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The MJSDL’s 5th Annual Colloquium: Trade Agreements and Sustainable Development in an Age of Rising Protectionism

Michelle Larg is an Associate Editor with the MJSDL. She holds majors in Chemical Engineering and Chemistry from the University of Western Australia, and is currently a first year BCL/LLB student at McGill.

On Friday February 9th, the McGill Journal of Sustainable Development Law (MJSDL) welcomed speakers and guests to its 5th annual colloquium, “Trade Agreements and Sustainable Development in an Age of Rising Protectionism.” The event marked an extension of this year’s theme for the Journal: the nexus between international trade law and sustainability.

Richard Janda, Associate Professor and Faculty Advisor for the Journal, provided introductory comments to contextualise the day’s discussions. He began with a criticism of the “striking” disparity between the massive institutional resources devoted to the commercial sector and the relatively meager resources allotted to social and environmental concerns. While he acknowledged a general decline in the commitment to the trade agenda, he highlighted the potential for trade law to strengthen relationships between nations and advance global initiatives relating to social and environmental challenges.

The morning panel, “The Implications of Investor-State Arbitration on Sustainable Development,” was composed of Fasken Martineau’s Alexandra Logvin and Alexandre Toso, Hadrian Mertins-Kirkwood of the Canadian Centre for Policy Alternatives, and Karine Péloffy of the Centre québécois du droit de l’environnement. The dialogue centered around investor-state dispute settlement (ISDS), with the majority of the panel underscoring the potential for this regime to be abused by investors and corporate actors. ISDS allows foreign investors to bring claims for damages for violations of trade agreements directly to states, and poses significant challenges to sustainable development, environmental protection, and resource management. Indeed, Mertins-Kirkwood remarked that resource and energy firms disproportionately exploit ISDS to bring suits in these particular domains. Furthermore, he outlined the way in which ISDS enables foreign investors to bypass domestic legal systems in their favour, and can effectively expose governments to the risk of paying potentially unlimited sums in damages. Péloffy echoed this sentiment by describing the dangerous way in which resource extraction companies—such as Lone Pine Resources—employ ISDS mechanisms to claim damages for the loss of expected profits, even where those companies lack the legal right to mine or drill. Such causes of action, if allowed, could have debilitating effects on national economies and the ability of governments to protect the natural environment.

In spite of these issues, Logvin, (from the perspective of a commercial litigator), endorsed ISDS. She contended that it is the role of the tribunals to ensure a balance between sustainable development goals and the rights of foreign investors. Mertins-Kirkwood and Péloffy, however, were less convinced about ISDS’s merits. With Canada being simultaneously the most sued developed country in the world under the ISDS regime, and only having won 4 of 28 concluded cases, it is easy to see why ignoring ISDS’s pitfalls could be exceptionally costly.

Following lunch provided by Kahnawake Mohawk caterer Kwe Kwe Gourmet, food policy analyst Rod MacRae of York University commenced his workshop: “Food System Localization in the Face of Trade Agreements.” He argued that Canada has more room under trade agreements such as CETA, NAFTA, GATT, and the WTO to support local farmers than the government readily concedes. Since signing onto trade regimes, Canada has become more integrated with the American economy, and there has been an increase in foreign ownership of Canadian food system assets. Similarly, since Canada’s endorsement of the WTO Agreement on Agriculture, he argued that many domestic agricultural support programs and development schemes have been eliminated. MacRae suggested that while trade deals were presented as solutions to trade challenges at the time of signing, they have failed to reduce trade deficits; the rate of Canadian imports has grown at a higher rate than that of exports since NAFTA came into effect. He affirmed that if the Canadian government were to strategically and carefully interpret the provisions of trade agreements, they would be able to leverage them to their advantage. His interactive presentation was eye-opening and shed light on the many ways in which the inherent complexities of trade agreements can pose a barrier to their optimal implementation.

The final keynote lecture was presented by Wayne Garnons-Williams, a Plains Cree Indian and the Founding President of the International Inter-Tribal Trade & Investment Organization (IITIO). His remarks were entitled “International Indigenous Trade: Past, Present, Future”. Garnons-Williams underscored the fundamentality of nation-to-nation trade practices to Canada’s Indigenous cultures. He noted the lack of Indigenous consultation prior to and during negotiations for trade agreements like CUSFTA and NAFTA, despite the importance of Indigenous trade. To compensate for this gap, the IITIO has led efforts to develop an Indigenous Chapter for NAFTA, since the opening of NAFTA renegotiations in July 2017. It is hoped that the Chapter will enable Indigenous peoples to benefit from this trade agreement and be recognized as valued partners in the Canadian and international trade scheme.

The MJSDL Colloquium was incredibly successful in highlighting the intersections between trade law and sustainable development in a variety of fields: from international arbitration and agriculture, to Canada’s Indigenous trade practices. However, there is still much work to be done to implement sustainable development principles in international trade law, as Professor Marie-Claire Cordonier Segger noted in her closing remarks. We thank all of the speakers for their contribution to the trade law dialogue, and we encourage you to keep an eye out for the publication of MJSDL Volume 14 for more on this important topic.

Ontario: The Next Battleground for Carbon Taxation?

Laurent Crépeau is a second-year law student at McGill University and a Senior Editor for the McGill Journal of Sustainable Development Law. He is interested in the role of various public and private law instruments in implementing sustainable development. Before attending law school, Laurent completed a Diploma of Collegial Studies in Liberal Arts.

Recently, Progressive Conservative leadership candidate Caroline Mulroney expressed her reticence to enacting a new provincial carbon tax. She said she would consider taking the federal government to court over whether it is competent to enforce a Canada-wide climate plan that includes carbon-pricing. She was echoed by her fellow contenders, Doug Ford and Christine Elliot, who both reiterated their opposition to carbon pricing, asserting the policy was economically unviable. These positions constitute a break from the Progressive Conservative platform, which included the policy. This addition came under former leader Patrick Brown, however, who relied on estimated revenue from carbon pricing to finance new spending initiatives – it was claimed that these revenues would amount to $4 billion. The carbon tax would replace the provincial cap-and-trade system put in place by the  current liberal government.

With the federal government working on a national carbon policy, it is appropriate to look at the main options in consideration. In addition to a carbon tax, a cap-and-trade regime is being considered at the federal level. This piece gives a brief outline of the two frameworks, showcasing their pros and cons, and evaluates the traction of any eventual legal claims by Mulroney. It concludes by proposing that, Ontario being one of Canada’s major economic centres as well as Canada’s most populous province, should be seen as the most important battleground for carbon taxation and cap-and-trade advocates. The viability of any national carbon plan depends on convincing the province’s economic actors that their businesses will not be endangered by it and convincing its population of the policy’s desirability.

Cap-and-trade and Carbon Taxation – What’s the Difference?

Cap-and-trade is a framework that puts a progressively-decreasing yearly ceiling on carbon emissions for a given industry. Pollution quotas are then distributed to high-polluting corporations via auction. Hence, the market ends up determining the price of carbon, which creates incentives for corporations to invest in sustainable solutions and clean energy.

Carbon taxation simply imposes a tax on the volume of carbon produced by a given corporation. This regime allows for less customization than cap-and-trade, but it arguably gives more flexibility to corporations, which can decide to simply externalize the additional costs related to paying the tax.

When announcing her campaign for the Progressive Conservative leadership, Caroline Mulroney originally pledged to repeal the Ontario Liberals’ cap-and-trade program and defend the Progressive Conservatives’ carbon tax plan. She defended her shift in position by claiming that she was sticking to the party line at the time and is now advancing her own positions. At the time of writing this piece, we do not know whether this affects her stance on cap-and-trade as well. The point commonly raised by Conservatives to oppose carbon taxation is that it would target specific industries and stifle their economic development in Canada, a position Caroline Mulroney seems to agree with. If that is indeed her position, one might wonder whether she might be partial to cap-and-trade, which has the benefit of being readily calculable and forcing innovation, which effectively limits the waste of resources. Cap-and-trade has existed in the European Union since 2005, with the effect of drastically reducing carbon emissions. Though the system does not lack criticism, it is, in fact, achieving its objectives.

The Constitutional Equation

In the event that provinces decide not to implement a carbon plan, could the federal government come in and impose its own system? In all probability, yes. According to a 64-page legal analysis prepared by Manitoba law professor Bryan Schwartz at Premier Brian Pallister’s request, the federal government could legislate under its taxation powers as well as other heads of powers under s. 91 of the Constitution Act, 1867. If Professor Schwartz’s analysis is correct, this would bode ill for Mulroney’s promise to contest the federal climate plan’s constitutionality. The proposed federal framework, in fact, as noted in the analysis, is flexible and opens the door to “cooperative federalism”, leaving space for provinces to enact their own carbon regulations in addition to the federal structure. Moreover, this framework contains a “backstop” feature, which means the federal legislation would not apply to provinces having already enacted provincial carbon plans satisfying the federal benchmark.

All of this should incentivize provincial parties to put in place their own carbon plans in order to retain control over what could well function as a field of provincial legislation. Even if the federal policy retains its backstop feature, the federal government could end up suffering from continuous efforts to implement its own climate policy on top of the provinces’. This could have political consequences for the federal Liberals, since they will need every constituency they can get in the notoriously swing-happy Ontario during the 2019 federal election.

Ontario as the Major Battleground for Climate Action

Ontario is Canada’s most populous province and home to its greatest economic centre. If Canada is to achieve any significant progress with regards to carbon emissions, it is necessary for Ontario to chime in. If a provincial climate plan can be implemented, it will pave the way for a more serious transition towards a green economy and will serve as an example to other provinces. Knowledge accrued from implementing the climate plan in practice could later be used to further climate action not only in Canada, but in large economic centres around the world. Hopefully, Mulroney or whoever is elected leader of the Progressive Conservatives will prepare a climate plan and, in the event that they form the future provincial government, work with federal lawmakers to comply with Canada’s obligations under the United Nations Framework Convention on Climate Change.

Towards a Fairer Partnership: The Indigenous Chapter of NAFTA

Lian Francis is a first-year student at the McGill Faculty of Law and an Associate Editor with the McGill Journal of Sustainable Development Law. She also holds a Bachelor of Science in Psychology from McGill.

At the mouth of the St. Clair River, which marks the border between eastern Michigan and southern Ontario, lie the sprawling unceded lands of the Walpole Island First Nation. These lands are home to a confederacy of Ojibway, Odawa, and Potawatomi peoples. In August of last year, other Potawatomi peoples from Ontario, Indiana, Kansas, and Oklahoma gathered at Walpole Island for their annual meeting. One of the discussions centred around economy and trade, a particularly topical subject given that renegotiation of the North American Free Trade Agreement (NAFTA) also commenced that month. Walpole Island Chief Dan Miskokomon expressed hope that the negotiations would include recognition of his peoples’ “inherent and treaty rights.” The traditional territory of the Potawatomi, he said, extends on both sides of the St. Clair River; the delineation of the US-Canada border later divided it, but the border holds little meaning for communities like Walpole Island which have always straddled it.

Historically, Canada has a poor track record for consulting Indigenous peoples before ratifying international trade and investment agreements. Indigenous communities were not given a voice when NAFTA was first signed in 1994. More recently, the Hupacasath First Nation challenged the Canadian government in court over the lack of consultation preceding the ratification of a foreign investment promotion and protection agreement between Canada and China, an agreement the First Nation said engaged Aboriginal lands rights and interests. The Federal Court of Appeal ruled that Canada did not have a duty to consult with the Hupacasath before entering into the agreement given that effects upon the First Nation’s interests were “non-appreciable” and merely “speculative” (Hupacasath First Nation v Canada (Minister of Foreign Affairs and Attorney-General of Canada), 2015 FCA 4).

A UN report for the Human Rights Council on the rights of Indigenous peoples remarks that many international trade and investment agreements embody systemic imbalances between the enforcement of corporate investors’ rights and human rights. Such agreements, the report argues, have the potential to erode protections for Indigenous lands and to act as a significant barrier to land claims by prioritizing investors’ rights to access land. It should be noted that NAFTA does contain what are called “carve-outs” – exemption clauses intended to allow Canada to uphold the rights and preferences accorded to Indigenous peoples. However, these clauses are very limited in scope, and have not resulted from any formal consultation with Indigenous peoples.

But things seem to be changing, as the Canadian government has proposed the inclusion in NAFTA of an “Indigenous chapter” and has brought a draft to the negotiation table. This initiative represents one element of the government’s progressive trade agenda and one step towards its self-proclaimed commitment to building a nation-to-nation relationship with Indigenous peoples. And this time, consultation with Indigenous peoples has been a priority. Assembly of First Nations National Chief Perry Bellegarde was appointed to Canada’s NAFTA Council, which will advise the Minister of Foreign Affairs during the negotiations. Kenneth Deer, the external relations representative for the Haudenosaunee Confederacy, commended the extent of the government’s efforts to seek input from Indigenous communities on the NAFTA talks, saying it was “relatively new” for the government to engage with the Confederacy. Canada hosted several consultation sessions on international trade, which were attended by representatives from the Assembly of First Nations, the Métis National Council, and the Congress of Aboriginal Peoples, and also extended an open call for submissions from other stakeholders who wanted to take part in the negotiations.

One of these submissions was a proposal from the International Inter-Tribal Trade and Investment Organization (IITIO), a Canada-US NGO of legal experts and Indigenous representatives. This proposal became the basis of the Indigenous chapter of NAFTA, and may provide a glimpse into its contents. The submission proposes the creation of a committee of Indigenous representatives from all three NAFTA partners to assist in the development of programs to promote Indigenous peoples’ participation in national and international economies. The proposal insists that a revised NAFTA both retain current carve-outs and contain stronger exemptions that more effectively protect Aboriginal rights, treaty and title rights as well as cultural property and traditional knowledge. It stresses the importance of adhering to and directly referencing international human rights instruments like the UN Declaration on the Rights of Indigenous Peoples and the American Declaration on the Rights of Indigenous Peoples. The submission also recommends the inclusion of provisions in NAFTA allowing for freer movement of Indigenous peoples and their goods across the Canada-US border. In support of this contention, the proposal quotes the Treaty of Amity, Commerce and Navigation (also known as the Jay Treaty), an agreement signed in 1794 between the recently independent United States and Great Britain. The treaty stipulated that First Nations could choose to live on either side of the newly established border and could move and trade freely across it. Despite some accommodations by the US for freer movement, the Jay Treaty has not been sanctioned or implemented in Canada.

The IITIO submission contains worthy aspirations and important recommendations, but one might wonder what the real impact of an Indigenous chapter of NAFTA would be, particularly given the concern that the US might back out of the agreement entirely. Chapter drafters Michael Woods and Wayne Garnons-Williams of the IITIO believe that even if the chapter is not incorporated or the talks fail altogether, the process surrounding its creation and the discussion it provokes may lead to a modernization and revitalization of Indigenous trade and commerce. The chapter could also serve as a model for other Canadian and international trade agreements, as could a binational Canada-Mexico Indigenous peoples’ committee if the US were to remove itself from negotiations. Another question arises, however, as to whether the Indigenous chapter will truly improve outcomes for Indigenous peoples in Mexico. Mexican Indigenous farmers already suffer from competition with US imports under the current NAFTA regime. The Mexican government rarely consults Indigenous peoples before approving a project in traditional territories, and when it does, the consultation often occurs after the project is already underway. Perhaps unsurprisingly, the Mexican government has made no attempt to gather the input of Indigenous peoples on NAFTA negotiations. A third concern regarding the actual impact of the chapter surrounds the effect of directly referencing the UN Declaration on the Rights of Indigenous peoples given that both Canada and the US voted against the Declaration when it was adopted in 2007. Both have since endorsed the document, but the Declaration remains purely aspirational in the United States, and even Canada, which officially adopted it in 2016, has taken few concrete steps towards its implementation. Still, the inclusion of an Indigenous chapter seems a step in the right direction towards recognition and respect for Indigenous rights and the fostering of a fairer partnership. As the sixth round of negotiations has come to a close, the fate and impact of the Indigenous chapter of NAFTA is still to be seen.

 

For further information on this topic, hear Wayne Garnons-Williams, one of the lawyers behind the Indigenous chapter of NAFTA, speak at the McGill Journal of Sustainable Development Law colloquium this Friday, February 9th at 2:45 pm in the Thompson House Ballroom!

 

Also see the following articles from the journal’s past issues:

Reconciling Aboriginal Rights with International Trade Agreements: Hupacasath First Nation v. Canada

International Investment Agreements Between Developed and Developing Countries: Dancing with the Devil? Case Comment on the Vivendi, Sempra and Enron Awards

The Cost of Climate Change

Jennifer Rogers is a first-year student at the McGill Faculty of Law and an Associate Managing Editor with the McGill Journal of Sustainable Development Law. She holds a degree in French and Russian Language and Literature from the University of Alberta.

I grew up in the town of High River, Alberta. I lived there when the town flooded in 1995 and again in 2005. When my parents decided to move to another area of town, I remember them going to the town hall to examine the flood maps to ensure that, in the event of another flood, they didn’t take in water. None of the three houses they considered buying were in the flood plain, but by the end of the first day of flooding in June 2013, two of them were under water. The impact of that flood was devastating. People lost their homes and communities suffered damage that took years to repair. 100,000 were evacuated from their homes. Five died.

Alberta, despite having experienced significant, even comparable, flooding in the past, was not ready for a disaster of that magnitude. Outdated flood mapping meant that many areas were built on flood plains, despite this not being evident from available information. Infrastructure to protect these communities was inadequate. Because of this, significant flood mitigation measures had to be put in place following the flood. Rebuilding efforts entailed 80 to 100 years’ worth of infrastructure changes over a period of three years. High River is now the most flood-proof community in Canada according to its mayor. These efforts are vitally important, and despite their costs, will likely save money down the road in the increasingly probable event of another major flood. The question that follows, however, is why, despite a history of flooding and mounting evidence that natural disasters are going to increase in number, did the government fail to act before an event of this magnitude?

Canadians are facing the reality that these extreme weather events are only going to become more likely as time goes on. The US Fire Service reports that fire seasons now last 78 days longer on average than they did in 1970 and burn twice as many acres of land than they did 30 years ago. Canada’s federal government has warned that Canadians can expect to see more flooding and wildfires in the coming decades, even if both national and international communities take serious steps to combat climate change. In the past few years, Canada has seen costs associated with natural disasters increase dramatically. 2016 broke the record for insurable damage in Canada. In Alberta, the costs of the 2013 flooding in Southern Alberta and the 2016 Fort MacMurray wildfire alone soared to almost $16 billion.

If natural disasters can be expected to increase no matter what steps are taken to fight climate change, it is vital that the Canadian government turn its mind to natural disaster mitigation efforts. The costs of failing to do so are enormous, both financially and emotionally. Canadian victims of natural disasters are forced to either pay their personal rebuilding costs up-front and wait for disaster relief funds, or put their lives on hold until they have the resources to rebuild. This is a problem that disproportionately impacts lower income individuals and is made worse by the inefficacy of government repayment programs. One year after the 2013 floods, thousands of Albertans were still waiting for their disaster recovery claims to be processed.

Unfortunately, governments across Canada are falling behind when it comes to mitigation efforts. As mentioned above, much of the damage from the Southern Alberta flooding has been attributed to bad planning and outdated flood mapping.  A 2016 report assessing climate change preparedness published by the University of Waterloo’s Intact Centre on Climate Adaptation found that no Canadian province was sufficiently prepared for the impacts of climate change. In an assessment of flood preparedness, Ontario topped the rankings with a grade of B-, with the rest of the provinces scoring between C+ and D. Provinces have called for Canada to increase funding to the National Disaster Mitigation Program, which currently has a budget of $200 million. At the same time, the 2016 report from the Disaster Financial Assistance Arrangements program, which reimburses provinces and individuals for costs resulting from natural and man-made disasters, estimates that the program will pay out $902 million per year for weather related events over the next five years.

There are multiple arguments to support the need for better disaster preparation. The compassionate argument is one of these: better protections for Canadian communities reduces the number of people at risk of losing their homes, their possessions, or their lives. Another argument is the economic argument. The reality is that many of these disasters are far more expensive than the appropriate mitigation processes would have been (you can read more about some of the costs associated with flood mitigation in Alberta since 2013 here). Infrastructure damages are also not the only costs associated with disasters. Local economies are suppressed when local businesses are damaged, or when individuals cannot work or find themselves unable to participate in the market due to their recovery costs. Either way, there is little support for continued neglect for disaster mitigation efforts in Canada. Whether your motivations are compassionate or economic, the solution lies in being better prepared disasters that we can only expect will increase in severity and frequency.

Making Sense of Ktunaxa Nation: The Imperative of an Alternative Approach to Land and Development

Daniel Powell-Monture is a first-year law student at McGill University. He holds a Bachelor of Arts from the University of Toronto and a master’s degree in Globalization Studies from McMaster University. He is interested in the constitutional politics of indigenous peoples and legal theory.

In Ktunaxa Nation v. British Columbia, the Supreme Court of Canada rejected a claim that Ktunaxa Nation’s constitutionally protected freedom of religion right would be breached by constructing a ski-resort on its traditional territory. Essential to the decision’s rationale was consideration of how far the protected right of one community can extend to impose restrictions on acts of the government or other parties.

In popular commentary, the decision’s legal rationale was too easily mistaken for a comment on the place of indigenous peoples in Canadian society. Ktunaxa Nation provoked exchange so swift and pointed that commentary about the legal decision in mass-media was replaced by a dispute over the cultural politics of recognition at the hands of a settler colonial state. Not more than a week after its publication, the decision had struck a chord in the Canadian media. And for a nation grappling with how to recognize and reconcile with Indigenous Nations, the chord resonated all too familiarly. If the flurry of media responses to the Ktunaxa Nation Supreme Court decision are to be accepted at face value, then either the Supreme Court has upheld the principles of settler colonial domination[1] or they have withstood the temptation to extend accommodation beyond reasonable limits.[2]

Jumbo Valley, British Colombia has been the traditional territory of the Ktunaxa and Shuswas people for thousands of years. Courtesy of Vice Media.

An editorial opinion by the Globe and Mail commended the outcome of the decision as proof of the Court’s conservative restraint.  Rather than succumb to the progressive politics of recognition, the Supreme Court justices had avoided the temptation of putting political interests above a restrained conservative analysis of the law. Beneath the shroud of regalia, Supreme Court justices are merely “human beings like the rest of us,” they proclaimed. No more than paltry humanoids tempted to make good on reconciliation. Like any other Canadian, justices have no interest in “upsetting their neighbours” by pursuing unpopular policy interventions.[3]

Abstracted from its legal foundation, to some, this logic may appear sound. Confronted with a political choice, not a legal one, the Court had rendered an appropriate and controlled decision. No judicial activism here. For the editorial team at the Globe, the justices had taken a valiant stand against the demands of Ktunaxa Nation.

Sarah Berman of Vice proffered a critique that could not have been more at odds with the Globe and Mail’s contrived commentary. The decision, she argued, was evidence that indigenous lands were not sacred enough to warrant a political response. The question of whether rights had been infringed was incidental to the more fundamental injustice of a colonial structure between indigenous peoples and the Canadian state. Presumptive in her analysis was that rights, as she understood them, could only have been infringed. Absent from her analysis was discussion of the complex process through which the Supreme Court must negotiate the infringement of a religious right.

Divided response to Ktunaxa Nation is perhaps unsurprising given that the case turns on a complex mixture of political and religious questions. These two topics are after all never supposed to be mentioned in gentile circles. The trouble is that the place of indigenous lifeways in Canadian society turns on questions that are inherently political and religious in nature. The integration of indigenous legal traditions in the framework of Canadian law is inherently political. The challenge of whether and how to accommodate and include indigenous traditions into Canadian civil society turns on questions of sovereignty, colonialism, and the protection of cultural rights.[4] Moreover, as indigenous claims and legal traditions conflict with the interests of federal policy to allocate Crown land, the spiritual and religious content of indigenous worldviews are also tested by the secularized status of religion as a discrete worldview.

At the expense of a sustained engagement about the possible avenues for a new model of sustainable development, Ktunaxa Nation has been reduced to a thermostat of the treatment of indigenous peoples. For those within the legal profession, the case’s bastardization in public discourse should elicit concern. Bonds of understanding between courts and society are not well.

Diversion to the details of the case offers a different analysis. The Court addressed two discrete causes to action. While each was pursued individually as a mechanism to invalidate approval of Glacier Resort’s development, invocation of a Charter claim to freedom of religion was the one that sought the most significant interpretative value from the Court. First, the Court addressed whether the construction of a permanent structure in the Jumbo Valley infringed the fundamental right of religious freedom guaranteed by the Charter. Ktunaxa Nation argued that the construction of a permanent structure in the Glacier Valley would cause irremediable harm to their religious beliefs and that the harm was significant enough to give them a cause of action for constitutional protection of religious freedom under s. 2(a) of the Charter of Rights and Freedoms. In turn, the majority opinion ruled that freedom of religion protects the “freedom to [hold beliefs] and to manifest them in worship and practice or by teaching and dissemination”, but not the “object of beliefs” [5]. Hence, Ktunaxa Nation’s religious rights were not infringed.

Second, the Court addressed the claim that the duty to consult process had been insufficient. In their submission to the Court, Ktunaxa Nation claimed that British Columbia Ministry had breached its duty of consultation and accommodation. A diversion is in order. Over a 20 years period, Glacier Resorts and Ktunaxa Nation negotiated the construction of a ski-resort. When negotiations soured, the British Columbia Ministry of Forests, Lands and Natural Resource Operations intervened. Steps were taken, following the duty to consult process, to accommodate the spiritual concerns of the Ktunaxa Nation. Although it had seemed to the Ministry that progress had been made to accommodate some of its spiritual claims, Ktunaxa Nation came to take a different approach. It declared rights arising from a “pre-existing sovereignty” allowed it to effectively veto any development in certain parts of Jumbo Valley, and terminated negotiations. It claimed the sacred importance of the site had not been considered.

Despite Ktunaxa Nation’s new approach to the development, the Ministry approved an agreement to grant Glacier Resorts the right to proceed. In its decision, the Ministry demonstrated that its commitment to the duty to consult process was procedural. Negotiations were a necessary component to approval of the project, but the substance of the outcome of negotiations was irrelevant so long as a good faith attempt was made to accommodate Ktunaxa Nation. The Supreme Court agreed.

The British Columbia Ministry of the Environment acted within its mandate. However, their vision of accommodation, the kind bestowed by the jurisprudential extension of s. 35 aboriginal rights, was too precise and limited to accommodate a genuine reconciliation with the indigenous peoples of the Jumbo Valley. The Ministry was offered the task of seeking accommodation and consultation within a legislative agenda that does not adequately address the mixed and varied relations of indigenous peoples with property. Ktunaxa Nation rejected the substance of an accommodative approach for reasons that were core to their religious beliefs. No permanent structure could avoid irremediable spiritual damage. Having completed its procedure of making good on aboriginal rights, the Ministry was left with one avenue to protect the interests of Glacier Resorts and the integrity of its duty to consult process.

Ktunaxa Nation can all too easily read as an uncomfortable development to emerge in what has become over the past several decades a storied body of jurisprudence aimed at the reconciliation of Indigenous peoples into Canadian society. Though it shares similar traits with the substantive issues of past decisions, Ktunaxa Nation disrupts the progressive tendencies of Indigenous-Crown reconciliation. The decision did not establish a mechanism favourable to the protection of Indigenous Nations. To the contrary, the case set forth limits on the Court’s willingness to balance indigenous claims with Crown interests in the name of a reconciliatory approach to indigenous peoples.

To be fair, the duty to consult and accommodation process was never intended as a mechanism to remake Canadian society. The process, as set forth in Haida Nation, was recognized as an interim measure of protection for indigenous nations that had yet to establish title rights. There are limits, profound limits, to the constitutional protection of indigenous peoples.

Stuck within the frame constructed by the Court, it has become too easy, even perfunctory, to imagine a program of aboriginal rights that is made more robust through more robust interpretation. Debates over aboriginal claims are too easily framed as problems of constitutional interpretation. I firmly believe that the attention to law and legal instruments is misguided, even dangerous. In place of a legalistic analysis what is needed is that the power of the Supreme Court be examined not merely as the product of judicial intervention but instead as reference to the critical weakness of public policy. Ktunaxa Nation reflects that frictions of clashing values over the substance of reconciliation are grander than mere disagreement about constitutional principles and cultural accommodation in liberal society. The case reveals the limits of the duty to consult and accommodate process to reconcile with indigenous worldviews.

Reconciliation, if is to have broad purchase, must be accompanied by a political change more substantial than the slow and uneven development of Canadian Supreme Court jurisprudence. Legislative changes are required. New models through which the Crown allocates its property interests that recognize the presence of indigenous peoples. It requires that the state’s accountability to the public is measured through more than a simple calculus of the economic benefits of Crown land disposition to consideration of how the disposition of Crown lands is intricately connected to a broader calculus of social value.

Frustrating though it may appear to some, Ktunaxa Nation warrants a different response, one that can serve as a clarion call to think carefully and cautiously about the legitimacy of powers granted to the Supreme Court. The decision also demands rethinking the core elements of the duty to consult and the polices bestowed to provinces to dispose of land for “public benefit.”

Since the project must still pass environmental review, it remains possible that the Ktunaxa Nation can achieve its own justice in the matter. Moreover, the justice claims of indigenous peoples more broadly are on a different footing. In the years since the Truth and Reconciliation released its recommendations, there are signs that relations with indigenous peoples have improved. Even if a change in words has not been met with actions, the discourse about indigenous peoples in Canadian society has changed remarkably. The seeds of a different relationship have been planted.

Hope can turn to promise but only with a different conversation about property, development, and indigenous peoples. The problems posed by Ktunaxa Nation signal the sort of questions that civil society needs to be asking. Whatever its future, the project’s political struggle holds the potential to inspire a conversation more important than bickering over whether the Supreme Court justices are activist politicians in robes.

The Court’s docket will doubtless address similar appeals of development in its future. Insofar as the Supreme Court of Canada remains engaged in a purposeful articulation of s. 35 aboriginal rights, the Court, elite and distanced, will be seen by many as an activist organization. For some, its activism will be welcome. For others, its activism will not be. Either way, aspiring to the Courts can only be one strategy for change. Ktunaxa Nation should teach us that a different strategy, outside of the regularities of the law, is due. The aspiration for a new paradigm of development, one which considers reconciliation with indigenous peoples as an essential component of a more humane form of economic program, requires a tectonic shift.

I would hope that this conversation can be had outside of the discursive framing of state recognized aboriginal rights. But how can narratives shift? How can these relations be reimagined? You tell me.

I ask: in the name of Ktunaxa Nation, what is your reconciliation resolution?

 

Sources;

[1] This position can be found notably in Sarah Berman, “Indigenous Lands not Sacred Enough to Block BC Ski Resort, Supreme Court Rules” Vice Media (2 November 2017), online <www.vice.com>.

[2] Editorial, “In a ruling on Indigenous Rights, the Supreme Court gets religion” The Globe and Mail (6 November 2017), online <www.theglobeandmail.com>

[3] Ibid.

[4] For the effect of colonialism on indigenous inclusion in Canadian constitutionalism, see: James (Sa’ke’j) Youngblood Henderson, “Incomprehensible Canada” in Jennifer Henderson & Pauline Wakeham, Reconciling Canada: Critical Perspectives on the Culture of Redress (Toronto: University of Toronto Press, 2013), 115. For an account of reconciling Crown and indigenous sovereignty, see: John Borrows, “Sovereignty’s Alchemy: An Analysis of Delgamuukw v. British Columbia” (1999) 37:3 Osgoode Hall L J 537.  For an account of the demands on cultural rights on the constitution, see: James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge: Cambridge University Press, 1995).

[5] Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54 at para 71.

Finding a Place for Climate Migrants

Lauren Weaver is a first-year law student at McGill. She graduated Summa cum Laude with a B.A. in French and International Studies from the University of Oklahoma in 2012 and received her M.A. in French Studies from New York University in 2015. Lauren previously worked as an immigration paralegal at Fragomen, Del Rey, Bernsen & Loewy, LLP. She is a Student Advocate with the McGill chapter of the International Refugee Assistance Project and serves as the External Chair for the Canadian Association of Refugee Lawyers at McGill.

As the effects of global climate change bring extreme weather events, melting ice caps, and rising tides, experts have begun to examine these environmental shifts as risk factors for human displacement and forced migration. Professor Jennifer Leaning asserted that climate issues likely played a role in the current European refugee crisis during her keynote speech at Harvard University’s September 2017 symposium, “Climate Change, Migration and Health.” Following an extended drought in northern Syria that ravaged the agricultural industry, a million people were forced to migrate internally, contributing to the unrest that would eventually become a civil war. However, there are other risks associated with climate change that could potentially lead to forced migration, such as rising sea levels that put entire island nations like Kiribati at risk. Unfortunately, the current framework for status determination in refugee and asylum law was not designed to address these types of migratory situations and leaves entire populations without options for resettlement abroad.

Initially drafted to protect European refugees following World War II, the 1951 Refugee Convention as amended by the 1967 Protocol defines a refugee as:

“A person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”

Somali refugee camp in Eritrea

This definition makes sense within the postwar context and the aftermath of the Holocaust, which left millions of refugees who had been targeted for religious, ethnonational, and political reasons. The current state of migratory issues, however, differs drastically from that of 1951. While some displaced peoples—such as the Rohingya of Myanmar—are still fleeing persecution based on their status as an oppressed minority, millions more are displaced both internally and externally by civil war, political and economic instability, and most recently by the effects of climate change.

Among the largest risk factors for climate-driven migration are flooding, extreme weather events, and desertification. In the Sahel belt of sub-Saharan Africa, a 90% shrinkage of Lake Chad since the 1960s has contributed to the displacement of 2.5 million people in the region. These changes are exacerbated by the area’s extreme poverty and could lead to increased political instability and conflict over resources. Meanwhile, the government of Fiji has published a list of 60 villages in need of relocation as a result of the rising waters that are slowly eating away at the beaches of the island nation. While displaced peoples in larger countries may be able to relocate internally to escape the most devastating effects of climate change, many more will be forced to leave their home countries altogether for lack of adequate shelter and resources. These people would be ineligible for refugee status, benefits, and resettlement under the current framework administered by the United Nations High Commissioner for Refugees (UNHCR).

Floods in Sahrawi refugee camps in southwest Algeria

The lack of protection under current international refugee and asylum law leaves few options for climate change migrants. Although some developed nations may introduce temporary immigration programs following particularly devastating natural disasters, these will not address the colossal scale of eventual climate migration needs. Migrants may also find themselves uprooted again and forced to return to their home countries, as is the case of the 50,000 Haitian and 200,000 Salvadoran immigrants displaced by earthquakes whose Temporary Protective Status in the United States is set to expire in 2019. In the wake of such migratory crises, experts and activist groups have argued that the 1951 Refugee Convention does not address the full breadth of contemporary displaced migrant populations, and have called for the recognition of climate change as a driver of migration by the United Nations.

Contemporary migration problems, including those driven by climate change, will require a re-examination of how we determine the circumstances under which a person has the right to leave their country of origin and establish a life abroad. Whether the solution is to redefine “refugee” or to set up an entirely new system for climate migrants is unclear. What is clear, however, is that inaction on the part of the international community, particularly industrialized nations, is unacceptable. As the primary contributors to climate change, the industrialized nations have an ethical responsibility to mitigate climate change and its consequences for the developing world. Opening our borders and communities to those who have lost and will lose their homes to climate change is not a kindness or a favor; it is a duty.

Not the Villain: China’s Role in Our Green Future

Zach Morgenstern is a second year law student at McGill. He graduated with an 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.

Tackling global climate change can feel like a hopeless task. One reason for this is the fear that as countries in the Global South pursue First World living conditions, they will inevitably emit large quantities of greenhouse gases. China, as the world’s leading CO2 emitter,[1] (though, far and away, not its leading emitter per capita) and a rising political superpower, particularly factors into this pessimistic fantasy. However, this caricature of China as a polluting, rapid-industrializer, is, at the very least, a gross oversimplification. Chinese President Xi Jinping, after all, has established a longstanding rhetorical commitment to building a nation of “clear waters and green mountains.”[2]

In 2005, China passed the Renewable Energy Law, which amongst other things, requires that energy providers incorporate all possible renewable energy sources into their grids.[3] Since the passage of the act, China has seen notable development in its renewable energy industries, particularly wind, making China the world’s leading producer of wind power. China aspires to produce 20% of its power from renewable sources by 2020.[4] China also has plans to reduce its carbon intensity (emissions per unit of GDP) by 40-45% below 2005 levels by 2020. While this target sounds ambitious, the country had previously set a goal of reducing its carbon intensity by 20% relative to 2005 levels by 2010[5] and it came close to achieving it, reaching a 19.1% reduction.[6]

Chinese policy, however, is not the only basis to question pessimistic visions about the environmental potential of the Global South.  Indeed, the assumption that developing economies are so single-minded that they will industrialize without any concern for climate change ignores the salient conditions that exist in countries like China. According to a Pew poll, Chinese citizens widely view pollution as a matter of national concern: the only issue noted by a greater portion of respondents was corruption.[7] One consequence of this pollution is water contamination. This is a particularly important problem for China given that it has 20% of the world’s population, but only 5-7% of the world’s fresh water supply.[8] While it is apparent that strong evidence about the risks of climate change in the abstract is insufficient to drive governments to take drastic action, mass public exposure to and awareness of the consequences of pollution (the presence of which is often connected with climate change) can pressure governments to pursue meaningful reforms.

Nationalism is another factor that seems to be shaping the Chinese green transition. Former Chinese Premier Wen Jiabao argues that economic crises can be an opportunity for countries to adapt their economies to changing times.[9] He noted that many countries seemed to be ‘going green’ and argued that it would be a shame for China to fall behind on this trend. Nationalistic motivations are not just evidenced in Chinese state rhetoric, but also in its approach to promoting green energy: providing substantial subsidies to domestic companies, requiring that industries (e.g. wind) primarily be populated by domestic companies, etc.[10] China’s nationalist approach could alternatively be described as a socialist one. It is not characterized by hardline, chauvinistic patriotism so much as an approach to economic development that holistically considers the wellbeing of the country. This is illustrated by the fact that China’s 5-year plans have included calls for reductions in growth targets, with Wen explaining that “China must stop sacrificing the environment to wasteful energy use and unsustainable development.”[11] As Professor Zhang Yongsheng argues, China’s status as a developing economy does not necessarily mean that it is just starting on the Western path of emission-heavy development:[12] rather, China and its nationalist and socialist leaders have an opportunity to reimagine development as a green process.

It should be added that Chinese leadership has also clearly indicated its understanding that ecological protection and economic development are not necessarily opposing ends. Xi explains “We will promote green development to achieve better economic performance. I have said for many times that green mountains and clear water are as good as mountains of gold and silver. To protect the environment is to protect productivity.” Again, such perspective is sparked by the salience of pollution’s effects in China. In 2000, 470 000 premature deaths were tied to pollution: it is hard to grow your economy when you are losing your population.[13]

China still has a long way to go before it puts a major dent in the process of global climate change. Nonetheless, if world leaders are to collectively address climate change, it is important that they have faith in the ability of their colleagues, including those who lead rising economies, to contribute. China has a bad environmental reputation, and some of that is deserved, but credit should still be given where it is due. We live in a bleak era. The so-called leader of the free world, President Trump’s United States has withdrawn from the Paris agreement. We now must count on China and President Xi, who has vowed to do the opposite.

[1] “Each Country’s Share of CO2 Emissions” (Nov 20 2017) Union of Concerned Scienists, online: <https://www.ucsusa.org/global-warming/science-and-impacts/science/each-countrys-share-of-co2.html#!>.

[2] Sam Geall, “Clear Water and Green Mountains: Will Xi Jinping Take the Lead on Climate Change?” (Nov 16 2017) Lowy Institute, online: <https://www.lowyinstitute.org/publications/clear-waters-and-green-mountains-will-xi-jinping-take-lead-climate-change>

[3] Barbara Fimore, “China Renews Its Commitment to Renewable Energy” (Feb 1 2010) Natural Resources Defence Council, online: <https://www.nrdc.org/experts/barbara-finamore/china-renews-its-commitment-renewable-energy>.

[4] Andrew B. Kennedy, “China’s Search for Renewable Energy: Pragmatic Techno-Nationalism” (2013) 53:5 Asian Surv p 909 at 909.

[5] Justin V. Remains & Junfeng Zhang, “Environmental Lessons from China: Finding Promising Policies in Unlikely Places” (2011) 119:7 p 893 at 894.

[6] Jane Qiu, “China Announces Energy-Saving Plans”  (Mar 14 2011), online: <http://www.nature.com/news/2011/110304/full/news.2011.137.html>

[7] Remains & Zhang at 893.

[8] Geall.

[9] Kennedy at 916.

[10] Ibid at 920.

[11] Qiu

[12] Yongsheng Zhang, “Can China Achieve Green Growth?” in Ross Garnet, Cai Fang, and Ligang Song eds. “A New Model for Growth and Development” (Action: Australia National University Press, 2013) 267 at 274.

[13] Remains & Zhang at 903.

MJSDL at COP 23 in Bonn, Germany

Jared Miller is a second-year law student at McGill University Faculty of Law and an Associate Managing Editor with the McGill Journal of Sustainable Development Law. He is originally from Winnipeg, Manitoba, and a proud member of the Manitoba Métis community. He holds a Honours BA from the University of Winnipeg where he studied Criminal Justice, Sociology, and Development Studies.

This year marked the 23rd annual Conference of the Parties (COP) to the United Nations Framework Convention on Climate Change (UNFCCC). Taking place in Bonn, Germany in early November 2017, this forum sought to bring parties together to strengthen ties in the fight against climate change. Individuals representing wide ranging sectors of society attended, from government, to private actors, and even public bodies and NGOs. The official President of this COP was Fiji, marking a dramatic acknowledgement of the danger posed to small island nations, many of which are on the forefront of the battle against climate change. This was also the 2nd year that the MJSDL participated in COP side-events. Last year’s conference saw countries reinforce their commitments to COP 21’s Paris Agreement, but was marred by the election of US President Donald Trump. This COP had new worries, as it was clear that the United States was out, but what would come next? This blog will explore the events that the MJSDL attended while in Bonn, and outline how commitments to the Paris Agreement evolved across the conference. We offer some takeaways from Climate Law and Governance Day, Development and Climate Days, and some perspectives on the future of the Paris Agreement.

The MJSDL sent four delegates to COP 23: Editor-in-Chief Allen Brett Campeau, Managing Editor Eric Weibe, Associate Editor Linda Muhugusa, and myself. The major event for our 4 delegates was Climate Law and Governance Day. The MJSDL is a co-sponsor of this event, which is organized yearly by the Centre for International Sustainable Development Law (CISDL). Since our first appearance at COP 22 in Marrakech, Morocco, we have co-hosted a climate litigation moot competition as a part of the day’s events. The mooters were all finalists in the Global Climate Law and Governance Legal Essay Competition 2017. This year’s moot focused on a battle between a hypothetical association of island nations and a hypothetical consortium of petrol-producing pacific nations at the International Court of Justice (ICJ). The key point of contention in this moot was on the legal personhood of the Pacific Ocean; in an effort to protect the Pacific Ocean, the island nations sought ICJ recognition of its legal personhood, as well as a moratorium on the construction of new oilrigs in the Pacific Ocean’s international waters. This event was again a great success and there was lively debate on both sides, but ultimately the petrol producers had the better argument and won the day.

Attribution UNFCCC High Level Talks COP23.UNFCCC.int

Climate Law and Governance Day began with a passionate speech by the Attorney General and Environment Minister of Fiji, Aiyaz Sayed-Khaiyum, on the impacts of climate change and the range of policies that Fiji has implemented to address the problem of potential climate refugees. Later plenaries and panels also focused on the impacts of climate change on small island nations. Each panel presented a number of different perspectives, ranging from local and indigenous knowledge systems, to practical implications of the Paris Agreement, to uncertainties, which still exist in the narrative of climate change policy in many nations. These panels presented innovative international, national, and local climate law and governance mechanisms, challenges, and best practices. Additionally, discussions focused on knowledge exchange between delegates, legal practitioners, and the legal academic community, allowing us to generate new law and governance knowledge and approaches.

The Bonn COP marked a significant departure from the subdued mood that has permeated climate negotiations since the United States announced its intention to withdraw from the Paris Agreement. Parties at a number of events seemed to have an optimistic outlook on the future of the Paris Agreement. As it stands, despite the absence of the American government at the negotiating tables, many key American actors continue to represent American interests. Representatives of cities, businesses, and other sectors continue to support the UNFCCC process and the Paris Agreement. While the American government may have reduced its involvement, this does not mean that the United States has entirely given up on climate reform.

Photo: UNFCCC/ Flickr.

The MJSDL members also attended the highly popular Development and Climate Days, hosted by the International Institute for Environment and Development at the Kameha Grand Bonn. The event spanned the course of 2 days, strategically placed between the first and second weeks of the COP conference. Several parallel sessions were held throughout the weekend. Each session addressed one of four themes: gender and the environment, resilience through empowerment, the value of lived experience and knowledge, and transparency and accountability. These themes permeated our discussions at the different workshops and panels. Talks stretched throughout the day on Saturday, culminating in a reflection panel on the first week of COP, the progress that had been made so far, and what was to come going forward.

Two members of our delegation also attended a climate law specialization course held by the CISDL on the final day of the MJSDL’s participation. This occurred at the United Nations University complex across from the Bula Zone, which saw the majority of the high-level COP 23 negotiations. This course brought together many influential actors from the areas of climate change law and international development. It focused on the legal challenges that stem from the implementation of the Paris Agreement. It included interactive workshops and panel discussions focusing on adaptation and resilience, renewable energy development, climate finance, along with transparency provisions under the Paris Agreement. There were also discussions about human rights law and climate change, loss and damage, and climate displacement. We thank the Student Society of McGill University (SSMU) and the McGill Law Students Association (LSA) for their support in allowing our members to attend COP 23 and this course.

COP 23 saw a recommitment by many parties to the Paris Agreement. As of November 2017, 195 members of the UNFCCC have signed the Paris Agreement, and 170 have become parties to it, including the historic ratification by Syria just prior to the conference, leaving the United States as the sole nation wishing to withdraw. Ultimately, an American withdrawal cannot occur until 2020 due to article 28, noting countries cannot withdraw until 3 years after the Paris Agreement goes into effect. In spite of this, one of the highlights of COP 23, and one of the major takeaways for many individuals, was the burgeoning move beyond the national commitments. COP 23 has shown that sub-national actors, including local and regional governments, may play significant roles in pursuing greenhouse gas reductions and climate change adaptation. Further, this COP has allowed for one to understand the ultimate impact of climate change on the individual. The Paris Agreement provides the framework for climate action, and now we must increase our ambition to achieve its goal of limiting global warming to no more than 2 degrees Celsius. When we look back at COP 23 we will see a pivotal moment in the history of UNFCCC conferences; it was here that the impact of climate action at the local level was underscored and the commitment to the future reaffirmed.

Ups and Downs of Melting Ice: Weighing Environmental and Economic Concerns Surrounding Marine Tourism in Nunavut

Lian Francis is a first-year student at the McGill Faculty of Law and an Associate Editor with the McGill Journal of Sustainable Development Law. She also holds a Bachelor of Science in Psychology from McGill.

The isolated hamlets and imposing landscapes of Canada’s remote north remain, for most Canadians, a distant region of their country that they will likely never visit. Yet, as a result of melting ice in these northernmost reaches of the continent, more and more Canadian and international tourists will have the opportunity to visit Canada’s Arctic Archipelago. The Northwest Passage, exceedingly treacherous to navigate until recent decades because of ice cover, now sees steadily increasing ship traffic. Rising cruise ship tourism poses a particular dilemma for northern Inuit communities, who are torn between the prospects of improving their often dire economic conditions and the preservation of their lands and waters.

Cruise boat in Nunavut
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Quark_Expeditions#/media/File:15-09-11_006_Quark_Expeditions_ship,_ Sea_Adventurer_(Nassau_registry_IMO_7391422),_at_
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Melting ice already adversely affects Inuit communities in a number of ways. Thin and receding ice reduces the available hunting and fishing grounds, threatening food security. Melting permafrost and the resultant cracks in the land make travel to remaining grounds and ancestral sites dangerous. Marine tourism, however, presents a new challenge. In August of this year, the Crystal Serenity, a cruise ship carrying more than 1700 passengers and crew, sailed through the Canadian Arctic Archipelago and stopped in several Nunavut towns. The Serenity, which made the same voyage for the first time last year, is by far the largest cruise ever to have taken this route; most other ships that have traversed the Northwest Passage carried fewer than 200 passengers. This may be the mark of a new era of marine tourism in Canada’s North – in 2016, 11 different ships made a total of 25 voyages along the coast of Nunavut.

On one hand, the growing tourism industry offers important economic opportunities. When tourists disembark in these Inuit communities, locals host art fairs, put on cultural demonstrations, and lead guided tours of the town. For families who struggle financially at other times of the year, this is a much-needed source of income. On the other hand, communities worry about the environmental impacts of increased ship traffic. Many cruise ships emit dangerous levels of sulphur dioxide and contribute to both air and water pollution. Increased traffic will also mean a greater risk of oil spills, a particularly significant concern given that cleanups and emergency rescues are difficult to carry out in the remote north due to extreme weather and navigational challenges. Communities are especially worried about the damaging effects of water and sound pollution on sea life, their main food source. The premature breakup of ice for the passage of ships also disturbs natural habitats and hunting grounds.

Pond Inlet, a town at
which the Crystal Serenity stopped
https://en.wikipedia.org/wiki/Pond_Inlet#/
media/File:Pond_Inlet_June_2005.jpg

Public institutions in Nunavut have weighed in on this dilemma, attempting to assist communities in balancing both economic and environmental goals. The Nunavut Impact Review Board, whose creation was negotiated as part of the Nunavut Land Claims Agreement between the Canadian government and the Inuit peoples of Nunavut, screens proposed projects in the region and assesses their environmental and socioeconomic impacts to ensure that approved projects promote the well-being of Nunavut’s communities and protect its ecosystems. In its screening decision regarding the Crystal Serenity voyage, the NIRB judged that the environmental impact of the ship’s passage would be minimal provided the crew conform with a number of recommendations, including limiting the time passengers could observe marine animals and ensuring personnel were trained in spill cleanup procedures. The Nunavut Planning Commission, also created by the Land Claims Agreement, drafted in 2016 a land-use plan which aimed to find a compromise between protecting Nunavut’s lands and waters and allowing tourism, mining, and other forms of development. The plan proposes using buffer zones and other restrictions to protect important habitats.

The Government of Nunavut has also responded with proposals of how to manage the growing marine tourism industry and its complex effects on communities. The Ministry of Economic Development and Transport released last year its Marine Tourism Management Plan, one of the key goals of which is to support community engagement in marine tourism planning by providing informational resources and assisting with data collection on the economic benefits of marine tourism activities. Another key goal is the adoption of legislation and regulations for the industry to address both economic development and environmental concerns. The Plan outlines several strategies to communicate these regulations to cruise operators and other actors in the tourism industry, including the design of codes of conduct for passengers when they visit communities and observe wildlife. An amendment to the Nunavut Tourism Act, which came into effect in April of this year, allows the government to designate an area as a Restricted Tourism Area for cultural, ecological, historical, or safety reasons, and to limit tourism activities within designated areas. The amendment also authorizes the government to create regulatory schemes for a wide range of tourism-related activities.

No regulations specific to marine tourism have been passed as of yet, so whether communities and the government will succeed in balancing environmental protection with economic goals is still to be seen. Canada’s contested sovereignty over the waters of the Northwest Passage may pose an additional challenge in the establishment of effective marine traffic regulations. As well, it may be that the increase in cruise ship tourism is less problematic in terms of environmental impact than the growing private yacht and sailboat traffic, as cruise operators typically work with communities to make visits run smoothly and to respond to concerns about wildlife. It is to be hoped that future regulations will promote similar cooperation between communities and private boaters so that the towns of Nunavut will be able to truly benefit from marine tourism.

 

FURTHER READING:

Building Sustainability into a Changing Arctic

Arctic Community of Practice and Offshore Oil and Gas Activities: Determining the Legal and Political Dimensions of the Obligation to Prevent, Reduce, and Control Pollution

Not Just a Pipe Dream: Indigenous, Provincial, and Environmental Considerations in Successful Canadian Pipeline Projects

Nicole Spadotto is a first-year student at the McGill University Faculty of Law and an Associate Editor with the McGill Journal of Sustainable Development Law. She holds a Bachelor of Arts from McGill University in Joint Honours Political Science and English. Nicole has previously worked as a political staffer on Parliament Hill and in marketing with PricewaterhouseCoopers LLP. She has experience in projects intersecting with policy, energy sustainability, and corporate social responsibility.

This past summer, I had the privilege of visiting Hardisty, Alberta on August 11 to tour the Enbridge Line 3 pipeline replacement project. Hardisty is a small town close to the Saskatchewan border, and is perhaps most famous for being a central hub for the oil and petroleum industry. While touring the pipeline replacement project, I had the opportunity to listen to speeches from Amarjeet Sohi, the federal Minister of Infrastructure and Communities, as well as from Alberta Premier Rachel Notley, and Albertan Indigenous representatives. Through touring the pipeline and learning from politicians from all levels of government in Canada, I gained understanding of some legal and policy factors that contribute to whether proposed pipeline projects fail or succeed in Canada. These factors include the duty to consult, provincial approval, and (increasingly) whether the pipeline is environmentally responsible.

When infrastructure developments have an impact on an Indigenous community’s land or rights, the Crown has a “duty to consult” with Indigenous groups before embarking on the project. The Indigenous community must be informed of the nature of the project, and given opportunities to answer the proposal.  For the consultation to pass constructional validity, the consultation must be “real and substantial” according to the Supreme Court of Canada – though the Indigenous community does not need to approve of the project for it to eventually move forward.

https://commons.wikimedia.org/wiki/File:
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The exact provisions of the “duty to consult” still need to be developed through legislation and courts. Doing so will sharpen whether the duty to consult means only conversation with Indigenous peoples or whether it extends to taking Indigenous views into account, and meaningfully adopting them, while developing projects. What did become clearer over this summer is that improper duty to consult can cause a whole project to be cancelled. In Clyde River (Hamlet) v. Petrolium Geo-Services Inc. the Supreme Court found that the National Energy Board did not properly consult Inuit in developing oil and gas projects in the North. In this failure, the National Energy Board also neglected to assess the impacts the gas and oil exploration project would have on Inuit rights and existing treaties. Hence, treaty impacts must be assessed and environmental effects need to be considered from Indigenous perspectives.

Helping Indigenous communities participate in the consultation process should be a priority for governments and oil and energy conglomerates. Based on the importance of oral traditions to many Indigenous communities, spoken testimony from Indigenous leaders should be taken into consideration as a valid form of consultation participation. Funding is also often necessary to help Indigenous communities participate in the consultation process, especially given travel costs from remote communities.

The Supreme Court has addressed the scope of the duty to consult, as well as the negative effects pipeline projects can have on Indigenous rights and titles. With diversity in Indigenous communities, and a vast difference in opinion, consultations might need to extend across individuals, groups, and national Indigenous organizations like the Assembly of First Nations. Within Indigenous communities, there are different interpretations of territory, and its ancestral and spiritual relevance. Though some Indigenous voices may be heard in the process, some will necessarily be marginalized. Many individuals in Indigenous communities refuse to recognize the Canadian government’s authority over their lands and are directly opposed to the duty to consult framework, which they see as a colonial framework. While some Indigenous communities and groups may be willing to work with the government, others will refuse this outright and their voices will consequently remain unheard.


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Additionally, provincial support and approval of pipelines helps these projects move ahead. Getting provincial approval for pipeline projects is vital politically; though Ottawa technically does have jurisdiction over these projects, it can be risky for the federal government to overtly assert their decisions over pipeline projects. Doing so without provincial consent can upset the idea that each level of government has different competencies in their own spheres. However, pipelines are vast projects that necessarily trigger both federal and provincial competencies. Overlap therefore necessarily exists between the federal and provincial jurisdiction over pipelines. While in the future, cooperative federalism could possibly help with working through the provincial-federal issues stemming from pipeline projects, the current interpretation of federalism is still very much rooted in the lists of competencies set out in ss. 91 and 92 of the Constitution Act, 1867. A trans-provincial pipeline project could thus very well have to be abandoned if one province consistently opposes it.

The importance of provincial approval of such projects manifested this autumn, with the TransCanada decision to cancel the Energy East pipeline project. The project had huge opposition, especially in Quebec, by politicians and the public alike. Had the project been approved, the pipeline would have transported crude oil beginning in Hardisty, Alberta and ending in New Brunswick. In the process, the pipeline would have passed through the province Quebec (including through Montreal) and along the St. Lawrence River to get to the East Coast.

The failures of recent pipeline projects demonstrate that provincial acceptance of such projects increasingly determines whether the projects will actually occur. However, provincial dissent over pipelines also seem to be deepening divides and resentments between certain provinces. After the TransCanada pipeline project was cancelled the Mayor of Montreal at the time, Denis Coderre, praised the cancellation along with several Quebec Members of the National Assembly. Quebec’s opposition, at least partially, very likely contributed to the cancellation of the project. As a result, Saskatchewan’s premier, Brad Wall, sharply criticized Coderre, the Quebec National Assembly, and the federal government. Bernard Drainville, a member of the Parti Québécois provincially at the time, sniped back over Twitter that Saskatchewan was engaging in blackmail. “It’s either the pipeline, otherwise, no more equalization,” Drainville tweeted. The federal government thus needs to navigate the dangerous political landscape of provincial sovereignty while also smoothing dissent between provinces to help the likelihood of success of pipeline projects in the future.

Finally, environmental responsibility increasingly helps validate pipeline projects to the public. Even beyond validation, environmental arguments have recently helped pipeline projects move forward politically. For example, though the Kinder-Morgan pipeline will not necessarily get built, the Liberal British Columbia government did agree to further pipeline negotiations only after Kinder-Morgan agreed to invest funding for over 20-years into environmental projects in the province should the pipeline be built. Similarly, much of Quebec’s opposition to the TransCanada pipeline was rooted in environmental costs, without enough economic benefit to offset concerns over sustainability.

To mitigate environmental concerns, many pipeline companies have committed to investing in sustainable development technologies. According to the Alberta Energy Regulator, the body which manages Alberta provincial pipelines, the number of pipeline accidents declined 44% over the past 10 years with this commitment to safe and sustainable transport of energy. The University of Calgary has a special research branch part of their school of engineering, the Pipeline Engineering Centre, which focuses on the advancement of pipeline engineering. The Centre places special emphasis on “integrity, maintenance, and management” of infrastructure. This summer, researchers at the University of Calgary actually developed technology that would prevent pipeline leaks and better protect the environment. Though the technology is expensive, implementing it on existing pipelines around rivers and lakes could have beneficial environmental impacts that outweigh the monetary costs of installation.

These initiatives are in place to meet the demands of provincial and Indigenous governments, environmental groups, and the public to have environmentally responsible pipelines. Recent cancellations of pipeline projects have happened at least partially due to widespread public and civil society concern about how projects will affect the environment. As such, the federal government and oil and energy companies would do well to ensure that proposed projects are as environmentally sustainable as current technology allows.

 

Further Reading:

Rachel Ariss, Clara MacCallum Fraser and Diba Nazneen Somani, “Crown Policies on the Duty to Consult and Accommodate: Towards Reconciliation?” (2017) 13:1 McGill J of Sus Dev L 5, online: <https://www.mcgill.ca/mjsdl/files/mjsdl/2_volume_13_ariss.pdf>.

 

 

 

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