GLOBE-Net - Three writers from
York University’s Osgoode Hall Law School* have prepared a thought
provoking examination of Canadian environmental law to explain why
they believe Canada has become a laggard in both legal reform and
environmental performance.

The authors, Associate Professor Stepan Wood, Law Student
Georgia Tanner and Professor Benjamin J. Richardson, compare recent
developments in Canadian environmental jurisprudence with the
seemingly progressive initiatives of the 1970s, and argue there is
considerable room for Canadian governments to adopt more robust
methods of environmental law, including following pioneering
reforms advanced in other countries.

During the 1970s and 1980s, Canada was known internationally for
its leadership in environmental law reform and progressive stance
on environmental matters. Trail-blazing accomplishments, such as
the Berger Inquiry into the Mackenzie Valley Pipeline, the Ontario
Environmental Assessment Board, “round tables” on environment and
economy, and comprehensive land claims agreements with Aboriginal
peoples impressed policy-makers and scholars worldwide.

Canada was known as an environmental law “exporter,”
setting precedents for other countries and taking a leadership role
in international environmental diplomacy.

Indeed, they argue, Canada was known as an environmental law
“exporter,” setting precedents for other countries and taking a
leadership role in international environmental diplomacy.

But Canada’s reputation has waned in recent decades, according
to the authors. Canada is now viewed as a laggard in both policy
innovation and environmental performance, they argue and is better
known today for inaction and obstruction on such issues as climate
change.

The article does not base these judgments on a systematic
attempt to quantify Canada’s environmental record. Rather it
focuses instead on developments in Canada’s legal and policy
frameworks at all levels of government.

One reason they suggest for the apparent stagnation of Canadian
environmental law is the distinctive structure of Canada’s economy.
Primary industries, including agriculture, forestry, mining, and
oil and gas have long been a bulwark of Canada’s economy and have
been very effective at shaping the public policy agenda around
itself,” conclude the authors.

They suggest that despite the rhetoric of business and political
elites about turning Canada into a “knowledge-based economy”
anchored on financial services, higher education, science and
technology development, the Canadian economy still relies heavily
on these “old” industries.

In the face of federal government inaction on climate change,
argue the authors, other actors have taken up the initiative. A
case in point is the Kyoto Protocol Implementation Act (KPIA), an
Opposition Party initiative that was passed in 2007 which requires
Ottawa to publish a plan specifying how Canada would meet its GHG
emission reduction obligations under the Kyoto Protocol.

In the face of federal government inaction on
climate change, real action on GHG emissions reductions and
promotion of green energy has shifted to the provinces.

Even more telling, the article suggests, is the fact that real
action on GHG emissions reductions and promotion of green energy
has shifted to the provinces. Québec introduced North America’s
first (modest) carbon tax in 2007, followed by a more substantial
tax in British Columbia in 2008.

The BC tax was part of an ambitious package of climate
change-related policies including tougher-than-Kyoto GHG reduction
targets, a cap-and-trade system, a carbon-neutral electricity
generation system, 100 percent carbon capture and storage for
coal-fired power plants, and adoption of California’s low carbon
fuel and GHG tailpipe emission standards. Ontario and Quebec have
also enacted cap-and-trade legislation.

Also, they note, some of the most practical environmental
reforms are occurring in municipal governance. Historically a
backwater for environmental policy, many municipalities across
Canada are adopting vibrant plans, by-laws and other measures to
protect urban vegetation, improve waste management, curb suburban
sprawl, and take other initiatives commonly associated with the
“smart growth” movement

The report authors identify Canada’s improving environmental
relationships with Indigenous peoples as a positive sign of change.
Since the constitutional recognition and protection for Aboriginal
rights in the Constitution Act, 1982, many environmental management
decisions have had to take into account the legal interests of
Indigenous stakeholders.

The federal and provincial governments no longer can extinguish
Aboriginal title to land or customary rights to hunt and fish, and
any infringement of those rights must meet due process requirements
including a duty to consult with affected First Nations.

If Canada lacks the ingenuity to devise its own
solutions at the very least it should import solutions pioneered
elsewhere.

Ultimately, the authors argue, what is most frustrating about
Canada’s poor environmental record is not that it has failed to be
an innovator, but that it has failed to even borrow the many
successful precedents in other countries.

If Canada lacks the ingenuity to devise its own solutions, they
argue, at the very least it should import solutions pioneered
elsewhere. The real problem is not the lack of legal tools “but a
domestic failure of policy imagination.”

The article concludes that “Sustainability in Canada, as
elsewhere, will likely only arise if people are prepared to choose
fundamentally different goals for their society, including a
fundamentally different economic model in which maintenance of
ecological integrity is a precondition to all development.
Environmental law is ultimately a means to an end, not an end in
itself.”

Richard Bereti, a Partner with the Vancouver-based law firm
Harper Grey LLP, agrees, at least in part. He notes the term
‘Environmental Law’ is very broad and issues of concern to the
general population are vastly different from one decade to the
next, even from one year to the next. “Science is shifting at least
as quickly. Law really does follow the concerns and wishes of the
people and always has in a democracy. It cannot be the
reverse.”

This is the context in which all levels of government in all
parts of the world must operate - one of uncertainty as to the
science underpinning both the problems and the solutions; emerging
law must follow science or risk failure, he adds.

Sweeping legal reforms are available at the stroke of a pen to
anyone in a position of power, notes Bereti. “It is they who face
the real questions, not lawyers or academics. They must and do ask
themselves will it work and will any benefit be outweighed by
collateral damage such as catastrophic economic crisis, industry
extinction, community collapse?” 

The full citation and link to the study is as follows: 
Wood, Stepan, Tanner, Georgia and Richardson, Benjamin J., What
Ever Happened to Canadian Environmental Law? (April 23, 2010).
Ecology Law Quarterly, Forthcoming. Available at SSRN: href=”http://ssrn.com/abstract=1595097”
target=”_blank”>http://ssrn.com/abstract=1595097