Category Archives: International Law

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

By: Kristine Gu

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

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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English Court of Appeal Confirms that an Operator Entitled to be “held neutral”

By: Nigel Bankes

PDF Version: English Court of Appeal Confirms that an Operator Entitled to be “held neutral”

Case Commented On: Spirit Energy Resources et al Marathon Oil UK LLC, [2019] EWCA Civ 11.

In a decision that will be of interest to the energy bar in all oil and gas jurisdictions in the common law world, the English Court of Appeal, in a unanimous decision, has confirmed the principle that operations conducted by an operator under the terms of a joint operating agreement are conducted for the joint account and for the shared risk of all working interest owners and that an operator is not an insurer for those other working interest owners. The Court did so in the somewhat unusual context of a liability for unfunded defined pension benefits.

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UN Human Rights Committee Rules Indian Act is Discriminatory in McIvor Case

By: Elysa Darling and Drew Lafond

PDF Version: UN Human Rights Committee Rules Indian Act is Discriminatory in McIvor Case

Decision Commented On: Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 2020/2010

*Note on terminology: “Indian” is used to describe a person defined as such under the Indian Act and is not intended to carry any derogatory connotations in this post.

Introduction

In a decision released on January 14, 2019, the United Nations Human Rights Committee (UNHRC) determined that the Government of Canada violated the International Covenant on Civil and Political Rights (ICCPR) by discriminating against First Nations women and their descendants through Status requirements under the Indian Act, RSC 1985, c I-5. The decision was one that the claimants, Sharon McIvor and her son Jacob Grismer, had been waiting for more than a decade since their case was first heard by the British Columbia Superior Court in 2007.

To understand McIvor and Grismer’s complaint to the UNHRC and the litigation that preceded it, a review of their family lineage and the many amendments made to the Indian Act will be reviewed in this post. We will also briefly review the Status provisions of the Indian Act and the litigation and legislative amendments that have resulted from claims of sex discrimination under the Act, review McIvor and Grismer’s litigation, and summarize the arguments made to the UNHRC and the Committee’s final decision.

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Implementing UNDRIP: some reflections on Bill C-262

By: Nigel Bankes

PDF Version: Implementing UNDRIP: some reflections on Bill C-262

Bill Commented On: Bill C-262, An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples

This post comments on Bill C-262 adopted by the House of Commons on May 30, 2018. The Bill is currently in the Senate awaiting debate in a very packed fall sitting. The post is based on a presentation that I made to the Conference on Indigenous Solutions to Environmental Problems held at the Banff Centre, Banff Alberta, November 9 – 12th 2018 on the Treaty 7 territory of the Stoney Nakoda First Nation.

Part I offers some preliminary comments on the United Nations Declaration on the Rights of Indigenous Peoples (Declaration or UNDRIP). Part II describes Canada’s bumpy road to the endorsement of the Declaration. Part III examines the subject of latest step in that endorsement, namely the government’s support of MP Romeo Saganash’s private member’s bill, Bill C-262.

My main conclusion is that the Bill strikes a judicious balance between affording the Declaration some immediate “application” in the laws of Canada, and the creation of a process that will, over time, give greater effect to the Declaration within the Canadian legal system and in doing so slowly decolonize Canadian law and the Canadian legal mind. My perception of the balanced nature of the Bill means that I do not share the views expressed by some (see, for example, Dwight Newman and Ken Coates here) to the effect that the Bill is overly simplistic and will shift a lot more power to the courts.

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