Final Exam Review Every powerpoints main concepts and examples

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University of Waterloo
Environmental Studies
ENVS 201
Alastair Craik

LEGAL CONCEPTS 1. The Crown federal government 2. Separation of powers Each branch of the government has a different function o Legislature creates law o Executive implements and enforces law o Courts interpret and apply law Separation of powers suggests each role distinct and should not encroach US model But in Canada responsible government o Executive (cabinet) made up of legislators o answerable to legislature, i.e. must maintain confidence of the legislature o GG (or LG) formal head of state oversees relationship b/t executive and legislative branches Otherwise acts on the advice of the other branches (governor-in-council) 3. Division of powers set out in ss.91/92 of Constitution Act, 1867 exclusive o if power is assigned to one level, then those powers are by implication excluded from the other level exhaustive o all authority was notionally divided at confederation o for areas that were not contemplated must either be allocated by analogy 4. Sources of law Statutes written law passed by legislative body Regulations rule or directive made/maintained by authority By-law - regulation made by local authority Permit official doc. Giving someone auth to do something License permit from authority to own/use/do/carry something Common law judge declared law exists and applies to a group of basic customs Contracts written or spoken agreement enforced by law Treaty - a formally concluded agreement btw 2 parties Ratio decidendi reason judge reaches judgment Obiter dictum- remark or observation made by a judge (express opinion) Stare decisis- stay by things decided judge by previous example Constitution basic law of nation or state that sets how that state will be organized, the powers of authority btw gov. and basic principles of society not one doc. many ultimate supreme law 1867 dominion of canada- bicameral fed + prov legislature - divided legal powers - structured court system 1982 Great B to Canada - charter (rights) - aboriginal reaty rights - amending procedures 5. Binding power v persuasive authority relates to hierarch of the courts - higher court judgment binds lower courts persuasive authority use of judgments from courts that are horizontally aligned (ie province to province) 6. Majority opinions v dissenting opinions Majority opinions judgment of the majority of the judges on a case Dissenting opinion judgment of judges not in agreement with majority. Could be considered persuasive authority 7. Judicial review Example Pembina case. Not in court, but a review of an administrative process. Form of legal proceeding 8. Public law v private law Private law between individuals public law between government and people 9. Standard of proof a. Civil balance of probabilities b. Criminal beyond a reasonable doubt 10. Burden onus of proof = 50+1 Burden of ones actions 11. Liability legal responsibility 12. Fault moral responsibility PRIVATE LAW Integrative test for nuisance, balance env eco & social rights private perspective Standing Issue- ability to recover losses for impact to env/recovery tied to property/ env harm impacts resources not individually owned Shell example/ recovery for air water habitat pollution/ individual recover for special damages Parens patriae crowns role as protector of public interest not always proceed Public Trust- Crown right to recover 4 en be half of public BUT can Crown act 4 public rights in env harm public protect env? Not recognized in Canada Proactive causing something to happen rather then waiting for it injunction prevents little to prevent pollution public benefit Damages loss caused by defendants actions difficult to figure out loss value to land market value? P obligated to clean up? D clean to what degree, loss of amenity Damage for Env Losses value no economical loss/BC forest damage for trees lost, market value or intrinsic value, ecological, existence or contingent value Science-based complexity, hard to prove precautionary principle hard in private law causation problems Jones vs. Moblie Oil contaminations of animal health Inclusivity (all ppls needs, handicap) env problems effect public goods, defers public interest in court solution is class action Class Action cost issues, hard for nuisance and health issues personal small group acting for a large group Effectiveness deter polluters, liability/damages, accidental (non-negligent) release, solution polluters pay but damage is hard to calculate PRIVATE LAW GOOD - self initiating cant rely on government, direct remedies/compensation, principled PRIVATE LAW BAD - expensive, retroactive, risky/unpredictable/ does not recognize non economic values, government acts as imperfect guardian ENVIRONMENTAL CONCEPTS 1. Prevention proactive v reactive Whereas the Government of Canada is committed to implementing pollution prevention as a national goal and as the priority approach to environmental protection; CEPA, Preamble 2. (1) In the administration of this Act, the Government of Canada shall, having regard to the Constitution and laws of Canada and subject to subsection (1.1), (a.1) take preventive and remedial measures to protect, enhance and restore the environment; CEPA, s.2(1)(a.1) 2. Precautionary Principle In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. Rio Declaration, Principle 15 3. Polluter Pays avoid environmental externalities National authorities should endeavour to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment. Rio Declaration, Principle 16 Whereas the Government of Canada recognizes the responsibility of users and producers in relation to toxic substances and pollutants and wastes, and has adopted the polluter pays principle; 287. The fundamental purpose of sentencing for offences under this Act is to contribute, in light of the significant and many threats to the environment and to human health and to the importance of a healthy environment to the well-being of Canadians, to respect for the law protecting the environment and human health through the imposition of just sanctions that have as their objectives (a) to deter the offender and any other person from committing offences under this Act; (b) to denounce unlawful conduct that damages or creates a risk of damage to the environment or harms or creates a risk of harm to human health; and (c) to reinforce the polluter pays principle by ensuring that offenders are held responsible for effective clean-up and environmental restoration. CEPA, Preamble & s.287 4. Sustainable development "Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs. It contains within it two key concepts: the concept of 'needs', in particular the essential needs of the world's poor, to which overriding priority should be given; and the idea of limitations imposed by the state of technology and social organization on the environment's ability to meet present and future needs. - Bruntland Commission, Our Common Future Two concepts of justice: Intergenerational equity o fairness or justice in relationships between children, youth, adults and seniors, particularly in terms of treatment and interactions different equity for different ages Intra-generational equity o all sections of the community share equitably in the costs and benefits of achieving sustainable development The Government of Canada accepts the basic principle that sustainable development is based on an ecologically efficient use of natural, social and economic resources and acknowledges the need to integrate environmental, economic and social factors in the making of all decisions by government. Federal Sustainable Development Act, 2008, s.5 5. Biological diversity - species, genetics, ecosystems 6. Ecosystem integrity - animals WHEREAS Canada holds that conservation, based on an ecosystem approach, is of fundamental importance to maintaining biological diversity and productivity in the marine environment Ocean Act, Preamble Ecological integrity - land with respect to a park, a condition that is determined to be characteristic of its natural region and likely to persist, including abioti
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