Volume 12:2 (2016)

PDF icon Legal Transition to the Green Economy

Markus W Gehring

Abstract: In the aftermath of the global financial crisis of 2008, it can be suggested that the current model of economic growth is neither financially nor environmentally sustainable. The need to move towards a greener economy has since gained traction in the international policy arena. As the 2012 United Nations Conference on Sustainable Development (UNCSD) affirmed, a global transition to a different kind of economic growth, one that is environmentally responsible and socially inclusive, is needed. However, debates on how to promote a global green economy have traditionally focused on economics. This article seeks to highlight the potential contributions of the law in enabling and supporting a greener economy, as well as the need for more innovative and integrated approaches to our understanding of international economic law (trade, investment, and finance). It is divided into three parts. First, it provides an explanation of what is meant by a green economy, and the potential contributions of law to greening economic growth. Second, it examines innovative legal provisions at national, regional and international levels, which expressly seek to green economic policies and practices, based on an international legal research project with the United Nations Environment Programme (UNEP). Third, it focuses on the progress and limitations of international economic law in facilitating or hindering the transition to a global green economy by exploring possible legal and policy remedies. The purpose of this paper is to show how the transition to a green economy is already being promoted by law at all levels, and is receiving growing recognition nationally and internationally. It tracks and examines contemporary developments and trends in innovative legal instruments and provisions at regional, national, and international levels in relation to the green economy; and explores several pathways for international economic law to support the green economy in the context of sustainable development.

PDF icon Adaptive Management in Water Law: Evaluating Australian (New South Wales) and Canadian (British Columbia) Law Reform Initiatives

Deborah Curran and Sharon Mascher

Abstract: Sub-national jurisdictions are undertaking law reform that attempts to remedy the historic inflexibility in water law and to provide security in water use entitlements. These reforms respond to increasing hydrological variability in many watersheds where the volume of water available for consumption at the times of highest demand is decreasing and minimum environmental flows are a precursor to healthy ecological systems. Adaptive management is a foundational ecological and ecosystem-based management principle. Scholars and professionals from myriad disciplines are calling for legal and policy structures that allow adaptive environmental management regimes based on evolving watershed conditions. Adaptive management in a water context requires integrated decisionmaking that incorporates land use decisions with decisions about surface and groundwater, provision for minimum environmental flows, and the ability to alter water users’ entitlements when a water resource is either over-allocated or changing flow regimes results in insufficient water. The purpose of this paper is to compare the water law reforms of the state of New South Wales in Australia and the province of British Columbia in Canada as they attempt to incorporate legal and management tools for adaptive management and to address fixed entitlements for water use in favour of more responsive and watershed-specific management approaches. In New South Wales, adaptation in water law is based on a watershed plan and allocation of a fluctuating consumptive pool of water, which is the amount of water available for extraction under licence after environmental needs are taken into account. In British Columbia, the provincial government may adapt water licences over time through water sustainability planning and water licence review, as well as issue short-term orders restricting water diversions without needing to compensate licence holders for any damages flowing from these orders. These reforms are leading the restructuring of water law to address conflicts between water users as well as between water users and the environment. These reforms are also at the forefront internationally as models for adaptive management. They provide some flexibility in accommodating environmental flows but decrease certainty for water users as hydrological systems change. Their relative successes in accounting for adaptation and healthy hydrological systems will be instructive to other jurisdictions as they move to align their water laws with principles of adaptive management.

PDF icon The Extractive Sector Transparency Measures Act: Critical Perspectives

Connor Bildfell

Abstract: The purpose of this article is to analyze and critique Canada’s most recent attempt to enhance transparency in the extractive industry: the Extractive Sector Transparency Measures Act (ESTMA). This article outlines and discusses the two chief legal responses to corruption: substantive regulation and transparency-based regulation. It situates the ESTMA in this context and discusses its role in the broader anticorruption framework. This article also explores the responses of extractive industry participants and other stakeholders to the shifting landscape. The core argument advanced is the following: the ESTMA is, in principle, a significant step forward in Canada’s commitment to eradicating corruption and reversing the resource curse; however, it suffers from several shortcomings that must be attended to before its full potential can be realized. In advancing this argument, this article synthesizes emerging commentary on the ESTMA in light of the overarching narrative developed in the article. 

PDF icon L’application du droit canadien relatif aux peuples autochtones en matière de préservation des écosystèmes forestiers

Samuel Proulx

Abstract: The preservation of the forest ecosystems is of great importance from a biological standpoint. Therefore, it is essential to provide legal mechanisms for forest conservation during the exploitation of timber. In this perspective, the overall goal of this article is to determine in what ways the constitutional rights of Indigenous peoples can help preserve forest ecosystems. Accordingly, this research focuses on Aboriginal and treaty rights of Indigenous peoples and how they, directly or indirectly, offer additional environmental protections. Our analysis leads us to conclude that this protection is centered mainly around the Crown’s constitutional duty to consult with Aboriginal peoples, in that this protection promotes Indigenous participation in forestry development projects.

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