The Power of Perspectives

The Canadian Bar Association

Supriya Tandan

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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Climate law

The Crown has no duty to consult when legislating… for now

By Supriya Tandan January 11, 2017 11 January 2017

The Crown has no duty to consult when legislating… for now

 

A recent decision by the Federal Court of Appeal confirms that governments enjoy relative freedom when developing legislation, even when laws may impact traditional aboriginal rights. The decision at issue stems from legislative activity taken by the previous Harper government when it introduced bills C-38 and C-45 — both controversial on account of its reliance on omnibus budget bills to make major statutory reform, which critics charged were not subject to adequate parliamentary scrutiny.

Though the bills courted public discontent, protests and eventually spurred the Idle No More movement, there has been relatively little court action on these “behemoth” budget bills. That changed in Courtoreille v. Canada, an application for judicial review of C-38 and C-45 filed by Chief Steve Courtoreille and members of the Mikisew Cree First Nation.

In their application, Chief Courtoreille and the Mikisew Cree state that the purpose of the billsare to reduce federal oversight in environmental matters. 

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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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