Fossil Fuel Divestment: McGill thinks It’s Reckless, NYC thinks Otherwise

Zach Morgenstern is a second-year law student at McGill. He graduated with a Hon. BSc. in Peace, Conflict and Justice Studies and Ecology & Evolutionary Biology from the University of Toronto. His extra-curricular explorations have led him to participate in, and occasionally explore, environmental issues via campus journalism, community radio, and the Toronto and Montréal folk music scenes.

Since 2012 one of the defining battles on McGill campus has been the dispute between activist group Divest McGill and the school’s administration over whether McGill should withdraw of its investments in the world’s 200 biggest fossil fuel producers. McGill has twice explicitly refused to divest. A 2016 report from McGill’s Committee on Matters of Social Responsibility accepted many of the premises of the divest movement’s position, before ultimately arguing, amongst other things, that “[w]hile there is widespread agreement that a transition to a new energy system is needed, it is foreseen that the transition must be orderly”.

The fear of McGill administrators that divestment is “disorderly” was repeated at a recent Student Board of Governors Forum. After members of Divest McGill presented on behalf of their campaign, an audience member asked whether the board’s adopting investment policies in response to student activism amounted to a reckless turn to “populism”.

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The seeming sense of McGill administrators that divestment is a reckless demand of student mobs seems a bit of a misjudgement when one considers that divestment is being considered by political actors with even higher profiles than McGill.  Earlier this year, New York mayor Bill de Blasio announced that the city will withdraw $5 billion worth of investment spread between 100 fossil fuel companies within five years. In addition, de Blasio announced a lawsuit targeting Americas’s five largest fossil fuel companies: BP, Chevron, ConocoPhillips, Exxon Mobil and Royal Dutch Shell. This lawsuit is consistent with a sort of circular logic that divestment activists have long championed. The theory of the carbon bubble states that so long as climate change continues to take its toll and some form of green change is pursued, then the present value of oil is bound to depreciate. Therefore it is good investment policy to withdraw one’s fossil fuel investments before their value inevitably drops. New York’s coupling of divestment and a lawsuit takes the logic of the carbon bubble a step further: not only is the city divesting based on the understanding that their assets will be worth less over time, but they are actively creating the conditions for their assets to be worth less over time.

New York can thus be said to be standing up to the “divestment is anarchy” myth in a number of key ways. As stated, New York is boldly thrusting itself towards “anarchy” by using the courts to undermine the very institutions it has financially relied upon until recently, in defiance of Exxon’s claim that it’s wrong to use “trial attorneys against an industry that provides products we all rely upon”. New York has simultaneously, however, used its rhetoric to undermine the notion that divestment is a ham-fisted policy. City Comptroller Scott Stringer explains “[Divestment] will take time, and there are going to be many steps. But we’re breaking new ground, and we are committed to forging a path forward while remaining laser-focused on our role as fiduciaries to the Systems and beneficiaries we serve.” Perhaps most importantly, New York has reminded us that no matter how “anarchic” divestment may seem, the anarchy of climate change is far worse. As de Blasio put it “Sandy taught us how destructive weather events exacerbated by climate change can be.” 44 New York City deaths have been attributed to the hurricane.[1] Sandy also caused substantial property damage, and a study by Madajewic and Coirolo found that it was not New York’s poorest, but middle-class homeowners who suffered the most economic losses in the wake of the storm[2] a sign of the true unpredictability of climate change’s destructive potential. This is not to mention the potential financial anarchy that will result from non-divestment. In 2015, Bank of England Governor Mark Carney warned that leaving the carbon bubble unaddressed would create market risk comparable to the subprime mortgage crisis of 2007.

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New York’s policy is, of course, brand new so there is little as of yet to say as to its effectiveness. That said, New York is clearly not alone in seeing divestment as sound policy. Norges Bank, the manager of Norway’s Sovereign wealth fund, has called for the fund to be fully divested from oil and gas as they fear a permanent drop in oil prices. The World Bank has stated it will no longer fund upstream oil and gas development, making exceptions only when their funding will go towards developing countries AND does not contradict the Paris Climate agreement.

Will McGill get good financial results from divesting? Will it make or at very least contribute to a permanent dent in the carbon economy? There are arguments on both sides, however, as leading voices continue to line up and lend credibility to the divestment movement, its disappointing to say the least that McGill has not adopted the morally courageous (“standing up for future generations”) tone of de Blasio and is instead invoking the dangerous, business-as-usual cautiousness of Exxon Mobil.

1 Sherbin, Alex De & Guillem Bardy. “Social vulnerability to floods in two coastal megacities: New York City and Mumbai” (2016) 1 Vienna Yearbook of Population Research 131 at 136, online: <http://www.austriaca.at/0xc1aa5576_0x00344f51.pdf>.

[2] Ibid at 154.

No More Fish, No Fishermen: The Restoration of the HADD Provisions of the Fisheries Act

Abraham Rash is a first-year law student at the McGill University Faculty of Law and an associate editor with the McGill Journal of Sustainable Development Law and Policy. He holds a Bachelor of Arts in History from North Carolina State University, a Master’s of Public Administration from the University of Vermont, and has previously worked in Burkina Faso for the United States Peace Corps, and as a Program Manager for the United States General Services Administration in Washington, DC, USA. 

Canadian fisheries law is descended directly from British fisheries law, which in principle remains largely unchanged since the signing of the Magna Charta. Under ancient British law, rights to fish the open ocean were outside the jurisdiction of any nation, while tidal water rights were public and vested in the Crown as parens patriae. This was distinct from the right to fish inland and non-tidal waters, which were generally the subject of property, required an owner and could not be vested in the public. By and large, this conceptual framework was adopted wholesale for the regulation of Canadian fisheries, albeit with the notable exceptions of the Great Lakes fisheries, the Saint Lawrence Seaway, and the Grand Banks and St. George’s Banks – all geographic features unknown to medieval England, and thus not envisioned in the inherent structure of British fisheries law.

First passed in 1868, the Fisheries Act was one of the earliest laws passed in Canada following Confederation, and is among the oldest Canadian laws to still be in force. Initially intended as an omnibus repeal of pre-Confederation statutes regulating fishing and fisheries in the Province of Canada and the Province of New Brunswick, it has since been amended no fewer than 17 (soon to be 18) times, and has evolved in scope nearly as many times in its century and a half of existence.

As originally passed, the Fisheries Act was limited in scope. To begin with, it only regulated waters within 3 nautical miles of shore – a historic norm that would not be changed until 1970, when it was briefly expanded to 12 nautical miles, before being pushed to 200 nautical miles just seven years later, where it remains today. Furthermore, the Act made no mention of environmental considerations and was instead intended purely to regulate the commercial fisheries of the young nation. Nor did this role change for nearly a century: from the first years of Confederation until well into the 1970s, the Fisheries Act was almost entirely industrial in scope, and paid no particular consideration to the welfare of the fish it regulated.

However, following the collapse of the Great Lakes fisheries following the accidental introduction of the sea lamprey and alewife in the late 1950s, and the subsequent partial collapse of Atlantic cod stocks in the late 1970s, it became clear that a more proactive approach was necessary to protect the industry that was the lifeblood of much of the Maritime economies, and fundamental to the ancient lifestyles of many First Nations and Inuit peoples as well.

Figure 1. Collapse of Atlantic cod stocks off the East Coast of Newfoundland, 1978-1992.
(Image credit: Philippe Rekacewicz, Emmanuelle Bournay, UNEP/GRID-Arendal, http://www.grida.no/resources/6067)

In response to the looming crisis, Parliament did what governments do everywhere: it made haste slowly. It wasn’t until 1985 that strong fish habitat protections were built into the law, and by then it was too late. Just six years after the new Act took effect, Atlantic cod stocks were near extinction levels, and the Canadian government was forced to take the drastic step of closing the fishery entirely. It was a decision that immediately put over 30,000 Canadians out of work, and the economic repercussions are still being felt today. It also set the stage for the modern use of the Fisheries Act, as a political hockey puck passed between liberal and conservative governments.

Today, the Fisheries Act is the nation’s premier piece of environmental legislation. Between the competing pressures of the rapid decline of fishing stocks, the industrialization of commercial fishing in the aftermath of the Second World War, and the economic devastation wrought by the closure of the Atlantic cod fishery, the need to balance the requirements of both fish and fisherman is imperative. Thus, the Act has been revised time and again by successive incoming governments, usually with an eye towards shifting the balance between promoting economic opportunity and preventing environmental harm in accordance to the philosophy of whichever party currently holds the majority in Parliament.

This year is no different. When Fisheries Minister Dominic LeBlanc announced the revised form of the Act two weeks ago, the Trudeau government was in effect announcing a shift in the balance from the strongly pro-industrial form of the Act promulgated by the Harper government, in favor of a more nuanced approach. In particular, the new Act will restore the prohibition on what is known as HADD: “the harmful alteration, disruption or destruction of fish habitat.” Long lauded by environmentalists as absolutely necessary to the preservation of stocks, and derided by those who make their living from the sea as an example of out-out-touch inlanders putting the wants of ideologues before the needs of communities, HADD is either fish-saving or job-killing, depending on who you talk to.

Specifically, the Act will restore more than $280 million in funding cuts made by the Stephen Harper government to Fisheries and Oceans Canada, ban the capture of whales and dolphins, restore protective measures for fish and fish habitat and adopt more of a co-management approach with indigenous peoples. Crucially, it restores full protections for salmon, cod, lobster, and crab nurseries. However, it fails to address the question of commercial salmon farms, which are a lightning-rod issue among west coast aquaculturists, fishermen, and the First Nations that rely on wild salmon to support their traditional lifestyles.

As described by the government, the goal of the new Fisheries Act is “To sustain fish production for the use and employment of present and future generations.” With the continued closure of the Great Lakes and major Atlantic fisheries, this brings the focus of the Act back to the more ancient waters originally conceived in British law: the tidal and near-shore waterways that make up the bulk of Canada’s remaining commercial fisheries. The hope is to promote jobs in those areas, while still fostering and encouraging conditions to aid in the gradual restoration of still-fragile cod stocks.

Only time will tell whether it is successful or not.

 

The full text of the new Fisheries Act can be accessed here.

 

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