TOWARD SUSTAINABILITY IN NATURAL RESOURCES

LAW

APRIL 4, 2013

Overview

• This course has reviewed laws governing management of natural resources and their legislative development

• Are they effective? Adequate to solve social, economic, ecological challenges?

• Focuses on mitigating damage caused? • Ad hoc, reactive, fragmented, crisis-driven, short-

term, prescriptive, rigid, narrow, confrontational, unscientific, ineffective, inefficient, inequitable?

• Is a new paradigm needed?

Ecological Context for Natural Resources Law

• Human actions reducing the life-supporting capacity of Earth’s ecosystems even as rising human populations and consumption are making heavier demands on ecosystems

• Ecological footprint analysis shows that 1.5 “Earths” needed to support current human population at current consumption levels

• Average ecological footprint (global ha): Canadian 7.6, American 9.6, Afghan 0.1

• Earth’s natural capital is being drawn down

Millenium Ecosystem Assessment (2005) World Resources Institute

• “Over the past 50 years, humans have changed ecosystems more rapidly and extensively that in any comparable period of time in human history largely to meet rapidly growing demands for food, fresh water, timber, fibre and fuel” “substantial and largely irreversible loss in the diversity of life”

Constitutional Sideshow?

• Has allocation of legislative authority under Constitution to provinces and federal government in relation to natural development been the legal focus?

• Have constitutional issues made rational law-making in relation to natural resources nearly impossible?

Constitutional Sideshow?

• Has the emergence of constitutionally entrenched aboriginal rights helped or hindered good natural resource law-making?

• Are the natural resource management provisions under modern claims agreements a useful model for sustainability?

Forestry, Wildlife, Fisheries Law

• Is the Crown Forest Sustainability Act a model for achieving sustainable forests on public lands?

• Laws restricting hunting of game animals have largely succeeded in addressing market hunting challenge? But Fisheries Act has had less success regulating “market hunting” of wild fish populations

• How to achieve sustainable fish populations even just in Canadian waters?

Species at Risk Law

• Lots of federal/provincial laws and judicial decisions addressing species at risk

• Have they been effective in driving protective action by governments, landowners?

• Are they protecting species on the ground? Or are they counterproductive?

Mining Law

• Are mining laws effective in regulating mining activity?

• Can mining ever be sustainable? • Given importance of mining to Canada’s

financial industry, how can Canada lead internationally in ensuring accountability of Canadian mining companies?

Oil and Gas and Pipeline Law

• Energy superpower or petro-state? • How can Canada reduce its GHG emissions

to “sustainable” levels without transforming our energy economy away from fossil fuel burning in favour of renewables, energy efficiency?

• What laws are most effective in making this transition?

Renewable Energy Law

• Are Ontario’s laws governing wind energy regressive in terms of sustainability?

• What changes needed to achieve sustainability and public acceptance?

Environmental Assessment Law

• Environmental assessment law touted as a key tool to achieve sustainability, but has been systematically degraded

• How can EA law be reformed to advance sustainability in ways that proponents, governments, public can accept?

• Should EA law be subsumed into land use planning?

Protected Areas Law

• Expansion of legally protected areas a relative success story over past 30 years?

• But has this fed the belief that nature “is out there” and therefore that unprotected areas can be dug up or paved?

Public Participation in Natural Resource Decision-Making

• When is public participation desirable, when not?

• Does trend to broader public interest standing, enhanced citizen rights to sue, seek investigations support sustainability?

Ecological Limits as a Political Dividing Line

"Eventually the world will no longer be divided by the ideologies of 'left' and 'right' but by those who accept ecological limits and those who don't."

- Wolfgang Sachs

Sustainability Paradigm • Law must rise to challenge of “ensuring the

restoration of essential natural capital and of protecting the common rights of all to the ecological services essential for civilized existence” (Rees)

• Sustainability law “aimed at transforming the relationship between humans and the environment. . .systemic, holistic, proactive, solutions-oriented, long-term, ecological, effective, efficient, equitable, results-oriented, adaptive, substantive, diverse, cooperative, and radical” (Boyd)

Ecological Law Paradigm (Garver) • Ecological law “”emerges from the tension

between opposing narratives of impossibility”• “Seeming impossibility of ending current

intransigent commitment to infinite economic growth, primacy of short-term economic interests and overriding belief in technological solutions to ecological challenges”

• “systemic impossibilities and long-term catastrophic socio-ecological consequences if the economy grows infinitely and economic and political trade-offs continue to outweigh non-negotiable ecological limits

Ecological Law Paradigm (Garver) • First set of impossibilities must give way to

the second—and the rule of ecological law should emerge