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Environmental Law > Up to quiz 1 > Flashcards

Up to quiz 1 Flashcards

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1
Q

Define Law

A

A binding custom or practice of a community that
establishes a rule of conduct or action, usually
prescribed or recognized by a controlling
authority

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2
Q

What are the two categories “sources” of law?

A
  • Statute Law

- Common Law

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3
Q

What are the categories of canadian law based on

A

how is was created

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4
Q

Explain statute Law

A

-passed by federal parliament or provincial legislature

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5
Q

What does the constitution do with regards to the government?

A
  • the authority to pass laws

- puts limitations on that authority

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6
Q

Explain Common Law

A
  • rules established by courts decisions

- evolves over time

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7
Q

True or false: common law is a tradition inherited from france when canada was created.

A

no lol, it was from britain

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8
Q

What principle is common law based on?

A

stare decisis “let the decision stand”

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9
Q

What is the purpose of common law

A

to fill the cracks between the laws established by democratic governments

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10
Q

True or False: Parliament and legislatures can override common law by passing new legislation

A

True

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11
Q

True or False: Parliament and legislatures cannot “codify” and add details to existing common law rules

A

False, they can

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12
Q

What is common and statute law always subject to?

A

Constitutional limits as interpreted by the courts

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13
Q

What type of law is environmental law

A

A mix of statute and common law (historically more from common law)

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14
Q

Give an example of statutory laws relevant to environmental issues

A 
Any of these work:
 Environmental assessment
 Natural resource extraction
 Management of toxic
substances
 Protection of endangered
species and spaces
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15
Q

Give an example of common laws relevant to environmental issues

A 
\:Any of these would work (note that these are also affected by statutes):
 Nuisance
 Negligence
 Trespass
 Riparian and water rights
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16
Q

What is legal pluralism in canada

A

It describes the multiple overlapping legal systems

  • Common law
  • Civil law (in quebec)
  • indigenous laws and legal traditions
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17
Q

True or false: territories have no constitutional power

A

True, they get their power from the federal government

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18
Q

True or False: municipalities get their power from the federal government

A

False, They get their power from the provincial government

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19
Q

Where is the power of the federal and provincial governments established

A

The constitution

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20
Q

Give the basic steps of a statute (federal) being made

A
  1. Cabinet stage
    - Law is introduced in refined by cabinet
  2. Parliamentary Stage
    - House and Senate readings
  3. Coming into force stage
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21
Q

What are regulations

A

Subordinate legislation, made using authority established in a
statute

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22
Q

Who has the power to make regulations

A

s usually delegated to Cabinet or a

specific Minister

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23
Q

What is the purpose of regulations

A

Provides fine-grained details to enable the broader scheme

established in the statute

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24
Q

True of False: Regulations are easier to change, so can be more responsive to the
government’s changing needs

A

True

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25
Q

True or False: Regulations are always subject to their enabling statutes

A

True

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26
Q

What level of government are by-laws

A

Municipal legislation

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27
Q

What are by-laws subject to

A

their enabling statute (like the local government act)

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28
Q

What is the purpose of the courts

A
  • statutory interpretation
  • Conflict resolution (compensation, conciliations, punishment)
  • oversight of admin tribunals
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29
Q

What type of courts are the lowest

A

Tribunals

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30
Q

What is the second highest level of court

A

courts of appeal

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31
Q

What is the highest court in canada

A

The supreme court

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32
Q

What is a higher level court: the supreme court of BC or the court of appeal for BC

A

The appeal court

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33
Q

Does the federal or provincial government appoint people to the provincial court

A

the provincial government

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34
Q

What type of environmental issues are heard at the provincial court level

A

regulatory offences

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35
Q

What level of court are the initial trial level for environmental prosecutions

A

Provincial court

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36
Q

True or false: the provincial court can hear cases involving both the provincial and federal laws

A

true

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37
Q

In civil claims cases what is the maximum dollar value handled by the provincial courts

A

$35,000

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38
Q

Who pays provincial judges

A

federal goverment

39
Q

How many people are usually sitting as a panel in the BC court of appeal

A

3

40
Q

What is the job of the BC court of appeal

A

to hear appeals from decisions of the BC supreme court

41
Q

What does the supreme court of canada consist of

A

a chief justice and eight other judges

42
Q

What is the minimum number of judges appointed to the supreme court that need to be from quebec

A

3

43
Q

What is the purpose of the supreme court of canada

A
  • final appeal from all courts

- jurisdiction over disputes in all areas of the law

44
Q

What must be done before a case can go the the supreme court of canada

A

it must have used
up all available appeals at other
levels of court

45
Q

What does “leave” mean in the supreme court

A

grant permission

46
Q

when is a leave granted by the court

A
  • public importance
  • raises key issues of law
  • otherwise significant
47
Q

What usually must happen before the supreme court hears a case

A

the court must grant permission “leave” for the appeal

48
Q

Explain admin tribunals

A
  • for disputes dealt with out side the court system

- shorter appointment procedures

49
Q

What is good about tribunals

A 
 Less formal procedures = more public
friendly, less costly
 Greater expertise and technical
knowledge, especially valuable for
difficult factual issues
50
Q

What are the two types of tribunals

A
  • Quasi-judicial tribunals
  • advisory tribunals
  • administration tribunals
51
Q

What are quasi-judicial tribunals

A

tribunals that make

legally binding decisions

52
Q

What are advisory tribunals

A

make recommendations only

53
Q

What does public law deal with

A

matters that concern the public

54
Q

What is private (civil) law concerned with

A

matters that arise between individuals

55
Q

What is the standard of proof in civil law cases

A

“on the balance of probabilities” (> 50% likelihood)

56
Q

What is the standard of proof for criminal law

A

beyond a reasonable doubt

57
Q

What does cause of action mean in common law

A

a set of circumstances recognized by

the courts as warranting a remedy

58
Q

What is a remedy in common law

A

what the court will order

if you are a successful litigant

59
Q

What is a standing in common law

A

who can bring a legal

action?

60
Q

What are the two documents that make up canada’s constitution

A
  • the constitution act (1867)
  • The constitution act (1982)

*the later is when it was passed in Canada

61
Q

What is the British North America Act

A

 1867: Canada was founded, and the first Constitution
Act was passed by the British Parliament (then called
the British North America Act, 1867)

62
Q

What is section 91 of the 1867 constitution

A

powers of the federal Parliament

63
Q

What are sections 92 and 92A of the 1967 constitution

A

powers of the provincial

legislatures

64
Q

What are sections 1-34 of the constitution act 1982

A

Canadian Charter of Rights and Freedoms

65
Q

What is section 35 of the constitution act

A

Aboriginal rights

66
Q

What does it mean when a law is declared “no force or effect”

A

It is unconstitutional

67
Q

What is Co-operative Federalism

A

Federal and Provincial governments work together to delegate and share powers

68
Q

True or False: Environmental Jurisdiction Not specifically allocated in the Constitution Act, 1867
& 1982

A

True

69
Q

What are aboriginal rights derived from

A

from aboriginal laws,

governance, practices, customs and traditions

70
Q

True or false: aboriginal law is part of canadian common law

A

True

71
Q

What formed the basis for the negotiation of treaties across canada

A

Royal proclamation of 1763

  • Recognized aboriginal rights
  • Said land could only be transferred
72
Q

What are treaties

A
  • exchange of inherent aboriginal rights and title for specific rights
  • give up land for reserves and federal funding
73
Q

Were treaty obligations honoured by the government

A

Many were not

74
Q

True or false: almost all first nation leaders making these treaties spoke and read english

A

they did not

-the agreement could have been different and the first nations people would not have known

75
Q

Define Aboriginal right

A

An element of a practice, custom or tradition that is integral to the distinctive
culture of the aboriginal group claiming the right

76
Q

What does integral mean with regards to aboriginal law?

A

integral means of central

significance to the aboriginal society

77
Q

What does distinctive mean with regards to aboriginal law

A
  • it helped define the aboriginal society at time of contract
  • practice is part of communities identity
78
Q

True or False: Distinctive =/= Distinct in aboriginal law

A

distinct, which would

mean that the community claiming the right is the only community engaging in the activity

79
Q

What does continuity mean with regards to aboriginal law

A

-Requires evidence of the practice before

European contact

80
Q

True or false: continuity requires the exercise of a right is the same as it was historically (frozen in time)

A

False, can use guns instead of arrows

81
Q

Who has the onus to demonstrate infringement with regards to aboriginal law

A

First Nations community

82
Q

Who has the onus to prove extinguishment

A

the crown

83
Q

Who has the onus to prove demonstrate justification with regard to aboriginal law

A

the Crown to demonstrate that the infringement is justified

84
Q

True or False: The government must treat all parties equal with regards to the allocation of resources

A

False, the government must give priority to aboriginal rights in allocation of resources

85
Q

What is aboriginal title

A
  • aboriginal right relating to land

- test to meet is exclusive occupation

86
Q

What are the three criteria for aboriginal title

A
  • occupation
  • exclusivity
  • continuity since before the assertion of crown sovereignty
87
Q

True or false: aboriginal title is inalienable

A

True, can’t be transferred, sold or surrendered (except to the Crown by treaty)

88
Q

Is extinguishment possible after 1982

A

no, idk why

89
Q

True or False: Each aboriginal community is required to assert and prove its own rights and title

A

true

90
Q

True or false: In order to prove these rights there must be a “live” legal action in which to make a claim and bring evidence

A

true

91
Q

What are the two common scenarios for right and title claims to come before the courts

A
  • infringement allegation

- Prosecution

92
Q

If title is established, what rights does it confer

A
  • land use decision-making
  • enjoyment/occupancy
  • possession
  • economic benefits of the land
  • proactive use/management
  • government/others need consent to use land
93
Q

Does the forest act apply to aboriginal title

A

yes

94
Q

What did the case of Haida v. BC Minister of Forests decide

A
  • gov has constitutional duty to consult/accommodate first nations
  • First Nations have a duty to participate in consultation process

Environmental Law (2 decks)

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