Volume 11:2 (2015)
Abstract: Penelope Simons and Audrey Macklin’s book, The Governance Gap: Extractive Industries, Human Rights, and the Home State Advantage is a valuable contribution for researchers on the extraterritorial activities of the extractive sector, and in particular its impacts on the environment and human rights. The authors question what the development of domestic and international regulation would look like if governments took seriously the duty to protect human rights from the activities of their extractive sector corporations. The proposal outlined in the book will be of interest to academics, politicians, and public servants working towards establishing a governing framework aligned with the much discussed and debated United Nations Guiding Principles on Business and Human Rights. However, certain aspects of the authors’ proposal are impracticable and not the best alternative for addressing the problem of extraterritorial wrongdoing by the extractive sector. A more comprehensive analysis of private law strategies would have benefited the readers in communicating a thorough account of this fundamentally important issue of legal regulation.
Abstract: After a series of high profile disputes pitting statutory mining rights against constitutionally protected Aboriginal rights, Ontario finally amended its Mining Act. This paper argues that Ontario’s amended regime still fails to comply with the Crown’s duty to consult and accommodate Aboriginal peoples in at least three ways. First, some areas of Ontario are subject to Aboriginal title claims. Recording a mining claim within Aboriginal title territory triggers the duty to consult, but the amended Mining Act still does not require consultation prior to the recording stage. Second, at least some treaties in Ontario, such as Treaty Nine, protect the right to implement the laws of the First Nations signatories, including Anishinaabek laws. The early exploration activities permitted by the Mining Act violate Anishinaabek laws about land use and thus adversely impact a treaty right, again with no requirement to engage in prior consultation. Third, the new regulations run afoul of both Anishinaabe law and Canadian law by failing to allow sufficient time for Anishinaabek decision-making processes. For these reasons, the amended Mining Act is still unconstitutional and another round of amendments is required.
A Comparison of Carbon Emission Trading Systems in New Zealand and Canada: Diversity is Not a Virtue in Carbon Law and Policy
Abstract: Carbon emission trading has emerged as a primary means to address climate change. Trading systems operate across the globe, and the linkage of these systems will be a component in the post-Kyoto international climate framework. This paper examines the design and operation of trading systems in Alberta, Quebec, and New Zealand. The paper evaluates each of these systems in relation to (1) its impact on reducing carbon emissions, (2) its effectiveness at price discovery for carbon, and (3) its potential to link with other systems. The paper concludes that the cap-and-trade system operating in Quebec is superior on each of these measures. This study also highlights the diversity in carbon law and policy across jurisdictions today, and suggests that international climate negotiations should focus on the development of common design parameters to guide the operation of national or subnational carbon emission trading systems going forward.
David W-L Wu
Abstract: This paper argues that the inherent limit on Aboriginal title has been subtly reframed in Tsilhqot’in, a 2014 Supreme Court of Canada judgment. The language used in Delgamuukw to describe the inherent limit showed a primary concern for cultural preservation, but the language used to describe the inherent limit in Tsilhqot’in highlights the communal nature of Aboriginal title and the well-being of future generations. This new development provides a foundation for the inherent limit, which has thus far received near-universal denunciation, to become a positive development in the law. Specifically, the paper argues that Tsilhqot’in Nation provides the foundation on which to advance two normative positions: (1) the inherent limit should be applied to Crown land, and (2) environmental legal norms, and more specifically intergenerational equity, should inform the analytical framework of the inherent limit. When combined, these two propositions can help alleviate the inferiority of Aboriginal title relative to fee simple, promote sustainability as an organizing principle throughout the entirety of the law, and begin a fundamental reorientation of what it means to own land.
Abstract: The relationship between investment protection and environmental concerns is one of the longstanding issues in international investment law. Saverio Di Benedetto’s book, International Investment Law and the Environment, provides a welcome contribution to the debate on the issue by addressing the problem from an informed theoretical standpoint. The author shows how attention to environmental protection has begun penetrating into international investment agreements and investment arbitral case law, leading to the likely development of treaties and case law towards integration rather than isolation. The main argument of the book is based on the author’s identification of “internal”, “external”, and “exceptional” methods of interpreting investment rules, when questions of environmental and human health are at stake. The “internal” and “external” methods are sturdily knotted, as they both rest on the principles embraced by arbitral tribunals in construing such rules. The “exceptional” method, instead, operates a priori, when the legal instruments regulating investment and environmental protection are negotiated and drafted, bringing more certainty, but less flexibility, in dealing with the ever-developing international law on foreign investment.