environmental law(1)
TRANSCRIPT
-
Engineering and the
Environment: National and
International Law
APSC 450
November, 14, 2013
P. Dawn Mills, PhD Law
-
Overview
General History of Canadian Environmental legislation
Overview of Specific Federal Legislation & Regulations
Mandate of Provincial Governments and Environmental Law & Regulation
Engineering and Environmental Regulation
International Instruments and Adjudication
-
Statue, Treaties, Agreements
and Common Law Standings There are both Federal and Provincial
Environmental Legislation and Regulations
However in the late 1980s it became apparent that additional legal tools were necessary to ensure that the environment was protected
Global concerns through the Bruntland Report: Our Common Future, 1987 and Rio Declaration on the Environment, 1992
-
Federal & Provincial Authority
and the Environment
Governed through s. 91 of the Constitution Act,
1982
Ocean and Inland Fisheries
Territories, Indian Land, and other Federal Lands
International Affairs, boundary Rivers
Migratory Birds and inter-provincial projects
Indian Lands
Governed through s. 92 & 92A of the Constitution
Act, 1982
Provincial boundaries
Provincial Ownership of Resources
Management of Civil and Property interests
-
Federal Legislation
Canadian Environmental Assessment Act, SC 1992, c.37
Exclusion List Regulations, SOR/2007-108
Law List Regulations, SOR/94-636
Inclusion List Regulations, SOR/94-637
Canadian Environmental Protection Act, SC 1999, c.33
Fisheries Act, RSC 1985, c. F-14
Metal Mining Effluent Regulation, SOR/2002-222
-
Provincial Legislation
Forestry Codes
Fisheries
Wildlife Protection Legislation
Mining Legislation
Main Legislation:
Environmental Management Act, [SBC 2003] c. 53.
Environmental Assessment Act, [SBC 2002] c.
-
Environmental
Assessment Process
Provincial Legislation:
Environmental Management Act
Environmental Assessment Act
Federal Legislation:
Canadian Environmental Protection Act
Canadian Environmental Assessment Agency Act
Fisheries Act
Transportation of Hazard Goods Act
Recent Case Law: Taku River Tlingit First Nation v.
British Columbia (Project Assessment Director), [2004] 3 S.C.R. 550.
MiningWatch Canada v. Canada (Fisheries and Oceans), [2010] 1 S.R.C. 6.
-
Whistle Blowing
According to APEG-BC Code of Ethics No.9 an Engineer or Engineer in Training
must:
Report to the Association or other appropriate agencies any hazardous, illegal
or unethical professional decisions or
practices by engineers or others.
-
When is Whistle Blowing Justifiable?
The matter in question must be important. Failure to act could result in harm to people
and/or the environment.
The whistleblower must have clear first-hand knowledge (not hearsay), as well as relevant
expertise.
All other actions within the power of the employee or citizen should be exhausted before
blowing the whistle.
All normal avenues of communication should be pursued before seeking outside help.
-
Civil Actions and the Environment
Nuisance
Strict Liability
Negligence
-
Common Issues
Petrochemical Spills
Metal Concentrate Spills
Damage to Streams and Fish bearing Lakes
Abandoned Mines Sites
Noxious Fumes
Dust
Noise
Forest Fires
-
Nuisance
The most common example of nuisance in
an environmental context
are those in which the
defendant, through his or
her action, interferes with
the plaintiffs use and enjoyment of their land
by producing such things
as noise, smoke, odours,
and noxious fumes.
St. Lawrence
Cement Inc. v.
Barrette,
2008 SCC 64
-
Strict Liability
In order for strict liability to apply, the defendants use of the land must be a
use bringing with it
increased danger to
others, and not merely a
natural use that confers a
benefit of the community.
R. v. Sault Ste.
Marie, [1978] 2
S.C.R. 1299
-
Negligence
For negligence in environmental law to
succeed a plaintiff must
show that the defendant
owed a duty of care and
that the defendant failed
to fulfill that duty, and
that the damage the
plaintiff suffered was a
result of a breach of that
duty of care.
British
Columbia v. Canadian
Forest Products
Ltd., [2004] 2 S.C.R. 74,
2004 SCC 38
-
International Environmental Law
and Issues Sustainable Issues
Trans-boundary Concerns
Global Food Security
Climate Change
-
Brundtland Report, 1987, or
Our Common Future Sustainable Development:
Development that meets the needs of the present without compromising the ability of
future generations to meet their own needs."
-
Rio Declaration, 1992
Role of Humans State Sovereignty The Right to Development Environmental Protection in the
Development Process
Eradication of Poverty Priority for the Least Developed Reduction of unsustainable
patterns of production and consumption
Capacity Building for Sustainable Public Participation National Environmental
Legislation
Supportive and Open International Economic System
Compensation for Victims of Pollution and other Environmental Damage
State Cooperation to Prevent Environmental Dumping
Precautionary Principle Internalization of Environmental Costs. Environmental Impact Assessments Notification of Natural Disasters Prior and Timely Notification Women have a Vital Role. Youth Mobilization Indigenous Peoples have a Vital Role People under Oppression Warfare Peace, development and
environmental protection are interdependent and indivisible.
Resolution of environmental disputes peacefully
Cooperation between the State and people
-
Precautionary Principles
Precautionary Principle:
http://www.unep.org/Do
cuments.Multilingual/De
fault.asp?documentid=7
8&articleid=1163
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.
-
Engineering and the
Environment
Environmental Engineering
Chemical Engineering
Mining and Geological Engineering
Agricultural Engineering
Structural Engineering
Civil Engineering
Forestry Engineering
Petroleum Engineering,
Computer & Electrical Engineering in Application
-
International Agreements
Adjudication Processes International Treaties
Agreements
International Arbitration Tribunals
United Nations Declarations
Corporate Financing Criteria
International Finance Corporation
World Bank
International Monetary Fund
-
Procedures in the Event of
Acknowledge that the event has happened
Identify the Provincial or Federal Agency that will inform, inspect the problem and initiate the
reporting process
Fence off the area
Wait instructions on how to remediate the event
Be prepared to be investigated for a nuisance or negligence
Depending on the severity strict liability
Be prepared to pay Fines
-
Public Opinion
Use the advise of a Government official when disseminating information related
the issue
Invite the Stakeholders to an information sharing event
Bring in a third party that the Stakeholders trust to evaluate the issue, as well as the
remediation