Volume 5: Issue 2 (2009)

Recent Developments in Social Impact Management in Extractive Resources Development in Peru

Lila Barrera-Hernández

Abstract: This paper focuses on efforts currently underway in Peru to ensure that hydrocarbon and mineral development is undertaken in a socially responsible and sustainable manner. First, it pro- vides an overview of the institutional and legal framework that deals with the environmental and social impacts of hydrocarbon and mine development in the country. Second, it explains the role of the newly-created General Social Management Office and its activities in the area of public participation and social impact management. Finally, it provides a brief account of some of the challenges ahead. This includes increasing the flow of investment to underdeveloped areas while maintaining regulations safe- guarding land use for indigenous peoples.

La réalisation du développement du- rable à Madagascar : Le contrat de transfert de gestion n’est pas une fin en soi

Mino Randrianarison, Philippe Karpe, Pierre Montagne et Alain Bertrand

Abstract: Over a decade ago, Madagascar renewed its policy on the sustainable management of its natural resources. By entering into a contract with the State under the auspices of the Gelose Law of 1996, local populations can now manage their own natural resources. The success of this new mode of management does not rest solely on the conclusion of the contract; rather, it requires the respect of specific conditions to be undertaken throughout the life of the contractual relationship. Required by the law, these conditions have been implemented, completed and enriched by projects, programs and sustainable development organizations. They are necessary to ensure a sustainable development of natural resources in Madagascar.

Développement durable et travail décent : à la recherche d’une interface en droit international

Marie-Claude Desjardins et Dominic Roux

Abstract: Numerous private corporations currently use the concept of sustainable development to shape their corporate social responsibility initiatives. However, the notions of decent work and of respect for fundamental labour rights are the “poor cousins” of sustainable development, at least judging by the amount of literature devoted to them. On the legal level, however, they are indispensable concepts, as they form nothing less than the social pillar of sustainable development: the notions of sustainable development and of decent work are indeed legally and functionally interdependent. This is, in fact, the dominant view within relevant sources of international law. This article therefore reviews the principal international instruments that tackle the con- cepts of sustainable development and of decent work. Decent work is first analyzed as a means to attain sustainable development. Sustainable development is then examined as a means to realize the aim of decent work.

El Ordenamiento Ambiental Territorial

Leonardo Fabio Pastorino

Abstract: This article describes concepts which provide a frame- work for the development of a juridical notion of land ownership and collective rights. The different criteria encapsulated by the terms “territorial organization” and “environmental organization” of territory are discussed. Land is acknowledged to be a scarce, natural resource, and differences in views and definitions between land, the environment and a wider notion of territory are highlighted. The article also suggests that an eco-centric conception of this issue is important for environmen- tal and development policies. The article relies upon Argentinean normative analysis and jurisprudential precedents to describe the tension between the rights of ownership and collective interests which seek to restrict those rights in the search for an adequate balance in the utilization of land space. Finally, the article discusses the role of the State and State sovereignty, and makes critical observations regarding widely-employed formulas, such as “environmental services”.

Case Comment: A (Pre)Cautionary Tale about the Kearl Oil Sands Decision

Dr. Nathalie J. Chalifour

Abstract: In Pembina, the Federal Court reviewed a Joint Panel Report evaluating the environmental impacts of the Kearl Oil Sands project. The case received considerable attention for its laudable finding that the Panel should have provided reasons to support its conclusion that the project’s proposed GHG emissions would be insig- nificant. However, this paper critiques the decision for accepting the Panel’s reliance upon future, uncertain mitigation measures and recommendations as a basis for finding that the various environmental impacts – including GHG emissions, but also impacts upon water, land, wildlife and human health – would be insignificant. The author respectfully argues that the Court gave too broad an interpretation to the concept of “techni- cally feasible” mitigation measures, given the high degree of uncertainty involved. The author also posits that the Court failed in its duty to apply the precautionary prin- ciple in environmental assessment, as now mandated in the CEAA. The Court justified the Panel’s reliance upon measures and recommendations with uncertain outcomes as appropriate mitigation of environmental impacts by relying upon the concept of adaptive man- agement as a counter to the precautionary principle. The author argues that the Court erred in doing so. Application of the precautionary principle is a legislated duty that reduces the threshold of uncertainty that panels may tolerate in assessing environmental impacts. While adaptive management is a concept that can be applied in the implementation of follow-up programs, it is not an appropriate substitute for the duty to apply the pre- cautionary principle.

Book Review

David A. Gantz

Reviewed: Paul Ekins & Tancrede Voituriez, eds., Trade, Globalization and Sustainability Impact Assessment: A Critical Look at Methods and Outcomes



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