last week, eight provinces and all three territories signed the Pan-Canadian Framework on Clean Growth and Climate Change, with a view to meet the country's target to reduce emissions by 30 per cent, relative to 2005, by 2030. Provinces who are already well on their way to meeting the framework include Ontario, Québec and Alberta. Opposing the framework are Saskatchewan and Manitoba, each for their own reasons. Those who have signed on have yet to announce the exact measures they will take to match the federal timetable.

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Pipelines

Three legal pitfalls for Trans Mountain to avoid the fate of Northern Gateway

By Supriya Tandan December 1, 2016 1 December 2016

 

Kinder Morgan’s Trans Mountain pipeline may have gotten the nod from Ottawa. But proponents would be wise to draw some legal lessons from the dismissal of Enbridge’s proposed Northern Gateway Project. In May 2016, the National Energy Board reported seven court challenges to the Trans Mountain project from environmental groups, municipalities and indigenous communities. The Trans Mountain project may affect different communities and landscapes than Northern Gateway but it is hardly immune to threats that ultimately killed the Enbridge proposal.

For starters, the Northern Gateway project was halted due to an improper use of an equivalency agreement between the Government of British Columbia and the National Energy Board. In its decision, the BC Supreme Court held that while the province could rely on a federal environmental assessment, it still had to issue its’ own Environmental Assessment Certificate. As Roy Millen, Sandy Carpenter and Peter Hogg pointed out at the time, the court effectively was telling the B.C. government that it could impose its own conditions:

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Workers' rights

Wake-up call: Canada’s human rights abuses and global trade

By Supriya Tandan November 18, 2016 18 November 2016

Lost in the noise amidst all the discontent with trade agreements, is how little international labour laws are enforced in foreign countries, where labour is often cheap. A spate of lawsuits against Canadian mining companies operating abroad could change that.

In a recent decision handed down by the British Columbia Supreme Court, Araya v. Nevsun Resources Ltd, Justice Patrice Abrioux ruled that a lawsuit launched by Eritrean miners alleging human right abuses could proceed to trial. These are foreign claimants who are relying on customary international law to sue a Canadian company in Canada. The major issues at play include applications of forum, the act of state doctrine and the use of customary international law within British Columbia/Canada.

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Climate change

Working toward climate change governance

By Supriya Tandan November 10, 2016 10 November 2016

Monday marked the start of COP22 in Marrakech, where climate negotiators meet for a fortnight to transform political climate commitments into definitive action. Following the ratification of the Paris Agreement by 55 countries, representing 55 percent of global emissions, the Paris Agreement became a fully binding legal treaty, albeit one lacking any enforcement mechanisms. It provides goals for greenhouse gas emissions reductions but not, as many observers have noted, the methodology by which that can happen. COP22 is to address this gap by developing the rules, timelines and processes that will guide how the world will limit temperature increases to 1.5 – 2 degrees Celsius.

To build this methodology, parties will have to tackle  climate change governance, namely with respect to transparency and reporting, mechanisms to fund the adoption of alternative technologies by developing countries, a compliance structure; and tying it all together, the creation of the CMA (aka “the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement”). The CMA will be the de facto governing body for the Paris Agreement and is made up of those countries of who have joined the Paris Agreement.

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