Midterm Prep Flashcards by Clinton Richardson

What is the Federal Department of Justice’s definition of a Law?

“Laws are rules made by government that forbid certain actions and are enforced by the courts.”

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What is Public Law?

Public Law sets the rules for the relationship between the individual and society

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What is Private Law?

Private Law sets the rules between individuals. It is also called civil law

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Canada’s legal system is based on a combination of common law and this, because….

Civil law, because Quebec remains under Civil Law after the Battle of Quebec in 1759

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What does the Constitution do?

A constitution provides the fundamental rules and principles that govern a country. It creates many of the institutions and branches of government and defines their powers

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What are the three branches of Canadian government?

) The Executive
) The Legislative
) The Judiciary

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What is Federal Paramouncy?

Both Federal and Provincial governments have authority to make laws, but if control over an issue is shared, Federal government would have the final say

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What are the Sources of Law? (5)

) The Constitution
) Legislation
) Role of Parliament
) Role of Courts
) Judicial Review

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What are Aboriginal Rights?

Aboriginal peoples’ historical occupancy and use of the land

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What are Treaty Rights?

Rights set out in treaties entered into by the Crown and a particular group of Aboriginal people. The Constitution recognizes and protects Aboriginal and Treaty rights

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What is Public Land

Land owned by federal or provincial government

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What is the AER? What do they do?

Alberta Energy Regulator - acts as the “land owner” in times where resources may be harvested on public land instead of private lands

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What is the Natural Resources Transfer Act of 1930?

This changed the given control of public lands and resources from the Federal Government to the Provinces of Canada

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What is the Surface Rights Board?

Tribunal that assists landowners/occupants and operators resolve disputes about surface access and compensation when operators requires access to private land or occupied crown land to develop subsurface resources such as oil, gas, and coal or to build and operate pipelines and power transmission lines

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What is Judicial Review Process?

) Right to be heard
) Right to reasons for a decision
) Independence of the decision makers

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What are the Four Elements of Sustainable Development?

) Integration Principle
) Polluter-Pay
) Precautionary Principle
) Intergenerational Equity

What is the Integration Principle?

• Integration Principle – the incorporation of financial, social, and environmental factors into the decision-making process

What is the Polluter Pay Principle?

• Polluter-Pay – make the party responsible for producing pollution responsible for paying for the damage done to the natural environment

What is the Precautionary Principle?

• Precautionary Principle – lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation

What is Intergenerational Equity?

• Intergenerational Equity – is the concept or idea of fairness or justice in relationships between children, adults and seniors, particularly in terms of preserving the environment

What is the US Environmental Impact Statement Threshold?

1 – Is an agency involved?
2 – Is there a proposal?
3 – Is there a major federal action?
4 – Do any exceptions apply?
5 – May there be significant effect on the human environment?

What is New Zealand’s EIA?

New Zealand:
• Resource Management Act
• Promote the sustainable management of natural and physical resources
• Very comprehensive compared to Canada and the US
• More emphasis on ecological equity
• Public participation is an important piece

What is India’s EIA?

India
• Environmental Protection Act
• Protecting and restoring the environment
• Environment is defined broadly to include water, air, land, and inter-relationships among them ad with human beings and other living creatures
• Exclusions: deforestation, land resettlement, weapons testing, waste disposal and radioactive substance, major dams and pipeline projects

What is England’s EIA?

England:
• Adopts rules on environmental assessments of the EU (may change because of Brexit)
• Applies to public and private projects with environmental impact
• Precautionary principle
• Includes a public consultation process
• Polluter pay principle
• Critique: some jurisdictions have weak judicial review processes and weakens the public consultation element. European court of justice could intervene with these but have not done so yet

What is a Section 402 Permit?

Permit given that allows discharge of pollutants from point source

What is a Section 404 Permit?

Permit given to developments that "fill" wetlands. Easy to acquire compared to 402 permit and are an alternative to 402 as long as the solid material being dumped is raising the bottom elevation and qualifying as "fill" as opposed to waste

What is a Class Action Lawsuit?

Group litigation: several plaintiffs in the suit

What is a Tort?

* Useful when environmental contamination leads to personal injuries * Trespass, public and private nuisance, negligence, US – strict liability for abnormally dangerous activities

What is Trespass?

* Intrusion of another’s property without legal authority * Martin v Reynolds – materials invisible to the naked eye may form a trespass so long as there is some damage to the property

What is Private Nuisance?

* Protects the use and enjoyment of private property from unreasonable interference by adjacent property owners * Sic utere tuo ut alenum non laedas – one should use his own property in such a manner as not to injure that of another * A single activity can be both a nuisance and a trespass

What is Public Nuisance?

* Environmental nuisances that affects members of the general public may be actionable as public nuisance * Public nuisance is the doing or the failure to do something that injures the health and safety of the general public * Requires “special harm” to be actionable – must show special damage not shared in common with the rest of the public (i.e. oil spill causes your waterfront property to be destroyed)

What is Negligence?

* Liability imposed when a duty of care is breached * Duty is typically defined as the reasonably prudent person’s exercise of ordinary care and skill * Damage must be connected to negligence (proximate and actual cause) * It is difficult to prove that toxic substances have caused diseases such as cancer

What is the PTD?

Public Trust Doctrine • The principle that certain natural and cultural resources are preserved for public use, and that the government owns and must protect and maintain these resources for the public's use. For example, under this doctrine, the government holds title to all submerged land under navigable waters.

What are 3 Elements of US Alien Tort Statute?

1. ) They are aliens 2. ) Suing for a Tort 3. ) The tort violates the law of nations or a treaty of the US