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ENVS201 Study Guide - Final Guide: Polluter Pays Principle, Precautionary Principle, Rio Declaration On Environment And Development


Department
Environmental Studies
Course Code
ENVS201
Professor
Alastair Craik
Study Guide
Final

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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

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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 defendant‟s 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

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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
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