Volume 15:2 (2020)

PDF icon Volume 15 Introductory Material (15:1 and 15:2 combined)

Kimia Towfigh

Here, readers can find useful information concerning the McGill Journal of Sustainable Development Law, including its Editorial, Management, and Advisory Boards. The MJSDL is a student-run, peer-reviewed, bi-annual academic journal mandated to provide a forum for critical analysis on the intersecting themes of economics, society, human rights, and the environment, and the resulting implications for sustainable development law. The MJSDL is affiliated with the Faculty of Law at McGill University and is fully bilingual. Our 2019-2020 Editor in Chief, Kimia Towfigh, provides an editorial note introducing this year's topic, "Innovations in Governance".

PDF icon A Performance Analysis of the International Environmentally Sound Technology Transfer Framework in Africa

Adebayo Majekolagbe

The international climate change regime’s environmentally sound technology framework has evolved from the far-reaching provisions under the 1992 United Nations Framework Convention on Climate Change to having a more streamlined structure under the 2015 Paris Agreement. Transfer channels like the Clean Development Mechanism, Poznan strategy and other non-state initiatives have been explored. More recently, the EST transfer mechanism made up of the Technology Executive Committee and the Climate Technology Centre and Network was established. While its evolution is unquestionable, whether the current framework can be considered more effective is a worthwhile question. To what extent does the current structure reproduce, improve, or diminish previous transfer channels? This article seeks to answer this question from the perspective of African countries. It finds that while there are considerable structural and operational differences between the current Technology Mechanism under the Paris Agreement and previous transfer channels, the current mechanism features flaws that have undermined the effectiveness of previous initiatives.

PDF icon Book Review— Natural Resources and Human Rights: An Appraisal

Dwight Newman

In Natural Resources and Human Rights: An Appraisal, Professor Jérémie Gilbert offers an important work of legal scholarship analyzing developments in the application of human rights law to the regulation of natural resources. In part, he is reviewing already-established applications on such matters as the right to development and the rights of Indigenous peoples. But he is also extrapolating toward potential future applications of rights to natural resource issues and, ultimately, advocating toward aspirational visions of those applications. The endeavour is ambitious. In this brief book review, Dwight Newman, QC (Professor of Law and Canada Research Chair in Indigenous Rights in Constitutional and International Law at the University of Saskatchewan) offers a compelling critique on the piece.

PDF icon The Inhabitants of an Imagined Body: The Crown’s Duty to Consult and Accommodate Indigenous Communities in the Arctic Adversely Affected by Climate Change

Tyler Paquette

Indigenous communities in the Arctic are facing some of the most severe consequences of the world’s inaction on climate change. Although these communities are often portrayed as the faces of climate change, their voices are rarely heard in climate-related decision-making. This article examines how Indigenous communities in the Canadian Arctic can ensure their inclusion in climate change-related governance. In particular, this article analyzes whether the Crown owes a duty to consult and accommodate to Indigenous communities in the Arctic, whose rights recognized and protected under section 35 of the Constitution  Act,  1982 are adversely affected by the impacts of climate change, when contemplating action that would increase greenhouse gas  (GHG)  emissions and thus further contribute to global climate change. Here, the author puts forward three potential ways to satisfy the Crown “conduct” prong of the Haida Nation test, namely: (i) a single contemplated action/decision that will increase  GHG  emissions;  (ii) a constellation of decisions/actions that will increase  GHG  emissions and;  (iii)  regulations or executive policies that will increase GHG emissions. In sum, as climate litigation has emerged around the world, and recently in Canada, this article seeks to engage in a  larger discussion as to whether  Canadian law has the capacity to advance climate justice.

PDF icon Contractual Carbon Fees: A Proposal

Steve Lorteau

This article proposes the ‘contractual carbon fee’ as a novel governance instrument to guide non-state climate change mitigation efforts. At its core, the contractual carbon fee is a privatized carbon tax: one contracting party agrees to pay a fee on its greenhouse gas (GHG)emissions, while another agrees to enforce the commitment to pay the contractual carbon fee. The enforcing party may recover unpaid carbon fees through a stipulated remedy clause. This instrument increases the credibility of a firm’s environmental commitments and helps fill gaps in environmental governance. Due to its binding nature, the contractual carbon fee holds non-state actors accountable for their GHG emissions goals and targets. This article provides advice on how to draft an enforceable contractual carbon fee under Canadian common law and further argues that the contractual carbon fee may be beneficial to self-interested economic actors. Indeed, a contractual carbon fee can help reduce a firm’s GHG emissions, lead to marginal cost savings, help finance green investments, and mitigate climate-related risks.

 

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