Volume 17: Issue 1 (2020)
Volume 17 Introductory Material
Arsalan Ahmed
Here, readers can find useful information concerning the McGill Journal of Sustainable Development Law, including its Editorial, Management, and Advisory Boards. The MJSDL is a student-run, peer-reviewed, bi-annual academic journal mandated to provide a forum for critical analysis on the intersecting themes of economics, society, human rights, and the environment, and the resulting implications for sustainable development law. The MJSDL is affiliated with the Faculty of Law at McGill University and is fully bilingual. Our 2020-2021 Editor in Chief, Arsalan Ahmed, provides an introductory note introducing this volume.
Brenda L. Gunn
Indigenous peoples’ right to participate in decision-making is a key and foundational right. Fulfilling Indigenous peoples’ right to participate in decision-making is key to protecting and fulfilling other rights including the right to self-determination, the right to lands, territories and resources, and the right to culture. In the era of climate change, new threats to Indigenous peoples’ rights are emerging. Based on past experiences where Indigenous peoples have had to pay the price for conservation measures, Indigenous peoples continue to express concern that current approaches to climate change planning may repeat this same pattern of decision-making without Indigenous peoples’ involvement leading to further violations of Indigenous peoples’ rights. This article demonstrates the interconnection between fulfilling Indigenous peoples’ right to participate in decision-making (including FPIC) and the realization of other substantive rights. By grounding free, prior and informed consent in this broader participation right, FPIC is used to guide decision-making processes to ensure Indigenous peoples’ rights are protected in climate change planning processes.
Zackary Goldford
Zackary Goldford discusses Professor Richard Lazarus’ new book, The Rule of Five, by raising questions about the relationship between litigation and public policy change. Professor Lazarus’ book tells a success story of a court decision that led to public policy change, but should courts really be the go-to places for environmental lawyers and activists? Goldford’s analysis suggests that environmental lawyers and activists might be better off if they focus on persuading the political branches instead.
Shining Some Sunlight on Mandatory Corporate Climate-Related Disclosure
Brandon D. Stewart
Governments and regulators are obsessed with climate-related disclosure. Canada, the United Kingdom, Hong Kong, China, the European Union and even the United States have developed or may develop legislation or rules that require firms to disclose climate-related financial information in line with the Task Force on Climate-Related Financial Disclosures’ (TCFD) recommendations. The expectation is that these mandatory corporate climate-related disclosure regimes (MCDRs) will increase market efficiency and potentially support an accelerated transition to a global low-carbon economy. This article shines some sunlight on these core, flawed assumptions. I identify four common features shared by most and, potentially, all of the MCDRs from the jurisdictions above, which may limit their expected impact on market efficiency: (1) a phased-in approach to implementation, where the disclosure of more reliable, decision-useful quantitative information will not be available to investors for several years; (2) disclosure on a comply-or-explain basis, which may confuse investors and result in unexpected market reactions; (3) misalignments with the TCFD’s recommendations; and (4) a public enforcement gap. Whether these MCDRs will help accelerate the transition to a low-carbon global economy is also questionable. Any improvement in climate- related disclosure within public markets will not direct investor capital towards the private market investments necessary over the next decade for governments to meet their targets under the Paris Agreement. There is also no guarantee that firms that think about climate change will act more sustainably, at least until a critical mass of their most powerful stakeholders meaningfully react to their climate-related disclosures. The article concludes by identifying two dangerous possibilities associated with the growing global obsession with MCDRs, which includes recent legislative moves to impose TCFD-related disclosure requirements on other financial actors. The first is the spread of inefficiencies throughout the financial regulatory landscape, if governments and regulators fail to understand, acknowledge and address the insights from this article, which I argue apply to MCDRs across the investment chain. The second is the risk of tunnel vision or path dependency if there is a narrow focus on disclosure to the exclusion of other, potentially more innovative and effective regulatory tools.
Christopher Nowlin
Indigenous peoples in Canada are partnering increasingly with non-Indigenous capitalists in industrial-scale development projects. This tendency could be a matter of concern for social and environmental reasons. Extensive industrialization over generations has adversely affected the global climate, so increased participation in industrialization should exacerbate the problem of global warming, not ameliorate it, unless the industrial enterprises in which Indigenous people and non- Indigenous participate are technologically committed to redressing the problem. Since the 1970s, Indigenous involvement in natural resource exploitation projects has injected conservationist terms into such projects, rooted in Aboriginal rights and Indigenous beliefs about ecological stewardship. However, to the extent that capitalist ventures generally prioritize profitability, greater Indigenous participation in such ventures runs a risk that Indigenous communities will increasingly put financial success ahead of ecological sustainability. Billion-dollar acquisitions by Indigenous communities this century are considered by some observers to be a strong indicator of Indigenous socio-economic success, but this article proposes that the prevailing desire among international leaders (non-Indigenous and Indigenous alike) for financial largesse and economic growth presents its own problems for ecological sustainability.
Larissa Parker
This case comment discusses Association québécoise de lutte contre la pollution atmosphérique v. Volkswagen Group Canada, 2018 QCCS 174 and ENvironnement JEUnesse v. Attorney General of Canada, 2019 QCCS 2885. Although both Quebec cases present similarly ambitious claims on behalf of large subsections of the population of Quebec, the Quebec Superior Court authorized the former and not the latter. A closer look at both decisions reveals an important disconnect, not only between the two decisions themselves, but also in how they fit within the broader historical landscape of environmental class actions in Quebec. This article argues that the rulings present two very different, principle-driven approaches in how judges interpret class action authorization criteria set out under Article 575 of the Code of Civil Procedure for similarly broad, climate-change related claims, while underscoring the broader philosophical debate that has surrounded class actions for half a decade. In rendering such different decisions in cases so similar, ENJEU and Volkswagen send an unclear signal as to whether climate change class actions are a viable form of litigation. This in turn, has important ramifications on the three functions of class action law: access to justice, judicial economy, and behavioural modification.
Cooperating with nature: What can game theory teach us about environmental personhood? (in French)
Suzanne Zaccour & Michèle Breton
Imagine a river polluted by a factory. Traditional legal avenues struggle to respond to this scenario, especially when no human being suffers from pollution. Thus, some jurisdictions are now turning to environmental legal personality, an innovative solution that allows the river to itself sue the polluting factory. What can game theory bring to the debate on the legal personality of the environment? We argue that legal personality makes the river a player whose interests are recognized and who can negotiate in its own name. Thus, environmental legal personality can be used not only to facilitate litigation, but also to promote the achievement of collectively desirable cooperative solutions. By staging a dialogue between law and game theory, we shed a new light on environmental negotiation and legal personality.
