When the COP 21 (the 21st session of the conference of the parties to the United Nations Framework Convention on Climate Change or UNFCCC) started this fall in Paris, I had little hope we would accomplish anything. In all honesty I spent more time thinking about what would happen if the world couldn’t agree on something concrete in Paris. However, the international community realised it was no longer possible to postpone or ignore the issue. We needed to act now, and to my great relief we did through the last minute adoption of the Paris Agreement and the accompanying COP 21 Decision. It is of course not the best agreement, and on its own it is clearly not enough to stop catastrophic climate change. But it is a first step that binds the international community, and a much needed signal that we need to take climate change seriously. In this post I will first briefly summarize what the Paris Agreement entails. I will then offer some thoughts on what the Agreement means for Canada.
“[T]hroughout the world, species of animals, plants and other organisms are being lost forever at an alarming rate. The loss of these species is most often due to human activities, especially activities that damage the habitats of these species. Global action is required.”
These words are part of the preamble of Endangered Species Act, 2007 (ESA) of Ontario. The ESA was enacted to replace an older version of the legislation protecting endangered species, which provided insufficient protection. However, legislation does not necessarily result in actions. As noted by the Federal Court: “administrative laissez-faire contributes, along with uncontrolled—and irresponsible—human activity, to the destruction of natural habitats and the loss of wildlife species.” Sometimes administrative laissez-faire is not even the biggest problem; sometimes the government actively tries to undermine legislative protection. It is precisely what happened in Wildlands League v Lieutenant Governor in Council. In this case, the government of Ontario granted sweeping exemptions to entire industrial sectors through Ontario Regulation 176/13 (the Regulation), rendering the ESA protection meaningless for countless endangered species. The Regulation was challenged by the Wildlands League and the Federation of Ontario Naturalists. They sadly lost at the Ontario Divisional Court (the decision is being appealed). In this post I will analysed this surprising decision and its flaws. I will look specifically at the two main arguments for the invalidation of the Regulation: the pre-condition for the enactment of the Regulation, and its consistency with the ESA.
“I accept the undisputed evidence that there is some risk posed to Fraser River sockeye from diseases on salmon farms, but I cannot make a determination as to the precise level of risk. Therefore, precaution would suggest assuming that the risk is not insignificant.”
This quote could have been taken directly out of the recent Federal Court decision of Morton v Canada (Fisheries and Oceans) since the issues address by that case are closely related to the ones in front of the Cohen Commission of Inquiry (Cohen) 3 years before. In fact Justice Rinnie recognized this context. It seems, however, that the Department of Fisheries and Oceans (DFO) did not head the wise words of Commissioner Cohen and continued to treat some serious salmon disease – specifically piscine reovirus (PRV) and heart and skeletal muscle inflammation (HSMI) disease – carelessly. But ignoring an issue does not make it go away. Thankfully for the vigilance of Ms. Morton, DFO will now have to rethink some of its approach to aquaculture. In Part 1 of this post, I explored the issues of the standard of review, the precautionary principle, and the reasonableness of the aquaculture fish transfer licence conditions. In this Part, I look at the issue of illegal sub-delegation of discretionary powers, especially in this case when discretion was delegated to the industry. I reproduced the background section of Part 1 below for ease of reference.
If you have ever spent any significant amount of time on the west coast, you know how important and contentious of an issue salmon fishery is. Salmon fishery is part of the culture of many First Nations and coastal communities. It is a considerable industry, both in terms of commercial fisheries and aquaculture. Its future is uncertain as stocks seem to fluctuate beyond the comprehension of the Department of Fisheries and Oceans (DFO). There is no shortage of causes (diseases, pollution, poor management, climate change, etc), but as the Cohen Commission of Inquiry (Cohen) concluded, none is dominant. Among them is the risk caused by diseases brought in the salmons’ ecosystem through aquaculture. This particular risk is plague by a familiar environmental policy issue: scientific uncertainty. However, as Cohen found, this uncertainty does not in fact diminishes the risks. Last week, the Federal Court rendered a decision specifically on this issue in Morton v Canada (Fisheries and Oceans), a decision that provide some much needed follow up on Cohen’s aquaculture conclusions. In part one of this two parts post I’ll look at the question of judicial review of a strongly circumscribed ministerial discretion, and the use of the precautionary principle in reasonableness review. In the second part I’ll look at the question of sub-delegation of regulatory requirements to industries.
Environmental litigation often brings in the popular imagination a battle between some big polluting corporations and marginalised people abandoned by the state (the movie Erin Brockovich comes to mind). Those cases do exist, but the majority of environmental law is operationalized by government agencies balancing competing interests, usually economic development with environmental protection. This often results in a compromise: allowing a polluting activity, but with some mitigation measure to limit the environmental effects. But what happens when the two competing interests in front of the executive are environmental protection? This is what the Environmental Review Tribunal of Ontario (ERT) had to deal with in the case Alliance to Protect Prince Edward County v Director, Ministry of the Environment, ultimately largely upheld by the Court of Appeal. This case presents the interesting issue of balancing the need for renewable energy and the impacts such a project can have on the environment, such as the endangered Blanding’s turtle.
This past year brought a lot of change and sometime stagnation in environmental law. For someone who tries to wear the mantle of environmental law scholar I should have been stimulated or at least productive in my writing and my comments. And I must say I have been in a way through my more “official academic” writing. However my public silence except for the occasional twitter comment has a reason beside my overcharged schedule. I haven’t participated to the public debate mainly because I have nothing good to add and my mental health requires it. I try to stay optimistic as much as possible about our future, but one cannot ignore the facts: the dire situation we are in and our stagnation. There is little I can do or say that will change the will of the public, the government or the international community. Therefore, out of self-preservation, I stay silent in order not to plunge into pessimism and depressive thoughts. But I am a stubborn academic and I am opinionated; in the end expressing my anger and dissatisfaction is probably more constructive, if only for myself.