LAW533 – Lecture 5
Canadian Extractive Sector Issues Short Articles
Coalition wants oil sands security
o What laws are involved? What type of laws are they? What effect are they intended to have?
Investors of Shell are demanding it to provide greater disclosure around the risks tied to oil sands
with respect to carbon prices, potential greenhouse gas regulations, oil demand and price volatility,
and the potential legal and reputation problems stemming from local environmental damage and
impairment of traditional livelihoods
A prescriptive law (b/c it requires Shell to disclose information)
The increased transparency will give investors full control over their decisions
OSC forcing minors to watch what they say
o Regulators are now forcing junior miners to disclose information regarding their projects (prescriptive
law), and monitoring them because they often misclassify resources, incorrectly use historical drilling
data, and misinterpret technical studies
Supreme Court of Canada holds Aboriginal rights cannot be used to justify road blockades
o It’s a constitutional duty of government to consult with First Nations, but it’s a good practice for
extracting companies to find a way to cooperate with the communities to prevent the blockades
o The duty to consult the community exists to protect the collective rights of the Aboriginal peoples, and
while an Aboriginal group can authorize an individual to represent it in asserting its Aboriginal rights,
individual members can’t ascertain these rights in the absence of the group’s authorization
o Behn v Moulton Contracting (p. 5-7)
Oil sands drug-testing battle
o Employer (Suncor) is pushing for random drug & alcohol testing on all employees in “safety sensitive”
o Unions and civil libertarians argue that it can result in unnecessary and ineffective policies that violate
employee privacy and dignity
Extractor companies -> oil, forestry, mining, etc.
Social Licence to Operate -> when businesses making commitments about training, monitoring environment,
investing in infrastructure, etc.
o If businesses fail to apply their social licence to operate, the surrounding communities will be against their
o It is not a legal requirement, but a choice of the business
o Investors are monitoring these extractor companies
Rhone/Clarke/Webb – Two Voluntary Approaches to Sustainable Forestry Practices
What is the main point of this article?
o Provides insight as to how industry-supported and Environmental Non-Governmental Organization
(ENGO)-supported voluntary codes interact in the marketplace; shows difference between the Forest
Stewardship Council (FSC) and the Canadian Standards Association (CSA), even though they have the same
goals -> seeking to serve as a vehicle through which a company may send credible messages to the public
about its forestry practices
What are they key differences between the two voluntary initiatives? From a business perspective, why do
these differences matter?
o Forest Stewardship Council (FSC) -> a stand-alone international program spearheaded by environmental
non-governmental organizations (ENGOs) that, from its inception, has very actively promoted the value of
its on-product eco-label
o Canadian Standards Act (CSA) -> originated within the forestry industry and was developed within the
framework of Canada’s National Standards System, with the objective of improving forest management How do the programs operate? What are the legal dimensions of the program?
o Not regulated by government; forces people to disclose whether or not their products were harvested
What does the regulatory regime for forest protection fit?
What is the likely reaction of consumers to the two programs?
If nation states don’t agree with the law, they will not be bound by that government regulation
o If the regulation is made by a group like Greenpeace and FSC, it is voluntary and not required by law
o It’s not required but many companies do follow those regulations because they will get bad publicity if
o Forms a contract -> while certification is voluntary, those who do volunteer must follow all the terms
FSC relies on third parties to do the certification who will then report to FSC; auditors also report to
In addition to the FSC, there are other forest certification schemes that aren’t operated by FSC
Potter – Greenpeace and Paper Giant Make Nice
What is the “moral of the story” if you are Kimberly-Clark?
o It’s better for Kimberly-Clark to cooperate and collaborate with Greenpeace instead of going against it
What is the moral of the story if you are Greenpeace?
o Greenpeace vowed to continue boycotting Kimberly-Clark unless they got the certification
o It drives other companies to do certification
What is the relation between Greenpeace and FSC?
o There is a contractual relationship that could be taken into court if Greenpeace continues to boycott
Kimberly-Clark even though Kimberly-Clark is compliant
What are the legal dimensions underlying this story?
Strategic Lawsuits/Daishowa Case
What is the fact situation underlying the Daishowa case?
o Daishowa (paper products) plans to clearcut timber on forest land claimed by the Lubicon Cree, so its
products were boycotted by Friends of the Lubicon
o A SLAPP (Strategic Lawsuit Against Public Participation) was filed against Friends of the Lubicon, alleging
the FotL have committed a wide variety of economic torts against Daishowa (i.e. private nuisance,