Towards Normative Coherence in the International Law of the Sea for the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction

By: Anna-Maria Hubert and Neil Craik

PDF Version: Towards Normative Coherence in the International Law of the Sea for the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction

Document Commented On: 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/RES/72/249, provisionally available as document A/72/L.7

This past November, based on the recommendations of the Preparatory Committee (PrepCom) established under General Assembly Resolution 69/292, the UN General Assembly agreed in Resolution 72/249 to convene an intergovernmental conference “to consider the recommendations of the preparatory committee on the elements and to elaborate the text of an 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, with a view to developing the instrument as soon as possible” (para 1). Continue reading →

Alberta Releases Draft Woodland Caribou Range Plan: Pie in the Sky

By: Shaun Fluker

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Matter Commented On: Alberta Draft Woodland Caribou Range Plan

In late December, Alberta issued its draft Woodland Caribou Range Plan. The Government is seeking public input on the content of this Caribou Range Plan, and is hosting several in-person community sessions over the next couple of months. For more detail on how to submit your comments or attend one of the face-to-face sessions, see here. The Caribou Range Plan has been issued by Alberta in response to the federal Woodland Caribou Recovery Strategy issued in 2012 pursuant to the Species at Risk Act, SC 2002 c 29. The federal Recovery Strategy called upon the provinces to develop range plans by October 2017 to demonstrate how they will protect caribou habitat in their respective jurisdictions. The primary reason for why a federal strategy would rely on provincial action to meet its objectives is because the majority of caribou habitat in Alberta falls on provincial lands, and SARA has very little application on provincial lands. This comment explores the legal framework for the Caribou Range Plan and the content in the draft. Continue reading →

Dissonance in Federal Carbon Pricing Regime(s)

By: David V Wright

PDF Version: Dissonance in Federal Carbon Pricing Regime(s)

Legislation Commented On: Legislative Proposals Relating to the Greenhouse Gas Pollution Pricing Act

Last week, the Trudeau government released draft legislation for a national price on carbon pollution, the Greenhouse Gas Pollution Pricing Act. While this significant step should be lauded as follow-through on important election and international commitments, it is another step toward embedding a disconcerting dissonance that still exists within the federal approach to assigning a monetary value to carbon emissions. Specifically, there remains a glaring and unexplained discrepancy between the soon-to-be-legislated carbon price and the dollar value associated with the social cost of carbon (SCC) used in federal regulatory analyses. In this post, I briefly recount the path to the release of last week’s legislative proposal, then explain the social cost of carbon concept and how it is used, and then conclude with a short account of the apparent dissonance between the carbon pricing in the draft legislation and the government’s SCC estimates.  Continue reading →

TMX v Burnaby: When Do Delays by a Municipal (or Provincial) Permitting Authority Trigger Paramountcy and Interjurisdictional Immunity?

By: Nigel Bankes and Martin Olszynski

PDF Version: TMX v Burnaby: When Do Delays by a Municipal (or Provincial) Permitting Authority Trigger Paramountcy and Interjurisdictional Immunity?

Decision Commented On: National Energy Board, Reasons for Decision (18 January 2018) in support of Order MO-057-2017 (6 December 2017) re Trans Mountain Expansion Project

The National Energy Board (NEB) has now issued its reasons for decision for an Order that it issued in December 2017 allowing Trans Mountain to proceed with certain activities associated with the Trans Mountain Expansion Project (TMX) without having first complied with bylaw requirements of the City of Burnaby. Continue reading →

Penalty Clauses: Inequitable, but Not Inherently Extravagant

By: Jassmine Girgis

PDF Version: Penalty Clauses: Inequitable, but Not Inherently Extravagant

Case Commented On: Super Save Disposal (Alberta) Ltd v Shenwei Enterprises Ltd, 2017 ABQB 805 (CanLII)

Overview

This is an appeal from a decision of the Provincial Court, which found that a purported liquidated damages clause was, in fact, a penalty clause. The court struck the clause down for being “extravagant and unconscionable”.

It was legitimate to find a clause comprised of gross profits to be “unfair and inequitable” in principle, but without knowing the value of the net profits and the difference between the two figures, it was problematic in this case to find its use to be “extravagant and unconscionable”, and “unreasonable and oppressive”. Continue reading →