Category Archives: Environmental

Assessing the Role of Strategic Environmental Assessments in the Conservation and Sustainable Use of Marine Biodiversity of Areas Beyond National Jurisdiction

By: Kristine Gu

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Matter Commented On: President’s aid to negotiations on the international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, A/Conf.232/2019/1.

The year 2020 will be a milestone year for the UN’s Sustainable Development Goals (SDGs) and an opportunity to reflect on the progress made, and the hurdles still ahead, in attaining these goals. SDG 14 addresses the conservation and sustainable use of the oceans, seas, and marine resources. It sets out to tackle several issues by 2020 that plague the marine environment, including overfishing and ocean acidification, and to manage marine ecosystems to avoid significant adverse impacts (Targets 14.2–14.4). SDG 14 points to the UN Convention on the Law of the Sea (LOSC) as the legal framework for the conservation and sustainable use of the ocean and marine resources (Target 14.C).

2020 also coincides with the final substantive session of the intergovernmental conference (IGC) on an international legally binding agreement (ILBI) under LOSC on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ). Key elements of the ILBI will not only uphold LOSC mandates but also provide the tools essential to achieving the targets under SDG 14.

The first session of the IGC convened in September of last year. Discussions were centered around the four key elements of the “package deal” agreed upon in 2011, including environmental impact assessments (EIAs). An overview of the history and objectives of the IGC and the ILBI are provided for in the JCLOS blog posts of 17 August 2015 by Anna-Maria Hubert and 21 October 2016 by Christian Prip.

Delegates will gather again in New York at the end of this month for the second session of the IGC, with a focus on the Zero-Draft contained in the IGC President’s Aid to Negotiations (A/Conf.232/2019/1). Options to treaty text in the Zero-Draft take into consideration discussions from the first session, as well as the Preparatory Committee’s (PrepCom) recommendations in its 2017 report (A/AC.287/2017/PC.4/2), to reflect the general trend in the current dialogue.

This blog post focuses on the treatment of strategic environmental assessments (SEAs) by the IGC within the ambit of the EIA Working Group with a view to demonstrating the role of SEAs in pursuing SDG 14 and in the good governance of marine biodiversity. The post first lays out the nature and purpose of SEAs, and their use in existing environmental agreements. It then reviews delegate positions from the first session and as reflected in the Zero-Draft to uncover the ways in which SEAs may be developed in the ILBI.

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We Already Know Everything We Need to Know to Save the Oceans

By: Anna-Maria Hubert

PDF Version: We Already Know Everything We Need to Know to Save the Oceans

Note: This post is a revised version of a presentation delivered by Professor Hubert on March 15, 2019 as a part of UCalgary’s Sustainability Speaker Series, which is an Office of the Provost initiative, led by the Academic Sustainability Advisory Committee in partnership with the Office of Sustainability to take action on UCalgary’s Institutional Sustainability Strategy. The event tackled issues of “Stewardship, Sustainability & Ethics” with the participation of moderator Dr. Allen Habib, Assistant Professor in UCalgary’s Department of Philosophy and panellist Dr. Stephen Gardiner, Professor of Philosophy, Ben Rabinowitz Endowed Professor of Human Dimensions of the Environment at the University of Washington, for a solutions-focused discussion of ethical, moral and legal obligations to build a resilient and sustainable planet for present and future generations. Sections of this presentation on the science of ocean threats have been omitted in the interest of space.

We have gathered as a diverse group of scholars, students, and community members to discuss, in a unique community-based format, possible solutions to global issues of environmental sustainability. I will speak on oceans issues, including the nature and scope of problems being faced and law’s measures being taken in response to degradation of the marine environment, and Professor Gardiner will address these issues in the context of climate change.

Due to major advances in science and technology, we now know more about the state of seas and oceans than ever before. The oceans face a long list of serious, perhaps irreversible, threats, including overfishing, loss of biodiversity, land-based pollution including plastic pollution, climate change, sea level rise, and ocean acidification. Facing the full brunt of the scientific evidence about the rapidly declining state of the marine environment can be confronting, and, inevitably, begs the question of where do we go from here? Why if we know so much are actions so seemingly feeble? What solutions are at our disposal to save the oceans? Whose role is it to call for and implement change in response?

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What is the Concern with Recognizing GHGs as a Matter of National Concern?

By: Martin Olszynski

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Matter Commented On: Reference re: Greenhouse Gas Pollution Pricing Act 

All eyes are on Saskatchewan this week, as the Saskatchewan Court of Appeal prepares to hear arguments in the federal greenhouse gas pricing reference. To most observers, this reference may appear to be simply about the constitutionality – or not – of the federal government’s greenhouse gas (GHG) pricing regime set out in the Greenhouse Gas Pollution Pricing Act, SC 2018, c 12, s 186 (GGPPA). As further set out in this post, however, for constitutional and environmental lawyers and scholars, this reference is less about whether the federal government can regulate GHGs but rather the basis upon which it can do so.

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Claims that Bill C-69 Needs More Focus on Economic Factors Ignore the Reality of Government Decision-Making and the Bill’s Details

By: Hugh Benevides

PDF Version: Claims that Bill C-69 Needs More Focus on Economic Factors Ignore the Reality of Government Decision-Making and the Bill’s Details

Legislation Commented On: Bill C-69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts

Much debate has occurred in recent months about Bill C-69, the federal government’s attempt to make good on election promises to strengthen and restore public trust in environmental decision-making. (Martin Olszynski addressed some of the problematic claims last September; other ABlawg posts have looked at various aspects of the Bill). As further set out below, the critics and opponents of Bill C-69, which was referred to a Senate committee in December following Second Reading, refuse to acknowledge that the proposed Impact Assessment Act will give Canadians the chance to have greater input into proposals affecting their communities, and to better trust decisions about projects like mines, dams—and yes, pipelines. It promises to do so by ensuring that people who care about a proposed development can participate meaningfully in its assessment, with a view to more lasting environmental, economic, social and health benefits.

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Sentencing Lake Louise Ski Resort Under the Species at Risk Act and A Comment on the Federal Environmental Damages Fund

By: Shaun Fluker

PDF Version: Sentencing Lake Louise Ski Resort Under the Species at Risk Act and A Comment on the Federal Environmental Damages Fund

Case Commented On: R v The Lake Louise Ski Area Ltd, 2018 ABPC 280 (CanLII)

In December 2017, the Lake Louise Ski Resort pled guilty to unlawfully cutting down and damaging 148 trees without a permit during the summer of 2013 in the Ptarmigan Chutes area of the resort. Some of the trees cut were whitebark pines, a species listed as endangered under the federal Species at Risk Act, SC 2002, c 29 (SARA). Section 32 of SARA prohibits any conduct that harms the endangered whitebark pines and section 97 makes it an offence to contravene this prohibition. Most of the trees cut at the resort were not from an endangered species, but were nonetheless cut down without authorization from Parks Canada, and thus Lake Louise also contravened section 10 of the National Parks General Regulations, SOR/78-213, which is an offence under section 24(2) of the Canada National Parks Act, SC 2000, c 32 (Parks Act). On November 30, 2018 Judge Heather Lamoureux of the Provincial Court of Alberta sentenced Lake Louise to a $1.6 million penalty under SARA for cutting the whitebark pines, and a $500,000 penalty under the Parks Act for unlawful cutting of the other trees, for a total penalty of $2.1 million which will be directed into the federal Environmental Damages Fund. Lake Louise has since filed an appeal with the Court of Queen’s Bench seeking to have this total penalty reduced to $200,000. Continue reading →