Strong Hints for Final!!! Flashcards
What are the two sources of law?
- Legislation
- Common Law
What key 6 things does Environmental Law include?
- Regulatory Law
- Assessment Law
- Legislation that confers environmental rights
- Environmental Protection Laws
- Provisions in sectoral laws
- Environmental focused international laws
True or false: Environmental law is mandatory as compared with guidelines, codes of practice
True
What are the two categories of Environmental Law?
- Laws of general application
- Sectoral Laws
What are the four evolutionary phases in Canadian Environmental Law?
- Phase 1: Common law rights and early statutes (1960s)
- Phase 2: Waste control and cleanup laws (1960s)
- Phase 3: Toxic Control Laws (1970s-1980
- Phase 4: Comprehensive approaches to environmental assessment and planning
What are some of the main tools in Phase 1 of the evolutionary phase of Canadian environmental law?
- Torts and property law
- Fisheries act with blanket prohibitions
- Public health statutes
What did Cleanup Laws (Phase 2) focus on?
Regulating discharge of waste
What key thing happened during Phase 3 (Toxic control laws) of the evolutionary phase of Canadian environmental law?
Understanding that waste control and clean up did not consider accumulation (POPs)
What is a key factor of Phase 4 (Comprehensive approaches to environmental assessment and planning) of the evolutionary phases of Canadian environmental law?
Consideration of anticipatory and preventive approaches to environmental law
What are the three main bodies of the Provincial Canadian legal framework?
- S.92
- Natural Resources
- Proprietary Interests
What jurisdiction does the provincial government have over natural resources?
To manage and to capture revenues from non-renewable and forestry resources and the generation of electrical energy
What does Proprietary Interests mean?
vests public lands, minerals
What are the four key bodies of the Federal Power in the Canadian legal framework?
- 91
- General “Powers”
- 92(10)
- Treaty Making Power
Under S.91, what power does the federal government have?
- Trade and commerce
- Taxation power
- Navigation
- Sea coast and fisheries
- Indigenous interests
- Criminal law
What are the three levels of the hierarchy of environmental legislation?
- Constitution of Canada ->
- Environmental Statutes ->
- Subordinate Legislation ->
Statutes have to be within the jurisdiction of the
enacting federal or provincial government under the
_________________
Constitution Act, 1867
Where does subordinate lie within?
Legal authority of the empowering statute
____________ have to be within their jurisdiction under the authorizing provisions of the provincial statutes that establish and empower municipalities.
Bylaws
What is the WMR?
Winnipeg Metropolitan Region
What outlines the structure, powers and responsibilities of the City of Winnipeg?
City of Winnipeg Charter Act
The concept of ____________ also applies to discretionary decisions made by authorized tribunals and government officials conferred by environmental statute
jurisdiction
Courts have an ____________ role
adjudicative
Define Adjudication:
The legal process of resolving a dispute or deciding a case
__________ are an integral part of our democratic system
Courts
What are the 3 key functions of the courts?
- Apply the law
- Provide a check on the use
of government power - To adjudicate on matters of rights and liabilities
Judges are appointed and have ____________ in how they arrive at decisions
DISCRETION
What is a Civil Matter in terms of courts?
Dispute between persons incl. corporations
Define Criminal Matter:
Accused if either acquitted or found guilty of committing an offence
Define a Tribunal:
Administrative board, commission, panel or some other decision-
making body that carries out some sort of adjudicative, regulatory, or
policy role in the implementation of a legislative scheme
True or false: Tribunals are less formal than courts.
True, they are more accessible to the public.
What kind of role does the Tribunal have?
Inquisitorial role, asking questions and initiating own research on the
matter at hand rather than relying solely on evidence presented by
the parties
What are the 7 key principles of Administrative Law?
- Right to Notice
- Right to Council
- Right to give evidence
- Natural Justice
- Procedural Fairness
- Jurisdiction
- Discretion
Define Right to notice:
Parties to a proceeding have a right to be notified of the time and location of the hearing
Define Right to Counsel:
Parties can be represented by a lawyer or other authorized representative
Define the Right to Give evidence:
Parties can give evidence relevant to the subject matter of the hearing and cross-examine the evidence of other parties
Define Natural Justice:
Parties have the right to be heard and to have their case decided by an unbiased tribunal member(s) who hear the case
Define Discretion:
The tribunal will exercise its discretion over its procedures
and the merits of a case in a manner that is consistent with
the applicable legislation
What are the five key constitutional, statutory and treaty documents for environmental law and indigenous peoples?
- Royal Proclamation (1763)
- Constitution Act (1867)
- Section 35(1) Constitution Act (1982)
- Treaties / Agreements
- UNDRIP
What did the Royal Proclamation state?
Indian lands could only be surrendered to the Crown to avoid frauds and abuses by settlers
What did the Constitution Act (1867) state?
Jurisdiction of federal and provincial governments
91(24) “Indians and lands reserved for Indians” are federal jurisdiction
How did the Constitution Act change from 1867 to 1982?
Existing Aboriginal and treaty rights of aboriginal peoples of Canada are hereby recognized and affirmed
What are the two subcategories of Treaties and Conventions?
- Bilateral or multilateral
- Protocols
How does international law impact
domestic law?
International agreements like the Kyoto Protocol can influence the countries that agree to implement laws / taxes / standards etc,
Define Private Law:
Individuals exercise rights against others to protect their own property or interests
Define Public Law:
The state imposes regulatory frameworks that set environmental standards and consequences for non- compliance
What are some examples of Private Law?
Torts (e.g. nuisance, negligence)
What are some examples of Public Law?
Federal CEPA and associated regulations; ON Environmental Protection Act and associated regulations
What are some of the key legislation under fossil fuel exploration and development?
- NEB
- Canada Energy Regulator Act
- Impact Assessment Act
- Fisheries Act
- Migratory Birds Convention Act
- CEPA
When did the Canadian government implement environmental assessments into legislation?
Canadian Environmental Assessment Act proclaimed in 1995 along with key regulations
When did Ontario pass their Environmental Assessment Act?
1975
True or false: Environmental assessment laws now in every province and territory, but no two processes are identical
True
What are the four components of Environmental Assessment laws?
- Application Rules
- Levels of Assessment
- Conception of Environmental Consideration
- Breadth of Analysis: Understanding
In Assessment Laws, what undertakings will be subject to assessment obligations?
- Strategic-level policies
- Programs, plans, and projects
- Individually or cumulatively
In Assessment Law, What is the nature and scope of factors that must be addressed?
All environmental assessment laws must __________ administrative mandates?
define
All environmental assessment laws must set out ____________ and __________
processes and procedures
All environmental assessment laws must provide details to be specified in _______________
regulations
What are the two streams of Environmental Assessment Laws?
- Quick Assessments
- Demanding Assessments
True or false: All serious environmental assessment laws require the work completed before irrevocable decisions are made
True
Environmental assessment processes determine whether the proposed undertaking is “______________”
acceptable
What are the five categories in COSEWIC?
- Extinct
- Extirpated
- Endangered
- Threatened
- Special Concern
What does CITES mean?
Convention on International Trade in Endangered Species of Wild Fauna and Flora
What does CITES do?
Seeks to ensure that international trade in wild animals and plants does not threaten their survival
To implement CITES, Canada passed the ______________
Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act
Corporate law is generally
considered unfriendly to
environmental concerns because of what two reasons?
- It protects shareholders from liability
- It mandates that corporations operate in their own best interests
True or false: Corporate law does not protect against environmental liability in certain circumstances
True
What are the four circumstances in which corporate law does not protect against environmental liability?
- Personal liability for officers and directors
- Vicarious liability for acts of employees
- Parent corporation’s liability for acts of a subsidiary
- Owner’s liability for a contaminated site
What is the 3 P rule?
- Property interest
- Personal (health) interest, or
- Pecuniary (financial) interest
What are the three questions to be asked when considered Public Interest standing?
- Is a serious issue being raised?
- Does the applicant have a “genuine interest” in the litigation?
- Is the legal action a “reasonable and effective means to bring the challenge to court”?
True or false: There is no automatic right to appeal an
administrative decision
True, an appeal must be
provided for in the statute
What are the two forums of appeal?
- Appeals to another administrative tribunal
- Appeals to a court
What are the two types of appeals?
- Appeals de Novo (New hearings)
- Appeals on questions of law and jurisdiction
_______________ legislation has established a number of specialized tribunals to hear appeals from administrative decisions
Provincial
What are the four advantages of environmental appeal boards?
- Members have environmental expertise
- Less formal procedures
- Usually include a well-developed mediation process
- Main disadvantage is that sometimes (as in Alberta) appeals are subject to approval by environment ministers
