Law 101 Final Modules 12- 13: University of Alberta

Environmental Law, International Human Rights Law

Environmental Movement

Society’s expression of concern about the rule of resource use, plants and animals going extinct and harmful pollution levels

Environment

Our surroundings; living and non-living. What we need to survive and thrive. Includes species, resources, planetary systems

Three Key Principles in Environmental Law

• Science

• Politics

• Ethics

What is Environmental Law?

Law that strives to maintain the conditions needed for humanity to survive (and thrive) and also to steward the Natural World

Goals of Environmental Law

• Set limits on Pollution

• Set limits on Environmental Damage

• Protection for the Natural World

Forms of Environmental Law

• International Treaties

• Federal and Provincial Statutes/Regulations

• Municipal Bylaws

• Objective Sustainable Development

How to achieve Sustainable Development?

• Set rules to manage resources now and in the future

• Set precautionary regulations to limit pollution and protect species

• Seek equal protection for all

Federal Jurisdiction (environment)

• Criminal law (e.g., banning toxic substances)

• POGG (national concern, e.g., climate change)

• Trade and commerce (interprovincial pollution)

• Fisheries, navigable waters, Indigenous lands

Provincial Jurisdiction (environment)

• Property and civil rights (e.g., land use, contracts)

• Natural resources (e.g., forestry, mining)

• Local works and undertakings

• Municipal powers (delegated by provinces)

Canadian Environmental Protection Act (CEPA)

Federal departments used to regulate substances deemed dangerous to humans, wildlife, and the environment after toxicity assessment

Greenhouse Gas Pollution Pricing Act 2018

A federal law that sets minimum carbon pricing standards across Canada.

• Applies a carbon tax on fuels and large emitters

• Provinces must meet the federal benchmark

• Backed by the Peace, Order, and Good Government (POGG) power

• Upheld by the Supreme Court in 2021 as a national concern

Goal: Combat climate change through pricing carbon emissions.

Environmental Regulation Factors

• Permissive

• Layered

• Complete

Permissive

• Activity must include an environmental assessment

• Balance of environmental, social and economic considerations

• Public’s best interest

• Benefits must outweigh the harm

Layered

• Must hold provincial authorization under the Environmental Protection Enhancement Act

• Pollution must comply with Canadian Environmental Protection Act 1999

Complete

• Maintaining compliance with the law

• Enforcing with monitoring, inspection and reports

R v Syncrude, 2010

Syncrude was charged after 1,600 ducks died in a toxic tailings pond in Alberta.

• Charged under both federal (Migratory Birds Act) and provincial (Environmental Protection Act) laws

• Court upheld both levels of law, showing shared jurisdiction

• Found guilty → significant fines and environmental accountability

Species at Risk Act (SARA) (federal)

• Protects listed species and their critical habitats

• Applies on federal lands and to federally regulated projects

• Provinces also have laws (e.g., Alberta’s Wildlife Act)

• Focus: Prevention, protection, and recovery of species

Goal of SARA

To prevent species extinction, to aid in species recovery and manage species that are at risk

Steps for Protection with SARA

• Assessment
  – COSEWIC (Committee on the Status of Endangered Wildlife in Canada) assesses if a species is at risk

• Listing & Legal Protection
  – Government lists the species and provides legal protection (esp. on federal land)

• Recovery Planning
  – Develops and implements a recovery strategy and action plan

Committee on the Status of Endangered Wildlife in Canada (COSEWIC)

• Independent group of scientists and experts

• Assesses species at risk based on science and Indigenous knowledge

• Assessment does not guarantee protection — Cabinet makes final decision

• 845 species protected to date

R v Lake Louise Ski Area Ltd.

• Ski area cut down trees without proper provincial permits.

• Violated provincial forestry and environmental regulations.

• Court found the company liable for unauthorized deforestation under SARA.

• Case emphasizes strict enforcement of natural resource laws and permits.

• Fined 2.1 million to conservation groups

Climate Change

Long term shifts in temperature and weather. Since 1800s, humans mainly caused activities that released greenhouse gases which have magnified this natural phenomenon

Paris Agreement - April 22, 2016

Legally binding agreement in which every country in the world (nearly) agreed to limit global warming to well below 2 degrees, aiming for 1.5 degrees by reducing greenhouse gas emissions and increasing climate resilience

Climate Change Laws

• Carbon Tax

• Phase out coal fired generators

• Fuel efficacy regulators

• Municipal bylaws and strategies

Human Rights

Inherent to all human beings regardless of race, sex, nationality, ethnicity, language, religion or any other states

International Human Rights Law (INHL)

Aims to provide global legal protection for basic fundamental rights of a civil, political, economic, social and cultural nature

International Law

System of principles of rules designed to govern relations between sovereign states and international organisations

Characteristics of International Law

• Main players: States

• No central law enforcement

• Relies of self interest of States in having rules

• Principles of negotiation and diplomacy

Development of INHL

• Reaction to WWII

• Up until, rights of a person were considered matters of national law

• Nuremberg Law trial, people held accountable under International Law for the first time

• Founding of the UN in 1945, affirmation of universal rights and freedoms

UN Charter

• Founding document of the United Nations (1945)

• Goals: maintain peace, uphold human rights, promote international cooperation

• First task: Draft a declaration of universally recognized rights → led to the Universal Declaration of Human Rights (1948)

• Legally binding on member states under international law

Universal Declaration of Human Rights 1948

• Adopted by the UN General Assembly after WWII

• First global statement of universal human rights

• Lists civil, political, economic, social, and cultural rights (e.g., right to life, equality, education, asylum)

• Not legally binding but highly influential in international law

• Basis for many treaties, constitutions, and human rights laws globally

• Clear, accessible language

Difficulties drafting Human Rights Treaty

• Cold war

• Took over 18 years (1948-1966)

• Came out with 2 covenants

International Treaties

An agreement between states that is intended to be binding under international law

International Covenant on Civil and Political Rights (ICCPR)

• A binding UN treaty that protects civil and political rights

• Rights include: life, liberty, fair trial, free speech, religion, voting

• Has optional protocols (e.g., individual complaint mechanism)

• Enforced by the UN Human Rights Committee

• Canada ratified it in 1976, committing to uphold these rights in domestic law

• Influenced the CCRF

Lovelace v Canada

• First case heard by the UN Human Rights Committee under the ICCPR

• Sandra Lovelace, a Mi'kmaq woman, lost her Indian status under the Indian Act after marrying a non-Indigenous man

• Claimed this violated her right to culture (Article 27, ICCPR)

• Committee ruled in her favour: Canada discriminated against her based on sex

• Led to amendments to the Indian Act (1985) removing gender discrimination

International Covenant on Economic, Social and Cultural Rights (ICESCR)

• A binding UN treaty protecting economic, social, and cultural rights

• Rights include: education, health, work, social security, adequate standard of living

• Requires states to take steps for progressive realization of rights, within available resources

• Monitored by the UN Committee on Economic, Social and Cultural Rights

• Canada ratified in 1976, but implementation relies on both federal and provincial governments

Negative Rights

• Rights that require others (especially the state) to not interfere

• Protect individuals from harm or restraint

• Civil/Political

Positive Rights

• Rights that require others (usually the state) to take action or provide resources

• Ensure access to basic needs and services

• Economic, social, and cultural rights

Treatment Action Campaign v Minister of Health (South Africa), 2002

• Landmark case on the right to health under South Africa’s Constitution

• Government restricted access to nevirapine, a drug preventing mother-to-child HIV transmission

• Court ruled this violated the constitutional right to health care

• Ordered the government to expand access to the drug

• Set a key precedent for enforcing socio-economic rights through the courts

Establishing an International Court

• During the Cold War

• Western States of Europe formed the Council of Europe in 1949

• Treaty between them formed the International Court in 1953

Three Regional Human Rights Courts

1. European Court of Human Rights (ECHR)

2. Inter-American Court of Human Rights

3. African Court on Human and Peoples’ Rights

The European Convention on Human Rights

• Treaty to protect human rights and fundamental freedoms in Europe

• Established in 1950 by the Council of Europe

• Guarantees rights like right to life, fair trial, freedom of expression

• Enforced by the European Court of Human Rights

• Binding on all member states who ratify it

• Can receive complaints (1995)

Third Generation Rights

• Collective rights promoting solidarity and global justice (e.g., peace, development, clean environment)

• Include the right to protection from genocide and cultural destruction

• International law increasingly addresses Indigenous protection against genocide as part of global solidarity

Case Study: Unpaid Interns in Belgium

• Issue: Many interns worked without pay in Belgium, raising legal and ethical concerns

• Legal debate on whether unpaid internships violate labour laws and minimum wage regulations

• Courts and regulators examined contract nature, work performed, and benefits received

• Highlighted the balance between training opportunities and worker exploitation

• Resulted in calls for clearer rules to protect interns’ rights and fair compensation

Corporations in International Law

Corporations can be beneficiaries under international law. They have the right to a fair trial, freedom of expression/press.

Peremptory Norms (Jus Cogens)

Fundamental principles of International Law that no State can opt out of