Category Archives: Environmental Law

New Publication: To the Anthropocene and Beyond

“To the Anthropocene and Beyond: The Responsibility of Law in Decimating and Protecting Marine Life” (2020) Forthcoming in Transnational Legal Theory (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3614600)

ABSTRACT: As marine life spirals towards mass extinction in this age of the Anthropocene, law seems incapable of preventing negative human impacts on marine biodiversity. As humanity realises its geological agency, what is the responsibility of law for marine life within the Anthropocene? This article explores this question by first theorising the concept of the Anthropocene within law, focussing on the concept of responsibility. It then analyses, based on critical environmental law theory, the core marine biodiversity norms from a historical and structural perspective. The article finds that the law of the sea is moulded by liberal constitutive processes, namely economic growth. Law is not passive in the Anthropocene; it is one of the institutions that brought the era forth. The article concludes that to ensure responsible human geological agency, law must be used strategically to destabilise the dominant paradigm and reform it in something that recognises our responsibility towards the oceans and the biosphere.

Farming the Sea, a False Solution to a Real Problem: Critical Reflections on Canada’s Aquaculture Regulations

Given the dismal state of world fisheries and their continuing decline—exacerbated by climate change—aquaculture is touted by some to be a promising means for fulfilling the growing global demand for seafood, as reflected in its rapid growth as a segment of the global food system. However, large-scale aquaculture presents a complex set of environmental and social issues, and the introduction of genetically engineered fish and seafood adds a further layer of
complexity to the already contentious nature of conventional aquaculture practices.

This article is a critical analysis of aquaculture regulation in Canada. In addition to setting out some of the major issues posed by industrialized aquaculture, it argues that shifting the “production” of seafood from marine fisheries to aquaculture merely shifts the cause of environmental damages. Further, in the context of food security, large-scale aquaculture is an inadequate and oversimplified solution to the problems raised by coastal and Indigenous populations’ reliance on declining fisheries resources. Specifically, using two case studies, this paper criticizes the current system’s overreliance on dominant risk paradigms, which are often closely informed by science. Yet, the relationship between law and science is fraught with tensions, as the two have notably different priorities and methods. In rethinking the role of aquaculture in natural marine resource management, especially in a changing climate, it is important to ensure that careful regard is given to the socio-cultural factors, inequities, and environmental degradation that are inherent in the production of seafood.

For full article, click here.

The Value of Fish: Changing the Purpose of Fisheries Regulation in Canada

*une version française est disponible ici — this blog post was first published on foodlaw.ca

Why do we fish? This may appear as a silly question, but given the dismal state of fisheries in Canada and in the world, it is a very legitimate question. Several answers come to mind: to make a living, for spiritual or cultural reasons (e.g. a ceremony), and for recreation. However, there is one reason that underlines all fishing (with the exception of recreational fishing when the fish is released): food. We fundamentally and undeniably fish to eat. No one will be astounded by that answer, but as obvious as it may seem, one would be hard-pressed to find any reference to food in Canadian fisheries regulations.

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Canadians in Paris – Some Thoughts on the Paris Agreement

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.[1] 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.

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Endangering the Endangered Species Act, 2007

“[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.”[1]

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.[2] 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.”[3] 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.[4] 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.

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Precaution, delegation and aquaculture regulation – Morton v DFO Part 2

“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.”[1]

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.[2] In fact Justice Rinnie recognized this context.[3] 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.

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